United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION TO QUASH
SUBPOENAS [DE 47]
WILLIAM MATTHEWMAN UNITED STATES M AGISTRATE JUDGE.
CAUSE is before the Court upon Plaintiff, Jelena
Stolfat's ("Plaintiff) Motion to Quash Subpoenas
Served by Defendant TransUnion, LLC ("Motion") [DE
47]. This matter was referred to the undersigned by United
States District Judge William P. Dimitrouleas. See
after Plaintiffs Motion was filed on July 29, 2019, the Court
entered an Order [DE 48], requiring that the six subpoenaed
non-parties-Synchrony Bank, Comenity Capital Bank, Bank of
America, Citibank, N.A., Toyota Motor Credit Corporation, and
Midland Credit Management-refrain from producing any
documents in response to the subpoenas issued by Defendant in
this case until Plaintiffs Motion had been fully briefed and
the Court had had the opportunity to rule on the Motion. The
Court explicitly stayed any production pursuant to the
subpoenas pending further Court Order. Id. at p. 1.
The Court also required that, if Defendant or Defendant's
counsel received any documents responsive to the six
subpoenas, they refrain from reviewing the documents until
the Court entered a further Order on the matter. Id.
at pp. 1-2.
Defendant filed a Notice of Compliance [DE 49]. In that
Notice, Defendant explained that it had sent a copy of the
Court's July 29, 2019 Order to all of the non-parties
except for Toyota Motor Credit Corporation. Id. at
p. 1. Defendant explained that, prior to Plaintiff filing her
Motion, Defendant had received responsive documents from
Toyota Motor Credit Corporation. Id. Defendant
represented that, though its counsel had already briefly
glanced at those documents, Defendant would "refrain
from any further and detailed review of these documents
pending the Court's ruling on Plaintiffs Motion to
Quash." Id. at p. 2.
The Subpoenas at Issue
subpoenas issued by Defendant to Synchrony Bank, Comenity
Capital Bank, Bank of America, Citibank, N.A., Toyota Motor
Credit Corporation, and Midland Credit Management all request
all documents, all computer files, and all paper files
regarding Plaintiffs account with the various institutions.
[DE 47]. The information sought includes "credit
summaries, credit scores, interest rates, account histories,
credit or loan applications, account statements, loan
documents, promissory notes, extensions of credit, denials of
credit, increases or decreases of credit limit, changes of
interest rates, credit reports, contracts, agreements,
letters, correspondence, disputes", as well as other
related documents. Id.
Motion, Response, and Reply
Motion, Plaintiff asserts that the six subpoenas issued to
the non-parties seek irrelevant information and are solely
meant to harass Plaintiff. [DE 47, p. 1]. Plaintiff argues
that she has standing to challenge the subpoenas because the
subpoenas seek her private information. Id. at p. 2.
Next, Plaintiff appears to argue that the subpoenas are
overly broad. Id. at p. 4. She also contends that
the creditor records and financial records sought by
Defendant have no bearing on the lawsuit. Id.
According to Plaintiff, because the subpoenas seek only
irrelevant information, the subpoenas are an attempt by
Defendant to intimidate Plaintiff. Id. at p. 5.
Finally, Plaintiff seeks an award of sanctions pursuant to
section 57.105, Florida Statutes and requests that the Court
refer the matter to the Federal Trade Commission or require
Defendant to provide a "copy of Identity Theft Report
and/or Police Report." Id.
response, Defendant asserts that the subpoenas are relevant
because Plaintiff alleges in her Complaint that Defendant
violated the Fair Credit Reporting Act by placing an
erroneous Fraud Alert on her credit file. [DE 50, p. 3].
Defendant contends that Plaintiffs credit file contains, in
addition to the Fraud Alert, six derogatory accounts.
Id. According to Defendant, Plaintiff carries the
burden to prove "it was this allegedly inaccurate Fraud
Alert, and not the six (6) derogatory accounts, or other
adverse information, that was the cause of her alleged
damages." Id. Defendant is seeking the
subpoenaed information in order to rebut Plaintiffs
"argument the Fraud Alert was a 'substantial
factor' in her alleged damages." Id. at p.
4. Furthermore, Defendant asserts that Plaintiff put at issue
her accounts with Synchrony Bank and Midland Funding by
requesting information related to those entities in her
requests for production served on Defendant. Id.
Finally, Defendant maintains that Plaintiffs request for
sanctions must be denied because Plaintiff did not provide
Defendant with the 21-day safe harbor provision, as required.
Id. at pp. 4-5.
to Defendant's Response is the Declaration of Michael
Merar, Esq. [DE 50-1]. Mr. Merar represents Defendant in this
case, and he is the individual who directed that the
subpoenas be served on the six non-parties. Id. at
pp. 1-2. Mr. Merar avers that he received correspondence from
Plaintiff on July 22, 2019, which stated that Plaintiff would
not agree to the "accuracy of accounts and other
information appearing on her Trans Union credit file."
Id. at p. 2. Mr. Merar also states that Plaintiff
never properly conferred with him before filing her Motion
and that Plaintiff never gave him the opportunity to address
or cure her request for sanctions. Id.
reply, Plaintiff again asserts that she did not violate the
Court's Order Setting Discovery Procedure because she
emailed Defendant's counsel stating that she would be
filing a motion to quash soon, and Defendant's counsel
failed to reply to the email within seven days. [DE 51, pp.
1-2]. Plaintiff also argues that the subpoenas seek
information that is not relevant and that the only relevant
issues in this case are identity theft prevention, extended
fraud alerts, and active duty alerts. Id. at p. 2.
Finally, Plaintiff contends that Defendant objected to the
requests for production involving Synchrony Bank and Midland
Funding that she propounded to Defendant in part on relevance
grounds, so Defendant cannot now claim the information is, in
fact, relevant. Id. at pp. 4-5.
Relevant Case Law
45 subpoenas are subject to the same relevancy test imposed
on discovery demands made pursuant to Rule 26."
Malhomme v. Benet, No. 16-81989-CIV, 2017 WL
7794293, at *1 (S.D. Fla. Apr. 13, 2017) (citing Liles v.
Stuart Weitzman, LLC, No. 09-cv-61448, 2010 WL 1839229,
at *2 (S.D. Fla. May 6, 2010)). Rule 26(b)(1) of the Federal
Rules of Civil Procedure defines the scope of discovery as
"any non-privileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case," considering the importance of the issues at
stake, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery, and whether the burden of the discovery
outweighs the likely benefit. It is well established that the
courts must employ a liberal standard in keeping with the
purpose of the discovery rules. Fed.R.Civ.P. 26(b)(1).
However, Rule 26(b) allows discovery "through increased
reliance on the commonsense concept of proportionality."
In re: Takata Airbag Prod. Liab. Litig.,
15-2599-MD-Moreno, 2016 WL 1460143, at *2 (S.D. Fla. Mar. 1,
2016) (quoting Chief Justice John Roberts, 2075 Year-End
Report on the Federal Judiciary 6(2015)); Reuter v.
Physicians Cas. Risk Retention Group, No. 16-80581-CV,