Motion in Limine Order: Sheldon v. Trans Union: 4/29/10

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Motion in Limine Order: Sheldon v. Trans Union: 4/29/10

Postby Administrator » Mon Sep 29, 2014 10:36 pm

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ALANA VALERIE SHELDON *
*
Plaintiff *
*
v. * Civil No. PJM 08-57
*
TRANS UNION, LLC *
*
Defendant *
O R D E R
Upon consideration of the pending Motions in Limine, oral argument having been held
thereon, it is, for the reasons stated on the record, this 26th day of April, 2010
ORDERED
1. Defendant’s Motion in Limine [Paper No. 82] is GRANTED IN
PART and DENIED IN PART;
a. The Motion is DENIED in so far as it seeks to preclude
Plaintiff from presenting evidence regarding her emotional
distress in connection with her claim;
b. With respect to Plaintiff’s witnesses:
1. The Motion is DENIED with respect to Plaintiff
Alana Valerie Sheldon;
2. The Motion is DENIED with respect to Norman
Thomas Miller, provided that Mr. Miller may be
deposed, as hereinafter set forth;
Case 8:08-cv-00057-PJM Document 93 Filed 04/29/10 Page 1 of 4
3. The Motion is DENIED with respect to Evan
Hendricks;
4. The Motion is deemed MOOT with respect to the
Wells Fargo representative;
5. The Motion is GRANTED with respect to Farid
Khair;
6. The Motion is GRANTED with respect to the
Capital One Auto Finance representative;
c. With respect to Plaintiff’s Exhibits:
1. The Motion is DENIED with respect to the
December 8, 2006 letter from Wells Fargo to
Plaintiff;
2. The Motion is GRANTED with respect to the R&R
Prof Recovery letter to Plaintiff;
3. The Motion is GRANTED with respect to the Best
Auto Sales application;
4. The Motion is deemed MOOT with respect to
Plaintiff’s credit reports from Trans Union.
2. Defendant’s Motion to Exclude Expert Witness [Paper No. 83] is
DENIED WITHOUT PREJUDICE;
3. Plaintiff’s Motion in Limine [Paper No. 84] is GRANTED IN
PART and DENIED IN PART;
Case 8:08-cv-00057-PJM Document 93 Filed 04/29/10 Page 2 of 4
a. The Motion is GRANTED in that Trans Union will not be
allowed to have its non-expert witnesses present expert
testimony or testimony not within the witness’s personal
knowledge;
b. The Motion is GRANTED in that Trans Union is limited
to calling only previously identified individuals as trial
witnesses, with the exception that it may call, if needed, a
substitute representative for Eileen Little, provided that
Plaintiff shall be entitled to depose the substitute
representative;
c. The Motion is GRANTED in that Trans Union is limited
to presenting evidence it disclosed during discovery;
d. The Motion is MOOT with respect to whether Trans Union
should be precluded from apologizing;
e. The Motion is DENIED WITHOUT PREJUDICE in that
Trans Union may testify as to the accuracy of its
procedures or credit reports;
f. The Motion is DENIED in that Trans Union may submit
appropriate voir dire to the prospective jurors regarding
their credit reports;
g. The Motion is deemed MOOT with respect to whether
Trans Union should be precluded from mentioning
attorneys fees; and
Case 8:08-cv-00057-PJM Document 93 Filed 04/29/10 Page 3 of 4
i. The Motion is deemed MOOT with respect to whether
Trans Union should be precluded from raising Plaintiff’s
claims against other Defendants, including any settlement
or offer of judgments in this case;
4. Depositions of Norman Thomas Miller and/or Trans Union’s
substitute representative for Eileen Little MAY BE TAKEN, and
if so, SHALL BE COMPLETED within 90 days of this Order;
and
5. Counsel are DIRECTED to submit joint voir dire and joint jury
instructions to the Court by no later than August 10, 2010.
/s/
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
Case 8:08-cv-00057-PJM Document 93 Filed 04/29/10 Page 4 of 4


===============

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ALANA VALERIE SHELDON *

Plaintiff *

v. * Civil Action No. 08-CV-0057-PJM

TRANS UNION, LLC, et al. *

Defendants *
* * * * * * * * * * * * *

RESPONSE TO TRANS UNION, LLC’S MOTION TO EXCLUDE EXPERT WITNESS
Plaintiff Alana Valerie Sheldon, through undersigned counsel, files her Response to Trans Union, LLC’s (TU) Motion in limine regarding her expert, Evan Hendricks, (ECF Doc. #83).
Trans Union, LLC moves for the Court to (1) find that Evan Hendricks is not qualified to testify as an expert of the subject of this case, and (2) preclude Plaintiff from calling Evan Hendricks to testify at trial.
The Motion is baseless, and wastes the Court’s and party’s time. In 2007 TU already lost the same “Daubert” challenge to the very same expert, through the same counsel in this case, and in a case involving TU’s failures under the FCRA to accurately report public records information about a consumer. Plaintiff already noted this fact in her Reply in support of her summary judgment motion (ECF document #52 at p. 6). The Motion should be denied for the reasons below, and as may be advanced at the hearing requested on this matter.
BACKGROUND
Sheldon offers Mr. Hendricks as an expert in the area of credit reporting, investigations, and credit damages. Inter alia, Mr. Hendricks’s offers his opinion that the highly automated and standardized credit reporting practices of credit bureaus like TU are a well known and understood cause of inaccuracies which should be known to TU, that TU knew or should have known that its reporting was inaccurate in relation to Sheldon, that TU had notice of the importance of accurate credit reporting, that TU did not properly consider Sheldon’s disputes, and that the damages of Sheldon is consistent with those of other victims of false credit reporting.
BACKGROUND
Evan Hendricks is one of the foremost experts in the nation on the Fair Credit Reporting Act and privacy. He is eminently, and perhaps uniquely, qualified to testify to the matters at issue here. This case is about maintaining the accuracy of private consumer information, the FCRA’s provisions to assure such accuracy, and the difficulty in getting credit bureaus to ensure this accuracy and the problems that result when they fail. Mr. Hendricks’ testimony is highly reliable and directly relevant in helping the jury understand these issues. It is based on more than 25 years of research and work in the fields of credit reporting and privacy, along with review of thousands of pages of materials not available to the general public.
Mr. Hendricks has been found qualified as an expert witness on these issues by State and Federal courts across the country. In just the last few years, he has testified as an expert witness at trial in at least six FCRA cases. He was recently retained as an expert in litigation brought by the Federal Trade Commission, the agency responsible for governmental enforcement of the FCRA, and was admitted to testify as an expert in that case despite the challenge of the defendant. Mr. Hendricks has been asked to testify before Congress on numerous occasions regarding credit reporting and privacy issues. For several years he has served as an expert on privacy issues as a member of the panel for the Social Security Administration. He has served on an advisory council for Experian on issues of credit reporting, marketing and other privacy related topics. He also passed an industry examination and earned an “FCRA Certification” from the National Credit Reporting Association.
NATURE OF THE CASE
This case arose because of TU’s repeated and wrongful reporting of a non-existent judgment on Sheldon’s TU credit reports, despite repeated disputes by Sheldon. TU changed the reporting of this non-existent judgment to a “Paid civil judgment” at one point, a credit tradeline that can only hurt Sheldon. Inaccurate reporting of credit information and the failure of the automated and standardized credit dispute system TU uses and used in Ms. Sheldon’s case is an area where Mr. Hendricks has special expertise and has repeatedly qualified as an expert.
During discovery, after initially refusing to acknowledge it in written Interrogatory Answers, at its deposition TU finally acknowledged that there was no judgment entered against Sheldon by the Arlington, VA District Court. Discovery confirmed that TU’s automated and standardized dispute system failed to address Ms. Sheldon’s repeated disputes and requests to correct this incorrect reporting of public information, and only stopped reporting the ‘judgment’ when a threat of suit was made and a lawsuit was imminent. The subject of accuracy and the dispute process and TU’s procedures on reporting of credit files generally, and public records such as judgment more specifically, are thus important issues in this case.
Mr. Hendricks can testify on these subjects and regarding industry practices, and how TU’s procedures are both similar to and differ from those of the other two national credit reporting agencies (CRAs), Experian and Equifax. He has special expertise in this area because as an expert witness in numerous cases involving all three agencies, he has been able to review confidential information produced by each of the agencies reflecting their practices and procedures for collecting, checking, transmitting and reporting credit accounts and public records information, and responding to consumer disputes. Mr. Hendricks can also testify about the credit reporting industry, the nature and purpose of credit reports, and the damages that typically result from the reporting of inaccurate information, errors on credit reports, and repeated failures to correct errors. All this information will help the jury understand the issues in the case and also place the specific events regarding plaintiff, as well as defendant, into context.
LEGAL STANDARD FOR EXPERT TESTIMONY UNDER FRE 702

