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Tuesday, November 12, 2019

TCPA defendant wants access to plaintiff's cell phone; Attorneys resisting Royal Sea Cruise's effort

By Glenn Minnis | May 9, 2018

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SAN DIEGO (Legal Newsline) – Royal Sea Cruise has filed a memorandum of points and authorities in U.S. District Court for the Southern District of California aimed at bolstering its motion seeking to compel arbitration in a telephone harassment suit.

Attorneys for RCS told the federal court they have been seeking cooperation on the matter with the plaintiffs for more than two months with no success.

The April 16 motion specifically asks the court “to correct incomplete and otherwise deficient discovery responses, withdraw meritless objections, and to fully and completely respond to interrogatories, requests for production of documents, requests for admission, and a request for inspection."

John McCurley filed suit individually and behalf of others similarly situated against Royal Cruise in May 2017 over allegations of violations of telephone harassment statutes.

On numerous occasions, McCurley, of San Diego County, alleges that in 2013 the company repeatedly called him on his cellphone in violation of the Telephone Consumer Protection Act and despite his ongoing requests that they cease with the intrusions.

Represented by attorneys Joshua Swigart and Kevin Lemieux of San Diego-based Hyde & Swigart and Abbas Kazerouni of nearby Kazerouni Law Group APC in Costa Mesa, McCurley seeks a trial by jury, $500 in statutory damages, injunctive relief, $1,500 in treble damages and any other just relief.

Federal law for civil procedures stipulates that “'[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection' and a party moving to compel discovery bears the initial burden of proving the relevance of the requested information,” according to the defendant's motion.

Discovery is considered relevant if it is deemed to be “'proportional to the needs of the case, considering the importance of the issues at stake in the action,'” the motion states.

RCS’ request includes asking the court to compel McCurley to turn over his cell phone and other electronic devices for inspection with 30 days, all at his own expense.

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U.S. District Court for the Southern District of California