Hi TCPAWorld! The Baroness here and I have some discovery news today.

Lucas Horton v. Texas Federation for Children PAC, Inc., No.: 3:22-CV-2736-D, 2024 WL 68572 (N.D. Tex. Jan. 5, 2024)

In Horton, both the plaintiff and defendant, Texas Federation for Children, PAC, Inc. (TFC), filed motions to compel specific requests for production of documents and interrogatories from each other.

The Court granted TFC’s motion to compel in part and denied in part, and granted Horton’s motion to compel in part and denied part.

Lets dive in.

As hopefully you all know, Rule 26 provides us with our rule regarding discovery. More specifically, Rule 26(b)(1) provides, “[u]nless otherwise limited by court order … [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Rule 26(b)(1).

Notably, in the Fifth Circuit, “a party who opposes its opponent’s request for production [must] ‘show specifically how … each [request] is not relevant[.] ’” Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005) (Lynn, J.) (second alteration in original) (quoting McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).

TFCs Motion to Compel

TFC moved to compel Horton to produce documents in response to two requests for production (RFPs) and four interrogatories (ROGGs).

RFP No. 1: Copies of all billing statements from 2021 through the present for any telephone number that received text messages for which he claims TFC is liable to him.

Horton argued the requested discovery in RFP No. 1 was not relevant. However, the Court was not persuaded by Horton’s boilerplate objections. As stated above, a party must show specifically how the request was not relevant. Therefore, the Court granted TFC’s motion to compel RFP No. 1 and ordered Horton to produce documents.

RFP No. 2: Copies of all telephone billing statements that show he was charged a fee for receiving any text for which he claims TFC is liable.

Again, Horton argued the requested discovery was not relevant. However, the Court found Horton failed to carry his burden in demonstrating how the request was not relevant. He only made boilerplate objections, which was insufficient to defeat a motion to compel. Therefore, the Court granted TFC’s motion to compel RFP No. 2 and ordered Horton to produce documents.

ROGG No. 8: List the date, time, sender’s telephone number, and amount of money he was billed by the carrier for each and every incoming text message he has received for which he alleges TFC is liable.

In response, Horton produced a video which he stated evidenced the date, time, and sender’s telephone number for each text message. However, under Rule 33, “[e]ach interrogatory must … be answered separately and fully in writing under oath,” which has been interpreted “to mean that it is ‘technically improper and unresponsive for an interrogatory to refer to outside material, such as pleadings, depositions, or other interrogatories.’” Kleppinger v. Tex. Dep’t of Transp., 2013 WL 12138545, at *2 (S.D. Tex. Jan. 3, 2013) (emphasis added) (quoting Equal Rts. Ctr. v. Post Props., Inc., 246 F.R.D. 29, 35 (D.D.C. 2007)). Therefore, the Court found the video evidence nonresponsive and granted TFC’s motion to compel ROGG No. 8.

ROGG No. 12: Describe completely all facts that support his allegation that ‘[t]he text messages placed to [his] cellular telephone were made using an automatic telephone dialing system as defined at 47 U.S.C. § 227(a)(1).”

Horton argued that he provided the facts supporting his allegation in response to TFC’s motion to dismiss. However, as highlighted above, Horton must provide a written answer to an interrogatory without reference to outside material. Therefore, the Court granted TFC’s motion to compel ROGG No. 12 and ordered Horton to respond in full.

ROGG No. 17: List all websites, organizations, or other entities from whom you have consented to receive incoming texts.

Horton objected that the interrogatory sought irrelevant information insofar as it required Horton to know all the entities to whom he has given consent to text him. TFC, on the other hand, argued that it should be able to discover “whether Horton has consented to receive text [messages] from any senders distributing text messages that may be similar to those at issue here.” Ultimately, the Court found that the request, as written, was too overbroad. It would require Horton to recall a vast amount of information that was neither proportional nor relevant to the case. Therefore, the Court denied TFC’s motion to compel ROGG No. 17.

ROGG No. 19: Describe completely all lawsuits [he has] brought as a Plaintiff under the TCPA (including the case numbers and districts in which they were filed).

Horton objected to the interrogatory arguing that that the information is public and equally accessible to TFC. The Court found, however, that just because a request seeks public information, does not mean a party can fail to respond to discovery. Therefore, the Court granted TFC’s motion to compel ROGG No. 19.

Horton’s Motion to Compel

Turning now to Horton’s motion to compel. Horton moved to compel TFC to produce documents in response to four RFPs and one interrogatory.

RFP No. 2: All documents related to the purchase of Horton’s number, including the list in its raw form.

TFC objected that it does not possess any responsive documents because its contractor, Drogin Group, obtained Horton’s number from a commercially available list of Texas voters provided by another company, L2. In its response, TFC maintained that Horton should obtain the discovery directly from L2. Horton, on the other hand, argued that TFC was simply resisting discovery because no list was actually used. The Court found TFC’s argument persuasive. It cannot compel TFC to produce documents that are not in its possession. Therefore, the Court denied Horton’s motion to compel RFP No. 2.

RFP No. 4: All documents and communications exchanged between TFC and Drogin Group concerning the texts sent to Horton.

TFC objected and stated it was withholding an email between an attorney and Drogin regarding Horton’s legal threats based on attorney-client privilege and work product protection. Horton argued, however, that the attorney-client privileged should not apply because the attorney was in-housel and Drogin was not his client. The Court found TFC failed to carry his burden to demonstrate the email was protected. Therefore, the Court granted Horton’s motion to compel RFP No. 4 and ordered production.

RFP No. 5: All documents, electronically stored information, or communications related to the agreement between TFC and Drogin Group.

TFC objected that the term “agreement” was vague and ambiguous so documents relating to other agreements not relevant to the case would be produced. Horton argued TFC knew which agreement the request was referring to. The Court agreed with TFC that the term “agreement” was vague and denied Horton’s motion to compel RFP No. 5.

RFP No. 8: All detailed text logs in their original electronic format for texts sent by third parties for the last four (4) years prior to the filing of the complaint.

TFC objected, in boilerplate fashion, that the four-year time period of the request was overbroad, irrelevant, and could not reasonably lead to the discovery of admissible evidence. But the Court found TFC’s boilerplate objections were insufficient to defeat a motion to compel. Therefore, the Court granted Horton’s motion to compel RFP No. 8 and ordered production of the text logs.

ROGG No. 8: Identify the manufacturer, model number, and name of the system used to text Horton. If it is unknown, why would TFC hire someone to send text on [its] behalf without ensuring that the laws were followed.

TFC objected and argued that it does now know the response to this request. Nonetheless, the Court stated, Rule 33 requires a party to make “a reasonably inquiry” to respond to an interrogatory. Therefore, the Court found that TFC’s unsupported/boilerplate objections were not sufficient to defeat Horton’s motion to compel and granted Horton’s motion to compel ROGG No. 8

Key takeaway – when you are responding to discovery, always explain why you are asserting an objection. As demonstrated above, simply stating the objections (i.e., boilerplate objections) do not work in federal court and will not be considered. This can be the primary reason you are ordered to produce documents or provide information.