WESTERN DISTRICT OF WASHINGTON SAMUEL C. RUTHERFORD, III, Case No. 3:24-cv-05299-TLF Plaintiff, v. ORDER ON PLAINTIFF’S MOTION TO COMPEL (DKT. 76) CENTRAL BANK OF KANSAS CITY, Defendant.
Plaintiff Samuel Rutherford III seeks an order compelling Defendant Central Bank of Kansas City (“CBKC”) to produce certain categories of documents and responses to plaintiff’s First Set of Interrogatories and First Request for Production of Documents, and further, ordering defendant to pay plaintiff’s attorney fees incident to this motion. Dkt. 76. CBKC claims they have responded to plaintiff’s interrogatories and document requests that are in their own possession; any requests that require CBKC to produce documents on behalf of third parties are not appropriate because those documents are not in their custody or control and many of plaintiff’s other discovery requests are irrelevant to the issues that remain in this case.1
1 CBKC further states the Court should deny plaintiff’s motion to compel for failure to comply with the Standing Order. The Order defendant refers to is a Sample Order Setting Forth Court Procedures that is available on the undersigned’s judicial website (Chief Magistrate Judge Theresa L. Fricke Chambers | Western District of Washington | United States District Court). It is a sample order intended to provide parties with an example of an order setting forth certain procedures that may be entered into a civil case; Plaintiff’s motion to compel is GRANTED in part and DENIED in part. Plaintiff’s motion for attorney fees is DENIED. Plaintiff brought this class action suit against CBKC to recover damages for
prepaid debit card fees charged to persons released from Pierce County Jail. Plaintiff alleges CBKC violated the Electronic Transfer Fund Act (“EFTA”) when it issued unsolicited debit cards and charged fees that plaintiff did not agree to. Plaintiff further alleges violations of the Washington Consumer Protection Act (“WCPA”) and contends defendant is liable for conversion and unjust enrichment under Washington state law. Dkt. 1, Complaint. Plaintiff served interrogatories and document requests on CBKC on February 19, 2025. Dkt. 78, Declaration of Chris R. Youtz, at ¶2. CBKC responded to plaintiff’s discovery requests on April 21, 2025. Id. ¶4. The parties engaged in a discovery conference and exchanged several emails. On June 23, 2025, plaintiff’s counsel had a
telephone conference with CBKC’s counsel in an attempt to resolve their discovery disputes before filing the instant motion to compel. Id. ¶28. On June 24, 2025, the Court denied CBKC’s summary judgment motion on plaintiff’s claim under 15 U.S.C. 1693i, which prohibits the unauthorized issuance of debit cards, and his Washington state law claims; the Court granted CBKC ‘s motion for summary judgment on plaintiff’s claim under 15 U.S.C. 1693l-1, which prohibits general- use prepaid card service fees. Dkt. 73. it was not ordered by the Court in this case. Because it was not a standing order and did not become a docketed order in this case, the parties are not required to comply with the sample order. The Federal Rules of Civil Procedure authorize parties to obtain discovery of any nonprivileged information discoverable under Rule 26 if it is (1) relevant, and (2) proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Federal Rule of Civil
Procedure 26(b)(1), as amended in 2015, provides that parties— may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and 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 the 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. Id.
Evidence must be “relevant to any party's claim or defense” to fall within the scope of permissible discovery. Id. The 2015 amendment to Rule 26(b) deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence” because it was often misconstrued to define the scope of discovery and had the potential to “swallow any other limitation.” Fed. R. Civ. P. 26(b)(1) advisory committee notes to 2015 amendment. See also San Diego Unified Port Dist. v. Nat'l Union Fire Ins. Co. of Pittsburg, PA, No. 15CV1401-BEN-MDD, 2017 WL 3877732, at *1 (S.D. Cal. Sept. 5, 2017). The amendment replaced this phrase with the statement that information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1) advisory committee notes to 2015 amendment. Information must also be “proportional to the needs of the case” to fall within the scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). When analyzing the proportionality of a party's discovery requests, a court should consider the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the 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. Id.
