West v. Applicant Check LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Sara Marie West, No. CV-25-00046-TUC-JGZ (MSA) 10 Plaintiff, ORDER 11 v. 12 Applicant Check LLC, 13 Defendant. [14] 15 Pending before the Court is Plaintiff Sara West’s motion to compel discovery. The 16 motion has been fully briefed and argued. For the following reasons, the motion will be 17 granted in part and denied in part. 18 I. Background 19 The complaint contains the following allegations: In October 2024, Plaintiff applied 20 for a position with Succeed ABA Therapy. (Doc. 1, ¶ 41.) Plaintiff was offered a position 21 contingent on her passing a background check. (Id. ¶¶ 43–44.) Succeed ABA Therapy used 22 Defendant Applicant Check LLC to conduct the background check. (Id. ¶ 45.) Defendant 23 prepared a report for Succeed ABA Therapy that contained inaccurate information about 24 Plaintiff, namely, that Plaintiff had misdemeanor convictions in Oklahoma for obstructing 25 a police officer and public intoxication. (Id. ¶¶ 48–51.) The convictions belonged to another 26 person named Sara West, and Defendant would have realized this if it had used reasonable 27 procedures to ensure the accuracy of its report. (Id. ¶¶ 52–58.) 28 On October 31, Succeed ABA Therapy sent Plaintiff a notice that her employment 1 application could be denied because of the convictions. (Id. ¶ 63.) That same day, Plaintiff 2 obtained a copy of the report and called Defendant to dispute the inaccurate information. 3 (Id. ¶¶ 64, 67.) Later that day, Defendant informed Plaintiff that it had investigated the 4 dispute and removed the convictions from the report. (Id. ¶ 72.) Plaintiff was allowed to 5 proceed with onboarding at Succeed ABA Therapy, though she believes that Defendant’s 6 inaccurate reporting may have caused her to begin work later than originally anticipated. 7 (Id. ¶¶ 74–75.) 8 Plaintiff brings two claims. The first alleges that Defendant violated the Fair Credit 9 Reporting Act (FCRA) by not “follow[ing] reasonable procedures to assure maximum 10 possible accuracy” of the information in Plaintiff’s report. (Id. ¶¶ 81–88.) The second 11 alleges that Defendant violated the FCRA by not timely notifying Plaintiff that it had 12 reported adverse information to Succeed ABA Therapy. (Id. ¶¶ 89–101.) Plaintiff seeks 13 actual, statutory, and punitive damages, as well as attorney fees and costs. (Id. ¶¶ 88, 101.) 14 II. Discussion 15 Plaintiff moves to compel Defendant to respond to four requests for production of 16 documents (RFP) and ten requests for admission (RFA). Each request is taken in turn. 17 A. Requests for Production 18 A party is entitled to obtain documents that are in another party’s “possession, 19 custody, or control.” Fed. R. Civ. P. 34(a)(1)(A). The documents must be within the scope 20 of discovery, which includes “any nonprivileged matter that is relevant to any party’s claim 21 or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 22 1. Defendant’s Net Worth 23 RFP 46 seeks “all Documents establishing [Defendant’s] net worth and pre-tax 24 profits for the five (5) years preceding the filing of this action and including the year this 25 action was filed.” (Doc. 20-4 at 41.) Defendant objected that the request is “compound, 26 vague, overbroad, unduly burdensome, and not reasonably calculated to lead to relevant 27 and/or admissible evidence.” (Id. at 42.) Defendant does not defend these objections in its 28 response to the motion to compel. Instead, it argues that discovery as to its financial status 1 is premature until Plaintiff makes a prima facie showing that it is liable for punitive 2 damages. (Doc. 23 at 4–6.) Plaintiff argues that there is no such limitation on federal 3 discovery. (Doc. 20 at 6–7; Doc. 24 at 2–5.) Plaintiff is correct. 