TCPA QUICK HITTER: Court Bifurcates Discovery in TCPA Suit Where Defendant Claimed No Calls Were Made

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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.

Ummm.

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

Good result.

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.

Chat soon.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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