UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

BRYAN ROBBINS & MARVIN FEIGES, 

on behalf of themselves, all others similarly 

situated, and the general public,

Plaintiffs,

v.

THE COCA-COLA COMPANY, a 

Delaware Corporation,

Defendant.

Miscellaneous Case

Case No.: 

Lead Case Pending in the

Southern District of California

Civil Action No.: 3:13-cv-00132-JLSWVG

PLAINTIFFS’ MOTION TO 

ENFORCE SUBPOENAS ON 

HELLOWORLD, INC.

(Document Subpoena Req. Nos. 1-7, 

17 as narrowed; and 30(b)(6) 

Deposition Subpoena)

Plaintiffs Bryan Robbins and Marvin Feiges through undersigned counsel, 

respectfully move pursuant to Fed. R. Civ. P. 45, to enforce the Subpoenas duces 

tecum (Document Subpoena) and ad testificandum (Deposition Subpoena) 

(together referred to as the “Subpoenas”) served on HelloWorld, Inc. 

(“HelloWorld”) in connection with the above-referenced action. The Subpoenas 

direct HelloWorld to produce a narrowly defined set of documents that are highly 

relevant to the prosecution of the underlying action and for the HelloWorld witness

most knowledgeable to appear at a deposition to provide testimony on the same 

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.1 Filed 04/28/14 Page 1 of 23
subjects. In compliance with L.R. 7.1(a)(2)(A), L.R. 37.1, counsel for Plaintiffs 

have met and conferred with counsel for HelloWorld and were unable to obtain 

concurrence with the relief requested. As set forth in the Memorandum of Law in 

support of this motion, good cause exists for the court to grant this motion. 

A proposed order is attached. 

Respectfully submitted,

VARNUM

Attorneys for Plaintiffs and the Proposed 

Class

Dated: April 25, 2014 By: /s/ Perrin Rynders

Perrin Rynders (P38221)

Business Address, Telephone, and E-mail:

P.O. Box 352

Grand Rapids, MI 49501-0352

(616) 336-6000

prynders@varnumlaw.com

John W. Barrett

Bailey & Glasser, LLP

209 Capitol Street

Charleston, WV 25301

(304) 345-6555

jbarrett@baileyglasser.com

Co-Counsel for Plaintiffs and the Proposed 

Class

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.2 Filed 04/28/14 Page 2 of 23
700901 i

TABLE OF CONTENTS 

I. INTRODUCTION...............................................................................................1

II. BACKGROUND.................................................................................................3

A. The Complaint ..............................................................................................3

B. Investigation To Date Has Uncovered Defendant’s “Text Sending” 

Vendors...........................................................................................................4

C. The Subpoenas...............................................................................................5

III. ARGUMENT.......................................................................................................9

A. HelloWorld Should be Compelled to Fully and Properly Comply With The 

Subpoenas.......................................................................................................9

B. HelloWorld Should Be Compelled to Produce Documents and 

Communication that refer or relate to the Plaintiffs’ numbers, Documents 

Concerning the Agreements and Instructions between HelloWorld and 

Coca-Cola, and HelloWorld’s Record Keeping Practices...........................10

C. HelloWorld Should Produce its 30(b)(6) Witness for Deposition ..............16

IV. CONCLUSION.................................................................................................16

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.3 Filed 04/28/14 Page 3 of 23
700901 ii

TABLE OF AUTHORITIES 

Cases

Coleman v. Dist. of Columbia, 275 F.R.D. 33 (D. D.C. 2011)..................................7

Gomez v. Campbell-Ewald Co., CV 10-02007 DMG CWX, 2013 WL 655237 

(C.D. Cal. Feb. 22, 2013)....................................................................................11

Himes v. Client Servs.. Inc., 12-CV-321-PB, 2014 WL 24258 (D. N.H. Jan. 2, 

2014) ...................................................................................................................11

Rendon Grp., Inc. v. Rigsby, 268 F.R.D. 124 (D. D.C. 2010)...................................7

Robbins v. The Coca-Cola Co., 13-CV-132-IEG NLS, 2013 WL 2252646 (S.D. 

