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Godson v. Eltman, Eltman & Cooper, Pc.

United States District Court, Second Circuit

September 11, 2013

ELTMAN, ELTMAN & COOPER, PC., et al., Defendants.


H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. ##25 & 43.

Plaintiff commenced this action pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., alleging that defendant Eltman, Eltman & Cooper P.C. ("Eltman"), sent a collections letter on behalf of LVNV Funding, LLC ("LVNV"), which failed to fully disclose the amount of debt allegedly due, instead advising plaintiff that the amount due, "$2628.72 (Does not include all the interest)." Dkt. #1, ¶ 20. Plaintiff seeks to certify a class of individuals in New York who received substantially similar collection letters from defendants within one year prior to the filing of this action. Dkt. #1, ¶ 27.

Currently before the Court is plaintiff's motion to compel disclosure of documents and responses to interrogatories. Dkt. #47.

General Objections

Plaintiff objects to defendants' general objections ( i.e, overbroad, unduly burdensome, etc. ), to responses to the following interrogatories: 1, 8, 9, 10 and 13 and to the following document demands: 1, 2, 3, 6, 8, 9, 12, 13 and 21, stating that the general objections create doubt as to the completeness of defendants' responses. Dkt. #55, p.2 & Dkt. #55-1, ¶ 2. Upon review of defendants' responses to the contested discovery demands, the Court finds that the general objections do not diminish the sufficiency of defendants' responses. Accordingly, this aspect of plaintiff's motion to compel is denied.

Putative Class Members

Interrogatory #2 seeks the number, names and addresses of persons with New York addresses to whom defendants sent collection letters substantially similar to plaintiff's letter from September 9, 2010 through September 9, 2011. Dkt. #47-4, p.5. Defendants responded that the letter was sent to 977 individuals within that time frame, but declined to disclose names and contact information. Dkt. #47-4, p.5.

Defendants argue that plaintiff has been informed of the size of the potential class, which is all that is necessary to support its motion for class certification. Dkt. #50, p.12. Defendants suggest that plaintiff is seeking this information to bring additional claims against defendants rather than to obtain information relevant to class certification and cites case law suggesting that identification of potential class members should be withheld until a class has been conditionally certified. Dkt. #50, pp.11-12.

Plaintiff argues that the names, addresses and telephone numbers of the putative class members would allow him to contact potential class members "to assess whether common questions of law exist, and evaluate the typicality of claims between the Plaintiff and other claimants." Dkt. #55, pp.7-8. In addition, plaintiff argues that this information would allow him to assess whether the potential class members are similarly situated to plaintiff or whether individual issues may affect the ability of this action to proceed as a class action. Dkt. #55, p.8. Plaintiff notes that defendants have opposed his motion to certify a class by arguing that commonality, typicality and adequacy have not been established and that individual issues predominate. Dkt. #55, p.8.

In Oppenheimer Fund, Inc. v. Sanders, the Supreme Court determined that the discovery provisions of Rule 26 of the Federal Rules of Civil Procedure apply to the disclosure of class action members' names and addresses only if disclosure of such information is alleged to lead to evidence relevant to a claim or defense in the action. 437 U.S. 340. For example, the Supreme Court noted that "discovery often has been used to illuminate issues upon which a district court must pass in deciding whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation." Id. at 351, n.13. Thus, the Supreme Court recognized that "[t]here may be instances where" class members' names and addresses "could be relevant to issues that arise under Rule 23... or where a party has reason to believe that communication with some members of the class could yield information bearing on these or other issues." Id. at 354, n.20; See Youngblood v. Family Dollar Stores, Inc., No. 09 Civ. 3176, 2011 WL 1742109, at *2 (S.D.N.Y. Jan. 5, 2011) ("In this case, Plaintiffs clearly will not be able to prove the similarity of class members' actual duties' without contacting members of the putative class.").

Where the information was sought solely for the purpose of providing notification to the potential class, however, the Supreme Court determined that the authority for disclosing such information came from Rule 23 rather than Rule 26. Id. at 354. Pursuant to Rule 23, class notice is dependent upon certification of a class. See Dziennik v. Sealift, Inc., No. 05-CV-4659, 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) ("Courts have ordinarily refused to allow discovery of class members' identities at the pre-certification stage out of concern that plaintiffs' attorneys may be seeking such information to identify potential new clients, rather than to establish the appropriateness of certification.").

In the instant case, although defendants have opposed plaintiff's motion for class certification, resolution of defendants' arguments does not require analysis of the circumstances of potential class members. For example, defendants' arguments that plaintiff is an inadequate representative because he settled this claim in a prior lawsuit and that defendant Eltman lacks sufficient net worth to render a class action superior to other methods of obtaining recovery for the class can be resolved without inquiry of potential class members. Dkt. #34. As the Court finds no basis to believe that communication with members of the class would assist the Court ...

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