The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
ERIN BROWNE, )
)
Plaintiff, )
)
v. ) Case No. 4:23-cv-64-TLS-AZ
)
EQUIFAX INFORMATION )
SERVICES LLC, )
)
Defendant. )
OPINION AND ORDER
This matter is before the Court on Defendant Equifax Information Services
LLC’s Motion to Compel Depositions of Amy Foster and Sharon Samsell [DE 35], filed
on April 4, 2024, and Defendant Equifax Information Services LLC’s Motion for Entry
of Protective Order Regarding Plaintiff’s Rule 30(b)(6) Notice of Deposition of Equifax
[DE 37], filed on April 11, 2024. Plaintiff Erin Browne previously sought an extension
of time to respond to both of Equifax’s motions, and the Court granted her motion,
allowing Browne until May 28, 2024 to respond. [DE 40, 41]. Browne failed to respond
by that date, and the Court ordered her to respond by June 27, 2024. [DE 44]. Browne
then filed a response, albeit to only one of the two motions [DE 46], and Equifax filed
a reply [DE 48]. Both motions are therefore ripe. The Court will grant both motions
as discussed below.
Background
Equifax is a credit reporting agency that, among other things, provides credit
reports of individual consumers that are used to ascertain a potential borrower’s
creditworthiness. Banks, landlords, utility companies and others report information
about consumers, and credit reporting agencies like Equifax compile such
information and put it into credit reports. All else being equal, having a derogatory
notation (such as an unpaid past-due debt) on a credit report can make obtaining
credit or qualifying for a lease or loan more difficult.
Plaintiff Browne contends that Equifax kept an inaccurate entry on her credit
report from a landlord who wrongly sent her to collections for rent that “never
accrued” because she never rented the apartment in question or lived at the address.
DE 10, Am. Compl. ¶¶ 2–3. She says that Equifax continued to report this inaccurate
debt even after she disputed it, successfully sued the landlord, prevailed in her
lawsuit, and furnished Equifax with the judgment. Id. at ¶¶ 6–8. Browne says
Equifax’s failure to remove the debt and its practices violated the Fair Credit
Reporting Act, 15 U.S.C. § 1681, et seq.
In her lawsuit, Browne is seeking to recover damages for mental anguish and
stress that she says was caused by Equifax. Browne alleged these harms in her
Amended Complaint, see Am. Compl. ¶143, and she has reiterated them in discovery,
both in her answers to interrogatories and at her deposition. She testified that the
stress was of such a degree it caused her physical injuries and that she sought mental
health treatment because of her ordeal with Equifax. See DE 35-2 (Plaintiff’s
Responses to Defendant’s Interrogatories) and DE 35-3 (Deposition of Plaintiff).
As a result of these allegations and discovery, Equifax sought medical records
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and testimony from Browne’s mental healthcare providers. Browne partially objected
to this discovery on confidentiality and scope grounds, resulting in the motion to
compel testimony and medical records from Browne’s non-party mental health
professionals, which is one of two motions before the Court.
Browne, for her part, has sought discovery into Equifax’s business practices
and procedures, including by noticing a deposition of the company pursuant to Rule
30(b)(6) of the Federal Rules of Civil Procedure. Equifax objected to portions of the
noticed deposition and says the deposition seeks testimony on topics that is not
relevant nor proportional to the issues and needs of the case. It has filed a motion for
a protective order to limit the allowed scope of the deposition and to protect what it
says are its confidential business information.
Discussion
I. Equifax’s Motion to Compel Discovery into Browne’s Mental
Health Treatment.
A person’s medical history or testimony from their mental healthcare providers
would not intuitively appear relevant to a dispute involving credit reporting. Equifax
argues, however, that Browne put her mental health squarely at issue by alleging
and testifying to both physical and mental harm caused by Equifax. Thus, it says
Browne’s mental health treatment history is an appropriate subject of discovery and
that it should be allowed to depose the treating providers that Browne identified. The
Court agrees.
