R. STAN BAKER, Magistrate Judge.
Before the Court is Defendant Wells Fargo's ("Wells Fargo") Motion to Compel, (doc. 34), and Second Motion to Compel, (doc. 37), Defendant Experian Information Solution's ("Experian") Motion to Compel, (doc. 38), and Defendants' Joint Motion for Discovery Extension, (doc. 39). For the reasons set forth below, Defendants' Motions are
Plaintiff filed this action on January 5, 2015, alleging that Wells Fargo transmitted false credit information to Experian in violation of the Free Credit Reporting Act, 15 U.S.C. § 1681, after his ex-wife fraudulently opened an account using Plaintiff's name. (Doc. 1.) Plaintiff further alleges that Experian failed to properly maintain his credit file and, therefore, did not correct erroneous information contained within his credit report. (
On December 14, 2015, Wells Fargo filed a Motion to Compel Discovery, (doc. 34), requesting that the Court compel Plaintiff to (1) identify medical professionals who provided treatment for emotional distress; (2) produce documentation demonstrating the extent of credit damage; (3) provide credit history reports for the relevant time period; and (4) produce the power-of-attorney Plaintiff's ex-wife used to open the fraudulent account. (Doc. 34.) Plaintiff did not respond to Wells Fargo's Motion to Compel. Also on December 14, 2015, the parties filed a Joint Motion for Extension of Discovery Period through February 12, 2016, (doc. 33), which the Court granted on December 29, 2016, (doc. 36).
On February 11, 2016, Wells Fargo filed a Second Motion to Compel. (Doc. 37.) Having received only one credit history report from Plaintiff, which pre-dated his dispute with Defendants, Wells Fargo requested that the Court order Plaintiff to execute an authorization allowing Equifax to release his credit history report, or, in the alternative, to compel Equifax to produce Plaintiff's records. (
The following day, on February 12, 2016, Experian also filed a Motion to Compel Discovery Responses. (Doc. 38). As Plaintiff has, to date, provided no responses to any of its discovery requests, Defendant Experian moves the Court to compel Plaintiff to produce responses to Experian's first set of interrogatories and first requests for production. (
On February 29, 2016, Plaintiff filed Responses in Opposition to Defendant Wells Fargo's Second Motion to Compel and Defendant Experian's Motion to Compel. (Docs. 42, 43.) In his first Response, (doc. 42), Plaintiff stated that "Plaintiff cannot produce documents which the Plaintiff does not have," and in his second Response, (doc. 43), Plaintiff informed the Court that he had "served full answers to [Experian's] Interrogatories and Request for Production of Documents." Contrary to Plaintiff's assertion, Experian has not received responses to its discovery requests. The Court held a hearing to address these Motions on March 22, 2016. For the reasons stated on the record at the hearing and as supplemented below, Wells Fargo's Motions to Compel Discovery are
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery of "any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Upon a showing of good cause, a court may order discovery of "any matter relevant to the subject matter involved in the action."
In the case at hand, Wells Fargo acknowledges that any deficiencies in Plaintiff's Response to its Interrogatories have been resolved by Plaintiff's recent supplementation of his prior responses. Accordingly, the portions of Wells Fargo's first Motion seeking responses to these discovery requests are now moot.
In its Request to Produce No. 10, Wells Fargo requested that Plaintiff "[p]roduce all documents evidencing or relating to Plaintiff's calculation of the amount of damages claimed to have been suffered[.]" (Doc. 34, p. 8.) Plaintiff indicated both in his Response to Defendant's Second Motion to Compel and at the hearing conducted on March 22, 2016, that he does not possess any documentation regarding his calculation of damages. However, in his deposition, Plaintiff claimed that his wife has copies of documents responsive to Wells Fargo's request. (
In its Request to Produce No. 17, Wells Fargo requested that Plaintiff produce the expired power-of-attorney which he purports his ex-wife used to open a fraudulent account in his name at Wells Fargo Bank. (Doc. 34, p. 10.) Initially, Plaintiff partially produced the requested document, but omitted the portion of the power-of-attorney containing its expiration date. At the hearing, Plaintiff's counsel indicated that he had in his possession a complete copy of the power-of-attorney, but failed to produce it to Defense counsel. Accordingly, the Court further
In its first motion to compel, (doc. 34), Wells Fargo requested that Plaintiff produce copies of his credit history reports encompassing the relevant time period. During Plaintiff's deposition on December 8, he testified that he regularly checks his credit score by accessing a Credit Karma "app" on his phone. (Doc. 37, p. 8 n.4.) Despite this testimony, Plaintiff produced only one credit history report that pre-dates his dispute with Defendants.
