Bailey v. Equifax Credit Info. Servs., Inc.
Bailey v. Equifax Credit Info. Servs., Inc.
2020 WL 13132941 (N.D. Ga. 2020)
April 24, 2020
Larkins III, John K., United States Magistrate Judge
Summary
The court found that Trans Union had properly responded to Mr. Bailey's Requests for Production, and that there were no additional documents to compel. The court also ordered Mr. Bailey to turn over any ESI that is responsive to any previous request for production to the defendant. Additionally, the court granted Trans Union's Emergency Motion to Quash and for Protective Order, ordering that Mr. Bailey not depose Trans Union until Trans Union has deposed Mr. Bailey.
Additional Decisions
Bataski BAILEY, Plaintiff,
v.
TRANSUNION LLC, Defendant
v.
TRANSUNION LLC, Defendant
CIVIL ACTION FILE NO. 1:18-cv-1725-AT-JKL
United States District Court, N.D. Georgia, Atlanta Division
Signed April 24, 2020
Counsel
Bataski Bailey, Atlanta, GA, Pro Se.Alex Michael Barfield, Stanton Law, LLC, Atlanta, GA, Michael Adam Merar, Quilling, Selander, Lownds, Winslett & Moser, P.C., Plano, TX, for Defendant.
Larkins III, John K., United States Magistrate Judge
ORDER
*1 This is a case arising under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq. The case is before the Court on the following discovery-related motions:
• Defendant Trans Union LLC's (“Trans Union”) Emergency Motion to Quash and for Protective Order Regarding Plaintiff's Notice of Deposition [Doc. 72];
• Trans Union's Motion to Compel Discovery Responses [Doc. 86]; and
• Plaintiff Bataski Bailey's Motion for Order Compelling Defendant[ ] Trans Union LLC For a Substantive Response to Requests for Production of Documents [Doc. 87].
Mr. Bailey has responded to Trans Union's motion for protective order [Doc. 79] and its motion to compel [Doc. 89], and Trans Union has filed a reply in support of its motion to compel [Doc. 93]. Trans Union has also filed a response in opposition to Mr. Bailey's motion [Doc. 88]. Mr. Bailey has not filed a reply in support of his motion, and the time to do so has passed. The Court has also held several hearings pertaining to the motions and underlying discovery issues. [See Docs. 70, 73, 81, 82.] The motions are now ripe for resolution.
I. BACKGROUND
A. Allegations in First Amended Complaint
In the operative complaint, Mr. Bailey alleges that in September 2017, he was notified by a credit monitoring service of changes to his Equifax consumer credit report. (Am. Compl. [Doc. 36] ¶ 9.) On November 1, 2017, he requested his consumer credit reports from Trans Union and Experian. (Id. ¶ 17.) That same day, he sent disputes to both Trans Union and Experian through their dispute websites. (Id. ¶¶ 18, 20.) As to Trans Union, Mr. Bailey disputed a fraudulent account listed only as “Scana”—which he contends he knew nothing about. (Id. ¶ 18.) He also challenged the following credit inquiries as inaccurate or fraudulent:
(1) Equifax Mortg, dated June 1, 2017; (2) Equifax Mortg, dated February 27, 2017; (3) Credit Technologies, dated February 27, 2017; (4) Regions Bank, dated July 12, 2017; (5) Regions Bank, dated July 10, 2017; and (6) Brclysbankde, dated July 10, 2017.
(Id.) Mr. Bailey alleges that Trans Union's inclusion of inaccurate information on his credit report lowered his credit score and creditworthiness, causing him to pay higher interest rates on three credit cards and his mortgage loan, as well as a higher rate on his car insurance. (Id. ¶¶ 18-19.) The inaccurate information in his credit file also allegedly caused him emotional distress. (Id. ¶ 29.)
On December 15, 2017, Trans Union notified Mr. Bailey that it had concluded the “Scana” account was accurate. (Am. Compl. ¶ 22.) Mr. Bailey asked Trans Union to conduct a reinvestigation of the Scana account, and on January 8, 2018, Trans Union confirmed that the information was accurate. (Id. ¶¶ 23-24.)
Mr. Bailey alleges that the fraudulent accounts and inquiries remain on his consumer credit reports from Trans Union, as well as those of two other credit reporting agencies, Experian and Equifax.[1] (Am. Compl. ¶ 28.)
*2 In Count Two[2] of the amended complaint, Mr. Bailey alleges that Trans Union violated the FCRA by reporting inaccurate information on his consumer credit report and by failing to conduct an adequate reinvestigation, in violation of 15 U.S.C. §§ 1681e(b) and 1681i(a). (Am. Compl. ¶¶ 36-38.) As relief, Mr. Bailey demands, inter alia, actual damages, statutory damages, and injunctive relief. (Id. ¶¶ 55-64.)
B. The Parties’ Discovery Disputes
On October 1, 2019, Trans Union served its First Requests for Admission, First Set of Interrogatories (the “Interrogatories”), and First Requests for Production (the “Requests for Production”) on Mr. Bailey via United States First Class Mail and email. [Doc. 65.] On November 1, counsel for Trans Union, Michael Merar, emailed Mr. Bailey to inquire about the status of Mr. Bailey's responses. (Decl. of Michael Merar [Doc. 86-2] ¶ 6, Ex. A-5 [Doc. 86-7].[3]) Mr. Merar also followed up on a request he had made two days earlier for dates in early December when Mr. Bailey could be available for his deposition. [Doc. 86-7 at 2-3.] Mr. Bailey responded via email that he had mailed his objections and responses on October 30, 2019, and advised that he was “working on finding dates that will work” for a deposition in December and would be in touch. [Id. at 2.] Mr. Bailey also asked for dates in January for defense witness depositions. [Id.]
