Lieber v. Wells Fargo Bank, N.A.
Memorandum of Opinion and Order: Plaintiff's Motion to Compel Defendant's Responses to Plaintiff's Discovery Requests and to Extend the Non-Expert Discovery Deadline (Doc. 25 ) is GRANTED IN PART AND DENIED IN PART, and Plain tiff's Second Motion to Compel Defendant's Responses to Plaintiff's Discovery Requests and to Redepose Defendant's Corporate Representative (Doc. 36 ) is DENIED. Defendant is ordered to supplement its discovery responses consiste nt with the foregoing by September 15, 2017. Plaintiff's request for sanctions is denied as Defendant's responses and objections were substantially justified. Plaintiff's Amended Motion for Class Certification and her brief in opposition to Defendant's Motion to Strike Class Allegations are due on October 2, 2017. Judge Patricia A. Gaughan on 9/7/17. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Rachel Lieber, individually and on
behalf of all others similarly
Wells Fargo Bank, N.A.
CASE NO. 1:16 CV 2868
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon Plaintiff’s Motion to Compel Defendant’s
Responses to Plaintiff’s Discovery Requests and to Extend the Non-Expert Discovery Deadline
(“Plaintiff’s first motion”) (Doc. 25) and Plaintiff’s Second Motion to Compel Defendant’s
Responses to Plaintiff’s Discovery Requests and to Redepose Defendant’s Corporate
Representative (“Plaintiff’s second motion”) (Doc. 36). For the reasons that follow, Plaintiff’s
first motion is GRANTED IN PART AND DENIED IN PART, and Plaintiff’s second motion is
Plaintiff, Rachel Lieber, brought this putative class action against Defendant Wells
Fargo Bank, N.A., pursuant to the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2601 et seq. Defendant is the current servicer of Plaintiff’s and the putative class members’
notes and mortgages on real property that secure those notes. (Am. Compl. ¶ 17). Plaintiff
alleges that Defendant violated RESPA and the regulation promulgated by the Consumer
Financial Protection Bureau regarding the interpretation of RESPA, known as Regulation X,
when Defendant failed to respond to Plaintiff’s and the class members’ “qualified written
requests” (“QWRs”), as defined by 12 U.S.C. § 2605(e)(1)(B). Plaintiff’s and the putative class
members’ QWRs were in the form of Requests for Information (“RFIs”) and Notices of Error
(“NOEs”). 12 C.F.R. § 1024.35(a), 1024.36(a). Specifically, Plaintiff alleges that Defendant
inappropriately relied on a blanket “active litigation” exception to its obligation to respond to
Plaintiff’s and the class’s QWRs, when RESPA and Regulation X do not permit such an
To establish her RESPA claim, Plaintiff will have to prove that the loans at issue were
“federally related mortgage loans,”1 that the QWR was in writing and contained sufficient
information to enable the servicer to identify the name of the borrower and the account number,
and that the QWR involved an inquiry related to the “servicing” of a loan. 12 U.S.C. §
2605(e)(1). The “servicing” of a loan is defined as “receiving any scheduled periodic payments
A federally related mortgage loan is one that (1) involves a 1-4 unit residential
property and (2) was made by a federally insured institution, guaranteed or
insured by a federal agency, sold or intended to be sold to a federally related
entity, or made by a creditor who has made a large number of residential loans. 12
U.S.C. § 2602(1); 12 U.S.C. § 2605(e).
from a borrower pursuant to the terms of any loan, including amounts for escrow accounts.” 12
U.S.C. § 2605(i)(3).
Throughout the period of non-expert discovery as to class certification,2 the parties had
several disagreements as to the sufficiency of Defendant’s responses to Plaintiff’s discovery
requests. The parties attempted to resolve their disputes without court intervention, but a number
of disputes remain. Now pending before the Court are Plaintiff’s two motions to compel, which
STANDARD OF REVIEW
Federal Rule of Civil Procedure 26(b)(1) sets forth the permissible scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998). After
making a good faith attempt to resolve a dispute, a party may file a motion to compel discovery
under Rule 37 of the Federal Rules of Civil Procedure if it believes another party has failed to
respond to discovery requests or that the party’s responses are evasive or incomplete. Fed. R.
Civ. P. 37(a). In ruling on such a motion, a trial court has broad discretion in determining the
scope of discovery. Lewis, 135 F.3d at 402.
Non-expert discovery as to class certification was originally scheduled to end on
May 15, 2017, but the Court extended the deadline to July 15, 2017.
