IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PHILIP CHARVAT, ) 

 ) 

 Plaintiff, ) No. 12-cv-05746 

 ) 

 v. ) Judge Andrea R. Wood 

 ) 

TRAVEL SERVICES, et al., ) 

 ) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Defendant Royal Caribbean Cruises, Ltd. (“RCL”) asks this Court to modify or set aside 

portions of two orders issued by Magistrate Judge Rowland disposing of motions to compel 

additional responses to interrogatories and document production requests. (Dkt. Nos. 237, 238) 

For the reasons detailed below, the Court overrules RCL’s objections to the magistrate judge’s 

orders and affirms her rulings. 

BACKGROUND 

 Plaintiff Philip Charvat claims that he received four unsolicited recorded marketing 

phone calls on his residential phone line and that these calls violated the Telephone Consumer 

Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(B). (Second Am. Compl. ¶¶ 28-47, 63, Dkt. No. 

58.) Charvat further alleges that the calls marketed the services of multiple travel service vendors 

named as defendants in his complaint, including those of RCL, and that the entities whose 

services were promoted in the calls are liable under the TCPA. (Id. ¶¶ 19, 20, 29, 32, 69-71.) In 

his complaint, Charvat seeks relief on behalf of himself and a class of similarly situated persons. 

(Id. ¶ 73.) This Court referred this matter to the magistrate judge for supervision of both 

settlement and discovery proceedings, including resolution of all discovery motions. (Dkt. No. 
2 

181.) RCL presented the magistrate judge with motions to compel Charvat to provide additional 

responses to its interrogatories and requests for production. (Dkt. Nos. 213, 214.) The magistrate 

judge granted the motions in part and denied them in part. (Dkt. Nos. 228, 229.) Now before the 

Court are RCL’s objections to the magistrate judge’s orders. (Dkt. Nos. 237, 238). 

 Like district court judges, magistrate judges “enjoy extremely broad discretion in 

controlling discovery.” Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). Their 

nondispositive discovery orders are properly disturbed only if they are clearly erroneous or 

contrary to law. Fed. R. Civ. P. 72(a); Jones, 737 F.3d at 1115-16. An order is “clearly 

erroneous” only when “the district court is left with the definite and firm conviction that a 

mistake has been made.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 

1997). 

DISCUSSION 

I. Motion to Compel Further Response to Interrogatory No. 12 

 RCL’s objection to the magistrate judge’s ruling regarding its motion to compel 

additional interrogatory responses relates to a single subject: Interrogatory No. 12. That 

interrogatory asked Charvat to: 

List each and every TCPA case, including class actions, handled by any of the 

Plaintiff’s lawyers for which any of them were lead counsel and for each such 

case note the case style, case number, the court, the claims involved, and with 

respect to each such case: (A) Whether it was certified by the court; (B) Whether 

class certification was denied; (C) Whether the case resulted in a class settlement 

or recovered any additional monies from the court or any of the lawyers or law 

firms who were counsel of record and if so state the amount, including any award 

of attorney’s fees or awards to the class representative; and (E) whether the 

Plaintiff in this case was a party or otherwise involved in the litigation. 

(Ex. A to Mot. to Compel Interrog. Resp. at 13, Dkt. No. 213-1.) Charvat did not object to the 

interrogatory. Instead, his response listed five TCPA cases in which his current counsel 
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represented him as plaintiff and also referenced a sixth case that had been identified in earlier 

interrogatory responses. (Id.) His response also provided that his attorneys “intend to file 

affidavits attesting to their experience in handling TCPA class actions when they file the Motion 

for Class Certification.” (Id.)

1

 

 After receiving Charvat’s response, RCL’s counsel wrote to Charvat’s counsel to resolve 

outstanding discovery issues. RCL’s correspondence described Charvat’s answer to Interrogatory 

No. 12 as “not responsive” and asserted that “RCL is entitled to the information prior to 

receiving the Plaintiff’s [class certification] motion.” (Ex. C to Mot. to Compel Interrog. Resp. at 

5, Dkt. No. 213-3.) RCL then moved to compel further response to the interrogatory. Its motion 

specified that RCL sought information about all of the TCPA cases, both class action and nonclass action, handled by Plaintiff’s counsel. (Ex. A to Mot. to Compel Interrog. Resp. at 13, Dkt. 

No. 213-1.) Judge Rowland denied RCL’s motion to compel. Her order stated: 

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 number. 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. To the extent RCL seeks a list of non-class actions, handled 

by present counsel, that Plaintiff has been involved in, RCL has failed to explain 

the relevance of such a request and the Court does not believe this information is 

relevant. Fed. R. Civ. P. 26(b)(1). Defendant’s motion to compel is denied. 

 Although RCL emphasizes that its commentary on the issue is not offered as a basis for 

objecting to her order, it asserts that the magistrate judge “inexplicably” interposed a relevance 

objection sua sponte and that it is “uncomfortable” with her invocation of a basis for denying 

discovery that Charvat himself had not raised. (Def.’s Mot. for Recons. at 4 n.1, Dkt. No. 238.) 

