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Persinger v. Southwest Credit Systems, LP

United States District Court, S.D. Indiana, Indianapolis Division

October 30, 2019

BROOKE PERSINGER on behalf of herself and all others similarly situated, Plaintiff,


          Mark J. Dinsmore United States Magistrate Judge.

         This 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.

         I. Background

         Plaintiff 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.]

         At 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.

         II. Discussion

         A party 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).

         With 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.

         A. Relevance and Overbreadth

         Defendant 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 of willfulness.

         The 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.

         Plaintiff 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. However, ...

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