A. Document Requests 12-15
Plaintiff first argues that Defendant’s responses to her Document Requests 12-15 were
inadequate. In these requests, Plaintiff sought:
12. All Information Requests sent to Defendant by any Borrower to which
Defendant provided, on or after November 15, 2013, a Pending Litigation
13. All Pending Litigation Responses sent, on or after November 15, 2013,
by Defendant in response to any Borrower’s Information Request.
14. All Error Notifications sent to Defendant by any Borrower to which
Defendant provided, on or after November 15, 2013, a Pending Litigation
15. All Pending Litigation Responses sent, on or after November 15, 2013,
by Defendant in response to any Borrower’s Error Notification.
Defendant objected to the requests on the grounds that they were overly broad, unduly
burdensome, and sought information that is, at least in part, not relevant to the claims or defenses
of the parties. Nevertheless, it agreed to provide a sample of the requested documents. It
identified “19,877 cases where its Customer Care and Recovery Group (‘CCRG’) had responded
to correspondence at a time when the account had been coded as being in active litigation.” It
then narrowed this group to cases arising in Ohio, Illinois, Minnesota, and Michigan that
involved correspondence sent to an individual (as opposed to a governmental agency) stating
that the matter involved “pending litigation or mediation within pending litigation.” On June 8,
2017, Defendant produced files from 137 such cases, but redacted the names, account numbers,
addresses, court case information, and counsel information to protect the financial privacy of its
customers. (See Doc. 26) (citing 15 U.S.C. § 6801, the Gramm-Leach-Bliley Act (the “GLBA”),
which prohibits financial institutions from releasing “nonpublic personal information” of its
customers). In response to Plaintiff’s concerns, Defendant offered to stipulate that each of the
borrowers’ letters contained sufficient information for Defendant to identify the borrowers’
names and account numbers so that it could identify the loan and prepare the response. It also
provided Plaintiff a chart that identifies which “active litigation” letter relates to which customer.
Plaintiff argues that Defendant’s reliance on the GLBA is misplaced because the Act
does not prohibit the disclosure of non-public personal information regarding its customers when
such disclosure is in response to a discovery request in civil litigation. She argues that
Defendant’s response is deficient because the redactions “make it impossible” to determine
whether Defendant provided the information requested or corrected the error being asserted by a
given customer. She also complains that Defendant will not provide documentation to establish
whether the potential class members’ loans were federally related and states that she could
independently determine if they were federally related if Defendant provided the customers’
identities.3 Finally, she asserts that she has “no way of verifying whether [the active litigation
exception was appropriate] without being able to locate court records using potential Class
The GLBA’s restrictions against disclosure do not apply when a financial institution
releases information regarding its customers in order “to respond to judicial process.” 15 U.S.C.
§ 6802(e)(8). Courts have construed the judicial process exception to mean that the Act does not
prevent disclosure to a third party in response to a discovery request in civil litigation. See MAS,
Defendant argues that Plaintiff’s need for the identities of its customers to
determine if the loans are federally related proves that this case is not appropriate
for class treatment because it shows that the Court will have to make a series of
individual inquiries for each putative class member. As Defendant recognizes,
however, whether this case is suitable for class action“is...beside the point” for
purposes of Plaintiff’s motion to compel. (See Doc. 26, at 11).
Inc. v. Nocheck, LLC, 2011 WL 1135367, at *4 (E.D. Mich. Mar. 28, 2011) (citing Marks v.
Global Mort. Group, Inc., 218 F.R.D. 492, 495 (S.D.W. Va. 2003)); Her v. Regions Fin. Corp.,
2007 WL 2806558, at * 2 (W.D. Ark. Sep. 25, 2007) (finding that both the judicial process
exception and the exception for disclosure “to persons acting in a fiduciary or representative
capacity on behalf of the consumer” applied because plaintiff’s counsel was acting in a fiduciary
capacity with respect to putative class members). Moreover, the Court notes that a protective
order has already been entered in this case that will protect the privacy of the disclosed
nonpublic personal information. Thus, the disclosure of Defendant’s customers’ nonpublic
personal information–which Defendant states is the only information that it has redacted–is
discoverable and must be produced. (See Doc. 26, at 9). This portion of Plaintiff’s first motion to
compel is, therefore, granted.
