Bertelsen v. Citimortgage, Inc. et al

Filing 50

ORDER granting 31 Motion to Compel Signed by Magistrate Judge Jeremiah C. Lynch on 2/16/2017. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
JONATHAN CHARLES BERTELSEN,

CV 16-2-BU-JCL

Plaintiff,
ORDER

vs.
CITIMORTGAGE, INC., and JOHN
DOES 1-10,
Defendants.

Plaintiff Jonathan Bertelsen moves pursuant to Fed. R. Civ. P. 37(a) for an
order compelling Defendant Citimortgage, Inc. (“Citimortgage”) to produce
certain documents. Specifically, in his Request for Production No. 2, served
March 30, 2016, Bertelsen requested the production of Citimortgage’s policies for
“obtaining loan modification documents from a borrower” dating back to 2008 –
the time frame Citimortgage began servicing Bertelsen’s home mortgage loan. On
June 1, 2016, Citimortgage served its response objecting to the production of the
referenced documents on grounds of relevance, proportionality, and
confidentiality/proprietary/trade-secret. (Doc. 32-1, at 4).
Over the course of the next several months – and in accordance with the
mandate of L.R.26.3(C)(1) – the parties conferred in an attempt to resolve their
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discovery squabble regarding the Citimortgage policies at issue. Consistent with
documents submitted by Bertelsen reflecting the parties’ discussions, Citimortgage
agreed to produce copies of its pertinent policies from 2013 to the present.
Bertelsen in turn, it appears, agreed to forgo his request for responsive documents
dating back to 2008, and agreed to stipulate to the entry of a protective order
preserving the confidentiality of the Citimortgage documents at issue. The parties’
agreement is memorialized in numerous communications that occurred between
counsel and submitted by Bertelsen in support of his motion. (Doc. 32-4).
Importantly, in response to Bertelesen’s motion, Citimortgage took no issue with
his characterization of the parties’ agreement as reflected in the referenced
documents.
Contrary to the parties’ agreement, Citigmortgage never supplemented its
discovery response by producing pertinent documents from 2013 forward. And it
does not dispute this fact. Rather, after repeated inquiries from Bertelsen,
Citimortgage advised Bertelsen’s counsel on January 5, 2017, that it was not going
to produce its policies as agreed. Again, Citimortgage does not dispute this
sequence of events as represented by Bertelsen.
In opposition to Bertelsen’s motion to compel, Citimortgage simply
reanimates its initial objections that the documents are irrelevant, proprietary, and

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confidential. But the litigation tactic employed here by Citimortgage contravenes
the mandate of Fed. R. Civ. P. 1, that the Court and the parties construe,
administer and employ the Rules to “secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1.
Resolution of the discovery dispute at hand has languished for nearly 11
months because Bertelsen complied with the mandate of L.R. 26.3(c)(1), relied
upon Citimortgage’s representations, and remained cooperative in his attempt to
avoid invocation of Fed. R. Civ. P. 37. Citimortgage, in contrast, has acted in a
manner that is not only inconsistent with Fed. R. Civ. P. 1, but also operates to
jeopardize the Fed. R. Civ. P. 16 scheduling order entered in this matter – an order
which established a discovery deadline of January 16, 2017.
Citimortgage remains free, of course, to assert, at trial, its relevancy
objection to the policies it implemented regarding the marshaling of information
from borrowers in relation to a potential loan modification. But the Court will not
condone retromingent litigation tactics that unnecessarily prolong resolution of an
action and are counter productive to the civility necessary to accomplish the goal
of Fed. R. Civ. P. 1.
Therefore, Plaintiff Bertelsen’s motion to compel is GRANTED.
Citimortgage shall, on or before March 3, 2017, produce all policies it had in

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place from 2013 to the present relative to obtaining loan modification documents
from a borrower. The production shall be subject to a stipulated protective order
agreed to by the parties and submitted to the Court for approval.
IT IS SO ORDERED. Each party shall bear its own costs with respect to
the motion.
DATED this 16th day of February, 2017.

Jeremiah C. Lynch
United States Magistrate Judge

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