Lyons v. Experian Information Solutions, Inc. et al

Filing 86

ORDER denying 72 Motion to Compel. Signed by Magistrate Judge S. Allan Alexander on 10/29/15. (mhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ELENA LYONS,

PLAINTIFF

v.

CAUSE NO. 3:14-cv-211-MPM-SAA

EXPERIAN INFORMATION SOLUTIONS, INC., et al.,

DEFENDANTS

ORDER
Defendant Comenity Bank (“Comenity”) has asked the court to compel plaintiff to
provide information about settlements which have occurred between plaintiff and former
defendants in this action.

Docket 72.

During plaintiff’s deposition defendant asked questions

regarding these settlements, and plaintiff’s counsel instructed her not to answer because the
information sought was subject to a confidentiality agreement and was protected by
attorney-client privilege.

Comenity claims this instruction was improper and that it is entitled

to that information.
According to Comenity, both the scope of the damages plaintiff seeks under alleged
violations of the Fair Credit Reporting Act (“FRCA”) and the plaintiff’s testimony that her
damages were caused by all defendants make the settlement information between plaintiff and
the former defendants relevant and discoverable.

Comenity relies upon case law from outside

the Fifth Circuit to support its argument that it is entitled to this information.
Plaintiff defends her refusal to produce the information on various grounds.

As to the

FRCA claims, “Comenity has no right to contribution from settlements with any of the other
defendants in this case because Plaintiff’s claims are completely independent under the FRCA.”
Docket 78, p. 4.

Additionally, plaintiff asserts that her confidential settlement negotiations with

other defendants were made under F.R.E. 408 thus, they are inadmissible.

And, finally,

plaintiff relies on the fact that these settlement agreements were predicated on the contractual
concept of confidentiality.
Courts are split on this issue. On one end of the spectrum, courts have held that
confidential settlement agreements are absolutely discoverable.

See, e.g., In re Continental

Insurance Company, 994 S.W.2d 423 (Tex. App. 1999). On the other end, other courts have
favored bargained-for privacy rights and have held that confidential settlement agreements are
absolutely not discoverable.

See, e.g., UMC / Stamford, Inc. v. Allianz Underwriters Ins. Co.,

647 A.2d 182 (N.J. Super. Ct. Law Div. 1994).

For the most part however, disputes such as the

one now before the court occur in insurance cases where multiple insurers are involved.

In

those situations, there are often questions about excess coverage or indemnification which
provide a compelling argument for disclosure.
Such is not the case here.

There is no right to either indemnification or offset under the

FRCA. See, e.g., Fields v. Experian Information Solutions, 2003 WL 1960010 at 2 (N.D. Miss.
Apr. 16, 2003) (indemnification); see also McMillan v. Equifax Credit Information Services, 153
F.Supp.2d 129, 132 (D. Conn. 2001) (indemnification); Brim v. Midland, 795 F. Supp.2d 1255,
1265-1266 (N.D. Ala. 2011) (indemnification or offset); Nelson v. Equifax Information Services,
LLC, 522 F.Supp.2d 1222, 1239 (C.D. Cal. 2007) (indemnification or offset).

As a

consequence, revealing confidential settlement information between plaintiff and prior
defendants would not lead to the discovery of admissible evidence.

Comenity has not

demonstrated that it is otherwise entitled to the information or would be prejudiced by not
receiving it.
Because the court has not been provided a valid reason why plaintiff should be required
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to disclose this information given the asserted claims, the court finds that the motion to compel is
not well taken and should be DENIED.
SO ORDERED, this, the 29th day of October, 2015.
/s/ S. Allan Alexander
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UNITED STATES MAGISTRATE JUDGE

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