As a result of Plaintiff's failure to produce adequate documentation regarding his credit history, Wells Fargo attempted to subpoena those documents from Equifax. (
In addition to authorizing the Court to compel a party to provide requested discovery, Rule 37 also authorizes the award of expenses and attorney's fees to a party that successfully brings a motion to compel. Specifically, the Rule states:
Fed. R. Civ. P. 37(a)(5)(A). "A reading of the Rule leads to the inescapable conclusion that the award of expenses is mandatory against a party whose conduct necessitated a motion to compel discovery, and/or against the attorney who advised such conduct, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust."
In the case at hand, there is no dispute that Plaintiff did not provide responsive information to Wells Fargo's Interrogatories 11 and 13 until after the First Motion to Compel.
Plaintiff offers no legitimate reason for his failure to timely respond to the interrogatories or to provide the requested documents. He offered no response to the First Motion to Compel, and, as to the Second Motion, he merely states that has "not done anything to keep Wells Fargo from [s]ubpoenaing records from Equifax" and that he "cannot produce documents which [he] does not have." (Doc. 42, p. 1.) However, in his deposition, Plaintiff stated that he regularly checks his credit score and that his current wife has access to documents concerning his credit history. (Doc. 37-3.) Further, Plaintiff's counsel stated that he and Plaintiff would discuss the authorization form following the deposition. (
On this record, the Court would ordinarily be obligated to award Wells Fargo the reasonable expenses, including attorney's fees, requested in its motions to compel. Fed. R. Civ. P. 37(a)(5)(A). However, Wells Fargo has not provided any evidence of the amount of expenses it incurred as Defense counsel's law firm has not yet released the prior month's billing information.
The Federal Rules of Civil Procedure specifically provide an avenue for a party to pose questions to a party by way of interrogatory. Fed. R. Civ. P. 33(a)(2) ("An interrogatory may relate to any matter that may be inquired into under Rule 26(b)."). Additionally, a party may request the opposing party to produce documents or items within the scope of discovery and in another party's possession or control. Fed. R. Civ. P. 34(a)(1) ("A party may serve on any other party a request . . . to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information . . . ."). When a party fails to answer an interrogatory or fails to produce a requested document or item, the Court may order that party to respond. Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). Furthermore, Federal Rule of Civil Procedure 37(a)(4) states, "[f]or the purposes of this subdivision (a), an evasive or incomplete designation, answer, or response must be treated as a failure to disclose, answer, or respond."
Experian sent Plaintiff requests for discovery and interrogatories on July 20, 2015. (Doc. 38, p. 1.) Plaintiff has neither objected to Experian's requests and interrogatories, nor provided any responses. (
Defendants' Joint Motion asked the Court to extend the current discovery deadline of February 12, 2016, for an additional thirty (30) days after the Court rules on Defendants' Motions to Compel. (Doc. 39, p. 1.) Defendants explained that the discovery issues set forth in their Motions have prevented them from preparing dispositive motions. (
As stated previously on record, the Court finds that an extension of time is warranted only as to the outstanding discovery issues presented in Defendants' Motions to Compel, as well as limited discovery pertaining to the newly added defendant. Therefore, for the reasons stated on the record, the parties' joint Motion is
For the reasons and in the manner set forth above, Defendants' Motions to Compel, (docs. 34, 37, 38) are
If the dispute still cannot be resolved following a telephonic conference with the Magistrate Judge, then the Court will entertain a discovery motion. In connection with the filing of any such motions, the moving party shall submit the appropriate certifications to the Court as required by Federal Rules of Civil Procedure Rules 26(c)(1) and 37(a)(2).
The Court will refuse to hear any discovery motion unless the parties have made a sincere, good faith effort to resolve the dispute and all of the above-identified steps have been strictly complied with. A failure to fully comply with all of the prerequisite steps may result in a denial of any motion with prejudice and may result in an award of costs and reasonable attorney's fees.