UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

ANN MARIE MYERS, Case No. 1:18-cv-144

 

Plaintiffs, McFarland, J. 

 Bowman, M.J. 

 v. 

WELLS FARGO BANK, et al., 

 Defendants 

MEMORANDUM OPINION AND ORDER 

 Plaintiff initiated this Fair Credit Reporting Act case against Defendant Wells 

Fargo Bank on February 27, 2018. Currently pending is Plaintiff’s motion to reopen 

and/or extend the discovery deadline, Defendant’s response in opposition to that 

motion, Plaintiff’s reply, and Defendant’s supplemental response. For the reasons that 

follow, Plaintiff’s motion will be denied. 

I. Background 

 Plaintiff’s original complaint alleged that Wells Fargo had violated the FCRA by 

incorrectly reporting a student loan debt that had been fully resolved through settlement, 

and then by refusing to correct the error when notified. (Doc. 1). Plaintiff further alleged 

that the improperly reported debt adversely impacted her ability to obtain a mortgage 

and/or other credit. On May 16, 2018, Plaintiff filed an amended complaint to add 

American Education Services as an additional Defendant, but the essence of her FCRA 

claims remained the same. On April 17, 2019, Plaintiff voluntarily dismissed Wells 

Fargo. 

 Pursuant to an agreed discovery plan adopted by the Court, Plaintiff was 

required to identify any experts not later than June 17, 2019, approximately four months 
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prior to the fact discovery deadline. Plaintiff did not identify any experts, leading to the 

conclusion that none were required to prove her claims. Fact discovery was later 

extended to December 20, 2019 and the dispositive motion deadline was extended to 

January 31, 2020, but no one sought the extension of the long-expired expert disclosure 

deadline until the last day of discovery. 

II. Plaintiff’s Motion to Extend/Reopen Expert Discovery 

 In a motion filed on December 20, 2019, Plaintiff seeks to reopen expert 

discovery so that she can identify a new expert to address deposition testimony 

provided on December 17, 2019 by Defendant’s corporate representative. Plaintiff had 

previously been provided with copies of Defendant’s debt reporting policies and 

procedures, but argues that which version applied to Plaintiff, when changes occurred, 

and why, were issues that were not fully apparent until the representative testified. 

According to Plaintiff, the corporate representative clarified that policies in place just 

before Plaintiff settled her student loan debt would have meant that the debt was not 

reportable by AES, but that AES briefly changed its policies causing the debt to be 

reported and leading to Plaintiff’s claims. Although the change negatively impacted 

Plaintiff, AES subsequently changed its policies back to the prior version. 

 The corporate representative explained the changes as follows:

Q. Okay. Why would PHEAA have reported a balance in response to one 

of their disputes? 

A. Depending on the timeframe of the dispute and the procedures at that 

time for current reporting, the processer may have put the balance on for 

that type of final status. 

Q. What do you mean by that? 

A. I believe that it was 2016 that that was reported. And procedures had 
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changed as far as how to report the balance portion of a 93 status. And 

they did change again to --- there was a point in time where they would be 

reporting the balance with a 93 status. And that then changed back to 

reporting a zero balance with a serious delinquency or charge-off. 

Q. When were the policies of PHEAA changed and then changed back as 

you are describing, as it relates to the balance in connection with the 93 

status? 

A. Okay. I do know that it reported back in 2016, late 2016. I believe that it 

was changed probably in 2015, so there would've been a period of time 

that it was ---that they would've responded to a dispute with the balance. 

Q. Okay. Do you know why the policy was changed in 2015? 

A. That was at the direction of our legal and compliance department. 

Q. Were you a part of that decision making? 

A. No. 

Q. Do you know why the policy was changed back a year later? 

A. That again was a legal and compliance decision. 

Q. Are both policies accurate? 

A. At the time that they were administered at PHEAA, we believe that that 

would've been accurate, yes. 

(Doc. 37 at 4, quoting Deposition of Leslie Harris, page 31:12-33:23). Plaintiff now 

argues that she could not have foreseen this testimony, and requires an expert “to opine 

on the validity and reasonableness of the changes and their application to Plaintiff in 

light of the industry standards” for debt reporting under the FCRA. (Id.) 

 Defendant opposes reopening discovery for this purpose, arguing that the 

information is not “new” because the parties identified the policies and procedures for 

reporting as a focus of discovery in their Rule 26(f) report, and because Defendant had 

provided the referenced policies well before the corporate representative’s deposition. 

In addition, although Plaintiff points out that in many cases an expert discovery deadline 
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will be set after a fact discovery deadline, in this case Plaintiff and Defendants mutually 

agreed in their Rule 26(f) report to have their expert disclosure deadline expire many 

months before the close of discovery. 

 The parties’ dispositive motion deadline recently expired on January 31, 2020. 

Both parties have filed Notices with the Court indicating that each has served opposing 

counsel with a timely motion seeking summary judgment. Under an agreed-upon 

procedure adopted by the Court, the parties are expected to file their motions in the 

public record in the near future. 

 Based upon the record presented, the undersigned will deny Plaintiff’s motion to 

reopen discovery to allow Plaintiff to obtain and identify a new expert to testify about the 

reasonableness of the Defendant’s altered debt reporting policies. Plaintiff was not 

required to wait until the deposition of the corporate representative but could have 

sought clarification of the policy changes at an earlier time through other written 

discovery, such as interrogatories, if desired. When the parties agreed to early 

disclosure of any experts long before the expiration of the discovery deadline, they 

clearly anticipated that no experts would be needed. Allowing Plaintiff to identify an 

expert at this late date, more than six months after the expiration of the agreed deadline 

and at a time when the parties have exchanged cross-motions for summary judgment, 

would be highly prejudicial to the Defendant. Last but not least, the undersigned is not 

convinced that the topic for which expert testimony is sought would be appropriate or 

helpful for the trier of fact on the issues in dispute. Of course, both parties remain free 

to call any fact witnesses they like to help explain the various changes in Defendant’s 

policies. 
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 Accordingly, IT IS ORDERED THAT Plaintiff’s motion to extend/reopen discovery 

in order to identify a new expert (Doc. 34) is DENIED.

s/ Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge