UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CASE NO. 1:12-cv-02571

MICHELLE HOLT,

Plaintiff,

v.

MRS BPO, L.L.C.,

Defendant.

_____________________________________/

PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Plaintiff, Michelle Holt (“Plaintiff”), by and through her undersigned counsel, hereby 

moves this Court to compel Defendant, MRS BPO, LLC (“Defendant”), to produce documents in 

response to Plaintiff’s supplemental request for production. In support thereof, Plaintiff states as 

follows:

I. INTRODUCTION.

Plaintiff served Defendant with a single supplemental request for production seeking 

Defendant’s telephone records for five specific days. The request was narrowly tailored to strike 

at the heart of Plaintiff’s claims, the measure of damages and Defendant’s defenses; nonetheless 

Defendant responded with a series of boilerplate objections. This Court should enter an order 

compelling Defendant to turn over the requested telephone records because this information is 

relevant, and Defendant’s objections are inadequately supported and deemed waived.

II. PROCEDURAL HISTORY.

On April 9, 2012, Plaintiff filed her complaint, alleging violations of the Fair Debt 

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Telephone Consumer 

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Protection Act (“TCPA”), 47 U.S.C. § 227. (Doc. 1). On July 2, 2012, Defendant filed its answer 

with affirmative defenses. (Doc. 12).

On December 18, 2012, Plaintiff served a single supplemental request for production on 

Defendant. (See Plaintiff’s supplemental request for production attached hereto as Exhibit “1”). 

On January 15, 2013, Defendant served its response to Plaintiff’s supplemental request for 

production. (See Defendant’s response to Plaintiff’s supplemental request for production 

attached hereto as Exhibit “2”). Defendant’s response was insufficient, evasive and inadequate. 

(See Exhibit “2”). On January 16, 2013, Plaintiff sent Defendant written correspondence 

regarding its insufficient response, and requested a Rule 37 conference to resolve the issue 

expeditiously. (See request for rule 37 conference attached hereto as exhibit “3”). On January 22, 

2013, the parties, through their representatives, conducted a Rule 37 conference regarding 

Plaintiff’s supplemental request for production; the parties, however, could not come to an 

agreement.

III. STANDARD OF REVIEW.

“Parties may obtain discovery regarding any non-privileged matter that is relevant to any 

party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). This includes “discovery that appears 

reasonably calculated to lead to the discovery of admissible evidence.” Id. Information is 

relevant to the subject matter if the information might reasonably assist a party in evaluating its 

case, preparing for trial, or facilitating settlement. Hickman v. Taylor, 329 U.S. 495, 506-7 

(1947). Plaintiff is therefore entitled to discovery as to “any matter that bears on, or that 

reasonably could lead to other matters that could bear on, any issue that is or may be in the case . 

. . [including] a variety of fact-oriented issues [which] may arise during litigation that are not 

related to the merits.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

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Where a party fails to answer a propounded interrogatory or otherwise fails to respond to 

a discovery request, the opposing party may move the Court to compel an answer to said 

discovery requests. Fed. R. Civ. P. 37(a)(3)(B). Moreover, “evasive or incomplete” discovery 

responses are treated the same as outright failure to respond to a discovery request. Fed. R. Civ. 

P. 37(a)(4).

IV. THE COURT SHOULD COMPEL DEFENDANT TO PRODUCE THE 

TELEPHONE RECORDS REQUESTED.

Plaintiff requested Defendant’s telephone records for five specific days. (See Exhibit 

“1”). This request was calculated to lead to the discovery of admissible evidence relating to 

Defendant’s efforts to collect the alleged debt from Plaintiff, as well as Defendant’s affirmative 

defenses. Id.

In response, Defendant asserted a series of boilerplate objections to Plaintiff’s Request 

that Defendant did not properly support with detailed explanations as required under the Federal 

Rules of Civil Procedure. Therefore, Defendant’s objections are waived, and the Court should 

compel production of the requested telephone records.

A. Defendant’s Telephone Records Are Relevant To Plaintiff’s Claims. 

Plaintiff’s FDCPA, and TCPA claims are based on Defendant placing calls to her cellular 

telephone. (Doc. 1). To prevail on her FDCPA claim pursuant to 15 U.S.C. § 1692c(c), Plaintiff 

must prove that Defendant contacted her after receiving a written request that it cease further 

contact. 15 U.S.C. § 1692c(c). To prevail on her TCPA claim pursuant to 47 U.S.C. § 

227(b)(1)(A)(iii), Plaintiff must prove that Defendant placed calls to her cellular telephone using 

an automated dialing device or pre-recorded voice. 47 U.S.C. § 227(b). 

