Charvat v. Tomorrow Energy Corp. et al

Filing 52

OPINION AND ORDER - Plaintiff is ORDERED to provide complete responses to Interrogatory Nos. 10 and 11 as well as Request for Production Nos. 13 and 14 on or before December 2, 2020. If Plaintiff cannot meet this deadline, he must notify the Court immediately. Signed by Magistrate Judge Kimberly A. Jolson on 11/30/20. (jr)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PHILIP CHARVAT,
Plaintiff,
v.

Civil Action 2:20-cv-1064
Chief Judge Algenon L. Marbley
Magistrate Judge Jolson

TOMORROW ENERGY CORP., et al.,
Defendants.
OPINION AND ORDER
After the parties informed the Court of a discovery dispute on November 23, 2020, the
Court directed the parties to file short position papers. (Doc. 48). The parties complied (Docs. 49,
50), and the dispute is ripe for resolution.
I.

BACKGROUND
The December 4, 2020, discovery deadline in this Telephone Consumer Protection Act

(“TCPA”) case is quickly approaching. Defendants are deposing Plaintiff this week and ask the
Court to resolve a discovery dispute beforehand.

The parties’ dispute is straightforward.

Defendants are dissatisfied with Plaintiff’s responses to two of Defendants’ interrogatories and
requests for production. Each requests information regarding Plaintiff’s previous TCPA litigation.
II.

STANDARD OF REVIEW
While no motion to compel has been filed, the rules that govern such a motion provide

guidance on resolving this discovery dispute. Rule 26(b) of the Federal Rules of Civil Procedure
provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant

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to any party’s claim or defense and proportional to the needs of the case.” Rule 37 permits a
discovering party to file a motion for an order compelling discovery if another party fails to
respond to discovery requests, provided that the motion to compel includes a certification that the
movant has in good faith conferred or attempted to confer with the party failing to respond to the
requests. Fed. R. Civ. P. 37(a). And it allows for a motion to compel discovery when a party fails
to answer interrogatories submitted under Rule 33 or to provide proper responses to requests for
production of documents under Rule 34. See Fed. R. Civ. P. 37(a)(1), (3).
“The proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302
(S.D. Ohio 2010) (citation omitted). “Relevant evidence” is evidence that “has any tendency to
make a fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. “While relevancy is broad, ‘district
courts have discretion to limit the scope of discovery [when] the information sought is overly broad
or would prove unduly burdensome to produce.’” Plain Local Sch. Dist. Bd. of Educ. v. DeWine,
335 F.R.D. 115, 119 (N.D. Ohio 2020) (alteration in original) (quoting Surles ex rel. Johnson v.
Greyhound, Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). At base, “the scope of discovery is
within the sound discretion of the trial court.” Stumph v. Spring View Physician Practices, LLC,
No. 3:19-CV-00053-LLK, 2020 WL 68587, at *2 (W.D. Ky. Jan. 7, 2020) (quotation marks and
citations omitted).
III.

DISCUSSION
Defendants seek Plaintiff to further respond to the following:
Interrogatory No. 10: Identify all persons and entities to whom/which you have sent
a communication alleging violation of the TCPA, including the date each
communication was sent to that person or entity and the corresponding phone

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number(s) that you contend were called in violation of the law. a complete response
must include the identities of all the recipients of the “private” dispute and
“‘consent’ letters” referenced in a September 3, 2020 correspondence to Eric
Troutman.
Interrogatory No. 11: State all facts upon which you base your contention that you
are a repeat or serial TCPA litigant, but not a professional litigant.
Request for Production No. 12: All the “private” dispute letters and “‘consent’
letters” referred to in a September 3, 2020 correspondence to Eric Troutman.
Request for Production No. 13: All responses to the “private” dispute letters and
“‘consent’ letters” in the foregoing Request for Production.
(See Docs. 49, 50).
Plaintiff contends that these requests are unduly burdensome, “overbroad, not proportional
to the claims and defenses at issue in this matter and propounded to harass [him].” (Doc. 50 at
2).

