Clark v. Bank of America N.A.

Filing 80

MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS MOTION TO COMPEL PRODUCTION OF DOCUMENTS (Docket No. 70 ) IT IS HEREBY ORDERED that Plaintiffs Motion to Compel (Docket No. 70 ) is GRANTED, in part, and DENIED, in part. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

SHEILA CLARK,

Case No.:1:14-cv-00232-REB

Plaintiff,

MEMORANDUM DECISION AND
ORDER RE:

vs.
BANK OF AMERICA, N.A., as successor by ,

PLAINTIFF’S MOTION TO
COMPEL PRODUCTION OF
DOCUMENTS

Defendants.
(Docket No. 70)

Now pending before the Court is Plaintiff’s Motion to Compel Production of Documents
(Docket No. 70). Having carefully reviewed the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:
BACKGROUND
The underlying dispute in this action relates to a loan modification by Defendant Bank of
America, N.A. (“BANA”) on Plaintiff’s home mortgage. Plaintiff brings claims for breach of
contract, fraud, breach of implied covenant of good faith and fair dealing, equitable estoppel, and
intentional infliction of severe emotional distress. See generally Am. Compl. (Docket No. 17).
STANDARD
FRCP 26 states that, in general, any matter relevant to a claim or defense is discoverable.
Fed. R. Civ. P. 26(b) (“Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
MEMORANDUM DECISION AND ORDER - 1

information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.”).
Moreover, relevancy does not turn on admissibility – that is, relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence. See id.
DISCUSSION
A.

Plaintiff’s RFP Nos. 7-11
Plaintiff’s RFP Nos. 7-11 ask BANA to produce and identify all communication sent or

received by specific individuals (Sheila Speller, Ashley Haufle, Janet Home, Denise Wolbert,
and Patricia Manson) regarding the at-issue mortgage loan. See Mem. in Supp. of MTC, pp. 4-5
(Docket No. 70, Att. 1). As to each such request, BANA responded:
Subject to and without waiving its objections, BANA responds that it has produced
documents containing information responsive to this Request at BANA 01900BANA 02870.
See id. According to Plaintiff, the referenced “BANA 01900-BANA 02870" simply reflects the
entire range of documents BANA produced in response to Plaintiff’s Second Set of Requests for
Production of Documents. See id. at p. 8. BANA does not disagree, but counters that (1) it
produced responsive documents as they are kept in the usual course of business, as allowed by
FRCP 34(b)(2)(E)(i); and (2) it conducted a “diligent search and is not aware of any additional,
non-duplicative documents” responsive to these requests. Opp. to MTC, p. 2 (Docket No. 71).
At the outset, it must be said that, in affixing their signatures to BANA’s responses to
Plaintiff’s Second Set of Requests for Production (and, now, BANA’s opposition to Plaintiff’s
Motion to Compel), BANA’s counsel is representing under oath that BANA has identified any

MEMORANDUM DECISION AND ORDER - 2

documents responsive to RFP Nos. 7-11 and has likewise produced the same. BANA’s counsel
have duties (as officers of the court) that go along with the signatures to the discovery responses,
and the Court will accept their statements that there are no additional documents (as the
responses have been framed) – in other words, the Court will not purport to order production of
that which BANA claims does not exist or has already produced.
The disconnect, however, is the potential space between what BANA has produced and
whether that production actually contains the documents that Plaintiff seeks and has requested.
On this point, Plaintiff argues that “no internal communication for each of the named individuals
has been produced,” despite notations elsewhere making references to such sought-after
communications. Mem. in Supp. of MTC, p. 8 (Docket No. 70-1). But BANA’s responses state
exactly the opposite. See supra. To resolve this conundrum, by September 9, 2017, BANA must
specifically identify those documents that have been produced which BANA contends are
responsive to RFP Nos. 7-11. See Schwarzer, Tashima & Wagstaff, Federal Civil Procedure
Before Trial, (2015) at § 11:1944 (“If the responding party produces a truckload of documents,
saying ‘this is how they are kept,’ the requesting party may seek an order requiring the
producing party to segregate the documents into categories.”); see also 8A Charles Alan Wright,
Arthur R. Miller, and Richard L. Marcus, Federal Practice & Procedure, § 2213 (2014)
(“Accordingly, in the first instance the producing party should retain the right to choose between
the production formats authorized by Rule 34(b) (but not others), and the court should have the
authority where necessary to direct some disclosure of the manner of organization of the
producing party’s files.”). Plaintiff’s Motion to Compel is therefore granted, in part, and denied,
in part, in this respect.

MEMORANDUM DECISION AND ORDER - 3

B.

Plaintiff’s RFP Nos. 12 and 13
In RFP Nos. 12 and 13, Plaintiff seeks information related to “RMIC and/or Republic

Mortgage Insurance Company” regarding the at-issue mortgage loan. See Mem. in Supp. of
MTC, p. 5 (Docket No. 70, Att. 1). Again, BANA responded:
Subject to and without waiving its objections, BANA responds that it has produced
documents containing information responsive to this Request at BANA 01900BANA 02870.
See id. Thus, these requests present the same situation (and attendant issues) as before. See
supra. However, unlike before, the information Plaintiff seeks via RFP Nos. 12 and 13 is not
relevant.
In a September 29, 2016 order, this Court addressed an earlier motion to compel filed by
Plaintiff (in which she sought, among other things, “all documents relating to primary mortgage
insurance policies related to the subject mortgage”), this Court stated in relevant part:
Plaintiff brings five claims, all of which stem from her allegations that Plaintiff and
Bank of America entered into a written agreement to modify the terms of the original
mortgage on her home. Plaintiff’s breach of contract and fraud claims are based on
whether there was a modification agreement, and her allegation that Bank of
America falsely represented that there was a modified loan agreement.
The discovery Plaintiff seeks fails the Rule 26 standard. Upon review, the Court
concludes that the information Plaintiff seeks is not relevant to Plaintiff’s breach of
contract and fraud claims, or her other claims. At issue is whether there was a loan
modification agreement made that Plaintiff can enforce and whether Bank of
America made any false representations that Plaintiff relied upon related to the loan
modification.
9/29/16 MDO, pp. 3-4 (Docket No. 43) (internal citations omitted); see also id. at p. 4, n.3
(holding that discovery relating to securitization of Plaintiff’s mortgage is not relevant to claims
presented).1 Here, BANA serviced Plaintiff’s loan and, in that capacity, did not/would not make

