Deposing the TCPA Plaintiff: Questions That Build Your Defenses

In a TCPA class action, the named plaintiff’s deposition is often the defense’s best chance to test the complaint under oath, and the federal rules usually cap it at seven hours. The hours go furthest on a few subjects: the phone and who uses it, how the number reached the company, what the calls said, and the plaintiff’s litigation history. In my view, a company that prepares those topics often leaves with class-certification defenses it didn’t have that morning.

Why does the named plaintiff’s deposition matter so much?

Because it’s where a defense stops being a theory and becomes evidence. The Ninth Circuit held in True Health Chiropractic, Inc. v. McKesson Corp., a fax case, that the defendant carries the burden on consent, and that at class certification “we do not consider the consent defenses that McKesson might advance or for which it has presented no evidence.” A consent defense with no evidence behind it doesn’t count against certification.

Under Federal Rule of Civil Procedure 30(d)(1), “Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” The court must allow more time if it’s needed to fairly examine the witness. Ask for it in a complicated case. I’d plan the examination backward from the class-certification opposition: decide which defenses the company will argue there, then make sure each one has a page and line of testimony behind it.

Our post on proving consent at summary judgment covers getting the company’s own consent records admitted.

Whose phone is it, and who actually uses it?

Start with the account, because the answer decides whose consent counts. The Ninth Circuit held in N.L. v. Credit One Bank, N.A. that “Credit One’s intent to call a customer who had consented to its calls does not exempt Credit One from liability under the TCPA when it calls someone else who did not consent.” The number there had been reassigned to a mother who let her son use it. The court left one question open: “We do not decide what the result would be if one, but not the other, had consented.”

I’d want the deposition to pin down who’s named on the carrier account, who pays the bill, who carries the phone day to day, and when the plaintiff got the number. If the company’s consent came from a former owner of a reassigned number, you want to know that before class-certification briefing.

Ask what kind of line it is. The autodialer and prerecorded-voice restriction for wireless numbers in 47 U.S.C. § 227(b)(1)(A)(iii) reaches cellular service and “any service for which the called party is charged for the call.” Whether the line is wireless, internet-based, or a business line can change which provisions apply. Ask how many numbers the plaintiff has.

How did the number reach the company?

Ask about every email address and phone number the plaintiff has used, every quote, loan, insurance, or sweepstakes site they remember visiting, and every purchase from the company or its brands. I’d show the plaintiff the company’s consent record and have them confirm or deny it field by field.

For Do Not Call claims, the FCC’s rule treats a “purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call” as a basis for an established business relationship, if it was formed by a voluntary two-way communication and neither side has ended it, under 47 C.F.R. § 64.1200(f)(5). An inquiry within three months also counts. The same rule excludes from the definition of a telephone solicitation any call “To any person with that person’s prior express invitation or permission,” in § 64.1200(f)(15). Whether consent covered the particular call is its own question, which we took up in our post on the scope of TCPA consent.

The plaintiff’s own path to the company also previews the class fight. In True Health, the court affirmed the denial of certification for customers whose consent rested on individual communications with sales representatives, holding that the variation in those communications, shown through testimony from McKesson’s own sales representatives, “is enough to support denial of class certification under Rule 23(b)(3),” according to the opinion. It reversed as to a larger group whose consent rested on uniform product registrations and license agreements, so uniform records cut the other way. That’s why the named plaintiff’s own path onto the call list is worth building out.

Was the number on the Registry, and was it really residential?

The rule protects “A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry,” under § 64.1200(c)(2). The private claim belongs to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the Do Not Call rules, under 47 U.S.C. § 227(c)(5). Ask who registered the number and on what date. Ask whether the plaintiff kept the confirmation. I’d then line the registration date up against each call.

On residential use, the Ninth Circuit’s test in Chennette v. Porch.com, Inc. supplies the outline. A cell phone on the Registry that’s used for both personal and business purposes is presumed residential, and a defendant can rebut that by looking at “(1) how plaintiffs hold their phone numbers out to the public; (2) whether plaintiffs’ phones are registered with the telephone company as residential or business lines; (3) how much plaintiffs use their phones for business or employment; (4) who pays for the phone bills; and (5) other factors bearing on how a reasonable observer would view the phone line.” Chennette built its presumption from FCC orders, and after McLaughlin Chiropractic Associates v. McKesson Corp. in June 2025, a defendant can argue that courts should read “residential” for themselves. Either way, I’d treat each factor as its own deposition question. Ask about business cards, websites, online listings, and whether an employer reimburses the bill.

