Connecticut Fair Housing Ctr et al v. CoreLogic Rental Property Solutions, LLC
Filing
146
ORDER granting in part and denying in part 65 Motion to Compel; granting 84 Motion for Leave to File; and denying 97 Motion to Compel.For the reasons given in the attached ruling and order, the Court grants in part the First Motion to Co mpel [Dkt. 65] as to RFP 49, but otherwise denies it. Defendant must produce to Plaintiffs the zip code of each property in Connecticut for which CrimSAFE has been used in the past 10 years. The Court denies the Second Motion to Compel [Dkt. 97] as to RFP 30. Also, as noted, the Court grants RPS leave to file a sur-reply per Local Rule 7(d). [Dkt. 84]. Signed by Judge Vanessa L. Bryant on 1/24/2020. (Dannenmaier, Katherine)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CONNECTICUT FAIR HOUSING
CENTER ET AL.
Plaintiffs,
v.
CORELOGIC RENTAL PROPERTY
SOLUTIONS, LLC
Defendant.
:
:
:
:
:
:
:
:
No. 3:18-CV-705 (VLB)
January 24, 2020
ORDER ON MOTIONS TO COMPEL [Dkts. 65, 84, 97]
On April 24, 2018, Plaintiffs Carmen Arroyo and the Connecticut Fair Housing
Center (collectively, “Plaintiffs”) filed a complaint against Defendant CoreLogic
Rental Property Solutions, LLC (“RPS”). [Dkt. 1]. Plaintiffs alleges that RPS,
through use of its criminal tenant screening product, CrimSAFE, violated the Fair
Housing Act, 42 U.S.C. §§ 3601 et seq. (“FHA”), the Connecticut Unfair Trade
Practice Act, Conn. Gen. Stat. §§ 42-110a et seq. (“CUTPA”) and the Fair Credit
Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”).
Pending before the Court is the Plaintiffs’ July 19, 2019 motion to compel
production of documents pursuant to Federal Rule of Civil Procedure 37. [Dkt. 65
(7/19/2019 Mot. to Compel), 65-1 (Mem. Supp.)]. As modified by the Plaintiffs’
subsequent Reply, [Dkt. 80], Plaintiffs seek an order compelling the RPS to produce
documents in response to 14 requests for production: RFPs 31, 32, 47, 48, 49, 50,
51, 52, 53, 54, 56, 58, 72, and 73. RPS objected to the motion. [Dkt. 74 (Opp. to
1
7/19/2019 Mot.)]. Plaintiff replied. [Dkt. 80 (Reply Supp. 7/19/2019 Mot.)]. RPS also
filed a sur-reply in response to the first motion to compel. [Dkt. 84-1]. 1
Also pending before the Court is the Plaintiffs’ September 24, 2019 motion
to compel production of a response to RFP 30. [Dkt. 97 (9/24/2019 Mot. to Compel
Resp. to RFP 30)]. RPS objected. [Dkt. 102 (Opp. To 9/24/2019 Mot.)]. Plaintiffs
replied. [Dkt. 109 (Reply Supp. 9/24/2019 Mot.))].
For the reasons set forth below, the Court GRANTS in part and DENIES in
part Plaintiffs’ July 19 motion [Dkt. 65] and DENIES Plaintiffs’ September 24 motion
[Dkt. 97]. Also, as noted, the Court also grants RPS leave to file a sur-reply per
Local Rule 7(d). [Dkt. 84].
I.
Relevant Factual Background
A. CrimSAFE
RPS’s product CrimSAFE screens the criminal history of housing rental
applicants in three discrete steps: record acquisition, record-applicant matching. ,
and record categorization.
In the first step of its process, RPS obtains criminal records from various
government entities and organizes and stores them in its database. Inaccuracy
may be introduced at this stage if the criminal records are incorporated incorrectly
into the database or if they themselves contain mistakes.
1
The Court here grants RPS leave to file a sur-reply pursuant to Rule 7(d). The
Court finds that good cause for filing a sur-reply exists in light of the new evidence
raised in Plaintiffs’ reply. [Dkt. 84].
