2014-0211 Bifurcating Discovery To Reduce Costs

It's a tale as old as the Telephone Consumer Protection Act ("TCPA"): defendant Janssen Pharmaceuticals sent out a fax reporting on the reclassification of its drug Levaquin for insurance purposes. The plaintiff sued it for violating the TCPA, claiming the fax was an advertisement; Janssen responded that the content of the fax was informational. It won a motion to dismiss, but the court allowed the plaintiff to file an amended complaint.

At that point, Janssen moved the court to bifurcate discovery. But where the typical motion to bifurcate asks for merits discovery after class-related discovery, Janssen asked for the first phase to target the narrow merits issue of whether the fax was an advertisement (in which case it violated the TCPA) or informational (in which case it did not). Janssen argued that doing so would save money and judicial resources: better to decide the big issue now and see if there was a case at all than engage in potentially ruinous