11/26/2020 by Dustin M. Paul, Esq.
As if subpoena practice is not expensive and time-consuming already, there are times in which even a subpoena will not suffice to obtain a third-party’s records. Federal statutes may create confidentiality issues, or a state agency may require a Court order for the production of documents. And there have been times that I have been in conflict with opposing counsel as to whether a party should be required to sign a written authorization to bypass those issues.
A recent opinion in the EDVA provides some support to force parties to execute authorizations. The Defendant in the case, Vaughn v. Grand Brands, LLC, et al., 2:19cv596, issued a subpoena to Equifax for certain documents. Equifax, a credit reporting agency, refused to provide the records under the subpoena without a Court Order or a signed authorization by the Plaintiff since response to a subpoena was not an “authorized” use of the report under the Fair Credit Reporting Act. Defendant requested Plaintiff provide that authorization, but could never get an authorization signed. As a result, the Defendant filed a motion to compel Equifax and sought costs against the Plaintiff.
Judge Leonard granted the motion and issued a show cause order why fees should not be awarded under Rule 37. In his opinion, Judge Leonard found that Rule 37 requires fees where a party’s “conduct necessitated the motion.” He also found that Rule 34 requires parties to produce “items in the responding party’s . . . control.” By the “plain language” of the Fair Credit Reporting Act, Plaintiff’s credit report was within her control. Finding that “the burden on Plaintiff to sign an authorization so that Equifax could lawfully disclose the requested record paled in comparison to the burden imposed on Grand Brands to seek court intervention through a motion to compel.” Thus, “Rule 37(a)(5)(A)’s mandate that reasonable expenses be awarded when a motion to compel is granted was written for instances such as that which occurred here, where Plaintiff required Grand Brands to incur significant expense, not to mention the unnecessary involvement of the Court, when a simple written authorization would have sufficed.”
In a later filing, Grand Brands sought $23,935.83 in attorneys’ fees. The opinion should make it significantly easier in the Eastern District of Virginia to get parties to sign written authorizations.