2
In the second step of its process, when a CrimSAFE report is requested, an
automated search, or “matching logic,” attempts to match criminal records to the
applicant based on identifying information. Incorrect matches may be generated
because of record inaccuracies or because the records contain too little
information to be ensure they uniquely match to the individual to whom they
pertain and instead may also match to other individuals with similar common
names. These mistakes and how they are handled by the matching logic will
generate higher or lower rates of “false positives,” where RPS attributes a record
to the wrong person, and “false negatives,” where RPS fails to attribute a record to
the right person.
In the third step of its process, RPS sorts the matched records into
categories and assigns an age to each. It then retrieves any records for a given
rental applicant which fall within the landlord’s search parameters; if it retrieves
any relevant records, it reports that a disqualifying record exists and the applicant
is denied.
B. The Instant Case
The instant case arises out of a tenant screening report ordered by RPS’s
customer WinnResidential on Mikhail Arroyo in April 2016. The parties agree that
the
CrimSAFE
portion of the
screening report that RPS
provided to
WinnResidential accurately reflected that RPS had located a criminal record for Mr.
Arroyo, and that the criminal record identified by RPS was correctly attributed to
Mr. Arroyo. Rather, the Plaintiffs’ disparate impact claim arises out of the following
policy:
3
Defendant has a policy or practice of contracting with owners and
managers of rental housing to screen applicants by: (i) searching its
national database to locate applicants’ criminal records; (ii)
determining that applicants’ criminal records, including but not limited
to arrests and/or charges that do not lead to convictions, disqualify
them from tenancy based on an automated evaluation; (iii) making
these determinations without individualized assessments that examine
relevant mitigating information outside the criminal records
themselves; (iv) reporting to housing providers that applicants’
criminal records are “disqualifying”; and (v) not providing to housing
providers any information about the nature, recency, or seriousness of
the offense, or information sufficient to locate the criminal record
(“Defendant’s Automated Criminal Records Screening Policy”).
[Dkt. 1 Compl. ¶106].
Plaintiffs allege that this Automated Criminal Records Screening policy has a
disparate impact on Latinos and African-Americans. [Dkt. 1 ¶194].
II.
Relevant Procedural Background
Plaintiffs served their first Requests for Production on October 26, 2018, and
RPS responded on December 17, 2018. [Dkt. 65-1 at 3]. The parties conferred over
email and telephone over the next several months, narrowing their dispute to Nos.
31 and 32. Ibid. Plaintiffs served their Second Requests for Production on April 19,
2019, and RPS responded on June 6, 2019. Ibid. The parties conferred
telephonically and in person throughout June. Ibid.
To date, RPS has produced close to 1800 pages of documents, around the
same number as Plaintiffs. [Dkt. 109 at 8]. Plaintiffs have taken 8 depositions,
including three Rule 30(b)(6) witnesses, with Rule 30(b)(6) testimony for more than
20 hours. Ibid.; [Dkt. 102 at 10].
With regard to the question of accuracy, RPS has produced a two-page Excel
table with the overall number of consumer disputes it receives each year, broken
4
down into six broad categories (including “other”) and with four general resolution
categories (including, apparently, ”no resolution”). Id. at 1-2.
III.
Standard for Motion to Compel & Scope of Discovery
A. Standard for Motion to Compel & Scope of Discovery
“[A] party may move for an order compelling disclosure or discovery. The
motion must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a). Pursuant to
District of Connecticut Local Rule 37(a), the movant must first confer with opposing
counsel in person or via telephone and discuss the discovery issues between them
in order to arrive at a “mutually satisfactory resolution.” In the event a resolution
is not reached, the movant must attach an affidavit certifying that, despite a good
faith effort, he was unable to resolve the discovery issue with opposing counsel.
Id.
The Federal Rules of Civil Procedure set forth the scope of discovery:
“Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1); see Fed. R. Civ. P. 26(b)(2)(C).
5
A district court has discretion in ruling on motions to compel. "A district
court abuses its discretion only when the discovery is so limited as to affect a
party's substantial rights." In re 650 Fifth Ave., 934 F.3d 147, 157 (2d Cir. 2019).
B. Claims and Defenses to which the Contested RFPs May Be Relevant
i.
