Hutchins v. Choice Recovery, Inc.

Filing 25

OPINION ORDER granting in part and denying in part 12 Motion to Compel. Signed by Magistrate Judge Norah McCann King on 12/4/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JERRY HUTCHINS,
Plaintiff,
vs.

Civil Action 2:14-cv-196
Judge Smith
Magistrate Judge King

CHOICE RECOVERY, INC.,
Defendant.
OPINION AND ORDER
I.

Background
This is an action under the Fair Debt Collection Practices Act

(the “Act” or “FDCPA”), 15 U.S.C. § 1692 et seq., in which plaintiff
alleges that defendant violated the Act when it failed to update
plaintiff’s credit report as “disputed” in light of plaintiff’s
challenge to the validity of the debt.

This matter is before the

Court on defendant’s Motion to Compel Plaintiff to Respond to
Discovery and for Appropriate Sanctions (“Defendant’s Motion”), ECF
12.

Defendant’s Motion was filed on September 2, 2014.

On September

8, 2014, plaintiff filed an opposition to Defendant’s Motion.
Plaintiff’s Response to Defendant Choice Recovery, Inc.’s Motion to
Compel and for Sanctions (“Plaintiff’s Response”), ECF 16.

On

September 12, 2014, the parties reported the case as settled.

ECF 17.

However, on October 24, 2014, the Court, noting that the parties had
appeared to have reached impasse on an issue, ordered that the current
pretrial schedule proceed.

Order, ECF 21.

On November 25, 2014, the

Court directed the parties “to advise the Court, by December 2, 2014,

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whether defendant’s motion to compel remains viable.”

Order, ECF 22.

On December 2, 2014, defendant indicated that Defendant’s Motion
was still viable and that defendant was seeking to compel production
of “(a) the attorney fee agreement between Plaintiff and his counsel,
and (b) the nineteen (19) withheld pages of Plaintiff’s credit
report.”

Status Report, ECF 23. Defendant also indicated that it was

seeking an award of attorney fees.

Id.

On December 3, 2014, plaintiff’s counsel filed a Status Report,
ECF 24, indicating that plaintiff has produced “a copy of the retainer
agreement between Plaintiff and his attorneys.”

As to his credit

report, plaintiff indicated the following:
Plaintiff also maintains that his entire credit report is
not relevant and need not be produced to determine the
merits of the above captioned case.
Plaintiff does not
seek actual damages. Defendant’s requests are intended to
harass, oppress, and annoy Plaintiff.
Even so, Plaintiff
has requested his credit reports from the credit reporting
agencies, Transunion, Equifax, and Experian, and will be
able to produce the credit reports once they are received.
Id.

Plaintiff also opposes defendant’s request for attorney fees.
For the following reasons, Defendant’s Motion is GRANTED in part

and DENIED in part.
II.

Standard
Defendant’s request to compel response to requests for production

of documents is governed by Rule 37 of the Federal Rules of Civil
Procedure.

Rule 37 authorizes a motion to compel discovery when a

party fails to provide a proper response to a request for production
of documents under Rule 34.

Fed. R. Civ. Pro. 37(a)(3)(B).

“The

proponent of a motion to compel discovery bears the initial burden of
proving that the information sought is relevant.”

2

Martin v. Select

Portfolio Serving Holding Corp., No. 1:05–cv–273, 2006 U.S. Dist.
LEXIS 68779, at *2 (S.D. Ohio Sept. 25, 2006) (citing Alexander v.
Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C. 1999)).
Rule 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s
claim or defense.”

Fed. R. Civ. P. 26(b)(1).

purposes is extremely broad.
F.3d 389, 402 (6th Cir. 1998).

Relevance for discovery

Lewis v. ACB Bus. Servs., Inc., 135
“The scope of examination permitted

under Rule 26(b) is broader than that permitted at trial.

The test is

whether the line of interrogation is reasonably calculated to lead to
the discovery of admissible evidence.”

Mellon v. Cooper-Jarrett,

Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).

However, “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) (citing Fed. R. Civ. P. 26(b)(2)).

See also Lewis,

135 F.3d at 402 (determining the proper scope of discovery falls
within the broad discretion of the trial court).

In determining the

proper scope of discovery, a district court balances a party’s “right
to discovery with the need to prevent ‘fishing expeditions.’”

Conti

v. Am. Axle & Mfg. Inc., 326 F. App’x 900, 907 (6th Cir. 2009)
(quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)).
Finally, the party moving to compel discovery must certify that
it “has in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to

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obtain it without court action.”
S.D. Ohio Civ. R. 37.2.

Fed. R. Civ. P. 37(a)(1).

See also

This prerequisite has been met here.

III. Discussion
Defendant seeks to compel response to a request for the
production of documents seeking a copy of plaintiff’s credit report.1
Defendant’s Motion, p. 3, Exhibit 1 at p. 4; Status Report, ECF 23.
Defendant argues that the credit report is relevant because plaintiff
alleges that his credit reputation was harmed.
3.

Defendant’s Motion, p.

Plaintiff has produced the two pages of his credit report

containing the disputed debt, but objects to producing the entire
credit report on the basis that it is not relevant to any claim or
defense.

Plaintiff’s Response, p. 4.

Plaintiff argues that he “need

not produce her [sic] entire credit report to show that Defendant
reported inaccurate information” and that defendant will not be
prejudiced by the withholding of the entire credit report.
5.

Id. at p.

See also Status Report, ECF 24 (“Plaintiff also maintains that his

entire credit report is not relevant and need not be produced to
determine the merits of the above captioned case.”).