Federal Rule of Civil Procedure 33 provides that a party may serve on any other party interrogatories that relate to any matter within the scope of discovery defined in Rule 26(b). Fed. R. Civ. P. 33(a)(2). Under Federal Rule of Civil Procedure 34, a party may request the production of documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). When a party objects to an interrogatory or request for production, that objection can neither be a boilerplate objection nor a blanket refusal. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). If a party fails to answer an interrogatory or produce documents, or if the
response provided is evasive or incomplete, the propounding party may bring a motion to compel. See Fed. R. Civ. P. 37(a). The party opposing the discovery bears the burden of resisting disclosure. Bryant v. Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012). If a motion to compel is granted or the disclosure or requested discovery is provided after the filing of the motion, the court must order the offending party “to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure,
response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). Plaintiff asks the Court to compel CBKC to:
• Answer Interrogatories 6, 9, and 10 in full, including information available from Central Payments and Numi; • Produce all documents responsive to Requests for Production (RFP) 2–5, 7–10, 12–23, and 25–27, including any documents and ESI in the custody or control of Central Payments or Numi; • Confirm that any representation from CBKC that “no responsive documents exist” encompasses documents held or controlled by Central Payments and Numi; and • Provide unredacted copies of all documents produced to date. In reviewing the discovery requests and objections, the Court understands the
parties’ issues to be split into three categories: (1) whether CBKC has control of certain documents maintained by Numi or Central Payments; (2) whether some of plaintiff’s discovery requests are no longer relevant in light of the Court’s summary judgment Order from June 2025; and (3) whether CBKC should have to produce documents or information that is already in the possession of plaintiff’s counsel from the Brown litigation. The Court will discuss each category in turn.
A. Whether CBKC has control of certain documents maintained by Numi or Central Payments. In response to several document requests of plaintiff, CBKC objected on the grounds that the information or documents are not in the possession of CBKC and could be in the possession of third parties, Numi or Central Payments. See Dkt. 78-3 at RFPs 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 15, 16, 19, 20, 22, 23. See also Dkt. 78-14. “Federal courts have consistently held that documents are deemed to be within [a party's] possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995); see also United States v. Int'l Union of Petroleum and Indus. Workers, AFL–CIO, 870 F.2d 1450, 1452 (9th Cir.1989) ( “Control is defined as the legal right to obtain documents on demand.”). “The party seeking production of the documents ... bears the burden of proving that the opposing party has such control.” Id. “Control is defined as the legal right to obtain documents upon demand.” In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999) (quoting Int'l Union, 870 F.2d at 1452); see also Micron Tech., Inc. v. Tessera, Inc., No. C06-80096 MISC.JW(HRL), 2006 WL 1646133, at *1 (N.D. Cal. June 14, 2006) (“Legal right suggests an ownership interest, a binding contract, a fiduciary duty, or some other legally enforceable arrangement.”). The Ninth Circuit in Int'l Union emphasized that proof of “theoretical control is insufficient; a showing of actual control is required.” In re Citric Acid, 191 F.3d at 1107 (quoting Int'l Union, 870 F.2d at 1453-54). In the In re Citric Acid case, the plaintiffs asked the court to define “control” in a manner that focuses on a party's “practical ability” to obtain requested documents. Id. The Ninth Circuit rejected the argument. It is not enough that a party may have a “practical ability to obtain the requested documents” from an affiliated organization, because the other entity “could legally—and without breaching any contract—continue to refuse to turn over such documents.” Id. at 1108.
Central to the question of control “is the relationship between the party and the person or entity having actual possession of the document[s].” Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 WL 309945, at *2 (E.D. Cal. Jan. 30, 2007) (citing Estate of Young Through Young v. Holmes (“Estate of Young”), 134 F.R.D. 291, 294 (D. Nev. 1991)). “This position of control is usually the result of statute, affiliation or employment.” Id. (citing Estate of Young, 134 F.R.D. at 294; In re Citric Acid, 191 F.3d at 1107); see also TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14CV2021-W (BLM), 2017 WL 1008788, at *4 (S.D. Cal. Mar. 15, 2017) (“Rule 34(a) enables a party seeking discovery to require production of documents beyond the actual possession of the opposing party if such party has retained any right or ability to influence the person
in whose possession the documents lie.”). “The requisite relationship is one where a party can order the person or entity in actual possession of the documents to release them.” Thomas v. Hickman, No. 106-CV-00215-AWI-SMS, 2007 WL 4302974, at *14 (E.D. Cal. Dec. 6, 2007). CBKC contracts with Central Payments and Numi, separately, to pursue a program to release cards to class members. Central Payments helped CBKC provide oversight, supervision, and control over the programs and acting as the primary point of contact for the Program Managers. Dkt. 79 at Exhibit 4. The relevant contract between CBKC and Central Payments is referred