On Sunday, November 17, 2019, Mr. Bailey emailed his First Requests for Production of Documents and Interrogatories to Mr. Merar and counsel for co-defendant Equifax. [Doc. 86-11.] He also attached what he described as a “courtesy copy” of his responses to Trans Union's Requests for Production, Interrogatories, and Requests for Admission, explaining that he understood that Trans Union claimed that it had not received them. [Id.][4]
*3 The next day, Monday, November 18, 2019, Mr. Merar responded to Mr. Bailey's email, stating that Trans Union considered Mr. Bailey's discovery responses untimely and “intend[ed] to seek enforcement of [Mr. Bailey's] waiver of right to object to Trans Union's Interrogatories and Requests for Production.” [Doc. 86-11 at 3.] Mr. Merar also wrote that Mr. Bailey's responses were substantively deficient and indicated that he planned to “serv[e] a more detailed correspondence regarding the[ ] deficiencies,” but asked Mr. Bailey to give a time later that week or the following for a call to discuss Trans Union's concerns. [Id.] On Wednesday, November 20, Mr. Merar followed up by email to again ask Mr. Bailey when he would be available to confer about the discovery issues, and reiterated Trans Union's position that Mr. Bailey had waived any objections due to his untimely service of the responses. [Id. at 2.]
On December 2, 2019, Mr. Bailey sent an email with four dates in December when he would be available for his deposition. [Doc. 86-12 at 3.] Mr. Merar responded that he would be unable to proceed with the deposition until the outstanding discovery issues were resolved. [Id. at 2.] Mr. Merar again asked for a time to discuss the discovery issues. In response, Mr. Bailey essentially refused to discuss the issues further and invited Mr. Merar to file a motion to compel, writing:
My responses were in fact timely. They were also complete including objections to materials based on their respective reasonings. Many of the items requested were merely to harass and could not lead to any discoverable evidence. You are more than welcome to reach out to the courts and I will respond appropriately.
[Id.]
Nonetheless, Mr. Merar and Mr. Bailey ultimately agreed on a date to meet and confer (apparently Thursday, December 12), but the meeting did not go forward because Mr. Merar got sick. (Merar Decl. ¶ 11.) The following Monday, December 16, 2019, Mr. Merar emailed Mr. Bailey to reschedule the meet-and-confer session. [Doc. 86-13 at 2.] Mr. Bailey responded that he had cleared his schedule the previous Thursday, and that he would not have any availability until January 9, 2020. [Id.]
In late December and early January 2020, Trans Union alerted the Court to discovery issues in this case, and on January 13, 2020, the Court held a discovery conference. [Doc. 70.] The conference was unproductive, however, as the parties had not conferred concerning any of the discovery issues (or even agreed about which items were at issue). The Court ordered the parties to exchange lists of discovery-related issues and to meet and confer about them. [Id.] The Court also advised Mr. Bailey that it appeared he had asserted improper boilerplate objections and other objections that seemingly had no application, including attorney-client privilege and work product protection. Following the hearing, Trans Union sent a detailed letter to Mr. Bailey identifying his discovery deficiencies [Doc. 86-14], and on January 29, 2020, Mr. Bailey and Mr. Merar's co-counsel, Alex Barfield, held a telephonic conference to discuss the issues raised in the letter (Barfield Decl. ¶ 5). According to Mr. Barfield:
Mr. Bailey continued to assert that he was not required to supplement his discovery responses. Mr. Bailey continued to rely on the same objections this Court previously cautioned him against, such as attorney-client privilege and work product privilege. Mr. Bailey also continued to contend, as he did at the discovery conference, that he was not obligated to respond to interrogatories about the nature or his claims and damages because Trans Union should be able to use his credit file and his Complaint and figure it out.
[Doc. 86-1 at 4 (citing Decl. of Alex Barfield [Doc. 86-18] ¶ 5).]
While these discovery issues were pending, on January 15, 2020, Mr. Bailey unilaterally noticed a Rule 30(b)(6) deposition of Trans Union for January 31, 2020. [Doc. 72-2.] Trans Union objected to proceeding with the deposition as noticed, but was unable to resolve the matter with Mr. Bailey informally. On January 21, 2020, it moved to quash the notice of deposition and for a protective order, arguing that it would be prejudiced if the deposition went forward before the outstanding discovery issues were resolved. [Doc. 72.] Trans Union also argued that Mr. Bailey should not be permitted to depose Trans Union prior to it deposing Mr. Bailey, as Mr. Bailey had not responded substantively to any written discovery. [Id.]
*4 On January 22, 2020, the Court ordered that the deposition not go forward as noticed and directed Mr. Bailey to respond to the motion. [Doc. 73.] In response, Mr. Bailey wrote that he “does not oppose the Defendant's Motion to Quash as the scheduled deposition date has already passed and therefore [he] believes this issue is moot.” [Doc. 79.] Mr. Bailey argued, however, that the Court should “issue an Order ensuring the plaintiff can proceed with the depositions of defendant Trans Union's 30(b)(6) witness(es) prior to the scheduling of the plaintiff's deposition.” [Id. at 3.] Trans Union did not file a reply.
On February 19, 2020, the Court held another discovery conference. [Doc. 81.] The Court requested that the parties email—one day before the hearing—summaries concerning the status of discovery and their respective positions on the remaining issues. On February 18, having not received a statement from Mr. Bailey, the Court contacted him about the status of his statement. [Doc. 86-15 at 2.] Mr. Bailey responded by email and attached a number of documents, including “Plaintiff's Amended Responses and Objections to Defendant Trans Union LLC's First Interrogatories and First Request for Production of Documents.” [See Doc. 86-15 (Feb. 18 email with attachments) at 11-70]. Though the certificate of service attached to the amended responses reflected that Mr. Bailey had served them February 8, 2020 by First Class Mail and email [see Doc. 86-15 at 70], Mr. Merar, who was copied on Mr. Bailey's email, represents that the first time Trans Union received the responses was in fact February 18, 2020, when Mr. Bailey sent the email to the Court, copying Mr. Merar (Merar Decl. ¶ 13).[5]
At the discovery hearing, the Court found that due to the apparent intractability of the discovery issues, discovery in this case should proceed in discrete phases—first with written discovery, and then with depositions. [Doc. 82.] The Court also directed the parties to file motions to compel regarding any outstanding written discovery. [Id.]
Since that time, both parties have filed their present motions to compel, which, along with the motion for a protective order, are now ripe for consideration. The Court first addresses Trans Union's motion to compel, followed by Mr. Bailey's motion to compel, and then finally turns to the motion for protective order.
II. TRANS UNION'S MOTION TO COMPEL
A. The Requests at Issue and the Parties’ Arguments
Trans Union's Motion to Compel relates to both its Interrogatories and Requests for Production. In it, Trans Union asks the Court to order Mr. Bailey to supplement his responses to its Interrogatories 2, 3, 4, 5, 6, 7, and 18 and each of its thirty-five Requests for Production. [Doc. 86-1 at 11-20.]
