Collins v. Trans Union, LLC et al

Filing 152

ORDER granting in part and denying in part 105 Motion to Quash. Discovery re-opened up to and including May 13, 2015 for the limited purpose of allowing Wakefield to produce documents identified in Order. By Magistrate Judge Nina Y. Wang on 4/28/15. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00742-RBJ-NYW
MICHAEL A. COLLINS,
Plaintiff,
v.
TRANS UNION, LLC,
EXPERIAN INFORMATION SOLUTIONS, INC., and
EQUIFAX INFORMATION SERVICES LLC,
Defendants.
______________________________________________________________________________
ORDER ON MOTION TO QUASH
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter is before the Court on Wakefield & Associates, Inc.’s (“Wakefield”) Motion
to Quash Subpoena to Produce Issued to Wakefield and Associates, Inc. (“Motion to Quash”).
[#105, filed January 28, 2015]. Pursuant to the Order Referring Case dated September 18, 2014
[#50] and the memorandum dated January 29, 2015 [#106], the matter was referred to this
Magistrate Judge. For the reasons addressed below, the Motion to Quash is GRANTED IN
PART and DENIED IN PART.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Michael A. Collins initiated this lawsuit proceeding pro se on March 12, 2014,
by filing a Complaint for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681 et seq., as to Defendants Trans Union, LLC (“Trans Union”), Experian Information
Solutions, Inc. (“Experian”), and Equifax Information Services, LLC (“Equifax”), alleging that
these Defendants had falsely reported his credit history to third parties. [#1]. The action was

assigned to Magistrate Judge Boland pursuant to the Pilot Program to Implement the Direct
Assignment of Civil Cases to Full Time Magistrate Judges. [#3]. Plaintiff filed an Amended
Complaint on June 26, 2014, adding LexisNexis Risk Data Retrieval Services, LLC
(“LexisNexis”) as a Defendant along with the following claims: violation of the FCRA as to
LexisNexis; Negligence as to LexisNexis; “Invasion of Privacy by Intrusion upon Seclusion” as
to LexisNexis; Emotional and Mental Distress as to LexisNexis; Negligence Per Se as to all
Defendants; Negligent Misrepresentation as to Trans Union, Experian, and Equifax; False
Representation as to Trans Union, Experian, and Equifax; Fraudulent Misrepresentation as to
Trans Union, Experian, and Equifax; Fraud in the Inducement as to Trans Union, Experian, and
Equifax; Fraudulent Concealment as to Trans Union, Experian, and Equifax; Violation of the
Colorado Consumer Protection Act as to all Defendants; and a request for a Temporary
Restraining Order as to all Defendants. [#7].
Equifax, Trans Union, and Experian filed Answers to the Amended Complaint on July
24, 2014 [#15, #17, and #19]. Plaintiff, Trans Union, and Experian filed a Stipulated Motion to
Dismiss Plaintiff’s Motion for Temporary Restraining Order or Preliminary Injunction on July
30, 2014 [#21], which Judge Boland granted on August 7, 2014. [#23]. LexisNexis filed a
Motion to Dismiss the Amended Complaint on August 14, 2014. [#26]. Plaintiff filed a
Response to this Motion on September 4, 2014 and filed an Amended Response eight days later.
[#34, #38]. LexisNexis filed a Reply in support of its Motion to Dismiss on September 19, 2014.
[#53].
On September 15, 2014, the Parties declined to consent to the jurisdiction of a United
States Magistrate Judge [#46 and #47], and the case was reassigned to District Judge Jackson.
[#49]. Judge Boland presided over a Scheduling Conference held October 14, 2014, at which he