Under Fed. R. of Evid. (FRE) 702, an expert may be qualified because of specialized knowledge, skill, experience, training or education. The basis for expert testimony may focus on personal knowledge or experience. Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). The FRE 702 inquiry is flexible because there are many different kinds of experts, and many different kinds of expertise. Id., citing, Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993). “In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.” FRE 702 Committee Notes.
The trial court has broad discretion in considering whether to qualify an expert. Goebel v. Denver & Rio Grande Western Railroad, 346 F.3d 987, 992 (10th Cir. 2003), citing, Kumho Tire Company, Ltd., 526 U.S. at 150 (“We can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert . . . Too much depends upon the particular circumstances of the particular case at issue.”); Smith v. Ingersoll-Rand Company, 214 F.3d 1235, 1243 (10th Cir. 2000) (Kumho makes it clear that the court’s gatekeeping function is a flexible and common sense undertaking).
Cases interpreting and applying Daubert have emphasized that the court has broad discretion in determining whether an expert’s opinion is reliable. United States v. Hankey, 203 F.3d 1160,1167 (9th Cir. 2000) (“A trial court not only has broad latitude in determining whether an expert’s testimony is reliable, but also in deciding how to determine the testimony’s reliability.”). Reliability is not restricted to the scientific method, but “may focus upon personal knowledge or experience.” Kumho, 526 U.S. at 150.
This Court has stated these same general principles regarding expert testimony:

Daubert requires that when considering the admissibility of an expert opinion under Rule 702, a federal judge must exercise a "gatekeeping responsibility" to insure that scientific, technical or other testimony based on specialized knowledge is both relevant and reliable. 509 U.S. at 589, n. 7, 600, 113 S.Ct. 2786. Before the Court can consider expert opinions of the sort relied upon here by plaintiffs, threshold standards for the admissibility of such evidence must be met. In performing its "gatekeeping" task, a district judge must engage in a two-part analysis. United States v. Dorsey, 45 F.3d 809, 813 (4th Cir.), cert. denied, 515 U.S. 1168, 115 S.Ct. 2631, 132 L.Ed.2d 871 (1995). The Court must first make essentially a reliability inquiry and determine whether the proffered expert testimony consists of "scientific knowledge." Id. Second, the Court must inquire further to ascertain whether the proposed testimony is relevant, that is, whether under Rule 702 it will "assist the trier of fact." Dorsey, 45 F.3d at 813. In determining whether scientific expert evidence properly satisfies the reliability component of the test, the Supreme Court in Daubert held that a trial court should consider several factors: (1) whether the theory or technique used by the expert can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used; and (4) the degree of the method's or conclusion's acceptance within the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; Dorsey, 45 F.3d at 813.

Adams v. Nvr Homes, Inc., 141 F. Supp.2d 554, 565 (D. Md. 2001).

Courts Have Qualified Mr. Hendricks to Testify on the Subjects at issue in this Case

Evan Hendricks has been admitted as an expert on credit reporting and privacy issues in many Federal and State courts. A complete list of the cases in which he has testified as an expert as of April 2008 is contained in his expert report prepared for this case, attached as an Exhibit to TU’s Motion in Limine, document 83-4, at pages 17-25.
Credit reporting errors have increased over the last several years resulting in more FCRA litigation. Mr. Hendricks has been particularly busy and has testified in at least six FCRA trials just since 2005:
1. Williams v. Equifax Information Servs., Orange County Cir. Ct., FL, Case #48-2003-CA-9035.
2. Valentine v. Equifax Information Services, U.S. District Court for the District of Oregon, Case #CV-05-801-JO.
3. Robinson v. Equifax Information Services, U.S. District Court for the Eastern District of Virginia, Case #1:06-cv-1336.
4. Cortez v. Trans Union, U.S. District Court for the Eastern District of Pennsylvania, Case #2:05-CV-05684-JF.
5. Sloane v. Equifax Information Services, U.S. District Court for the Eastern District of Virginia, Case #1:05-cv-1272.
6. Kirkpatrick v. Equifax Information Services, U.S. District Court for the District of Oregon, Case #CV-02-1197-MO.
All these cases involved automated credit reporting systems, like this one, resulting in errors on a credit report. Mr. Hendricks’ was qualified to testify as an expert witness, inter alia, because of his study and research in the field, as well as his access to deposition testimony and other information that is not available to the public.
As already noted, Mr. Hendricks was qualified in Sandra Cortez v. Trans Union, LLC, Case# 2:05-cv-05684-JPF (E.D. Pa.), surviving a ‘Daubert’ challenge by the same lead counsel representing TU in the instant case, Bruce Luckman. Mr. Hendricks testified at that trial, which resulted in a jury verdict for plaintiff, including a$750,000 in punitive damages against TU. This case was referenced at footnote 3 of Hendricks’ expert report, and in Sheldon’s summary judgment Rely.
TU failure to even mention this case, which it obviously knew about, calls into question both the candor of TU to the Court, and whether the Court should consider Rule 11 sanctions for TU’s bad faith arguments that Hendricks is not qualified generally and with respect to public records. Just like this case, the Cortez case involved reporting of public records, in which TU paid a contractor to gather the public records.
In addition to the six cases identified above, Mr. Hendricks was also found qualified by the Ninth Circuit in a case involving the privacy rights in the FCRA brought against TRW, the predecessor of Experian. Andrews v. TRW, Inc., 225 F.3d 1063 (9th Cir. 2000), rev’d on other grounds 534 U.S. 19, 122 S. Ct. 441 (2001).
TU is thus clearly mistaken in claiming that Mr. Hendricks “lacks the requisite qualifications to opine on the subject of this lawsuit.” TU even misleads the Court, by asserting that Mr. Hendricks’ “entire professional background is as an author and reporter on privacy matters.” TU Memo. at 1 (emphasis added). This assertion ignores Mr. Hendricks’ professional experience testifying in court cases, and other aspects of his extensive background as a national privacy expert, as described below, and in his resume and qualifications at the back of his Rule 26 expert report.
Mr. Hendricks has Studied the Credit Reporting Industry for 25 Years
Mr. Hendricks’ specialized experience and knowledge goes beyond his involvement in dozens of FCRA cases. Mr. Hendricks has closely studied the credit reporting industry for more than 25 years. He has published the Privacy Times newsletter, which monitors the credit reporting industry, since 1981, over a quarter of a century.
In 2004, Mr. Hendricks wrote the authoritative book on credit reporting: Credit Scores and Credit Reports: How the System Really Works, What You Can Do (Privacy Times 2004). Mr. Hendricks’ book, nearly 400 pages in length, contains chapters specifically addressing the issues in this case: identity theft, mixed credit reports, and the failures of credit reporting agencies to correct errors. This coverage often arises from and discusses actual litigated cases.

Mr. Hendricks has obtained Extensive Knowledge despite the Secrecy maintained by the Credit Reporting Industry

The credit reporting industry tries to maintain tight control over the operations of the industry. Three large national companies dominate the field, and they protect their companies’ proprietary data very carefully. An outsider is simply not allowed access to their operations. For that reason, Mr. Hendricks is nearly unique in his knowledge and understanding.
Through Mr. Hendricks’ role as an expert witness in more than 30 credit reporting cases, he has reviewed dozens of deposition transcripts from employees of credit reporting agencies. He has examined thousands of pages of the agencies’ internal documents. Access to this volume of information is nearly impossible for anyone other than a credit reporting agency employee. This information is not available to the public because of the credit reporting agencies’ policies to demand that testimony and documents be placed under protective orders. In Kirkpatrick, the Oregon federal district court found Mr. Hendricks’ knowledge of the internal processes of credit reporting agencies to be a particularly important body of knowledge that would otherwise be kept from the jury. Judge Mosman in that case stated:
The sources of his study are sufficient to qualify him as an expert both with regard to what he has read, and that includes not only his own paper that he puts out, but the deposition testimony is a sufficiently precise and unavailable source of expertise that it would be helpful to the jury to hear from someone who has assimilated that sort of information.
The more precise question, and really the question raised by the defense is, is his testimony in this case supported by any of that sort of research and expertise on particular issues that are raised. And my answer to that is that on most of them, I believe that his testimony is sufficiently supported by his own expertise; that is, that what he offers to this jury on the issues presented in this case is sufficiently supported by his general expertise to satisfy Rule 702.

