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District Court Allows Subpoenas for Information Related to Unauthorized Text Messages

Friday, October 14, 2011

Kaffko v. Quepasa Corporation, No. 11–CV–01253, 2011 BL 243370 (D. Nev. Sept. 22, 2011) In a putative class action suit, the U.S. District Court for the District of Nevada denied a defendant's motion to quash subpoenas of two non-parties who allegedly facilitated transmission of unauthorized text messages to the plaintiff's cell phone. The court held that that the subpoenas requested relevant information and were not unduly burdensome.

Unauthorized Text Messages Allegedly Sent to Cell Phones

Michelle Kaffko filed a class action complaint against the Quepasa Corporation in August 2011, alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Kaffko claimed Quepasa caused unauthorized text messages ("wireless spam") to be sent to her and other customers' cell phones in violation of the law. Kaffko sought an injunction and actual and/or statutory damages. Quepasa claimed that it only sent text messages to numbers registered by visitors to its website, and that "it has never had the capacity to generate phone numbers randomly or sequentially." Kaffko at 2. It also asserted that it had never used the short codes that would enable it to send spam to unauthorized cell phones. Kaffko alleged that a company called Neustar, Inc., (a/k/a the Common Short Code Administration) maintained a registry of short codes and their assigned users, and that BinBit, Inc., was assigned the short code that allegedly transmitted the text message sent to her. Neither company was a party to the suit. Quepasa stated that it needed information about Kaffko's cell phone in order to prepare a responsive pleading. Kaffko agreed to disclose information about her cell phone if Quepasa agreed to produce any contract that it had with BinBit during the relevant period, and to allow Kaffko to issue subpoenas to BinBit and Neustar regarding whether Quepasa sent the text message, was ever assigned the particular short code, or ever hired BinBit to transmit the text. Quepasa notified Kaffko that she could move the court to file the subpoenas before the discovery conference mandated by Fed. R. Civ. Pro. 26. Kaffko sent subpoenas to BinBit and Neustar. Quepasa claimed that the subpoenas were improper and filed a motion to quash. Quepasa asserted that Kaffko had not complied with procedural requirements under Rules 26(d)(1) and 45(b)(1), and that the subpoenas were unduly burdensome under Rule 45(c) because they sought irrelevant information.

Subpoenas Are Not Overly Burdensome

The court disposed of the procedural issues in Kaffko's favor. Under Rule 45(c), a party issuing a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Kaffko at 5. The subpoena on BinBit sought: All Documents and ESI Related To All Text Messages sent by You or on Your behalf using the Shortcode "79545" containing the term "Quepasa" from January 1, 2008 to the present. All Documents produced in response to this request shall identify the following: a. the date of transmission of the Text Message(s); b. the Third-Party assigned the Shortcode; c. the Content of the Text Message(s); d. the Cellular Telephone number(s) to which the Text Message(s) were sent; e. the Delivery Status of the Text Message(s) sent. Kaffko at 5–6. The second document request sought from BinBit all contracts, correspondence, and other documents relating to Quepasa. The third asked BitBit for all documents "identifying any Persons You contracted with to send Text Messages on Your behalf from Shortcode 79545." Id. at 6. The subpoena issued to Neustar sought "All Documents in Your possession and/or control that constitutes, manifests, contains, incorporates, reflects, pertains, indicates, discusses, mentions, and/or concerns the application for Shortcode 79545 from January 1, 2008, to present." Id. Quepasa contended that these requests were overly burdensome in asking for information about time periods and text messages not relevant to the lawsuit, and were merely "fishing expeditions" for Kaffko's counsel to identify potential class plaintiffs for possible lawsuits against other defendants. Id. The court disagreed, finding that each request was relevant to the dispute. The court observed that Kaffko limited her first request to BinBit to messages using the specific short code at issue and containing the word "Quepasa." The request for the phone numbers of recipients of the text messages related to the identities of purported class members. The second request was limited to documents referencing Quepasa. The third request sought documents relating to other parties that BinBit contracted with to send text messages with the specific short code at issue. Information about the code would help determine the appropriate defendant in the case, and was "essential" to Quepasa's defense that it never used that code. Id. at 7. The court also found Kaffko's request to Neustar was relevant to determine whether Quepasa ever used the short code. Accordingly, the court denied Quepasa's motion to quash.
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