Downs v. River City Group LLC et al

Filing 258

ORDER on 257 Remand. Joint statement/separate memoranda due within 20 days (by 10/14/2014). See order for specifics. Signed by Magistrate Judge William G. Cobb on 9/24/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LINDA DOWNS,

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3:11-cv-00885-LRH-WGC
Plaintiff,

v.

ORDER
re: Order on Remand
(Doc. # 257)

RIVER CITY GROUP, LLC, et. al.,

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Defendants.

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Before the court is the order of Senior United States District Judge Larry R. Hicks

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remanding for reconsideration two discovery orders previously entered in this litigation by the

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undersigned magistrate judge. (Doc. # 257.)1 The discovery orders involved are Doc. # 232,

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which pertained to Plaintiff Downs’ discovery dispute with Minnesota Life Insurance Company

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(“Minnesota Life”), and Doc. # 243, which arose from Plaintiff’s dispute with Wells Fargo Bank,

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N.A. (“Wells Fargo”).

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The facts and procedural history of this case are outlined in Judge Hicks’ Order. (Doc.

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# 257 at 1-2). However, this court will briefly review the two orders which have been remanded

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and the underlying discovery disputes which gave rise to those orders.

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I. DOC. # 232: ORDER RE: PLAINTIFF-MINNESOTA LIFE DISCOVERY DISPUTE

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On January 4, 2013, Plaintiff filed an emergency motion to compel further discovery

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against Minnesota Life. (Doc. # 103.)2 The court scheduled an expedited hearing on Plaintiff’s

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motion, but required the parties to first participate in a “meet and confer” pursuant to Local Rule

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26-7(b). The parties were to thereafter submit a summary of their perspectives regarding what

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discovery issues remained to be addressed by the court (Doc. # 111), which they did (Docs.

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Refers to court's docket number.
This was one of twenty-four discovery motions filed in this case. (See Doc. # 232 at 2, n. 2.)

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# 120 (Minnesota Life), #121/122 (Plaintiff)).
Following the parties’ conferences, this court at its January 18, 2013 hearing denied
certain aspects of Plaintiff’s motion to compel but granted certain others. (Doc. # 132.) The
further responses required by this court from Minnesota Life focused on two discovery issues,
i.e., the production of a Minnesota Life PowerPoint on claims handling and an administrative
manual pertaining to the Minnesota Life-Wells Fargo life insurance plan. (Id.)
On April 24, 2013, which was approximately ten weeks after the deadline for completion
of discovery, Plaintiff filed another motion to compel against Minnesota Life. (Doc. # 188.)
Because the motions for summary judgment were fully briefed and then under submission to
Judge Hicks, this court stayed briefing on Plaintiff's motion to compel (Doc. # 188) until the
potentially dispositive motions between these parties were addressed by Judge Hicks. Thereafter,
Minnesota Life’s motion for summary judgment was granted (Doc. # 207), which terminated the
causes of action against Minnesota Life.3 Judge Hicks did, however, allow the parties to address
whether and how to proceed with the previously stayed discovery motions. (Doc. # 218.) He
dismissed the previously stayed motions without prejudice and instructed the parties to review
the orders on the dispositive motions and file motions with respect to any remaining discovery
dispute within thirty days. (Id.)
As a result, Plaintiff filed another motion to compel, Doc. # 223, which flowed from her
earlier motions to compel, Doc. # 188 and Doc. # 103. The subject of the new motion was, again,
the production of the Minnesota Life PowerPoint on claims handling identified in the deposition
of Eric Walton and an administrative manual identified by Kathy Schmidt that this court had
previously ordered Minnesota Life to produce. (Doc. # 232 at 5.)
Minnesota Life responded to Plaintiff’s motion to compel with a motion to strike (Doc.
# 226) arguing that it had since been granted summary judgment by Judge Hicks and, therefore,
discovery could not be pursued against a dismissed entity. Minnesota Life also asserted that it

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Judge Hicks denied Plaintiff's motion for reconsideration of the order granting summary judgment to
Minnesota Life (Doc. # 214), and also denied Plaintiff's motion for partial summary judgment against Minnesota
Life (Doc. # 213).