Cal. May 22, 2013) .............................................................................................11

Swindell Dressler Int’l Co. v. Travelers Cas. & Sur. Co., 827 F. Supp. 2d 498 

(W.D. Pa. 2011)..................................................................................................12

Whittingham v. Amherst Coll., 164 F.R.D. 124 (D. Mass. 1995)..............................8

Rules

Fed. R. Civ. P. 26(b)(1)..............................................................................................8

Fed. R. Civ. P. 37(a)(1)..............................................................................................8

Fed. R. Civ. P. 45(a)...................................................................................................7

Fed. R. Civ. P. 45(b) ..................................................................................................7

Fed. R. Civ. P. 45(c)(2)(B)(i).....................................................................................8

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I. INTRODUCTION

Plaintiffs Bryan Robbins and Marvin Feiges instituted a class action lawsuit 

in the Southern District of California against The Coca-Cola Company (“CocaCola” or “Defendant”), for violation of the federal Telephone Consumer Protection 

Act, 47 U.S.C. § 227 et seq., (“TCPA”) for unauthorized text messaging to 

Plaintiffs’ cell phones between 2010 and early 2012. Plaintiffs learned through 

discovery that Coca-Cola engaged the services of HelloWorld, Inc. (“HelloWorld”) 

for text messaging campaigns. Plaintiffs served Subpoenas on HelloWorld for 

relevant documents and testimony. See Declaration of Ronald A. Marron (“Marron 

Decl.”), Ex. A. In support of a summary judgment motion, Coca-Cola submitted 

the Declaration of HelloWorld’s VP of Technology, admitting to HelloWorld’s

text messaging services for Coca-Cola and attesting that HelloWorld searched but 

“found no record of any text messages being sent to either of these [Plaintiffs’] 

telephone numbers.” See Marron Decl., Ex. B.

On February 26, 2014, pursuant to an extension granted by Plaintiffs, 

HelloWorld served a set of conclusory objections to the Document Subpoena, but 

did not serve any objection to the Deposition Subpoena. See Marron Decl., Ex. C. 

Although Plaintiffs reasonably expected HelloWorld to produce documents 

electronically from its counsel’s office in Connecticut or HelloWorld’s place of 

business in Michigan, Plaintiffs set forth in the Document Subpoena the address of 

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2

Plaintiffs’ counsel in the event HelloWorld instead were to produce documents by 

mailing them. HelloWorld never objected to the stated “location” for production.

See Marron Decl., Ex. C. Nevertheless, on March 13, 2014, Plaintiffs served an 

Amended Document Subpoena on counsel for HelloWorld (pursuant to an 

agreement to accept service), identical in all respects to the original Document 

Subpoena except setting forth as the technical place of production HelloWorld’s

office in Michigan, even if documents simply would be mailed from there, “or” 

plaintiffs’ counsel’s email address in the event HelloWorld preferred to email the 

documents from Michigan. See Marron Decl., Ex. D.

Significantly, in serving the Amended Document Subpoena, Plaintiffs 

expressly agreed that HelloWorld’s prior Objections/Response to the original 

Document Subpoena, and Plaintiffs’ related correspondence narrowing the 

requests, apply equally to the Amended Subpoena, with “no need for [HelloWorld] 

to serve any Objections/Response to the Amended Subpoena, instead the parties 

can rely on the previously-served Objections/Response as well as the follow up 

correspondence.” See Marron Decl., Ex. E (March 18, 2014 3:10 PM email).

