Bailey v. Trans Union LLC
Bailey v. Trans Union LLC
2020 WL 10056271 (N.D. Ga. 2020)
December 16, 2020
Larkins III, John K., United States Magistrate Judge
Summary
The court denied Trans Union's motion to compel Mr. Bailey to produce documents in response to Requests for Production 11, 27, and 29. The court also overruled Mr. Bailey's objections to the requests for production, including requests for credit card statements, credit agreements, contracts, correspondence, disputes, complaints, notes, fraud statements, notices, and other documents. The court did not make any specific rulings regarding ESI, but noted that documents attached to Mr. Bailey's responses to Trans Union's discovery requests were not responsive to the request.
BATASKI BAILEY, Plaintiff,
v.
TRANS UNION LLC, Defendant
v.
TRANS UNION LLC, Defendant
CIVIL ACTION FILE NO. 1:20-cv-173-AT-JKL
United States District Court, N.D. Georgia, Atlanta Division
Filed December 16, 2020
Counsel
Bataski Bailey, Atlanta, GA, Pro Se.Marc F. Kirkland, Michael Adam Merar, Quilling, Selander, Lownds, Winslett & Moser, P.C., Plano, TX, Alex Michael Barfield, Stanton Law, LLC, Atlanta, GA, for Defendant.
Larkins III, John K., United States Magistrate Judge
ORDER
*1 This is a consumer case arising under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq. The case is before the Court on dueling motions to compel responses to written discovery filed by Plaintiff Bataski Bailey, who is proceeding pro se, and Defendant Trans Union, LLC (“Trans Union”). [Docs. 61, 64.] Trans Union has filed a response in opposition to Mr. Bailey's motion. [Doc. 69.] Mr. Bailey, meanwhile, has not responded Trans Union's motion or filed a reply in support of his motion, and the time to do so has now passed. For the reasons set forth below, Trans Union's motion is GRANTED IN PART AND DENIED IN PART, and Mr. Bailey's motion is DENIED.
I. BACKGROUND
A. Mr. Bailey's Allegations
Mr. Bailey's claims in this case arise out of the alleged inaccurate reporting of accounts he had with Georgia's Own Credit Union (“Georgia's Own”) and American Express Company (“American Express”). In his complaint, Mr. Bailey alleges that on or about January 10, 2019, he requested his consumer reports from the three major consumer reporting agencies (Trans Union, Equifax, and Experian), wherein he discovered alleged inaccuracies. [Doc. 1 ¶ 8.] The following day, he contacted Georgia's Own to dispute its reporting of a late payment of a loan for the month of November 2018. [Id. ¶ 9.] He also disputed the late payment with each of the three credit reporting agencies, and each responded that the information was accurate. [Id. ¶¶ 10-11.] Mr. Bailey later re-contacted the credit reporting agencies to request a reinvestigation of the Georgia's Own account, and following a reinvestigation, all three reporting agencies verified the information as accurate. [Id. ¶¶ 12, 15.] On August 1, 2019, Mr. Bailey again informed Georgia's Own that it was still reporting inaccurate information to the consumer credit reporting agencies and that there were now two late payments being reported—the second of which was a late payment in May 2019. [Id. ¶ 16.]
In April 2019, Mr. Bailey contacted American Express and reported that he had not received his statement for the prior month. [Doc. 1 ¶ 18.] He allegedly made a payment; however, he continued not to receive monthly statements from American Express. [Id.] In May 2019, Mr. Bailey again contacted American Express to report that he had not received a monthly statement for two consecutive months and was told that American Express would investigate the matter and contact him. [Id. ¶ 20.] According to the complaint, no one from American Express ever contacted Mr. Bailey, and he received no monthly statement for five months, despite making repeated phone calls in attempts to resolve the issue. [Id. ¶ 21.] Mr. Bailey continued to make payments based on “what he believed was due.” [Id. ¶ 22.] Mr. Bailey then became aware that American Express was inaccurately reporting late payments. [Id. ¶ 23.] In early August 2019, Mr. Bailey disputed, with each of the credit reporting agencies, three late payment entries on his credit report in connection with the American Express account. [Id. ¶ 24.] Those late payments were missed during the time period in which Mr. Bailey was not receiving his statements. [Id.] As part of the dispute with American Express, Mr. Bailey provided Trans Union with documentation showing that he had made his payments. [Id. ¶ 25.] Each of the credit reporting agencies reported that American Express had verified the information as accurate. [Id. ¶ 26.] Mr. Bailey then requested a reinvestigation from the three credit reporting agencies, each of which again verified the information as accurate. [Id. ¶ 27.]
*2 At the end of September 2019, Mr. Bailey started receiving collection calls from Nationwide Credit, Inc. (“Nationwide Credit”), which was collecting a debt on behalf of American Express. [Doc. 1 ¶ 28.] Approximately a month later, Nationwide Credit notified Mr. Bailey that his wages would be garnished if he did not pay the debt. [Id. ¶ 30.] Mr. Bailey sent a request to Nationwide Credit seeking validation of the debt and any supporting information regarding the debt, including documents showing its authority to act on collecting the debt. [Id. ¶ 31.] Nationwide Credit did not provide the requested information. [Id. ¶ 32.] On October 24, 2019, Nationwide Credit indicated to Mr. Bailey that it was reporting his account to the three credit reporting agencies and that Mr. Bailey would need to pay immediately to avoid any additional collection actions. [Id. ¶ 33.] Mr. Bailey has continued to dispute the debts with Nationwide Credit, American Express, and Trans Union to no avail. [Id.]
Mr. Bailey asserts that on several occasions he notified Trans Union about the allegedly inaccurate information provided by Georgia's Own and American Express, and despite his numerous requests for investigation and reinvestigation and providing supporting information to show the inaccuracy of the reported delinquent accounts, Trans Union has continued to “validate this inaccurate information.” [Doc. 1 ¶ 34.]
On January 13, 2020, Mr. Bailey filed this action against Georgia's Own, American Express, Nationwide Credit, and Trans Union. [Doc. 1 at 1-2.] Since then, Mr. Bailey has resolved and dismissed his claims against Georgia's Own [Doc. 22], American Express [Doc. 7], and Nationwide Credit [Doc. 65]. His only remaining claims are against Trans Union for violations of the FCRA (Count X) and an intentional infliction of emotional distress claim arising under state law (Count XI). [Doc. 1 ¶¶ 65-69.]
