The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, URBANA DIVISION
LYNN MCGLENN, on behalf )
of herself and all others )
similarly situated, )
)
Plaintiff, )
)
v. ) No. 18-cv-2097
)
DRIVELINE RETAIL )
MERCHANDISING, INC., )
)
Defendant. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant Driveline Retail
Merchandising, Inc.’s (Driveline) Motion to Compel Plaintiff Lynn McGlenn
to Respond to Discovery (d/e 55) (Motion). For the reasons set forth
below, the Motion is ALLOWED in part and DENIED in part.
BACKGROUND
Driveline provides retail merchandising services throughout the
nation, including all fifty States, Washington DC, Puerto Rico, Virgin
Islands, and Guam. Driveline sets up product displays and shelves
products at big-box retail establishments. Driveline’s principle place of
business is in this District. Plaintiff Lynn McGlenn lives in Georgia and
formerly worked for Driveline. See First Amended Class Action Complaint
(d/e 44) (Amended Complaint) ¶¶ 1-2, 4.
On January 25, 2017, an as yet unknown person sent a phishing
email (Phishing Email) to a Driveline employee in Driveline’s payroll
department. The Phishing Email falsely identified the sender as Driveline’s
Chief Financial Officer. The Phishing Email asked the Driveline employee
to send a copy of the W-2 information for Driveline employees for the 2016
tax year. The Driveline employee complied, believing he or she was
sending the information to Driveline. As a result, the unknown person who
sent the Phishing Email received the 2016 W-2 information for 15,878
Driveline employees in 2016, including names, addresses, Social Security
Numbers, and other Personal Identifying Information (sometimes called
PII). See Amended Complaint ¶¶ 13-16, 6; Defendant’s Objection to
Plaintiff’s Renewed Motion for Class Certification (With Supporting
Memorandum) (d/e 54) (Class Certification Objection), at 1.
McGlenn alleges six claims on behalf of herself and all affected
current and former Driveline employees. Excluded from the classes are
officers, directors and legal representatives of Driveline and the judges and
court personnel to whom this case may be assigned and any members of
their immediate families. (Proposed Class or Class). Amended Complaint
¶ 63-64. She alleges claims for negligence (Count I); invasion of privacy
(Count II); breach of implied contract (Count III); breach of fiduciary duty
(Count IV); violation of the Illinois Personal Information Protection Act, 815
ILCS 530/1 et seq. (Count V); and violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. (Count VI).
McGlenn alleges that the amount in controversy exceeds $5,000,000.00.
Amended Complaint ¶ 3.
McGlenn alleges that she and the Proposed Class suffered several
types of damage. Driveline sent out a notice letter (Notice) to the
Proposed Class on February 14, 2017. McGlenn alleges that shortly after
receiving the Notice, she learned that someone used her Personal
Identifying Information to open a credit card account with Capitol One
Bank. McGlenn alleges that she spent 10 hours closing the fraudulent
account. McGlenn further put a freeze on her credit report. She alleges
that she spends time weekly reviewing her credit report. Amended
Complaint ¶¶ 17-19.
McGlenn further alleges that she and the other members of the
Proposed Class of Driveline “are now, and for the rest of their lives will be,
at a heightened risk of further identity theft and fraud.” Amended Complaint
¶ 20. She alleges numerous other damages from the January 25, 2017
Phishing Email. McGlenn refers to the January 25, 2017, Phishing Email
event in the Amended Complaint as the Data Disclosure. McGlenn alleges
that she and the Proposed Class have suffered damages from:
a. Unauthorized use and misuse of their PII;
b. The loss of the opportunity to control how their PII is used;
c. The diminution in value of their PII;
d. The compromise, publication and/or theft of their PII;
e. Out-of-pocket costs associated with the prevention,
detection, recovery and remediation from identity theft or fraud;
f. Lost opportunity costs and lost wages associated with effort
expended and the loss of productivity from addressing and
attempting to mitigate the actual and future consequences of
the Data Disclosure, including but not limited to efforts spent
researching how to prevent, detect, contest and recover from
identity theft and fraud;
g. Delay in receipt of tax refund monies;
h. Lost opportunity and benefits of electronically filing of income
tax returns;
i. The imminent and certain impending injury flowing from
potential fraud and identity theft posed by their PII being placed
in the hands of criminals;
j. The continued risk to their PII, which remains in the
possession of Driveline and is subject to further breaches so
long as Driveline fail to undertake appropriate measures to
protect the PII in their possession; and
k. Current and future costs in terms of time, effort and money
that will be expended to prevent, detect, contest, remediate and
repair the impact of the Data Disclosure for the remainder of the
lives of Plaintiff and Class members.
