Filed: May 10, 2018
Latest Update: May 10, 2018
Summary: ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION WILLIAM ALSUP , District Judge . An order dated April 20 summarized the ruling made on the record at the April 17 discovery hearing (Dkt. No. 59). The April 20 order directed defendant to respond to plaintiff's Request for Production of Documents Number 27, which sought a list containing the (1) date, (2) time, and (3) phone number for each instance in which defendant sent a text message "simultaneously or within seconds" of the user se
Summary: ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION WILLIAM ALSUP , District Judge . An order dated April 20 summarized the ruling made on the record at the April 17 discovery hearing (Dkt. No. 59). The April 20 order directed defendant to respond to plaintiff's Request for Production of Documents Number 27, which sought a list containing the (1) date, (2) time, and (3) phone number for each instance in which defendant sent a text message "simultaneously or within seconds" of the user sen..
More
ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION
WILLIAM ALSUP, District Judge.
An order dated April 20 summarized the ruling made on the record at the April 17 discovery hearing (Dkt. No. 59). The April 20 order directed defendant to respond to plaintiff's Request for Production of Documents Number 27, which sought a list containing the (1) date, (2) time, and (3) phone number for each instance in which defendant sent a text message "simultaneously or within seconds" of the user sending a text message opting out of future communications.
At the discovery hearing, the undersigned judge observed that if defendant conceded that any TCPA violation as to plaintiff was willful then the requested discovery may be unnecessary (Dkt. No. 60 at 10:10-13). Defendant declined to make such a concession. The undersigned judge accordingly concluded that the requested information was relevant to whether or not any TCPA violation as to plaintiff was willful or knowing. The April 20 order directed defendant to respond to plaintiff's discovery request by April 30 at noon.
In defendant's motion for reconsideration, defense counsel states that she lacked authorization to make a concession regarding willfulness at the time of the discovery hearing. Having further discussed the matter with her client, however, counsel now has such authorization. Defendant accordingly seeks leave to file a motion for reconsideration of the April 20 order. Plaintiff opposes.
Having considered plaintiff's opposition, this order agrees that the extent of defendant's willfulness with respect to any TCPA violation would be relevant to determining whether or not to award treble damages. An award of treble damages is not automatic upon a finding of willful or knowing conduct. Rather, upon finding that a defendant willfully or knowingly violated the TCPA, "the court may, in its discretion," increase the amount of the damages award to an amount "not more than 3 times" the amount otherwise available under the statute. 8 U.S.C. § 227(b)(3) (emphasis added). Although defendant has offered to concede willfulness, it has not offered to concede treble damages. Defendant's request for leave to file a motion for consideration of the April 20 order is DENIED.
By MAY 17, defendant shall file a notice with the Court confirming that it has complied with the April 20 order. Plaintiff's request for sanctions is DENIED.
IT IS SO ORDERED.
