United States District Court, D. Nevada
January 5, 2017
ALEXIS GURSHIN, Plaintiff,
BANK OF AMERICA NATIONAL ASSOCIATION; et. al., Defendants.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the court are the following motions:
1. Bank of America's motion to deem requests admitted
(ECF No. 106); Gurshin's response (ECF No. 116); and Bank
of America's reply (ECF No. 124).
2. Gurshin's motion to extend time (ECF No. 123)
3. Gurshin's motion to deem requests admitted (ECF No.
117); Bank of America's response (ECF No. 125); and
Gurshin's reply (ECF No. 126).
4. Gurshin's motion to compel additional deposition time
(ECF No. 120); Bank of America's response (ECF No. 127);
and Gurshin's reply (ECF No. 128).
Bank of America's Motion to Deem Requests Admitted
(ECF No. 106)
matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the
requesting party a written answer or objection."
Fed.R.Civ.P. 36(a)(3). "If a matter is not admitted, the
answer must specifically or state in detail why the answering
party cannot truthfully admit or deny it." FED. R. Civ.
P. 36(a)(4). "The answering party may assert lack of
knowledge or information as a reason for failing to admit or
deny only if the party states that it has made reasonably
inquiry and that the information it knows or can readily
obtain is insufficient to enable it to admit or deny."
good faith requires that a party qualify an answer or deny
only part of a matter, the answer must specify the part
admitted and qualify or deny the rest." Id.
American's requests for admissions may be separated into
two categories: 1) those related to factual disputes and 2)
those asking about the authenticity of documents. Requests
35, 43, 58, 63, 65, 67, 70, 75 and 76 fall under the first
category. Gurshin responded to each request with a
straightforward "Deny." She followed up each denial
with an explanation or qualification. Although Gurshin's
explanations are slightly confusing, they do not detract from
the clarity of Gurshin's denial. Gurhsin's responses
to requests 35, 43, 58, 63, 65, 67, 70, 75, and 76 are
84, 85, 87, and 90-127 fall into the second category. The
requests 90- 127 follow an identical pattern. Request 90 asks
if a letter with a particular BATES number "is a true
and correct copy of an authentic genuine business record of B
ANA and its third-party leave administrator, Aetna."
Request 91 asks if Gurshin had received the previously
mentioned letter within one week of the date indicated on the
letter. Requests 92-127 follow this pattern.
responded to request 90 with a "Deny." She then
provided a tangential statement about the progress of
discovery during this action. In response to request 91,
Gurshin stated she was "[u]nable to admit or deny at
this time, and am examining my own documents and will
supplement within three weeks." Gurshin's responses
to requests 90-127 follow this pattern.
regard to the requests to admit the genuineness documents,
Gurshin properly denied each request. Although she provided
additional statements that did not relate to the bank's
request, those statements did not undermine her denial.
Requests 84, 85, 87, 90, 92, 94, 96, 98, 100, 102, 104, 106,
108, 110, 112, 114, 116, 118, 120, 122, 124, and 126 were
responses to the remaining authentication requests are more
problematic. Gurshin's supplemental responses stated she
was "still unable to admit or deny" after reviewing
her records. (ECF 124-1) Gurshin did not explain the steps
she took in attempting to answer the request nor did she
explain why she lacked sufficient information to admit or
deny. FED. R. Civ. P. 36(a)(4). As Gurshin has not provided a
proper response or objection, requests 91, 93, 95, 97, 99,
101, 103, 105, 107, 109, 111, 113, 115, 117, 119, 121, 123,
125, and 127 are deemed admitted. FedR. Civ. P.
36(a)(6)("On a finding that an answer does not comply
with this rule, the court may order ... that the matter is
Gurshin's Motion to Deem Requests Admitted (ECF No.
grounds for objecting to a request must be stated. A party
must not object solely on the ground that the request
presents a genuine issue for trial." Fed.R.Civ.P.
36(a)(5). "[B]oilerplate objections are disfavored,
'especially when a party fails to submit any evidentiary
declarations supporting such declaration.'"
EnvTech, Inc. v. Suchard, No. 3:ll-cv-523-HDM-WGC,
2013 WL 4899085 at* 5 (D.Nev. Sept. 11, 2013)(internal
citations omitted). "[B]oilerplate objections such as
'overly burdensome and harassing' are improper."
A. Farber and Partners, Inc. v. Garber, 234 F.R.D.
186, 188 (CD. Cal. 2006).
served a total of 78 requests for admission on Bank of
America. (ECF No. 117) Gurshin moves to deem admitted 52 of
her requests. (Id.) Each request is addressed below.
Request 3: Admit that Ms. Gurshin reported this
"allegation" about Branch Manager Jarret Wu's
behavior and her discomfort on the one day she had returned
to work, Feburary21, 2012.
America objected to this request on the ground that the
reference to "this allegation" was vague and
ambiguous. (ECF No. 117-3) This court agrees. Without
context, it is impossible to determine which allegation the
request is referring to. The bank's objection is
Request 22: Admit that Ms. Gurshin made a timely
request under Nevada law, specifically N.R.S. 613.075, which
requires an employer to provide an employee a copy of all of
their employment records if timely requested.
