BUT WHY?: TCPA Defendant Ordered to Provide Testimony on Class Size Despite Numerosity Waiver

Class litigation is tough.

Sometimes you can seemingly do everything right and still end up with the wrong result. (And heaven help you if you don’t do everything right.)

In Laguardia v. Designer Brands,  Slip Copy2022 WL 4094446 (S.D. Oh. Sept. 7, 2022) a Plaintiff proceeded to deposition with a 30(b)(6) notice that included the following (awful) topic:

“[t]he total number of Text Messages transmitted, the telephone numbers to which the Text Messages were transmitted, the names of the recipients of the Text Messages, and the dates on which the Text Messages were transmitted.”

So this is a terrible category for a number of reasons, most importantly because a deposition is not a memory test and a human mind is not a 1TB hard drive. Asking a person to recite at deposition the names of hundreds, thousand, or millions of text recipients–along with their telephone numbers and the dates texts were sent is, well, idiotic. (That’s a strong word, but it is also the right word.)

Obviously the proper vehicle to obtain this sort of information is an interrogatory, or perhaps a basic RFPD. But expecting a human being to memorize and regurgitate this information? Nope.

So the Defendant showed up and refused to provide the impossible-to-provide testimony the Plaintiff sought. This lead to a motion to compel, which is crazy. But even more crazy is that the Court actually ordered the testimony–sort of.

We’ll get to that.

First, the Defendant didn’t really make out the “humans aren’t robots capable of reciting 10,000 data points argument.” Instead they focused on more mundane objections:  1. Relevance, 2. Attorney-client privilege, 3. Attorney work product doctrine, 4. Discovery of putative ‘class list’ is improper, and 5. Defendants are not contesting that numerosity is present.

The Court overruled all of these, mostly because 1-3 are junk, and item 4 is only half an objection (burden being the other half of the proportionality argument Defendant was seemingly trying to make). Item 5 is interesting but, again, that’s only half the proportionality showing (sure there is no “need” but what is the offsetting burden?)

Obviously the offsetting burden is what I just laid out. But it seems the Defendant did not do so. So the court granted the Plaintiff’s motion and the Defendant must prepare a witness to recite names and telephone numbers for 7 hours. Eesh.

But then, at the very end, an interesting bailout. The Court allowed the defendant an alternative to deposition testimony: “provide a declaration representing an estimate of the number of distinct phone numbers that received more than one marketing text message after the owner typed stop and Defendants sent confirmation of receipt of stop request

If this looks completely different from the original deposition category, that’s because it is. Not sure how or why the Court allowed the Defendant this alternate path, and it seems certain to lead to more fighting down the line–how is defendant to arrive at this estimate?– but it certainly makes for a good curveball.

We will keep an eye on this one for you.


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