The case of the day is Brey Corp. v. LQ Management, LLC (D. Md. 2012). Brey, a Maryland corporation, brought a putative class action against LQ, a Texas corporation, for violation of the Telephone Consumer Protection Act. The TCPA prohibits the use of fax machines to send unsolicited advertisements. Brey claimed that it had received two unsolicited advertisements from LQ. Of course, on those facts a lawsuit would make no sense, but Brey claimed to sue on behalf of a class of thousands or tens of thousands. With statutory damages of $500 per violation of the statue, the economics become easier.
In any case, during discovery, Brey served several document requests, but by May 2012, LQ had only produced 11 pages of documents. Similarly, its interrogatory answers were “only minimally helpful.” In an attempt to get more information, Brey served a subpoena on j2 Global, LQ’s third-party fax service provider, but j2 told Brey that its Canadian subsidiary, Protus, had information that would be responsive to the requests and that Protus could not produce the responsive information without an order from an Ontario court.
The judge granted Brey an extension of the discovery schedule and issued a letter rogatory to the Ontario Superior Court of Justice. It reasoned that the information Brey was seeking was important to the case and it could not be obtained from another party, and it noted that Brey had taken steps to minimize the delay that would result from the use of the letter rogatory procedure, namely, hiring local counsel in Ontario. Parenthetically, hiring local counsel is almost always wise, whether the case involves a letter rogatory or a letter of request under the Hague Evidence Convention. Penny wise, pound foolish!