Balbarin v. North Star Capital Acquisition, LLC et al

Filing 121

WRITTEN Opinion: Plaintiff's motion to compel 101 is granted. Defendant is ordered to provide information responsive to the discovery requests on or before 11/24/10. Signed by the Honorable Susan E. Cox on 11/9/10: (For further details see minute order). Mailed notice(vkd, )

Balbarin v. North Star Capital Acquisition, LLC et al
Order Form (01/2005)

Doc. 121

Case: 1:10-cv-01846 Document #: 121 Filed: 11/09/10 Page 1 of 2 PageID #:1555

United States District Court, Northern District of Illinois
Name of Assigned Judge or Magistrate Judge

Joan H. Lefkow 10 C 1846

Sitting Judge if Other than Assigned Judge

Susan E. Cox 11/9/2010

CASE NUMBER CASE TITLE
DOCKET ENTRY TEXT

DATE

Joanne F. Balbarin vs. North Star Capital Acquisition, LLC, et al

Plaintiff's motion to compel [101] is granted. Defendant is ordered to provide information responsive to the discovery requests on or before 11/24/10.

O[ For further details see text below.]

Docketing to mail notices. *Copy to judge/magistrate judge.

STATEMENT In this putative class action plaintiff alleges a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, claiming that defendant's alleged use of an automatic dialing system with an artificial or prerecorded voice that placed multiple calls to her cell phone without her express prior consent. Defendant has alleged in an affirmative defense that plaintiff (and unnamed class members) have consented to these calls. Plaintiff seeks to compel responses to Interrogatory No. 9 and Request to Produce No. 7. Both of these discovery requests seek information which supports defendant's asserted "prior express consent" defense. In an agreement, which the Court finds highly constructive in this kind of a case, the parties agreed to limit defendant's response to a fifty person random sample of the putative class. However, defendant continues to object to this discovery. These objections are overruled. Defendant's primary objection is that plaintiff has not yet obtained class certification and that it should not be forced to respond to burdensome class-wide discovery unless and until she does. This objection lacks merit for a number of reasons. First, the district judge in this case did not bifurcate discovery here. All discovery is ordered closed on February 9, 2011. Further, this discovery is hardly class-wide, but limited to fifty possible class members. We are entirely persuaded by the opinion of our colleague, Judge Nolan, that a defendant in such an action must produce documents and information regarding its prior express defense. Donnelly v. NCO Financial Systems, Inc. 263 F.R.D. 500, 504 (N.D. Ill. 2009). We note that the court in that case ordered such discovery on a class-wide basis and found that the benefit of the discovery outweighed the burden and expense. Id. In this case, plaintiff only has requested this information for a random fifty person sample. We also find unavailing defendant's argument that it does not possess these documents itself, but will have to obtain them at great expense from third parties. If defendant does not have documents or other information which substantiates the defense it is difficult to fathom why it interposed that defense in the first place. If defendant cannot substantiate this defense with documents or information responsive to the interrogatory, it should say so under verification and withdraw that defense.
10C1846 Joanne F. Balbarin, vs. North Star Capital Acquisition, LLC, et al Page 1 of 2

Dockets.Justia.com

Case: 1:10-cv-01846 Document #: 121 Filed: 11/09/10 Page 2 of 2 PageID #:1556 STATEMENT Defendant is ordered to provide information responsive to the discovery requests on or before November 24, 2010. Plaintiff's motion to compel is, thus, granted [dkt 101].

10C1846 Joanne F. Balbarin, vs. North Star Capital Acquisition, LLC, et al

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