In an unpublished 2023 decision, Barton v. Leadpoint, Inc., the Ninth Circuit affirmed the dismissal of a texting claim on an alternative ground, that the number wasn’t residential, relying on the plaintiff’s own description of it and reasoning that “Because Barton uses the (718) area code number only for litigation purposes, a reasonable observer likely would not think that Barton has legitimate privacy concerns regarding that code number.”

What did the calls say, and did the plaintiff want any of them?

I’d walk through every call and text in order. Ask what was said, whether the plaintiff answered, whether they ever asked for more information, and how they asked the company to stop. The FCC’s rule says a called party may revoke consent to the calls and texts it covers “by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender,” under § 64.1200(a)(10). The exact words the plaintiff used, and when, matter.

Questions about whether the plaintiff wanted the calls can defeat class certification on their own. In Wiley v. American Financial Network, Inc., a 2023 decision from the Central District of California, the company offered evidence that the plaintiff had left it a voicemail asking for a return call and later asked a representative to call back that evening. The plaintiff disputed it. The court denied certification anyway, writing that “This evidence makes class certification inappropriate whether or not it is actually true that Plaintiff asked Defendant to contact her.” I think that’s the most underused idea in TCPA defense: the company doesn’t have to win the factual dispute about the named plaintiff to show that the dispute will swamp the class case.

Has the plaintiff sued, or threatened to sue, before?

Ask about every prior TCPA lawsuit, demand letter, and settlement, and about the plaintiff’s relationship with their lawyers. Rule 23 requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” under Federal Rule of Civil Procedure 23(a)(3). In Hanon v. Dataproducts Corp., a securities case, the Ninth Circuit agreed that certification should not be granted if, in the Second Circuit’s words, “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Our post on release terms for individual TCPA settlements covers what those earlier agreements usually contain.

Some TCPA courts have applied the same rule. In Nghiem v. Dick’s Sporting Goods, Inc., the court’s order, drawing on his deposition and defense declarations, recounts that he was a lawyer who had handled TCPA cases for plaintiffs, that he had signed up for several text-message programs, and that the law firm he worked for had sent the retailer and its subsidiary five demand letters on behalf of four other clients. The court denied certification on typicality and adequacy grounds, explaining in a footnote that “It does not matter whether Defendants will ultimately prevail on these defenses. What matters is that Defendants will assert these defenses, and they have a factual basis for doing so.”

Be careful not to overplay it. A long litigation history isn’t a defense on its own. In Cunningham v. Rapid Response Monitoring Services, Inc., a Tennessee federal court refused to dismiss a repeat filer’s case for lack of standing (though it dismissed his Do Not Call count for failure to plead residential use), writing that it “sees no authority for the proposition that his privacy interests ceased to exist merely because he realized that he could profit from suing for their invasion.” In my view, the serial-plaintiff label is overused. What moves a judge is a specific fact tying the plaintiff’s own conduct to the calls in this case.

Where are the phone and the records?

I’d ask what device received the calls, whether it still exists, whether any texts, call logs, or voicemails were deleted, and whether the plaintiff used a call-blocking or spam-labeling app. Ask about screenshots and any call log the plaintiff kept, as the plaintiff in Stoops, discussed below, did. If phone data that should have been preserved is lost because the plaintiff didn’t take reasonable steps to keep it, and it “cannot be restored or replaced through additional discovery,” Rule 37(e) applies, and the remedy depends on prejudice and intent.

The Ninth Circuit affirmed dismissal of a plaintiff’s case for intentionally deleted texts in Jones v. Riot Hospitality Group LLC, an employment case. Among the facts the court noted was that “Jones and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging.” The questions transfer directly: when did the plaintiff last replace the phone, and where’s the old one?

The same opinion acknowledged “a strong privacy interest in the contents of mobile phones” but upheld forensic searches limited to agreed search terms, after testimony and vendor data pointed to deleted messages. That’s the kind of record a deposition can build.

