Court Grants Plaintiff’s Motion to Compel Defendant to Produce Pre-Class Certification Discovery
In Peters v. Credit Protection Association LP, Case No. 2:13-cv-767 (S.D. Ohio November 26, 2014), a putative class action lawsuit alleging Defendant violated the Telephone Consumer Protection Act and the FCC rules by making artificial voice and pre-taped calls, Plaintiff’s eDiscovery requests sought information regarding all debt collection calls made in Ohio using an automated telephone system for the previous four years.
Defendant, who had previously filed a Motion to Dismiss which the court had not yet ruled upon, refused to produce the requested discovery. It argued that because it had filed a pending motion to dismiss and Plaintiff had yet to file a motion for class certification, no case or controversy existed. Defendant also argued that Plaintiff improperly designed its discovery requests to help it locate new clients for the putative class.
The court first noted that in accordance with S.D. Ohio Civ. R 37.1 (which supplements FRCP 37), Plaintiff had attempted to resolve the dispute informally via a meet and confer with Defendant prior to filing the motion to compel. Next, the court reminded Defendant that it allowed Plaintiff to conduct pre-certification discovery to discover facts relating to Rule 23(a), including numerosity, commonality, typicality, adequacy of representation, the superiority of the class device, and predominance of common issues. Plaintiff argued that the information related to the history of debt collection calls in Ohio relates to typicality under FRCP 23.
The court agreed with Plaintiff and granted Plaintiff’s motion to compel, finding the requests relevant given the definition of the class set forth in the complaint.