I. DEFENDANT’S BOILERPLATE OBJECTIONS ARE IMPROPER.A. Defendant’s “Relevancy” Objections should be Stricken.

Throughout its objections, and in its “meet and confer” with counsel, Defendant has taken the

position that the information or documents sought by the Plaintiff “are not relevant.” It seeks to

withhold from discovery information and documents it unilaterally deems irrelevant. As stated

by Plaintiff’s counsel in the “meet and confer” discussions, this is not the standard for discovery.

While Plaintiff very much believes that the discovery sought is relevant, it is inarguable that it is

at least “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.

26.

Under Rule 26, Plaintiff may discover any materials that are not privileged if the materials

requested are reasonably calculated to lead to admissible evidence. Rule 26 is very broad,

permitting a wide range of inquiry at the pre-trial stage. If there is any possibility that the

information sought may be relevant, the court should permit the discovery. Hickman vs. Taylor,

329 U.S. 495, 67 S. Ct. 385 (1947). The policy underlying this rule is to promote fair litigation,

through mutual knowledge of relevant facts. Therefore, the rule is to be liberally interpreted in

favor of granting discovery. Hickman, at 597, 67 S. Ct. at 392.

Further, “relevancy” as defined in Rule 26 is much broader than the concept of what might be

relevant at trial. “Relevancy is broadly construed at the discovery stage of litigation and a request

for discovery should be considered relevant if there is any possibility that the information sought

may be relevant to the subject matter of the action.” Biliske vs. American Live Stock Ins.. Co., 73

F. R. D. 124, 125 (W.D. OK. 1977). Discovery of such “relevant” information “is construed

broadly to include ‘any’ matter that bears on, or that reasonably could lead to other matter that

could bear on, any issue that is or may be in the case.” Midland-Ross Corp. vs. United

Steelworkers of America, 83 F.R.D. 426 (W.D. PA.1979), quoting, Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 353 (1978). Recognizing this general policy of free and open discovery,

the scope of discovery is within the sound discretion of the trial court. Chrysler Corp. v. Fedders

Corp., 643 F.2d 1229, 1240 (6th Cir. 1981).

In addition to being necessary to foster fairness and discourage gamesmanship, broad

discovery also promotes judicial efficiency. This is accomplished by enabling the parties to learn

all the facts necessary to either negotiate a reasonable settlement or to adequately prepare for

trial. The parties and the court benefit from lack of surprise and unnecessary delays caused by

inadequate preparation. Also, the enforcement of free and open discovery from the outset of the

case helps to avoid the wasteful discovery disputes that take up the court’s time and resources.

Broad discovery promotes settlement, as all parties are able to learn facts related to their claims,

make a proper evaluation of their case, and engage in informed settlement negotiations. All

American courts agree that discovery should be extremely broad. Seattle Times Co. v. Rhinehart,

467 U.S. 20, 104 S.Ct. 2199 (1984); Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635 (1979);

Hickman v. Taylor, 329 U.S. 495 (1947).

The broad general definition of relevancy previously discussed also applies to the discovery

of documents. Miller v. Federal Express Co., 186 F.R.D. 376 (U.S.D.C. W.D. Tenn. 1999).

Discovery of documents is permitted where the documents might lead to the discovery of

admissible evidence. Id. With documents, as with discovery in general, relevance is determined

by whether the information or documents sought relate to a claim, defense, or credibility of a

witness. It also includes whether the information sought might reasonably lead to the discovery

or location of evidence that is relevant and admissible. Scouler v. Craig, 116 F.R.D. 494 (N.J.

1987); Hickman v. Taylor, supra, ("No longer can the time-honored cry of ‘fishing expedition’

serve to preclude a party from inquiring into facts underlying the opponent's case.").

B. Defendant cannot meet its Burden to Support its Objections.

Courts considering motions to compel have held that the party objecting to production of

documents has the burden of proving that the records are either not relevant or that the burden of

production is so great as to outweigh the need for fair discovery and the goals of discovery.

Oleson v. KMart, 175 F.R.D. 560, 565 (Kan. 1997); Burke v. New York City Police Dept., 115

F.R.D. 220, 224 (S.D. N.Y. 1987). The party seeking to deny discovery has an affirmative duty

to articulate facts, as opposed to mere conclusions, regarding the alleged lack of relevancy or

burden. Defendant has yet to provide a factual and specific basis to support any of its objections.

