FAILED ATTEMPT!: Court Denies Defendant’s Request to Inspect Devices in TCPA Case But That Shouldn’t Have Happened

Hi TCPAWorld! The Baroness here 🙂

For those of you who attended the Law Conference of Champions last month (I can’t believe it was only last month), you may remember my session on litigation strategies.

One of the topics I discussed was the strategic use of device inspections in TCPA litigation. When handled properly, inspections can be an effective tool for getting to the truth—particularly when issues such as consent, website activity, or an established business relationship are in dispute.

Of course, I highlighted that courts are often sensitive to any privacy concerns when a party seeks access to another person’s computers, phones, or other electronic devices. That is why any inspection request must be narrowly tailored and accompanied by appropriate safeguards designed to protect the disclosure of private and irrelevant information.

In Daniel D’Agostino v. Circle K Stores Incorporated, No.: CV-26-01225-PHX-JAT, 2026 WL 1741332 (D. Ariz. June 17, 2026), unfortunately, that is not what happened.

In this TCPA case, the defendant sought an inspection of the plaintiff’s devices. There’s nothing inherently unusual about that. What was unusual was both the breadth of the request and the rationale offered in support of it.

Here is the inspection request:

For the RELEVANT TIME PERIOD, each computer, phone, or other digital device utilized and/or available to [Plaintiff] on which COMMUNICATIONS are stored (including e-mail communications) and DOCUMENTS are stored or accessible concerning “Circle K”, including but not limited to any search engine queries (and accordingly search history) for “Circle K,” “CircleK” (or any similar variation), “TCPA,” “Abboud” and/or “STOP2End.”

Already, Defendant’s counsel may be asking for too much – “[e]ach computer, phone, or other digital device utilized.” That’s a sweeping category of devices. Perhaps there was a basis to inspect one device or a limited set of devices, but requesting access to every device the plaintiff used or had available raises proportionality and privacy concerns.

Maybe you’re seeing the problem now. It is just too expansive of a search.

The defendant’s relevance arguments did not help.

Circle K claimed that those search terms “w[ould] reveal when Plaintiff potentially first researched the Abboud case and when Plaintiff first understood he might file a TCPA complaint.” Circle K further argued that the inspection request was relevant to “determine whether and when Plaintiff could have, and should have, mitigated his damages.”

The court was not persuaded.

According to the court, there is no duty to mitigate damages under the TCPA, and it saw little relevance in when the plaintiff may have researched potential claims or legal issues before filing suit. As a result, the court concluded that the proposed inspection was invasive and unnecessary, particularly given the other discovery tools available to the defendant.

The Court therefore granted the plaintiff’s request to quash the inspection request.

But that shouldn’t have happened.

Inspection requests can be an extremely valuable discovery tool when there is a legitimate issue to investigate and the request is carefully crafted. In the right case, a narrowly tailored inspection may help uncover evidence bearing on consent, website submissions, prior business relationships, or other issues that go directly to the merits of a TCPA claim or defense.

So while this inspection request failed here, don’t mistake that for a rejection of device inspections altogether. The better takeaway is that if you’re going to seek access to a plaintiff’s devices, make sure the request is narrowly tailored, supported by a compelling relevance showing, and equipped with safeguards that address the court’s inevitable privacy concerns. That’s how these requests have the best chance of succeeding.