United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
COMPEL DISCOVERY RESPONSES
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
Court held a hearing on April 16, 2019, at which counsel for
both parties appeared. At the hearing, the Court considered
two outstanding motions from Defendant, including the Motion
to Compel Discovery Responses from Plaintiff and to Extend
Dates (ECF No. 33).
stated on the record, the Court took Defendant's Motion
to Compel (ECF No. 33) under advisement and now issues this
written order resolving the motion.
Court has held several telephonic hearings with Plaintiff and
Defendant Michigan First Credit Union (“MFCU”)
discussing discovery problems. See ECF Nos. 31, 32.
On the January 18, 2019 call, MFCU complained that Plaintiff
failed to respond to basic discovery and had not provided
responses to interrogatories. Plaintiff's counsel
informed the Court that they had communication problems with
Plaintiff and were attempting to secure her signature on the
response to interrogatories. The second call was on the
February 20, 2019. In that conference, MFCU informed the
Court that they had received answers, but that the answers
were “woefully incomplete” and included
inappropriate objections. The Court granted MFCU leave to
file a motion to compel if that was necessary to resolve the
disagreement. On March 8, 2019, MFCU filed the instant Motion
to Compel, to which Plaintiff responded in opposition. ECF
Nos. 33, 34, 35. On April 1, 2019, the Court conducted
another telephonic hearing with all parties. On that call,
parties informed the Court that discovery was complete except
those issues relating to the pending motion, and that
Plaintiff still intended to depose an MFCU executive.
moves the Court to compel discovery responses from Plaintiff
in two areas: (1) answers to interrogatories, and (2)
production of requested documents. MFCU seeks details of the
settlements with other defendants, attorney fee arrangements,
and Plaintiff's credit report history, saying this
information is relevant and not protected by privilege. ECF
No. 33, PageID.199. MFCU claims that “the settlement
agreements could bear on the credibility of witnesses (e.g.
witnesses may be biased as a result of the
settlement)[.]” ECF No. 33, PageID.211. MFCU says that
they need this information before they can complete
deposition of Plaintiff “and potentially other
witnesses.” ECF No. 33, PageID.200. MFCU also claims
that any objections lodged by Plaintiff are waived since they
were untimely. ECF No. 33, PageID.212.
responds that that the settlements with the other defendants,
Equifax and Transunion, are not relevant to her claims
against MFCU, and that the settlement agreements have no
bearing on witness credibility. ECF No. 34, PageID.297-98.
Plaintiff says that there is no right to contribution under
the FCRA, so there is no danger of “double
recovery” here, making the settlement agreements with
the other defendants irrelevant to MFCU. ECF No. 34,
PageID.298-299. Plaintiff also says that attorney fees-if
awarded-will be approved by the Court using the lodestar
method, so the client agreement is also irrelevant. ECF No.
34, PageID.301. Plaintiff claims that redactions to her
credit report history were to protect sensitive or irrelevant
information. ECF No. 34, PageID.302. Plaintiff further says
that Federal Rule of Civil Procedure 33 (Interrogatories)
contains a waiver for untimeliness, but Rule 34 (Document
Production) does not. ECF No. 34, PageID.302-303.
“Therefore, Plaintiff has not waived her objections to
MFCU's requests for production of documents.” ECF
No. 34, PageID.303.
challenges Plaintiff's response to two interrogatories,
and four requests to produce documents. The Court will
examine each interrogatory in turn.
INTERROGATORY NO. 7
State the amount of consideration you received from each
other defendant in this action in consideration for the
settlement, release, or compromise of your claims against
Plaintiff objects to the request as calling for information
protected by Attorney-Client Privilege or the Work Product
Doctrine. Furthermore, the settlement [with] each
co-defendant precludes disclosure of this information as it
includes a confidentiality clause.
complaint, Plaintiff alleges both negligent and willful
noncompliance with the FCRA by MFCU. ECF No. 1, PageID.4-7.
In the case of negligent noncompliance, the FCRA allows
recovery of actual damages plus costs and fees. 15 U.S.C.