While Indiana has established a counselor-patient privilege, see Ind. Code §
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25-23.6-6-1, “[f]ederal common law determines the scope of privileges available in
cases involving a question of federal law.” Zukley v. Town of Shererville, 2016 WL
6994158, at *3 (N.D. Ind. Nov. 30, 2016) (citing Fed. R. Evid. 501). This is such a case
as Browne’s claim is for violation of the federal Fair Credit Reporting Act. Under
federal law, “confidential communications between a licensed psychotherapist and
her patients in the course of diagnosis or treatment are protected from compelled
disclosure under Rule 501 of the Federal Rules of Evidence.” Jaffee v. Redmond, 518
U.S. 1, 15 (1996). But the privilege can be waived, id. at n.14, and post-Jaffee, “courts
have been unanimous in holding that a party may surrender the psychotherapist-
patient privilege by affirmatively placing his or her psychological state at issue in the
suit.” Flowers v. Owens, 274 F.R.D. 218, 223 (N.D. Ill. 2011).1 As the Seventh Circuit
has put it, “[i]f a plaintiff by seeking damages for emotional distress places his or her
psychological state in issue, the defendant is entitled to discover any records of that
state.” Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006) (italics added).
1 The parties have not raised the issue of whether the mental healthcare providers at
issue here are covered by the federal psychotherapist-patient privilege or what role,
if any, Indiana’s counselor-patient privilege plays in the Court’s analysis. But from
what the Court can ascertain from publicly available information, Sharon Samsell is
a Licensed Mental Health Counselor (LMHC) and a Certified Health Touch
Practitioner (CHTP). Amy Foster holds a PhD from Michigan State University in
Family and Child Ecology and is a Licensed Marriage and Family Therapist (LMFT).
But as other courts have ruled, determining who falls within the ambit of
“psychotherapist” within the meaning of Jaffee is not necessary where, as here, a
plaintiff has waived any potential privilege. See Doe v. Purdue Univ., No. 2:17-CV-
33-JPK, 2021 WL 84531, at *5 (N.D. Ind. Jan. 11, 2021) (“[T]he Court need not
determine whether the psychotherapist-patient privilege applies to communications
between Plaintiff and Mr. Perry as, even if the privilege applies, it has been waived.”).
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So, the question becomes, has Browne waived any psychotherapist-patient
privilege rights by putting them at issue in her lawsuit? The answer is clearly yes,
and Browne concedes as much to a point. In her response to Equifax’s motion to
compel, she states she has “agreed to withdraw her privilege objections to the
subpoenas.” DE 46 at 1. However, the authorizations she signed for her therapists to
release information and testify are limited in scope. The releases she has executed
authorize disclosure only of (1) “Dates of Service,” and (2) a “discharge summary for
legal services.” See DE 46-1 and DE 46-2 (Authorizations to Release or Request
Information).
Unsurprisingly, Equifax insists on more and says these conditional releases
are insufficient. The Court agrees. As other courts have recognized, the Seventh
Circuit’s language in Oberweis that a “defendant is entitled to discover any records,”
Oberweis, 456 F.3d at 718, of a plaintiff’s mental health when that plaintiff seeks
damages for emotional distress is “broad and sweeping.” Laudicina v. City of Crystal
Lake, 328 F.R.D. 510, 514 (N.D. Ill. 2018); id. (“[T]he judges on the Seventh Circuit
are careful writers: They say what they mean and mean what they say. The broad
language hedges no bets.”).
In her answers to one of Equifax’s interrogatories concerning her injuries and
damages, Browne stated that “[t]he harms associated with the inaccurate reporting
include symptoms of anxiety, irritability, frustration, and nerves. These symptoms
have caused me to operate under high levels of stress, suffer from worrying, be
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distracted throughout the day and led to decreased time and decreased enjoyment
with friends and loved ones.” DE 35-2 (Plaintiff’s Responses to Defendant’s
Interrogatories). In response to another interrogatory, she said that “[t]he harms
associated with the inaccurate credit reporting are not limited to physical symptoms,
including the pinching/twisting feelings I got in my stomach, stress headaches,
throbbing pain and tightness in my neck.” Id. Furthermore, at her deposition, Browne
reiterated these harms and testified that she spoke to both of her therapists about
the issue, albeit she did not know how many times she brought the issue up. See DE
35-3 (Deposition of Plaintiff).
