D'Agostino v. Circle K Stores Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Daniel D’Agostino,
Plaintiff,
v.
Circle K Stores Incorporated,
Defendant.
No. CV-26-01225-PHX-JAT
ORDER
On May 28, 2026, Plaintiff Daniel D’Agostino filed a Motion for Protective Order
under Federal Rule of Civil Procedure 26(c). (Doc. 48). Therein, Plaintiff challenged (1)
two subpoenas Defendant Circle K served upon U.S. Bank and Wells Fargo Bank (the
“Banks”), and (2) a Request for Inspection that Circle K served upon Plaintiff. (Doc. 48 at
2). Because Circle K ordered the Banks to produce the subpoenaed information by June
10, 2026, Plaintiff requested an expedited order resolving the motion. (Doc. 48 at 2). The
Court ordered expedited briefing, (Doc. 50), and issued an order on June 9, 2026 denying
Plaintiff’s request to quash the Bank Subpoenas, (Doc. 59). In the June 9 order, the Court
noted that it would resolve Plaintiff’s challenge to the Request for Inspection through a
separate order. Also pending before the Court is Circle K’s Motion for Leave to File a Sur-
Reply to Plaintiff’s Motion for Protective Order. (Doc. 56). The Court now rules.
I. BACKGROUND
Plaintiff alleges that Circle K violated the Telephone Consumer Protection Act
(“TCPA”) by sending him 350 unsolicited marketing text messages between September 1,
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2023 and February 5, 2026. (Doc. 1 at 6). In its Motion to Dismiss, Circle K argued that
Plaintiff failed to state a claim under the TCPA because Plaintiff consented to receipt of
the text messages and the messages were sent pursuant to the parties’ established business
relationship. (Doc. 11 at 6–8). Circle K claimed that “it has records for every transaction
by Plaintiff”1 and that those records confirm Plaintiff visited a Circle K store on September
1, 2023 to purchase cigarettes and snacks. (Doc. 11 at 7; see also Doc. 11-1 at 24–68
(detailing transaction records)). Circle K alleged that Plaintiff entered his phone number
when making those purchases, which resulted in the first text message and established the
parties’ “business relationship.” (Doc. 11 at 7). Circle K insisted that “the subsequent
messages that Plaintiff alleges he received” were also sent with Plaintiff’s consent and
pursuant to the parties’ “pre-existing relationship.” (Doc. 11 at 8). Because Plaintiff
rebutted Circle K’s allegations—claiming that he did not sign up for any programs with
Circle K, provide his phone number for marketing purposes, or otherwise maintain a
business relationship with Circle K—the Court denied the Motion to Dismiss Plaintiff’s
TCPA claims. (Doc. 35 at 13, 15).
During discovery, Circle K emailed Plaintiff a Request for Inspection asking
Plaintiff to surrender his electronic devices for inspection as follows:
For the RELEVANT TIME PERIOD, each computer, phone, or other digital
device utilized and/or available to [Plaintiff] on which
COMMUNICATIONS are stored (including e-mail communications) and
DOCUMENTS are stored or accessible concerning “Circle K”, including but
not limited to any search engine queries (and accordingly search history) for
“Circle K,” “CircleK” (or any similar variation), “TCPA,” “Abboud” and/or
“STOP2End.”
(Doc. 48-2). Circle K claims that those search terms “will reveal when Plaintiff potentially
first researched the Abboud2 case and when Plaintiff first understood he might file a TCPA
1 Circle K attached the transaction records to its Motion to Dismiss, labeled as Exhibit
1, the “D’Agostino Transaction Report.” (Doc. 11 at 7; Doc. 11-1 at 24–68). Circle K
claimed that the D’Agostino Transaction Report documented every time Plaintiff made a
purchase at a Circle K store and entered his phone number in the system, thus prompting
the messages Plaintiff received that formed the basis of his TCPA claims. The Court
refused to consider the report in resolving the Motion to Dismiss because Circle K failed
to argue that an exception applied to overcome the general prohibition against the
consideration of extrinsic evidence at the pleadings stage. (Doc. 35 at 8–9).
2 The Court assumes that Circle K is referencing Abboud v. Circle K Stores Inc., 731
F. Supp. 3d 1094 (D. Ariz. 2024), a case that similarly alleges that Circle K violated the
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complaint.” (Doc. 52 at 4). Circle K further alleges that the inspection request is relevant
to “determine whether and when Plaintiff could have, and should have, mitigated his
damages.” (Doc. 52 at 4).
Plaintiff moved the Court to issue a “protective order [to] quash[]” the Request for
Inspection. (Doc. 48 at 2). However, a motion to quash a subpoena is different from a
motion for a protective order. Compare Fed. R. Civ. P. 45(d)(3) (outlining circumstances
in which a court must quash or modify a subpoena) with Fed. R. Civ. P. 26(c) (authorizing
the court, upon a motion from “a party or any person from whom discovery is sought,” to
“issue an order to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense”). Because the Request for Inspection is not a subpoena under
Rule 45, the Court interprets Plaintiff’s objection to that discovery request as a motion for
a protective order under Rule 26(c).
II. LEGAL STANDARD
Rule 26(c) governs protective orders and “was enacted as a safeguard for the
protection of parties and witnesses in view of the broad discovery rights authorized in Rule
26(b).” United States v. Columbia Broad. Sys., Inc., 666 F.2d 364, 368–69 (9th Cir. 1982).
Courts may, “for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Rule 26(c)
permits courts to alter the method of discovery requested by a party or to forbid the
disclosure or discovery of certain information entirely. See id. 26(c)(1)(A)-(H). “The party
opposing disclosure has the burden of proving good cause, which requires a showing that
specific prejudice or harm will result if the protective order is not granted.” In re Roman
Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (internal
quotations and citation omitted). The rule confers “broad discretion on the trial court to
decide when a protective order is appropriate and what degree of protection is required.”
Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002)
(internal quotations and citation omitted).
TCPA by sending several text messages to the plaintiff without her consent.
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III. DISCUSSION
Plaintiff argues that the Court should quash3 the Request for Inspection—which
seeks to inspect Plaintiff’s computer, phone, or other digital devices for certain search
terms—because the request (1) is facially overbroad, (2) “target[s] attorney work product,”
and (3) imposes an undue burden on Plaintiff because “Plaintiff works on his computer
every day and conducts business by phone every day.” (Doc. 48 at 8–10). Plaintiff also
complains that the request, which would allow Circle K to gain access to or take possession
of Plaintiff’s devices for a “period of days,” has “no procedural safeguards” in place, such
as a specific time window or limit on the duration of the inspection. (Doc. 48 at 10).
Plaintiff observes that Circle K “has bypassed every standard channel [of discovery]”—
such as interrogatories, requests for production, and requests for admission—and jumped
directly to the most intrusive form of discovery the Federal Rules contemplate.” (Doc. 48
at 8).
Circle K contends that “a large number of hits” for certain search terms on Plaintiff’s
devices—including “TCPA”; “Abboud”; “Circle K”; “CircleK”; and “STOP2END”—
would call into question “Plaintiff’s motivations and credibility [in bringing the present
suit], as well as his efforts to cause the messages to stop.” (Doc. 52 at 9). Circle K insists
that the demand for inspection “is narrowly tailored and proportionate to the needs of the
case.” (Doc. 52 at 8).
The Court disagrees that the request is proportionate to the needs of the case and
questions the relevance of the requested search. “In determining appropriate proportional
discovery to the needs of the case,” courts consider “the importance of the issues, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden
3 As stated, the Court interprets this as a request for the Court to issue a protective
order under Rule 26(c). The rule permits courts to fashion protective orders in a variety of
ways, including “forbidding the disclosure or discovery” generally, limiting the scope of
discovery, or “prescribing a discovery method other than the one selected by the party
seeking discovery.” See Fed. R. Civ. P. 26(c)(1)(A)–(H) (outlining ways in which court
may issue a protective order).
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or expense of the proposed discovery outweighs its likely benefit.” Adlerstein v. United
States Customs & Border Prot., 342 F.R.D. 269, 273 (D. Ariz. 2022).
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).4
Circle K’s chief motivation for the inspection request seems to be aimed at learning
“when Plaintiff first understood he might file a TCPA complaint” to prove that Plaintiff
“manufacture[d] this million-dollar-plus TCPA claim.” (Doc. 52 at 4). The Court struggles
to see how this is relevant to resolving the merits of Plaintiff’s TCPA claims. Whether
Plaintiff did or did not perform research in anticipation of filing his Complaint (and when
that research, if any, occurred), appears unrelated to the issue this Court must resolve—
that is, whether Circle K violated the TCPA by sending Plaintiff hundreds of allegedly
unsolicited text messages. And Circle K’s other justification for the discovery request—
that the search terms will illuminate whether Plaintiff mitigated his claimed damages of
over $1 million—also fails to convince the Court that such an invasive search should be
permitted at this stage of the proceedings. Plaintiff primarily seeks statutory damages and
4 Circle K offers little explanation as to why it did not explore other methods of
discovery before serving the Request for Inspection upon Plaintiff. Circle K merely alleges
in conclusory fashion that the “demand for inspection is necessary to avoid issues
concerning Plaintiff’s credibility” and that “simply permitting Plaintiff to state yes or no
[as to] whether he searched a term in response to an interrogatory or request for admission
. . . will not resolve the credibility concerns already percolating in this case.” (Doc. 52 at
9–10). In essence, Circle K questions Plaintiff’s credibility and wants to find the documents
and communications it seeks without first asking Plaintiff to produce the information
himself. The Court finds this justification insufficient, especially when Circle K has not
taken Plaintiff’s deposition or given Plaintiff the opportunity to provide the requested
documents and communications. See Massucco, 2005 WL 8172575, at *2 (rejecting
plaintiff’s discovery request because there was “no indication that the more invasive”
electronic discovery request was necessary when defendant “claim[ed] that it ha[d] already
produced or [wa]s in the process of producing [the desired] documents”).
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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).
Plaintiff has also indicated to the Court that surrendering his electronic devices
would be extremely burdensome because he works on his computer and conducts business
on his phone daily. (Doc. 48 at 10). Given these representations, along with the
invasiveness and questionable relevance of the demand for inspection, the Court will grant
Plaintiff’s request to quash the proposed discovery under Rule 26(c).
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Protective Order (Doc. 48) is granted
in part as specified herein. Circle K’s Request for Inspection, as served upon Plaintiff via
email on May 12, 2026, (Doc. 48-2), is denied without prejudice to obtain the requested
information through other discovery tools, including but not limited to a deposition or
request for production.
IT IS FURTHER ORDERED that Circle K’s Motion for Leave to File a Sur-Reply
to Plaintiff’s Motion for Protective Order (Doc. 56) is denied.5
Dated this 17th day of June, 2026.
5 Circle K alleged that Plaintiff made “significant concessions” in his Reply regarding
the Request for Inspection and sought leave to file a sur-reply to “narrow the remaining
areas of dispute” with respect to the inspection request. (Doc. 56). Because the Court finds
the Request for Inspection is overly intrusive at this early stage and is granting Plaintiff’s
requested relief, there is no need to consider Circle K’s proposed sur-reply.
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