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Evon v. Law Offices of Sidney Mickell

February 3, 2010


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge


Previously pending on this court's law and motion calendar for January 28, 2010, was plaintiff's motion to compel further discovery responses, filed October 29, 2009. Sergei Lemberg appeared telephonically for plaintiff. John Dahlberg represented defendants. After hearing oral argument and reviewing the joint statement, the court now issues the following order.


Plaintiff filed the instant action under the FDCPA, claiming that defendants engaged in harassing conduct violative of the act by sending a letter to her at her place of employment which threatened her with legal action, wage garnishment, bank account levies, attachment of assets, and accrual of interest and attorneys' fees. Defendants contend that it is undisputed that they intended to commence legal action against plaintiff and did in fact file a complaint against her on February 6, 2009, a few weeks after the January 14, 2009 letter was sent to her office.

The discovery requests at issue were originally served on August 27, 2009. After some extensions of time, defendants responded around October 16, 2009, through its former counsel. On November 2, 2009, current defense counsel was substituted in. Plaintiff's motion was originally noticed for hearing on December 10, 2009, but was continued by order filed December 2, 2009, after a telephone conference initiated by defendants on November 30, 2009 concerning some of the issues raised in the motion. In that order, the undersigned directed plaintiff to inform defendants which discovery requests were being withdrawn, and defendants were to provide complete responses, including production of documents for inspection, to plaintiff's discovery requests by December 17, 2009.

A misconception that runs throughout defendants' papers is the belief that discovery can only be obtained that is personal to the named plaintiff's suit. That is not true. The action is styled as a class action. Unless a court orders otherwise, discovery can proceed into class issues. Sirota v. Solitron Devices, 673 2d 566, 571 (2nd Cir. 1982); Kingsberry v. Chicago Title Ins. Co., 258 F.R.D. 668 (W.D. Wash. 2009). As importantly, the amended complaint itself references specific provisions of FDCPA which were allegedly violated. At this point, the undersigned is in no position to find that certain provisions do not relate to the named plaintiff and others do. No law and motion has taken place which would make this clear. Thus, the undersigned can only rule upon this discovery motion with the fact in mind that the amended complaint's allegations cover a wide variety of activities.

As discussed at hearing, all of the further discovery discussed is based upon this broader reading of the discovery requests, i.e. the discovery relates to all allegations even if defendant contends here that the named plaintiff herself is not germane to a specific asserted violation; unless specifically written otherwise in a discovery request, discovery shall be produced that is pertinent to the violation allegations in the complaint.


Both parties take issue with the opponent's actions during the meet and confer process, both contending that opposing counsel did not participate in good faith. In regard to the merits, plaintiff contends that although defendants have provided some responsive discovery since the telephone conference with the undersigned, they continue to improperly object to many discovery requests despite the existence of a Consent Confidentiality Order, and other documents have been produced in an overly redacted fashion, containing significant portions of deleted sections.

Defendants, on the other hand, argue that the discovery requests are overbroad, time consuming, and seek irrelevant information, and they should be limited to the claims or defenses in this litigation.

The undersigned chooses to reach the merits and each discovery request will be addressed in turn.


Number 1 - Documents reviewed, referred to or relied upon in responding to plaintiff's first set of interrogatories.

Plaintiff claims that defendants failed to produce documents relating to interrogatories numbered 12 and 18, such as 359 similar letters sent to other consumers in 2008, and 278 similar letters sent to consumers' place of employment in 2008. All documents reviewed, referred to or relied upon, shall be produced subject to the protective order on file. In addition, a further non-contact ...

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