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Case3:09-cv-00329-MMC Document116

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THOMAS P. QUINN (State Bar No. 132268) NOKES & QUINN 410 BROADWAY, SUITE 200 LAGUNA BEACH, CA 92651 Tel: (949) 376-3500 Fax: (949) 376-3070 Email: tquinn@nokesquinn.com S. STEWART HASKINS III [Pro Hac Vice] GA Bar No: 336104 JOHN ANTHONY LOVE [Pro Hac Vice] GA Bar No: 459155 STEPHANIE COPE, [Pro Hac Vice] GA Bar No: 214378 KING & SPALDING 1180 PEACHTREE STREET, N.E. ATLANTA, GA 30309 Tel: (404) 572-4600 Fax: (404) 572-5100 Email: TLove@KSLAW.com Email: scope@KSLAW.com Attorneys for Defendant EQUIFAX INFORMATION SERVICES LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) Case No: 3:09-CV-00329-MMC(EDL) ) ) MOTION FOR RELIEF FROM ) ) NONDISPOSITIVE PRETRIAL ORDER ) OF MAGISTRATE JUDGE Plaintiffs, ) ) ) v. ) EQUIFAX INFORMATION SERVICES LLC, ) ) ) Defendant. ) ) ) ) ) Defendant Equifax Information Services LLC (Equifax), through its undersigned OBELIA D. VILLAFLOR and KAY B. BRICE, individually and on behalf of all similarly situated individuals, counsel, submits this Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge. For the reasons set forth below, Equifaxs motion should be granted. MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE Case No: 3:09-CV-00329-MMC(EDL) -1-

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RELEVANT FACTUAL BACKGROUND This is a class action lawsuit wherein Plaintiffs, Obelia D. Villaflor and Kay B. Brice, allege that Equifax willfully violated the Fair Credit Reporting Act (FCRA) by issuing consumer credit reports with unclear and inaccurate information in the current status field of the reports. Equifax denies these claims. Plaintiffs employed FB Legal/Good Life (Good Life) - a credit repair company - to send letters to Equifax on their behalf to dispute certain items in their credit reports. Good Life sent several letters to Equifax on Plaintiffs behalf disputing various accounts. Since Plaintiffs had no input into the content of the letters sent on their behalf to Equifax, Good Life determined that certain accounts of Plaintiffs were unclear and confusing, and that the accounts should be disputed on this basis to Equifax. (See, e.g., August 29, 2007 letter attached hereto as Exhibit A); (Brice Dep. at 115:10-16; Villaflor Dep. at 76:3-9, excerpts attached hereto as Exhibit B). The specific portions of the Magistrate Courts order that Equifax specifically objects to

Defendant has not met its burden under either Shelton or the alternative totality of the circumstances test to show that it is entitled to depose FB Legal; [T]estimony on these subjects [the dispute letters] would be only tangentially relevant to the allegations in the complaint, which focus on the alleged inaccuracies in Plaintiffs credit reports that were attributable to Defendant; FB Legals knowledge has little if any relevance to the issues in this case; and [T]estimony about the nature of the disputes in the letters may encompass privileged information..

(Doc. 111 at 2-4.) ARGUMENT AND CITATION TO AUTHORITY The test set out in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) does not apply to this case, because the deposition that Equifax seeks involves knowledge of the underlying matter that is relevant to the class action case. Even if the Court finds that the Shelton

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test is applicable here, Equifax met its burden under the Shelton test, including that the testimony of Good Life is likely to produce relevant information. (Doc. 111 at 3.) I. THE SHELTON TEST DOES NOT APPLY TO THIS CASE.