ordered the Parties to complete discovery by January 30, 2015 and file dispositive motions on or
before March 6, 2015. [#69 and #70].
On November 24, 2014, with leave of court, Plaintiff filed a Second Amended Complaint
(“SAC”) omitting the claim for Negligence Per Se and adding Greystone Alliance, LLC
(“Greystone”) as a Defendant. [#84]. Plaintiff also added the following claims as to Greystone:
violations of the FCRA; violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq.; violation of the Colorado Consumer Protection Act; and for negligence.
On December 8, 2014, Trans Union and Experian filed an Answer to the SAC [#87 and #89] and
LexisNexis filed a Motion to Dismiss [#88]. Equifax filed an Answer to the SAC on December
11, 2014. [#90]. Plaintiff and LexisNexis filed a Stipulated Motion to Dismiss the Case with
Prejudice on December 31, 2014 [#98], which the court granted on January 2, 2015. [#100].
On December 31, 2014, Plaintiff moved for Entry of Default as to Greystone. [#97]. The
Clerk of Court entered default as to Greystone on January 5, 2015.

[#101].

Plaintiff

subsequently moved for default judgment on January 15, 2015 [#102], and the court set a hearing
on damages.1 [#103 and #104].
Wakefield filed the pending Motion to Quash on January 28, 2015. On January 30, 2015,
Experian, Equifax, Trans Union, and Plaintiff filed a Joint Stipulation and Unopposed Motion for
Extension of the Discovery Cut-Off for Depositions and Pending Written Discovery. [#112].
The court granted the Motion and extended the discovery cut-off date to February 27, 2015.
[#116]. On February 9, 2015, this matter was reassigned to the undersigned Magistrate Judge.
[#119].
Trans Union filed an Unopposed Motion to extend the date by which to file dispositive

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motions to April 28, 2015 [#120], which this court granted. [#122]. On February 18, 2015,
Plaintiff filed a Motion for an Extension of Time to respond to Wakefield’s Motion to Quash.
[#123]. Wakefield filed a Response opposing the Motion for Extension of Time. [#124]. This
court granted the Motion [#127] and Plaintiff filed his Response on February 25, 2015 [#126].
Wakefield did not file a Reply.2
ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) authorizes discovery of “any nonprivileged
matter that is relevant to any party's claim or defense--including the existence, description,
nature, custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter.” Relevancy is broadly
construed, and a request for discovery should be considered if there is “any possibility” that the
information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v.
Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001). When the discovery sought appears relevant,
the party resisting the discovery has the burden to establish the lack of relevancy by
demonstrating that the requested discovery either does not come within the scope of relevance as
defined under Rule 26(b)(1), or it is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.
Simpson v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) (citations omitted). This second
prong reflects the principle of proportionality that is inherent in the Federal Rules, and governs
all discovery. See Fed. R. Civ. P. 26(b)(1) and (b)(2)(C)(i)-(iii). It is incumbent upon the court
to consider how much discovery is reasonable in a given case in light of the claims and defenses

1

Judge Jackson awarded Plaintiff statutory damages in the amount of $1,000 against Greystone
at an April 8, 2015 Evidentiary Hearing. [#142].
2
Hereafter, I use “Defendants” to include Trans Union, Equifax, and Experian.

