ORDER RE: JOINT DISCOVERY LETTERS [DOCKET NOS. 79, 110, 111]

DONNA M. RYU, Magistrate Judge.

This putative class action brought under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 ("TCPA"), challenges Defendants' alleged practice of sending unsolicited facsimile advertisements, or so-called "junk faxes." Before the court are three joint discovery letters. [Docket Nos. 79, 110, 111.] The court held a hearing on these disputes on November 13, 2014. This order summarizes the rulings made during that hearing.

I. DOCKET NO. 79

In Docket No. 79, Plaintiffs move to compel Defendants to produce all fax advertisements that did not include an opt-out notice that Defendants sent during the class period.1

Defendants contend that Plaintiffs' request is overbroad, irrelevant, and unduly burdensome, because the advertisements are not relevant to the question of class certification and are therefore outside the scope of precertification discovery. The court notes that the presiding judge in this matter, the Honorable Jon S. Tigar, has not ruled on whether discovery should be bifurcated between class certification and merits discovery. As this court noted at the hearing, the line between "class certification discovery" on the one hand, and "pure merits" discovery on the other, can be difficult to discern. In any event, the requested discovery is relevant to the class certification issue, specifically to the issues of typicality and commonality. Furthermore, although Defendants argue that the production would be burdensome, they fail to articulate the nature and extent of the claimed burden.

Accordingly, Plaintiffs' motion to compel is granted, and Defendants must produce exemplars of all unique fax ads without opt-out notices sent by Defendants during the class period. The production shall not be limited to those ads received by the two named Plaintiffs. However, as discussed at the hearing, the discovery request propounded by Plaintiffs is too broadly worded, and could capture documents well beyond the "fax advertisements without opt-out notices" that are the subject of this case. The parties shall have a detailed and specific meet and confer session so that they can identify the types of documents that fall within the scope of this case, and those that are outside that scope. If the parties are unable to reach agreement, they shall file a joint discovery letter following this court's procedures, see Docket No. 102, by November 20, 2014.

II. DOCKET NO. 110

In Docket No. 110, Plaintiffs move to compel documents showing that the recipients of fax advertisements sent by Defendants had given Defendants prior express permission to send those faxes.

Defendants object that Plaintiffs' discovery request seeks confidential and proprietary customer lists. However, Defendants offer no argument for why the parties' stipulated protective order, see Docket No. 57, would be inadequate to protect their confidential information; indeed, the court finds that the parties' protective order offers sufficient protection to meet Defendants' concern.

Defendants also argue that the requested documents are not relevant to the issue of class certification. Plaintiffs contend, and the court agrees, that evidence that sheds light on the question of whether the permission defense is an individualized inquiry or a generalized argument is relevant to the class certification issues of typicality, commonality and predominance.

Thus, the court grants Plaintiffs' motion to compel Defendants to produce documents relating to the permission defense. However, the court echoes Defendants' concern that Plaintiffs' request as currently written will be burdensome. Accordingly, the parties shall meet and confer regarding a more efficient way for Plaintiffs to discover information about Defendants' permission defense. For example, if Defendants contend that a customer's software registration constitutes that customer's express permission to receive fax ads, Defendants could produce an example of one customer's software registration, and explain in an interrogatory response which recipients allegedly granted Defendants permission to send fax ads by completing similar software registrations. If the parties cannot agree on a more streamlined way for Defendants to produce the discovery sought by Plaintiff without judicial intervention, they shall file a joint discovery letter on the dispute by November 20, 2014.

III. DOCKET NO. 111

In Docket No. 111, Plaintiffs move to compel the production of documents containing information about recipients of the fax ads sent by Defendants during the class period, including their identities and fax numbers, and the dates and times they received transmissions.2 As discussed at the hearing, the court finds this information to be relevant to class certification issues, and further finds that Defendants' concerns about the recipients' confidential information are adequately addressed by the parties' protective order. Accordingly, Plaintiffs' motion to compel is granted. The universe of recipients shall be bounded by the group of "fax advertisements" identified through the parties' meet and confer process outlined above regarding the ruling on Docket No. 79.

IT IS SO ORDERED.