Dibb v. AllianceOne Receivables Management Inc

Filing 92

ORDER ON JOINT SUBMISSION REGARDING PLAINTIFFS' DISCOVERY REQUESTS, granting in part and denying in part 86 Motion to Compel. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MARGARET L. DIBB, SHAUNA
OVIST, SAMANTHA MASON, and
WENDY GONDOS, individually and on
behalf of others similarly situated,

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CASE NO. 14-5835 RJB
ORDER ON JOINT SUBMISSION
REGARDING PLAINTIFFS’
DISCOVERY REQUESTS

Plaintiffs,
v.
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant.
This matter comes before the Court on the parties’ Western District of Washington R.

19 Civ. P. 37(a)(2) Joint Submission Regarding Plaintiffs’ Discovery Requests to Defendant. Dkt.
20 86. The Court has considered the pleadings filed in support of the submission and the file herein.
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Plaintiffs Margaret Dibb, Shanua Ovist, Samantha Mason, and Wendy Gondos filed this

22 putative class action seeking relief under the Fair Debt Collection Practices Act, 15 U.S.C. §
23 1692, et. seq. (“FDCPA”), the Washington State Consumer Protection Act, RCW 19.86, et seq.
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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 1

1 (“CPA”), and the Washington Collection Agency Act, RCW 19.16.100, et seq. (“CAA”) in
2 connection with Defendant’s attempts to collect a debt arising from returned checks. Dkt. 58.
3 Plaintiffs assert, in part, that the written form Defendant uses in its collection activities violates
4 these statutes. Id.
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Parties now file a joint submission, pursuant to Local Rule 37(a)(2), in which Plaintiffs

6 move for an order moving compelling Defendant to answer Plaintiffs’ Interrogatory Nos. 5, 15,
7 16, 17, and 18 and Requests for Production Nos. 5, 10, and 23. Dkt. 86. Defendant opposes the
8 motion. Id.
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Standard. Pursuant to Fed. R. Civ. P. 26(b)(1), “[p]arties may obtain discovery regarding

10 any nonprivileged matter that is relevant to any party's claim or defense.” Under Fed. R. Civ. P.
11 37(a)(1), “a party may move for an order compelling disclosure or discovery. The motion must
12 include a certification that the movant has in good faith conferred or attempted to confer with the
13 person or party failing to make disclosure or discovery in an effort to obtain it without court
14 action.” Under Local Rule 37(a)(2), parties may file a joint submission (which includes a motion
15 to compel, response and reply), and note that motion for consideration the day it is filed.
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Disputed Discovery. Parties’ joint submission indicates that they are in a dispute over

17 certain discovery: Plaintiffs’ Interrogatory Nos. 5, 15, 16, 17, and 18. Dkt. 86. They indicate
18 that they have met and conferred and have been unable to resolve the dispute. Id. Further,
19 Defendant is seeking fees for having to respond to the motion. Id.
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Discovery No Longer in Dispute. Although the first portion of the joint submission states

21 that Plaintiffs are moving to compel production of documents responsive to Requests for
22 Production No. 5, 10 and 23, Plaintiffs state in the reply section of the joint submission that after
23 deposing Defendant’s Fed. R. Civ. P. 30(b)(6) witness, they are not asking for production of
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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 2

1 these documents at this time. Dkt. 86. The motion to compel these documents should be
2 stricken. No further analysis is required.
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Organization of Opinion. Accordingly, this opinion will first address the motion to compel

4 in regard to the interrogatories by providing each interrogatory, Defendant’s response or
5 responses, and then the decision on the motion to compel that interrogatory. The opinion will
6 lastly address Defendant’s motion for attorneys’ fees.
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INTERROGATORIES
Plaintiffs’ Interrogatory No. 5:
For each of the last four years, state the name, last known address, phone
number and email address of each person to whom ALLIANCEONE sent a
Notice of Dishonor in connection with a DOL CHECK that contained the phrase:

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You are also CAUTIONED that law enforcement agencies may be
provided with a copy of this notice of dishonor and the check
drawn by you for the possibility of proceeding with criminal
charges if you do not pay the amount of this check within thirtythree days after the date this letter is postmarked...