In sum, despite meet and confer efforts and the narrowing of requests, as 

detailed herein, HelloWorld refuses to produce a single responsive document, and 

will not agree to a deposition. The requested documents and testimony are 

relevant to the issues in the underlying case, and HelloWorld’s objections lack 

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merit. Plaintiffs respectfully request that the Court compel HelloWorld’s

compliance with the Subpoenas, through issuance of an order directing

HelloWorld:

(1) to produce all non-privileged documents responsive 

to Document Subpoena Request Nos. 1-7 and 17 as 

narrowed, within a week of this Court’s order, by 

overnight mail to Plaintiffs’ counsel’s office;

(2) to provide at the same time a privilege log, as 

required by Rule 45, for documents that HelloWorld

withholds on the basis of a claimed privilege; and 

(3) to identify its Rule 30(b)(6) witness, and available 

dates for the deposition, to be scheduled between one and 

two weeks after the document production. 

II. BACKGROUND

A. The Complaint

The underlying matter is a nationwide class action filed in the Southern 

District of California alleging that defendant The Coca-Cola Company (“CocaCola” or “Defendant”) negligently and/or willfully contacted Plaintiffs through 

“Short Message Services” (“SMS”) or “text” messages on Plaintiffs’ cellular 

telephones without Plaintiffs’ consent, thereby invading Plaintiffs’ privacy in 

violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., 

(“TCPA”). See Marron Decl., Ex. F (Complaint). 

Like the majority of cases arising under the TCPA, the relevant facts alleged 

at the pleading stage in the Complaint are not particularly complex. This is a 

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“texting” or SMS “short message” case. SMS is a messaging system that enables 

cellular telephones to send and receive short text messages, usually limited to 160 

characters. Complaint, ¶ 9. A text message is a call that is directed to a wireless 

device though the use of the telephone numbers assigned to the device. Complaint, 

¶ 10. Cell phone users frequently must pay their wireless service providers for each 

text message they receive, or for a cellular text messaging plan, whether or not 

they authorize the receipt of the text message. Complaint, ¶¶ 11, 18. These SMS 

cases are becoming more common as companies search for additional ways to 

market their products, sending thousands of these text messages at a time, while 

violating consent requirements. As alleged in the underlying case, Cola-Cola has 

marketed its products by sending advertisements via SMS or text messaging to 

consumers. Complaint, ¶ 12. Having received Cola-Cola’s unsolicited text 

messages, Plaintiffs brought suit under the TCPA, to stop Defendant’s wrongful 

conduct and recover statutory damages. Complaint, ¶¶ 13-16. 

B. Investigation To Date Has Uncovered Defendant’s “Text

Sending” Vendors

On August 23, 2013, Plaintiffs served discovery requests on Coca-Cola, 

including Interrogatory No. 15 for identification of Coca-Cola vendors involved in 

marketing Coca-Cola products through text messaging. Coca-Cola refused to 

identify its vendors, and Plaintiffs filed a motion to compel. On December 17, 

2013, Magistrate Judge Gallo ruled that “Plaintiffs’ Motion to Compel a further 

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response to ROG No. 15 is GRANTED.” See Marron Decl., Ex. G at p. 19

(Discovery Order). On January 24, 2014, Coca-Cola served its supplemental 

interrogatory response, identifying certain vendors involved in text message 

marketing of Coca-Cola products, including HelloWorld. 

Since Plaintiffs allege receiving unauthorized Coca-Cola advertising in the 

form of text messages, and Coca-Cola identifies HelloWorld as one of its text 

message marketing vendors, third party discovery of HelloWorld through the wellsettled procedures of Fed. R. Civ. P. 45 is highly relevant to the issues in the 

underlying case. 

