Le v. Bank of America, National Association et al

Filing 50

ORDER Granting 45 Stipulation for Extension of Time (First Request) re 26 Motion for Partial Summary Judgment is GRANTED. See Order for deadlines. Signed by Judge Richard F. Boulware, II on 10/12/17. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
6
7

Bradley T. Austin
Nevada Bar No. 13064
SNELL & WILMER L.L.P.
3883 Howard Hughes Pkwy
Suite 1100
Las Vegas, NV 89169
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant Equifax Information Services LLC
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

8
9
10

HIEP D. LE,
Plaintiff,

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11
12

vs.

13

BANK OF AMERICA, NATIONAL
14 ASSOCIATION;
EQUIFAX INFORMATION SERVICES, LLC,
15
16

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:16-cv-02393-RFB-GW

STIPULATION REGARDING
WITHDRAWAL AND RESUBMISSION
OF DEFENDANT’S RESPONSE IN
OPPOSITION TO PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND TO EXTEND
DEADLINE FOR REPLY BRIEF
(FIRST REQUEST)

17
18

Defendant Equifax Information Services LLC (“Equifax”) filed its Response in

19

Opposition to Plaintiff’s Motion for Partial Summary Judgment (the “EFX Response Brief”) on

20

September 28, 2017. [Doc. 37.] In support of the EFX Response Brief, Equifax submitted the

21

Declaration of Pamela Smith (the “Smith Declaration”). [Doc. 37-9.] Along with the Smith

22

Declaration, Equifax attached two exhibits identified as (1) the FIS Card Agreement (Exhibit 9A);

23

and (2) the reinvestigation results dated April 29, 2016 (Exhibit 9B).

24
25

Equifax’s filing of the Smith Declaration and the two exhibits attached to it precipitated a
dispute between Plaintiff’s and Equifax’s attorneys.

26

Summary of Plaintiff’s Argument

27

It is Plaintiff’s position that Exhibits 9A and 9B were improperly introduced as the

28

documents were not previously produced in discovery, but instead were produced for the first

1

time in Equifax’s response to Plaintiff’s motion for summary judgment. – despite the fact that

2

they were requested in discovery and Equifax’s 30(b)(6) testified in a manner which necessitated

3

their disclosure under Rule 26. Moreover, even after discovery closed, the parties conducted a

4

telephonic meet-and-confer regarding the confidentiality of all exhibits shortly before submission

5

of their respective motions for summary judgment; at that time, Equifax never disclosed its

6

intention to submit Exhibit 9A under seal, although Exhibit 9A was subsequently filed under seal

7

in Equifax’s response.

Exhibit 9A, although it appears to be a document executed several years ago. Moreover, Exhibit

10

9A refers to an entirely new subset of Equifax documents, particularly “Transaction Document

11

Snell & Wilmer

According to Plaintiff, it remains unclear when Equifax first discovered the existence of

9

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

8

Number 2,” which suggests that to the degree Exhibit 9A purports to be a “contract” between

12

Equifax and its third-party mailing vendor, it is an out-of-date version of the same. Therefore, it

13

is Plaintiff’s contention that Exhibit 9A was not only untimely provided, but cannot be used for

14

any of the propositions it purports to establish.

15

As for Exhibit 9B, Equifax has not presented any argument for why it never produced the

16

“reinvestigation results” in discovery. Regardless, it is Plaintiff’s position that these results are

17

apropos of nothing, as Equifax’s third party mailing vendor has already affirmed that it has no

18

evidence that the “reinvestigation results” were ever actually mailed to Plaintiff at any time.

19

Summary of Defendant’s Argument

20

It is Equifax’s position that the FIS Card Agreement was never requested by Plaintiff

21

during discovery and only became relevant because of the arguments made for the first time in

22

Plaintiff’s Motion for Partial Summary Judgment, and that such submission does not contradict

23

Equifax’s prior testimony. [Doc. 26.] For instance, Equifax’s representative testified to the fact

24

that Equifax contracts with FIS Card for print-and-mail services in her initial deposition. This

25

fact has never been in dispute.