4 Defendant’s argument relies on cases in which the district court applied a rule of 5 state law. See Richbourg v. Jimerson, No. CV–12–0136–TUC, 2012 WL 4355906 , at *2 6 (D. Ariz. Sept. 24, 2012) (“The State of Arizona has adopted a general rule mandating that 7 ‘prima facie proof of a defendant's liability for punitive damages [is necessary] before his 8 wealth or financial condition may be discovered.’” (alteration in original) (quoting Larriva 9 v. Montiel, 691 P.2d 735, 736 (Ariz. Ct. App. 1984))); Avila v. Mohave County, No. 14-cv10 8124, 2015 WL 6660187 , at *3 (D. Ariz. Nov. 2, 2015) (same); Bossardet v. Centurion 11 Healthcare, No. CV-21-00179-TUC, 2023 WL 11959860 , at *2 (D. Ariz. Jan. 13, 2023) 12 (same). These cases are not binding. Nor are they persuasive, as they “do not explain why 13 Arizona’s limitation on discovery should apply in federal cases.” GG Ins. v. Johnson, 14 No. CV-23-01964-PHX, 2025 WL 2097940 , at *1 (D. Ariz. July 25, 2025) (emphasis 15 added). Moreover, this case involves only federal-law claims, so it would be completely 16 inappropriate to limit discovery according to state law. See Rodriguez v. County of Los 17 Angeles, 891 F.3d 776, 806 (9th Cir. 2018) (“We decline to apply California law here 18 because appellees sought punitive damages for violations of their rights under 42 U.S.C. 19 § 1983 rather than state law.”). 20 Under federal law, the “proper inquiry is whether the discovery [Plaintiff] seeks is 21 appropriate under [Rule] 26(b)(1).” GG Ins. v. Johnson, No. CV-23-01964-PHX, 2025 WL 22 1918560, at *2 (D. Ariz. July 11, 2025) (citing Richbourg, 2012 WL 4355906 , at *2). 23 Defendant’s net worth is relevant to Plaintiff’s request for punitive damages, Rodriguez, [24] 891 F.3d at 806 (quoting Tri-Tron Int’l v. Velto, 525 F.2d 432, 438 (9th Cir. 1975)), and 25 Defendant does not argue that the request is disproportional to the needs of the case under 26 the Rule 26(b)(1) factors. As such, the motion will be granted as to RFP 46. 27 . . . . 28 . . . . 1 2. Defendant’s Internal Audits and Records of Disputes 2 RFP 30 seeks “all documents related to any audits and/or internal analyses that 3 [Defendant] conducted during the period of five years preceding the filing of the complaint 4 to ensure that the criminal records [Defendant] include[s] in consumer reports belong to 5 the consumer which is the subject of the reports.” (Doc. 20-5 at 36.) Defendant answered 6 that it would produce responsive documents. (Id.) Plaintiff says, however, that Defendant 7 has yet to do so. (Doc. 20 at 2.) Defendant’s response to the motion to compel does not 8 dispute Plaintiff’s assertion that no documents have been produced. As such, the motion 9 will be granted as to RFP 30. 10 RFP 44 seeks “all metrics and reports . . . documenting the number of disputes, 11 complaints, or lawsuits submitted to or filed against [Defendant] in which [Defendant was] 12 accused of inaccurately publishing information belonging to another consumer into the 13 report of the consumer that is the subject of the report.” (Doc. 20-5 at 38.) Defendant 14 initially objected to this request. (Id.) It later supplemented its response, answering that the 15 requested “[i]nformation is not in Defendant’s possession.” (Id.) As noted above, a party 16 need only turn over documents that are in its “possession, custody, or control.” Fed. R. Civ. 17 P. 34 (a)(1). Plaintiff’s briefing does not explain why Defendant’s response is deficient, i.e., 18 why she believes that Defendant has responsive documents in its possession contrary to its 19 answer. Nor did Plaintiff’s counsel convince the Court at the hearing that Defendant is 20 withholding responsive documents, as his position appears to rest on his mere belief that 21 Defendant should have the documents. As such, the motion will be denied as to RFP 44. 22 RFP 45 seeks “all documents concerning the number of consumer complaints, 23 allegations, lawsuits, disputes or other communications that [Defendant is] aware of and 24 alleging that [Defendant] had reported information that belonged to another consumer on 25 their Consumer Report or that [Defendant] had reported information which was ‘mixed’ 26 with another consumer’s file during the [past] five (5) years.” (Doc. 20-4 at 41.) Defendant 27 objected that this request is “compound, vague, overbroad, unduly burdensome, requests 28 potential confidential information, and is not reasonably calculated to lead to relevant 1 and/or admissible evidence.” (Id.) Plaintiff argues that the relevance objection is meritless 2 because the documents are relevant to both liability and damages. (Doc. 20 at 7–8.) The 3 Court agrees: if Defendant received frequent complaints about inaccurate reports, that 4 would tend to show that its procedures were not reasonable and that punitive damages are 5 appropriate. Defendant does not defend its other objections in its briefing, and the Court 6 finds them to be without merit. Thus, the motion will be granted as to RFP 45. 