Amended Complaint ¶ 58. McGlenn further alleges:
As a direct and proximate result of Driveline’s wrongful actions
and inaction and the resulting Data Disclosure, Plaintiff and
Class members have been placed at an imminent, immediate,
and continuing increased risk of harm from identity theft and
identity fraud, requiring them to take the time which they
otherwise would have dedicated to other life demands such as
work and effort to mitigate the actual and potential impact of the
Data Disclosure reach on their lives including, inter alia, by
placing “freezes” and “alerts” with credit reporting agencies,
contacting their financial institutions, closing or modifying
financial accounts, closely reviewing and monitoring their credit
reports and accounts for unauthorized activity, and filing police
reports. This time has been lost forever and cannot be
recaptured.
Amended Complaint ¶ 59. McGlenn alleges:
As a result of Driveline’s negligence, Plaintiff and the Class
members have suffered and will continue to suffer damages
and injury including, but not limited to: identity theft, out-of-
pocket expenses associated with addressing false tax returns
filed; current and future out-of-pocket costs in connection with
preparing and filing tax returns; loss or delay of tax refunds as a
result of fraudulently filed tax returns; out-of-pocket expenses
associated with procuring robust identity protection and
restoration services; increased risk of future identity theft and
fraud, and the costs associated therewith; and time spent
monitoring, addressing and correcting the current and future
consequences of the Data Disclosure.
Amended Complaint ¶ 98. McGlenn alleges:
As a direct and proximate result of Driveline’s breach of its
implied contacts with Plaintiff and Class members, Plaintiff and
Class members have suffered and will suffer injury, including
but not limited to: (i) the loss of the control over how their PII is
used and who has access to same; (ii) the compromise,
publication, and/or theft of their PII; (iii) out-of-pocket expenses
associated with the prevention, detection, and recovery from
identity theft, tax fraud, and/or unauthorized use of their PII; (iv)
lost opportunity costs associated with effort expended and the
loss of productivity addressing and attempting to mitigate the
actual and future consequences of the Data Disclosure,
including but not limited to efforts spent researching how to
prevent, detect, contest and recover from tax fraud and identity
theft; (v) costs associated with placing freezes on credit reports;
(vi) the continued risk to their PII, which remain in Driveline
possession and is subject to further unauthorized disclosures
so long as Driveline fails to undertake appropriate and
adequate measures to protect the PII of employees and former
employees in its continued possession; and, (vii) future costs in
terms of time, effort and money that will be expended to
prevent, detect, contest, and repair the impact of the PII
compromised as a result of the Data Disclosure for the
remainder of the lives of Plaintiff and Class members.
Amended Complaint ¶ 116.
On October 16, 2019, Driveline served McGlenn with interrogatories
and requests for production of documents. Motion, Exhibit 1, Defendants
First Set of Discovery Requests to Plaintiff Lynn McGlenn (Discovery
Request). McGlenn objected to some of the discovery requests and
Driveline found some responses inadequate. The parties have attempted
to resolve their disagreements, but disputes remain regarding certain
interrogatories and requests to produce.
ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain
discovery regarding any matter, not privileged, which is relevant to the
claim or defense of any party. Relevant information need not be admissible
at trial if the discovery appears to be reasonably calculated to lead to the
discovery of admissible evidence. The information sought must also be
proportional to the needs of the case. The Rule gives the district courts
broad discretion in matters relating to discovery. See Brown Bey v. United
States, 720 F.2d 467, 470 471 (7th Cir.1983); Eggleston v. Chicago
Journeymen Plumbers' Local Union 130, 657 F.2d 890, 902 (7th Cir.1981);
see also, Indianapolis Colts v. Mayor and City Council of Baltimore, 775
F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will only reverse a
decision of a district court relating to discovery upon a clear showing of an
abuse of discretion). “[I]f there is an objection the discovery goes beyond
material relevant to the parties’ claims or defenses, the Court would
become involved to determine whether the discovery is relevant to the
claims or defenses and, if not, whether good cause exists for authorizing it
so long as it is relevant to the subject matter of the action. The good-cause
standard warranting broader discovery is meant to be flexible.” Federal
Rule of Civil Procedure 26(b)(1) Advisory Committee Notes, 2000
Amendment.
