So the famous Wolf of TCPAWorld just lost a bifurcation motion and it is kind of interesting.
In Harris v. Shore Funding Solutions 23-cv-00789 2023 WL 3440077 (E.D.N.Y. April 21, 2023) the Defendant sought to bifurcate discovery arguing that it had never placed calls to the Plaintiff. The Defendant urged that determining whether or not any calls were placed to Plaintiff should take place before a bunch of classwide discovery.
Obviously I couldn’t agree more. And the Court agreed too. Makes sense. Right result.
But what was interesting is the Defendant’s attorney–Clifford B. Olshaker, Esq., Law Offices of Clifford B. Olshaker–apparently represented to the Court that in every other TCPA case he has handled his client had records of calls”
Defendant’s counsel even candidly states that this is the first TCPA case where his client has no such record.
I mean maybe that fact was already public record but, gees, what a daring statement. A lawyer generally does not want to make admissions related to other clients in different cases in order to score a procedural win.
But it worked so, there’s that.
The Court found:
In sum, Defendant has established good cause for limited discovery related to Plaintiff’s individual claim — specifically as to the issue of whether Defendant made a call to Plaintiff on April 19, 2022 at the (205) 503-XXXX number. Given that such discovery would not result in duplication of efforts or substantially overlap with class discovery, it would be practical and would ensure the “just, speedy, and inexpensive determination” of the action. Fed. R. Civ. P. 1. Moreover, granting Defendant’s motion will not cause undue burden and expense to Plaintiff nor would it prejudice Plaintiff because this case is in the nascent stages. Defendant conceded at oral argument a 90-day period was not necessary to complete limited discovery. As such, the limited discovery shall conclude on or before June 30, 2023
This is a good one for TCPA defendants to keep in mind where you have a killshot issue and are seeking to stay discovery on that basis.