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)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
APRIL L. YOUNG,
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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
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