Every once in a while I am asked by a client to “keep so and so out of the case.”
The rule that bind attorneys in civil litigation–especially in federal court– lean quite heavily in favor of discovery of known and relevant facts. And whereas a Defendant CERTAINLY has rights to avoid burdensome or needlessly intrusive discovery, simple questions like “who made the calls” or “where did the leads come from” are almost always going to result in a court requiring an answer (no matter how great and powerful your attorney might be.)
In MARGO SIMMONS v. WP LIGHTHOUSE LLC, No. 1:24-cv-01602-SEB-MKK (S.D. Ind. April 22, 2025), for instance, a Defendant refused to identify a BPO that may have made the calls at issue in its behalf.
As the story goes, the BPO provider “is subject to ongoing criminal proceedings” and the Defendant did not want to identify the BPO for fear it would incriminate itself. That is, if the calls the BPO is under investigation for were actually made at the behest of WP Lighthouse it fears being included in the criminal proceeding.
Pause.
Does WP Whitehouse really think the BPO isn’t going to give them up to the feds/state anyway?
Unpause.
The Court in Simmons made short work of the 5th amendment argument here. Businesses have no fifth amendment rights– which is odd since they seem certainly have other constitutional rights–so the court rejected the refusal to answer just that simply. It held the Defendant must identify the BPO and provide additional information related to its relationship with the BPO.
The defendant also refused to provide information regarding its dialing platform–RingCentral–so the Court also ordered it to provide copies of contracts, communications and other records.
Pretty clear lesson here– TCPA defendants can and should fight to protect themselves against needless and burdensome discovery, but simple stuff like the names of other companies involved with phone calls are almost always going to be ordered.
As if to drive home that point the Court in Simmons is going to issue SANCTIONS against the defendant. The Court found the Defendant’s position was not substantially justified and, as a result, intends to award Plaintiff’s counsel– the Wolf Anthony Paronich–the attorneys fees incurred in having to bring the motion to compel.
Eesh. Terrible.
But so it goes.
One last note here, INDIVIDUALS who are sued personally in TCPA cases DO have 5th amendment privilege because the TCPA does contain criminal penalties. So whereas the Defendant in Simmons could not raise the privilege, if you find yourself named personally in a TCPA lawsuit be sure to discuss the issue of privilege with your counsel.