Smith v. Stellar Recovery, Inc. et al

Filing 33

ORDER granting in part and denying in part 20 Motion to Compel; denying as moot 29 Motion for Protective Order - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAKISHA SMITH,
Plaintiff,
vs.

CIVIL ACTION NO. 15-CV-11717
DISTRICT JUDGE STEPHEN J. MURPHY III
MAGISTRATE JUDGE MONA K. MAJZOUB

STELLAR RECOVERY, INC.;
COMCAST CORPORATION;
COMCAST OF DETROIT, LLC,
Defendants.
___________________________________________/
OPINION AND ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL
[20] AND DENYING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER [29] AS
MOOT.
Currently pending before the Court are Plaintiff’s Motion to Compel Answers to
Interrogatories and Requests for Production of Documents as [to] Defendant Stellar and Comcast
(docket no. 20.) and Defendants’ Motion for Protective Order and Objection to Notice of Rule
30(B)(6) Deposition Duces Tecum (docket no. 29). Defendants filed a Response to Plaintiff’s
Motion (docket no. 23), and Plaintiff filed a Reply (docket no. 24). The Parties then filed a Joint
Statement of Resolved and Unresolved Issues related to Plaintiff’s Motion. (Docket no. 27.)
Plaintiff filed a Response to Defendants’ Motion (docket no. 32), and pursuant to the a May 23,
2016 Court Order (docket no. 30), the Parties filed an Amended Joint Statement (docket no. 31).
All pretrial matters have been referred to the undersigned for consideration. (Docket no. 25.)
The Court dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). The Motions are now
ready for ruling.

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I.

Background
Plaintiff filed her Complaint against Defendants Stellar Recovery and Comcast alleging

that they violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), and
the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (TCPA) by “harass[ing] the
Plaintiff with robocalls . . . after Plaintiff discharged the debt in bankruptcy.” (Docket no. 1 at
1-2.) In relevant part for purposes of this Opinion and Order, Plaintiff alleges that Defendant
Stellar acted “on behalf of Defendant Comcast and with the consent, approval, and/or ratification
of [Comcast]” and that “Defendant Stellar was, and is now, the servant, employee, and/or other
representative of [Comcast].” (Id. at 6-7.) Comcast denies these allegations and sees Plaintiff’s
claims against Comcast as “vicarious in nature.” (Docket no. 7 at 8; docket no. 23 at 3.)
Discovery in this matter commenced on November 10, 2015, with a cut-off date of May 30,
2016. (Docket no. 19.) At the time Plaintiff filed her instant Motion to Compel, discovery had
been open for less than two months, yet the Parties disputed 31 Interrogatory Responses and 44
responses to Requests for Production by two Defendants. (See docket no. 23 at 2.) Moreover,
Plaintiff had attempted to circumvent Defendants’ objections under Rule 34 by asking for the same
documents at a Rule 30(b)(6) deposition. (See docket no. 29.)
On May 23, 2016, after reviewing the 31 pages of discovery disputes outlined by Plaintiff,
the Court reminded the Parties of their obligation to act on good faith and with common sense
when dealing with discovery disputes. Moreover, the Court put the parties on notice that it would
“order sanctions under Rule 37 for abuse of the discovery process against any party whose position
is not substantially justified.” (Docket no. 30 at 4. (citing Fed. R. Civ. P. 37).) The Court then
gave the parties an opportunity to resolve their outstanding discovery disputes and narrow the

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disputes at issue by filing an Amended Joint Statement. (Id.)
Through their Amended Joint Statement, the Parties have informed the Court that they
have resolved all of their outstanding discovery disputes with one exception: “[t]he parties are at
an impasse as to . . . [t]he production of contract(s) between Stellar and Comcast.” (Docket no. 31
at 2.) The Court will address this remaining issue herein. As to the other issues raised in
Plaintiff’s Motion to Compel, the Court will accept the Parties’ statement that these issues have
been resolved.
With regard to Defendants’ Motion for a Protective Order, the Court will also accept the
Parties’ statement that the outstanding issues have been resolved. Notably, though, in her
response to Defendants’ Motion, Plaintiff asks that the Court extend the time for depositions
beyond the discovery cut-off date so that Plaintiff can depose witnesses after reviewing the
documents produced pursuant to the Parties’ agreement. The Court will address this request
herein.
II.

Governing Law
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998).
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). “Relevant evidence” is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
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probable than it would be without the evidence.” Fed.R.Evid. 401. But the scope of discovery is
not unlimited.

“District courts have discretion to limit the scope of discovery where the

information sought is overly broad or would prove unduly burdensome to produce.” Surles ex
rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).
Rule 34 allows a party to serve requests for production of documents on an opposing party.
Fed.R.Civ.P. 34. A party receiving such a request has thirty days to respond with answers or
objections. Fed.R.Civ.P. 34(b)(2). If the party receiving discovery requests under the Rules
fails to respond properly, Rule 37 provides the party who sent the discovery with the means to file
a motion to compel. Fed.R.Civ.P. 37(a)(3)(B).
III.

Analysis
A.

