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Le v. Bank of America, N.A.

United States District Court, D. Nevada

October 12, 2017

HIEP D. LE, Plaintiff,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION; EQUIFAX INFORMATION SERVICES, LLC, Defendant.

          Bradley T. Austin Nevada Bar No. 13064 SNELL & WILMER L.L.P. Attorneys for Defendant Equifax Information Services LLC

          Knepper & Clark, LLC Matthew I. Knepper Miles N. Clark Counsel for Plaintiff

          David H. Krieger Haines & Krieger, LLC Counsel for Plaintiff

          Sean N. Payne Payne Law Firm, LLC Attorneys for Plaintiff

          STIPULATION REGARDING WITHDRAWAL AND RESUBMISSION OF DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND TO EXTEND DEADLINE FOR REPLY BRIEF

          RICHAFD F. BOULWARE, II JUDGE

         Defendant Equifax Information Services LLC (“Equifax”) filed its Response in Opposition to Plaintiff's Motion for Partial Summary Judgment (the “EFX Response Brief”) on September 28, 2017. [Doc. 37.] In support of the EFX Response Brief, Equifax submitted the Declaration of Pamela Smith (the “Smith Declaration”). [Doc. 37-9.] Along with the Smith Declaration, Equifax attached two exhibits identified as (1) the FIS Card Agreement (Exhibit 9A); and (2) the reinvestigation results dated April 29, 2016 (Exhibit 9B).

         Equifax's filing of the Smith Declaration and the two exhibits attached to it precipitated a dispute between Plaintiff's and Equifax's attorneys.

         Summary of Plaintiff's Argument

         It is Plaintiff's position that Exhibits 9A and 9B were improperly introduced as the documents were not previously produced in discovery, but instead were produced for the first time in Equifax's response to Plaintiff's motion for summary judgment. - despite the fact that they were requested in discovery and Equifax's 30(b)(6) testified in a manner which necessitated their disclosure under Rule 26. Moreover, even after discovery closed, the parties conducted a telephonic meet-and-confer regarding the confidentiality of all exhibits shortly before submission of their respective motions for summary judgment; at that time, Equifax never disclosed its intention to submit Exhibit 9A under seal, although Exhibit 9A was subsequently filed under seal in Equifax's response.

         According to Plaintiff, it remains unclear when Equifax first discovered the existence of Exhibit 9A, although it appears to be a document executed several years ago. Moreover, Exhibit 9A refers to an entirely new subset of Equifax documents, particularly “Transaction Document Number 2, ” which suggests that to the degree Exhibit 9A purports to be a “contract” between Equifax and its third-party mailing vendor, it is an out-of-date version of the same. Therefore, it is Plaintiff's contention that Exhibit 9A was not only untimely provided, but cannot be used for any of the propositions it purports to establish.

         As for Exhibit 9B, Equifax has not presented any argument for why it never produced the “reinvestigation results” in discovery. Regardless, it is Plaintiff's position that these results are apropos of nothing, as Equifax's third party mailing vendor has already affirmed that it has no evidence that the “reinvestigation results” were ever actually mailed to Plaintiff at any time.

         Summary of Defendant's Argument

         It is Equifax's position that the FIS Card Agreement was never requested by Plaintiff during discovery and only became relevant because of the arguments made for the first time in Plaintiff's Motion for Partial Summary Judgment, and that such submission does not contradict Equifax's prior testimony. [Doc. 26.] For instance, Equifax's representative testified to the fact that Equifax contracts with FIS Card for print-and-mail services in her initial deposition. This fact has never been in dispute. Further, Ms. Smith testified that the files are transmitted electronically to FIS Card in an electronic format, and it is Equifax's position that her Declaration only clarifies her testimony. Nonetheless, Equifax has agreed to withdraw both Exhibits that have resulted in the above-referenced dispute so as not to waste the Court's resources with unnecessary motion practice or to distract the Court from the material issues.

         In an effort to resolve the parties' dispute, counsel for the parties have met and conferred in good faith, and have reached an agreement to the items below. This stipulation ...


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