The federal discovery rules are to be construed broadly and liberally.
Herbert v. Lando, 441 U.S. 153, 177 (1979); Jefferys v. LRP Publications,
Inc., 184 F.R.D. 262, 263 (E.D .Pa. 1999). The party opposing discovery
has the burden of proving that the requested discovery should be
disallowed. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan.
1999); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132
F.R.D. 204, 207 (N.D. Ind. 1990); Flag Fables, Inc. v. Jean Ann’s Country
Flags and Crafts, Inc., 730 F. Supp. 1165, 1186 (D. Mass. 1989).
District Courts have broad discretion in discovery matters. Packman
v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001). The Court may
limit the frequency or extent of discovery if: the discovery is unreasonably
cumulative or duplicative, or can be secured from a more convenient and
less expensive source; the party seeking discovery has had ample
opportunity to conduct discovery; or if the proposed discovery is outside the
scope of discovery permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
We are talking about discovery, not admissibility at trial.
Driveline has filed this Motion to compel responses to the remaining
discovery requests in dispute: Interrogatories 4, 5, 6, 14, and 15; and
Production Requests 8, 9, 10, 11, 12, 19 and 21. Interrogatories 4, 5, and
6, and Production Requests 8, 9, 10, and 11 relate to information related to
McGlenn’s income taxes and related matters (Tax Discovery Requests).
Interrogatories 14 and 15 and Production Requests 19, and 21 relate to
information regarding McGlenn’s credit scores, credit reports, and other
related matters (Credit Discovery Requests). Production Request 12 is a
request for all documents related to interrogatory answers. The Court
addresses the Tax Discovery Requests first and then the Credit Discovery
Requests. The Court will address Production Request 12 last.
Interrogatory 4
Interrogatory 4 asked:
INTERROGATORY NO. 4: Describe any and all efforts You,
Your agent(s), tax preparer(s), and/or certified public
accountant(s) took to file each annual tax return, which includes
obtaining a refund or making payment, including but not limited
to Your state and federal tax return (e.g. Internal Revenue
Service (“IRS”) Form 1040or 1040 EZ and any applicable
Schedules, North Carolina Department of Revenue forms, state
tax forms, or similar forms) from January 1, 2012 to present,
including but not limited to who, when, and where tax returns
were prepared; who, when, how, and where tax forms were
filed.
Discovery Request, at 9. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential financial information not at issue in this case and,
thus, is a breach of privacy rights. Further objection on the
basis that use of the phrase “any and all” and the inclusion of
third parties renders this interrogatory overbroad, unduly
burdensome and not proportional to the needs of the case.
ANSWER:
Other than the receipt of tax documents or tax refunds, I have
not had written or oral communications with the IRS from
January 1, 2012, to present.
Motion, Exhibit 2, Plaintiff Lynn McGlenn's Responses to Defendant's First
Set of Discovery Requests (Discovery Response), at 4. During the parties’
efforts to resolve disputes, Driveline limited the timeframe for
Interrogatories 14, 15 and Production Requests 19 and 21 to the period
January 1, 2015 to the present. Motion, at 7. The Court modifies all
interrogatories and production requests at issue which contain a timeframe
of January 1, 2012 to present, to change the timeframe of each such
interrogatory and production request to January 1, 2015, to present. The
Court finds that two years prior to the January 25, 2017 Phishing Email is
sufficient to provide relevant information and is proportionate to the needs
of the case.
With the timeframe modified to January 1, 2015 to present,
McGlenn’s relevance objection is overruled. McGlenn alleges that she and
the Proposed Class suffer injuries by incurring “current and future out-of-
pocket costs in connection with preparing and filing tax returns .” Amended
Complaint ¶ 98. McGlenn further alleges that she and the Proposed Class
suffer injuries due to, “Delay in receipt of tax refund monies,” and “out-of-
pocket expenses associated with the prevention, detection, and recovery
from identity theft, tax fraud, and/or unauthorized use of their PII.”
