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Downs v. River City Group, LLC

United States District Court, D. Nevada

October 27, 2014

LINDA DOWNS, Plaintiff,
v.
RIVER CITY GROUP, LLC, et. al., Defendants.

ORDER RE: REMAINING DOWNS-WELLS FARGO DISCOVERY DISPUTE

WILLIAM G. COBB, Magistrate Judge.

The court issues this Order with respect to the remaining discovery dispute between Plaintiff Linda Downs (Downs) and defendant Wells Fargo Bank, N.A. (Wells Fargo).[1]

I. BACKGROUND

The facts and procedural history leading up to the issuance of this Order are set forth in Judge Hicks' September 17, 2014 order (Doc. #257)[2], and the undersigned's September 24, 2014 order on remand (Doc. #258). In accordance with the court's order on remand, Downs and Wells Fargo have submitted memoranda outlining the remaining areas of dispute concerning discovery between them. (Doc. #265 (Downs); Docs. #266, #266-1[3] (Wells Fargo).) They identified the following areas that remain in dispute: (1) Wells Fargo's alleged failure to prepare its Rule 30(b)(6) designees, including Jessica Jones (Jones) and Luann Tupa (Tupa); (2) Wells Fargo's alleged failure to produce documents identified in various Rule 30(b)(6) depositions; (3) Wells Fargo's purported deficient responses to written discovery, including interrogatories and requests for production of documents; (4) Wells Fargo's alleged failure to provide adequate privilege logs; and (5) the alleged failure of Wells Fargo to produce documents related to the Dollens case. The court will now summarize the positions of the parties and provide its analysis and direction with respect to these remaining discovery issues.

II. PREPARATION OF RULE 30(b)(6) DESIGNEES

Downs argues that Wells Fargo failed to adequately prepare its designated Rule 30(b)(6) witnesses, Jones and Tupa for their depositions. (Doc. #265 at 1-2.) Downs asserts that the witnesses were unprepared at their first depositions that took place on November 14 and 15, 2012, and were still unprepared at their second depositions on February 1, 2013. ( Id. )

Wells Fargo contends that the lack of knowledge on the part of any witness was based on questions that were beyond the scope of the deposition notice, and when a witness did not have answers to questions, they were supplied by another witness. (Doc. #266 at 2.) Wells Fargo asserts that it produced three 30(b)(6) witnesses who provided more than seventeen hours of deposition testimony and Downs' dislike for their testimony does not mean they were unprepared. ( Id. )

A. Jones Depositions

Wells Fargo designated Jones to testify regarding the following topics: (1) foreclosure process; (b) the payment protection policy; (c) policies and procedures, internal auditing, quality control and training; (d) loss mitigation; (e) records retention, phone logs, and technology; and (f) miscellaneous items. (Doc. #265 at 1-2.) Downs identifies various areas of purported deficiency with respect to Jones' depositions.

First, Downs argues that Jones could not speak to and did not know the specific guidelines Wells Fargo followed/used in this matter. (Doc. #265 at 2.) She asserts that Paul Goers, a Wells Fargo employee told others at Wells Fargo investigating the Downs' claim that the "Investors and Foreclosure" group's rules governed when and if a loan could go into foreclosure, but these rules were not disclosed by Jones or produced by Wells Fargo. ( Id. at n. 2.)

In her deposition, Jones testified that Wells Fargo utilized the note, deed of trust, and Freddie Mac guidelines in order to service the subject loan. (Doc. #235-2 at 5-8, Feb. 1, 2013 Jones Depo. at 13-16.) Jones testified that the Freddie Mac guidelines Wells Fargo followed are publicly available on Freddie Mac's website. ( Id. ) While counsel tried to ask Jones what specific guidelines were utilized in servicing the loan, it was Jones' testimony that Wells Fargo serviced the loan utilizing all of the Freddie Mac guidelines. ( Id. ) If Downs had a question about the use of a specific guideline, she could have posed more specific questions, but chose not to. While Downs now argues that some other rules were utilized in determining whether a loan could go into foreclosure, i.e., the Investor and Foreclosure group's rules, that was not Jones' testimony. Downs does not state what other information she seeks to gain from this witness on this topic. As such, there does not appear to be any further basis for examining this witness regarding this issue.

Second, Downs claims that Jones did not know who created the timeline on WELLS 1681 and could not answer questions regarding the timeline. (Doc. #265 at 2.) Wells Fargo is correct that Tupa testified that she herself created the timeline. Downs had an opportunity to question Tupa, the author of the timeline, about the document. Therefore, there is no basis to compel any further testimony from Jones on this subject.