To be sure, formal discovery into the details of one’s mental health treatment
is undoubtedly intrusive and may be unwelcomed. But where a plaintiff invites such
an intrusion by seeking to recover money damages for psychological harm caused by
a defendant’s actions, as Browne does here, she waives her right to object to the
disclosure of evidence relating to those harms. To hold otherwise would allow a
plaintiff to use evidence of her mental health to recover damages while keeping the
full picture of her mental health from the defendant and the courts. They would
“effectively be abusing the privilege—using it both as a shield and a sword. This is
not allowed.” United States v. Kmart Corp., No. 12-CV-881-NJR-RJD, 2017 WL
3034342, at *3 (S.D. Ill. July 17, 2017) (discussing attorney-client privilege) (citation
omitted).
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II. Equifax’s Motion for Protective Order Concerning Plaintiff’s
Deposition of Equifax Pursuant to Rule 30(b)(6) of the Federal
Rules of Civil Procedure.
The second motion before the Court, Equifax’s motion for a protective order
concerning the Rule 30(b)(6) deposition that Plaintiff has noticed is easier to resolve.
For one, some of the relief Equifax seeks is now moot because the proposed protective
order governing discovery in this case to protect Equifax’s confidential business
information that Equifax proposed and filed was entered by Judge Martin, the
Magistrate Judge previously assigned to this case. [DE 39]. But Equifax’s motion
seeks additional relief that the Court must address based on what Equifax says are
Browne’s requests for testimony that is “irrelevant, overreaching, and burdensome.”
DE 37-1 at 3.
“Rule 30(b)(6) depositions,” like all other forms of discovery, “are limited by the
scope of discovery in Federal Rule of Civil Procedure 26(b)(1).” Ball Corp. v. Air Tech
of Michigan, Inc., 329 F.R.D. 599, 602 (N.D. Ind. 2019). Thus, any topic noticed in a
Rule 30(b)(6) deposition must seek information that is (1) “relevant to any party’s
claim or defense,” and (2) be “proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties'
relative access to relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. Pro. 26(b)(1). “The burden is on
the party seeking the protective order to demonstrate that good cause exists for the
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entry of the order by making a ‘particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements.’” Ball Corp., 329 F.R.D.
at 603 (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981)). “Rule 26(c)
confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984).
Despite asking for and being granted multiple opportunities to do so, Browne
filed no response to Equifax’s motion for a protective order. The Court would therefore
be well within its discretion to summarily grant the motion without further
consideration. See N.D. Ind. L.R. 7-1(f)(5) (“The court may rule on a motion
summarily in an opposing party does not file a response before the deadline.”). In the
interest of completeness, however, the Court will address the eight topics contained
within the Rule 30(b)(6) notice that Equifax says are irrelevant, vague or otherwise
overly burdensome on a topic-by-topic basis.
Topic 5 – This topic seeks to have a corporate representative testify as to
“Equifax’s knowledge, understanding an application of the legal impact of court
decisions.” See DE 37-1 at 5. The Court agrees with Equifax that this topic as drafted
is vague and overbroad as drafted. Equifax need not prepare a witness to testify as
to Topic 5.
Topics 9 & 11 – These topics seek to have a corporate representative testify
as to “[f]or 2021 to the present date, Equifax’s gross and net income from the sale of
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consumer reports” and “[Equifax’s] revenue and profit for each quarter since the start
of 2021.” See DE 37-1 at 5. As Equifax concedes, discovery into a defendant’s financial
condition, including revenue and income, may be appropriate where a plaintiff is
seeking punitive damages. Browne’s complaint seeks punitive damages, DE 10 Am.
Compl at 16 (Prayer for Relief), but the Court construes her failure to respond to
Equifax’s argument that there is no plausible basis for punitive damages as a waiver
of her right to seek discovery on this topic through a 30(b)(6) deposition. See Taylor
v. Rice, No. 2:17-CV-344, 2020 WL 859397, at *1 (N.D. Ind. Feb. 21, 2020) (“An
argument not responded to is ordinarily deemed waived.”) (quoting In re GT
Automation Grp., Inc., 828 F.3d 602, 605 (7th Cir. 2016)). Equifax need not prepare
a witness to testify as to Topics 9 or 11.
Topic 10 – This topic seeks to have a corporate representative testify as to the
“[n]umber of Equifax subscribers in the years 2020, 2021, 2022 and 2023.” See DE 37-
1 at 6. Equifax says that its “subscribers” are its customers that purchase consumer
credit reports. Equifax says such information is irrelevant to Plaintiff’s claims and
the Court agrees it would have no bearing on the adequacy or reasonableness of
Equifax’s actions regarding Browne’s credit report and the information contained
therein. Equifax need not prepare a witness to testify as to Topic 10.