7 B. Requests for Admission1 8 A party may serve on another party “a written request to admit, for purposes of the 9 pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: 10 (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness 11 of any described documents.” Fed. R. Civ. P. 36(a)(1). “The purpose of Rule 36(a) is to 12 expedite trial by establishing certain material facts as true and thus narrowing the range of 13 issues for trial.” Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981) (first 14 citing Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th Cir. 1978); and then citing 15 Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 436 (E.D. Pa. 1978)). 16 A party who is served with a request for admission must state all grounds for 17 objection in his answer. Fed. R. Civ. P. 36(a)(5). As to the substance of an answer: 18 If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit it or deny it. A denial [19] must fairly respond to the substance of the matter; and when good faith 20 requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The [21] answering party may assert lack of knowledge or information as a reason for 22 failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient 23 to enable it to admit or deny. 24 Fed. R. Civ. P. 36(a)(4). 25 In her motion, Plaintiff seeks answers to eleven requests for admission, including [26] 27 1 Defendant’s initial response to the requests for admission misnumbered “Admission Request No. 9” as “Admission Request No. 8,” resulting in every subsequent request also 28 being misnumbered. (See Doc. 20-4 at 8–9.) The supplemental responses also adopted the misnumbering, as does the parties’ briefing. To avoid any confusion, this Order does too. 1 RFAs 2 and 4. (Doc. 20 at 8.) Plaintiff withdrew her motion as to RFA 2 in the reply brief, 2 so that request is not addressed in this Order. (Doc. 24 at 6.) As to RFA 4, Defendant argues 3 that the motion should be denied because Plaintiff did not meet and confer on that request. 4 (Doc. 23 at 6–7.) Plaintiff does not dispute that assertion or otherwise discuss RFA 4 in her 5 reply brief. As such, the motion will be denied as to RFA 4 for failure to meet and confer. 6 See Fed. R. Civ. P. 37(a)(1) (requiring a party to meet and confer before filing a discovery 7 motion). The Court now turns to the nine remaining requests. 8 1. Defendant’s Procedures 9 RFA 14 seeks an admission “that Defendant’s procedures for preparing consumer 10 reports do not include verifying that public records identically match a consumer’s date of 11 birth before attributing those records to the consumer.” (Doc. 20-6 at 13.) Defendant 12 responded with various objections and the following qualified denial: 13 [Defendant’s] procedures involved cross-referencing all available identifying information provided by Succeed ABA Therapy—and by [14] extension, Plaintiff—with the records that surfaced during the search. In this 15 instance, the Oklahoma criminal record reflected a matching name, birth month, and birth year, all of which aligned with the information Plaintiff [16] provided. In such cases, where the identifiers are consistent and no 17 contradictory information appears, [Defendant] reasonably flags and includes the record as part of the report, consistent with its procedures. 18 [Defendant] had no obligation—and was not requested—to independently 19 investigate public records or consult external sources beyond the scope of its contracted search parameters. [20] (Id.) [21] Plaintiff argues that Defendant’s qualified denial does not answer the request. [22] (Doc. 20 at 10–11.) Defendant responds that it is “allowed to deny a request when the [23] requested admission is inaccurate or unsupported by the party’s knowledge,” and that [24] “Plaintiff cannot compel a change in Defendant’s answers simply because she disagrees.” [25] (Doc. 23 at 8.) At the hearing, defense counsel repeated the assertion that it is not proper [26] to file a motion to compel a new answer to a request for admission; in her view, a denial [27] means the issue should be resolved at trial. She also explained that Defendant’s procedures [28] do require an exact match when a full birthdate is available, but that Defendant reasonably 1 matches only the month and year when the day of birth is not available. She also explained 2 that the information returned from a search depends on the type of search conducted. 