Third, Downs contends Jones did not know anything about the Foreclosure Overview found on WELLS 1733 and did not know about prior versions of the document. (Doc. #265 at 2.) Wells Fargo argues that Jones testified that Wells Fargo authored the Foreclosure Overview, and while she did not know if there were prior versions of the document, this is immaterial as Downs did not ask Jones any further questions about the document. (Doc. #235 at 6.)

Downs' counsel did ask Jones several substantive questions about the document in her second deposition. ( See Doc. #192-1 at 8, Feb. 1, 2013 Jones Depo. at 22-29.) Downs does not explain how this document (or any other version of it) is relevant to her remaining claims or what else she intends to elicit from this witness concerning this document. As such, the court finds no basis for compelling further testimony on this subject.

Fourth, Downs states that Jones did not know how the deed of trust was used to service the Downs' loan. (Doc. #265 at 2.) Again, Jones testified that the terms of the deed of trust, along with the Freddie Mac guidelines, were used in servicing the loan. Downs does not explain what further testimony she expects to elicit from this witness on this topic or how it is relevant to her remaining claims. Accordingly, the court will not permit further examination of Jones on this issue.

Finally, Downs takes issue with the fact that Jones could not answer why Wells Fargo filed a notice of sale after it closed the foreclosure in November of 2011. (Doc. #265 at 2.) Wells Fargo explains that Jones and Wells Fargo would not have had this information because MTC Financial, not Wells Fargo, executed and recorded the notice of sale. (Doc. #235 at 7-8.) In light of this, the court agrees that Downs should have obtained this information from MTC Financial, and not Wells Fargo.

B. Tupa Depositions

Tupa was designated to testify regarding communications with Minnesota Life. (Doc. # 265 at 2.) Downs identifies several ways in which Tupa was allegedly unprepared.

First, Downs asserts that Tupa did not know what timeline Paul Goers was referencing with regards to the timeline provided by Optional Services (Tupa's department). (Doc. #265 at 2.) This is belied by Tupa's own testimony, where she stated that she believed that WELLS 1681 is the timeline that she created and sent in the email to Paul Goers, which Goers discussed in his email at WELLS 538. (Doc. #235-1 at 5, Feb. 1, 2013 Tupa Depo. at 7:3-17.) Therefore, there is no basis for compelling further examination on this topic.

Second, Downs claims that Tupa did not know why some of the Minnesota Life payments were sent back to Downs. (Doc. #265 at 2.) Wells Fargo points out that Jones testified extensively on this topic. (Doc. #235 at 8.) It is true that Jones was questioned and did provide some testimony on this topic. ( See, e.g., Doc. #110-4 at 16-17, Nov. 14, 2012 Jones Depo. at 254-260.) At Jones' November 14, 2012 deposition Wells Fargo's counsel did represent that Tupa would testify as to the process Wells Fargo may have had in place at the time the payments were received from Minnesota Life. ( Id., Jones Depo. at 260:3-11.)

Tupa testified that the foreclosure department sent funds back to the mortgagor that were the claim check funds, and when she was asked why they sent the payments back, Tupa testified that it was done by the foreclosure department and that question would have to be posed to them. (Doc. #110-6 at 28, Nov. 15, 2012 Tupa Depo. at 104:5-16.) After receiving this response, counsel moved on from this line of questioning. ( Id. ) Later in the deposition, the discussion returned to this topic. Tupa testified regarding application of the funds: "Our department received the check, sent the funds to Cash, asked them to make the mortgage payments. They and Foreclosure had processes that they need to follow. I believe those funds were sent back to the mortgagor." (Doc. #110-7 at 3, Nov. 15, 2012 Tupa Depo. at 134:1-7.) She was then asked why the funds were sent back to the mortgagor, and testified again that question would have to be addressed with the foreclosure department. ( Id. at 134:8-14.) When counsel asked whether there would be another Rule 30(b)(6) witness to testify as to this issue, Wells Fargo's counsel indicated that the Rule 30(b)(6) witness who would testify as to that topic was Jones, who had testified the day before. ( Id. at 134:15-18.) Downs' counsel then moved on to another line of questioning. Tupa was asked this same question later on in the deposition, and responded, consistent with her previous responses, that Downs would have to ask the foreclosure department why payments were returned to Downs. ( Id. at 231:19-25, 234:25-235:6.)

Downs then deposed both Jones (who was designated as to foreclosure issues) and Tupa again in February 2013. In her second deposition, Jones testified that some funds received from Minnesota Life were returned (and not applied to the loan). (Doc. #192-1 at 20, Feb. 1, 2013 Jones Depo. at 72:6-10, 17-21.) Downs' counsel was afforded the opportunity to ask Jones, who had been designated on the topic of foreclosure, and identified by Tupa as the person who would have knowledge on this topic, why the payments were sent back to Downs. Downs' counsel did not do so. In light of this, the court is not inclined to allow further examination on this topic.

