Robinson et al v. Wells Fargo Bank, NA
ORDER AND ENTRY GRANTING DEFENDANT'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS (DOC. 14 ). Signed by Magistrate Judge Michael J. Newman on 3/7/2018. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFF ROBINSON, et al.,
Case No. 3:17-cv-261
WELLS FARGO BANK, N.A.,
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
ORDER AND ENTRY GRANTING DEFENDANT’S MOTION TO COMPEL THE
PRODUCTION OF DOCUMENTS (DOC. 14)
This civil case is before the Court on a motion to compel attorney’s fees discovery filed
by Defendant Wells Fargo, N.A. (“Wells Fargo”). Doc. 14. Plaintiffs Jeff and Vera Robinson
(“the Robinsons”) filed a memorandum in opposition to Wells Fargo’s motion.
Thereafter, Wells Fargo filed a reply. Doc. 17. Prior to the formal filing of Wells Fargo’s
motion, the Court held an informal discovery status conference by phone on February 5, 2018,
during which the Court heard extensive argument from counsel for the parties.
Thereafter, the Court issued an order directing, inter alia, that Wells Fargo file a motion to
compel the production of attorney’s fee discovery. Doc. 13. The Court has carefully considered
all of the foregoing, and Wells Fargo’s motion is now ripe for decision.
The facts set forth herein are from the allegations set forth in the Robinsons’ complaint.
Doc. 1. The Robinsons reside in a home in North Lewisburg, Ohio which is subject to a
mortgage and note held by Wells Fargo. Id. at PageID 2. On April 29, 2005, the Robinsons
executed an adjustable rate note to finance the purchase of the home, which is secured by a
mortgage recorded in the Champaign County, Ohio Recorder’s Office.
Id. at PageID 3-4.
On March 24, 2014, the Robinsons applied for mortgage assistance from Wells Fargo,
which approved the Robinsons for a trial payment plan under the Home Affordable Modification
Program (“HAMP”). Id. at PageID 4. Pursuant to the HAMP trial, the Robinsons were required
to make three monthly payments of $1,231.48 beginning on May 1, 2014 and ending on July 1,
2014. Id. After receipt of the three payments, Wells Fargo allegedly agreed to review the
Robinsons for a permanent loan modification. Id. According to the Robinsons, they made the
first payment in May 2014 by check, which Wells Fargo cashed. Id. Subsequently, Wells Fargo
automatically withdrew the appropriate payments from the Robinsons’ bank account in June
2014 and July 2014. Id. at PageID 5.
On or about July 22, 2014, Wells Fargo purportedly communicated via telephone to the
Robinsons that: (a) their account was complete and was being sent to underwriting; (b) once
underwriting finished, the Robinsons would receive a loan modification; (c) no payment was
needed for August 2014; and (d) no further automatic withdrawals would be taken by Wells
Fargo from the Robinsons’ bank account. Id. According to the Robinsons, Wells Fargo did not
complete any further withdrawals from their bank account after July 2014 and they successfully
completed the HAMP trial payment plan in July 2014. Id.
The Robinsons allege that the HAMP guidelines required Wells Fargo to thereafter offer
a permanent HAMP. Id. at PageID 5. However, according to the Robinsons, Wells Fargo never
sent them notice of completion of the HAMP trial, notice of denial of their HAMP trial, or a loss
Id. at PageID 5-6.
The Robinsons allegedly called Wells Fargo
numerous times attempting to get an update on their HAMP trial review but, according to them,
Wells Fargo was unable to communicate that status. Id. The Robinsons allege that Wells Fargo
did not review the Robinsons’ HAMP trial for many months and, for reasons unknown, removed
them from HAMP consideration in December 2014. Id.
In December 2014, Wells Fargo sent a notice of default to the Robinsons, at which time
the Robinsons allegedly made a second request for HAMP assistance from Wells Fargo. Id.
According to the Robinsons, they submitted updated financial information to Wells Fargo in
early 2015. Id. In February 2015, the Robinsons also filed a complaint with the Consumer
Financial Protection Bureau due to Wells Fargo’s failure to provide the HAMP loan modification
and honor its agreement. Id. On February 24, 2015, Wells Fargo purportedly determined that
errors occurred with the review of the Robinsons’ HAMP trial in July 2014, and Wells Fargo
determined that the Robinsons should be re-offered the HAMP trial offer from March 2014. Id.
However, on March 2, 2015, based on the Robinsons’ updated financial information, Wells
Fargo allegedly determined it would not be able to offer the previously approved March 2014
HAMP trial and thus denied the Robinsons’ second HAMP assistance request. Id. at PageID 6-7.
