Nicholas Malfitano May 25, 2016, 8:45am


PHILADELPHIA – A hearing has been set in a Philadelphia federal court for June 3, in order to resolve a discovery dispute connected to a putative class action lawsuit against Yahoo, Inc. and its now-discontinued text message email alert service.

After consideration from Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania, the hearing on Bill H. Dominguez’s motion to compel production of documents and Yahoo’s motion for discovery-related requests will be held on Friday, June 3 at the James A. Byrne U.S. Courthouse in Philadelphia.

Dominguez had filed a motion on May 16 to ask for the Court’s assistance to “compel Yahoo to produce complete responses to plaintiff’s requests for production of documents and a knowledgeable corporate representative for deposition, and to extend the discovery and briefing deadlines related to defendant’s renewed motion for summary judgment.”

In response, Yahoo requested the Court stipulate all expert reports served by either party pursuant to the amended stipulation shall be accompanied by all disclosures, and serve expert discovery requests on the following schedule: To the other party’s affirmative expert(s) by June 13 with responses and documents due by June 20, and to the other party’s rebuttal expert(s) by Aug. 1 with responses and documents due by Aug. 8.

Alternatively, Yahoo requested the Court order the parties “to meet and confer and agree on a schedule for written expert discovery necessary to support or oppose the renewed motion for summary judgment on or before May 24.”

In the end, Baylson set the hearing for June 3 and ordered any and all responses to the parties’ respective motions be filed by June 1.

Dominguez claims he received 27,809 texts from Yahoo after purchasing a cell phone that used the number of its previous owner, who had signed up for a text alert every time an email was received.

Before filing this suit, Dominguez claims he contacted Yahoo to be taken off the text message alert, but was told because he was not the account holder of the email address registered to the phone, he couldn’t authorize a removal.

The text message alert service was discontinued in October 2013.

Dominguez filed his class action lawsuit under the TCPA, but it was dismissed after the district court found his definition of an auto-dialer – the device used to send him the text messages from Yahoo – wasn’t the same as the definition the TCPA used for an auto-dialer.

A July order updated the TCPA’s 1992 definition of an auto-dialer, which was as U.S. Court of Appeals for the Third Circuit Judge Thomas Ambro said, “A reflection of the times.” If the system had a “latent or potential capacity” to place auto-dialed calls, according to the order, the statutory definition would be satisfied.

Yahoo previously filed a motion for summary judgment in January, claiming their Email SMS Service “has no latent or potential capacity to generate telephone numbers randomly or sequentially”, and was therefore entitled to summary judgment.

The plaintiff is represented by David A. Searles, Geoffrey H. Baskerville, John Soumilas, Mark D. Mailman, Lauren K.W. Brennan and James A. Francis of Francis & Mailman, in Philadelphia.

The defendant is represented by Brian T. Feeney, Lori Chang, Wendy Mantell and Ian C. Ballon of Greenberg Traurig, in both Philadelphia and Los Angeles.

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-01887

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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