asserted, the significance of the discovery sought to the propounding party, and the costs and
burden to the producing party. See Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). The Federal Rules of
Civil Procedure also permit a court to restrict or preclude discovery when justice requires in
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense. See Fed. R. Civ. P. 26(c). Because Plaintiff is proceeding pro se, I afford his
materials a liberal construction but do not act as his advocate. Yang v. Archuleta, 525 F.3d 925,
927 n. 1 (10th Cir. 2008).
On January 15, 2015, Plaintiff served a subpoena duces tecum (the “Subpoena”) on
Wakefield via certified mail requesting:
Any and all documents in your possession, custody or control relating to or
concerning [Plaintiff], including your complete credit and debt collection file for
Wakefield & Associates, Inc., Account No. T13Q68M619 since January 1, 2006
to date;
all credit or collection referral documents, statements of account, charge-off
documents, payment agreements, bills for services rendered, insurance payments
receipt, insurance submissions; letters and corresponding documentation or
paperwork, credit reports or credit scores reviewed or otherwise; contracts
executed including assignments and any agreement between you and any debt
collector, as well as all correspondence to and from [Plaintiff] or any other person
and any other document in your files regarding any credit information or
collection activity including credit denial letters concerning [Plaintiff] dated on or
about January 1, 2006 to date;
a printout of your complete computer file on Wakefield & Associates, Inc.,
including all screen prints, computer printouts, computer logs, collection logs,
telephone contact logs, payment plans, credit reports, credit scores, account
payment summaries, or any other computer information or files (along with any
coding definitions necessary to ready any computer printouts) regarding
[Plaintiff] dated on or about January 1, 2006 to date; and
the complete paper file on Wakefield & Associates, Inc., including all
correspondence, collection referral documents, charge off documents, payment
agreements, bills for services rendered, insurance payments received, insurance
submissions, payment histories, letters and/or corresponding documentation or
paperwork, credit reports or credit scores reviewed or otherwise, contracts
executed, as well as all correspondence to and from [Plaintiff] or any other person
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or other documents exchanged between you and [Plaintiff] or anyone acting on
your behalf, dated on or about January 1, 2006 to date.
[#105-1 at 6].
Wakefield, a nonparty to this action, asks the court to quash the Subpoena for failure to
comply with Federal Rule of Civil Procedure 45, as “overly broad, vague, general and nonspecific,” as unduly burdensome, as not relevant to Plaintiff’s claims, and as confidential in
nature and not likely to lead to discoverable information. [#105]. Wakefield also asks the court
to enter a protective order prohibiting discovery with regard to its business records and to impose
sanctions on Plaintiff including the amount of attorney fees and costs incurred in the preparation
and filing of the Motion. Id.
Plaintiff responded that counsel for Wakefield did not attempt to meaningfully confer
with him prior to filing the Motion and did not comply with numerous Local Rules of this
District.

[#126].

Furthermore, he argues, he notified Defendants of his “intent to serve

Wakefield” with the Subpoena, certified mail constitutes acceptable service, the requested
information is relevant to his claims, Wakefield did not specify how production of the documents
would impose a burden, and it cannot rely on the confidential nature of documents in moving to
quash the Subpoena. Id. Plaintiff states he is willing to reduce the time period for the production
to between March 1, 2009 and February 2013. [Id. at ¶ 26].
Federal Rule of Civil Procedure 45(d)(3) provides that “on timely motion, the court for
the district where compliance is required must quash or modify a subpoena that: (i) fails to allow
a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A). The appropriate court may, on motion and to protect a person subject to or affected

by the subpoena, quash or modify the subpoena “if it requires (i) disclosing a trade secret or
other confidential research, development, or commercial information; or (ii) disclosing an
unretained expert's opinion or information that does not describe specific occurrences in dispute
and results from the expert's study that was not requested by a party.”
45(d)(3)(B).

Fed. R. Civ. P.

Where the subpoena requires the responding party to disclose confidential

information as described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying
the subpoena, “order appearance or production under specified conditions if the serving party: (i)
shows a substantial need for the testimony or material that cannot be otherwise met without
undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated.”
Fed. R. Civ. P. 45(d)(3)(C).
I find that Plaintiff satisfactorily served the Subpoena and notified Defendants of the
request.

On January 17, 2015, Plaintiff notified counsel for Defendants which entities he

intended to serve with Rule 45 subpoenas to produce and mailed a hard copy of the notice along
with a compact disc that contained the subpoenas and accompanying documents. [#126 at 16].
This constituted sufficient notice under the Rule. See Fed. R. Civ. P. 45(b)(1). See also Seigel,
David D., “Practice Commentaries,” C45-6 Document Production (“The notice should spell out
for the parties the essentials of the directed production, so that any interested party can attend at
the time and place of the discovery, review the produced documents or other things itself, and
otherwise monitor the proceedings. These notices may be served on the other parties through the
usual within-the-action methods of Rule 5(b) (mail to the other parties' attorneys being the most
common method)”).
I further find that Wakefield has not demonstrated under Rule 45(d)(3) that the Subpoena
is unduly burdensome or seeks materials that are not relevant to the lawsuit. In arguing that the