§ 1671o(a)(1); see also Boggio v. USAA Fed. Sav.
Bank, 696 F.3d 611, 615 (6th Cir. 2012). But where the
noncompliance is willful, the FCRA allows either actual
damages, or statutory damages in an amount more than $100 and
less than $1, 000, plus costs and fees. 15 U.S.C. §
1681n (a)(1)(A); see also Boggio, 696 F.3d at
a jury only finds negligent noncompliance by MFCU- thereby
limiting Plaintiff to recovery of actual damages only-there
is no right to contribution or indemnification under the
FCRA. Boatner v. Choicepoint Workplace Sols., Inc.,
No. CV 09-1502-MO, 2010 WL 1838727, at *2 (D. Or. May 6,
2010) (citing McSherry v. Capital One FSB, 236
F.R.D. 516, 520-21 (W.D. Wash. 2006); Kay v. First
Cont'l Trading, Inc., 966 F.Supp. 753, 754-56 (N.D.
Ill. 1997); Cintron v. Savit Enters., No.
07-cv-04389 (FLW), 2009 WL 971406, at *2-4 (D.N.J. Apr. 9,
2009)); see also Jansen v. Equifax Info. Servs.,
LLC, No. 05-CV-385-BR, 2010 WL 3075324, at *2 (D. Or.
Aug. 6, 2010).
there is no danger of double recovery by Plaintiff. For that
reason, the details of Plaintiff's settlement agreements
with other defendants are irrelevant. MFCU is entitled only
to discover “any nonprivileged matter that is relevant
to [their] claim or defenses and proportional to the needs of
the case…” Fed.R.Civ.P. 26(b)(1). Because this
material is not relevant to MFCU's claims or defenses, it
is not discoverable.
also advanced alternative arguments in support of its request
for this information. Counsel for MFCU argued at the hearing
that it is possible that the settlement agreements with other
defendant may have somehow inadvertently dismissed MFCU, in
which case MFCU should be entitled to know that Plaintiff
dismissed it from the case. Counsel argued that there is no
way to know whether MFCU was mistakenly (but somehow validly)
also dismissed from this action without seeing the settlement
agreements. This argument finds no firm footing in any law of
which the Court is aware.
further argued that the settlement agreements should be
discoverable for the purpose of identifying witness bias. The
argument here is that provisions in the agreements may bias
the testimony of key witnesses from the now-dismissed
defendants. Although it does not explicitly say so,
MFCU's argument may be suggesting the possibility that
the settlement agreements contain a so-called “Mary
Carter” provision. A “Mary Carter” agreement
is “an agreement limiting the liability of those
[settling] defendants to a sum certain, [and to] continue to
litigate the matter in order to thrust the lion's share
of liability on the non-agreeing defendants.” Leon
v. J & M Peppe Realty Corp., 190 A.D.2d 400, 414
(N.Y.App.Div. 1st Dep't 1993). There is some precedent
for disclosure of these types of agreements that create a
clear bias between defendants against one another. See
State Farm Mut. Auto. Ins. Co. v. Universal Health Grp.,
Inc., 325 F.R.D. 602, 607 (E.D. Mich. 2016), adopted,
No. 14-CV-10266, 2016 WL 6822014 (E.D. Mich. Nov. 18, 2016)
(citing Thomas & Marker Const. Co. v. Wal-Mart
Stores, Inc., No. 06- 406, 2008 WL 3200642, at *3 (S.D.
Ohio Aug. 6, 2008) (allowing disclosure of settlement
agreement because of possibility of witness bias); and
Gardiner v. Kelowna Flightcraft, Ltd., 10-947, 2011
WL 1990564, at *2 (S.D. Ohio May 23, 2011) (party requesting
disclosure of agreement that might contain a Mary Carter
provision had the right to determine “the practical and
legal effect of the agreement, ” which could then be
argued to the court for a final determination)). But when a
Mary Carter agreement exists, the settling defendants remain
in the litigation. ...