CLOSE SHAVE: Active Prospect Avoids Having to Produce 590,000 TrustedForm Certificates And It May Have Gotten Lucky

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So could of angles to this one.

First, something I LOVE– TrustedForm. great product by a great company–Active Prospect–that helps people to stay TCPA compliance. Plus they were the sponsor of our incredible 2023 TCPA Annual Review, presented by TrustedForm so you know I am going to say good things about them (even though I also do love them.)(BTW–who will be the sponsor of the 2024 TCPA Annual review–out in less than 60 days??? We will know SOON).

ITS HERE ITS HERE! TROUTMAN FIRM’S INCREDIBLE 2023 TCPA ANNUAL REVIEW–PRESENTED BY TRUSTEDFORM–IS NOW AVAILABLE!

Second, something I HATE–bad lawyering.

Well these two angles collided in dramatic fashion in a courtroom in Texas last week–and AP walked away with a narrow win in a situation that could have gone very very badly for it.

So in Pinn v. Consumer Credit Counseling Foundation, Inc.  Case No. 1:23-mc-0974-DII (W.D. Tex. Nov. 3, 2023) the Plaintiff sued Defendant claiming she had received calls without consent. The Defendant claimed Plaintiff consented on a website called healthinstantly.org and Plaintiff claims the lead was fraudulent–surprise surprise.

Interestingly, though, a TrustedForm existed to prove that the web session actually took place. But Pinn still claimed she did not visit the website and claimed the certificate was fraudulent.

Hmmm.

To prove it, Pinn issued a subpoena to Active Prospect demanding 590,000 TrustedForm certificates.

Hmmmm.

AP didn’t respond right away and Plaintiff filed a motion to compel. And here’s where things get dicey– ActiveProspect failed to oppose the motion in the timeframe required by the local rules. And the Court initially granted the motion!:

“When AP failed to respond to Pinn’s motion to compel within the seven-day deadline under Local Rule CV-7(d)(2), this
Magistrate Judge entered a Text Order on August 31, 2023 granting the motion as unopposed. The same day, AP filed an unopposed motion to extend its response deadline, stating that it had “diligently sought to retain counsel to address the matters raised in the Motion.” Dkt. 5 at 1.

Eesh. (And funny, my phone didn’t ring… hahaha)

Nonetheless the Court gave AP additional time to oppose the motion and ultimately was very unimpressed with Plaintiff’s overly broad demands:

Notwithstanding the broad scope of discovery, information must be relevant to a party’s claim or defense or appear reasonably calculated to lead to discovery of admissible evidence before the Court requires production. Crosby, 647 F.3d at 262. The Court agrees with AP that Pinn’s requests are facially overbroad, unduly burdensome, and disproportionate to the underlying litigation. The record shows that AP – first through in-house counsel, then outside counsel it retained to assist in this matter – responded promptly to Pinn’s subpoenas, searched for and produced all responsive documents related to Pinn, and has conferred with Pinn’s counsel in good faith many times since December 2022, although objecting from its first, timely response that the subpoena was “overbroad, harassing, and not proportional to the needs of the case.” Dkt. 1-1 at 103. Pinn does not dispute that AP produced documents and declarations relevant to Pinn’s own alleged consent certificate. The Court declines to compel a third party to the underlying litigation to produce metadata for hundreds of thousands of additional documents merely so that Pinn may select “a representative sample” of comparator certificates issued by a different third party.

Notice that the Court rejected Plaintiff’s assertion AP had waived its objections. That is a MASSIVE deal. Had AP failed to timely respond and preserve its position regarding the subpoena the motion may have been granted and AP would have had to produce records on over half a million interactions.

Yeah, that could have been bad.

Regardless AP dodged a bullet and we will see what happens next in the case.

Chat soon.

Also, if you haven’t signed up to attend the summit next month you are REALLY missing out. A ton of R.E.A.C.H. board members will be there and you will have two solid days to learn about the law and other great companies in the direct-to-consumer marketing, debt collection, call center, telecom, carrier, lead gen industries.

Register now!

Fun!

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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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