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Cox v. Sherman Capital LLC

United States District Court, Southern District of Indiana, Indianapolis Division

February 24, 2014

ANDREW COX, LUCINDA COX, STEPHANIE SNYDER Individually and on behalf of others similarly situated, Plaintiffs,
v.
SHERMAN CAPITAL LLC, MEETING STREET PARTNERS II INC., SHERMAN FINANCIAL GROUP LLC, SHERMAN CAPITAL MARKETS LLC, LVNV FUNDING LLC, RESURGENT CAPITAL SERVICES LP, SHERMAN ORIGINATOR III LLC, SHERMAN ACQUISITION LLC, BENJAMIN W. NAVARRO, LESLIE G. GUTIERREZ, SCOTT E. SILVER, KEVIN P. BRANIGAN, ROBERT A. RODERICK, KENNETT KENDALL, JOHN DOES 1-50, SHERMAN ORIGINATOR LLC, Defendants.

ORDER ON PLAINTIFFS’ MOTION TO COMPEL

Mark J. Dinsmore United States Magistrate Judge

This matter comes before the Court on Andrew Cox, Lucinda Cox, and Stephanie Snyder’s (“Plaintiffs”) Motion to Compel Regarding Written Discovery, filed on December 20, 2013. [Dkt. 172.] For the following reasons, the Court hereby GRANTS in part and DENIES in part the Plaintiffs’ motion to compel.

I. Background

This case alleges claims of fraud, unjust enrichment, Racketeer Influenced and Corrupt Organizations Act (RICO) violations, and Fair Debt Collection Practices Act (FDCPA) violations. [Dkt. 1.] These claims arise out of the alleged acts of Defendants Sherman Capital LLC, Meeting Street Partners II Inc., Sherman Financial Group LLC, Sherman Capital Markets LLC, LVNV Funding LLC, Resurgent Capital Services LP, Sherman Originator III LLC, Sherman Acquisition LLC, and Sherman Originator LLC (“Entity Defendants”) and Defendants Benjamin W. Navarro, Leslie G. Gutierrez, Scott E. Silver, Kevin P. Branigan, Robert A. Roderick, and Kennett Kendall (“Individual Defendants”), collectively “Defendants.” Upon filing this lawsuit, Plaintiffs also moved to have this matter certified as a class action [Dkt. 5], which the Magistrate Judge has recommended that the District Judge grant [Dkt. 131]. However, the Defendants have objected to this recommendation [Dkt. 133], and the District Judge has not yet ruled on that objection.

From the outset, Plaintiffs have had difficulty acquiring discovery from Defendants in this matter. Plaintiffs have already filed two motions to compel regarding Defendants’ reluctance to acquiesce to Plaintiffs’ deposition requests and to cooperate during the depositions. [Dkt. 40, 77.] The Court granted both such motions to compel. [Dkts. 55, 88.] On October 11, 2013, Defendants responded to Plaintiffs’ interrogatories and requests for production that had been served on the Entity Defendants, but Plaintiffs believe Defendants’ responses to be “incomplete and evasive.” [Dkt. 172 at 2.] After making a “good faith” effort to obtain discovery from the Defendants without requesting action by the Court, Plaintiffs were unable to resolve their issues with Defendants’ responses, and Plaintiffs filed present Motion to Compel Regarding Written Discovery. [Id. at 4.] Oral argument was held on Plaintiffs’ motion to compel at a hearing on January 31, 2014 [Dkt. 202], and the Court now considers Plaintiffs’ motion.

II. Discussion

Rule 37 permits a party to file a motion to compel a required disclosure upon “evasive or incomplete disclosure, answer, or response.” Fed.R.Civ.P. 37(a). A required disclosure, as defined by Rule 26, includes information that a party “may use to support its claims.” Fed.R.Civ.P. 26 (a)(1)(A). When there is good cause, “the court may order discovery of any matter relevant” to the issues of the case. Fed.R.Civ.P. 26 (b)(1) (emphasis added). However, information that is not relevant to a claim or defense is not discoverable. Id.

This Court has “broad discretion in discovery matters, ” including the consideration of a motion to compel discovery. Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001) (citing Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1056 (7th Cir. 2000)). Plaintiffs allege several deficiencies regarding Defendants’ responses to Plaintiffs’ written discovery requests, and the Court will address such allegations herein.

