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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 0:20-cv-61297-RKA

PAMELA TITUS, JOSEPH AMODIO, 

WILLIAM VILCINA, JACQUELINE 

FONTANEZ, PAUL JONES, BYRON HALL, 

and DAMIEN DAY,

Plaintiffs,

v.

RESURGENT CAPITAL SERVICES L.P., 

LVNV FUNDING, LLC, MERRICK BANK 

CORPORATION, PINNACLE CREDIT 

SERVICES, LLC, and PYOD, LLC,

Defendants.

_______________________________________/

MOTION TO COMPEL SECOND DEPOSITION

Plaintiffs request an order compelling the second deposition of the Omnibus Corporate

Representative1appointed by Defendants2so Plaintiffs may inquire as to the core objective facts

in dispute at the heart of Plaintiffs’ case.

BACKGROUND & POSTURE

On October 21, 2020, the individual cases filed by each Plaintiff were consolidated into

the above-captioned action. See D.E. 43. On October 23, 2020, as per the Order Consolidating

Cases [D.E. 43], Plaintiffs filed their operative pleadings, Plaintiffs’ Third Amended Complaint

[D.E. 44] (the “TAC”). On November 06, 2020, Defendants filed their operative response to the

TAC [D.E. 45] (the “Answer”). Per the governing Scheduling Order, the deadline to complete fact

discovery is May 18, 2021. D.E. 35.

Although procedurally convoluted, the heart of Plaintiffs’ claims is simple and objectively

resolvable. See, e.g., D.E. 44 at ¶ 80. Defendants filed proofs of claims in Plaintiffs’ bankruptcy

1

In lieu of appointing their own corporate representative, Defendants collectively appointed one

individual, Kimberly Hurley, in response to the four separate notices of deposition Plaintiffs

served on Defendants.

2 Defendant Resurgent Capital Services, L.P., Defendant LVNV Funding, LLC, Defendant

Pinnacle Credit Services, LLC, and Defendant PYOD, LLC.

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proceedings in an attempt to collect various debts. D.E. 44 at ¶ 28. In the sixteen (16) proofs of

claim at issue, see D.E. 44-2, Defendants input an amount and checked “no” to this question:

See Id. The amounts sought by Defendants in each of the sixteen (16) proofs of claim, however,

includes interest and other charges. Thus, Plaintiffs claim Defendants violated, inter alia, §

1692e(2)(A) of the Fair Debt Collection Practices Act (“FDCPA”) by falsely representing the

amount and character of the underlying debts in each of the sixteen (16) proofs of claim at issue.

See D.E. 44 at ¶¶ 76-81.

Beyond posture, and with respect to the discovery matter now before this Court, Plaintiffs’

attempts to conduct meaningful discovery and otherwise schedule the deposition of Defendants

corporate representatives has been a point of contention since August 27, 2020. See D.E. 55.

Adversarial issues aside, Defendants knew the necessity of the depositions sought by Plaintiffs, as

well as the deposition topics, since, at minimum, December 10, 2020. See D.E. 55 at ¶¶ 4-5.

On February 19, 2021, nearly six (6) months after Plaintiffs’ initial request to schedule the

deposition of Defendants, the Omnibus Corporate Representative of Defendants (the “OCR”) sat

for deposition. Attached as Exhibit “A” is a copy of said deposition transcript (the “Transcript”).

Yet, instead of allowing Plaintiffs to conduct the deposition unimpeded, counsel for Defendants

quickly objected on the grounds of attorney-client privilege and instructed the OCR to not

provide any response to any question pertaining to why the amount demanded by Defendants,

across any of the sixteen (16) proofs of claim at issue, exceeded the principal portion of the

underlying debt. See, e.g., Transcript at p22:12 to p23:9.

STANDARD OF REVIEW

“The party asserting a privilege bears the burden of proving that the privilege exists.”

Wyndham Vacation Ownership, Inc. v. Totten, Franqui, Davis & Burk, LLC, No. 18-81055-CIVALTMAN/REINHART, 2019 U.S. Dist. LEXIS 227264, at *4 (S.D. Fla. May 28, 2019) (citing In

re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987)). The FDCPA claims in this

case arise under this Court’s federal question jurisdiction and, as such, this Court “applies federal

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law to determine whether an attorney-client privilege exists.” Wyndham, 2019 U.S. Dist. LEXIS

227264 at *4 (citing Garner v. Wolfinbarger, 430 F.2d 1093, 1098 (5th Cir. 1970)).