The Shelton analysis is not applicable where, as here, the topics of deposition involve counsels knowledge of a prior underlying matter that is relevant to the current litigation. Srail v. Village of Lisle, 2007 WL 4441547, *2 (N.D.Ill. Dec. 12, 2007). In Pamida v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002), the Eighth Circuit found that Shelton was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial. The underlying matter -- the disputes by Good Life on Plaintiffs behalf to Equifax -- is the cornerstone of this class action. The disputes were concluded and completed each time Equifax responded to Plaintiffs letters written by Good Life. Now the letters are key to this litigation. Thus, the Shelton test does not apply here where counsels knowledge of the

completed disputes is relevant to this case. II. EVEN IF THE SHELTON TEST IS APPLICABLE, EQUIFAX MET ITS BURDEN.

Even if the Court found that the Shelton test was applicable here, Equifax has met its burden. Under the Shelton test, a party should be permitted to depose opposing counsel where the party seeking to take the deposition has shown that: (1) (2) (3) no other means exist to obtain the information than to depose opposing counsel; the information sought is relevant and non-privileged; and the information is crucial to the preparation of the case.

Shelton, 805 F.2d at 1327. Here, the only means by which Equifax may obtain information concerning the dispute letters written by Good Life is to depose a Good Life representative. Plaintiffs authorized Good Life to act on their behalf. (See, e.g., Brice Dep. 110:16-111:1; Villaflor Dep. Ex. 3, 8, attached hereto as Exhibit C). The theory that Equifaxs consumer disclosures were unclear and MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE Case No: 3:09-CV-00329-MMC(EDL) -3-

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confusing was not conceived, or even thought of, by Plaintiffs, but by Good Life. Equifax attempted to depose Plaintiffs on the dispute letters, but they had no knowledge of the letters content. (Brice Dep. at 115:10-16; Villaflor Dep. at 76:3-9). Thus, Equifax seeks to take the deposition of a Good Life representative to learn who wrote the dispute letters that complained that the current status field of the consumer disclosures were unclear and confusing, whether the letters were reviewed by an attorney before they were sent to Equifax, the nature of the disputes that the author intended to convey to Equifax, and whether the author received responses from Equifax. These letters to Equifax were signed by legal assistants, and other letters were not signed at all. If Plaintiffs cannot answer any questions related to the content of the dispute letters sent to Equifax that are the basis of the class action, then Equifax has no other choice but to seek the information from Good Life. Second, the information sought by way of testimony from a representative of Good Life is relevant and non-privileged. The Magistrate Court found that testimony concerning the dispute letters would only be tangentially relevant to the allegations in the complaint. The Complaint alleges that Equifaxs consumer disclosures were unclear and confusing. The dispute letters are the foundation of the allegations in the class action complaint and are crucial to Equifaxs defense. Indeed, Equifax is entitled to discover whether Plaintiffs thought the reporting of their accounts was unclear and confusing to them or if these disputes were simply manufactured by Good Life. As such, the dispute letters are pertinent to this litigation and the testimony of Good Life will likely produce relevant information. Thus, Equifax should be afforded the opportunity to conduct discovery regarding the dispute letters. The Magistrate Court held that testimony about the nature of the disputes in the letters may encompass privileged information. (Doc. 111 at 3.) The information sought is nonprivileged, and Equifax does not intend to inquire about privileged communications between Good Life and Plaintiffs. Indeed, Plaintiffs concede that the subpoena does not appear to be directed at communications between Plaintiffs and their counsel in this class action. (Doc. 93 at 4.) Simply because the letters may encompass privileged information should not cloak Good Life and Plaintiffs in the protection of privilege. See United States v. Martin, 278 F.3d 988, 1000 (9th MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE Case No: 3:09-CV-00329-MMC(EDL) -4-

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Cir. 2002) (Blanket assertions [of privilege] are extremely disfavored.) Equifax should be permitted to take the deposition of Good Life and, if, during the deposition, counsel for Good Life has objections to particular questions that he or she believes is privileged, then an objection can be made. Finally, the information is crucial to Equifaxs defense and preparation of the case. The dispute letters are at the very heart of this class action case - the issue of Plaintiffs alleged confusion of the current status field in Equifaxs consumer disclosures was first raised in the dispute letters. Plaintiffs brought this class action based on Good Lifes interpretation of their disputed accounts -- not their own. Thus, Equifax should have the opportunity to depose a representative of Good Life since it is the company that drafted the dispute letters which are the basis of the class action case. III. EQUIFAX MET ITS BURDEN UNDER THE MAGISTRATE COURTS ALTERNATIVE TOTALITY CIRCUMSTANCES TEST.

