Miller v. Experian Information Solutions, Inc. et al

Filing 86

ORDER denying 74 Motion for Sanctions Based on all of the foregoing, Millers motion for sanctions against Transunion for spoliation of evidence, doc. 74 , is DENIED. IT IS SO ORDERED. Signed by Magistrate Judge Michael J Newman on 10/31/2014. (ead1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARIN MILLER,

Case No. 3:13-cv-90

Plaintiff,
vs.
District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

EXPERIAN INFORMATION
SOLUTIONS, INC., et al.,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS (DOC. 74)

This case is before the Court on Plaintiff Carin Miller’s (“Miller”) motion for sanctions
for spoliation of evidence. Doc. 74. Defendant Trans Union, LLC (“TransUnion”) filed a
memorandum in opposition to Miller’s motion. Doc. 79. Miller filed a reply memorandum in
support of her motion.1 Doc. 80. The Court has carefully considered each of these documents,
and Miller’s motion for sanctions is now ripe for decision.
I.
This is a Fair Credit Reporting Act (“FCRA”) case. See 28 U.S.C. § 1681, et seq.
Multiple defendants have settled, leaving TransUnion as the sole remaining defendant. See docs.
45, 56. Miller claims that TransUnion violated the FCRA in two ways: (1) by providing Miller’s
consumer report to one or more third parties (specifically, now-dismissed party Wites &
Kapetan) without a permissible purpose; and (2) by selling or disseminating prescreened lists,

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TransUnion filed a motion for leave to file a sur-reply. Doc. 81. Because the Court will not
consider Miller’s arguments that were raised for the first time in her reply, see infra, the undersigned
DENIES TransUnion’s motion for leave. See S.D. Ohio Civ. R. 7.2(a)(2).

including Miller’s credit information, and failing to list such sales or disseminations on Miller’s
consumer report. See doc. 41 at PageID 437.
In her motion for sanctions, Miller alleges that TransUnion engaged in spoliation of
evidence by failing to preserve copies of her credit reports which it provided to third parties
during the pendency of this lawsuit. Doc. 74 at PageID 1130, 1134. After Miller filed the
motion, her attorney conducted a Fed. R. Civ. P. 30(b)(6) deposition of TransUnion
representative Michelle Sims. See Doc. 80 at PageID 1384; Doc. 80-1 at PageID 1394-95. Ms.
Sims testified that in response to promotional inquiries2 from customers, TransUnion creates and
sends a prescreened list -- containing consumer names and addresses -- in a “flat file;” retains the
flat file for up to six months; and then allows the flat file to “roll off,” thereby erasing any record
of the promotional inquiry. Doc. 80 at PageID 1385. In her reply brief, Miller presents a new
spoliation claim based on TransUnion’s alleged destruction of evidence regarding prescreened
lists. See doc. 80 at PageID 1381-89.
A movant cannot raise new issues in a reply brief “because such a practice denies the
non-moving party a meaningful opportunity to respond.” Cooper v. Shelby Cnty., Tenn., No. 072283-STA-cgc, 2010 WL 3211677, at *3 n. 14 (W.D. Tenn. Aug. 10, 2010) (collecting Sixth
Circuit and District Court cases discussing this principle); see also Nash v. Eberlin, No. 5:04-cv435, 2006 WL 2251873, at *1 (N.D. Ohio Aug. 4, 2006) (declining to consider arguments first
raised in a reply brief). Therefore, because Miller first addressed the issue of TransUnion’s