Amended Complaint ¶¶ 58, 116. The interrogatory seeks information
directly related to these damages allegations. Driveline’s Interrogatory 4
requests relevant information.
McGlenn states that the interrogatory is unduly burdensome because
she already testified that she did not experience any problems with her
2016 tax return. See Plaintiff’s Opposition to Defendant’s Motion to
Compel (Dkt. 55) (d/e 58) (Opposition), Exhibit1, Excerpts of Deposition of
Lynn McGlenn (d/e 60) (McGlenn Deposition Excerpts), at 147-48. The
interrogatory asks for information related to the costs and effort incurred to
prepare tax returns. The McGlenn Deposition Excerpts do not contain any
testimony about her efforts and costs to file tax returns. McGlenn alleges in
the Amended Complaint, however, that she suffered damages by incurring
increased costs. If McGlenn effectively waived all personal claims related
to her taxes, tax refunds, tax fraud, and tax preparation, then this
information might not be relevant, but she did not make such a waiver in
her deposition testimony. The request for the information is directly
relevant to her allegation quoted above.
McGlenn complains that the requested information is highly
confidential tax information. She argues that requiring disclosure would be
unduly burdensome. This Court must consider whether discovery requests
are proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Tax
returns are highly confidential material and ordering disclosure of such
material should be limited. See F.S.L.I.C. v. Krueger, 55 F.R.D. 512, 51`4-
15 (N.D. Ill. 1972). McGlenn, however, alleges that the amount in
controversy in this case exceeds $5,000,000.00. Amended Complaint ¶ 3.
A $5 million case merits extensive discovery. Moreover, McGlenn has put
this matter at issue by alleging that she has suffered damages due to
increased costs in tax preparation. Because McGlenn has put the matter at
issue, and because of the amount in controversy, Driveline is entitled to ask
this interrogatory to explore McGlenn’s allegations and prepare its defense.
McGlenn must answer Interrogatory 4 in full and provide the
requested detailed information requested in Interrogatory 4 from January 1,
2015 to present, including information concerning preparation and
submission of tax returns and refund requests. McGlenn can designate her
response as confidential information subject to the Protective Order (d/e
16) already in place. The Court finds subjecting the answer to the
Protective Order will adequately address McGlenn’s concerns regarding
disclosure and use of information contained in the answer.
Interrogatory 5
Interrogatory 5 asks:
INTERROGATORY NO. 5: Describe any and all instances
that you Communicated, whether written or oral
Communication, with the IRS, including but not limited to who
you communicated with or spoke to, the date of the
Communication(s) and the contents of the Communication(s)
from January 1, 2012, to present.
Discovery Request, at 9. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential information not at issue in this case and, thus, is a
breach of privacy rights. The use of the phrase “any and all”
particularly without limiting the scope or nature of the
Communications renders this Interrogatory overbroad and
unduly burdensome and not proportional to the needs of the
case.
ANSWER:
Other than the receipt of tax documents or tax refunds, I have
not had written or oral communications with the IRS from
January 1, 2012, to present.
Discovery Response, at 4-5. For the reasons set forth with respect to
Interrogatory 4, McGlenn must answer Interrogatory 5 in full, except that
the Court modifies the timeframe to January 1, 2015, to present. McGlenn
alleges that she and the Proposed Class suffered injuries “Delay in receipt
of tax refund monies,” and “out-of-pocket expenses associated with the
prevention, detection, and recovery from identity theft, tax fraud, and/or
unauthorized use of their PII.” Amended Complaint ¶¶ 58, 116; see also
Amended Complaint ¶ 98. McGlenn has testified in her deposition that she
has not had any delays or problems with her 2016 tax return. See
McGlenn Deposition Excerpts, at 147-48, 159. McGlenn, however, did not
discuss her 2015, 2017, 2018, or 2019 tax returns. McGlenn must provide
answers regarding the “tax documents” or “tax refunds” she received.
Driveline is entitled to discover information about all these tax years, not
just 2016. McGlenn can designate her response as confidential information
subject to the Protective Order. The Court finds subjecting the answer to
the Protective Order will adequately address McGlenn’s concerns
regarding disclosure and use of information contained in the answer.
