Bifurcated Discovery Is Alive and Well

I’ll keep this brief: If you're a defendant in a TCPA class action and the judge requires a joint proposed scheduling order, your counsel should always request bifurcated (or phased) discovery.

This means that instead of conducting discovery on both the plaintiff’s individual claims and class-wide issues simultaneously, the first phase focuses solely on the merits of the named plaintiff’s claim.

Why Does This Matter?

The goal is simple: ensure the named plaintiff has a valid individual case before diving into costly, invasive, and potentially unnecessary class-wide discovery.

If discovery reveals that the plaintiff’s claims lack merit, you can move for early summary judgment. If the court grants it, the case ends before class-wide discovery even begins—saving significant time, money, and effort.

Is It Worth the Ask?

Some attorneys argue that courts rarely grant bifurcated discovery, so the request may not be worth it. But making the request in a proposed scheduling order costs very little, and if granted—like it was for us this week in the Western District of Missouri—it can shift the entire case dynamic. Bonus: it could save your client a substantial amount of money.

Bifurcated discovery isn’t dead. It’s a smart, strategic move—one worth pursuing.