With regard to the interrogatory responses, Trans Union argues that Mr. Bailey's responses are “littered with erroneous and inapplicable objections, offering little in the way of substance.” [Doc. 86-1 at 12.] It contends that the Interrogatories at issue request information that is relevant to the claims and defenses in this case, are reasonably calculated to lead to the discovery of admissible evidence, and not overly broad of unduly burdensome. [Id. at 19-20.] The Interrogatories under consideration and Mr. Bailey's responses[6] are reproduced below:
*5 INTERROGATORY NO. 2
For each item or category of damage You claim to have suffered because of some action or inaction by Trans Union, identify and describe the nature and amount of the damages sought, how the damages were calculated, and the facts supporting Your claim that the damages resulted from some action or inaction of Trans Union.
RESPONSE:
Plaintiff objects to this Interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. 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 the actions and/or inaction for which the plaintiff seeks damages are outlined in the plaintiff's Complaint for Damages. These general claims are based on the actions outlined in the plaintiff's Complaint. Because the plaintiff cannot know the extent of the damages until discovery is completed, the plaintiff cannot fully articulate the full extent of his damages. Based on this point the plaintiff will recite the Complaint as follows:
On or about November 1, 2017, the Plaintiff disputed inaccurate information on the afore mentioned credit disclosure/report with the respective credit bureaus including Defendant TransUnion. The plaintiff submitted a dispute to TransUnion via their dispute website indicating an account listed as “Scana” was fraudulent. In this dispute the plaintiff indicated he had no knowledge of the Scana account other than what was listed on his credit report and could only provide as identification information that information that was listed on his credit report. This plaintiff in the aforementioned dispute also disputed inquiries as either inaccurate and/or fraudulent. The inquiries the plaintiff disputed with TransUnion were: (1) Equifax Mortg dated June 1, 2017; and (2) Equifax Mortg dated February 27, 2017; and (3) Credit Technologies dated February 27, 2017; and (4) Regions Bank dated July 12, 2017; and (5) Regions Bank dated July 10, 2017; and (6) Brclysbankde dated July 10, 2017. Each of these inquiries negatively impacts the plaintiff's credit score by lowering it and thereby decreasing his opportunity for approval when viewed by potential lenders and any others who may view this inaccurate information. This inaccurate information also damages the plaintiff by lowering the credit worthiness in the eyes of the lender thereby raising the interest rate offered the plaintiff which directly negatively impacts the plaintiff.
*6 Defendant TransUnion failed to investigate or reinvestigate plaintiff's inquires disputes as required by the FCRA. In fact defendant TransUnion failed to respond to the plaintiff's inquires disputes as required by the FCRA despite several attempts to contact defendant TransUnion by the plaintiff following his inquires dispute. This failure to investigate, reinvestigate and remove inaccurate and/or fraudulent information directly led to damages to the plaintiff including the plaintiff paying a higher interest rate on his American Express credit card, a higher interest rate on his Capital One Credit Card, a higher interest rate on his Discover Credit Card, a higher interest rate on his RBC mortgage loan, and a higher rate on his car insurance.
COUNT 2 TRANSUNION VIOLATIONS OF THE FAIR CREDIT REPORTING ACT & ACCURATE CREDIT TRANSACTIONS ACT (FCRA-FACTA) [15 USC § 1681 et seq.]
Defendant TransUnion is a Consumer Reporting Agency's (“CRAs”) as defined by USC § 1681 et seq.
Defendant TransUnion has upon information and belief willfully committed one or more violations of 15 USC § 1681et seq. by intentionally, willfully, knowingly and negligently and repeatedly failing to report information pertaining to the plaintiff with the maximum possible accuracy and or as otherwise required by law. This intentional, willful, and knowing act is the reporting of inaccurate and/or fraudulent accounts including the account listed as “Scana” and the following inquires: (1) Equifax Mortg dated June 1, 2017; and (2) Equifax Mortg dated February 27, 2017; and (3) Credit Technologies dated February 27, 2017; and (4) Regions Bank dated July 12, 2017; and (5) Regions Bank dated July 10, 2017; and (6) Brclysbankde dated July 10, 2017. Defendant TransUnion failed in their duty to review all relevant information provided by the plaintiff pursuant to 15 USC § 1681i (a)(2) and as required by 15 USC § 1681s-2(b) (1)(B).
In addition these damages were calculated using the FCRA statute. In addition the plaintiff is seeking punitive damages for the actions of the defendant. The sum total of the damages is not known as the sum total of the violations can not be know[n] prior to the completion of discovery.
[Doc. 86-15 at 17-20.]
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:
Plaintiff objects to this Interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. 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 will provide some of the requested information. The plaintiff 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 plaintiff's information was shared with.
*7 [Doc. 86-15 at 20-22.]
INTERROGATORY NO. 4
For each person or entity with which You have applied for credit or that has otherwise reviewed Your consumer report or Credit Report since December 2017, identify and describe the date that You applied for credit or other transaction, the type of transaction involved, and the terms offered and/or received.
RESPONSE:
Plaintiff objects to this interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court.
The plaintiff 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.
[Doc. 86-15 at 22-23.]
INTERROGATORY NO. 5
If You contend any application for credit or other transaction identified in response to the previous Interrogatory was affected in any way by any action and/or inaction of Trans Union, identify and describe what effect such action and/or inaction allegedly had and any damage You claim to have suffered.
RESPONSE:
Plaintiff objects to this interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. The plaintiff 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.
*8 [Doc. 85-15 at 23-24.]
INTERROGATORY NO. 6
Identify and describe each and every inaccuracy You contend exists or ever existed in any Credit File disclosure or consumer report that forms the basis of this suit or any claims You believe You have against Trans Union, including how and when You first became aware of the alleged inaccuracy.
