TCPA v. Young
23CA0891
| Colo. Ct. App. | Sep 19, 2024Background
- TCPA Litigator List (Plaintiff), created by Michael O'Hare, operates a website and service identifying potential Telephone Consumer Protection Act (TCPA) litigators, allowing subscribers to "scrub" their call lists.
- Ringba (Defendant) is a call tracking service; Adam Young is its CEO; Tubmanburg Limited previously owned Ringba.
- In April 2020, Young subscribed to Plaintiff’s service, downloaded the Litigator List, and soon after, an acquisition discussion and NDA (between Plaintiff and Tubmanburg only) occurred. Plaintiff refused Ringba’s acquisition offer.
- Ringba later launched its own scrubbing service (TCPA Shield), which Plaintiff alleges incorporated its proprietary list in violation of its website terms.
- Plaintiff sued for breach of contract, unjust enrichment, fraud, civil conspiracy, and violation of the Colorado Uniform Trade Secrets Act. Extensive discovery disputes ensued, with Plaintiff repeatedly failing to timely disclose key discovery materials.
- The district court granted summary judgment for Defendants (except on trade secrets), issued sanctions for Plaintiff’s misconduct, and ultimately terminated the case as a discovery sanction before trial. Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Termination/sanction under Rule 37 | Discovery delays were justified, no prejudice, sanction extreme | Pattern of noncompliance, material discovery withheld | Termination proper: severe, repeated noncompliance |
| Exclusion of expert (Frankovitz) | Testimony should be allowed; modification was justified | Reckless/unreliable testimony, relied on bad information | No abuse; exclusion warranted |
| Summary judgment (breach of contract, fraud) | Genuine fact issues; economic loss rule not a bar | No viable fact dispute; economic loss rule applies | Summary judgment proper/harmless due to case termination |
| Discovery misconduct standard | No clear and convincing proof of willfulness | Colorado standard is abuse of discretion | Abuse of discretion standard applies, not clear & convincing |
Key Cases Cited
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (dismissal as discovery sanction requires extreme circumstances of discovery abuse)
- M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380 (Colo. 1994) (appellate deference for trial court fact-finding and credibility determinations)
- Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564 (Colo. 2009) (dismissal appropriate for extensive nondisclosure)
- People v. Lee, 18 P.3d 192 (Colo. 2001) (least severe discovery sanction principle)
- Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000) (dismissal for willful or flagrant disregard of discovery obligations)