C. The Subpoenas

On January 31, 2014, pursuant to Fed. R. Civ. P. 45, Plaintiffs served a 

Subpoena duces tecum on HelloWorld, for production of documents responsive to 

18 requests, all relating directly or indirectly to text messaging activities on behalf 

of Coca-Cola, including but not limited to any records referring to Plaintiffs’ cell 

phone numbers. The Subpoena duces tecum (“Document Subpoena”) and proof of 

service is attached as Exhibit A to the Marron Declaration. Also on January 31, 

2014, Plaintiffs served a Rule 45 Subpoena ad testificandum on HelloWorld, for 

deposition testimony under Fed. R. Civ. P. 30(b)(6) on the same subjects as set 

forth in the requests of the Document Subpoena. The Subpoena ad testificandum

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(“Deposition Subpoena”) and proof of service is also attached as Exhibit A to the 

Marron Declaration.

On February 20, 2014, Coca-Cola filed a response in support of its summary 

judgment motion in the underlying case (in the form of an Opposition to Plaintiffs’

ex parte Rule 56(d) Application to deny summary judgment and allow time to take 

discovery). See Robbins, Dkt. No. 46. Notably, Coca-Cola’s response included a 

Declaration of HelloWorld’s VP of Technology, Nick Soulliere, admitting to 

HelloWorld’s text messaging services for Coca-Cola, and attesting that 

HelloWorld searched but “found no record of any text messages being sent to 

either of these [Plaintiffs’] telephone numbers.” See Marron Decl., Ex. B. 

On February 26, 2014, HelloWorld served Objections and Responses to the 

Document Subpoena (HelloWorld did not serve any objection or response to the 

Deposition Subpoena). See Marron Decl., Ex. C. In its Objections/Response, 

HelloWorld did not indicate any willingness to produce any responsive documents. 

On March 5, 2014, by way of a detailed correspondence explaining each 

request and the reason why production was needed, Plaintiffs sought a “meet and 

confer” conference with HelloWorld regarding its objections to the document 

requests during the week of March 10. See Marron Decl., Ex. H. In response to 

Plaintiffs’ correspondence, counsel for HelloWorld sent email correspondence on 

March 8 stating counsel was unavailable March 10

th 

– 12th, however could meet 

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and confer March 13th or 14th. See Marron Decl., Ex. I (March 8, 2014 3:22 PM 

email). Counsel thereafter arranged a conference on March 13th, however an hour 

and a half prior to the arranged conference, counsel for HelloWorld canceled and 

requested a conference the following Monday, March 17. See Marron Decl., Ex. J 

(March 13, 2014 11:28 AM email). 

On March 17, counsel for the parties met and conferred regarding each 

document request. See Marron Decl., ¶ 12. Requests 2-7 of the Document 

Subpoena specifically refer to documents and communications related to the 

Plaintiffs’ cellular telephone numbers in the underlying matter. See Marron Decl., 

Ex. A. HelloWorld had only provided boilerplate objections in its response to 

Requests 2-7, and did not provide any substantive response as to the search it 

conducted for records relating to Plaintiffs’ numbers. During the conference 

counsel for HelloWorld merely repeated that HelloWorld found no record of any 

text messages being sent to either of the Plaintiffs’ telephone numbers provided in 

the Subpoena. See Marron Decl., ¶ 13. But the actual requests specifically seek “all 

communications...that refer or relate to the phone number[s]” of the Plaintiffs, 

“[a]ll documents that relate to how [HelloWorld] acquired the phone number[s]” of 

the Plaintiffs, and “[a]ll documents containing or that refer or relate to the phone 

number[s]” of the Plaintiffs. Counsel for HelloWorld advised that HelloWorld only 

conducted a search for incoming and outgoing messages to the Plaintiffs’ numbers. 

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Id. HelloWorld has not and will not conduct a general search of its records for 

documents and communications related to the Plaintiffs’ numbers (from January 

16, 2009 to the present, as narrowed by Plaintiffs during the conference), 

regardless of whether those same records constitute incoming or outgoing 

messages. Id. 