to as the “Sponsorship Services Agreement,” and was effective as of August 10, 2022. Section 2.4(b) of the Agreement provides: Each Party shall at all times have reasonable access to all information and documents related to the subject matter of this Agreement that it requires to comply with Applicable Law2 or the requirements of this Agreement, including any such items in the control or possession of the other Party. Further, access granted to Central Payments to materials in the possession of any Program Managers or other Mission Critical Third Party shall allow for sharing such information with Bank to the extent that such material is necessary for Bank to assess compliance with this Agreement and Applicable Law. Bank shall make all requests for information from any Program Manager or MCTP through Central Payments and shall not communicate directly with any Program Manager or MCTP unless circumventing Central Payments is required by Applicable Law or Central Payments fails to exercise good faith in securing information requested by Bank in a timely manner. Id. at 13. This provision explicitly provides CBKC the legal right to request and obtain access Central Payment’s documents. CBKC’s existing legal right to obtain Central Payment’s documents falls within the Citric Acid framework for “control.” CBKC, similarly, has a contractual relationship with Numi. Dkt. 79 at Exhibit 5. Numi contracts with a variety of companies, including commissary, telecom, and software companies, or directly with detention facilities to provide prepaid debit cards to detention facilities. Dkt. 16, Declaration of Brad D. Golden, at ¶3. Numi provides the Prestige Prepaid MasterCard (the “prepaid card”) to incarcerated individuals at the Pierce County Jail upon their release. Id. ¶¶ 2-3. Numi partnered with CBKC to execute 2 Applicable Law is defined as: “collectively, all federal, state or other governmental statutes, codes, ordinances, laws, regulations, rules, guidance, written directives, orders and decrees applicable to the Accounts, a Program, Party, Processor, Network, Program Manager, or Mission Critical Third Party and shall also include the Rules established by a Network.” Dkt. 79, Exhibit 4, at 3. and manage the prepaid debit card program used by the Pierce County Jail. Id. ¶¶ 2-3, 5. Under the Service Provider Agreement between Numi and CBKC, dated January 31, 2020, “CBKC shall have access to all information, documents, materials, Mission
Critical Third Parties, Non-Mission Critical Third Parties and Service Provider employees it requests with regard to any activity contemplated by this Agreement or material to the safe, sound, and compliant operation of the Program(s).” Dkt. 79, Exhibit 5, at 10. Further, the Agreement states CBKC owns the Cards, the Cardholder relationship, Cardholder Data, the Programs, Required Program Disclosure Templates, and Program Materials (excluding Marketing Materials). Id. at 10. The provisions in this Agreement reflect that CBKC has the legal right to request, access, and obtain Numi’s documents. Plaintiff elected to separately serve subpoenas on Numi and Central Payments after reviewing CBKC’s responses, which included CBKC’s offer to consult with Numi
and Central Payments to see if they had responsive information and documents. Dkt. 78 at Exhibits 12, 13. CBKC argues that by serving these subpoenas, plaintiff was “rejecting” their offer and proceeding directly with the third-parties to obtain the requested information. Although plaintiff subpoenaed Numi and Central Payments, that does not automatically dissolve CBKC’s discovery obligations especially given that these documents are within the custody or control of CBKC. Plaintiff’s motion to compel documents is granted, for information maintained by Numi or Central Payments but within CBKC’s control, under their respective contractual agreements. To the extent Numi or Central Payments maintain documents that are
responsive to plaintiff’s requests, CBKC must produce those documents within 30 days of this Order. If Numi and Central Payments do not have responsive documents, CBKC should so state with sufficient specificity. Boilerplate objections are not enough. B. Whether some of plaintiff’s discovery requests are no longer relevant considering the Court’s Order on summary judgment CBKC argues some of plaintiff’s requests (i.e., RFPs 2, 3, 5, 7, 8, 10, 14, 15, 17, 21, 22) are no longer relevant because the Court’s summary judgment Order narrowed the factual issues that remain for trial. Dkt. 80 at 3. The Court held there was no genuine dispute of material fact that plaintiff’s card was reloadable and not marked as a gift card or gift certificate; therefore, the imposition of service fees was permissible under 15 U.S.C. 1693l-1. Although the Court concluded a prepaid card with the characteristics of the card that plaintiff received may, under the EFTA, impose service fees, there is a genuine dispute of material fact about whether the amount of fees imposed was unfair. The Court determined there is a genuine dispute of material fact for a jury to decide whether the validated card was requested and solicited or was unrequested and unsolicited; thus, it is for a jury to determine whether defendant’s card was provided in a manner prohibited under 15 U.S.C. 1693i. Nonprivileged information is discoverable under Rule 26 if it is (1) relevant, and (2) proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Plaintiff, as the party seeking to compel discovery, must show his discovery requests are relevant to the specific claims presently before the Court to ensure that discovery is not used as a fishing expedition to explore already-dismissed claims. FRCP 26(b). Plaintiff has shown his RFPs are relevant to the remaining claims in this case. Information regarding compliance with EFTA, procedures used to issue the release cards, materials provided to cardholders, when or how the cards were validated, how funds were handled, and communications with government agencies regarding the
release cards are relevant to whether the cards were requested and solicited and if the service fees imposed were unfair. Yet to the extent the requests relate to programs not relevant to the Complaint, plaintiff has not shown how those requests are relevant to the remaining claims. CBKC contends the RFPs are not limited in time; plaintiff, at the outset of the RFPs, identified the relevant timeframe of documents that existed in January 1, 2020, to the present, “unless otherwise stated in the request,” that are relevant to the release card program. Dkt. 78-1 at 12. The contract between CBKC and Numi, which finalized Numi has the release-card program manager, was signed in January 2020. Plaintiff has established the relevance of this timeframe.