Disparate Impact Claim
To prove their disparate impact claim, Plaintiffs must show (1) “the
occurrence of certain outwardly neutral practices” and (2) “a significant adverse
or disproportionate impact on persons of a particular type produced by the
defendant’s facially neutral acts or practices.” MHANY Mgmt., Inc. v. Cty. of
Nassau, 819 F.3d 581, 587-88, 619 (2d Cir. 2016) (internal citation and quotation
marks omitted.) “Plaintiffs must present a statistical analysis to meet the second
prong of their prima facie case.” Winfield v. City of N.Y., No. 15-cv-05236 (LTS)
(KHP), 2018 U.S. Dist. LEXIS 56160, at *6 (S.D.N.Y. Mar. 29, 2018). Further, their
expert analysis must link the policy at issue – here, the Automated Criminal
Records Screening Policy – to the disparity shown. “A robust causality
requirement ensures that ‘[r]acial imbalance… does not, without more, establish
prima facie case of disparate impact’ and thus protects defendants from being held
liable for racial disparities they did not create.” Tex. Dep't of Hous. & Cmty. Affairs
v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523, (2015) (citing Wards Cove
Packing Co. v. Atonio, 490 U.S. 642, 653, (1989)).
Once Plaintiffs make out their prima facie case, the burden shifts to RPS to
show the challenged practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Id. at 2514-15, 2522-23 and 24 C.F.R. § 100.500(c)(3). If RPS
6
establishes a business justification, Plaintiffs may prevail by establishing a less
discriminatory alternative exists which would meet the business needs. Tex. Dep't
of Hous. & Cmty. Affairs 135 S. Ct. at 2515.
ii.
Business Justification
The parties contest how to characterize RPS’s business jusitifcation
defense. Plaintiffs contend that RPS’s legitimate business purpose is that
CrimSAFE is necessary to keep communities safe because it screens applicants in
a more consistent and accurate manner than a human decision-maker. E.g. [Dkt.
97 at 9 (citing RPS Expert Kacirk Report) (“CrimSafe is necessary to provide…
insight into whether the applicant has the propensity for criminal behavior” and is
“necessary to ensure the timely, objective and accurate categorization of criminal
records.” )]. RPS responds that Kacirk did not independently assess the accuracy
of RPS’s matching algorithm. Dkt. 102 at 2-3. RPS argues that, in fact, Kacirk
concludes that the legitimate business purpose of CrimSAFE lies in its
categorization and interpretation of criminal records. Ibid. (CrimSAFE is
“necessary to ensure the timely and accurate categorization of criminal records in
today’s environment of mobility where there are large volumes of electronic
applications and a large number of unique crimes across federal, state, and local
ordinances.”).
IV.
Analysis
A. RFP 30 (Dkt. 97)
RFP 30 reads: “Produce all documents concerning any legitimate business
purpose you assert that CrimSAFE fulfills.”
7
In the Docket 97 motion to compel, Plaintiffs argue that, in response to RFP 30,
the Court should compel RPS to produce a study of its record applicant matching
logic and other documents in produced in Williams v. CoreLogic Rental Property
Solutions, Inc., No. PX-16-58, 2016 WL 6277675 (D. Md. Oct. 26, 2016) and Witt v.
CoreLogic SafeRent, No. 3:15-cv-386 (E.D. Va. Dec. 14, 2016). [Dkt. 97 at 1-2]. In
Williams, plaintiffs alleged that CoreLogic violated the FCRA by offering criminal
record screening products that did not use procedures to assure maximum
possible accuracy. Williams, 2016 WL 6277675, at *2-3. Specifically, the Williams
plaintiffs alleged that RPS inaccurately attributed to them serious criminal records
that belonged to others. Ibid. The Williams Court ordered RPS to produce entries
on RPS’s privilege log, describing them a “internal commentary regarding
CoreLogic’s knowledge of a matching problem.” Williams, 2016 WL 6277675 at *35. Plaintiffs have consistently characterized the Williams discovery as describing
RPS’s “matching logic.” See, e.g., [Dkt. 97 at 7, 8 & n.7, 10, 11, 13]; [Dkt. 109 at 4, 7,
9].
Plaintiffs and RPS dispute the relevance of CrimSAFE’s matching logic, and
thus the relevance of the Williams justification. Plaintiffs make three arguments
about relevance. First, Plaintiffs argue that RPS has consistently alleged that its
business justification for CrimSAFE is that CrimSAFE is more accurate and reliable
than a human decision-maker and is needed to ensure community safety. E.g. [Dkt.
