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Progressive Health and Rehab Corp. v. Glenwood Systems LLC

United States District Court, S.D. Ohio, Eastern Division

October 26, 2017

PROGRESSIVE HEALTH AND REHAB CORP., Plaintiff,
v.
GLENWOOD SYSTEMS LLC, et al., Defendants.

          Michael H. Watson Judge

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, on behalf of itself and other putative class members, filed this case, alleging that Defendants Glenwood Systems LLC and Columbus Sleep Consultants D.M.E. violated the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act (the “JFPA”), 47 U.S.C. § 227, by sending an allegedly unsolicited fax advertisement. (ECF No. 1.) This matter is before the Court for consideration of Subpoenaed Non-Party Columbus Sleep Consultants Inc.'s (“CSC”) Motion to Quash Subpoena (ECF No. 23), Plaintiff's Memorandum in Opposition (ECF No. 24), and Non-Party CSC's Reply (ECF No. 28). For the reasons that follow, CSC's Motion to Quash is GRANTED IN PART and DENIED IN PART. (ECF No. 23.)

         I.

         In its Complaint, Plaintiff alleges that Defendants sent it an unsolicited “2-page facsimile transmission of an unsolicited advertisement on or about November 26, 2015. . . . The Fax describes the commercial availability or quality of Defendants' products, goods and services.” (ECF No. 1 at 2.) According to Plaintiff, Defendants, thus, violated the JFPA, which states in pertinent part:

(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . .
(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement

47 U.S.C. § 227(b)(1)(C). Applicable regulations define a “sender” as “the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.” 47 C.F.R. § 64.1200(f)(10).

         On June 29, 2017, Plaintiff served a subpoena upon non-party CSC directing CSC to produce certain documents related to its relationship with Defendant[1] and CSC's use of faxes. (ECF No. 23-1 at 1-3.) Plaintiff's subpoena requests the production of the following documents:

1. All documents concerning your relationship with Glenwood Systems.
2. All documents concerning your relationship with Columbus Sleep ...

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