A common ascertainability approach taken by class counsel in TCPA class actions is to subpoena wireless carriers for the subscriber information for phone numbers associated with a Defendant’s outbound call records. While the viability of this approach—particularly in wrong number cases—is the subject of hot debate, the cases keep coming.
In a new decision out yesterday, a Court ordered a Plaintiff to pay $3,000.00 to a wireless carrier for the cost of producing records. In Cook v. Palmer, Reifler & Assocs., Case No. 3:16-cv-673-J-39JRK, 2019 U.S. Dist. LEXIS 190788 (M.D. Fl. Nov. 4, 2019) the Plaintiff issued a subpoena for the records of 2,245 wireless subscribers. The wireless provider—TracFone—originally asked for $25.00 a subscriber, totaling over $56k. After a skirmish with Plaintiff’s counsel over whether their objections were properly asserted and preserved, however, TracFone agreed to accept $3k to make the production. Plaintiff refused to pay the $3k, offering a mere $500.00, and the Court had to resolve the dispute.
Concluding that the $3k was reasonable and that TracFone’s objections had not been waived—although it had not asserted written objections within the 14-day window mandated by rule— the Court ordered Plaintiff to pay TracFone $3,000.00 after the production was made.
It is worth noting that TCPA class actions are purportedly brought to vitiate the privacy rights of class members. Yet, bulk subpoenas to carriers for subscriber and calling information threatens to violate those privacy rights, risks data breaches, and impose large costs and disruption on non-parties to these lawsuits. High-end class counsel will agree to bifurcate class discovery from merits discovery–assuring that consumer records are not produced until after the case is certified– but TCPAWorld is still awash with counsel that will demand production of these records well before they are actually needed. It will be interesting to see if demands for cost-shifting by third-parties–of the sort in Cook–might damper some enthusiasm for these cases.
Editor's note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are re