97 at 8-10 (quoting RPS’s expert’s report stating CrimSAFE is necessary to provide
“relevant information on applicant’s criminal history (if any) and… insight into
whether an applicant ahs the propensity for criminal behavior”)] , [Dkt. 109 at 4].
8
They argue that, since record-applicant matching accuracy affects CrimSAFE’s
overall accuracy, the Williams production, which contains documents and internal
production that speak to record-applicant matching accuracy, are therefore
relevant for RPS’s defense and are within the scope of discovery. [Dkt. 97 at 9-10].
Second, Plaintiffs argue that, even if the record-applicant matching accuracy of
CrimSAFE is not relevant to the parties’ defenses, it is at least “an important issue
at stake” in this action, so records that speak to it are within the scope of discovery.
See Fed. R. Civ. P. 26(b)(1). Finally, Plaintiffs argue that RPS has conceded that the
accuracy of its product is at issue. [Dkt. 109 at 4]. They argue that RPS has
produced the overall number of consumer complaints in response to Plaintiff’s
RFPS requesting documents concerning CrimSAFE’s accuracy, and that RPS
questioned Plaintiffs’ expert on the basis of her opinion that criminal record
screening reports were not accurate. Ibid.
In response, RPS asserts that the requested information is not relevant because
the accuracy of its matching algorithm is not at issue in the litigation. [Dkt. 102 at
7]. RPS argues that the accuracy of its algorithm’s matching of criminal records to
rental applicants is not at issue because Plaintiffs do not claim that the criminal
offense record for Mr. Arroyo was inaccurate, or that RPS’s matching procedures
were unreasonable, or that RPS’s matching algorithm is inaccurate with respect to
a group of individuals. [Dkt. 102 at 7-9]. RPS argues that the business justification
for CrimSAFE is not its accuracy broadly, but ratherits “categorization and
interpretation of criminal records.” Id. at 11.
9
After reviewing the briefing, the Court agrees with RPS that the accuracy of its
algorithm’s matching of criminal records to rental applicants is not at issue. The
reported criminal offense record for Mr. Arroyo was accurate: the record was Mr.
Arroyo’s, and the record contained an accurate criminal proceeding status. The
accuracy of the algorithm’s matching of criminal records is not relevant to the
claims.
Further, the Court is not persuaded record-applicant matching is relevant to
CrimSAFE’s business justification defense. RPS characterizes its business
justification defense as the “categorization and interpretation of criminal records,”
rather than its overall accuracy. The Court credits RPS’s characterization because,
given the underlying complaint, any business justification offered by RPS must
have a nexus with the categorization of criminal records. That is, even if CrimSAFE
did accurately match criminal offense records to applicants, such accurate
matching would not provide a business justification for the claimed policy in this
case, which regards categorization and type and amount of information disclosed.
See [Dkt. 1 at ¶106]. For the same reason, the Court does not see how the requested
discovery on matching are relevant to an “important issue at stake” in the action.
The Court is also not persuaded that RPS conceded the accuracy of its
matching logic when it produced the overall numbers of consumer complaints in
response to Plaintiffs’ RFPs requesting documents concerning CrimSAFE’s
accuracy. RPS has consistently maintained that requests relating to the accuracy
of its software are irrelevant, even while agreeing to provide consumer complaint
statistics. E.g. [Dkt. 65-2 at 11-13 (RFP request responses objecting “to the extent
10
that [this Request] calls for irrelevant information because the degree of accuracy
of CrimSAFE reports… is not at issue in this action)]; [Dkt. 74 at 19]; [Dkt. 102 at 7].
Therefore, the Court does not find RPS’s production significant with regards to the
relevance of matching logic accuracy.
Finally, Plaintiffs allege that RPS misled Plaintiffs as to the existence of these
studies. Specifically, Plaintiffs allege that RPS represented that RPS had never
studied the accuracy of CrimSAFE or its matching algorithm beyond responding
to individual consumer complaints. [Dkt. 97 at 5]; [Dkt. 102 at 3 n.2]. RPS responds,
saying that it did not so represent, and pointing out that the Williams order is
public. [Dkt. 102 at 4 n. 3]. Without more information, the Court declines to consider
this dispute as a factor in its evaluation of the motion to compel.