 

1 Charvat’s original motion for class certification, filed along with his complaint, was withdrawn by 

stipulation without prejudice to his right to file a renewed motion at a later date. (Dkt. Nos. 195, 202.) A 

prior June 20, 2014 deadline for filing an amended class certification motion was stricken. (Dkt. No. 193.) 

Charvat has not filed a renewed class certification motion and the deadline for filing the motion has not 

been reset.
4 

The Federal Rules of Civil Procedure plainly provide for a court’s sua sponte limitation of 

discovery on relevance grounds, however. Rule 26(b)(2)(C) mandates that on motion “or on its 

own,” a court “must” limit the frequency or extent of discovery if it determines that the 

discovery sought is unreasonably cumulative or duplicative, or if “the burden or expense of the 

proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in 

controversy, the parties’ resources, the importance of the issues at stake in the action, and the 

importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C) (emphasis 

added). It is thus apparent that a court is not merely permitted to limit discovery of information it 

finds to be irrelevant, it is required to do so. Even in the absence of a relevance objection, the 

magistrate judge’s analysis of the relevance of the information sought by Interrogatory No. 12 

was appropriate here. 

 RCL contends that the magistrate judge misunderstood the nature of its request in ruling 

that the relevance of the requested information had not been demonstrated. As noted above, 

Interrogatory No. 12 asked Charvat to identify all of the TCPA actions in which his attorneys 

had served as lead counsel. In Interrogatory No. 11, which is not at issue here, RCL requested 

identification of “every class action handled by any of the Plaintiff’s lawyers for which any of 

them were lead counsel.” (Ex. A to Mot. to Compel Interrog. Resp. at 12, Dkt. No. 213-1.) 

RCL’s argument here is directed toward identification of non-class-action TCPA cases in which 

Charvat’s attorneys were lead counsel. It contends that the magistrate judge’s ruling on the lack 

of relevance of TCPA non-class actions involving Charvat ignored its request for information 

regarding such actions in which his attorneys represented other plaintiffs. 

 But, at this stage in the proceedings, RCL has not shown the relevance of any non-class 

action experience of Charvat’s attorneys, whether that experience came while representing him 
5 

or other plaintiffs. Under Federal Rule of Civil Procedure 23(g)(1), a court that certifies a class 

action must appoint counsel for the class and must consider that counsel’s experience along with 

other factors pertinent to his ability adequately to represent class interests. Charvat’s prior 

motion for class certification was withdrawn and he has not filed a renewed motion; thus he has 

not yet requested that any of the four attorneys from three firms who currently represent him be 

appointed to represent a proposed class. RCL does not argue that the experience of Charvat’s 

counsel is relevant to any issue prior to his identification of the attorneys he proposes to 

represent the class. 

 Charvat has nonetheless identified six TCPA class actions that his current counsel has 

litigated on his behalf. (Ex. A to Mot. to Compel Interrog. Resp. at 13, Dkt. No. 213-1.) In two of 

the cases filed in this District, Charvat filed motions for preliminary class certification supported 

by affidavits of counsel that were offered to show their qualifications to represent classes of 

plaintiffs. (See Desai v. ADT Security Svcs. Inc., No. 11-cv-1925 (N.D. Ill.), Dkt. Nos. 226-9, 

226-10, 226-11; Charvat v. AEP Energy, No. 14-cv-3121 (N.D. Ill.), Dkt. Nos. 22-2, 22-3.) 

These affidavits extensively document the litigation experience of three of the four attorneys 

currently representing Charvat in this case. RCL has not made any showing that identification of 

their non-class action cases would provide non-cumulative evidence of their ability adequately to 

represent the as yet unproposed class of plaintiffs. On this record, the magistrate judge’s ruling 

on the relevance of the requested evidence cannot be considered either clearly erroneous or 

contrary to law. 

II. Motion to Compel Production of Documents 

 RCL also seeks review of the magistrate judge’s denial of its motion to compel additional 

responses to four of its requests for production of documents. Document Request No. 10 seeks 
6 

all of Charvat’s tax returns that “reflect income from filing serial TCPA litigation for the past ten 

(10) years.” (Ex. B to Mot. to Compel Ans. to Req. for Produc. at 9, Dkt. No. 214-2.) Document 

Request No. 40 seeks documents demonstrating communications by Charvat and his counsel 

with others about TCPA claims. (Id. at 30.) Document Request No. 59 seeks documents that 

Charvat sent to telemarketers prior to filing TCPA litigation, including any sent to the defendants 

in this case. (Id. at 36.) Document Request No. 60 seeks all documents relating to the number of 

TCPA claims Charvat has made and how those claims were resolved. (Id.) The magistrate judge 

found that the documents sought by Document Request Nos. 10, 59, and 60 are not relevant and 

denied RCL’s motion to compel their production. As to the documents requested by Document 

Request No. 40, the magistrate judge granted RCL’s motion to compel production of 

communications about this action but denied the motion as to other cases. 

