                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2005-IA-00153-SCT

CAPITAL ONE SERVICES, INC., AND CAPITAL
ONE BANK

v.

EARTHA PAGE


DATE OF JUDGMENT:                          01/10/2005
TRIAL JUDGE:                               HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                 COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  FRED L. BANKS, JR.
                                           JAMES W. SHELSON
                                           REBECCA HAWKINS
                                           KENNETH J. GRIGSBY
ATTORNEYS FOR APPELLEE:                    A. REGNAL BLACKLEDGE
                                           DAVID SHOEMAKE
NATURE OF THE CASE:                        CIVIL - CONTRACTS
DISPOSITION:                               AFFIRMED AND REMANDED - 11/16/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Eartha Page filed suit in the Covington County Circuit Court on September 12, 2003,

against Capital One Services, Inc., and Capital One Bank (collectively Capital One).   The suit

was based on Capital One’s alleged failure to disclose certain terms of a credit card account

with Page, which included numerous fees and charges and resulted in a significant increase in

the amount she owed Capital One.          Page made discovery requests for a list of all
Mississippians who were issued accounts from January 1, 1999, to April 13, 2004, utilizing

acceptance certificate forms identical to the one she completed.          She also requested the forms

themselves.   After Capital One objected to this request, Page filed a motion to compel.             The

circuit court granted her motion in part, limiting its scope and ruling that Capital One would

not have to produce the actual forms at that time.            On Motion for Reconsideration the trial

court further limited its ruling to place restrictions on how the compelled information could

be used, and ordered “an appropriate confidentiality order in a form agreed to by the parties to

be submitted to and entered by the court.”              Although the trial court denied certification for

interlocutory appeal, it did stay further proceedings pending         appeal.   Capital One’s challenge

to this discovery ruling is the only issue now before this Court on this interlocutory appeal

which we granted. See M.R.A.P.5.

                                               FACTS

¶2.    Page’s amended complaint against Capital One alleged failure to disclose essential

terms of the Mastercard account agreement with Capital One, breach of contract, breach of

Capital One’s duty of good faith and fair dealing, fraudulent inducement, and gross negligence

in managing the account.        Page claimed that Capital One’s failure to disclose information

regarding membership fees, payment protection, past due fees, over limit fees, finance charges

and the interest rate resulted in the accumulation of debt that she should not have to pay.

Specifically, Page claimed that from approximately July of 2000 to January of 2001, charges

totaling about $243 were made against her account,           that she had paid approximately $647 on

the account, and still owed approximately $1,474.

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¶3.     The case proceeded to the discovery phase, and Page requested that Capital One produce

a list of the names, addresses, and telephone numbers of all Mississippians who completed the

same form she completed, known as a form 4136 acceptance certificate, and who were issued

an account during the five year period from January 1, 1999 until April 13, 2004.            Page also

requested that Capital One produce the form 4136 acceptance certificates completed by each

of these persons. Capital One objected, arguing, inter alia, that the request was overly broad

in scope and time period, was unduly burdensome and was not reasonably calculated to lead to

the discovery of admissible evidence.         Further, and most notably, Capital One argued that

Page’s requests sought disclosure of information protected and precluded by the Gramm-

Leach-Bailey Act, 15 U.S.C. §§ 6801-6809 (2006) (hereafter GLBA).

¶4.     The trial court granted Page’s motion to compel in part, limiting the scope of the

request to cover only names and addresses of Mississippians who had completed the form

within a two-year period between July 1999 and June 30, 2001.               Subsequently, on motion for

reconsideration, the trial court specifically and strictly set forth limitations as to how and by

whom the information obtained could be used. The court’s order required the parties to prepare

an agreed confidentiality agreement, and provided directions as to certain provisions which

must be included. (See ¶19, infra).      The order denied the request to compel Capital One’s

production of the actual form 4136 acceptance certificates.              From that order on motion to

reconsider, Capital One filed this interlocutory appeal contending the trial judge erred because

the GLBA protects the information sought in Page’s request, and because the request was not

reasonably calculated to lead to the discovery of admissible evidence.

