In Daniel D'Agostino v. Circle K Stores Incorporated, No. CV-26-01225-PHX-JAT, 2026 WL 1741332 (D. Ariz. June 17, 2026), the plaintiff says that Circle K blasted him with hundreds of unsolicited marketing texts. So how did the defendant answer that in discovery? By demanding to search all of plaintiffs digital devices. As if this information couldlnt come from Circle K's own text message logs.
Circle K was trying to bully the plaintiff by using abusive discovery tacts.
They requested "each computer, phone, or other digital device" the plaintiff used or had available, all to be combed for a specific list of search terms: The company's name; "TCPA;" A texting keyword; And the name of a prior lawsuit — Abboud v. Circle K Stores Inc., 731 F. Supp. 3d 1094 (D. Ariz. 2024) — a case accusing Circle K previously of the very same telemarkeitng violations.
That last term gives the game away. The defendant wasn't hunting for proof it never sent the texts. It wanted to know when the plaintiff first read up on Circle K's tprevious TCPA lawsuit for spam-texting, and when he first suspected he might have a claim of his own. From there, they thought they it could cast him as someone who "manufacture[d] this million-dollar-plus TCPA claim."
The Court wasn't buying it.
The Court said:
"Here, Circle K asks Plaintiff to surrender “each computer, phone, or other digital device” for inspection for an unspecified period of time. This Court finds this request to be invasive considering the other methods of discovery at Circle K’s disposal. See Massucco v. Group Health Coop. of Puget Sound, C05-342JLR, 2005 WL 8172575, at *2 (W.D. Wash. Oct. 3, 2005) (comparing “the traditional discovery process in which the responding party controls what it produces and what it does not” to invasive electronic discovery methods, which can impose “substantial additional burden[s]” to parties subject to such requests)."
For one thing, when a plaintiff researched his rights has nothing to do with whether the defendant broke the law. The Court said it "struggles to see how this is relevant" to the actual question in the case.
For another, there is no duty to mitigate statutory damages under the TCPA — a point courts in this Circuit have made before. So the "he should have made it stop sooner" theory was dead on arrival. As the Court put it:
"Plaintiff primarily seeks statutory damages and courts in this Circuit have held that plaintiffs have no duty to mitigate statutory damages in TCPA cases. See Trim v. Mayvenn, Inc., 20-CV-03917-MMC, 2022 WL 1016663, at *3 (N.D. Cal. Apr. 5, 2022); JUUL Labs, Inc. v. Chou, 676 F. Supp. 3d 827, 848 (C.D. Cal. 2023)."
Then there was the fact that Circle K hadn't taken the plaintiff's deposition. It hadn't sent interrogatories or requests for production. It skipped every ordinary rung on the discovery ladder and reached straight for the most invasive tool the rules allow — the devices the plaintiff uses to work and run his business every single day. With gentler options sitting right there, the Court found the demand exactly as invasive as it looked.
Is this cyberbulying?
The Court said: "Here, Circle K asks Plaintiff to surrender “each computer, phone, or other digital device” for inspection for an unspecified period of time. This Court finds this request to be invasive considering the other methods of discovery at Circle K’s disposal. See Massucco v. Group Health Coop. of Puget Sound, C05-342JLR, 2005 WL 8172575, at *2 (W.D. Wash. Oct. 3, 2005) (comparing “the traditional discovery process in which the responding party controls what it produces and what it does not” to invasive electronic discovery methods, which can impose “substantial additional burden[s]” to parties subject to such requests)."
So the Court granted a protective order and denied Circle K's inspection request.
Here's the ironic part. This is a TCPA case. It exists because a person has the right to be left alone — to keep his phone from buzzing with messages he never asked for. And the defense's big move was to ask a court for the keys to that same phone. To subject the plaintiff to the most eggregious form of invasion of privacy by havgin him turn over all his electronic devices.
You don't answer an invasion of privacy by trying to stage a bigger one. Get a grip, Circle K.