B. Procedural History
On April 20, 2020, Trans Union served its Requests for Admission, Interrogatories, and First Requests for Production [Doc. 28; see also Doc. 64-3 (Trans Union's “First Requests for Admission to Plaintiff”); 64-4 (Trans Union's “First Set of Interrogatories of Plaintiff”); 64-5 (Trans Union's “First Request for Production of Documents of Plaintiff”).] On June 1, Mr. Bailey served his objections and responses to those discovery requests and produced two documents. [Doc. 64-6.] Meanwhile, on May 15, 2020, Mr. Bailey served his First Interrogatories and Request for Production of Documents on Trans Union [Doc. 36; see also Doc. 61-1 (Mr. Bailey's responses and objections], and on June 12, Trans Union served its objections and responses [Doc. 42; see also Doc. 61-2 (Trans Union's responses and objections).]
On June 17, Mr. Bailey and counsel for Trans Union conferred via telephone regarding Mr. Bailey's responses to Trans Union's discovery requests, and after the conference, counsel for Trans Union sent an email to Mr. Bailey summarizing their conversation and identifying the areas where, in Trans Union's view, Mr. Bailey needed to supplement his responses or production of documents. [Doc. 64-2 at ¶¶ 7, 8; Doc. 64-7.] The case was then stayed from July 1, 2020 to August 17, 2020 because Mr. Bailey tested positive for COVID-19. [Doc. 48.]
On August 31, 2020, Mr. Bailey filed motions to compel against Trans Union and Nationwide.[1] [Docs. 52, 53.] The Court denied the motions without prejudice because Mr. Bailey did not obtain leave of court before filing motions to compel. [Doc. 55.] The Court scheduled a discovery hearing and directed the parties to email written summaries of their issues prior to the hearing. [Id.] After receiving the parties' submissions, the Court determined that due to the intractability of the parties and the expanding scope of discovery issues, a discovery hearing would be unproductive and, thus, permitted the parties to file motions to compel. [Doc. 59.] Both Mr. Bailey and Trans Union then filed motions to compel, after which Mr. Bailey and Trans Union engaged in another meet-and-confer, and Trans Union served its supplemental objections and responses to Mr. Bailey's Interrogatories and Requests for Production. [Doc. 68.] The motions are now ripe for resolution.
II. Mr. Bailey's Motion to Compel
*3 In Mr. Bailey's motion, he asks the Court to order Trans Union to supplement its responses to Interrogatories 2, 3, and 4, and Request for Production 1. [Doc. 61 at 3-10.] The Court first addresses Interrogatory 2, followed by Interrogatories 3 and 4, and finally Request for Production 1.
A. Bailey Interrogatory 2
Mr. Bailey's Interrogatory 2 and Trans Union's response read as follows:
INTERROGATORY NO. 2: Please identify all employees of Trans Union with knowledge of the Plaintiff's account and any complaints the Plaintiff filed at any time since January 1, 2013. Please include any person that has accessed the plaintiff's credit file during this period. Identify each employee by job title, primary job location, and provide a brief job description.
ANSWER: Trans Union refers Plaintiff to its documents produced and labeled TU 1 – TU 33, where the answer to this Interrogatory may be ascertained and the burden on Plaintiff to ascertain the answer is substantially the same as it is on Trans Union. Trans Union further refers Plaintiff to its Answer to Interrogatory No. 1.
Trans Union has limited its response to this Interrogatory as provided above. Trans Union objects to providing a more detailed answer on the grounds that requiring Trans Union to identify each person who has knowledge of any fact related to the “Plaintiff's account and any complaints the Plaintiff filed at any time since January 1, 2013” is impractical, if not impossible. Such a request would impose undue burden and expense on Trans Union. FED. R. CIV. P. 26(c)(1). Trans Union has hundreds of employees involved in its various operations. As worded, this Interrogatory would require the identification of each such employee, even though they have no specific connection to this case. The burden, time, and expense required to assemble such information outweighs whatever relevance, benefit, and/or probative value it may have. Further, this Interrogatory is not limited to information that is relevant to this case and is not proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). Finally, Trans Union objects to this Interrogatory to the extent that it is unreasonably cumulative or duplicative of information provided in Trans Union's initial disclosures. FED. R. CIV. P. 26(b)(2)(C), c(1).
[Doc. 61-2 at 10-11.]
Mr. Bailey argues that Trans Union's response is deficient because the information sought in this interrogatory is readily accessible to Trans Union and is relevant because he “is entitled to depose individuals who have made entries on his credit report to determine the accuracy of the information and/or question these individuals about the processes they use when access[ing] and altering information in [his] credit file.” [Doc. 61 at 8-9.] Trans Union responds that this interrogatory is overbroad and seeks information that has no bearing on the claims and defenses in this case because it requests personal identifying information of any Trans Union employees who in any way accessed Mr. Bailey's Trans Union credit file since 2013, despite the fact that Mr. Bailey's complaint stems from purported inaccuracies dating back to only January 2019. [Doc. 69 at 10.] Trans Union also asserts that it has already provided the relevant, responsive information in its possession via its initial disclosures and discovery responses “related to Plaintiff's Georgia's Own and American Express accounts, during the relevant time period ... including, as requested, the identity, job title, and contact information of the employees who accessed Plaintiff's Trans Union credit file.” [Id.] As noted, Mr. Bailey has not replied to or otherwise disputed Trans Union's assertions that it has provided the foregoing information.
*4 The Court agrees with Trans Union that Interrogatory 2 is facially overbroad and sustains Trans Union's objections. Moreover, Mr. Bailey does not challenge Trans Union's response that it has, in fact, produced a subset of the requested information that is relevant to the time period in this case. Therefore, the Court DENIES Mr. Bailey's motion as it relates to Interrogatory 2.
B. Bailey Interrogatories 3 and 4
Mr. Bailey's Interrogatories 3 and 4 overlap, so the Court addresses them together.
INTERROGATORY NO. 3: State whether you have been the subject of any complaints from other consumers regarding Fair Credit Reporting Act violations, or any related complaints. List all investigations subject, date, and disposition.