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Dkt. 86.
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Defendant’s Response:
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Defendant objects to this interrogatory as overly broad and not reasonably
calculated to lead to admissible evidence. Specifically, plaintiff’s interrogatory is
overbroad as it seeks information that would not be relevant to any viable claim
for violations of the FDCPA. The statute of limitations for the FDCPA is one
year. This interrogatory seeks information dating back more than four years.
Defendant further objects to the production of contact information for third parties
without their consent.
Subject to and without waiving the stated objections, Defendant responds
as follows: pursuant to Fed R. Civ. P. 33(d) Defendant will produce all nonprivileged documents responsive to this interrogatory at a time and manner
mutually agreeable to all parties.

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Dkt. 86.
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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 3

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Decision Regarding Plaintiffs’ Interrogatory No. 5. Defendant should be ordered to fully

2 answer Plaintiffs’ Interrogatory No. 5. Plaintiffs properly point out that they seek information
3 not only about their FDCPA, but about their claims under the CPA, which has a four year statute
4 of limitations. Further, although Defendant expresses some concern over releasing personal
5 information of the people from whom it attempted to collect money, the parties entered a
6 confidentiality agreement regarding this information. Defendant has already produced the NOD
7 forms for one year. It does not explain why the earlier forms’ information should be treated
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Plaintiffs’ Interrogatory No. 15: “IDENTIFY the payee of EVERY CHECK for which

10 YOU recovered more than the face amount of the CHECK. In identifying the payee, please
11 provide: name, address, phone number and email address of the payee.” Dkt. 86.
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Defendant’s Response:
Objection. Defendant objects to this Interrogatory on the grounds that it seeks
information that is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, this request seeks information
outside the one-year FDCPA statute of limitations. Defendant further objects to
this request on the grounds and to the extent that it seeks private financial
information for non-parties and requires Defendant to provide debt collection
information in violation of federal statutes. Defendant also objects on the grounds
that this request is harassing, in that this request is similar in scope and subject
matter to requests that are the subject of a pending LCR 37 motion. Defendant
also objects on the grounds that this request was duplicative of Plaintiffs’ other
discovery responses and information and documents already produced by
Defendant and is intended to harass and burden Defendant. Specifically,
Defendant has already provided the identity of all individuals to whom it sent a
NOD on behalf of the Department of Licensing since October 2013 to present.
Plaintiffs can readily obtain the information sought by this request from the
individuals identified in those letters. Defendant further objects to this request on
the grounds that it is overbroad, unduly burdensome and harassing because it is
not limited to the Department of Licensing, which are the only debts at issue in
this litigation, and also seeks debts that are not consumer debts under the FDCPA.
This request is also overly broad and unduly burdensome in effectively seeking
the identities of all individuals, from over 100 state agencies, since 2010 that
Defendant knows to have bounced checks in the state of Washington. Defendant

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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 4

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also objects to the extent this request is aimed at seeking Defendant's client list,
which is outside the scope of this litigation, amounts to a trade secret, and is
proprietary in nature.
Subject to and without waiving these objections: Margaret Dibb, Shauna
Ovist, Samantha Mason, Wendy Gondos. Plaintiffs’ contact information is within
their own possession.

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Dkt. 86.
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Decision Regarding Plaintiffs’ Interrogatory No. 15. Defendant should be ordered to
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answer Plaintiffs’ Interrogatory No. 15 for the last four years (in keeping with the statute of
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limitation for their CPA claim). This Interrogatory seeks to discover for whom Defendant
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collected. Defendant’s objection regarding the one year statute of limitation is without merit
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because Plaintiffs also assert a claim under the CPA. Plaintiffs maintain in their Third Amended
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Complaint that the Defendant violated the CPA in connection with collecting Washington checks
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for any creditor, not just the Washington Department of Licensing (“DOL”), so their discovery
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should not be limited to the DOL debts. Dkt. 58. Parties have a confidentiality agreement in
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place to manage issues over a client list.
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Plaintiffs’ Interrogatory No. 16:
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For EACH of the last four years, state the name, last known address, phone
number and email address, check amount, check payee, and itemized statement of
amounts COLLECTED for EACH PERSON to whom ALLIANCEONE sent a
NOTICE OF DISHONOR in CONNECTION with an attempt to COLLECT a
CHECK, where the NOTICE OF DISHONOR included a statement that the
CHECK writer had to make a payment within thirty days after the date the letter
was postmarked, to either: (1) avoid the possibility that law enforcement agencies
might be provided with a copy of the NOTICE OF DISHONOR; or, (2) to avoid
the imposition of additional costs, including costs of COLLECTION or interest.

