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 Better 

Responses to First Set of Interrogatories [213] is granted in part and denied in part.

Plaintiff will produce supplemental interrogatory responses 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 instant motion to compel interrogatory 

responses. (Dkt. 213).

RCL, believing there is no basis to establish it is vicariously liable for the illegal 

telemarketing calls RMG allegedly made, files the present motion to “determine 

what, if any, evidence the Plaintiff has that would support his claims and class 

certification theories prior to the time that class certification briefing proceeds.” 

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(Dkt. 213 at 6). RCL is particularly concerned, based on counsel’s 15 years of 

experience, that when Plaintiff files his class certification motion, “Charvat will 

alter or change his class action definition, his theories or provide new facts thus 

leaving the Defendants unprepared to file a response without discovery regarding 

same.” (Dkt. 224 at 3). Accordingly, RCL requests that it “be given an opportunity 

after the filing of Charvat’s Motion for Class Certification to issue discovery it needs 

to defend his motion” (Id. at 3-4). As this situation has yet to arise, the Court will 

not decide it. However, the Court is mindful of the due process rights of all parties 

to the litigation and has no intention of allowing Plaintiff (or Defendants) to conduct 

the litigation by ambush. In light of the fact that neither class certification briefing 

nor discovery deadlines have been set, the Court sees no risk of such an unfair 

scenario arising. 

General objections 

First, RCL objects throughout to Plaintiff’s response that because he is waiting 

for discovery responses from the defendants he is unable to fully respond to a 

particular interrogatory. The interrogatory responses were signed in April 2014.

Since that time the Court has ordered (1) RMG to produce data relative to the 

robocalls1 they made in their native electronic format; (2) RMG to produce 

supplemental documentation relating to complaints under the TCPA, robocalls, and 

prior established business relationships; (3) the Cruise Lines to produce complaints 

related to the TCPA or robocalls; and (4) RMG to supplement interrogatory 

responses regarding pre-recorded telemarketing calls. (Dkt. 186, 190, 206 & 210).

Furthermore, on December 1, 2014, Carnival will produce its ESI and RMG will 

produce its e-mail correspondence. (Dkt. 225). 

In this scenario, it was entirely appropriate that when Plaintiff responded to 

interrogatories he indicated that a tremendous amount of discovery was 

forthcoming. Plaintiff is reminded of his continuing duty to supplement discovery

responses, Fed. R. Civ. P. 26(e), but his indication that discovery was outstanding is 

not a basis to compel production. See American Needle, Inc. v. New Orleans, No. 04 

C 7806, 2012 WL 4327395, at *2 (N.D. Ill. Aug. 17, 2012) (“If after key depositions 

and expert disclosures, more information responsive to these interrogatories 

becomes available, the NFL Defendants shall supplement their answers as they 

would with an answer to any other interrogatory.”).

RCL also objects that Plaintiff often provides “general legal conclusions with no 

factual support or no application of fact to law as requested in the interrogatories.” 

(See Dkt. 213 at 5). RCL relies primarily on American Needle, Inc. v. New Orleans, 

No. 04 C 7806, 2012 WL 4327395 (N.D. Ill. Aug. 17, 2012) to argue that Plaintiff 

cannot object to an interrogatory because it requests an opinion or for the 

application of law to facts. In American Needle, the NFL Defendants did not 

1 The statute, 47 U.S.C. § 227(b), refers to prohibitions using “any automatic telephone 

dialing system,” known colloquially as “robocalls.”

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respond to the two interrogatories at issues because they were contention 

interrogatories. The Court found “no persuasive reason for the NFL Defendants to 

completely defer their answers.” American Needle, Inc., 2012 WL 4327395, at *2. 