To voice a successful objection to a discovery request, an objecting party may not simply

intone the familiar "overly broad, burdensome, oppressive and irrelevant" litany. The mere

statement by a party that a discovery request is burdensome is not adequate to voice a successful

objection to discovery. Josephs v. Harris Corp., 677 F.2d 985, 992 (3rd Cir. 1982). See also

McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990); Panola

Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985). The objecting party must

objectively support its claim. It must demonstrate specifically how, given the liberal construction

afforded the federal discovery rules, the discovery request is overly broad, burdensome or

oppressive by submitting affidavits or offering evidence revealing the nature of the burden.

Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (ED.PA 1980). See also, Burns v.

Image Films Entertainment, 164 F.R.D. 589, 593 (WD NY, 1996).

The duty of establishing the propriety of an objection based on a claim that the request is

unduly burdensome is on the objecting party. Snowden v. Connaught Lab., Inc., 137 F.R.D. 325,

332 (Kan. 1991); see also, Johnston Dev. Group, Inc. v. Carpenters Local Union No. 1578, 130

F.R.D. 348, 353 (N.J. 1990); G-69 v. Degnan, 130 F.R.D. 326, 331 (D.N.J.1990); Flora v.

Hamilton, 81 F.R.D. 576 (M.D.N.C. 1978). The objection must show with specificity how the

discovery request is overly broad, burdensome, or oppressive and submit affidavits in support or

offer evidence which reveals the nature of the burden. Chubb Integrated Sys. Ltd. v. National

Bank of Wash., 103 F.R.D. 52, 59-60 (D.C. 1984); see also Cipollone v. Liggett Group, Inc., 785

F.2d 1108, 1121 (3d Cir. 1986); Compagnie Francaise D'Assurance Pour Le Commerce

Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42-43 (S.D.N.Y. 1984); Roesberg v. Johns-

Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980); In re Folding Carton Antitrust Litig., 83

F.R.D. 260, 264 (N.D. Ill. 1979); Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D. Kan.

1991). Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa.) (“The onus is

therefore on the party objecting to discovery to state the grounds for the objection ‘with

specificity.’ Rule 33(b)(4). Mere recitation of the familiar litany that an interrogatory or a

document production request is ‘overly broad, burdensome, oppressive and irrelevant’ will not

suffice.”) Without a clear showing that the request is truly ‘overly’ burdensome, the objection

will not be allowed. The “mere” fact that discovery requires work and may be time consuming is

not sufficient to establish undue burden. Fagan v. District of Columbia, 136 F.R.D. 5, 7 (D.D.C.

1991); see also, Luey v.Sterling Drug, Inc., 240 F. Supp. 632, 634-35 (W.D. Mich. 1965); United

States v. Nysco Labs., 26 F.R.D. 159, 161-62 (E.D.N.Y. 1960).

In this case, Defendant has objected to interrogatories and requests for production on the

grounds of over breadth and/or undue burden. The objections are unaccompanied by any

explanation or evidence of the burden.

II. PLAINTIFF’S DISCOVERY REQUESTS ARE PROPER

Plaintiff has narrowed her discovery requests in the meet and confer process and in this

motion to remove any that are controversial, unnecessary or untested. Nearly every

Interrogatory or Request for Production hereafter prosecuted has been the subject of comparable

discovery or trial motions in other FCRA litigation. Plaintiff asks the Court to Order production

or, when appropriate, exclusion of the information and comments sought in the following

requests.

INTERROGATORIES AND RELATED REQUESTS FOR PRODUCTION

A. Interrogatories and Requests regarding how the disputed account was opened.

Each of these Interrogatories focuses on a different part of the same issue – what evidence

did Defendant have that the Plaintiff was the person who applied and agreed to be responsible for

the disputed account. This core question of “accuracy” will be addressed shortly in Plaintiff’s

Motion for Partial Summary Judgment. In an identical FCRA case – where the credit company

opened an account for the ex-wife of the Plaintiff and then later reported that he was personally

liable – the United States District Court for the Eastern District of Virginia considered and

granted such a motion:

The Plaintiff moves for partial summary judgment on the sole issue of whether hewas obligated on the subject indebtedness or not as that is relevant to thedefamation claim, and whether Capital forwarded inaccurate information to theCRAs so as to be in potential violation of the FCRA. […] The court concurs thatthere are no disputed material facts remaining after resolution of the Defendant'smotion concerning whether the Plaintiff was or was not obligated on the subjectindebtedness FN10 [fn10 Because the Defendant cannot produce the application forthe first card and does not contend that the Plaintiff signed the second one as a co-obligor] such that the resolution of the issue of the accuracy of the information is aquestion of law that would have to be resolved by the court anyway at some point.Accordingly, the motion will be entertained and GRANTED for the reasons alreadydiscussed.

