One of the most important things for TCPA class action defense attorneys to keep in mind is the CRITICAL importance of keeping discovery open after certification.
I have seen so many cases recently where Troutman Amin, LLP has been brought in to take over a case only to find that previous counsel has agreed to a schedule with all discovery closing before class certification is sought.
That is absolutely insane is my opinion.
And here’s an example of why that is.
As TCPAWorld readers well know QuoteWizard is facing MASSIVE exposure in a certified TCPA class action out in Massachusetts.
Read article on this here.
As if the situation weren’t bad enough already, QuoteWizard apparently allowed discovery to close before certification was sought.
As a result Plaintiff moved for certification on a revised class definition that QuoteWizard had never seen– terrible, but it happens all the time which is why moving to strike errant class definitions from the pleadings is so critical and assuring discovery remains open past certification is necessary.
Once the Plaintiff actually revealed the class, however, QuoteWizard realized it needed additional information from class members it didn’t have.
So last month it asked the court to re-open discovery so it could send some questions to class members to learn about their claims (QuoteWizard cannot unilaterally contact members of the class after certification because they are technically represented by Class Counsel.)
QuoteWizard wanted to ask class members the following:
- Interrogatory No. 1: Have you ever made or received calls, texts, appbased messages (e.g., Teams, Discord, Slack), or emails, or attended virtual meetings (e.g., Zoom, Teams), on your cellular telephone related to your occupation or business?
- Interrogatory No. 2: Have you ever used your cellular telephone for any purpose other than personal use? If so, please describe how you have used for cellular telephone for purposes other than personal use.
- Interrogatory No. 3: Has an employer ever contributed in whole or in part to your cellular telephone bill or have you ever claimed a tax deduction related to your cellular telephone bill as a business expense?
- Interrogatory No. 4: Have you ever signed up to receive insurance comparison information or insurance quotes and been contacted by QuoteWizard as a result of that request?
- Interrogatory No. 5: Have you ever received text messages from QuoteWizard? If so, how many text messages have you received from QuoteWizard and when?
Well last week the Court denied QuoteWizard’s efforts reasoning that the discovery should have been conducted during the discovery phase:
Defendant could have (1) sought this information during discovery, or (2) upon receiving the expert report from Plaintiff in September 2023. Defendant did neither. Instead, Defendant elected to litigate other discovery issues and class certification before deciding to seek to reopen discovery.
Eesh.
Think ahead folks.
NEVER let discovery close before certification has been decided.
We will, of course, keep an eye on QuoteWizard and see if it survives this class action.