If I’ve said it once I’ve said it a hundred times, class discovery in TCPA cases often determines the course and outcome of the case. There is generally no need, for instance, for a Defendant to produce class merits discovery—information regarding the merits of an individual TCPA class member’s case—prior to the certification stage. Nor is there any need for the identity of class members pre-certification. Yet Defendants often are forced to produce this information either due to a failure to strike an improper class definition, or due to the assertion of unsupported boilerplate objection. And when faced with the prospect of producing such expensive, invasive and expansive information—including huge amounts of sensitive consumer or financial data—Defendants are often forced into a position of settling a case they would otherwise desire to fight.

While I have reported on disastrous TCPA discovery orders many times in the past, today I am pleased to report on a positive outcome.  In Boehm v. Pure Debt Solutions Corp., Case No.: 8:19-cv-00117-LSC-CRZ, 2019 U.S. Dist. LEXIS 177676 (D. Ne. Oct. 11, 2019) the Court bifurcated discovery to allow discovery to proceed solely as to the claims of the named Plaintiff. If this request is properly made this relief is commonly granted in TCPA class actions where a clear merits defense exists as to the claims of the named class representative. (Indeed, I earned an order of this sort way back in 2013 and have had numerous similar results since.)

But the Court was also concerned about data preservation issues and, as such, ordered the Plaintiff to serve a preservation order to the major cellular carriers to preserve their regular business records concerning all calls from the Defendant’s out pulse numbers. That way Plaintiff could be assured that no data would go missing and the claims of class members would not be prejudiced by the bifurcation.  The Court was clear that although the data would be preserved there would be no need to produce the data at this time.

The bifurcation coupled with preservation approach taken by the Court in Boehm makes perfect sense—the data is identified and preserved (assuring the Plaintiff will have access to the data when it is actually needed in the litigation) but the expense of compilation and production is not undertaken until that need arises. When one considers the call of Rule 26 to assure that discovery is proportionate to the needs of the case it is clear that TCPA class actions should rarely merit the production of the massive amounts of consumer data class counsel often seek. The production is simply needless pre-certification and risks data breaches and violations of privacy inimical to the consumer-protection purposes of the TCPA.

Keep Boehm in mind folks.