“The party claiming the attorney-client privilege must generally establish the following

elements: (1) the holder of privilege is a client; (2) the person to whom communication was made

is a member of the bar and that person is acting as a lawyer in connection with the communication;

(3) the communication relates to a fact of which attorney was informed by the client without the

presence of strangers for the purpose of securing legal advice; and (4) the privilege is claimed and

not waived by the client.” Wyndham, 2019 U.S. Dist. LEXIS 227264 at *4 (citations omitted).

“As an initial matter, instructions not to answer are generally improper with the only

exception being questions which seek information in the form of trade secrets or privileged

information. And even when an attorney properly instructs a deponent not to answer on the basis

of privilege, ‘it is the duty of the attorney instructing the witness not to answer to immediately

seek a protective order.’” Garayoa v. Miami-Dade Cty., No. 16-Civ-20213-COOKE/TORRES,

2017 U.S. Dist. LEXIS 113443, at *9 (S.D. Fla. July 20, 2017) (quoting Nutmeg Ins. Co. v. Atwell,

Vogel & Sterling A Div. of Equifax Servs., Inc., 120 F.R.D. 504, 508 (W.D. La. 1988)).

SANCTIONS ARE WARRANTED BECAUSE COUNSEL FOR DEFENDANT

IMPROPERLY INVOKED ATTORNEY-CLIENT PRIVILEGE TO FRUSTRATE THE

PROGRESSION OF THIS CASE

1. DEFENDANTS FAILED TO SEEK A PROTECTIVE ORDER

Despite objecting on the basis of attorney-client privilege at deposition, counsel for

Defendants failed to file a motion for protective order pursuant to Federal Rule of Civil Procedure

30(d) after unilaterally directing the OCR not to answer counsel for Plaintiffs’ line of questioning.

Defendants left it to Plaintiffs to bring the matter before this Court. As such, by failing to file a

protective order, Defendants’ conduct was itself improper and in violation of the Federal Rules.

See Garayoa v. Miami-Dade Cty., No. 16-Civ-20213-COOKE/TORRES, 2017 U.S. Dist. LEXIS

113443, at *9 (S.D. Fla. July 20, 2017) (citing Nutmeg Ins. Co . v. Atwell, 120 F.R.D. 504, 508

(W.D. La. 1988) (“[C]ounsel unilaterally directed the witness not to answer and left it to defendant

Equifax to bring the matter before the court in the form of a motion for sanctions. This course of

conduct was improper and in violation of the Federal Rules of Civil Procedure.”).

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2. DEFENDANTS INVOCATION OF THE ATTORNEY-CLIENT PRIVILEGE WAS

DONE IN BAD-FAITH, PLANNED, AND OTHERWISE INTENDED TO PREVENT

PLAINTIFFS FROM OBTAINING DISCOVERABLE INFORMATION NECESSARY TO

PLAINTIFFS’ CLAIMS AS A WHOLE

“In cases involving claims of privilege based on communications with in-house counsel,

the law requires that the protections afforded by the attorney-client privilege be ‘applied more

narrowly and cautiously.’ The rationale is that ‘less protection is warranted when company officers

have a mixed responsibility incorporating both business and legal aspects, and where their advice

and communications are based on an on-going permanent business relationship rather than specific

requests for legal advice.’” Burgos-Stefanelli v. Napolitano, No. 09-60118-CIV-Hurley/Hopkins,

2009 U.S. Dist. LEXIS 136772, at *4-5 (S.D. Fla. Dec. 17, 2009) (quoting In re Ford Motor Co.

Crown Vict. Police Interceptor Prods. Liab. Litig., 2003 U.S. Dist. LEXIS 27862, 2003 WL

22217673, *1 (N.D. Ohio July 1, 2003)).

“The attorney-client privilege was ‘intended as a shield, not a sword,’ and a party waives 

the privilege if he ‘injects into the case an issue that in fairness requires an examination of 

otherwise protected communications.’ When a party goes beyond mere denial of allegations and 

affirmatively asserts good faith, then it has ‘injected the issue of its knowledge of the law into the 

case and thereby waived the attorney-client privilege.’” Reyes v. Collins & 74th, Inc., No. 16-

24362-CIV, 2017 U.S. Dist. LEXIS 101982, at *11 (S.D. Fla. June 30, 2017) (quoting Cox v. 

