NO DO-OVERS FOR YOU: District Court in North Carolina Denies Substitute Counsel’s Motion to Bifurcate Discovery

Happy Friday TCPA World. Today we have an interesting decision coming out of the Eastern District of North Carolina, titled Silva v. Connected Investors, INC. Not only are the circumstances here a fun read, but also provide a rather simple and invaluable lesson to be learned. Here’s the background folks:

On April 26, 2021, Plaintiff filed her putative class action suit asserting TCPA violations against Connected. In her complaint, Plaintiff alleges that she received one ringless voice message from Connected. On June 24, 2021, counsel #1 for Connected filed an answer to the Complaint (*head immediately falls into hands in shear disappointment*). Shortly thereafter, the Court ordered a discovery plan and the parties agreed on a discovery report. After being served with written discovery by Plaintiff, counsel #1 for Connected filed a motion for judgement on the pleadings and a motion to stay discovery, the former was denied and the latter granted. Thereafter, February 15, 2022, a new discovery plan was arranged for by the Court and the parties. AT NO POINT DID CONNECTED COUNSEL EVER MOVE TO BIFURCATE DISCOVERY.

*enter new counsel for Connected*

Sometime between February and April 2022, Connected retained counsel #2, who came in and let Plaintiff’s counsel know that they wouldn’t be producing any documents related to the putative class, would be filing dispositive motions, and would be raising jurisdictional issues (FINALLY). Plaintiff then filed a motion to compel discovery, and counsel #2 for Connected moved to bifurcate discovery. To summarize, the Court essentially told counsel #2 that his predecessor blew it on not raising these issues in the early stages of litigation. It went on to explain that because a discovery schedule was already agreed upon and counsel #2’s request would substantially change that schedule, the Court has no choice but to deny the motion to bifurcate, despite the court noting that this is common practice in TCPA suits (or at least us defense counsel argue it is). Oh and yes, the Court granted Plaintiff’s motion to compel. Talk about a mess.

TAKEAWAY: The Court here notes that counsel #2 had significant TCPA litigation experience. It doesn’t need to make any comment about counsel #1’s TCPA litigation experience, the proof is in the pudding – no dispositive motions prior to filing an answer, no motion to bifurcate discovery, accepting a discovery scheduling order, etc. If you are hit with a TCPA suit, do not hire counsel without knowing that they have extensive experience in this high-complex area of litigation. No average Joe can be an expert in these types of actions, it takes years to even scrape the surface on the inner-workings of TCPA litigation. So, while it is tempting to hire the attorney you saw on a billboard and has a going rate of $150/hour, invest in a team of attorneys whose specialty is TCPA work.

That’s all for today TCPA World, until next time.


Case No. 7:21-CV-74-BO

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