Plaintiff also

represents that he “has requested his credit reports from the credit
reporting agencies, Transunion, Equifax, and Experian, and will be
able to produce the credit reports once they are received.”

Id.

It

is unclear from plaintiff’s Status Report whether plaintiff intends to
1

Defendant’s Motion also seeks to compel production of the fee agreement
between plaintiff and his attorney. Defendant’s Motion, p. 3, Exhibit 1 at
p. 4; Status Report, ECF 23. Defendant argues that the fee agreement is
relevant because “this is a fee-shifting case.” Defendant’s Motion, p. 3.
Plaintiff originally objected to production of his fee agreement on the basis
that the agreement is not relevant to any claim or defense. Plaintiff’s
Response, p. 5. However, as indicated supra, plaintiff now represents that
he has produced “a copy of the retainer agreement between Plaintiff and his
attorneys.” Status Report, ECF 24.

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actually produce his credit reports or whether he persists in his
contention “that his entire credit report is not relevant and need not
be produced.”

See Status Report, ECF 24.

The Court will therefore

consider the merits of Defendant’s Motion in this regard.
The Amended Complaint, ECF 7, alleges that defendant “left its
wrongful and incomplete information on [plaintiff’s] credit report
despite its knowledge” that the debt was disputed, and that “[t]his
significantly harmed Plaintiff and his credit reputation.”
19.

Id. at ¶

Plaintiff alleges violations of 15 U.S.C. §§ 1692e, 1692e(8),

1692e(10), 1692f, and seeks “statutory damages, actual damages and all
costs and reasonable attorney’s fees pursuant to the relevant
provisions of the FDCPA.”2

Id. at ¶¶ 28, 31, 34, 37.

Actual damages

under 15 U.S.C. § 1692k(a)(1) include out-of-pocket expenses and
damages for personal humiliation, embarrassment, mental anguish, and
emotional distress.

Davis v. Creditors Interchange Receivable Mgmt.,

LLC, 585 F. Supp. 2d 968, 971-74 (N.D. Ohio 2008); Kafele v. Lerner,
Sampson & Rothfuss, L.P.A., No. 2:02CV0743, 2005 WL 1379107, at *4
(S.D. Ohio June 9, 2005); Becker v. Montgomery, Lynch, No. 1:02CV874,
2003 WL 23335929, at *2 (N.D. Ohio Feb. 26, 2003).
Plaintiff alleges, inter alia, that his credit reputation was
damaged as a result of the alleged FDCPA violations.
Complaint, ¶ 19.

Amended

Although plaintiff argues that only the disputed

debt is at issue, see Plaintiff’s Response, p. 4, plaintiff’s “credit
reputation” is affected by everything in his credit report, and

2

Plaintiff now represents that he “does not seek actual damages.” Status
Report, ECF 24. This representation is contrary to the allegations in the
Amended Complaint, see Amended Complaint, ¶¶ 28, 31, 34, 37, and plaintiff
has not moved to dismiss his claims for actual damages.

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defendant will be unable to assess the extent of any harm to
plaintiff’s “credit reputation” without full access to plaintiff’s
credit report.

The Court therefore concludes that plaintiff’s entire

credit report is relevant to this action. Plaintiff must produce that
report in its entirety.
Defendant also seeks an award of sanctions in the amount of $280
in attorney fees incurred in connection with Defendant’s Motion.

Rule

37 of the Federal Rules of Civil Procedure requires, after granting an
opportunity to be heard, the payment of expenses, including reasonable
attorney’s fees, associated with the grant of a motion to compel
unless “(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action; (ii)
the opposing party's nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of
expenses unjust.”

Fed. R. Civ. P. 37(a)(5)(A).

Defendant’s Motion sought to compel response to requests for
production of documents propounded on April 1, 2014.
Motion, Exhibit 1.

Defendant’s

Defendant granted plaintiff an extension of time

to respond to the requests and, on August 22, 2014, plaintiff’s
counsel served responsive documents.

Plaintiff’s Response, p. 2.

However, “[d]ue to an oversight and clerical error, Plaintiff’s
attorney did not attach Plaintiff’s itemized formal responses in the
same email.”

Id.

Defendant’s counsel responded via email the same

day: “Jordan – Thanks for the email.

However, I must ask.

Is that

it?” and, on September 3, 2014, informed plaintiff’s counsel that no

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formal responses had been received.

Id. at pp. 2-3.

Plaintiff’s

counsel represents that, “[d]uring said phone call, Plaintiff
communicated to Defendant’s attorney that it was not aware of the
oversight and would review the records and confer with the attorney of
record3 to determine whether all the intended documents were served.”
Id.

Plaintiff also represents that defendant filed its motion “mere

hours after speaking to Plaintiff’s attorney and before Plaintiff’s
attorney was able to verify whether all intended documents were sent
to Defendant.”

Id.

In light of the foregoing and considering that

the matter was resolved without undue expense and inconvenience to the
parties or the Court, the Court concludes that its discretion is
better exercised in declining to award attorney fees.
WHEREUPON, based on the foregoing, Defendant’s Motion, ECF 12, is
GRANTED in part and DENIED in part.

Plaintiff is ORDERED to produce

his entire credit report within seven (7) days of receiving the
reports from Transunion, Equifax, and Experian.

The Court notes that

plaintiff has already requested the reports from the credit reporting
agencies.

Status Report, ECF 24.

December 4, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

3

The Court notes that Jordan Scott Cushner is the only attorney to have
entered an appearance on plaintiff’s behalf.

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