Fegadel v. Ocwen Loan Servicing, LLC

Filing 39

ORDER granting in part and denying in part 33 Plaintiff's Motion to Compel Discovery. Signed by Magistrate Judge Julie S. Sneed on 11/23/2016. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LYNN FEGADEL,
Plaintiff,
v.

Case No: 8:15-cv-2228-T-17JSS

OCWEN LOAN SERVICING, LLC,
Defendant.
___________________________________/
ORDER ON PLAINTIFF’S MOTION TO COMPEL DISCOVERY
THIS MATTER is before the Court on Plaintiff’s Motion to Compel Discovery
(“Motion”). (Dkt. 33.) Defendant opposes the Motion. (Dkt. 36.) For the reasons that follow,
the Motion is granted in part and denied in part.
BACKGROUND
In September 2015, Plaintiff filed a class action complaint against Defendant, alleging that
Defendant violated the Florida Consumer Collections Practices Act (“FCCPA”) and a bankruptcy
court discharge order by continuing to attempt to collect a debt from Plaintiff despite having
knowledge that the debt was discharged in Plaintiff’s bankruptcy. (Dkt. 1.) Plaintiff brings the
class action “on her own behalf and on behalf of all other similarly-situated consumers who
received a discharge in bankruptcy within the United States Bankruptcy Court for the Middle
District of Florida who have been subjected to Defendant’s practices . . . within two (2) years of
the date of Plaintiff’s complaint, together with their successors in interest” (“Proposed Class”).
(Dkt. 1 ¶ 13.)
In Count I, Plaintiff alleges that Defendant violated certain sections of the FCCPA by (1)
willfully communicating with Plaintiff with such frequency or in other ways that can reasonably

be expected to be harassing or abusive, (2) attempting to collect a debt from Plaintiff that
Defendant knows is not legitimate or assert a legal right against Plaintiff that Defendant knows
does not exist, and (3) communicating with Plaintiff when Defendant knew she was represented
by an attorney. (Dkt. 1 ¶¶ 61–69.) In Count II, Plaintiff alleges that the discharge order entered
by the bankruptcy court in Plaintiff’s bankruptcy included a discharge of Plaintiff’s in personam
liability for Plaintiff’s debt to Defendant and, despite Defendant’s knowledge of this order,
Defendant attempted to collect the discharged debt from Plaintiff. (Dkt. 1 ¶¶ 70–78.) In its answer,
Defendant raised several affirmative defenses, including that its communications with Plaintiff
were not attempts to collect a debt and that its “alleged conduct was the result of a bona fide error
despite established procedures that it has in place to avoid such errors.” (Dkt. 29.)
APPLICABLE STANDARDS
Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901
F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Through
discovery, parties may obtain materials that are within the scope of discovery, meaning they are
nonprivileged, relevant to any party’s claim or defense, and “proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). Courts consider the following factors when evaluating whether requested
discovery is proportional to the needs of the case: (1) “the importance of the issues at stake in the
action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant information,”
(4) “the parties’ resources,” (5) “the importance of the discovery in resolving the issues,” and (6)
“whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.
Regarding class actions, “Rule 23 establishes the legal roadmap courts must follow when
determining whether class certification is appropriate.” Valley Drug Co. v. Geneva Pharm., Inc.,

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350 F.3d 1181, 1187 (11th Cir. 2003). Pursuant to Rule 23(a), a class may be certified only if (1)
the class is so numerous that joinder of all members would be impracticable; (2) there are questions
of fact and law common to the class; (3) the claims or defenses of the representatives are typical
of the claims and defenses of the unnamed members; and (4) the named representatives will be
able to represent the interests of the class adequately and fairly. Fed. R. Civ. P. 23(a).
In cases in which a plaintiff seeks to bring claims on behalf of a class of claimants, “[t]o
make early class determination practicable and to best serve the ends of fairness and efficiency,
courts may allow classwide discovery on the certification issue.” Washington v. Brown &
Williamson Tobacco Corp., 959 F.2d 1566, 1570–71 (11th Cir. 1992).