Interrogatory 6
Interrogatory 6 asks:
INTERROGATORY NO. 6: Describe any and all in-person
meetings, visits, or Communications you have had with the IRS,
including the date(s), who You spoke to and/or who witnessed
the in-person meeting(s), visit(s) or Communication(s), the
purpose of the in-person meeting(s), visit(s) or
Communication(s), and the contents of the Communication(s)
from January 1, 2012 to present.
Discovery Request, at 9-10. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential information not at issue in this case and, thus, is a
breach of privacy rights. The use of the phrase “any and all”
particularly without limiting the scope or nature of the
Communications renders this Interrogatory overbroad and
unduly burdensome and not proportional to the needs of the
case. Objection as to the inclusion of third parties “who
witnessed” the referenced Communications as answering
would require Plaintiff to speculate and to have knowledge
beyond her control.
ANSWER:
Other than the receipt of tax documents or tax refunds, I have
not had written or oral communications with the IRS from
January 1, 2012, to present.
Discovery Response, at 5-6. McGlenn answered the Interrogatory. She
had no in-person meetings, visits, or Communications with IRS
representatives. The Court sees no basis to order any additional response
to this Interrogatory.
Production Request 8
Production Request 8 asks:
REQUEST FOR PRODUCTION NO. 8: Produce all
Documents and Records including but not limited to Writings,
Statements, notes, sketches, drawings, videos, photographs,
Communications, and correspondence between You and the
IRS from January 1, 2012 to present.
Discovery Request, at 10. McGlenn responded:
Objection:
Given the time period specified, this Interrogatory seeks
information not relevant to any party’s claims or defenses and
not likely to lead to relevant information. Additionally, this
interrogatory seeks private and confidential financial information
not at issue in this case and, thus, is a breach of privacy rights.
Further objection on the basis that lack of scope for the
Communications and document requested renders this
interrogatory overbroad, unduly burdensome and not
proportional to the needs of the case.
RESPONSE:
I am not aware of any issues with the IRS because of the
Driveline Data Breach and so have no such documents.
Discovery Response, at 16. The Court modifies the timeframe of the
interrogatory to January 1, 2015, to present.
For the reasons discussed above, McGlenn must produce all
responsive documents from the modified timeframe. Her tax returns and
refunds will be relevant to her alleged claims. She alleges current and
future out of pocket expenses for preparing and filing tax returns and loss
or delay of tax refunds. Given the Plaintiff alleges the amount at stake in
this case exceeds $5,000,000.00, the request for production of such
documents is proportional to the needs of the case. McGlenn can
designate her response as confidential information subject to the Protective
Order (d/e 16). The Court finds subjecting the responsive documents to
the Protective Order will adequately address McGlenn’s concerns
regarding disclosure and use of information contained in the documents.
The one excepted document is the document referenced in her
deposition. McGlenn testified in her deposition that she had one document
from the IRS consisting of a statement about taxes owed. McGlenn
Deposition Excerpts, at 159. Given the highly confidential nature of tax
information, McGlenn should not be required to produce documents that
are unrelated to the allegations in this case; however, Driveline should not
be required to rely on McGlenn’s characterization of the document. The
Court, therefore, directs McGlenn to provide the Court for in camera
inspection a copy of the communication she mentioned in her deposition.
The Court will review the document and determine whether the document
should be produced to the Defendant.
Production Request 9
REQUEST FOR PRODUCTION NO. 9: Produce all
Documents, Writings, Statements, Communications,
correspondence, and/or Record of refunds referring or relating
in any way to You and/or Your agent, tax preparer, and/or
certified public accountant preparing Your tax return, annual tax
return, including but not limited to Your state and federal tax
return (e.g. IRS Form 1040 or 1040 EZ and any applicable
Schedules, or GDOL Form 500 or Form 500EZ, other state tax
forms, or similar forms) from January 1, 2012, to present.
Discovery Request, at 15-16. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential information not at issue in this case and, thus, is a
breach of privacy rights. The use of the phrase “any and all”
particularly without limiting the scope or nature of the
Communications renders this Interrogatory overbroad and
unduly burdensome and not proportional to the needs of the
case.