Furthermore, he claims this “information is irrelevant to his adequacy as a class

representative…” (Id. at 3). His contention is that his responses to these requests provide
Defendants sufficient information for them to “make whatever arguments it deems necessary.”
(Id.).
Defendants disagree. They contend that “Plaintiff’s extensive history with the TCPA …
is relevant to the assertions [Plaintiff] makes in his own pleadings.” (Doc. 49 at 3). Specifically,
they say it is relevant to Plaintiff’s assertion that “he is a suitable representative of the class and
that his claims are typical of the class.” (Id. at 1). Defendants also maintain that Plaintiff’s
responses fail to address, for example, “how many TCPA claims he has made, the names of the
cases he has filed, or whether he has a profession other than as a TCPA litigant.” (Id. at 3).
The parties both cite a 2018 case from this District concerning similar issues in the context
of a potential TCPA class action. See Johansen v. One Planet Ops, Inc., No. 16-00121, 2018 WL

3

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1558263 (S.D. Ohio Mar. 5, 2018). In that case, Chief Judge Marbley held that, “[plaintiff’s]
experience as a repeat TCPA plaintiff does not, in itself, prejudice the class.” Id. at *4. In coming
to this conclusion, the Court analyzed whether plaintiff “lack[ed] a genuine interest in curbing
phone calls that invade his privacy,” and whether the defendant brought any “defenses specific to
[plaintiff] that threaten to become the focus of any future litigation.” Id. At base, the relevant
inquiry is whether plaintiff’s experience as a repeat TCPA plaintiff creates a “‘serious credibility
problem’ that would either cause class counsel to ‘devote too much attention to rebutting an
individual defense’ or would ‘reduce the likelihood of prevailing on the class claim.’” Id. (quoting
Nghiem v. Dick’s Sporting Goods, Inc., 318 F.R.D. 375, 383 (C.D. Cal. 2016)).
Importantly, however, this case is at a different procedural posture than Johansen. There,
the Court was ruling on a motion for class certification, well after the discovery deadline had
passed. This case on the other hand, is still in its early stages. The discovery deadline has not yet
passed, and dispositive motions are not due for another five months. (See Doc. 20). So, the
question for the purposes of the parties’ discovery dispute is simply one of relevance. As noted,
relevant evidence is evidence that “has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” Fed.
R. Evid. 401. And the Court finds that Defendants have shown that this information is, at least for
purposes of discovery, relevant.
After reviewing the specific facts at issue, the Court in Johansen found “[n]o facts [that]
suggest that [plaintiff] lacks a genuine interest in curbing phone calls that invade his privacy” and
that defendants had not raised any defenses that threatened to become the focus of any future
litigation. Johansen v. One Planet Ops, Inc., No. 16-00121, 2018 WL 1558263, at *4 (S.D. Ohio
Mar. 5, 2018). That is not to say that such matters were not relevant. It is to say that, in that

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instance, under those facts, experience as a repeat TCPA plaintiff, did not impact that specific
plaintiff’s adequacy in representing a class. (emphasis added). Here, it is unclear whether
Plaintiff’s experience as a repeat TCPA plaintiff similarly impacts his adequacy in representing a
class. Accordingly, the materials Defendants request are relevant in showing the existence, or lack
thereof, such an impact.
The Court, however, is mindful of the potential burden on Plaintiff. While Plaintiff must
provide more fulsome responses to Defendants’ requests, he may limit his responses to
encompassing materials created between November 2017–present, if material predating that period
is not readily accessible.
For the foregoing reasons, Plaintiff is ORDERED to provide complete responses to
Interrogatory Nos. 10 and 11 as well as Request for Production Nos. 13 and 14 on or before
December 2, 2020. If Plaintiff cannot meet this deadline, he must notify the Court immediately.
IT IS SO ORDERED.

Date: November 30, 2020

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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