TCPA class actions can be incredibly expensive to defend mostly due to the high cost of class discovery.

With a single keystroke Plaintiff’s lawyers can issue massive sets of discovery demands that seek incredibly expensive (and highly intrusive) productions that can turn a company inside out and risk the PII of millions of consumers (very bad.) Yet it can cost tens of thousands in attorneys fees to fight back against these abusive demands.

Its a terrible problem.

One solution that ought to be considered in nearly every TCPA class action is bifurcation of discovery.

Couple of flavors here.

The most basic sort of bifurcation of discovery in a TCPA class action looks at certification discovery vs. class merits discovery. Class merits discovery involves data related to the identity of class members and their individuals claims. Things like consent records and call data.

On the other hand certification discovery–which should be handed over in most class actins–includes information about the class merits data. I.e., what sort of data sets exist, where are they housed, what do they look like, what policies exist, etc.

Class certification discovery permits the plaintiff’s lawyers to probe and identify classwide issues, whereas merits discovery is the actual proof the plaintiffs will need to win at trial post certification.

Very simple.

There is another type of bifurcation, however, that is more rarely used but that judges seem to like better–bifurcating discovery as to the individual plaintiff from the rest of the case.

This approach makes the most sense where there is a contested issue as to the named plaintiff that is unique to him or her. Take the instance of a purchased lead.

The defendant will say they have a valid lead. The Plaintiff will say it was fraudulent. Who is right?

With the aide of discovery (and a forensic review of the plaintiff’s devices) the court can get to the bottom of that BEFORE weighing classwide issues. Very important.

And that’s just what happened in Fania v. Kin 2024 WL 2607303 (E.D. Mich. May 24, 2024).

There Defendant Kin sold insurance products in multiple states and consumers may request an insurance quote from Kin through various websites. It claimed that, on August 29, 2022, the plaintiff visited http://www.dailyinsurancedeals.com and requested a quote.

Plaintiff denied visiting the website and claimed whoever entered his data on the website it was not him.

The court called this a “vigorous dispute regarding a purportedly fraudulent lead that resulted in Fania’s information being entered on http://www.dailyinsurancedeals.com. It was either Fania, or someone pretending to be Fania, that consented to receive insurance quotes and arbitrate potential issues resulting from this transaction.”

In the Court’s view this needed to be sorted out before class discovery commenced: “In these circumstances, the Court finds that this narrow and potentially dispositive issue is distinct from issues of liability to be determined in this case on a class-wide basis. Accordingly, and for purposes of efficiency, the Court will review evidence and make a determination with regard to Fania’s plaintiff-specific claim prior to costly and time consuming class discovery.”

Brilliant.

By limiting discovery to the issue of the fraudulent lead the Court helped preserve the resources of the small company being sued over the lead it purchased. This is really important and I wish more courts would adopt this wise and prudent course.