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Barnum v. Equifax Information Services, LLC

United States District Court, D. Nevada

March 9, 2018

SHARON BARNUM, et al., Plaintiffs,
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendants.

          ORDER

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiffs' motion to compel and Defendant's counter-motion for protective order, filed as ajoint statement. Docket No. 96 ("J.S."). Through that same filing, Plaintiffs also request appointment of a special master. See Id. The Court held a hearing on the matter on March 9, 2018. For the reason discussed below, Plaintiffs' motion to compel is DENIED, Defendant's motion for protective order is GRANTED in part and DENIED in part, and the motion for a special master is DENIED.

         I. STANDARDS AND ANALYSIS

         When a party fails to provide requested discovery, the requesting party may move to compel that discovery. See Fed. R. Civ. P. 37(a)(1). "[B]road discretion is vested in the trial court to permit or deny discovery." Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are permitted to seek discovery of any nonprivileged matter that is relevant and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). The party seeking to avoid discovery bears the burden of explaining why discovery should be denied. See U.S. E.E.O.C. v. Caesars Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006); see also Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (addressing burdens following 2015 amendments to the discovery rules). To the extent the Court finds any or all of the discovery sought to be improper, it may issue an order protecting the responding party from that discovery. Fed.R.Civ.P. 37(a)(5)(B).

         A. CLASS DISCOVERY GENERALLY

         The parties argue at some length as to whether Plaintiffs have made a sufficient showing to engage in class discovery generally. See J.S. at 19-25.[1] This dispute is not properly before the Court. The parties requested that the Court delay class certification precisely so that discovery could occur. Docket No.40 at 2. Equifax has already been providing class-related discovery for some time. See, e.g., J.S. at 65 (responding to Request for Production No. 3 that, inter alia, "Equifax will produce responsive, non-privileged documents"); J.S. at 22 (Equifax referencing that class discovery has been ongoing already for eight months). Discovery is now in its final stages. See Docket No. 103 (setting discovery cutoff of June 22, 2018). Equifax has not provided in the joint statement sufficient reason for the Court to opine on this issue at this time. As the specific discovery disputes maybe resolved on other grounds, the Court declines to address this overarching argument at this time.

         B. FIRST SET OF DISPUTES

         The first set of disputes before the Court involve Plaintiffs' attempt to obtain discovery specific to the different manners in which Equifax was notified of a dispute and information as to its responses broken down by the manner in which notification was provided.[2] For example, Interrogatory No. 1 requests the number of disputes received by Equifax over a two-year period broken down by disputes received by U.S. mail, email or other electronic means, telephone, or other means (such as facsimile or Federal Express). J.S. at 26. Equifax responded to that interrogatory by indicating that it opened 22, 539, 476 new cases collectively for disputes received by U.S. Mail, email, or other electronic means. Id.[3]Equifax further objected that, inter alia, a more individualized response would be unduly burdensome. Id. The Court agrees with Equifax.

         "A party claiming undue burden or expense ordinarily has far better information-perhaps the only information-with respect to that part of the determination." Nationstar Mtg., LLC v. Flamingo Trails No. 7 Landscape Maintenance Assoc, 316 F.R.D. 327, 334 (D. Nev. 2016) (quoting Fed.R.Civ.P. 26(b)(1), Advisory Committee Notes (2015)). As a result, it has long been clear that a party claiming that discovery imposes an undue burden must allege specific facts which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence. Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev. 1997); see also U.S. E.E.O.C v. Caesars Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006) (conclusory or speculative statements of harm, inconvenience, or expense are insufficient). Once a burden has been established, the question becomes whether that burden is "undue." As such, the Court must balance the burden identified with the likely benefit of the discovery being sought. See, e.g., Roberts v. Clark County School Dist, 312 F.R.D. 594, 603 (D. Nev. 2016).

         In this case, Equifax has filed a declaration explaining that complying with the itemized discovery requests would require an individualized review of millions of files. See Docket No. 96-39 at ¶¶14-15. Such review would require an extensive time commitment by Equifax's employees. See Id. Hence, Equifax has shown by sworn evidence that complying with these discovery requests would require a significant effort on its part.[4] Moreover, the Court fails to discern a sufficiently important benefit in Plaintiffs' discovery of the information at issue that outweighs the burden to Equifax identified.

         Accordingly, the Court finds that these discovery requests impose an undue burden on Equifax. The Court therefore DENIES Plaintiffs' request to compel further responses and GRANTS Equifax's request for a protective order.

         C. SECOND SET OF DISPUTES

         The second set of disputes involves three requests for production in which Plaintiffs seek documents as to Equifax's "transmission of Dispute Responses to a Disputing Consumer" and its policies to ensure the results of a reinvestigation are "provided to a consumer." J.S. at 56, 65, 68.[5] This set of disputes appears to encompass two primary issues, which are addressed below.

         1. Scope of Request ...


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