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Big Evidentiary Win in TCPA Suit—Evidence of Defendant’s Prior Lawsuits, Settlements, and Communications With Third Parties Inadmissible in Individual TCPA Suit for Damages

Continuing a theme from yesterday—discovery in TCPA suits is a major driver of cost and frustration for TCPA Defendants. Even Plaintiffs in individual suits will often serve overly broad and abusive discovery demands seeking, inter alia, all records of previous TCPA complaints, lawsuits, or settlements. The Plaintiff will claim this information is relevant to prove “willfulness,” yet no TCPA willfulness formulation turns on whether a Defendant has violated the TCPA in the past and/or whether the Defendant willfully violated the statute as to someone else.

While this battle often plays itself out in the discovery phase, the final incarnation of the fight—of course—occurs at trial; i.e. will the Court admit evidence of past purported violations of the TCPA as evidence that the Defendant violated the TCPA as to a specific Plaintiff. Well in  Johnson v. Capital One Servs., Case No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160 (S.D. Fl. Oct. 15, 2019) the court held directly that such evidence would not be admissible because it simply was not relevant to the case.

The analysis here is short and sweet: “ Capital One seeks to preclude Plaintiff from presenting evidence of other litigation or settlements involving Capital One. The Court agrees that any information or evidence pertaining to other litigation and settlements is irrelevant, and the lack of probative value of any such evidence is substantially outweighed by the danger of unfair prejudice. The Motion as to this issue is granted.”

Nice, no?

And the Defendant goes further and asks the Court to find that no evidence of any communication with anyone else is relevant to the case at all—good thinking guys—and the Court also agreed: “The Court agrees with Capital One that any introduction of evidence relating to Capital One’s communications with individuals other than Plaintiff, or communications to any number not ending in 2114, is irrelevant. The Motion as to this issue is granted.” One phone number at issue. One Plaintiff case. No other calls matter. Perfecto.

The Defendant also made a few arguments that were…more exotic. For instance the Defendant asked to exclude a handwritten call log as hearsay, and evidence of Plaintiff’s experience hearing clicks and pauses when she received a call as irrelevant. Those requests were summarily denied.

We’ll keep an eye on this trial. However it turns out, this pre-trial ruling should prove quite helpful for TCPA defendants seeking to avoid the unnecessary production of information related to claims or complaints by third parties in individual TCPA suits.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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