America objected to this request on the ground that it called
for a legal conclusion. "Requests for admission are
designed to limit factual issues in the case." Jones
v. Skolnik, No. 3:10-cv- 162, 2014 WL 2625000 at *1
(D.Nev. Jun. 12, 2014). "Although the rule permits a
party to ask another party to admit the truth of the
application of law to facts, requests for admission should
not be used to demand that the other party admit the truth of
a legal conclusion." Id. Request 22 does call
for a legal conclusion i.e. whether Gurshin's request was
timely. The bank's objection is sustained.
Request 24: Admit that the Bank of America personnel
file for Ms. Gurshin, as produced by Bank of America in this
litigation as BANA 00001 to BANA 000426 on July 30, 2015,
contains paperwork about discipline of Ms. Gurshin by Plaza
Bank Manager Jarrett Wu which was not provided by Bank of
America to Ms. Gurshin in June, 2012 when it responded to her
America objected to this request on the ground that it was
vague and ambiguous. This objection is sustained. Without
context, this court is unsure what is meant by
"statutory demand." The bank's objection is
Request 30: Admit that Bank of America never told
Ms. Gurshin, even after she complained about sexual
harassment by Jarrett Wu, that it would be allowing Jarrett
Wu access to her Aetna case manager or other persons at Aetna
who were handling her short-term disability matters and
court finds that request 30 is a duplicate of request 29.
Except for a slight change in wording, the requests are
identical. Bank of America is not required to respond to
duplicate requests for admission. Anahuac Management v.
Mazer, No. 2:09-cv-1590, 2011 WL 3585475 at *5 (D.Nev.
Aug. 16, 2011).
Request 35: Admit that Plaza Branch manager Jarrett
Wu had maintained a manager's desk file for matters
concerning Ms. Gurshin, and that Bank of America did not
produce (at least) three items from that file in July, 2015
when producing the personnel file for Alexis Gurshin,
including that which was produced on April 15, 2016 as BANA
02243, 02244, and 02245.
America objected to this request as compound. The request
asks two questions: 1) did Jarrett Wu maintain a personnel
file on Alexis Gurshin and 2) whether documents are missing
from the version of the personnel file that the bank produced
during discovery. The objection is sustained.
Request 37: Admit that Sheri Madrid did more (phone
calls with him, discussions with him, inquiries to Aetna,
etc.) to help Jarrett Wu try to replace Ms. Gurshin at the
Plaza Branch than she (Madrid) did to help Gurshin return to
America objected to this request on the ground that it was
vague and ambiguous. The request does not explain how the
bank must quantify "did more." At best, the
parenthetical explanation lists examples the bank should
consider. The objection is sustained.
Request 39: Admit that during this litigation, Bank
of America refused to produce any document or detail any
efforts or steps it took to comply with 29 CFR §1602.14,
the federal regulation which requires an employer to keep and
preserve all relevant documents once it (the employer) knows
of a charge of discrimination.
America objected to this request on the ground that it called
for a legal conclusion. The request asks the bank to admit is
violated a federal regulation. The objection is sustained.
See Jones, 2014 WL 2625000 at *1.
Requests 42-55 and 68-72
aforementioned requests inquire about Bank of America's
discovery conduct in this action. They ask Bank of America to
admit that it did not produce original documents, that
documents were missing from responses, and that documents
were allegedly withheld. (ECF No. 117-9; 117-11)
America objected to these requests on the grounds that they
were irrelevant. This court agrees. Bank of America's
conduct during discovery is not related to any claim or
defense presented in this action. These objections are
Requests 61-63, 74, and 78
aforementioned requests inquire about the content of
documents produced in the course of discovery. Bank of
America objected to these requests on the ground that the
documents spoke for themselves. "[T]he statement 'the
document speaks for itself in response to a request for
admission characterizing the content or meaning of a contract
document was evasive." Adobe Systems Inc. v.
Christenson, No. 2:10-cv-422-LRH-GWF, 2011 WL 540278 at
*10 (D.Nev. Feb. 7, 2011). "Requests that characterize
or construe the meaning of material documents in the case may
serve to establish what issues are actually in dispute."
Id. Accordingly, Bank of America's "speaks
for itself objections are overruled. Requests 61-63, 74, and
78 are deemed admitted.
Requests 64, 66, 67, and 75
November 15, 2016, after Gurshin filed her motion to compel
but before Bank of America responded, the bank served a set
of supplemental responses. (ECF No. 125-1) The supplemental
responses denied requests 64 and 75 and admitted requests 66
and 67. (Id.) Since Bank of America has now properly
responded to these requests, Gurshin's motion to deem
these requests admitted is denied as moot.
