RHODES et al v. MARIX SERVICING, LLC et al

Filing 45

MEMORANDUM OPINION and ORDER that Plaintiffs Motion to Compel is GRANTED, in part, and DENIED, in part; that Zucker must serve supplemental responses by August 29, 2013; that the Court will conduct a telephone status conference on September 19, 2013 at 10:30 AM. Plaintiffs' counsel shall initiate the call. Signed by Magistrate Judge Douglas E. Arpert on 8/19/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MELISSA RHODES
WILLIAM RHODES (h/w),
Plaintiffs,
v.
MARIX SERVICING, LLC, et al.,
Defendants.

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Civil Action No.: 3:12-1636 (MAS)

MEMORANDUM OPINION &
ORDER

This matter comes before the Court on Plaintiffs Melissa and William Rhodes’
(collectively, “Plaintiffs”) Motion to Compel certain discovery from Defendant Zucker,
Goldberg & Ackerman, LLC, Attorneys at Law (“Zucker”) [dkt. no. 39]. Zucker has opposed
the Motion [dkt. no. 41]. The Court has considered the Parties’ submissions pursuant to FED. R.
CIV. P. 78 and, for the reasons set forth below, Plaintiffs’ Motion is GRANTED, in part, and
DENIED, in part.
I.

INTRODUCTION
Plaintiffs allege that Defendant EMC Mortgage Corp. (“EMC”), as Plaintiffs’ residential

mortgage lender, breached the terms of its loan agreement and mortgage with Plaintiffs. See
generally Second Amended Complaint [dkt. no. 24]. Plaintiffs further allege that EMC allowed
its agents, Marix Servicing LLC (“Marix”) (EMC’s mortgage servicer) and Zucker (Marix’s
legal counsel) to violate certain statutes, including the Real Estate Settlement Procedures Act, 12
U.S.C.A. §§ 2601 et seq. (“RESPA”), Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692
et seq. (“FDCPA”), Truth in Lending Act, 15 U.S.C.A. §§ 1601 et seq. Regulation Z (“TILA”),

and other applicable Federal Bankruptcy Code sections as set forth in the Second Amended
Complaint. Id. Specifically, Zucker was added as a Defendant based on a Notice of Intent to
Foreclose (“NOI”) which Zucker served on Plaintiffs after the filing of their original Complaint.
Pursuant to the Court’s Scheduling Order III [dkt no. 34], on January 16, 2013, Plaintiffs
propounded their Interrogatories and Request for Production of Documents on Zucker. Zucker
produced documents on March 28, 2013. Zucker thereafter provided a supplemental document
production on June 7, 2013. Zucker’s revised production included documents previously
withheld as privileged. Zucker served its answers to Plaintiffs’ Interrogatories on April 12, 2013.
On April 19, 2013, Plaintiffs informed Zucker that certain Interrogatory answers were
deficient and requested that Zucker provide full and complete responses. On June 10, 2013,
Zucker submitted supplemental information intended to address those answers which Plaintiffs
deemed to be deficient. Plaintiffs claim that Zucker’s responses continue to be deficient, and
filed the instant Motion in an effort to obtain more responsive answers.
II.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 33,
(a)(2) Scope. An interrogatory may relate to any matter that may
be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention
that relates to fact or the application of law to fact, but the court
may order that the interrogatory need not be answered until
designated discovery is complete, or until a pretrial conference or
some other time.
...
(b)(3) Answering Each Interrogatory. Each interrogatory must, to
the extent it is not objected to, be answered separately and fully in
writing under oath.
(b)(4) Objections. The grounds for objecting to an interrogatory
must be stated with specificity. Any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the
failure.

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“The more progressive approach to interrogatories dealing with legal matters is to view
them in the factual context within which they arise.” Microtron Corp. v. Minnesota Mining &
Mfg. Co., 269 F. Supp. 22, 25 (D.N.J. 1967). “If the answer might serve some legitimate
purpose, either in leading to evidence or in narrowing the issues, and to require it would not
unduly burden or prejudice the interrogated party, the court should require an answer.” Id; see
also 4 Moore’s Federal Practice, 2d Ed. 2534.
III.

DISCUSSION
Plaintiffs seek more responsive answers to Interrogatory Nos. 2, 6, 10, 11, 12, and 16.

With respect to Interrogatory No. 16, Plaintiffs seek to pierce the attorney-client privilege as it
relates to information concerning the NOI and Zucker’s “bona fide error” defense. See generally
Pl.’s Reply Br. Zucker maintains that its answers to Plaintiffs’ Interrogatories are responsive and
that it has cured any previous deficiencies. Def.’s Opp. at 2. The Court largely agrees with
Plaintiffs and finds Zucker’s arguments unavailing.
A.

Interrogatory No. 2

Interrogatory No. 2 asks Zucker to identity each person who has knowledge of any facts
relevant to the allegations in the Second Amended Complaint and/or Zucker’s Answer. Plaintiffs
claim that Zucker’s response to Interrogatory No. 2 is deficient because Zucker responded only
by “identifying each corporate defendant (no individual), Plaintiffs, and [Plaintiffs’ lawyer].”
Pl.’s Reply Br. at 2. Specifically, Plaintiffs seek “the identity of those individuals at Zucker who
have knowledge as well the names of individuals at any other defendant that Zucker believes
may possess information relevant to the claims or defenses.” Id.
The Court finds that Zucker’s response with respect to Interrogatory No. 2 is inadequate.
Zucker is directed to provide the specific names of those individuals whom it believes have

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knowledge of relevant facts. If Zucker is unaware of any specific individuals—a position the
Court would find difficult to accept—it must say so. Accordingly, Zucker is directed to amend
its response to include this information.
B.

