Big Evidentiary Win in TCPA Suit—Evidence of Defendant’s Prior Lawsuits, Settlements, and Communications With Third Parties Inadmissible in Individual TCPA Suit for Damages

Discovery in TCPA suits is a major driver of cost and frustration for TCPA Defendants. Even Plaintiffs in individual suits will often serve overly broad and abusive discovery demands seeking, inter alia, all records of previous TCPA complaints, lawsuits, or settlements. The Plaintiff will claim this information is relevant to prove “willfulness,” yet no TCPA willfulness formulation turns on whether a Defendant has violated the TCPA in the past and/or whether the Defendant willfully violated the statute as to someone else.

While this battle often plays itself out in the discovery phase, the final incarnation of the fight—of course—occurs at trial; i.e. will the Court admit evidence of past purported violations of the TCPA as evidence that the Defendant violated the TCPA as to a specific Plaintiff. Well in  Johnson v. Capital One Servs., Case No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160 (S.D. Fl. Oct. 15, 2019) the court held directly that such evidence would not be admissible because it simply was not relevant to the case.

The analysis here is short and sweet: “ Capital One seeks to preclude Plaintiff from presenting evidence of other litigation or settlements involving Capital One. The Court agrees that any information or evidence pertaining to other litigation and settlements is irrelevant, and the lack of probative value of any such evidence is substantially outweighed by the danger of unfair prejudice. The Motion as to this issue is granted.”

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