RESPONSE:
Plaintiff objects to this interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. The plaintiff 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. [S]ubject to his objections and without waiving the same the Plaintiff states the actions and/or inaction for which the plaintiff seeks damages are outlined in the plaintiff's Complaint for Damages. These general claims are based on the actions outlined in the plaintiff's Complaint. Because the plaintiff can not know the extent of the damages until discovery is completed, the plaintiff can not fully articulate the full extent of his damages. Based on this point the plaintiff will recite the Complaint as follows:
On or about November 1, 2017, the Plaintiff disputed inaccurate information on the afore mentioned credit disclosure/report with the respective credit bureaus including Defendant TransUnion. The plaintiff submitted a dispute to TransUnion via their dispute website indicating an account listed as “Scana” was fraudulent. In this dispute the plaintiff indicated he had no knowledge of the Scana account other than what was listed on his credit report and could only provide as identification information that information that was listed on his credit report. This plaintiff in the aforementioned dispute also disputed inquiries as either inaccurate and/or fraudulent. The inquiries the plaintiff disputed with TransUnion were: (1) Equifax Mortg dated June 1, 2017; and (2) Equifax Mortg dated February 27, 2017; and (3) Credit Technologies dated February 27, 2017; and (4) Regions Bank dated July 12, 2017; and (5) Regions Bank dated July 10, 2017; and (6) Brclysbankde dated July 10, 2017. Each of these inquiries negatively impacts the plaintiff's credit score by lowering it and thereby decreasing his opportunity for approval when viewed by potential lenders and any others who may view this inaccurate information. This inaccurate information also damages the plaintiff by lowering the credit worthiness in the eyes of the lender thereby raising the interest rate offered the plaintiff which directly negatively impacts the plaintiff.
*9 Defendant TransUnion failed to investigate or reinvestigate plaintiff's inquires disputes as required by the FCRA. In fact defendant TransUnion failed to respond to the plaintiff's inquires disputes as required by the FCRA despite several attempts to contact defendant TransUnion by the plaintiff following his inquires dispute. This failure to investigate, reinvestigate and remove inaccurate and/or fraudulent information directly led to damages to the plaintiff including the plaintiff paying a higher interest rate on his American Express credit card, a higher interest rate on his Capital One Credit Card, a higher interest rate on his Discover Credit Card, a higher interest rate on his RBC mortgage loan, and a higher rate on his car insurance.
COUNT 2 TRANSUNION VIOLATIONS OF THE FAIR CREDIT REPORTING ACT & ACCURATE CREDIT TRANSACTIONS ACT (FCRA-FACTA) [15 USC § 1681 et seq.]
Defendant TransUnion is a Consumer Reporting Agency's (“CRAs”) as defined by 15 USC § 1681 et seq.
Defendant TransUnion has upon information and belief willfully committed one or more violations of 15 USC § 1681et seq. by intentionally, willfully, knowingly and negligently and repeatedly failing to report information pertaining to the plaintiff with the maximum possible accuracy and or as otherwise required by law. This intentional, willful, and knowing act is the reporting of inaccurate and/or fraudulent accounts including the account listed as “Scana” and the following inquires: (1) Equifax Mortg dated June 1, 2017; and (2) Equifax Mortg dated February 27, 2017; and (3) Credit Technologies dated February 27, 2017; and (4) Regions Bank dated July 12, 2017; and (5) Regions Bank dated July 10, 2017; and (6) Brclysbankde dated July 10, 2017. Defendant TransUnion failed in their duty to review all relevant information provided by the plaintiff pursuant to 15 USC § 1681i (a)(2) and as required by 15 USC § 1681s-2(b)(1)(B).
[Doc. 86-15 at 24-28.]
INTERROGATORY NO. 7
Identify and describe all contact or communications since December 2017, between You (or anyone acting on Your behalf) and any consumer reporting agency, credit reporting agency, or reseller, including but not limited to Trans Union.
RESPONSE:
Plaintiff objects to this Interrogatory on the basis that it is overly broad, vague, and unduly burdensome. Plaintiff also objects to this interrogatory to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to this Interrogatory on the grounds that i[t] seeks information that is confidential.
[Doc. 86-15 at 28-29.]
INTERROGATORY NO. 18
Identify and describe what evidence You have supporting your belief that a Scana Energy Marketing, Inc. account has ever reported on Your Trans Union Credit File or Your Trans Union Credit Report.
RESPONSE:
Plaintiff objects to this Interrogatory on the basis that it is overly broad, vague, and unduly burdensome. Plaintiff objects to this interrogatory as to the extent it seeks documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to this Interrogatory as it seeks information protected by the work product doctrine and attorney-client privileges.
*10 [Doc. 86-15 at 37.]
As to its Requests for Production, Trans Union explains that it propounded thirty-five requests for production of documents, but contends that Mr. Bailey improperly responded to all thirty-five in a single response consisting of a litany of boilerplate objections similar to those he asserted in response to the interrogatories. [Doc. 86-1 at 20-21; see also Doc. 86-10 (Mr. Bailey's responses to the Requests for Production).] Specifically, in response to all thirty-five requests, Mr. Bailey wrote:
Requests for production of documents 1-35 are incorporated herein respectively and equally:
Plaintiff objects to these requests for production of documents on the basis that they are overly broad, vague, and unduly burdensome. Plaintiff objects to these requests for production of documents as to the extent they seek documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to these requests for production of documents as they seek information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to these requests for production of documents on the grounds that i[t] seeks information that is confidential. Plaintiff also objects to these requests for production of documents on the grounds that they seek information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. 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 amended [sic] 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 [sic].
[Doc. 86-10.] Mr. Bailey's amended response simply repeats the foregoing response verbatim. [Doc. 86-15 at 37-39.]
TransUnion also points out that Mr. Bailey's document production is inadequate as it consists of just four pages of documents: three letters that he purportedly wrote to Trans Union[7] and a letter he received from Scana Energy. [See Doc. 86-15 at 71-74 (four-page production).] Trans Union additionally states that Mr. Bailey has failed to serve initial disclosures—which would include either a document production or identify categories of documents in his possession and control that may be used to support his claim—leaving Trans Union unsure what documents Mr. Bailey has, which ones he may be withholding from production, and/or the grounds for withholding any such documents. [Doc. 86-1 at 21.][8]
*11 Trans Union requests that the Court order individual responses to its written discovery requests and that Mr. Bailey produce documents responsive to the requests. [Doc. 86-1 at 21-22.] It also seeks an award of attorney fees for bringing its motion to compel. [Id. at 22-23.]
