Roman et al v. UBS Financial Services, Inc. of Puerto Rico et al

Filing 218

ORDER denying 197 Motion to Compel. Signed by US Magistrate Judge Bruce J. McGiverin on December 21, 2015. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARMELO ROMÁN, et al.,
Plaintiffs,
v.

Civil No. 12-1663 (CCC/BJM)

UBS FINANCIAL SERVICES, INC. OF
PUERTO RICO, et al.,
Defendants.
ORDER ON MOTION TO COMPEL DISCOVERY
Carmelo Román, Ricardo Román, and SDM Holdings, Inc. (collectively
“Román”) move to compel the production of documents by UBS Financial Services, Inc.
of Puerto Rico, its affiliated entities, Miguel A. Ferrer (“Ferrer”), and Carlos J. Ortiz
(collectively “UBS”). Pls.’ October 13, 2015 Mot. Compel (“Second Motion to
Compel”), Docket No. 197. After explaining the procedural history in this case, I find
that the motion before the court is untimely. Accordingly, it is DENIED.
Román’s Requests for Production of Documents
Román has served on UBS three sets of requests for production of documents. He
initially served two sets of requests for production of documents on November 3, 2014.
Docket Nos. 156-5, 156-6. The first set of requests primarily asked for documents that
UBS disclosed during proceedings before the Securities and Exchange Commission
(“SEC”). Pls.’ First Req. Produc. Docs, Docket No. 156-1. The second set of requests
primarily asked for documents related to the pricing and valuation of the closed-end
funds (“CEFs”) that UBS sold. Pls.’ Second Req. Produc. Docs., Docket No. 156-2. On
July 24, 2015, Román served on UBS a third set of requests, which requested documents

Román et al. v. UBS Financial Services, Inc. of P.R. et al., Civil No. 12-1663 (CCC/BJM)

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similar to those requested in the second set of requests.1 Pls.’ Third Req. Produc. Docs.,
Docket No. 197-3.
Procedural History
The court in this case ordered that discovery be concluded by June 10, 2015.
Docket No. 159. On February 20, 2015, Román filed his first motion to certify the class.
Docket No. 145. Approximately one month later, on March 13, 2015, he moved to
compel discovery and for sanctions against UBS. Docket No. 156, (“First Motion to
Compel”). In that First Motion to Compel, Román informed the court that UBS had not
produced documents that were sought on November 3, 2014. Importantly, however,
Román only sought to compel the production of documents relating to his first set of
requests. First Mot. Compel at 11–12. Specifically, Román sought to compel the
production of the “search protocol” UBS used to produce documents to the SEC2 and the
“hard copy files of each of the 46 current and former UBS employees that [it] identified
in its initial disclosures . . . .” Id. UBS opposed Román’s motion to compel, arguing that
no court intervention was required because it was working with Román toward
completing the production of documents and disclosing the appropriate custodians and
search terms to guide discovery. Docket No. 158.
On May 4, 2015, the court denied Román’s motion to certify the class, but
allowed him to refile it by June 30, 2015. Docket No. 160. On May 21, 2015, the parties
jointly moved to appoint a magistrate judge to resolve the discovery dispute arising from
Román’s First Motion to Compel, Docket No. 161, but the court denied that motion,
Docket No. 162.
As Román acknowledges, the “relevant requests” in the Second Motion to Compel are
found within his second set of requests (Nos. 4, 8, 9, 15) and his third set of requests (Nos. 1–4, 6,
and 13). Second Mot. Compel at 4 n.1, Docket No. 197.
2
In January 2015, Román requested that the SEC produce the documents UBS presented
to it; he later moved to withdraw that request because UBS possessed the documents he requested
and so he would “attempt to obtain the Documents, to the extent that they have yet to be
produced, from [UBS] and their counsel, Skadden, rather than from the SEC.” Docket No. 175.
1

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On June 30, 2015, Román filed his second motion to certify the class. Docket No.
168, which UBS opposed,3 Docket No. 185, and which is currently before the court. On
October 13, 2015––approximately four months after the conclusion of the discovery
period––Román filed a Second Motion to Compel Discovery. Docket No. 197. This
Second Motion to Compel seeks documents relating to his second and third sets of
requests. Second Mot. Compel at 4 n.1, Docket No. 197. Román claims the discovery
sought in this motion is necessary to complete the class certification record.
At this juncture, Román’s Second Motion to Compel is untimely. See AyalaGerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996). In Ayala-Gerena, the
First Circuit held that the trial court did not abuse its discretion in denying as untimely a
motion to compel the production of documents. Id. In that case, the plaintiffs claimed the
defendants were “hiding” documents but waited “more than one month after the second
extended discovery deadline had elapsed to properly request an order from the district
court.” Id. Similarly, after extending the initial discovery deadline, the court in this case
ordered that discovery be concluded by June 10, 2015. Docket No. 159. Approximately
four months after that deadline, Román filed his Second Motion to Compel on October
13, 2015.
Critically missing from Román’s Second Motion to Compel is an explanation as
to why a court order was not requested at an earlier time––specifically, before the
discovery period in this case concluded. For example, he could have filed his Second
Motion to Compel in the approximate two-month time period between the denial of his
first motion to certify the class and the filing of his second motion to certify the class.
Docket Nos. 160, 168. Though he noted at certain points within his second motion to
certify the class that UBS failed to produce discovery, he did not previously or

3

Ferrer filed his own opposition to Román’s motion to certify the class. Docket No. 182.

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simultaneously file a motion to compel discovery of those documents. Docket No. 168-1
at 18 n.9, 25.
Román’s delay in requesting the court order he seeks now becomes starker after
considering that his first and second sets of requests were served on November 3, 2014,
and that his second and third requests essentially ask for the same documents. Indeed,
Román could have sought the order he seeks now when filed his First Motion to Compel.
As noted above, however, he limited that first motion to documents relating to the SEC
investigation. The parties have resolved that earlier dispute as far as the court can tell, as
Román has sought to withdraw the third-party subpoena to the SEC, Docket No. 175;
Román does not seek that information in the Second Motion to Compel, Docket No. 197;
and UBS claims it has now “complied with [Román’s] request to produce all pre-trial
transcripts and all of the exhibits and transcripts from the SEC trial,” Docket No. 209 at
13. In sum, because of Román’s delay in filing the Second Motion to Compel, it is
denied.
CONCLUSION
For the foregoing reasons, the motion to compel is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of December 2015.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge