Haggarty et al v. Wells Fargo Bank, N.A.

Filing 87

ORDER re 85 STIPULATION WITH PROPOSED ORDER JOINT STIPULATION AND [PROPOSED] ORDER CONCERNING CHANGES TO THE TRIAL DATE, MOTION DATE, DISCOVERY DEADLINES. ORDER Setting Hearing on Motion 69 MOTION for Judgment on the Pleadings . Reset Hearing as to 69 MOTION for Judgment on the Pleadings </i. Motions terminated: 83 MOTION to Certify Class filed by Gina M. Haggarty, Charles P. Haggarty filed by Wells Fargo Bank, N.A.. Motion for Judgment on the Ple adings Hearing reset for 8/10/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Motion Class Certification due by 7/13/2012. Responses due by 8/1/2012. Replies due by 8/10/2012. Motion Class Certification He aring set for 8/31/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Jury Trial set for 12/3/2012 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Pretrial Conference set for 11/27/2012 02:30 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 7/3/2012. (beS, COURT STAFF) (Filed on 7/5/2012)

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RICHARD D. McCUNE, State Bar No. 132124
1 [e-mail]
DAVID C. WRIGHT, State Bar No. 177468
2 [e-mail]
JAE (EDDIE) K. KIM, State Bar No. 236805
3 [e-mail]
MCCUNEWRIGHT LLP
4 2068 Orange Tree Lane, Suite 216
Redlands, California 92374
5 Telephone: [phone]
Facsimile: [phone]
6
MITCHELL M. BREIT (pro hac vice)
7 [e-mail]
ANDREA BIERSTEIN*
8 [e-mail]
JAYNE CONROY*
9 [e-mail]
HANLY CONROY BIERSTEIN
10 SHERIDAN FISHER & HAYES LLP
112 Madison Avenue
11
New York, New York 10016-7416
12 Telephone: [phone]
Facsimile: [phone]
13
Attorneys for Plaintiffs, Charles P. Haggarty,
14 Gina M. Haggarty and all other similarly situated

DEREK Y. BRANDT (pro hac vice)
[e-mail]
ANNA M. KOHUT (pro hac vice)
[e-mail]
SIMMONS BROWDER GIANARIS
ANGELIDES & BARNERD LLC
One Court Street
Alton, Illinois 62002
Telephone: [phone]
Facsimile: [phone]
*Applications Pro Hac Vice to be
Submitted

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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19 CHARLES P. HAGGARTY and GINA M.
HAGGARTY, on behalf of themselves and all
20 others similarly situated,

Case No.: 3:10-cv-02416-CRB

21

JOINT STIPULATION AND [PROPOSED]
ORDER CONCERNING CHANGES
TOTHE TRIAL DATE, MOTION DATE,
DISCOVERY DEADLINES AND
BRIEFING SCHEDULES

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[Assigned to the Hon. Charles R. Breyer]

Plaintiffs,
v.

23 WELLS FARGO BANK, N.A.
24

Defendant.

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STIPULATION & [PROPOSED] ORDER

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Pursuant to Civil L. R. 7-12, Plaintiffs CHARLES P. HAGGARTY and GINA M.

2 HAGGARTY, and Defendant WELLS FARGO BANK, N.A., having met and conferred through
3 their counsel of record, submit this Joint Stipulation and Proposed Order concerning changes to
4 the trial date, the briefing and hearing dates for the Motion for Class Certification, the hearing
5 date for the Motion for Judgment on the Pleadings, and Discovery Deadlines.
6 Background
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Trial in this matter is currently scheduled for October 1, 2012. On June 8, 2012 (filed

8 early June 9, 2012), the parties agreed to and submitted a stipulated schedule contemplating (a)
9 that Plaintiffs would file their motion for class certification on June 22, 2012 (with hearing on
10 August 3, 2012); (b) that fact discovery cutoff and initial expert disclosures would be due on
11 August 3, 2012; and (c) that Defendant would file its motion for summary judgment on August
12 3, 2012 (with hearing on September 14, 2012). [See Doc. 79] On June 12, 2012 the Court So13 Ordered the joint stipulation. [See Doc. 80, entered June 14, 2012] Hearing on Defendant’s
14 Motion for Judgment on the Pleadings [Doc. 69] had previously been scheduled for June 22,
15 2012.
16

Plaintiffs believe that, in light of intervening events, and for the reasons discussed below,

17 the trial date should be continued to provide adequate time to provide notice to the class before
18 the beginning of trial in the event the Court certifies the class. Plaintiffs also believe that the
19 briefing schedule for the class certification motion should be continued for three weeks to allow
20 Plaintiffs to complete certain discovery that could not be accomplished within the current
21 schedule and to allow all parties to evaluate and address the impact on class certification of
22 certain documents identified and produced by Wells Fargo for the first time after Plaintiffs filed
23 their motion for class certification. This joint stipulation and proposal would allow Plaintiffs to
24 withdraw the motion for class certification filed on June 22, 2012, and to refile the motion on
25 July 13, 2012. Plaintiffs contend that as a result of the difficulties completing certain discovery,
26 discovery deadlines should be extended to allow them time to finalize discovery before expert
27 reports are due. Defendant does not agree with Plaintiffs’ contentions regarding discovery
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STIPULATION & [PROPOSED] ORDER

