Jenkins v. Pech et al

Filing 111

ORDER denying 81 Motion to Compel Subpoena. Granting 93 Motion to Compel Trak America and Grimm Subpoenas to the extent Jenkins may issue the Grimm subpoena and denied in all other respects. Denying 97 Motion to Compel Responses. Counsel fo r the parties shall confer on a reasonable amount to be awarded and, if there is agreement, shall file on or before February 26, 2015, a stipulation of fees to be awarded. In the event the parties fail to reach an agreement, the defendants may file on or before March 2, 2015, an application for the award of fees accompanied by an affidavit of such fees, pursuant to Civil Rules of the United States District Court for the District of Nebraska 54.3 and 54.4. Jenkins shall have until on or before March 9, 2015, to respond to the defendants' application. Thereafter, the issue will be deemed submitted and a written order entered. Ordered by Magistrate Judge Thomas D. Thalken. (KMG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LEE A. JENKINS, on behalf of
himself and all others similarly
situated,

8:14CV41

Plaintiff,
ORDER
vs.
CHRISTOPHER E. PECH and PECH,
HUGHES, & MCDONALD, P.C. d/b/a
Litow & Pech, P.C., A Fictitious
Name,
Defendants.
This matter is before the court on three motions filed by the plaintiff, Lee A. Jenkins
(Jenkins): Motion to Compel Subpoena (Filing No. 81); Motion to Compel Trak America
and Grimm Subpoenas (Filing No. 93); and Motion to Compel Responses (Filing No. 97).
The parties fully briefed the motions.

BACKGROUND
This action pertains to the defendants’, Christopher E. Pech (Pech) and Pech,
Hughes, & McDonald, P.C. d/b/a Litow & Pech, P.C., a fictitious name, use of a standard
letter and specific envelope in an effort to collect debts in Nebraska. Jenkins filed the
instant action on February 6, 2014. See Filing No. 1 - Complaint. On February 12, 2014,
Jenkins filed an amended complaint alleging violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA) and Nebraska’s Consumer Protection
Act, Neb. Rev. Stat. §§ 59-1601 - 59-1623 (NCPA) for the defendants’ routine practice of
sending a misleading letter (Filing No. 6-1 - Letter) and envelope (Filing No. 6-2 Envelope) concerning Jenkins’ past-due debt. See Filing No. 6 - Amended Complaint.
In Jenkins’ first and second motions, he requests the court to overrule the
defendants’ objections to the issuance of subpoenas on FIA Card Services, N.A. (FIA Card
Services) and Trak America BOA FIA NE (Trak America). See Filing Nos. 81 and 93 Motions. The FIA Card Services and Trak America subpoenas request: “All records and
documents of any kind of all credit card accounts sold to or transferred for collection to

defendants Christopher E. Pech and/or the law firm Pech, Hughes & McDonald, P.C.” See
Filing No. 62 - FIA Card Services Subpoena, Filing No. 86-1 - Trak America Subpoena.
After discussion, Jenkins offered to limit the FIA Card Services subpoena to:
All records and documents for the credit card accounts of those
Nebraska residents to whom Defendants’ [sic] sent the 560
letters identified by Defendants during the period of June 2013
through February 2014 which were sold to or transferred for
collection to Defendants Christopher E. Pech and/or the law
firm Pech, Hughes & McDonald, P.C.
See Filing No. 82 - Brief p. 3. Jenkins contends the information sought may be useful in
identifying class members.

See Filing No. 82 - Brief; Filing No. 94 - Brief.

Jenkins

proposes any confidential information can be protected under the protection order entered
in this case. Id.; see also Filing No. 30 - Protective Order.
Also in his second motion to compel, Jenkins seeks to issue a subpoena on Tyler J.
Grimm (Grimm), a previous employee of the defendants. See Filing No. 93 - Motion. The
Grimm subpoena seeks:
All records, e-mails, spreadsheets, including all documents of
any kind electronic in form and otherwise associated with the
review credit card account of those Nebraska residents to
whom Defendants’ [sic] sent the 560 letters identified by
Defendants during the period of June 2013 through February
2014 which were sold to or transferred for collection to
Defendants Christopher E. Pech and/or the law firm Pech,
Hughes & McDonald, P.C.
See Filing No. 85-2 - Grimm Subpoena. Jenkins similarly claims the information may be
useful in identifying which accounts of prospective class members were incurred for
personal, family, or household purposes. See Filing No. 94 - Brief. Underlying Jenkins’
motions is the argument the defendants cannot oppose class certification on the basis
Jenkins has not produced any evidence of records of the original creditors and also
oppose Jenkins’ attempt to obtain such records.
In Jenkins’ third motion he seeks to compel responses to his third set of discovery
requests. See Filing No. 97 - Motion. Jenkins made two requests for production in his
third set of discovery requests.