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had produced “approximately two hundred pages of training materials, including PowerPoint
presentations and ‘booklets’ of statutes.” (Doc. # 226 at 4-5.) In addition, Minnesota Life
represented that it produced an affidavit from Ms. Schmidt stating that the administrative manual
does not speak to claims handling procedures, as the court directed in its January 18, 2013 order.
(Id. at 5.)4 Therefore, Minnesota Life contended that it had fully complied with the court's order
relative to this discovery dispute.
First, this court concluded that discovery could not be obtained against a dismissed party,
i.e., Minnesota Life. (Doc. # 232.) Second, the court found that Plaintiff failed to satisfy Local
Rule 26(b)'s requirement that the movant engage in a sincere and personal consultation to resolve
the dispute before bringing the matter to the court's attention. (Id. at 13.) Third, the court
concluded Plaintiff's motion—filed after the discovery completion deadline and after the motions
for summary judgment were fully briefed—was untimely. (Id.) Finally, the court found that
Minnesota Life had substantially complied with Plaintiff's remaining discovery requests and the
court's order pertaining thereto. (Id. at 14.) Accordingly, Minnesota Life's motion to strike was
granted and Plaintiff's motion to compel was denied. (Id.; Doc. # 233.)
Plaintiff filed an objection to this court's order, arguing that Minnesota Life’s production
was unsatisfactory. (Doc. # 237.) Minnesota Life filed a response. (Doc. #239). Judge Hicks
remanded the matter to the undersigned to determine whether or not Minnesota Life had in fact
actually complied with Plaintiff's discovery requests and the court's prior orders. (Doc. # 257.)
II. DOC. # 243: ORDER RE: PLAINTIFF-WELLS FARGO DISCOVERY DISPUTE
On January 10, 2013, prior to the expiration of the deadline for completion of discovery,
Plaintiff filed an emergency motion to compel further discovery from Wells Fargo. (Doc. # 109.)
As it did with the Downs-Minnesota Life dispute, this court directed the parties to “meet and
confer” regarding the discovery dispute presented by Downs’ motion, and to thereafter submit a

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In her motion, Plaintiff does not dispute that Minnesota Life produced an affidavit of Ms. Schmidt;
however, she asserts that the affidavit does not assert that the administrative manual does not speak to claims
handling issues, but instead affirmatively indicates that it does speak to claim handling issues. (Doc. # 223 at 3.)
Therefore, she contended that the entire manual (and not just the single page produced along with the affidavit)
should be produced. (Id.)

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list of the remaining discovery issues. (Doc. # 111.) The court scheduled an expedited hearing
for January 18, 2013. (Id.)

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Wells Fargo filed its statement regarding the discovery dispute between it and Plaintiff,
representing that the issues between it and Plaintiff were “largely resolved,” and that it had
agreed to withdraw certain objections as to written discovery. (Doc. # 119.) Wells Fargo stated,

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however, that a dispute remained as to the deposition of Wells Fargo employee Amber Deisn.
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(Doc. # 119). Plaintiff’s statement concurred. (Doc. # 121 at 3.) At the expedited hearing, Wells

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Fargo and Plaintiff represented to the court that the discovery issues inherent in Doc. # 109 had
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been resolved and requested that the motion to compel be withdrawn. (Doc. # 132 at 4.) Based
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on the representations and requests of counsel, the motion was ordered withdrawn by this court.
(Id.)5
Approximately ten weeks after the deadline for the completion of discovery had expired 6,

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Plaintiff filed another discovery motion against Wells Fargo. (Doc. # 191.) The discovery issues
raised in Doc. # 191 were substantially similar to those asserted in Doc. # 109, which the parties
had represented had been resolved. (Doc. # 132 at 4.)
As did Minnesota Life, Wells Fargo filed a motion to stay briefing on the latest discovery

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motion until after Judge Hicks had ruled on Wells Fargo's motion for summary judgment (Docs.
# 197, # 198), which the court granted (Doc. # 204). The order noted that Plaintiff's opposition to
Defendants' motions for summary judgment had not sought to defer resolution of the motions so
that Plaintiff could obtain discovery pursuant to Federal Rule of Civil Procedure 56(d). (Id. at 23.)
On December 4, 2013, Judge Hicks denied in part and granted in part Wells Fargo's

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The minutes from the hearing do not contain any representations by Plaintiff's counsel as to the further
production of documents, just that Wells Fargo's counsel advised the court the parties resolved Plaintiff's motion.
Plaintiff's counsel voiced no objection to the representation on the request to withdraw Plaintiff's motion to compel.
(Doc. # 132 at 4.)
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The oft-extended discovery deadline was set as final for February 8, 2013, with the proviso: "There will
be no further extensions." (Doc. # 82.)