Alabran v. Capital One Bank, 2005 WL 3338663 (E.D.Va. 2005) (Exhibit “D”). Plaintiff is

entitled to discover what evidence if any Defendant has to support its assertion that the subject

account belonged to the Plaintiff. Alternatively, pursuant to Rule 37(c)(1), Defendant should be

precluded from producing any such belated “evidence” or argument that Plaintiff was ever

responsible for the disputed account.

Plaintiff never met the third party Alabama resident who Defendant’s records indicate

opened the account. When initially interviewed by the police, he even claimed to have no

knowledge as to how the Plaintiff could have ended up on his note. Now, after the fact in tis

litigation Defendant is attempting to manufacture some connection between Plaintiff and the

criminally accused third party. Defendant has served a subpoena requesting all of the Plaintiff’s

work records from her previous employer and all of her personal e-mail from Bellsouth. Yet

despite the breadth of Defendant’s own discovery attempts, it refuses even the most basic

discovery regarding how the disputed account was opened, what happened when Defendant

investigated Plaintiff’s disputes and what documents it had to support and prove its claim.

Interrogatory No. 1 requests:

Please provide the details on how the account was opened, including without limitation who waspresent at the time the application was made and the loan documents were signed; and howDEFENDANT representatives verified that the person(s) who co-signed the applicationwas/were the same person(s) who DEFENDANT sought to make responsible for the account.

Defendant’s original refusal to provide a substantive response was premised on its three

objections - assertions that the Interrogatory was “vague and ambiguous” and a claim that it

included discrete sub-parts. Defendant has since withdrawn application of the later objection.

Its refusal to respond more substantively can thus be based on only its limited objections. But

complaints of vagueness are disingenuous at best. Interrogatory is anything but.

In response to this Interrogatory, Defendant skirts the direct question in same and instead

notes its assertion (denied by Plaintiff) that had mailed select documents in the case to an address

it believed was the Plaintiffs without receiving returned mail. Plaintiff supplemented by stating

that “the school, Fisk University, was the in-person contact during the application process.”

However, this remains non-responsive to the request.

Request for Production 2Produce all documents in your possession with regard to the Plaintiff or the subject of this suit.Request for Production 3Produce any and all documents regarding Defendant Account # _________.Request for Production 13

Produce every manual or other document which lists, explains and/or describes any code contained in your CLASS or other customer information systems, any reinvestigation record or file, and any other retained computer record and/or screen/file you generated and accessed regarding Plaintiff or any account attributed to the Plaintiff.

As Plaintiff’s counsel learned in earlier Defendant litigation and upon a review of the

limited manuals Defendant has now produced, Defendant stores its account data and history in a

system it has named “CLASS.” The manuals and previous litigation identify a modest range of

variously numbered “Screens” that display this data. In the meet and confer process, Plaintiff

has asked Defendant to produce each of the available “CLASS screens” regarding the disputed

account. Defendant has refused to do so, instead offering only those screens that it may have

previously printed before this litigation ever commenced. There is no basis for it to withhold this

core information regarding the subject account. The printing exercise cannot be particularly

difficult, time consuming or burdensome. The records all pertain to the actual account at issue in

this case.

Plaintiff also asks the Court to order Defendant’s production of all documents regarding

the communications exchanged between the parties. In particular, Plaintiff has learned from

previous Defendant litigation that the fraud department retains detailed records chronicling all

such communications made as part of a fraud dispute.

B. Interrogatories and Requests regarding the substance and reasonableness ofDefendant’s handling of the Plaintiff’s disputes and its FCRA investigations.

Plaintiff’s primary discovery focus has been a targeted set of request to determine what

Defendant did to receive and investigate her disputes. She is alleging that Defendant’s process is

unreasonable, lacks any substantive investigation component, lacks any supervision or

management review and incentivizes its employees and outsource vendors to quickly and

summarily reject consumer fraud and credit reporting disputes. This range of discovery requests

is central to this case. And yet, Defendant has refused to produce nearly everything requested,

particularly as it pertains to its third party outsource vendor in India that actually handled 100%

of the FCRA disputes relevant in this case.

Interrogatory 4

Did you ever conduct an investigation or reinvestigation of any information ever reported to a consumer reporting agency about the Plaintiff or otherwise placed in a file at your company which contained any identifying information about the Plaintiff?

If so, fully state all details of such investigation. More specifically and narrowly, the following is the minimum amount of information that will satisfy this request and interrogatory:

- identity of all persons who conducted or participated in any such investigation or reinvestigation;

- the date of each such investigation and all written and non-written communications pertaining to any such investigation;

- the reason for any such investigation; - all procedures used by the defendant in conducting any such investigation; - each document or electronic record you know that your employee(s) actually consulted

in performing such investigation(s);- each document or electronic record your employee(s) was permitted to consult in

performing such investigation(s);- each document or electronic record your employee(s) was required to consult in

performing such investigation(s); - all steps taken by the defendant with respect to the Plaintiff’s file following any such

investigation or reinvestigation.

