Grady v. Ocwen Loan Servicing Ctr LLC
Filing
74
WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 6/11/2013:For the reasons stated below, Plaintiff's objections 59 to Magistrate Judge Schenkier's March 18 ruling [see 58, 62] are respectfully overruled; the ruling is aff irmed and the following briefing schedule is set for dispositive motions: Plaintiff's response to Defendants' motion for summary judgment 67 and cross-motion for summary judgment, if any, are due on 7/8/2013; Defendants' response/reply brief is due on 7/29/2013; Plaintiffs reply, if any, is due on 8/13/2013. The Court will issue a ruling by mail on the dispositive motion(s). Mailed notice(tbk, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Robert M. Dow, Jr.
CASE NUMBER
11 C 1531
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
6/11/2013
Grady vs. Ocwen Loan Servicing LLC
DOCKET ENTRY TEXT
For the reasons stated below, Plaintiff’s objections [59] to Magistrate Judge Schenkier’s March 18 ruling [see
58, 62] are respectfully overruled; the ruling is affirmed and the following briefing schedule is set for dispositive
motions: Plaintiff’s response to Defendants’ motion for summary judgment [67] and cross-motion for summary
judgment, if any, are due on 7/8/2013; Defendants’ response/reply brief is due on 7/29/2013; Plaintiff’s reply,
if any, is due on 8/13/2013. The Court will issue a ruling by mail on the dispositive motion(s).
O[ For further details see text below.]
Docketing to mail notices.
STATEMENT
In this case, Plaintiff filed her original pro se complaint [1] on March 4, 2011. The Court promptly granted
Plaintiff’s motion for recruitment of counsel [see 6, 11]. In June 2011, with the assistance of counsel, Plaintiff
filed her amended complaint [17]. In March 2012, the Court issued an order granting in part and denying in part
Defendants’ motion to dismiss. Since that time, Defendants have answered and the parties have proceeded with
discovery.
In February 2013, the Court referred this matter to the calendar of Magistrate Judge Schenkier for all discovery
supervision. Shortly thereafter, Plaintiff filed a motion to compel [53]. Among other things, Plaintiff sought to
compel Defendants to respond to certain document production requests and interrogatories concerning various
fees and charges relating to the servicing of Plaintiff’s mortgage. Each side filed a brief setting forth its position
[see 53, 56, 57]. The disputed issue from which the objections now before the Court derive concerns the temporal
scope of Defendants’ document production. Plaintiff sought documents dating back to 2005; Defendants objected
on the ground that such an extensive production would be unduly burdensome, especially in view of certain
refinancing documents that Plaintiff executed in 2007 and 2010 that, according to Defendant, prohibited Plaintiff
from challenging any charges imposed prior to 2010.
On March 18, 2013, Judge Schenkier held a hearing during which he announced oral rulings on the motion to
compel. In regard to the temporal issue, Judge Schenkier ordered Defendants to produce documents from 2010
and later at their own expense. However, Judge Schenkier ruled that Defendant would be required to produce
earlier documents (dating back to 2005) only if Plaintiff paid the costs of the production. Plaintiff has filed
objections to Judge Schenkier’s decision, which this Court now addresses.
As an initial matter, Plaintiff contends that Judge Schenkier’s ruling “appear[s] to decide in favor of defendants
on certain dispositive or at least partially dispositive matters concerning defenses of waiver and novation that
defendant did not plead and which are not properly at issue in this action,” suggesting that this Court therefore
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STATEMENT
should review Judge Schenkier’s ruling under a de novo standard rather than for clear error. This Court
respectfully disagrees. Nothing in Judge Schenkier’s ruling disposes of any issue in the case. All that the ruling
does is shift the costs of compliance with certain of Plaintiff’s document requests to Plaintiff herself if she wants
access to those documents. [FN 1]
[FN 1] In fact, recruited counsel generously has offered to advance those costs to Plaintiff should
this Court uphold Judge Schenkier’s order.
The general rule in discovery is that the responding party bears the costs of complying with discovery requests.
See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). However, a district court “has broad
discretion to protect a responding party from undue burden or expense in discovery by shifting some or all of the
costs of production to the requesting party.” Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996)
(citing Fed. R. Civ. P. 26(c) and Oppenheimer Fund, 437 U.S. at 358). Numerous courts have commented on
the availability of cost-shifting in managing the burdens of discovery. See, e.g., Spears, 74 F.3d at 158 (noting
that the Federal Rules of Civil Procedure “give trial courts considerable discretion in determining whether
expense-shifting in discovery production is appropriate in a given case”); Wiginton v. CB Richard Ellis, Inc., 229
F.R.D. 568, 572 (N.D. Ill. 2004) (explaining that a responding party may ask the court to protect it from “‘undue
burden or expense’” by either restricting the discovery sought or by shifting the costs to the non-producing party);
Computer Assocs. Int’l, Inc. v. Quest Software, Inc., 2003 WL 21277129, at *1 (N.D. Ill. June 3, 2003)
(explaining that “[i]f the burden of a discovery request outweighs the likely benefit, we may shift all or part of
the cost of production to the requesting party,” and listing factors courts may take into account when considering
whether costs should be shifted); Byers v. Illinois State Police, 2002 WL 1264004, at *11 (N.D. Ill. June 3, 2002)
(“When the burden of a request outweighs the likely benefit, courts generally shift all or part of the cost of
production to the discovering party.”). Indeed, the Advisory Committee Notes to the 1970 Amendment to Federal
Rule of Civil Procedure 34 specifically noted that “courts have ample power under Rule 26(c) to protect
respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party
pay costs.”
Magistrate Judge Schenkier determined that the breadth of Plaintiff’s discovery requests in this case justified
invoking the well established principles cited above in regard to a certain class of documents – namely,
documents that predated Plaintiff’s loan modification agreement under the Home Affordable Modification Plan
(“HAMP”) into which Plaintiff entered in January 2010. Defendant objected on the ground that the request for
documents dating back to 2005 amounted to approximately eighty separate charges. Having reviewed the parties’
written submissions, Judge Schenkier was aware of both a 2007 forbearance agreement and the 2010 HAMP
modification. He also was aware of Plaintiff’s contentions that any effort to block Plaintiff from contesting her
charges on the basis of those agreements would be “unconscionable” and that Defendant had not raised any such
arguments in its pleadings. Nevertheless, Judge Schenkier explained that he would not “ignore” those documents
and that the costs of responding to Plaintiff’s request for documents pre-dating the 2010 modification would be
borne by Plaintiff herself (if she persisted in requesting such documents).
Drawing the line where he did lay well within Magistrate Judge Schenkier’s broad discretion in managing
discovery in this case. The fact that Plaintiff qualifies for in forma pauperis status does not automatically tip the
scales in favor of unlimited discovery at Defendant’s expense. While the relative resources of the parties are a
factor that courts may consider in deciding whether to shift costs – and one that favors Plaintiff here – other
relevant factors that Judge Schenkier considered pointed in the opposite direction. See Rowe Entertainment, Inc.
v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002) (listing eight factors that judges may
consider in determining whether discovery costs should be shifted). Judge Schenkier did not commit error, much
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STATEMENT
less clear error, in concluding that the costs of complying with Plaintiff’s extensive written discovery requests
should be split between Plaintiff and Defendant on a temporal basis.
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