UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Philip Charvat on behalf of himself and )

others similarly situated, )

)

Plaintiff, ) Case No. 1:12-cv-5746

)

v. ) Judge Wood

)

Elizabeth Valente, Resort Marketing Group, Inc., ) Magistrate Judge Rowland

Travel Service Network, Inc., TSN Travel, Inc., )

TSN International, Inc., TSN Marketing LLC, )

Carnival Corporation & PLC, )

Royal Caribbean Cruises, Ltd., )

NCL (Bahamas) Ltd., )

)

Defendants. )

__________________________________________)

ROYAL CARIBBEAN CRUISES, LTD APPEAL OF PORTION OF

MAGISTRATE’S ORDER ON ITS MOTION TO COMPEL

ANSWERS, OR BETTER ANSWERS, TO FIRST REQUEST FOR PRODUCTION

I. Issues Before the Court

This appeal stems from Royal Caribbean Cruises Ltd.’s (“RCL”) Motion to Compel 

Answers, or Better Answers, to its First Request for Production, which the Magistrate Judge 

granted in part and denied in part. [DE 214, 214-1, 214-2, 21-3; 229]. RCL seeks the Court’s 

review of three items that the Magistrate Judge denied, to wit: (1) the Plaintiff need not produce 

his income tax returns (Request #10); (2) the Plaintiff need not produce documents relating to his 

TCPA litigation internet activity (Request #40); and (3) the Plaintiff need not produce 

documents pertinent to prior litigation (Requests ## 59-60). 

By denying certain of RCL’s discovery requests, the Magistrate Judge made a 

determination as to the relevance and dispositive nature of the Plaintiff’s litigation history on his 

ability to act as a class representative and that such a determination was improper, because that 

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issue was never referred, and it was premature, because the motion at issue is a discovery motion. 

It is well-settled that information need not be relevant or admissible to be discoverable. “Under 

the liberal standard of discovery relevance, material is discoverable if it is admissible or 

‘reasonably calculated to lead to admissible evidence.’” APC Filtration, Inc. v. Becker, 2007 WL 

3046233 (N.D. Ill. Oct. 12, 2007) (quoting Fed. R. Civ. P. 26(b)(1)). The information sought in 

the discovery requests discussed below is, at a minimum, discoverable. This information may be 

considered in determining the Plaintiff’s credibility, his fitness to act as a class representative, 

and the overall superiority and predominance of the class action mechanism in prosecuting this 

particular lawsuit. For these reasons, RCL respectfully requests that this Court overrule the 

Magistrate Judge’s November 20, 2014 ruling as set forth below. 

II. Basis for the Requested Discovery and Procedural History 

In order to understand why RCL requires the production of the discovery subject to this 

appeal, a brief background on the case as it has developed to date is essential. This is a case 

where a serial Plaintiff who earns money from suing companies for purported Telephone 

Consumer Protection Act (“TCPA”) violations brought a class action suit against a fully 

independent travel agency, Defendant Resort Marketing Group1(“RMG”), for alleged TCPA 

violations. In his Complaint, the Plaintiff included three highly competitive cruise lines as 

Defendants under a “vicarious liability theory.” The premise of the Plaintiff’s class action against 

the competitor cruise lines is that the independent travel agency purportedly sold cruise packages 

for the them via illegal telemarketing, and at the direction and control of these cruise lines. [DE 

58 ¶¶ 18-72].

The facts developed through discovery, however, do not support the Plaintiff’s agency 

theory. First of all, the manager of RMG and co-defendant, Beth Valente, has testified that there 

 

1 RMG is also referred to as “Travel Services” in certain documents and by certain witnesses.

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are absolutely no contractual agreements between RMG and Carnival Corporation, Royal 

Caribbean Cruises, Ltd. or NCL (Bahamas) Ltd. to place robocalls on their behalf.2To the 

contrary, the contacts between RMG and the cruise lines that have been produced to date 

explicitly prohibit RMG from making automatic or pre-recorded calls on or behalf of the cruise 

lines. In addition, Ms. Valente testified that RMG telemarketed from 2010 through 2014 to for 

the purpose of promoting and selling memberships in RMG’s travel and vacation club, not to 

promote the competitor cruise lines and sell their cruises. At the time of RMG’s telemarketing 

calls, consumers did not purchase any cruises; rather, they received a free trial membership to the 

RMG travel and vacation club and pre-paid for taxes for a cruise that RMG may or may not book 

for them within the next eighteen months, depending on whether or not the consumer wished to 

go on the free cruise offered by RMG. The telemarketing was thus for the benefit and profit of 

RMG, not the Defendants and competitor Cruise Lines.