III. DOCUMENTS IDENTIFIED DURING RULE 30(b)(6) DEPOSITIONS BUT NOT PRODUCED

Downs contends that various documents were identified or referenced in the Rule 30(b)(6) depositions, but were not produced by Wells Fargo, including the following: (1) "OQM" e-mail of the "5-10" notes to Wells Fargo employee "M. Thomas"; (2) e-mails and attachments to and from Tupa and Jones; (3) e-mails and letter logs and collection notes referenced in Jones' deposition; (4) evidence of the "corrupted phone call" between Downs and Wells Fargo[4]; (5) the checks/correspondence sent to "Cash", including e-mails and correspondence included with those reports as referenced in Tupa's deposition; (6) the "P112 Report" along with related correspondence; (7) the Optional Product Payment Reports and Optional Product Maintenance Reports; (8) documentation of discussions had regarding the "process gap"; (9) e-mails to and from Shannon Eckert and Renee Biernat with attached copies of the direct mail kit previously used for the "Secure 12" product and other materials and information related to this including a master confidentiality agreement; (10) the exact e-mail kit sent to Downs. (Doc. #265 at 3.)[5]

Wells Fargo asserts that it has produced all of the documents Downs contends have not been produced, or has withheld them on privilege grounds. (Doc. #266 at 2-3.) Wells Fargo has provided a table listing categories of documents either produced or withheld on privilege grounds, and has attached an exhibit consisting of 762 pages of documents it has produced. (Doc. #266 at 2-3; Doc. #266-1.) The court notes that Wells Fargo's memorandum indicates that the documents regarding the "process gap" and post-litigation e-mail communications between Jones and Tupa and Shannon Eckert and Renee Biernat are privileged, and will be covered in a supplemental privilege log. (Doc. #266 at 3.)

Downs is directed to provide a statement to the court within the timeframe prescribed below addressing whether this issue has been resolved, and what documents, if any, remain to be produced. Prior to submitting this statement, if any areas of dispute remain, the parties are directed to engage in a meaningful meet and confer to attempt to resolve the dispute.

IV. INTERROGATORIES

Downs claims that Wells Fargo failed to respond to interrogatories 10, 12 and 18. (Doc. #265 at 4.)

Wells Fargo argues that Downs' assertion that Wells Fargo did not respond to interrogatories 10, 12, and 18 is incorrect, and in reality, Downs simply does not like the responses received. (Doc. #266 at 3.)

Interrogatory 10 asks Wells Fargo to: "State whether the federal government has a financial interest in the Note by way of underwriting, guarantee, indemnification or ownership." (Doc. #192-4 at 8.) Wells Fargo responded:

Objection- this interrogatory requests information that is not reasonably calculated to lead to discovery of admissible evidence. Wells Fargo also objects to this interrogatory as vague and ambiguous because it is not clear what plaintiff means by "the federal government" or "a financial interest in the Note by way of underwriting, guarantee, indemnification or ownership."
Subject to and without waiving these objections, Wells Fargo states that the Federal Home Loan Mortgage Corporation is the investor for the loan the Note evidences.
Discovery is continuing, and Wells Fargo reserves the right to supplement this response in the event that further relevant facts become available.

(Doc. #192-4 at 8.)

In her prior motion to compel, Downs argued: "[Wells Fargo has failed to describe the Federal Home Loan Mortgage Corporation's interest in the "Note." Merely stating that it is an investor means nothing.]" (Doc. #222 at 6.) Wells Fargo contends that this response clearly discloses that Freddie Mac is the owner of the loan. (Doc. #235 at 9.) The response says that "the Federal Home Loan Mortgage Corporation is the investor for the loan, " but does not state that it owns the loan. Wells Fargo shall supplement its response to Interrogatory 10 to reflect its representation that Freddie Mac is the owner of the loan (as stated in Doc. #235 at 9).

Interrogatory 12 asks Wells Fargo to: "State all state and federal pre-suit default prevention procedures you undertook prior to this action." (Doc. #192-4 at 8.) Wells Fargo responded:

Objection - this interrogatory requests information that is not reasonably calculated to lead to discovery of admissible evidence. This interrogatory is also vague and ambiguous, particularly because it is not clear what plaintiff means by "state and federal pre-suit default prevention procedures."
Subject to and without waiving these objections, Wells Fargo states that it is the borrower's responsibility to avoid default.
Discovery is continuing, and Wells Fargo reserves the right to supplement this response in the event that further relevant facts become available.

