December 4, 2020

Volume X, Number 339

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Undue Burden! Another Court Denies Motion to Compel Burdensome Production

As we’ve covered , discovery in TCPA cases requires a careful, thoughtful approach.  That is true for Plaintiffs too, as  counsel for Ronald Chinitz recently learned. See Chinitz v. Realogy Holdings Corp., 2020 U.S. Dist. LEXIS 197102 (W.D. Tex. Oct. 22, 2020).  In that case, Plaintiffs sought to compel production from a third-party service to obtain “auto dialers and lists of phone numbers” allegedly provided to “Coldwell Banker agents.”

The third-party service argued that “Plaintiffs cannot demonstrate that [the third party] has any connection to the claims or defendants in their class action beyond gross speculation that a defendant might have used services like those [the third-party service] provides.”  The Court agreed, holding that “Plaintiffs have failed to demonstrate that their discovery requests are relevant by providing any facts or allegations linking [the third-party service] to Plaintiffs’ claims or to the defendants in the underlying action.”

More importantly for future TCPA cases, the Court also held that “many of the [Plaintiffs’] requests are facially overbroad.  Plaintiffs do not dispute [the third-party service’s] assertion that there may be ‘tens of thousands’ of Coldwell Banker agents. [And therefore Plaintiffs’] requests seeking ‘all documents,’ ‘all communications,’ and the like for each Coldwell Banker agent [are] overbroad.”  Notably too, the third-party service provider submitted a declaration explaining the specific burden: “$45,000 and 600 hours of work” to produce documents, including “manual review of the account of each agent.”  Given that significant “expense and inconvenience to” the third-party service provider, the Court declined to compel production.

In TCPA litigation, a party facing an overbroad subpoena should identify the specific burden to increase the chances the Court declines to compel production.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 304
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About this Author

Brent Owen, Squire Patton Boggs, Denver, public lands attorney, natural resources lawyer
Associate

Brent represents clients on a range of matters, with an emphasis on complex commercial litigation, public lands and natural resources law. Brent joined Squire Patton Boggs after a two-year stint at a large regional firm. He has significant litigation experience – including second-chairing a federal jury trial on behalf of a prisoner asserting a First Amendment claim. Additionally, Brent has handled a range of appellate matters, including drafting briefs to the Colorado Court of Appeals, Colorado Supreme Court, and Tenth Circuit.

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