Furthermore, during the conference, counsel for Plaintiffs further narrowed 

each remaining request to “documents sufficient to identify and describe ...” rather 

than “all documents that relate” to the specific subject of each request. See Marron 

Decl., ¶ 14. As Plaintiffs explained during the conference, this narrowing would 

essentially only require HelloWorld to produce a very limited amount of 

documents on each subject, perhaps even just one or two on any given subject, so 

long as they were sufficient to identify and describe the subject. See Marron Decl., 

¶ 14. 

In addition, for the purpose of this Motion, Plaintiffs further narrow the 

Document Subpoena to Request No. 1-7 and 17.

In sum, the following identifies the eight document requests, as further 

narrowed by Plaintiffs through the prior meet and confer process, for which 

HelloWorld steadfastly refuses to produce responsive documents, and for which 

Plaintiffs now move to compel:

Request No. 1: All contracts, agreements, written understandings, and 

instructions between HelloWorld and Coca-Cola, in effect from January 16, 

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2009 until the present, which relate to HelloWorld text messaging/mobile 

messaging services.

Request No. 2: All DOCUMENTS containing or that REFER or RELATE 

TO the phone number (619) 779-3203.

Request No. 3: To the extent not duplicative or prior requests, all 

COMMUNICATIONS between YOU and COCA-COLA containing, or that 

REFER or RELATE TO the phone number (619) 779-3203.

Request No. 4: To the extent not duplicative or prior requests, all 

DOCUMENTS that RELATE TO how YOU acquired the phone number 

(619) 779-3203.

Request No. 5: All DOCUMENTS containing or that REFER or RELATE 

TO the phone number (443) 529-6948.

Request No. 6: To the extent not duplicative or prior requests, all 

COMMUNICATIONS between YOU and COCA-COLA containing, or that 

REFER or RELATE TO the phone number (443) 529-6948.

Request No. 7: To the extent not duplicative or prior requests, all 

DOCUMENTS that RELATE TO how YOU acquired the phone number 

(443) 529-6948.

Request No. 17: Documents sufficient to identify and describe in detail 

YOUR document retention procedures, policies and practices, from January

16, 2009 to the present, including without limitation such DOCUMENTS 

that REFER, RELATE TO or REFLECT COMMUNICATIONS, 

instructions, understandings, or requests from COCA-COLA that RELATE 

TO such document retention procedures, policies and practices.

III. ARGUMENT

A. HelloWorld Should be Compelled to Fully and Properly Comply 

With The Subpoenas As Narrowed

Rule 45 of the Federal Rules of Civil Procedure provides the framework for 

securing from non-parties, through the use of subpoenas, documents including

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electronically stored information, as well as testimony and tangible things, relevant 

to a pending litigation. Fed. R. Civ. P. 45(a), (b). It is well settled that the scope of 

a Rule 45 subpoena is informed by Rule 26, which governs civil discovery 

generally. E.g., Coleman v. Dist. of Columbia, 275 F.R.D. 33, 36 (D. D.C. 2011); 

Rendon Grp., Inc. v. Rigsby, 268 F.R.D. 124, 126 (D. D.C. 2010) (“Rule 26 of the 

Federal Rules of Civil Procedure defines and governs the scope of discovery for all 

discovery devices, and, therefore, Rule 45 must be read in light of it.”). Rule 

26(b)(1) provides that “Parties may obtain discovery regarding any non-privileged 

matter that is relevant to any party’s claim or defense....” Fed. R. Civ. P. 26(b)(1). 

As uniformly recognized throughout the federal court system, “[a]s a general 

matter, relevancy must be broadly construed at the discovery stage, that is 

information is discoverable if there is any possibility it might be relevant to the 

subject matter of the action.” Whittingham v. Amherst Coll., 164 F.R.D. 124, 126

(D. Mass. 1995) (emphasis added). The Federal Rules also provide federal courts 

with the power to compel compliance with subpoenas that seek relevant 

information. See Fed. R. Civ. P. 45(c)(2)(B)(i); Fed. R. Civ. P. 37(a)(1). 

