Miranda v. Integrity Solution Services, Inc.

Filing 22

ORDER: Plaintiff's oral Motion to Compel responses to Interrogatories and a Request for Production of Documents is granted. Defendant shall respond to Plaintiff's Interrogatories Nos. 2, 3 and 4 and Request for Production of Documents No. 1 on or before February 28, 2014. By Magistrate Judge Kristen L. Mix on 2/10/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02479-RM-KLM
WILMER MIRANDA,
Plaintiff,
v.
INTEGRITY SOLUTION SERVICES, INC., a Missouri corporation,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s oral Motion to Compel responses to
Interrogatories and a Request for Production of Documents. The Court held a hearing on
the Motion on January 30, 2014.

For the reasons discussed below, the Motion is

GRANTED.
I. Background
Plaintiff brings this case under the Fair Debt Collections Practices Act, 15 U.S.C. §
1692, et seq. (“FDCPA”). At issue here is the scope of discovery under 15 U.S.C. §
1692k(b)(1), which lists factors to be considered by the court in awarding damages under
the FDCPA, including “the frequency and persistence of noncompliance by the debt
collector.”
Plaintiff’s Complaint asserts that in the course of attempting to collect a debt from
him, Defendant’s employee or employees telephoned Plaintiff and made false

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representations, including “that he had to pay the [debt] to get the [debt] off of the credit
bureau reports[,] that the [debt would] stay on the credit bureau reports until it [was] paid
[and] that [Plaintiff] had only 30 days to dispute the [debt] and that the time to dispute [it]
had come and gone.” Complaint [# 1]1 at 4.
The discovery requests at issue seek information and documents that Defendant
provided to the creditor and credit reporting bureaus about the debt. Plaintiff argues that
the information is likely to lead to the discovery of admissible evidence about the frequency,
persistence and nature of Defendant’s noncompliance with the statute. Defendant asserts
that the information is not relevant, because “Plaintiff’s Complaint alleges that Defendant
made false representations during the telephone conversation between the Defendant and
Plaintiff on December 6, 2012.2 Any reference to other actions taken by Defendant on
Plaintiff’s account including any credit reporting of Plaintiff’s account is irrelevant and not
alleged.” Defendant’s Responses to Plaintiff’s First Set of Interrogatories, attached as
Exhibit A, at 4-5.
II. Analysis
At its core, this dispute is about the frequently-litigated issue of whether the scope
of discovery can exceed the boundaries of the Complaint. Can a plaintiff seek information
about facts not alleged in his complaint? Courts frequently rely on the rule that “discovery
cannot serve as a fishing expedition through which plaintiff searches for evidence to

1

[#1] is an example of the convention I use to identify the docket number assigned to a
specific paper by the Court’s case management and electronic case filing system (CM/ECF). I use
this convention throughout this Order.
2

The Complaint does not refer to any particular date of the telephone conversation or
conversations in dispute.

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support facts he has not yet pleaded.” Giovanelli v. D. Simmons General Contracting, Civ.
A. No. 09-1082 (NLH)(AMD), 2010 WL 988544 at *5 (March 15, 2010 D. N.J.) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)). In this case, the question is
complicated by the language of the FDCPA, which directs the court to consider whether
there are other instances of the debt collector’s noncompliant behavior when determining
damages, regardless of the type of misbehavior specifically alleged. See 15 U.S.C. §
1692k(b)(1) (“In determining the amount of liability in any action under subsection (a) of this
section, the court shall consider, among other relevant factors . . . the frequency and
persistence of noncompliance by the debt collector . . . .”) (emphasis added). The question
is also complicated by ample precedent prohibiting discovery “fishing expeditions,” much
of which derives from concerns about plaintiffs who seek to bolster weak cases through
discovery of more, or worse, illegal conduct by the defendant. See, e.g., Cuomo v. Clearing
House Ass’n, LLC, 557 U.S. 519, 531 (2009) (“Judges are trusted to prevent ‘fishing
expeditions’ or an undirected rummaging through . . . records for evidence of some
unknown wrongdoing.”). The oft-repeated general disapproval of such expeditions is easily
understood in the context of FDCPA cases, where actual damages are often difficult to
establish and statutory damages are limited to one thousand dollars. See 15 U.S.C. §
1692k(a)(2)(A).
However, some courts have recognized that the breadth of the federal discovery
rules trumps concerns about such “undirected rummaging through records.” After all, the
United States Supreme Court has defined relevant information, for discovery purposes, to
include “any matter that bears on, or that reasonably could lead to another matter that
could bear on, any issue that is or may be in the case.” Hickman v. Taylor, 329 U.S. 495,
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501 (1947) (emphasis added). By virtue of the language of the FDCPA, the issue of the
frequency and persistence of a defendant’s noncompliance with the FDCPA is present in
every FDCPA case.3 Moreover, certain courts have explicitly considered and rejected the
“fishing expedition” argument in FDCPA cases. See, e.g., Patrick v. PHH Mortgage Corp.,
No. 3:12-cv-39, 2014 WL 296930 at *5 (N. D. W. Va. Jan. 27, 2014) (overruling
Defendant’s objection to discovery ruling that disclosure of entire mortgage file in FDCPA
case would result in a fishing expedition to find new instances of wrongdoing beyond the
claims already alleged); Boutvis v. Risk Mgmt Alternatives. Inc., No. 301CV1933 (DJS), 202
WL 971666 at *1 (D. Conn. May 3, 2002) (allowing plaintiff to discover documents
concerning defendant’s practices under the FDCPA because subsequent practices were
relevant to whether violations occurred after defendant had notice that its practices were
actionable); Yancey v. Hooten, 180 F.R.D. 203, 208 (D. Conn. 1998) (granting plaintiff’s
motion to compel information about defendant’s conduct as to other debtors in FDCPA
case because “defendant offers no support for his interpretation of 15 U.S.C. § 1692k as
referring to the debt collector’s conduct toward a specific debtor, not to all debtors.”)
Defendant offers no principled reason for limiting the meaning of section 1692k. If
the language relating to the “frequency and persistence of defendant’s noncompliance”
permits discovery into defendant’s conduct towards other debtors, as the Court held in
Yancey, there is no reason to hold that a debtor cannot discover information about the debt
collector’s other actions in collecting the very debt at issue in the Complaint.

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The issue of whether a defendant’s failure to pursue or waiver of a “bona fide error”
defense eliminates the need for discovery about the frequency and persistence of defendant’s
noncompliance with the FDCPA is not before the Court, and I therefore express no opinion on that
issue.

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III. Conclusion
For the foregoing reasons, the Motion is GRANTED. Defendant shall respond to
Plaintiff’s Interrogatories Nos. 2, 3 and 4 and Request for Production of Documents No. 1
on or before February 28, 2014.
Dated: February 10, 2014

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