In response, Mr. Bailey mostly ignores the arguments raised by Trans Union in its motion, and briefly argues by assertion that he properly “exercised his right to object to information and materials he believes are protected by the mentioned privileges.” [Doc. 89 at 3.] He principally contends that he is entitled to object to the interrogatories on the grounds of attorney-client privilege and work product protection. [Id. at 1-2.] He states, however, that he “can neither confirm nor deny whether he has sought the advice of counsel in this matter and would be irreparably harmed if forced to disclose communications if any or turn over any potentially statutorily protected fruit of those labor.” [Id. at 2.] He also argues that he
believes providing any additional information such as how the plaintiff arrived at conclusions or how the plaintiff determined the facts of the case would violate both the attorney-client privilege and the work-product doctrine.... These are essential protections granted litigants and as shown by the defendant's responses to the plaintiffs motion to compel are equally paramount to the fairness of this judicial process. If not equally administered, the defendants because they are represented by counsel would be allowed to receive every document, communication, or other piece of information produced in anticipation of litigation simply because the plaintiff is not represented by an attorney.
[Id. at 10-11.]
As for his responses to the requests for production, he asserts that he indicated that he was not currently in possession of any additional documents. [Doc. 89 at 11.] Finally, in response to Trans Union's request for sanctions, he asserts that he is entitled to “some leeway” and that he “also believes the same holds true in discovery as without the plaintiff using extreme caution in his production of documents and materials that may be potentially privileged he would risk irreparable harm to his claims against the defendant[ ].” [Id. at 13.]
B. Discussion
1. Interrogatories
Starting with the interrogatory responses, the Court readily concludes that Mr. Bailey's responses are inadequate and his objections are inappropriate. Each interrogatory at issue plainly seeks information that is relevant to the claims and defenses in this case, bearing on issues including damages, causation, and other elements of proof that Mr. Bailey will have to establish to prevail on his claims. See Bailey v. Equifax Credit Info. Servs., Inc., No. 1:18-CV-1725-AT-JKL, 2019 WL 5322492, at *3-4 (N.D. Ga. July 19, 2019) (summarizing elements of accuracy claim under 15 U.S.C. § 1681e(b) and reinvestigation claim under § 1681i), report and recommendation adopted, 2019 WL 5387416 (N.D. Ga. Aug. 23, 2019). In addition, Mr. Bailey's objections are quintessential boilerplate objections—indeed, with the exception of his misplaced objections based on privilege and work product, Mr. Bailey makes no effort to defend them in his response brief.
His objections that the interrogatories call for information protected by the attorney-client privilege also have no place here. “ ‘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 Unions 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.
*12 Mr. Bailey's work product objections fare no better. 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). As with the attorney-client privilege, the party invoking the work product doctrine bears the initial burden of showing that the material or information it has withheld was 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 Cty. 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) (same). But even so, the Court does not read these interrogatories as calling for Mr. Bailey to reveal such information. And even if they 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 the interrogatories.
Further, whether or not Mr. Bailey possesses materials that might be covered by the attorney-client privilege or entitled to work product protection, if he withholds any such material in discovery, he is required by Federal Rule of Civil Procedure 26 to “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). His refusal to do so here waives any underlying claim to privilege and/or protection.[9] See Johnson v. Gross, 611 F. App'x 544, 547 (11th Cir. 2015) (deeming waived a pro se litigant's contentions that he was entitled to work product protections where he did not meet his burden under Rule 26 of providing a privilege log); see also Meade v. Gen. Motors, LLC, 250 F. Supp. 3d 1387, 1393 (N.D. Ga. 2017) (collecting cases) (“Blanket and general assertions of a claim of privilege do not provide sufficient detail about the documents to enable the plaintiff or the court to determine whether the withheld documents were privileged.”).
Finally, the information that Mr. Bailey has provided, “subject to” his myriad objections, appears to be nothing more than a recitation of allegations in his amended complaint or jabberwocky such as “The plaintiff contends defendant Trans Union transmitted inaccurate information to each of the people or entities it provided any information at the request of the plaintiff.” [See, e.g., Doc. 86-9 at 10.] These responses are completely unhelpful and frustrate the purpose of the discovery process.
For these reasons, Plaintiff's objections are OVERRULED and Trans Union's motion to compel is granted as it relates to Interrogatories 2, 3, 4, 5, 6, 7, and 18. The Court ORDERS Mr. Bailey to supplement his interrogatory responses to respond fully to Interrogatories 2, 3, 4, 5, 6, 7, and 18 no later than twenty-one (21) days after entry of this Order. His interrogatory responses must answer the substance of the interrogatory, and he may not assert any objections. If Mr. Bailey does not have information responsive to an interrogatory, he should say so.
2. Requests for Production
*13 The Court next turns to Mr. Bailey's responses to Trans Union's Requests for Production. Federal Rule of Civil Procedure 34, which governs the procedure 31 for propounding and responding to requests for production, requires that “For each item or category, the [responding party] must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B) (emphasis added); see also Williams v. Taser Int'l, Inc., No. 1:06-CV-0051-RWS, 2007 WL 1630875, at *3 (N.D. Ga. June 4, 2007) (“[O]bjections to discovery requests must be sufficiently plain and specific to allow the Court to understand precisely how the challenged discovery requests are alleged to be objectionable.”). Mr. Bailey's single response to thirty-five requests plainly violates Rule 34. Worse yet, even when Trans Union's counsel explained to Mr. Bailey that each request must be responded to individually, [see Doc. 86-15 at 10], Mr. Bailey refused and repeated his global objection verbatim in his supplemental responses [see id. at 27-29].
But even if Mr. Bailey had asserted his same slew objections in response to each of Trans Union's thirty-five requests, the responses would still be deficient as they are 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. 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”). Further, Rule 34(b)(2)(C) requires the party asserting an objection to “state whether any responsive materials are being withheld on the basis of that objection,” which Mr. Bailey has also not done.
Accordingly, the Court OVERRULES Mr. Bailey's objections and ORDERS him to serve complete supplemental responses to each request for production and to produce all responsive documents no later than twenty-one (21) days after entry of this Order. If he has no documents in his possession, custody, or control responsive to a particular request for production, then he should state that in his response. He may not, however, refuse to produce or withhold any responsive documents on the basis of an objection. It also appears that Mr. Bailey has not served his initial disclosures. Mr. Bailey is ordered to serve those as well within twenty-one (21) days of entry of this Order.
