Opinion
CASE NO. 4:19cv584-MW/MJF
2020-10-27
Gilbert L. MILLER, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC, and LoanCare, LLC, Defendants.
Hans W. Lodge, Berger Montague PC, Minneapolis, MN, Janet R. Varnell, Brian William Warwick, Varnell & Warwick PA, Tampa, FL, for Plaintiff. Brandon S. Stein, Seyfarth Shaw LLP, Chicago, IL, John Anthony Love, King & Spalding LLP, Robert C. Stevens, Seyfarth Shaw LLP, Atlanta, GA, for Defendant Equifax Information Services LLC. Benjamin D. Carnahan, Walter Haverfield - Cleveland OH, Nicholas James Debaltzo, Jr., Dinn Hochman & Potter, Cleveland, OH, for Defendant LoanCare LLC.
Hans W. Lodge, Berger Montague PC, Minneapolis, MN, Janet R. Varnell, Brian William Warwick, Varnell & Warwick PA, Tampa, FL, for Plaintiff.
Brandon S. Stein, Seyfarth Shaw LLP, Chicago, IL, John Anthony Love, King & Spalding LLP, Robert C. Stevens, Seyfarth Shaw LLP, Atlanta, GA, for Defendant Equifax Information Services LLC.
Benjamin D. Carnahan, Walter Haverfield - Cleveland OH, Nicholas James Debaltzo, Jr., Dinn Hochman & Potter, Cleveland, OH, for Defendant LoanCare LLC.
AMENDED ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS, OR, IN THE ALTERNATIVE, MOTION IN LIMINE
In an abundance of caution, the original order was sealed. Inasmuch as it does not appear necessary to seal the order, an amended unsealed order is being posted so that it can be viewed by the parties immediately.
Mark E. Walker, Chief United States District Judge
This Court has considered, without hearing, Plaintiff's Motion to Compel and for Sanctions, or, in the Alternative, Plaintiff's Motion in Limine. ECF No. 38. In the motion, Plaintiff pursues two alternatives. First, Plaintiff moves to compel Defendant Equifax Information Services, LLC ("Defendant") to produce two ACDV Operators, who are Indian nationals and who work for a foreign non-party company. If this Court grants Plaintiff's motion to compel, Plaintiff moves for attorneys' fees and expenses pursuant to Federal Rules of Civil Procedure 37(a)(5)(A). Second, in the alternative, Plaintiff moves in limine to prohibit Defendant from introducing any evidence regarding its purported investigation of Plaintiff's credit disputes. For the reasons provided below, Plaintiff's motion is DENIED in toto. I
This case arises out of Plaintiff's allegations that Defendant violated the Fair Credit Reporting Act by, among other things, willfully failing to conduct a complete and reasonable reinvestigation of his numerous credit disputes regarding inaccurate duplicative reporting. Plaintiff alleges that Defendant inaccurately reported that he had two mortgage accounts with LoanCare, LLC when Plaintiff only had one mortgage account. Plaintiff notified Defendant of this inaccuracy on five different occasions, but Defendant failed to correct the credit reporting.
Defendant forwards its consumer disputes to its support service provider, Intelenet, in Gurgaon, India. Intelenet is neither a party to this dispute nor a corporate affiliate of Defendant. However, the two Intelenet ACDV Operators that Plaintiff seeks to depose are directly involved in the conduct that is at the heart of this litigation—they handled the reinvestigation of the consumer dispute on behalf of Defendant. Intelenet has a Master Agreement for Business Process and Support Services with Defendant. The agreement provides that "[i]n the event that Equifax commences or is engaged by a third party in a lawsuit, Provider [Intelenet] shall provide Equifax access to all directly relevant Provider employees and subcontractors for interviews, depositions and the like." ECF No. 38-9, at subsection 3.9.
The question presented is not whether the testimony of the two ACDV Operators is relevant—it is; rather, the question is whether this Court may compel Defendant to produce these operators for deposition. The answer is no.
II
This Court starts with the two cases from the Eastern District of Virginia, where Defendant was a party. In those cases, the parties took the same position as the parties in this case. See Thach v. Equifax , No. 3:14-cv-00070 (HEH) (E.D. Va. 2014) (Doc Nos. 85–88, 99, 103, & 107); Tamblay v. Equifax , No. 1:14-cv-130 (LO/IDD) (E.D. Va. 2014) (Doc. Nos. 64, 65, 70, 71, & 72). Citing these cases, Plaintiff argues that "several courts have ordered FCRA defendants to produce the ACDV Operators for depositions." ECF No. 38, at 24. But that is not what happened in either case. In Tamblay , the court granted in part and denied in part plaintiff's motion to compel, or in the alternative, motion in limine. No. 1:14-cv-130 (LO/IDD) (E.D. Va. Aug. 24, 2014) (Doc. No. 75). The court did not order Equifax to produce the ACDV Operators and explicitly stated that it "doesn't believe they [Equifax] have the authority to do that." Id. (Doc. No. 76). Instead, pursuant to the contract between Equifax and the non-party, the court ordered Equifax to instruct the non-party to produce the ACDV Operators. Id. Similarly, in Thach , the court did not order Equifax to produce the ACDV Operators but instead found the issue to be moot because Equifax agreed "to ask the third-party employer of ACDV Operators to make available for depositions the employees that handled Plaintiff's disputes that are at issue in this case." 3:14-cv-70-HEH (E.D. Va. Sept. 8, 2014) (Doc. No. 117).