ANSWER: Trans Union objects to this Interrogatory as the information sought is not relevant to the claims and defenses in this case and not proportional to the needs of this case because complaints Trans Union ha[s] received from other consumers have no bearing on this case, the data contained in Plaintiff's Trans Union credit file, or Trans Union's processing of Plaintiff's dispute(s). FED. R. CIV. P. 26(b)(1). Trans Union further objects that the burden to respond outweighs, and is not proportional to, the needs of this case. FED. R. CIV. P. 26(b)(1). Trans Union objects to this Interrogatory on the grounds that “complaints” is undefined, ambiguous, and Trans Union is left to guess as to its meaning. Trans Union cannot determine what Plaintiff would deem to be in compliance with this Interrogatory. Further, requiring Trans Union to retrieve, review, and identify “the subject of any complaints from other consumers regarding Fair Credit Reporting Act violations, or any related complaints” and “[l]ist all investigations subject, date, and disposition” would impose undue burdens and costs on Trans Union, overwhelm Trans Union's resources, and far outweigh any likely benefit. FED. R. CIV. P. 26(c)(1).
INTERROGATORY NO. 4: State whether you have been the subject of any lawsuits in local and/or State and/or Federal jurisdictions regarding Fair Credit Reporting Act violations, or any disputes arising from such alleged violations. Please provide docket number, Court name and/or jurisdiction, Opposing party, and disposition.
ANSWER: Trans Union objects to this Interrogatory as the information sought is not relevant to the claims and defenses in this case and not proportional to the needs of this case because other lawsuits Trans Union has or may be involved in have no bearing on this case, the data contained in Plaintiff's Trans Union credit file, or Trans Union's processing of Plaintiff's disputes. FED. R. CIV. P. 26(b)(1). Trans Union further objects that the burden to respond outweighs, and is not proportional to, the needs of this case. FED. R. CIV. P. 26(b)(1). Trans Union has been named a party in hundreds of lawsuits throughout the country and requiring Trans Union to identify all lawsuits would encompass voluminous information, which has nothing to do with the issues in this case or the claims made by Plaintiff. Further, requiring Trans Union to retrieve, review, and identify “the subject of any lawsuits in local and/or State and/or Federal jurisdictions regarding Fair Credit Reporting Act violations, or any disputes arising from such alleged violations” would impose undue burdens and costs on Trans Union, overwhelm Trans Union's resources, and far outweigh any likely benefit. FED. R. CIV. P. 26(c)(1). Lastly, Trans Union objects to this Interrogatory to the extent it seeks information that is equally available to Plaintiff through public records. FED. R. CIV. P. 26(b)(2)(C), (c)(1).
*5 [Doc. 61-2 at 11-13.]
Mr. Bailey argues that the responses to Interrogatories 3 and 4 would demonstrate that Trans Union “was placed on notice in prior actions that its processes were deficient and otherwise unreasonable in ensuring maximum accuracy as required by the FCRA.” [Doc. 61 at 5, 7.] Trans Union responds that both of these interrogatories seek information that is irrelevant to this case because another consumer's complaint or lawsuit has no bearing as to whether Trans Union acted in compliance with the FCRA as it pertains to Mr. Bailey's credit file, responding would be overly burdensome (and indeed, Mr. Bailey is positioned to access much of the information from court dockets himself), and the complaints themselves are likely unsworn hearsay that do not alone establish any actual violation of the statute. [Doc. 69 at 12-13, 16.] Trans Union points out that other courts have consistently denied requests for discovery pertaining to prior lawsuits. [Id. at 13-15 (collecting cases).]
The Court agrees that Interrogatories 3 and 4 are impermissibly overbroad and seek information that is largely irrelevant and unlikely to lead to the discovery of admissible evidence. Under Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery “that is relevant to any party's claim or defense and proportional to the needs of this case ....” (emphasis added). Here, not only is the information that Mr. Bailey seeks irrelevant to the merit of his claims, but to require Trans Union to list every complaint or every lawsuit it has been subject or party to exceeds the scope of what is required for Mr. Bailey to prove his case. Moreover, Trans Union's position is bolstered by case law. For instance, in Mattingly v. Credit Management, LP, which Trans Union cites in its brief, the plaintiff sought an order compelling Experian to produce copies of all complaints from any litigation filed against Experian in the previous seven years. No. CIVA0500080RPMMJW, 2005 WL 3271683, at *1 (D. Colo. June 7, 2005). Experian objected that the complaints in other cases by non-parties were irrelevant to the plaintiff's claims and not within the scope of discovery under Rule 26(b)(1), and that the burden imposed by the discovery request outweighed any benefit. Id. The court agreed with Experian and found that the unrelated complaints were both irrelevant and substantially burdensome. Id. The Mattingly court's reasoning applies equally here. Accordingly, the Court DENIES Mr. Bailey's motion to compel responses to Interrogatories 3 and 4.
C. Bailey Request for Production 1
REQUEST FOR PRODUCTION NO. 1: All documents identified in response to Plaintiff's First Interrogatories to Defendant[ ].
RESPONSE: Trans Union refers Plaintiff to Trans Union's documents produced and labeled TU 1 – TU 33.
Trans Union has limited its search to consumer relations documents related to the alleged account and inquiries identified in Plaintiff's Complaint, as well as during the relevant time period and subject matter as alleged in Plaintiff's Complaint and relevant to Trans Union's defenses. Trans Union objects to this Request on the grounds that “[a]ll documents” is overly broad and fails to identify the documents sought with sufficient particularity. FED. R. CIV. P. 34(b)(l)(A). Further, the discovery sought is unreasonably cumulative or duplicative. FED. R. CIV. P. 26(b)(2)(C), (c)(l). Trans Union further objects to providing information that constitutes confidential, proprietary, and trade secret information of Trans Union. FED. R. CIV. P[.] 26(c). Furthermore, Trans Union objects to this Request on the grounds that “[a]ll documents” without any limitation on time or subject matter, would include documents and information protected by the attorney-client and work product privileges. FED. R. CIV. P. 26(b); FED. R. EVID. 502.
*6 [Doc. 61-2 at 20-21.]