A. General Deficiencies

Before addressing specific grievances regarding Defendants’ responses to their requests, Plaintiffs allege several general deficiencies. Plaintiffs’ two general grievances regarding Defendants’ interrogatory answers are (1) the interrogatories were not answered under oath nor signed by an officer or agent, as mandated by Rule 33(b), and (2) many responses indicate that business records are responsive to the interrogatory but fail to specify the records in sufficient detail so as to enable Plaintiffs to locate and identify such records, as required by Rule 33(d). [Dkt 173 at 2-3 (citing Fed.R.Civ.P. 33(b)(1)(B)(3), (5) and 33(d)(1)).] Plaintiffs further allege that Defendants’ responses to document requests are generally insufficient because Defendants merely state that they “will produce documents . . . to the extent such documents are in defendants’ possession, custody, or control” without stating whether such documents are known to exist and, if so, identifying the defendant or entity in possession, custody, or control of such a document so that the Plaintiffs may subpoena it. [Id. at 3] Plaintiffs then move for the Court to order Defendants to comply with such requests within ten days of the date of this order.

In response, Defendants believe that “the vast majority” of the issues that Plaintiffs raise in their motion to compel have been resolved since the motion was filed, as, according to Defendants, many of the issues raised in Plaintiff’s motion had not been previously discussed with Defendants.[1] [Dkt. 202 at 4.] The general issues that the parties agreed to prior to the hearing on the motion include the verification of interrogatory answers, the identification of documents that would be responsive to interrogatories, and the identification of which defendant is in possession of which document. [Id. at 4-5.] Accordingly, the only general deficiency remaining is that much of Defendants’ responses state that the Defendants “will produce” responsive information without any reference to a production timeline. The Court will grant Plaintiffs’ request to give the Defendants a response deadline, and Defendants agreed at oral argument that thirty days “would not seem unreasonable.” [Id. at 64.] Thus, Defendants are ordered to submit complete and responsive answers to Plaintiffs’ requests for written discovery and produce all documents responsive thereto within twenty-eight (28) days of the date of this Order.

B. Indiana Agreements, Data Strings, Law Suits, and Accounts

Plaintiffs make several requests for information pertaining to the putative classes of Indiana residents. Such production requests include the “purchase contracts pursuant to which Indiana accounts were purchased by the defendants, ” other “information about [Defendants’] Indiana accounts, regardless of whether the information was contained in the purchase agreement or the exhibits and attachments, ” and information “concerning collection activities for all plaintiffs, which . . . includes all alleged debtors in Indiana.” [Dkt. 173 at 5, 8, 14, 27.] Defendants argue that such information is not relevant, as the Court has not yet certified the matter as a class action, and that any efforts to produce such information would be overly broad and unduly burdensome upon the Defendants in light of the current lack of class certification. [See Dkt. 185 at 10-16; Dkt. 202 at 10-20.] Plaintiffs, in reply, assert that Defendants have waived the class action certification objection to these production requests because the objection was not timely raised in Defendants’ responses to Plaintiffs’ requests for production, but instead was raised for the first time in response to Plaintiffs’ motion to compel. [Dkt. 189 at 4-7.]

It is true that an objection to a discovery request must be raised “in timely fashion.” Charter House Ins. Brokers, Ltd. v. New Hampshire Ins. Co., 667 F.2d 600, 605 (7th Cir. 1981). Failure to raise an objection to a Rule 34 request for production in a timely manner waives the responding party’s right to assert the objection at a later time. See, e.g., Buonauro v. City of Berwyn, 08 C 6687, 2011 WL 116870 (N.D. Ill. Jan. 10, 2011) (“It is well-established that the failure to [raise objections to discovery requests] in a timely manner waives a subsequent assertion of objections in the absence of good cause”); Peterson v. Farrakhan, 2:03CV319, 2005 WL 2465254 (N.D. Ind. Oct. 5, 2005) (“it is firmly established in [the Seventh] Circuit that a party who fails to timely respond to discovery requests waives his objections thereto”). While Rule 34 does not precisely delineate when an objection is “timely” or not, the rule clearly states that a party upon whom the discovery request has been made has thirty days to respond, and an objection to a part of the request must specify the reasons ...


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