3. 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 readily concludes that fee-shifting is appropriate under Rule 37(a)(5). 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.[10]
*14 The only circumstance that arguably counsels against fee-shifting here 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). Moreover, Mr. Bailey is no stranger to federal litigation and has had ample experience with the discovery process.[11]
Significantly, Mr. Bailey has attempted these precise tactics before—and was sanctioned for them—in one of his earlier cases against Trans Union and other credit reporting agencies. 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”). In Bailey I, Mr. Bailey asserted boilerplate objections to numerous interrogatories, which the court overruled and ordered Mr. Bailey to provide further responses. Id. at *3-22. And just like here, Mr. Bailey asserted a litany of general objections to each request for production, nearly identical to his present objections. Id. at *23.[12] The court overruled those objections as well, and ordered Mr. Bailey to serve complete supplemental responses to the requests for production of documents and produce all responsive documents within his possession, custody, and control. Id. Mr. Bailey later violated that order, however, by supplementing his responses to assert the exact same objections to the requests for production and rehashing overruled objections in response to the interrogatories. See Bailey v. Equifax Credit Info. Servs., Inc., No. 1:14-CV-797-MHC-JCF, 2016 WL 11540467, at *2 (N.D. Ga. Feb. 10, 2016). Ultimately, the court sanctioned Mr. Bailey by prohibiting him from relying on any information that he had not previously disclosed through discovery. Id. at *4.
*15 Given his conduct in Bailey I, his familiarity with federal litigation, and his conduct and argument in the present case, the Court is of the firm belief that Mr. Bailey's assertion of boilerplate and inapplicable objections and his refusal to respond in good faith to patently relevant interrogatories and discovery requests is intentional and done in bad faith. 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. To the contrary, Mr. Bailey has been down this road before: he has been ordered to comply with his discovery obligations, he has defied court orders, and he has been sanctioned for same conduct he has engaged in here. The sanction imposed in Bailey I clearly did not suffice to stop Mr. Bailey from repeating the same vexatious discovery tactics. As a result, the Court readily concludes that even though Mr. Bailey is proceeding pro se, an award of expenses would not be unjust under these circumstances.[13]
Accordingly, Trans Union may present appropriate documentation of its expenses, including attorney fees, incurred in preparing its Motion to Compel,[14] and the reasonableness thereof, within fourteen (14) days of the entry of this order. Mr. Bailey shall have fourteen (14) days thereafter to respond.[15] Trans Union may file a reply seven (7) days thereafter.
III. MR. BAILEY'S MOTION TO COMPEL
A. The Requests at Issue and Arguments of the Parties
Mr. Bailey also moves to compel the production of documents responsive to two document requests that he propounded on Trans Union. The requests and Trans Union's responses are as follows:
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 40. Trans Union has withheld from production its confidential policies and procedures as those documents contain confidential and proprietary information of Trans Union. Trans Union will produce these relevant documents upon entry of an appropriate protective order.
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)(1)(A). Further, the discovery sought is unreasonably cumulative or duplicative. FED. R. CIV. P. 26(b)(2)(C), (c)(1). Trans Union further objects to this Request because it is not limited to information relevant to this case and is not proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). Plaintiff appears to be asking for all information in Trans Union's possession regardless of the irrelevant, cumulative or duplicative nature of such information. 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.
*16 [Doc. 87-1 at 9-10.]
REQUEST FOR PRODUCTION NO. 3: All documents whatsoever related to plaintiff's credit file (to include any documents requested and received as a result of any subpoenas and/or other requests).
RESPONSE: Trans Union refers Plaintiff to Trans Union's documents produced and labeled TU 1 – TU 40.
Trans Union has limited its search to consumer relations documents related to the alleged account and inquiries identified in Plaintiffs 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 providing a broader response 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)(1)(A). Trans Union further objects to this Request because it is not limited to information relevant to this case and is not proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). Plaintiff appears to be asking for all information in Trans Union's possession regardless of the cumulative or irrelevant nature of such information. Trans Union also objects to providing information that constitutes confidential, proprietary, and trade secret information of Trans Union or confidential information of other consumers. FED. R. CIV. P. 26(c). Trans Union objects to this Request on the grounds that, as worded, it encompasses information protected by the work product privilege. FED. R. CIV. P. 26(b).
[Doc. 87-1 at 10-11.]
Mr. Bailey contends that Trans Union has “refused to provide documents that will conclusively allow the plaintiff to prove essential elements of his claims” including “information that will show the defendant does not have proper procedures in place to assure maximum accuracy as required” by the FCRA. [Doc. 87 at 2.] He also states that during the January 29, 2020 meet-and-confer session, Trans Union's counsel agreed to produce “some of the documents requested” on February 10, 2020. [Id. at 3.] Trans Union did not, however, produce the documents and “refused to provide any response whatsoever as to why these documents were again being withheld.” [Id. at 4.] Mr. Bailey further states that at no point did Trans Union's counsel indicate that a confidentiality protective order would be necessary before the documents could be produced, and that it was not until February 24, 2020 that defense counsel “emailed [him] ... indicating [Trans Union was] in fact in possession of documents relevant to the plaintiff's initial request for production, but required a protective order.” [Id.] Mr. Bailey asserts that counsel should have raised this issue during the January 29, 2020 meet-and-confer session or during the second discovery conference with the Court on February 19, 2020. [Id.] Mr. Bailey further asserts that because Trans Union has not filed a motion for protective order, it cannot now insist on the entry of such an order as a condition of producing responsive documents. [Id.]
Mr. Bailey additionally argues that “[i]n this day and age of computer technology the defendants have the ability to research the plaintiff's credit file and identify all those who have made changes to said account and/or documented notes/comments to said account potentially proving [his] claims” and that his discovery requests “merely seek[ ] to identify those individuals who may possess pertinent information and who may have accessed the plaintiff[’s] file and made changes that materially impact this litigation.” [Doc. 87 at 4-5.] He further contends that “discovery requests are considered relevant if there is any possibility that the information sought may lead to the discovery of admissible evidence,” [id. at 5], and that Trans Union's burdensomeness objection is without merit, as Trans Union has not shown how the request is overly burdensome [id. at 6].
*17 In response, Trans Union argues that it properly responded to Mr. Bailey's Requests for Production. With regard to Mr. Bailey's Request 1—which seeks the documents Trans Union identified in response to Plaintiff's First Interrogatories—Trans Union states that it produced documents responsive to the request and Mr. Bailey does not identify any interrogatory responses that refer to documents that Trans Union has not produced. [Doc. 88 at 6.] As for Mr. Bailey's contention that he seeks to know the identity of the individuals who accessed his Trans Union credit file, Trans Union states that it has provided that information in its document production and its Rule 26 Initial Disclosure. [Id. at 6-7.] Thus, with respect to Request 1, there are no additional documents to compel.