Permitting class

certification discovery is within the broad discretion of the court. Stewart v. Winter, 669 F.2d 328,
331 (5th Cir. 1982) (internal quotations omitted) (explaining that “a certain amount of discovery
is essential in order to determine the class action issue and the proper scope of a class action”).
ANALYSIS
In this case, the deadline for class certification discovery was June 1, 2016, and the deadline
for discovery on the merits is April 3, 2017. (Dkt. 21.) Plaintiff’s motion for class certification is
due by December 20, 2016. (Dkt. 31.) The discovery requests at issue in the Motion are Plaintiff’s
requests related to Plaintiff’s class certification and other allegations that Plaintiff served on
Defendant in December 2015. (Dkt. 33-1.) Defendant served objections and responses to
Plaintiff’s discovery requests.

(Dkts. 33-2, 33-3.)

Thereafter, Defendant produced some

responsive documents, but did not provide a privilege log identifying the documents it withheld
on the assertion of a privilege. (Dkt. 33 ¶ 7; Dkt. 33-4.)
In the Motion, Plaintiff contends that the documents Defendant produced “relate to the
Plaintiff individually and do not address any class claim issues” and, thus, Plaintiff contends that

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it has “no usable discovery from Defendant to support a motion for class certification.” (Dkt. 33
¶¶ 7–9.) Therefore, Plaintiff seeks an order compelling Defendant to provide responses to certain
of its requests for production and interrogatories, specifically Requests for Production numbers 2,
3, 7, 8, 9, and 19, and Interrogatories 4 through 16 and 21. (Dkt. 33.)
In response, Defendant argues that the Motion “is premature” because the parties have and
continue to confer in good faith attempts to resolve the discovery disputes raised in the Motion.
(Dkt. 36.) Specifically, Defendant states that it is “in the process” of producing documents
responsive to Plaintiff’s discovery requests, including Defendant’s “policies and procedures”
relevant to Plaintiff’s allegations and a list of loans it services in the Middle District that “are
identified within [Defendant’s] systems as the loans that may have received post-Chapter 7
bankruptcy discharge communications,” which is relevant to Plaintiff’s class allegations. (Dkt. 36
at 2.) However, Defendant contends that its “records are not maintained in a way that the details
of any and all post-discharge communications, if any were sent, could be reviewed and analyzed,
short of performing a complete review of each Chapter 7 bankruptcy loan file.” (Dkt. 36 at 2.)
This discovery, Defendant argues, is based on the facts and circumstances of each debtor and, thus,
“[s]uch individualized discovery is premature prior to a decision on class certification.” (Dkt. 36
at 2.)
A.

Production Requests 2, 7, 8, and 9 and Interrogatories 4 through 9

Production Requests 2, 7, 8, and 9, and Interrogatories 4 through 9 seek discovery related
to Defendant’s policies, procedures, and training regarding the lawful collection of debt. (Dkt. 331.)
Specifically, Production Request 2 seeks “all documents” relating to Defendant’s policies
and procedures regarding (2) attempted collection of debts, (2) contact with people in attempts to