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Dkt. 86.
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Defendant’s Response:
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Objection. Defendant objects to this Interrogatory on the grounds that it seeks
information that is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, this request seeks information

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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 5

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outside the one-year FDCPA statute of limitations. Defendant further objects to
the extent that this request seeks private financial information for non-parties and
requires Defendant to publicize debt collection information and correspondence in
violation of federal statutes. Defendant also objects to the extent that this request
is not reasonably calculated to lead to the discovery of admissible evidence
because it seeks information and documents outside the scope of this litigation.
Specifically, this request is not limited to debts collected on behalf of the
Department of Licensing, which are the only debts at issue in this litigation.
Defendant also objects on the grounds and to the extent that this request seeks
private, proprietary and trade secret information in seeking Defendant's client list
or the identification of Defendant's clients outside of the Department of
Licensing. Defendant further objects on the grounds that this request is harassing
and burdensome because it seeks information that is obtainable from documents
that Defendant has already produced, particularly in light of Defendant’s
willingness to stipulate that Plaintiffs satisfy numerosity. This request is also
overly broad and unduly burdensome in effectively seeking the identities of all
individuals, for over 100 state agencies, since 2010 that Defendant knows to have
bounced checks in the state of Washington. Defendant also objects to the extent
this request is aimed at seeking Defendant's client list, which is outside the scope
of this litigation, amounts to a trade secret, and is proprietary in nature.
Defendant will produce requested information responsive to any class members
if/when a class is certified.

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Dkt. 86. A chart for this information was included regarding the named Plaintiffs. Id.
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Decision Regarding Plaintiffs’ Interrogatory No. 16. Plaintiffs’ motion to compel an
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answer to this interrogatory should be denied to the extent that it is repetitive, i.e. again asks for
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the names, addresses, payees etc. Defendant has already been ordered to answer those questions
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and should not again be forced to do so. The motion to compel should be denied without
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prejudice as to the “itemized statement of amounts COLLECTED.” Defendant states that it
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offered to provide Plaintiffs with redacted account records which would yield the fee information
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requested in this interrogatory. Defendant states that Plaintiff refused the account records.
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Plaintiff indicates that they were not offered. Parties are strongly encouraged to sort this out in
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keeping with the other rulings in this order.
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Plaintiffs’ Interrogatory No. 17:
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ORDER ON JOINT SUBMISSION REGARDING
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For EACH calendar year during the Relevant Time Period, provide an
itemized list of the total amounts COLLECTED from those to whom YOU sent a
NOTICE OF DISHONOR as described in the immediately preceding
Interrogatory. The itemization should include the following categories: CHECK
amount, handling fee, COLLECTION cost, interest, treble damages, attorney's
fees, court costs and ANY other amounts COLLECTED.

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Dkt. 86.
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Defendant’s Response:
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Objection. Defendant objects to this Interrogatory on the grounds that it seeks
information that is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, this request seeks information
outside the one-year FDCPA statute of limitations. Defendant further objects to
the extent that this request seeks private, proprietary and trade secret information
in seeking Defendant's client list or the identification of Defendant's other clients.
Defendant also objects to this request on the grounds that it is compound.
Defendant also objects to the extent this request mandates Defendant to create a
document that does not already exist, which Defendant is not required to do, or
requests Defendant itemize information already available to Plaintiffs.
Konczakowski v. Paramount Pictures, Inc. Byers Theaters, Inc. v. Murphy, 1
F.R.D. 286 (D.C. Va. 1940) (one party cannot require another to make
investigation, research or compilation of data for him that he can equally well
make for himself); Soetaert v. Kansas City Coca Cola Bottling Co., 16 F.R.D. 1
(D.C. Mo. 1954) (discovery cannot be used to require adverse party to prepare
writing but can only be used to require production of things in existence); Corp v.
H. Wolfe Iron & Metal Co., 576 F. Supp. 511 (W.D. Pa. 1983)(discovery cannot
be used to compel a party to create, upon request of opposing party, evidence that
does not already exist); Onofrio v. American Beauty Macaroni Co., 11 F.R.D. 181
(D.C. Mo. 1951)(interrogatories that require research and compilation of data and
information not readily known are improper). Defendant also objects to the extent
that this requests seeks information that is more easily obtained by Plaintiffs by
contacting the individuals identified in Notice of Dishonors already produced by
Defendant for the reasons identified in response to Interrogatory No. 15. Segarra
v. Waterman S.S. Corp., 41 F.R.D. 245 (DC Puerto Rico, 1966) (Interrogatory
should not impose upon opposing party duty to make inquiries and investigations;
litigant cannot compel adversary to do his work). Defendant further objects on the
grounds that this request is harassing and burdensome because it seeks
information that is obtainable from documents that Defendant has already
produced. This request is also overly broad and unduly burdensome in effectively
seeking the identities of all individuals, from over 100 state agencies, since 2010
that Defendant knows to have bounced checks in the state of Washington. This
request is also overly broad and unduly burdensome in seeking information about
debts that do not fall under purview of FDCPA.

