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Hastings v. Asset Acceptance

February 6, 2007

TIMOTHY HASTINGS, PLAINTIFF,
v.
ASSET ACCEPTANCE, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hogan, M.J.

ORDER

Beckwith, J.

This matter is before the Court on plaintiff's motion to compel to discovery (Doc. 14), defendants' memorandum in opposition (Doc. 18), and plaintiff's reply memorandum (Doc. 19), and on plaintiff's motion to vacate the class discovery and class motion deadlines. (Doc. 16).

Plaintiff's complaint alleges defendants violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., which prohibits debt collectors from seeking recovery on time-barred debts. Defendants Asset Acceptance, LLC, Eric Kohut, and Kimberly Klemonok are debt collectors as defined under the Act. Plaintiff alleges that defendants filed a civil complaint against him in State court in February 2006 based upon a contract for the sale of goods. Plaintiff alleges that defendants' cause of action against plaintiff accrued over ten years before the filing of the State court action and was barred by the applicable statute of limitations in violation of the FDCPA. Plaintiff seeks to bring a class action on behalf of all persons sued by any of the defendants on a time-barred debt on or after one year prior to the filing of the federal court complaint.

In the instant motion to compel discovery, plaintiff seeks an order compelling defendants to fully respond to his document requests propounded on August 31, 2006.

Document Requests 1 and 2

In these requests, plaintiff seeks:

1. Any practice manual, procedure manual, or any other document, letter or memorandum setting forth Defendant's policies or practices with respect to Ohio collection litigation.

2. Any practice manual, procedure manual, or any other document, letter or memorandum indicating any changes in policies or practices adopted by Defendant with respect to Ohio collection litigation after the filing of the complaint in this case. (Doc. 14, Exh. A, emphasis in original). Defendants objected to the production of such documents, alleging the following:

Objection. This request calls for attorney work-product and materials protected by the attorney client privilege. This request also calls for confidential, sensitive, proprietary business information and trade secrets. This request is vague, ambiguous, overly broad and unduly burdensome. This request is not reasonably calculated to lead to the discovery of admissible evidence. (Doc. 14, Exh. A). The Court notes that defendants' objections to each of the plaintiff's discovery requests contains the identical language.

Plaintiff's motion is well-taken and therefore GRANTED with respect to Requests 1 and 2. Contrary to defendants' contention, the requests are not overly broad, vague, or irrelevant. Practice and procedural manuals and other such documents setting forth defendants' policies or practices could lead to the discovery of admissible evidence concerning the defendants' debt collection practices which are the subject of the instant complaint. In addition, the discovery sought is directly relevant to defendants' assertion of their "bona fide error" and "good faith" defenses raised in their answer.*fn1 A defendant asserting the "bona fide error" defense must prove by a preponderance of evidence: (1) the violation was not intentional; (2) the violation resulted from a bona fide error; and (3) the violator maintained procedures reasonably adapted to avoid any such error. 15 U.S.C. § 1692k(c) (emphasis added). Edwards v. McCormick, 136 F. Supp.2d 795, 800 (S.D. Ohio 2001). Documents relating to defendants' collection policies and practices are directly relevant to whether defendants maintained procedures reasonably adapted to avoid any bona fide error and must be disclosed.

Defendants also object to all of the discovery requests on the basis of attorney-client privilege or the work product doctrine. If defendants in fact withheld discovery on these grounds, defendants must produce a privilege log detailing all such documents. The log should conform to the guidelines set forth in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(b)(5). Defendants' privilege log must provide sufficient information to enable plaintiff to assess the applicability of the claimed privilege or protection. Id.

Document Requests 3 and 4

Documents 3 and 4 request the ...


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