Swelnis v. Universal Fidelity LP et al

Filing 59

OPINION AND ORDER taking under advisement plaintiff's 33 Motion to Compel Net Worth Information and granting in part and denying in part 41 Motion to Compel Documents. The Court GRANTS the motion insofar as it seeks relevant training mate rials that have yet to be handed over to Plaintiff and ORDERS Defendants to turn over to Plaintiff all relevant and non-privileged materials that are responsive to those requests. The Court DENIES the Motion to Compel Documents insofar as it seeks the exact size of the putative class and the names and addresses of all potential class members. Signed by Magistrate Judge Paul R Cherry on 4/17/2014. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHRISTINE SWELNIS,
on behalf of herself and a class,
Plaintiff,

)
)
)
)
v.
)
)
UNIVERSAL FIDELITY L.P., TERRY W. )
SIMONDS, and TWS INTERESTS, LLC, )
Defendants.
)

Cause No.: 2:13-CV-104-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Net Worth Information [DE
33], filed on November 25, 2013, and Plaintiff’s Motion to Compel Documents [DE 41], filed on
December 31, 2013. The Court provides some background and then considers each in turn.
I. Background
This putative class action law suit alleges that Defendants are liable under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), for using form letters that failed to
included legally required information. Defendant Universal Fidelity has a net worth of $34,000, and,
under the FDCPA, the maximum recovery for the putative class is hence only $340. See 15 U.S.C.
§ 1692k(a)(1)(B). Plaintiff has, however, joined two other defendants—Simonds and
TWS—presumably in the hopes of getting a larger recovery than would otherwise be possible.
Simonds and TWS filed a Motion for Partial Summary Judgment on November 19, 2013.
District Court Judge Jon DeGuilio stayed the briefing on that motion pending a ruling on a related
Motion to Strike, which this Court decides today (thus lifting the stay) in a separate Opinion and
Order. The Court notes for the sake of clarity that Judge DeGuilio is no longer assigned to this case
because the parties consented on February 20, 2014, to have this case referred to the undersigned

United States Magistrate Judge pursuant to 28 U.S.C. § 626(c). This Court thus has jurisdiction to
conduct all further proceedings and to order the entry of a final judgment in this case.
II. Motion to Compel Net Worth Information
The Motion for Partial Summary Judgment contends that Defendants TWS and Simonds are
not debt collectors and thus cannot be held liable under the FDCPA. The Motion to Compel Net
Worth information, which seeks financial information from Defendants TWS and Simonds, appears
to turn on the same issue. Rather than decide something that may be rendered moot by a ruling on
the pending Motion for Partial Summary Judgment, the Court takes the Motion to Compel Net
Worth Information under advisement pending this Court’s ruling on Summary Judgment.
III. Motion to Compel Documents
Plaintiff served Defendants with interrogatories and document requests asking in relevant
part for Defendants’ internal training and compliance materials, the exact size of the putative class,
and the names and addresses of potential class members. Defendants declined to provide this
material, and Plaintiff brought this motion to compel. The Court considers each issue in turn.
A. Training Materials
Plaintiff’s Interrogatory No. 9 and Document Request Nos. 4–6, 8, and 11 each seek
information—specifically: training manuals and other relevant documents—that relate to
Defendants’ Affirmative Defense of bona fide error. Defendants objected to turning over this
material without the entry of a mutually agreed upon confidentiality order. But, as Plaintiff points
out, the parties have already asked for and received a confidentiality order from this Court.
Defendants essentially concede this point, stating in their Response that they will produce all
relevant portions of the documents sought by Plaintiff.

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Plaintiff is not completely satisfied, however, representing that there is a disc entitled
“FDCPA Essentials for Collectors” that Defendants have told her about but have yet to hand over.
The Court finds the Plaintiff’s request well taken, and orders Defendants to turn over to Plaintiff all
relevant and non-privileged materials that are responsive to Plaintiff’s requests but have yet to be
handed over.
B. Potential Class Member Information
Plaintiff served Defendants with discovery requests seeking the size of the putative class
along with the names and addresses of potential class members. Defendants refused to answer these
requests, contending that they were overly broad, premature, and not calculated to lead to the
discovery of admissible evidence. They also objected that the requests ran afoul of the general rule
that potential class member information is not produced prior to class certification.
Before considering whether Plaintiff’s motion is well taken, some framing of the issue as it
stands before this Court is necessary. During informal negotiations, Plaintiff expressed willingness
to consider a sampling of class information, the exact number of class members, and a promise by
Defendants that they would preserve putative class members’ information. She does not ask for this
relief in her opening brief, however. And though she tries to ask for sampling in her Reply, the Court
holds her to her earlier declaration that she “is no longer willing to accept a sampling of the class
files and is requesting that this Court enter an order requiring Defendants to respond” to her original
discovery requests. Pl. Br. 4. The Court hence does not consider sampling; it would be unfair to
Defendants who, quite reasonably, did not address the issue in their Response brief. This threshold
issue resolved, the Court turns to the substance of Plaintiff’s motion.
Plaintiffs have the right to contact potential class members. Johnson v. Bankers Life & Cas.