Mr. Bailey offers the same arguments in favor of compelling production of these documents as he does for Interrogatory 2. He again contends that he “is entitled to depose individuals who have made entries on this credit report to determine the accuracy of the information and/or question these individuals about the processes they use when access[ing] and altering information in the plaintiff's credit file.” [Doc. 61 at 8-9.] He argues that “[t]he defendants have refused to provide a detailed transaction history of the plaintiff's credit file showing all accounts added, deleted, or altered during the relevant timeframe as outlined in plaintiff's complaint for damages.” [Id. at 9.] Moreover, he argues that “the defendants have the ability to access and provide with great ease the information requested,” and that they can “identify each person through their unique employee identification number including who, when, and what activity transpired during their access to the plaintiff's credit file.” [Id. at 8.]
In response, Trans Union notes that “Plaintiff does not explicitly identify any interrogatory in response to which documents were references but not produced.” [Doc. 69 at 7.] It also highlights that Mr. Bailey is already in possession of the documents sought and though Trans Union identified only TU 1 – TU 33 in its answers to Mr. Bailey's Interrogatories, it supplemented its document production to include TU 34 – TU 46 to address any lingering concerns and “ensure any document conceivably referenced was produced, however remote or tangential.” [Id. at 7.] Trans Union also clarified that it is not withholding any responsive documents.
It is not clear which documents Mr. Bailey believes Trans Union withheld from production, and again, Mr. Bailey has not filed a reply to identify the documents to which he believes he is entitled but has not received. Trans Union has represented to the Court that it has produced the documents requested in Request for Production 1 and also supplemented its original production. Mr. Bailey does not challenge this assertion. It appears that there are no additional documents to be produced, and, thus, the Court DENIES Mr. Bailey's motion to the extent that he seeks to compel the production of additional documents in response to Request for Production 1.[2]
Based upon the foregoing reasons, then, Mr. Bailey's motion to compel is DENIED.
III. Trans Union's Motion to Compel
In Trans Union's motion to compel, it asks the Court to order Mr. Bailey to supplement his responses to its Interrogatories 3, 8, 15, 16, and 17 and produce documents responsive to Requests for Production 11, 27, and 29. [Doc. 64-1 at 9-17.] It also asks the Court to overrule his global attorney-client and work product objections to its Requests for Admissions. [Id. at 17-18.]
A. Trans Union Interrogatories 3, 8, and 15-17
*7 INTERROGATORY NO. 3: If Plaintiff contends that Trans Union reported inaccurate information regarding Plaintiff, identify and describe the Person or Entity to whom Trans Union reported such information, the dates on which such information was reported, and what was inaccurate about the information.
RESPONSE: The Plaintiff objects to this interrogatory as it seeks information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff. Pantzalas v. Super. Ct., 272 Cal. App. 2d 499, 503, 77 Cal. Rptr 354 (Cal. App. 2D 1969); but see F.D.I.C. v. Red Hot Comer, LLC, No. 2:11-CV-01283-GMN, 2013 WL 1758759, at *2 (D. Nev. Apr. 23, 2013). In fact, the Plaintiff believes the Defendants have access to this and other information in which the Plaintiff does not have access to due to the Defendants intentionally limiting the Plaintiff's access to his credit file. As such the Plaintiff can not fully respond to this interrogatory. The plaintiff also contends defendant Trans Union transmitted inaccurate information to each of the people or entities it provided any information at the request of the plaintiff. The plaintiff also contends inaccurate information was transmitted by defendant Trans Union in instances where the plaintiff did not authorize the transmittal of his information. The extent of these transmittals are unknown as defendant Trans Union has not been completely forthcoming with what information was provided and to whom. This information would be in the possession of defendant Trans Union and is being requested via Requests for Production in order to determine with conclusiveness what information was transmitted and to whom. Subject to his objections and without waiving the same the Plaintiff states each entity or persons can not be fully known until the completion of discovery as the defendant is the sole entity to have to sum total of each person or entity the plaintiffs information was shared with. The defendants have also blocked the plaintiff from accessing his credit file to determine each entity to which this inaccurate information has been shared. The plaintiff however believes the Defendants shared with each entity who requested his file inaccuracies including late payments from both his American Express account and his Georgia's Own account.
[Doc. 64-6 at 10-11.]
INTERROGATORY NO. 8: State all of the facts, describe all relevant action or inaction on the part of Trans Union, and relate the substance of any statement made by Trans Union or any of its employees on which You rely in support of Your allegations that Trans Union violated the Fair Credit Reporting Act.
RESPONSE: The Plaintiff objects to this interrogatory as it seeks information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff. Pantzalas v. Super. Ct., 272 Cal. App. 2d 499, 503, 77 Cal. Rptr 354 (Cal. App. 2D 1969); but see F.D.I.C. v. Red Hot Comer, LLC, No. 2:11-CV-01283-GMN, 2013 WL 1758759, at *2 (D. Nev. Apr. 23, 2013). The Plaintiff also objects to this interrogatory as it invades Plaintiffs work product privilege in that it seeks to obtain information through counsel's (in this case the pro se litigant) mental impressions, conclusions, opinions or legal theories. U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:ll-CV-01588-LRH, 2014 WL 4987418, at *4 (D. Nev. Oct. 6, 2014); Rumac, Inc. v. Bottomley, 143 Cal. App. 3d 810, 812, 192 Cal. Rptr. 104 (Cal. App. 4th 1983). The plaintiff has outlined in his complaint the causes for action which the Defendant seeks in this interrogatory.
*8 [Doc. 64-1 at 12-13]
INTERROGATORY NO. 15: Identify and describe in detail Your relationship to, use of, and payment for the Georgia's Own and American Express accounts in question.
RESPONSE: Plaintiff objects to this interrogatory as overly broad and burdensome. Discovery is sufficiently limited and specific in its directive where compliance to its terms would not be unreasonably burdensome. Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (citing United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976)); CBS v. Super. Ct., 263 Cal. App. 2d 12, 19, 69 Cal. Rptr. 348, 352 (Cal. App. 2D 1968).
INTERROGATORY NO. 16: Identify and describe in detail each contact or communication You have had with Georgia's Own and American Express or any other Person or Entity regarding the accounts which made the basis of Your claims.
RESPONSE: Plaintiff objects to this interrogatory as overly broad and burdensome. Discovery is sufficiently limited and specific in its directive where compliance to its terms would not be unreasonably burdensome. Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (citing United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976)); CBS v. Super. Ct., 263 Cal. App. 2d 12, 19, 69 Cal. Rptr. 348, 352 (Cal. App. 2D 1968).
