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Stolfat v. Equifax Information Services, LLC

United States District Court, S.D. Florida

August 12, 2019




         THIS 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 DE 39.

         I. Background

         Immediately 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.

         Thereafter, 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.

         II. The Subpoenas at Issue

         The 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.

         III. Motion, Response, and Reply

         In her 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.

         In 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.

         Attached 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.

         In 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.

         IV. Relevant Case Law

         "Rule 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, ...

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