Hallmark v. Cohen & Slamowitz
Hallmark v. Cohen & Slamowitz
Opinion of the Court
DECISION and ORDER
In this class action, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (“FDCPA”) seek damages for Defendants’ unauthorized attempt to collect pre-suit filing fees of $140 for which Defendant Cohen & Slamowitz (“C & S”) demanded payment by letter sent prior to the filing of any complaint.
By motion papers filed October 2, 2014 (Doe. No. 230) (“Plaintiffs motion”), Plaintiff requested, inter alia, Defendants produce all credit card agreements and related documents which Defendants assert authorize Defendants to collect such fees from the 10,250 class members permitted under FDCPA § 1692f(l). Defendants opposed Plaintiffs motion claiming that the requested production would impose a prohibitively expensive compliance cost of “at least $300,000,” Affidavit of Kyle Hannan (Doc. No. 239), and thus was unduly burdensome. In this estimate, Defendant Midland (“Midland”) stated that it would be required to obtain records for 3,200 class members from the original creditors as Midland did not already possess such records but could obtain them at a cost of $10 per credit cardholder or $32,000, plus Midland’s other costs related to such request. Id. ¶¶ 9-11. As to the balance, i.e., 7,050,
In a Decision and Order filed January 8, 2015 (Doe. No. 254) (“the Jan. 8, 2015 D & O” or “the D & O”), the court directed Defendants produce responsive documents limited
By papers filed January 22, 2015 (Doc. No. 255), Midland filed an “Objection” to the Jan. 8, 2015 D & O (“Midland Objection” or “the Objection”) in which Midland stated that of the 7,050 class member accounts from which the court directed the 10% random sample to be drawn, 2,200 accounts were “readily accessible,” Midland Objection at 1, for such production without “undue burden to Midland.” Midland’s Objection accordingly requested the court modify the D & O to limit production to 680 (10% of 6,800) as a sample of class members’ credit card agreements containing the contract authorization clause Defendants assert support Defendants’ authorization ‘defense’ (more correctly 10% of 7,050 or 705 accounts) applied to the 2,200 more accessible accounts to avoid approximately $25,000 in costs, that Midland claims would be incurred upon Midland’s review of the remaining portion, 4,750, of the relevant account files representing the balance of cardholder agreement files for the class. Midland’s Objection at 1. Midland further states that applying the court’s 10% sampling process, which Midland characterized as “a reasonable balance of the competing interests in [Plaintiffs] motion to compel,” Midland Objection at 1, to the 4,750 accounts “would require a massive, and unnecessary burden.” Id. Based on these representations of undue burdensomeness, the Objection requested that the D & O be “modified” to require the “680 [705]
In opposition to Defendants’ Objections, Plaintiff filed, on February 5, 2015, the Declaration of Jonathan R. Miller (Doc. No. 259) (“Miller Declaration”) together with Exhibits A-C (“Miller Declaration Exh(s).-”) and Plaintiffs Memorandum of Law In Opposition (Doc. No. 258) (“Plaintiffs Memorandum”). On April 9, 2015, Midland filed Midland Funding LLC’s Reply in Support of Its Objection to the January 8, 2015 D & O (“Midland Reply”). On April 8, 2015, Defendant C & S advised the court by e-mail that it did not intend to file any reply.
Upon a preliminary review of Midland’s objection and finding the Objection appeared to be addressed to the undersigned rather than the district judge (“Midland recognized the Court’s consideration of the burden imposed by Your Honor’s January 8, 2015 Order ... [and] respectfully requests a partial modification of this Court’s Order dated January 8, 2015.”), Midland Objection at 1, and given that the Objection does not purport to assert the January 8, 2015 D & O was “clearly erroneous or contrary to law,” 26 U.S.C. § 636(b)(1)(A) (district “judge may reconsider any pretrial matter under this paragraph (A) where ... the magistrate judge’s order is clearly erroneous or contrary to law.”); Fed. R.Civ.P. 72(a) (“district judge must ... modify or set aside any part of the [magistrate judge’s] order [to which objections were timely filed] that is “clearly erroneous or is contrary to law.”), District Judge Wolford, to whom the case was recently re-assigned, Doc. No. 257, requested the undersigned consider the Objection as a motion for reconsideration. In accordance with Judge Wolford’s request, the court addresses Defendants’ Objection as a motion for reconsideration of the Jan. 8, 2015 D & O. Oral argument was deemed unnecessary.