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1 difficulties or the cause of such difficulties, but supports the requested continuances.
2

The parties also request that the hearing on the Motion for Judgment on the Pleadings and

3 Motion for Class Certification be continued to accommodate scheduling conflicts for counsel
4 responsible for arguing those motions.
5

The parties are prepared and would request a short status conference if the Court has any

6 questions or concerns about this request.
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7 Trial Date – Requested Continuance of Two Months.
8

On June 18, 2012, the Court rescheduled the hearing on Defendant’s Motion for

9 Judgment on the Pleadings from June 22, 2012 to August 3, 2012. At the same time, the Court
10 also rescheduled the hearing date for Plaintiffs’ Motion for Class Certification from August 3,
2012 to August 24, 2012. Trial is presently set for October 1, 2012. Plaintiffs are concerned that
11
if the Court certifies the class on or after the August 24 hearing date, this will not leave sufficient
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time for class notice before the beginning of trial. Even assuming that the Court certified the
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class from the bench at the hearing and signed the proposed order submitted by Plaintiffs without
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any changes, Plaintiffs do not believe that this would allow sufficient time for the parties to
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prepare and obtain Court approval, print the class notice, provide the class with adequate time to
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opt-out of the class, and tally and present the opt-out information to the experts and Court before
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the beginning of trial.
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As discussed in the following section, Plaintiffs believe that continuing the trial would
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also allow time in the schedule to complete discovery that otherwise is likely to be incomplete
20 for the class certification motion and expert reports. Plaintiffs contend that a continuance of the
21 trial date for two months, to December 3, 2012, would allow the parties to complete discovery
22 and submit full information to the Court for Plaintiffs’ class certification motion and Defendant’s
23 motion for summary judgment. Plaintiffs contend it would also obviate the need for
24 supplemental expert reports otherwise likely necessary due to the state of discovery, as discussed
25 below.
26

Defendant does not necessarily agree with each of Plaintiffs’ contentions set forth above,

27 but supports the requested continuance.
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1 Class Certification Briefing Schedule and Discovery Schedule
2

As contemplated in the joint stipulation and scheduling order entered on the docket on

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3 June 14, Plaintiffs filed their motion for class certification on June 22, 2012. However, due to
4 the state of written discovery and in light of certain documents identified and produced by Wells
Fargo after the filing of that motion, Plaintiffs contend that they have not had an opportunity to
5
conduct or complete reasonable discovery prior to the filing of the motion. Specifically,
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Plaintiffs contend that they have not had an opportunity to either complete document review or
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take 30(b)(6) depositions before the class certification filing date, and that the documents
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produced by Wells Fargo on June 26, 2012 have potential impact on the class certification issues
9
in the case.
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Plaintiffs believe the history of the parties’ efforts to complete discovery in a timely way
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is important. On January 31, 2012, Plaintiffs propounded a significant request for production of
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documents. The parties engaged in significant meet and confer that resulted in an agreed
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protective order, but a disagreement regarding the timing of the production. Plaintiffs filed a
14 motion to compel on May 3, 2012 complaining that documents had not yet been produced.
15 Defendants responded that they had committed tremendous resources to the project, but that,
16 among other issues, Plaintiffs had an unrealistic expectation of how long the process would take
17 to produce the large amount of documents requested from Wells Fargo.
18

The discovery dispute was referred to Magistrate Judge Jacqueline Scott Corley who

19 conducted a conference call with the parties on May 10, 2012. In that conference call with Judge
20 Corley, the parties agreed to meet and confer regarding a production schedule. During the
21 following meet and confer sessions, Defendant indicated it would provide weekly rolling
22 productions with Defendant’s final production date being estimated as June 8, 2012. Wells
Fargo did produce documents on a rolling production, starting on May 3, 2012. Wells Fargo has
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produced approximately 535,000 pages of non-privileged documents in the litigation to date. Of
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this, more than 92% (over 493,000 pages) was produced on June 5, 6, 7 and 8, 2012. An
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additional approximate 11,500 pages were produced on June 19 and 22, 2012. Defendant notes
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that the bulk of these pages were produced by the day Defendant indicated it would complete its
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production, and contends that the June 19 and 22 productions consisted of a small number of
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1 documents that had initially been flagged as privileged and some additional servicing notes (2%
2 of pages produced). Defendant further contends that its conduct in discovery was reasonable
3 and appropriate at all times, particularly given the breadth of Plaintiffs’ requests.
4

Plaintiffs do not assert in this stipulation that the timing and size of the production reflects

5

anything other than the challenges associated with the size of production. However, Plaintiffs

6
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contend that the speed of the process has not allowed Plaintiffs to perform and complete
necessary discovery before the filing date for the class certification motion. Plaintiffs have felt
the document production needed to be complete before they could take 30(b)(6) depositions.
Those depositions were commenced on June 28, 2012. Under the existing schedule, Plaintiffs