The Plaintiff avoided dismissal on the vicarious liability theory because out of the four 

(4) residential telephone calls that he received from RMG, during two (2) of the calls, the 

Defendant travel agency employees made reference to RMG being hired by the competitor 

Cruise Line Defendants to “fill empty cabins” and another travel agency employee said that the 

call was made “on behalf” of each of the competitor Cruise Line Defendants. [DE 67-1 pp. 1-3, 

5-9]. Significantly, RMG has produced many telephone scripts it used during telemarketing 

calls, and not one script contains any language indicating that RMG works on behalf of the 

Defendant Cruise Lines nor do they say anything about being hired by them or filling cabins for 

them. 

A former employee of RMG was also deposed in this case because she was one of the 

telemarketers whose voice was on one of the calls placed to Mr. Charvat. See Fourth Telephone 

 

2 The Defendant Cruise Lines have also responded to discovery confirming that there are no such contracts.

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Call received by the Plaintiff at DE 67-1 pp. 5-9; Deposition of Telicia Compton at 109:16-24; 

110:1. Ms. Compton definitively testified that the purpose of the call was to market and promote 

a free membership in RMG’s travel and vacation, not the cruise lines. See Deposition of Telicia 

Compton at 73:14-24, 74:1-4, 112:1-9, 21-24; 113:1-9, 14-24, 114:1-4, Ex. “C.” She conceded 

that the statement that she made during her call, that the travel agency was hired by the cruise 

lines, was not on her telemarketing script and that no one ever told her to say this, she was not 

trained to say this, and, that by saying it, she went off script. See Deposition of Telicia Compton 

at 69:12-24; 70:1-9, 17-24; 71:1-2; 72:4-17; 73:14-24; 74:1-4. 

This case is therefore very different from the typical TCPA class action case, in which all 

putative class members may have received an identical unwanted fax or telephone same call 

from a distributor hired by a manufacturer to sell the manufacturer’s products. In this case, there 

are no agreements between the cruise lines regarding telemarketing endeavors, and there is no 

evidence that RCL or NCL were even aware that RMG was making automated pre-recorded calls 

prior to the filing of this lawsuit. Only two of four calls made any reference to being hired by the 

cruise lines to support a vicarious liability theory. The manager of RMG has testified that RMG 

was making calls for its own benefit and profit and using the Cruise Line Defendants cruises as 

an incentive to consumers to join their vacation and travel club. RCL and NCL have served 

interrogatory answers confirming that they were not aware that RMG was promoting its travel 

and vacation club memberships by offering promotional free cruises via automated pre-recorded 

telephone calls.

Ms. Valente, RMG’s Manager, testified that each of the calls made to the Plaintiff were 

placed because the travel agency purchased a lead wherein the Plaintiff’s daughter had invited 

contact, which is undisputedly a defense in TCPA cases. See Deposition of Defendant, Beth 

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Valente pp. 172 1.21-173 1.18; 176 1.21-177 1.4. The Plaintiff, however, has denied that he or 

anyone else in his family consented to be contacted. [DE 58 ¶¶ 51]. Thus, the Plaintiff’s prior 

express consent is very much at issue in this case. The Plaintiff himself has filed over 100 TCPA 

cases, and in one case, during the pendency of a Motion for Sanctions that had been filed against 

him, he entered into a settlement agreement and agreed order that required him to place his 

residential telephone numbers on the National and State Do-Not-Call registries (something that 

he had theretofore refused to do). See Deposition of the Plaintiff pp. 3631.16-3641.10; 3661.5-

17. He nevertheless claims that he somehow still gets as many robocalls now as he did before 

registering his telephone numbers. See Deposition of the Plaintiff pp. 1661.9-1671.19. As part of 

his TCPA business, the Plaintiff has set up a system in his home where, for years, he and his 

family have recorded virtually every telephone call placed to his residence. He has (and has 

instructed his family to) complete a form he created that logs information about these telephone 

calls, and has saved these forms in a TCPA-library. He also belongs to internet forums where he 

solicited information about this case from other serial TCPA plaintiffs. [DE 223-1 p. 8]. 