Further, to the extent CBKC maintains that some of the information sought by plaintiff is protected by attorney-client privilege or attorney work product, it must identify the allegedly privileged information that has been withheld, or by redacting it from a document that is otherwise discoverable, and they are required to show the analysis in a privilege log. Boilerplate objections or blanket refusals in a response to discovery requests are insufficient to assert a privilege. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Rule 26(b)(5)(A) requires that:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. CBKC’s failure to provide a privilege log violates Rule 26(b)(5)(A). Plaintiff’s motion to compel is granted as to document requests 2, 3, 5, 7, 8, 10, 14, 15, 17, 21, and 22, to the extent the requests are limited to the program relevant to this case. CBKC is ordered to supplement their responses within 30 days of this Order. C. Whether CBKC must produce documents or information already in the possession of plaintiff’s counsel from the Brown litigation. Finally, there are several RFPs and interrogatories where CBKC objected on the grounds that the data requested was produced in Brown v. Stored Value, Cards, Inc., a case in the District of Oregon involving the same attorneys representing plaintiff in this case. CBKC states the discovery requests seek duplicative information. Federal Rule of Civil Procedure 1 explains that the federal rules, including those governing discovery, should be “construed, administered, and employed by the court and the partis to secure the just, speedy, and inexpensive determination of every action and proceeding.” The Court accepts plaintiff’s contention that he seeks relevant information and documents that may not have been included in the Brown litigation. But to the extent such information and documents are already in the possession of plaintiff’s attorney and may be reviewed and used in this case, even if those documents are from the Brown litigation, CBKC should not be required to unnecessarily spend time and funds to duplicate that production or seek that information from third parties. To the extent he has not done so to date, plaintiff should conduct a gap analysis and specify
what information and documents he seeks from CBKC that is not duplicative of what plaintiff already has possession of, that was turned over in discovery in the Brown litigation. The parties should meet and confer to review the gap analysis, and to identify discoverable documents that plaintiff does not already have in their possession from the Brown litigation, within 14 days of this Order. To the extent the documents requested are not in the possession of CBKC, either because CBKC does not have such documents or Numi or Central Payments does not, then the Court cannot order a party to produce documents they have no possession, custody, or control of. If CBKC responded to plaintiff’s discovery requests stating that “no responsive documents exist,” CBKC should confirm the status of such
documents – whether they have possession, custody, or control of the documents. Thus, plaintiff’s motion to compel documents that are duplicative of documents produced in the Brown litigation is conditionally denied. To avoid duplicative work and costs on CBKC’s part and CBKC is ordered to produce responsive documents (that plaintiff does not already have) within 30 days of this Order.
Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), if a motion to compel is granted the court must require the party whose conduct necessitated the motion to pay the movant's reasonable expenses, including attorneys’ fees, incurred in making the
motion unless “other circumstances make an award of expenses unjust.” Plaintiff’s motion attorney's fees is denied. At this point, an award of expenses would be unjust and the motion for attorney’s fees is not ripe. An award of expenses may be appropriate in the future if the defendant fails to respond in light of the Court’s Order. Dated this 21st day of August, 2025. A
Theresa L. Fricke United States Magistrate Judge