Hinkle v. Midland Credit Management Inc. et alMOTION to Compel Defendant Midland Credit Management to respond to requests for productionS.D. Ga.July 16, 2014ur,o,i/ffiouo, Teri Lynn Hinkle Plaintffi vs MIDLAND CREDIT MANAGEMENT INC. MIDLAND FUNDING, LLC. ENCORE CAPITAL GROUP INC. Defendants. Case No.3:13-CV-00033 UNITID STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) 20[JUL r6 i ] i l&J7 r, l . r_ f i i1 s0. SIOF6A, DEFEND MIDLAND DIT REOUE RPRODU NAND Plaintiff hereby motions the Court to compel Midland Credit Management Inc. to file an amended response to Plaintiffls outstanding discovery requests. Plaintiff certifies pursuant to FRCP 26(c), 37(a)(l), and S.D. Ga. L.R. 26.5 that she has confened in good faith with Defendants' counsel in an effort to resolve the outstanding discovery dispute outlined below u'ithout the necessity for the Court's involvement and assislance. Counsel has stated Defendants will oppose this motion. (See Exhibit 16(a),(b) attached). This motion is not made for purposes of delay, harassment or to unnecessarily increase the costs of l i t igat ion. MEMORANDUM IN SUPPORT Plaintiff s Motion to Compel MCM and Memorandum in Support Page I of 7 A. Introduction I . Plaintiff is Teri Lynn Hinkle and defendant is Midland Credit Management Inc., (MCM). 2. 3. Plaintiff sued defendant for violations of the Fair Debt Collection Practices Act. (FDCPA) and the Fair Credit Reporting Act, (FCRA). On May 21.201,4 and May 23,2014, plaintiff served discovery materials including Requests for Production on Defendant by USPS. 4. Plaintiff received responses to the discovery requests on June 25, 2014. The responses were largely non-responsive and incomplete. However, for the second time since discovery began in this case the Def'endants produced documents it had previously stated did not exist or were not in its possession. Plaintiff will address this issue in further pleadings. 5. Plaintiff contacted Defendants' counsel on June 26, 2014 via email and stated with specificity what the deficiencies uere and requested the Defendants amend their responses. 6. Plaintiff received amended responses via email on June i0. 2014 which included a generic document downloaded from the T-Mobile website and another page from Defendants' internal records labeled "Midland - Hinkle 00221" which was clearly a part of the record previously provided to PlaintilT but one w'hich had been omitted. Plaintiff will address this issue in further pleadings. Plaintiff s Motion to Compel MCM and Memorandum in Suppon Page 2 of 7 7. In response to Plaintiff s Third Request lbr Production number 7 to Defendant, MCM responded with the following in responses received by Plaintilf on June 25, 2014: b. REQUEST 7: Produce MCM's written request to the Seller for the "Terms and Conditions" historically associated with the Purchased Account MCM alleges belongs to the Plaintiff'. (emphasis added), (this request refened to a particular paragraph included in a document currently designated "Confidential" and subject to protective order and the reference was cited with the request) RESPONSE: Defendants direct Plaintiff to enclosed documents bates labeled Midland-Hinkle 000204-000218. w'hich are the terms and conditions that u,ere in elTect prior to the account charge off date of 12129107 . and retrieved from the T-Mobile website by Defendants. (emphasis added). c. Plaintiff clearly did not request the document provided and MCM did not address what w'as requested in their response. Defendant's amended response to Request number 7, received on June 30, 2014 was as follows: a. This request seeks "Terms and Conditions historically associated n'ith any" of the Plaintifl-s accounts. Midland produced the T-Mobile terms and conditions that were in elfect during the relevant time period, retrieved from T-Mobile's website. Midland does not have any additional documents that Plaintiff s Motion to Compel MCM and Memorandum in Suppon Page 3 of 7 are responsive to this request. A defendant cannot be compelled to produce records that do not exist. See Purdee v. Pilot Travel Ctrs., LLC,2009 U.S. Dist. LEXIS 13093 (S.D. Ga. Feb. 19,2009). (emphasis added) b. Again Plaintiff did not request "Terms and Conditions" but instead requested "MCM's Written Request To The Seller" when they asked for the terms and conditions and this response is yet another attempt to distract and misdirect from the actual document requested. Plaintiff expects a response directed at the actual request made. This question goes to the heart oftheir defense of the allegation made in connection with the FCR,A.$ 1861s-2(b) and therefore is a critical element for discovery and has not been objected to on any grounds. 9. Plaintiff contacted Defendants' counsel again via email \ ''ith objections to the amended responses on July l, 2014 and requested a second conected response to Request for Production number 7. (See Exhibit t 6(a),(b) attached) 10. Because MCM failed to fully respond to the discovery requests, Plaintiff requests the Court to compel MCM to provide the proper response to Request for Production number 7 in a timely manner so that the Plaintiff may have the requested information to evaluate before preparation of further pleadings. B. Areument and Brief in Support 11. The court may compel responses to discovery if a party does not do any of the follo*'ing: (1) ansrver questions submitted under Federal Rules of Civil Procedure 30 or 31; (2) make a designation under Rule 30(bX6) or 31(a); (3) answer an Plaintiffs Motion to Compel MCM and Memorandum in Support Page 4 of7 interrogatory submitted under Federal Rule of Civil Procedure 33: or (4) respond to a request for inspection submitted under Federal Rule of Civil Procedure 34. FRCP 37(aX2XB). 