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collect debt, and (3) receipt and processing of incoming mail; Production Request 7 seeks “all
documents” relating to Defendant’s creation and maintenance of procedures regarding avoiding
violations of the Fair Debt Collection Practices Act (“FDCPA”), the FCCPA, federal bankruptcy
laws, and any state or federal law regulating consumer debt collection practices; Production
Request 8 seeks “all documents” used by Defendant in its debt collection efforts, e.g., memoranda,
manuals, instructions, and guides; and Production Request 9 seeks “all documents” used by
Defendant to train employees regarding the FDCPA, the FCCPA, federal bankruptcy laws, and
any state or federal law regulating consumer debt collection practices. (Dkt. 33-1.)
Similarly, Interrogatory 4 seeks a description of Defendant’s procedures to avoid violations
of the FDCPA, the FCCPA, federal bankruptcy laws, and any state or federal laws regulating
consumer debt collection practices; Interrogatory 5 seeks a description of Defendant’s policies and
procedures for when a debtor files bankruptcy or obtains a bankruptcy discharge, including
Defendant’s policies of continuing to contact the debtor post-bankruptcy or discharge;
Interrogatory 6 seeks a description of the training of persons involved in the collection of alleged
debts, “all documents and audio or visual materials” used in such training, and a list of each person
involved in such training; Interrogatory 7 seeks a description of any system(s) Defendant maintains
to track communications with debtors in connection with the collection of consumers’ accounts,
including Defendant’s policies for operating such a system; Interrogatory 8 requests Defendant to
identify documents used to track Defendant’s methods used in collecting debt and all internal
codes, abbreviations, etc., used to memorialize communications with debtors as kept in
Defendant’s records; and Interrogatory 9 requests Defendant to identify individuals responsible
for establishing a system that Defendant uses to identify debtors who have filed for bankruptcy
and/or obtained a bankruptcy discharge. (Dkt. 33-1.)

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These discovery requests are relevant to Plaintiff’s allegations that Defendant violated the
FCCPA and the bankruptcy discharge order by continuing to attempt to collect a debt from Plaintiff
despite having knowledge of Plaintiff’s bankruptcy discharge as well as Plaintiff’s allegations that
Defendant failed to implement effective policies to ensure compliance with the FCCPA and
bankruptcy laws. (Dkt. 1 ¶¶ 57–78.) The requests are also relevant to Defendant’s affirmative
defense that Defendant’s “alleged conduct was the result of a bona fide error despite established
procedures that it has in place to avoid such errors” (Dkt. 29 at 14). See Drossin v. Nat’l Action
Fin. Servs., Inc., No. 07-61873-CIV, 2008 WL 5381815, at *6 (S.D. Fla. Dec. 19, 2008) (ordering,
in a case alleging violations of the FDCPA and FCCPA, the production of “any written
documentation of its policies and procedures to be used by employees of Defendant with respect
to collecting debts”). Further, the policies, procedures, and training Defendant provides to its
employees and agents are relevant to Plaintiff’s allegations of Defendant’s, through its employees
and agents, “willful” or “knowing” violations of the FCCPA and the discharge order (Dkt. 1 ¶¶
64–65, 73–76). See Edeh v. Midland Credit Mgmt., Inc., 748 F. Supp. 2d 1030, 1044–45 (D. Minn.
2010) (holding that “information about what [defendant’s] procedures required it to do to avoid
violating the TCPA is relevant to whether [defendant’s] TCPA violation was knowing or
reckless”).
However, as Defendant argues, Production Requests 7, 8, and 9 and Interrogatories 4 and
6 are overly broad because, although they request documents relating to Defendant’s procedures
regarding avoiding violations of the FCCPA, they also request Defendant’s procedures regarding
the FDCPA and any federal or state consumer collection laws. (Dkt. 36 at 6.) Plaintiff’s claims,
however, are that Defendant violated the FCCPA and a bankruptcy court’s discharge order. (Dkt.
1.) Plaintiff argues, however, that “entities like Defendant typically do not have a separate set of

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collection policies for compliance with each individual state law,” but instead “have a general set
of policies and typically refer to the FDCPA in a generic sense to refer to all their collection
policies.” (Dkt. 33 at 13.)
Accordingly, the Motion is granted as to Production Requests 2, 7, 8, and 9, and
Interrogatories 4 through 9, except as limited in the three following ways. First, the Court limits
Defendant’s production in response to Production Requests 7, 8, and 9 and responses to
Interrogatories 4 and 6 to discovery regarding Defendant’s policies, procedures, and training
materials regarding the collection of debt in relation to its collection practices in the state of
Florida, the FCCPA, and the federal bankruptcy laws. Second, the Court limits Defendant’s
response in response to Interrogatory 5 to a description of Defendant’s policies and procedures for
when a debtor obtains a discharge of debt. This is because, as Defendant contends (Dkt. 33-1),
Plaintiff alleges that Defendant attempted to collect a debt after Plaintiff received a bankruptcy
discharge, but does not bring suit based on Defendant’s alleged attempts to collect a debt after
Plaintiff filed bankruptcy. (Dkt. 1.) Thus, the request in Interrogatory 5 for Defendant’s policies
and procedures for when a debtor files for bankruptcy protection is irrelevant to Plaintiff’s claims
and, thus, outside the scope of discovery. Finally, the Court limits Defendant’s production and
responses to materials created and/or in effect within two years of the date Plaintiff filed the
complaint, which was September 24, 2015, because that is the time scope of the Proposed Class.
(Dkt. 1 ¶ 13.)
To the extent Defendant raised objections as to the confidential or proprietary nature of
this discovery, Plaintiff states that the parties have entered into a confidentiality agreement
governing the use of such discovery. (Dkt. 33 at 10.) Further, to the extent Defendant withholds
any responsive materials on the basis of the attorney-client privilege or work production

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protection, Defendant shall serve a privilege log “describ[ing] the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess the claim.”
Fed. R. Civ. P. 26(b)(5)(A)(ii); M.D. Discovery Handbook § VI.A.1.
B.

Interrogatories 10 through 13, 15, and 16

Plaintiff argues that Interrogatories 10 through 13 are relevant and “crucial” to Plaintiff’s
determining the size of the Proposed Class and identifying class members. (Dkt. 33 at 21.)
Interrogatory 10 requests that Defendant identify all individuals in the Middle District of Florida
who Defendant “identifies as having filed bankruptcy naming Defendant or Defendant’s principal
as a creditor” within six years of Plaintiff’s filing the complaint. (Dkt. 33-1.) Interrogatory 11 is
identical to Interrogatory 10, except it adds that the individual received a bankruptcy discharge.
Further, Interrogatory 13 is identical to Interrogatory 11, except that it adds that the individual
“received any communication from Defendant after having obtained said bankruptcy discharge.”
(Dkt. 33-1.)
Defendant argues that Interrogatory 10 is overly broad and seeks irrelevant information
because it is not limited to individuals who received a bankruptcy discharge (Dkt. 33-3; Dkt. 36 at
7) and objects to Interrogatory 11 as overly broad and unduly burdensome. The Court agrees with
Defendant as to Interrogatories 10 and 11. Plaintiff’s alleges that Defendant improperly continued
to attempt to collect a debt from Plaintiff despite Defendant’s knowledge that the debt was
discharged in bankruptcy and the Proposed Class is comprised of “similarly-situated consumers
who received a discharge in bankruptcy . . . who have been subjected to Defendant’s practices.”
(Dkt. 1 ¶¶ 13, 72–76.) Unlike Interrogatories 10 and 11, Interrogatory 13 matches Plaintiff’s
allegations in the Complaint, in that it requests Defendant to identify individuals within the Middle

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District who filed bankruptcy, named Defendant as a creditor, obtained a bankruptcy discharge,
and, thereafter, received communications from Defendant. (Dkt. 33-1.)
The Motion is therefore denied as to Interrogatories 10 and 11 as these overly broad
requests serve little “importance . . . in resolving the issues” and the burden imposed on Defendant
in responding to Interrogatories 10 and 11 outweighs any likely benefit of such discovery. See
Fed. R. Civ. P. 26(b)(1). The Motion is granted as to Interrogatory 13, but with the following
limitations.