A copy of the transcript from that hearing is attached as an Exhibit to this Response.
Only an expert like Mr. Hendricks can assimilate this huge body of knowledge into a useful context, based on his experience with industry groups and with Congressional hearings on the credit reporting industry. The Kirkpatrick court explicitly recognized this aspect of Mr. Hendricks’ experience in ruling his testimony was admissible and helpful to the jury.
Finally, Mr. Hendricks’ has acquired knowledge of the operations of all three agencies, Experian, Trans Union and Equifax. Not even the top management of each agency has this breadth of knowledge because the agencies compete with each other and do not share information on internal policies and procedures. This knowledge allows Mr. Hendricks to compare the procedures of each agency and learn how one does a better or worse job than the other in complying with the FCRA mandates to protect consumer privacy, assure accuracy and properly respond to consumer disputes.
The FTC Recognizes Mr. Hendricks’ FCRA Expertise
The FTC is responsible for promulgating regulations and for enforcement of the FCRA. It hired Mr. Hendricks in an action it brought against Accusearch for violation of the FTC Act, involving the privacy of telephone records. FTC v. Accusearch, Inc., Case No. 06-CV-105-D (D. Wy.). Accusearch sought to exclude Mr. Hendricks’ testimony. The court denied the motion, finding that Mr. Hendricks was qualified as an expert on the confidentiality of telephone records and the harms caused by release of those records.
Congress Recognizes Mr. Hendricks’ Expertise
Mr. Hendricks has repeatedly testified before both houses of Congress concerning the credit reporting industry and consumer privacy. In 2003, Mr. Hendricks was one of only six witnesses the Senate Banking Committee invited to testify on proposed amendments to the FCRA. At this hearing, Maryland Senator Paul S. Sarbanes expounded on Mr. Hendricks’ particular expertise “Mr. Hendricks was the founder of the Privacy Times newsletter, has been its editor for 23 years, and has testified before Congress a number of times on Fair Credit Reporting Act issues. His expertise has been helpful in the past, and I am sure will continue to be helpful as the committee examines the functioning of the credit reporting system and the ways in which consumer’s credit reports are affected.” See, Accuracy of Credit Report Information and the Fair Credit Reporting Act: Hearing Before the U.S. Senate Committee on Banking, Housing and Urban Affairs, July 10, 2003 (statement of Senator Sarbanes).
That same year, Mr. Hendricks testified three more times before Congress and once for the FTC as it developed amendments to the FCRA. Some of Mr. Hendricks’ recommendations were incorporated into the amendments to the FCRA enacted in 2003.
In 2005, Mr. Hendricks testified three more times before Congress on credit reports and related issues. In June 2006, he testified in a House Energy and Commerce Subcommittee hearing on “Privacy in the Commercial World II.” In June 2007, he testified in the House Financial Services Committee hearing, “Credit Reports: Consumers’ Ability to Dispute and Change Information.” Finally, in July 2008, he testified at the only hearing on credit reporting and scoring issues held by Congress that year.
Experian Recognizes Mr. Hendricks’ Expertise
Experian, a national credit reporting agency and TU competitor, has recognized Mr. Hendricks as an expert in the credit reporting field. In 2002, Experian asked him to serve on its Consumer Advisory Council, which addressed various credit reporting, marketing and privacy-related topics.
Mr. Hendricks was Recognized as an Expert by the Social Security Administration
Since August 1998, Mr. Hendricks has served under contract as a member of the Social Security Administration’s Panel of Privacy Experts. As a panel member, he advises the agency on a host of issues related to the confidential nature of the information maintained by the agency.

MR. HENDRICKS’ EXPERT TESTIMONY IS RELIABLE AND WILL HELP THE JURY
Background Information on Credit Reports and Credit Scores
Mr. Hendricks testimony about the nature and purpose of credit reports and credit scores will provide the jury a helpful context for all the issues in this case. The public knows very little about the credit reporting industry. Mr. Hendricks’ knowledge of the credit reporting industry will give the jury a context and help them understand industry terms like mixed file, identifier, furnisher, subscriber, inquiry and matching.
Trans Union will attempt to offer its own witnesses on these subjects. However, plaintiff must present her evidence before TU calls a witness. TU cannot claim a monopoly on this information and preclude plaintiff from presenting a witness on these matters.
Inaccurate and disputed credit file information
Mr. Hendricks can offer expert testimony on the two primary issues in the case: procedures for ensuring maximum possible accuracy, and for responding to consumer credit disputes. He can testify to the prevalence of reporting inaccuracies, and to FTC reports on consumer complaints credit report mistakes. He can explain the problems with over-reliance on an automated and standardized dispute process, of outsourcing dispute personnel to contractors and/or to other countries (such as TU does to India), and of the importance of manual processing of consumer disputes to actually and successfully correct inaccurate information. He can discuss the credit reporting industries’ knowledge of the inaccurate information on credit reports over the last ten years, changes to procedures to handling disputes and correcting errors, and the effect that inaccuracies has on a consumer’s credit file. He can discuss the Congressional actions and amendments to the FCRA in response to complaints about inaccurate information. All of this information, along with other testimony, will help the jury better understand the claims plaintiff is making and the context in which TU’s actions must be judged. TU has not even proffered an expert on any of these topics.
Public Records Files
The concept of “public records” information on credit reports in not generally understood outside the credit reporting industry. Yet, it is the major issue in this case because it was TU’s collection and automated reporting of a non-existent ‘judgment’ which led to its publication and reporting of inaccurate information and causing damages to plaintiff.
Mr. Hendricks’ testimony is essential on this subject for many reasons. First, he can explain what is meant by “public record.” TU’s argues that a ‘furnisher’ of information is not involved because the inaccurate information came from TU’s public record vender. That is incorrect. When TU reports public records information, TU is obtaining information of interest to creditors or potential creditors. The source of this information, whether construed as the Virginia court itself, or TU’s vendor, is in either instance a source other than TU. TU’s automated reporting system processes and treats the information the same or similarly, just as if the information had come from a collection company such as R&R or LVNV. Mr. Hendricks can explain how TU’s procedures result in reporting of credit information, including public record information.
Second, he can testify regarding the system used by TU in creating credit files. Third, he can discuss methods to prevent inaccurate information in files, and how to correct it after it occurs. These are all obscure technical subjects beyond the knowledge of jurors, even if they sought to acquire this information, because TU does not release it to the public. In this case TU requested that the testimony of its corporate designee for public records information and for certain of its public records codes used by its records contractor be kept confidential, and only agreed to disclosure after Plaintiff was forced to file a motion to seal this information during summary judgment briefing.
Mr. Hendricks can assist the jury in understanding the consequences for consumers who have in accurate information, whether the source is a credit furnisher or a public record. Such testimony included a discussion of the industry’s long-standing knowledge of the problems of inaccurate reporting, the automated process for disputes about those inaccuracies, and agreements made by the three national agencies in the early 1990’s with the FTC and many states attorney generals to adopt procedures to prevent these problems. Mr. Hendricks was admitted to testify as an expert concerning inaccurate information in a trial against TU in the Cortez case in 2007 involving inaccuracy and public records.
TU also argues that “the complaints of disgruntled consumers are inadmissible hearsay and not competent to support Mr. Hendricks’” opinions. TU Memo. at 5, top. TU is wrong, first as a threshold issue, because credit reporting errors in general are so widespread that is common knowledge among the public of which the court can take judicial notice. Second, as an expert witness, Mr. Hendricks can testify as to the FTC’s findings, some in annual reports, regarding consumer complaints about credit reporting errors.
TU’s focus and over emphasis on credit scores belies its efforts to get consumers to buy into its services offering credit scores for sale. Ms. Sheldon is not asserting TU’s conduct brought her credit score down by some specific number, and Mr. Hendricks is not purporting to testify on this. He can certainly state the obvious, that reporting a judgment on a consumer’s credit report is reporting adverse information that will lower the credit score.
TU’s asserts that Hendricks has not read any relevant information regarding TU’ and its public records vendor. TU Memo. at 2, top. That is only because in April 2008, when Mr. Hendricks prepared his expert report for this case, and in June 2008, when Mr. Hendricks was deposed by TU, TU’s designated representative for public records, the deposition of William Stockdale had not yet been taken. Stockdale was deposed by Plaintiff in September 2008. Hendricks has been provided and reviewed the deposition transcripts of both Stockdale, and Eileen Little, TU’s other corporate designee deposed in this case.
TU’s argument at p. 9 (top) improperly blends into one the two separate and distinct statutory claims Plaintiff asserts under 15 U.S.C. § 1681e(b) (Count 1) for failing to ensure maximum possible accuracy, and § 1681i(a)(1) (Count 2) for failing to do a reasonable investigation. Mr. Hendricks can testify as to these, and also as to credit damages, within the recognized limit that he will not testify to emotional distress.
TU attacks Mr. Hendricks's observations concerning Sheldon's damages in this case. In so doing, TU ignores the core purpose of these opinions. Principally, Mr. Hendricks will offer testimony concerning the risks which are known in the industry to arise from adverse credit reporting. This testimony is relevant to the negligence claims. Specifically, the negligence claim will require the jury to balance the potential harm with the benefits of the reporting. Mr. Hendricks's testimony can provide crucial background information on the availability of information concerning these potential harms. To the same end, his testimony could also show that TU knew of risks to consumers and failed to take proper measures to protect against those risks. This testimony could likewise support a finding that the Sheldon's damages were reasonably foreseeable by TU. And while Mr. Hendricks's observations are not derived from personal knowledge, Rule 704 does not require this. Daubert, 509 U.S. at 592.
Mr. Hendricks has relied upon facts, manuals and information provided by TU, and as such may properly rely upon this information in order to render an opinion

TU attacks Mr. Hendricks for his opinions arising out of his review of the factual information about this case, including the testimony of the witnesses. Such attacks have been expressly rejected by the United States Supreme Court:
Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer
opinions, including those that are not based on firsthand knowledge or observation
(emphasis added).

Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. In any case, the United States Supreme Court has specifically recognized that an expert’s underlying conclusions are an improper focus of a Rule 702
inquiry:
The focus, of course, must be solely on principles and methodology, not on the
conclusions that they generate (emphasis added).

Daubert, 509 U.S. at 595, 113 S.Ct. at 2797. Here, Mr. Hendricks' opinions in this area are based upon the testimony TU's own witnesses, its procedural manuals, its discovery answers and its own designated Rule 30(b)(6) witnesses. TU's conclusion that Mr. Hendricks has insufficient factual basis to draw and conclusions is baffling. TU offers no explanation why it should be permitted to attack the factual basis supporting Mr. Hendrick's conclusions where TU has itself supplied the evidence and documents from which they are drawn.
In addition to challenging Mr. Hendricks's status as a qualified expert, TU claims that Mr. Hendricks's opinions do not rest upon reliable principles and methods. In specific, TU attacks Mr. Hendricks conclusions concerning the reasonableness of the investigation at issue. Contrary to this naked assertion, Mr. Hendricks' conclusions rest upon sound analysis and sworn testimony in this case. A review of Mr. Hendrick's conclusions concerning TU's actions in this case reveals not only that the conclusions rest upon sound analysis, but also that the analysis relies upon the documents and testimony of TU in this case. See Hendricks expert report at pages 1 and 2.
The conclusions by Mr. Hendricks rest upon commonly understood phrases, industry practices which are not in dispute, and the testimony of the witnesses. Mr. Hendricks's analysis proceeds from undisputed facts provided by TU itself and subjects that testimony to scrutiny using standards that are accepted by the credit industry itself. Simply put, there is no basis for TU's conclusion that Mr. Hendricks's opinion unsupported by reliable principles.
TU also attacks Mr. Hendricks’ experience with public records cases, arguing it is limited to reviewing “an almost 20 year old newspaper article related to TRW” and “an unrelated case in which he was not an expert.” TU Memo at 3, middle. First, pages 16 and 17 of Hendricks’ expert reported cited by TU in support of its contention are not even correct.
Second, and notably, TU quietly hides the fact that the “unrelated case” was a public records case involving Trans Union, Soghomonian v. United States, 278 F. Supp. 2d 1151 (E.D. Ca. 2003). TU also fails to mention another public records case involving TU, in which a jury assessed $750,000 in punitive damages against TU for wrongfully including on a woman’s TU report false information from a U.S. Treasury Department ‘watchlist.’ Cortez v. Trans Union, LLC, Case # 2:05-CV-5684-JF (jury verdict Apr. 26, 2007), see Hendricks’ expert report at 5. Finally, the “almost 20 year old” incident was actually 18 years ago and involved Experian’s predecessor (TRW). TU’s actions after receiving Plaintiff’s Disputes
Mr. Hendricks can testify as to TU’s conduct after plaintiff advised TU that the Arlington District Court “judgment” information was incorrect, and that she had contacted the court herself to confirm this fact, and requested TU to stop reporting the information on her credit report.
Mr. Hendricks has expertise in this area because of his knowledge of the FCRA requirements on TU to respond to a consumer dispute, his experience in handling other cases involving consumer disputes, his review of TU deposition and trial testimony and documents from many other cases regarding its procedures in handling consumer disputes, his knowledge of other agencies’ procedures in responding to consumer disputes, and the information available to him regarding plaintiff’s particular disputes.
TU is quite off base in arguing that nothing in Mr. Hendrick’s experience or training gives him expertise in the area of credit report disputes. Numerous courts have rejected similar arguments.
TU is also incorrect in contending that Mr. Hendricks wrote his report when he had no knowledge as to what TU did in response to plaintiff’s disputes. Before he wrote his report, Mr. Hendricks spoke with plaintiff’s counsel who provided him the details as to all the disputes and concerns that plaintiff communicated to TU. In addition, Mr. Hendricks reviewed hundreds of pages of documents maintained by Sheldon and TU related to this case, including all her dispute letters to TU, all of TU’s responses and any credit reports TU sent to plaintiff after she started disputing. That is certainly not “no knowledge.” By reviewing those documents, Mr. Hendricks could see that TU was still reporting false information, and had not agreed to stop reporting the non-existent ‘judgment’, even after plaintiff complained about the false reporting and its effect on her. Mr. Hendricks could also see that TU could not even get the public records information about plaintiff correct even when it tried to, by changing the status of the non-existent ‘judgment’ to a ‘paid civil judgment”, despite TU having the contact information for the court and ability to resolve this in a matter of minutes.
TU is wrong in stating that Mr. Hendricks can not testify regarding public records. The reporting of public records information on a credit report is no different that reporting of credit card or bank account information. The only difference is the information source. As noted, Mr. Hendricks has already testified against TU in a public records case. Industry Practices
Mr. Hendricks can testify about industry practices and the procedures of TU, Experian and Equifax. Because of his position as an expert witness with access to confidential information regarding the practices of all three credit reporting agencies, Mr. Hendricks is one of the few people that can compare the practices of TU with those of Experian and Equifax.
Such a comparison is particularly relevant in this case, because only TU incorrectly, and repeatedly, reported the false ‘judgment.’ Mr. Hendricks can testify or provide insight as to why TU alone made this error, and made it repeatedly despite Sheldon’s disputes. It is important that the jury hear how other credit reporting agencies governed by the FCRA handled the same type of information such as public records, so it can judge whether TU negligently (or willfully) failed to comply with the FCRA and similar Maryland law.
Damages Resulting from Errors on Credit Reports
Mr. Hendricks can offer helpful testimony to the jury regarding the types of damages that are common to victims of inaccurate credit reporting errors. These include the damage that occurs when a person loses control over their personal information, as happened with plaintiff.
Mr. Hendricks does not claim to be an expert medical witness and will not offer medical testimony. Rather, he offers knowledge as someone who is aware of the types of damages resulting from these events because of his research in the area, and work with victims of credit reporting errors. As an expert on personal privacy, Mr. Hendricks can testify on the types of damages that occur to credit reporting victims, regardless of whether the false or incomplete information concerns a credit card, bank account, loan or public record.
CONCLUSION
Mr. Hendricks has repeatedly been recognized as an expert qualified to testify on FCRA and privacy issues by State and Federal courts, retained by the FTC as an expert, hired by the Social Security Administration to advise it on privacy issues, and invited by Congress to testify on the FCRA and consumer privacy. His testimony will be helpful to the jury in understanding the evidence presented and determining if Experian has violated the FCRA. Plaintiff respectfully requests that the court deny Experian’s motion to exclude the testimony of Evan Hendricks. Plaintiff can make Mr. Hendricks available for any hearing on this Motion.


Respectfully submitted,

/s/ Michael C. Worsham
Michael C. Worsham, Esq.
1916 Cosner Road
Forest Hill, Maryland 21050-2210
(410) 557-6192(410) 557-6192; Fax: (410) 510-1870
mcw@worshamlaw.com
Maryland Federal Bar # 25923

Attorney for Plaintiff


REQUEST FOR HEARING

Plaintiff requests a hearing on this Motion.


CERTIFICATE OF SERVICE

I certify that on September 18, 2009 a copy of this document was served via the ECF system.

/s/

Michael C. Worsham, Esq.