RCL, therefore, believes that the Plaintiff is actively inviting these telephone calls to his 

residence by submitting requests for information and completing contest entry forms via the 

internet (and perhaps otherwise) that result in his being contacted on a regular basis. 

Significantly, when asked about inviting calls at his deposition, the Plaintiff did not deny inviting 

them and stated instead that “to the best of his knowledge” he does not. See Deposition of the 

Plaintiff at p. 1681.21-1691.3. In order to obtain the requisite proof of this scheme and of the 

consent defense, RCL needs to obtain discovery that sheds light on the Plaintiff’s personal 

financial motivation for pursuing these lawsuits and the manner in which the Plaintiff invites 

these calls, including the calls in this case. 

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III. Standard of Review 

This Court’s review of the Magistrate Judge’s non-dispositive Order concerning RCL’s 

Motion to Compel is governed by Rule 72(a) of the Federal Rules of Civil Procedure, which 

provides, “The district judge to whom the case is assigned shall consider such objections and 

shall modify or set aside any portion of the Magistrate’s Order found to be clearly erroneous or 

contrary to law.” Fed. R. Civ. P. 72(a). “A finding is clearly erroneous when although there is 

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake was committed.” Fid. Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. 

Co., 2002 U.S. Dist. LEXIS 11916, *8 (N.D. Ill. 2002). However, as to pure issues of law, “there 

is no practical difference between review” under Rule 72(a) and 72(b), which is de novo review. 

See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010). Since the Magistrate Judge 

based her rulings on legal precedent, the appropriate review is de novo.

IV. The Magistrate Judge’s Denial of RCL’s Motion to Compel Several Discrete 

Requests for Production Misinterpreted the Legal Authorities 

A. The Plaintiff’s Tax Returns Should Have Been Compelled

Request for Production Number 10 sought “All of Phillip Charvat’s tax returns that 

reflect income from filing serial TCPA litigation for the past ten (10) years.” [DE 214-2 p. 9]. 

RCL sought these documents for three primary reasons: (1) because the Plaintiff has put his 

credibility at stake by claiming to be an advocate to “punish” companies for making robocalls 

while RCL believes he pursues these cases for his own financial gain; (2) the Plaintiff’s 

credibility concerning his motivation for pursuing serial TCPA litigation may impact the 

determination of his adequacy as a potential class representative; and (3) the Plaintiff’s own 

TCPA litigation earnings track record will show a profitable cottage industry of individual 

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lawsuits that were filed by the Plaintiff individually which undermines his contention in this 

lawsuit that a class action is a superior means of adjudication.

The Plaintiff, of course, “declined” to produce the documents because they were 

purportedly “not reasonably calculated to lead to discoverable evidence,” and the request was 

“overbroad, oppressive and calculated to violation (sic) the plaintiff’s privacy rights.” Id. RCL 

sought to compel the tax returns because it is RCL’s belief that these lawsuits are invited by the 

Plaintiff to earn a living and that he is less a consumer advocate and more a TCPA provocateur. 

RCL is simply seeking evidence to prove that the Plaintiff’s primary motivation in pursuing 

these lawsuits is monetary in nature, and that income derived from his TCPA litigation is his 

primary source of personal income, and this evidence will directly contradict his testimony that 

he pursues TCPA litigation for other reasons. RCL believes that the Plaintiff’s TCPA income 

will demonstrate that he has created a cottage industry of TCPA litigation, and that he is actually 

in this lawsuit for the money. RCL sought the Plaintiff’s tax returns to demonstrate this, and if 

the tax returns show what RCL suspects they will, the tax returns will also undermine the 

Plaintiff’s credibility, and therefore his adequacy, as a proposed class representative.

In response to RCL’s Motion to Compel, for the first time, the Plaintiff argued that the 

Court had already ruled on this issue in connection with the travel agency’s earlier request for 

fifteen (15) years of tax returns. [DE 221 p. 6]. The order referenced by the Plaintiff cited two 

cases, one involving the ability to finance litigation, which was not a ground for RCL moving to 

compel, and the other was a case stating that the “[i]nstigation of many other securities laws 

lawsuits cannot of itself, disqualify plaintiff from bringing the present suit or acting as class 

representative therein.” Lewis v. Black, 74 F.R.D. 1, 3 (E.D.N.Y. 1975)(emphasis added); [DE 

187 p. 2]. The only other comment in that order regarding the tax returns is that 15 years of tax 

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returns “borders on harassing.” [DE 187 p. 4] (RFP ## 21, 25). There was no other as to how 

production of tax returns was harassing. 

RCL replied in support of its Motion to Compel by arguing that discovery was stayed as 

to the Cruise Line Defendants when the Defendant travel agency, RMG, requested the Plaintiff’s 

tax returns and RCL cannot move to compel another co-defendant’s discovery or argue grounds 

for compelling the documents for a co-defendant. The Lewis case cited in the travel agency’s 

(RMG) Order simply said that being a serial plaintiff does not ipso facto preclude a person from 

being a class representative, the clear implication being that it is a factor for a Court to consider. 

Lewis v. Black, 74 F.R.D. at 3; [DE 187 p. 2]. 

RCL also asked that the Magistrate take note of Donaca v. Dish Network, LLC, 2014 U.S. 

Dist. LEXIS 19740, *33 (D. Colo. 2014), in which the district court ruled that, among other 

reasons, because the plaintiff derived 60% of his income from TCPA lawsuits or threats to sue 

telemarketers, the class would not be certified. [DE 223-1 p. 6]. In that case, the court’s rationale 

was that there exists no impediment to filing TCPA lawsuits because of the lack of a cap on 

statutory damages has provided plaintiffs with an easy way in which to recover money by filing 

individual TCPA lawsuits, and Donaca was proof of that. 

RCL also highlighted the fact that the Plaintiff himself had made his TCPA litigation 

history a basis for his alleged adequacy as a class representative, which should therefore allow 

RCL to obtain evidence that could undermine this contention, as well as the Plaintiff’s case-inchief if the evidence shows that he entices companies to call him so he may earn substantial 

monies through lawsuits emanating from such calls. A plaintiff’s credibility is a substantial Rule 

23 factor as it relates to adequacy. Id. at pp. 6-7. Unlike the Donaca case, where the plaintiff 

testified about the percentage of income derived from TCPA pre-suit demands and litigation, the 

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Plaintiff here refused to voluntarily provide this information during his deposition. Thus, the 

only way in which RCL may obtain this information is through obtaining the tax return 

documents. [DE 223-1 p. 7]. With respect to the suggestion that the discovery is “harassing,” 

RCL believes that the production of the requested tax returns would, at most, amount to less than 

200 pages of documentation, and if the Plaintiff does not retain copies, he can easily obtain them 

from the Internal Revenue Service. It should also be noted that there is a protective order in 

place, which the Plaintiff may use to protect any confidential information in these documents. 

The Magistrate Judge denied RCL’s request for the Plaintiff’s tax returns based on an 

argument and legal authorities never cited by the Plaintiff.3 Apparently, based upon research 

undertaken by the Magistrate Judge, the rationale for the denial was that because the Seventh 

Circuit in Murray v. GMAC Mortgage Corporation, 434 F.3d 948 (7th Cir. 2006), ruled that: (1) 

in the Fair Credit Reporting Act context being a serial plaintiff does not necessarily make a 

plaintiff “unfit” to be a class representative; and (2) that the filing of numerous FCRA cases does 

not disqualify the class representative because the FCRA was designed for small claims. The 

Magistrate Judge ruled, therefore, “[i]n light of this binding case authority, the Court remains 

unpersuaded that ten years of Plaintiff’s tax returns are relevant.” [DE 229 p. 4]. 

RCL requests this Court to overrule the Magistrate Judge’s denial of its Motion to 

Compel these tax returns. In Murray, the district court had initially made a determination that the 

plaintiff was unfit to be a class representative. The Seventh Circuit noted that while the plaintiff 

was a serial plaintiff, she did not “invite” the lawsuits, and it determined that the frequency of the 

lawsuits filed by the plaintiff did not alone disqualify her from acting as a class representative. 

 

3 The fact that the Magistrate Judge responded by making an argument advocating a ground never raised by the 

Plaintiff makes RCL uncomfortable. See Marshall v. Marshall, 403 B.R. 668, 679 (C.D. Cal. 2009)(“Neutrality is 

absent where the Judge acts as an advocate for one side or where bias or prejudice prevents the judge from 

considering relevant facts or law); U.S. v. Singer, 710 F.2d 431, 436-37 (8th Cir. 1983)(“a trial judge cannot assume 

the mantle of an advocate”)(citing United States v. Bland, 697 F.2d 262, 265-66 (8th Cir. 1983).

