*1 Brian Haver brings this complaint against LVNV Funding LLC (“LVNV”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), Michigan Collection Practices Act (“MCPA”), and Michigan Occupational Code. (ECF No. 1.) On August 23, 2022, Haver moved to quash defendants' subpoena to depose Haver's counsel, Gary Hansz. (ECF No. 14.) The motion is fully briefed. The Court held a motion hearing on September 29, 2022.

For the reasons stated on the record and below, the Court DENIES Haver's motion to quash.

I. Background

According to Haver's complaint, LVNV attempted to collect a $15,503.00 debt that Haver owed Citibank NA (“account owed”). (ECF No. 1, PageID.2.) LVNV notated a dispute remark on the account owed.

After reviewing his Trans Union and Equifax credit disclosure, Haver saw the dispute remark. (Id.) On October 8, 2021, Credit Repair Lawyers of America (“CRLA”), on behalf of Haver, sent LVNV a “no longer disputes” letter. (Id., at 3.) The letter notified LVNV that Morgan no longer disputed the collection item and asked LVNV to remove the dispute comment from the collection item. (Id. at 3.) Gary Hansz, a CRLA attorney and Haver's Counsel, signed the “no longer disputes’’ letter. LVNV received the letter on October 20, 2021. On November 19, 2021, Haver obtained his Equifax credit disclosure which showed that LVNV continued to report the collection item and had not removed the dispute comment. (Id.) On November 22, 2021, Haver obtained his Trans Union credit disclosure which still showed the dispute comment. (Id.)

Haver alleges that LVNV's failure to remove the dispute notation despite receipt of the letter amounts to a violation of the FDCPA for knowingly reporting false information on Haver's credit report.

Haver alleges that as a result of the disputed item appearing on his credit score, his score is reporting inaccurately such that he is ineligible for mortgage financing and refinancing. (Id.) Haver seeks pecuniary and emotional damages due to LVNV's failure to remove the dispute remark from the account owed. (Id.)

II. Legal Standard

“A subpoena to a third party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26.” State Farm Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D. Mich. 2016). Parties may obtain discovery on any non-privileged matter that is relevant to any party's claim or defense, and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Courts have broad discretion over discovery matters. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999).

III. Analysis

A. Defendants Subpoena to Depose Hansz

LVNV issued a subpoena to depose Hansz in an effort to demonstrate, through Hansz's testimony, that the no longer disputes letter was untrue at the time the letter was sent. (ECF No. 16, PageID.94.) LVNV seeks to prove that Haver never communicated with Hansz or anyone else at CRLA that Haver no longer disputed the account owed. (Id.)

Haver moves to quash the subpoena on the grounds that any questions to Hansz beyond those related to his signature on the no longer disputes letter would be irrelevant to Haver's claims and LVNV's available defenses. (ECF No. 14, PageID.71.) Haver also claims that questions by LVNV about Haver's communications with Hansz or CRLA are protected by attorney-client privilege. (ECF No. 18, PageID.117.)

*2 LVNV issued a subpoena to depose Hansz for the same reasons in an almost identical case, that was before the Court, Morgan v. LVNV LLC No. 21-12967. The plaintiff in Morgan sought to quash the subpoena. In Morgan, the Court denied the motion to quash in light of factual distinctions that are discussed below.

Discovery requests are relevant if there is any possibility that the information may be relevant to the general subject matter of the action. In re Heparin Products Liability Litigation, 273 F.R.D. 399, 406 (N.D. Ohio 2011) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

During Haver's deposition, he testified that he no longer disputed the account owed. (ECF No. 16-3, PageID.103.) The testimony was as follows:

(ECF No. 16-3, PageID.103-04 ¶ 5-10.)

LVNV seeks to depose Hansz to show that the no longer disputes letter was untrue. It is clear from Haver's testimony that he no longer disputed the account owed. Moreover, Haver later testified that he called CRLA before the letter was sent to let them know that he no longer disputed the account owed. (ECF No. 16-3, PageID.104.) In assessing the truthfulness of the no longer disputes letter, the Court cannot think of anyone better to ask than Haver himself. Asking Hansz questions about where he acquired the information attested to in the no longer disputes letter is irrelevant given that Haver provided the answer to those questions.

This case is distinguishable from Morgan because when LVNV asked Morgan during his deposition if he informed CRLA that he no longer disputed the account, Morgan answered by saying “not that I recall”. According to Morgan's answer, it was unclear how Hansz received information that Morgan no longer disputed the account owed. Unlike in Morgan, it is clear where CRLA or Hansz received the information contained in the no longer disputes letter.

Even if the Court was to find that Hansz deposition would be relevant, any relevant questions asked about communications between Haver and CRLA would be privileged.

During deposition testimony, an attorney may preserve a privilege objection by asserting the privilege and instructing the client not to answer any further questions on that subject matter. Fed. R. Civ. P. 30(c)(2). Haver's counsel asserted a privilege objection during Haver's deposition:

(ECF No. 16-3, PageID.103-04 ¶.)

The elements of attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at this instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998).

Haver and CRLA established an express attorney-client relationship when they executed a retainer agreement at some point before Hansz sent the no longer disputes letter. Communications exchanged between Haver and his counsel about the account owed relate to the purpose in which Haver sought counsel. Haver's counsel correctly asserted privilege. Indeed, the fact that Haver no longer disputed the account was not privileged, but inquiries into whether there was an exchange between Haver and his attorney and what that exchange consisted of directly intruded on privileged communications.

In Morgan, the Court found that Morgan waived privilege because LVNV asked the same question and Morgan answered it without his counsel asserting a privilege objection. Here, Haver's counsel preserved his objection and Haver did not disclose what he did or did not exchange with his counsel.

The Court finds that Hansz's deposition testimony would be irrelevant and privileged, placing it outside the scope of discovery pursuant to FRCP 26(b)(1).

IV. Conclusion

For the foregoing reasons, the Court GRANTS Haver's motion to quash. LVNV is precluded from deposing Hansz regarding this case.

SO ORDERED.