Consumer Credit Reporting Leads to Flurry of Discovery-Based Motion Practice

Consumer Credit Reporting Leads to Flurry of Discovery-Based Motion Practice

After requesting and receiving a consumer credit disclosure from defendant Experian, plaintiff Edward Dixon noticed that Experian was not reporting his payment history concerning his mortgage account held by Green Tree Servicing, LLC.  While Dixon admits that his mortgage account was previously held by GMAC Mortgage until the account was discharged in bankruptcy, he argued that his payment history with Green Tree should nevertheless have been reported by Experian because he continued to make mortgage payments to Green Tree post-bankruptcy.

After filing suit against Experian alleging violations of the Fair Credit Reporting Act, Dixon served seventy Requests for Production and 40 topics for Experian’s Rule 30(b)(6) corporate witness.  While Experian asserts it has already produced 966 pages of discovery, Dixon asked the court to compel Experian to provide supplemental responses, specifically, in their native format as originally requested.

After discussing Rule 34 and Rule 26 in explaining the dynamics of ESI-related discovery, the court noted that Dixon explicitly requested that Experian produce electronically stored information in the electronic form in which it is normally kept.  Dixon’s request further defined the applicable terms of “electronically stored information” and “native format” so there would no confusion as to the nature of his discovery request.  In response, Experian produced the information in unsearchable PDF format but did not address ESI or object to Dixon’s ESI specifications.  Thus, the court ruled, “Experian waived any objection to the ESI format requested by Dixon pursuant to Rule 34(b)(1)(C).”

This waiver by failure to object was perhaps Experian’s greatest oversight.  Not only did the court subsequently grant Dixon’s motion to compel as to his requests for discovery in native format, but the court made clear that “[i]t is not Dixon’s burden to now explain why the native format…would be more useful to him than the .pdfs.”  Even though Experian was not ordered to export the documents into a readable format such as Microsoft Word or Excel, Experian was still ordered to produce the documents in their requested native format.

In addition to compelling documents in their native format, Dixon also asked the court to compel internal and external communications and written policies pertaining to how mortgage accounts of bankrupt consumers are and should be reported.  Experian argued that it has already produced a complete, text-searchable version of the 2012 Credit Reporting Resource Guide and argues that no further information need be produced.  Agreeing with Dixon, the court found that internal and external communications, “including those pertaining to how mortgage accounts of bankrupt consumers are and should be reported” are relevant to the policies included in the Guide and help established whether Experian’s procedures were reasonable.  Further, the court ordered Experian to, at least, conduct a search as to whether any communications or emails with Green Tree regarding Dixon’s dispute exist because such communications are relevant to Dixon’s claims.  In the event Experian found no communications exist, the court advised Experian to “state so in its amended responses.”

The court then examined several of Dixon’s specific discovery requests.  Dixon requested that Experian produce “any and all name scans, snap shots, or other periodic backups of Plaintiff’s file,” presumably in an attempt to demonstrate the content of his credit file at various points in time.  Dixon argued such request went to the reasonableness of Experian’s policy that post-bankruptcy payments not be reported.  Experian countered, stating that such request is unduly burdensome, overly broad, neither relevant to the litigation, nor reasonably calculated to lead to the discovery of admissible evidence and vague and ambiguous as to the meaning of its terms.  The court ultimately agreed with Experian and held that “even if the discovery were relevant . . . the burden on Experian in compiling such ‘periodic backups’ that do not already exist outweigh Dixon’s need for the information” especially since the court ordered Experian to provide Dixon with documentation in native format.  The motion to compel this periodic backup information was denied.

In ruling on Dixon’s motion to compel documents Dixon believes Experian is withholding, the court found little support that Experian was actually withholding documents and ruled that “Dixon’s suspicion that additional documents may exist is an insufficient basis on which to compel discovery.”  The court additionally declined to award any expenses to Dixon related to this motion.

The court then concluded by reviewing Experian’s motion for a protective order based on Experian’s assertion that Dixon’s Rule 30(b)(6) deposition notice exceeds the scope of discovery permitted by Rule 26(b).  Experian requested protection from six of the thirty-one topics identified by Dixon that Experian believes are not relevant to this case.  The court granted protection for five of these six topics: protection from depositions on Experian’s periodic backups; protection from depositions on the exportation of consumer credit files into a readable format; protection from depositions regarding e-mail records; protection from depositions regarding a confidential, one-page document that produced in another lawsuit, and; protection from depositions concerning the identities of Experian representatives most knowledgeable regarding searching and positing queries to an internal database.  Many of these protections were granted on the basis that the court had already compelled Experian to produce documents in their native format, thus eliminating the need for excessive depositions aimed at acquiring the same or similar information. The court, however, denied the motion for protective order as to communications between Experian and Consumer Data Industry Association, the organization responsible for producing the 2012 Guide relied on by Experian for guidelines on credit reporting.  The court held that should Experian produce responsive communications, then “Dixon is entitled to pursue this topic in Rule 30(b)(6) deposition.”

Based on the foregoing, the court granted in part and denied in part Dixon’s motion to compel.  Similarly, the court granted in part and denied in part Experian’s motion for a protective order and ordered Experian to make a Rule 30(b)(6) witness available to Dixon for deposition on the single topic if circumstances so demand.  The court concluded by extending the discovery deadline to allow the parties to comply with the court order.

Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science.  She will receive her J.D. from Seton Hall University School of Law in 2015.  After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage.

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