Therefore, the Court DENIES the Docket 97 motion to compel as to RFP 30.
B. RFP 31
•
RFP 31 reads: “Produce all documents concerning the scheme, schema
documentation, or the like for any database or system that may reasonably
be expected to contain information relating to CrimSAFE or the subject
matter of this lawsuit, including information about consumers’ criminal
records or their race or ethnicity.” [Dkt. 65-2 (Ex. A, Disputed Discovery
Responses) at 1].
Plaintiffs argue that this information is necessary to necessary to determine
whether
the
criminal
records
databases
backing
CrimSAFE
include
a
disproportionate number of criminal records belonging to Black and Latino people,
and to evaluate the claim that CrimSAFE provides more accurate results than other
background check methods. [Dkt. 65-1 at 5]. RPS argues that this information is
not relevant, that it has offered to answer questions about specific fields, and that
11
it has already produced a data dictionary, the CrimSAFE structure, the number of
criminal offense records in RPS’s database that contain information on the race of
the offender. [Dkt. 74 at 10-11].
The Court DENIES the motion to compel as to RFP 31. RPS has already
disclosed sufficient information for RPS to determine whether criminal records
databases backing CrimSAFE include a disproportionate number of criminal
records belonging to Black and Latino people. And, as the Court discusses above,
the Court is not persuaded that CrimSAFE’s accuracy is relevant.
C. RFP 32
•
RFP 32 reads: “Produce all documents concerning the nature, structure,
appearance, format, or electronic searchability of any standard, enhanced, or
custom report that can be generated by a database containing information
relating to CrimSAFE or individuals’ criminal records or their race or
ethnicity.” [Dkt. 65-2 at 2].
Plaintiffs argue that RPS has withheld information regarding the types of reports
that its products can generate, including the reports that it advertised to
WinnResidential. [Dkt. 80 at 4, Dkt. 80-2 (Ex. B, CoreLogic Proposal to
WinnResidential) at 19]. RPS responds that it has already informed Plaintiffs about
which systems are searchable in what manner, and that the reports it advertised to
WinnResidential went beyond those regarding the CrimSAFe product, and that
Plaintiffs have not identified further information that was undisclosed. [Dkt. 74 at
4], [Dkt. 84-1 at 2-3 (citing Dkt. 80-2 at 19)]. After reading RPS’s proposal to
WinnResidential, the Court agrees with RPS that the reports it advertised to
WinnResidential went beyond those relating to CrimSAFE. It therefore DENIES the
motion to compel as to RFP 32.
12
D. RFPs 47, 51, 53, and 54
•
RFP 47 reads: “Produce all documentation relating to the CoreLogic RPS
algorithm(s) that match a criminal offense record to a CrimSAFE
category/subcategory and a degree/level of crime, including, but not limited
to, documents relating to whether the model(s) is/are deterministic or
probabilistic, missingness, techniques for dealing with missing data,
techniques for dealing with misspellings or other data errors, and the
variables used for matching.” [Dkt. 65-2 at 5].
•
RFP 51 reads: “Produce all documents relating to the degree of accuracy of
CrimSAFE reports.” [Dkt. 652 at 10].
•
RFP 53 reads: “Produce the number of instances of which you are aware
where a a CrimSAFE “decline” decision for a property (a) in Connecticut and
(b) anywhere in the United States was based on a criminal record that was
sealed, expunged, vacated, inaccurate, or erroneously attributed to a housing
applicant.” [Dkt. 65-2 at 12].
•
RFP 54 reads: “Produce the number of instances of which you are aware
where a background report produced by CoreLogic RPES included
information about criminal records that were sealed, expunged, vacated,
inaccurate, or erroneously attributed to a housing applicant.” [Dkt. 65-2 at
13].