Adm'r United States Steel & Carnegie, 17 F.3d 1386, 1418-19 (11th Cir. 1994) (emphasis added))

Here, as the Transcript reflects, Counsel for Defendants wasted little time to frustrate the

deposition of the OCR. Counsel for Defendants unfurled its spontaneous, illusory objection of

attorney-client privilege mere minutes after counsel for Plaintiffs began questioning the OCR

about the first of sixteen proofs of claim (namely, the proof of claim attached as Exhibit “B”)

which stated, in relevant part:

See Exhibit B.

Pointedly, as testified by the OCR, per the records of Defendants (Transcript at p.13:3-13),

the principal portion of the underlying debt was $1,927.24 and the amount of interest was $429.99

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(Exhibit B at 11), whereby the sum of these two numbers equals $2,356.23. Armed with this

inconsistent testimony, and the fact that Defendants checked “no” with respect to this particular

proof of claim, counsel for Plaintiffs asked the OCR why these inconsistencies came about,

Transcript at p.13:15-25, as such inconsistencies represent the heart of Plaintiffs’ case. Yet, instead

of allowing the OCR to respond, counsel for Defendants instructed the OCR not to answer the

question and, thereafter, confirmed that Defendants would raise the attorney-client privilege

objection to any line of questioning which sought to determine why any amount identified on any

proof of claim exceeded the principal of the corresponding debt. Transcript at p.22:16 to p.23:9.

Simply put, counsel for Defendants’ decision to purposefully frustrate the OCR’s

deposition by frivolously raising the attorney-client privilege objection deprived Plaintiffs of

necessary discoverable information. Counsel for Defendants knew full-well the line of questioning

the OCR was facing before the deposition began, not only by way of the applicable Notices of

Deposition (attached as Exhibit “C”), but also because the deposition topics were discussed, at

length, by the parties as evidenced by the Status Report. See D.E. 55. Despite such knowledge,

counsel never raised any concerns regarding attorney-client privilege until Plaintiffs were mere

moments from obtaining dispositive testimony from the OCR. As of this writing, Defendants have

still failed to seek a protective order. See Garayoa, 2017 U.S. Dist. LEXIS 113443 at *9.

At minimum, inquiry into why an amount listed on any proof of claim at issue exceeds

and/or is otherwise inconsistent with Defendants own records is an issue newly injected into

this case by way of Defendants’ responses to Plaintiffs’ paper discovery requests. Cox,, 17 F.3d

1386 at 1419 (“[t]he defendant need not raise an affirmative defense to inject a new issue into the

case”) Here, via formal discovery, Defendants provided Plaintiffs with all the documents

Defendants claim to possess with respect to any debt at issue, as well as all the documents

Defendants claim to have used and/or reviewed to prepare the proofs of claim at issue. Now, in

the light of clear inconsistencies between the OCR’s testimony and documentation of Defendants,

counsel for Defendants seek to use attorney-client privilege offensively to prevent inquiry into

core objective facts at the heart Plaintiffs’ case.

WHEREFORE, Plaintiffs, respectfully, request that this Court: [1] compel the second

deposition of Defendants’ omnibus corporate representative as noticed by Plaintiffs; [2] require

Defendants to pay all expenses associated with the second deposition; and [3] award attorneys’

fees and costs associated with this Motion to Compel to Plaintiffs.

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www.JibraelLaw.com

CERTIFICATE OF CONFERRAL & PERMISSION/APPROVAL TO FILE

On February 19, 2021, and on February 22, 2021, counsel for Plaintiffs conferred with counsel 

for Defendants regarding the relief sought herein. Defendants oppose the relief sought herein. 

On February 22, 2021, counsel for Plaintiffs and counsel for Defendants jointly contacted the 

chambers of Magistrate Judge Hunt regarding permission and/or approval to filing of this Motion to 

Compel. Plaintiffs were granted approval and/or permission to file this Motion to Compel. 

Dated: February 26, 2021

Respectfully Submitted,

 /s/ Thomas J. Patti . 

JIBRAEL S. HINDI, ESQ.

Florida Bar No.: 118259

E-mail: jibrael@jibraellaw.com

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

E-mail: tom@jibraellaw.com

The Law Offices of Jibrael S. Hindi

110 SE 6th Street, Suite 1744

Fort Lauderdale, Florida 33301

Phone: 954-907-1136

Fax: 855-529-9540

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on February 26, 2021, the foregoing was

electronically filed with the Clerk of the Court using the CM/ECF system which will send a

notice of electronic filing to all counsel of record.

 /s/ Thomas J. Patti . 

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

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