The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion for a protective Order (Docket Nos. 19, 20*fn1 ). Due to an error in filing the certificate of service, plaintiff refiled the motion (Docket No. 20); as a result, the earlier motion (Docket No. 19) was terminated (Docket No. 24).
The Court then rendered an Order (Docket No. 24) on the remaining motion and held a conference with counsel (Docket Nos. 25, 26). The Court now amends that Order. Familiarity with the prior Order is presumed.
This is a Truth in Lending Act action by plaintiff against defendant, credit card issuer Chase Bank USA, NA (Docket No. 1, Ex. C, Pet.). Plaintiff, proceeding pro se in state court and initially before this Court, sought to vacate an arbitration award in New York State Supreme Court, alleging that defendant violated the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq., by failing to make inquiries into alleged inaccuracies in her account (Docket No. 1, Ex. C, Pet. ¶¶ 1-18, Ex. B, Notice of Petition). She also alleged breach of contract (Docket No. 1, Ex. C, Pet. ¶¶ 19-32) and violation of rights (namely due process, right to trial by a jury, and impairment of contract) (id. ¶¶ 33-40).
Defendant removed the action to this Court (Docket No. 1) and filed an Answer with Counterclaim (Docket No. 2). The counterclaim sought confirmation of the arbitration award obtained under the terms of plaintiff's credit card membership agreement with defendant (Docket No. 2, Ans. ¶¶ 54-92). Defendant states that plaintiff sent various letters that defendant argues were not legitimate billing error inquiries under the Truth in Lending Act (id. ¶¶ 83-85).
This case was then referred to the undersigned on April 6, 2007 (Docket No. 3), and referred to the Court's pilot Alternative Dispute Resolution ("ADR") program. During the Scheduling Conference held on September 27, 2007, the parties noted potential discovery disputes (Docket No. 11). The Court issued a Scheduling Order (Docket No. 12), and defendant served its discovery requests on that same day (Docket No. 22, Def. Atty. Decl. Exs. E, F, G; see Docket No. 20, Pl. Atty. Aff. ¶ 2). Discovery was to conclude by March 27, 2008, with dispositive motions due by June 27, 2008 (Docket No. 12).
According to defendant, counsel represented plaintiff in October 2007 (see Docket No. 23, Def. Memo. at 4). This Court held a status conference in this case on December 5, 2007 (Docket No. 15). At that conference, counsel appeared for plaintiff (Docket No. 15) and later filed a formal notice of appearance (Docket No. 17), and the parties stated that plaintiff was refusing to respond to defendant's discovery requests regarding information provided by a third party and indicated that resolution of this discovery dispute informally would move the case toward eventual settlement. As a result, plaintiff was given until December 18, 2007, to move for a protective Order against the disputed discovery sought by defendant and the Court was to brief such a motion, address it, and then enter an Amended Scheduling Order. (Docket No. 15.) Plaintiff, however, had not moved until filing the present motion (on February 12, 2008). Plaintiff's Motion for Protective Order
Plaintiff's motion, which did not include copies of the offending discovery demands, listed various requests for production*fn2 , requests for admissions*fn3 , and Interrogatories*fn4 to which plaintiff refused to respond (Docket No. 20). The scheduling Order for this motion required plaintiff to file copies of the discovery demands and to send a courtesy copy to Chambers (Docket No. 21), which plaintiff never did. The disputed requests deal with a third party, Debt Relief Services Company (hereinafter referred to as "DRSC") (Docket No. 20, Pl. Atty. Aff. ¶ 2). She claims that this disclosure would be unduly annoying and embarrassing, and cause her to reveal information not germane to this action (id. ¶ 3), and she claims that the material is "work product of Plaintiff's pro se litigation of herself" that should be afforded attorney work product privilege (id. ¶ 4). She claims that these requests are "an unreasonable and blatant attempt on [defendant's] part to embarrass Plaintiff by exposing her debt to other creditors and an attempt at causing her great annoyance" further claiming that the materials (if they exist) were subject to a confidentiality agreement, the breach of which would place plaintiff in jeopardy (id. ¶ 5). Plaintiff, however, did not include with her moving papers a copy of any confidentiality agreement. Plaintiff argues that the scope of her claim is limited and thus discovery should be similarly restricted (id. ¶ 6).
Defendant responds that plaintiff has not produced any documents and failed to object to defendant's discovery demands. Her objections were "inapplicable, without merit, and belated." (Docket No. 23, Def. Memo. at 1.) Defendant requests that plaintiff's motion be rejected and stricken and plaintiff be ordered to respond to apparently all of defendant's discovery demands (even beyond those challenged by plaintiff's motion) and that plaintiff be sanctioned by a conditional order of preclusion if she further fails to respond (id.). Defendant also seeks an order to compel plaintiff to attend her deposition and to answer all questions posed there (id. at 1, 12), although defendant expressly states that it has not cross moved to compel (see id. at 1, submitted its papers "in lieu of a cross-motion to compel"). Defendant argues that it is entitled to conduct discovery regarding the merits of plaintiff's claims as well as its counterclaim (id. at 3).
Defendant notes that plaintiff used a debt elimination scheme generated by Debt Relief Services Company (or known as North American Educational Services) to eliminate debts by frustrating creditors with frivolously claimed billing errors and ultimately commencing pro se litigation against the creditors (id. at 2 & n.1, citing, as an example, another pro se action pending in this Court, Lysakawa v. Chase Bank USA, No. 07CV89A(Sc); see also id. at 10 & n.3, 11 n.4 (citing other example cases)). Defendant also notes that plaintiff had not objected to the discovery demands to which she has yet to respond and that are not the subject of her motion for a protective Order (id. at 5).
Defendant argues that its now challenged discovery demands sought information about plaintiff's communications with third party debt relief services companies and "are directly related to plaintiff's billing-error and statutory violation claims" (id. at 5).
Defendant seeks not only rejection of plaintiff's objections to the stated demands in her motion but also an Order compelling her response to all of the outstanding discovery. It seeks to amend the Case Management Order consistent with the delayed status of this action (id. at 12).
The Court entered an Order on March 18, 2008 (Docket No. 24). There, this Court granted in part and denied in part plaintiff's motion for a protective Order, but that Order did not treat defendant's response as a cross-motion to compel (Docket No. 24, Order at 11-13, 14; cf. Docket No. 23, Def. Memo. at 1). The Order rejected plaintiff's arguments asserting work product privilege as a pro se party (Docket No. 24, Order at 8-9) and her alleged confidentiality agreement with a third party (id. at 10). The Order tested the relevance of defendant's requests by discovery device invoked (id. at 7-8, 10-11). The Order protected from disclosure requests involving plaintiff's accounts with other lenders aside from defendant but held that the document request for communications between plaintiff and Debt Relief Services Company (request number 8) should be produced (id. at 10). The Order also dealt with requests for admissions and Interrogatories posed ...