United States District Court, S.D. Indiana, Indianapolis Division
BROOKE PERSINGER on behalf of herself and all others similarly situated, Plaintiff,
SOUTHWEST CREDIT SYSTEMS, LP, Defendant.
ORDER ON PLAINTIFF'S MOTION TO COMPEL
J. Dinsmore United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion to
Compel [Dkt. 44]. The motion is
GRANTED to the extent and for the reasons
set forth below.
alleges that Defendant violated the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq.,
by accessing her consumer report without a permissible
purpose. Specifically, Plaintiff alleges that a debt she owed
was referred to Defendant for collection and that Defendant
accessed her credit report on January 4, 2018, several months
after that debt was discharged in bankruptcy and therefore
became uncollectible. Plaintiff brings this action on behalf
of herself and a putative class of “all persons about
whom, during the two (2) year period prior to the filing of
this Complaint, Defendant obtained a consumer report after
that consumer had obtained a bankruptcy discharge of any
obligation that Defendant could have collected from
them.” [Dkt. 1 at 6.]
issue in the instant motion is Plaintiff's Interrogatory
No. 13, which reads:
Identify all complaints (written or oral), disputes (written
or oral), lawsuits, regulatory actions, or other
communications (written or oral) identifying the name and
address of any consumer who believed that you had accessed
their consumer report without a permissible purpose to do so
within the last ten (10) years.
[Dkt. 44 at 2.] Defendant has refused to provide any
substantive response to the interrogatory, instead lodging
numerous objections to it.
may “obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case.”
Fed.R.Civ.P. 26(b)(1). A party may seek an order to compel
discovery when an opposing party fails to respond to
discovery requests or provides evasive or incomplete
responses. Fed.R.Civ.P. 37(a)(2)-(3). The burden “rests
upon the objecting party to show why a particular discovery
request is improper.” Kodish v. Oakbrook Terrace
Fire Protection Dist., 235 F.R.D. 447, 449-50 (N.D. Ill.
2006). This burden cannot be met by “a reflexive
invocation of the same baseless, often abused litany that the
requested discovery is vague, ambiguous, overly broad, unduly
burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible
evidence.” Burkybile v. Mitsubishi Motors,
Corp., 2006 WL 2325506, at *6 (N.D. Ill. August 2, 2006)
(internal citations omitted).
this standard in mind, the Court will address each of the
objections to Interrogatory No. 13 set forth in
Defendant's response to the instant motion.
Relevance and Overbreadth
argues that the information sought by the interrogatory is
irrelevant to the claims and defenses in this case. Plaintiff
argues that the information it seeks is relevant to the issue
FCRA provides for statutory damages, punitive damages, and
attorney fees in the event of a “willful” failure
to comply with its requirements. 15 U.S.C. § 1681n(a).
In Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57
(2007), the Supreme Court held that “willfulness”
in the statute included recklessness, and further held that
“a company subject to FCRA does not act in reckless
disregard of it unless the action is not only a violation
under a reasonable reading of the statute's terms, but
shows that the company ran a risk of violating the law
substantially greater than the risk associated with a reading
that was merely careless.” Id. at 69.
argues that evidence that Defendant received complaints from
other consumers that it had accessed their consumer reports
without a permissible purpose is relevant to whether
Defendant acted willfully with regard to accessing her credit
report, because “[i]t is axiomatic that if a Defendant
continues to act despite being put on notice that its actions
are in violation of the law, then that Defendant is
potentially liable for a willful violation of the law and for
punitive damages.” [Dkt. 50 at 2.] The Court
agrees with Plaintiff's general premise; however, the
interrogatory as drafted is overly broad. Plaintiff alleges
that Defendant violated the FCRA by accessing her consumer
report after the relevant debt was discharged in bankruptcy.
The only complaints by other consumers that could provide
relevant evidence of willfulness are complaints that were
made prior to the date Plaintiff's report was accessed
and that involved the same type of alleged violation.