Home Servicing, LLC v. Graystone Solutions, Inc.
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.
GRAYSTONE SOLUTIONS, INC.
RULING ON MOTION TO COMPEL DISCOVERY
Before the court is a Motion to Compel filed by plaintiff Home
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
FISERV/MortgageServ, and related support services.2
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
Plaintiff alleged that it notified the defendant in January 2013
Record document number 27. Plaintiff
memorandum. Record document number 30.
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
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
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.
reviewing the defendant’s responses, the plaintiff notified the
deposition testimony from several of the defendant’s employees they
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
discovery requests are resolved as follows.
Interrogatory Number 2
Plaintiff requested the identity of the defendant’s witnesses,
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.
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.
If it does not have any
Defendant must promptly supply witness contact information when it
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.
Interrogatory Number 9
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
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
For the same reasons discussed above, the
information sought in this request.
Interrogatory Number 18
FISERV/MortgageServ to provide support for its clients using the
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.
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
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
testimony does not establish that the representative was the same
person each week or that the defendant had a regular contact at
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
Interrogatory Number 20
through December 2012.
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.
Record document number 30, Exhibit I, deposition of Noel
Manzanilla, pp. 60-61
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
Plaintiff may not conduct a fishing expedition based on
the speculation that other employees of the defendant may have some
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,
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
sanctions after the documents have been reviewed.
Request for Production Number 9
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
property, i.e. their loan data, and thus cannot be withheld.
information requested is relevant to proving a disputed issue in
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.
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
Request for Production Number 15
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.
The request is not
production is vague and factually unsupported.
The argument that
the data is not organized in a way that it can be searched is
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
Graystone customers regarding the use of the FISERV/MortgageServ
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
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
testified that the defendant provided a training workbook called
Latitude: “Fiserv had Latiture, which was their training workbook,
deposition testimony clearly indicates the existence of physical
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.
Accordingly, the Motion to Compel filed by plaintiff Home
Servicing, L.L.C. is granted in part and denied in part. Within 14
Interrogatory Number 2 and Request for Production Numbers 8, 15 and
18, as discussed above.
No objections will be allowed.
Baton Rouge, Louisiana, March 5, 2014.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
Record document number
Jessica Roach, pp. 22-23.
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