UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

 

Katherine A. Ruth ) 

on behalf of herself and all others ) 

similarly situated ) 

 ) C.A. No. 05-CV-766 

 Plaintiff, ) 

 vs. ) 

 ) 

Experian Information Solutions, Inc. ) 

 ) CLASS ACTION 

 Defendant. ) 

 ) 

PLAINTIFF’S MOTION TO SUPPLEMENT HER RESPONSE IN OPPOSITION 

TO EXPERIAN’S MOTION TO DISMISS 

WITH THE DEPOSITION TESTIMONY OF EXPERIAN’S KIRA WILLIAMS

Plaintiff Katherine A. Ruth, by and through her undersigned counsel, hereby moves this 

Court to supplement her response in opposition to Experian Information Solutions, Inc.’s 

(“Experian’s”) motion to dismiss with the deposition testimony of Kira Williams taken on 

August 9, 2005 in the case of Anderson v. Experian et al., C.A. No. 05-199 (E.D. Pa.), attached 

hereto as Exhibit A. For the reasons that follow, Plaintiff’s motion should be granted, and 

Exhibit A should be deemed filed of record. 

I. ARGUMENT

As the Court is aware, this is a consumer class action involving millions of consumers 

that challenges, among other things, defendant Experian’s failure to provide consumers with 

copies of their consumer reports following investigations of credit disputes. Experian has filed a 

motion to dismiss that Plaintiff opposed on May 23, 2005. The motion is currently pending 

before this Court. 

In addition to several flawed legal arguments that Plaintiff has responded to, and despite 

the fact that the Rule 12(b)(6) standard precludes argument and resolution of factual disputes, 

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Experian has also represented to this Court that, as a matter of fact, it does provide consumers 

with copies of their consumer reports and that Plaintiff is seeking some further disclosure that the 

law does not require. 

 Plaintiff maintains her position that consideration of Experian’s factual contentions 

should not be countenanced at this stage of the proceedings, and that a simple review of the 

Complaint’s allegations confirms that she has easily satisfied the Rule 12(b)(6) standard and 

stated a cause of action against Experian. To the extent that this Court finds Experian’s factual 

contentions germane to the resolution of its motion to dismiss, however, Plaintiff moves the 

Court to allow her to supplement the 12(b)(6) briefing record with the recent deposition 

testimony of an Experian corporate representative that undermines, if not obliterates, the 

contention of defense counsel that Experian in fact provides consumers with consumer reports 

following a credit dispute. 

 On August 9, 2005, Kira Williams, a specialist with the office of Experian’s consumer 

affairs special services was deposed in a corporate representative capacity in the case of 

Anderson v. Experian et al, C.A. No. 05-199 (E.D. Pa.).1

 In direct contradiction to the 

arguments that Experian has made to this Court in the instant case, Ms. Williams unequivocally 

 

1

 Anderson, unlike the instant case, is a individual action based on Experian’s inaccurate reporting of credit 

information about plaintiff Vickie Anderson. As Judge Dalzell has recently recognized, the deposition testimony of 

a corporate representative may be considered as relevant evidence as a statement against Experian made by an 

Experian employee within the scope and course of employment. See Crane v. Trans Union, LLC, 282 F. Supp. 2d 

311, 316 n.6 (E.D. Pa. 2003 citing Fed. R. Evid. 801(d)(2)(D) (Trans Union employee’s deposition from another 

case may be considered in summary judgment motion filed by it in separate matter); see also Copeland v. Potroleum 

Transit Co., 32 F.R.D. 445, 447 (E.D.S.C. 1963) (deposition taken for use in another case could be used in 

analogous action); Gros v. City of Grand Prairie, 181 F.3d 613, 619 (5th Cir. 1999) (relying on deposition testimony 

taken in another case to vacate summary judgment); Donahey v. Wellman, 687 F. Supp. 195, 196-97 (W.D. Pa. 

1988) (relying on deposition taken in parallel case to grant summary judgment); see generally Aileen Mills Co. v. 

Ojay Mills, Inc., 192 F. Supp 131 (S.D.N.Y. 1960) (deposition taken in prior action by other plaintiffs against same 

defendants was part of record where submitted to district court upon motion to quash); Tobacco & Allied Stocks v. 

Transamerica Corp., 18 F.R.D. 355 (D. Del. 1955) (all depositions, exhibits and pleadings from analogous litigation 

offered by party, over objection of opponent, were accepted and considered admissible). 

