UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHILIP CHARVAT on behalf of 

himself and others similarly 

situated,

Plaintiff,

No. 12 C 5746

v.

Magistrate Judge Mary M. Rowland

ELIZABETH VALENTE, RESORT 

MARKETING GROUP, INC., TSN 

INT’L, INC., TSN MARKETING 

LLC, CARNIVAL CORP. & PLC, 

ROYAL CARIBBEAN CRUISES, 

LTD AND NCL, LTD.,

Defendants.

ORDER

Defendant Royal Caribbean Cruises Ltd.’s (RCL) Motion to Compel Answers, or 

Better Answers, to First Request for Production [214] is granted in part and denied 

in part. Plaintiff will produce documents by December 12, 2014. In addition, by 

December 12, 2014, each defendant is ordered to make its respective document 

production available to the other defendants for reproduction.

STATEMENT

Procedural Background

Plaintiff, Philip Charvat, brought this action against Defendant Resort 

Marketing Group (RMG), a travel agency, alleging violations under the Telephone 

Consumer Protection Act (TCPA). Plaintiff also named as defendants three cruise 

lines, Carnival Corporation & PLC, Royal Caribbean Cruises, Ltd. (RCL), and NCL 

(Bahamas) Ltd., under a vicarious liability theory, alleging that the travel agency 

was selling cruise packages for the cruise lines via illegal telemarketing. 

On September 26, 2014, RCL filed the present motion seeking to compel 

document production from Plaintiff.1 (Dkt. 214). Some of the requests at issue in the 

present motion are the same or similar to a motion to compel brought in March of 

2014 by RMG. (Dkt. 179). On April 21, 2014, this Court granted in part and denied 

1 RCL has withdrawn its motion as to Document Requests 51, 53, 54 & 64. (Dkt. 223-1).

 

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in part RMG’s motion ordering Plaintiff to produce (1) all records from two e-mail 

addresses that contain the word cruise or relate to travel or vacations, (2) a list of 

articles and books Plaintiff has authored, and (3) the title of all seminars Plaintiff

has spoken at about the TCPA. (Dkt. 187). The Court denied RMG’s request to 

inspect all electronic devices used by Plaintiff or his family, all correspondence sent 

by Plaintiff to all telemarketers since 2008, a list of all TCPA or telemarketing

listservs that Plaintiff subscribes to or visits, all correspondence among Plaintiff’s 

family members about telemarketing calls, and Plaintiff’s tax returns for the past 

15 years. (Dkt. 187). 

With this background, the Court turns to the specific requests made in 

Defendant RCL’s motion.

Document Requests

Document Requests Nos. 1, 4-6, 7-9, 11, 12-13, 15-20, 25-26, 28-39: These 

requests seek the documents that Plaintiff will rely on to support class certification. 

Plaintiff responds that, in addition to the recording of the robocalls attached to the 

original Complaint, he will rely on the following documents: (1) those produced by 

RMG; (2) those produced in response to two specific subpoenas; (3) depositions 

transcripts; (4) eight specified categories of documents identified by bates numbers; 

and (5) internet screen shots. 2 Plaintiff also reserves the right to supplement based 

upon outstanding discovery.

RCL argues that Plaintiff’s response is too vague because he does not identify 

the RMG documents by bates numbers and he indicates that will rely on documents 

that “include the following” which allows for the possibility of unmentioned 

documents. RCL also objects that Plaintiff raises a privilege objection, without 

providing a privilege log, thereby leaving RCL to wonder whether unidentified and 

unproduced documents are at issue.

Charvat’s reservation of right to supplement following more fulsome production 

of discovery by defendants is proper. Carnival and RMG will make significant 

production on December 1, 2014. Moreover, Plaintiff states that he has identified all 

of the documents he is aware of at this stage in the litigation. (Dkt. 221 at 3). In 

light of that representation, the Court hereby strikes the phrase “include the 

following documents” from the responses. Plaintiff is reminded of his obligation to 

supplement following more complete production by defendants. 