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Id. at 954. The Court did not, however, hold that a serial plaintiff is “fit” to act as a class 

representative in each and every lawsuit. On the contrary, the Court recognized that a plaintiff 

who invites lawsuits may not be a fit representative. Id. The Magistrate Judge seemingly missed 

this point, and consequently appears to have determined that the extent of an individual’s role as 

a serial plaintiff, and his or her motivation behind for pursuing such litigation, is not 

discoverable. On the contrary, the Seventh Circuit’s ruling in Murray recognizes that this issue 

should be analyzed on a case-by-case basis, and is dependent upon the facts presented in each 

case.

Another, more recent, TCPA case decided by the Seventh Circuit came to the opposite

conclusion of the Murray court because the facts developed in that case led the court to a 

different conclusion. In CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 

(7th Cir. 2011), a more recent TCPA case not referenced in the Magistrate Judge’s Order the 

Seventh Circuit ruled that in a case, such as the one before this Court, where there is no statutory 

damages cap and the Defendants are potentially exposed to very large potential liability, there 

exists a need for a rigorous analysis of whether to certify a class. Id. at 724. The court 

determined that when a would-be class representative’s credibility is at stake, adequacy is 

undermined and the plaintiff cannot therefore represent a class, particularly where a serial TCPA 

plaintiff invites violations of the TCPA. Id. at 727-28. The Magistrate Judge failed to consider 

that even if the evidence RCL seeks may be inadmissible for one purpose (challenging 

adequacy), that it might be admissible for another purpose (such as challenging credibility). See 

Korando v. Uniroyal Goodrich Tire Co., 637 N.E.2d 1020 (Ill. 1994). 

RCL will never be able to demonstrate that the Plaintiff has a significant financial 

motivation to invite these TCPA lawsuits if RCL is precluded from obtaining the evidence with 

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which to do so. As discussed in RCL’s briefs in support of compelling the tax returns, unlike the 

Donaca plaintiff, this Plaintiff refused to testify about his percentage of income derived from 

TCPA cases. The only way in which RCL can obtain this information is by obtaining the tax 

returns. The Magistrate Judge misperceived the law cited in the Order denying RCL’s Motion to 

Compel and in the Order denying RMG’s Motion to Compel. Neither Lewis v. Black, 74 F.R.D. 

1, nor Murray v. GMAC Mortgage Corp., 434 F.3d 948, stand for the proposition that serial 

plaintiffs are always adequate class representatives, nor do they state that the TCPA is the perfect 

vehicle for class action litigation because the damages are too slight. To the contrary, as noted 

by Judge Posner, in the TCPA context, damages are unlimited because there is no cap. See CE 

Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011); See also 

Donaca v. Dish Network, LLC, 2014 U.S. Dist LEXIS 19740, *2 (D. Colo. 2014).

B. The Magistrate Judge Should Have Ordered Plaintiff to Produce Information 

Pertinent to His Prior TCPA Litigation Track Record 

RCL also sought to compel responses to Requests 59 and 60, which sought documents 

referring or relating to (1) pre-suit letters the Plaintiff has sent prior to filing TCPA lawsuits, 

including this case; and (2) the number of TCPA claims (pursued through litigation or not) the 

Plaintiff has made and how those claims were resolved. [DE 214-2 p. 36, 223-1 pp. 12-13]. As 

set forth above, the Plaintiff has put his TCPA litigation history at issue by claiming that his 

extensive experience makes him qualified to serve as a class representative. See Plaintiff’s 

Response to Interrogatory #10 at [DE 213-2 pp. 5-6]. RCL sought this information to buttress 

the argument that the Plaintiff’s class action should fail under the predominance requirement of 

Rule 23 because the Plaintiff’s TCPA litigation history underscores that there is no impediment 

for the average citizen to get the same or similar relief that the Plaintiff has in his other TCPA 

cases. The Plaintiff has also put this at issue by stating in his pleading that the class should be 

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certified because “[t]he likelihood that individual members of the class will prosecute separate 

actions is remote due to the time and expense necessary to conduct such litigation.... ” [DE 58 ¶ 

82]. Since the Plaintiff placed the likelihood of individuals filing suit squarely at issue in this 

case, there exists no better way to defend that claim than to examine the Plaintiff’s own litigation

history.

