Rocky Mountain Bank -v- Google, Inc.

Filing 634

Rocky Mountain Bank -v- Google, Inc.

Doc. 634

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Balám O. Letona, Bar No. 229642 LAW OFFICE OF BALÁM O. LETONA, INC. 1347 Pacific Avenue, Suite 203 Santa Cruz, CA 95060-3940 Tel: [phone] Fax: [phone] Email: [e-mail] Ronald Wilcox, Bar No. 176601 LAW OFFIC OF RONALD WILCOX 2160 The Alameda, First Floor, Suite F San Jose, CA 95126 Tel: [phone] Fax: [phone] Email: [e-mail] David Humphreys (pro hac vice) Humphreys Wallace Humphreys P.C. 9202 South Toledo Ave. Tulsa, Oklahoma 74137 Luke Wallace (pro hac vice) Humphreys Wallace Humphreys P.C. 9202 South Toledo Ave. Tulsa, Oklahoma 74137 Attorneys for Plaintiffs STATEMENTS DUE ON SEPTEMBER 19, 2008 U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSÉ DIVISION MANUEL G. FAUSTO and LUZ FAUSTO, ) ) Case No.: C07-05658 JW RS Plaintiffs, ) ) PLAINTIFFS' STATEMENT AND ) REQUEST FOR COURT ORDER ) RE: PLAINTIFFS' MOTION TO v. ) COMPEL WRITTEN DISCOVERY AND ) DEPOSITION ) CREDIGY SERVICES CORPORATION, CREDIGY RECEIVABLES INC., CREDIGY ) Date: September 3, 2008 ) Time: 9:30 a.m. SOLUTIONS INC., RYAN MILLER, ) HON. RICHARD SEEBORG RICARDO VENTURA, BRETT BOYDE, ) PAULO PERES, THOMPSON and DOES 1) U.S. DISTRICT COURT 10, inclusive, ) 280 South First St. Defendants. San José, CA

PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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Dockets.Justia.com

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Plaintiffs' motion to compel written discovery and to compel Defendants' PMK deposition came on for hearing on September 3, 2008. The Court directed the parties to further meet and confer with respect to the issues discussed in the briefing and to return to the Court during the same hearing calendar for further direction. The parties met and conferred, but Defendant was unable to appear later because he had to catch a flight to San Diego to appear before a federal judge in another matter. As a gesture of goodwill and in light of the fact that Defendants' counsel was pressed for time Plaintiffs' counsel agreed to continue to further meet and confer and submit a joint statement. Since that day Plaintiffs' counsel has offered to meet and confer by telephone and meet in person but Defendants' counsel has refused every offer1. Given that the discovery cut-off is October 13, 2008, that Defendants have known about these discovery issues for several months, and the fact that Plaintiffs' have offered to meet and confer by telephone and in person2, Plaintiffs respectfully request the Court order the discovery items compelled, and verifications be provided and it occur within seven (7) days of the Court's order. Interrogatory 18 Describe in detail the effort Defendant has made to preserve, search for, identify, collect, review, and produce relevant documents. a. Plaintiffs Position: Plaintiffs request that Defendants answer and provide a verified response. Interrogatory 16 Identify the name and address of the long distance telephone provider used to place calls relating to Plaintiff's account (include the account # with such entity and the

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See Declaration of Balám O. Letona

See Declaration of Balám O. Letona. Furthermore Local Rule 1-5(n) states that a meet and confer can only occur "through direct dialogue and discussion ­ either in a face to face meeting or in a telephone conversation."

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telephone number Plaintiffs were dialed from). a. Plaintiffs Position: Plaintiffs request that Defendants identify in conformity with FRCP 33(d)(1) the CD that was recently provided to Plaintiffs, and that allegedly contains Defendants long distance telephone records with respect to Plaintiffs, the document control numbers on that CD in sufficient detail to allow Plaintiff to identify and locate those records and documents. Request for Production 16 All agreements Defendants have with any entity concerning the servicing or collection of the debt to Plaintiffs. a. Plaintiffs Position: Plaintiffs request that Defendants state whether Exhibit A to the General Services Agreement between Defendants and Solucoes Brazil is comprised solely of what is contained in FA 000098. If not, Plaintiffs request that further responsive documents be provided. Continued 30(b)(6) Deposition a. Plaintiffs Position: Plaintiffs request that Plaintiffs be allowed to depose Defendants 30(b)6 witnesses on topics previously noticed, including the following topics: 1. 2. 3. 4. 5. Training practices & procedures Financial Condition Telephone Practices Denials in Answer, including Bona Fide Error defense Documents sent to and/or received from Plaintiffs

