Mahalingam v. Wells Fargo Bank N A

Filing 47

MEMORANDUM OPINION AND ORDER granting in part and denying in part 20 Motion to Compel. (Ordered by Magistrate Judge David L. Horan on 5/19/2023) (acm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HARITHARAN MAHALINGAM,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.

No. 3:22-cv-1076-L

MEMORANDUM OPINION AND ORDER
Plaintiff Haritharan Mahalingam filed a Motion to Compel Production of
Documents and Motion for Rulings on Objections, see Dkt. No. 20 (the “MTC”), which
United States District Judge Sam A. Lindsay has referred to the undersigned United
States magistrate judge for a hearing, if necessary, and determination under 28
U.S.C. § 636(b), see Dkt. No. 40.
The MTC asks the Court to order Defendant Wells Fargo Bank, N.A. to serve
adequate and complete responses to Plaintiff’s First Set of Requests for Production –
specifically, Request Nos. 1-3, 4, 5-10, and 14-34 – and overrule Well Fargo’s
objections to those requests. See Dkt. No. 20 at 5-8.
Wells Fargo responded to the MTC. See Dkt. No. 28.
Mahalingam has not filed a reply after the Court extended his deadline to do
so, see Dkt. No. 35.
For the reasons and to the extent explained below, the Court now grants in
part and denies in part Plaintiff Haritharan Mahalingam’s Motion to Compel
Production of Documents and Motion for Rulings on Objections [Dkt. No. 20].
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Background
Mahalingam’s MTC explains that his
claims against Defendant arise from a mortgagor/mortgagee
relationship that began in early 2016 when Plaintiff financed the
purchase of real property commonly known as 4110 Admirality Way,
Irving, Texas 75061. Plaintiff maintains, inter alia, that during the
course of the parties’ working relationship, Defendant repeatedly and
unabashedly committed egregious accounting errors as it relates to
Plaintiff’s Wells Fargo loan/account, grossly mismanaged Plaintiff’s
escrow account, and improperly disbursed Plaintiff’s funds and/or made
duplicative payments. After Plaintiff’s investigation revealed the
foregoing,
he
immediately
and
repeatedly
requested
documents/information and reconciliation of his account. Rather than
provide the information requested, Defendant instead chose to launch a
retaliatory campaign wherein it deliberately mispresented the status of
Plaintiff’s account to the various credit bureaus, improperly attempted
to declare certain defaults under the loan agreement without a proper
basis, and in retaliation to Plaintiff’s repeated reconciliation requests
and demands for information, wrongfully interfered with Plaintiff’s
ability to secure third-party through another lender; all of which caused
Plaintiff to sustain considerable monetary damages.
2. In support of its attempts to prosecute his claims against Defendant,
on September 28, 2022, Plaintiff served Plaintiff’s First Set of Requests
for Production (“Discovery Requests”) upon Defendant Wells Fargo
Bank, N.A. in accordance with Federal Rule of Civil Procedure 34, et.
seq.
3. While Defendant’s responses to the Discovery Requests were timely,
they were woefully incomplete. Defendant improperly lodged a series of
boilerplate objections and despite Defendant’s obligation to do produce
responsive documents, Defendant wholly failed and refused to produce
any documents.
4. On or about October 28, 2022, in an effort to resolve the discovery
dispute at hand, Plaintiff notified defense counsel of the deficiencies in
the responses and requested that Defendant immediately cure the same.
5. Over the next few months, the parties were unable to meaningfully
confer in greater detail about to what extent, if any, Defendant would be
supplementing and/or amending its responses to become compliant with
its discovery obligations under the Rules. Finally, after numerous
attempts to convince defense counsel to produce documents,
undersigned counsel made one final effort on February 4, 2023 via email,
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wherein undersigned counsel specified the relevance of each request as
it/they relate to the issues in the case, as well as the inapplicability of
the objections raised by Defendant. Moreover, undersigned counsel
offered to shorten the look back period in hopes that would alleviate
some of Defendant’s concerns and documents would be forthcoming.
6. Finally, on February 15, 2023, Defendant produce a measly 284 pages
of document; many of which are duplicative. Defendant qualified its
production by insisting that it would only produce documents as late as
late 2021, well after the events giving rise to this lawsuit began to
unfold.
7. On February 21, 2023, undersigned counsel sent defense counsel a
follow up email advising that the February 15th document production
remained incomplete and requesting confirmation as to if and when
supplemental documents would be forthcoming. Undersigned counsel
never received a response.
8. On March 8, 2023, undersigned counsel notified defense counsel that
Plaintiff would be filing a motion to compel by the end of the week. Once
again, no response. As set forth herein, Plaintiff has made every effort
to resolve the pending discovery dispute(s) without the need for court
intervention. Despite said attempts, Defendant continues to abuse the
discovery process by brazenly withholding discoverable documents from
Plaintiff in the face of proper and timely requests for the same. As such,
Plaintiff brings this Motion.
Dkt. No. 20 at 1-3 (cleaned up).
In response, Wells Fargo explains that
Plaintiff seeks to compel Wells Fargo with respect to Plaintiff’s Requests
for Production of Documents and Other Tangible Items. However, Wells
Fargo has already responded and objected to Plaintiff’s document
requests, and Wells Fargo has produced documents to Plaintiff subject
to Wells Fargo’s objections. In addition, Wells Fargo has filed its Motion
to Dismiss (the “Motion to Dismiss”) (Docs. 23, 25-26) demonstrating
that Plaintiff’s claims are barred by, among other grounds, res judicata
and collateral estoppel. This is Plaintiff’s second lawsuit against Wells
Fargo and was filed only a few months after the first lawsuit was
dismissed with prejudice. Consequently, the Motion to Compel should
be denied.
Dkt. No. 29 at 1.