==============

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ALANA VALERIE SHELDON *

Plaintiff *

v. * Civil Action No. 08-CV-0057-PJM

TRANS UNION, LLC, et al. *

Defendants *
* * * * * * * * * * * * *

PLAINTIFF’S RESPONSE TO TRANS UNION, LLC’S MOTION IN LIMINE
Plaintiff Alana Valerie Sheldon, through undersigned counsel, files her Response to Trans Union, LLC’s (TU) Motion in Limine (ECF document #82).
Trans Union, LLC moves for the Court to prevent Ms. Sheldon or its counsel from introducing or attempting to introduce the following evidence at trial: (1) certain evidence regarding emotional distress claims, (2) testimony from every witnesses other than the parties themselves, (3) certain Exhibits. The Motion should be denied for the reasons below, and as may be advanced at the hearing requested on this matter.
BACKGROUND
Plaintiff Sheldon claims for negligent violations of the federal Fair Credit Reporting Act (FCRA), and similar claims under the Maryland Consumer Credit Reporting Agencies Article, CL §§ 14-1201-1214 (Counts 5-7), are to be tried before a jury. The claims arise from TU’s repeated false reporting of a non-existent ‘judgment’ of the Arlington, Virginia District Court on Sheldon’s TU credit reports, and Sheldon’s damages arising from this reporting.
I. Sheldon suffered damages and should be allowed to present her evidence.
Trans Union first argues that Sheldon should not be allowed to present any evidence of emotional distress claims. There is no basis for this Motion. The Motion is actually an untimely Motion for reconsideration of the summary judgement ruling already made on this point. TU choose not to move to reconsider. TU’s untimely Motion to reconsider should not be entertained.
The summary judgment Motion and briefing which TU untimely seeks to have the Court revisit is an issue already decided, and backed by Sheldon’s deposition testimony that she suffered emotional distress from both TU’s repeated inaccurate reporting, and TU’s ignoring her disputes about the non-existent ‘judgment.’ This evidence is in her deposition transcript, which TU provided as an Exhibit to its own summary judgment Motion, which Sheldon highlighted in her own summary judgment briefing, and which is provided in relevant part once again below:
Q: Ms. Sheldon, what harm do you claim that Trans Union has caused you?

A: Lots of emotional distress, frustration, having my documents denied and rejected, an endless letter campaign that went on for a year and a half, time I had to take off from work to go to court to find out what was going on and to get copies of any papers, being denied credit, having to hire an attorney, not hire an attorney but secure an attorney, seeking help from a credit repair company, and doing a lot of research on and off-line as to how this whole credit system worked. It was just a very frustrating period.

Q: Anything else?
A: I was at my wits end trying to figure this whole puzzle out. I think I pretty much covered everything.

See Sheldon August 13, 2008 deposition transcript at p. 27-28, attached as TU Motion for Summary judgment Exh. 2. Sheldon testified that this frustration has continued to this day. Id. at p. 28-29. She also paid approximately $300 to the credit repair company. Id. at 29. Sheldon also testified and specifically linked her frustration to conduct of TU, such as calling her disputes ‘frivolous’ when of course they were not:

Q: Ms. Sheldon, you stated that you have suffered emotional distress that you attribute to Trans Union. Please describe that emotional distress.

A: Emotional distress from trying to communicate with them, submitting documents to them regarding the information on my report, the fact that the chose to call it frivolous is very frustrating, the fact that I sent them documents and they’re saying they refused to accept my documents. It was frustrating. I didn’t know what the next step would be, so I kept on plodding forward and not being able to get a resolution from Trans Union directly. I had to then employ, I had to then go to an attorney for advice and help. That is frustrating. I don’t know how else to underline the word frustration. If no one responds to your request or explanation and their response was that everything was verified when I couldn’t even get them to send me verification documents, that’s frustrating.
Not understanding the whole credit system, procedures, having to go through reading books and going online, doing research for hours, that’s frustrating.
The whole legalese behind it, that’s frustrating because I’m not a legal person. That’s my short list.

Q: So is that your description of the emotional distress that you believe that Trans Union has caused you.
A: You know, sleepless nights trying to figure out how I’m going to get this whole thing resolved, what’s the best way to communicate and negotiate this, is there a way to do this amicably or do I have to take serious action.

Id. at 43. This is ample and specific evidence of emotional distress damage arising directly from Trans Union’s reporting and failure to correct the false ‘judgment.’
To avoid acknowledging these obvious damages, TU again tries misdirection, conflation and confusion in its Motion in Limine that it tried in its summary judgment briefing. TU argues that Sheldon’s outrage about TU actually arose instead from other sources, or the credit reporting agency’s (CRAs) mantra that the distress evidence is “too vague and conclusory.” TU Mot. at 3.
Whether Sheldon had other problems, including other credit problems, in her life does not change or eliminate TU’s conduct and her specific damages arising from it. TU argues that Sheldon “claims to have been frustrated by other occurrences, none of which was caused by or connected to Trans Union.” TU Mot. at 4. Mere frustration is not the same as emotional distress, so whether Sheldon experienced the list of frustrations listed by TU on p. 4 of its Motion from other sources or events, does not effect her emotional distress arising directly from TU’s reported credit reporting failures. TU conflates ‘frustration’ with ‘emotional distress.’
TU’s logic is as faulty as it is revealing of its arrogance: because a consumer was frustrated because of inaccurate information reported by another creditor, collection company, or CRA (i.e. Experian or Equifax), the consumer logically suffered no problems from us (TU). This logic is flawed, both because a person can have more than one trouble in their life at the same time, just as they can have more than one source of happiness, and secondly, because TU’s highly automated and standardized reporting system can be, and here was, the source of more than one credit reporting inaccuracy and error besides the false ‘judgment.’
Addressing TU’s conflated ‘frustration” list, the Wells Fargo credit denial arose from TU’s false reporting, wholly but at least in part, as plainly revealed on the adverse action letter Sheldon received from Wells Fargo, and which was included in the summary judgment briefing. Her resort to a credit repair organization - “victimization” as TU calls it - was directly prompted by TU’s own inaccuracies. TU’s continual ignoring of Sheldon’s own disputes, just as TU completely ignored those made earlier by the credit repair company, proves that TU would never correct its inaccuracy regardless of who disputed, and despite the money Sheldon spent in good faith trying to fix the inaccurate reporting done by TU - not by the credit repair company. Sheldon gave up using the credit repair company, and experienced first hand TU’s ignoring of her own personal disputes, causing emotional distress after the credit repair company was no longer a part of her disputes. What TU is really trying to do is prevent the jury from learning that Sheldon made disputes both through a credit repair company and on her on, and that TU rejects out of hand any disputes it believes comes from a credit repair company, regardless of the merit of the dispute, exactly as TU did in Sheldon’s case, and treats consumers like Sheldon no or little better than the credit repair company.
Further addressing TU’s conflated ‘frustration’ list, TU’s suggestion that Sheldon filed and participated in this lawsuit created frustration for Sheldon is irrelevant to TU’s illegal conduct which both occurred before, and necessitated, this suit. Sheldon’s disputes with other CRAs are irrelevant because TU, and TU alone, reported the false ‘judgment.’ TU’s claim (Mot. at 4) that Sheldon owed a ‘valid’ debt to AT&T Platinum Universal Card is not established, and is another TU misdirection away from TU’s reporting of an alleged debt owed to a completely separate entity, LVNV Funding (who asserted owning the Citibank/AT&T Platinum account), and with whom Sheldon’s affirmative claims against in this suit were resolved.
Finally, TU argues that Sheldon was frustrated that her credit score was not high enough in her own mind to apply for a mortgage. TU Mot. at 5, top. TU leaves out the fact that her belief arose directly from TU’s continued reporting of the false and non-existent judgment, and, Sheldon’s reasonable uncertainty of if and when this would ever get corrected - so that she could then apply for a mortgage - because of TU’s intransigence.
In summary, TU’s request that Sheldon be “barred from presenting any claim, evidence or arguments for emotional distress damages” is an untimely Motion to reconsider summary judgment, and is a completely unsupported argument that should be denied.
II. Trans Union’s Motion in Limine regarding Plaintiff’s Trial Witnesses should be denied
Sheldon addresses each of TU’s separate evidentiary requests in turn.
1. Sheldon’s testimony regarding the Wells Fargo credit denial.
Sheldon’s summary judgment Reply (ECF document #67) reprinted the relevant portion of Wells Fargo’s December 6, 2006 credit denial letter to Sheldon:
- Repossession, foreclosure or judgment
- Delinquent part or present credit obligations