Deposition Topic 28 Any bonuses or commissions paid to any of the collectors that worked on Plaintiffs' account, from 2005 ­ 2008. a. Plaintiffs Position: Plaintiffs request that Plaintiffs be allowed to depose Defendants 30(b)6 witnesses on incentive pay provided to debt collectors based on amounts collected is relevant in a juror's analysis regarding motive and intent PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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to violate the Fair Debt Collection Practices Act, and related laws, an effort to annoy and harass someone into repaying a debt (i.e. threatening to sue someone and take their home if they fail to pay a time barred debt, threatening a consumer that failure to pay a debt will remain on their credit report forever). Deposition Topic 22 Complaints and lawsuits against Defendants for unlawful collection practices in the past three years. a.Plaintiffs Position: Plaintiffs request that Defendants 30(b)(6) testify to any complaints or counter-claims filed against Defendants during the period 2006 through 2008 in which the debtor has alleged that Defendants violated the FDCPA because they failed to honor a written cease and desist request, because the Defendants' telephone collectors engaged in harassing or abusive conduct over the phone, and because the Defendants' collectors made false statements. Deposition Area ­ Witnesses, Investigation a. Plaintiffs Position: Plaintiffs request that Plaintiffs be allowed to depose Defendants 30(b)6 witnesses regarding what actions Defendants took in response to Plaintiffs allegations. As stated in the moving papers3, in April the 30(b)(6) claimed Credigy conducted an investigation into the Fausto's claims, but did not know who at Credigy conducted the investigation. Plaintiffs request that Defendants produce a 30(b)(6) that can testify to the identity of those who conducted the investigation and what were the results of their investigation.

See Motion to Compel Deposition Docket #69, page 19-22, starting at line 22

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Deposition Topic 1 - Request to Produce Documents All documents relating to Plaintiffs and/or Plaintiffs account. a. Plaintiffs Position: Plaintiffs request that Defendants be ordered to bring all documents relating to Defendants reporting of the alleged debt to credit reporting agencies to the deposition. Defendants have only produced three months of reports contrary to this Court's order. On June 13, 2008, (see Docket #67) this Court required Defendants to produce all responsive documents with respect to this matter. b. Plaintiffs Position: Plaintiffs request that Defendants produce a competent 30(b)(6) witness to testify with respect to all documents Defendants submitted to the credit reporting agencies with respect to Plaintiffs. As outlined in the motion, Defendants did not produce a competent witness in April 2008.

Deposition Location a. Plaintiffs Position: Plaintiffs request that the continued 30(b)6 deposition occur in San Jose for the topics originally noticed. The parties agreed that Defendants FRCP 30(b)(6) witness deposition would proceed in San José, CA on April 22, 2008. Unfortunately, the designee produced by Defendants on that date was not competent in many areas. Defendants then failed to appear for a continued deposition noticed for July 10, 2008 in San José, CA (of which Defendant failed to properly move for any protective order from the Court excusing its appearance). Plaintiffs should not have to bear the expense of going to Atlanta, GA when Defendants could have produced a competent FRCP 30(b)(6) witness in April 2008, making this motion unnecessary.

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b. Plaintiffs Position: Plaintiffs also request that the deposition be set to occur within seven (7) days from this order and the Court order the parties to appear on a weekend date if necessary. Discovery cut-off is October 13, 2008. Since September 16, 2008, Defendants have noticed twenty-one (21) oral depositions, including the deposition of Plaintiff's counsel Balám Letona, to occur from September 30 ­ October 13th, earlier Defendants noticed another deposition to occur on September 30th bringing the total number to twenty-two (22)4. Interrogatory 5 ­ 9 State all incentive pay (bonuses, commissions, etc.) paid to Ricardo Ventura, Brett Boyde, Ryan Miller, Paulo Peres, Thompson, a.k.a. RG Oncalve. a. Plaintiffs Position: Incentive pay provided to debt collectors based on amounts collected is relevant in a juror's analysis regarding motive and intent to violate the Fair Debt Collection Practices Act, and related laws, an effort to annoy and harass someone into repaying a debt (i.e. threatening to sue someone and take their home if they fail to pay a time barred debt, threatening a consumer that failure to pay a debt will remain on their credit report forever). Manuel Fausto, Set One of Discovery Request for Production 12 and 13 All complaints, judgments and consent orders from 2006-2008 relating to Defendants' conduct in the collection of individuals' debts; and its acts or practices under the FDCPA. Request for Production 30 Any judgments or decisions from a Court addressing whether Defendants were attempting to collect a debt they could not prove.

