What happens if you have been named in a lawsuit alleging a violation of the Telephone Consumer Protection Act (“TCPA”)? Usually, after the plaintiff serves the complaint and the defendant files an answer or a motion to dismiss the case, the parties will engage in TCPA discovery.
Pursuant to the Federal Rules of Civil Procedure, a party may not serve discovery until a Rule 26(f) conference has taken place.
There are different kinds of TCPA discovery that may be served, each with different purposes. Most commonly, a plaintiff will serve interrogatories and/or a request for the production of documents on a defendant. A plaintiff may also serve a notice of deposition or seek requests for admission.
The goal of the party seeking TCPA discovery is to obtain as much information as possible, while the producing party generally only provides what is necessary, in good faith and in accordance with the rules of court.
There are three common types of TCPA lawsuits: (1) autodialer cases; (2) cases involving pre-recorded messages and/or artificial voice calls; and (3) cases where a residential phone line that is listed on the Federal Do-Not-Call (“DNC”) Registry is called twice in a twelve-month period for telemarketing purposes. Today, an increasing number of TCPA lawsuits arise from text messages sent, or calls made, to numbers listed on the DNC Registry.
So, what can you expect to be asked to produce as part of the TCPA discovery process? While discovery requests will often differ depending on the nature of the allegations involved in a given lawsuit, the following are some common examples of documents and information that a plaintiff may request as part of the TCPA discovery process:
- Information and/or documents related to how the plaintiff’s phone number was obtained;
- Any documents (including agreements and contracts) or information related to third party vendors or telemarketers used by defendant to make the subject calls or send the subject text messages;
- Any documents or information related to consent to contact the plaintiff;
- Any internal telemarketing policies and procedures including, but not limited to, TCPA compliance, use of automatic telephone dialing systems, and/or processing of DNC requests;
- Telemarketing complaints received prior to the filing of the subject action; and
- Any applicable insurance coverage related to the telemarketing claims at issue.
In many instances, the plaintiff in a TPCA litigation matter files the case as a class action. Where that is the case, discovery requests are often aimed at establishing that a common group of similarly situated call/text recipients exists including, but not limited to, unearthing the identity of potential class members that are currently unknown to the named plaintiff and his/her attorney.
Importance of TCPA Discovery Responses
No less important than drafting good TCPA discovery requests is drafting good discovery responses and objections.
TCPA defendants will typically have ample grounds to object to producing certain documents and/or disclosing some of the requested information. These objections may relate to overbreadth, irrelevance, or the burden that would result from producing certain information.
Moreover, if responded to correctly, a defendant can use its responses and objections to gain leverage in the subject case by highlighting some of the weaknesses in the plaintiff’s case.
Ultimately, properly drafted responses and objections can result in: (1) reducing the amount of damages at issue; (2) increasing the likelihood of a negotiated resolution; or (3) optimally, dismissal of the case in its entirety.
Having the right counsel to represent your interests can be the difference between a million-dollar, multi-year lawsuit and an outright dismissal. If you find yourself named in a TCPA lawsuit, it is important to hire qualified and experienced counsel.
The attorneys at Klein Moynihan Turco have successfully represented telemarketers and other businesses in countless TCPA cases. In addition to handling TCPA lawsuits, the attorneys at KMT can assist your business with formulating telemarketing policies and procedures to avoid future lawsuits.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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