TCPA Plaintiff Can’t Depose In-House Counsel on FCC Talks

By Chris Bruce

Nov. 26 — A putative class plaintiff can't depose the deputy general counsel of Santander Consumer USA in a collections-related case under the Telephone Consumer Protection Act, a Northern District of Illinois magistrate held, but he left the door open for another try.

Henry Espejo seeks to depose Senior Vice President and Deputy General Counsel Paul Jones about a meeting Jones and others had with the Federal Communications Commission on debt collection practices and a Santander petition to change FCC rules on TCPA consent procedures.

The U.S. District Court for the Northern District of Illinois granted Nov. 25 Santander's motion for a protective order, saying Espejo should pursue a less invasive route for the information he seeks.

Espejo says Santander's calls to his phone violate the TCPA and Jones may have information relevant to Espejo's claims.

According to the court, one of Santander's defenses is that any telephone calls it may have made to mobile phones without consent were made in error. If so, the magistrate said, “it is relevant for the plaintiff to explore why such errors occurred and whether they were related to Santander's policies with respect to consent revocation.”

The court, while saying Espejo's bid to depose Jones raises questions about the attorney-client privilege, said Jones' knowledge of the conversation at the FCC is not privileged because it involved a third party.

The court also said, Jones' title—senior vice president and deputy general counsel—may suggest that he functions in more than a purely legal role, which the court said may also raise questions about application of the privilege.

To contact the reporter on this story: Chris Bruce in Washington at cbruce@bna.com

To contact the editor responsible for this story: Joe Tinkelman at jtinkelman@bna.com