See Declaration of Balám O. Letona

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1)All federal district complaints filed between 2006 -2008 against Defendants that include violations of the Fair Debt Collection Practices Act. a. Plaintiffs Position: Plaintiffs request that Defendants, with respect to federal district court cases only, produce the name of the parties, case number, and district court where the action was filed in lieu of producing copies of each complaint within seven (7) days. 2)All state court complaints filed between 2006 -2008 against Defendants that include violations of the Fair Debt Collection Practices Act. a. Plaintiffs Position: Plaintiffs request that Defendants search all of their records for the complaints set forth above, including but not limited to a computerized search and Defendants produce such complaints in seven days (7). If Defendants do not keep track of these records in any form that they submit a verified response attesting to that fact. 3)All state court counter-claims filed between 2006 -2008 against Defendants for violations of the Fair Debt Collection Practices Act. a. Plaintiffs Position: Plaintiffs request that Defendants search all of their records for the counter-claims set forth above, including but not limited to a computerized search and Defendants produce such complaints in seven days (7). If Defendants do not keep track of these records in any form that they submit a verified response attesting to that fact. Request for Production 29 Any written communication to defendants from 2006-2008 where an individual or their attorney, alleged Defendants were threatening to sue on a time barred debt. a. Plaintiffs Position: Plaintiffs request that Defendants search all of their records PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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for the documents set forth above, including but not limited to a computerized search and Defendants produce such documents in seven days (7). If Defendants do not keep track of these records in any form that they submit a verified response attesting to that fact. Interrogatory 2 What steps were taken, on what date and by whom to review Plaintiff's account. a. Plaintiffs Position: Defendants claim non-privileged documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the non-privileged records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7) and provide a privilege log in seven (7) days. Manuel Fausto, Set Two of Discovery Request for Production 1 All letters received from any consumers complaining about the debt collection practices of Defendants. a. Plaintiffs Position: Plaintiffs request that Defendants search all of their records for the documents set forth above, including but not limited to a computerized search and Defendants produce such documents in seven days (7). If Defendants do not keep track of these records in any form that they submit a verified response attesting to that fact. Luz Fausto, Set One of Discovery

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Request for Production 1 ­ 39 PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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Provide a copy of the personnel file of "adias" (first remove any medical information). Provide copies of any and all tests, relating to the FDCPA, taken by "adias," employment applications, resumes, and performance evaluations of "adias." [The same discovery demands were served for the following other individuals: "jfmelo", "eisilva", "lnunes", "dgregores", "acompani", "cdsilva", "rgoncalves", "sblackwell", "kervin", "poston", "kramos" and "lgammage" - for the sake of judicial efficiency Plaintiffs listed the three discovery demands above, but, did not repeat them, thirty-nine (39) times]. a. Plaintiffs Position: Defendants claim that documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). b. Plaintiffs Position: Plaintiff requests that Defendants locate and produce any other responsive documents and Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiffs to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). Request for Production 40 Provide a copy of any document evidencing your internal communications with respect to Plaintiff, the debt, this lawsuit, or the claims in the Amended Complaint. a. Plaintiffs Position: Defendants claim non-privileged documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the non-privileged records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7) and provide a privilege log in seven (7) days. Interrogatory 14 List by name, alias, job title, last known address and telephone number, and dates of employment of each of your employees, agents, or servants who communicated (orally or in writing) with Plaintiff. Provide the date, time, location and subject matter of each such communication or contact. Provide any documents that mention or refer to communications with Plaintiff or were created, prepared, or otherwise generated as a result of those communications. a. Plaintiffs Position: Defendants claim that documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). b. Plaintiffs Position: Plaintiffs request that Defendants locate and produce any other responsive documents, including records and documents relating to Ralph Phillips, Ray Phillips and Moises Motelli, Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiffs to identify and locate those

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records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). Interrogatory 16

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List the names, aliases, job title of each of your employees who contacted Plaintiff or another person regarding this debt. a. Plaintiffs Position: Defendants claim that documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). b. Plaintiffs Position: Plaintiffs request that Defendants locate and produce any other responsive documents, including records and documents relating to Ralph Phillips, Ray Phillips and Moises Motelli, Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiffs to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been pending for several months, that Defendants respond in seven days (7). Interrogatory 20 Name all persons who investigated the Fausto's claims of harassment and unlawful collection practices. a. Plaintiffs Position: Defendants claim that documents have been produced. Plaintiffs request that in conformity with FRCP 33(d)(1) Defendants specify the records and documents to be reviewed in sufficient detail to allow Plaintiff to identify and locate those records and documents. Further, in light of the impending discovery cut-off date, and that this motion and discovery has been PLAINTIFFS' STATEMENT Case No.: C07-05658 JW RS
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pending for several months, that Defendants respond in seven days (7). b. Plaintiffs Position: Plaintiffs request that a privilege log be produced within seven (7) days. Dated: September 19, 2008 __/s/_______________________ Balám O. Letona Attorney for Plaintiffs

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