B. HelloWorld Should Be Compelled to Produce Documents and 

Communication that refer or relate the Plaintiffs’ numbers,

Documents Concerning the Agreements and Instructions between 

HelloWorld and Coca-Cola, and HelloWorld’s Record Keeping 

Practices

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Plaintiffs in the underlying action have provided sworn deposition testimony 

regarding unauthorized text messages that they received between 2010 and early 

2012 that advertised Coca-Cola products. However, as is often the case in these 

matters, due to the annoying nature of unwanted text messages, Plaintiffs deleted 

the Coca-Cola text messages from their cell phones. Coca-Cola did not itself 

directly send the text messages, but instead engaged the services of outside vendors 

that are in the business of conducting text message marketing campaigns on behalf 

of their clients. Although it resisted discovery, Coca-Cola was compelled by the 

court in the underlying action to identify its text message marketing vendors, 

specifically to enable Plaintiffs to obtain discovery from these vendors. See

Discovery Order, Robbins, Dkt. No. 35, attached as Marron Decl. Ex. G, at p. 18 

(“The Court has granted Plaintiffs’ Motion to Compel a further response to ROG 

No. 15 below, and thus, Plaintiffs will have the identity of each vendor used by 

Defendant [Coca-Cola] that involved the marketing of Defendant’s products via 

the use of text messaging during the class period”). Pursuant to the court’s 

discovery order, Coca-Cola identified HelloWorld as one of these text messaging 

vendors. 

Request No. 1 as narrowed seeks the contracts, agreements, understandings 

and instructions governing HelloWorld’s relationship with Coca-Cola during the 

class period relating to text messaging services. This information is highly relevant 

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to the issue of whether, how and to what extent the business relationship involved

the acquisition, maintenance, distribution, circulation, deletion and other 

disposition of the cell phone numbers that HelloWorld uses to conduct its text 

messaging campaigns on behalf of Coca-Cola. Indeed, such information is 

reasonably calculated to lead to the discovery of admissible evidence as to the 

extent to which HelloWorld has constructed a mobile text messaging business 

model with the effect, if not the actual intent, of quickly discarding or otherwise 

concealing cell phone records to enable itself and Coca-Cola to better avoid or 

defeat claims of unauthorized text messaging. 

As with Coca-Cola refusing to identify its text messaging vendors until 

compelled by court order (only after a many-month process of service of discovery 

requests, service of responses, required meet and confer correspondence and 

conferences, and motion practice finally leading to discovery orders), HelloWorld, 

by a request for an extension to only then produce objections and then the delay of 

a meet and confer conference, has pursued the same delay tactics and obstructionist

litigation strategy as employed by its Coca-Cola client. Essentially, HelloWorld

has added a second layer of obstruction to discovery, adamantly refusing to 

produce a single responsive document despite Plaintiffs unilaterally and repeatedly 

narrowing the scope of the Document Subpoena. Together, Coca-Cola and 

HelloWorld are playing a shell game with relevant information, hiding it for as 

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long as possible, and potentially forever depending on how long HelloWorld

maintains such information. 

At this point, due to the limited information produced thus far, Plaintiffs are 

unaware if documents and communications related to Plaintiffs’ numbers are even

still in existence, thus documents governing HelloWorld’s relationship with its 

Coca-Cola client in rendering text messaging services are of increased probative 

value, including those describing the different text messaging campaigns that 

HelloWorld conducted for Coca-Cola during the relevant time period, how 

HelloWorld obtained phone numbers for those Coca-Cola campaigns, the extent to 

which Coca-Cola owns or otherwise has control over the phone numbers and 

databases containing phone numbers and call record information, what HelloWorld

did for Coca-Cola with the numbers, who HelloWorld sent the numbers to on 

behalf of Coca-Cola, how (and for how long) HelloWorld maintained and accessed 

those numbers to provide its services to Coca-Cola, what HelloWorld did upon 

receiving responses (including removal requests) from those it sent text messages 

to on behalf of Coca-Cola, and when, how and why HelloWorld deleted, 

transferred, and otherwise disposed of those numbers (for example, at Coca-Cola’s 

instruction or otherwise as governed by HelloWorld’s contracts, agreements and 

understandings with Coca-Cola). All such information is highly relevant in that, 

among other things, it is likely (at least inferentially and circumstantially) to 

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corroborate Plaintiffs’ testimony that they received unauthorized text messages 

advertising and promoting Coca-Cola products from 2010 to early 2012.

