Young v. Bond Collect Services, Inc.

Filing 54

ORDER granting 46 Motion for Protective Order & denying 49 Motion to Compel Discovery all as set out. Defendant is directed to make the recordings available to Plaintiff and her counsel after her deposition has concluded. Signed by Magistrate Judge Sonja F. Bivins on 6/17/2011. Copies to parties. (mpp)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION APRIL L. YOUNG, * * * * * * * * * Plaintiff, vs. BC SERVICES, INC., Defendant. Civil Action: 10-00429-WS-B ORDER This matter is before the Court on Defendant BC Services, Inc.’s April Motion L. for Protective Motion Young’s Order Compel to (Doc. (Doc. 46), and Plaintiff A discovery 49). conference was conducted on June 15, 2011, with counsel for the parties participating by telephone. Upon consideration of the parties’ the respective undersigned motions finds that and the responses Defendant’s motion in opposition, is due to be granted, and Plaintiff’s motion is due to be denied. I. Background This Collection is an action Practices Act brought (FDCPA). pursuant to According the to Fair Debt Plaintiff, Defendant violated the Act by making harassing and threatening telephone calls to her in an attempt to collect a debt. In Defendant’s Motion for a Protective Order, Defendant seeks an order permitting it to delay production of telephone recordings between Plaintiff Plaintiff Defendant’s deposed. is and employees Defendant until acknowledges after that the recordings are discoverable, but argues that their production should be delayed until after Plaintiff has been deposed. According to Defendant, if Plaintiff is provided the recordings prior to her deposition, she will tailor her testimony around the recordings, and the impeachment value of the recordings will be lost. Plaintiff Defendant changed contends early allegations her that on once in this provided case, with a transcript of a November 2009 discussion between her and one of Defendant’s representatives. Specifically, Defendant contends that complaint Plaintiff’s original contained a single allegation regarding a telephone discussion that occurred on or around November 4, 2009 in which one of Defendant’s representatives called her a “deadbeat” and threatened to sue her. Defendant contends that once Plaintiff was provided with a transcript of a November 3, 2009 recording of a discussion between her and one of Defendant’s representatives, she changed her allegations allegations. because Defendant the argues recording that did unless not support production of her the additional recordings are delayed, Plaintiff will again seek to tailor her testimony to the recordings and the impeachment value of the recordings will be lost. 2 In Plaintiff’s Motion to Compel and response to Defendant’s Motion for recordings a Protective are Plaintiff discoverable clearly Order, and should be produced without delay. argues that the that the recordings According to Plaintiff, the recordings contain personal statements made by her, and she is entitled to copies of her own personal statements. Plaintiff further contends substantive that evidence Additionally, the and Plaintiff recorded have very contends statements little that constitute impeachment Defendant will value. have an unfair advantage if it is able to rely on the recordings to prepare its defense, and Plaintiff is deprived of them until after she has submitted to a deposition. II. Discussion The undersigned “[p]arties may observes, obtain as discovery a preliminary regarding any matter, that nonprivileged matter that is relevant to the party’s claim or defense....” Fed. R. Civ. P. 26(b)(1). To be considered relevant for discovery purposes, “information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Though broad, a party’s right to discovery is not absolute. The Court “may, for good cause shown, issue an order to protect a party or a person from annoyance, embarrassment, oppression, or undue burden or expense...." Fed. R. Civ. P. 26(c). 3 Such an order may provide that the disclosure or discovery not be had. A protective order is appropriate only where the moving party can establish that there is “good cause” for limiting discovery. Rule 26’s good- cause standard requires the Court to perform a balancing test, weighing the interests of the party seeking discovery against the interests discovery. of See the Chicago party wanting Tribune Co. to v. limit or restrict Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001). The parties have not cited any Eleventh Circuit cases addressing the issue before the Court, and the undersigned has not located any. However, in Stamps v. Encore Receivable Management, Inc., 232 F.R.D. 419 (N.D. Ga. 2005), a district court within the Circuit faced a somewhat similar issue involving a telephone recording made by a plaintiff who was alleging violations of the FDCPA Act. The plaintiff sought a protective order to delay the production of the recording until after the depositions of the defendant’s representatives. The court’s the analysis focused on balancing the rights of defendant to full discovery versus the plaintiff’s right to the defendant’s unrefreshed recollection of events that gave rise to the litigation. The court held that resolution of the issue came down to whether the recording was classified as “substantive evidence” or “impeaching evidence.” According to the court, “[t]o the extent the substantive value of the evidence outweighs 4 its impeachment value, the Court will not delay the production pending the taking of a deposition.” Id. at 423. (citing Pro Billards Tour Assoc., Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229 (M.D.N.C. 1999). In Stamps, the court observed that “[w]hen a party uses a recording to establish the truth of the case, that recording largely constitutes substantive evidence.” Id. The court found that the plaintiff had identified the recording as key evidence in her complaint, and she intended to use it to establish the truth of her assertions that the defendant had violated the FDCPA Act; thus, the real value of the recording was not in impeaching a witness, but in the facts and issues determined by the recording. Another instructive case is Taylor v. The Guardian Life Ins. Co. of America, 2007 U.S. Dist. LEXIS 29764 (S.D. Ga. Mar. 27, 2007). In Taylor, the plaintiff alleged that the defendants had wrongly denied him disability benefits and sought an order compelling the defendant to turn over to him surveillance photographs and videos taken of him by the defendants. the parties discoverable, agreed the that the plaintiff substantive evidence deposition, while the which photographs alleged should defendants that and videos they be produced argued that While were constituted before the his potential impeachment value of the materials outweighed their substantive evidentiary value. The court held that the proper balance in 5 such a situation is to require production after the plaintiff’s deposition has been taken. As noted supra, in this case, there is no dispute that the telephone recordings are discoverable. The issue is when should they be produced. While Plaintiff argues that the recordings have great substantive evidentiary value, it is clear that the impeachment value of substantive value. the recordings greatly outweigh their This is not a situation, such as in Stamps, where the recordings are being used by a plaintiff to primarily help establish the truth of his or her claims. Instead, in this situation, the great value of the recordings is that they may impeach allegations that Plaintiff may make during her deposition. If Plaintiff is provided the recordings before the deposition, the impeachment value is lost. Moreover, the undersigned finds nothing inherently unfair about requiring a party who has filed a lawsuit based on alleged harassing telephone calls to give sworn deposition testimony about the alleged phone calls before being provided with copies of the telephone recordings. This situation is no different than one in which a plaintiff who has alleged disability is made to testify about the extent of his or her damages before being provided copies of surveillance photographs or videos. particularly placed on true notice, where prior Plaintiff to her 6 and her counsel deposition, that This is have been recordings exist, and where Plaintiff is free to explain any discrepancies which might exist between her deposition testimony and the recordings. Accordingly, Defendant’s Motion for a Protective Order is granted. Defendant is directed to make the recordings available to Plaintiff and her counsel after her deposition has concluded. Plaintiff’s Motion to Compel is denied to the extent it sought immediate production of the recordings. DONE this 17th day of June, 2011. /s/ SONJA F. BIVINS_________ UNITED STATES MAGISTRATE JUDGE 7

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