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                                            ANALYSIS

¶5.     In its order denying the motion for reconsideration, the trial court noted that this Court

had withdrawn its opinion in an earlier case which “concluded that the GLBA prevented the

discovery of non-public information from customer files of financial institutions.”           Further

noting that a similar ruling by a Louisiana federal district court was vacated on other grounds,

the trial court also pointed out that “three other jurisdictions have found the GLBA not to be

a bar to discovery in similar situations” and concluded “that in the absence of binding authority

to the contrary the discovery here at issue should be permitted with appropriate limitations as

to confidentiality and use.”

        I.      THE GLBA

¶6.     This Court applies a de novo standard of review to statutory interpretation.   Warren v.

Johnston, 908 So. 2d 744, 746 (Miss. 2005). The trial court is afforded considerable latitude

in handling discovery matters, and its order will not be disturbed absent an abuse of discretion.

City of Jackson v. Internal Engine Parts Group, Inc., 903 So. 2d 60, 65 (Miss. 2005). The

GLBA contains a statement of policy regarding protection of nonpublic personal information,

as follows:

        It is the policy of the Congress that each financial institution has an affirmative
        and continuing obligation to respect the privacy of its customers and to protect
        the security and confidentiality of those customers’ nonpublic personal
        information.

15 U.S.C. § 6801(a). The statute goes on to state:

        Except as otherwise provided in this subchapter, a financial institution may not,
        directly or through any affiliate, disclose to a nonaffiliated third party any

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        nonpublic personal information, unless such financial institution provides or has
        provided to the consumer a notice that complies with section 6803 of this title.

15 U.S.C. § 6802(a).       However, Congress also provided general exceptions to the notice and

opt out provisions of Section 6802, including the following:

        (8) to comply with Federal, State, or local laws, rules, and other applicable legal
        requirements; to comply with a properly authorized civil, criminal, or regulatory
        investigation or subpoena or summons by Federal, State, or local authorities; or
        to respond to judicial process or government regulatory authorities having
        jurisdiction over the financial institution for examination, compliance, or other
        purposes as authorized by law.

15 U.S.C. § 6802(e)(8).

¶7.     There are two schools of thought concerning the application of this statute to discovery

in civil suits.   Capital One argues that the purpose of the GLBA is to protect the privacy of

customers of financial institutions and that to allow circumvention of the privacy protections

contained in the act would negate much of its effectiveness.   It maintains that to permit a court

to order disclosure of private information to a private plaintiff would eviscerate the protections

established by the GLBA.

¶8.     On the other hand, Page wants this Court to adopt the approach applied by the highest

courts in West Virginia and Alabama, as well as federal district courts in Texas and West

Virginia. These courts have decided that the judicial process exception in 15 U.S.C. §

6802(e)(8) allows for discovery of customer information in civil cases.     See Choate v. State

Farm Lloyds, No. Civ. A. 3:03-CV-2111- M, slip op. at 4 (N.D. Tex. May 5, 2005); Marks v.

Global Mortgage Group, Inc., 218 F.R.D. 492, 496 (S.D.W. Va. 2003); Ex parte Nat’l W.




                                                    5
Life Ins. Co., 899 So. 2d 218, 226 (Ala. 2004); Martino v. Barnett, 595 S.E.2d 65, 72 (W.

Va. 2004). One basis for this view is articulated in Martino, 595 S.E.2d at 71:


       The legislative history indicates that the House Bill, which added the privacy
       protections to the GLBA, envisaged an independent judicial process exception.
       See H.R. 74, 106th Cong. 93, 108-09, [202] (1999) (discussing a judicial
       process exception without reference to "government regulatory authorities
       having jurisdiction over the financial institution for examination, compliance, or
       other purposes authorized by law").


Ex parte Mutual Savings Life Insurance Co., 899 So. 2d 986, 992-93 (Ala. 2004), states
another reason for this approach:

       A plain reading of the GLBA reveals that the phrase "to respond to judicial
       process" is independent from the phrase "to respond to ... government regulatory
       authorities having jurisdiction over the financial institution for examination,
       compliance, or other purposes authorized by law." See 15 U.S.C. § 6802(e)(8).
       Clearly, when a party discloses information pursuant to a court order, the party
       engages in a judicial process. See Ex parte Nat’l Western Life Ins. Co., 899 So.
       2d 218 (Ala. 2004)(providing a thorough explanation of the reasons civil
       discovery falls within the judicial-proceedings exception to the GLBA).


