Home Servicing, LLC v. Graystone Solutions, Inc.
Filing
31
RULING granting in part and denying in part 26 Motion to Compel Discovery. Signed by Magistrate Judge Stephen C. Riedlinger on 03/05/2014. (NLT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HOME SERVICING, L.L.C.
CIVIL ACTION
VERSUS
NUMBER 13-132-JJB-SCR
GRAYSTONE SOLUTIONS, INC.
RULING ON MOTION TO COMPEL DISCOVERY
Before the court is a Motion to Compel filed by plaintiff Home
Servicing, L.L.C.
Record document number 26.
The motion is
opposed by defendant Graystone Solutions, Inc.1
Plaintiff, a specialty servicer of mortgage loans, filed this
action in state court to recover damages resulting from the
defendant’s alleged breach of a contract to provided the plaintiff
with
a
mortgage
loan
management
software
system,
FISERV/MortgageServ, and related support services.2
called
Plaintiff
alleged that after contracting with the defendant in 2008, it
experienced numerous problems from 2011-2013 with the defendant’s
software product and the support services, which was in breach of
the
Home
Servicing
Agreement
(hereafter,
the
“Agreement”).
Plaintiff alleged that it notified the defendant in January 2013
that
the
1
Agreement
was
terminated
because
Record document number 27. Plaintiff
memorandum. Record document number 30.
2
of
this
filed
breach.
a
reply
Record document number 1-2, Home Servicing Agreement between
Home Servicing, LLC and Graystone Solutions, Inc.
Plaintiff alleged that the defendant subsequently blocked the
plaintiff’s access to the software, which led to the plaintiff’s
inability
to
fulfill
its
loan
servicing
obligations
to
its
customers.
Defendant filed a counterclaim against the plaintiff alleging
that its attempt to terminate the Agreement immediately was in
breach of the Agreement terms.
Defendant asserted that the
agreement required written notice from the plaintiff 180 days prior
to the expiration of the renewed term, which would have been in
March 2014.
Defendant alleged that the plaintiff owes amounts due
for services rendered, termination fees for the conversion of the
plaintiff’s loans, and FISERV/MortgageServ account fees for the 14
months remaining under the Agreement.
On September 3, 2013, the plaintiff propounded interrogatories
and requests for production of documents to the defendant.
After
reviewing the defendant’s responses, the plaintiff notified the
defendant
of
certain
deficiencies.
Plaintiff
asserted
that
deposition testimony from several of the defendant’s employees they
confirmed
Plaintiff’s
that
responsive
continued
documents
requests
had
for
not
been
produced.
supplementation
were
unfulfilled, thus it filed this motion to compel.
In its reply memorandum the plaintiff revised its request for
supplementation , noting that sufficient responses to Interrogatory
Numbers 8 and 16 were provided.
The disputes over the remaining
2
discovery requests are resolved as follows.
Interrogatory Number 2
Plaintiff requested the identity of the defendant’s witnesses,
their
contact
testimony.
information
and
the
subject
matter
of
their
In response, the defendant provided names of several
witnesses but failed to include their contact information and the
subject matter of their testimony. Defendant asserted that several
of these witnesses have already been deposed by the plaintiff, and
therefore no additional information is needed.
Defendant also
asserted that it does not have any contact information for some of
the listed witnesses and that any additional information it obtains
would be provided.
Defendant’s response is deficient.
If the defendant names a
witness, it must provide the contact information for the witness
and a summary of the expected testimony.
contact
information,
then
the
If it does not have any
defendant
should
state
that.
Defendant must promptly supply witness contact information when it
is obtained.
Defendant shall revise its response to include the
specific information requested in this interrogatory for each
person witness identified, except that the subject matter need not
be provided for any person already deposed, nor the contact
information for a person who provided it during a deposition.
3
Interrogatory Number 9
Plaintiff
sought
information
concerning
the
defendant’s
clients that used certain features of FISERV/MortgageServ System.
