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Thompson v. Equifax Information Services, LLC

United States District Court, E.D. Michigan, Southern Division

May 9, 2019




         I. Introduction

         The 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).

         As 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.

         II. Background

         The 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.

         MFCU 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.

         Plaintiff 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.

         III. Analysis

         MFCU challenges Plaintiff's response to two interrogatories, and four requests to produce documents. The Court will examine each interrogatory in turn.

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 that defendant.
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.

         In her 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 id.

         Even if 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).

         Accordingly, 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.

         MFCU 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.

         MFCU 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.[1] 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. ...

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