As to privilege, Plaintiff is required to notify RCL, via letter, that there are no 

responsive documents to the various document requests other than communications 

between and among Plaintiff and counsel or to provide a privilege log.3 See Proposed 

2 The parties have resolved their dispute about the screen shots. (Dkt. 223-1 at 3).

3 Plaintiff responds throughout that he has no objection to providing a privilege log but that

defendants should also be required to provide a privilege log. (See Dkt. 221 at 3-6; Resp. to 

Charvat v. Valente et al., No. 12 C 5746 2

 

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Amendment to Rule 34(b)(2)(C) (“An objection must state whether any responsive 

materials are being withheld on the basis of that objection.”)(Proposed effective date 

12/1/15).

The Court otherwise disagrees with RCL that Plaintiff’s response is evasive and 

incomplete. Plaintiff identified eight documents by bates numbers. He also 

identified three categories of documents: RMG’s production, Caldwell List and TDC 

production, and deposition transcripts. (Dkt. 214-2 at 2). RCL does not cite a single 

case for the proposition that a party is required to identify documents by bates 

numbers, and the Court has found none. The cases relied upon by RCL, Derson 

Group, Ltd. v. Right Mgmt. Consultants, Inc., 119 F.R.D. 396 (N.D. Ill 1998) and 

American Rockwool, Inc. v. Owens-Corning Fiberglas Corp., 109 F.R.D. 263 

(E.D.N.C. 1985) both involve the responding party referring vaguely to document 

production as a way of answering interrogatories. In Derson, the court emphasized 

that the party should provide “sufficient detail to permit the interrogating party to

locate and to identify . . . the records.” Derson Group, 119 F.R.D. at 396. In that case 

the plaintiff gave “no clue” where to find the requested information among 33,000 

documents. In American Rockwool, the court similarly held that the party needed to 

specify records in sufficient detail to allow the requesting party to locate and 

identify the records from which answers to interrogatories could be ascertained. 

Here Plaintiff has identified specific categories of documents and identified specific 

bates-stamped documents, per Defendant’s Rule 34 requests. In addition, in the 

present case, Plaintiff has responded to multiple interrogatories. This is not a case 

where a party has directed Defendant “to an undifferentiated mass of records that 

is not a suitable response to a legitimate request for discovery.” American 

Rockwoold, 109 F.R.D. at 266.

Document Request No. 2: This request seeks any witness statements, 

affidavits, and declarations that Plaintiff has obtained from any person. (Dkt. 214 

at 6). Plaintiff identifies two by bates-numbers. (Dkt. 214-2 at 2). Plaintiff then 

supplemented by producing a third declaration when it was received and indicates 

there are no others.4 (Dkt. 221 at 4). The Court denies the request to compel further 

production.

Document Request No. 3: The request asks for all documents obtained from 

any person relating to the subject matter of this action except the named Plaintiff. 

Plaintiff states that he has produced all documents. In light of that representation, 

the Court strikes the phrase “include the following documents” from the response. 

Req. Nos. 1, 3-5, 7-9, 11; 14). Whether defendants should provide a privilege log is not 

before the Court.

4 This is one of several examples where the parties did not effectively use the discovery 

dispute requirements set forth in the rules. See Rule 37(a)(1). The Court cautions both sides 

to talk to each other and try to resolve disputes before engaging in briefing. 

Charvat v. Valente et al., No. 12 C 5746 3

 

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As to privilege, Plaintiff is required to notify RCL, via letter, that there are no 

responsive documents other than communications between and among Plaintiff and 

counsel or to provide a privilege log. Defendant’s motion is otherwise denied.

Document Request No. 10: This request seeks Plaintiff’s tax returns that 

reflect income from filing TCPA litigation for the past ten years. RMG previously 

moved to compel Plaintiff to produce tax returns from 1999 to the present. (Dkt. 

179). The Court denied this request as irrelevant. See Dkt. 187 at 4.

RCL relies on Donaca v. Dish Network, LLC., No. 11-CV-02910-RBJ-KLM, 2014 

WL 623396 (D. Colo. Feb. 18, 2014), to argue that a court has “den[ied] class 

certification under Rule 23(b)(3) because the plaintiff derived 60% of his income 

from TCPA lawsuits or threats to sue telemarketers.” (Dkt. 223-1 at 6). The Court 

was unaware of Donaca when it ruled on RMG’s request for Plaintiff’s tax returns

and will consider the request anew in light of this case authority. 