1

In the subsequent Protective Order, this Court reiterated that BANA is under no
obligation to produce information related to any securitization of Plaintiff’s loan. See 3/17/17
Prot. Order, pp. 1-2 (Docket No. 64). However, this Court allowed discovery “related to internal
MEMORANDUM DECISION AND ORDER - 4

any claim to RMIC (a private mortgage insurance company) as to Plaintiff’s mortgage; instead,
the Federal National Mortgage Association (“Fannie Mae”), as the investor/note owner, makes
claims to RMIC for its own benefit. Under these circumstances, insisting upon such information
goes too far. Therefore, consistent with this Court’s previous directives, Plaintiff’s Motion to
Compel is denied in this respect.
C.

Plaintiff’s RFP Nos. 15 and 17
In RFP Nos. 15 and 17, Plaintiff requests payment information made to or received from

investors/beneficiaries (including Fannie Mae) of the at-issue mortgage loan. See Mem. in Supp.
of MTC, p. 5 (Docket No. 70, Att. 1). BANA objected, variously claiming that such requests
seek trade secret/confidential/proprietary information, or information protected by the work
product doctrine, attorney-client privilege, and bank examiner privilege. See id.2
Plaintiff properly can seek information relating to payments she made to BANA, which,
in turn, would include related payments from BANA, the loan’s servicer, and elsewhere,
including Fannie Mae, the investor/note owner. See, e.g., 3/27/15 Order, p. 16 (Docket No. 16)
(“Additionally, if this case proceeds through discovery, Clark may obtain relevant information

servicing records for Plaintiff’s loan including, but not limited to, BANA’s internal policies and
procedures relating to the servicing, assignment, and/or origination of Plaintiff’s loan and loans
in general.” Id. at p. 2.
2

, Unlike previous responses to Plaintiff’s Second Set of Requests for Production (see
supra), BANA does not refer to a specific document production alongside its objections. Indeed,
with respect to its responses to RFP Nos. 15 and 17, BANA states that its “investigation is
ongoing and supplemental information responsive to [these] request[s] may be provided to
[Plaintiff] if such information becomes available.” Mem. in Supp. of MTC, p. 5 (Docket No. 70,
Att. 1). Even so, in its opposition to Plaintiff’s Motion to Compel, BANA states that, “[o]nce
again, BANA has produced the documents responsive to this request in the form in which they
are kept in the usual course of business allowed by Federal Rule of Civil Procedure
34(b)(2)(E)(i).” Opp. to MTC, p. 6 (Docket No. 71). In this light, this Court understands that
BANA has not made a production of documents specific to RFP Nos. 15 and 17.
MEMORANDUM DECISION AND ORDER - 5

related to her account and can present arguments to the Court as the proper accounting of
payments, interest, and other matters related to the servicing of the loan.”) (emphasis added);
see also 3/17/17 Prot. Order, p. 2 (Docket No. 64) (allowing discovery related to BANA’s
policies and procedures relating to servicing Plaintiff’s loans). To the extent BANA claims that
such materials contain sensitive information, a protective order is in place to handle such things.
See generally 3/17/17 Prot. Order, pp. 1-2 (Docket No. 64). BANA shall produce the requested
accounting information specific to the at-issue mortgage loan by September 9, 2017. Plaintiff’s
Motion to Compel is granted in this respect.
C.

Plaintiff’s RFP No. 18
In RFP No. 18, Plaintiff requests “all documents and communication regarding the

underwriting and/or closing of the mortgage modification.” Mem. in Supp. of MTC, p. 6
(Docket No. 70, Att. 1). As with responses to RFP Nos. 15 and 17, BANA objected, did not
seem to produce any materials, but then said its investigation is ongoing and supplemental
information may be provided at a later date. See id.
Since the Motion to Compel was filed, it appears that BANA has produced “the
underwriting documentation for Plaintiff’s loan modification.” Opp. to MTC, pp. 7-8 (Docket
No. 71). However, Plaintiff contends more documentation exists, is discoverable, and should be
produced. See Reply in Supp. of MTC, p. 4 (Docket No. 72) (“While some information related
to underwriting has been supplemented, Defendant refuses to produce all the records from
underwriting pertaining to Plaintiff’s 2010 mortgage modification. It is apparent from document
BANA 2918, Plaintiff’s permanent loan modification was rejected from underwriting in June of
2012, but questions remain why said modification was rejected.”) (internal citations omitted).

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Given this, the pond is not at all settled on the issue; but neither is the briefing or, for that
matter, whether the parties have attempted to meet, confer, and informally resolve their
remaining differences on this discrete issue. For these reasons, Plaintiff’s Motion to Compel on
this particular topic is denied, without prejudice. Given the history of this action, the time that
has elapsed from its initiation until now, and the upcoming deposition, the parties are ordered to
make an immediate meet and confer session toward reaching a solution on any remaining issue
in this regard.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel
(Docket No. 70) is GRANTED, in part, and DENIED, in part.
DATED: September 6, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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