UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

BREE McCLESKEY * 

V. * Civil Action No. 1:20-CV-00166

TOLTECA ENTERPRISES INC.,

 DBA PHOENIX RECOVERY GROUP et al *

MOTION TO COMPEL DISCOVERY

Tolteca Enterprises Inc., dba Phoenix Recovery Group (“PRG”) moves under Rule 37 of the

Federal Rules of Civil Procedure for a court order compelling Plaintiff to provide a full and complete

discovery response and to overrule Plaintiff’s objections to the requested discovery. Sanctions

should be imposed on Plaintiff for engaging in evasive and non responsive discovery conduct

regarding Request for Production No. 2, Interrogatory No. 2, Interrogatory No. 6, Request for

Production No. 6, Interrogatory No. 7, Request for Production No. 7, Request for Production No.

9 on credit reports, and Request for Production No. 9 on actual damages and Interrogatory No. 14. 

1. Plaintiff sued PRG alleging a “concrete” injury and an “informational” injury. See,

Plaintiff’s First Amended Complaint, Doc. 30, paragraphs 5 and 6. Plaintiff claims she has “actual

damages” as a result of PRG’s conduct. Plaintiff’s First Amended Complaint, Doc. 30, paragraphs

41, prayer for damages, subsection “b” and “d”. 

2. PRG has sought discovery about Plaintiff’s damages and her claim of injury. Plaintiff

has failed to provide full and complete answers and documents about her damages and injury

claims. Plaintiff has engaged in discovery abuse by claiming the need to “supplement” and to

acquire “more information” on these claims. Plaintiff has claimed that Defendant negatively

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impacted her credit and affected her ability to obtain suitable housing. Plaintiff has not provided

adequate discovery and documentation regarding the discovery. Plaintiff has been evasive and nonresponsive which hampers PRG’s ability to prepare its defenses in this lawsuit.

3. More specifically, PRG asked Plaintiff to produce anyand all records showing, evidencing

and referencing any damages she is claiming in her lawsuit. See, Request for Production No. 2. 

Plaintiff’s responses is that she will “supplement” as she acquires more information on whether PRG

impacted her credit. This case has been on the docket for months. How much time does Plaintiff

need to compile her damages? Is PRG supposed to wait for Plaintiff’s supplemental information?

Plaintiff brought the lawsuit and she is the one alleging damages and impact on her credit. 

Therefore, it is incumbent on her to provide discoveryresponses pertaining to her damages and claim

of injury.

Also, PRK asked Plaintiff to itemize, identify and describe her damages and the negative

impact on her credit. See, Interrogatory No. 2 and No. 14, for example. Plaintiff says she is

investigating her actual damages and about any impact on her credit. Plaintiff has not provided

adequate and fair responses to the requested discovery. 

Additionally, Plaintiff has failed to adequatelyrespond to Interrogatories 6 and 7 which asked

for the factual basis supporting Plaintiff’s contention that PRG violated the Texas Debt Collection

Act and the Federal Fair Debt Collections Practices Act. Plaintiff’s response is “look at the

Complaint”. That is evasive and non-responsive and is not a proper discovery response. The

Complaint is not a substitute for providing evidence and does not detail the factual basis. The

Complaint does not clarify the issues. Ferko v. NASCAR, 218 F.R.D. 125 (E.D. Tex. 2003);

Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340 (1978). 

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Then, Plaintiff was asked to produce her credit report from Experian, Equifax and

Transunion. Plaintiff has evaded the Request by attaching redacted reports that “reference the

particular account” that is the basis of the Complaint. Since it’s the Plaintiff who has claimed

damages, impact on her credit, and an informational injury, her full credit report is essential for PRG

to defend against Plaintiff’s allegations. A snippet is insufficient. 

Plaintiff makes meritless objections about being irrelevant, not likely to lead to the discovery

of admissible evidence, claims of privacy, and a fishing expedition. Clearly, the discovery is highly

relevant to Plaintiff’s claims and PRG’s defense. It is not enough to simply refer PRG to just the

particular credit entry concerning her debt arising from her lease agreement with Georgetown Place

apartments, and is not enough to tell PRG to look at her Complaint. While it is proper to answer

discovery by referring to business records, the Complaint is not a business record. 