Emphasis added. Judgments are among the most adverse or negative credit tradelines that appear on credit reports, a fact Plaintiff’s expert can testify to. TU never produced evidence from any person at Wells Fargo with actual personal knowledge of this credit denial to Plaintiff. TU also failed to produce any person to rebut the fact that after the false ‘judgment’ was removed from her TU credit report, Sheldon obtained credit/loan successfully when purchasing a car about a year later in October 2007 with Best Auto through Capital One Auto Finance.
TU next states that it “objects to plaintiff’s anticipated testimony to the effect that: 1) LVNV and R&R Recovery are inaccurate entries;” This quoted language is the sum total of TU’s argument presented on this point. There is no reasoning or argument or referenced exhibits, just TU’s bare objection.
Without more than a bare objection to respond to, Sheldon can only respond and argue that it is premature to prevent testimony concerning other accounts of Sheldon’s. It will be impossible for Sheldon to recount her dispute history with TU without discussing other accounts, at least in part.
More to the point, TU’s reporting of other accounts of Sheldon, especially at the same time TU inaccurately reported the false ‘judgment,’ is relevant to whether TU was negligent in either its initial procedures, which are required by the FCRA to ensure maximum possible accuracy (15 U.S.C. § 1681e(b)), or in its dispute resolution procedures requiring TU to do a reasonable investigation (15 U.S.C. § 1681i(a)). The same automated and standardized credit reporting system of TU’s handled all of Sheldon’s disputes for every reported credit tradeline. Evidence of TU’s system’s inherent flaws in maintaining maximum possible accuracy, and to do reasonable investigations, is relevant to establishing TU’s negligence. Sheldon’s expert will also be able to explain this system.
TU objects to testimony that Sheldon was granted a loan by Best Auto after the deletion of the false ‘judgment’ and that “she speculates without foundation, personal knowledge or basis, that the deletion and subsequent grant of credit are connected.” TU Mot. at 6. Again TU is only making a bare objection, and a bad faith one at that. Sheldon experienced personally both the denial of credit by Wells Fargo in 2006, TU’s continued reporting of the non-existent ‘judgment’ through and until March 2007, and then her success in obtaining credit from Best Auto Sales in October 2007. TU’s bare objection lacks any supporting argument, and should be denied.
2. Norman Thomas Miller
Mr. Miller is Plaintiff’s husband. TU says it “objects on relevance grounds.” TU Mot. at 6. TU’s argument is actually not about relevance, but rather is directed towards alleged surprise.
TU learned about Mr. Miller when they deposed Plaintiff. TU had an opportunity if they wanted to depose Mr. Miller, but chose not to. Spouses are obviously going to have some knowledge of their own spouses conditions in life, including an ordeal such as Ms. Sheldon’s with repeated credit reporting problems with TU. TU asked Sheldon at her deposition about Mr. Miller’s knowledge about the lawsuit, and she answered that question, including the obvious and expected fact that Mr. Miller “knows what I have been going through.”
Mr. Miller can certainly testify to corroborate Ms. Sheldon’s emotional stress and general state. TU’s objection to Mr. Miller trying to deny this corroborating testimony should be denied.
3. Evan Hendricks - Plaintiff’s expert - see Plaintiff’s separate filed Response to TU.
4. Wells Fargo representative
TU objects to a Wells Fargo witness because it asserts the Court granted TU’s motion for summary judgment on Sheldon’s claim respecting the Wells Fargo credit denial.
Sheldon claims she was denied credit by Wells Fargo, at least in part, because of the inaccurate ‘judgment’ reporting. The December 8, 2006 Wells Fargo denial letter to Sheldon plainly states this. A Wells Fargo representative is needed to overcome any hearsay objection to this letter. Plaintiff’s FCRA claims consist of a failure of TU, and damages resulting from the failure. Sheldon should be able testify to the effect that this letter had on her, including both the denial itself, and how it discouraged her from applying for other credit, including trying to get a loan to accomplish her “dream” to move to Florida, which she has since done after the false ‘judgment’ was deleted. Sheldon was discouraged and effectively prevented from applying for credit because of this false ‘judgment’ regardless of any other credit problems she may have had. The Wells Fargo denial letter is hard evidence that the false ‘judgment’ was causing, or at the very least, contributing to credit denials. Her expert will testify to this adverse effect of this lost credit opportunity, and to the loss of control over one’s own credit. TU’s motion to deny a Wells Fargo representative should be denied.
5. Farid Khair - Best Auto Sales
TU objects to Sheldon presenting corroborating evidence that she obtained credit in November 2007 from a representative of the auto dealer from whom she obtained credit. Sheldon disclosed the fact of this successful credit transaction via the Best Auto sales purchase contract, Exhibit 28 to Sheldon’s summary judgment Motion (ECF 45-30) documents. The 10-10-2007 signature on this document is not clear. At the very least Sheldon should be allowed to call Mr. Khair, or the actual signatory, to this sales contract.
6. Capital One Auto Finance
TU makes a bare objection to “anticipated testimony.” TU, however, anticipates the wrong testimony. Sheldon was approved for auto financing by Capital One Auto Finance when she purchased her car from Best Auto Sales in October 2007. A Capital One representative would be testifying to this, not that “prior to deletion of the judgment plaintiff was not eligible for an auto loan” as TU mis-anticipates at page 8 of its Motion. Since TU has moved to prevent the wrong testimony, its Motion is erroneous and misdirected, and should be denied.
III. Trans Union’s Motion in Limine regarding Exhibits should be denied.
Sheldon addresses each of TU’s separate evidentiary Exhibit objections in turn.
15. Wells Fargo - December 8, 2006 denial letter - 2 p.
For the reasons discussed above, TU’s motion regarding Well’s Fargo should be denied. This denial letter is hard documentary evidence that the false ‘judgment’ caused, at the very least in part, to a credit denials, and delayed her dream to move to Florida. It is also evidence that TU did indeed, disclose this erroneous information to others.
25. R&R Professional Recovery letter to Sheldon - Nov. 16, 2007.
TU fails to provide or reference the letter to which TU objects. This letter was provided by Sheldon as Exhibit 27 to her summary judgment Motion. The letter was sent after TU finally removed the false ‘judgment’ in March 2007. The letter states that for an American Radiology account which R&R had reported about Sheldon to TU that “This account was reported in error.” No wonder TU failed to provide or cite the content of this letter in its Motion.
The letter substantiates Sheldon’s claims that TU’s automated reporting system negligently caused inaccuracies, and failed to correct errors after repeated disputes. In particular it supports Sheldon’s contentions that TU ignored Sheldon’s disputes because of the automated nature of TU’s dispute process. Plaintiff’s expert will explain the problems inherent in TU’s automated reporting processes used to handle Sheldon’s credit file, regardless of what type of account or public record is being reported or disputed. TU’s automated reporting and failure to correct the R&R credit tradeline is relevant to Sheldon’s FCRA claims of negligent reporting and a negligent dispute reporting process.
TU’s asserts without any further argument that the letter is not authenticated, irrelevant and hearsay. The letter is actually a confirmation to Sheldon of what was sent to TU by R&R through the same automated system maintained by TU. That makes it relevant. It is not hearsay, or if so, is subject to an exception under FRE 803(6) (business records) and/or FRE 807 (residual exception) because the same information (R&R’s instruction to delete the account) was sent to TU. TU presents no basis for the letter to not be what it represents. TU’s Motion should be denied.
26. Best Auto Sales - Sheldon application - October 10, 2007.
TU objects to this credit application, which forms the background to Sheldon’s successful obtaining of credit in October 2007. It directly supports her position that she refrained from applying for credit until after the false ‘judgment’ was finally removed in March 2007.
TU argues that unidentified Wells Fargo testimony “established that plaintiff’s credit troubles were caused by the accurate history of her failure to pay her debts, and not the judgment.” TU Mot. at 9. In fact, no such facts or testimony was ever established. Neither TU or Wells Fargo ever presented a person with personal knowledge of Sheldon’s credit application to Wells Fargo, or with personal knowledge of the denial. The jury will not be confused by this document. Plaintiff personally signed the document, twice, on page 2, so TU’s argument that the document is not authenticated is frivolous. TU’s Motion should be denied.
27-29. Trans Union credit reports, dispute documents, and vendor codes and guidelines
TU states it is not sure if it should object, leaving Sheldon in the same situation as to whether a response is needed. Sheldon errs on the side of caution and states the following.
Despite TU’s objections to certain parts of the joint Pre-trial Order (ECF #73), on July 2, 2009 (ECF #77) the Court approved the Pre-trial Order. This Order included the party’s respective Exhibits list, including the statement that “the parties will work to prepare a combined Exhibits list for trial that eliminates duplicates.”
Regarding Sheldon’s TU credit report Exhibits, TU objected in the Pre-Trial Order to the specificity of whether Sheldon meant disclosures (TU sometimes refers to the credit reports as disclosures) to Sheldon, or consumer reports sent to third parties. Plaintiff does not have copies of TU’s disclosures to third parties. Sheldon’s own TU credit reports do include sections which indicate that disclosures were made to third parties, but Sheldon does not have those actual third party disclosures. Thus Sheldon will introduce her own TU credit reports (aka disclosures). Portions of these credit reports were exhibits to Sheldon’s summary judgment motion. These should be admitted at trial.
Regarding Sheldon’s disputes to TU and TU’s responses, most if not all of these were specifically identified in the Pre-trial Order in Plaintiff’s section 2(h) and numbered there as Exhibits 1-26. TU has even objected to several of those specific documents in this same Motion, addressed immediately above. TU also presented its own specific list of many if not all of the same documents at pages 7-9 of the Pre-trial Order. There are no documents that the parties have not already exchanged at issue here.
Regarding TU’s vendor codes for public records vendors, these were produced by TU in discovery. Sheldon would introduce at trial the four pages of TU’s public records codes that were part of her December 12, 2008 Motion to file document under seal (ECF #47), and labeled in that Motion and in discovery as TU 210, 211, 212, and 217. The Court already ruled at the summary judgment hearing that these documents could not be kept sealed by a motion to seal. To address the instant Motion, Sheldon identifies the TU public records codes and guidelines produced as TU 203-209 as her trial Exhibits. CONCLUSION
TU moves to strike literally every witness besides the parties themselves, and virtually every document other than those exchanged between the parties and the certified copy of the Arlington District Court. TU’s Motion in Limine should be denied in its entirety.


