IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

 

 

Alyssa Portnoy, et al.

 PLAINTIFFS,

Vs. 

National Credit Systems, Inc. et al

 DEFENDANTS 

Case No. 1:17-CV-00834-MRB

JUDGE MICHAEL R. BARRETT

 PLAINTIFFS’ MOTION WITH 

SUPPORTING MEMORANDUM TO 

COMPEL COMPLETE DISCOVERY 

RESPONSES

Michael D. Portnoy (0040213)

7024 Cloister Rd.

Toledo, Ohio 43617

PH: (419) 874-2775

FX: (419) 874-2777

e-mail:hawkport@aol.com

Attorney for Plaintiffs

****************************************************************************************************

 Pursuant to Federal Civil Rule 37, Plaintiffs, through counsel, hereby move this Court

for an Order compelling NCS, Inc. (NCS) to provide complete responses to Plaintiffs’ 

first set of written discovery requests. Also pursuant to Ohio Civil Rule 37, Plaintiffs 

hereby request reasonable attorney fees. A supporting memorandum is attached.

 

 Respectfully submitted,

 s/ Michael D. Portnoy

 Attorney for Plaintiffs

 

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 MEMORANDUM IN SUPPORT

 As the Court is aware this lawsuit seeks individual and class action damages 

against NCS for violations of the Fair Debt Collections Practices Act (FDCPA) due to 

NCS attempting to collect rent money not specifically allowed per the relevant lease 

agreements among the Plaintiffs and Williamsburg. 

 After receiving the Court’s January 15, 2021 scheduling Order, on January 17, 

2021, Plaintiffs, through counsel, sent their first set of interrogatories and request for 

production of documents to NCS’ counsel related to their individual claims and class 

action claims. The discovery requests were also prepared to obtain information 

regarding NCS’ only affirmative defense of “bona fide” error to the FDCPA strict liability 

standard.

 Plaintiffs’ interrogatory number two (2) requested information regarding all 

individuals NCS sought to collect rent for the past year per any lease agreement, 

including any information regarding lawsuits filed by NCS against these individuals for 

the past year. Interrogatory number three (3) sought information regarding how NCS 

categorized the basis of the lawsuits, ie. whether NCS’ claims were for past rent, utility 

payments, etc.

 Interrogatory number five (5) sought the names, addresses and telephone 

numbers having discoverable information, along with the subjects of the information, 

that NCS may use to support its defenses, unless the use would be for impeachment. 

Plaintiffs’ request for production of documents sought any insurance agreements that 

could be used to satisfy any judgments against NCS. Interrogatory number five (5) and 

the request for NCS’ relevant insurance agreements were patterned after Federal Civil 

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Rule 26 initial disclosure requirements. (See Plaintiffs’ written discovery requests 

attached hereto.)

 Reviewing NCS’ limited responses to Plaintiffs’ discovery requests shows NCS’ 

counsel made block objections, alleging privilege, overburdensome requests, 

irrelevance, etc., including an allegation that any information requested regarding NCS 

involvement in lawsuits and the names and addresses of former tenants involved in 

NCS’ illegal collection practices is “public information” that Plaintiffs can obtain on their 

own. NCS, through counsel, deliberately withheld the insurance agreement(s) that were 

required to be produced and failed to provide complete, required responses to 

Interrogatory number five (5).

 Regarding the privileged claim, Federal Civil Rule 26 explains how NCS must 

comply when alleging requested information is subject to privilege. Federal Civil Rule 26

(b) (5) (A) (ii) states the following:

(A) Information Withheld. When a party withholds information otherwise discoverable by

claiming is privileged or subject to protection as trial-preparation material, the party 

must:

(ii) describe the nature of the documents, communications, or intangible things not 

produced or disclosed-- and do so in a manner that, without revealing information itself 

privileged or protected, will enable other parties to assess the claim.

 NCS’ counsel failed to comply with this basic mandate and its objection that the 

information sought is privileged is therefore frivolous.

 NCS chose to have Ron Sapp, vice president of operations for NCS, sign the 

verification form regarding NCS’ limited responses to Plaintiffs’ first set of written 

discovery requests. In the lawsuit captioned Ryan Baxter v. National Credit Systems, 

Inc. Sapp was found to have lied and broke the law when former manager of NCS, 

Baxter, was told by Sapp to lie to the State of Colorado’s attorney general that critical 

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telephone call recordings that should have been turned over to the attorney general 

were lost. 

 Based upon the litigation that has occurred, Plaintiffs’ filed a request for additional 

time to comply with the Court’s January 15, 2021 scheduling Order. NCS objected to 

this request, alleging a myriad of accusations against the undersigned.

 Pursuant to Federal Civil Rule 26, on February 16 and 17, 2021, the undersigned 

sent emails to opposing counsel reminding them that complete responses to the 

discovery requests were due by the end of February 17, 2021 business day. The 

attached discovery responses are all that were provided. 

 Pursuant to Federal Civil Rule 37, Plaintiffs, through counsel, hereby request an 

Order compelling NCS to provide complete responses to Plaintiffs’ first set of written 

discovery. The written discovery was timely sent to NCS’ counsel to obtain information 

for expeditious litigation and to comply with the Court’s January 15, 2021 scheduling 

Order. 

 The discovery requests are relevant and NCS’ counsel failed to comply with 

Federal Civil Rule 26 when alleging privilege as a basis for not providing complete 

discovery responses. Plaintiffs also seek attorney fees pursuant to Federal Civil Rule 37

for having to file this pleading. Plaintiffs’ motion to compel is well taken and should be 

granted. A statement confirming the facts noted in the motion to compel is attached 

hereto.

 Respectfully submitted,

 s/ Michael D. Portnoy

 Attorney for Plaintiffs

 

 

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 CERTIFICATE OF SERVICE

 A copy of this pleading was sent to all counsel of record via e-mail.

 s/ Michael D. Portnoy

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