Request No. 2-7 as narrowed seek documents and communications that 

refer or relate to the Plaintiffs’ phone numbers. In response to Plaintiffs’ Document 

Subpoena, HelloWorld claimed during the meet and confer conference that it 

searched its records for any text messages being sent to either of the Plaintiffs’ 

telephone numbers. However, HelloWorld has not and will not conduct a general 

search of its records for documents and communications related to the Plaintiffs’ 

numbers (limited in scope by Plaintiffs’ counsel during the conference to January 

16, 2009 to the present). Such a search is highly relevant, as it is extremely likely 

that if HelloWorld indeed has records referring or relating to the Plaintiffs’ 

numbers, then text messages were in fact sent to Plaintiffs as Plaintiffs allege in 

their Complaint. 

The fact that HelloWorld searched only for text messages, but will not 

search for any record of Plaintiffs’ numbers in its databases is very suspicious, and 

suggests that HelloWorld already knows that it sent text messages to Plaintiffs’ 

numbers, but hides that by relying on the fact that it maintains its records in a 

manner that would no longer show the actual texting to those numbers, yet still 

have a record of the numbers themselves. There could hardly be information more 

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relevant to the underlying case, and HelloWorld should not be permitted to conceal 

such evidence.

Request No. 17 as narrowed seeks documents sufficient to describe in 

detail HelloWorld’s record retention policies, procedures and practices during the 

class period, including those relating to communications, instructions, 

understandings, and requests involving Coca-Cola.

Among other things, such information is relevant to the issue of whether 

HelloWorld has constructed an irresponsible record retention policy or practice, 

intentionally or negligently, (especially in light of the 4-year statute of limitations 

for TCPA claims, and the fact that “express consent” is an affirmative defense to 

be established by those accused of unauthorized text messaging under the TCPA).1

The requested documents are also relevant whether HelloWorld has acted in 

accordance or inconsistently with its record retention policies and practices, and 

whether in the underlying case there should be negative evidentiary inferences 

 

1

In TCPA actions, express consent is not an element of a TCPA plaintiff’s prima facie case, but rather is 

an affirmative defense for which the defendant bears the burden of proof. Himes v. Client Servs. Inc., 12-

CV-321-PB, 2014 WL 24258 (D. N.H. Jan. 2, 2014); see also Robbins v. The Coca-Cola Co., 13-CV132-IEG NLS, 2013 WL 2252646 (S.D. Cal. May 22, 2013). A four-year statute of limitations applies to 

TCPA claims. Gomez v. Campbell-Ewald Co., CV 10-02007 DMG CWX, 2013 WL 655237 (C.D. Cal. 

Feb. 22, 2013). Thus, as the defendant bears the burden of proof as to express consent, it would make 

sense that consent records are maintained by and on behalf of defendant for, at the very least, the statute 

of limitation period. 

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based on spoliation of evidence arising from HelloWorld’s irresponsible document 

retention policies and practices.

