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WHITE v. IMPERIAL ADJUSTMENT CORP
LANCE M. AFRICK, United States Magistrate Judge.
On April 14, 1997, plaintiff, Kristen K. White, was involved in an automobile accident with James and Rena Walker. Mr. and Mrs. Walker sustained personal injuries and property damages. Because plaintiff did not have insurance, Mr. and Mrs. Walker filed an uninsured motorist claim against their insurer, Imperial Fire Casualty Company (Imperial Fire), which was ultimately settled. Imperial Fire states that its net out-of-pocket expenses from the settlement equaled $7,865.00.
On April 8, 1998, Imperial Fire, as a subrogee, filed a lawsuit demanding damages against plaintiff in the Orleans Parish Civil District Court. Imperial Adjustment Corporation (Imperial Adjustment), acting on behalf of Imperial Fire, contends that it had difficulty effecting service of process because it could not locate plaintiff. During their search for plaintiff, the defendants, Imperial Fire and Imperial Adjustment, allegedly obtained plaintiff's credit report six times, without plaintiff's consent, in order to locate the plaintiff. On July 16, 1999, plaintiff was ultimately served with the state court petition.
Adjustment performs claims adjustment and other services for Imperial Fire.
The subrogation claim is currently pending in the Orleans Parish Civil District Court.
On December 20, 1999, plaintiff filed a lawsuit seeking to certify a class action against Imperial Fire, Imperial Adjustment, Equifax Credit Information Services, Inc. and Equifax, Inc. for violating § 1681(b) of the Fair Credit Reporting Act ( 15 U.S.C. 1681, et seq. "FCRA"). Plaintiff, individually and on behalf of others similarly situated, avers that defendants improperly obtained credit reports without first obtaining written consent. As of this date, the Court has not certified the class.
On July 18, 2000. during plaintiff's deposition, her attorney instructed her not to answer defense counsel's questions regarding the April 14, 1997, accident and not to answer whether she was seeking monetary relief. Plaintiffs counsel asserted that any questions not related to class certification were irrelevant. Before the Court is defendants' motion to traverse and overrule those objections.
Defendants argue that they are entitled to question the plaintiff regarding the accident in order to support their set-off defense. In order to prevail on such a defense, defendants argue that they must establish that plaintiff was the cause of the accident. Defendants state that they properly raised set-off as an affirmative defense and that Federal Rule of Civil Procedure 26(b)(1) allows discovery relating "to the claim or defense of the party seeking discovery."
Defendants' set-off defense is raised as their sixth defense. Defendants' allege that "any amounts paid by Imperial Fire to or on behalf of James Walker and Rena Walker for property damages or personal injuries, damages or losses arising out of or relating to the April 14, 1997 accident involving vehicles operated by Kristen K. White and James Walker on Camp Street in New Orleans, Louisiana, must be credited against and shall offset any damages, losses, injuries or relief sought by or awarded to plaintiff." In their third, fourth, and fifth defenses, defendants allege that plaintiff's own conduct caused or contributed to the losses, damages and injuries described in her lawsuit and that plaintiffs conduct should reduce or bar any damages sought by plaintiff. Defendants' ninth defense raises the defense of "unclean hands." Defendants' twelfth defense alleges that Imperial Fire was legally subrogated to its claims against plaintiff pursuant to La. R.S. 22:1406(D)(4).
A claim for set-off has been held to be an affirmative defense under Rule 8(c) in non-diversity cases. 5 Wright Miller, Fed. Prac. Civ. 2d. § 1271 (West Supp. 2000).
Federal Rules of Civil Procedure 30(d) provides in pertinent part:
(1) Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3).
. . .
(3) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
Defendants argue that plaintiff's counsel improperly instructed plaintiff not to answer questions regarding the accident because the information requested did not relate to any privilege, did not relate to the enforcement of any limitation on evidence directed by the Court, and did not involve the presentation of a motion under Rule 30(d)(3). According to defendants, plaintiff's counsel's only objection is relevancy which is not a proper objection.
Plaintiff argues that defendants' affirmative defenses relating to defendants' subrogation claim are not defenses to violations of the FCRA according to St. Paul Guardian v. Johnson, 884 F.2d 881 (5th Cir. 1989). Therefore, according to plaintiff, defendants' deposition questions, which attempt to establish liability related to the separate subrogation claim, are irrelevant to the class action at issue.
The Court finds that plaintiffs objections do not fall within the parameters allowed by Rules 30(d)(1) and (3). This discovery dispute, as presented to this Court, arrives through defendants' motion and not a request for a protective order.
The Court notes that defendants have never filed a counterclaim in this case. It has been noted that, "[t]he difference between a counterclaim and a set-off is that a `counterclaim is broader and more comprehensive . . . While a defendant who has asserted a counterclaim is entitled to an affirmative judgment . . . a defendant who had pleaded a set-off is not entitled to recover the excess of his claim over the plaintiffs demand.'" Crawford v. Equifax Payment Services. Inc., 1998 WL 704050 (N.D.Ill. 1998), (citations omitted).
Accordingly,
IT IS ORDERED that the motion is GRANTED. However, any request for costs
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