Fausto v. Credigy Services Corp.

251 F.R.D. 436, 2008 U.S. Dist. LEXIS 81211, 2008 WL 2554832
District Court, N.D. California·Decided June 19, 2008·No. No. C 07-5658 JW (RS)·Published·Cited by 1 cases

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR A PROTECTIVE ORDER

RICHARD SEEBORG, United States Magistrate Judge.

I. INTRODUCTION

Plaintiffs Manuel and Luz Fausto move for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure to delay producing recorded telephone conversations until they complete numerous depositions. Defendants Credigy Services Corporation, Credigy Receivables Inc., and Credigy Solutions Inc. (collectively “Credigy”) oppose the motion. This matter is suitable for disposition without oral argument pursuant to Civil Local Rule 7 — 1(b). Because the Faustos have not shown good cause to block production of the recordings, the motion will be denied.

II. BACKGROUND

The Faustos bring suit under federal and California debt collection laws prohibiting debt collectors from engaging in abusive, deceptive, or unfair collection practices. The Faustos allege that Credigy and Credigy employees engaged in an unlawful letter-writing and telephone campaign in an effort to collect payment on a disputed debt. The Faustos maintain that they recorded abusive, harassing, and misleading statements during telephone conversations with Credigy’s employees.

Credigy seeks to obtain the recorded telephone conversations. In response, the Faustos filed a motion for a protective order under Rule 26(c) to delay producing the recorded conversations until they complete depositions of Credigy’s employees. The Faustos believe they are not required to turn over the recorded telephone conversations because Credigy’s employees will have the opportunity to tailor their deposition testimony to conform with their recorded statements, thereby preventing the Faustos from obtaining unrefreshed recollections and nullifying the impeachment value of the recorded statements. Credigy insists that the motion should be denied because the Faustos fail to demonstrate good cause under Rule 26(c).

II. LEGAL STANDARD

A court may issue a protective order only after the moving party demonstrates that good cause exists for protecting the material. Fed.R.Civ.P. 26(c). The moving party has the burden of showing a particular need for protection under Rule 26(c). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir.1992) (quoting Cipollone v. Lig[438]*438gett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)).

III. DISCUSSION

The Faustos move for a protective order to delay producing the recorded telephone conversations until they complete depositions of Credigy’s employees pursuant to Rule 26(c).1 “Whether or not disclosure should be delayed is a matter of the court’s discretion.” Costa v. AFGO Mech. Services, Inc., 237 F.R.D. 21, 23 (E.D.N.Y.2006). Some courts, as the Faustos suggest, have delayed disclosure of taped statements under Rule 26(c) until after the adverse party’s deposition. See Walls v. Int’l Paper Co., 192 F.R.D. 294, 297-99 (D.Kan.2000) (allowing former employee suing for sex discrimination to withhold audiotapes of conversations with a supervisor until after deposition); Poppo v. AON Risk Services, 49 Fed. Serv.3d 120, 2000 WL 1800746 (S.D.N.Y.2000) (finding that an order delaying production of recorded tapes was needed in order to prevent defendant’s witness from altering their deposition testimony to conform to their recorded statements); see also Torres-Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487 (S.D.Cal.1994). However, these decisions fail to discuss whether the moving party satisfied their Rule 26(c) burden of showing good cause for the protective order.

Moreover, several recent decisions that discuss good cause under Rule 26(c) hold that mere eonclusory statements, “unsupported by any particular and specific demonstration of fact, that a party might tailor its testimony to conform with previously recorded statements does not rise to the level of good cause.” Jerolimo v. Physicians for Women, P.C., 238 F.R.D. 354, 356 (D.Conn. 2006); see Rofail v. United States, 227 F.R.D. 53, 59 (E.D.N.Y.2005) (holding that “eonclusory allegations that [a party] may tailor his deposition testimony to the materials simply does not establish good cause.... ”). For example, in Costa, plaintiff indicated that defendants would tailor their deposition testimony to match their comments made in taped conversations. 237 F.R.D. at 24. Plaintiff argued that her interest in obtaining defendants’ unrefreshed recollection of conversations with plaintiff outweighed any prejudice to defendants. Id. The court held that plaintiffs eonclusory allegations were insufficient to establish good cause under Rule 26(c). Id. As the court stated, without good cause “there is no reason to assume automatically that the party whose statements have been recorded will have a propensity to fabricate evidence or lie during the course of his or her testimony.” Id.

Similarly here, the Faustos claim that if Credigy’s employees have an opportunity to review the recordings before they are deposed, they would be able to tailor their deposition testimony to conform with their recorded statements, thereby preventing the Faustos from obtaining unrefreshed recollections and nullifying the impeachment value of the recorded statements. However, the Faustos provide no evidence or reason to believe that the Credigy employees, with access to their recorded telephone conversations, would fabricate evidence to conform their testimony to their recorded statements. Just like the plaintiffs in Costa, Rofail, and Jerolimo, such broad and eonclusory allegations without specific examples or reasoning does not constitute good cause. See Beckman Indus., Inc., 966 F.2d at 476 (“Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”) (quoting Cipollone, 785 F.2d at 1121). The Fuastos, therefore, have failed to meet their burden under Rule 26(c) of showing good cause for [439]*439delay in producing the recorded telephone conversations.

Equitable and fairness concerns also weigh in favor of denying the Faustos’ motion for a protective order. “Modern instruments of discovery ... [and] pretrial procedures make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). In Stamps v. Encore Receivable Mgmt., Inc., 232 F.R.D. 419, 420, 424 (D.Ga.2005), a debtor alleging FDCPA violations was not entitled to a protective order delaying production of a voice mail recording. The court held that it was unfair not to allow the defendant access to the recording. Id. at 423.

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Fausto v. Credigy Services Corp., 251 F.R.D. 436, 2008 U.S. Dist. LEXIS 81211, 2008 WL 2554832 (N.D. Cal. 2008).

251 F.R.D. 436 (Fausto v. Credigy Services Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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