Interrogatory No. 6

Interrogatory No. 6 seeks the identity of any persons who may have made any statements
with regard to this litigation. Zucker’s supplemental response states that “it is not presently
aware” of any such person(s). Def.’s Opp. at Ex. C (Zucker’s June 10, 2013 Letter to Plaintiffs).
The Court finds that Zucker’s answer to Interrogatory No. 6 is sufficient. Plaintiffs’
argument appears to be predicated on their disagreement with, or skepticism of, Zucker’s
response. The Court accepts Zucker at its word and, therefore, denies Plaintiffs’ request in this
respect.
C.

Interrogatory Nos. 10, 11, 12

Through Interrogatory Nos. 10, 11, and 12, Plaintiffs seek to discover all facts that
Zucker intends to rely on in support of its denials and its affirmative defenses. Plaintiffs argue
that Zucker’s responses are deficient because Zucker’s answers were “nothing more [than]
general objections and legal conclusions.” Id. Zucker, on the other hand, maintains that its
responses are adequate.
The Court agrees with Plaintiffs and concludes that Zucker has failed to provide
responsive answers to these Interrogatories.

For its part, Zucker did serve supplemental

responses on June 10, 2013. These responses, however, do not cure the inadequacies in Zucker’s
original responses. Zucker’s responses remain overly generalized and broad. Zucker is therefore
directed to submit supplemental responses, which should be injected with a degree of precision
sufficient to put Plaintiffs on the notice of the ‘who, what, when, where and why’ of their denials

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and affirmative defenses. Any concerns that Zucker may have regarding privilege, moreover, are
to be resolved as set forth below.
D.

Interrogatory Number 16

Interrogatory No. 16 seeks information concerning the NOI served by Zucker.
Specifically, Plaintiffs seek information regarding Zucker’s discussions and interactions with
Marix in connection with the NOI.
Zucker claims the communications sought between it and Marix are protected by the
attorney-client privilege. Thus, Zucker maintains, any attempt to seek “exchanges and
discussions between a law firm and its client regarding a pending or potential litigation . . . are
improper and can not (sic) trump the attorney-client and work/product privilege.” Id.
1.

The Attorney–Client Privilege

Federal Rule of Evidence 501 provides that evidentiary privileges are “governed by the
principles of the common law as they may be interpreted by the courts of the United States in
light of reason and experience.” “Rule 501, as it applies to federal civil cases, incorporates the
doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and requires deference to any
applicable state law governing privileges.” In re Grand Jury Investigation, 918 F.2d 374, 379 n.6
(3d Cir. 1990).
“Although relevance creates a presumption of discoverability, that presumption can be
overcome by demonstrating the applicability of an evidentiary privilege.” Payton v. New Jersey
Tpk. Auth., 148 N.J. 524, 539 (1997). “Despite the existence of privileges, however, our desire
to attain truth through the adversarial process has led to a disfavoring of such a categorical
approach to concerns about confidentiality . . . in favor of case-by-case balancing.” Id.
(collecting cases).

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In New Jersey, therefore, the attorney-client privilege is not absolute, and may be pierced
when there are “other important societal concerns.” United Jersey Bank v. Wolosoff, 196 N.J.
Super. 553, 563 (App. Div. 1984) (citing Clark v. United States, 289 U.S. 1, 13 (1933)). Three
criteria must be met in order to pierce the privilege: (1) “[t]here must be a legitimate need of the
party to reach the evidence sought to be shielded”; (2) “[t]here must be a showing of relevance
and materiality of that evidence to the issue before the court”; and (3) there must be a showing
that the information cannot be “secured from any less intrusive source.” Matter of Kozlov, 79
N.J. 232, 243-44 (1979).
2.

Application

In this case, the Court concludes that the attorney-client privilege between Zucker and
Marix, to the extent it existed, must be pierced. That is to say, all three factors set forth in
Kozlov are met. First, there is a legitimate need for the communications between Zucker and
Marix, as those communications are the basis for both Defendants’ “bona fide error” defense.
Second, the communications are relevant and material to the issue before the Court as both
Zucker and Marix each claim that they relied on the representations of the other to justify their
own actions. In other words, the propriety of either Zucker’s or Marix’s “bona fide error”
defense depends on the discussions between them. Finally, it is clear that Plaintiffs would be
unable to acquire this information from any less intrusive source because Zucker and Marix are
the only parties which possess the information Plaintiffs seek. Zucker’s claims regarding
privilege are therefore overruled. Zucker is directed to supplement its previous discovery
responses.

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IV.

CONCLUSION & ORDER
The Court has considered the papers submitted pursuant to Fed. R. Civ. P. 78 and, for the

reasons set forth above;
IT IS this 19th day of August, 2013,
ORDERED that Plaintiffs’ Motion to Compel is GRANTED, in part, and DENIED, in
part, as set forth above; and it is further
ORDERED that Zucker must serve supplemental responses by August 29, 2013; and it is
further
ORDERED that the Court will conduct a telephone status conference on September 19,
2013 at 10:30 AM. Plaintiffs’ counsel shall initiate the call.
s/ Douglas E. Arpert____________
DOUGLAS E. ARPERT, U.S.M.J.

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