Compelling responses in discovery - motivating TCPA defendants to fully answer discovery requests
- Peter Schneider
- Apr 24
- 8 min read
Updated: Jul 22
Most telephone consumer protection act plaintiffs that get to the discovery phase find out this is the most difficult part of litigation. Defendants are very creative in not answering questions because they know that if they can get through discovery without giving up information, they've basically won.
The discovery phase is where most TCPA lawsuits are won or lost, so know what to ask, how to ask, and how to push for complete discovery responses is key to pursing a TCPA claim against a telemarketer / seller. Lets review a few cases to get an idea of how it's done. The first case is Margo Simmons v. WP Lighthouse LLC, No. 1:24-cv-01602-SEB-MKK (S.D. Ind. April 22, 2025). I didn't pull the complaint in this case so I'm not sure of all the underlying facts of the case, but apparently WP Lighthouse called Ms. Simmons, even after she told them to stop calling. It went to court and WP Lighthouse refused to answer discovery requests on 5th amendment grounds and Ms. Simmons filed a motion to compel.
This motion is a good example of pushing for complete answers to interrogatory questions and requests for documents (see the attached exhibit in the file above to see the exact interrogatory questions and requests for documents).
A quick note, if you are angling to file a motion to compel, ready your applicable court rules. Usually courts have a meet and confer process before filing a motion to compel, and many courts will have more informal process to resolve this before filing a motion to compel. In almost all cases a failure to follow these procedures exactly will result in a denied motion because you didn't follow the process, even if your motion has merit. Note that up front their motion said:
Counsel for the Plaintiff and the Defendant conferred on these discovery responses in February and March of 2025. Indeed, this Court has held two discovery conferences regarding the dispute before permitting the Plaintiff to file a motion to compel. See ECF No. 25 and 27. This dispute is ripe.
What ever effort your local court requires to resolve discovery disputes before filing a motion, be sure you can check every box. For example in many courts "meet and confer" requires a phone call or in person meeting. Email isn't a substitute for a phone call. Pick up the phone and call if the rules require it.
Defendants often give lengthy boilerplate objections. Ms. Simmons addressed that most courts find this is improper and should be overruled. Then she got down to business and the court granted the motion.
Lawsuit Stanley Hastings, Jr. v. Selectquote Insurance Services, et al, No. 4:22-Cv-00498 Kgb, 2024 Wl 1385701 (E.D. Ark. Mar. 31, 2024), is an example of dealing with a professionally dumb TCPA defendant. Generally telemarketing agents are following a written script in making their sales pitch and Mr. Hastings asked for them during the discovery process. Selectquote pretended not to understand what a script was or how to search for them, even though depositions and other discovery efforts clearly indicated that they did.
SelectQuote argued during the hearing that the reason it did not produce any scripts until after the deposition of Mr. Randolph, and the reason any scripts are irrelevant and should not be discoverable, is because SelectQuote did not know what Mr. Hastings meant by the word “scripts” and because SelectQuote does not use scripts. When asked to clarify how SelectQuote refers to documents that appear to fit the colloquial usage of the word script, SelectQuote’s counsel described them as “qualifying questions” and “question trees.” When counsel for Mr. Hastings pointed out that internal SelectQuote discussions on the publicly available Trello page used the word script, SelectQuote’s counsel responded that these were terms used by SelectQuote’s vendors and not by SeletQuote itself. It strains plausibility beyond its breaking point to think that SelectQuote and its employees could understand what the word script refers to when coming from a vendor but not when coming from opposing counsel. The Court finds SelectQuote’s arguments on this point unconvincing
Mr. Hastings did a great job of pushing to get additional evidence he could use to tie more calls to SelectQuote.
SelectQuote makes several more arguments against being compelled to produce additional documents. It argues that it should not have to produce any additional documents because between its June 30, 2023, and August 9, 2023, productions it has produced all relevant, responsive, nonprivileged documents in its possession or control (Dkt. No. 45, at 5). This is based on the claim that any additional production beyond the six keyword, two vendor parameters of the emails searched would be irrelevant because these were the only vendors that made calls to Mr. Hastings (Id., at 5-6). However, as Mr. Hastings has argued in briefing and through counsel at the hearing, he believes that he was called by other vendors also operating on SelectQuote’s behalf based on the similarity between the language used and the products sold during these other calls and the calls that SelectQuote has admitted were made on its behalf (Dkt. No. 53, at 7)). The requested scripts are potentially relevant evidence to determining whether additional calls came from SelectQuote. Additionally, at the time this motion was argued, SelectQuote had produced only email communications and had not produced any of the relevant discussions about scripts or script related materials that it is undisputed are housed on Trello
And a great point about asking for the scripts was in proving vicarious liability.
Documents that reveal SelectQuote’s communication with vendors about scripts are relevant to the nature of the agency relationship between vendors and SelectQuote. In other words, these documents are relevant to determining whether in fact these vendors are outside of SelectQuote’s control.