B. Request for Admission No. 13
Request for Admission No. 13 asks Defendant to admit that “the accounts of Ohio
Savings Bank (designated as the ‘lender’ in Plaintiff’s Note and Plaintiff’s Mortgage) were
insured by the Federal Deposit Insurance Corporation.” Defendant responded by stating that,
“after a reasonable investigation into readily available sources of information, [it] was unable to
confirm the truth of this Request and, therefore, it is denied.” Plaintiff argues that Defendant
should be deemed to have admitted Request for Admission No. 13 because the FDIC’s website
contains information stating that it insures Ohio Savings Bank.
According to Federal Rule of Civil Procedure 36(a)(4), an answering party “may assert
lack of knowledge or information as a reason for failing to admit or deny only if the party states
that it has made reasonable inquiry and that the information it knows or can readily obtain is
insufficient to enable it to admit or deny.” Generally, courts are in agreement that a “reasonable
inquiry” is limited to review and inquiry of those persons and documents that are within the
responding party’s control. Piskura v. Taser Intern., 2011 WL 6130814, at * 4 (S.D. Ohio Nov.
7, 2011) (citing T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38,
43 (S.D.N.Y. 1997)). A “[r]easonable inquiry includes investigation and inquiry of any of
defendant’s officers, administrators, agents, employees, ... who conceivably, but in realistic
terms, may have information which may lead to or furnish the necessary and appropriate
response. In this connection, relevant documents and regulations must be reviewed as well.” Id.
(quoting Herrera v. Scully, 143 F.R.D. 545, 548 (S.D.N.Y. 1992)).
Defendant states that it was unable to confirm the truth of the requested admission by
investigating materials and information within its control. It did not have a duty to go on the
FDIC website to verify the status of Ohio Savings Bank. Moreover, as Defendant notes, Plaintiff
can prove the bank’s FDIC-insured status with a printout from a government website. She does
not need an admission to establish this fact. This portion of Plaintiff’s first motion to compel is,
C. Interrogatory 19
Next, Plaintiff complains that Defendant’s response to Interrogatory 19 was inadequate.
In this discovery request, Plaintiff asked Defendant to identify the dates that it first provided
Plaintiff with a variety of information in response to her RFI. She then listed 11 categories of
information. Defendant responded to the first five categories but objected to the remaining on the
basis that Plaintiff had exceeded her allotted 25 written interrogatories, including all discrete
subparts. It also objected to several categories as being irrelevant or vague.
Defendant’s objection that Plaintiff exceeded her allotted interrogatories is not welltaken. Rule 33 allows parties to serve 25 interrogatories, including all discrete subparts, upon
another party but must secure leave of court to serve a larger number. Subparts to an
interrogatory should be counted as one interrogatory when they are “necessarily related to the
‘primary question.’” Harhara v. Norville, 2007 WL 2897845, at *1 (E.D. Mich. Sep. 25, 2007).
“[A]n interrogatory containing subparts directed at eliciting details concerning the common
theme should be considered a single question.” Id. (citing Charles A. Wright, Arthur R. Miller &
Richard L. Marcus, Number of Interrogatories, Federal Practice and Procedure § 2168.1 (2d ed.
1994). On review, the Court finds that the subparts to Interrogatory 19 are sufficiently factually
and logically related to the primary question such that they are subsumed by the primary
question. As such, they will be treated as one interrogatory.
Defendant also argues that Interrogatories (f)-(i) (asking for broker price opinions, the
location of the original note, a true and accurate copy of the original note, and the identity and
address of the custodian of the collateral file) are irrelevant because none of the inquiries seek
information relating to “servicing” of Plaintiff’s loan. Plaintiff responds that the information is
relevant to Defendant’s policies and procedures in responding to correspondence from
borrowers. She argues that Defendant’s responses “could provide an important distinction
between which inquiries it determined to be related to servicing, and which it did not. To
demonstrate, Defendant’s own prior actions would support a finding that a particular borrower’s
inquiry related to servicing–and Defendant may be estopped from arguing otherwise.” Given the
broad scope of discovery, the Court finds that these requests are sufficiently relevant to
Plaintiff’s claim that Defendant failed to provide an adequate response to her RFI’s. Thus, this
portion of Plaintiff’s first motion to compel is granted.
Defendant has already provided the information sought in Interrogatories 19(j) and (k).
Thus, this portion of Plaintiff’s first motion to compel is denied.
