Cumming et al v. Big Picture Loans, LLC et al

Filing 116

ORDER RE DISCOVERY DISPUTE. Re: Dkt. No. 114 . Signed by Judge Nathanael Cousins on 6/13/2019. (lmh, COURT STAFF) (Filed on 6/13/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTINE CUMMING, et al.,

United States District Court
Northern District of California

Plaintiffs,
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v.
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Case No. 18-cv-03476-EJD (NC)
ORDER RE DISCOVERY
DISPUTE
Re: Dkt. No. 114

BIG PICTURE LOANS, LLC, et al.,
Defendants.

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On June 12, 2019, the Court held a hearing on the parties’ discovery dispute. See

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Dkt. Nos. 107, 112. The Court denied Plaintiffs’ request to extend the discovery deadline

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and the deadline for their deposition of Chairman James William Jr. See Dkt. No. 112.

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The Court also ordered the parties to file a joint statement as to whether there is any

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remaining dispute as to documents produced by defendants regarding Rosette LLP. Id.

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The parties submitted their joint status update on June 13, 2019. See Dkt. No. 114.

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The joint update presents two issues: (1) Plaintiffs’ request to produce Rosette-

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related documents not previously produced in Williams, et al. v. Big Picture Loans, LLC,

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Case No. 3:17-cv-0461 (E.D. Va.) and (2) financial documents held by the Lac Vieux

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Desert Band of Lake Superior Chippewa Indians (the “Tribe”). See id. at 2–4.

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As to the first issue, the parties have still not identified with any specificity what
Rosette-related documents have not yet been produced. Plaintiffs parrot their prior

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submissions with no additional detail and Defendants continue their fixation on documents

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produced in Williams. Williams-related production is no longer at issue. Defendants are

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required to produce:

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• Documents relating to the agreement by Big Picture’s predecessor, Red

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Rock, to pay a 50% “broker fee” to Tribal Loan Management, LLC, which is

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owned by Robert Rosette, the managing partner of Corporate Defendant’s

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counsel’s law firm; and

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• Documents relating to the development and drafting of LVD’s consumer
financial services regulations by the Rosette law firm.

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This production is required regardless whether those documents were produced in

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United States District Court
Northern District of California

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Williams if not protected by privilege. The fact that Rosette never served Defendants with

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non-Williams documents in those two categories is irrelevant. Rosette is among

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Defendants’ counsel; Defendants have control over those documents. Accordingly, the

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Court ORDERS Defendants to produce all non-privilege documents responsive to those

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two categories by June 17, 2019.

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As to the second issue, the Court DENIES Plaintiffs’ request. In the Court’s May

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17, 2019, order, the Court ordered production of “non-privileged tribal documents that are

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responsive to Plaintiffs’ RFPs and that relate to the statements made in the declarations

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submitted by LVD tribal council Chairman Williams . . . .” See Dkt. No. 102. Defendants

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represent that they do not possess any such tribal documents and Plaintiffs do not

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meaningfully rebut Defendants’ assertion. See Dkt. No. 107 at 5.

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The Court will not order Chairman Williams and the Tribe to turn over those

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documents. Neither Chairman Williams nor the Tribe are parties to this case. And

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Plaintiffs have not served third-party subpoenas on either Chairman Williams or the Tribe.

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Moreover, even though Defendants’ assertions of tribal sovereign immunity are open

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questions before the trial judge in this case, the Tribe and its officers (i.e., Chairman

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Williams) certainly have a colorable claim of tribal sovereign immunity that may defeat

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such subpoenas.
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The Court will not extend discovery- or deposition-related deadlines despite

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ordering additional production by Defendants for two reasons. First, Plaintiffs have not

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been diligent in seeking relief. The Court issued its first order regarding jurisdictional

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discovery on March 13, 2019, setting a June 7, 2019 discovery deadline. See Dkt. No. 64.

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In that order, the Court granted Plaintiffs leave to move for further, non-Williams

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jurisdictional discovery. See id. at 3. Yet Plaintiffs did not raise any issue regarding

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discovery related to tribal sovereign immunity until May 6, 2019—one month before the

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discovery deadline. See Dkt. No. 87. Second, the parties have already engaged in

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substantial discovery. Defendants have already produced, at a minimum, relevant
documents from Williams. Such production is sufficient for Plaintiffs to proceed with their

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United States District Court
Northern District of California

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currently noticed deposition of Chairman Williams.1

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No fees or costs are awarded in connection with this order.

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IT IS SO ORDERED.

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Dated: June 13, 2019

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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The Court also notes that Chairman Williams’s deposition was not even scheduled until
the end of May. See Dkt. Nos. 104, 105, 106.
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