However, the Court also held that the “NFL Defendants need only to articulate 

their contentions and the bases of their contentions.” Id. Significantly, the American 

Needle court observed that while an interrogatory may reasonably ask for the 

material or principal facts which support a contention, “to the extent the contention 

interrogatories ask for every fact and every application of law to fact which supports 

the identified allegations, the court finds them overly broad and unduly 

burdensome.” Id. (emphasis added) (internal citation omitted). Unlike American 

Needle, Charvat responded to the interrogatories. Although he objects initially to 

several of the interrogatories stating that the question asks for legal opinions from 

a non-lawyer, Charvat then proceeds to answer the majority of the interrogatories 

often in great detail.

With this background, the Court turns to the specific interrogatory responses at 

issue. 

Specific Interrogatories

Interrogatory No. 1 requests the contact information of all persons with 

knowledge or information regarding the Second Amended Complaint. In addition to 

naming himself and Stuart Abramson, Plaintiff provides a list of groups of 

individuals who have knowledge of the allegations in the complaint, such as 

consumers who complained to RMG, the Federal Communications Commission, or 

to the cruise line defendants. However, Plaintiff states that this information has 

either been redacted by RMG, or has not yet been produced. As to Mr. Abramson’s 

address and telephone number, Plaintiff shall provide RCL with Stuart Abramson’s 

most recent contact information. The motion to compel is otherwise denied.

Interrogatory No. 2 asks Plaintiff to specifically define the class, indicate 

whether there are subclasses and to specify whether the class is comprised of 

persons who received robocalls or any telemarketing calls. In addition to relying on 

what is alleged in the Second Amended Complaint, Plaintiff asserts that he should 

not be forced to brief his Class Certification Motion before it is due, and he will 

make final decisions on the requested class definition once Defendants provide 

discovery. (Dkt. 213-1 at 3). The Court agrees that Plaintiff should not be required 

to brief Class Certification before it is due. However, it is reasonable for Plaintiff to 

clarify for RCL whether the class, as defined in the Second Amended Complaint, is 

limited to persons who received robocalls or includes persons who received any 

telemarketing calls (e.g. non-robocalls). If Plaintiff intends to seek certification of a 

class of persons who received telemarketing calls generally (e.g. non-robocalls), 

Plaintiff must state the legal and factual basis he has to support this allegation. In 

all other respects, the Defendant’s motion is denied. 

Interrogatory No. 3 asks Plaintiff to explain how telemarketing calls, 

excluding robocalls, would make a cruise line liable for purposed illegal robocalls. 

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(Dkt. 213-1 at 4) (emphasis added). Plaintiff explains in detail the theories under 

which he is proceeding: (1) that RMG had either actual or apparent authority to 

telemarket on the cruise lines’ behalf; (2) that the cruise lines had knowledge of the 

illegal telemarketing; and (3) that FCC opinions have articulated the basis for 

vicarious liability. Defendant objects that this “interrogatory clearly seeks facts . . . 

because RCL wants to know under what theory of liability the Plaintiff can claim to 

proceed for ‘telemarketing’ as opposed to robocalls.” (Dkt. 213-1 at 5). As with 

Interrogatory No. 2, if Plaintiff intends to seek certification of a class of persons who 

received telemarketing calls generally (e.g. non-robocalls), Plaintiff must state the 

legal and factual basis for vicarious liability for such an allegation. In all other 

respects, the Defendant’s motion is denied. 

Interrogatory No. 4 asks for the factual and legal basis upon which Plaintiff 

can support standing for class members who received robocalls via cellular 

telephone. (Dkt. 213-1 at 5). Plaintiff responds that all members of the class, like 

himself, received illegal telemarketing calls via robocall, or via auto dialer, and/or 

while their numbers were listed on the DNC Registry. (Dkt. 213-1 at 5-6). 

Defendant contends that this answer is not responsive because Plaintiff does not 

address how Plaintiff has standing “to represent a class of persons who were called 

on their cell phones when he never had one.” (Dkt. 213-1 at 6). Plaintiff responds

that his standing is based on the fact that all members of the class received the 

same calls. RCL appears to be arguing the merits of standing as opposed to seeking 

information. Whether the Court will determine Plaintiff can adequately represent 

class members who received robocalls on a cellular telephone is a matter to be 

addressed by the Court in ruling on the class certification motion. There is no 

missing information here and no information to compel. Defendant’s motion to 

compel is denied.