Trans Union also argues that it has made it clear to Mr. Bailey since December 18, 2019, when it served its responses and objections to Mr. Bailey's first requests for production, that it would not produce any confidential documents absent a protective order. [Doc. 88 at 7.]
As for Mr. Bailey's Request 3—which seeks “[a]ll documents whatsoever related to plaintiff's credit file”—Trans Union notes that it has produced its documents related to the Scana Energy account and six inquiries that Mr. Bailey specifically alleges in his complaint. [Doc. 88 at 10.] But the request goes far beyond the scope of Mr. Bailey's complaint, Trans Union contends, “in that it requests all documents in any way connected to Plaintiff's Trans Union credit file, from any point in time.” [Id. at 11.] Trans Union goes on to argue that its objections should be sustained because Request 3 does not identify the documents sought with sufficient particularity since it uses the phrases “all documents” and “other requests” without defining or limiting them; because the request is not limited to requesting only documents relevant to this action; and because the request is not proportional to the needs of this case or the amount in controversy. [Id. at 11-15.]
B. Discussion
Turning first to Request 1, it is unclear what responsive documents, if any, Trans Union has withheld from production. This request asks Trans Union to produce “All documents identified in response to Plaintiff's First Interrogatories to Defendant[ ].” [Doc. 87-1 at 9.] Though Trans Union's response and objections suggest that there may be responsive documents that it is withholding from production—specifically, documents it deems confidential—Mr. Bailey has not pointed to any documents identified in Trans Union's interrogatory responses that have not been produced. Moreover, Trans Union has represented to the Court that it has produced the information requested in Request 1 and that to the extent that Mr. Bailey intended to ask for information identifying the individuals who accessed his credit file, that information has been provided. Mr. Bailey does not challenge this assertion. While Trans Union should have been clearer in its response that it was not withholding any responsive documents from production, it appears that there are no additional responsive documents to be produced. Accordingly, the Court DENIES Mr. Bailey's motion to the extent that he seeks to compel the production of additional documents—which do not exist—in response to Request 1.
The Court also declines to order the production of additional documents responsive to Request 3. Trans Union's objections to this request are well-taken, as the request is patently overbroad and seeks information that has no bearing on the claims or defenses in this case. Accordingly, the Court DENIES Mr. Bailey's motion to the extent that he seeks to compel the production of additional documents in response to Request 3.
It appears, however, that Trans Union has withheld documents that it considers to be confidential pending the entry of a protective order. This sort of objection—which is common in federal litigation—is reasonable, especially given that Mr. Bailey wishes to conduct discovery about Trans Union internal processes and procedures. But rather than agree or attempt to negotiate a reasonable protective order, Mr. Bailey asserts that Trans Union has waived its objection to producing commercially sensitive information without a protective order because it was not until February 24, 2020 that Trans Union indicated that it had responsive documents but would insist on a confidentiality protective order. The record does not support Mr. Bailey's assertion. Trans Union explicitly stated in December 2019, in its responses and objections to Mr. Bailey's first requests for production, that it objected to producing confidential documents absent a protective order. [See generally Doc. 87-1.] While Trans Union could have (and in the Court's view, should have) provided a proposed protective order much earlier in this litigation, it is Mr. Bailey—not Trans Union—who has held up the production of purported confidential materials. Specifically, on February 19 and 24, 2020, before the parties filed their motions to compel, Mr. Bailey exchanged numerous emails with defense counsel in which he made it clear that he had no intention of agreeing to a protective order for the production of confidential information because, in his view, Trans Union's processes and procedures should be in the public domain. [Doc. 88-4 at 3.] Mr. Bailey's recalcitrance is all the more perplexing because in Bailey I, the court entered a confidentiality protective order virtually identical to the one that Trans Union proposed to him in this case. See Bailey v. Equifax Credit Info. Servs., Inc., No. 1:14-CV-797-MHC-JCF, 2016 WL 11540574, at *2-4 (N.D. Ga. Apr. 11, 2016). Simply put, Mr. Bailey's contention that Trans Union has somehow waived its objection or that he was surprised that Trans Union insisted on a protective order governing the treatment of confidential information is not persuasive.
*18 Trans Union has not filed a motion for entry of a protective order, apparently because it did not wish to raise yet another discovery issue with the Court while there were so many others pending. [Doc. 88 at 8.] Nonetheless, the email correspondence between Mr. Bailey and defense counsel confirms that the parties are at an impasse over this issue, and as a result, this issue is ripe for briefing. Accordingly, it is ORDERED that if Trans Union intends to persist on its confidentiality objections, it must file a motion for a protective order within fourteen (14) days of the Court's entry of this order. Mr. Bailey shall have fourteen (14) days thereafter to respond to the motion, and Trans Union shall have seven (7) days thereafter to file a reply. And although the Court has invited a motion, the Court again encourages Mr. Bailey and counsel for Trans Union to work together to present a consent protective order to the Court and avoid the unnecessary expenditure of their and the Court's resources.
IV. TRANS UNION'S EMERGENCY MOTION TO QUASH AND FOR PROTECTIVE ORDER
As noted above, on January 15, 2020, Mr. Bailey noticed a 30(b)(6) deposition of Trans Union; however, the deposition did not go forward. Accordingly, the motion is moot to the extent that it sought to postpone the deposition. What is not moot, however, is the parties’ disagreement about the order of depositions. While there is no rule that dictates the order of depositions, here the Court finds that the fairness and efficiency strongly favor Trans Union being permitted to depose Mr. Bailey before he deposes Trans Union. The record before the Court indicates that Trans Union attempted to confer with Mr. Bailey about potential deposition dates in November 2019; however, the deposition did not go forward due to the ongoing discovery issues, which, as discussed above, were in large part due to Mr. Bailey's intransigence. What's more, Trans Union initially planned to conduct Mr. Bailey's deposition in December 2019, and Mr. Bailey proposed taking Trans Union's the following month. [Doc. 86-7 at 2.] Accordingly, the Court GRANTS the motion for a protective order and ORDERS that Mr. Bailey not depose Trans Union until Trans Union has deposed Mr. Bailey.[16]
V. CONCLUSION
In sum, Trans Union's Emergency Motion to Quash and for Protective Order [Doc. 72] and its Motion to Compel [Doc. 86] are GRANTED and Mr. Bailey's motion to compel [Doc. 87] is DENIED.
