Masonek v. Wells Fargo Bank National Association et al

Filing 58

ORDER denying 48 Motion for Clarification of and Amendment of Order Regarding Wavertons Compliance With Subpoena by Magistrate Judge Boyd N. Boland on 09/01/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-00340-RPM-BNB
STEVEN MASONEK, et al.,
Plaintiff,
v.
WELLS FARGO BANK NATIONAL ASSOCIATION,
THE BANK OF NEW YORK MELLON CORPORATION, and
JOHN DOES 1-20,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the Motion for Clarification of and Amendment of Order
Regarding Waverton’s Compliance With Subpoena [Doc. # 48, filed 9/3/2010] (the
“Motion”), filed by Waverton Group, LLC (“Waverton”). The Motion is DENIED.
The caption notwithstanding, the Motion does not really seek clarification. To the
contrary, it requests that I reconsider my finding that “Waverton has engaged in a pattern of
dilatory conduct intended to cause and resulting in unnecessary delay.” Order [Doc. # 46] at p.
3.
“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court
has misapprehended the facts, a party’s position, or the controlling law.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)(internal citation omitted). Here,

Waverton argues that my finding of dilatory conduct is based on a misapprehension of the facts.
I disagree.
On March 23, 2010, I denied Waverton’s motion to quash a subpoena and I ordered
Waverton to produce the Phase I documents (i.e., documents created before August 18, 2009) by
April 16, 2010. On April 16, rather than producing the Phase I documents as ordered, Waverton
“made the phase 1 production available to the receiver’s counsel at Shartsis Freise LLP.
Waverton’s work related to the phase 1 production is largely complete pending the completion of
the receiver’s review of its documents.” Motion to Modify Order and for Issuance of Protective
Order [Doc. # 14, filed 5/17/2010] (the “Motion for Protective Order”) at ¶9.
On June 4, 2010, I entered an Order [Doc. # 26] requiring that the Receiver designate any
confidential documents by June 18, 2010. The Order [Doc. # 26] further required that Waverton
produce the Phase I documents by June 25, 2010, including a designation of any documents
which Waverton claims to be confidential. The Receiver complied with the June 4 Order, but
Waverton did not. Instead, as of July 21, 2010, the Phase I documents still had not been
produced, and Waverton had done nothing in the intervening 33 days since receiving the
documents from the Receiver to designate the documents which it claims are confidential. Order
[Doc. # 46] at pp. 2-3.
At a hearing on July 21, 2010, I expressed my concern about the delay in the production
of the Phase I documents, stating:
I am concerned about the delay which has occurred in connection
with the production of these documents and the . . . actions which
seem to encourage future delay in connection with the production
of the documents, and I’ve lost patience with that. So I will
require that the disks containing the documents be turned over to
the parties in the Masonek action by the close of business today.
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All documents on those disks will be considered or deemed to have
been designated as confidential for a period of two weeks’ time,
and within that two weeks Waverton may make a more specific-must make a more specific designation, and anything that isn’t
designated, stamped as confidential at the end of that two-week
period will be deemed not confidential.
Transcript of Proceedings on July 21, 2010 [Doc. # 47] at p. 34 line 24 through p. 35 line 13.
Waverton’s counsel requested additional time beyond the two weeks for Waverton to
make its designation of confidential documents, stating:
[T]he two-week period of time that the Court refers to, we would
like to have somewhat more time to comply with the Court’s order.
Mr. Block [of Waverton] is leaving the state on business and he’s
going to be out of town until the middle of next week, and we
submit that there’s not a lot of urgency to that, the designation of
confidentiality. . . .
I’m puzzling now about how to correlate the receiver’s production
and the Bates numbering with the production that--and the
designation of confidentiality. As it now stands without the load
file, Waverton can designate confidentiality on its records within
the time frame that’s in hand, but it couldn’t go into the receiver’s
files and make a confidentiality document in order to--in order to
tie those to the Bates numbers without the load file, and so the
alternative would be to produce the files-Id. at p. 38 lines14-20 and p. 39 lines 5-15.
A production of documents, ordered to be completed by April 16, 2010, still had not
occurred as of July 21, 2010, nearly three months later. The production did not occur on April
16 because Waverton, without authorization and in contravention of my order, forwarded the
documents to the Receiver for further review rather than producing them. I then ordered that the
documents be produced by June 25, 2010. The production did not occur on June 25 because
Waverton failed to complete its review for confidentiality, despite having previously stated that
“Waverton’s work related to the phase 1 production is largely complete pending the completion
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of the receiver’s review of its documents.” Motion for Protective Order [Doc. # 14] at ¶9. In
fact, the production had not been made as of the hearing on July 21, 2010, and Waverton had
made no effort to undertake its review despite having had 33 days within which to do so.
On these facts, I found that Waverton had engaged in a pattern of dilatory conduct
intended to cause and resulting in unnecessary delay in the production of the Phase I documents.
Nothing in the Motion causes me to believe that I misapprehended the relevant facts.
IT IS ORDERED that the Motion [Doc. # 48] is DENIED.
Dated September 1, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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