A promotional inquiry is a “request for consumer credit information -- a prescreened list -- in
connection with a transaction not initiated by the consumer, so that a firm offer of credit may be made
directly to the consumer.” Doc. 79 at PageID 1360.
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alleged destruction of evidence related to prescreened lists produced in response to promotional
inquiries in her reply,3 the undersigned declines to consider these arguments.
II.
Pursuant to Federal Rule of Civil Procedure 37, the Court has discretion to impose
sanctions against a party for failure to comply with discovery rules. Fed. R. Civ. P. 37(c)(1). In
addition to discovery sanctions, the Court has inherent authority to impose sanctions based on
spoliation of evidence. Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir. 2009). Spoliation is “the
intentional destruction of evidence that is presumed to be unfavorable to the party responsible for
its destruction.” United States v. Manns, 277 F. App’x 551, 558 (6th Cir. 2008) (internal
citations omitted).
A court may sanction a litigant for spoliation of evidence if three conditions are met.
Byrd v. Alpha Alliance Ins. Corp., 518 F. App’x 380, 383-84 (6th Cir. 2013). First, the party
with control over the evidence must have had an obligation to preserve it at the time of its
destruction. Id. at 384. An obligation to preserve evidence arises “when a party should have
known that the evidence may be relevant to future litigation.” Beaven v. U.S. Dep’t of Justice,
622 F.3d 540, 553 (6th Cir. 2010). Second, the evidence must have been destroyed with a
culpable state of mind, i.e., that the alleged spoliator “destroyed the evidence knowingly or
negligently.” Byrd, 518 F. App’x at 384. Finally, the destroyed evidence must be relevant to a
claim or defense. Id. The party seeking the sanction carries the burden of establishing these
facts. Id. District Courts have broad discretion in determining a proper sanction for spoliation,

In her motion, Miller discusses TransUnion’s alleged failure to preserve “electronic transfers of
information,” which, arguably, includes the flat files referenced in her reply. However, it is clear from
Miller’s motion (doc. 74 at PageID 1129, 1130, 1132, 1134) and the e-mail exchange between counsel
(doc. 74-1 at PageID 1142) that it was TransUnion’s alleged failure to maintain copies of credit reports -not prescreened lists -- that Miller considered spoliation of evidence.
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and any sanction must “serve both fairness and punitive functions.” Id. at 385 (internal citations
omitted).
III.
Miller alleges that TransUnion engaged in spoliation of evidence by failing to preserve
copies of her credit reports -- particularly the “crucial” October 3, 2013 report -- which
TransUnion provided to third parties during the pendency of this lawsuit. Doc. 74 at PageID
1130, 1134. Miller requests that, as a sanction, the Court should either strike TransUnion’s
answer and affirmative defenses, or impose a non-rebuttable adverse evidentiary inference. Doc.
74 at PageID 1135.
In opposition, TransUnion argues it never created or possessed the evidence at issue, and
thus could not have destroyed it with a culpable state of mind. See doc. 79 at PageID 1357-64.
Specifically, TransUnion asserts that its computer systems are not designed to create and
maintain copies of credit reports provided to each third party, as the “cost and space required
would be incredibly prohibitive.” Id. at PageID 1362. Instead, according to TransUnion, it
provides third parties with only “unformatted electronic data” which the third party then
aggregates and formats according to its needs. Id. at PageID 1360, 1362. TransUnion maintains
that it creates no hard copy document in connection with this process. Id. at PageID 1358 n. 1.
The Court finds that TransUnion cannot be sanctioned for failing to preserve documents
it neither created nor possessed. Miller presents no evidence that TransUnion destroyed copies
of credit reports it supposedly provided to third parties or that such documents -- assuming they
existed -- were ever possessed by TransUnion. TransUnion has repeatedly represented to Miller
and the Court that it does not create these documents, and, again, Miller presents no evidence to
the contrary. Parties have no duty to create documents simply to comply with another party’s
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discovery request. See Smallwood v. Collins, No. 2:08-cv-679, 2010 WL 2044953, at *3 (S.D.
Ohio May 21, 2010); see also Brown v. Warden Ross Corr. Inst., No. 2:10-cv-822, 2011 WL
1877706, at *5 (S.D. Ohio May 16, 2011). If TransUnion is under no duty to create copies of
credit reports it provided to third parties, it logically follows that TransUnion cannot be
sanctioned for failing to create and preserve the same. Cf. Smallwood, 2010 WL 2044953, at *3.
IV.
Based on all of the foregoing, Miller’s motion for sanctions against Transunion for
spoliation of evidence, doc. 74, is DENIED.
IT IS SO ORDERED
Date: October 31, 2014

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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