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?
In a class action, the named plaintiff brings an individual claim(s) and a class claim(s). If the plaintiff doesn’t have a viable individual claim, the class claim can be rendered moot.
Bifurcating discovery allows the parties to first focus on discovery related to the individual claim. At the same time, it also delays class discovery. Class discovery will only commence once the individual claim discovery ends and it has been determined that the plaintiff has a viable individual claim.
If instead the individual claim can be resolved in the defendant’s favor at that time, then the case will end before class discovery ever begins. Therefore, bifurcated discovery can be a substantial advantage for TCPA class action defendants.
As demonstrated below, obtaining bifurcated discovery is contingent on there being specific issues with the individual claim that do not overlap with class claim issues.
In Harris v. Shore Funding Sols. Inc., 1 a TCPA class action case, 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 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 the telephone number that received the call at issue was Plaintiff’s. 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, dispositive 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, in considering whether to bifurcate discovery, found that the two issues raised by Shore Funding could be resolved by limited discovery into Plaintiff’s individual claim. 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.
If that discovery established that Shore Funding did not make the call, or that the called number was not Plaintiff’s, then the Plaintiff would have no viable individual claim. That would then moot the class claim. Thus, the court held that these two issues with Plaintiff’s individual claim and the related discovery would not overlap with the class claim and granted bifurcated discovery. 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 defendant and can lead to a favorable resolution.
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