In Young v. BC Services, Inc., 2011 WL 2443765 (S.D.Ala. 2011), Judge Bivens allowed a debt collector to withhold production of recordings of its debt collection conversations with the Plaintiff until after the plaintiff was deposed so that the impeachment value of the recordings would not be lost. Judge Bivens described the procedural history as follows:
This is an action brought pursuant to the Fair Debt Collection Practices Act ( FDCPA). According to Plaintiff, Defendant violated the Act by making harassing and threatening telephone calls to her in an attempt to collect a debt. In Defendant’s Motion for a Protective Order, Defendant seeks an order permitting it to delay production of telephone recordings between Plaintiff and Defendant’s employees until after Plaintiff is deposed. Defendant acknowledges that the recordings are discoverable, but argues that their production should be delayed until after Plaintiff has been deposed. According to Defendant, if Plaintiff is provided the recordings prior to her deposition, she will tailor her testimony around the recordings, and the impeachment value of the recordings will be lost. Defendant contends that early on in this case, Plaintiff changed her allegations once provided with a transcript of a November 2009 discussion between her and one of Defendant’s representatives. Specifically, Defendant contends that Plaintiff’s original complaint contained a single allegation regarding a telephone discussion that occurred on or around November 4, 2009 in which one of Defendant’s representatives called her a “deadbeat” and threatened to sue her. Defendant contends that once Plaintiff was provided with a tran-script of a November 3, 2009 recording of a discussion between her and one of Defendant’s representatives, she changed her allegations because the recording did not support her allegations. Defendant argues that unless production of the additional recordings are delayed, Plaintiff will again seek to tailor her testimony to the recordings and the impeachment value of the recordings will be lost.
Judge Bivens analyzed the discovery priority as follows:
In Stamps v. Encore Receivable Management, Inc., 232 F.R.D. 419 (N.D.Ga.2005), a district court within the Circuit faced a somewhat similar issue involving a telephone recording made by a plaintiff who was alleging violations of the FDCPA Act. The plaintiff sought a protective order to delay the production of the recording until after the depositions of the defendant’s representatives. The court’s analysis focused on balancing the rights of the defendant to full discovery versus the plaintiff’s right to the defendant’s unrefreshed recollection of events that gave rise to the litigation. The court held that resolution of the issue came down to whether the recording was classified as “substantive evidence” or “impeaching evidence.” According to the court, “[t]o the extent the substantive value of the evidence outweighs its impeachment value, the Court will not delay the production pending the taking of a deposition.” Id. at 423. (citing Pro Billards Tour Assoc., Inc. v. R.J. Reynolds Tobacco Co ., 187 F.R.D. 229 (M.D.N.C.1999). In Stamps, the court observed that “[w]hen a party uses a recording to establish the truth of the case, that recording largely constitutes substantive evidence.” Id. The court found that the plaintiff had identified the recording as key evidence in her complaint, and she intended to use it to establish the truth of her assertions that the defendant had violated the FDCPA Act; thus, the real value of the recording was not in impeaching a witness, but in the facts and issues determined by the recording. ¶ Another instructive case is Taylor v. The Guardian Life Ins. Co. of America, 2007 U.S. Dist. LEXIS 29764 (S.D.Ga. Mar. 27, 2007). In Taylor, the plaintiff alleged that the defendants had wrongly denied him disability benefits and sought an order compelling the defendant to turn over to him surveillance photographs and videos taken of him by the defendants. While the parties agreed that the photographs and videos were discoverable, the plaintiff alleged that they constituted substantive evidence which should be produced before his deposition, while the defendants argued that the potential impeachment value of the materials outweighed their substantive evidentiary value. The court held that the proper balance in such a situation is to require production after the plaintiff’s deposition has been taken. ¶ As noted supra, in this case, there is no dispute that the telephone recordings are discoverable. The issue is when should they be produced. While Plain-tiff argues that the recordings have great substantive evidentiary value, it is clear that the impeachment value of the recordings greatly outweigh their sub-stantive value. This is not a situation, such as in Stamps, where the recordings are being used by a plaintiff to primarily help establish the truth of his or her claims. Instead, in this situation, the great value of the recordings is that they may impeach allegations that Plaintiff may make during her deposition. If Plaintiff is provided the recordings before the deposition, the impeachment value is lost.