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Gamby v. Equifax Information Services

April 16, 2010

HAROLD GAMBY AND BERYLLIN GAMBY, PLAINTIFFS,
v.
EQUIFAX INFORMATION SERVICES, LLC, ET AL., DEFENDANT.



The opinion of the court was delivered by: Hon. Marianne O. Battani

OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR SANCTIONS UNDER RULE 37

Before the Court is Plaintiffs' request for sanctions under FED. R. CIV. P. 37, which was filed under seal (Doc. No. 265). The Court has reviewed the pleadings, and finds oral argument will not aid in the resolution of this dispute. See E. D. Mich. LR 7.1(e)(2). For the reasons that follow, Plaintiffs' motion is DENIED.

I. BACKGROUND

Plaintiffs Harold and Beryllin Gamby filed suit, alleging that Defendant First National Bank of Omaha ("FNBO") violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §1681s-2(b), and the Michigan's Collection Practices Act ("MCPA"), MICH. COMP. LAWS § 445.251 et seq. From the beginning of litigation, the parties were unable to amicably resolve routine discovery disputes and repeatedly sought the intervention of the Magistrate Judge.

One particularly contentious area was the designation of a Rule 30(b) representative. On April 30, 2009, this Court instructed Plaintiffs to provide a revised Rule 30(b)(6) notice "describing with reasonable particularity 25 matters (without subparts) for examination." See Doc. No. 216. The Court ordered Defendant to designate three or fewer witnesses to respond to the areas of inquiry. Id. After Plaintiffs served an amended notice, FNBO moved to quash. The Court denied the emergency motion, rejecting each of Defendants' arguments as to why it would be too difficult to comply. The Court found the notice reasonable under the circumstances.

Thereafter, Defendant offered two witnesses--Renae Krumel and Linda Ray. A few days before the trial date, Plaintiffs filed this motion requesting sanctions under Rule 37. The Court did not allow Plaintiffs to argue this motion at the June 25, 2009, hearing on pending motions in limine because Defendant had not received the motion. Given the late filing of the motion, the Court reserved ruling on the motion.

The case proceeded to trial on June 29, 2009, and at the conclusion of deliberations, the jury found no cause as to the statutory claims advanced against FNBO. Defendant subsequently moved to strike the motion for sanctions, and after the Court denied the motion, FNBO filed a responsive pleading.

According to Plaintiffs, Krumel and Ray were inadequately prepared and unable to provide the requested information. Further, during the course of questioning these witnesses, FNBO's counsel interrupted by "speaking objections" which directed the witness away from the testimony. Pls.' Brief at 4. These objections had been expressly prohibited, and according to Plaintiffs, prevented them from obtaining needed discovery.

II. STANDARD OF REVIEW

Pursuant to the governing procedural rule, if a witness designated under Rule 30(b)(6) "fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders." FED.R.CIV.P. 37(b)(2)(A). The rule articulates options:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the ...


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