This request targets the information at the heart of this case – what did Defendant do and

how did it do it. For its response, the Defendant uses a Fed. R. Civ. P. 33(d) argument claiming

that the information sought can be found easily by the Plaintiff in Defendant’s Business Records

– in particular the “ACDV” forms by which the Plaintiff’s dispute and Defendant’s response

were communicated between Defendant and the credit bureaus.

Even were Defendant permitted to respond to this or any interrogatory by reference to

one of its internal records, merely stating, “Look in the documents we sent you” is an inadequate

response and does not satisfy the rigorous requirements of Rule 33(d). The court’s opinion in

Saleh v. Moore is instructive. It granted sanctions twice in that matter and specifically criticized

the responding party’s vague referral to business records under Fed. R. Civ. P. 33(d) stating:

Also, the Defendants inappropriately invoked the option to produce business records underFed.R.Civ.P. 33(d) by failing to make an adequate specification as required by the rule, byusing it to avoid answering hard questions, and by dumping large volumes of unindexeddocuments on the Plaintiffs. The Plaintiffs incurred substantial attorneys' fees and expensesin a good faith effort to search the proffered records, in compelling the Defendants toprovide proper answers to the interrogatories once counsel concluded the answers wouldnot be discerned by examining the tendered records, and in seeking and receiving sanctionswhich finally produced answers.

Saleh v. Moore, 95 F.Supp.2d 555, 561 (E.D.Va. 2000). Similar limitations to a Rule 33(d)

answer were imposed in Christian Coalition International v. U.S., 2002 WL 1482523 (E.D.Va.

2002). Judge Miller explained:

[A] party relying on a Rule 33(d) business record production to answerinterrogatories must (1) affirm that the information sought by the interrogatory infact is available in the specified records, (2) be able to demonstrate that answeringthe interrogatory in the traditional manner would impose a burden on it, (3)establish that the burden of compiling information is substantially the same for theinquiring and responding parties, and (4) specify which records contain theinformation sought by the interrogatory. Volume 8A, C. Wright, A. Miller & R.Marcus, Fed. Prac. & Proc. Civ.2d. § 2178 (1994).

Christian Coalition International v. U.S., 2002 WL 1482523 (E.D.Va. 2002) (emphasis added).

Presently, Defendant cannot establish that the burden of compiling Defendant’s dispute process

in the case is “substantially the same” between the two parties. In fact, the ACDVs (an example

is attached as Exhibit G”) provide nothing other than the outcome of the dispute process and

investigation. They do not explain how the Indian outsource vendor actually preformed the

detailed and substantive investigation required by Johnson v. MBNA or really much of anything

else.

Defendant’s response to this interrogatory is similar to the position is has taken generally

with respect to the Indian outsource vendor. It has refused to provide any documents it uses for

such company, contracts between it and the vendor, procedures manuals used by the vendor, e-

mail or other communications exchanged with the vendor or records demonstrating its

supervision and adequate compensation of the vendor for its FCRA investigations. The best that

the Plaintiff has received is the name of the company with its street address in India.

Interrogatory 5

Identify all documents prepared by or on behalf of Defendant used in connection with thetraining, instruction, supervision or evaluation of any of your employees or of any third partypaid by you identified in your responses to these interrogatories. [NARROWED to documentsrelated to Fraud and Credit Reporting disputes].

Request for Production 9

Produce the personnel file(s) of each of your employees who ever conducted an investigation ofany information ever placed in the Plaintiff's file or regarding the Plaintiff or any account thatyou had attributed to her (but do not produce unrelated medical or other personal informationabout that person contained within the file). [NARROWED to request only the periodicevaluations in such employee files since January 2008].

Request for Production 21

Documents related to Defendant’s outsource vendor that actually conducted the ACDVverifications at issue in this case including contracts and related compensation documentsbetween the vendor and Defendant, communications regarding what the vendor is supposed to dowhen it receives ACDV disputes, and quality control, audits and other supervision documents, ifany.

Request for Production 23

Documents regarding or detailing the supervision and/or compensation of the employees oroutsource vendor employees involved in receiving, investigating or otherwise acting upon thePlaintiff’s disputes, including by example only and without limitation all training documents,

documents that instruct as to consumer dispute investigation procedures, documents that instructas to handwriting analysis, and quality control and performance review documents created in2009.

