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Bank of America, N.A., v. Desert Pine Villas Homeowners Association

United States District Court, D. Nevada

January 13, 2017

BANK OF AMERICA, N.A., Plaintiffs,

          ORDER (DOCKET NOS. 46, 47)

          NANCY J. KOPPE, United States Magistrate Judge

         Pending before the Court are Plaintiff Bank of America, N.A.'s motions for protective order and for sanctions, both of which were originally filed on an emergency basis. Docket Nos. 46, 47. The motions relate to a deposition that was originally scheduled for October 24, 2016. Docket No. 46 at 2. Rather than resolving the motions on an expedited basis, the Court issued an order holding the deposition in abeyance pending resolution of the dispute. Docket No. 48. Defendant SFR Investments Pool 1, LLC (“SFR”) subsequently filed a response to the motions, and Plaintiff filed a reply. Docket Nos. 55, 56. SFR also filed a sur-reply at the Court's invitation. Docket Nos. 66, 68. The Court finds these motions properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion for protective order is GRANTED and the motion for sanctions is DENIED.

         I. BACKGROUND

         This discovery dispute arises out of one of hundreds of quiet title actions involving homeowner foreclosure proceedings in the District of Nevada. Docket No. 46 at 2. It concerns one of the many Rule 30(b)(6)[1] depositions noticed by SFR to occur in Las Vegas, Nevada over an approximate one month period commencing on October 4, 2016. Id.

         Plaintiff's motion for protective order contains two requests for relief. First, Plaintiff asks the Court to require the upcoming Rule 30(b)(6) deposition to be conducted in Dallas, Texas - where its corporate designee is located - or via video-conferencing. Id. at 13-15. Second, Plaintiff asks the Court to grant it complete protection from SFR's proposed deposition topics on the basis that the Ninth Circuit's holding in Bourne Valley Court Tr. v. Wells Fargo Bank, Nat'l Ass'n, 832 F.3d 1154 (9th Cir. 2016) “narrows this case to a question of law and eliminates the need for any discovery.” Docket No. 46 at 6. In the alternative, Plaintiff requests that the Court limit the 30(b)(6) deposition to topics it submits are relevant under Stone Hollow Ave. Tr. v. Bank of Am., Nat'l A'ssn, No. 64955, 2016 WL 4543202 (Nev. Aug. 11, 2016), and Bourne Valley. Docket No. 46 at 6-12. Through its motion for sanctions, Plaintiff also seeks payment of its fees and costs in making its motion, pursuant to Rule 37(a)(5). Docket No. 47 at 15-17.

         II. STANDARDS

         Parties are entitled to discover non-privileged information that is relevant to any party's claim or defense and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). In determining whether discovery is proportional, the Court considers the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its benefits. Id.

         Rule 26(b)(2)(C) further limits discovery. It requires the Court to limit the extent of discovery 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 information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C).

         Active involvement of federal judges is necessary “to prevent discovery from becoming a war of attrition or . . . a device to coerce a party, whether financially weak or affluent.” Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 602 (D. Nev. 2016). Accordingly, the Court has broad discretion in wielding Rules 26(b)(1) and (2) to provide parties with efficient access to what discovery is needed while, at the same time, eliminating wasteful discovery. Hallet v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); Roberts, 312 F.R.D. 594, 604-04 (D. Nev. 2016).


         i. Deposition Topics

         Plaintiff submits that no further discovery is necessary because the Ninth Circuit held Nevada Revised Statute chapter 116's “opt-in” notice scheme unconstitutional in Bourne Valley. Docket No. 46 at 6. SFR responds that, inter alia, Bourne Valley left open the remedy for the statutory provision's unconstitutionality. Docket No. 55 at 4.

         After SFR filed its response and before Plaintiff filed its reply, the Ninth Circuit Court of Appeals declined a petition to rehear Bourne Valley. See, e.g., Docket No. 56 at 2. Plaintiff's reply submits that this development strengthens its assertion that no further discovery is necessary. See Id. at 2-3. On December 5, 2016, therefore, the Court issued an order inviting SFR to file a sur-reply addressing the Ninth Circuit's decision to decline the petition for rehearing. Docket No. 66. SFR then filed a sur-reply, in which it notes that the appellee in Bourne Valley intends to file a petition for a writ of certiorari in the United States Supreme Court. Docket No. 68 at 2. SFR further notes that it has moved to certify a question of law to the Nevada Supreme Court on related issues, and that the application and effect of Bourne Valley remain open. Id. at 2-4.[2]

         The Court agrees with the parties that Bourne Valley, which is now controlling law in this Circuit, may be dispositive of this case. In the event that it is not dispositive, however, SFR's proposed deposition topics are not proportional to the needs of this case. The Court agrees with Plaintiff that the topics regarding Plaintiff's tender are the only topics proportional to the needs of this case. Therefore, ...

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