RCL argued before the Magistrate Judge that Request 59 merely asks for pre-suit 

demands, judgments and settlement information, and Request 60 asks for documents indicating 

the number of TCPA claims that the Plaintiff has filed by the Plaintiff and information 

concerning the manner in which how they were resolved; RCL certainly did not want every 

litigation document that the Plaintiff has generated or possesses. [DE 223-1 pp. 12-13]. The 

information is relevant to show that there is no impediment to putative class members filing 

these TCPA cases on their own under a statute with unlimited statutory damages.

As far as the TCPA class action litigation is concerned, RCL cited the Donaca case as an 

example of one court that considered prior TCPA litigation as a factor militating against 

certification. Id. and supra. RCL also referred to a recent class action settlement where the 

Plaintiff earned $30,000 while the putative plaintiffs received approximately $40 each and cases 

where courts have determined that putative class members would actually fare much better by 

filing individual lawsuits than proceeding with a class action. Id.; See also Kohlenbrenner v.

Dickinson, 1996 U.S. Dist. Lexis 3144 (N.D. Ill. 1996)(court denied class certification when the 

small possible recovery for a class action was not superior to individual litigation); Abrams v. 

United States, 57 Fed. Cl. 439 (Fed. Cl. 2003)(“This court has considered the size of potential 

awards in deciding whether to certify a class.”); Barnes v. United States, 68 Fed. Cl. 492, 499 

(Fed. Cl. 2005)(“Essentially, under [the superiority] prong of the analysis, the court is obliged to 

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conduct a cost/benefit analysis, weighing any potential problems with the manageability or 

fairness of a class action against the benefits to the system and the individual members likely to 

be derived from maintaining such an action.”); [DE 223-1 p. 12]. 

The Magistrate Judge denied RCL’s request to obtain this discovery based on the reasons 

given for denying RCL’s request for tax returns – her belief that the Murray decision constitutes 

binding authority that a serial plaintiff is “fit” to act as class representative. [DE 229 p. 6]. Just 

as the adequacy of any class representative depends on the facts of each case, so does an 

examination of superiority. Murray, an FCRA case, does not negate RCL’s right to explore all 

facts that weigh on the issue of whether, in the present matter, pursuing this lawsuit as a class 

action is the superior method upon which to adjudicate this case. See CE Design Ltd. v. King 

Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011). Thus for all of the reasons set forth 

supra, the Magistrate Judge relied too heavily on the law cited in her Order and by precluding 

this discovery, she effectively and improperly decided the issue for class certification purposes, 

and RCL respectfully requests this Court to compel the production of the documents.

After citing above-referenced precedent, the Magistrate Judge stated that Plaintiff has 

provided a list of all TCPA class actions in which he has been involved along with each lawsuit’s 

case number, and she advised RCL that it could do research as to the outcome of each case. This 

holding misinterprets RCL’s request, which seeks information related to (i) each case Plaintiff 

has filed and not just federal class actions and (ii) information that is not in the public record and 

therefore unavailable to RCL. Information pertaining to private correspondence that did not 

result in the filing of a lawsuit, and settlements that are not publicly filed with a court, are not 

accessible to RCL. Moreover, it is not a simple task for RCL to acquire information that may be 

in the public record pertaining to the more than 100 lawsuits Plaintiff filed—much of this 

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information is currently in Plaintiff’s possession whereas RCL would have to pull physical files 

in state courts and federal courts in several states. It is much less of a burden for Plaintiff to 

provide this information than to require RCL to research each case. See Meyer v. S. Pac. Lines, 

199 F.R.D. 610, n. 12 (N.D. Ill. 2001)(the court ordered defendant to produce information in 

response to an interrogatory even though the information was available as a matter of public 

record); United States v. 58.16 Acres of Land, 66 F.R.D. 570, 573 (E.D. Ill. 1975)(“Generally an 

interrogatory is proper although the information sought is equally available to both parties.”); 

Alexander Binzel Corp. v. Nu-Tecsys Corp., 2000 U.S. Dist. LEXIS 5238, *29 (N.D. Ill. 

2000)(“The court recognizes that a party seeking discovery is not limited to facts exclusively or 

peculiarly within the knowledge of the opponent. This is true even where the interrogator has at 

his disposal an adequate or even better source of information.”). 