3 The motion will be denied as to RFA 14. As an initial matter, Defendant is wrong 4 that its answers are not subject to challenge. See Fed. R. Civ. P. 36(a)(6) (providing that 5 “[t]he requesting party may move to determine the sufficiency of an answer or objection,” 6 and that when “an answer does not comply with th[e] rule, the court may order either that 7 the matter is admitted or that an amended answer be served”). However, the Court agrees 8 that a qualified denial is a proper response to this request. The request asks for an admission 9 that Defendant does not require an exact match, but Defendant does require an exact match. 10 This makes a denial appropriate. Defendant’s explanation that an exact match is not always 11 possible, and that the information returned depends on the type of search conducted, are 12 proper qualifications to that denial. 13 RFA 15 seeks an admission “that Defendant’s procedures for preparing consumer 14 reports do not include verifying that public records match a consumer’s address history 15 before attributing those records to the consumer.” (Doc. 20-6 at 14.) Defendant objected 16 that the request is “compound, argumentative, and calls for a legal conclusion,” and that 17 the terms “consumer’s address history,” “attributing those records,” and “public record” 18 are vague and ambiguous. (Id.) Defendant then answered that it lacks sufficient information 19 to admit or deny: 20 [Defendant’s] procedures do not require an exact match between public record addresses and a consumer’s address history before flagging a record [21] for further review. Based on the available identifying information provided 22 by Succeed ABA Therapy—and by extension, Plaintiff—[Defendant] flagged a record associated with a matching name and birth month and year [23] in Oklahoma. At the relevant time period, [Defendant] had no way of 24 knowing whether Plaintiff had previously lived in Oklahoma, visited Oklahoma, or was otherwise present in the state during the time of the 25 underlying offense. [Defendant] did not—and does not—possess 26 information that would allow it to rule out, with certainty, the possibility that the Oklahoma criminal record did not pertain to Plaintiff. Given that no 27 conflicting identifiers were present, [Defendant] reasonably flagged the 28 record for inclusion in the report. [Defendant] therefore lacks sufficient information to admit or deny. 1 (Id.) 2 Plaintiff argues that this response does not answer the request. (Doc. 20 at 10–11.) 3 Defendant responds that it cannot admit because the phrase “do not include verifying that 4 public records match a consumer’s address history” is “both inaccurate and materially 5 misleading.” (Doc. 23 at 9.) Defendant adds that it “does review a consumer’s address 6 history as part of its standard process,” but that “consumers may still have criminal charges 7 in jurisdictions where they do not reside.” (Id.) So, Defendant argues, “[a]dmitting the 8 statement as written would create a false impression to the jury that Defendant ignores 9 address history entirely, which is objectively incorrect.” (Id.) 10 The motion will be granted as to RFA 15. Defendant’s objections are overruled. The 11 request is clear, and none of its terms are vague or ambiguous. As to the sufficiency of 12 Defendant’s answer, the first sentence of the answer is an admission that Defendant does 13 not require a match before flagging a record. Defendant’s explanation that it does consider 14 address history, but that a match is not required because a person can commit crimes 15 outside of the state where she resides, is a proper qualification to that admission. See 16 Holmgren v. State Farm Mut. Auto. Ins., 976 F.2d 573, 580 (9th Cir. 1992) (holding that 17 the defendant’s hypertechnical denial was improper, though it “might have been a plausible 18 quibble if it had been given as a qualification to an admission”). Defendant’s position is 19 easy to understand, so there is minimal risk of creating a “false impression.” 