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 asymmetrical discovery. The plaintiffs opposed, arguing that a four-month delay in class certification would prejudice the case.
The court, in Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. 12-2132, 2014 U.S. Dist. LEXIS 13523 (D.N.J. Feb. 4, 2014), agreed to bifurcate:
Here, the Court finds that bifurcating discovery as proposed by Defendants is warranted under Rule 42(b). In this regard, the Court agrees with Defendants that a narrow, potentially dispositive issue exists concerning whether the faxes sent to Plaintiffs are informational and therefore not actionable under the TCPA. … Moreover, the Court also finds that bifurcating the two issues has the potential to save the parties and the Court from the substantial costs and burdens associated with whole scale class action discovery.
The lesson here? Bifurcation is a tool, and a versatile one. If placing a narrow merits issue first will help reduce costs, it is worth asking the court to do so.