United States District Court, E.D. Virginia, Richmond Division
DONNA K. SOUTTER, for herself and on behalf of all similarly situated individuals, Plaintiff,
EQUIFAX INFORMATION SERVICES LLC, Defendant.
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on PLAINTIFF'S MOTION TO STRIKE THE MARK JOHNSON DECLARATIONS (Docket No. 156). Having considered the briefs and the oral arguments of counsel, for the reasons set forth below, PLAINTIFF'S MOTION TO STRIKE THE MARK JOHNSON DECLARATIONS (Docket No. 156) will be granted in part and, in part, denied as moot.
This Fair Credit Reporting Act ("FCRA") case was filed by plaintiff Donna K. Soutter ("Soutter") against Equifax Information Services LLC ("Equifax") in 2010. Soutter, who initially sought to represent a class of "[a]ll consumers for whom Equifax furnished a consumer report which reported a judgment that was either set aside, vacated or dismissed with prejudice, " alleged that Equifax violated the FCRA by failing to use reasonable procedures to assure maximum accuracy in reporting judgments that were collected from Virginia court records (sometimes referred to as "judgment dispositions"). After several proposed changes to the class definition, the Court certified the class on March 30, 2011, with one final amendment to the class definition on May 9, 2011. May 9, 2011 Order (Docket No. 101).
Equifax appealed the certification of the class. On appeal, in a two-to-one decision, the Court of Appeals "agree[d] with Equifax that Soutter failed to satisfy the typicality requirement of Rule 23(a)(3) and, accordingly, that the district court abused its discretion in certifying the proposed class." Soutter v. Equifax Information Services, LLC, 498 F.Appx. 260, 264 (4th Cir. 2012). The Court of Appeals did not address other arguments made by Equifax.
Soutter now seeks to have a class certified as follows:
All natural persons who meet every one of the following definitional requirements:
a. The computer database of the Executive Secretary of the Supreme Court of Virginia shows that the person was the defendant in a Virginia General District Court civil action or judgment;
b. The computer database of the Executive Secretary of the Supreme Court of Virginia shows that as of the date 20 days after the Court's certification of this class, the civil action or judgment was dismissed, satisfied, appealed, or vacated on or before April 1, 2009 ("the disposition date");
c. Equifax's records note receipt of a communication or dispute from that person about the accuracy of Equifax's reporting of that civil action or judgment status; and
d. Equifax's records note that a credit report regarding the person was furnished to a third party who requested the credit report, other than for an employment purpose: (1.) no earlier than February 17, 2008, (2.) no later than February 21, 2013, (3.) after the date Equifax's records note its receipt of the consumer dispute regarding the judgment status, and (4.) at least thirty (30) days after the disposition date.
Pl.'s Br. Supp. Am. Motion for Class Cert., Docket No. 132, at 9-10.
Equifax again opposes certification and, to that end, has supported its opposition with, inter alia, the Declaration of Mark Johnson, who is the Vice-President of Data Services for LexisNexis Risk Data Retrieval Services, LLC ("LexisNexis"), the company that collects information about judgment dispositions for Equifax. Johnson's affidavit purports to recite information about a database maintained by the Supreme Court of Virginia which Soutter uses as a proof of the commonality and typicality components of class certification. The purpose of Johnson's affidavit is to show that the database is not accurate. As part of the effort to show that the database is not reliable, Johnson's affidavit discusses how the actual records reflected in the database differ from what is in the database.
Johnson's affidavit recites that its predicate is his personal knowledge. Pl.'s Br. Supp. (Docket No. 157), Ex. B ("I have personal knowledge of the matters discussed below."). To the contrary, in his deposition Johnson admitted that he did not have personal knowledge of the matters recited in the affidavit. In fact, he merely signed a document that an unknown lawyer for LexisNexis prepared and delivered to him for signature. See 2013 Deposition (Docket No. 157-3), at 22-24 (Dep. pp. 52-54). Nor did Johnson read the documents attached to the affidavit as exhibits, documents about which he made sworn substantive averments in the text of the affidavit. Equifax does not contend that Johnson's affidavit is based on personal knowledge.
Soutter has moved to strike the affidavit because it is not based on personal knowledge and thus may not be considered under applicable federal law. Equifax takes the view that the affidavit was not required to have been made on personal knowledge and that, even ...