Requests 23, 26, 27-29, 3J-34, 36, 40, 41, and 65
response to the aforementioned requests, Bank of America
provided a list of boilerplate objections such as vague and
ambiguous and unduly burdensome. (ECF No. 117-7; 117-9;
117-11) Critically, the bank did not admit, deny, or explain
why it could not admit or deny each request. Since Bank of
America has not stated a valid objection nor provided a
proper response, the aforementioned requests are deemed
admitted. Fed.R.Civ.P. 36(a)(3). Requests 23, 26, 27-29,
31-34, 36, 40, 41, and 65 are deemed admitted.
Gurshin's Motion for Enlargement of Time (ECF No.
moves the court to accept and consider her untimely filed
appendix to her motion to compel additional deposition time.
(ECF No. 123) Bank of America did not oppose this motion.
Pursuant to Local Rule 7-2(d), Gurshin's motion is
granted. This court will accept and consider her appendix to
her motion to compel additional deposition time.
Motion to Compel Additional Deposition Time (ECF No.
otherwise stipulated or ordered by the court, a deposition is
limited to one day of 7 hours." Fed.R.Civ.P. 30(d)(1).
"The court must allow additional time consistent with
Rule 26(b)(1) and (2) if needed to fairly examine the
deponent or if he deponent, another person, or any other
circumstances impedes or delays the examination."
motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by
local rule if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information
by discovery in the action." FED. R. Civ. P.
moves to reopen four depositions involving three different
individuals: (1) Bank of America assistant manager Devan
Thorns; (2) former Bank of America employee Sheri Madrid, as
both a fact witness and one of the bank's Rule 30(b)(6)
witnesses; and (3) Bank of America employee Jennifer Miller,
another Rule 30(b)(6) witness for the bank. (ECF No. 120)
May 18, 2016 order, this court allowed witness Thorns to be
redeposed for an additional hour. (ECF No. 86) The parties
reconvened and Thorns was redeposed. During this deposition,
Gurshin alleges that Bank of America interrupted the witness
on numerous occasions and was improperly coaching the witness
through objections. (ECF No. 120) The court has reviewed the
transcript of Thorns's deposition (ECF No. 121-7), and
concludes that Gurshin's allegations are unfounded. The
deposition transcript reveals counsel's often contentious
interactions, but does not demonstrate that defense counsel
did anything improper. Gurshin's request to reopen
witness Thorns's deposition is denied. Fed.R.Civ.P.
Madrid has already been deposed twice in this action. (ECF
No. 127) Gurshin alleges that she is entitled to more time to
question witness Madrid due to defense counsel's improper
deposition tactics. (ECF No. 120) After reviewing the
transcript of witness Madrid's second deposition (ECF No.
127-5), this court disagrees.
transcript of witness Madrid's second deposition does not
support Gurshin's allegations. Witness Madrid answered
counsel's questions to the best of her ability and
defense counsel made appropriate objections. (Id.)
As for Gurshin's claim that defense counsel prematurely
ended the deposition, this allegation is similarly without
merit. This court warned both parties that witness
Madrid's reexamination would be limited in time and
scope. (ECF No. 86) It will not allow witness Madrid to be
deposed for a third time. Gurshin's request to reopen
witness Madrid's deposition is denied. Fed.R.Civ.P.
has already deposed witness Miller. (ECFNo. 127-8). Gurshin
now wishes to reopen witness Miller's deposition. She
argues that defense counsel did not adequately prepare
witness Miller before the Rule 30(b)(6) deposition. In
support of her argument, Gurshin cites to a number of
instances where witness Miller referred to exhibits in order
to recall information. (ECFNo. 120) Gurshin contends that
witness Miller's frequent referral to exhibits was
time-consuming and could have been avoided if defense counsel
had properly prepared the witness for the deposition. Again,
this court disagrees.
reviewing the transcript of witness Miller's deposition,
it is clear that witness Miller referred to exhibits when she
was asked about specific dates. (ECF No. 127-8) No amount of
preparation would have enabled witness Miller to recall such
details without assistance. The transcript shows that witness
Miller was adequately prepared for her deposition.
Gurshin's request to reopen witness Miller's
deposition is denied. Fed.R.Civ.P. 26(b)(2)(C)(ii).
and for good cause shown, IT IS HEREBY ORDERED that Bank of
America's motion to deem matters admitted (ECF No. 106)
is GRANTED in part and DENIED in part. Requests 91, 93, 95,
97, 99, 101, 103, 105, 107, 109, 111, 113, 115, 117, 119,
121, 123, 125, and 127 are deemed admitted
FURTHER ORDERED that Gurshin's motion to deem matters
admitted (ECF No. 117) is GRANTED in part and DENIED in part.
Requests 23, 26, 27-29, 31-34, 36, 40, 4161-63, 65, 74, and
78 are deemed admitted.
FURTHER ORDERED that Gurshin's motion to extend time (ECF
No. 123) is GRANTED.
FURTHER ORDERED that Gurshin's motion to compel
additional deposition time (ECF No. 120) is DENIED.
 Requests 84, 85, and 87 ask about the
authenticity of certain documents, but are not followed by a
related question regarding when said document was
 The bank also raised other objections
such as the request was vague and ambiguous or
unintelligible. These boilerplate objections, which were not
specifically tailored to the request, are overruled.