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PLAINTIFFS’ DISCOVERY REQUESTS- 7

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Subject to and without waiving these objections, see Defendant's response to
Interrogatory No. 16. Defendant will produce requested information responsive to
any class members if/when a class is certified.

3 Dkt. 86. Defendant’s supplemental response included a chart for the named class members
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Decision Regarding Plaintiffs’ Interrogatory No. 17. Plaintiffs’ motion to compel an

6 answer to Interrogatory No. 17 should be denied. Defendant properly points out this
7 interrogatory impermissibly requires it to create a document that does not exist. The answer to
8 Interrogatory No. 16’s “itemized statement of amounts COLLECTED” will give Plaintiffs access
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Plaintiffs’ Interrogatory No. 18: “For EACH calendar year during the Relevant Time

11 Period, state the number of PERSONS or other entities to whom YOU sent a NOTICE OF
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14 COLLECTING.” Dkt. 86.
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Defendant’s Response.
Objection. Defendant objects to this Interrogatory on the grounds that it seeks
information that is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, this request seeks information
outside the one-year FDCPA statute of limitations and from Defendant’s clients
apart from the Department of Licensing, which are the only debts at issue in this
litigation. Defendant further objects to the extent that this request is compound.
Defendant further objects to this request on the grounds that it seeks information
readily obtainable by Plaintiff from individuals identified by Defendant in letters
produced in response to Request for Production No.5; Plaintiffs cannot compel
Defendant to do their investigation. Segarra v. Waterman S.S. Corp., 41 F.R.D.
245 (DC Puerto Rico, 1966) (Interrogatory should not impose upon opposing
party duty to make inquiries and investigations; litigant cannot compel adversary
to do his work). Also, this request is overly broad and unduly burdensome in
clearly seeking information about debts that do not fall under purview of FDCPA.
This request is also harassing and is substantially identical to Plaintiffs’ previous
discovery requests.

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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 8

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Subject to and without waiving these objections, discovery is ongoing and
Defendant is continuing to review its records in order to determine the number of
Notices of Dishonor sent in relation to the amount owing or paid on the account.
At this point, Defendant estimates since 2010 it has sent over 11,300 Notices of
Dishonor on which it has collected an amount over the principal. Defendant is
continuing to review its records and will supplement this response.

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Dkt. 86.
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Decision Regarding Plaintiffs’ Interrogatory No. 18. Plaintiffs’ motion to compel an
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answer to Plaintiffs’ Interrogatory No. 18 should be denied. Defendant adequately answered the
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question, and indicated a willingness to supplement the answer.
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MOTION FOR ATTORNEY’S FEES
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Fed. R. Civ. P. 37 provides:
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If the motion is granted--or if the disclosure or requested discovery is provided
after the motion was filed--the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees. But the court must not
order this payment if:

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(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.

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18 Fed. R. Civ. P. 37(a)(5).
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Defendant’s motion for an award of fees, and to the extent that Plaintiffs’ also move for fees,

20 their motion should be denied. The motion to compel was granted, in part, and denied, in part.
21 In the circumstances here, an award of fees would be unjust.
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ORDER ON JOINT SUBMISSION REGARDING
PLAINTIFFS’ DISCOVERY REQUESTS- 9

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ORDER
Therefore, it is hereby ORDERED that:


Plaintiffs’ motion to compel (Dkt. 86) IS:

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o GRANTED as to Plaintiffs’ Interrogatory Nos. 5 and 15;

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o DENIED WITHOUT PREJUDICE as to Plaintiff’s Interrogatory No.

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16;

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o DENIED as to Plaintiffs’ Interrogatory Nos. 17, and 18; and

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o STRICKEN as to Plaintiffs’ Requests for Production Nos. 5, 10, and 23.

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

Defendant’s motion, and to the extent Plaintiffs’ make one, Plaintiffs’ motion for
an award of attorneys’ fees (Dkt. 86) IS DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and

12 to any party appearing pro se at said party’s last known address.
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Dated this 21st day of September, 2015.

A
ROBERT J. BRYAN
United States District Judge

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