Request for Production 25

Quality control audits, spreadsheet reports and related documents from January 1, 2009 to thepresent.

Request for Production 27

All 2009 bulletins, memos and other documents discussing Fraud department performance review and compensation.Request for Production 28

All 2009 communications with Defendant’s ACDV outsource vendor that do not pertain solely toa specific consumer dispute.

As addressed above, Plaintiff has requested the identification and production of the

documents used to train, supervise, evaluate and compensate the individuals and outsource

vendor who and that worked on the fraud and credit reporting disputes in this case. Defendant

has produced only a limited procedures manual, but nothing regarding the supervision and

governance of the Indian vendor or its employees who actually performed the FCRA work in this

case. It has produced none of the documents responsive to each of the requests above and

nothing regarding how such employees/vendor are supervised, evaluated or compensated. For

example, despite the governance of an effective protective order in this case, Defendant has

refused to produce the contract(s) between it and its FCRA outsource vendor, correspondence

with same or even the manuals and documents it used to perform the work regarding Plaintiff’s

disputes.

In its supplemental response to Interrogatory 5 after the meet and confer process,

Defendant now identifies the “2009 Credit Reporting Resource Guide.”1 It is very unlikely that

the Indian outsource vendor ever saw, let alone used this document. It is also unlikely that any

Defendant employee who handled any of Plaintiff’s direct disputes did so. That is because this

document has literally nothing to do with the dispute and investigation process. It is generated by

the trade organization for the Consumer Data Industry Association (CDIA) operated by the “Big-

3” credit bureaus and serves as the reference manual for the credit industry’s “METRO 2” format

of data reported to the bureaus.2

Defendant’s refusal to provide any documents revealing what it did to train, supervise or

evaluate its relevant employees and outsource vendor prevents Plaintiff from discovering

evidence long held relevant to such FCRA clai In a FCRA case like this one, the core issue

is the reasonableness of the procedures used by the Defendant to “investigate” the Plaintiff’s

disputes. The consumer argues that the “investigation” was superficial and did not devote

sufficient time and resources to obtain a reasonable and proper outcome. See e.g. Johnson v.

MBNA, 357 F.3d 426, 430 (4th Cir. 2004) (“The key term at issue here, “investigation,” is

defined as “[a] detailed inquiry or systematic examination.” Am. Heritage Dictionary 920 (4th

ed.2000); see Webster's Third New Int'l Dictionary 1189 (1981) (defining “investigation” as “a

searching inquiry”). Thus, the plain meaning of “investigation” clearly requires some degree of

careful inquiry by creditors.”)

A FCRA defendant’s failure to supervise its employees is actionable. Yohay v. City of

1 Defendant’s letter to Plaintiff’s counsel identifies this document it intends to later provide as the“Consumer Reporting Resource Guide”, which Plaintiff’s counsel assumes to be a typographical mistake. The title is actually as stated above. 2 See e.g. http://www.cdiaonline.org/Metro2/content.cfm?ItemNumber=854 last viewed on August 31, 2010. A full copy of the 2008 version of this manual can be viewed online at http://www.scribd.com/doc/13060834/2008CRRGFullVersion last viewed on August 31, 2010.

Alexandria Employees Credit Union, Inc., 827 F.2d 967, 23 Fed. R. Evid. Serv. 1147 (4th Cir.

1987) (applying conventional agency principals to FCRA case); Dennis v. BEH-1, LLC, 520 F.3d

1066 (9th Cir 2008) (agency unreasonably relied on third party vendor to perform its

investigation). “An employer is liable for negligence in failing properly to instruct employees, or

failing to assure that the instructions are obeyed.” 30 C.J.S. Employer—Employee § 205.

Similarly, Defendant’s system to evaluate and compensate its relevant employees (those

that conducted its direct dispute handling of the Plaintiff’s contacts) and its outsource vendor are

relevant to the reasonableness of its investigation process. If as Plaintiff hypothesizes the Indian

outsource vendor is incentivized to process consumer disputes by volume or if as Plaintiff’s

counsel already knows from previous litigation Defendant evaluates its fraud department by the

dollar losses it avoids taking as fraud chargoffs, this information is not just discoverable, but also

admissible. Cushman v. Trans Union, 115 F.3d 220 (3rd Cir. 1997) (“TUC's investigations are

performed by clerks paid $7.50 per hour and who are expected to perform ten investigations per

hour. […] [T]he jury could have concluded that seventy-five cents per investigation was too little

to spend when weighed against Cushman's damages.”); DiPrinzio v. MBNA America Bank, N.A.,

2005 WL 2039175, *10 (E.D.Pa. 2005) (“[A] jury exposed to information regarding the average

processing time could improperly believe that MBNA's investigations of the particular disputes

relating to plaintiff were conducted in the same amount of time. […] [T]he information is

directly relevant under 15 U.S.C. § 1681s-2(b)(1), which states that a creditor must conduct a

investigation of a consumer's disputes.”).

Interrogatory 8

Describe the location of each facility at which any credit reporting dispute regarding Plaintiff’saccounts are received and/or conducted including the name(s) of such facilities, the address ofsuch, the highest ranking person employed by Defendant located at and or in charge of thefacility and the total number of employees at such facility in 2009.

While Defendant has identified “Marrisoft, Marigold Premises, Survey # 15/1 -15/6,

Kelyani Nagar, Purse, India-411006” for its response, it has not provided any other details or

documents regarding this otherwise unknown entity that performed all of its relevant FCRA

compliance in this case. As regards Interrogatory 8, Plaintiff has also requested the identity of

the highest ranking management employee that supervises the outsource vendor so that she may

notice an appropriate deposition pursuant to Rule 30(b)(1). Defendant has expressly refused to

provide this information.

C. Additional Evidence of Willfulness

Request for Production 4

Produce all documents that detail or describe your procedures for compliance with 15 U.S.C. §1681s-2(b), since January 1, 2004.

Request for Production 22

Documents related to Defendant’s efforts to comply with 15 U.S.C. §1681s-2(b), including by example only documents stating Defendant’s knowledge of governing legal requirements, documents detailing changes made to comply with the law, internal reviews and discussions of investigation procedures and any documents discussing identity theft disputes.

Defendant has objected to these requests and refused any production because of their

time frame and because of an unexplained assertion of attorney client “and/or” work product

privilege.

First, Defendant objects to the time frame – the request asks it to produce its FCRA

investigation procedures used since 2004. While most of Plaintiff’s discovery requests are more

narrow in time frame or have been compromised to a 2009 production period, this request needs

to be met starting in 2004 as a means to discover any effort that Defendant has made to comply

with the FCRA during two critical periods. In 2004, the Fourth Circuit held in Johnson v. MBNA

that a superficial review of a creditor’s computer screen is an unreasonable investigation

procedure. Then in 2008, it held in Saunders v. B.B. & T. that a creditor that knows an account is

disputed must report that fact to the credit bureaus in its FCRA investigation results. Defendant’s

reaction to these governing cases will be reflected in its procedures and changes made during

these periods. While Defendant is correct that the procedures actually used to perform the 2009

“investigations” in this case are the only one relevant to the question of whether or not the

investigations were reasonable, the Defendant’s response to the development of governing FCRA

requirements is relevant to the Plaintiff’s allegation that Defendant’s FCRA violations were

“willful.” 15 U.S.C. § 1681n.

In Safeco Insurance Co. v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007),

the Supreme Court explained that willful violations under the include “not only knowing

violations of [the statute] but also reckless ones,” id. at 57. The Court defined a reckless action as

one involving “an unjustifiably high risk of harm that is either known or so obvious that it should

be known.” Id. at 69. A reckless violation of FCRA is “not only a violation under a reasonable

reading of the statute's terms, but [also one that] shows that the company ran a risk of violating

the law substantially greater than the risk associated with a reading that was merely careless.” Id.

at 69. The Court held that Safeco's violation of FCRA was not reckless because it was based on a

reasonable reading of a “less-than-pellucid statutory text” for which there was no authoritative

guidance from the courts of appeal or the FTC. Id. at 69-70. In the present case, Plaintiff has

propounded this and several other document requests to discover Defendant’s knowledge of and

procedural reaction to the two leading Court of Appeals decisions governing its compliance with

§ 1681s-2(b).

It also bears noting that there is little “downside” or burden faced by Defendant’s

production of these documents. It merely needs to photocopy them. There is a protective order

in this case if confidentiality is a concern. Thus Defendant’s refusal to produce the documents

is not that it is not able to do so or that its burden is imbalanced, but rather than it jus does not

want the Plaintiff and the Court to know what those procedures did or did not require over time.

Finally, Defendant’s assertion of privilege is itself improper. To date, literally months

after these requests were served, it has yet to proffer a privilege log or otherwise attempt

compliance with Fed. R. Civ. P. 26(b)(5). Even if it did so now, the discovery period is close to

ending and such attempt would be in violation of the federal and Local rules in such regard.

Beyond this procedural problem, it is also unlikely that all of the requested documents are

privileged. The requests do not seek just documents containing legal advice. They seek

evidence of Defendant’s notice of governing FCRA law that could render its procedures

unlawful.

