Shackleford v. Vivint Solar Developer LLC

DENISE SHACKLEFORD, Plaintiff, v. VIVINT SOLAR DEVELOPER LLC, Defendant.

Civil Action No. ELH-19-954

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 25, 2020

MEMORANDUM OPINION

Plaintiff Denise Shackleford has filed suit against defendant Vivint Solar Developer LLC ("Vivint"), alleging a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (the "FCRA" or the "Act"). See ECF 1. This Memorandum Opinion resolves "Plaintiff's Objection To Report And Recommendation" (ECF 30, the "Objection") filed by plaintiff as to discovery rulings made by U.S. Magistrate Judge Mark Coulson in a Memorandum Opinion (ECF 28) and Order (ECF 29) of February 6, 2020. Five exhibits are attached to the Objection. ECF 30-1 to ECF 30-5. Defendant opposes the Objection (ECF 31) and has submitted three exhibits. ECF 31-1 to ECF 31-3. Plaintiff has not replied and the time to do so has expired.¹

On June 18, 2020, Vivint filed a submission advising the Court as to the status of certain discovery issues. ECF 32. And, on June 23, 2020, plaintiff moved to strike defendant's supplemental filing. ECF 33 (the "Motion to Strike").

No hearing is necessary to resolve the Objection. See Local Rule 105.6. For the reasons that follow, I shall deny the Objection in part and grant it in part. And, I shall deny the Motion to Strike.

I. Background

Plaintiff resides in Westminster, Maryland. ECF 1, ¶ 5. Vivint, a limited liability company headquartered in Lehi, Utah, sells solar energy products. Id. ¶ 6. Ms. Shackleford alleges that Vivint violated the FCRA, 15 U.S.C. § 1681, in connection with an interaction that she had with a Vivint salesperson on September 5, 2018. Id. ¶ 49.

Ms. Shackleford alleges that on September 5, 2018, she was solicited at her home by Brett Sears, an employee of Vivint. Id. ¶¶ 7, 10. Mr. Sears greeted plaintiff by name and stated that he was there on behalf of her energy provider, Baltimore Gas & Electric ("BG&E"). Id. ¶¶ 7-9. Mr. Sears then pitched "a '100% free' solar energy product," averring that the product was "provided at 'no charge to [plaintiff]' because 'Maryland receives federal money for people installing solar panels.'" Id. ¶ 12.

Mr. Sears allegedly told plaintiff that he wanted "to do a survey" to determine how much money she could save on electricity. Id. ¶ 13. He asked to see Ms. Shackleford's BG&E bills, but she was running a computer scan and could not access her bills at the time. Id. ¶¶ 14-15. Mr. Sears then asked Ms. Shackleford for the last four digits of her social security number so that he could access her electric bills using his electronic tablet. Id. ¶ 16. Plaintiff complied. Id.

Then, Mr. Sears asked to enter Ms. Shackleford's home and take pictures of her breaker box. Id. ¶ 17. When plaintiff refused, Mr. Sears replied that he had already taken pictures of her outside meter. Id. ¶ 18. Ms. Shackleford asked Mr. Sears why he had taken photos of her property without her permission, and Mr. Sears responded that it was "'just something we do so we can estimate how much money you will save with solar panels.'" Id. ¶ 19.

According to plaintiff, Mr. Sears then asked her to sign a digital box on his iPad tablet to "see if she was 'financially stable enough,'" but she "recoiled" and stated that she would not sign anything if it would allow access to her credit report. Id. ¶¶ 20-21. Mr. Sears allegedly assured Ms. Shackleford that he would not pull her credit and only needed her signature to verify that he had visited her home. Id. ¶ 22. Plaintiff signed the signature box, believing that she was merely verifying Mr. Sears' visit. Id. ¶ 24.

A few days later, plaintiff allegedly received a notification that Vivint "had made a hard inquiry on her consumer credit reports." Id. ¶ 26. Plaintiff was "shock[ed], worr[ied] and ang[ry]," id. ¶ 26, because she "did not authorize Vivint Solar to obtain her consumer report at any time." Id. ¶ 31. On September 24, 2018, Ms. Shackleford filed a complaint against Vivint with the Better Business Bureau. Id. ¶ 27. In response, on October 9, 2018, Vivint sent letters to the credit bureaus, asking to remove its inquiry from plaintiff's credit reports. Id. ¶ 28. Nevertheless, plaintiff alleges that Vivint's inquiry still remains on her credit reports. Id. ¶ 29.

This suit followed on March 29, 2019. ECF 1. Plaintiff alleges that Vivint has a pattern and practice of regularly obtaining consumer credit reports without a permissible purpose and/or by false and fraudulent representations, in violation of the FCRA. ECF 1, ¶¶ 37-43. According to plaintiff, Vivint "willfully and/or negligently" violated the FCRA. Id. ¶ 50. She seeks compensatory and punitive damages, declaratory and injunctive relief, and attorneys' fees and costs. See id.