20 2. Oklahoma Jail Record 21 Plaintiff’s counsel obtained the other Sara West’s jail record from the Cleveland 22 County Sheriff’s Office in Oklahoma. (Doc. 24-2 at 2.) The jail record includes West’s full 23 birthdate. (Doc. 20-7 at 2.) Plaintiff served the jail record on Defendant in discovery, along 24 with several requests for admission relating to the record. (Doc. 20 at 9.) 25 RFA 10 seeks an admission that “the date of birth of Sara West who was convicted 26 of the misdemeanors in Cleveland County, Oklahoma is June 13, 1995.” (Doc. 20-6 at 9.) 27 RFA 11 seeks an admission that “Plaintiff’s date of birth (June 12, 1995) is different from 28 the date of birth of the Sara West who was convicted of the misdemeanors in Cleveland 1 County, Oklahoma (June 13, 1995).” (Id. at 10.) Defendant answered that it lacks sufficient 2 information to admit or deny because, among other things, it “has no independent means 3 of verifying the accuracy of the date of birth associated with any individual named Sara 4 West convicted in [Cleveland County, Oklahoma.].” (Id. at 9–10.) 5 The motion will be denied as to RFAs 10 and 11. As phrased, the requests presume 6 that the birthdate listed in the jail record is accurate, so Defendant need not admit or deny 7 them unless it knows whether the record is accurate. See Raynor v. District of Columbia, 8 No. 14-750, 2019 WL 13250346 , at *4 (D.D.C. Apr. 24, 2019) (“However, to the extent 9 that Requests 47, 49, 50, and 52 ask Defendants to admit or deny that information in the 10 documents is accurate (rather than that the documents are authentic), Ms. Raynor has not 11 met her burden of showing that requests for admission are appropriate to that end.”); 12 Papadakis v. CSX Transp., Inc., No. 04-30189, 2005 WL 8176416 , at *1 (D. Mass. Oct. 14, 13 2005) (“Plaintiff seek[s] admissions as to the truth and accuracy of certain documents, as 14 well as the information contained therein regarding fringe benefits. In each instance, 15 Defendant has indicated that it is unaware of the origin of the document and, therefore, is 16 unable to truthfully admit to its contents. Those responses, in the court’s view, are 17 appropriate.”). Defendant asserts that it “has no independent means of verifying the 18 accuracy of the date of birth or other identifying information associated with any individual 19 named Sara West convicted in [Cleveland County, Oklahoma].” (Doc. 20-6 at 9.) As such, 20 Defendant can properly assert a lack of sufficient information to admit or deny. 21 RFA 12 seeks an admission that “the inaccurate information in Plaintiff’s consumer 22 report could have been avoided if Defendant had compared Plaintiff’s identifying 23 information with the identifying information of the person to whom the criminal records 24 actually belonged.” (Id. at 11.) Defendant objected that the request is “compound, 25 argumentative, and calls for a legal conclusion,” and that the terms “inaccurate 26 information,” “Plaintiff’s identifying information,” and “the person to whom the criminal 27 records actually belonged” are vague and ambiguous. (Id.) Defendant then denied the 28 request, explaining that it did not have the other Sara West’s full birthdate at the time it 1 created the report, and that it reasonably flagged the Oklahoma court record as Plaintiff’s 2 because the record matched the information it had about Plaintiff and had no contradictory 3 information. (Id. at 11–12.) 4 The motion will be denied as to RFA 12. This request is phrased generally, referring 5 broadly to “criminal records.” Defendant explains that it did compare Plaintiff’s identifying 6 information to criminal records—the court records. The error still occurred (obviously), so 7 Defendant could reasonably refuse to admit that the error “could have been avoided” by 8 comparing identifying information. Plaintiff says that this request “pose[s] a hypothetical 9 that assumes the relevant data was retrieved by and was hence accessible to Defendant.” 10 (Doc. 24 at 7.) Even now, Plaintiff is not specific as to what “data” she is talking about. 11 Defendant’s denial “fairly respond[s]” to the request as phrased. Fed. R. Civ. P. 36(a)(4). 