Jeske v. Persolve LLC et al

Filing 6

ORDER granting 1 Persolve's motion to compel the deposition of FIA Card Services and Produce Documents. IT IS ORDERED that FIA Card Services shall make a diligent search for all documents requested in the subpoena and produce all responsive documents within five (5) days of this order. FIA Card Services shall produce a deponent for deposition prepared to testify pursuant to Rule 30(b)(6), Fed. R. Civ. P. Signed by Judge Frederick J Martone on 1/26/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Persolve LLC; Persolve Series 1 LLC;)
Persolve Series 2 LLC; Persolve Series 3)
LLC; Golden Gate Financial LLC; Does 5)
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through 25,
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Defendants.
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James Jeske,

MC 11-00124-PHX-FJM
ORDER

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We have before us Persolve LLC's ("Persolve") motion to compel the deposition of
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FIA Card Services ("FIA") and production of documents (doc. 1). FIA was served with a
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copy of the instant motion on November 29, 2011, but has not responded.
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In 2006, plaintiff James Jeske defaulted on his Bank of America credit card account.
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This account was ultimately transferred to Persolve, which filed a collection complaint
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against Jeske in December 2009. Persolve sought an interest rate of 32.24%, the rate applied
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to Jeske's account by Bank of America. The rate was labeled in his account statements as
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"penalty rate" pricing. At the time, Jeske's account was serviced by FIA.
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Jeske filed an action against defendants in 2011, alleging that Persolve's attempt to
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collect on his Bank of America account improperly sought interest above California's default
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rate of 10%.1 Persolve served FIA, a non-party to the Jeske action located in Arizona, with

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a subpoena in July 2011. The subpoena set FIA's deposition for August 3, 2011, and

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included Persolve's request for documents relating to Peske's account. See Mot. to Compel,

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ex. E. Persolve's counsel spoke with FIA, which indicated that it would send relevant

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documents by August 12, 2011. On August 16, 2011, Persolve was told that FIA records

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showed that it sold Jeske's account and had no additional information to provide. Persolve

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has followed up with FIA by letter and by telephone in an effort to meet and confer, but FIA

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has refused to produce a deponent for deposition. Persolve moves that FIA be compelled to

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produce documents and a proper deponent for deposition in accordance with its subpoena.

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II

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Rule 45, Fed. R. Civ. P. governs discovery of non-parties through the use of subpoena.

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Subpoenas can command a non-party to produce documents and to attend and testify. The

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serving party may move for an order compelling discovery. Fed. R. Civ. P. 37(a). The

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permissible scope of discovery is the same when sought from non-parties as when sought

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from parties. See id. 45 advisory committee's note (1970) ("The changes make it clear that

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the scope of discovery through a subpoena is the same as that applicable to. . . the other

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discovery rules"). Parties may seek discovery relevant to any party's claim or defense. Id.

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26(b)(1).

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Here, the documents sought by Persolve are relevant to its defense in the Jeske action.

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Jeske claims that Persolve did not have the right to seek interest in excess of 10%. Jeske's

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account statements show that a higher interest rate was applied by Bank of America labeled

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penalty rate pricing. Documents relating to penalty rate pricing are relevant to Persolve's

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defense for deciding to seek a higher interest rate in its collection action against Jeske.

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Persolve seeks documents not only related to Jeske's specific account, but also documents

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relating more generally to Bank of America's penalty rate pricing provisions.

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Persolve also seeks testimony that it claims is institutional knowledge that would not

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This action is pending in the Southern District of California.
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have been transferred when Jeske's account was sold. When a notice of deposition of an

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entity describes with particularity the subjects for examination, the entity must designate

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people to testify on its behalf "about information known or reasonably available to the

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organization." id. 30(b)(6). The subpoena lists with detail subjects for discussion, including

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information concerning Bank of America's penalty pricing rates between 2003 and 2009, and

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Bank of America's options upon customer default. As a former servicer for Bank of America

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accounts, including Jeske's account, this is information that should be known or "reasonably

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available" to FIA. See id.

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In sum, we conclude that the documentation and testimony Persolve seeks from FIA

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are relevant to Persolve's defense in the Jeske action. FIA has not argued that the search for

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and production of documents would be overly burdensome. And FIA offers no reason why

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the subpoena should be quashed or modified. See id. 45(c)(3). Indeed, FIA failed to respond

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at all. See LRCiv 7.2(i) ("if. . . counsel does not serve and file the required answering

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memoranda. . . such non-compliance may be deemed a consent to the denial or granting of

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the motion and the Court may dispose of the motion summarily").

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IT IS ORDERED GRANTING Persolve's motion to compel the deposition of FIA
Card Services and Produce Documents (doc. 1).

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IT IS ORDERED that FIA Card Services shall make a diligent search for all

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documents requested in the subpoena and produce all responsive documents within five (5)

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days of this order.

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IT IS ORDERED that FIA Card Services shall produce a deponent for deposition
prepared to testify pursuant to Rule 30(b)(6), Fed. R. Civ. P.
DATED this 26th day of January, 2012.

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