¶9.    Additionally, in an amicus brief in support of Page, the Mississippi Trial Lawyers

Association (MTLA) argues that if this Court adopts the view Capital One advocates, the Equal

Credit Opportunity Act (ECOA), 15 U.S.C. § 1691(a)(1), Fair Housing Act (FHA), 42 U.S.C.

§§ 3605 and 3617, Civil Rights Act of 1964 (CRA), 42 U.S.C. §§ 1981, 1982, and § 2000(a-1)-

2000(e-4), and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §

1962, will essentially be rendered void.    For example, the requirements of a prima facie claim

under the FHA, 42 U.S.C. §§ 3605 and 3617 and the ECOA, 15 U.S.C. § 1691(a)(1) include a

showing by the claimant that: (1) he or she is a member of a protected class; (2) he applied for


                                                  6
and was qualified for a loan;         (3) the loan application was rejected despite his or her

qualifications;   and (4) the lender continued to approve loans for applicants with qualifications

similar to those of the plaintiff. See, e.g., Michigan Prot. and Advocacy Serv., Inc. v. Babin,

18 F.3d 337, 346 (6th Cir. 1994). The same four elements are required to make a prima facie

case under the CRA. See, e.g., Selden Apartments v. United States Dep’t of Hous. & Urban

Dev., 785 F.2d 152, 159 (6th. Cir. 1986).          In addition, the RICO statute requires the claimant

to show a pattern of racketeering activity. 18 U.S.C. § 1962(b). The MTLA argues that if this

Court accepts Capital One’s interpretation of 15 U.S.C. § 6802(e)(8), then the claimant will not

be able to show a pattern of behavior to make out a prima facie case under the ECOA, the FHA,

the CRA, and the RICO.

¶10.    This Court has stated “[o]ur duty is to carefully review statutory language and apply its

most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock,

912 So. 2d 935, 937 (Miss. 2005).             Further, the polestar consideration for this Court is

legislative intent. Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So. 2d 1025,

1028 (Miss. 1999). To reiterate, 15 U.S.C. § 6802(e)(8) is an exception to the general rule that

the names and addresses cannot be released, and it explicitly says:

        to comply with Federal, State, or local laws, rules, and other applicable legal
        requirements; to comply with a properly authorized civil, criminal, or regulatory
        investigation or subpoena or summons by Federal, State, or local authorities; or
        to respond to judicial process or government regulatory authorities having
        jurisdiction over the financial institution for examination, compliance, or
        other purposes as authorized by law.




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The key inquiry is whether “judicial process” was meant to stand apart from the latter part of

the sentence that states “having jurisdiction over the financial institution for examination,

compliance, or other purposed as authorized by law.”

¶11.    The contrary view is that the words “judicial process” stand apart from the rest of the

sentence, meaning that the exception applies when a financial institution is acting to comply

with judicial process, and/or when a government regulatory authority is investigating the

institution. See Marks, 218 F.R.D. at 496.


¶12.    When reading 15 U.S.C. § 6802(e)(8) on its face, both views represent fair

interpretations.   The legislative history reveals the discussion of a stand alone judicial process

exception without reference to government regulatory authorities having jurisdiction over the

financial institution for examination, compliance, or other purposes authorized by law. Martino,

595 S.E.2d at 71.

¶13.    Further, while Capital One’s interpretation of 15 U.S.C. § 6802(e)(8) will not have as

drastic an effect as the MTLA argues that it will,       it would make it more difficult to show a

pattern of behavior when making a prima facie case under the ECOA, 15 U.S.C. § 1691(a)(1),

FHA, 42 U.S.C. §§ 3605 and 3617, CRA, 42 U.S.C. §§ 1981, 1982, and 2000(a-1)-2000(e-4),

and the RICO, 18 U.S.C. § 1962.          It is illogical to believe that Congress intended to undercut

these federal statutes. See Doe v. Bridgeport Police Dep’t, 198 F.R.D. 325, 341 (D. Conn.

2001) (Legislature is presumed to have intended a consistent body of law); see also Fla. E.

Coast Ry. v. United States, 259 F. Supp. 993, 996 (M.D. Fla. 1966) (“It is incumbent upon [the


                                                  8
court] to seek to rationalize the statutes involved here and make of them, to the extent that what

Congress has written will permit, a harmonious functional body of law”).