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Co., 13-CV-144-WMC, 2013 WL 5442374 (W.D. Wis. Sept. 30, 2013) (citing Gulf Oil Co. v.
Bernard, 452 U.S. 89 (1981); Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 759 (7th Cir.
2000)). And any limitation on communication between a plaintiff and a potential class member must
be “based on a clear record and specific findings that reflect a weighing of the need for a limitation
and the potential interference with the rights of the parties.” Gulf Oil Co., 452 U.S. at 101 (1981);
Williams, 204 F.3d at 759.
This rule, however, does not “address whether a defendant has an obligation to produce
contact information to facilitate plaintiff’s pre-certification contact with putative class members.”
Johnson, 13-CV-144-WMC, 2013 WL 5442374 (W.D. Wis. Sept. 30, 2013). As the Supreme Court
held in Oppenheimer Fund, Inc. v. Sanders, the names and addresses of potential class members do
not fall within the scope of allowable discovery under Federal Rule of Civil Procedure 26(b)(1). 437
U.S. 340, 353 (1978); Johnson, 13-CV-144-WMC, 2013 WL 5442374 (W.D. Wis. Sept. 30, 2013).
And, as Defendants point out, this restriction prevents lawyers from turning discovery into “a tool
to identify potential new clients.” 2 McLaughlin on Class Actions 11:1 (10th ed.) (citations omitted).
This information may be discoverable, however, if it is relevant for Federal Rule of Civil
Procedure 23 purposes or where there is good reason to think that communication with class
members might yield information bearing on those Rule 23 issues. Oppenheimer 437 U.S. 340, 354
n. 20 (1978); Johnson, 13-CV-144-WMC, 2013 WL 5442374 (W.D. Wis. Sept. 30, 2013); see also
Sjoblom v. Charter Commc’ns, LLC, 3:07-CV-0451-BBC, 2008 WL 4276928 (W.D. Wis. Jan. 4,
2008). Nevertheless, it is usually inappropriate for a Court to order a defendant to hand over name
and address information for all the potential class members. Oppenheimer 437 U.S. 340, 354 n. 20

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(1978); Johnson, 13-CV-144-WMC, 2013 WL 5442374 (W.D. Wis. Sept. 30, 2013).1
Plaintiff’s reason for wanting the name and address information is puzzling because the only
reason she gives for needing it is to establish numerosity under Rule 23. And though she tries in her
Reply to raise commonality and typicality as additional reasons, those arguments were raised for the
first time in a Reply hence are not properly before the Court.
The Court concludes that there isn’t any reason to think that this information would help
Plaintiff establish numerosity, especially since she admits that she already knows the estimated size
of the putative class. Name and address information does not bear on the size of the class but with
who is in it. The Court accordingly denies Plaintiff’s request for the name and address information
of putative class members.
Finally, though class size is relevant under Rule 23, See Muha v. Encore Receivable Mgmt.,
Inc., 236 F.R.D. 429, 430 (E.D. Wis. 2006), the Court finds no merit in Plaintiff’s request for the
exact size of the putative class. Defendants represent that they have given Plaintiff an estimated class
size, and she neither challenges the accuracy of the estimated size nor provides any reasons to think
that knowing the exact size is important for establishing the numerosity of the putative class, or
anything else for that matter. As such, granting this request would needlessly burden Defendants,
and the Court hence denies Plaintiff’s request for the exact putative class size.
III. Conclusion
For these reasons, the Court TAKES UNDER ADVISEMENT Plaintiff’s Motion to
Compel Net Worth Information [DE 33]. The Court GRANTS in part and DENIES in part
Plaintiff’s Motion to Compel Documents [DE 41]. The Court GRANTS the motion insofar as it
1
A sampling, rather than a full list, is usually more appropriate. See Johnson, 13-CV-144-WMC, 2013 WL
5442374 (W.D. Wis. Sept. 30, 2013). Though, as discussed above, this option is not being considered here.

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seeks relevant training materials that have yet to be handed over to Plaintiff and ORDERS
Defendants to turn over to Plaintiff all relevant and non-privileged materials that are responsive to
those requests. The Court DENIES the Motion to Compel Documents insofar as it seeks the exact
size of the putative class and the names and addresses of all potential class members.
SO ORDERED this 17th day of April, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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