United States District Court, D. Nevada
ORDER (DOCKET NOS. 46, 47)
J. KOPPE, United States Magistrate Judge
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.
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) depositions noticed by SFR to occur in
Las Vegas, Nevada over an approximate one month period
commencing on October 4, 2016. Id.
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.
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.
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).
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.
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.
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
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, ...