Interrogatory No. 5 asks for the factual details upon which Plaintiff contends 

that the class meets the requirements for numerosity, including listing the total 

number of persons who fall under the class definition. (Dkt. 213-1 at 6). Plaintiff 

responds that he suspects the number is in the millions and explains why joinder of 

millions of people would be impractical. (Dkt. 213-1 at 6-7). If the call data produced 

by RMG contains robocalls and the response to Interrogatory No. 2 limits the class 

definition to robocalls, there is no information to compel here. RCL knows the 

number of robocalls made based on the data produced by RMG.2 If however, the 

proposed class definition includes general telemarketing calls as opposed to only 

robocalls, Plaintiff needs to explain, based on the data produced, how he will satisfy 

numerosity. For instance, if the data produced robocalls only and Plaintiff seeks to 

certify a class based on robocalls and non-robocalls, Plaintiff must explain his basis 

to establish numerosity as to non-robocalls. 

2 RCL indicates that the Defendants are not producing copies of their discovery documents 

to each other. (Dkt. 213-1 at 9). By December 12, 2014, each defendant is ordered to make 

its respective document production available to the other defendants for reproduction.

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Interrogatory No. 6 asks Plaintiff to list every fact and every issue of law 

related to the common claims for class certification. Plaintiff responds by stating 

that “[a]ll class members received virtually identical telemarketing calls from RMG 

promoting the goods and services of the Cruise Defendants. Common legal 

questions are whether RMG telemarketing calls were in violation of the TCPA, and 

whether the Cruise Defendants are vicariously liable for such calls.” (Dkt. 213-1 at 

8). RCL’s real complaint is that the “evidence to date is that the telemarketers . . . 

never mentioned selling or promoting anything for the cruise lines and instead 

specifically referenced promoting ... RMG.” (Dkt. 213-1 at 9). Plaintiff is not 

required to brief his motion for class certification; however, based on the discovery 

to date, Plaintiff must explain the facts that he believes support vicarious liability 

against the cruise line defendants. See Donaca v. Dish Network, LLC., No. 11-CV02910-RBJ-KLM, 2014 WL 623396, at *8 (D. Colo. Feb. 18, 2014) (finding no 

vicarious liability under agency theory for calls made by Satellite Services of Utah 

in the context of the class certification ruling). RCL’s motion to compel is denied in 

all other respects.

Interrogatory No. 7 asks Plaintiff for “every defense that you contend is 

susceptible to common proof, the facts that support the contention and the 

methodology by which you propose that the defenses can be proven [. . .].” (Dkt. 213-

1 at 9). While many of the affirmative defenses overlap, Carnival asserts 24 

affirmative defenses and RCL and NCL assert 28. Given the number of affirmative 

defenses raised, the Court finds this Interrogatory overly burdensome and denies 

Defendant’s motion to compel. “To the extent the contention interrogatories ask for 

every fact and every application of law to fact which supports the identified 

allegations, the court finds them overly broad and unduly burdensome.” American 

Needle, 2012 WL 4327395, at *2 (internal citation omitted).

Interrogatory No. 8 asks Plaintiff to state “the method by which” the case can 

be prosecuted as to all factual and legal issues, including damages. (Dkt. 213-1 at 

10). Plaintiff provided no answer other than an objection. Plaintiff is ordered to 

answer Interrogatory No. 8 based on the information currently available to him.

Interrogatory No. 9 asks Plaintiff to describe how his claims are typical of the 

claims of the putative class, and how the defenses would not require an 

individualized method of proof. (Dkt. 213-1 at 10). Plaintiff states his belief that the 

claims are typical of the claims of other class members because “all class members 

received telemarketing calls from RMG promoting the goods and services of the 

Cruise Defendants in violation of the TCPA.” (Dkt. 213-1 at 10). Plaintiff further 

states that he believes that none of the class members provided RMG with “prior 

express consent” to receive telemarketing calls. Plaintiff then discusses his personal 

situation and the defendants’ contention that his daughter entered his information 

into a website. Plaintiff states that this fact does not affect his argument that no 

prior express consent was obtained. Plaintiff provides a detailed response, and he 

explains why he believes the claims and defenses are typical of the class. 

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“Defendants need only to articulate their contentions and the bases of their 

contentions.” American Needle, at *2. Defendant’s motion to compel is denied.

Interrogatory No. 10 asks why Plaintiff is adequate to represent the proposed 

class. (Dkt. 213-1 at 11). Plaintiff responds that he has similar claims, there are no 

conflicts between him and the class, he has litigated TCPA cases in the past, and he 

is familiar with the law. Defendant argues that Plaintiff merely provided legal 

conclusions, and not facts. Plaintiff has sufficiently articulated his contentions and 

the basis for his contentions. See American Needle, at *2. Defendant’s motion is 

denied.

Interrogatory No. 11 asks for a list of every class action handled by Plaintiff’s 

lawyers. According to RCL, Plaintiff agreed to supplement this interrogatory but 

has not yet produced this information. (Dkt. 224 at 5). Plaintiff is ordered to 

produce the information he agreed to supplement by the deadline in this order.

Interrogatory No. 12 asks for a list of every TCPA case in which Plaintiff has 

been involved, including class actions, handled by any of the Plaintiff’s current 

counsel. 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.

Interrogatory No. 13 asks Plaintiff whether he has communicated with any 

member of the class. Plaintiff states that he has communicated with Stewart 

Abramson. He then states that “my attorneys and I have been precluded from 

contacting other class members at this point.” Defendant finds this answer 

“unclear” in light of Plaintiff’s oral testimony. (Dkt. 213-1 at 14). Plaintiff shall 

clarify his answer, in light of his online activities.

Interrogatory No. 14 asks Plaintiff to identify which section of Rule 23(b) he 

intends to rely upon to seek certification and the basis of class certification under 

each subsection of Rule 23(b). Plaintiff responds that he is seeking certification 

under Rule 23(b)(3) and that whether his attorneys file under other provisions of 

Rule 23 has not yet been decided. RCL’s motion to compel a response to this 

interrogatory is premature and is denied.

Interrogatories Nos. 15-17 asks Plaintiff to state his factual and legal basis for 

asserting that (1) questions of fact or law common to the claims or defenses will 

predominate, (2) class treatment is superior, and (3) there will be no difficulty in 

managing the claims. Plaintiff generally refers back to previous interrogatory 

responses wherein he relates his position that there are millions of robocalls and 

“class certification is superior to millions of individual trials primarily because each 

individual claim, in isolation, is too small to incentivize a consumer to accept the 

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risks of proceeding against entities, such as the Defendants in this case.” (Dkt. 213-

1 at 15). Plaintiff states that managing the class would not be difficult because all 

class members received “virtually identical illegal telemarketing calls from the 

defendants”, consumers could be identified by phone records, and damages are 

statutory. (Dkt. 213-1 at 16). Plaintiff has sufficiently answered these

interrogatories, and Defendant’s motion is denied.

Interrogatory No. 18 asks for the basis of Plaintiff’s claim for injunctive relief. 

Plaintiff states that if “RMG continued to engage in illegal Robocall telemarketing . 

. . my attorneys intend to pursue injunctive relief.” (Dkt. 213-1 at 17). Defendant’s 

motion is denied.

Interrogatory No. 19 asks Plaintiff to state how the damages will be calculated 

in this case, to which Plaintiff responds that damages under the TCPA are set by 

statute, and damages would be calculated based on the number of calls for each 

consumer, and the number of statutory violations per call. RCL’s objection to this 

interrogatory appears to argue the merits of the case, including that RCL should 

not be vicariously liable for the calls made by RMG. The interrogatory asked how 

damages would be calculated, and Plaintiff answered the interrogatory. Defendant’s 

motion is denied.

Dated: November 20, 2014

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