RPS has asserted that the requested information in each of these requests for
production is not relevant because the accuracy of its matching algorithm is not at
issue in the litigation. See [Dkt. 74 at 12 (re: RFP 47, “RPS’s matching algorithm
has no relevance to this case…. There is no claim that RPS has inaccurately
reported criminal records for Plaintiff or anyone else”); (re: RFPs 51, 53, 54, “there
is no claim that the record reported for Mr. Arroyo was in any way inaccurate or did
not reflect the current status of the proceeding a the time it was reported. None of
these requests, therefore, relate…”). As discussed above in the analysis of RFP 30,
the Court agrees. Therefore, the Docket 65 motion to compel is DENIED as to RFPs
47, 51, 53 and 54.
13
E. RFPs 48, 50, 52 and 58
The Court follows the parties in considering Requests for Production 48, 50, 52,
and 58 together as they each request extracts of data from the CrimSAFE database.
•
RFP 48 reads: Produce the total number of people of each race (based on
the race code filed in the table ‘CRMMASTP’ in database ‘CRIMNALDB’) who
have at least one criminal offense record that was in CoreLogic RPS’s
database on April 26, 2016 that would trigger a CrimSAFE decline decision
using WinnResidential’s CrimSAFE configuration for ArtSpace Windham on
April 26, 2016, disregarding dates/events after April 26, 2016 associated with
those criminal records (e.g. a subsequent disposition date, sentence date,
custody date, etc.). Provide this number for people residing in (a) people
residing in each zip code in Windham CT (which includes Willimantic,
Windham Center, North Windham, and South Windham); (b) people residing
in each zip code in Connecticut; and (c) people residing in each zip code in
Windham County, CT. [Dkt. 65-2 at 5-6].
•
RFP 50 reads: Produce the total number of people of each race (based on
the race code filed in the table ‘CRMMASTP’ in database ‘CRIMINALDB’)
residing in each zip code in Connecticut for whom CrimSAFE would return a
decline decision using CrimSAFE settings uniformly set, for all categories
and degrees/levels, at: A. 1 year; B. 3 years; C. 5 years; D. 7 years; E. the
lesser of 10 years or the maximum permissible number for a given
category/degree/level; and the F. the lesser of 20 years or the maximum
possible number for a given category/degree level; G the lesser of 99 years
or the maximum permissible number for a given category/degree/level; H.
the maximum permissible number for each category/degree/level. [Dkt. 65-2
at 8].
•
RFP 52 reads: For each CrimSAFE category/subcategory and degree/level of
crime, produce the total number of people of each race (based on the race
code filed in the table ‘CRMMASTP’ in database ‘CRIMINALDB’) with at least
one offense record within that category and degree/level where the age of
the offense (determined in the same manner as CrimSAFE) is less than (a) 1
year, (b) 3 years, (c) 5 years, (d) 7 years, (e) 10 years, (f) 20 years, and (g) 99
years. Produce this information for: (a) people residing in each zip code in
Connecticut; (b) people residing in each zip code in Windham County, CT;
and (c) people residing in each zip code in Windham CT (which includes
Willimantic, Windham Center, North Windham, and South Windham). [Dkt.
65-2 at 11].
14
•
RFP 58 reads: For each degree/level of crime in CrimSAFE (e.g. “Felony
Convictions Only,” “Other Felony Charges,” etc.), produce the total number
of people of each race (based on the race code field in the table ‘CRMMASTP’
in database ‘CRIMINALDB’) with at least one offense record within that
degree/level where the age of the offense (determined in the same manner
as CrimSAFE) is less than (a) 1 year, (b) 3 years, (c) 5 years, (d) 7 years, (e)
10 years, (f) 20 years, and (g) 99 years. Produce this information for (a)
people residing in each zip code in Connecticut; (b) people residing in each
zip code in Windham County, CT; and (c) people residing in each zip code in
Windham CT (which includes Willimantic, Windham Center, North Windham,
and South Windham). [Dkt. 65-2 at 15].
Plaintiffs argue that the requested that extracts prove disproportionate
housing rental denials more directly than the public demographic data available to
Plaintiffs’ expert since it would show, broken down by race, (a) whether the settings
selected by the Arroyo Plaintiffs’ landlord would, within the local area that contains
the likely applicant pool, disproportionately deny African-American and Latino
rental applicants; (b) whether various CrimSAFE settings would disproportionately
deny African-American and Latino rental applicants within the likely applicant pool;
and (c) may also go to whether less discriminatory alternatives exists. [Dkt. 65-1 at
13]. Plaintiffs argue that the requested data is the most probative statistical
evidence given that RPS has no record of the race of actual applicants except when
the application was denied. Id. at 14; [Dkt. 80 at 7].
