Case Name: Pamela Shereé Chambers v. Merchants & Medical Credit Corporation, Inc., et al.
Case No.: 18-CV-324210

This is a putative class action alleging violations of the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”). Before the Court is plaintiff’s motion to compel further responses to requests for production of documents by defendant Merchants & Medical Credit Corporation, Inc. (“MMCC”). Defendant opposes plaintiff’s motion.

I. Allegations of the Operative Complaint

MMCC is a Michigan corporation engaged in the business of collecting defaulted consumer debts in California. (Complaint, ¶ 11.) Defendants David Edward Cairnduff and James Matthew Hresko are Michigan residents who plaintiff alleges are employees, agents, officers, and/or directors of MMCC and are themselves “third-party debt collectors” under the RFDCPA. (Id. at ¶¶ 12-13.) Plaintiff alleges that defendants routinely send initial written communications, like the one sent to her, that fail to provide the “Consumer Collection Notice” required by Civil Code section 1812.700, subdivision (a) in a type size that is at least the same as the type size used to inform the debtor of his or her specific debt or in at least 12-point type, in violation of Civil Code section 1812.701, subdivision (b). (Id. at ¶ 3.)

Plaintiff brings this action on behalf of a putative class of California residents to whom defendants sent an initial written communication like the one she received in an attempt to collect a defaulted consumer debt originally owed to Chase Bank USA, N.A. (Complaint, ¶ 31.) The Complaint asserts a single cause of action for injunctive relief and statutory damages, as well as treble damages tied to plaintiff’s disability, under Civil Code sections 1812.700-1812.702.

II. Discovery Dispute

In April 2018, the individual defendants filed a motion to quash for lack of personal jurisdiction. On July 31, 2018, the Court issued an order continuing the hearing on the motion to allow plaintiff to conduct jurisdictional discovery regarding “the individual defendants’ involvement in the debt collection activities at issue” and contacts with California. The parties stipulated to several more continuances, and the motion to quash is currently scheduled to be heard on September 13, 2019.

Meanwhile, plaintiff served the individual defendants with form interrogatories and propounded additional discovery requests, including a first set of requests for production of documents (“RPD”s), on MMCC. After multiple rounds of meet and confer, including during an informal discovery conference with the Court on February 6, 2019, MMCC served a second set of supplemental responses to the RPDs, which included supplemental responses to the RPDs at issue in this motion (RPDs 18 and 20). Plaintiff continued to urge that defendant’s responses to RPDs 6, 10, and 18 were inadequate, and the parties continued to meet and confer. MMCC served a third set of supplemental responses to the RPDs on May 3, which included supplemental responses to RPDs 6 and 10 but not to RPDs 18 and 20. Plaintiff maintains that the second supplemental responses to RPDs 18 and 20 are deficient. She filed the instant motion to compel further responses to those RPDs on May 10.

III. Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, or an objection is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (Guess, Inc.?) (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Ibid.)

IV. Analysis

RPDs 18 and 20 seek all documents relating to any “written agreements, contracts, instructions, or communications” between MMCC and Hatteras, Inc., dba Focus 1, Inc., or anyone else including mailing vendors, related to “the design, drafting, review, evaluation, approval, use, or mailing of collection letters” in the form received by plaintiff. MMCC responded to these RPDs by interposing objections, including objections that the RPDs exceed the scope of the jurisdictional discovery authorized by the Court. Subject to and without waiving its objections, MMCC provided the following substantive responses:

After a diligent and reasonable search, MMCC has not located any written agreement with Hatteras Inc. and/or Focus 1, Inc. Focus 1, Inc. has been a letter vendor for MMCC since approximately 2001. Prior to 2001, MMCC had a business relationship with Focus 1’s predecessor, Lason. MMCC’s business relationship with Focus 1, Inc. was formed by MMCC’s prior President, Robert Cairnduff, who is deceased. MMCC does not know if a written agreement existed between the parties at the time that the relationship was formed, but MMCC does not have a written vendor agreement with Focus 1 in its possession, custody, or control. MMCC has produced SOC Audit Reports of both Hatteras and MMCC that outline the scope of Focus 1’s work. MMCC will produce a copy of the signed Focus 1 Letter Approval Form for MMCC’s First Notice letter, which applies to the letter [sent to plaintiff].

As an initial matter, MMCC contends that plaintiff did not adequately meet and confer with regard to RPD 20 because she specifically requested a third supplemental response to RPDs 6, 10, and 18 only. This argument lacks merit. Plaintiff met and conferred extensively with regard to MMCC’s responses to both RPD 18 and RPD 20, which are narrower and broader versions of the same request to which MMCC provided identical responses. Her April 2019 meet and confer letter generally demands “a complete document production relating to the drafting, approval, and/or authorizing of the collection letter at issue in this action,” which is the subject matter of both requests. There is no reason to imagine that further meet and confer efforts regarding RPD 20 would have been fruitful after MMCC declined to provide a further response to the narrower RPD 18. Plaintiff adequately met and conferred as to RPD 20.

On the merits, MMCC defends its objection that these RPDs exceed the scope of the jurisdictional discovery authorized by the Court. This is essentially an overbreadth objection, and it is well-taken. The Court has authorized jurisdictional discovery limited to the issues of “the individual defendants’ involvement in the debt collection activities at issue” and contacts with California. Consequently, the scope of these RPDs must be limited to documents referencing, sent by, or received by the individual defendants.

Still, MMCC has not provided a full and complete response to RPDs 18 and 20 with this limitation. Although it maintains that the individual defendants were not involved in the drafting or revision of the collection letter at issue, plaintiff is entitled to test that contention through appropriately targeted RPDs. Thus, while the Court sustains MMCC’s objection to the scope of RPDs 18 and 20, MMCC must still provide further substantive responses to these RPDs as limited to encompass documents referencing, sent by, or received by the individual defendants.

Finally, plaintiff urges that MMCC has not produced all drafts of the collection letter at issue, and a “Duplex Letter” it did produce is incomplete because “the second page, or back, of the letter has not been produced.” MMCC responds that it explained to plaintiff during meet and confer that there is no back page to the Duplex Letter. At this juncture, MMCC is only required to provide further responses to RPDs 18 and 20 insofar as responsive documents reference, were sent by, or were received by the individual defendants. This may or may not include additional drafts of the collection letter and/or the Duplex Letter; to the extent it does, MMCC must provide a full, code-compliant statement of compliance confirming its production is complete.

V. Conclusion and Order

Plaintiff’s motion to compel is GRANTED IN PART. MMCC shall serve verified, code-compliant further responses to RPDs 18 and 20, limited to documents referencing, sent by, or received by individual defendants Cairnduff and Hresko. It shall serve these responses and produce all remaining responsive documents in conformity therewith within 20 calendar days of the filing of this order. Statements of compliance shall state that all responsive documents “that are in the possession, custody, or control of” MMCC “will be included in the production” (Code Civ. Proc., § 2031.220), and statements of inability to comply “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with th[e] demand” and “shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Code Civ. Proc., § 2031.230.) MMCC’s responses shall be without objection, other than its overbreadth objection to documents that do not reference and were not sent or received by the individual defendants.

Plaintiff’s motion is otherwise DENIED.

The Court will prepare the order.