Recruiters who contact candidates by text message should take note of a recent decision out of the Western District of Virginia. In Kattato v. Cross Country Healthcare, Inc., No. 7:23-CV-00485 (W.D. Va. Feb. 23, 2026), the Court granted the plaintiff’s motion to compel discovery of phone numbers, text message dates, and related records that could be used to identify a class of individuals who received recruiting text messages in alleged violation of the Telephone Consumer Protection Act (“TCPA”).

The plaintiff, a certified registered nurse anesthetist, was contacted by two healthcare recruiters about travel healthcare job opportunities. Although the plaintiff initially consented to be contacted, he eventually grew frustrated with the text messages and repeatedly asked to be removed from the recruiters’ contact list. Despite those requests, the recruiters allegedly continued to text him about job opportunities.

The plaintiff filed suit in August 2025, asserting two claims under the TCPA on behalf of himself and a putative class. Count I alleged that the defendants violated the TCPA’s Internal Do Not Call List provisions under 47 C.F.R. § 64.1200(d) by failing to honor his request to stop receiving solicitations (“Internal DNC Claim”). Count II alleged that the defendants violated the National Do Not Call Registry provisions under 47 U.S.C. § 227(c)(5) by placing telephone solicitations to a phone number that had been registered on the National Do Not Call Registry since May 2019 (“National DNC Claim”).

The Discovery Dispute

As part of pre-class certification discovery, the plaintiff served interrogatories and requests for production seeking information about other individuals who received similar text messages from the defendants. After unsuccessful attempts to resolve the dispute through meet-and-confers, the plaintiff filed a motion to compel. His discovery requests, which he described as “pared back” from his original requests, sought four categories of information:

  1. The phone numbers of individuals who met the Internal Do Not Call List class definition: i.e., “all persons to whom, Defendants (or Defendants’ agent) [sent] two or more text messages about a health-care position … more than 30 days following a request by such individual not to receive such communication … from August 4, 2019 to present.”
  2. Information and Documents reflecting the dates texts were sent to those identified in Category # 1 and the dates in which those individuals were requested to be placed on the Internal Do Not Call List.
  3. The phone numbers of individuals who met a portion of the National Do Not Call Registry class definition: those who received two or more recruiting texts within a twelve-month period from August 4, 2019 to present.
  4. Documents reflecting the dates texts were sent to the phone numbers identified in the third request.

The defendants opposed the motion on two primary grounds. First, they argued that the discovery was irrelevant because they were engaged in “recruiting,” not “telemarketing,” and the TCPA applies only to telemarketing. Second, they contended that the discovery was disproportionate because the requested materials were held by third-party vendors, making production unduly burdensome.

The Court’s Analysis

The Court rejected the defendants’ relevance objections as to all four discovery requests. For the Internal DNC Claim, the Court noted that the discovery requests directly addressed the elements of a claim under 47 C.F.R. § 64.1200(d)(3), including whether the defendants made multiple calls for commercial purposes and failed to honor do-not-call requests. For the National DNC Claim, the Court similarly found that the requests sought information going to the core elements of a claim under 47 U.S.C. § 227(c)(5)—namely, whether telephone solicitations were placed to numbers on the National Do Not Call Registry more than once within a twelve-month period.

On proportionality, the Court found that the defendants failed to carry their burden. Although the defendants characterized their tracking system as “very clunky,” they did not submit an affidavit estimating the cost of compliance in opposing the motion to compel. The Court noted that an objecting party “must allege specific facts that indicate the nature and extent of the burden, usually by affidavits or other reliable evidence,” and the defendants’ vague assertions fell short.  The court then walked through all six proportionality factors under Rule 26(b)(1) and found that a majority favored granting the motion:

  • Importance of the issues: The Court found that vindicating the privacy interests of the putative class members was an important issue, consistent with the TCPA’s purpose of protecting consumer privacy.
  • Amount in controversy: Neutral, as neither party clearly established the amount in controversy, though the plaintiff alleged aggregate damages potentially in the millions of dollars.
  • Relative access to information: Favored the plaintiff because the defendants had greater access to the records held by their third-party vendors.
  • Parties’ resources: Neutral, as neither party made a sufficient showing.
  • Importance of discovery in resolving the issues: Favored the plaintiff, as the discovery was necessary for him to establish class certification requirements such as numerosity, commonality, and typicality.
  • Burden vs. benefit: Favored the plaintiff, because the defendants failed to quantify or even estimate the costs of producing the requested discovery.

The Court ordered the defendants to produce the requested materials within 30 days.

Key Takeaways

This decision holds several important lessons for companies that use text messaging as part of their recruiting or marketing operations.

  • The TCPA may apply to recruiting texts in certain circumstances. The defendants’ principal argument—that they were engaged in recruiting, not telemarketing—did not carry the day at the discovery stage. The Court did not foreclose the argument on the merits, but it was not enough to shield the defendants from pre-certification discovery. Businesses that use text messages to recruit workers should be aware that courts may treat those messages as solicitations.
  • Maintain robust internal do-not-call procedures. This case underscores the need for companies to maintain effective internal do-not-call lists and to honor opt-out requests within the appropriate windows required by 47 C.F.R. § 64.1200(d)(3). Companies should ensure their systems reliably suppress communications to individuals who have requested not to be contacted.
  • Keep records of your text message campaigns. The defendants’ reliance on third-party vendors to store text message data did not shield them from discovery obligations and may not shield them from liability. The Court found that the defendants had greater access to those vendors’ records than the plaintiff, which weighed in favor of compelling production. Companies should ensure they maintain or can readily obtain from their vendors records of text messages sent, dates of transmission, and opt-out requests.
  • Do not rely on boilerplate objections to resist discovery. The Court found the defendants’ proportionality objections inadequate because they failed to provide specific facts, affidavits, or cost estimates to support their claims of undue burden. Specific, well-supported objections backed by reliable evidence are essential.
  • Pre-certification discovery in TCPA class actions is broadly available. The Court reaffirmed that discovery before class certification is generally permitted in certain courts to allow plaintiffs to develop the factual record necessary for class certification. Companies facing TCPA class actions should expect plaintiffs to seek discovery of call logs, phone numbers, and related records at the pre-certification stage.

We will continue to monitor developments in this case and others like it. Companies that use text messaging for recruiting or marketing purposes would be well served to review their TCPA compliance programs now.