In Central Alarm Signal, Inc. v. Business Financial Services, Inc. 2016 WL 3595627, at *2 (E.D.Mich., 2016), Judge Whalen allowed a TCPA class action plaintiff to conduct discovery of faxes beyond the scope of what was attached to the complaint or defined by the class.
That Plaintiff attached only a single fax to the FAC does not circumscribe the class allegations in that complaint or limit the scope of discovery relevant to those allegations. And Fed.R.Civ.P. 26(b)(1) envisions a broad scope of discovery, including the provision that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.”Moreover, the discovery that Plaintiff seeks is relevant to the certification of the class, which the FAC defines as all person who, on or after four years before the date complaint, were sent unsolicited faxes by or on behalf of the Defendants. In Whiteamire Clinic, P.A., Inc. v. Quill Corporation, 2013 WL 5348377 (N.D. Ill. 2013), the defendant similarly sought to restrict the plaintiff’s discovery requests. The court held:“Moreover, the information plaintiff seeks in the contested first and second requests for production is clearly relevant to class discovery; specifically, to the issues of numerosity, commonality, and typicality….[T]he Court cannot permit [Defendant] on one hand to contest class certification and on the other hand deny plaintiff the discovery relevant to its position that a class should be certified.” Id. at *3.Whiteamire also speaks to Defendants’ characterization of Plaintiff’s requests as a “fishing expedition:”“It is part and parcel of the discovery process for parties to make discovery requests without knowing what they will get, or indeed, whether they will get anything at all. In that sense, most discovery involves an element of “fishing.” Thus, to conclusorily label a discovery request as a “fishing expedition” does little to advance the discussion; the more appropriate inquiry (to continue with the fishing metaphor) is how big a pond is the requesting party allowed to fish in, and what may the requesting party fish for.” Id. at 6.Fax advertising by all Defendants during the class period is relevant to the claims pled in the FAC. Of course, production will be limited to faxes related to advertising, as typified by the fax attached to the FAC. As such, I am not convinced that the production of this information is overly burdensome. If, following a good-faith and diligent search, Defendants ascertain that they do not have possession, custody, or control of responsive material, they shall so indicate in their response.