12 RFA 16 seeks an admission that “a mugshot of the Sara West who was convicted 13 of misdemeanors in Cleveland County, Oklahoma exists in the public record.” (Doc. 20-6 14 at 15.) Defendant objected that the request is “vague, ambiguous, and assumes facts not 15 admitted or established,” and that the term “public record” is vague and ambiguous. (Id.) 16 Defendant then answered that it lacks sufficient information to admit or deny: 17 There is no mugshot located in the Oklahoma State Courts Network. Further, the record from the Oklahoma State Courts Network expressly states that [18] ‘The information on this page is NOT an official record. Do not rely on the 19 correctness or completeness of this information,’ and as such, [Defendant] is under no obligation to rely on or verify such unofficial information. [20] [Defendant] is not the custodian of records for the Oklahoma State Courts 21 and is not in a position to verify what materials that facility may or may not maintain as public record. [Defendant] therefore lacks sufficient information 22 to admit or deny. 23 (Id.) 24 The motion will be granted as to RFA 16. Defendant’s objections are overruled. The 25 request is clear, straightforward, and does not assume facts. Furthermore, the term “public 26 record” is not vague or ambiguous, particularly as narrowed by the briefing to the specific 27 record of the Cleveland County Detention Center. Indeed, Defendant’s responses to other 28 requests implicitly acknowledge that the jail records are “public records.” (Id. at 16 (“This 1 Request assumes there was a mugshot available in the Cleveland County Detention 2 Center’s public records.”).) 3 As to the sufficiency of Defendant’s answer, an “answering party may assert lack 4 of knowledge or information as a reason for failing to admit or deny only if the party states 5 that it has made reasonable inquiry and that the information it knows or can readily obtain 6 is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4); see Asea, Inc., [7] 669 F.2d at 1247 (holding that, to comply with this rule, the party must actually conduct a 8 reasonable inquiry). A “‘[r]easonable inquiry’ is limited to persons and documents within 9 the responding party’s control” and “does not require the responding party to interview or 10 subpoena records from independent third parties in order to admit or deny a [r]equest for 11 admission.” United States ex rel. Englund v. Los Angeles County, 235 F.R.D. 675 , 685 12 (E.D. Cal. 2006) (citing T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., [13] 174 F.R.D. 38, 43 (S.D.N.Y. 1997)). To the extent that some courts believe that a 14 reasonable inquiry extends to third parties, the duty to contact such parties is limited. See 15 Henry v. Champlain Enters., 212 F.R.D. 73, 78 (N.D.N.Y. 2003) (“The inquiry may require 16 venturing beyond the parties to the litigation and include, under certain limited 17 circumstances, non-parties, but surely not strangers.” (citations omitted)). 18 Here, Defendant conducted a reasonable inquiry by searching its own records and 19 attempting to locate the jail record on the jail and state court websites. (Doc. 20-6 at 15 20 (“There is no mugshot located in the Oklahoma State Courts Network.”); id. at 24 21 (“Responding Party has since made efforts to view the Cleveland County Detention Center 22 in preparation of these responses and did not locate a mugshot.”).) While that inquiry did 23 not reveal the jail record, the record is nevertheless in Defendant’s possession. Its existence 24 is now within Defendant’s knowledge and may not be ignored. See Marchand v. Mercy 25 Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994) (“Parties may not view requests for admission 26 as a mere procedural exercise requiring minimally acceptable conduct. They should focus 27 on the goal of the Rules, full and efficient discovery, not evasion and word play.”). 28 Defendant may not assert a lack of sufficient information unless a reasonable inquiry 1 provides reason to doubt the record’s authenticity. Further, as phrased, the request does not 2 seek an admission that the record is accurate, or that the record was available at the time of 3 the background check, so those are not proper grounds for refusing to admit or deny. 4 RFA 18 seeks an admission that Defendant “did not review the mugshot in the 5 public record before attributing the criminal records to Plaintiff.” (Doc. 20-6 at 16.) 