RPSs make three arguments in response: that the data requested by the
Plaintiffs are irrelevant because they concern the hypothetical pool of potential
applicants [Dkt. 74 at 14-15]; that the reports requested are irrelevant because they
concern a pool of people which does not reflect the potential applicant pool [Dkt.
74 at 14], [Dkt. 84-1 at 5]; and that it is technically infeasible to respond to the
request.
15
While the Court agrees with the Plaintiffs that the requested reports are
relevant, 2 it finds that the requested data do not exist, and that RPS therefore
cannot be compelled to produce them.
The question here is whether RPS would need to generate new documents
to produce the requested reports or if instead it would only need to formulate new
queries for an existing database. “While ‘a party should not be required to create
completely new documents, that is not the same as requiring a party to query an
existing dynamic database for relevant information. Courts regularly require
parties to produce reports from dynamic databases, holding that the technical
burden... of creating a new dataset for [ ] litigation does not excuse production.’”
2
Where, as in this case, reliable applicant flow data is not available, data on
the pool of potential applicants is relevant. See Hazelwood Sch. Dist v. United
States, 433 U.S. 299, 308-309 n.13 (1977) (holding data which demonstrates the pool
of eligible candidates is appropriate to consider where reliable applicant flow data
unavailable). RPS’s argument that any statistics must be based on actual
applicants relies on mis-cited cases. [Dkt. 74 at 15]; see Davis v. N.Y. Housing
Authority, No. 90 Civ. 628, 1997 U.S. Dist. LEXIS 10451 at *20 (S.D.N.Y. July 17,
1997) (quoting Dothard v. Rawlinson, 433 U.S. 321, 330 (1977)) (“There is no
requirement… that a statistical showing of disproportionate impact must always
be based on analysis of the characteristics of actual applicants." (emphasis
added)); Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. Park Partners
Residential, LLC, No. 16-80740-MIDDLEBROOKS, 2017 U.S. Dist. LEXIS 35546, at
*18 (S.D. Fla. Mar. 9, 2017) (quoting Hallmark Developers, Inc. v. Fulton Cty., 466
F.3d 1276, 1286 (11th Cir. 2006)) (“statistics based on the general population
[should] bear a proven relationship to the actual applicant flow.”).
The requested data would be an estimate of the number of people of each
race for whom disqualifying criminal records would likely be found in the potential
applicant pool – that is, the number of individuals excluded for each race by
CrimSAFE. The Court understands that this set of numbers, together with
estimates of the whole potential applicant pool for each race, would generate an
estimate of the rates of exclusion for the local potential applicant pool.
16
N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 51
(E.D.N.Y. 2018) (quoting Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630, 2013
WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013)); see Hallmark v. Cohen & Slamowitz,
Midland Funding LLC, 302 F.R.D. 295, 299 (W.D.N.Y. 2014) (“It is basic that in
responding to a document production request, pursuant to Fed.R.Civ.P. 34(a)…a
party is not required to create documents meeting the document requests, only to
produce documents already in existence.” (collecting cases)).
RPS argues that it cannot apply the identified CrimSAFE categories against
its underlying database of criminal records because more than 95% of all offenses
in its database do not have an associated CrimSAFE “category,” and RPS would
have to create new coding, or mapping, to generate the requested reports. [Dkt. 74
at 15-16, 18; Dkt. 84 at 4-5]. Plaintiffs respond that RPS has not “suggest[ed] the
difficulty of [coding to apply the categories] would be high or prohibitive,” and that
RPS’s 30(b)(6) designee, Naeem Kayani, testified that the categories were included
with the criminal record database. [Dkt. 80 at 8-9 (citing Dkt. 81-1 (Ex. 1, Kayani
Dep.)]. RPS replies that Plaintiffs mischaracterize Kayani’s deposition testimony,
as Kayani also testified that he did not know how the categorization process
happened. [Dkt. 84 at 4-5]. RPS does not provide any estimates of the time or
expense that would be needed to write such code.