First, Jenkins seeks “[a]ll documents generated by

Defendants’ records search made pursuant to, ‘The SQL query extracts files placed by
Bank of America’ as found on and pursuant to discovery responses served by Defendants
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and marked PECH 00020.” See Filing No. 99-2 - Requests. The second request seeks
“[a]ll records, including copies of electronic transmissions and communications, including
but not limited to e-mails, sent back and forth between Defendants and attorney Tyler
Grimm demonstrating spread sheets of new accounts and account exceptions reviewed by
Mr. Grimm from June 1, 2013 to the present.” Id. After asserting boilerplate objections,
the defendants responded to both requests, “A diligent and reasonable inquiry has
revealed no documents responsive to this Request.” Id. Jenkins argues the requested
information is required to assist in identifying the class members.
The defendants oppose the issuance of subpoenas to FIA Card Services and Trak
America on the basis their records “may” be useful as insufficient to meet Jenkins’
threshold showing of relevance.

See Filing Nos. 87 and 101 - Responses.

The

defendants contend the records will not demonstrate whether a charge was for personal,
family, or household purposes.

Id.

Additionally, the defendants argue credit card

statements are extremely private and should not be disclosed without the individual
cardholder’s consent. Id. In the event the court does allow the subpoenas, the defendants
assert the cardholders should be given the opportunity to “opt-out” of production of their
statements. Id. The defendants also object to the subpoena on Grimm because it is
overbroad and may include production of attorney-client communications. See Filing No.
101 - Response.
The defendants oppose Jenkins’ third motion because, despite a diligent and
reasonable inquiry, the defendants do not possess or have control of the requested
discovery. See Filing No. 104 - Response. The defendants argue the documents Jenkins
seeks, when they existed, were spreadsheets1 containing basic demographic data relating
to account holders, such as their name, address, social security number, account number,
account balance, last payment date, last payment amount, charge off date, and judgment
date. Id. The defendants explain the spreadsheets did not include any information about
how or why individuals incurred the charges on their credit card. Id. The defendants
assert Jenkins has not provided any evidence supporting the allegation the defendants
possess the requested discovery. Id.

1

Jenkins does not appear to dispute the characterization of the sought-after discovery as spreadsheets.
The court assumes, absent information to the contrary, the “SQL query extracts files” are the spreadsheets.
3

In reply, Jenkins reiterates the requested records from FIA Card Services and Trak
America may be useful in identifying class members.

See Filing Nos. 88 and 105 -

Replies. Jenkins asserts the existing protective order in this case will protect account
holders’ confidential information.

Id.

Jenkins also argues the defendants’ purported

concern for the privacy rights of the proposed class members is disingenuous. Id. In
contradiction to the defendants’ assertion the defendants do not possess the requested
spreadsheets, Jenkins argues Grimm testified he saved his spreadsheets to his computer
and thus the information is available electronically. Id. Jenkins contends the defendants
have highly computerized systems and to claim a diligent search for the requested
information has been made is simply specious. See Filing No. 107 - Reply. Jenkins points
to Grimm’s testimony wherein he stated “[t]o my knowledge, there were never any files
destroyed or anything like that. And so as far as I know, in the time that I was there, they
maintained all electronic records indefinitely. I don’t know.” Id. (citing Filing No. 79-18 Grimm Depo. 35:13-36:10).
ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an important
tool for the litigant, and so ‘[r]elevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.’”
WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir.
2011) (alteration in original) (quoting Fed. R. Civ. P. 26(b)(1)). Accordingly, relevant
information includes “any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978). Mere speculation that information might be
useful will not suffice; litigants seeking to compel discovery must describe with a
reasonable degree of specificity the information they hope to obtain and its importance to
their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972). Once the
requesting party meets the threshold relevance burden, generally “[a]ll discovery requests
are a burden on the party who must respond thereto. Unless the task of producing or
answering is unusual, undue or extraordinary, the general rule requires the entity

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answering or producing the documents to bear that burden.” Continental Ill. Nat’l Bank &
Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation omitted).
A.

Subpoenas
1.