6 Defendant objected that the request is “vague, ambiguous, and calls for a legal conclusion”; 7 that the term “public record” is vague and ambiguous; that the request assumes “that a 8 mugshot of the referenced individual existed and was publicly available through the 9 Cleveland County Detention Center at the time Defendant prepared the consumer report”; 10 and that the request assumes that “Defendant was given a mugshot and/or photograph of 11 Plaintiff in preparation of the consumer report.” (Id. at 16–17.) Defendant then answered 12 that it lacks sufficient information to admit or deny: 13 This Request assumes there was a mugshot available in the Cleveland County Detention Center’s public records. [Defendant] did not access records from [14] the Cleveland County Detention Center and was not required to 15 independently search specific detention center records or websites beyond the scope of the contracted search parameters. [Defendant] has since made [16] efforts to view the Cleveland County Detention Center in preparation of these 17 responses and did not locate a mugshot. [Defendant] therefore lacks sufficient information to admit or deny. [18] (Id. at 17.) [19] The motion will be granted as to RFA 18. Defendant’s objections are overruled [20] because the request is clear and straightforward, and it does not call for a legal conclusion. [21] As discussed below, to the extent that parts of the request assume facts that cannot be [22] admitted, Defendant need not admit those specific parts. [23] As to the sufficiency of the answer, Defendant’s discovery responses and filings [24] make clear that, as a matter of historical fact, Defendant did not review the Cleveland [25] County Detention Center mugshot or any other mugshot before preparing the report about [26] Plaintiff. But, as phrased, the request assumes that the jail record was available at the time [27] Defendant conducted the background check. Under such circumstances, Defendant should [28] admit to the extent that it did not examine any mugshot before creating the report; and, if 1 a reasonable inquiry supports it, assert a lack of sufficient information to admit or deny that 2 a mugshot was available at the time of the background check. See Fed. R. Civ. P. 36(a)(4) 3 (providing that a party can admit a matter in part); see Marchand, 22 F.3d at 938 (“[T]o 4 aid the quest for relevant information parties should not seek to evade disclosure by 5 quibbling and objection. They should admit to the fullest extent possible, and explain in 6 detail why other portions of a request may not be admitted.”). 7 RFA 20 seeks an admission that “the physical appearance of the person in the 8 mugshot does not match Plaintiff’s physical appearance.” (Doc. 20-6 at 18.) Defendant 9 objected that the request is “vague, ambiguous, and calls for a legal conclusion”; that the 10 request “assumes facts not admitted or established, including that a mugshot of the 11 referenced individual existed and was publicly available through the Cleveland County 12 Detention Center at the time Defendant prepared the consumer report”; and that the request 13 assumes that “Defendant was given a mugshot and/or photograph of Plaintiff in preparation 14 of the consumer report.” (Id. at 18–19.) Defendant then answered that it lacks sufficient 15 information to admit or deny: 16 The Request assumes, without basis, that [Defendant] had access to both the mugshot in question and an image of Plaintiff—neither of which [Defendant] [17] had, or was provided, at the time of the report. Plaintiff admits she did not 18 provide a photograph to Succeed ABA Therapy, and therefore no photograph of Plaintiff was ever provided to [Defendant]. This Request also assumes [19] there was a mugshot available in the Cleveland County Detention Center’s 20 public records. Without access to either image, [Defendant] had no ability to compare physical appearances and was not required to do so. This Request 21 attempts to create a false implication that [Defendant] failed to conduct a 22 comparison it was neither capable of nor obligated to perform. It is improper under Rule 36 and irrelevant to the actual procedures used. [Defendant] 23 therefore lacks sufficient information to admit or deny the matter as stated. 