United States District Court, W.D. Kentucky, Louisville
ELLA J. FAUSZ, individually, and on behalf of a class of similarly situated persons PLAINTIFFS
NPAS, INC. DEFENDANT
Charles R. Simpson III, Senior Judge United States District
matter is before the Court on the partial objection of
Defendant NPAS, Inc. (NPAS) to the order of Magistrate Judge
Dave Whalin that was dated January 11, 2017 (“the
January 2017 order”), ECF No. 62. Plaintiff Ella J.
Fausz responded, ECF No. 74. NPAS did not reply. For the
reasons discussed below, the Court will overrule NPAS's
filed suit against NPAS in February 2015. Compl. 1, ECF No.
1. Fausz asserts that NPAS violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692, et
seq. by failing to provide required information in
correspondence that it sent to her. Id. ¶¶
explained by the magistrate judge in the January 2017 order,
Fausz served interrogatories and requests for production on
NPAS in April 2015. Order 1/13/2017 2, ECF No. 59. Two months
later, NPAS responded. Id. NPAS objected to seven of
Fausz's interrogatories and sixteen of her requests for
production of documents on the basis of relevance.
Id. NPAS objected to five of Fausz's
interrogatories and ten of her requests for production of
documents on the basis of privacy, confidentiality, and/or
trade secret protection. Id.
for both parties sought to resolve this discovery dispute
without the Court's intervention. Id. As a
result of counsels' discussions, NPAS agreed to provide
supplemental discovery responses. Id. But despite
NPAS's providing supplemental discovery responses, Fausz
maintained that the responses were still deficient.
Id. at 2-3. She thus filed a motion to compel.
Id. at 3.
magistrate judge addressed Fausz's motion to compel in
January 2016. Id. The magistrate judge determined
that Fausz was entitled to the majority of her requested
discovery, with some limitations. Id. The magistrate
judge accordingly ordered NPAS to produce (1) “FDCPA
compliance proceedings, manuals and policies, ” (2)
“any insurance agreement that might provide coverage to
NPAS should it be held liable for violation of the FDCPA,
” and (3) “the account records of the putative
class members . . . with the names of the members redacted
from the documents.” Order 1/5/2016 10, 14-16, 19, ECF
No. 19. Neither party filed an objection to the magistrate
judge's order addressing Fausz's motion to compel.
Order 1/13/2017 5, ECF No. 59. The magistrate judge presumed
that the discovery matter had been fully resolved.
the next several months, however, the parties filed a series
of motions to extend the deadlines to complete discovery.
Id. They disagreed regarding which documents NPAS
was required to produce. Id. at 5-7. As a result of
this ongoing discovery dispute, Fausz filed a motion for
sanctions, and NPAS filed a motion for a protective order.
Id. at 7.
to NPAS's partial objection is the portion of the January
2017 order addressing Fausz's motion for sanctions under
Federal Rule of Civil Procedure 37(b)(2)(A). The magistrate
judge explained that sanctions are imposed under Rule
37(b)(2)(A) to penalize parties for conduct warranting a
sanction and to deter those parties who would be tempted to
engage in such conduct in the absence of a detriment.
Id. at 20 (citing Roadway Express Inc. v.
Piper, 447 U.S. 752, 763-64 (1980)). The magistrate
judge noted that a district court, when considering whether
sanctions are appropriate, must “take into
consideration how the absence of the unproduced evidence
allegedly impaired the moving party's ability to
establish its case.” Id. at 21 (citing
Wilson v. Volkswagen of America, Inc., 561 F.3d 494,
504-05 (4th Cir. 1977)).
magistrate judge then determined that “it appear[ed]
that NPAS knowingly chose to construe the Court's
[January 2016] Order in such a fashion as to thwart the
efforts of [Fausz] to obtain information and documents
clearly relevant to her FDCPA claims.” Id. at
21. Notably, NPAS repeatedly asked Fausz's counsel to
explain which data items that she wanted, a task that was
impossible until it had acknowledged that there were 1, 118
types of such data. Id. The magistrate judge
This unfortunate scenario suggests to the Court that
sanctions are required. Its discovery production in the face
of the Court's Order was both belated and incomplete.
Only by adopting a strained and overly narrow interpretation
of the Order has NPAS been able to attempt to justify its
disclosure practices in the present case. The imposition of
sanctions under the circumstances is fully warranted.
Id. at 22. The magistrate judge accordingly (1)
ordered NPAS to pay the reasonable and necessary costs and
attorney fees incurred by Fausz in bringing her motion for
sanctions, (2) reopened discovery for ninety days to allow
Fausz to obtain complete discovery from NPAS, (3) required
NPAS to bear the cost of producing several types of data, and
(4) ordered NPAS to bear the cost of re-deposing any witness
that had been deposed by Fausz ...