Summary
addressing requests for information regarding the plaintiff's debt, policy manuals, judicial complaints and opinions, and agreements with other reporting agencies
Summary of this case from Walters v. Perdue, Brandon, Fielder, Collins & Mott, LLPOpinion
Civil 3:01 CV 1933 (DJS)
May 3, 2002
RULING ON MOTION TO COMPEL
The plaintiff has brought this action for damages and equitable relief against defendant Risk Management Alternatives, Inc. (hereafter "RMA"), alleging that RMA's debt collection efforts against her have violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; the Connecticut Creditor Collection Practices Act, Conn Gen. Stat. § 36a-645; the Connecticut Consumer Collection Agency Act, Conn. Gen. Stat. § 36a-800, and the Connecticut Unfair Trade Practices Act ("CUTPA"), § 42-110a. Plaintiff's motion to compel is pending before the court. The motion (Dkt. #14) is granted. The court finds that by failing to meet the February 8, 2002, deadline, the defendant waived its right to object to the discovery requests at issue. Nothing in the court's March 1, 2002, endorsement allowing defendant until March 8, 2002, to file a memorandum opposing plaintiff's motion to compel restores the rights defendant waived.
Plaintiff's motion to compel (Dkt. #14) was partially granted in a March 1, 2002, endorsement. That ruling noted that, although RMA had requested, and received, several continuances to respond to plaintiff's discovery request — the last being a request to extend its time for responding until February 8, 2002 — RMA failed to meet this February 8, 2002, deadline. The court finds that by failing to respond to plaintiff's discovery requests, the defendant waived its right to object to them. Thus, on March 1, 2002, plaintiff's motion to compel was granted with respect to Interrogatories 1, 2, 3, 4, 5, 7, and 8, and Production Requests 1, 3, 4, 5, 7, 10, and 11.
On that same date, the court granted RMA's motion (Dkt. # 16) for an extension of time until March 8, 2002, to file a memorandum in opposition to plaintiff's motion to compel compliance with Interrogatory 6 and Production Requests 2, 6, 8, 9 and 12. RMA filed its opposing papers March 11, 12, and 13, 2002. (Dkt. ## 18, 19, 20).
The court finds that RMA's resistance to plaintiff's discovery efforts is unjustified and contrary to well-established legal principles. Among the principles defendant RMA ignores is the axiom that discovery is normally allowed into any matter that bears upon the issues or reasonably could lead to relevant information. Qppenheimer Fund Inc. v. Sanders, 473 U.S. 340, 351 (1978) Information need not be admissible as evidence in order to be discoverable. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 29-30 (1984). "It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). In the Second Circuit, "[t]his obviously broad rule is liberally construed." Daval Steele Products v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991), citing Oppenheimer, supra, 437 U.S. at 351.
Defendant RMA also overlooks that, as the objecting party, it bears the burden of showing why discovery should be denied. Blakenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975). The mere statement by a party that discovery is "irrelevant and immaterial" is not enough to discharge this burden. Joseph v. Harris Corp., 677 F.2d 985, 992 (3rd Cir. 1982). Moreover, a party which fails to object to a discovery request waives any objections it otherwise might have made. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); Smith v. United States, 193 F.R.D. 201, 207 n. 19 (D. Del. 2000).
Nor may RMA withhold discovery on the strength of its own overly optimistic speculation that it might one day be successful in achieving dismissal of, or summary judgment on plaintiff's complaint. Because an adjudication on the merits normally comes only after discovery, "it is no objection to an interrogatory that it relates to a defense or claim which is insufficient in law." Anderson Co. v. Helena Cotton Oil Co., 117 F. Supp. 932, 945 n. 9 (E.D. Ark. 1953). Finally, RMA is not free to raise in its brief — almost as an afterthought — entirely new objections which it did not assert earlier. Davis v. Fender, 650 F.2d 1154, 1160 (9th Cir. 1981); Eureka Financial Corp. v. Hartford Act. and Index. Co., 136 F.R.D. 179 (E.D. Cal. 1991).
Unlike Connecticut state courts, which require fact pleading, federal courts require notice pleading. The court finds that plaintiff's complaint in this case clearly satisfies the notice pleading requirements of the Federal Rules. Fed.R.Civ.P. 8(a)(2). It is disingenuous for defendant to carp about the sparsity of plaintiff's complaint when it is defendant who has deliberately withheld the facts from plaintiff. The court further finds that defendant's dismissive description of plaintiff's discovery requests as an "improper fishing expedition" is factually and legally incorrect.
1. Interrogatory 6 and Production Request 9
Interrogatory 6 simply asks "How much did you pay for the plaintiff's debt?" Production Request 9 seeks documents reflecting the purchase of plaintiff's debt. Defendant RMA objects to providing this information on grounds that it is "irrelevant, immaterial, and not reasonably related to the issues raised in the Complaint." (Dkt. #18 at 4). The objection is overruled. The court finds that the information plaintiff seeks in these two discovery requests goes directly to the nature of the relationship between RNA and the entity from which RMA allegedly "purchased" the purported debt.
The Court finds that this information is relevant, material, non-privileged, and reasonably related to plaintiff's claims. RMA's arguments to the contrary are dilatory and unconvincing. The information is central to plaintiff's theory that RMA's statements were false or deceptive. Plaintiff's entitlement to this information is at least as strong as that of the plaintiff in Gearing v. Check Brokerage Corporation, 233 F.3d 469 (7th Cir. 2000). In determining whether there had been a deceptive or false communication under the FDCPA, the Gearing Court found that it was appropriate to scrutinize the relationship between the defendant and the entity from which it had acquired the purported debt. Just as the plaintiff in Gearing was not required to blindly accept the defendant's description of itself as a "subrogee," the plaintiff in this case is not required to accept RMA's self-serving description of itself as a "purchaser" of the asserted debt here.