9
were required to file their motion for class certification prior to the scheduled 30(b)(6)
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depositions and therefore were not able to use 30(b)(6) testimony in support of their motion for
class certification (filed on June 22, 2012); under the proposal presented herein, Plaintiffs would
be allowed to withdraw their June 22, 2012 filing and would have the opportunity to use such
evidence in a new filing.
In addition, on June 26, 2012, Wells Fargo identified and produced for the first time two

15 additional “versions” of the ARM mortgage Notes at issue in this litigation. In the motion for
16 class certification filed on June 22, Plaintiffs sought certification of a class of borrowers whose
17 mortgages are (or were as of a specific date) on any of six particular Note “versions,” exemplars
18 of which Wells Fargo previously produced. Wells Fargo takes the position in this litigation that
19 different Note versions contain varying language and cannot be treated as the same for class
20 certification purposes. With the introduction, after the filing of Plaintiffs’ motion, of two new
21 Note “versions,” Plaintiffs contend they should be afforded a reasonable opportunity to assess
22 whether they wish to seek certification of a class which also includes borrowers whose Notes
were on those forms. Wells Fargo has not yet issued updated discovery responses sufficient in
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Plaintiffs’ view to provide Plaintiffs with data reflecting the number loans outstanding on such
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Note “versions,” the outstanding principal balance on such loans, and the like. Under the
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proposal herein, Plaintiffs would be allowed to withdraw without prejudice their motion for class
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certification as filed on June 22, 2012, and file a new motion for class certification on July 13,
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2012. Other adjustments to the briefing schedule are as noted below. Again, Wells Fargo
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1 contends that its conduct has been reasonable at all times and further asserts that the two notes
2 produced after filing of Plaintiffs’ class certification motion were difficult to locate and made up
3 a tiny fraction of its total production.
4

Finally, Plaintiffs also contend that under the existing schedule, the document production

5

issues described above will hinder their ability to complete expert disclosures by the present due

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date of August 3, 2012; under the proposal presented herein, the document production issues
should not present an insurmountable hurdle to timely completion of Plaintiffs’ expert
disclosures.
Hearing Dates for Motion for Judgment on the Pleadings and Motion for Class

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Certification
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When the Court rescheduled the hearing date of the Motion for Judgment on the
Pleadings from June 22, 2012 to August 3, 2012, it created a scheduling conflict for Defendant’s
counsel, Mark Flewelling, who is arguing the motion. Defendant requests, and Plaintiffs do not
oppose, that the hearing on the motion for judgment on the pleadings be continued from August

14 3, 2012 to August 10, 2012.
15

When the Court continued the hearing date on the Motion for Class Certification from

16 August 3, 2012 to August 24, 2012, it created a scheduling conflict for Plaintiffs’ counsel,
17 Andrea Bierstein, who is arguing the motion. Plaintiffs request, and Defendant does not oppose,
18 that the hearing on the motion for class certification be continued from August 24, 2012 to
19 August 31, 2012.
20
21 Parties Proposed Scheduling Changes
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23
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The Parties jointly agree to the requested scheduling change. Accordingly, the Parties do
stipulate and propose the following changes to the current schedule of trial date, hearing for the
motion for judgment on the pleadings, hearing for the motion for class certification, the pre-trial
conference hearing, class certification briefing and discovery schedule:
Present Date

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1. Trial Date

Proposed Date

October 1, 2012

December 3, 2012
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September 27, 2012 November 29, 2012

2. Pre-Trial Conference

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3. Hearing on the Motion for
Judgment on the Pleadings

August 3, 2012

August 24, 2012

2 4. Class Certification
a. Hearing
3

August 31, 2012

b. Plaintiffs’ Motion
June 22, 2012
(June 22 Filing to be Withdrawn)

July 13, 2012

c. Defendant’s Opposition

July 11, 2012

August 1, 2012

d. Plaintiffs’ Reply

July 20, 2012

August 10, 2012

August 3, 2012

August 22, 2012,

6. Initial Expert Disclosures:
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At the time of disclosure, the
disclosing party will provide
10
3 dates between Aug. 31-Sept. 14
2012 that the disclosed expert
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is available for deposition.

August 3, 2012

August 31, 2012

12 7. Rebuttal Expert Disclosures:
At the time of disclosure, the
13
disclosing party will provide
3 dates between September 14-28,
14
2012 that the disclosed expert
is available for deposition.
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August 17, 2012

September 14, 2012

16 8. Expert Discovery Cutoff:

August 31, 2012

September 28, 2012

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August 10, 2012

5. Fact Discovery Cutoff:

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18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: June __, 2012

Respectfully submitted
McCUNE WRIGHT, LLP

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By:

/s/ Richard D. McCune
Richard D. McCune
Attorney for Plaintiffs
Charles P. Haggarty and Gina M. Haggarty

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Dated: June __, 2012

REED SMITH, LLP

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By:

/s/ Jack R. Nelson
Jack R. Nelson
Attorneys for Defendant Wells Fargo Bank, N.A.

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1 PURSUANT TO STIPULATION, IT IS SO ORDERED:
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