D. Request for extension of non-expert deadline
Plaintiff asks for a 90-day extension of the non-expert deadline. She asserts that such an
extension is warranted because she has been diligent in reviewing the provided discovery and
has attempted to resolve several disputes without Court intervention. According to her, she was
unable to complete non-expert discovery because of the delays caused by these attempts to
resolve the disputes. She states that an extension of the non-expert fact discovery “would permit
[her] to engage in more targeted follow-up discovery.” The additional discovery that she would
seek “would include additional requests for the production of documents and depositions of
Defendant’s employees.” (Doc. 25, at 8). She would “request additional documentation relative
to customers that sent correspondence to Defendant, to which Defendant responded by asserting
the ‘active litigation’ exception at issue in this case–i.e., potential Class members.” She claims
that “[t]his additional discovery is necessary to ascertain whether those communications satisfy
RESPA’s definition requirements.... For example, additional discovery will be necessary to
establish that these potential Class members’ mortgages were ‘federally related mortgage’
loans..., that Defendant was engaged in ‘servicing’ relative to those mortgages..., and the dates, if
any, on which Defendant responded to those potential Class members.” Plaintiff also wants to
take depositions of Defendant’s employees who received and responded to QWRs, RFIs, and
NOEs sent by Plaintiff and potential class members and who created, modified, or implemented
Defendant’s policy of asserting the “active litigation” exception at issue in this case.
Plaintiff has not shown that extension of the discovery deadline–which was already
extended once–is warranted. She submitted the document requests that are the basis of her first
motion to compel on May 9, 2017, and Defendant responded on June 8, 2017. Defendant
addressed and resolved each of Plaintiff’s complaints with respect to its responses other than her
complaint that it should not have redacted its customers’ non-public personal information.
Although the Court has ordered Defendant to produce the unredacted version of its responses,
this does not open the door to Plaintiff engaging in the extensive new discovery she claims she
needs. Plaintiff simply has not shown why the redaction of the customers’ identities made it
impossible for her to seek this information during the discovery period. Indeed, on the last day of
non-expert discovery, Plaintiff served additional requests for admission and document requests,
seeking the mortgages, servicing files, pleadings, and materials from the underlying litigation for
all of the customers that Defendant included in the sample that it provided Plaintiff. She has not
explained why she could not have submitted these requests in a timely fashion. Moreover,
according to Plaintiff, she can “independently determine” if potential class members’ mortgages
were federally related mortgage loans if she has their identities. Finally, despite Plaintiff’s
belated 30(b)(6) deposition notice, filed on the day before non-expert discovery closed,
Defendant made Chris Short available to testify as a corporate representative on August 9. Thus,
there is no reason for Plaintiff to engage in additional requests for the production of documents
and depositions of Defendant’s employees.
Plaintiff filed a supplement to her first motion to compel, arguing that she learned in
Short’s deposition that Defendant’s internal computer software runs on a SQL database.
According to Plaintiff, a SQL database is a computerized database that utilizes uniform fields,
language, and commands to store, search, and recall information. Plaintiff claims that in April,
Defendant’s counsel had indicated that Defendant’s software did not allow for a computerized
search using field codes. According to Plaintiff, if she had known that Defendant’s database was
searchable using field codes, she could have modified her document requests to request only
correspondence between Defendant and customers who met the Class definition. As a result, she
argues that the delays in the production of documents relevant to class certification could have
been avoided, justifying her request for a 90-day extension.
The Court does not agree. Defendant states that codes cannot be used to identify who
received an “active litigation” letter–i.e., potential class members–and that, in fact, it had to
manually review files to produce the sample that it disclosed. Moreover, while Short testified
that he believed Defendant’s computer system runs on an SQL database, Plaintiff’s counsel
never asked Short during the deposition if litigation codes and response codes could be used to
identify loans in which an “active litigation” letter was sent.
Thus, Plaintiff’s request for a 90-day extension of the non-expert discovery is denied.
E. Requests for Production Nos. 4 and 11
In Request for Production No. 4, Plaintiff sought “all documents...related to” Defendant’s
policy of sending the “active litigation” letters at issue in this case. Request for Production 11
sought “all...documents...relating to Defendant’s responses to RFIs and NOEs to which
Defendant responded by asserting an ‘active litigation’ or ‘litigation’ exception.” Defendant
raised several objections but, on March 30, 2017, produced “the policy followed by Wells
Fargo’s Customer Care Recovery Group [“CCRG”] when responding to borrowers who
communicate with Wells Fargo when they are engaged in litigation against Wells Fargo (the
“Litigation Policy”). After Defendant produced the Litigation Policy, Plaintiff stated that she
wanted all supplements, amendments, and correspondence concerning supplements or
amendments to the Litigation Policy. Defendant provided supplemental responses, which
included revision histories and prior versions of the Litigation Policy.
