Another day. Another bad discovery ruling to discuss.
Just yesterday TCPAWorld.com broke the news of a horrendous ruling against Hertz that will set back the cause of TCPA defendants for years to come.
Today’s case isn’t quite as bad, but the facts here really raise eyebrows.
In Jackson v. Aragon, 2023 WL 7413332 (M.D. Pa. Nov. 9, 2023) the Court enforced a subpoena requiring Aragon to produce calling logs for calls made on behalf of defendant Clearlink Insurance Agency, LLC.
A wrinkle here, however.
Plaintiff previously sued Aragon over calls made for Clearlink and that case settled for an undisclosed amount. Aragon never called the Plaintiff again.
Aragon will be forgiven, therefore, for wondering why it needs to produce records in connection with a new lawsuit where it never called the Plaintiff.
The Plaintiff, on the other hand, argued that it could bring suit against Clearlink for calls made by any vendor, not just the one that actually called it.
Notice this sort of thing should NEVER happen. Obviously a court cannot certify a case where there are multiple vendors making calls based upon multiple lead sources and subject to multiple different relationships with the Defendant.
No way. No how. Nothing common between class members to gel a class.
And that, I assume, was Aragon’s point. Since Aragon did not call Plaintiff the only way a class could be certified involving Aragon’s conduct is if somehow Aragon made calls based on the exact same leads, circumstances and pursuant to the same instructions as other callers dialing on behalf of Clearlink. And that’s basically impossible.
The Court in Jackson, however, disagreed.
First the Court (incorrectly) determined that “discovery of call lists and related information is generally relevant in TCPA class litigation.” Quite the overstatement.
Next, the Court determined that testimony in the case shows that a request for such information from Aragon itself is “reasonably calculated to lead to the discovery of admissible evidence.”
Specifically, Neil Chipping, the Director of Lead Optimization at Clearlink, testified that Clearlink ended their relationship with Aragon because “[t]here were a handful of TCPA violations and [Clearlink] wanted to mitigate that risk.”
So because Clearlink fingered Aragon as a potential bad actor the Court was even more interested in the records in Aragon’s possession.
Next the Court overruled Aragon’s burden objections without really even addressing them. We are not told how long it would take for Aragon to gather the demanded records and how much strain, if any, it would put on their operations.
Further, we are not told what protections for the data will be in place– this feels like another court ordered data breach where PII is being transferred without consent. Lots of state laws prevent that sort of thing. But the Courts are simply disregarding these issues right now.
In the end, even though Aragon settled with this guy they still have to produce a massive amount of calling data to help his suit–and they didn’t even do anything wrong.
And BTW– Plaintiff’s counsel? You guessed it. The Wolf. Again.
Anyway, Jackson is yet another example of why TCPA class litigation is some of the most complex and difficult to defend in the world. Not for the feint of heart or the green of horn.
Of course Troutman Amin, LLP lawyers have been making their way (successfully!) in these dangerous waters for over a decade. Pretty remarkable when you think about it. Of all the easy areas of law someone could practice–what sort of attorney decides to handle nothing but the biggest cases, in the most complex area of law imaginable.
The Czar and Queenie, of course. 🙂
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 with the Czar and Queenie both on stage together!!!