RESPONSE:
I am not aware of any issues with the IRS because of the
Driveline Data Breach and so have no such documents.
Discovery Response, at 17. The Court modifies the timeframe of the
interrogatory to January 1, 2015, to present.
For the reasons set forth above, McGlenn must provide the requested
documents. The documents sought are related to the alleged damages
quoted and discussed above. McGlenn can designate her response as
confidential information subject to the Protective Order. The Court finds
subjecting the responsive documents to the Protective Order will
adequately address McGlenn’s concerns regarding disclosure and use of
information contained in the documents.
Production Request 10
Production Request 10 asks:
REQUEST FOR PRODUCTION NO. 10: Produce all
Documents, Writings, Statements, Communications,
correspondence, and/or record of refunds referring or relating in
any way to You and/or Your agent, tax preparer, and/or certified
public accountant filing Your tax return, annual tax return,
including but not limited to Your state and federal tax return
(e.g. IRS Form 1040 or 1040 EZ and any applicable Schedules,
or GDOL Form 500 or Form 500EZ, other state tax forms, or
similar forms) from January 1, 2012 to present.
Discovery Request, at 16. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential information not at issue in this case and, thus, is a
breach of privacy rights. The use of the phrase “any and all”
particularly without limiting the scope or nature of the
Communications renders this Interrogatory overbroad and
unduly burdensome and not proportional to the needs of the
case.
RESPONSE:
I am not aware of any issues with the IRS because of the
Driveline Data Breach and so have no such documents.
Discovery Response, at 17-18. The Court modifies the timeframe of the
interrogatory to January 1, 2015 to present.
For the reasons set forth above, McGlenn must provide the requested
documents. The documents are related to the alleged damages quoted
and discussed above. McGlenn can designate her response as
confidential information subject to the Protective Order. The Court finds
subjecting the answer to the Protective Order will adequately address
McGlenn’s concerns regarding disclosure and use of information contained
in the response.
Production Request 11
Production Request 11 asks:
REQUEST FOR PRODUCTION NO. 11: Produce all
Documents, Writings, Statements, Communications,
correspondence, and/or records of refunds referring or relating
in any way to You and/or Your agent, tax preparer, and/or
certified public accountant obtaining and/or receiving, or
attempting to obtain and/or attempting to receive a tax refund
from the IRS and/or the state(s) where You filed a state tax
return (e.g. IRS Form 1040 or 1040 EZ and any applicable
Schedules, or North Carolina state tax forms, other state tax
forms, or similar forms) from January 1, 2012 to present.
Discovery Request, at 16. McGlenn responded:
Objection:
Because Plaintiff has not made any allegations regarding her
tax returns, this interrogatory is not relevant to any party’s
claims or defenses and not likely to lead to relevant information.
Additionally, because Plaintiff has not made any allegations
regarding her tax returns, this interrogatory seeks private and
confidential information not at issue in this case and, thus, is a
breach of privacy rights. The use of the phrase “any and all”
particularly without limiting the scope or nature of the
Communications renders this Interrogatory overbroad and
unduly burdensome and not proportional to the needs of the
case.
RESPONSE:
I am not aware of any issues with the IRS because of the
Driveline data Breach and so have no such documents.
Discovery Response, at 18-19. The Court modifies the timeframe of the
interrogatory to January 1, 2015 to present.
For the reasons set forth above, McGlenn must provide the requested
documents. The documents are related to the alleged damages quoted
and discussed above. McGlenn can designate her response as
confidential information subject to the Protective Order. The Court finds
subjecting the response documents to the Protective Order will adequately
address McGlenn’s concerns regarding disclosure and use of information
contained in the documents.
Credit Discovery Requests
Interrogatory 14
Interrogatory 14 asks:
INTERROGATORY NO. 14: Identify each and every credit
application You applied for using Your PII from January 1,
2012, to present, including the name of the credit card company
or bank, the date of application, names of additional signors,
and the credit card processor.
Discovery Request, at 11. McGlenn responded:
Objection:
Given the time period specified, this Interrogatory seeks
information not relevant to any party’s claims or defenses and
not likely to lead to relevant information. Additionally, this
interrogatory seeks private and confidential financial information
not at issue in this case and, thus, is a breach of privacy rights.
