TCPA v. Young
23CA0891
| Colo. Ct. App. | Sep 19, 2024Background
- TCPA Litigator List, founded by Michael O'Hare, offers a subscription service allowing clients to screen (or "scrub") phone lists to avoid calling individuals likely to sue under the Telephone Consumer Protection Act (TCPA).
- Adam Young, CEO of Ringba (then owned by Tubmanburg Limited), purchased a subscription, downloaded TCPA Litigator List’s database, and initiated purchase discussions, but the acquisition never occurred.
- Ringba later launched a similar service, TCPA Shield, which incorporated many of the same names from TCPA Litigator List’s database, leading TCPA Litigator List to file suit for breach of contract, unjust enrichment, fraud, civil conspiracy, and violation of the Colorado Uniform Trade Secrets Act.
- During discovery, Ringba alleged that TCPA Litigator List failed to disclose critical evidence, including website source code and call records, and moved for terminating discovery sanctions.
- After multiple discovery disputes and late disclosures by the plaintiff, including evidence showing Young may have had permission to download the list, the district court excluded the plaintiff's expert and ultimately terminated the case as a sanction for plaintiff’s conduct.
- On appeal, TCPA Litigator List challenged the summary judgment on its claims and the sanctions terminating its case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Expert (Frankovitz) | Excluding was too harsh; justified delay | Reckless/unsupported expert opinions harmed case | No abuse of discretion in exclusion |
| Terminating Sanction (Case Dismissal) | Sanction too severe; disclosure complied | Flagrant discovery abuses justified termination | No abuse of discretion in dismissal |
| Summary Judgment on Breach of Contract and Fraud | Factual disputes remain; should proceed | No factual dispute; claims unsupportable | Any error harmless—case terminated |
| Discovery Conduct | All relevant evidence was produced | Critical evidence withheld prejudicially | Plaintiff's discovery conduct egregious |
Key Cases Cited
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (standards for discovery sanctions)
- Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892 (Colo. 2008) (abuse of discretion standard)
- M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo. 1994) (appellate deference to factfinding)
- Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000) (termination as sanction for willful discovery misconduct)
- Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564 (Colo. 2009) (affirming dismissal for extensive nondisclosure)
- Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691 (Colo. App. 2006) (harmless error doctrine for district court judgments)