Finally, the Magistrate Judge stated that RCL has failed to explain the purpose of 

obtaining these documents. However, the purposes of obtaining this information relates directly 

to the aforementioned superiority argument, which was specifically set forth in RCL’s Motion 

and its Reply. [DE 229 pp. 7-8; DE 214 p. 13, DE 223-1 pp. 12-13]. RCL provided ample 

reasons for compelling these documents. Id.; see also [DE 58 ¶¶ 82](“The likelihood that 

individual members of the class will not prosecute separate actions is remote due to the time and 

expense necessary to conduct such litigation...”). There is no better way to undermine the 

Plaintiff’s contention than to demonstrate it through the Plaintiff’s own litigation history.

C. The TCPA Internet Forum and Other Information Should Have Been Compelled

RCL’s Request 40 sought production of documents concerning the Plaintiff’s internet 

activity in connection with communications between Plaintiff and with other serial TCPA 

plaintiffs where these plaintiffs store or discuss information relating to TCPA claims. [DE 214-2 

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pp. 30-31; DE 223-1 p. 8; DE 214 pp. 9-10]. The Magistrate Judge compelled production of all 

documents relating to this case, but otherwise denied all other communications. The Magistrate 

Judge denied RCL’s request for this information based on a ruling made in response to RMG’s 

request for similar documents in that it was “overbroad” and “not likely to lead to discoverable 

evidence.” [DE 187 p. 3]. For all of the reasons set forth above, the Magistrate Judge erred in 

failing to compel production of these documents. The Plaintiff has claimed that other consumers 

would be unlikely to file cases, these documents will show that is simply untrue. 

IV. Conclusion

For all of the reasons set forth above, RCL respectfully requests this Court to overrule the 

denial of RCL’s Motion to Compel as to the Requests referenced above, to compel production of 

the documents requested and for all further relief that the Court deems just and necessary.

Respectfully submitted,

By: /s/Catherine J. MacIvor

Catherine J. MacIvor

cmacivor@fflegal.com

Pro Hac Vice

 Jeffrey E. Foreman

jforeman@fflegal.com

ARDC #6193309

FOREMAN FRIEDMAN, P.A.

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, FL 33131

Phone: 305-358-6555

Fax: 305-374-9077

Attorneys for Defendants, Royal Caribbean Cruises 

Ltd. NCL (Bahamas) Ltd.

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CERTIFICATE OF SERVICE

On this 4

th day of December, 2014, I electronically submitted the foregoing document with 

the clerk of court for the U.S. District Court, Northern District of Illinois, using the electronic case 

filing system of the court, which will automatically send notice of the filing to all counsel of record. I 

hereby certify that I have served all counsel and/or pro se parties of record electronically in 

accordance with the Federal Rules of Civil Procedure. 

 By: /s/ Catherine J. MacIvor

Catherine J. MacIvor

Case: 1:12-cv-05746 Document #: 232 Filed: 12/04/14 Page 16 of 17 PageID #:3957
SERVICE LIST

CASE NO. 12-CV-5746

Alexander H. Burke

Burke Law Offices, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

Tel: 312-729-5288/Fax: 312-729-5289

Edward A. Broderick

Broderick Law, P.C.

125 Summer Street, Suite 1030

Boston, MA 02110

Tel: 617-738-7080

Matthew P. McCue

Law Office of Matthew P. McCue

1 South Avenue – Third Floor

Natick, MA 01760

Tel: 508-655-1415

Attorneys for Plaintiff

Elliot S. Wiczer (ARDC #6208432) 

John M. Sheldon (ARDC #6256666) 

Foreman Friedman, PA 

500 Skokie Blvd., Suite 325 

Northbrook, IL 60062 

847-849-4850 

Catherine J. MacIvor (Pro Hac Vice)

Jeffrey E. Foreman (ARDC #6193309) 

Foreman Friedman, PA 

2 South Biscayne Blvd., Suite 2300 

Miami, FL 33131 

305-358-6555 

Attorneys for Royal Caribbean Cruises, 

Ltd. and NCL (Bahamas), Ltd.

Joshua E. Bidzinski (ARDC #6302408)

Jeffrey S. Becker (ARDC #6282492)

Swanson, Martin & Bell, LLP

330 North Wabash Avenue, Suite 3300

Chicago, IL. 60611

Tel: 312-321-9100

Attorneys for Carnival Corporation & 

PLC

Michael J. Zink

Starr, Bejgiert, Zink & Rowells

35 E. Wacker Drive, Suite 1870

Chicago, IL 60601

Tel: 312-346-9420

Attorney for Elizabeth Valente

Case: 1:12-cv-05746 Document #: 232 Filed: 12/04/14 Page 17 of 17 PageID #:3958