During Short’s deposition on August 9, Plaintiff’s counsel showed him a page from the
Litigation Policy that states “for more information regarding required response items and
whether we need to address them, refer to the Real Estate Settlement Procedures Act Guidelines
procedure [“RESPA Guidelines”].” (Litigation Procedure, at 13). Short testified that he did not
know whether the RESPA Guidelines had been produced. He described the Guidelines as a
“style guide and how we communicate, tone, empathy, so on and so forth. So it’s not only a
guide to ensure that we’re always providing the requested information, but it’s also like a style
guide.” (Short Dep. at 131).
In her second motion to compel, Plaintiff argues that Defendant should have provided the
RESPA Guidelines in response to Document Requests 4 and 11. Plaintiff’s motion is untimely.
Local Rule 16.1(b)(6) states that, to be timely, a written request must be served to allow a time
for response prior to discovery cutoff. Despite a clear reference to the RESPA Guidelines in the
Litigation Procedure, Plaintiff did not specifically request them until Short’s deposition, after the
discovery cutoff. In addition, Local Rule 37.1(b) states that “[n]o discovery dispute shall be
brought to the attention of the court, and no motion to compel may be filed, more than ten (10)
days after the discovery cut-off date.” Here, not only did Plaintiff file her second motion to
compel more than ten days beyond the discovery cut-off of July 15, 2017, she filed it more than
ten days after Short’s deposition, the date she claims she clearly became aware that the
Guidelines existed. Although the Court’s August 23, 2017 order allowed Plaintiff to file a second
motion to compel, in no way did the order indicate that Plaintiff would be exempt from the
timing requirements of the Local Rules. Thus, this portion of Plaintiff’s second motion to compel
F. Plaintiff’s request to redepose Defendant’s corporate representative
Finally, Plaintiff complains that Defendant’s corporate representative, Chris Short, was
unable to testify as to several topics set forth in her 30(b)(6) notice. Specifically, she claims that
Short was unprepared to testify as to the meaning of several field codes identified on printouts
from Defendant’s computer system, as well as the number of customer inquiries Defendant
received on a daily basis, how often Defendant receives customer inquiries that are clearly
unrelated to “servicing,” and if an “investor ID” code is assigned to every loan in Defendant’s
On review of Short’s deposition transcript, the Court finds that he was sufficiently
prepared to testify as to the topics at issue. A 30(b)(6) deponent “is not expected to perform with
absolute perfection.” QBE Ins. Corp. v. Jorda Enters., Inc. 277 F.R.D. 676, 691 (S.D. Fla. 2012)
(citation omitted); see also Pogue v. Northwestern Mut. Life Ins. Co., 2017 WL 3044763 (W. D.
Ky. July 18, 2017) (“‘[T]he inability of a designee to answer every question on a particular topic
does not necessarily mean that the corporation has failed to comply with its obligations under the
Rule.’”) (citation omitted). Short provided extensive testimony on Defendant’s operations,
policies, and procedures regarding the receipt, review, evaluation, and investigation of
correspondence from its customers. He explained how CCRG processes correspondence with
customers, including how CCRG personnel input information into the computer system. He
described the menus in the system, and how codes and information were entered. Although he
may not have testified with “absolute perfection,” the few times he was unable to answer a
question do not warrant allowing Plaintiff to take another 30(b)(6) deposition. Thus, this portion
of Plaintiff’s second motion to compel is denied.
Plaintiff states that Defendant’s counsel provided the meaning of some of the missing
field codes in an email to Plaintiff’s counsel, but she states that she has concerns as to the
sufficiency of the response because it was not provided under oath. Defendant must produce a
verified list of these codes by September 15, 2017.
For the reasons set forth above, Plaintiff’s Motion to Compel Defendant’s Responses to
Plaintiff’s Discovery Requests and to Extend the Non-Expert Discovery Deadline (Doc. 25) is
GRANTED IN PART AND DENIED IN PART, and Plaintiff’s Second Motion to Compel
Defendant’s Responses to Plaintiff’s Discovery Requests and to Redepose Defendant’s
Corporate Representative (Doc. 36) is DENIED. Defendant is ordered to supplement its
discovery responses consistent with the foregoing by September 15, 2017. Plaintiff’s request for
sanctions is denied as Defendant’s responses and objections were substantially justified.
Plaintiff’s Amended Motion for Class Certification and her brief in opposition to Defendant’s
Motion to Strike Class Allegations are due on October 2, 2017.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
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