It is well established that reconsideration is limited to circumstances where the court has overlooked factual matters or controlling precedent with respect to the issues upon which the court previously ruled. See Larouche v. Webster, 975 F.Supp. 490, 492 (S.D.N.Y. 1996) (citing caselaw). Here, Defendants do not assert the Jan. 8, 2015 D &
Plaintiff opposes Midland’s request contending that (1) the Objection fails to comply with Local R.Civ.P. 72(c) which requires an objection certify that no legal or factual arguments not previously raised by the objecting party before the magistrate judge are presented, Plaintiffs Memorandum at 2, (2) the Objection does not assert that Jan. 8, 2015 D & O is in any respect clearly erroneous or contrary to law as required by § 636(a)(1)(A) and Rule 72(a), id., and (3) permitting Midland to produce the required sample of cardholder agreements from the sub-group of 2,200, ostensibly more accessible class members’ account files, will improperly “skew” the result. Plaintiffs Memorandum at 8-13. Although, in response, Midland asserts that is has adequately explained why the Jan. 8, 2015 D & O is clearly erroneous or contrary to law by pointing to the purported increased costs associated with sampling the 4,600 account files in which numerous documents are located, this argument assumes that it is improper, in discovery, to impose such expense on a responding party. It is not, and neither the Objection nor the Midland Reply point to any authority to support this theory.
Although in general “requests [to produce documents] that require extensive ... evaluation may be objectionable.. and a responding party is not required to prepare the adverse party’s ease ...[,] [t]he reasonableness of a request is within the court’s discretion.” Baieker-McKee Janssen, Corr, Federal Civil Rules Handbook, Thomson Reuters 2015 at 911-12 (citing Chambers v. Capital Cities/ABC, 154 F.R.D. 63, 65 (S.D.N.Y. 1994)). Here, several factors undermine Midland’s Objection, considered as a motion for reconsideration. First, based on Midland’s representation, the difference in the degree of difficulty in reviewing the 4,850 class member account files for responsive cardholder agreements, which support Defendants’ authorization defense, in contrast to the alleged greater ease of review and production for Midland associated with applying the 10% sample procedure, as directed by the Jan. 8, 2015 D & O, to the 2,200 files proposed by Midland, arises from the fact that “the remaining 4,600 cardholder agreements are not stored directly with each individual [class member] account.” Midland Reply at 2 (“2,200 of these [relevant] agreements are stored directly with each individual account file.”). However, such contrasting filing and retrieval issues do not require reconsideration. That Midland’s document storage system creates the basis upon which Midland relies in requesting the court limit the sampling process to the 2,200 supposedly more accessible files is, in itself, no reason to alter the sampling process required by the D & O. See Brooks v. Macy’s, Inc., 2011 WL 1793345, at *4 (S.D.N.Y. May 6, 2011) (“the burden that results from disorganized record-keeping does not excuse a party from producing relevant documents.”); Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass. 1976) (“To allow a defendant whose
In applying sampling as a discovery tool in facilitating production from a large number of documents, courts attempt to assure that the sample is “representative” in relevant respects to the “populations” of the documents to be reviewed. See Assured Guaranty Municipal Corp. v. Flagstar Bank, 920 F.Supp.2d 475, 487 (S.D.N.Y. 2013) (plaintiffs statistical expert determined random samples, 4% and 8%, respectively, of responsive agreements constituting securitized loan pools were “representative of the total loan population” to support finding of defendant’s failure to follow underwriting guidelines, constituted fraud, or misrepresentation in issuing such loans). See also Sampling Methods Used In Statistical Analysis, http://www.statisticalforecasting.com/ statistical-sampling-methods.php (“The sample should be representative of the general population.”); Manual for Complex Litigation Fourth at 474 (“Whether the aim is discovery ... any sample should be representative____”). Although Midland represents the 2,200 files from which it requests the 10% sample of 705 files be drawn will be sufficiently representative, Midland Reply at 1 (“providing 680[705] terms and conditions from this random group [2,200] satisfies the intent of Your Honor’s order.”), Midland provides no affidavit from someone knowledgeable in statistical sampling, supporting that Midland’s proposed reduction in the population of class member agreements would not adversely affect the statistical reliability of the resultant document production based on the sample. Moreover, Midland’s assertion that the relevant characteristics of the 2,200 account file population sub-group, e.g., age of account, creditor name, debtor name, amount of debt, would not adversely “affect randomness,” Midland Objection at 1, is likewise without support in the form of an affidavit based on personal knowledge or statistical expertise. In sum, the Jan. 8, 2015 D & O directions with respect to the use of the 10% sample to be applied to the 7,050 class member account files in Midland’s possession in order to comply reasonably with PlaintifPs demand for production of the agreements
CONCLUSION
Based on the foregoing, considering, in accordance with Judge Wolford’s request, Defendants’ Objections (Doc. Nos. 255 and 256) as motions for reconsideration of the Jan. 8, 2015 D & O, such motions are DENIED.
SO ORDERED.
. Incorrectly stated in the Jan. 8, 2015 D & O as 6,800. Jan. 8, 2015 D & O at 10.
. Unless indicated otherwise all bracketed material added.
Reference
- Full Case Name
- Michael HALLMARK, on behalf of himself and all others similarly situated v. COHEN & SLAMOWITZ, Midland Funding LLC
- Status
- Published