Looks like #biglaw inexperience has cost another TCPA defendant big time.
But let’s try to stay positive.
First, I’m fairly certain I invented the concept of seeking bifurcated discovery in TCPA class litigation.
I know I invented seeking “trifurcted” discovery in TCPA class litigation.
Been doing it since 2011. 😉
For a long time no other defense counsel even attempted the maneuver. Recently we have seen quite a bit of it. But like so much else in litigation, its one thing to make the right move– its another thing to win the move. Especially when #biglaw is involved. These guys can’t seem to win anything in TCPAWorld.
So what does bi/trifurcated discovery even mean and why does it matter?
The primary vehicle Plaintiff’s lawyers have to extract large dollar TCPA settlements in class discovery. They serve massively overly broad demands–stuff like, produce records of every call you’ve ever made and every consent record supporting the right to make those calls and every account record for every costumer that signed up as a result of those calls– in an effort to turn a company inside out and drive them to the settlement table.
For smaller companies these sorts of demands are irritating and invasive, but perhaps not crippling. But for large enterprises the idea of extracting millions of confidential/private client files to hand over to a plaintiff’s lawyer is downright insane.
Now the rules typically do not allow for this type of discovery but if defense counsel isn’t VERY careful with objections they may end up waiving critical protections and the court may end up issuing an order compelling production of these materials.
Just last week Troutman Amin, LLP won a critical order PREVENTING the production of just this sort of class data. Because we’re winners (well, really because we just know what we’re doing.) And the case swiftly settled on an individual basis because the class lawyers lost their primary leverage point. But many lesser/bigger firms lose these battles all the time.
But one way to cut off this entire issue is by asking the court to prevent invasive “merits” discovery into class claims until after class issues are decided. (Type 1 bifurcation.) Or to stay all class discovery pending the outcome of a dispositive motion challenge to the named plaintiff’s claim. (Type 2 bifurcation.) Either one of these is a form of “bifurcation” of discovery.
Of course you could try for both–so the so-called “Troutman Trifurction”–in which the named Plaintiff’s claims are tested first and then class discovery opens– but not class merits discovery.
Much like my win in Stoops, however, just because I show other lawyers the path doesn’t mean they can walk it. Many have tried, and failed, to earn the sort of results we have.
In Bond v. Folsom Insurance Agency, 2025 WL 863469 (N.D. Tex. March 19, 2025) the Defendant–represented by a #biglaw firm that did NOT make my list of top best TCPA lawyers–attempted Type 2 bifurcation (i.e. they sought to stay class discovery until the Plaintiff’s individual claims were resolved.) Unfortunately the defendant had already lost a discovery battle earlier in the case and the court was not going to allow the belated effort to seek bifurcation bail the defendant out. So it denied the motion.
Get it?
The defense failed to seek bifurcation at the right time. Then the failed to assert proper objections/arguments to prevent the production of classwide information. Instead it asserted ” boilerplate objections” that were rejected by the court.
What a disaster. Shouldn’t have happened.
If you’re stuck with a #biglaw firm handling your TCPA defense you have just ONE WEEK left to have Troutman Amin, LLP take over your defense for the SAME hourly rate! Can’t imagine why anyone wouldn’t take advantage of this opportunity. We definitely will not be doing it again anytime soon. 🙂
Chat soon.