12. A party may seek production of any document, electronically stored information, or tangible thing within the scope of FRCP 26(b) that is, anything relevant and not privileged. See FRCP 3a(a)(1); See Gile v. Linited Airlines, Inc ,95 F.3d 492 (7'" Cir' 1996). 13. The requesting party must ask the court to compel production if the responding party objects to a request, does not respond to a request, or does not permit inspection as requested. See FRCP 37(a)(3)(B)(iv); GFI Computer Indus. v. Fry.476 F.2d 1,3 (5th Cir. 1.973). 14. The Court should grant Plaintiff s motion to compel for the folloning reasons: a. Defendant MCM did not respond properly to the specihc item requested in Requests for Production umber 7 ofPlaintifl-s third Requests for Production propounded upon them contrary to the rcquirements of Fed. R. Civ. P. 33(bX2) and therefore can be compelled to answer under FRCP 37(a)(3)(B)(iii). b. Defendant MCM has stated in responses to interrogatories when asked to describe tl-le procedures involved in their "reinvestigation" of the Plaintiff s disputes to the CRAs that they simply obtained the information from the Plaintifl's Motion to Compel MCM and Memorandum in Support Page 5 of 7 "sellers" they purchased the electronic data connected with the alleged accounts from. Defendant MCM has provided nothing other than inlormation which would have been included in the initial purchase to indicate they did in fact contact the "sellers" or make any requests for information from them subsequent o the Plaintiffs disputes with the CRAs. Request for Production number 7 at issue in this motion was made pursuant to a procedure described to the Defendants by the sellers in the document referenced above in fl 7(a). Since the Plaintiff and this Court have nothing but the Defendant's statement in interrogatories that they obtained information from the sellers in compliance with their obligation under the FCRA to investigate Plaintiff s disputes, the request for the written request to the sellers would establish their statement to be fact. It would appear the Defendant MCM is attempting to avoid specifically addressing the request in regard to the document which was requested by pretending the Plaintiff instead reouested another. e. Defendant MCM appears to be deliberately misconstruing the clearly stated request to mean something different than it states although the request is in no way ambiguous or confusing. 15. Plaintiff states that the information requested bv the Plaintiff is relevant and admissible at trial. Plaintiff s Motion to Compel MCM and Memorandum in Support Page 6 of 7 WHEREFORE, because plaintiff s requests are proper and because MCM has refused to comply u'ith the rules, the Plaintiff requests the Court compel MCM to respond fully. adequately and expeditiously to Request for Production Number 7 referenced above. DATED this l4th dar. ofJulv. 2014 Plaintiff s Motion to Compel MCM and Memorandum in Support Pagel of 1 EXHIBIT 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA DIIBLIN DIVISION Teri Lynn Hinkle Plaintffi VS MIDLAND CREDIT MANAGEMENTINC. MIDLAND FUNDING LLC. ENCORE CAPITAL GROUP INC. Defendants. Case No 3: l3-cv-00033 CERTIFICATION OF CONFERENCE I. Teri Lynn Hinkle, Plaintiff in this case, hereby certify that at all relevant times and in regard to all Motions to Compel submitted by me to this Honorable Court, that I did confer in good faith with the Defendants prior to filing the motions pursuant to FRCP 37(a)(1), and S.D. Ga. L.R.26.5. Respectfully submitted this 14th day of July, 201 4. Teri Lynn 322 Bethel Street Eastman. Georgia 31023 Case 3:13-cv-00033-DHB-BKE Certification of Conference, Exhibit 16(a) : . : : Teri Hinkle l0:26 AM (23 hours ago) to Joshua. Matt. bcc: me Joshua, I hope you and yours had a pleasant holiday. Before I left over the holiday I responded to your clients'amended responses to requests for production by email to you. I stated the following: "As to the response to Number 7 ofthe Third Requestfor Production. This lequest b'as in reference to14.6 ofthe Account Purchase Agreenent which I included in the request. I DID n*OT request tt cory ofthe "Terms and Conditions". I specilically requested "MCM's writlen request to te Seller", not the tetms and conditions. Please instruct your clients rc correct that response immediatel!. I rqill be out of town.fron Thursduy to Sunday of this veek so t+ill be unavqilable." As ofthis moming I have not had a response to that email or any coffection to the imprcper response to that particular response for production. If I don't receive a corrected response by the end of business day today I will have to file a motion to compel. Please advise as to whether you will object to that motion or not Regards, Teri Hinkle Moore, Joshua t. I 1 :14 AM (22 hours ago) to me, Matt M s. ll in Llc. it it our undersranding t[:at 1ou arc seek irg production of au,r. u'i ittcn corrmun ication berr,veen M id land and [].bt Recoveq/ Solutioas, LLC rcganling rlrc T-Mobilc dcbl. l\4idland has no docuneDts lhnl are resp(]l isivc to rour request. l l l idland vor|ld opposc a nrotion to corlpcl (locurncIts bccause a delendant oannor be con]pellcd to produco r.ccor': ls that do not exist. See Prrdet'r ' . [ ' i lor frave! (\rs.. LLt .20Oq tJ.S. Dist- LEXiS 1i093 (S.D. Ga" Fcb. 19. 2009). l{egards" .l0shua Teri Hinkre