First, the Court limits the time period for which Defendant must respond to

Interrogatory 13 to the scope of the Proposed Class, which is within two years of Plaintiff’s filing
the complaint. (Dkt. 1 ¶ 13.) Second, due to potential privacy concerns in identifying individuals
responsive to Interrogatory 13 at this early pre-certification stage in the litigation, Defendant shall
redact the individuals’ names (and any other personal information, such as contact information
and personal banking information).
Interrogatory 12 requests Defendant to identify all individuals within the Middle District
who filed for bankruptcy, named Defendant as a creditor, obtained a discharge, and were
represented by an attorney. (Dkt. 33-1.) Interrogatory 12 is relevant to Count I of Plaintiff’s
complaint, in which Plaintiff alleges that Defendant violated Section 559.72(18) of the FCCPA by
communicating with Plaintiff despite Defendant’s knowledge that Plaintiff was “represented by
an attorney with respect to such debt.” § 559.72(18), Fla. Stat. (2016). However, Interrogatory
12 is not limited to such individuals who received communications from Defendant despite
Defendant’s knowledge of them being represented by an attorney. Thus, like Interrogatories 10
and 11, the Court finds that the burden imposed on Defendant in responding to Interrogatory 12
outweighs any likely benefit of such discovery, See Fed. R. Civ. P. 26(b)(1), because the responses

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would include individuals who Defendant knew to be represented who did not receive
communications from Defendant. Accordingly, the Motion is denied as to Interrogatory 12.
Interrogatory 15 requests that Defendant calculate the amount it collected from individuals
after the individuals received a bankruptcy discharge in the Middle District.

(Dkt. 33-1.)

Defendant objected to Interrogatory 15 on the basis that it is overly broad because it does not
address individuals who reaffirmed their debt in bankruptcy or continued to voluntarily repay their
debt despite a discharge. (Dkt. 33-3.) Further, Defendant contends that responding to it would
require an analysis that would be unduly burdensome. (Dkt. 33-3.)
The Court finds that Interrogatory 15 is relevant to Plaintiff’s claims for actual damages in
the complaint, specifically, Plaintiff’s claim for actual damages for Defendant’s alleged violations
of the FCCPA, § 559.72, Fla. Stat. (2016), and for Plaintiff’s claim for “any and all damages” for
Defendant’s alleged violation of the discharge injunction. (Dkt. 1 ¶¶ 69, 78.) However, this
request goes beyond discovery relevant to and necessary for class certification and instead goes to
damages, which would be more appropriate post-class certification. See Valley, 350 F.3d at 1188,
n.15 (explaining that, at the class certification stage, the “trial court should not determine the merits
of the plaintiffs’ claim” other than “to the degree necessary to determine whether the requirements
of Rule 23 will be satisfied.”). Thus, the Motion is denied as to Interrogatory 15.
Interrogatory 16 requests that Defendant identify the number of members Defendant
contends is in the Proposed Class, which Plaintiff defines as “all individuals within the Middle
District of Florida who received any communications, whether written or oral, including but not
limited to billing statements, from Defendant attempting to collect a debt after such individual
obtained a bankruptcy discharge.” (Dkt. 33-1 ¶ J; Dkt. 1 ¶¶ 13–23.) Defendant answered that

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“there would be zero members of any Proposed Class,” contending that the Proposed Class cannot
be certified. (Dkt. 33-3.)
The request, in Interrogatory 16, for Defendant’s “conten[tion]” about the number of
members of the Proposed Class is not improper because “[a]n interrogatory is not objectionable
merely because it asks for an opinion or contention that relates to fact or the application of law to
fact . . . .” Fed. R. Civ. P. 33(a)(2). Further, Interrogatory 16 is similar to Interrogatory 13, which
requests that Defendant identifies all individuals in the Proposed Class, meaning individuals in the
Middle District of Florida that filed bankruptcy, identified Defendant as a creditor, obtained a
discharged, and received any communication from Defendant after receiving the discharge. (Dkt.
33-1.) Thus, in Interrogatory 13, Plaintiff seeks the list of individuals who comprise the number
sought in Interrogatory 16. The Court has compelled Defendant to answer Interrogatory 13, except
that Defendant’s answers shall be limited to the time scope of the Proposed Class and, Defendant
shall redact the individuals’ names (and other personal information, such as contact and banking
information). Accordingly, the Motion is granted as to Interrogatory 16.
C.