Plaintiff also relies on multiple cases to argue that Defendant should be compelled to produce the ACDV Operators because Defendant has a certain degree of "control" over them. However, the cases Plaintiff relies on are materially different from the instant case. Unlike the cases relied on by Plaintiff, Intelenet is not a corporate affiliate or a subsidiary of Defendant. ECF No. 47-1, ¶ 4; ECF No. 38, at 23 (stating that Intelenet and Defendant are "allegedly separate entities"). See, e.g., Alcan Int'l Ltd. v. S.A. Day Mfg., Co. , 176 F.R.D. 75 (W.D.N.Y. 1996) (holding that plaintiff must produce the witnesses for deposition and documents from plaintiff's overseas subsidiary ) ; Cooper Indus, Inc. v. British Aerospace, Inc. , 102 F.R.D. 918, 919–20 (S.D.N.Y. 1984) (ordering Defendant to produce documents that are either in defendant's possession or in possession of the British affiliate ). Instead, Defendant has a contractual relationship with Intelenet. The contract gives Defendant access to Intelenet's employees for the purpose of litigation; it does not, as the Tamblay court stated, give Defendant the right to compel Intelenet's employee's presence for a deposition. Because Intelenet is not a corporate affiliate of Defendant and because the contract does not give Defendant the right to Intelenet's employee's presence for deposition, this Court finds that it cannot compel Defendant to produce the ACDV Operators.
But see In re: Benicar (Olmesartan) Prods. Liability Litig. , No. 15-2606 (RBK/JS), 2016 WL 5817262 (D.N.J. Oct. 4, 2016) ("The problem with Alcan is that it conflates the standard for when a corporate party must produce its affiliate' documents with the standard for which witnesses a corporate party must produce for deposition .... ‘[T]here is no textual basis in the federal rules for [the] argument that the control test is applicable to the court's consideration regarding the request to depose individual witnesses pursuant to Fed. R. Civ. P. 30.’ "). This Court need not decide whether the "control" theory applies for producing witnesses for deposition under Federal Rule of Civil Procedure 30 because, as discussed, this Court finds that Defendant does not "control" the ACDV Operators such that it can produce them for deposition.
Similarly, Plaintiff's reliance on Berrios v. Experian Info. Sols., Inc. , is unpersuasive. No. 1:11-cv-1130 (E.D. Va. 2011). In Berrios , the court denied Flagstar Bank's motion for a protective order requiring plaintiff to issue subpoenas for ACDV Operators. ECF No. 38-13. However, the ACDV Operators in Berrios were defendant's own employees. ECF No. 47-5, at 2–3.
For the first time in its reply, Plaintiff argues, relying on Calderon v. Experian Info. Sols., Inc. , 290 F.R.D. 508 (D. Idaho. 2013), that it is entitled to notice the ACDV Operators for a deposition because the ACDV Operators are "managing agents" of Defendant. Assuming Plaintiff has not waived this issue by failing to raise it in its opening brief, this Court finds Plaintiff's argument unpersuasive. The ACDV Operators cannot be Defendant's "managing agents" because they are not Defendant's employees. Nor, unlike Calderon , are they employees of Defendant's sister corporation. Instead, they are employees of a foreign entity who has a contractual relationship with Defendant.
As it relates to Plaintiff's motion in limine, this Court finds that the motion is premature. Without knowing what the evidence will be, this Court cannot determine whether the evidence should be excluded as inadmissible hearsay or on other grounds.
This Court, however, agrees with Plaintiff that Defendant cannot have it both ways—it cannot use its ability to access information from Intelenet pursuant to its contract and, at the same time, make it increasingly difficult for Plaintiff to access the same information. By outsourcing its work to a foreign third-party, Defendant has made it difficult for Plaintiff to gather information central to his claim. At the same time, Defendant has an agreement with Intelenet through which it can readily access information. In short, Defendant has created a "heads I win, tails you lose" situation, which is inequitable. While this Court rules against Plaintiff at this time, Defendant should be mindful that this Court, like the court in Grizzard Jr. v. MBNA Am. Bank , No. 3:04-cv-625 (E.D. Va. 2005), has major concerns regarding Defendant putting on evidence regarding a third party's investigation that took place in a foreign country—evidence that is readily accessible to Defendant and incredibly difficult, if not near impossible, for Plaintiff to obtain. ECF No. 47-6.
For these reasons, Plaintiff's motion, ECF No. 38, is DENIED . This Court also denies Plaintiff's motion for fees and expenses and Defendant's motion for fees and expenses because both sides position was substantially justified.
However, consistent with the Court in Tamblay , this Court directs Defendant to ask Intelenet to produce the ACDV Operators for deposition. This Court is aware that Defendant has contacted Intelenet regarding Plaintiff's request. ECF No. 47-2. Nonetheless, this Court orders Defendant to do so again. Defendant shall notify this Court about the communication on or before November 10, 2020 . Along with the notification, Defendant shall submit a detailed affidavit regarding the communication and attach email exchanges, if any.