Without question the most expensive part of any TCPA class action is class discovery.

Where a TCPA defendant has a unique and individual defense applicable to the named class representative, therefore, it almost always makes sense to seek to limit discovery in the case to issues of the named-plaintiff’s claim to avoid the expense of class discovery.

A ruling bifurcating discovery is fairly common in TCPA cases–indeed one was just issued in a fraudulent lead case in June.

Today’s case did not arise out of a fraudulent lead scenario but out of a claimed failure by a telephone company to maintain an internal DNC list.

In Kemen v. Cincinnati Bell, 2024 WL 3633333 (S.D. Ohio Aug. 2, 2024) the court decided to limit discovery to just issues of the named Plaintiff’s claim:

So then, to prevail on her claim as pleaded, Kemen must prove that: (1) she is a residential phone subscriber, (2) who received a call made for telemarketing purposes, (3) from an entity that has not instituted the minimum procedures required by 47 C.F.R. § 64.1200(d) (either because the policies did not exist or because their contents fell below the minimum requirements), (4) more than one time in a twelve-month period.

The Court determined that issue 3, in particular, was an issue worthy of discovery and a determination before class discovery opened up.

Interestingly, that issue is not unique to the named Plaintiff. That means if the defendant loses the merits of the Plaintiff’s case it will also lose the issue across the entire class–which is VERY dangerous, as it highlights a common issue and results in a waiver of one-way intervention protection.

Nonetheless, the Defendant sought and earned the order bifurcating discovery to focus on that issue.

Helpfully for other TCPA defendants, the Kemen court acknowledged just how expensive class discovery can be in issuing its order:

Class discovery is expensive and resource intensive. Babare v. Sigue Corp., No. C20 0894, 2020 WL 8617424, at *2 (W.D. Wash. Sept. 30, 2020) (“It is well-recognized that discovery in class actions is expensive and asymmetric, with defendants bearing most of the burdens.”); cf. Bais Yaakov of Spring Valley v. Peterson’s Nelnet, LLC, Civ. No. 11-11, 2013 WL 663301, at *5 (D.N.J. Feb. 21, 2013) (noting that a TCPA class action involved “the potential for hefty litigation expenses and an extensive use of judicial resources”). And “the need for class discovery may be eliminated if Defendant is able to demonstrate that the Named Plaintiff lacks viable individual claims.” Osidi v. Assurance IQ, LLC, No. 21-cv-11320, 2022 WL 623733, at *2 (D. Mass. Mar. 3, 2022). Especially given the nature of the allegations here, it is reasonable for Cincinnati Bell to seek to test Kemen’s personal claims before engaging in extensive class discovery.

Very helpful for TCPA litigators to keep in mind.

Again, I wouldn’t necessarily advise limiting discovery to focus on individual merits where the issues are common across the class–thoughts and prayers Cincy Bell–but in instances where a unique defense exists this angle is DEFINITELY something to keep in mind.