Standing

“[An] adverse party has standing to object to a third-party subpoena on grounds of
relevance or to protect a personal right or privilege in the information requested.” Streck,
Inc. v. Research & Diagnostic Sys., Inc., No. 8:06CV458, 2009 WL 1562851, at *3 (D.
Neb. June 1, 2009) (citing Mawhiney v. Warren Distribution, Inc., No. 8:05CV466, 2007
WL 433349, at *1 (D. Neb. Feb. 7, 2007), aff’d, 283 Fed. Appx. 424, No. 07-2753 (8th Cir.,
July 10, 2008); Union Pac. R.R. Co. v. Mike’s Train House, Inc., No. 8:05CV575, 2006
WL 1134781, at *3 (D. Neb. Apr. 25, 2006)). The defendants obviously do not have any
personal right in the information sought; however, the defendants contend the information
sought is irrelevant. “A party does have standing to move for a protective order if a thirdparty subpoena seeks irrelevant information.”

Streck, Inc., 2009 WL 1562851, at *3

(citing Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429
(M.D. Fla. 2005)).

Accordingly, based on the defendants’ argument the discovery is

irrelevant, the defendants have standing to contest issuance of the subpoenas.
Additionally, Jenkins does not contest the defendants’ standing.
2.

Merits

Under this court’s local rules, “No subpoena may be issued for documents or
premises whose inspection or production is contested under this rule until the parties
resolve the objections.

Any unresolved objections will be resolved by the court on

appropriate motion filed in accordance with NECivR 7.1.” NECivR 45.1(b); see also Fed.
R. Civ. P. 45.
Absent the conclusory statement the sought-after information “may be useful in
identifying the class members because Defendants’ claim that they are unable determine
which accounts were incurred for personal, family, or household purposes[,]” Jenkins has
not explained how these documents will help Jenkins differentiate between personal and
business debts. Evidence from a record or credit card statement that an individual made a
charge at a store will not definitively identify the charge as a personal or business
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expense. Even assuming the credit card records are relevant, the records are minimally
relevant, and when weighing the minimal relevance of this information against the privacy
interests of the cardholders, the court finds the subpoenas on FIA Card Services and Trak
America should not be issued.2 Importantly, Jenkins has not explained why it cannot
contact the putative class members for this information. Jenkins can obtain the contact
information from the defendants and ask the 560 individuals for their credit card records
and whether their charges were for personal uses. See In re Cantrell, No. 09MC0158,
2009 WL 1066011, at *2 (W.D. Mo. Apr. 21, 2009) (“If the party seeking the information
can easily obtain the same information without burdening the nonparty, the court will quash
the subpoena.”); Fed. R. Civ. P. 26(b)(2)(C)(iii).
Regarding the subpoena on Grimm, the court finds Jenkins may issue the
subpoena.

The subpoena is not overly broad merely because some responsive

documents may be privileged. To the extent Grimm possesses the requested information,
he may object to production based on the appropriate privilege, if applicable, and provide
the necessary privilege log. See Fed. R. Civ. P. 45(e)(2).
B.

Requests for Production
Federal Rule of Civil Procedure 34 allows a party to request of another party

production of documents for inspection and copying. Fed. R. Civ. P. 34(a). The rule
applies to such documents that are “in the responding party’s possession, custody, or
control.” Id.
Aside from the issue of whether the requested spreadsheets continue to exist,
Jenkins fails to make a threshold showing that the spreadsheets are relevant. According
to Jenkins,
The documents requested are for the purpose of distinguishing
between consumer debts and business debts. The requested
documents could be redacted to remove the name, address,
and other personal identifiers and leave only the last four digits
of the account holders’ social security numbers or account
numbers or a unique number assigned to each of the 560
accounts in order to produce a class list.

2

The court also notes Jenkins has not identified who FIA Card Services and Trak America are and why
these companies would have the requested records.
6

See Filing No. 107 - Reply. Further, Jenkins argues, “[t]here is no doubt in this case that
the Plaintiff’s requests ask for relevant information.” See Filing No. 107 - Reply p. 4, 8;
see also Filing No. 98 - Brief. However, according to the defendants, the spreadsheets,
“when they existed,” contained,
basic demographic data relating to account holders, such as
their name, address, social security number, account number,
account balance, last payment date, last payment amount,
charge off date and judgment date. These spreadsheets did
not include any information about how or why any the purported
class members incurred the individual charges on their credit
card accounts.
See Filing No. 104 - Response.
First, based on the defendants’ description of the spreadsheets, the court is not
convinced the spreadsheets are relevant to determining whether an individual’s debt is
personal or business related.

Jenkins has not explained how the spreadsheets are

relevant or would lead to relevant information. Second, even if these spreadsheets existed
and are produced, after redacting the spreadsheets of personal identifiers as Jenkins
suggests, the documents would seemingly be useless and contain some numbers
indicating an individual’s account balance and payment dates.