INTERROGATORY NO. 17: Identify and describe each method of payment used by You to pay the Georgia's Own and American Express accounts in question, including the name of the bank or account issuer used to make the payment, account number, and the dates on which payments were made to Georgia's Own and American Express using each such method of payment.
RESPONSE: Plaintiff objects to this interrogatory as overly broad and burdensome. Discovery is sufficiently limited and specific in its directive where compliance to its terms would not be unreasonably burdensome. Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (citing United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976)); CBS v. Super. Ct., 263 Cal. App. 2d 12, 19, 69 Cal. Rptr. 348, 352 (Cal. App. 2D 1968).
[Doc. 64-6 at 21-22.]
Trans Union argues, as a general matter, that Mr. Bailey's responses to these interrogatories “do not reasonably or substantively answer the question posed in the Interrogatory, to which Trans Union is entitled in its defense of this case.” [Doc. 64-1 at 13.] It asserts that Mr. Bailey should be compelled to provide substantive responses to Interrogatories 3 and 8 because it needs to know (1) to whom Mr. Bailey alleges it reported inaccurate information in order to assess his § 1681e(b) claim and (2) the facts Mr. Bailey relies on to support his claim that Trans Union has violated the FCRA. [Doc. 64-1 at 13.] Trans Union also argues that Mr. Bailey's objections to Interrogatories 15-17 lack merit because those interrogatories seek information relevant to the specific claims in this case, namely, (1) Mr. Bailey's use and payment of Georgia's Own and American Express accounts; (2) Mr. Bailey's communications with Georgia's Own and American Express; and (3) the method of payment Mr. Bailey employed for those accounts. [Doc. 64-1 at 13.] Trans Union further argues that Mr. Bailey has failed to explain how or why the interrogatories are overly broad or burdensome. [Id. at 14.]
*9 As noted above, Mr. Bailey has not responded to Trans Union's motion, and, thus, he has offered no opposition to the motion much less attempted to justify his objections. But considering the merits of Trans Union's arguments, the Court readily concludes that Mr. Bailey's responses are inadequate. Starting with Interrogatory No. 3, his actual response is difficult if not impossible to ascertain—he objects to providing information in response to this interrogatory on the ground that the information is available to all parties equally, and yet, paradoxically, he seems to also state that he has no information responsive to this interrogatory. Mr. Bailey needs to be clear. If he knows the identity of any person or entity to whom Trans Union reported inaccurate information, when that occurred, and/or what was inaccurate about it, then he needs to say so. If he does not know that information, then he should say that. Accordingly, Mr. Bailey's objections to Interrogatory 3 are OVERRULED.
Mr. Bailey's response to Interrogatory 8 is also deficient. First, like Interrogatory 3, his objection that the interrogatory seeks information that is available equally to all parties is not an appropriate objection, since Trans Union is entitled to know the facts upon which he bases his claims (or, at a minimum, that he has no information to support his claims).
Second, his objection on the basis of the work product doctrine is without merit. As this Court explained to Mr. Bailey in Bailey II, Dkt. 95 at 28-31, the work product doctrine protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). Work product can be reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” Johnson v. Gross, 611 F. App'x 544, 547 (11th Cir. 2015) (per curiam) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)) (quotation marks and alteration omitted). The party invoking the work product doctrine bears the initial burden of showing that the material or information it has withheld was in fact prepared in anticipation of litigation. Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684 (N.D. Ga. 2012) (Totenberg, J.). There is authority that a pro se litigant can assert the work product doctrine as to things like notes prepared in anticipation of litigation that reveal his mental impressions and/or legal strategies. See, e.g., Yates v. Cobb Cnty. Sch. Dist., No. 1:15-CV-3211-SCJ, 2016 WL 9444452, at *2 (N.D. Ga. Aug. 4, 2016) (collecting cases); Curry v. HSBC N. Am. Holdings, Inc., No. 8:14-CV-2420-T-30JSS, 2015 WL 12843842, at *5 (M.D. Fla. Sept. 24, 2015) (collecting cases). But the Court does not read this interrogatory as calling for Mr. Bailey to reveal such information. And even if it could be read to somehow implicate the work product doctrine, Mr. Bailey has not shown how any information in his possession qualifies as work product; thus, he has not met his burden to show that the doctrine allows him to refuse to answer this interrogatory.
Finally, the information that Mr. Bailey does provide in response to Interrogatory 8—in which he simply refers Trans Union to the allegations in his complaint—is inadequate. Indeed, in Bailey II, this Court admonished Mr. Bailey for copying-and-pasting the allegations of his complaint into his interrogatory responses. See Bailey II, Dkt. 95 at 31.
For all of these reasons, the Court OVERRULES Mr. Bailey's objections to Interrogatory 8.
Mr. Bailey's objections to Interrogatories 15-17 on undue burden and overbreadth grounds are also without merit. He makes no effort to explain—either in his objections or in response to the motion to compel—why these interrogatories are unduly burdensome or overbroad. Indeed, these objections are quintessential boilerplate objections that this Court has warned the parties not to assert. [See Doc. 25 at 5 (warning that “[b]oilerplate objections in response to discovery requests are strictly prohibited” and that the parties “should not carelessly invoke the usual litany of rote objections, i.e., attorney-client privilege, work-product immunity from discovery, overly broad/unduly burdensome, irrelevant, not reasonably calculated to lead to the discovery of admissible evidence”).] Cf. Bailey II, Dkt. 95 at 32-33 (overruling Mr. Bailey's objections as “the very definition of boilerplate objections—i.e., completely unrelated to the substance of any specific request, leaving the Court and Trans Union in the dark as to how the objections actually apply to any particular request”). Accordingly, Mr. Bailey's objections are again OVERRULED.
*10 For the reasons set forth above, Mr. Bailey's objections to Interrogatories 3, 8, 15, 16, and 17 are overruled and Trans Union's motion to compel is GRANTED as it relates to those interrogatories. The Court ORDERS Mr. Bailey to supplement his responses to respond fully and clearly to Interrogatories 3, 8, 15, 16, and 17 no later than January 3, 2021. His responses must be responsive to the substance of the interrogatory, he may not assert (or reassert) any objections, and his response must be verified. If Mr. Bailey does not have information responsive to an interrogatory, he should clearly say so.
