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