I hate to seem unpleasant right ahead of Thanksgiving but I just read the Fralish discovery order and I’m grumpy.

As one of the most experienced class action litigators in the nation I can tell you-without question– the most common mistake I see out there is defense counsel not taking written discovery demands seriously enough in federal court.

And although I have been trying to educate the defense bar for over a decade on these issues, I still see cases like Fralish, CASE NO. 3:21-CV-00045-JD, 2021 U.S. Dist. LEXIS 225281 (N.D. Ind. November 17, 2021) where a Defendant was ordered to produce a massive amount of class data and information regarding its TCPA practices–none of which was likely proportional to the needs of the case–owing to an apparent failure to assert proper objections in discovery.

You’ve heard me explain this stuff before, but I’ll do it again for emphasis.

The Plaintiff’s bar LOVES using overly broad discovery demands as part of class discovery. Yes, Rule 26(g) requires a certification that they won’t do that sort of thing, yet Plaintiff’s lawyers–even the good ones–will still serve thoughtless demands seeking huge categories of data (think “every record of every call you ever made and every record of consent for every such call and every record identifying everyone who made such a call and…” etc.)

These things are ridiculous.

Yet it is absolutely critical that a Defendant invest the time to draft PROPER non-boilerplate objections that specifically address the call of each and every portion of each and every demand. Otherwise the objections are waived. And the discovery must be produced.

You see, in federal court a litigant cannot just assert canned boilerplate objections. Fralish explains why:

Courts in this Circuit have repeatedly admonished the objecting litigant that the “[the discovery objection] burden cannot be met by ‘a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. 

This is precisely the sort of thing that got Allstate into so much trouble as well. 

As I explained in covering the Allstate debacle, a good set of objections to class discovery is usually OVER 100 PAGES LONG–the need to craft specific and well asserted objections to each and every demand necessitates a thoughtful (and often lengthy) assessment of every flaw in the demand, along with an assessment of the need for each piece of information sought versus the burden of producing/determining each of the documents/facts sought by the demand.

And while the need to engage in this process is readily apparent–again, failing to do so will result in waiver of critical objections–it just doesn’t seem to be happening. Over and over again TCPA defendants are compelled to produce data that should never be in the hands of an opponent because they did not assert proper objections. And I really don’t understand why.

Yes, it takes a looooooong time to draft these things. Proper responses to class discovery may consume 40-100 hours of crafting time. (Time that should be recoverable against Plaintiff’s counsel if they thoughtlessly served demands in violation of Rule 26(g)).  And this, by and large, is work that needs to be performed–or at least carefully monitored–by a partner level litigator. Class discovery should never just be handed to a junior associate to handle without meaningful review. Its far too critical to the case.

Indeed, responding to class discovery might be the single most important part of the entire litigation–the odds of a massive classwide settlement spike as soon as a damaging class discovery order is issued. And the odds of defeating certification are certainly improved if Plaintiff fails to obtain certain data sets. Whichever side wins the battle over class discovery–in most instances– wins the case.

In Sapan v. Yelp, Inc., Case No. 3:17-cv-03240-JD, 2021 U.S. Dist. LEXIS 220224 (N.D. Cal.  November 15, 2021), for example, a motion to certify a class was denied because the Plaintiff was unable to obtain class data during the discovery process. Whereas Plaintiff tried to obtain data they did so using improper and overly broad demands–and the Defendant asserted proper objections to the Plaintiff’s ridiculous demands. Ultimately the Plaintiff gave up trying to craft proper demands and went to the Court empty handed and was denied certification as a result. Yelp’s counsel literally won the case by properly objecting to class discovery. (Nice work guys.)

But Fralish is the opposite side of the spectrum. There the Defendant has been ordered to produce records of all calls to class members, in addition to records regarding the identities of class members and records testing the strength of the MERITS of affirmative defenses as to each class member. NONE of this information is needed prior to certification. Yet Plaintiffs are now permitted to engage in a massive fishing expedition through a huge portion of Defendant’s calling data–virtually assuring Plaintiffs will find something sufficient to hang their hat on for certification. (Notably Plaintiff’s counsel is Greenwald–you do not want him rooting around your call data folks.)

One other reminder–and I share all of this with love and in a sincere desire to help folks, not to dwell on the unpleasant–it is critical that burden objections presented in opposition to a motion to compel be supported by DECLARATIONS that SPECIFICALLY establish the burden attendant whatever production is being opposed. In Fralish the Defendant apparently failed to do so:

Defendant simply presents conclusory assertions that the burden of producing information responsive to ROGs 7- 16 and RFPs 7-14, 17, 19, 34-35 would completely outweigh any benefit to Mr. Fralish without any explanation of the nature of the burden of production or any comparison to the benefit of Mr. Fralish.

Yeah, that’s not going to get it done folks.

To prevail on a burden objection the Defendant has the burden to come forward with evidence–usually a declaration from the person who would be tasked with producing whatever records are being sought–explaining precisely why the production is burdensome and how long the production will take. I usually have the declarant break down each step in the process and provide a time/cost estimate for that step.

It is also important to keep in mind whether critical production server resources might need to be engaged in order to accomplish a production–many times “burden” includes more than just human time, it includes strain on available resources and threats to mission-critical software or processes.

I should note that I have no first hand knowledge of what happened in Fralish and I did not review the filings submitted by either party to test the findings of the Court. I’m just reporting the news of the ruling here and using it as a vehicle to help inform and empower. That’s sort of what I do.

Now I’ve got to go frost that cherpumple.