¶14.    Further, even if the words “judicial process” were not meant to be separated from “or

government regulatory authorities having jurisdiction over the financial                 institution   for

examination, compliance, or other purposes as authorized by law”, that catch-all at the end

of the sentence clearly allows for other purposes authorized by law.              Having jurisdiction for

other purposes authorized by law would reasonably include responding to an order compelling

discovery in a court that has jurisdiction over the financial institution in a civil case.1            This

interpretation of 15 U.S.C. § 6802(e)(8) is reasonable and faithful to the intent of Congress.

¶15.    A major factor in this Court’s decision in the present case is the specificity of the trial

court’s order requiring the parties to agree upon and prepare a confidentiality order to be

entered by that court, “which shall provide, among other things” the following:

        that the list is provided solely for use in this litigation; that the information
        provided shall be held strictly confidential; that the list will not be used to solicit
        the persons on the list for any purpose including but not limited to legal
        representation; that the plaintiff’s attorney shall not in the future represent
        persons whose names appear on the list against Capital One with respect to
        transactions similar to the one here in issue and which have occurred prior to
        production of the list unless permitted to do so by further order of this court; and
        that the list shall not be shared with any person other than counsel of record for
        plaintiff who shall all be bound by the terms of the confidentiality order.

        II.     THE SCOPE OF DISCOVERY



         1
           We could not find any authority to support this reading of the statute, or to denounce
 it. Rather, the cases focus on the judicial process exception.

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¶16.    The scope of discovery is broad and non-privileged evidence is discoverable when it

“appears reasonably calculated to lead to the discovery of admissible evidence.” West v. West,

891 So. 2d 203, 219 (Miss. 2004) (citing M.R.C.P. 26(b)(1)). The trial court has considerable

discretion relating to matters of discovery; its order will not be reversed unless there has been

an abuse of that discretion. Harkins v. Pascall , 348 So. 2d 1019, 1022 (Miss. 1997). This

Court does not favor interlocutory appeals regarding discovery issues.

¶17.    Capital One contends that, even though the GLBA does not prohibit the release of the

names and addressed of all Mississippians who completed a Form 4136 over the period of two

years, the information is still outside the scope of discovery.      On the other hand, Page argues

the evidence sought is reasonably calculated to lead to the discovery of admissible evidence

because she wants to know what disclosures were made to other Mississippians, if any,          who

completed a Form 4136. Apparently, Capital One produced “samples” of what they allege Page

received pertaining to the credit account. Page asserts she never received these documents and

seeks to ask other applicants if they received them to prove Capital One is incorrect or

untruthful.

¶18.    Considering the wide discretion afforded to trial judges in making discovery decisions,

we cannot say there was an abuse of discretion here.           The evidence sought is probative to

validate Page’s claim that she did not receive adequate disclosures pertaining to her credit

account with Capital One.      If a significant number of applicants say they also did not receive

such disclosures, it strengthens her claim.    And the converse would, of course, be true.     The



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requested evidence could be probative of fraud should it reveal a clear pattern of non-

disclosure. See Ex parte Allstate Ins. Co., 401 So. 2d 749, 751 (Miss. 1981) (“Evidence of

similar misrepresentations made to others by the defendant is admissible in a fraud action.”).

Moreover, this Court has stated that Mississippi law favors discovery, and limitations on

discovery should be respected, but not extended.         Elec. Data Sys. Corp. v. Miss. Div. of

Medicaid, 853 So. 2d 1192, 1210 (Miss. 2003) (citing Dawkins v. Redd Pest Control Co., 607

So. 2d 1232, 1235 (Miss. 1992)). Accordingly, we affirm the trial judge’s discovery order.

                                          CONCLUSION

¶19.    The GLBA does not prohibit the strictly limited disclosure in discovery of the names

and addresses of other Mississippians who completed a Form 4136 identical to that completed

by Page. This information is reasonably calculated to lead to admissible evidence. Therefore,

we affirm the trial judge’s order and remand this case to the trial court so the parties may

prepare the agreed confidentiality order to be presented to, and entered by, the trial court prior

to discovery.

¶20.    AFFIRMED AND REMANDED.


    SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND
RANDOPLH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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