Kristensen v. Credit Payment Services Inc.

Filing 208

ORDER Granting 189 Motion to Compel. A Hearing is set for 8/5/2014 09:30 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Signed by Magistrate Judge Peggy A. Leen on 7/1/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FLEMMING KRISTENSEN,

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Case No. 2:12-cv-00528-APG-PAL
Plaintiff,

ORDER

v.
(Mot. To Compel – Dkt. #189)
CREDIT PAYMENT SERVICES, INC., et al.,
Defendants.

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The court conducted a hearing on Plaintiff’s Motion to Compel Defendant Enova

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International, Inc. to Produce Documents and Amend Answers to Interrogatories (Dkt. #189) on

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July 1, 2014. John Ochoa appeared on behalf of the Plaintiff. Chad Fears, Dan Waite, Martin

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Welsh, Ryan Mitchem, Brian O’Meara, and Robert Spake appeared on behalf of the Defendants.

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The court has considered the Motion, Defendants Response (Dkt. #201), Plaintiff’s Reply (Dkt.

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#205) and the arguments of counsel at the hearing.

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BACKGROUND

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This dispute involves requests for production of documents and interrogatories served

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May 31, 2013. Discovery responses were served after multiple extensions were given on July

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26, 2013. The parties agreed to a set of search terms to search for and retrieve electronically

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stored information (“ESI”) on September 4, 2013. Defendant Enova advised counsel for the

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Plaintiff that ESI created before December 2011, was stored on a separate operating system

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housed with the parent company, Cash America. Counsel for Defendant represented that it was

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an old archiving system that could not run the searches requested, and that Cash America was in

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the process of moving to another archiving system and that it would take ten to twelve weeks for

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the system to be functional. Counsel for Enova expected to begin producing responsive ESI

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documents on a rolling basis by the end of December 2013.
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The motion to compel was filed May 28, 2014, when Enova had still not produced any

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responsive documents or indicated when responsive documents prior to December 2011, would

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be produced. Plaintiff also seeks to compel Enova to provide amended answers to Interrogatory

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Nos. 5 and 6, also served May 31, 2013.

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During oral argument the court inquired of counsel for Enova whether the computer

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conversion process had been completed, and if so, when, as its response to the motion to compel

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did not provide this information. Counsel for Enova, Brian O’Meara, represented to the court

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that he had communicated with his client the day before and was advised that the conversion

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process was abandoned in late-March 2014 as infeasible. A consultant retained by the parent

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company was unable to complete the process. As a result, the company “ran the entire system”

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to manually retrieve documents based on the agreed-upon search terms for the period January 1,

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2010 forward. This produced 64,000 pages of documents which are being manually reviewed by

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a contract attorney and in-house counsel for relevant responsive documents. The Defendant

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committed to producing documents from this first batch within fourteen days. However, with

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respect to 2009 documents, Enova believed it would take an additional sixty days to run the

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system to retrieve documents using the agreed-upon key words and review them for relevant and

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responsive documents.

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DISCUSSION

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The motion to compel does not seek to compel responses to any specific requests for

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production. The motion does, however, address boilerplate objections to the requests. During

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oral argument, it became apparent that the parties have a dispute concerning the scope of the

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Defendant’s production of responsive ESI. Plaintiff took the position that some of its discovery

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requests require the production of all documents culled as a result of the key word search.

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Counsel for Enova disputes this, and indicates that it only agreed to produce relevant documents

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responsive to Plaintiff’s specific requests.

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The court has reviewed the Defendant’s response to the requests for production of

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documents which contain two pages of general objections followed by responses and objections

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to virtually every request. The boilerplate objections do not preserve any objections and make it
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impossible to determine whether Enova has merely objected “for the record” and has either

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produced all responsive documents or certified under penalty of Rule 26(g) that is has no

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responsive documents. The objections are overruled. The court will require Enova to serve

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supplemental responses to the requests for production which make it clear whether it has any

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responsive documents and if so, whether it has withheld any responsive documents on the basis

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of privilege or on any other grounds. Any withheld documents shall be listed on a privileged

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document log that fully complies with Rule 26(b)(5).

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Enova has also asserted boilerplate objections to Interrogatory Nos. 5 and 6 which are

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overruled and stricken. The court will compel Enova to provide full and complete answers to

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Interrogatory Nos. 5 and 6, without objection.

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Finally, counsel for Enova alerted the court that an Order (Dkt. #202) granting a motion

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to withdraw entered June 26, 2014, erroneously indicated that the dispositive motion deadline is

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July 24, 2014. Although the court’s Scheduling Order (Dkt. #167) established a July 24, 2014

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dispositive motion deadline, that deadline has been extended by stipulation and order to fifteen

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days after the deadline for class members to opt out. The parties are in the process of preparing a

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notice plan for the district judge’s consideration, and expect a 56-day opt-out period.

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Having reviewed and considered the moving and responsive papers and the arguments of
counsel,

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IT IS ORDERED that:

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Plaintiff’s Motion to Compel is GRANTED, and Enova shall have until July 15,

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2014, in which to serve amended responses to Plaintiff’s requests for production of documents

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and amended answers to Interrogatory Nos. 5 and 6.

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2.

Enova shall have until July 15, 2014, in which to produce documents responsive

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to Plaintiff’s discovery requests for the time period of January 1, 2010, through the date of the

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complaint.

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3.

Counsel for the parties shall meet and confer concerning production of responsive

ESI prior to January 1, 2010.

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4.

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A hearing is scheduled for August 5, 2014, at 9:30 a.m. At the hearing the court

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will address the Defendant’s compliance with this order, and any disputes concerning the

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adequacy of the responses compelled by this order including the parties’ proposals concerning

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2009 responsive ESI.
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Counsel for the parties shall submit a stipulation and proposed order

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memorializing the remaining deadlines once the notice plan has been approved by the district

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judge.

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DATED this 1st day of July, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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