B. Trans Union's Requests for Production 11, 27, and 29
As to its Requests for Production, Trans Union moves to compel the production of documents with respect to three requests to which Mr. Bailey has not produced documents. [Doc. 64-1 at 8.] The Requests for Production at issue and Mr. Bailey's responses are reproduced below.
REQUEST FOR PRODUCTION NO. 11: All credit card statements, credit agreements, contracts, correspondence, disputes, complaints, notes, fraud statements, notices or other documents sent or received by You (or anyone on Your behalf) from or to any creditor or potential creditor, concerning any of Your accounts or applications, that form the basis of Your claims against any Defendant or former Defendant in this action or any account that was reported as adverse in any of Your consumer reports, Credit Reports, or Credit Files.
RESPONSE: Plaintiff objects to this Request for Production on the basis that it not reasonably calculated to lead to discovery of admissible evidence. The Plaintiff also objects to this Request for Production as it invades Plaintiffs work product privilege in that it seeks to obtain information through counsel's (in this case the pro se litigant) mental impressions, conclusions, opinions or legal theories. U.S. E.E.O.C. v. Pioneer Hotel. Inc., No. 2:11-CV-01588-LRH, 2014 WL 4987418, at *4 (D. Nev. Oct. 6, 2014); Rumac, Inc. v. Bottomley, 143 Cal. App. 3d 810, 812, 192 Cal. Rptr. 104 (Cal. App. 4th 1983).
Subject to and not withstanding these objections and the general objections above, the plaintiff states: All documents requested that are not privileged or otherwise excluded from discovery, that the plaintiff is currently able to locate, and/or that are currently in the care and control of the plaintiff are enclosed. The plaintiff reserves the right to amend[ ] these responses if any other documents become available. Pursuant to all applicable FRCP Rules any discovery to which the plaintiff takes custody and is responsive (if not deemed privileged or otherwise confidential) to any previous request for production will be turned over to the defendant's.
[Doc. 64-6 at 28-29.]
REQUEST FOR PRODUCTION NO. 27: If You are claiming damages for any medical symptom, medical condition, mental anguish or emotional distress, sign and return the original Authorization for Disclosure of Protected Health Information attached hereto.
RESPONSE: Plaintiff objects to these requests for production of documents on the basis that they are overly broad.
[Doc. 64-6 at 40.]
REQUEST FOR PRODUCTION NO. 29: All correspondence, letters, notes, or other documents that support Your allegations in the Complaint that You contacted Trans Union after January 1, 2015.
RESPONSE: The Plaintiff objects to this interrogatory as it seeks information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff. Pantzalas v. Super. Ct., 272 Cal. App. 2d 499, 503, 77 Cal. Rptr 354 (Cal. App. 2D 1969); but see F.D.I.C. v. Red Hot Comer, LLC, No. 2:11-CV-01283-GMN, 2013 WL 1758759, at *2 (D. Nev. Apr. 23, 2013). The Plaintiff also objects to this interrogatory as it invades Plaintiffs work product privilege in that it seeks to obtain information through counsel's (in this case the pro se litigant) mental impressions, conclusions, opinions or legal theories. U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-01588-LRH, 2014 WL 4987418, at *4 (D. Nev. Oct. 6, 2014); Rumac. Inc. v. Bottomley, 143 Cal. App. 3d 810, 812, 192 Cal. Rptr. 104 (Cal. App. 4th 1983). The plaintiff has outlined in his complaint the causes for action which the Defendant seeks in this interrogatory.
*11 [Doc. 64-6 at 41.]
With respect to Request for Production 11, Trans Union states that despite Mr. Bailey's response that he would produce documents responsive to this request, he produced just two documents, neither of which was responsive to the request.[3] [Doc. 64-1 at 16.] Regarding Request for Production 27, Trans Union represents that at the parties' meet-and-confer session, Mr. Bailey promised that he would discuss with Trans Union how to narrow the scope of the medical records that Trans Union would subpoena, but those discussions have not occurred; and he has provided no medical records to support his allegations of medical damages, nor has he signed the authorization to release his medical information. [Id.] And finally, as to Request for Production 29, Mr. Bailey has not provided Trans Union the records of any disputes or communications he allegedly sent to Trans Union in 2019 that support the allegations in his complaint. [Id. at 16-17.]
Trans Union's motion—which is unopposed—is due to be granted as the Requests for Production 11 and 29. Mr. Bailey's response to Request for Production 11 indicates that he was producing responsive documents; however, it appears that he has not done so. Similar to Mr. Bailey's interrogatory objections, his response is therefore unclear, and he has unreasonably refused to clarify the issue. Mr. Bailey's responses to these requests for production are also littered with boilerplate objections that he has made no effort to defend, leaving the Court and Trans Union in the dark as to how the objections actually apply or whether he is withholding responsive documents on the basis of those objections.[4] See U.S.C.F.T.C. v. Am. Derivatives Corp., No. 1:05-CV-2492-RWS, 2007 WL 1020838, at *3 (N.D. Ga. Mar. 30, 2007) (finding that boilerplate objections to discovery requests “are improper and will not be considered by the Court”); see also Fed. R. Civ. P. 34(b)(2)(C) (requiring party asserting objection to “state whether any responsive materials are being withheld on the basis of that objection”).
The Court declines, however, to grant Trans Union's motion to compel as it relates to Request for Production 27. Where a party has placed his or her mental condition into issue, the other party is generally entitled to discovery of relevant medical records, either from the party or directly from the medical providers with written authorization. See James v. Frederick J. Hanna & Assocs., P.C., No. 1:08-CV-3674-CAM-GGB, 2009 WL 10699388, at *1-2 (N.D. Ga. Apr. 16, 2009). Mr. Bailey has placed his mental condition in controversy by alleging that he suffered emotional distress as a result of Trans Union's actions, making medical evidence of his condition and treatment relevant to the claims and defenses in this case. [See, e.g., Doc. 1 ¶¶ 68-69; Doc. 64-6 at 54.] It also appears that Mr. Bailey has refused cooperate with Trans Union's counsel's offer to narrow the documents requested when serving subpoenas on his mental health providers.