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motion for summary judgment. (Doc. # 215). Plaintiff thereafter proceeded with a renewed
motion to compel against Wells Fargo. (Doc. # 222.) Plaintiff contended that Wells Fargo
reneged on its agreement to produce certain documentation (which was why Plaintiff had
withdrawn the earlier motion to compel). (Id.) Plaintiff “incorporated” her earlier motion to
compel (Doc. # 109) into the current motion (Doc. # 222) which, as the best this court can
ascertain, supplanted the motion lodged as Doc. # 191.

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For various reasons—including that Plaintiff had filed her motion to compel well after
the discovery deadline had expired and even after dispositive motions had been briefed—this
court denied Plaintiff's motion. (Doc. # 243 at 5-11.) Plaintiff filed an objection to the ruling,
arguing that there were “unique circumstances” as to why Plaintiff’s motion to compel was
timely. (Doc. # 244 at 1.)

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Judge Hicks agreed with Plaintiff’s argument and concluded that Plaintiff withdrew her
initial motion to compel because “Wells Fargo stated that it was going to comply and produce
supplemental discovery responses to address the issues identified in the motion to compel...”
Finding Plaintiff's motion to be timely, Judge Hicks stated: “It would be unfair and prejudicial to
penalize Downs—who filed a timely, initial motion to compel—when it was Wells Fargo’s
actions which caused her to withdrawn her initial motion.” As such, Judge Hicks remanded the
motion to compel to the undersigned for further action in accordance with his order. (Doc. # 257
at 4.)
III. RESOLUTION OF REMAND ISSUES
This court orders Plaintiff, Minnesota Life and Wells Fargo to undertake those steps
necessary to fulfill the resolution of the discovery disputes identified by Judge Hicks. The
analysis of the issues of discovery pertaining to Minnesota Life is less complicated (by reason of
Judge Hicks’ identification of the discovery issues) than they are as to Wells Fargo. The court
will address the responsibilities of the parties separately.
A. Plaintiff-Minnesota Life
Judge Hicks’ order identified two remaining subjects of discovery which he deemed to

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exist between Plaintiff and Minnesota Life which need to be addressed by the undersigned:
(1) whether Minnesota Life produced the specific PowerPoint presentation and training booklet
identified by Eric Walton in his deposition; and (2) whether Minnesota Life has produced the
Administrative Manual referenced by Kathryn Schmidt in her deposition (and not just the
separate Insurance and Marketing Administration Agreement). (Doc. # 257 at 3.)

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Therefore, within twenty days of this Order, the parties shall submit to the court a joint
statement wherein Minnesota Life shall identify and submit to the court the documents it has
produced to Plaintiff that are relevant to the remaining issues outlined by Judge Hicks (and
identified above). In the same joint submission, Plaintiff shall explain whether and how the
Minnesota Life production is insufficient, and shall identify or describe any additional materials
Plaintiff contends should be produced by Minnesota Life. A hearing on the completeness of
Minnesota Life's production, or lack of production, will then be scheduled by this court to
resolve these remaining issues.
B. Plaintiff-Wells Fargo

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The scope of the remaining discovery dispute between Plaintiff and Wells Fargo is less
clear. The court interprets Judge Hicks' order as essentially reinstating Plaintiff's most recently
filed motion to compel as to Wells Fargo. It appears that Plaintiff has narrowed the remaining
dispute to four areas: (1) information regarding a related case involving Wells Fargo involving
allegedly similar issues and contentions, Dollens v. Wells Fargo Bank, et. al., Case No. D-202CV-2011-05295, Second Judicial District Court, State of New Mexico (Doc. # 244 at 2-11);
(2) the production of a knowledgeable 30(b)(6) witness (id. at 22); (3) the failure to respond to
certain written discovery (id. at 22-23); and (4) the failure to provide a proper privilege log (id. at
23).
To ensure that the scope of the remaining discovery dispute is properly identified, this
court orders Plaintiff and Wells Fargo to engage in a "meet and confer" to identify the
outstanding discovery issues. Then, within twenty days of the date of this Order, the parties
shall each submit a separate memorandum outlining the specific areas of discovery that remain

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in dispute and identifying what has or has not been produced. If the parties are in agreement
about what areas remain in dispute, they may submit a joint memorandum. If Plaintiff contends
that additional documents remain to be produced, Wells Fargo shall submit those documents
with its memorandum, whether filed separately or jointly.
IT IS SO ORDERED.
DATED: September 24, 2014.

____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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