Production Request 3 and Interrogatory 14

In Production Request 3, Plaintiff requests “all documents, including but not limited to, all
changes made over time to all versions of the statements attached to the Complaint as Exhibit B,”
which are billing statements from Defendant to Plaintiff sent after Plaintiff’s bankruptcy discharge
that state an amount due from Plaintiff to Defendant. (Dkts. 33-1, 4-2). In her complaint, Plaintiff
alleges that these billing statements constitute attempts to collect a debt despite Defendant’s
knowledge that Plaintiff’s debt to Defendant was discharged in Plaintiff’s bankruptcy, that Plaintiff
was represented by counsel with regard to the debt, and that the debt was illegitimate or that
Defendant asserted a non-existent legal right. (Dkt. 1 ¶¶ 39–43, 54, 63–64, 74–76.) Further,

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Plaintiff alleges, in her class allegations, that the Proposed Class “received the same or
substantially similar communications from Defendant.” (Dkt. 1 ¶ 15.)
In the Motion, Plaintiff argues that the documents sought in Production Request 3 are
relevant because the different versions of the billing statements “will demonstrate Defendant’s
prior compliance or non-compliance with the law” and could show that Defendant “has become
more aggressive in its collection efforts regarding discharged debts.” (Dkt. 33 at 12.) Defendant
objected to Production Request 3 on the basis that it seeks discovery irrelevant to the claims or
defenses in the case and protected from discovery by the attorney-client privilege and work product
doctrine, but states that it will produce non-privileged, responsive documents, if any such
documents exist. (Dkt. 33-2.) Further, Defendant states that it has provided Plaintiff with
Plaintiff’s loan file for the period following Plaintiff’s bankruptcy discharge. (Dkt. 36 at 8.)
The Court agrees with Defendant that Production Request 3 seeks discovery irrelevant to
the parties’ claims and defenses. See Fed. R. Civ. P. 26(b)(1). Plaintiff claims that Defendant’s
sending Plaintiff billing statements (Dkt. 4-2) after her bankruptcy discharge violated the FCCPA
and the discharge order. Production Request 3, however, requests all versions of the billing
statements “over time,” without regard as to whether those versions were actually sent to Plaintiff
or a Proposed Class member. If never sent, there could be no violation of the FCCPA or the
discharge order. Also, Plaintiff has not shown how discovery that could demonstrate Defendant’s
trends in collection, e.g. Defendant becoming “more aggressive,” is relevant to any of its claims
or Defendant’s defenses. Finally, Defendant states that it has produced Plaintiff’s loan file, which
includes the billing statements sent to Plaintiff post-discharge. Accordingly, the Motion is denied
as to Production Request 3.

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Interrogatory 14 requests that Defendant identify “the beginning and end dates for the
period during which Defendant sent out statements to consumers other than Plaintiff in
substantially the same form” as the billing statements referred to as Exhibit B in Plaintiff’s
complaint. (Dkt. 33-1.) Defendant objected to Interrogatory 14 on the basis that it is overly broad
and unduly burdensome because it is not limited in time by the relevant statute of limitations and
is not limited to recipients of the billing statements that fall within the parameters of the Proposed
Class. (Dkt. 33-3.) Plaintiff argues that this request seeks relevant information because it aids in
“determin[ing] the scope of [Defendant’s] culpability.” (Dkt. 33 at 25.) Although the time period
in which Defendant sent the allegedly violative billing statements to consumers may be relevant
to Plaintiff’s class allegations (although the time period would be limited to the two years
preceding Plaintiff’s filing the complaint, as that is the time scope of the Proposed Class), the
Court finds that this discovery is not important to the resolution of the issues in this case and the
burden imposed on Defendant will outweigh any benefit from such discovery. See Fed. R. Civ. P.
26(b)(1). Accordingly, the Motion is denied as to Interrogatory 14.
D.

