Plaintiff Seeks Discovery on Office Depot’s Motion to Compel Arbitration

Plaintiff Teresa Brown alleges Office Depot violated the nearly year-old Oklahoma Telephone Solicitation Act (OTSA) by sending without prior express written consent automated commercial telephonic sales calls, in the form of text messages, to her cellphone and those of her putative class members (see 2307130011), said the parties' joint status report Wednesday (docket 4:23-cv-00287) in U.S. District Court for Northern Oklahoma in Tulsa. Office Depot moved Aug. 16 to compel Brown’s claims to arbitration (see 2308170006). But Brown denies “forming an agreement” with Office Depot to arbitrate her claim, nor did she waive her right to pursue her action on a class-wide basis, said the status report. She denies consenting to receive Office Depot’s text messages, and she believes discovery will show the statute’s retailer exemption “is inapplicable here,” it said. Office Depot contends that Brown “did expressly consent in writing to receive automated recurring text messages, including marketing and promotional messages,” from the retailer, said the status report. Brown also agreed to Office Depot’s terms of use, “which broadly provide for individual, non-class arbitration of disputes,” including Brown’s OTSA claim asserted in her case, it said. Brown proposes that the court schedule an initial 90-day period of discovery “focused solely on issues relevant” to Office Depot’s pending motion to compel arbitration, said the status report. Under the circumstances, Brown should be afforded “a reasonable opportunity to take discovery” on the “threshold question” of whether she entered into an arbitration agreement with Office Depot, which she denies, it said. Office Depot opposes Brown’s discovery request, it said. The retailer doesn’t believe there’s a basis “to permit discovery with respect to the pending motion to compel arbitration,” it said. It reserves the right “to lodge objections to the scope of such discovery requests, or claims of privilege,” if the court permits Brown to take such discovery, it said.