In Cahill v. GC Services Ltd., 2018 WL 1791910, at *3 (S.D.Cal., 2018), the District Court rejected a TCPA Defendant’s attempt to oppose a discovery motion on the grounds that the Plaintiff could not properly represent the class because Plaintiff was not dialed by an ATDS.
The primary theme throughout Defendant’s motion is that Plaintiff is an atypical member of the putative class. This is the case, according to Defendant, because Defendant “did not use an autodialer or a predictive dialer to contact Plaintiff.” (ECF No. 17 at 5.) Defendant contends that it need not respond to Plaintiff’s discovery requests because Plaintiff was not contacted by Defendant using an ATDS, and, thus, Plaintiff cannot be the lead plaintiff of the putative class. Defendant reformulates this argument by also asserting that because Defendant never called Plaintiff with an ATDS, Plaintiff lacks standing to bring the case in the first place. (See, e.g., id. at 11.) The Court disagrees with Defendant’s position.  The Court is not in a position to accept Defendant’s bald assertion that Defendant did not engage in the acts alleged in Plaintiff’s complaint. A discovery request—the basis of this dispute—is permitted so long as it is relevant to the allegations in the complaint. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…”). Here, the complaint alleges that Defendant called Plaintiff on her cell phone using an ATDS and artificial or prerecorded voice without Plaintiff’s permission. (See ECF No. 1 at ¶¶ 14– 16.) Defendant’s mere assertion that these allegations are untrue has no impact on the propriety of a discovery request.  Contrary to Defendant’s assertion, First American Title Insurance Co. v. Superior Court, 53 Cal. Rptr. 3d 734 (Ct. App. 2007), does not support its argument because the circumstances of that case are unlike those here. There, the court held that a plaintiff who is not a member of the proposed class cannot “obtain precertification discovery from the defendant for the express purpose of identifying a member of the class who is willing to become a named plaintiff and pursue the action.” Id. at 735. In that case, however, prior to making the discovery request the plaintiff conceded he was not a member of the class. Id. at 737, 739. In light of the plaintiff’s acknowledgement that he was not a victim of the kickback scheme alleged in that case, his counsel sought the discovery for the purpose of finding a suitable lead plaintiff. Id. at 738. The Court of Appeal held that it was an abuse of discretion for the trial court to permit such discovery. Id. at 744–45. Here, Plaintiff has not conceded that Defendant did not contact her using an ATDS. Instead, the only ground on which the Court could conclude at this point that Plaintiff is not a typical member of the putative class is to accept as true Defendant’s own assertion that it did not engage in the conduct alleged against it. If Defendant is confident that it did not violate Plaintiff’s rights under the TCPA, it should file a dispositive motion asking the Court to make such a finding as a matter of law. See Wright v. Schock, 742 F.2d 541, 543–45 (9th Cir. 1984) (holding that the district court did not abuse its discretion by entertaining, and ultimately granting, a motion for summary judgment prior to a motion for certification because the defendants consented to that procedure and the plaintiffs were not prejudiced); Goodson v. Designed Receivable Sols., No. CV 15-3308 JVS (JPRx), 2016 WL 5799321 (C.D. Cal. Sept. 21, 2016) (granting summary judgment in a TCPA/FDCPA putative class action, prior to addressing a motion for certification, because there was no genuine dispute that the defendant did not violate the named plaintiff’s rights under TCPA or FDCPA). A discovery dispute, however, is not the vehicle to litigate the merits of Plaintiff’s personal claims against Defendant.  As a result, Magistrate Judge Dembin properly rejected Defendant’s argument that Plaintiff’s discovery requests are improper because she is not a member of the putative class. This conclusion sustains Magistrate Judge Dembin’s underlying decision as to Interrogatories 6, 21, 22, 23, and 24.