Although the plaintiff limited the request, the plaintiff failed
explain how other clients’ experiences with the defendant and the
FISERV/MortgageServ System is relevant to the issues presented in
this case.
Defendant’s response is sufficient.
Interrogatory Number 12
Plaintiff requested that the defendant identify every state or
federal lawsuit involving the defendant where its client alleged
servicing issues.
plaintiff
has
For the same reasons discussed above, the
failed
to
demonstrate
the
relevance
of
the
information sought in this request.
Interrogatory Number 18
In
this
concerning
interrogatory,
each
contact
the
person
plaintiff
that
the
sought
information
defendant
had
at
FISERV/MortgageServ to provide support for its clients using the
system.
Defendant argued that when support services were needed,
its employees would call a general phone number and assistance
would be provided by an available representative.
Defendant
asserted that it did not maintain a list of the technical support
employees who provided assistance on any particular technical
issue. Defendant noted that one employee was put in direct contact
4
with the plaintiff to help with its issues, and the plaintiff
already has this person’s contact information.
This answer is sufficient.
Although the plaintiff referenced
testimony that indicates the defendant communicated online with a
FISERV
representative
weekly
to
address
ongoing
issues,
this
testimony does not establish that the representative was the same
person each week or that the defendant had a regular contact at
FISERV.3
Thus, the plaintiff has not sufficiently established the
possibility that any additional responsive information exists.
However, if such information does exist and the defendant fails to
timely provide supplementation, it risks sanctions under Rule 37,
Fed.R.Civ.P., including, but not limited to, being prohibited from
using
such
unidentified
witnesses
to
support
its
defenses/counterclaims.
Interrogatory Number 20
Plaintiff
employee
and/or
requested
identification
subcontractor
through December 2012.
of
information
Graystone
from
for
January
every
2010
Defendant responded by stating that the
employees referred to in their Answers to Interrogatories may have
information relevant to the parties and issues. Defendant objected
to providing any additional information because the interrogatory
was overbroad, unduly burdensome, and irrelevant.
3
Record document number 30, Exhibit I, deposition of Noel
Manzanilla, pp. 60-61
5
Plaintiff has failed to persuasively show how any employee not
directly involved with addressing the plaintiff’s service issues
would likely have information relevant to the subject matter of the
case or reasonably calculated to lead to discovery of admissible
evidence.
Plaintiff may not conduct a fishing expedition based on
the speculation that other employees of the defendant may have some
additional information.
Request for Production Number 8
This request sought all documentation that references the
plaintiff, including but not limited to, email communications
between Graystone’s employees, between Home Servicing’s employees,
or
emails
between
Graystone
and
Home
Servicing
employees.
Plaintiff argued that deposition testimony revealed the existence
of IT minutes that should be produced in response to this request.
Plaintiff additionally sought to reserve the right to compel the
defendant to pay for travel, attorney fees and costs to re-depose
witnesses regarding the withheld documents.
In its opposition memorandum, the defendant asserted that the
loan boarding documents and IT Minutes would be furnished to the
plaintiff on or before February 4, 2014.
The record does not
indicate whether the plaintiff has yet received these documents.
Thus, the defendant shall produce the documents if it has not
already done so.
With respect to efforts to re-depose witnesses,
the plaintiff may move for leave to re-depose witnesses and for
6
sanctions after the documents have been reviewed.
Request for Production Number 9
This
request
sought
all
documents
which
reference
Home
Servicing’s clients. Defendant argued that this request was overly
burdensome and not relevant. Defendant noted that this information
was withheld from the plaintiff due to its failure to pay for
services under the Agreement and that forced production of this
information would allow the plaintiff to circumvent its payment
obligations
under
the
Agreement
which
are
at
issue
in
the
requested
is
its
defendant’s counterclaim.
Plaintiff
argued
that
the
information
property, i.e. their loan data, and thus cannot be withheld.
