Plaintiffs’ Attorneys Seek to Impose Discovery Burdens on Non-Party Senders of Fax Messages

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A recent order from the U.S. District Court in Ohio illuminates the significant burdens that third party senders of fax messages may face should they find themselves entangled in Telephone Consumer Protection Act (TCPA) litigation.  The Opinion and Order partially grants plaintiff’s motion to preserve evidence in the possession of WestFax—who is not a party to the lawsuit—related to advertising faxes sent by the defendant.  Swetlic Chiropractic & Rehabilitation Center, Inc. v. Foot Levelers, Inc., No. 2:16-CV-236, 2016 WL 1657922 (S.D. Ohio Apr. 27, 2016). 

Plaintiff Swetlic Chiropractic alleged that the defendant sent advertisements in violation of the TCPA, and contends that non-party WestFax may have transmission reports and other electronically stored information (ESI) identifying fax numbers that received advertising faxes.  Because WestFax’s policy is to automatically delete transmission reports within 60 to 90 days of a fax broadcast, the plaintiff sought a court order compelling WestFax to preserve certain ESI.  To that end, the plaintiff requested that WestFax preserve a sweeping amount of ESI, including all email, databases, logs, files, calendars, spreadsheets, and other electronic data containing any information regarding the defendant, and to do so through obtaining an exact mirror (“bit stream”) image of its online storage mechanisms.

The Court agreed with the plaintiff that some ESI must be preserved through a court order due to the “real danger” of relevant evidence being destroyed due to WestFax’s retention policies.  Finding the plaintiff’s request to be overly broad in scope, however, the Court concluded that requiring preservation of far more than the transmission reports and other ESI related to the defendant’s advertising faxes would impose an undue burden on WestFax.  Also objecting to the plaintiff’s attempt to direct the method of preservation, the Court noted that compelling forensic imaging is not always appropriate in civil discovery as a means to preserve electronic evidence.  Accordingly, the Order directs WestFax to preserve transmission reports or other documents and ESI identifying fax numbers that received the defendant’s advertising faxes, using forensic imaging or any other technique at its discretion.