Production Request 19 and Interrogatory 21

Interrogatory 21 requests that Defendant identify any litigation or complaints made by a
debtor, or on a debtor’s behalf, relating to Defendant’s collection of a debt after a debtor’s
bankruptcy discharge. (Dkt. 33-1.) Production Request 19 requests Defendant to produce “all
documents” on the same subject as Interrogatory 21, i.e., all documents related to litigation or
complaints made by debtors, or on a debtor’s behalf, relating to Defendant’s collection of a debt
after a debtor’s bankruptcy discharge. (Dkt. 33-1.) In response to Interrogatory 21, Defendant
objected on the basis that it sought discovery irrelevant to the claims and defenses in the case and
that it was overly broad as it is “not limited in time or scope.” (Dkt. 33-3.) Similarly, Defendant

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objected to Production Request 19 on the grounds that the request seeks irrelevant discovery and
discovery protected by the attorney-client privilege. (Dkt. 33-2.) Also, Defendant states that it
has already answered these discovery requests in its Notice of Pendency of Other Actions. (Dkts.
32, 36 at 9.) However, Defendant’s Notice of Pendency of Other Actions includes only cases
pending before a court or administrative agency, See M.D. Fla. Local R. 1.04(d), and thus would
not include other types of complaints from debtors, such as situations in which the debtor did not
file a complaint or petition with a governmental body or cases that are no longer pending before a
court or administrative agency.
Plaintiff contends that the discovery sought by these requests are relevant to (1)
establishing Defendant’s knowledge about complaints stemming from its attempts to collect a
discharged debt, (2) determining the size of Plaintiff’s Proposed Class, and (3) determining
whether members of the Proposed Class have already “taken formal action against Defendant” for
Defendant’s alleged conduct. (Dkt. 33 at 16.) The Court finds that these discovery requests seek
discovery relevant to identifying members of the Proposed Class. The Court, however, rejects
Plaintiff’s argument that the requests seek discovery relevant to establishing Defendant’s
knowledge (Dkt. 33 at 16), because the Defendant’s knowledge that is relevant to Plaintiff’s
allegations is Defendant’s knowledge—prior to attempting to collect a debt—of (1) the discharge
of such debt in bankruptcy, (2) the illegitimacy of such debt or the non-existence of the legal right
asserted, and (3) Plaintiff and Proposed Class members being represented by an attorney. (Dkt. 1
¶¶ 37–39, 56, 64, 72–76.) Thus, Defendant’s knowledge of a debtor’s complaints about the alleged
conduct after it occurred is not relevant to Plaintiff’s claims.
Although relevant to class allegations, Production Request 19 is overly broad in two
respects. First, it is unlimited in its time scope. Second, as Defendant contends (Dkt. 36 at 9), its

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request for “all documents” is not tailored to determining class members. Instead, the request
seeks “all documents,” which could include, without limitation, communications with debtors or
debtors’ counsel and Defendant’s internal documents regarding complaints received from debtors,
which would identify class members, but would include a broad swath of information irrelevant to
Plaintiff’s claims that Defendant attempted to collect a debt from Proposed Class members in
violation of the FCCPA and bankruptcy discharge orders. Interrogatory 21, on the other hand, will
provide Plaintiff with Defendant’s identification of potential class members. It must, however, be
limited to the time scope of the Proposed Class, which is within two years of Plaintiff’s filing the
complaint. For these reasons, the Motion is denied as to Production Request 19 and granted as to
Interrogatory 21.
Accordingly it is
ORDERED:
1.

The Motion to Compel Discovery (Dkt. 33) is GRANTED in part as to Production

Requests 2, 7, 8, and 9, and Interrogatories 4, 5, 6, 7, 8, 9, 13, 16, and 21, and DENIED in part as
to Production Requests 3 and 19, and Interrogatories 10, 11, 12, 14, and 15.
2.

Within ten (10) days of entry of this order, Defendant is directed to serve discovery

responsive to Production Requests 2, 7, 8, and 9, and Interrogatories 4, 5, 6, 7, 8, 9, 13, 16, and
21, and, to the extent applicable, Defendant shall serve a privilege log identifying any discovery it
withholds on the basis of a privilege.
DONE and ORDERED in Tampa, Florida on November 23, 2016.

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Copies furnished to:
Counsel of Record

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