The Robinsons communicated their concerns to Wells Fargo as to why the loan
modification Wells Fargo had previously approved was never finalized. Id. at PageID 7. On
March 12, 2015, Wells Fargo responded, stating that: (a) the Robinsons should have continued
making payments indefinitely upon completion of the HAMP trial payments; (b) it is required to
complete a final review once all trial payments have been made; (c) it was “unable to honor the
previously offered HAMP modification;” and (d) the Robinsons should provide additional
information regarding their alleged conversations with Wells Fargo in July 2014. Id.
On April 7, 2015, Wells Fargo sent a letter informing the Robinsons that their file was
removed on December 29, 2014 due to their participation in what is known as the Hardest Hit
Funds Program. Id. at PageID 8. Wells Fargo purportedly then offered the Robinsons a nonHAMP trial. Id. The non-HAMP trial allegedly contained materially different terms compared
to the March 2014 HAMP. Id. According to the Robinsons, the non-HAMP trial was not as
beneficial to them as the 2014 HAMP trial that they contend they should have received. Id. The
Robinsons allege that, due to Wells Fargo’s failure to diligently process and evaluate their
request for HAMP assistance, their mortgage loan was not modified. Id.
On April 17, 2015, Wells Fargo brought an action for foreclosure against the Robinsons
in the Champaign County Court of Common Pleas (the “Foreclosure”).
subsequently obtained a judgment against the Robinsons in the Foreclosure action and scheduled
a Sheriff’s sale of the home on August 11, 2017. Id. The Robinsons allege that, as a result of
Wells Fargo’s failures, they were forced to incur legal fees and expenses in opposing the
Foreclosure at both the trial and appellate courts. Id. It is not clear from the Robinsons’
allegations whether they ultimately lost their home. Id.
On August 3, 2017, the Robinsons filed a complaint in this Court against Wells Fargo
alleging the following claims: (1) a violation of the Real Estate Settlement Procedures Act
(“RESPA”), namely, 12 U.S.C. 1601, et seq., Regulation X, 12 C.F.R. § 1024.40 and 12 C.F.R.
§ 1024.41; (2) breach of contract; and (3) multiple counts of fraud. See id. at PageID 8-19. With
respect to their claims under RESPA, the Robinsons seek statutory damages, actual damages and
attorney’s fees. Id. at PageID 12. Regarding such fees, the Robinsons not only seek to recover
their attorney’s fees incurred as a result of prosecuting this federal action, but also seek the
attorney’s fees they incurred in the Foreclosure, which they seek as part of their claim for actual
damages under RESPA. See id. In discovery, Wells Fargo seeks to determine the amount and
reasonableness of these fees. The Robinsons and their counsel have refused to provide this
discovery regarding fees, giving rise to the instant dispute.
Generally, “[p]arties 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 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.” Fed. R. Civ. P. 26(b)(1). Information may be discoverable even if not ultimately
admissible into evidence at trial. Id.
Rule 37 provides that “[a] party seeking discovery may move for an order compelling an
answer, designation, production or inspection” if a party fails to provide discovery responses.
Fed. R. Civ. P. 37(a)(3)(B). The “proponent of a motion to compel discovery bears the initial
burden of proving that the information sought is relevant.” Hendricks v. Hazzard, No. 2:11-cv399, 2013 WL 4052873, at *3 (S.D. Ohio Aug. 12, 2013) (internal citation omitted). “When the
information sought appears to be relevant, the party resisting production has the burden of
establishing that the information either is not relevant or is so marginally relevant that the
presumption of broad disclosure is outweighed by the potential for undue burden or harm.”
Wagner v. Circle W Mastiffs, No. 2:08-cv-431, 2013 WL 4479070, at *3 (S.D. Ohio Aug. 19,
2013) (citation omitted).