Request for Production 7

Produce all communications, manuals, instructional materials, training videos or tapes or otherdocuments provided to you by the CDIA (or Equifax, Experian or Trans Union) that pertain toyour reporting of a credit account as disputed and/or your use of the Metro 2 “compliancecondition code” field.

Plaintiff has narrowed this request to the period from January 2008 forward. One of the

Plaintiff’s two FCRA claims is based upon the Fourth Circuit’s decision in Saunders v. B.B. & T.

in which it held that a creditor must report the disputed status of its accounts in responding to

FCRA disputes under 15 U.S.C. § 1681s-2(b). This decision occurred in 2008. Thereafter, the

credit reporting agencies, through the CDIA, began providing additional information to

Defendant and other creditors detailing how it was to make such notations – through the

“compliance condition code” field on ACDV dispute for Plaintiff’s counsel also confirmed such

exchanges in a deposition taken in earlier Defendant litigation (but which Defendant designated

as confidential and refuses in this case to disclose).

Request for Production 8

Please produce every document that regards and/or describes each and every change which youhave instituted or made to your procedures and policies for reporting disputed accounts toconsumer reporting agencies after the Fourth Circuit’s decision in Saunders v. Branch Bankingand Trust Co. of Virginia.

Plaintiff has addressed this request in the previous paragraphs. Defendant has refused to

produce any documents in such regard.

Interrogatory 3.

[For each of the Defendant employees identified as witnesses in this case]: please list each andevery lawsuit in which that person has testified by affidavit, deposition, trial testimony, or byreport furnished to the court or opposing counsel. Please explain and describe the nature of eachsuch statement by the person so identified. Please identify the lawsuit by complete caption, courtname, cause number, and date the affidavit, deposition, trial testimony, or report was made, takenor occurred.

Request for Production 10

[For each of the Defendant employees identified as witnesses in this case]: produce a copy of anyaffidavit, deposition, or expert witness report which contains the testimony or opinion(s) of suchwitness and that has been previously furnished to the court or opposing counsel in such case.

Plaintiff is entitled to learn whether or not any of the witnesses disclosed by the

Defendant in this case have previously testified in other FCRA cases brought against Defendant.

There are two reasons this is so. The prior testimony of a party’s employee witnesses is

admissible in a subsequent case. Fed. R. Evid. 613; Fed. R. Civ. P. 32(a). In fact, in this case

the Plaintiff has herself disclosed previous depositions of some of Defendant’s employees

testifying about the same issues now before the Court. To the extent that those witnesses now

testify in a manner that is inconsistent with their previous testimony, they can be impeached.

Similarly, if any of the employees not previously known to Plaintiff’s counsel have testified in

prior litigation, that testimony may be useful to limit the current positions of the Defendant and

the testimony of its employees.

For example, in this case Defendant is trying a defense approach that it has used

in other identity theft cases – blame the victim. It asserts that the Plaintiff was not entitled to

dispute the account unless and until it provided Defendant its proprietary form titled “Identity

Theft Packet” that included Plaintiff’s attestation under oath that she knew who defrauded

Defendant and executed her signature as a co-signor. In this case, Plaintiff had no idea who did

this, or even if there was a note even signed at all. She attested that SHE never signed such a

note and never authorized anyone else to do so. She obtained a police report and caused the

criminal investigation of Defendant’s account. She complained to the Federal Trade

Commission. And she provided all f this information to Defendant. But because she did not

conclusively state under oath that “I know that this specific person forged my name”, Defendant

rejected her dispute. This position is the exact opposite of one taken in an otherwise identical

Defendant co-signor ID Theft case recently litigated by Plaintiff’s counsel. In Consumer 1 v.

Defendant, the Defendant’s position was that the consumer who had signed such a Defendant

form and had expressly stated that it was is ex-wife who signed the document, accused him of

doing so even though he lacked anything more than circumstantial evidence to support such

accusation. Accordingly, Defendant positions and witness testimony in that case will be useful if

it contradicts testimony contrary to that position in this case. There are any number of similar

examples that could be presented

A second purpose for the requested evidence is to establish what DEFENDANT’s

employees and agents knew about the failings in its procedures and when they knew it. An

important factor in a jury’s determination of whether or not a violation of the FCRA was willful

is the existence of prior complaints by other consumers. The Fourth Circuit explained in Dalton:

Dalton has not shown, for example, (1.) that CAI was aware that its subvendorsrelied upon informal legal opinions from court clerks. (2.) There is no evidencethat other consumers have lodged complaints similar to Dalton's against CAI. (3.)Indeed, CAI had used SafeHands for about a year and had found the firm to bereliable. Further, CAI corrected its mistake one day after Dalton challenged theaccuracy of the report. Id. at 418. (numbering added).