Throughout the course of litigating this case, Defendant has repeatedly and vehemently 

asserted that it had not called Plaintiff. (See e.g. Doc. 12, ¶¶15, 16). Nonetheless, Defendant 

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produced copies of Plaintiff’s telephone records it had subpoenaed that indicate Plaintiff did, in 

fact, receive calls from a phone number which unquestionably belongs to the Defendant. (Exhibit 

“4”). Defendant contends that these records do not show that Defendant placed calls to Plaintiff’s 

phone, but rather Defendant dialed another number that was then rerouted to Plaintiff. (Doc. 29-

2). In fact, counsel for the Defendant, in conversations with Plaintiff’s counsel, has accused 

Plaintiff of somehow intentionally forwarding calls that she received from Defendant on a 

different phone, to her cell phone, so that she could argue that Defendant called her cell phone 

directly.

Defendant’s call records are the best way to determine what numbers Defendant actually 

called on the dates in question. Thus Defendant’s call records strike to the very heart of 

Plaintiff’s claims, and if deprived of this information, Plaintiff’s ability to prove her case will be 

prejudiced. Therefore, this Court should compel discovery of the Defendant’s telephone records.

B. Defendant’s Telephone Records Are Relevant To The Amount Of 

Statutory Damages Plaintiff May Recover. 

The FDCPA provides for statutory damages, and allows the Court, in calculating the 

amount of statutory damages, to consider such factors as “the frequency and persistence of 

noncompliance by the debt collector, the nature of such noncompliance, and the extent to which 

such noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1). The TCPA also allows for 

damages based on the number of calls placed, as well as treble statutory damages “if the court 

finds that the defendant willfully or knowingly violated” the TCPA. 47 U.S.C. § 227(b)(3)(C). 

Plaintiff has alleged Defendant placed repeated calls to her cellular telephone after she 

sent it a cease and desist letter. (Doc. 1). Defendant’s telephone records are expected to show the 

number of calls Defendant placed to Plaintiff’s cellular phone, and that it dialed her number. 

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Defendant’s telephone records are therefore relevant to the number and willfulness of

Defendant’s alleged violations, both factors that will affect Plaintiff’s damages.

Indeed, due to the potential treble recovery provided by the TCPA, the requested 

discovery may radically impact the settlement value of Plaintiff’s case. Without the Defendant’s 

telephone records, Plaintiff is unable to fully evaluate Defendant’s potential liability. Therefore, 

this Court should compel discovery of the Defendant’s telephone records.

C. Defendant’s Telephone Records Are Relevant To Defendant’s Defenses.

One of Defendant’s affirmative defenses is the bona fide error defense, which shields 

debt collectors from liability under the FDCPA if they can show by a preponderance of the 

evidence that their violations were 1) not intentional and 2) resulted from a bona fide error 

despite 3) procedures reasonably adapted to avoid such violation. (See Doc. 12); Edwards v. 

Niagara Credit Solutions, Inc., 584 F.3d 1350 (11th Cir. 2009). 

Defendant’s telephone records are expected to show that Defendant dialed Plaintiff’s 

cellular telephone number as alleged in Plaintiff’s complaint. (See Doc. 1). This information is 

relevant to the intent and error elements of Defendant’s bona fide error defense. Without the 

Defendant’s telephone records, Plaintiff’s ability to evaluate and counter Defendant’s bona fide 

error defense will be unfairly prejudiced. This Court should compel Defendant to provide its 

telephone records.

D. Defendant’s Objections Are Insufficient And Therefore Waived.

The party resisting discovery has the burden of establishing facts justifying its objection.

See Davis v. Precoat Metals, a Div. of Sequa Corp., No. 01 C 5689, 2002 WL 1759828, at *3 

(N.D. Ill. July 29, 2002). This “burden cannot be met by a reflexive invocation of the same 

baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, or 

irrelevant.” Buonauro v. City of Berwyn, No. 08 C 6687, 2011 WL 2110133 at *2 (N.D. Ill. May 

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25, 2011) (quoting United Auto. Ins. v. Veluchamy, No. 09 C 5487, 2010 WL 749980, at *5 

(N.D. Ill. March 4.2010) (finding boilerplate objections waived as improper)). 