IT IS ORDERED that Trans Union may present appropriate documentation of its expenses in preparing its motion to compel, and the reasonableness thereof, within fourteen (14) days of the entry of this order pursuant to Rule 37. Mr. Bailey will have fourteen (14) days thereafter to respond, and Trans Union will have seven (7) days thereafter to file a reply.
Trans Union IS FURTHER ORDERED to file a motion for a protective order within fourteen (14) days of the Court's entry of this order if it intends to stand on its confidentiality objections. Mr. Bailey will have fourteen (14) days thereafter to respond, and Trans Union will have seven (7) days thereafter to file a reply.
Mr. Bailey IS FURTHER ORDERED to: (1) serve complete supplemental responses to Trans Union's Interrogatories 2, 3, 4, 5, 6, 7 and 18; (2) serve complete supplemental responses to Trans Union's Requests For Production; (3) produce all responsive documents within his possession, custody and control; and (4) serve his initial disclosures, all as directed in this Order and within twenty-one (21) days from the entry of this Order. Mr. Bailey is CAUTIONED IN THE STRONGEST POSSIBLE TERMS that failing to comply with this Order may result in sanctions, including a recommendation that his case be dismissed with prejudice.
IT IS SO ORDERED this 24th day of April, 2020.
Footnotes
Mr. Bailey asserted similar claims against Experian and Equifax; however, he later settled with them and dismissed his claims against them with prejudice. [Docs. 80, 85.]
Counts One and Three asserted similar causes of action against the other, since-dismissed credit reporting agencies. (Am. Compl. ¶¶ 31-34, 39-42.) Meanwhile, Counts Four, Five, and Six asserted state law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence (id. ¶¶ 43-53), which were dismissed from the case upon Experian's motion to dismiss [see Docs. 45, 51, 56].
Trans Union's counsel calculated Mr. Bailey's deadline to respond to discovery as October 31, 2019. In actuality, because Trans Union served the discovery requests via First Class Mail and email, and there is no indication in the record that Mr. Bailey consented in writing to electronic service, Mr. Bailey likely had three additional days to serve his responses, making them due on November 4, 2019. See Fed. R. Civ. P. 5(b)(2)(C) & (E) & 6(d). Whether the due date was October 31 or November 4 is not material, however, as Mr. Bailey contends that he served his responses on October 30, before either deadline; while Trans Union contends that it did not receive the responses until November 17, after either deadline.
According to Mr. Merar, Trans Union never received the discovery responses that Mr. Bailey said that he had mailed, and Mr. Bailey has, to date, not furnished any proof to Mr. Merar indicating that that he, in fact, mailed the responses. (Merar Decl. ¶ 7.) Mr. Bailey also did not file a certificate of service reflecting the date and manner of service of his discovery responses before February 2020 [see Docs. 83, 84].
As noted, Mr. Bailey did not file certificates of service related to any of his discovery responses until February 21, 2020. [See Docs. 83, 84.] Notably, he was familiar with the process, having filed certificates of service in relation to his opposition to the earlier motions to dismiss. [See Doc. 21.] Moreover, and curiously, his handwritten signature was missing from the certificate of service attached to his February 18 email [see Doc. 86-15 at 70], but was included on the certificate of service subsequently filed on the docket [see Doc. 83].
At the outset of his discovery responses, Mr. Bailey also provided a “Preliminary Statement” and eight “General Objections,” together spanning six pages, which the Court will not regurgitate here. [See Doc. 86-15 at 11-16.]
Trans Union states that it has no record of receiving any of those letters and suggests that they may be fabricated. [Doc. 86-1 at 21.]
Trans Union does not move to compel responses to the initial disclosures, however.
Indeed, Mr. Bailey's failure to produce a privilege log appears deliberate, as one of Mr. Bailey's “General Objections” to Trans Union's discovery requests reads:
Plaintiff objects to each document request and admissions request to the extent that it calls for production of a privilege log for internal documents of Plaintiff. A request for such a log is unreasonable and unduly burdensome in light of the work product doctrine and other privileges protecting such internal documents from discovery.
[See Doc. 86-15 at 14.]
Indeed, Mr. Bailey persisted in his position even after the Court signaled during the January 13, 2020 hearing that his objections appeared baseless. [Doc. 70.]
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. 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. Georgia's Own Credit Union, et al., No. 1:20-cv-00173-AT-JKL; and Bailey v. Priority Ambulance, No. 1:20-cv-00928-AT.
Mr. Bailey's objections to Trans Union's requests for production in Bailey I read as follows:
Plaintiff objects to these requests for production of documents on the basis that they are overly broad, vague, and unduly burdensome. Plaintiff objects to these requests for production of documents as to the extent they seek documents or information that are readily or more accessible to Defendant from Defendant's own files, from documents or information in Defendant's possession, from documents or information that Defendant previously produced to Plaintiff, or from documents or information Plaintiff previously produced to Defendant. Plaintiff further objects to these requests for production of documents as they seek information protected by the work product doctrine and attorney-client privileges. Plaintiff also objects to these requests for production of documents on the grounds that is seeks information that is confidential. Plaintiff also objects to these requests for production of documents on the grounds that they seek information that is confidential. Plaintiff objects to any such requests, admissions request, and interrogatory as premature and expressly reserves the right to supplement, clarify, revise, or correct any or all responses to such requests, and to assert additional objections or privileges, in one or more subsequent supplemental response(s) in accordance with the time period for exchanging expert reports set by the Court. Subject to and not withstanding these objections and the general objections above, the plaintiff states:
Plaintiff has already turned over credit reports from Trans Union, Experian, and Equifax respectively. 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. Lastly, the requested authorizations will not be signed as they violate several of the afore mentioned privileges and are otherwise confidential and not relevant to these proceedings as well as all other afore mentioned objections.
Bailey I, 2015 WL 13774791, at *23.
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).
Trans Union should not include fees and expenses associated with the other discovery motions at issue in this Order.
Although Mr. Bailey did not raise it as an argument against the imposition of monetary sanctions, 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.