In this case, Wells Fargo seeks an order compelling from the Robinsons the production of
unredacted copies of attorney fee invoices related to the Foreclosure action. Doc. 14 at PageID
63. Notably, Wells Fargo’s motion does not seek to compel invoices for fees incurred in
prosecuting this current action. Id. In addition, Wells Fargo seeks production by the Robinsons
of the fee agreement related to the Foreclosure action. Id. In response, the Robinsons argue that:
(1) Wells Fargo’s motion is not ripe for review because they failed to exhaust extrajudicial
means of resolving the dispute prior to filing their motion as required by Fed. R. Civ. P. 37(a)(1);
(2) the requested information is protected by the attorney-client privilege; and (3) the requested
information is protected by the work product privilege. Doc. 15. The Court will address each of
these issues in turn.1
With regard to the timing of Wells Fargo’s motion and the exhaustion of extrajudicial
efforts, the Court acknowledges that, under the Civil Rules, upon filing a motion to compel, the
movant “must include a certification that [he or she] has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.” Fed. R. Civ. P. 37(a)(1). As required by Rule 37, Wells Fargo’s motion is
accompanied by a declaration of counsel. See doc. 14-1. The Court previously found that the
parties had “exhausted extrajudicial means for otherwise resolving such discovery dispute” and,
therefore, ordered the filing of the instant motion to compel. Doc. 13. Accordingly, the Court
finds the prerequisites required by Rule 37 satisfied and the Robinsons’ argument in this regard
to be without merit.
Next, the Court addresses the issue of attorney-client and work product privileges
together. Because this case is before the Court on federal question jurisdiction, federal law
governs issues of privilege. See Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992).
Information is protected by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal
adviser, (8) unless the protection is waived.
Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998). The work product privilege “protects an
attorney’s trial preparation materials from discovery to preserve the integrity of the adversarial
process.” In re Prof’ls Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009) (citing Hickman v.
The Robinsons also contend, conclusorily, that “[t]he needs of Wells Fargo for the [requested]
information is entirely disproportionate to its current needs in this case.” Doc. 15 at PageID 146. The
Robinsons, however, fail to elaborate on such contention and, therefore, their argument regarding
proportionality is forfeited. Fed. R. Civ. P. 26(b)(1).
Taylor, 329 U.S. 495, 510-14 (1947)); see also Fed. R. Civ. P. 26(b)(3) (stating that “a party may
not discover documents and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent)).”
Generally, with regard to the attorney-client privilege, “the fact of legal consultation or
employment, clients’ identities, attorney’s fees, and the scope and nature of employment are not
deemed privileged.” Humphreys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219 (6th
Cir. 1985). Similarly, work product protection generally does not extend to fee agreements. See
Montgomery Cty. v. MicroVote Corp., 175 F.3d 296, 304 (3d Cir. 1999); Murray v. Stuckey’s
Inc., 153 F.R.D. 151, 153 (N.D. Iowa 1993). Based on the foregoing -- and absent more than a
blanket assertion of privilege set forth by the Robinsons -- the Court finds privilege does not
attach to the Robinsons’ fee agreement with counsel. Insofar as privilege may extend to certain
billing entries set forth in invoices relating to the Foreclosure action, any such claims of privilege
have been waived as a result of the Robinsons’ attorney’s fees being placed directly at issue in
this case. HID Glob. Corp. v. Leighton, No. 1:07 CV 1972, 2009 WL 10688914, at *1 (N.D.
Ohio Jan. 20, 2009) (finding “that plaintiff has waived the attorney-client privilege and work
product protection by placing its attorneys’ fees at issue”). Given that the fees are at issue here
and claimed as damages, such fees and the fee agreement are relevant and discoverable under
Fed. R. Civ. P. 26(b).2
Accordingly, based on the foregoing, Wells Fargo’s motion to compel is GRANTED.
Doc. 14. The Robinsons are ORDERED to produce the fee agreement related to the Foreclosure
In addition, the fee agreement is relevant for the reasons and concerns set forth in Barrett v.
Green Tree Servicing, 214 F. Supp. 3d 670, 675 (S.D. Ohio 2016) and Barrett v. Green Tree Servicing,
LLC, No. 3:14-cv-297, 2016 WL 2585651, at *2 n.1 (S.D. Ohio May 4, 2016).
action, as well as unredacted billing statements related to work performed on their behalf in the
Foreclosure action, within 14 days from the entry of this order. If appropriate, the Court will
entertain from Wells Fargo a motion for payment of expenses under Fed. R. Civ. P. 37(a)(5) if
made within 14 days from the entry of this order.
Aside from the production previously ordered by the Court (doc. 13),3 this order does not
compel production of detailed invoices and/or billing statements relating to work performed in
furtherance of this present action. This order also does not address production of any separate
fee agreement entered into between the Robinsons and counsel related solely to this present
IT IS SO ORDERED.
March 7, 2018
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
The undersigned previously ordered the Robinsons to provide Wells Fargo with the following
information every 90 days: (1) the number of hours worked on the case to date by each individual for
whom Plaintiffs will seek fees; (2) the hourly rate for each individual; and (3) the total amount of
attorney’s fees accumulated in this case to date. Doc. 13. That directive is not impacted by this order.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?