Respectfully submitted,

/s/ Michael C. Worsham
Michael C. Worsham, Esq.
1916 Cosner Road
Forest Hill, Maryland 21050-2210
(410) 557-6192(410) 557-6192; Fax: (410) 510-1870
mcw@worshamlaw.com
Maryland Federal Bar # 25923

Attorney for Plaintiff

REQUEST FOR HEARING

Plaintiff requests a hearing on this Motion.


CERTIFICATE OF SERVICE

I certify that on September 18, 2009 a copy of this document was served via the ECF system.

/s/

Michael C. Worsham, Esq.

===========
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
ALANA VALERIE SHELDON *
Plaintiff *
v. * Civil Action No. 08-CV-0057-PJM
TRANS UNION, LLC, et al. *
Defendants *
* * * * * * * * * * * * *
PLAINTIFF’S MOTION IN LIMINE
Plaintiff Alana Valerie Sheldon, through undersigned counsel, files her Motion in Limine
on eight potential trial issues, per the Court’s July 2, 2009 paperless Order.
ARGUMENT
Ms. Sheldon moves to prevent Defendant Trans Union, LLC or its counsel from introducing
or attempting to introduce the following at trial: (1) expert testimony from any of Trans Union’s own
employees, who have not been identified as experts in this case, or evidence outside the personal
knowledge of the witness, (2) testimony from any person other than those deposed in discovery, (3)
evidence regarding identification of, or actions by, and employees, agents or contractors of Trans
Union who or that were not identified by Trans Union in discovery, (4) testimony or statements that
the witness, defendant or counsel is sorry for the actions of defendant or its agents or contractors,
(5) any evidence relating to the accuracy of Trans Unions’s procedures for maximum possible
accuracy or of its credit reports, (6) any questions during voir dire regarding the contents of
prospective juror’s credit reports, (7) any mention of attorneys fees, (8) any reference to Ms.
Sheldon’s claims or dismissal, resolution or settlement thereof against other Defendants in this suit.
Legal Standard for Motions in Limine
A ruling on a motion in limine is a preliminary or advisory opinion that falls entirely within
the discretion of the district court. United States v. Yannott, 42 F.3d 999, 1007 (6th Cir.1994). The
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 1 of 9
2
primary purpose of an in limine ruling is to streamline the case for trial and to provide guidance to
counsel regarding evidentiary issues. United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.1983),
aff'd 469 U.S. 38 (1984). The decision to exclude relevant evidence pursuant to Rule 403 is
committed to the sound discretion of the trial court. United States v. Love, 134 F.3d 595, 603 (4th
Cir.1998), Adams v. Nvr Homes, Inc., 141 F. Supp. 2d 554 (D. Md. 2001).
1. Trans Union should not be allowed to have its non-expert witnesses present expert
testimony or testimony not withing the witness’s personal knowledge.
Trans Union has not identified any persons as experts in this case. It has only identified two
of its employees as witnesses, Eileen Little, William Stockdale. See June 24, 2009 Pre-Trial Order
at 10, ¶ 2(i).
Since Trans Union’s witnesses are not experts, they should not be allowed to testify the way
and with the broader leeway allowed for a properly qualified expert witness. For example, they
should not be allowed to testify to hearsay or treatises.
Related to this, Trans Union’s witnesses should not be allowed to testify to or on any matters
that are not personally known by the witness. No witness should be allowed to discuss the
intentions, state of mind, or motives of employees, agents or contractors of Trans Union.
2. Trans Union should be limited to calling only its identified trial witnesses
Trans Union identified its as witnesses as “Eileen Little or other cognizant Trans Union
consumer relations manager” and “William Stockdale or other cognizant Trans Union employee
respecting public records reporting and reinvestigations.” Pre-Trial Order at 10, top (emphasis
added).
Trans Union should be limited to introducing only Ms. Little or Mr. Stockdale as trial
witnesses, and not other unidentified persons. Ms. Little and Mr. Stockdale were deposed in
discovery by Plaintiff. No other Trans Union witnesses were deposed or identified in discovery by
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 2 of 9
1 For example, this Court’s approved Standard Interrogatory to a Defendant #6 is ‘Identify all
persons who are likely to have personal knowledge of any fact alleged in the complaint or in your answer
to the complaint, and state the subject matter of the personal knowledge possessed by each such person.”
3
Trans Union as either “other cognizant Trans Union consumer relations manager” or as “or other
cognizant Trans Union employee respecting public records reporting and reinvestigations.”
Plaintiff served a deposition Notice on Trans Union under FRCP 30(b)(6) for a designated
corporate representative. Trans Union had the choice to produce the persons it would designate on
the topics in the Notice. Trans Union produced only Ms. Little and Mr. Stockdale.
Trans Union should thus be prevented from simply presenting anyone at trial they want,
solely at their whim, without advance notice. To allow this would be grossly unfair to Plaintiff. It
also contrary to the purposes of discovery to identify witnesses with knowledge of facts before trial,
and usually before the close of discovery to allow any necessary follow up discovery or expert
amendments or considerations.1 This would violate this Court’s Pre-Trial procedures and Local
Rules, which requires trial witnesses to be identified in the Pre-Trial Order by “name, address and
telephone number of each witness, other than those expected to be called solely for impeachment.”
Local Rule 106(2)(i).
3. Trans Union should be limited to the evidence it disclosed in discovery
Trans Union should be limited to presenting evidence at trial to what it disclosed in
discovery. Trans Union should not be allowed to identify person, including its employees, agents
or contractors, or actions taken by those same person, who or that were not identified by Trans
Union in discovery.
4. Trans Union should not be allowed to apologize at trial.
Plaintiff moves to exclude Trans Union from introducing any evidence, or statements by
defense counsel, that a witness, defendant or counsel is sorry for the actions of defendant or its
agents or contractors. This testimony is improper, irrelevant, and was not produced during discovery
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 3 of 9
2 Credit reports are formally and legally referred to as “consumer reports” in the FCRA,
15 U.S.C. § 1681a(d). Plaintiff will refer to them by their common name, credit reports.
4
or this litigation, the reality of which now that this case is proceeding to trial, is completely
inconsistent with Trans Union being sorry for its actions in any way whatsoever.
5. Trans Union should not testify to the accuracy of its procedures or credit reports.
Plaintiff moves to exclude Trans Union for introducing evidence relating to the accuracy of
Trans Unions’s procedures for maximum possible accuracy or of its credit reports2.
Trans Union has not produced any studies on the accuracy of its procedures to maintain
accuracy or its credit reports. The General Accounting Office indicates that Trans Union (and
Experian and Equifax) said they did not have the data to specifically respond to a request that the
each provide data on the frequency, type, and cause of errors in credit reports. See Consumer
Credit: Limited Information Exists on Extent of Credit Report Errors and Their Implications for
Consumers, General Accounting Office, July 31, 2003, GAO-03-1036T, page 2 (available online
at www.gao.gov.new.items/d031036t.pdf).
Further, Trans Union has not designated any expert witness to testify on the accuracy of
either its procedures or of its credit reports, or for any other matter. Therefore neither Trans Union
or its counsel should be permitted to refer to an ‘accurate system’ in general terms or similar words
to communicate the same effect or meaning.
6. Trans Union should not voir dire the jury regarding their credit reports
Plaintiff moves to exclude questions during voir dire regarding the contents of prospective
juror’s credit reports.
Prospective jurors may be confused by the contents of the credit reports they receive and
believe they contain all the information being reported about them. That is not necessarily so.
Credit reports that consumers receive directly from credit reporting agencies such as Trans Union
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 4 of 9
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may be significantly different from the reports that credit bureaus send to creditors (furnishers). Both
documents are commonly referred to as "credit reports." However, when a consumer orders their
own credit report, they are required to provide numerous pieces of identifying information, including
birth date, social security number, addresses, copies of identification or utility bills, or verification
of existing credit account information. This results in a very narrowly tailored credit report.
Consequently, a juror may think his or her credit report is accurate when it is not.
Further, credit reporting agencies (i.e. Trans Union) will typically send a consumer a report
with the contents of one file on that consumer, when there may exist multiple files. In contrast, the
credit reports that creditors receive include multiple files, sometimes for one consumer and
sometimes with information on more than one consumer. Thus, a prospective juror may have viewed
his or her credit report and believed that it was accurate, when creditors were
receiving a different or an additional file. If Trans Union questions jurors regarding their "credit
reports," it could prejudice plaintiff by giving jurors the impression that jurors' reports are accurate
when they may not be.
7. Trans Union should not be allowed to mention attorneys fees.
Trans Union should not be allowed to refer to the fee shifting provisions of the FCRA or
comments suggesting the case is about attorneys fees. Attorneys fees are not decided by the jury.
8. Trans Union should not be allowed to raise Ms. Sheldon’s claims against the other
Defendants, including any settlement or offer of judgments in this case.
Federal Rule of Evidence (FRE) 408, Compromise and Offers to Compromise, prohibits the
admission as evidence on behalf of any party, the furnishing or acceptance of offers, or conduct or
statements made in compromise negotiations regarding a claim. On a related note, Federal Rule of
Civil Procedure 68(b), provides that “Evidence of an unaccepted offer is not admissible except in
a proceeding to determine costs.”
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 5 of 9
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Discovery is not allowed as to settlement efforts, since it cannot lead to admissible evidence.
FRE 408. Public policy favors non-discoverability of settlement agreements and negotiations
leading to settlement agreements. Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332
F.3d 976, 980-81 (6th Cir. 2003) (communications in furtherance of settlement are privileged and
not discoverable), Thornton v. Syracuse Savings Bank, 961 F.2d 1042, 1046 (2d Cir. 1992)
(settlement agreements are not discoverable); Mars Steel Corp. v. Continental Illinois Nat'l Bank
& Trust Co. of Chicago, 834 F.2d 677, 684 (7th Cir. 1987) (settlement negotiations are not
discoverable, because such discovery would give a party information about an opponent's strategy);
Centillion Data Systems, Inc. v. Ameritech Corp., 193 F.R.D. 550, 552, n.1 (S.D. Ind. 1999) (in the
settlement context, courts require a "particularized and/or heightened showing that the settlement
information sought is relevant and likely to lead to admissible evidence"); Bottaro v. Hatton
Associates, 96 F.R.D. 158, 160 (E.D. N.Y. 1982) (even under the broader pre-amendment discovery
standard, strong public policy favoring settlements precludes discovery of settlement agreements
absent showing a likelihood that admissible evidence will be generated by the dissemination of the
terms of a settlement agreement).
Since settlement agreements are not discoverable, they are not admissible at trial. Regardless
of how Ms. Sheldon resolved her claims against the two other defendants in this case (LVNV
Funding, LLC, Resurgent Capital Services L.P.), that resolution is not admissible at trial.
Further, Ms. Sheldon’s claims against these defendants are not related to the claims going
to trial against Trans Union for having falsely reported a judgment on her Trans Union credit reports.
Under FRE 401 evidence is relevant only if it has a “tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.”
The only issues for the jury at trial are whether Trans Union violated the FCRA and the
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 6 of 9
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Maryland consumer protection law, and the amount of damages caused by the violations. Neither
of the other dismissed defendants could have caused Trans Union to violate the FCRA or Maryland
law. The jury should not be told that Sheldon made claims against these defendants, because they
are not relevant to whether Trans Union violated the law. Therefore Trans Union should be
prevented from mentioning to the jury anything related to the dismissed claims against the two other
Defendants which have been dismissed from this case.
Even if Sheldon’s other claims were somehow relevant under FRE 401, they should be
excluded pursuant to FRE 403. Under FRE 403, relevant evidence may be excluded where its
probative value is outweighed by prejudice, confusion, or waste of time. Allowing evidence
concerning claims against other defendants will produce such a result.
If Trans Union is allowed to introduce such evidence, or even refer to other dismissed claims,
plaintiff will have to respond by discussing the details of the claims against each of those defendants,
including the legal basis for each claim, the facts supporting each claim, and the reasons how the
claims were resolved. Then Trans Union will attempt to rebut this evidence. The result will be a
mini-trial with the trial about something unrelated to the trial.
This will be waste of time, and confusing to the jury. It would also unfairly prejudice
Plaintiff. How other claims against other defendants may have been or were resolved does not
necessarily accurately represent the amount of damages the other defendants may have caused.
Claim resolutions or settlements are based on many factors besides damages. One of those is
plaintiff’s attorney’s fees and costs, an allocation of which would be difficult to make, as well as
meaningless and confusing to a jury which is not even going to make that determination.
The Court should also exclude any reference to other claims and their resolution with other
defendants because a confidentiality provision may be present or implicated. Again, any such
compromise, settlement or resolution is generally not admissible under FRE 408.
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The policy behind is “promotion of the public policy favoring the compromise and settlement
of disputes.” Notes of Advisory Committee on Rules, citing McCormick on Evidence §§ 76, 251.
The Advisory committee specifically noted that “While the rule is ordinarily phrased in terms to
completed offers of compromise, it is apparent that a similar attitude must be taken with respect to
completed compromises when offered against a party thereto. This latter situation will not, of
course, ordinarily occur except when a party to the present litigation has compromised with a third
person.” Id.
This issue was addressed in a case involving Trans Union, Anderson v. Equifax Information
Services, LLC, Case # 3:05-cv-1751 (D. Or. Aug. 2, 2007). There, the plaintiffs sued Trans Union,
Experian, Equifax and US Bank for FCRA violations. After plaintiffs settled with all defendants
except Trans Union, Trans Union moved to compel production of the settlement agreements. The
court denied the motion, holding that the settlement agreements “are not relevant, given the inability
of Trans Union to obtain indemnity or contribution under the FCRA from those defendants.” See
also McMillan v. Equifax Credit Information Servs., 153 F. Supp. 2d 129, 130 (D. Conn. 2000)
(denying motion of credit furnisher to implead credit imposter, noting that “Courts have found that
the FCRA does not provide a right to indemnification.”); Kay v. First Continental Trading, 966 F.
Supp 753 (N.D. Ill. 1997) (stating that the FCRA “contains no express provision for contribution.”).
In Thomas v. Trans Union, LLC, Civil #00-1150-JE (D. Or.), after a $5,300,000 verdict
against Trans Union, the trial judge held:
Trans Union contends that it is entitled to an offset of any amounts that the six co-defendants
paid to settle Mr. Anderson’s claims. Trans Union asserts that it is entitled to this reduction
based upon the “fundamental principle that a payment made by a joint tortfeasor diminishes
the claim against the remaining tortfeasors.” Seymour v. Summa Vista Cinema, Inc., 809 F.2d
1385, 1389 (9th Cir. 1987).
This was not a tort action against alleged joint tortfeasors, and Trans Union’s reference to
tort principles is inapposite. Trans Union has cited, and I have found, no reported decisions
supporting the proposition that a FCRA defendant is entitled to an offset of amounts a
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 8 of 9
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plaintiff may receive in settlement from other FCRA defendants. The motion to reduce the
judgment on this basis is denied.
Thomas Slip Opinion and Order, at page 18.
Finally, Trans Union vigorously tries to protect the confidentiality of its own settlement
agreements and demands the parties it settles with to do the same. In Manning v. Equifax
Information Services, LLC, U.S. Dist. Court (D. Or.) Case No. 03-cv-01256-BR, the plaintiff
brought similar claims against Trans Union and others. The plaintiff settled her claims against Trans
Union, subject to a confidentiality agreement. Subsequently, a remaining defendant, Verizon
Wireless Services, LLC, sought production of the settlement amount, and filed a motion to compel
production. Trans Union refused to allow the plaintiff to produce the settlement agreement and
demanded that Ms. Manning oppose the motion.
WHEREFORE the Plaintiff’s Motion in Limine should be granted.
Respectfully submitted,
/s/ Michael C. Worsham
Michael C. Worsham, Esq.
1916 Cosner Road
Forest Hill, Maryland 21050-2210
(410) 557-6192(410) 557-6192; Fax: (410) 510-1870
mcw@worshamlaw.com
Maryland Federal Bar # 25923
Attorney for Plaintiff
REQUEST FOR HEARING
Plaintiff requests a hearing on this Motion.
CERTIFICATE OF SERVICE
I certify that on September 1, 2009 a copy of this document was served via the ECF system.
/s/
Michael C. Worsham, Esq.
Case 8:08-cv-00057-PJM Document 84 Filed 09/01/2009 Page 9 of 9
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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