In Tillman v. Ally Financial Inc., No. 2:16-cv-313-FtM-99CM, Dist. Court, (M.D. Florida, 2017) is interesting for the class action related discovery questions Mr. Tillman asked Ally Financial
Contention interrogatories - asking for factual and legal basis for a party's claims or defenses - are a very useful tool, but one that must be used carefully. You must be careful because the other side will do everything in their power to not answer them, and the judge might do all in his or her power to help them not answer them, unlike this judge.
Federal Rule 33(a)(2) clearly states that: “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. . . .” Fed.R.Civ.P. 33(a)(2). Federal Rule 33(b)(3) also states that: “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). However, “the court may order that the interrogatory need not be answered until designated discovery is complete. . . .” Fed.R.Civ.P. 33(a)(2).
A good rule of thumb is not used them till at least the middle of the discovery window.
If “[w]ell-tailored,” contention interrogatories, such as Interrogatory No. 6, may “contribute meaningfully to clarifying the issues, narrowing the scope of the dispute, or setting up early settlement discussions. . . .” In re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 335 (N.D. Cal. 1985). However, “[c]ontention interrogatories are too often used at the outset of litigation to harass the opposition knowing that the responses at that stage will produce little useful information.” In many instances, contention interrogatories are “better used, if at all, near the completion of discovery and after utilization of other discovery devices.”
And don't ask for to much, or expect to much. Asking for "every fact" is dangerous, many TCPA defendants will object to the "every fact" and not answer at all. This court points to asking for the ‘principal or material’ facts, others might ask for the facts the other side intends to use at trial.
Contention interrogatories “should not require the answering party to provide a narrative account of its case.” Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 404-405 (D. Kan. 1998). Courts “will generally find [contention interrogatories] overly broad and unduly burdensome on their face to the extent they ask for ‘every fact’ [or ‘all facts’] which support[] identified allegations or defenses.” Id. at 405. “Interrogatories may, however, properly ask for the ‘principal or material’ facts which support an allegation or defense.” Id. “Interrogatories which do not encompass every allegation, or a significant number of allegations, of the Complaint, reasonably places upon the answering party ‘the duty to answer them by setting forth the material or principal facts.’
Note how the court re-wrote the interrogatory to its liking: State the principal or material facts supporting the allegations in the First Amended Complaint “that HII’s alleged conduct (or that of its alleged agents) toward [plaintiff] was ‘knowing’ and/or ‘willful.’” Ask better questions to duck objections or win motions to compel.
TCPA lawsuit Katz v. Liberty Power Corp., LLC, No. 18-CV-10506-ADB, 2023 WL 6201557 (D. Mass. June 26, 2020) is interesting for a variety of reasons, but also because the court ruled on a motion to compel. Katz wanted Liberty Power to turn over call and financial records. Katz failed the meet and confer process.
As a preliminary matter, Defendants argue that the motion to compel should be denied because the parties failed to meet and confer before Plaintiffs filed this motion. A court may deny a motion to compel if the parties failed to meet and confer regarding the discovery dispute. The parties had a teleconference on November 7, 2019 to discuss discovery disputes identified by Plaintiffs in a letter to Defendants. Defendants allege that it quickly became obvious that Plaintiffs were using the call to address other case issues, rather than the discovery disputes raised in the letter. Plaintiffs ultimately agreed to organize a second call to discuss the discovery issues, but instead filed the instant motion. Therefore, for some of the requests, the Court orders that the parties meet and confer to determine the scope of requests and relevant production
Still, there were a few interesting things to pop out. Katz asked for “[a]ll documents necessary to determine Liberty Power Corp., LLC’s current net worth, including monthly statements for all depository accounts.” because Katz was seeking punitive damages and Defendants’ ability to pay any potential judgment is therefore relevant.
When plaintiffs seek punitive damages, however, “a majority of federal courts permit pretrial discovery of financial information about the defendant without requiring plaintiff to establish a prima facie case on the issue of punitive damages.” (“[T]here is no dispute that information concerning the counterdefendants’ finances is relevant regarding the issue of punitive damages.” For example, this Court recently allowed an interrogatory that sought the identity of “real property, bank accounts, trusts, or other assets in which [a party] had a legal or beneficial interest” when considering a case in which the plaintiff sought punitive damages. In this case, if Defendants are found to have violated the TCPA, the Court will have the discretion to order punitive damages. See 47 U.S.C. § 227(b)(3), (c)(5) (providing that a court may increase the amount of an award and order treble damages “[i]f the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection”). Therefore, documents concerning the Defendants’ finances are sufficiently relevant to warrant discovery.
Katz won on the net worth issue because that would be relevant on a trebled damages analysis. The rest of the opinion is useful if your TCPA defendant tries to quash your third party subpoena.
Here, Defendants lack standing to challenge the Yahoo subpoena. “The general rule is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought.” U.S. Bank Nat’l Ass’n v. James, 264 F.R.D. 17, 18–19 (D. Me. 2010) (citation omitted). As an example, district courts in this circuit have previously found that individual internet subscribers did not have standing to challenge a subpoena served against their internet service providers. Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F. Supp. 2d 444, 450 (D. Mass. 2011) (“[T]he subpoenas at issue were served on the ISPs, not Doe 15 and Doe 2. As such, Doe 15 and Doe 2 lack standing to raise procedural objections.”).
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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