Further objection on the basis that use of the phrase “each and
every” and the time period specified renders this interrogatory
overbroad, unduly burdensome and not proportional to the
needs of the case. The use of the term “credit application”
within the context of the remainder of this Interrogatory renders
it vague and ambiguous. Plaintiff is uncertain as to whether
Defendant is seeking only applications for credit cards or other
forms of credit. Further, Plaintiff does not understand what is
meant by “credit card processor.” Given this ambiguity, Plaintiff
is unable to answer this Interrogatory as phrased.
Discovery Response, at 10-11. Driveline agreed to modify the timeframe of
the interrogatory to January 1, 2015, to present.
With the timeframe modified, the relevance objection is overruled.
McGlenn alleges specifically that shortly after she received the Notice, she
determined that someone secured a Capitol One credit card in her name.
She further alleged that she had been forced to check her credit report
weekly. She alleged that she was required to put a freeze on her credit
report. Amended Complaint ¶ 19. McGlenn further alleged that she and
the Proposed Class are
at an imminent, immediate, and continuing increased risk of
harm from identity theft and identity fraud, requiring . . . them to
mitigate the actual and potential impact of the Data Disclosure
breach on their lives including, inter alia, by placing “freezes”
and “alerts” with credit reporting agencies, contacting their
financial institutions, closing or modifying financial accounts,
closely reviewing and monitoring their credit reports and
accounts for unauthorized activity, and filing police reports. . . .
Amended Complaint ¶ 59. McGlenn claims that Driveline has injured her
by putting her credit at risk through identity theft. Her ability to get credit is
clearly relevant to this alleged injury. Information about her credit
applications are, therefore, relevant to her alleged damages. McGlenn
claims that she suffered damage to her credit by the false Capitol One
credit card account, and further suffers damage by incurring costs to
monitor her credit reports for identity theft. See Amended Complaint ¶¶ 17-
20. The relevance objection is overruled.
McGlenn’s vagueness objections are allowed in part. The Court, in
its discretion, clarifies the interrogatory to resolve part of McGlenn’s
vagueness objections. The Court determines that a credit application is a
written or electronic application for credit submitted to any entity or person
after January 1, 2015. The term “each and every” means all written or
electronic applications for credit submitted to any entity or person after
January 1, 2015. The request is limited in time and is not overly broad and
unduly burdensome. The term “credit processor” is not clear to the Court
or McGlenn. McGlenn is not required to respond and identify the credit
processor associated with any credit application.
Interrogatory 15
Interrogatory 15 asks:
INTERROGATORY NO. 15: Identify each and every credit card
You have used from January 1, 2012 to present, including the
name of the credit card company or bank, the date of
application, names of additional signors, the credit card
processor, the application date, whether the credit card is still
open, and the date of the last use of the credit card.
Discovery Request, at 11. McGlenn responded:
Objection:
Given the time period specified, this Interrogatory seeks
information not relevant to any party’s claims or defenses and
not likely to lead to relevant information. Additionally, this
interrogatory seeks private and confidential financial information
not at issue in this case and, thus, is a breach of privacy rights.
Further, Plaintiff does not understand what is meant by “credit
card processor.”
Discovery Response, at 11. Driveline agreed to modify the timeframe in
this production request to January 1, 2015 to the present. As discussed
above, McGlenn claims Driveline’s wrongful conduct subjected her to
damages by creating a risk of injury to her credit through identity theft.
Driveline is entitled to seek information about the status of McGlenn’s credit
to ascertain the nature and scope of the alleged harm created by Driveline.
The requested evidence is relevant. She argues that she answered this
interrogatory at the deposition. McGlenn testified that she had two credit
cards at the time of the deposition. McGlenn Deposition Excerpts, at 119.
She did not testify that those two were the only credit cards she has had
since January 1, 2015. McGlenn’s relevance objection is overruled. For
the reasons discussed above, McGlenn is not required to identify the credit
card processor.
Production Request 19
Production 19 asks:
REQUEST FOR PRODUCTION NO. 19: Execute and produce
the "Credit Report Authorization and Release" attached as
Exhibit A.
