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Clayton v. TRI City Acceptance, Inc.

United States District Court, W.D. Kentucky, Louisville Division

November 6, 2019




         Judge David J. Hale referred this matter to Magistrate Judge Lanny King for resolution of all litigation planning issues, entry of scheduling orders, consideration of amendments thereto, and resolution of all non-dispositive matters, including discovery issues. (Docket # 4).

         On September 16, 2019, Judge King conducted a telephonic status conference in this case regarding multiple discovery disputes. (Docket # 43). On September 20, 2019, Plaintiff Christopher Clayton filed a Motion to Compel Production of November 9, 2017 Email. (Docket # 45). Defendants Tri City Acceptance and Betty Byrd filed a Response on October 4, 2019. (Docket # 47). Fully briefed, this matter is now ripe for adjudication.

         For the reasons discussed below, the Motion to Compel (Docket # 45) is DENIED.


         This matter arises out of a suit, filed originally by Plaintiff Clayton in Jefferson County Circuit Court, and later removed to this Court. Plaintiff alleges Defendants Tri City and Byrd “unreasonably intruded upon [his] privacy and seclusion” when they “divulge[ed] [his] private financial and credit information to third[]parties . . . and the public at large [] by providing a copy of [his] Trans Union report during [Byrd's] deposition and testifying about the contents of the credit report on the record.” (Docket # 7 at 3). He further alleges that Defendants obtained and used the report without a permissible purpose with a willful, or at least negligent, state of mind, creating noncompliance with the FRCA, 15 U.S.C. §§ 1681b, 1681n, and 1681o. (Id., at 4-5).

         On August 26, 2019, Defendant Byrd was deposed by Plaintiff. (Docket # 45 at 2). At this deposition, Byrd was questioned regarding her reasons for pulling Plaintiff's credit report. (Id.; Docket # 47 at 3). The disagreements begin here. Plaintiff alleges that Byrd testified that she pulled the credit report “following the ‘instructions' of Allan Cobb, an attorney for Turner, Coombs & Malone”[1] and that “she learned of Mr. Cobb's request through Jason Hardin.” (Docket # 45 at 2). Defendants allege that Plaintiff has engaged in “cherry-picking” of the deposition testimony, and that Byrd's reasons for pulling the credit report were threefold: (1) she was noticed for a deposition and threatened with a subpoena for the credit report in the underlying litigation; (2) she was curious as to why she was being called as a witness in the underlying litigation; and (3) she wanted to be prepared for her testimony. (Docket # 47 at 2-4; Docket # 47-1 at 2; Docket # 47-2).

         Following the deposition, Plaintiff requested a copy of an email from November 7, 2017[2]sent by Hardin to Byrd. (Docket # 45 at 3). Plaintiff believes this email from Hardin contained “instruction to pull [Plaintiff's] credit report.” (Id. at 2). Plaintiff cites Byrd's deposition for support. Additionally, Plaintiff states that “On or about November 7, 2017, at 12:41 p.m., Ms. Byrd created an entry in the collection notes system that she received an email form Jason Hardin inquiring about Mr. Clayton's credit report. She pulled Mr. Clayton's Trans Union credit report that day.” (Docket # 45 at 2). However, there is some discrepancy in Plaintiff's recitation of facts as to when Byrd purportedly pulled the report, with mentions being made of both November 7, 2017 and November 9, 2017. (See Id. n.3). Plaintiff does note that he has “a good faith belief that Mr. Hardin emailed the instruction to pull his credit report to Ms. Byrd.” (Docket # 45 at 2).

         Legal Standard

         Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ….” Fed.R.Civ.P. 26(b)(1). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense. Albritton v. CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky. June 28, 2016) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted)). However, the scope of discovery is not unlimited. “On motion or on its own, the court must limit the frequency or extent of discovery … if it determines that … the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.” Id. (quoting Fed. R. Civ. P. 26(b)(2)(C)(iii)). The determination of “the scope of discovery is within the sound discretion of the trial court.” Cooper v. Bower, No. 5:15-CV-249-TBR, 2018 WL 663002, at *1 (W.D. Ky. Jan. 29, 2018), reconsideration denied, 2018 WL 1456940 (W.D. Ky. Mar. 22, 2018) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).

         Privileged documents fall outside of the scope of discovery. Fed.R.Civ.P. 26(b)(1). The burden of establishing that a privilege exists to shield a document from discovery rests on the party asserting the privilege. Cardinal Aluminum Co. v. Continental Casualty Co., No. 3:14-CV-857-TBR-LLK, 2015 WL 4483991, at *2 (W.D. Ky. July 22, 2015). Here, Defendants bear that burden. In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983).

         Plaintiff pled claims under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681b, 1681n, and 1681o. (Docket # 1-2 at 5-6), which are the only surviving claims in this action. (See Docket # 13). Since these claims are grounded in federal law, the Court will apply federal common law in reviewing the applicability of the privilege. Fed.R.Evid. 501; Swidler & Berlin v. United States, 524 U.S. 377, 403 (1998)

         The attorney-client privilege serves to protect from disclosure “confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client. Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005) (quoting In re Grand Jury Subpoena (United States v. Doe), 886 F.2d 135, 137 (6th Cir. 1989) (additional citations omitted)). Claims of attorney-client privilege are “narrowly construed because [the privilege] reduces the amount of information discoverable during a lawsuit. Tenn. Laborers Health ...

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