United States District Court, W.D. Kentucky, Louisville Division
OPINION AND ORDER
KING, MAGISTRATE 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).
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
reasons discussed below, the Motion to Compel (Docket # 45)
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 thirdparties . . . 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).
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” 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).
the deposition, Plaintiff requested a copy of an email from
November 7, 2017sent 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).
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)).
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.
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)
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