The Donaca court, after denying class certification because (a) the class of which 

plaintiff was a member was not ascertainable and (b) plaintiff was not a member of 

the classes that were ascertainable, found that (c) because plaintiff derived so much 

income from his TCPA litigation,5 class treatment was not “necessarily superior to 

other methods for a fair and efficient adjudication of TCPA claims.” Donaca, 2014 

WL 623396, at *11.

There is no question that Mr. Charvat, like the plaintiff in Donaca, is a TCPA 

“advocate.” Id. at *1. Charvat has filed approximately 100 lawsuits challenging 

what he perceives to be violations of the TCPA. However, this Court does not find 

Donaca persuasive in light of Seventh Circuit precedent. In Murray v. GMAC 

Mortgage Corporation, 434 F.3d 948 (7th Cir. 2006), a case brought under the Fair 

Credit Reporting Act, (FCRA) the district court denied class certification in part 

because the named plaintiff was a “professional plaintiff” and, therefore, unfit to 

represent the class. 434 F.3d at 951. The Seventh Circuit accepted the case on an 

interlocutory basis because it “present[ed] some fundamental questions about the 

management of consumer class actions.” Id. The appellate court observed that while 

plaintiff and her family had filed more than fifty FCRA suits, that fact did not 

disqualify her as a class representative. “What the district court did not explain ... 

is why ‘professional’ is a dirty word. It implies experience, if not expertise. ... 

Repeat litigants may be better able to monitor the conduct of counsel, who as a 

practical matter are the class’s real champions.” Id. at 954. Moreover, in terms of 

whether class treatment was a superior method, the Murray court held that “Rule 

23(b)(3) was designed for situations such as this, in which the potential recovery is 

too slight [statutory damages of $100 per violation] to support individual suits, but 

injury is substantial in the aggregate.” Id. at 953. In light of this binding case 

authority, the Court remains unpersuaded that ten years of Plaintiff’s tax returns 

are relevant. RCL’s motion to compel is denied.

5 The Donaca court relied on deposition testimony, not tax returns, for this information.

Donaca, 2014 WL 623396, at *1.

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Document Request No. 14: This request seeks documents received from any 

putative class member relating to the subject matter of this action. Plaintiff 

responded with a work product and attorney client privilege objection. Plaintiff 

states that he has no objection to producing a privilege log. Plaintiff is required to 

notify RCL, via letter, that there are no responsive documents to this document 

request other than communications between and among Plaintiff and counsel or to 

provide a privilege log. 

Document Request No. 40: This request asks for all documents relating to any

listserv, internet forum, or any other internet source that Plaintiff or his counsel 

subscribe to or are members of where information regarding TCPA claims are 

stored. RCL argues that these communications relate to adequacy. RCL argues that 

one of the documents produced “reveal[s] that Charvat was actively pursuing other 

potential putative class members who had received calls that are the subject of this 

case after he filed his Complaint.” (Dkt. 223-1 at 8). Such evidence would go to 

solicitation. According to Plaintiff, he already produced “all documents relating to 

this case from the above sources.” (Dkt. 214-2 at 30). To be clear, Plaintiff is 

required to produce all documents related to this case from the sources identified in 

the document request.

While it is not entirely clear, RCL also appears to be moving to compel 

documents (1) from Plaintiff related to other TCPA cases, and (2) from Plaintiff’s 

counsel regarding their activities on listservs. As to these categories, the Court 

stands by its previous ruling that these requests are overbroad. See Dkt. 187 at 3.

Document Request Nos. 42-43, 45, 46-49: These requests seek documents that 

identify every e-mail address used by Plaintiff, his wife and his daughter, and all 

documents regarding the three individual’s internet usage (on any computer, 

laptop, netbook, tablet, cellular phone or other Internet capable device), including 

browsing history, billing records, Internet cookies, downloads and inbound and 

outbound e-mails. (Dkt. 214-2 at 31-39). Tacitly acknowledging the expansive 

breadth of these requests, RCL refines its requests to documents reflecting the 

internet providers for each of the Charvats from one year prior to filing the lawsuit 

through January 1, 2013. The Court compels a response to this request, as modified.