While the Court remains uncertain about the difficulty of generating the
reports, the Court finds that such reports would be new documents, rather than
queries of old ones. According to RPS, how each offense is categorized—
information necessary to answer the requests—does not currently exist for the
17
vast majority of offenses in CrimSAFE’s database. Therefore, the Court DENIES the
Motion to Compel as to RFPs 48, 50, 52, and 58.
F. RFP 49
•
RFP 49 reads: For each property in Connecticut for which CrimSAFE has been
used in the past 10 years, produce the name and address of the complex (e.g.
ArtSpace Windham), the landlord or management company (e.g.
WinnResidential), the CrimSAFE configuration, the total number of people of
each race (based on the race code filed in the table ‘CRMMASTP’ in database
CRIMINALDB’) for whom CrimSAFE has returned a decline decision in each
calendar year between 2010 and 2019 (inclusive), and the total number of
Connecticut residents of each race shoe criminal records would trigger a
CrimSAFE decline decision based on the property’s current CrimSAFE
configuration. [Dkt. 65-2 at 7].
For Connecticut-based properties and Connecticut-based offenders, RPS has
produced the number of instances where a CrimSAFE product has identified a
record based on a property’s settings, whether that record was associated with the
offender’s race, and (if so) the race associated with that record, of the period from
2016. [Dkt. 74 at 17]. It has also provided the CrimSAFE settings for each
Connecticut property that uses CrimSAFE. Ibid. Plaintiffs requests additional
information identifying the specific property and property addresses, so that they
can be prepared if RPS argues that different rental markets in different parts of the
state would attract different demographic mixes of tenants. [Dkt. 80 at 10].
In light of the relevance of the additional information, the Court GRANTS in
part and DENIES in part the motion to compel as to RFP 49. RPS must additionally
produce to Plaintiffs the zip code of each property in Connecticut for which
CrimSAFE has been used in the past 10 years.
G. RFP 56
18
•
RFP 56: Produce the number of criminal offense records in CoreLogic RPS’s
criminal records database that (a) lack a disposition date, (b) lack a disposition
date and a sentence date, (c) lack a disposition date, sentence date, and custody
date, and (d) lack a disposition date, sentence date, and arrest date. Produce
this information for criminal records associated with (a) Connecticut residents
and (b) U.S. residents.
Plaintiffs argue that documents related to RPS’s decision to prioritize the
disposition date are important to issues such as RPS’s business justification and
the viability of alternative methods, and that RFP 56 could illuminate how often and
to what extent CrimSAFE treats a rental applicant differently than other applicants
because of the lack of an available disposition date. [Dkt. 65-1 at 22]. RPS responds
that the request is not linked to any actual reporting of records by RPS. [Dkt. 74 at
21]. It also responds that this RFP, like the RFPs relating to accuracy, is deficient
because no claim in the case implicates specific dates associated with the
underlying criminal records held in RPS’s database. Ibid. Plaintiffs do not reply to
this response. [Dkt. 84-1]. Plaintiffs separately note that RPS has produced
documents or deposition testimony which resolve other requests related to RPS’s
decision to prioritize the disposition date. Ibid
In light of RPS’s production of other related documents and the tangential
relationship between this request and the claims in this case, the Court DENIES the
motion to compel as to RFP 56.
H. RFPs 72 and 73
•
RFP 72: Produce any document that has ever been available at the URL
http://corporate.corelogic.com/landing-pages/asset_upload_file691_14887.pdf.
[Dkt. 65-2 at 20].
19
•
RFP
73:
Produce
any
document
asset_upload_file691_14887.pdf. Ibid.
with
the
filename
The Court DENIES the motion to compel as to RFPs 72 and 73 as RPS represents
that it has already performed extensive searches for these documents and
Plaintiffs have represented that they will not further address the matter. [Dkt. 74 at
24, Dkt. 80 at 2].
V. Conclusion
For the reasons given, the Court GRANTS in part the First Motion to Compel [Dkt.
65] as to RFP 49, but otherwise DENIES it. The Court also DENIES the Second
Motion to Compel [Dkt. 97] as to RFP 30. Also, as noted, the Court grants RPS leave
to file a sur-reply. [Dkt. 84].
SO ORDERED.
________________________
District Judge Vanessa L. Bryant
Dated: January 24, 2020 at Hartford, Connecticut
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