A common battle in TCPA suits is discovery regarding Plaintiff’s past litigation conduct. On the one hand the Plaintiff will argue that prior suits have nothing to do with the merits of the current dispute. On the other hand Defendants argue that the case may be a sham, or manufactured, and the Plaintiff may lack standing to assert the claim based upon their past history of interaction with the statute. In extreme cases, a Defendant may even argue that the Plaintiff’s conduct of accepting messages without opting out amounts to fraud.

In class suits these concerns become even more compelling for Defendants and the Court alike. After all, a Plaintiff must be “adequate” to represent a class, meaning that there is nothing particular about that Plaintiff’s claims that may distract him from his duties of taking care of the class as a whole, as a recent discovery ruling from the Southern District of California demonstrates.

In Moser v. Health Ins. Innovations, Inc., No. 3:17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 6365 (S.D. Cal. April 11, 2019), the district court approved of a Magistrate Judge’s order compelling Plaintiff—a putative TCPA class representative— to provide discovery regarding past lawsuits—including production of confidential settlement agreements, with some limited protections.  

The Plaintiff had objected to the MJ’s order, contending that it imposed an undue burden and otherwise sought information not sufficiently pertinent to the case to justify production. In overruling those objections, the district court noted that although evidence of a party’s involvement in prior litigation may not be admissible at trial to show litigiousness, evidence of a party’s prior acts in the course of prior litigation may be admissible if relevant to other disputed issues such as motive, state of mind, and credibility. In the court’s view the Plaintiff’s credibility was a “central issue” material to both his individual claims and his ability to adequately represent the class. So the MJ’s order was upheld.

Notably, however, the Court did require that the confidential settlement agreements Plaintiffs had entered into in past cases needed to be produced for an in camera inspection so the Magistrate Judge could determine what procedures, if any, were needed to protect the confidential information of third parties. (I.e. if another TCPA defendant paid this Plaintiff to go away, that Defendant may not want that fact broadcasted on TCPAWorld.com once the production is made publicly available.)

It remains to be seen what the Magistrate Judge orders by way of protection for confidential information, but the case is another remarkable reminder to TCPA Defendants to push hard for discovery from repeat-player Plaintiffs in these cases. Even if a case is not ultimately subject to dismissal due to a Plaintiff’s professional status—see this case from last week for example—the fact that Plaintiff has profited widely from TCPA violations cast doubt on his or her credibility in a way that makes discovery of past suits perfectly “in bounds” under Rule 26.


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