Bifurcated Discovery: A Crucial Tool for TCPA Class Action Defendants

On Behalf of | May 22, 2023 | TCPA

Class discovery in a class action case is burdensome and expensive. It is often unavoidable unless an early settlement is reached. Moving for bifurcated discovery is one way for a class action defendant to avoid class discovery.

How does bifurcated discovery work in a class action case?

The named plaintiff in a class action brings an individual claim(s) and a class claim(s). The class claim is not viable unless the plaintiff’s individual claim is viable. The class claim is rendered moot when the plaintiff lacks a viable individual claim.

Bifurcating discovery allows the parties to first focus on discovery related to the individual claim. It also delays class discovery. Class discovery will only commence once discovery into the individual claim ends, and it is determined that the plaintiff has a viable individual claim.

On the other hand, the case will end before class discovery begins if, at that time, the individual claim can be resolved in the defendant’s favor. Therefore, bifurcated discovery is a substantial advantage for class action defendants.

Obtaining bifurcated discovery is contingent on there being specific, non-overlapping issues with the individual claim.

Harris v. Shore Funding Sols. Inc.,1 is a TCPA class action case. There, the defendant, Shore Funding, was successful in its bid for bifurcated discovery.

The Plaintiff’s individual claim was premised on her receipt of a single prerecorded call.2 Plaintiff alleged that the call violated the TCPA. Plaintiff also alleged that on the call she spoke with someone who identified themselves as a Shore Funding employee.3 Thus, Plaintiff sought to hold Shore Funding liable.

  •  Shore Funding requested bifurcated discovery.

Shore Funding sought bifurcated discovery based on two issues specific to Plaintiff’s individual claim. The first was whether it was Shore Funding that called Plaintiff. The second was whether it was Plaintiff’s telephone number that received the call at issue.4

Shore Funding was able to present facts to the court that demonstrated the existence of these issues. The most salient facts were:
• Shore Funding had no record of the call; and
• The telephone number that received the call had previously been advertised in connection with a home building business.5

As the Court explained, bifurcated discovery is proper when there is a threshold, dipositive issue with a plaintiff’s individual claim that would make the class claim moot.6 Bifurcated discovery is unlikely to be granted when the individual and class issues substantially overlap. In that scenario, bifurcated discovery would likely result in duplicative discovery efforts and therefore is disfavored.7

  • The court granted bifurcated discovery.

The court, in considering whether to bifurcate discovery, found that the two issues with the individual claim could be resolved through limited discovery. Specifically, the court believed that the issues could be resolved through limited discovery into the Plaintiff’s cell phone records and Shore Funding’s call records for the call date.

The Plaintiff would have no viable individual claim if the limited discovery showed that Shore Funding did not make the call and/or that the called number was not Plaintiff’s. That would moot the class claim. Thus, the court found that these two issues with Plaintiff’s individual claim and the related discovery would not overlap with the class claim. The court granted bifurcated discovery on those grounds.8

As a result, Shore Funding may be able to entirely avoid the burden and expense of class discovery.

It is crucial for TCPA class action defendants to perform an early investigation into arguments for bifurcated discovery. A successful bid for bifurcated discovery is an important early victory for a class action defendant that can lead to a favorable resolution.

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1. 23-CV-00789 (JMA) (JMW), 2023 U.S. Dist. LEXIS 70186 (E.D.N.Y. Apr. 21, 2023)2. Id. at *1.3. Id.4. Id. at *5.5. Id. at *5-7.6. Id. at *3.7. Id. at *3-4.8. Id. at *7-8.