24 (Id. at 19.) 25 The motion will be granted as to RFA 20. Defendant’s objections are overruled for 26 the reasons given above. This request asks for an opinion concerning two photographs that 27 Plaintiff provided in discovery, without regard to what information was available at what 28 time. Defendant’s objections might be a proper qualification to an admission or denial, but 1 they are not a basis for asserting a lack of sufficient information. 2 RFA 26 seeks an admission that “Defendant did not obtain or attempt to obtain a 3 photograph of Plaintiff to compare with the mugshot available in the Cleveland County 4 Detention Center’s public records.” (Id. at 23.) Defendant objected that the request is 5 “vague, argumentative, and ambiguous” as to the terms “mugshots,” “photographs,” and 6 “public records”; that the request “assumes facts not admitted or established, including that 7 mugshots are consistently available or accessible for individuals referenced in public 8 records”; and that the request “is misleading, [and] seeks information outside the scope of 9 [Defendant’s] knowledge, obligations, and the procedures it was contracted to perform.” 10 (Id. at 23–24.) Defendant then answered that it lacks sufficient information to admit or 11 deny: 12 This Request falsely presumes that [Defendant] knew a mugshot was available in the Cleveland County Detention Center’s public records, and that [13] [Defendant] had a duty or reason to seek out such a record. [Defendant] had 14 no access to a mugshot from Cleveland County, was not instructed or required to obtain one, and was not provided with a photograph of Plaintiff [15] by Succeed ABA Therapy. [Defendant] has since made efforts to view the 16 Cleveland County Detention Center in preparation of these responses and did not locate a mugshot. Further, Plaintiff admits she did not provide a 17 photograph to Succeed ABA Therapy at any point, and therefore [Defendant] 18 did not have a visual identification of Plaintiff. [Defendant] had no means, ability, or obligation to perform a visual comparison between two individuals 19 for whom it had no images. This Request attempts to create a misleading 20 inference of fault where there was no such duty, capacity, or relevant information available to [Defendant] at the time of the report. The Request 21 is improper under Rule 36, and is irrelevant to the actual procedures used. [Defendant] has made a reasonable inquiry and lacks sufficient information [22] to admit or deny the matter as stated. [23] (Id. at 24.) [24] The motion will be granted as to RFA 26. For the reasons given above, Defendant’s [25] objections are meritless and overruled. As to the sufficiency of Defendant’s answer, the [26] record indicates that Defendant has never attempted to obtain a photograph of Plaintiff. If [27] that is correct, then Defendant should admit the request in part to that extent. This request, [28] like RFA 18, appears to assume that the mugshot was publicly available at the time of the || background check. If a reasonable inquiry supports it, then Defendant may assert a lack of 2|| sufficient information to admit or deny that part of the request. Defendant’s complaint that 3 || it did not have a duty to obtain and compare a photograph may be a proper qualification. 4) Ir. Conclusion 5 The motion will be granted in part and denied in part as set forth above. Because the || motion is granted only in part, and because Plaintiff's counsel apparently failed to meet and confer as to one of the issues raised in the motion, Plaintiff's requests for fees will be 8 || denied. See Fed. R. Civ. P. 37(a)(5)(C) (giving the Court discretion to award fees when a || motion to compel is granted only in part). 10 IT IS ORDERED that the motion to compel (Doc. 20) is granted in part. 11 || Defendant must search for and produce documents responsive to RFPs 30, 45, and 46 and 12 || must serve amended answers to RFAs 15, 16, 18, 20, and 26. The document production 13 || and amended answers must be served on Plaintiff’s counsel within 14 days of the date this Order is docketed. The motion is otherwise denied. 15 Dated this 3rd day of October, 2025. 16 S . 18 United States Magistrate Judge [28] -15-