October 16, 2021

Volume XI, Number 289

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TCPA QUICK HITTER: No Discovery, No Judgment–TCPA Defendant Stuck in Case After it Failed to Ask for Critical Evidence

Real quick one for you folks.

A TCPA Defendant was just denied summary judgment on a prerecorded call claim because it never actually asked for the Plaintiff to produce the alleged prerecorded calls.

In Gentner v. Navient Solutions, Case No. 1-20-cv-00747-LJV-JJM, 2021 U.S. Dist. LEXIS 181460  (W.D.N.Y.  September 21, 2021) the Defendant moved for summary judgment arguing it did not use an ATDS and arguing that the Plaintiff had no evidence a prerecorded call was made to his phone.

The Court granted summary judgment on the ATDS issue–the Court found the Defendant’s declaration that the system did not store or produce numbers using a RoSNG was unrebutted–but denied as to the prerecorded calls.

In essence the Court found that the Defendant had never asked the Plaintiff to produce evidence of the prerecorded calls. So it could not prove that Plaintiff lacked such evidence at trial.

And to the case moves forward.

Pro Tip: Ask for evidence of plaintiff’s claims in discovery before moving for summary judgment.

Happy weekend TCPAWorld!

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 267
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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...

213-689-6510
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