However,
the
plaintiff
has
failed
to
demonstrate
how
the
information requested is relevant to proving a disputed issue in
this case.
A motion to compel cannot be used to essentially get
the benefits of a judgment in its favor.
Although, the plaintiff
claimed that it needed this information to determine whether or not
the defendant corrupted their loan information through additional
system failures, its argument is speculative and does not establish
relevance to a claim or defense.
Request for Production Number 10
This request sought a redacted copy of the personnel files of
Dave Miner and Terry Szyszkiewicz.
7
Plaintiff asserted that the
personnel files are relevant because they would contain their
employment histories and experience, which could then lead to
information concerning the defendant’s inability to correct its
technical support failures on the FISERV/MortgageServ System after
these employees left the defendant’s employment, which is when the
plaintiff’s problems started.
Defendant argued that because these
witnesses have been deposed no further production is necessary
unless the plaintiff can specify what additional information is
needed from these files.
Plaintiff has not demonstrated the relevance of these files;
its argument is speculative.
The information sought is not
reasonably
to
calculated
to
lead
the
discovery
or
relevant,
admissible evidence.
Request for Production Number 15
Plaintiff
requested
communications
between
Graystone
and
Fiserv, Inc., or any affiliate thereof, that in any way references
Home Servicing from January 2011 to date. Defendant argued that it
was overbroad and unduly burdensome because it would cost great
amounts of time and money to search and retrieve this information
from its stored data.
Defendant’s argument is unconvincing.
overbroad.
Defendant’s
argument
The request is not
concerning
production is vague and factually unsupported.
the
burden
of
The argument that
the data is not organized in a way that it can be searched is
8
likewise
factually
unsupported
and
therefore
unconvincing.
Defendant provided no information explaining how its data is
organized and stored.
Request for Production Number 16
Plaintiff requested all documents regarding any internal
complaints, administrative charges, and/or lawsuits against the
defendant
related
to
the
lack
of
performance
experienced
by
Graystone customers regarding the use of the FISERV/MortgageServ
System.
For
the
same
reasons
discussed
above
concerning
Interrogatory Numbers 9 and 12, this request does not appear to
seek relevant documents.
Request for Production Number 18
This request sought all training materials, videos and/or
manuals used to train certain Graystone employees on how to perform
their job duties.
Plaintiff subsequently clarified that its
request was limited to the training materials and manuals used to
train
Graystone
contractually
employees
bound
to
to
perform
provide
to
the
the
duties
it
plaintiff,
was
i.e.
FISERV/MortgageServ System service and support. Defendant asserted
that no such documentation exists because the only training was
conducted through on-the-job training from other co-workers and
help
screens
referred
to
as
“latitude
FISERV/MortgageServ System.
9
documentation”
on
the
Plaintiff
argued
that
defendant’s
employee
Janet
Roach
testified that the defendant provided a training workbook called
Latitude: “Fiserv had Latiture, which was their training workbook,
and
it
encompassed
everything
on
the
Fiserv
system.”4
The
deposition testimony clearly indicates the existence of physical
workbook
used
to
train
Graystone
employees
on
the
FISERV/MortgageServ System. Defendant did not present any evidence
to refute or clarify this testimony.
Thus, they are required to
provide the Latitude workbook discussed during the deposition.
Conclusion
Accordingly, the Motion to Compel filed by plaintiff Home
Servicing, L.L.C. is granted in part and denied in part. Within 14
days,
the
defendant
shall
provide
supplemental
responses
to
Interrogatory Number 2 and Request for Production Numbers 8, 15 and
18, as discussed above.
other
respects,
Pursuant
to
the
Rule
No objections will be allowed.
plaintiff’s
37(a)(5)(C),
Motion
the
to
parties
Compel
shall
is
In all
denied.
bear
their
respective costs.
Baton Rouge, Louisiana, March 5, 2014.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
4
Record document number
Jessica Roach, pp. 22-23.
30-1,
10
Exhibit
H,
deposition
of
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