 RCL contends that Charvat’s tax returns are relevant to show that he derives substantial 

income from TCPA litigation and that his motivation for filing this action is financial gain rather 

than selfless consumer advocacy. (Def.’s Mot. for Recons. at 7, Dkt. No. 237.) It contends that 

Charvat’s purported financial motivation for this case is relevant to the issue of his fitness to 

serve as a class representative. 

 Seventh Circuit precedent does not support this contention. In Murray v. GMAC 

Mortgage Corp., 434 F.3d 948 (7th Cir. 2006), the court reviewed the class certification claim of 

a plaintiff who had filed nine consumer class actions herself and whose family members had 

filed at least forty more. The court rejected the “professional plaintiff” characterization as a basis 

for determining that the plaintiff was unfit to serve as representative of the proposed class, 

finding that “[n]othing about the frequency of [plaintiff’s] litigation implies that she is less suited 

to represent others than is a person who received and sued on but a single offer.” Id. at 954. As 
7 

the court further explained, “[r]epeat litigants may be better able to monitor the conduct of 

counsel, who as a practical matter are the class’s real champions.” Id.

 RCL cites CE Design v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011), 

and Donaca v. Dish Network, LLC, 303 F.R.D. 390 (D. Colo. 2014), as support for its assertion 

that a plaintiff’s status as a serial litigant could be relevant to his ability to serve as a class 

representative and should be examined on a case-by-case basis. But neither case held that a 

plaintiff’s income from prior repeated class action litigation could be considered as a factor 

weighing against his adequacy as a class representative. In Donaca, the court held that the 

plaintiff was not a proper class representative because he was not a member of the class he 

purported to represent: he did not receive calls from the telemarketers whose calls defined the 

class and he could not identify any other potential plaintiffs who had received calls from the 

marketer who called him. 303 F.R.D. at 396. 

 In CE Design, the court reiterated its approach in Murray v. GMAC Mortgage and again 

observed that serial litigation is not an impediment to a plaintiff’s appointment as class 

representative: “[I]t’s not unlawful to be a professional class action plaintiff. Indeed, an 

experienced plaintiff in such an action may be able to ensure that class counsel act as faithful 

agents of the class.” 637 F.3d at 724 (citations omitted). The court instead found that two other 

characteristics dictated reconsideration of the plaintiff’s appointment as class representative: 

first, the plaintiff had arguably consented to the marketing faxes for which it claimed damages 

and second, its president had apparently been untruthful in his deposition testimony about that 

consent. Id. at 726-28. 

 In the present case, RCL has had the opportunity to discover whether the actions of 

Charvat or his family members consented to the phone calls that are the subject of his complaint. 
8 

(See 11/20/2014 Order on Doc. Req. Nos. 42-43, 45, 46-49 at 5, Dkt. No. 229.) RCL does not 

suggest that the request at issue here would lead to evidence of Charvat’s consent to receive 

those calls. Murray and CE Design establish that Charvat’s desire for financial gain is not 

relevant to impugn his credibility and RCL makes no attempt to argue that his tax returns are 

relevant for any other purpose. 

 RCL next argues that Charvat’s income from TCPA litigation, his history of litigation, 

and his communications with others about TCPA litigation all are relevant to a material issue in 

the class certification analysis—namely, whether litigation of the matter as a class action would 

be a superior method of fairly and efficiently adjudicating the controversy. See Fed. R. Civ. P. 

23(b)(3). RCL contends that the information it seeks would demonstrate 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” and that “putative class members would actually fare much better by filing 

individual lawsuits than proceeding with a class action.” (Def.’s Mot. for Recons. at 12, Dkt. No. 

237.) 

 But RCL has identified no basis for its apparent premise that Charvat’s recoveries in 

other cases are relevant to the superiority analysis here. District courts in this Circuit have 

analyzed the superiority question by examining whether potential recovery by the proposed class 

members is large enough to provide them with incentive to pursue their claims individually. See

Herkert v. MRC Receivables Corp., 254 F.R.D. 344, 352-53 (N.D. Ill. 2008). Yet “[o]nly when 

all or almost all of the claims are likely to be large enough to justify individual litigation is it 

wise to reject class treatment altogether.” Murray, 434 F.3d at 953. It is thus apparent that the 

appropriate inquiry for superiority analysis relates to the damages suffered by the potential class 

plaintiffs in this case. RCL does not offer any support for a conclusion that evidence of the 
9 

recovery Charvat may have received from other defendants in other actions sheds any light on 

the damages suffered by the potential class members here. Thus, the magistrate judge’s denial of 

RCL’s motion on relevance grounds cannot be considered clearly erroneous or contrary to law. 

CONCLUSION 

 For the reasons listed above, the Court finds that the portions of Magistrate Judge 

Rowland’s 11/20/2014 orders challenged by RCL were neither clearly erroneous nor contrary to 

law. RCL’s objections to those orders (Dkt. Nos. 237, 238) are therefore overruled and the 

rulings are affirmed. 

ENTERED: 

Dated: June 24, 2015 __________________________ 

 Andrea R. Wood 

 United States District Judge