26

electronically to FIS Card in an electronic format, and it is Equifax’s position that her Declaration

27

only clarifies her testimony. Nonetheless, Equifax has agreed to withdraw both Exhibits that have

28

resulted in the above-referenced dispute so as not to waste the Court’s resources with unnecessary

Further, Ms. Smith testified that the files are transmitted

-2-

1

motion practice or to distract the Court from the material issues.

2

In an effort to resolve the parties’ dispute, counsel for the parties have met and conferred

3

in good faith, and have reached an agreement to the items below. This stipulation is filed in good

4

faith and not intended to cause delay.

5
6

Accordingly, IT IS HEREBY STIPULATED AND AGREED, by and among counsel, as
follows:

[Doc. 37], including the Smith Declaration [37-9] and accompanying Exhibits 9A and 9B,

9

within three days of the Court’s execution of the instant stipulation. At that time, Equifax

10

shall be permitted to file a corrected and revised EFX Response Brief and Smith Declaration

11

Snell & Wilmer

1. Equifax shall be permitted to withdraw from the record of this case the EFX Response Brief

8

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

7

in the form previously exchanged between counsel for the parties on October 6, 2017. Such

12

filing will specifically withdraw Exhibits 9A and 9B, and the references to each, from the

13

EFX Response Brief and the Smith Declaration.

14

2. Plaintiff’s deadline for filing his Reply in support of his Motion for Summary Judgment

15

(Doc. 30) shall be extended two (2) weeks from the date of Equifax’s corrective filing

16

identified above.

17

3. By agreeing to this Stipulation, Plaintiff is not waiving any right to challenge the corrected

18

filing of the EFX Response Brief or to seek any relief it deems appropriate in replying to it,

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
-3-

1

and Plaintiff expressly reserves the right to do so. Equifax likewise does not waive any right

2

to respond to the relief Plaintiff may seek in a future reply.

3

Dated: October 9, 2017

4

IT IS SO STIPULATED:

5
6
7
8
9
10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11
12
13
14
15
16

Knepper & Clark, LLC

SNELL & WILMER L.L.P.

/s/ Miles N. Clark_______________________
Matthew I. Knepper
Miles N. Clark
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129
[e-mail]
[e-mail]
Counsel for Plaintiff

By: /s/ Bradley T. Austin
Bradley T. Austin
Nevada Bar No. 13064
3883 Howard Hughes Pkwy
Suite 1100
Las Vegas, NV 89169
Tel: [phone]
Fax: [phone]
Email: [e-mail]

David H. Krieger
Haines & Krieger, LLC
8985 S. Eastern Avenue
Suite 350
Henderson, NV 89123
[e-mail]
Counsel for Plaintiff

18

Sean N. Payne
Payne Law Firm, LLC
9550 S. Eastern Ave., Suite 253-A213
Las Vegas, NV 89123
[e-mail]

19

Attorneys for Defendant Equifax Information
Services LLC

Attorneys for Plaintiff

17

20
21
IT IS SO ORDERED:
22
23
24
25
26

__________________________
United States District Court Judge
October 12, 2017.
DATED: __________________

27
28
-4-

1
2

CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been served this 9th day of

3
October, 2017, via ECF, upon:
4
5
6

Matthew I. Knepper
Miles N. Clark
10040 W. Cheyenne Ave., Suite 170-109
Las Vegas, NV 89129

7
8
9
10

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169
702.784.5200

11
12
13
14

David H. Krieger
Haines & Krieger, LLC
8985 S. Eastern Avenue
Suite 350
Henderson, NV 89123
Sean N. Payne
Payne Law Firm, LLC
9550 S. Eastern Ave., Suite 253-A213
Las Vegas, NV 89123
Counsel for Plaintiff

15
16
17

By: /s/ Jeanne Forrest
An employee of Snell & Wilmer

18
19
20
21
22
23
24
25
26
27
28
-5-