Dilbeck v. CAC Financial Corp

Filing 50

ORDER denying 27 Motion to Quash; denying 29 Motion to Quash; denying 31 Motion to Quash. Signed by Honorable Timothy D. DeGiusti on 8/23/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NELL ROSE DILBECK,
Plaintiff,
v.
CAC FINANCIAL CORP.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. CIV-13-235-D

ORDER
Before the Court are three motions filed by Plaintiff Nell Rose Dilbeck to quash subpoenas
issued by Defendant CAC Financial Corp. to non-parties: Plaintiff’s Motion to Quash Defendant’s
Subpoena Directed Towards BancFirst [Doc. No. 27]; Plaintiff’s Motion to Quash Defendant’s
Subpoena Directed Towards Kimmel & Silverman, P.C. [Doc. No. 29]; and Plaintiff’s Motion to
Quash Defendant’s Subpoena Directed Towards Thomas Watts [Doc. No. 31]. Defendant has timely
opposed the Motions, which are fully briefed and at issue.
This case arises under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692
et seq. Plaintiff claims Defendant violated the Act by disclosing information about an unpaid
medical bill to her son, and by engaging in conduct designed to harass her. Defendant allegedly
committed these violations by repeatedly leaving telephone messages on an answering machine at
a residence that Plaintiff shares with her son, Thomas Watts, from May, 2012, through September,
2012. Plaintiff alleges Defendant’s unauthorized disclosure of her personal financial information,
which she wished to keep private, caused her embarrassment, for which she seeks actual damages
under 15 U.S.C. § 1692k(a)(1). Plaintiff is represented in this case by a nonresident attorney of the
law firm of Kimmel & Silverman, P.C., who is experienced in consumer litigation of this type. See
Order of 3/14/13 [Doc. No. 3] (granting motion for relief from LCvR83.3).

Defendant has issued three subpoenas for the production of documents to which Plaintiff
objects. A subpoena to BankFirst seeks “[a]ccount cards, monthly statements and cancelled checks
for the period July 1, 2010 through September 10, 2012, for any account in which Nell Rose Dilbeck
held any beneficial interest or signature authority.” See Notice of Subpoena [Doc. No. 22]. A
subpoena to Thomas Watts seeks “[a]ny correspondence, specifically including e-mail, instant
messages, web contact and any other form of electronic communication, which you either sent to,
or received from the law firm of Kimmel & Silverman, P.C., or any attorney, employee or agent
thereof.” See Notice of Subpoena [Doc. No. 24]. Similarly, a subpoena to Kimmel & Silverman,
P.C., seeks “[a]ny correspondence, specifically including e-mail, instant messages, web contact and
any other form of electronic communication, which you or your employees or agents either sent to,
or received from Thomas Watts.” See Notice of Subpoena [Doc. No. 25]. The sole basis of
Plaintiff’s objection is lack of relevance.1 Plaintiff contends her bank records are not relevant
because this case does not concern nonpayment of the debt, and that communications between her
attorneys and her son are irrelevant to any disputed issue.
“Relevance” for purposes of discovery is not limited to evidence that may be admissible at
trial. See In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1189 (10th Cir. 2009). Under the Federal
Rules of Civil Procedure, “the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location of any documents or other tangible
things and the identity and location of persons who know of any discoverable matter.” Fed. R. Civ.

1

Plaintiff acknowledges Defendant is not seeking any communications protected by attorney-client
privilege, but only communications between Mr. Watts and Plaintiff’s attorneys concerning this case.

2

P. 26(b)(1). Upon consideration of the documents sought by Defendant in the context of this case,
the Court easily finds the challenged subpoenas seek discoverable materials.
Defendant explains that the purpose of the subpoenas is to obtain information regarding
Mr. Watts’ involvement in managing his mother’s financial and business affairs, including this
lawsuit. Defendant has learned from the depositions of Plaintiff and Mr. Watts that, contrary to
allegations of embarrassment and violation of privacy, Mr. Watts is an authorized signatory on the
bank account of his mother (who is 85 years old), that he is her primary caretaker and assists in
paying her bills, that he is a former client of Plaintiff’s law firm, and that allegedly “he is the one
who has orchestrated this entire lawsuit.” See Def.’s Resp. Pl.’s Mot. Quash Subpoena Directed
Towards Thomas Watts [Doc. No. 37] at 2; Def.’s Resp. Pl.’s Mot. Quash Subpoena Directed
Towards Kimmel & Silverman [Doc. No. 38] at 2. Defendant thus seeks support for its defense to
Plaintiff’s allegations of unauthorized disclosure and embarrassment, and evidence relevant to her
alleged damages. Further, communications between Plaintiff’s attorneys and Mr. Watts may reveal
the existence or location of additional documents or witnesses, or lead to the discovery of admissible
evidence.
For these reasons, the Court finds that Plaintiff has failed to demonstrate the materials sought
by Defendant are irrelevant to the parties’ claims and defenses, and her Motions should be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motions to Quash Defendant’s Subpoenas
[Doc. Nos. 27, 29 and 31] are DENIED.
IT IS SO ORDERED this 23rd day of August, 2013.

3