Prohibiting the plaintiff from broader discovery based on "mere speculation" about the existence of other fax advertisements, a Pennsylvania federal court limited discovery in a putative TCPA class action to the fax received by the plaintiff.

In his complaint, the plaintiff alleged that he received an unsolicited fax on October 15, 2015, from the defendant, promoting a "2015 Optum360 Essentials Conference" and the company's "coding, billing and compliance excellence." The fax did not contain the proper opt-out notice in violation of the TCPA, the plaintiff said, seeking to represent a purported class of "[e]ach person or entity that was sent one or more telephone facsimile messages (faxes) about goods, products or services available for purchase from optumcoding.com or optum360coding.com."

During discovery, one of the plaintiff's interrogatories requested the following: "Other than Exhibit A, identify other fax messages transmitted during the relevant time period [four years] that identified any property, goods, or services available for purchase from Optum360, including optumcoding.com or optum360coding.com."

The defendant objected to the request, contending that it was irrelevant and overly burdensome. The plaintiff told the court it needed the information to identify other class members, but the court was not persuaded.

Pursuant to the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action," with relevance to be broadly construed to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.

Despite these broad boundaries, U.S. District Judge Jeffrey L. Schmehl of the Eastern District of Pennsylvania found the plaintiff's request still managed to overstep the bounds after weighing competing case law from the Illinois federal courts.

In one case relied on by the defendant, an Illinois federal district judge denied the plaintiff's requests for "any fax defendant sent to anyone that promoted or advertised defendant's business." While that plaintiff also argued the information was necessary to identify class members, the court refused to allow discovery into any fax that the defendant sent to others, which it said would allow the plaintiff to "use discovery as a way of potentially putting together a separate and unrelated class action lawsuit for other TCPA violations."

In the case at bar, the plaintiff directed Judge Schmehl to another Illinois opinion in an analogous dispute where the court overruled the defendant's relevance objection and permitted a plaintiff to discover faxes similar to those that were sent to the plaintiff. But Judge Schmehl distinguished that case because the defendant admitted to having sent out other faxes within the relevant time period that did not contain proper opt-out notices and because the plaintiff had already identified at least one other recipient of a different fax that violated the TCPA.

"Neither of these events occurred in this case, and therefore plaintiff's discovery requests do not meet the 'threshold relevance test' as they are grounded in solely speculation and suspicion," the court wrote. "Plaintiff has not alleged any facts to show that Defendant sent any noncompliant faxes other than the one Plaintiff attached to [the] Complaint as Exhibit A. Therefore, the Court will … sustain Defendant's objection on the basis of relevance."

To read the memorandum opinion in Steven A. Conner DPM v. Optum360, LLC, click here.

Why it matters

With only mere speculation to support a discovery request, the Pennsylvania federal court refused to allow the plaintiff to rummage around in the defendant's records of all fax communications it sent within the past four years, noting that discovery cannot be used as a way of potentially putting together a separate and unrelated class action for other TCPA violations. At the same time, if there had been evidence of other faxes sent in the relevant time period beyond the one the named plaintiff received, the judge may (and probably would) have allowed that discovery.

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For further information on this topic please contact Christine Reilly at Manatt Phelps & Phillips LLP's Los Angeles office by telephone (+1 310 312 4000) or email (creilly@manatt.com). Alternatively, please contact A Paul Heeringa at Manatt Phelps & Phillips LLP's Chicago office by telephone (+ 312 648 6202) or email (pheeringa@manatt.com). The Manatt Phelps & Phillips LLP website can be accessed at www.manatt.com?.

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