The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's motion to compel or for evidentiary preclusion (Docket No. 14*fn1 ). Responses to this motion were due by May 5, 2009, and any reply was due by May 19, 2009 (Docket Nos. 15, 17), with the motion argued on May 26, 2009 (Docket Nos. 17, 19 (minutes)) and deemed submitted on May 26, 2009.
This is a Fair Debt Collection Practices Act action in which (pertinent to the pending motion) plaintiff alleges that defendant called plaintiff on his cellular telephone regarding a debt plaintiff did not owe (Docket No. 1, Compl. ¶¶ 11-18). At issue here is a series of telephone calls plaintiff alleges receiving from on or about February 22, 2008 to April 12, 2008 (id. ¶¶ 11, 16-17; Docket No. 14, Def. Atty. Affirm. ¶ 6). Defendant answered the Complaint (Docket No. 3).
Prior to making this motion, defense counsel requested an extension of time to complete discovery to allow third parties to produce materials to plaintiff and for plaintiff to disclose to defendant (letter of Patricia Cipriani to Chambers, Dec. 9, 2008; see also Docket No. 18, Def. Reply Ex. B (copy of letter)). That request was granted in relevant part (Docket No. 11). Defendant made a second request to extend discovery (letter of Cipriani to Chambers, Feb. 24, 2009; see also Docket No. 18, Def. Reply Ex. A (copy of letter) to allow third parties to provide materials to plaintiff to respond to defense document demands. That request was also granted, with motions to compel discovery due by May 19, 2009, and discovery now due by June 19, 2009 (Docket No. 12).
Defendant now moves for an Order compelling plaintiff to produce certain cellular telephone records or prohibit plaintiff from supporting his claims or introducing unproduced materials as evidence (Docket No. 14, Notice of Motion). According to defendant, plaintiff had produced some but not all of the cell phone records and defendant believes that the outstanding records should have been available to plaintiff by now (id., Pl. Atty. Affirm. ¶¶ 3, 5). Plaintiff represented that his delay in producing was due to the fact that he was awaiting records from his cellular carriers, AT&T Wireless ("AT&T") and an unidentified company (id. ¶ 6), but plaintiff produced cellular telephone records from March 29, 2008, through May 31, 2008, after the period at issue (February-April 12, 2008) in plaintiff's claims (id. ¶¶ 7, 6). Defendant made this discovery demand in November 2008 (id. ¶ 4, Ex. A, # 8 (seeking plaintiff's cell phone bills for the time plaintiff allegedly received the calls at issue)) and conferred with plaintiff's counsel in an attempt to resolve this matter short of motion practice (see id. ¶¶ 2, 5; see also Docket No. 18, Def. Reply).
In response, plaintiff moves that the Court deny the motion (in particular deny preclusion) because the records sought by defendant do not exist (after due diligence on plaintiff's part to locate them) and the motion should be denied for defendant's failure to confer in good faith prior to making this motion (Docket No. 16, Pl. Response at 1, Pl. Atty. Affirm. at 4-5). Plaintiff contends that, after subpoenaing his sole cell phone carrier (AT&T), he submitted to defendant relevant telephone records that he had at his disposal (Docket No. 16, Pl. Atty. Affirm. ¶¶ 6, 16, 7-14, Exs. 1-5). Plaintiff does not believe that he used another carrier (id. ¶ 16). He argues that defendant, aware of plaintiff's number, could have obtained these records itself (id. ¶ 15). Plaintiff was not notified by defendant until February 9, 2009, that defendant felt the records produced were incomplete and plaintiff then served a third subpoena upon AT&T for telephone records (id. ¶ 17, Ex. 6). AT&T produced the same set of telephone records in response to the third subpoena as it had in the prior two (id. ¶ 19, Ex. 7). Plaintiff concludes that the telephone records from February of 2008 to March 28, 2008, do not exist and counsel informed defense counsel of this fact (id. ¶ 20). He insists that defendant did not comply with the certification requirements of good faith attempts to confer prior to making its present motion (id. ¶ 21) and defendant has not shown undue prejudice in not having these telephone records (id. ¶ 22).
In reply, defendant asserts that it exchanged e-mail and telephone calls with plaintiff's counsel in efforts to obtain these telephone records (Docket No. 18, Def. Reply at 1-2). Defendant faults plaintiff for producing telephone records from AT&T after February 27, 2008, after the period claimed in this case (id. at 2) and defendant denies receiving plaintiff's Exhibit 5, the second set of records from AT&T (id.; see Docket No. 16, Pl. Atty. Affirm. ¶ 12, Ex. 5).
The parties do not indicate that defendant sought an authorization (if required) from plaintiff to obtain these records directly from AT&T and defendant itself has not subpoenaed AT&T for these records (cf. Docket No. 18, Def. Reply at 2, arguing that it was not defendant's responsibility to subpoena plaintiff's telephone service records).
At oral argument, plaintiff claimed that it served subpoenas (four times) upon AT&T and obtained only the records he produced. Plaintiff invited defendant to serve its own subpoena upon AT&T to compare responses from the cell phone provider. Defendant countered that the verification from AT&T's representative to one of the responses to the subpoena indicated that all of AT&T's records were produced when, in fact, January and February 2008 records were not produced.
Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d ed. 1994). "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1) (effective Dec. 1, 2007).
Document production under Rule 34 is only of items "in the responding party's possession, custody, or control," Fed. R. Civ. P. 34(a)(1); see also Fed. R. Civ. P. 26(a)(1)(A)(ii) (initial disclosure of documents in a party's possession, ...