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testified that Experian does not provide consumers with full consumer reports following an 

investigation of a credit dispute. She described that at the end of an investigation, Experian 

sends consumers a document called a “consumer disclosure final,” which is not a full consumer 

report: 

 20 A. In the document you mean the consumer disclosure 

 21 final? 

 22 Q. Yes. 

 23 A. The results of the investigation are included in 

 24 that document. We also provide the consumer's rights in 

 25 that document and we let them know if the account has been 

 Page 144 

 1 updated. We give them an updated version of that account. 

 2 Q. Okay. So let's say there's an account that has 

 3 been deleted. Would you give the consumer an updated 

 4 consumer disclosure showing that that account was deleted? 

 5 A. No. 

 6 Q. No? 

 7 A. No. We let them know that the account has been 

 8 deleted from the credit report. 

 9 Q. Okay. Does the consumer dispute final show the 

 10 consumer what their whole credit report from Experian 

 11 looks like after the investigation? 

 12 A. No. The purpose of the consumer disclosure final 

 13 is to convey the results of the investigation. 

 14 Q. Okay. So Experian will only convey to the 

 15 consumer what the investigation resulted in, if you will? 

 16 A. Yes, sir. 

 17 Q. They don't get a full copy of their credit 

 18 report?

 19 A. Not for the results of the investigation, no, 

 20 sir.

 21 Q. Okay. Is that a recent policy? 

 22 A. No, sir, it isn't. 

 23 Q. So it has been the case as long as you've been at 

 24 Experian that you're going to get the results of the 

 25 investigation and not a full consumer report? 

 Page 145 

 1 A. Right. 

 2 Q. Why not? 

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 3 A. Why wouldn't the consumer receive a full 

 4 disclosure of their credit report? 

 5 Q. Yeah. 

 6 A. Because I believe that the Fair Credit Reporting 

 7 Act states that we must convey the results of the 

 8 investigation. I don't believe that it states that we 

 9 have to send a full credit report along with the 

 10 investigation results. 

 11 Q. And when you say -- you said earlier when 

 12 something is updated, you tell the consumer that. Is that 

 13 the same as the results of the investigation? 

 14 A. Yes, sir. 

 15 Q. So the consumer does not get a full consumer 

 16 report showing how the report would look like at the end 

 17 of the investigation? 

 18 A. No, sir. If an item is updated, we send them how 

 19 the updated item looks. We don't send a full copy of the 

 20 credit report. 

 21 Q. If the consumer wanted to see their full consumer 

 22 report at the end of the investigation, they would have to 

 23 order one separately?

24 A. Yes, sir. 

(Kira Williams Dep. at 143-45) (emphasis added) (entire transcript is attached hereto as Exhibit 

A). 

The Williams testimony could not be any clearer in confirming the facts and allegations 

in Plaintiff’s Complaint that, following its investigation of a credit dispute, Experian does not

provide consumers with copies of their consumer reports. Thus, the flawed consumer “file 

disclosure” versus “consumer report” distinction Experian spends page after page trying to 

convince the Court of is actually rendered nugatory by Experian’s own admission, for it is clear 

that it sends neither. 

To the extent that the Court was even inclined to consider Experian’s factual contention 

regarding what it provides to consumers following an investigation, the Williams testimony 

should put to rest the notion that Experian in fact provides consumer reports to all consumers at 

the close of its investigations into disputes. 

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 As the Williams testimony is pivotal evidence relating to the issue of what 

documentation, if any, Experian sends consumers following a dispute investigation that was 

unavailable at the time of filing of Plaintiff’s response and opposition brief, Plaintiff should be 

permitted to supplement her response in opposition to Experian’s motion to dismiss. 

II. CONCLUSION

For all the reasons set forth above, the Court should grant Plaintiff’s motion to supplement 

her response in opposition to Experian’s motion to dismiss and enter the accompanying proposed 

order. 

Respectfully submitted, 

 FRANCIS & MAILMAN, P.C. 

 

Dated: September 7, 2005 BY: ____________________________ 

JAMES A. FRANCIS, ESQUIRE 

 MARK D. MAILMAN, ESQUIRE 

JOHN SOUMILAS, ESQUIRE 

Land Title Building, 19th Floor 

100 South Broad Street 

 Philadelphia, PA 19110 

 (215) 735-8600 

 

 DONOVAN SEARLES, LLC 

DAVID A. SEARLES 

 1845 Walnut Street, Suite 1100 

Philadelphia, PA 19103 

 (215) 732-6067 

 

 Attorneys for Plaintiff and the Class 

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