“An objection to a document request must clearly specify the objection and how that 

objection relates to the documents being demanded.” In re Aircrash Disaster Near Roselawn, 

Ind. Oct. 31, 1994, 172 F.R.D. 295, 307 (N.D. Ill. 1997) (denying boilerplate “vague, overly 

broad, unduly burdensome, and seeks information that is not relevant and not reasonably 

calculated to lead to the discovery of relevant evidence” objection).

Defendant’s objection does not meet the burden described in Davis. Plaintiff’s 

supplemental request for production reads as follows:

PLAINTIFF’S REQUEST FOR PRODUCTION NO. 1: All call logs, 

telephone records and other documentation evidencing any and all outgoing calls 

made by Defendant on the following dates:

(a) September 12, 2011;

(b) September 13, 2011;

(c) September 19, 2011;

(d) September 24, 2011; and

(e) January 18, 2012.

Exhibit “1” Request No. 1.

Defendant’s response to Plaintiff’s supplemental request for production reads as 

follows:

DEFENDANT’S RESPONSE: Defendant objects to Request No.1 on the 

grounds that it is overly board as it not narrowly tailored to the allegations set 

forth in Plaintiff’s complaint and seeks information that is not relevant and not 

likely to lead to the discovery of relevant evidence.

Exhibit “2” Request No. 1.

Defendant’s response to supplemental request for production number 1 consists of 

skeletal objections. Defendant did not clearly specify its objection and how its objection related 

to the documents requested. A failure to make particularized objections to document requests 

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constitutes a waiver of those objections. See Fed. R. Civ. P. 34; Sabol v. Brooks, 469 F. Supp. 2d 

324, 328-29 (D. Md. 2006). Significant, Defendant responded to Plaintiff’s supplemental request 

with nearly the exact boilerplate regurgitation that the court advised was insufficient in 

Buonauro. See Buonauro at *2. Defendant’s objections are therefore deemed waived. 

Pepperwood of Naples Condo. Ass’n, Inc. v. Nationwide Mutual Fire Ins. Co., 2:10-CV-753-

FTM-36, 2011 WL 3841557, at *3 (M.D. Fla. 2011). 

Even if Defendant’s improper objections were not waived, Plaintiff’s discovery request is 

not overly broad, as it only seeks telephone records for five days, and as discussed above, the 

information sought is relevant. This Court should compel discovery of Defendant’s telephone 

records for the days requested.

V. CONCLUSION

This Court should grant Plaintiff’s Motion to Compel Better Answers so that Plaintiff 

may adequately prepare and present her case, including by preparing and filing dispositive 

motions. The documents sought are relevant to Plaintiff’s claims, the measure of damages, and 

Defendant’s affirmative defenses. Defendant’s objections are insufficient and are waived, 

therefore Plaintiff’s motion should be granted. 

WHEREFORE, Plaintiff respectfully requests that this Court enter an order compelling 

Defendant to produce all outstanding responsive documents and information addressed herein, 

and granting any further relief that this Court deems just and proper.

Respectfully submitted,

MICHELLE HOLT

By: s/ Alex D. Weisberg

Alex D. Weisberg 

 ARDC#: 6271510

 WEISBERG & MEYERS, LLC 

 ATTORNEYS FOR PLAINTIFF

 5722 S. Flamingo Road, #656 

Case: 1:12-cv-02571 Document #: 38 Filed: 02/01/13 Page 7 of 8 PageID #:188
 Cooper City, FL 33330

(954) 212-2184

(866) 577-0963 fax

 aweisberg@attorneysforconsumers.com

CERTIFICATION PURSUANT TO LOCAL RULE 37.2

On January 22, 2013, at 2:00 P.M. CST, Alex Weisberg, Esq. for Plaintiff and John E. 

Brigandi, Esq. for Defendant, consulted by telephone in good faith to resolve the discovery 

issues set forth in the instant motion. After a good faith consultation via email and telephone, the 

parties were unable to reach an accord.

CERTIFICATE OF FILING

I certify that on February 1, 2013, I electronically filed the foregoing Motion with the 

clerk of the U.S. District Court using the electronic case filing system of the court, which will 

send notice of electronic filing to all counsel of record.

By: s/ Alex D. Weisberg

Alex D. Weisberg 

 ARDC#: 6271510

 WEISBERG & MEYERS, LLC 

 ATTORNEYS FOR PLAINTIFF

 5722 S. Flamingo Road, #656 

 Cooper City, FL 33330

 (954) 212-2184

(866) 577-0963 fax

 aweisberg@attorneysforconsumers.com

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