*12 The problem, however, is that Request for Production 27 requests that Mr. Bailey execute a blank written HIPAA authorization, which does not identify any specific provider and, on its face, authorizes the disclosure of virtually every type of medical record available from birth to the present. [See Doc. 64-5 at 20-21.] Thus, it appears that if the Court were to order Mr. Bailey to execute that authorization, he would be giving Trans Union carte blanche to request any medical record under the sun, which “far exceeds the bounds of fair discovery.” See Meche v. Maint. Dredging, Inc., No. CIV.A. 10-3653, 2012 WL 519882, at *2 (E.D. La. Feb. 16, 2012) (recognizing that even when a party completely fails to respond to written discovery, the court retains discretion to decline to compel production if the request seeks irrelevant information or is patently improper).
It also bears mentioning that Trans Union's Request for Production 26 seeks documents reflecting medical or psychiatric treatment and advice or counseling that Mr. Bailey received or sought since January 1, 2015, which is much more narrow in scope than the proposed HIPAA authorization. [Doc. 64-6 at 39.] Mr. Bailey objected to the request but indicated that he was producing documents responsive to this request in his possession. [Id. at 39-40.] While the Court has concerns about the sufficiency of that response and the fact that Mr. Bailey seems to have, in fact, not produced documents about his mental health treatment, Trans Union does not move to compel with respect to that request; thus, the sufficiency of Mr. Bailey's objections and response to that request is not before the Court.
To be clear, the Court does not condone Mr. Bailey's refusal to cooperate with Trans Union to facilitate the discovery of relevant medical records, and there is no question that Mr. Bailey's mental health is an issue in this case and Trans Union is entitled to relevant discovery on that matter, including reviewing pertinent medical records. But, the relief that Trans Union seeks is not proper, so at this point, the Court declines to compel Mr. Bailey to execute the broad HIPAA release.
In sum, with respect to Requests for Production 11 and 29, the Court overrules Mr. Bailey's objections and GRANTS Trans Union's motion to compel. The Court ORDERS Mr. Bailey to produce all documents responsive to these requests no later than January 3, 2021. If he has no documents in his possession, custody, or control responsive to a particular request for production, then the must supplement his response by that date to say so. He may not, however, refuse to produce or withhold any responsive documents on the basis of an objection. The Court DENIES Trans Union's motion, however, to the extent it moves to compel Mr. Bailey to execute the blank HIPAA release attached to its Requests for Production.
C. Requests for Admission
At the beginning of Mr. Bailey's responses to Trans Union's Requests for Admission, he asserts the following general objection:
Plaintiff further objects to these requests for admissions as they seek information protected by the work product doctrine and attorney-client privileges.
[Doc. 64-6 at 45.] Trans Union argues that Mr. Bailey's attorney-client objection is meritless because Mr. Bailey is pro se and, therefore, cannot assert the privilege. [Doc. 64-1 at 17-18.] Trans Union also states that Mr. Bailey has refused to withdraw the objection, despite Trans Union pointing this out during the parties' meet-and-confer session. [Id. at 18.]
The Court dealt with this issue in Bailey II in the context of Mr. Bailey's assertion of the attorney-client privilege to Trans Union's interrogatories. The Court wrote:
“ ‘The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice.’ ” In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir. 1990) (quoting In re Grand Jury Subpoena of Slaughter, 694 F.2d 1258, 1260 (11th Cir. 1982)). Importantly, “[t]he privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn Co. v. United States, 449 U.S. 383, 395 (1981). Thus, even if Mr. Bailey at some point communicated information responsive to Trans Union's interrogatories to an attorney, that underlying information did not therefore become privileged. Additionally, the party claiming the privilege bears the burden of proving the existence of the privilege. See, e.g., In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir. 1987). To meet the burden of showing the privilege applies, a party must show: (1) the holder of privilege is a client; (2) the person to whom communication was made is a member of the bar and that person is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which attorney was informed by the client without the presence of strangers for the purpose of securing legal advice; and (4) the privilege is claimed and not waived by the client. See In re Grand Jury Proceedings 88-9 (MIA), 899 F.2d at 1042. Mr. Bailey has not made such a showing. Indeed, he has refused to even state whether he has consulted with an attorney, much less explain how any of the interrogatories demand the disclosure of a privileged communication.
*13 Bailey II, Dkt. 95 at 27-28. These principles apply with full force to Mr. Bailey's responses to the requests for admission as well. Accordingly, the Court OVERRULES the objection.
By not withdrawing his privilege objection and explaining what effect, if any, the withdrawal of that objection has on the substance of his responses, Mr. Bailey has created unnecessary ambiguity, forcing Trans Union to seek court intervention on an issue that, but for Mr. Bailey's intransigence, should have been resolved informally. Accordingly, so that Trans Union can understand what effect, if any, this objection had on the substance of Mr. Bailey's responses to its Requests for Admission, Mr. Bailey is ORDERED by January 3, 2020, to supplement his responses to the Requests for Admission to either (1) re-assert his responses without the objection or (2) provide written notice to counsel for Trans Union that his responses remain the same even in the absence of the privilege objection.
IV. Fee Shifting Under Rule 37(a)
Rule 37(a)(5) provides that if the Court grants a motion to compel, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5). “But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id.
Based on the circumstances here, the Court concludes that, despite the fact that the Court only partially grants Trans Union's motion, fee-shifting is appropriate under Rule 37(a)(5) as Trans Union's position was substantially justified. Trans Union has prevailed on its motion to compel, and Mr. Bailey “was on notice that [Trans Union] sought reasonable attorneys' fees and had an opportunity to be heard when it responded to [the] Motion to Compel.” Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D. 470, 472 (M.D. Fla. 2008). Moreover, Trans Union attempted in good faith to resolve these issues without court intervention, and Mr. Bailey's responses and objections—as explained above—were without substantial justification.