(Doc. #192-4 at 8.)

This response does not answer the question posed. Wells Fargo shall supplement its response to Interrogatory 12. If Wells Fargo is not clear as to what type of state and federal presuit default prevention procedures Downs is referring to, it shall meet and confer with Downs to clarify what she means.

Interrogatory 18 asks Wells Fargo to: "State the relationship between Wells Fargo and Minnesota Life Insurance Company, including when the relationship began and ended." (Doc. #192-4 at 13.) Wells Fargo responded:

Objection - this interrogatory requests information that is not reasonably calculated to lead to discovery of admissible evidence. This interrogatory is also vague and ambiguous, particularly because it is not clear what plaintiff means by "the relationship between Wells Fargo and Minnesota Life Insurance Company." In addition, this interrogatory calls for information that is protected by the attorney-client privilege and/or the attorney work product doctrine. Wells Fargo also objects to this interrogatory because it is compound, overbroad and unduly burdensome.
Subject to and without waiving these objections, Minnesota Life underwrote a group monthly benefit mortgage life insurance policy for Wells Fargo. The group policy number is 400752-G.
Discovery is continuing, and Wells Fargo reserves the right to supplement this response in the event that further relevant facts become available.

(Doc. #192-4 at 14.)

Wells Fargo gives an adequate description of its relationship with Minnesota Life, but the response is incomplete because it does not state when its relationship with Minnesota Life began and ended. Wells Fargo shall supplement its response to Interrogatory 18 to provide this information.

V. REQUESTS FOR PRODUCTION OF DOCUMENTS

As to the requests for production of documents, Downs contends Wells Fargo's responses to the following requests are deficient: 1, 2, 6, 8, 9, 10, 15, 16, 17, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 45, 46, 47, 48, 51, 52, 53, 54, 55, 56, 61, 63, 64, 65, 66, 68, 70, 71, 72 and 75. (Doc. #265 at 4-9.)

A. Preliminary Findings

The requests and their responses can be found in Doc. #192-5, and requests 1, 2, 6, 8, 9, 10, 15, 16, 17, 20, 21, 22, 24-33 (those for which Downs provides a specific argument), are repeated here for convenience and reference in the discussion. Preliminarily, the court finds that Wells Fargo's reference to the universe of documents it has produced in response to a particular request is insufficient. Federal Rule of Civil Procedure 34(b)(2)(E)(i) states that documents must be produced "as they are kept in the usual course of business or [the responding party] must organize and label them to correspond to the categories in the request[.]" "This rule is meant to prevent a party from obscuring the significance of documents by giving some structure to the production.'" American General Life Ins. Co. v. Vistana Condominium Owners Ass'n, 2014 WL 2041950 (D. Nev. May 16, 2014) (quoting City of Colton v. Am. Promotional Events, Inc., 277 F.R.D. 578, 584 (C.D. Cal. 2011)). "Therefore, the production must be rationally organized to enable the parties to determine if responsive documents have been produced." Id.

The court has not been provided information as to whether Wells Fargo produced its documents as they are kept in the ordinary course of business; however, Wells Fargo's responses that refer to nearly 3000 documents produced do nothing to aid Downs in determining which documents are responsive to a particular request, and therefore, whether or not the production is sufficient. While Wells Fargo contends that it had an agreement with Downs to respond in this manner, it has provided no evidence of such an agreement, which Downs' obviously disputes. As such, the responses shall be supplemented to identify specific documents, by bates label, that are responsive to each request. The court will now address the requests for which Downs has provided specific arguments regarding the deficiency of Wells Fargo's responses.

B. Requests 1, 2, 6, 8-10, 15-17, 20-22, 24, 28, 33

Request 1: All contracts and agreements between Wells Fargo and any person or entity regarding the servicing of the applicable deed of trust and/or note at issue in this matter.

Response to Request 1: Objection - this Request is not reasonably calculated to lead to the discovery of admissible evidence. This Request is also overly broad and unduly burdensome because, inter alia, it is not limited to a specific time frame. Wells Fargo also objects to this Request to the extent it implies that deeds of trust are serviced.

Without waiving these objections, Wells Fargo services the loan for Freddie Mac. Wells Fargo states that the servicing guidelines are equally available to plaintiff and Wells Fargo, and that they are publicly available at www.freddiemac.com. The Freddie Mac guidelines are judicially noticeable pursuant to FRE 201, and self-authenticating pursuant to FRE 902(5). Wells Fargo intends to rely on these ...


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