Bettcher v. Experian Info. Sols.
| Decision Date | 21 September 2021 |
| Docket Number | 20-cv-0319 (WMW/HB) |
| Parties | Lisa Bettcher, Plaintiff, v. Experian Information Solutions, Inc., Defendant. |
| Court | U.S. District Court — District of Minnesota |
This matter is before the Court on Plaintiff Lisa Bettcher's and Defendant Experian Information Solutions, Inc.'s (Experian) cross-motions for summary judgment, Experian's motion to exclude expert testimony and Bettcher's appeal of United States Magistrate Judge Hildy Bowbeer's December 23, 2020 Order, which granted Experian's motion to compel. (Dkts. 113, 120, 138, 110.) For the reasons addressed below, Bettcher's motion for partial summary judgment is denied, Experian's motion for summary judgment is granted, Experian's motion to exclude expert testimony is denied as moot, and the December 23, 2020 Order is affirmed.
Bettcher brings this action under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., alleging that Experian failed to “establish and/or to follow reasonable procedures to assure maximum possible accuracy in the preparation of [Bettcher's] credit reports and credit files it published and maintained.”
On August 21, 2014, Bettcher filed for voluntary bankruptcy under Chapter 13 of the Bankruptcy Code. Her bankruptcy was discharged on September 3, 2019. Bettcher subsequently obtained a consumer credit report (Report) from Experian which is a “consumer reporting agency” (CRA) pursuant to the FCRA. 15 U.S.C. § 1681a(f). The Report listed a Capital One credit card account with a balance of $9, 900 and a past-due balance of $796 (Capital One Account).
Bettcher alleges that the Report is inaccurate and that Experian knew or should have known that its reporting of the Capital One Account was inaccurate because Experian reported Bettcher's bankruptcy and all of her other debts that had been discharged in the bankruptcy. According to Bettcher, as a result of Experian's alleged FCRA violations, her “credit file” is “severely damaged.” Bettcher also alleges that, as a result of Experian's inaccurate reporting, she suffered stress, anxiety embarrassment, and other emotional distress.
Bettcher alleges that Experian violated 15 U.S.C. § 1681e(b) which requires CRAs to assure maximum possible accuracy of the information they report. The parties cross-move for summary judgment. Experian also seeks to exclude some of the testimony of Bettcher's credit reporting procedures expert, Evan Hendricks. And Bettcher appeals the magistrate judge's order granting Experian's motion to compel. Because a decision on the appeal of the magistrate judge's order impacts what evidence may be considered when ruling on the motions for summary judgment, the Court considers the appeal of the magistrate judge's order first.
Bettcher appeals the magistrate judge's December 23, 2020 order, which granted Experian's motion to compel Bettcher to produce an authorization form that she submitted to obtain her credit report. The magistrate judge found that this authorization form is relevant and is not protected by the attorney-client privilege or the work-product doctrine.
A district court conducts an “extremely deferential” review of a magistrate judge's ruling on a nondispositive issue. Smith v. Bradley Pizza, Inc., 314 F.Supp.3d 1017, 1026 (D. Minn. 2018) (internal quotation marks omitted). Such a ruling will be modified or set aside only when the ruling is clearly erroneous or contrary to law. Id. (citing 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); LR 72.2(a)(3)). A ruling is clearly erroneous when the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Wells Fargo & Co. v. United States, 750 F.Supp.2d 1049, 1050 (D. Minn. 2010) (internal quotation marks omitted). A ruling is contrary to law when a court “fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id. (internal quotation marks omitted).
Bettcher argues that, contrary to the magistrate judge's findings, the authorization form is protected by the attorney-client privilege or the work-product doctrine and is not relevant. These arguments are addressed in turn.
The magistrate judge determined that the authorization form is not protected by the attorney-client privilege because it was executed so that Bettcher's prior counsel could obtain Bettcher's credit report and not for the purpose of seeking legal advice. Bettcher disagrees.
Not all communications between an attorney and the attorney's client are privileged. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977); United States v. Bartlett, 449 F.2d 700, 704 (8th Cir. 1971). To be protected by the attorney-client privilege, the communication must relate to legal services or advice. See Diversified Indus., 572 F.2d at 602. Communications between an attorney and a client generally are protected if they “tend directly or indirectly to reveal the substance of a client confidence.” United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990); accord Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 611 (8th Cir. 1978) (en banc) (concluding that documents were privileged “because disclosure would reveal directly or inferentially the contents of” attorney-client communications).
Here, the authorization form gave Bettcher's bankruptcy counsel permission to obtain her credit report approximately two weeks after her bankruptcy discharge. This communication between Bettcher and her former counsel does not appear to elicit or seek legal advice. Bettcher bears the burden of providing a factual basis for her assertion that the document is privileged. Rabushka v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997). Absent a factual basis to the contrary, the magistrate judge's conclusion that the authorization form's purpose was not to provide or seek legal advice is not clearly erroneous. Therefore, this aspect of the magistrate judge's December 23, 2020 Order is affirmed.
The magistrate judge also concluded that the authorization form is not protected by the work-product doctrine. Bettcher disagrees, arguing that the authorization form is opinion work product and, therefore, enjoys near absolute immunity.
The work-product doctrine “limits the access of an opponent to materials ‘prepared in anticipation of litigation or for trial.' ” In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997) (quoting Fed.R.Civ.P. 26(b)(3)(A)). The party invoking the work-product doctrine “bears the burden of establishing the elements of work product immunity.” Id. at 925. To do so, the party seeking protection must establish that the materials were prepared “in anticipation of litigation, i.e., because of the prospect of litigation.” PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002). The United States Court of Appeals for the Eighth Circuit has “distinguish[ed] between two kinds of work product: ordinary work product, which includes raw factual information, and opinion work product, which encompasses counsel's mental impressions, conclusions, opinions or legal theories.” In re Green Grand Jury Proceedings, 492 F.3d 976, 980 (8th Cir. 2007) (internal quotation marks omitted). Opinion work product “enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Id. (internal quotation marks omitted).
Here, as the magistrate judge observed, Bettcher signed the authorization form on September 16, 2019, which is before she obtained her Experian credit report. Because litigation based on an FCRA claim could not have been anticipated absent knowledge that there was an error on Bettcher's credit report, the magistrate judge reasoned, the authorization form could not have been prepared because of the prospect of this specific litigation.
Bettcher argues that the magistrate judge erroneously equated the authorization form to non-privileged business advice. Experian counters that nothing in the record demonstrates that the authorization form was prepared because of the prospect of litigation rather than in the ordinary course of business. Determining whether a document was prepared in anticipation of litigation is a factual matter. Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987). Documents prepared in the ordinary course of business are not protected work product. Id.; see also United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984) .
The magistrate judge concluded that the authorization form was prepared for the purpose of obtaining Bettcher's credit report and investigating credit report inaccuracies. And the arguments to the contrary advanced by Bettcher's counsel in a memorandum of law are insufficient to satisfy Bettcher's evidentiary burden. See Rabushka, 122 F.3d at 565; see also 8 Charles Alan Wright et al., Federal Practice & Procedure § 2016.1 (3d ed.).
Bettcher maintains that she should have had an opportunity to submit an affidavit “given the sanctity of the attorney-client privilege before being compelled to disclose” the authorization form. But Bettcher had the opportunity to submit an affidavit to the magistrate judge. She failed to do so. Bettcher's argument fails to account for the fact that the party seeking protection, Bettcher, has the burden to establish that the materials were prepared “in anticipation of litigation.” PepsiCo, 305 F.3d at 817. Bettcher did not do so when opposing Experian's motion to compel, and she fails to supply legal...
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