Accordingly, Plaintiff is entitled to discover the prior testimony of Defendant’s witnesses,

as well as the details of prior complaints made against it under the FCRA.

Interrogatory 7

Identify each and every lawsuit in which you have been sued for your alleged violation of 15U.S.C. §1618s-2(b). Include the style of the case, the court in which the action was brought, thecase number, the name of Plaintiff’s attorney, the date the case was filed and the disposition ofthe case.

The Plaintiff has pled and seeks to prove that Defendant’s violations of the FCRA were

willful. As discussed immediately preceding this Interrogatory, the Fourth Circuit has held relevant

to a willful determination the question of whether or not there is “evidence that other consumers

have lodged complaints similar to” Plaintiff’s. Id. at 418.

The same evidence was ordered produced in the Eastern District of Virginia by Judge

Payne in Faile v. Equifax Information Services, LLC (3:06cv617) and by Magistrate Judge

Dohnal in two FCRA cases, Dorsey v. DEFENDANT. et als., 3:05cv337 (against Select Portfolio

Servicing) and Alabran v. Capital One Bank (3:05cv935). Not only is evidence of prior

complaints relevant to the question of willfulness under 15 U.S.C. §1681n, it is also relevant to

the question of notice for simple negligence. In Grizzard v. DEFENDANT, (E.D.Va. 3:04 CV

625), Judge Williams considered a Motion in Limine to exclude such evidence at trial. The

Court denied this motion, explaining:

The defendants' motion in limine to exclude testimony and evidence regarding otherlitigation is denied in part and granted in part. The Court will limit such testimony andevidence regarding other litigation. I will not permit unfettered use of evidence from anyother cases as that would complicate the trial and confuse the jury. However, someevidence, such as the complaint and the Fourth Circuit's opinion in the Johnson case, andother evidence that would be relevant to the issue of the defendants' actual notice that theirprocedures were unreasonable or violated the Fair Credit Reporting Act will be relevant toshow notice, knowledge, or willfulness and will not be excluded.

More recently, in Mullins v. TransUnion, (3:05cv888). Judge Payne considered an almost

identical argument (though in a different posture) in which the FCRA Defendant, TransUnion,

sought to prevent the consumer’s use of previous lawsuits and court decisions criticizing that

Defendant’s investigation procedures. Judge Payne rejected such an attempt and in doing so

provided a concise and complete explanation of the purpose of such evidence:

THE COURT: All right. I think the information that Trans Union got a messagefrom a court that told it its investigative procedures were inadequate is relevant. Idon't think it's prejudicial because it is notice that the investigative procedures wererelevant. […]THE COURT: Cushman says you can't parrot information given you by the bank.MR. LUCKMAN: Under some circumstances.THE COURT: Period. That's it.MR. LUCKMAN: It says "under some circumstances."THE COURT: Look, it's time that you-all came to realize that when a Court tellsyou something, you have got to realize it, accept it, and do something about it. Ifyou don't, you're in trouble. It's time that your client understood that, and that'swhat he's trying to prove. And if you don't do it, you get punished for doing it.That's just the way life is.

In Mullins and Williams, the Court was considering whether or not evidence of prior

complaints and decisions was relevant and thus admissible. Presently, the Court is faced with an

even easier question – whether such information is even discoverable. It certainly is and should

be compelled.

D. Previous Defendant Litigation – Consumer 1 v. Defendant.

[PENNY – PLEASE CUT AND PASTE IN OUR RELEVANT SECOND SET OF DOC

REQUESTS]

Plaintiff’s counsel has just completed litigation of a nearly identical case against

Defendant. Consumer 1 learned after the fact that Defendant was reporting him as a co-signor

on loans he knew nothing about. He disputed, Defendant rejected his dispute and processed his

FCRA disputes in India. He sued.

In that litigation, Plaintiff’s counsel discovered significant evidence – documents and

depositions of Defendant employees/former employees – that is relevant in this case. For

example, the Defendant employee in charge of credit reporting was deposed. The former

manager of the Defendant fraud department was deposed. Additional manuals and documents

regarding fraud and credit reporting disputes were produced. However, in all instances

Defendant designated these under the protective order in effect in that case and has refused to

allow transfer of these depositions and re-production of same by Defendant (they were destroyed

in accordance with the protective order) in this case.

Certainly there is no possible burden Defendant could in good faith assert. Instead, it

withholds these documents and depositions merely to obstruct.