Attorneys suing Atlanta-based credit bureau Equifax on behalf of consumers and financial institutions in a massive class action stemming from the firm’s 2017 data breach want documents and witness statements the company turned over to Congress.
On Wednesday, less than 24 hours after a congressional committee released a 96-page report finding the breach was preventable, plaintiffs lawyers filed a motion asking for the materials that served as the basis for that report.
Plaintiffs counsel is seeking the information because the rules in the U.S. District Court for the Northern District of Georgia generally preclude discovery until after a judge has ruled on motions to dismiss. As a result, once defendant parties move to dismiss a case, little or no discovery occurs until after the court rules.
The U.S. House Committee on Oversight and Government Reform released a majority report Tuesday that concluded the data breach that exposed personal and financial data of an estimated 148 million consumers was preventable.
Attorneys are expected to face off Friday before Chief Judge Thomas Thrash Jr. for a daylong hearing on Equifax’s motions to dismiss pending claims.
Co-lead plaintiffs counsel for the consumer plaintiffs are Amy Keller of DiCello Levitt & Casey in Chicago, Ken Canfield of Doffermyre Shields Canfield & Knowles in Atlanta, and Norman Siegel of Stueve Siegel Hanson in Kansas City, Missouri.
Co-lead counsel for the financial institutions include: Craig Gillen of Atlanta’s Gillen, Withers & Lake; Ranse Partin of Atlanta’s Conley Griggs Partin and MaryBeth Gibson of Atlanta’s The Finley Firm.
Equifax is represented by a team of King & Spalding attorneys led by David Balser and Phyllis Sumner in Atlanta.
Plaintiffs counsel pointed to 122,000 pages of documents from transcribed interviews with three former Equifax employees “directly involved with” the credit bureau’s information technology department and a “trove of documents on file with committee.” Those documents include witness interview transcripts, emails, incident response charts, security audits, internal policies and procedures, and expired digital security certificates.
“All of these documents are highly relevant to this litigation,” plaintiffs’ counsel said. They also suggested it will be more efficient to produce the information already provided to Congress now, rather than after Thrash rules on the motions to dismiss.
“Presumably, a meaningful review of the documents in the civil litigation will also take months to conduct,” the motion said. “There is no need to impose this additional delay in these cases of great public importance.”
It is not the first time plaintiffs lawyers have asked for materials that Equifax turned over to the House oversight committee. They first asked Thrash to lift the discovery stay regarding all material turned over to Congress in October and suggested that Equifax had balked at providing preliminary information that would allow them to tell the judge what discovery they intended to seek and “avoid months of dead time.”
Equifax has informed plaintiffs counsel that it would not provide any documents before discovery formally opens and has cited employee nondisclosure agreements that would bar Equifax employees from disclosing company information.
Equifax lawyers have asked Thrash to deny the request.
“To depart from this court’s local rules and the mutually agreed-upon scheduling order, plaintiffs must show good cause why discovery must be obtained now and not after the forthcoming ruling on the pending motions to dismiss,” Equifax lawyers responded.
“Plaintiffs’ specific discovery requests—seeking every document Equifax provided to any government regulators, up to five depositions, … and the production of documents from multiple third parties—far exceed the scope of permissible discovery at any time and would only invite further discovery disputes before this court at a time when the Court is otherwise focused on the threshold motions to dismiss.”