Plaintiff’s Motion to Compel

Although not set forth specifically, it appears that the Parties’ remaining issue arises from
Plaintiff’s Request for Production No. 17 to Defendant Comcast. Plaintiff seeks:
All documents relating to the debt from Defendant Comcast of Detroit, LLC (or
any related company), including but not limited to the information Defendant
Stellar Recovery, Inc. sent to you relating to the Plaintiff Lakisha T. Smith;
documents you sent to Defendant Stellar Recovery, Inc. about the Plaintiff Lakisha
T. Smith; and your agreements with Defendant Stellar Recovery, Inc.
(Docket no. 20 at 40-41 (emphasis added).) With regard to the agreements, Defendant Comcast
responded with the following objection:
Comcast objects to this Request to the extent that it is requesting Comcast’s
agreement(s) with Defendant Stellar because it is proprietary and confidential and
is neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence, insomuch as it is not tailored to the facts and issues in this case because it
is seeking information unrelated to the allegations.
(Id.) Although Plaintiff sets this request forth as an unresolved issue, she does not directly

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address Defendant’s objection in her Motion or her Reply, instead focusing on other requested
documents, such as personnel files and training materials.

(See docket no. 20 at 47-51.)

Defendant briefly addresses this request in its Response to Plaintiff’s Motion, reiterating its initial
objection. (Docket no. 23 at 11.)
Unsurprisingly, this lack of argument does not assist the Court in reaching a decision on
this matter. With regard to Defendant’s position on confidentiality, the Parties have already
agreed to, and the Court has already entered, a Protective Order allowing the parties to mark
documents as “CONFIDENTIAL” to allow limited and necessary disclosure.

Defendant

provides no reason for the Court to believe that it would be inappropriate to mark the agreements at
issue as CONFIDENTIAL to protect their proprietary nature. Thus, the Court is not persuaded
that the confidential nature of the agreements should prohibit their disclosure pursuant to
Plaintiff’s request.
With regard to the relevancy of the agreements, Plaintiff and Defendant have both put the
nature of Defendants’ relationship at issue. As noted, Plaintiff argues that Defendant Stellar
“was, and is now, the servant, employee, and/or other representative of [Comcast]” (docket no. 1 at
6-7), and Comcast acknowledges that Plaintiff’s claims are “vicarious in nature” (docket no. 23 at
3). To the extent Comcast relies on Stellar’s independent operation and its lack of control in the
collections process, the nature of their relationship is highly relevant. Therefore, the Court will
grant Plaintiff’s Motion and order Defendant Comcast to produce the requested agreements within
seven days.
B.

Plaintiff’s Request to Take Depositions Outside of the Discovery Window

As noted, discovery in this matter was scheduled to close on May 30, 2016. Pursuant to

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the Court’s May 23, 2016 Order, the parties met and conferred and resolved most of their
outstanding discovery issues on May 25, 2016. According to Plaintiff, the Parties have agreed to
take the deposition of a 30(b)(6) witness on June 15, 2016. (Docket no. 32 at 2.) Plaintiff,
therefore, asks that the Court grant her permission to depose other witnesses based on the newly
produced documents through the same June 15, 2016 date.

The Court finds this request

reasonable. Moreover, the Parties are reminded that the Court expects them to continue to work
together in good faith when noticing and scheduling depositions related to Defendants’ document
production.
C.

Costs

If a court grants a Rule 37 motion to compel, then the court must award reasonable
expenses and attorney’s fees to the successful party, unless the successful party did not confer in
good faith before the motion, the opposing party’s position was substantially justified, or other
circumstances would make an award unjust. Fed.R.Civ.P. 37(A)(5)(a). Moreover, the Court
warned the Parties that based on their outstanding discovery disputes, the losing party would be
sanctioned under Rule 37 unless its position was substantially justified. Thus, an award of costs
for Plaintiff related to the last outstanding issue in this matter would not be inappropriate.
Nevertheless, the parties have demonstrated an ability to resolve their discovery disputes in this
matter and have shown the ability to work together in good faith. Having resolved their disputes
related to 74 of 75 discovery requests, the Court finds that an award of costs would be unjust at the
present time. Moreover, because Plaintiff did not address this issue in her Motion, Brief, Reply,
or either Joint Statement, any costs associated with the same, if any, would be nominal.
Therefore, the Court will not award costs to either party.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel is GRANTED IN
PART. Defendant Comcast must produce copies of the agreements requested in Plaintiff’s
Request for Production No. 17 within seven days. Defendant may, however, mark agreements as
CONFIDENTIAL pursuant to the Parties’ Stipulated Protective Order.
IT IS FURTHER ORDERED that because the Parties have resolved the outstanding
issues, Defendants’ Motion for Protective Order is DENIED as moot.
IT IS FURTHER ORDERED that the timeframe for depositions in this matter is
extended through June 15, 2016, so that Plaintiff can conduct depositions based on the documents
produced by Defendants.
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: June 1, 2016

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served on counsel of record on
this date.
Dated: June 1, 2016

s/ Lisa C. Bartlett
Case Manager

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