Plaintiff shall identify the internet providers for each of the three identified 

members of the Charvat family for one year prior to filing the lawsuit through 

January 1, 2013. 

Document Request No. 50: This request seeks the documents, identified by 

bates numbers, relating to the script Plaintiff used when speaking to telemarketers. 

Plaintiff identified bates-numbered documents at Dkt. 214-2 at 33 and Dkt. 221 at 

8. Defendant’s request is denied.

Document Request No. 52: This request seeks documents relating to the 

registration of Plaintiff’s telephone line with the National Do-Not-Call-Registry. 

Plaintiff responded with a reference to his NDNCR verification, including bates 

numbers, and a reference to his deposition where he explained registering for it. 

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RCL’s real concern is that Plaintiff did not provide documents relating to an Ohio 

case in which Charvat was purportedly ordered to register for the NDNCR. The 

Court believes this information is relevant and should be provided. However, RCL 

references a settlement in the Ohio case. This order is not meant to void any 

confidentiality provision or protective order at issue in that case. Plaintiff is ordered 

to produce documents from the Ohio case responsive to this request consistent with 

whatever protective order may be in place in the Ohio case. 

Document Request No. 55: This request asks for fee agreement information 

from other TCPA cases Plaintiff has litigated. Plaintiff, who has produced his fee 

agreement in this case, argues that this information is irrelevant. Defendant argues 

this information is relevant because it goes toward adequacy as a class 

representative and predominance. Defendant has not indicated how other fee

agreements are relevant, and relies on its argument in Interrogatory No. 10. For 

the reasons stated above, Defendant’s motion is denied.

Document Request No. 57: This request seeks documents, including a resume,

relating to Plaintiff’s employment at any law firm. Plaintiff objects on the basis of 

relevance. Defendant argues that a plaintiff’s education and business experience is 

a factor relating to adequacy. Oddly, in response to Document Request No. 1, 

Plaintiff produced his resume. (Dkt. 214-2 at 2). The motion to compel is denied as 

moot. 

Document Request No. 58: This request seeks “case law, articles you have 

authored, and presentation notes from” seminars at which Plaintiff has spoken.

(Dkt. 214-2 at 35). The Court previously ordered Plaintiff to produce “a list of 

articles and books he has authored and the title of seminars he has spoken at, from 

January 2008 to the present, which concerned the TCPA.” (Dkt. 187 at 4).

Consistent with this Court’s previous Order, Plaintiff is required to produce a copy 

of any articles that he has written and any speeches or presentations he has given 

about the TCPA from January 2008 to the present. However, the Court believes it is 

unduly burdensome to require Plaintiff to produce copies of case law and articles or 

books written by others that Plaintiff has in his library. 

Document Request Nos. 59-60: Request 59 seeks any letters Plaintiff may 

have sent to telemarketers prior to filing any other TCPA lawsuits. (It is 

uncontested that Plaintiff did not file any pre-suit demand in this case). Request 

No. 60 seeks documents relating to how many TCPA claims Plaintiff filed and how 

they were resolved (i.e., dismissal or settlement). Plaintiff responds that he has 

identified “every single filed action, which is more than sufficient.” (Dkt. 221 at 10). 

RCL relies on Donaca, supra, to argue that this information is relevant to their 

argument that class certification is not the superior method since “there is no 

impediment for the average citizen to get the same or similar relief.” (Dkt. 223-1 at 

12). For the reasons stated supra, this Court rejects that argument in this circuit. 

Plaintiff has provided a list of all TCPA class actions that he is involved in, 

including the caption of the case, the court where the action was filed, and the case 

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number. RCL wishes to argue that class members have fared far less well than the 

statutory presumptive damage award as compared to the incentive award awarded 

to Plaintiff. First, to the extent RCL seeks detailed information regarding whether 

the cases were certified, or whether the cases settled, these cases are public record 

and available to RCL. Moreover, each of those class action settlements were 

approved by a court considering the factors required under Rule 23 and case law 

regarding settlements. RCL has failed to explain the relevance of these other court 

sanctioned settlement agreements and Plaintiff’s incentive award to the questions 

at issue in this case. RCL’s motion to compel Nos. 59 and 60 is denied.

Dated: November 20, 2014

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