Katz. v. Total Mobile Ultrasound, Inc.

Background

Bruce Katz, M.D., P.C. brought a putative class action under the Telephone Consumer Protection Act, a federal law regulating certain telephone and fax communications. Katz alleged that Total Mobile Ultrasound, Inc. sent him and others unsolicited advertising faxes without permission. Katz alleged that he received one such advertisement on June 15, 2022.

The proposed class covered persons and entities who received certain faxes from Total Mobile or a third party acting for Total Mobile during the period beginning four years before the complaint was filed and ending at trial. Total Mobile was served but did not answer or appear. The Clerk of Court entered a certificate of default, but Katz had not moved for default judgment under the court’s procedures.

Motion for Discovery

Before moving for class certification, Katz asked for permission to obtain discovery from Total Mobile and unspecified third parties. He sought information to identify members of the proposed class and determine the number of alleged violations and the statutory damages for each class member.

Federal Rule of Civil Procedure 26(b)(1) generally permits discovery of nonprivileged information relevant to a claim or defense. The court explained that pre-certification discovery may be appropriate to provide information needed to decide whether a class should be certified. Courts must also protect against discovery that is overly burdensome, irrelevant, or intrusive. The court noted that courts in the circuit are cautious about requiring disclosure of putative class members’ identities before class certification, in part because such information could be sought to identify potential clients rather than to establish that certification is appropriate.

Ruling

Judge Ramos denied Katz’s motion. The court emphasized that Katz did not argue that the requested information was necessary to move for class certification. Katz also did not identify a case allowing a plaintiff to obtain class-wide damages discovery from a defendant that had not appeared or answered before the class was certified. The court found the cited cases did not support the requested discovery, while noting that another federal court had rejected similar pre-certification discovery in a Telephone Consumer Protection Act class action.

The court directed Katz to move for default judgment against Total Mobile as to his individual claims no later than April 28, 2023, following the court’s Individual Practices. The Clerk of Court was directed to terminate the discovery motion. The opinion did not decide class certification, enter default judgment, or determine the merits or amount of any damages claim.