The plaintiff is entitled to discover the requested information, since it will enable him to test the truth of RMA's representations. Disclosure of the amount that RMA paid for the alleged debt is also necessary to enable plaintiff to test the veracity of RMA's representation that its offer of compromise constituted a "generous" offer. At the discovery stage of the proceedings, there is no merit to RMA's contention that what is "generous" must be viewed from the perspective of a debt collector. This is simply an argument which RMA is free to make to the trier of fact, be it the court in a summary judgment motion or a jury, at which time plaintiff will be able to offer the competing argument that the circumstances must instead be viewed from the perspective of the "least sophisticated debtor." Schweizer v. Trans Union Corporation, 136 F.3d 233, 236 (2d Cir. 1998), citing Rosa v. Gaynor, 784 F. Supp. 1, 3-4 (D.Conn. 1989) (Cabranes, J.).
Almost as an afterthought, RMA's brief seeks to expand its objection to Interrogatory 6 and Production Request 9 to include on grounds that the information is "a confidential matter" between a debt collector and the entity from which it assertedly bought the alleged debt. If nothing else, the Court of Appeals decision in Gearing, supra, indicates that the legal relationship between a debt collector and the entity from which it acquired the obligation is not always described honestly or even accurately in communications by the debt collector. Plaintiff has a right to know about this relationship. Defendant RMA should not be permitted to cloak the relationship in secrecy by invoking, tardily and ambiguously, assertions of confidentiality or privacy. This is especially so here, where defendant's affiant cannot even identify the precise entity from which the supposed debt was purchased, and where it appears that RMA's motive is not a legitimate privacy concern, but personal animosity toward plaintiff's lawyer.
The confidentiality clause in the agreement between RMA and the seller (whomever that may be) quoted in the affidavit of Mr. Pritula does not govern this case. (Dkt. #19 at 3). That clause is not binding on the court or on plaintiff's attorney. The parties to a debt purchase agreement cannot insulate their practices from discovery, or the power of the court, by artfully drafting a clause that purports to make relevant facts confidential. For these reasons, and substantially on the basis of the arguments in plaintiff's two memoranda, the court finds that the requested material and information are not privileged, confidential, or otherwise non-discoverable.
2. Production Requests 2 and 12
As previously noted, defendant has waived its objections to these document requests by failing to meet the February 8, 2002, deadline. Nevertheless, the court briefly addresses defendant's objection to these requests. These requests seek the manuals, written procedures, and protocols defendant uses in complying with the FDCPA and in acccessing and reporting to credit bureaus. The court finds that the information sought is relevant, is not overly broad, and is properly discoverable. The court finds that, while defendant must expend some effort in gathering this information, the documents requested are not so voluminous that their production is unfairly or unduly burdensome.
3. Production Request 3
In this production request, plaintiff seeks copies of all judgments, court opinions, complaints, and consent order concerning the defendants practices under the FDCPA and the Fair Credit Reporting Act in or after the year 2000. Although defendant waived its objection to this discovery request by missing the February 8, 2002, deadline, the court briefly addresses defendant's tardy objection. Contrary to defendant's objection, this request does not seek irrelevant and immaterial information; nor is the requested information "not reasonably related to the issues raised in the complaint"; nor does the request suffer from "unnecessary overbreadth."
Plaintiff's request is reasonably limited as to scope and time. The material sought is clearly relevant to the state of mind with which defendant acted. It is also relevant to whether defendant's alleged statutory violations occurred after it had actual notice that its practices were actionable. While it may be burdensome to require defendant to compile and permit discovery of the various legal complaints and judgments against it from 2002 to the present, surely these documents are not so voluminous that it is an unreasonable or unfair burden for defendant to shoulder.
4. Production Request 8
Although defendant's objection to this discovery request also has been waived, the court nevertheless briefly addresses defendant's objection. In this production request, the plaintiff seeks copies of "all agreements defendant has with consumer reporting agencies." Contrary to defendant RMA's tardy objection, the court finds that the information sought is relevant and reasonably related to the issues raised in the complaint. The plaintiff alleges more than just a violation of the FDCPA. Plaintiff also alleges a violation of CUTPA, which is the state law vehicle for addressing allegedly unscrupulous and deceptive business practices. Among the deceptive practices of which plaintiff complains are misrepresentations with respect to plaintiff's credit. This is not irrelevant or immaterial. Defendant is, therefore, ordered to produce the requested documents and information for the relevant period.
For all of the these reasons, plaintiff's motion to compel (Dkt. #14) is granted and the defendant is ORDERED to produce the aforesaid information and material to plaintiff within twenty (20) days hereof. The documents shall be used by counsel for the plaintiff in this litigation only without prejudice to plaintiff's right to seek leave from the court for an enlargement of this limitation if necessary. The plaintiff is free to apply for attorney's fees in connection with the prosecution of this motion. Fed.R.Civ.P. 37(a)(4).
This is not a recommended ruling. This is a discovery ruling and order which is reviewable pursuant to the "clearly erroneous" standard of review. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 6(a) and 72(a); and Rule 2 of the Local Rules for U.S. Magistrate Judges. As such, it is an order of the court unless reversed or modified by the district judge upon motion timely made.
IT IS SO ORDERED at Hartford, Connecticut, this3rd day of May, 2002.