United States District Court, E.D. North Carolina, Western Division
DEANNA HICKS, on behalf of herself and others similarly situated, Plaintiff,
HOUSTON BAPTIST UNIVERSITY, Defendant.
E. Gates United States Magistrate Judge.
case, arising under the Telephone Consumer Protection Act, 47
U.S.C. § 227 ("TCPA"), comes before the court
on a motion (D.E. 42) with an incorporated
memorandum by plaintiff Deanna Hicks
("plaintiff) seeking an order compelling defendant
Houston Baptist University ("defendant") to respond
to discovery sought in plaintiffs first set of
interrogatories and first requests for production of
documents, and compelling defendant's marketing agent,
nonparty Educate Online, Inc. ("Education
Online") to respond to a deposition subpoena
duces tecum seeking similar discovery. Defendant
filed a response in opposition (D.E. 43) to the motion
supported by a declaration (D.E. 44). In its response,
defendant advances arguments on behalf of itself and Educate
Online, although the counsel who filed the response did so
solely in the name of defendant. No attorney has otherwise
entered an appearance on behalf of Educate Online. Plaintiff
identifies the discovery requests subject to her motion as:
interrogatories nos. 1 -4 and 7- 13; requests for production
nos. 2-7, 17-19, 21-23, 25, 27-28, 30-32, 36-37, and 43-44;
document requests nos. 2, 4, 5, and 7-20 in the subpoena; and
deposition topics nos. 2, and 5-12 in the subpoena.
See Def.'s Mem. 5. For the reasons set forth
below, the motion will be allowed.
a former student at Austin Community College
("ACC"), commenced this lawsuit as a result of two
unsolicited telephone calls she alleges she received on her
cell phone on 13 September and 14 September 2017. Compl.
(D.E. 1) ¶¶ 23-24. According to plaintiff, the
autodialed calls were made on behalf of defendant and urged
plaintiff to contact defendant to learn about its nursing
program, notwithstanding the fact that plaintiffs cell phone
number was registered on the National Do Not Call Registry,
Id. ¶¶ 20, 23. Plaintiff alleges that
while enrolled at ACC she signed a document informing her
that ACC would not share or sell her personal information.
Id. ¶ 22. She contends that defendant placed
these unsolicited calls to her without her express written
consent in violation of the TCPA. Id. ¶ 19.
brings this action on behalf of herself and putative class
members similarly situated. Id. ¶ 33.
Specifically, in her complaint, plaintiff proposes to assert
her claims on behalf of the following two classes:
Autodialed No Consent Class: All persons in the
United States from four years prior to the filing of this
action through the present who (1) Defendant (or a third
person acting on behalf of Defendant) called, (2) on the
person's cellular telephone, (3) using an autodialer, and
(4) for whom Defendant claims it obtained prior express
written consent in the same manner as Defendant claims it
supposedly obtained prior express written consent to call the
Do Not Call Registry Class: All persons in the
United States who (1) Defendant (or a third person acting on
behalf of Defendant) called more than one time on his/her
cellular telephone; (2) within any 12-month period (3) where
the cellular telephone number had been listed on the National
Do Not Call Registry for at least thirty days; (4) for the
purpose of selling Defendant's products and services; and
(5) for whom Defendant claims it obtained prior express
consent in the same manner as Defendant claims it obtained
prior express consent to call the Plaintiff.
Id. ¶ 33. Plaintiff asserts two claims: the
first for violation of the TCP A on behalf of herself and the
autodialed No Consent Class (id. ¶¶
39-45), and the second under the same statute on behalf of
herself and the Do Not Call Registry Class (id.
denies the material allegations in plaintiffs complaint.
See generally Ans. & Am. Aff. Defs. (D.E. 22).
Among other defenses, defendant asserts that plaintiff and
other purported class members consented to receipt of its
telephone calls. See, e.g, . Id. Def.'s 5th Am.
Aff. Def. ("Plaintiffs claims are barred, in whole or in
part, because she and/or the putative class members provided
consent to receive phone calls."), Def.'s 6th Am.
Aff. Def. ("The claims asserted by the putative class,
or some of them, are barred, in whole or in part, because
such class members provided written consent to receive
communications from Defendant.").
March 2018, plaintiff served on defendant her first set of
interrogatories and first requests for production.
See Interrogs. (D.E. 42-1 at 8-17); Prod. Reqs.
(D.E. 42-1 at 1-7). On 25 May 2018, defendant responded to
plaintiffs interrogatories and production requests.
See Resps. to Interrogs. (D.E. 42-1 at 51-67);
Resps. to Prod. Reqs. (D.E. 42-1 at 23-50). On 27 April 2018,
plaintiff served a subpoena on Educate Online, pursuant to
Federal Rule of Civil Procedure 30(b)(6), seeking deposition
testimony and documents from it. See Subp. (D.E.
42-1 at 18-22). On 16 May 2018, Educate Online served
objections and responses to plaintiffs
subpoena. See Objs. & Resps. to Subp.
(D.E. 42-1 at 69-84).
instant motion seeks production from defendant and Educate
Online of information and documents relating to persons at
schools other than ACC who received any cellular telephone
calls from or on behalf of defendant, including information
and documents relating to the calls to such persons.
Plaintiff has demonstrated that she adequately attempted to
resolve the matters at issue on her motion without court
intervention through pre-filing conferral with defendant and
Educate Online about their objections to producing the
information and documents sought in her motion. See
Mot. 12; Fed. R. Civ. P, 37(a)(1); Loc. Civ. R. 7.1(c), E.D.
APPLICABLE LEGAL PRINCIPLES
Federal Rules of Civil Procedure enable parties to obtain
information by serving requests for discovery on each other,
including interrogatories and requests for production of
documents. See generally Fed. R. Civ. P. 26-37. Rule
26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its ...