Defendant answered the suit on May 13, 2019. ECF 4. Thereafter, on June 18, 2019, the Court issued a Scheduling Order (ECF 10), setting, inter alia, a deadline of November 18, 2019 to complete discovery. An Amended Scheduling Order was entered on November 8, 2019, extending the discovery deadline to January 21, 2020.

On November 6, 2019, plaintiff filed a "Certification of Andrew Milz, ESQ. In Support Of Motion To Compel Discovery Pursuant To Loc. R. 104.7." ECF 19. In the submission, plaintiff asserted that she had served interrogatories and requests for production on Vivint on July 11, 2019, but Vivint's responses were deficient. Id. at 1. In particular, Ms. Shackleford complained that Vivint had failed to produce evidence of similar consumer complaints; prospective customer consent forms collected by Vivint from residents in her neighborhood in September 2018; the names of Vivint employees who solicited customers in plaintiff's neighborhood at the relevant time; and training videos and print materials pertaining to the FCRA. Id. at 1-2.

On January 14, 2020, Ms. Shackleford requested a conference to discuss the pending motion to compel as well as a new discovery issue. ECF 23. Specifically, plaintiff accused Vivint of refusing to allow her to inspect an iPad containing the version of the credit consent form utilized by Mr. Sears. Id. at 2-3. Ms. Shackleford argued that the inspection was necessary because the parties disagreed as to whether the signature page on Mr. Sears' iPad contained a disclaimer authorizing a credit pull. Id. In light of these disputes, I referred all discovery matters to Judge Coulson on January 15, 2020. ECF 25. Vivint responded to plaintiff's contentions on February 5, 2020. ECF 27.

Judge Coulson resolved these discovery disputes in a Memorandum Opinion (ECF 28) and Order (ECF 29) of February 6, 2020. In particular, Judge Coulson granted in part and denied in part plaintiff's motion to compel evidence pertaining to Vivant's mental state. And, he denied plaintiff's request to inspect a Vivint iPad.

First, Judge Coulson denied Ms. Shackleford's request for Vivint to identify and produce all complaints concerning consumer reports. ECF 28 at 5-6. He reasoned, id. at 6:

Complaints regarding the conduct of other employees are not relevant to whether Mr. Sears conducted an unauthorized credit report pull during his September 8, 2018 interaction with Plaintiff. Although Plaintiff has directed the Court to other decisions either allowing for or citing the need for "other similar incidents" to show willfulness, in the main those cases dealt with challenged corporate processes, not the particular behavior of an identified employee in the field on a given occasion. That said, Defendant will produce any such complaints citing Mr. Sears' conduct.

Likewise, Judge Coulson rejected plaintiff's argument that she was entitled to all prospective consumer consent forms collected by Vivint within her zip code during September 2018. See id. at 6-7. Judge Coulson concluded that the request was overbroad because it was "not limited to forms that led to complaints." Id. Moreover, he reasoned that such forms had little relevance to plaintiff's suit because "if the forms did lead to complaints, those forms not completed by Mr. Sears do not make it any more or less likely that his interaction with Plaintiff was wrongful." Id. at 7. Judge Coulson also found that the requests were unduly burdensome, given that "producing the forms of other customers would necessarily entail an analysis of the circumstances of their interactions with Defendant's salesforce and also potentially put their personally-identifiable information under scrutiny in litigation where they are not parties." Id.

As to plaintiff's request for training videos, Judge Coulson ordered Vivint to "compel the production of training videos addressing FCRA compliance with respect to credit report pulls that were either: viewed by Mr. Sears, or available to him at the time of his training and until the time of his interaction with Plaintiff." Id. at 8. But, he rejected Ms. Shackleford's demand that Vivint turn over training videos pertaining to "sales ethics," a term that was not defined and which "could encompass matters well beyond the FCRA provision at issue." Id.

With respect to plaintiff's request for the identification of other Vivint employees who solicited customers in Ms. Shackleford's zip code, Judge Coulson found that Vivint had already disclosed the names of Mr. Sears' supervisors. Id. This was a "sufficient response at this juncture," according to Judge Coulson, because the "mere possibility that other employees might contradict Mr. Sears or his managers, without more, does not justify ordering a more expansive answer." Id. However, Judge Coulson qualified his ruling, observing that "[i]f discovery uncovers information that would specifically call into question the veracity of such testimony" he "might reconsider a narrowed version of this request to include one or more of Mr. Sears' immediate co-workers at the time of his interaction with Plaintiff." Id.

Judge Coulson observed that Vivint had produced the relevant portions of its Resident Customer...