2

 

C. HelloWorld Should Produce its 30(b)(6) Witness for Deposition

It is undisputed that HelloWorld was properly served with a Subpoena for 

the deposition of a 30(b)(6) witness. Further, HelloWorld has provided a 

declaration to Coca-Cola to use in support of its response to Plaintiffs’ ex parte 

application pursuant to Rule 56(d). The declaration is signed by Nick Soulliere, VP

of Technology for HelloWorld, attesting that HelloWorld searched but “found no 

record of any text messages being sent to either of these [Plaintiffs’] telephone 

numbers.” See Marron Decl., Ex. B; Robbins, Dkt. No. 46-9. Plaintiffs should be 

afforded the right to depose HelloWorld’s 30(b)(6) witness on issues relevant to 

the underlying case, including those for which HelloWorld’s VP of Technology

has submitted a declaration in the case.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court, 

pursuant to Fed. R. Civ. P. 45, compel HelloWorld’s compliance with the 

 

2

“[C]ourts have held that the adverse inference [of spoliation] is justified where evidence has been 

negligently destroyed...’[i]f a party has notice that evidence is relevant to an action, and either proceeds 

to destroy that evidence or allows it to be destroyed by failing to take reasonable precautions, common 

sense dictates that the party is more likely to have been threatened by that evidence.’” Swindell Dressler 

Int’l Co. v. Travelers Cas. & Sur. Co., 827 F. Supp. 2d 498, 506 (W.D. Pa. 2011). “[T]he Court should 

determine whether [the] record retention policy is reasonable considering the facts and circumstances 

surrounding the relevant documents [and] whether the document retention policy was instituted in bad 

faith.” Id. at 508.

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Subpoenas, through issuance of an order directing HelloWorld (1) to produce all 

non-privileged documents responsive to Document Subpoena Request Nos. 1-7

and 17 as narrowed, within a week of this Court’s order, by overnight mail to 

Plaintiffs’ counsel’s office; (2) to provide at the same time a privilege log, as 

required by Rule 45, for all such responsive documents that HelloWorld withholds 

on the basis of a claimed privilege; and (3) to identify its witness(es) on the Rule 

30(b)(6) topics in the Deposition Subpoena, and available dates for the deposition, 

to be scheduled between one and two weeks after the document production. 

Respectfully submitted,

VARNUM

Attorneys for Plaintiffs and the Proposed 

Class

Dated: April 28, 2014 By: /s/ Perrin Rynders

Perrin Rynders (P38221)

Business Address, Telephone, and E-mail:

P.O. Box 352

Grand Rapids, MI 49501-0352

(616 )336-6000

prynders@varnumlaw.com

John W. Barrett

Bailey & Glasser, LLP

209 Capitol Street

Charleston, WV 25301

(304) 345-6555

jbarrett@baileyglasser.com

Co-Counsel for Plaintiffs and the Proposed 

Class

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.21 Filed 04/28/14 Page 21 of 23
UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

BRYAN ROBBINS & MARVIN FEIGES, 

on behalf of themselves, all others similarly 

situated, and the general public,

Plaintiffs,

v.

THE COCA-COLA COMPANY, a 

Delaware Corporation,

Defendant.

CERTIFICATE OF SERVICE

I hereby certify that Plaintiffs’ Motion to Enforce Subpoenas was served on 

the following persons by First Class Mail on this 28th day of April, 2014 in the 

manner set forth below:

Michael Q. English

FINN DIXON & HERLING LLP

177 Broad Street

Stamford, CT 06901

(first class mail)

 /s/ Perrin Rynders

Perrin Rynders

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.22 Filed 04/28/14 Page 22 of 23
UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

BRYAN ROBBINS & MARVIN FEIGES, 

on behalf of themselves, all others similarly 

situated, and the general public,

Plaintiffs,

v.

THE COCA-COLA COMPANY, a 

Delaware Corporation,

Defendant.

ORDER

Upon consideration of Plaintiffs Bryan Robbins and Marvin Feiges’ Motion 

to Enforce Subpoenas, the opposition thereto and the entire record in the case, 

Plaintiffs’ Motion to Enforce Subpoenas is hereby GRANTED.

______________________ ___________________________________

Dated Signed

Case 2:14-mc-50538-AC-DRG ECF No. 1, PageID.23 Filed 04/28/14 Page 23 of 23