Plaintiff is withholding vital information about her other credit problems, charge offs, and

negative credit entries. In order for PRG to find about her claim of an “informational” injury or

adverse “impact” on her credit, her full and complete credit reports are needed to show that Plaintiff

has poor credit and other negative credit entries. PRG has an essential need to rebut Plaintiff’s claim

about her credit being adversely impacted or her problems regarding her ability to obtain credit or

obtain “suitable housing”. This information is needed to show that PRG did not cause an adverse

impact on her credit. PRG suspects that Plaintiff has poor to bad credit so any adverse impact on

her credit or to obtain “suitable housing” is likely due to her poor to bad credit and not due to

anything she asserts against PRG. Plaintiff’s concealment of this vital information is grossly unfair

to PRG and impairs its ability to defend against Plaintiff’s claims. See, Fed. R. Civ. P. 37(a)(3)

which states that an evasive answer or response is a failure to disclose, answer or respond. PRG

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is entitled to the requested discovery to prevent trial by ambush. 

PRG needs the requested to discovery and cannot secure the information except through

Plaintiff. See, Fed. R. Civ. P., Rule 26( b)(1), parties may obtain discovery regarding any matter,

not privileged, that is relevant to the claim or defense of any party....

PRG’s discovery requests target the issues Plaintiff has raised in her lawsuit. Clearly, PRG 

is entitled to the discovery. 

Furthermore, Plaintiff admitted in her Complaint that she has financial problems and could

not pay the debt involved in this lawsuit and caused her to default on her lease with Georgetown

Place apartments. See, Plaintiff’s First Amended Complaint, paragraph 17. Consequently, Plaintiff

has put in issue her finances and creditworthiness. Plaintiff’s finances and credit reports are

reasonably calculated to lead to the discovery of admissible evidence. 

4. Plaintiff cannot sue PRG for an “informational” injury and damages but not allow PRG

to conduct discovery about her allegations of injury, negative credit impact and damages. Plaintiff

cannot have this both ways. 

5. Plaintiff’s objections of privacy, relevancy, fishing expedition and not likely to lead to

admissible evidence are frivolous and should be overruled. Furthermore, Plaintiff’s claims of

privilege are vague and without proper identification of the privilege asserted. For example, Plaintiff

claims a vague assertion of privilege regarding “constitutional” privacy relating to marriage,

procreation, contraception, family relations, child rearing and education. That assertion of privilege

has absolutely nothing to do with the discovery PRG seeks to obtain concerning Plaintiff’s claims

of damages and injury. Plaintiff’s credit history, creditworthiness and damages is something Plaintiff

has put in issue. Plaintiff waived any privacy claim about her credit when she brought this lawsuit. 

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Certainly there is nothing about her credit report and damages claims that has anything to do with

marriage, procreation, contraception, etc. The privilege assertion is frivolous and vexatious.

6. Plaintiff is entitled to obtain her own credit report. PRG cannot lawfully obtain such a

report but Plaintiff can get her own credit report.

7. PRG attaches Plaintiff’s discovery responses as Exhibit 1 in support of this motion.

8. PRG includes a certificate of conference concerning this matter.

9. PRG asks for the amount of three hours of attorney time to present and prosecute this

motion at the hourly rate of $300/hour. 

WHEREFORE, PRG asks that Plaintiff’s objections be overruled; that Plaintiff be ordered

to produce her credit reports from Experian, Equifax and Experian for 2019 to the present, to

produce and respond to the discovery about her damages and for such other relief as may be just.

S/Tom Clarke

Texas Bar # 04318600

8026 Vantage Dr., Suite 105

San Antonio, Texas 78230

210/340-8448

210/348-7946 fax

tclarkeatty7@aol.com

Attorney for Tolteca Enterprises Inc., &

Travelers Casualty & Surety Co of America

CERTIFICATE OF CONFERENCE & DECLARATION

I declare under penalty of perjury that the following is on my knowledge true and correct.

Myname is Tom Clarke. I am counsel for Defendants Tolteca Enterprises Inc., and Travelers

Casualty & Surety Co of America. I contacted Plaintiff’s counsel about the discovery being sought

as described hereinabove. I made a good faith effort to obtain the requested discovery. Plaintiff’s

lawyer would not agree to provide the requested discovery so this matter is presented to the court for

determination. I am licensed to practice in the Western District of Texas in all divisions. I am also

admitted to the District of Colorado, District of Ohio Columbus Division, and other district courts

in Texas. I have been a lawyer practicing litigation for some 30 years. I am familiar with attorney

fees in the Western District of Texas. The amount of $300 per hour is fair, customary and

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reasonable. I have expended and will expend 3 hours of my professional time on this matter. An

award of $900 for attorney fees for my efforts in handling this motion is reasonable and necessary.

S/Tom Clarke

CERTIFICATE OF SERVICE

On December 28, 2020, the foregoing was e-filed with the court’s ECF/CM electronic filing

system which will give electronic notice to Brent Devere, Attorney for Plaintiff.

S/Tom Clarke

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