What harm does the plaintiff claim?

In the Ninth Circuit, an individual plaintiff’s standing is hard to defeat. The court reasoned in Van Patten v. Vertical Fitness Group, LLC, in holding that the plaintiff had alleged a concrete injury, that “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Showing that the plaintiff was only mildly annoyed won’t win on standing.

The exception is the plaintiff who wanted the calls. In Stoops v. Wells Fargo Bank, N.A., a Pennsylvania federal court quoted deposition testimony in which the plaintiff described buying dozens of cell phones and said of suing over calls, “It’s my business. It’s what I do.” The court granted summary judgment to the bank, holding that the admissions in her testimony “amply support the Court’s conclusion that Plaintiff has not suffered an injury-in-fact.” Stoops is an outlier, and Cunningham disagreed with it, but it shows what testimony can do.

Harm questions matter more for the class. The Supreme Court held in TransUnion LLC v. Ramirez that “Every class member must have Article III standing in order to recover individual damages,” while noting in a footnote, “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.” Testimony that the named plaintiff welcomed some messages, or never noticed them, helps show how much the class members’ experiences differ.

Deposition topics at a glance

Before the deposition notice goes out

1. Put the call and text logs, the dialer or platform data, and the consent records for the plaintiff’s number under a litigation hold.
2. Pull the opt-out and internal do-not-call history for the number, with the date and wording of each request.
3. Pull the National Do Not Call Registry scrub records and the Registry version dates for every campaign that reached the number.
4. Gather the vendor and lead-source contracts, the call scripts, and any recorded or AI-voice message files the plaintiff heard.
5. Talk to a lawyer before answering a demand letter, contacting the plaintiff, or making any settlement offer.

The firm’s page for TCPA defense attorneys in California covers how claims involving disputed consent and class certification are evaluated, from the records to the first response.

Questions businesses ask about deposing a TCPA plaintiff

Can we ask the named plaintiff about other TCPA lawsuits?

Usually, yes. A named plaintiff’s prior suits, demand letters, and settlements bear on typicality and adequacy under Rule 23, and courts have relied on that testimony to deny certification. Courts still control the scope of discovery, so tie each question to a class-certification issue.

When should we take the named plaintiff’s deposition?

I’d take it after the plaintiff has produced documents and the company’s own call records are organized, but well before the class-certification opposition is due. Too early, and the seven hours go to questions the documents would have answered. Too late, and there’s no time to follow up with subpoenas.

Does testimony that the plaintiff didn’t mind the calls end the case?

Not by itself in the Ninth Circuit, where unwanted telemarketing calls and texts are treated as a concrete injury. That testimony does more work at class certification, where it can show that the named plaintiff’s experience differs from the class. Facts like those in Stoops, where the plaintiff set out to receive the calls, are the unusual exception.

Preparing to depose a TCPA plaintiff

If your company is defending a TCPA class action, the named plaintiff’s deposition is often where the consent and class-certification record is made. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving disputed consent and class certification. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act, 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as in effect on August 22, 2025. The procedural rules are Federal Rules of Civil Procedure 23, 30, and 37.

The court decisions are TransUnion LLC v. Ramirez, 594 U.S. 413 (2021); McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., No. 23-1226 (U.S. June 20, 2025); Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923 (9th Cir. 2018); N.L. v. Credit One Bank, N.A., 960 F.3d 1164 (9th Cir. 2020); Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022); Barton v. Leadpoint, Inc., No. 22-35130 (9th Cir. July 20, 2023) (unpublished); Jones v. Riot Hospitality Group LLC, 95 F.4th 730 (9th Cir. 2024); Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782 (W.D. Pa. 2016); Nghiem v. Dick’s Sporting Goods, Inc., 318 F.R.D. 375 (C.D. Cal. 2016); Cunningham v. Rapid Response Monitoring Services, Inc., 251 F. Supp. 3d 1187 (M.D. Tenn. 2017); and Wiley v. American Financial Network, Inc., No. 8:22-cv-00244-CJC (C.D. Cal. July 3, 2023).

This post is general information about the Telephone Consumer Protection Act and related laws as of August 22, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.