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Subpoena is burdensome, Wakefield states in conclusory fashion that it will be “unduly harmed
and prejudiced if discovery into its processes, procedures, and business practices related to its
clients and collection of outstanding accounts is allowed to proceed.” [#105 at ¶ 25]. Wakefield
also claims it will undergo undue burden because the requested documents span a time-period of
nine years. Yet Wakefield provides no declaration or other supporting documents to demonstrate
specific prejudice or harm, such as the cost it will incur or time it must spend to comply with the
Subpoena, and Plaintiff agrees in his Response to narrowing the date range to four years.
Furthermore, the requested materials appear relevant to Plaintiff’s claims for statutory violations
and common law negligence and fraud. See Fed. R. Civ. P. 26(b)(1) (“Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.”). Wakefield did not articulate how the documents are not
relevant, or explain how the issue of relevance is so close that the potential harm occasioned by
discovery outweighs the presumption in favor of broad disclosure. Simpson, 220 F.R.D. at 359.
Finally, Wakefield argues that a “significant portion” of the requested documents
“contain proprietary business information, attorney work product, privileged and/or client
information and are confidential in nature,” and production of any of the requested materials
would breach the terms of the Settlement Agreement entered into between Wakefield and
Plaintiff on February 19, 2013. [#105 at ¶¶ 26, 27]. However, Wakefield does not expound on
the confidential nature of any of the referenced documents. “Confidentiality does not equate to
privilege,” and thus Wakefield may not refuse to comply with the Subpoena on this basis alone.
See Stewart v. Mitchell Transport, No. 01-2546-JWL, 2002 WL 1558210, at * 5 (D. Kan. July
11, 2002) (citations omitted). Wakefield asks in the alternative that the court enter a protective
order prohibiting discovery with regard to its business records. Rule 26(c) permits the entry of a

protective order as a means to protect confidential information from disclosure to individuals or
entities not connected with the litigation. While the court exercises its discretion in determining
whether to enter a protective order (see Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir.
1995)); Rule 26(c) requires that the party seeking the protective order establish “good cause” for
its issuance. Johnson v. Gmeinder, 191 F.R.D. 638, 642 (D. Kan. 2000). “In determining
whether good cause exists for the court to issue a protective order that prohibits partial or
complete dissemination of documents or other materials obtained in discovery to non-parties,
‘the initial inquiry is whether the moving party has shown that disclosure of the information will
result in a clearly defined and very serious injury.’” Stewart, 2002 WL 1558210, at *5 (quoting
Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D. Kan. 1995) (internal quotations omitted)).
Wakefield has not demonstrated that compliance with the Subpoena will cause such injury to
befall. Nor does Wakefield appear to have discussed a Protective Order with Mr. Collins.
Nevertheless, since the filing of the instant motion, the Parties have stipulated to, and the court
has entered, a Protective Order to which Wakefield can avail itself. [#130]. Accordingly,
IT IS ORDERED that the Motion to Quash [#105] is GRANTED IN PART and DENIED
IN PART:
(1) The Motion to Quash is GRANTED with respect to documents dated between January 1,
2006 and February 28, 2009;
(2) The Motion to Quash is DENIED with respect to documents dated between March 1,
2009 and February 28, 2013;
(3) Because discovery closed in this matter on February 27, 2015, it is re-opened up to and
including May 13, 2015 for the limited purpose of allowing Wakefield to produce the
documents requested in the Subpoena as identified above, subject to the Protective Order

9

[#130], if appropriate; and
(4) The Motion to Quash is DENIED as to all other matters, Plaintiff and Wakefield shall
each bear his and its own expenses.

DATED: April 28, 2015

BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge