Class discovery is the single most dangerous part of any TCPA suit.
Plaintiff’s counsel use exceptionally broad and painful demands as a tactic to bludgeon TCPA defendants with incredibly expensive discovery fights and productions specifically to force them to the settlement table.
Unfortunately, most judges let them get away with these tactics–and some even tacitly encourage them.
For instance in Bayles v. Hertz, 22-cv-01092, 2023 WL 7448841 (S.D. Ind. Nov. 9, 2023) a court just brutalized Hertz with a ruling that will definitely leave it wondering whether a classwide settlement is in its best interst.
Bayles is a wrong number TCPA class action–extremely dangerous–arguing that Hertz made prerecorded messages to Plaintiff (and class member) cell phones without consent.
Apparently Hertz policies and procedures require it to use an asterisk to denote wrong numbers. Yet the data provided did not coincide with that policy.
So Plaintiff demanded Hertz produce all of its call recordings to seek reports of wrong numbers. This was an extremely burdensome exercise and one that, rather obviously, demonstrates why the class is uncertifiable–individual inquiries into each class member’s case would be needed to determine class membership and the merits of each class member’s claims.
Specifically, if you have to listen to a recording to see what happened as to each individual class member well… that’s a class that should never be certified.
Hertz apparently raised both of these arguments–burden and individualized inquiries–to the magistrate judge in opposing the Plaintiff’s motion. At issue was 15,202 recordings the Plaintiff demanded to be produced. But the Court sided with Plaintiff and compelled their production.
First, as to burden, the Court just was not going to hear about how hard it is to get the recordings:
the Court gives minimal consideration to the time needed to download the calls from Defendant’s system. Defendant chose a vendor who could not batch download call recordings and cannot now complain that its system is inconvenient to use
I mean, that is an incredibly superficial take. Hertz chose a vendor based upon ITS BUSINESS NEEDS–not because it might have to produce recordings in litigation one day. The fact that the vendor is chose was great for its day to day operations but bad for massive dumps of data is not a basis to penalize Hertz and disregard its legitimate burden concerns.
That, honestly, feels like an abuse of discretion to me.
But we move on.
On the issue of “need” for the data the Court also took a very Plaintiff friendly view-and an irrational one at that:
Second and perhaps more significantly, Defendant argues that the burden associated with producing records sufficient to enable individualized analysis (i.e., the call recordings) outweighs any benefit. (Dkt. 82 at 10). Based on the above discussion, the contradiction is readily apparent: if class membership cannot be ascertained absent individualized analysis, then the discovery required to perform an individualized analysis is not out of proportion to the needs of the case.
NO no no no no no. That’s not right at all.
The “needs” of the case do not justify the production because the class CANNOT BE CERTIFIED if individualized inquiries are required.
Using the existence of individualized inquiries to justify the production of data in a class action is completely irrational. The case cannot proceed as a class. So individuals who will never be class members are being forced to have their information turned over to third-parties that can never represent them.
This is essentially a court-ordered data breach.
Should NEVER happen. Really really bad.
And the results… Eesh.
Now to be sure I am not saying anyone did anything wrong here. I haven’t reviewed the briefing and the ruling does not reveal that Hertz waived any objections or did anything foolish. This was just a case of the MONSTERS in the TCPA woods taking another scalp. No good.
For everyone else, be prepared to see this case cited in favor of motions to compel in other cases.
And for real TCPA class action practitioners make sure you have a copy of the 2023 TCPA Annual review, presented by TrustedForm AND make sure you attend the big TCPA summit next month!!!