In Persinger v. Sw. Credit Sys., No. 1:19-cv-00853-RLY-MJD, 2019 U.S. Dist. LEXIS 188920, at *9 (S.D. Ind. Oct. 30, 2019), the Defendant was sued in a class action for accessing a consumer’s credit report after the consumer’s account had been discharged in bankruptcy; i.e. that the defendant had no permissible purpose in accessing the consumer report for account review purposes because the account had been discharged in bankruptcy.
Plaintiff alleges that Defendant violated the Fair Credit Reporting Act (“FCRA“), 15 U.S.C. § 1681 etseq., by accessing her consumer report without a permissible purpose. Specifically, Plaintiff alleges that a debt she owed was referred to Defendant for collection and that Defendant accessed her credit report on January 4, 2018, several months after that debt was discharged in bankruptcy and therefore became uncollectible. Plaintiff brings this action on behalf of herself and a putative class of “all persons about whom, during the two (2) year period prior to the filing of this Complaint, Defendant obtained a consumer report after that consumer had obtained a bankruptcy discharge of any obligation that Defendant could have collected from them.”
The District Court allowed inquiry into other instances of similar conduct.
Defendant, relying on Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), argues that “the names and addresses of the consumers who made the complaints or were part of the actions taken against SWC at issue in the interrogatory” are “not discoverable during pre-certification litigation,” and that “[t]he fact that Plaintiff is asking the Court to compel [Defendant] to provide information that the Supreme Court has held is off limits is a waste of this Court’s time and resources.” [ Dkt. 49 at 7-8.] This argument is utterly without merit. Oppenheimer dealt with the question of whether the identity of potential class members was discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) when the information was sought solely for the purpose of providing class notice, “rather than to define or clarify issues in the case.” Oppenheimer, 437 U.S. at 350. The holding of Oppenheimer thus is not relevant to the interrogatory in this case, which does not seek the identities of the potential class members for notice purposes, but rather seeks information relevant to Plaintiff’s claim that Defendant willfully violated the FCRA. That information is relevant whether or not a class is ever certified in this matter. The fact that some of the individuals identified likely are potential class members does not somehow render the information undiscoverable. This distinction is recognized in Oppenheimer and in another case cited by Defendant. See Johnson v. Bankers Life & Cas. Co., 2013 WL 5442374, at *1 (W.D. Wis. Sept. 30, 2013) (“‘There may be instances where this information could be relevant to issues that arise under Rule 23 [e.g., numerosity, common questions and adequacy of representation], or where a party has reason to believe that communication with some members of the class could yield information bearing on these issues or other issues.'”) (quoting Oppenheimer, 437 U.S. at 354 n. 20) (emphasis added). It is disingenuous at best for Defendant to argue that these cases support its position. . . .Defendant shall respond to the following narrowed version Interrogatory No. 13 2: Identify all complaints (written or oral), disputes (written or oral), lawsuits, regulatory actions, or other communications (written or oral) made between January 4, 2015, and January 4, 2018, in which an individual asserted that you accessed an individual’s consumer report for an impermissible purpose because the debt(s) of the individual that had been referred to you for collection had been discharged in bankruptcy.