The only circumstance that arguably counsels against fee-shifting is that Mr. Bailey is proceeding pro se. But “[p]ro se litigants are ‘subject to sanctions like any other litigant’ ” under Rule 37(a)(5). Smith v. Atlanta Postal Credit Union, 350 F. App'x 347, 350 (11th Cir. 2009) (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)); see also Pippen v. Ga.-Pac., LLC, No. 1:07-CV-1565-BBM-AJB, 2008 WL 11336682, at *3 (N.D. Ga. June 4, 2008) (imposing fees and costs against pro se litigant in relation to motion to compel). Mr. Bailey, as Court and the parties are acutely aware, is no stranger to federal litigation and he has had ample experience with the discovery process.[5] What's more, Mr. Bailey has engaged in—and been sanctioned for—similar discovery tactics in two of his earlier cases against Trans Union. See Bailey v. Equifax Credit Info. Servs., Inc., No. 1:14-CV-797-MHC-JCF, 2015 WL 13774791, at *23 (N.D. Ga. Sept. 25, 2015) (“Bailey I”); Bailey II, Dkt. 95. As this Court stated in Bailey II, this is hardly a situation where a pro se litigant, uninitiated in the rules of procedure or the law, is doing his level best to litigate his case. Bailey II, Dkt. 95 at 38. The sanctions imposed in Bailey I and Bailey II clearly did not suffice to stop Mr. Bailey from repeating the same discovery tactics.[6] As a result, the Court concludes that even though Mr. Bailey is proceeding pro se, shifting attorney fees under Rule 37 would not be unjust under these circumstances.[7]
*14 Accordingly, if Trans Union wishes to persist on its request for fees, it must present appropriate documentation of its expenses, including attorney fees, incurred in preparing its Motion to Compel, and the reasonableness thereof, no later than December 30, 2020.[8] Trans Union should use its best efforts to estimate for time spent in connection with Request for Production 27, on which it did not prevail, and reduce its calculation accordingly. Mr. Bailey shall have fourteen (14) days thereafter to respond.[9] Trans Union may file a reply seven (7) days thereafter.
V. CONCLUSION
For the reasons set forth above, it is ORDERED that Trans Union's Motion to Compel [Doc. 64] be GRANTED IN PART AND DENIED IN PART and Mr. Bailey's Motion to Compel [Doc. 61] be DENIED. Mr. Bailey is ORDERED to supplement his discovery responses as ordered herein no later than January 3, 2021. THE COURT EXPLICITLY WARNS MR. BAILEY IN THE STRONGEST POSSIBLE TERMS THAT IF HE FAILS TO COMPLY WITH THIS ORDER, HE MAY BE SANCTIONED, AND THAT SUCH SANCTIONS MAY INCLUDE DISMISSAL OF THIS CASE WITH PREJUDICE.
Having resolved the pending motions to compel, and considering the posture of this case, the Court ORDERS that all discovery in this case be completed no later than February 1, 2021 and that dispositive motions be filed no later than March 3, 2021.
IT IS SO ORDERED this 16th day of December, 2020.
Footnotes
Mr. Bailey resolved his case with Nationwide after filing his motion to compel. [Doc. 65; see also Doc. Entry dated Nov. 12, 2020.]
Mr. Bailey made an identical challenge to an identical request in Bailey v. TransUnion, LLC, No. 1:18-cv-1725-AT-JKL (N.D. Ga. April 24, 2020 (“Bailey II”), which this Court rejected. See Bailey II, Dkt. 95 at 43-44.
These documents appear to be two letters that Mr. Bailey attached to his responses to Trans Union's discovery requests. [See Doc. 64-6 at 57, 58.] In these letters, Mr. Bailey demands that Trans Union conduct investigations of the Georgia's Own and American Express accounts. The Court agrees that these letters are not responsive to Request for Production 11, as Trans Union is not a creditor.
Again, to the extent Mr. Bailey objects on the basis of work product immunity, he has not carried his burden to demonstrate that the immunity applies to any documents that would otherwise be responsive to this request.
Mr. Bailey has been a plaintiff in at least eleven other cases filed in this district—sometimes pro se, and sometimes represented by counsel. See Bailey v. EMS Ventures, Inc., No. 1:11-cv-01090-AT; Bailey v. Equifax Credit Info. Servs., Inc., et al., No. 1:14-cv-00797-MHC; Bailey v. Wells Fargo Bank N.A. Inc., et al., No. 1:14-cv-989-CC; Bailey v. Wells Fargo Bank, N.A., et al., No. 1:15-cv-2818-AT; Bailey v. Experian Info. Solutions, Inc., et al., No. 1:16-cv-00789-MHC; Bailey v. Metro Ambulance Servs., Inc., No. 1:16-cv-04440-WMR; Bailey v. TransUnion, LLC, No. 1:18-cv-1725-AT-JKL; Bailey v. LifeStar Response of Ala., Inc., No. 1:18-cv-02714-SCJ; Bailey v. Am. Fam. Ins. Co., et al., No. 1:19-cv-03232-AT; Bailey v. Priority Ambulance, No. 1:20-cv-00928-AT, and Bailey v. Regions Bank, et al., No. 1:20-cv-4591-AT-JKL.
Notably, Mr. Bailey has refused to satisfy the award of discovery sanctions in Bailey II. [See Bailey II, Dkt. 134, 134-2.] There is no indication that he refuses to do so due to the lack of financial resources.
The Eleventh Circuit reached the “inescapable conclusion,” in construing the predecessor version of Rule 37(a)(5), that “sanctions under Rule 37(a)(4) are mandatory unless the court finds” a party to be substantially justified in its position or the award otherwise unjust. Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993).
In Trans Union's response to Mr. Bailey's motion to compel, it did not state that it was seeking its fees it incurred responding to that motion; thus, the Court limits the award of fees to those incurred in connection with Trans Union's motion.
Though Mr. Bailey did not respond to Trans Union's motion and, therefore, has not addressed Trans Union's request for fees, the Court notes that where a plaintiff can demonstrate that being compelled to satisfy an award of fees and expenses results in a financial hardship, the extent of the hardship may render the award—in part or in whole—unjust. See Pippen, 2008 WL 11336682, at *4 (citing Holder v. Gienapp, No. 06-cv-221-JD, 2007 WL 1726575, *1 (D.N.H. June 13, 2007) and Sheehy v. Wehlage, No. 02CV592A, 2007 WL 607093, at *7 (W.D.N.Y. Feb. 20, 2007)). The Court will allow Mr. Bailey, in his response, to demonstrate by affidavit or other similar proof, that being compelled to satisfy Trans Union's proposed award of fees and expenses would result in financial hardship.