As a practical matter,

nearly the entire content of the spreadsheets would be redacted because the
spreadsheets merely contain basic demographic data. Accordingly, the court finds Jenkins
has not established the relevance of the spreadsheets.
Regardless, even assuming the spreadsheets are relevant, the court cannot compel
production of documents which do not exist. While Jenkins may not believe all documents
responsive to these requests have been produced or that the documents do not exist,
Jenkins makes no showing to the contrary.

The defendants informed Jenkins the

requested documents do not exist in their discovery responses, Filing No. 99-2 Requests,3 defense counsel’s communication with Jenkins’ counsel, Filing No. 104-1 Narita Aff. ¶ 5, and again in the briefing of this motion.

The court cannot imagine

additional information Jenkins could possibly need to confirm the documents no longer
exist. Jenkins’ evidence in his reply, Filing No. 107, does not establish the defendants
have the information or documents.
3

The evidence simply shows the defendants use

Counsel for the defendants signed the discovery responses in accordance with the local and federal rules.
7

computer systems and make records.

Further, while Grimm did not delete any

spreadsheets, he testified equivocally, “And so as far as I know, in the time that I was
there, they maintained all electronic records indefinitely. I don’t know.” See Filing No. 7918 - Grimm Depo. 36:8-10; 76:4 (emphasis added).

The court notes however, the

defendants could have obviated this issue had the defendants simply explained why the
spreadsheets no longer exist.

At this time, the court does not know whether the

spreadsheets were destroyed pursuant to company policy or were lost for some other
reason because the defendants have only represented the documents no longer exist.
While defense counsel may have explained this during a telephone conference with
Jenkins’ counsel, the court is not aware of any such explanation. Regardless, because the
court finds Jenkins has not established the spreadsheets’ relevance, the court will not
compel supplemental responses.
C.

Payment of Expenses
Federal Rule of Civil Procedure 37 addresses the payment of expenses for motions

to compel discovery. Specifically, Rule 37(a)(5)(B) provides:
If [a] motion [to compel] is denied, the court . . . must, after
giving an opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party or deponent
who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court
must not order this payment if the motion was substantially
justified or other circumstances make an award of expenses
unjust.
Fed. R. Civ. P. 37(a)(5)(B). Additionally, Rule 37(a)(5)(C) provides: “If the motion is
granted in part and denied in part the court . . . may, after giving an opportunity to be
heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).
Jenkins did not address the appropriateness of an award of expenses and the defendants
only briefly requested sanctions in response to Jenkins’ third motion. Nevertheless, the
court does not consider additional briefing on this issue is necessary for a determination.
The court will not award the defendants expenses for responding to the second motion to
compel because the motion is granted in part and denied in part. Additionally, because the
court finds the defendants could have obviated the third motion with a more complete
response, the court will not award the defendants expenses for responding to the third
8

motion. However, the court will award the defendants expenses for responding to the first
motion. Jenkins’ failure to address the relevance of the sought-after discovery, with the
exception of a conclusory sentence, justifies an award of expenses. Jenkins’ first motion
was not substantially justified and other circumstances do not make an award unjust.
Accordingly, Jenkins shall pay the defendants’ attorney’s fees for responding to the first
motion.
IT IS ORDERED:
1.

Jenkins’ Motion to Compel Subpoena (Filing No. 81) is denied.

2.

Jenkins’ Motion to Compel Trak America and Grimm Subpoenas (Filing No.

93) is granted to the extent Jenkins may issue the Grimm subpoena and denied in all other
respects.
3.

Jenkins’ Motion to Compel Responses (Filing No. 97) is denied.

4.

Counsel for the parties shall confer on a reasonable amount to be awarded

and, if there is agreement, shall file on or before February 26, 2015, a stipulation of fees
to be awarded. In the event the parties fail to reach an agreement, the defendants may file
on or before March 2, 2015, an application for the award of fees accompanied by an
affidavit of such fees, pursuant to Civil Rules of the United States District Court for the
District of Nebraska 54.3 and 54.4. Jenkins shall have until on or before March 9, 2015,
to respond to the defendants’ application. Thereafter, the issue will be deemed submitted
and a written order entered.
ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of
the Court within fourteen (14) days after being served with a copy of this Order. Failure to
timely object may constitute a waiver of any objection. The brief in support of any
objection shall be filed at the time of filing such objection. Failure to file a brief in support
of any objection may be deemed an abandonment of the objection.
Dated this 19th day of February, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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