Beware Doe Defendants: Plaintiff Champion Wins Ex Parte Motion for Discovery to Subpoena Phone Carriers, Sellers, Brokers and more!
TCPA World, Countess here sharing an interesting case out of the District Court of D.C. The Court granted Plaintiff’s expedited discovery request “finding that it is relevant to Plaintiff’s claims and for some of the requested subpoenas, proportional to the needs of the case.” The Court also denied without prejudice part of Plaintiff’s motion with respect to additional parties that were “not named in the Motion.” hmm.
The case is Joshua Champion, et al. v. DOES. Plaintiff Champion filed an ExParte Motion for Expedited Discovery to identify the Defendants who Plaintiff alleged violated the TCPA by sending 2,513 spam text messages and calls over the last three years to Plaintiffs. In reaching their decision, the Court considered relevance and proportionality.
The Court found relevance in that “Plaintiffs sufficiently allege that their requested discovery is necessary and likely to uncover the identity of the callers who allegedly violated Plaintiffs’ rights under the TCPA.” According to Plaintiffs, DOE Defendants have used many tactics to hide their identities despite Plaintiffs’ counsel extensive experience uncovering the identities of unknown spammers. Interestingly, Plaintiff’s counsel “has an entire in-house investigative division whose only responsibility is tracking down and identifying telephone spammers and whose investigators have training and experience from the U.S. military in open-source intelligence.” (Woah!)
So, if Plaintiffs’ counsel can’t find the spammers, then it appears that no one can absent a court order, according to this Court citing that in Champion v. Does 1-10, No. 22-cv-00323 (D.D.C. Feb 25, 2022) (Court granted a similar motion for expedited discovery and Plaintiff issued subpoenas, which ultimately revealed the identity of the spam sender.) Also, the Court found under relevance that personal jurisdiction is satisfied given the number of spam text and calls and that there are “multiple parties involved in a given telephone spam campaign.”
As to proportionality, the Court did find that Plaintiff satisfied some of Rule 26(b)(1), which states that in assessing proportionality, courts should consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the propose discovery outweighs its likely benefit.”
In short, I will list out the subsection of the Rule followed by the Court’s finding:
Importance of the issues at stake in the action – Court decided that a violation of the TCPA is important
The amount in controversy – Plaintiffs allege $5,000,000.00 – Court found in favor of the Plaintiff
The parties’ relative access to relevant information – Court finds in favor of Plaintiff since Plaintiffs’ counsel’s investigative hub can’t find them.
The parties’ resources – Since the Defendants are not identified, the Court cannot sufficiently address the parties’ resources.
The importance of discovery in resolving the issues – Court finds that the relevance inquiry addresses this prong.
Burden versus Benefit of Request – Court limits Plaintiffs’ discovery requests related to (1) phone carriers, (2) domain registrars and domain-related parties, and (3) sellers and brokers to only those entities listed by name in Plaintiffs’ Motion.
So, what part did the Court deny? The Court denied the fourth category titled ” Subpoenas to Other Parties.” (fishing expedition anyone?) The Court found this category too broad to “confer an identifiable benefit on Plaintiff and [found that it] may impose an undue burden on entities who are irrelevant to the litigation.”