Topic 14 – This topic seeks to have a corporate representative testify as to
“[t]he reasons disputed information remained following Equifax’s processing
(including any reinvestigation) of disputes from Erin Browne, Fabian Huizar,
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Zepherine Miller, and Mercedes Kurtis.” See DE 37-1 at 6–7. The additional three
individuals listed in this motion are individuals who apparently have sued Equifax,
apparently on grounds similar to Browne. Id. Some of these plaintiffs are also
represented by the same counsel as Browne. But none of these individuals are a party
to this lawsuit, and the Court agrees with Equifax that they are not relevant to
Browne’s lawsuit. That said, Equifax’s motion does not contest the relevancy of Topic
14 as to Browne herself. Accordingly, Equifax need not prepare a witness to testify as
to Topic 14 to the extent it relates to any individual besides Plaintiff Erin Browne.
Topic 18 – This topic seeks to have a corporate representative testify as to
“[t]he number of disputes Equifax has received concerning a National Credit Systems
tradeline. Equifax should also provide: a) The statistics depicting the codes used in
these types of disputes; and b) The statistics depicting the dispute codes entered
following receipt of an ACDV from National Credit Systems (for example, these
codes/response indicate whether the disputed item was verified with unrelated
information updated; whether it was deleted, etc.).” See DE 37-1 at 9. According to
Equifax, National Credit Systems is the entity that sent information regarding
Browne to Equifax. Equifax says that other disputes and their outcomes as to
individuals besides Browne is neither relevant nor proportional to the case. Again,
the Court agrees in large part because Browne has offered no argument as to why
other individuals’ interactions with Equifax would have any bearing on what Equifax
may or may have not done with respect to Browne. Equifax need not prepare a
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witness to testify as to Topic 18.
Topic 20 – This topic seeks to have a corporate representative testify as to
“[h]ow an Equifax consumer report is generated and communicated and/or
transmitted to a user purchasing the report.” See DE 37-1 at 11. According to Equifax,
no one requested Browne’s credit report during what it says is the relevant timeframe
and thus this topic seeks information that is not relevant to Browne’s case. Without
anything to rebut that assertion on the scope of relevancy from Browne, Equifax need
not prepare a witness to testify as to Topic 20.
Topic 23 – This topic seeks to have a corporate representative testify as to
“[the identity of] all persons who contributed to responding to the factual averments
in the amended complaint in the underlying Lawsuit.” See DE 37-1 at 11. While the
Court is not entirely persuaded by Equifax’s argument that this topic would be
inappropriate in all instances or necessarily implicate attorney-client privilege or
attorney work product protections across the board, Browne’s silence in response to
indicates that she has given up on trying to obtain this discovery via a Rule 30(b)(6)
deposition. Equifax need not prepare a witness to testify as to Topic 20.
Conclusion
For the reasons stated in this Opinion, the Court hereby GRANTS Defendant
Equifax Information Services LLC’s Motion to Compel Depositions of Amy Foster and
Sharon Samsell [DE 35]; and OVERRULES Plaintiff Erin Browne’s
psychotherapist-patient privilege objections to the Rule 45 subpoenas to Amy Foster
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and Sharon Samsell. Plaintiff is ORDERED to execute full releases to authorize Amy
Foster and Sharon Samsell to release all records relating to Browne and to testify as
to their treatment of Browne, subject to the appropriate confidentiality designations
under the previously entered protective order governing discovery in this case.
The Court furthermore GRANTS in part Defendant Equifax Information
Services LLC’s Motion for Entry of Protective Order Regarding Plaintiff’s Rule
30(b)(6) Notice of Deposition of Equifax [DE 37]; and ORDERS that Equifax need
not prepare a witness to testify on its behalf as to Topics 5, 9, 11, 14 (to the extent it
relates to any individuals besides Plaintiff Erin Browne), 18, 20, or 23.
SO ORDERED this 23rd day of July 2024.
/s/ Abizer Zanzi
MAGISTRATE JUDGE ABIZER ZANZI
UNITED STATES DISTRICT COURT
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