Discovery Request, at 17. McGlenn responded:
Objection:
Overbroad, unduly burdensome. Not relevant; not likely to lead
to relevant information; seeks private and confidential financial
information and so is a breach of privacy rights.
Discovery Response, at 22. The objection is overruled. McGlenn claims
that Driveline wrongfully injured her by putting her credit at risk through
identity theft. Driveline is entitled to discover the effect of its actions on her
credit. There is no breach of privacy because McGlenn put at issue the
impact of Driveline’s actions on her credit. The signed Credit Report
Authorization and Release and McGlenn’s credit reports would be
confidential information subject to the Protective Order (d/e 16). The Court
finds subjecting McGlenn’s credit reports to the Protective Order will
adequately address McGlenn’s concerns regarding disclosure and use of
information contained in the credit report.
Production Request 21
Production Request 21 asks:
REQUEST FOR PRODUCTION NO. 21: Produce all credit
reports with Your PII, which You obtained from January 1,
2012, to present.
Discovery Request, at 17-18.
Objection:
Given the time period specified, this Request for Production
seeks information not relevant to any party’s claims or defenses
and not likely to lead to relevant information. Additionally, this
Request for Production seeks private and confidential financial
information not at issue in this case and, thus, is a breach of
privacy rights.
Discovery Response, at 23. Driveline agreed to modify the timeframe of
this production request to January 1, 2015, to present.
The objection is overruled. McGlenn alleged that she has been
forced to check her credit report weekly. Driveline is entitled to discover
any evidence of that allegation. The request back to 2015 is reasonable to
test whether McGlenn obtained credit reports regularly before the January
25, 2017 Phishing Email. McGlenn testified that she used Credit Karma to
monitor her credit. See Class Certification Objection, at 7, and McGlenn
Deposition, at 113.1 If she did not download any copies of her credit report
1 Page 113 of McGlenn’s deposition is attached to the Class Certification Objection, but not to the Motion
or the Opposition.
or did not print any copies, she will not have any documents to produce. If
she printed the reports or saved an electronic copy of the reports, however,
she must produce those documents. Again, this is not an intrusion into her
privacy. She put the matter at issue and Driveline is entitled to discover the
information that exists relevant to the allegation. McGlenn’s credit reports
would be confidential information subject to the Protective Order (d/e 16).
The Court finds subjecting the credit report to the Protective Order will
adequately address McGlenn’s concerns regarding disclosure and use of
information contained in the credit report.
Production Request 12
Production Request 12 asks:
REQUEST FOR PRODUCTION NO. 12: Produce all
Documents and Records including but not limited to contracts,
agreements, proposals, Writings, Statements, notes, sketches,
drawings, videos, photographs, Communications, and
correspondence identified, referenced, relied on, and/or cited in
Your responses to The First Set of Interrogatories.
Discovery Request, at 16. McGlenn responded:
Objection:
RESPONSE:
A copy of the Charlotte Metro Credit Union letter is attached.
Discovery Response, at 19. McGlenn did not state any reason for her
“Objection;” to Production Request 12. The Court has directed McGlenn to
provide additional answers to interrogatories. McGlenn must produce any
additional documents responsive to Production Request 12 as a result of
the supplemental answers ordered by this Court. As discussed above, the
information would be adequately protected by the Protective Order.
The additional discovery ordered by this Opinion may be subject to
claims of privilege. Should McGlenn withhold any information or
documents on claims of privilege, she must include a privilege log with her
response that meets the requirements of Federal Rule of Civil Procedure
26(b)(5)(A).
The Court allowed Driveline’s Motion in part. The Court may
apportion the costs and expenses incurred for bringing and opposing the
Motion. Fed. R. Civ. P. 37(a)(5)(C). The Court, in its discretion, declines to
apportion expenses. Each party will bear her or its expenses incurred in
connection with this Motion.
THEREFORE, IT IS ORDERED that Driveline Retail Merchandising,
Inc.’s Motion to Compel Plaintiff Lynn McGlenn to Respond to Discovery
(d/e 55) is ALLOWED in part and DENIED in part. Plaintiff McGlenn is
ordered to serve the additional answers to interrogatories and produce the
additional documents ordered herein, including any privilege log for
documents or information withheld on a claim of privilege, by May 16, 2020.
ENTER: April 23, 2020
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE