United States District Court, D. Nebraska
LEE A. JENKINS, on behalf of himself and all others similarly situated, Plaintiff,
CHRISTOPHER E. PECH and PECH, HUGHES, & MCDONALD, P.C. d/b/a Litow & Pech, P.C., A Fictitious Name, Defendants.
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on three motions filed by the plaintiff, Lee A. Jenkins (Jenkins): Motion to Compel Subpoena (Filing No. 81); Motion to Compel Trak America and Grimm Subpoenas (Filing No. 93); and Motion to Compel Responses (Filing No. 97). The parties fully briefed the motions.
This action pertains to the defendants', Christopher E. Pech (Pech) and Pech, Hughes, & McDonald, P.C. d/b/a Litow & Pech, P.C., a fictitious name, use of a standard letter and specific envelope in an effort to collect debts in Nebraska. Jenkins filed the instant action on February 6, 2014. See Filing No. 1 - Complaint. On February 12, 2014, Jenkins filed an amended complaint alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA) and Nebraska's Consumer Protection Act, Neb. Rev. Stat. §§ 59-1601-59-1623 (NCPA) for the defendants' routine practice of sending a misleading letter (Filing No. 6-1 - Letter) and envelope (Filing No. 6-2 - Envelope) concerning Jenkins' past-due debt. See Filing No. 6 - Amended Complaint.
In Jenkins' first and second motions, he requests the court to overrule the defendants' objections to the issuance of subpoenas on FIA Card Services, N.A. (FIA Card Services) and Trak America BOA FIA NE (Trak America). See Filing Nos. 81 and 93 - Motions. The FIA Card Services and Trak America subpoenas request: "All records and documents of any kind of all credit card accounts sold to or transferred for collection to defendants Christopher E. Pech and/or the law firm Pech, Hughes & McDonald, P.C." See Filing No. 62 - FIA Card Services Subpoena, Filing No. 86-1 - Trak America Subpoena. After discussion, Jenkins offered to limit the FIA Card Services subpoena to:
All records and documents for the credit card accounts of those Nebraska residents to whom Defendants' [sic] sent the 560 letters identified by Defendants during the period of June 2013 through February 2014 which were sold to or transferred for collection to Defendants Christopher E. Pech and/or the law firm Pech, Hughes & McDonald, P.C.
See Filing No. 82 - Brief p. 3. Jenkins contends the information sought may be useful in identifying class members. See Filing No. 82 - Brief; Filing No. 94 - Brief. Jenkins proposes any confidential information can be protected under the protection order entered in this case. Id. ; see also Filing No. 30 - Protective Order.
Also in his second motion to compel, Jenkins seeks to issue a subpoena on Tyler J. Grimm (Grimm), a previous employee of the defendants. See Filing No. 93 - Motion. The Grimm subpoena seeks:
All records, e-mails, spreadsheets, including all documents of any kind electronic in form and otherwise associated with the review credit card account of those Nebraska residents to whom Defendants' [sic] sent the 560 letters identified by Defendants during the period of June 2013 through February 2014 which were sold to or transferred for collection to Defendants Christopher E. Pech and/or the law firm Pech, Hughes & McDonald, P.C.
See Filing No. 85-2 - Grimm Subpoena. Jenkins similarly claims the information may be useful in identifying which accounts of prospective class members were incurred for personal, family, or household purposes. See Filing No. 94 - Brief. Underlying Jenkins' motions is the argument the defendants cannot oppose class certification on the basis Jenkins has not produced any evidence of records of the original creditors and also oppose Jenkins' attempt to obtain such records.
In Jenkins' third motion he seeks to compel responses to his third set of discovery requests. See Filing No. 97 - Motion. Jenkins made two requests for production in his third set of discovery requests. First, Jenkins seeks "[a]ll documents generated by Defendants' records search made pursuant to, The SQL query extracts files placed by Bank of America' as found on and pursuant to discovery responses served by Defendants and marked PECH 00020." See Filing No. 99-2 - Requests. The second request seeks "[a]ll records, including copies of electronic transmissions and communications, including but not limited to e-mails, sent back and forth between Defendants and attorney Tyler Grimm demonstrating spread sheets of new accounts and account exceptions reviewed by Mr. Grimm from June 1, 2013 to the present." Id. After asserting boilerplate objections, the defendants responded to both requests, "A diligent and reasonable inquiry has revealed no documents responsive to this Request." Id. Jenkins argues the requested information is required to assist in identifying the class members.
The defendants oppose the issuance of subpoenas to FIA Card Services and Trak America on the basis their records "may" be useful as insufficient to meet Jenkins' threshold showing of relevance. See Filing Nos. 87 and 101 - Responses. The defendants contend the records will not demonstrate whether a charge was for personal, family, or household purposes. Id. Additionally, the defendants argue credit card statements are extremely private and should not be disclosed without the individual cardholder's consent. Id. In the event the court does allow the subpoenas, the defendants assert the cardholders should be given the opportunity to "opt-out" of production of their statements. Id. The defendants also object to the subpoena on Grimm because it is overbroad and may include production of attorney-client communications. See Filing No. 101 - Response.
The defendants oppose Jenkins' third motion because, despite a diligent and reasonable inquiry, the defendants do not possess or have control of the requested discovery. See Filing No. 104 - Response. The defendants argue the documents Jenkins seeks, when they existed, were spreadsheets containing basic demographic data relating to account holders, such as their name, address, social security number, account number, account balance, last payment date, last payment amount, charge off date, and judgment date. Id. The defendants explain the spreadsheets did not include any information about how or why individuals incurred the charges on their credit card. Id. The defendants assert Jenkins has not provided any evidence supporting the allegation the defendants possess the requested discovery. Id.
In reply, Jenkins reiterates the requested records from FIA Card Services and Trak America may be useful in identifying class members. See Filing Nos. 88 and 105 - Replies. Jenkins asserts the existing protective order in this case will protect account holders' confidential information. Id. Jenkins also argues the defendants' purported concern for the privacy rights of the proposed class members is disingenuous. Id. In contradiction to the defendants' assertion the defendants do not possess the requested spreadsheets, Jenkins argues Grimm testified he saved his spreadsheets to his computer and thus the information is available electronically. Id. Jenkins contends the defendants have highly computerized systems and to claim a diligent search for the requested information has been made is simply specious. See Filing No. 107 - Reply. Jenkins points to Grimm's testimony wherein he stated "[t]o my knowledge, there ...