In deciding whether a party may depose opposing counsel, some courts have applied a flexible approach. As the Magistrate Court noted, this approach (1) may include the need to depose the lawyer; (2) the lawyers role in connection with the matter on which discovery is sought and in relation to the pending litigation; (3) the risk of encountering privilege and workproduct issues; and (4) the extent of discovery already conducted. In re: Subpoena Issued To Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003). As Equifax has clearly shown, Plaintiffs themselves have no knowledge of the dispute letters. Further, Plaintiffs counsel concedes that the subpoena does not appear to be directed at communications between Plaintiffs and their counsel in the class action. (Doc. 93 at 3.) There is a small, if any, risk of encountering privilege and work-product issues. Equifax has already conducted extensive discovery and determined that the only source of this relevant information is Good Life. Thus, the deposition of Good Life is the only means by which Equifax can obtain the necessary and relevant information. CONCLUSION For the reasons set forth above, Equifax requests that its motion be granted. MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE Case No: 3:09-CV-00329-MMC(EDL) -5-

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE Case No: 3:09-CV-00329-MMC(EDL) -6/s/ J. Anthony Love S. STEWART HASKINS III [Pro Hac Vice] GA Bar No: 336104 JOHN ANTHONY LOVE [Pro Hac Vice] GA Bar No: 459155 STEPHANIE COPE, [Pro Hac Vice] GA Bar No: 214378 KING & SPALDING 1180 PEACHTREE STREET, N.E. ATLANTA, GA 30309 Tel: (404) 572-4600 Fax: (404) 572-5100 Email: TLove@KSLAW.com Email: scope@KSLAW.com Attorneys for Defendant EQUIFAX INFORMATION SERVICES LLC DATE: August 9, 2010 KING & SPALDING LLP

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CERTIFICATE OF SERVICE

I am employed in the County of Fulton, State of Georgia. I am over the age of 18 and not a party to be within entitled action; my business address is 1180 Peachtree Street, Atlanta, Georgia 30309. On August 9, 2010, I served a true copy of MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE [ ] By personally delivering it to the persons(s) indicated below in the manner as provided in FRCivP5(B); [ ] By depositing it in the United States Mail in a sealed envelope with the postage thereon fully prepaid to the following; [X] By ECF: On this date, I electronically filed the following document(s) with the Clerk of the Court using the CM/ECF system, which sent electronic notification of such filing to all other parties appearing on the docket sheet; James S. Knopf Law Offices of James S. Knopf 536 El Camino Real Redwood City, California 94063 Seth Lehrman Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Ave., Suite 2 Fort Lauderdale, Florida 33301 Steven F. Grover, P.A. Steven F. Grover 1 East Broward Blvd., Suite 700 Fort Lauderdale, Florida 33301 Executed on August 9, 2010, at Atlanta, Georgia. I hereby certify under the penalty of perjury that the foregoing is true and correct. /s/ STEPHANIE D. COPE

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) ) v. ) EQUIFAX INFORMATION SERVICES LLC, ) ) ) Defendant. ) ) ) ) ) OBELIA D. VILLAFLOR and KAY B. BRICE, individually and on behalf of all similarly situated individuals, Case No: 3:09-CV-00329-MMC [PROPOSED] ORDER GRANTING MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE

Defendant Equifax Information Services LLCs Motion for Relief From Nondispositive Pretrial Order of Magistrate Judge has been duly considered by the Court and therefore, IT IS HEREBY ORDERED that Defendant Equifaxs motion is granted.

DATED: August ______, 2010. ______________________________________ U. S. DISTRICT COURT JUDGE

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