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Legal Standards and Analysis
The Court has previously laid out standards that govern a Federal Rule of Civil
Procedure 37(a) motion to compel as to Federal Rule of Civil Procedure 34 requests
for production, and the Court incorporates and will apply, but will not repeat, those
standards here. See VeroBlue Farms USA Inc. v. Wulf, ___ F.R.D. ____, No. 3:19-cv764-X, 2021 WL 5176839, at *5-*9 (N.D. Tex. Nov. 8, 2021); Lopez v. Don Herring
Ltd., 327 F.R.D. 567, 573-86 (N.D. Tex. 2018).
I.

Objections based on pending motion to dismiss and case’s merits
Wells Fargo asserts that Mahalingam’s claims fail as a matter of law and “are

barred by res judicata and collateral estoppel,” explaining that
Plaintiff filed his previous lawsuit against Wells Fargo on July 19, 2019,
asserting nebulous claims relating to alleged problems on his mortgage
escrow account. Ultimately, the Dallas County Court at Law granted
Wells Fargo’s Motion for Summary Judgment, from which Plaintiff did
not appeal. The Dallas County Court at Law’s summary judgment
against Plaintiff is a final, non-appealable judgment. See Brief in
Support of Defendant’s Motion to Dismiss. (Doc. 23 at pp. 6-10).
Plaintiff’s instant lawsuit was filed less than three months after the
state court denied Plaintiff’s motion for reconsideration and motion for
new trial. Doc. 23 at p. 4. Yet the instant lawsuit asserts the same
nebulous claims about the subject mortgage account. See id. Indeed, the
most recent action by Wells Fargo cited in the instant second lawsuit
was allegedly taken on October 6, 2021 – more than one month before
the state court granted summary judgment in favor of Wells Fargo in
the first lawsuit. Id. In sum, Plaintiff’s current lawsuit is barred by the
doctrines of res judicata and collateral estoppel. Doc. 23 at pp. 6-10.
Wells Fargo cited these bases for objection in its Responses and
Objections. See Doc. 20-1 at ¶ 6.
Moreover, the causes of action asserted by Plaintiff in the instant
lawsuit – breach of fiduciary duty, negligent misrepresentation, fraud,
and breach of contract – fail as a matter of law, as demonstrated in the
Brief in Support of Defendant’s Motion to Dismiss. Doc. 23 at pp. 10-17.
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Under Texas law, Wells Fargo does not owe a fiduciary duty to Plaintiff.
Id. at pp. 10-11. Plaintiff’s purported claim for negligent
misrepresentation does not concern a representation made for the
guidance of Plaintiff in his business, and in any event that claim is
barred by the economic loss rule and failure to plead reliance. Id. at pp.
12-14. The fraud claim fails under Fed. R. Civ. P. 9 and also under the
economic loss rule. Id. at pp. 15-16. The breach of contract claim is
likewise fatally defective. Id. at pp. 16-17. As a result, the Motion to
Compel should be denied.
Dkt. No. 29 at 6-7.
If Wells Fargo prevails on its assertions regarding res judicata and collateral
estoppel, the Court could dismiss Mahalingam’s entire case.
But the Court has not yet done so. At this point, Mahalingam has “a live
pleading that alleges ... pending … claim[s] unless and until the Court determines
otherwise on a motion or after trial.” Nerium Skincare, Inc. v. Olson, No. 3:16-cv1217-B, 2017 WL 277634, at *6 (N.D. Tex. Jan. 20, 2017) (cleaned up), objections
overruled sub nom. Nerium SkinCare, Inc. v. Nerium Int’l, LLC, No. 3:16-cv-1217-B,
2017 WL 9934881 (N.D. Tex. Feb. 6, 2017).
Wells Fargo did not move to stay all discovery pending a ruling on its motion
to dismiss. And “no federal rule, statute, or binding case law applies [] to
automatically stay discovery pending a ruling on ... a [Federal Rule of Civil
Procedure] 12(b)(6) motion to dismiss”; rather, “such a stay is the exception rather
than the rule.” Id. (cleaned up). Neither did Wells Fargo move for a Federal Rule of
Civil Procedure 26(c) protective order against any discovery based on its pending
motion to dismiss or otherwise.

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Wells Fargo instead refused to engage in discovery relevant to Mahalingam’s
pending claims because Wells Fargo believes that it should prevail on its assertions
regarding res judicata and collateral estoppel and on Mahalingam’s claims’ merits
and that the Court will agree and grant its motion to dismiss. Apparently on those
grounds (as well as other objections), in Defendant’s Objections and Responses to
Plaintiff’s Requests for Production of Documents and Other Tangible Items, Wells
Fargo states that it “will not produce documents in response to Request” Nos. 1-34 –
that is, every request that Mahalingam served. Dkt. No. 20-1 at 4-19 of 20.
And Wells Fargo now defends against the MTC not by asserting that the Court
should stay discovery pending what could be a favorable ruling on Wells Fargo’s
motion to dismiss but rather by asserting that the Court should declare in the context
of this discovery motion that Mahalingam’s claims will fail on one or all of the grounds
that Wells Fargo asserts.
But “the Court will not engage in a preemptive merits analysis to determine
whether [Mahalingam] is entitled to discovery on the claim that [he] has pleaded and
is pursuing.” Randstad Gen. Ptr. (US), LLC v. Beacon Hill Staffing Grp., LLC, No.
3:20-cv-2814-N-BN, 2021 WL 4319673, at *1 (N.D. Tex. Sept. 23, 2021) (cleaned up).
Under these circumstances, Wells Fargo “cannot refuse to engage in – and
should not be excused from being subjected to – discovery simply because the
discovery is relevant to a claim on which [Wells Fargo, as] the resisting party[,]
believes that [it] will or should prevail.” Id.

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II.

Specific objections and responses to requests
A. Boilerplate objections
In response to Mahalingam’s complaining that Wells Fargo served boilerplate

objections to his requests, Wells Fargo argues that it “has responded to Plaintiff’s
requests for production with detailed objections,” asserting that “Plaintiff’s document
requests are overbroad, neither relevant to any party’s claim or defense nor
proportional to the needs of the case, and harassing” and “are phrased in an overbroad
and harassing manner and do not reflect any attempt at all to precisely state specific
documents requested.” Dkt. No. 29.
The Court cannot agree with Wells Fargo’s assessment of its objections.
In Defendant’s Objections and Responses to Plaintiff’s Requests for Production
of Documents and Other Tangible Items, Wells Fargo begins with a list of
“Incorporated Objections,” at the end of which it asserts that “[e]ach specific response
or answer set forth below is made expressly subject to and without waiving the
objections set forth above.” Dkt. No. 20-1 at 1-4 of 20. Its responses to all 34 requests
then begin with “In addition to the Incorporated Objections.” Id. at 4-19 of 20.
Among the general “Incorporated Objections,” Wells Fargo objects as “vague
and ambiguous” to Mahalingam’s requests’ definitions of “Loan” (“The term ‘Loan’
shall mean the Wells Fargo loan number 0490314523”) and “Property” (“The term
‘Property’ shall mean the real property commonly known as 4110 Admirality Way,
Irving, Texas 75061”). Id. at 3 of 20; Dkt. No. 20-2 at 2 of 9.

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Along with the issues with including “multiple ‘general objections’ [that] are
incorporated into many of the responses with no attempt to show the application of
each objection to the particular request,” a “party objecting to discovery as vague or
ambiguous has the burden to show such vagueness or ambiguity”; “must explain the
specific and particular way in which a request is vague”; “should exercise reason and
common sense to attribute ordinary definitions to terms and phrases utilized in
interrogatories”; “[i]f necessary to clarify its answers, ... may include any reasonable
definition of the term or phrase at issue”; and, “[should] attempt to obtain clarification
[by conferring with the requesting party] prior to objecting on this ground.” Heller v.
City of Dallas, 303 F.R.D. 466, 483, 491-92 (N.D. Tex. 2014) (cleaned up).
Wells Fargo has done none of that, and the definitions of “Loan” and “Property”
– which are based on a loan number and an exact address – are not “so vague or
ambiguous as to be incapable of reasonable interpretation and to prohibit [Wells
Fargo’s] responses.” Id. at 492.
Then, in response to the 31 specific requests at issue here, Wells Fargo asserted
some combination of the following objections “[i]n addition to the Incorporated
Objections”:
•
•
•

•

“Defendant objects to [this Request] on the grounds it is overbroad by
requesting ‘all communications and documents.’”
“Defendant objects for [or to the] lack of a defined timeframe.”
“Defendant further objects to [this Request] on the grounds it calls for
information that is not relevant, not proportional to the needs of the
case, and not reasonably calculated to lead to the discovery of admissible
evidence.”
“This appears to be a formulaic, harassing discovery request.”
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•
•
•
•
•
•
•
•
•
•

•
•
•
•
•

“Defendant objects that the request is overbroad, unduly burdensome,
vague and ambiguous.”
“Defendant objects to this request because it seeks documents that are
equally available to Plaintiff.”
“Defendant further objects that mere communications with other
parties have no relevance to any claim or defense in this case.”‘
“Defendant objects that discovery concerning any ‘third-party’ is not
relevant, because Plaintiff has not alleged a claim concerning a ‘thirdparty.’”
“Defendant objects that the use of the term ‘third-party’ is over broad,
unduly burdensome and vague because ‘third-party’ is not a defined
term.”
“Defendant objects to [this Request] on the grounds it is overbroad.”
“Defendant objects that this request violates the parol evidence rule and
the statute of frauds.”
“Defendant further objects that this Request is overly burdensome, an
invasion of privacy, vague and ambiguous.”
“Defendant also objects that this Request is overbroad and unduly
burdensome.”
“Defendant objects to [this Request] on the grounds it calls for
information that is not relevant, not proportionate to the needs of the
case, not reasonably calculated to lead to the discovery of admissible
evidence, overbroad, and unduly burdensome.”
“Defendant objects that this Request is unduly burdensome and
overbroad.”
“Defendant objects on the grounds it seeks disclosure of confidential and
proprietary business information.”
“Defendant objects to [this Request] on the grounds it is overbroad by
requesting ‘all documents.’”
“Defendant objects that the Request is unduly burdensome, vague and
ambiguous.”
“Defendant further objects to [this Request] on grounds that it calls for
the disclosure of confidential and proprietary information.”

Dkt. No. 20-1 at 4-19 of 20.
These objections are all unsupported boilerplate and are invalid based on Wells
Fargo’s failing to make the objections “with specificity” and “to explain and support
[its] objections.” VeroBlue, 2021 WL 5176839, at *7 (cleaned up). For objections that

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deserve the label “boilerplate,” counsel’s repeating them in response to more than one
discovery request is not the problem; counsel’s failing to explain the basis for them as
to each individual discovery request is. See id. (“Boilerplate objections are those that
utilize standardized text or ready-made or all-purpose language, but copying and
pasting an objection, by itself does not render that objection a boilerplate objection –
rather, [o]bjections are typically deemed boilerplate when they are identical and not
tailored to the specific discovery request.” (cleaned up)); see also Archer v. Kennedy,
No. 3:21-cv-748-N, 2022 WL 17069122, at *2 (N.D. Tex. Nov. 16, 2022) (“The Court
notes at the outset that the Archers advance several boilerplate objections that are
not accompanied by an adequate explanation to resist discovery. The Archers’
responses merely state the grounds of overbreadth, vagueness, and undue burden
without explaining what portions of the request are overbroad, what terms in the
request lack a reasonable interpretation, or why producing responsive documents
would require excessive expense.” (cleaned up)).
Again, Wells Fargo has not properly supported any of its vague and ambiguous
objections – most of which do not identify what word or phrase in, or part of, a request
Wells Fargo is directing the objection to. See Heller, 303 F.R.D. at 491-92.
As to relevance, the Court has explained that,
[u]nder Rule 26(b)(1), “[u]nless otherwise limited by court order, ...
[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 relevant
information, the parties’ resources, the importance of the discovery in
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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 be discoverable.” FED. R.
CIV. P. 26(b)(1).
“The 2015 amendments to Rule 26 deleted ‘from the definition of
relevance information that appears ‘reasonably calculated to lead to the
discovery of admissible evidence’ because ‘[t]he phrase has been used by
some, incorrectly, to define the scope of discovery’ and ‘has continued to
create problems’ given its ability to ‘swallow any other limitation on the
scope of discovery.’’”
“Under Rule 26(b)(1), [as amended,] discoverable matter must be
both relevant and proportional to the needs of the case – which are
related but distinct requirements.” Samsung Electronics Am., Inc. v.
Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017). “To be relevant under Rule
26(b)(1), a document or information need not, by itself, prove or disprove
a claim or defense or have strong probative force or value. If it were
otherwise, it would make little sense for Rule 26(b)(1) to direct courts to
consider whether discovery that is relevant to any party’s claim or
defense is also important in resolving the issues.” Id. at 280.
Lopez, 327 F.R.D. at 573 (cleaned up).
“In the Fifth Circuit, a party who opposes its opponent’s request for production
[must] show specifically how ... each [request] is not relevant.” Maiden Biosciences,
Inc. v. Document Sec. Sys., Inc., No. 3:21-cv-327-D, 2022 WL 7662658, at *2 (N.D.
Tex. Oct. 13, 2022) (cleaned up).
Wells Fargo’s objections do not explain how the materials that each request
seeks are irrelevant to the claims or defenses in this case or, for that matter, are not
proportional to the needs of the case. See Lopez, 327 F.R.D. at 585 (explaining that
the burden is placed “on the party resisting discovery to – in order to successfully
resist a motion to compel – specifically object and show that the requested discovery

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does not fall within Rule 26(b)(1)’s scope of relevance (as now amended) or fails the
required proportionality calculation or is otherwise objectionable”).
And Wells Fargo’s objections to discovery requests as seeking information that
is not reasonably calculated to lead to the discovery of admissible evidence have no
basis in the Federal Rules because “[t]he 2015 amendments to Rule 26 deleted from
the definition of relevance information that appears ‘reasonably calculated to lead to
the discovery of admissible evidence.’” Lopez, 327 F.R.D. at 573 (cleaned up).
Neither does Wells Fargo explain how any request fails Federal Rule of Civil
Procedure 34(b)(1)(A)’s reasonable particularity requirement or is otherwise so
“formulaic” or “harassing” that the Court should not require Wells Fargo to respond.
As the Court has explained,
Federal Rule of Civil Procedure 34(b) provides that a request for
production or inspection “must describe with reasonable particularity
each item or category of items to be inspected” or produced. FED. R. CIV.
P. 34(b)(1)(A). The test for reasonable particularity is whether the
request places the party upon ‘reasonable notice of what is called for and
what is not. Therefore, the party requesting the production of documents
must provide sufficient information to enable [the party to whom the
request is directed] to identify responsive documents. The goal is that
the description be sufficient to apprise a man of ordinary intelligence
which documents are required.
This test, however, is a matter of degree depending on the
circumstances of the case. But, although what qualifies as reasonabl[y]
particular surely depends at least in part on the circumstances of each
case, a discovery request should be sufficiently definite and limited in
scope that it can be said to apprise a person of ordinary intelligence what
documents are required and [to enable] the court ... to ascertain whether
the requested documents have been produced. A Rule 34(a) request
made with reasonable particularity does not require a reasonable
attorney or party attempting to properly respond to ponder and to
speculate in order to decide what is and what is not responsive.
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All-encompassing demands that do not allow a reasonable person
to ascertain which documents are required do not meet the particularity
standard of Rule 34(b)(1)(A). For example, [b]road and undirected
requests for all documents which relate in any way to the complaint do
not meet Rule 34(b)(1)(A)’s standard. Similarly, [a] request for “all
documents and records” that relate to “any of the issues,” while
convenient, fails to set forth with reasonable particularity the items or
category of items sought for [the responding party’s] identification and
production of responsive documents.
Based on these rules, this Court has, for example, determined
that an interrogatory asking a defendant to “[d]escribe in detail all facts,
proof, or evidence which, in whole or in part, form the basis of any
defendant or affirmative defenses pled in this lawsuit” is an improper,
so-called blockbuster interrogatory. Likewise, the Court has sustained
objections to Rule 34(a) requests for “[a]ll documents which evidence,
describe, concern, or otherwise relate to the allegations in your
Complaint” and “[a]ll documents not previously produced that support,
contradict, or otherwise relate in any way to any of the allegations you
have made in this lawsuit.”
Lopez, 327 F.R.D. at 575-76, 577 (cleaned up). On the Court’s review of Mahalingam’s
requests, no request fails Rule 34(b)(1)(A)’s standard.
As to overbreadth and undue burden, Wells Fargo’s objections fail to “explain
the extent to which [each request] is overbroad and … respond to the extent that it is
not – and explain the scope of what [Wells Fargo] is … responding to.” Heller, 303
F.R.D. at 488. Neither does Wells Fargo “show how the requested discovery is overly
broad, unduly burdensome, or oppressive by submitting affidavits or offering
evidence revealing the nature of the burden.” Lopez, 327 F.R.D. at 580 (cleaned up).
That, too, “makes [these] unsupported objection[s] nothing more than unsustainable
boilerplate.” Heller, 303 F.R.D. at 490.

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Wells Fargo does not explain how a discovery request could violate “the parol
evidence rule and the statute of frauds” when “[i]nformation within [Rule 26(b)(1)’s]
scope of discovery need not be admissible in evidence to be discoverable.” FED. R. CIV.
P. 26(b)(1).
Wells Fargo has refused “to produce documents that [it] claim[s] are … equally
available to [Mahalingam]” but, “again, ha[s] not supported this objection, and the
Court does not find the [objected-to] request[s] to be improper under Rule 26(b)(1)
without some showing by” Wells Fargo. Orchestrate HR, Inc. v. Trombetta, 178 F.
Supp. 3d 476, 508 (N.D. Tex. 2016), objections overruled, No. 3:13-cv-2110-KS, 2016
WL 5942223 (N.D. Tex. Oct. 13, 2016).
Neither has Wells Fargo explained or supported its objections that some
requests seek disclosure of confidential and proprietary information or otherwise
invade Wells Fargo’s privacy. And, even if these objections were not invalid on that
basis, a confidentiality-based protective order will generally address any concerns as
to confidential and proprietary information. See Samsung, 321 F.R.D. at 294.
And, through its “Incorporated Objections,” Wells Fargo responded to all the
requests “subject to and without waiving the objections set forth above.” Dkt. No. 20-1
at 4 of 20. But responding “‘subject to’ and ‘without waiving’ objections is improper,
as the undersigned and many other judges in this circuit and elsewhere have now
made clear for several years.” VeroBlue, 2021 WL 5176839, at *8 (cleaned up).
All of Wells Fargo’s objections are overruled as unsupported boilerplate, for the

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reasons that the Court explained above.
And, even if they were not, Wells Fargo’s objections are waived insofar as Wells
Fargo did not urge those objections and “argue[] in support [of them] in responding
to the MTC.” Lopez, 327 F.R.D. at 592.
But, in its response to the MTC, Wells Fargo did argue in support of some
objections as to certain requests. And, “under Rules 26(b)(1) and 26(b)(2)(C)(iii), a
court can – and must – limit proposed discovery that it determines is not 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
– and the court must do so even in the absence of a motion.” Lopez, 327 F.R.D. at 583.
So the Court now turns to the specific requests at issue and Wells Fargo’s
arguments in support of certain objections.
B. Request Nos. 1-4 & 14-34
REQUEST FOR PRODUCTION NO. 1: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
Plaintiff regarding the Loan.
REQUEST FOR PRODUCTION NO. 2: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
Plaintiff regarding the Property.
REQUEST FOR PRODUCTION NO. 3: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
Plaintiff regarding the Loan File.
REQUEST FOR PRODUCTION NO. 4: Copy of all agreements – whether
formal or informal – between Wells Fargo Bank, N.A. and Plaintiff.

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REQUEST FOR PRODUCTION NO. 14: Copies of all notices You sent to
Plaintiff regarding the Loan.
REQUEST FOR PRODUCTION NO. 15: Copies of all notices You sent to
Plaintiff regarding the Loan File.
REQUEST FOR PRODUCTION NO. 16: Copies of all notices You sent to
Plaintiff regarding the Property.
REQUEST FOR PRODUCTION NO. 17: Copies of all notices You sent to
Plaintiff regarding any escrow accounts maintained and/or managed by You in
connection with the Property.
REQUEST FOR PRODUCTION NO. 18: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and Plaintiff regarding any escrow accounts You maintained or managed
in connection with the Property.
REQUEST FOR PRODUCTION NO. 19: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and any third-party regarding any escrow accounts You maintained or
managed in connection with the Property.
REQUEST FOR PRODUCTION NO. 20: Copies of all property tax
payments/disbursements You made and/or issued from any escrow account
You maintain or manage in connection with the Property.
REQUEST FOR PRODUCTION NO. 21: Copies of all insurance
payments/disbursements You made and/or issued to any third-party from any
escrow account you maintain or manage in connection with the Property.
REQUEST
FOR
PRODUCTION
NO.
22:
Copies
of
all
payments/disbursements You made on Plaintiff’s behalf with funds escrowed
in connection with the Property or the Loan.
REQUEST FOR PRODUCTION NO. 23: Copies of any and all refunds
and/or disbursements You made to Plaintiff during the life of the Loan for
escrow overages.
REQUEST FOR PRODUCTION NO. 24: Copies of any and all requests You
received from Plaintiff to modify the Loan.
REQUEST FOR PRODUCTION NO. 25: Copies of any and all requests or
notices You received from Plaintiff seeking to refinance the Property.
REQUEST FOR PRODUCTION NO. 26: Copies of any and all requests or
notices You received from Plaintiff seeking to refinance the Loan.
REQUEST FOR PRODUCTION NO. 27: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and Plaintiff regarding alleged late payments on the Loan.
REQUEST FOR PRODUCTION NO. 28: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and any third-party regarding alleged late payments on the Loan.

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REQUEST FOR PRODUCTION NO. 29: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and any credit bureaus regarding alleged late payments on the Loan.
REQUEST FOR PRODUCTION NO. 30: All communications and
documents received from, sent to, and exchanged between Wells Fargo Bank,
N.A. and any third-party credit agencies regarding alleged late payments on
the Loan.
REQUEST FOR PRODUCTION NO. 31: Copies of any and all internal
policies or procedures You follow to reconcile escrow accounts maintain by
Wells Fargo customers.
REQUEST FOR PRODUCTION NO. 32: Copies of any and all documents
reflecting, referencing or substantiating that You reconciled Plaintiff’s escrow
account(s).
REQUEST FOR PRODUCTION NO. 33: Copies of any and all internal
policies or procedures You follow to ensure Wells Fargo customer escrow
accounts are sufficiently funded each year.
REQUEST FOR PRODUCTION NO. 34: Copies of any and all documents
reflecting, referencing or substantiating that You took steps to ensure that
Plaintiff’s escrow account with Wells Fargo was sufficiently funded each year.
In response to the MTC, Wells Fargo argues:
The requests are overbroad as to timeframe. The subject
loan was originated in January 2016. See, e.g., Doc. 26 at App. 012.
Plaintiff filed his first lawsuit against Wells Fargo in July 2019, and
that lawsuit was dismissed with prejudice in November 2021. See Doc.
23 at pp. 1, 3; Doc. 26 at App. 213. However, the requests for production
served by Plaintiff in the instant lawsuit (which is his second lawsuit
against Wells Fargo) are unlimited as to scope of time – in the form that
they were served on Wells Fargo. The Definitions and Instructions to
the requests do not state a timeframe. Doc. 20-2 at pp. 1-5. The requests
themselves are unlimited as to timeframe. Id. at pp. 6-9. Wells Fargo
has produced its correspondence with Plaintiff dated after the dismissal
of the state court lawsuit, and Plaintiff acknowledges this. See, e.g.,
Motion to Compel at p. 6. Documents dated before the dismissal of the
previous lawsuit are irrelevant and not proportional to the needs of this
case. [Wells Fargo produced documents dated after the dismissal of the
previous lawsuit out of an abundance of caution and without waiving its
argument that all of the claims in Plaintiff’s current lawsuit are barred
by the dismissal of the previous lawsuit with prejudice.] During the
parties’ communications concerning Wells Fargo’s objections, Plaintiff
at one time offered to limit the scope of time of certain of the requests to
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begin at January 2017 or January 2018. See App. 06-07. The Motion to
Compel does not appear to refer to this offer. In any event, even with
that proffered timeframe, Plaintiff’s document requests seek documents
dated years before the dismissal of the previous lawsuit. The Motion to
Compel should be denied.
The requests are overbroad as to subject matter. In
addition, the requests are broadbrush and do not even attempt to relate
to the allegations pleaded in this, Plaintiff’s second lawsuit against
Wells Fargo. Instead, Plaintiff asks for what amounts to the entirety of
Wells Fargo’s files concerning Plaintiff and the subject loan. See, e.g.,
Request for Production No. 1 (“All communications and documents
received from, sent to, and exchanged between [Wells Fargo] and
Plaintiff regarding the Loan”) (Doc. 20-1 at p. 4) (emphasis added);
Request for Production No. 3 (“All communications and documents
received from, sent to, and exchanged between [Wells Fargo] and
Plaintiff regarding the Loan File”) (id. at p. 5) (emphasis added).
Accordingly, Wells Fargo objected, and Plaintiff has not provided an
explanation as to how such broadbrush requests are proportional to the
needs of the instant second lawsuit.
….
Documents related to the origination of the subject loan
are not relevant to the instant lawsuit. Plaintiff in his second
lawsuit against Wells Fargo does not complain about the origination of
the subject loan. See generally Doc. 1-4. Moreover, Plaintiff has proposed
that the requests for production be limited in time going back to 2017 or
2018. App. 06-07. This timeframe proposed by Plaintiff is a timeframe
covering a period long after the origination of this loan, which was in
2016. Motion to Compel at ¶ 1. Nonetheless, multiple requests for
production ask for documents related to the closing of the loan. See, e.g.,
Requests for Production No. 11 (“all closing documents”), 12 (“the title
commitment”), 13 (“the lender’s title policy”), Doc. 20-1 at pp. 9-10
(emphasis added). These requests are not specifically referenced in the
Motion to Compel, see Doc. 20 at pp. 6-7, and it is not clear whether
Plaintiff seeks to compel such production. However, Requests Nos. 1-4
are so broad as to implicate the origination of the loan, and those
requests are specifically referenced in the Motion to Compel.
The requests seek documentation as to policies and
procedures without reason. Plaintiff also requests documentation
concerning Wells Fargo’s policies and procedures without any showing
of relevance or proportionality. See, e.g., Requests for Production Nos.
31, 33 (Doc. 20-1 at pp. 18-19). Plaintiff does not allege claims concerning
other customers or other loans. These requests are harassing and
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overbroad, and they improperly seek confidential and proprietary
documents. Moreover, these requests are invasive of privacy rights. The
outrageousness of these requests is highlighted by the fact that the last
specific act of Wells Fargo alleged in the instant lawsuit was in October
2021 – which was more than one month before the state court granted
summary judgment dismissing the first lawsuit with prejudice. Doc. 23
at p. 4.
Wells Fargo’s objections to the requests for production should be
sustained.
Dkt. No. 29 at 2-3, 4-5 (cleaned up).
Wells Fargo appears to base its objections to producing documents dated before
the prior lawsuit’s dismissal on its assumption that the Court will agree that res
judicata and collateral estoppel bar Mahalingam’s claims. But the Court has not
determined that yet. And Wells Fargo does not otherwise explain how “[d]ocuments
dated before the dismissal of the previous lawsuit are irrelevant and not proportional
to the needs of this case.”
Wells Fargo also complains that Mahalingam “asks for what amounts to the
entirety of Wells Fargo’s files concerning Plaintiff and the subject loan,” but
Mahalingam’s allegations in his live complaint cover the entire life of the loan.
And, even if Mahalingam has not explained how these requests are
proportional to the needs of this case, neither has Wells Fargo provided the Court
with information to assess, for example, the parties’ relative access to this
information and the burden or expense that Wells Fargo would incur to produce its
entire files on this one customer and his one loan. See Lopez, 327 F.R.D. at 584 (“Rule
26(g)(1) does not impose on a party filing a motion to compel the burden to show

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relevance and proportionality in the first instance..... [And] Rule 26(b)(1) does not
place on the party seeking discovery the burden of addressing all proportionality
considerations. While it is a good practice for a movant to explain the relevance and
proportionality of its discovery requests, and while a failure to appropriately address
Rule 26(b)(1) proportionality factors may be determinative in a proportionality
analysis and result in the motion to compel being denied on its merits, [t]he parties
and the court have a collective responsibility to consider the proportionality of all
discovery and consider it in resolving discovery disputes[.] Thus, a party seeking to
resist discovery on Rule 26(b)(1) and Rule 26(b)(2)(C)(iii) grounds still bears the
burden of making a specific objection and showing that any discovery request that is
relevant to any party’s claim or defense fails the proportionality calculation mandated
by Rule 26(b) by coming forward with specific information to address – insofar as that
information is available to it – 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.”
(cleaned up)).
Considering the possible importance of these files to Mahalingam’s claims and
what appears to the Wells Fargo’s greater access to its own files and failure to point
to any burden involved in producing the requested documents, the Court finds that

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the materials that Mahalingam seeks through Request Nos. 1-10 and 14-34 are
proportional to the needs of the case – with two exceptions.
On this record, the internal policies and procedures that Mahalingam seeks
through Request Nos. 31 and 33 do not appear to be proportional to the needs of the
case, considering the importance of that information to the claims alleged, and the
Court will deny the MTC as to those two requests.
C. Request Nos. 5-10
REQUEST FOR PRODUCTION NO. 5: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
third-party regarding the Property.
REQUEST FOR PRODUCTION NO. 6: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
third-party regarding the Loan.
REQUEST FOR PRODUCTION NO. 7: All communications and documents
received from, sent to, and exchanged between Wells Fargo Bank, N.A. and
third-party regarding the Loan File.
REQUEST FOR PRODUCTION NO. 8: All communications, documents, or
other tangible items or exchanged with any third party regarding all
agreements – whether formal or informal – between Wells Fargo Bank, N.A.
and Plaintiff regarding the Property.
REQUEST FOR PRODUCTION NO. 9: All communications, documents, or
other tangible items or exchanged with any third party regarding all
agreements – whether formal or informal – between Wells Fargo Bank, N.A.
and Plaintiff regarding the Loan.
REQUEST FOR PRODUCTION NO. 10: All communications, documents, or
other tangible items or exchanged with any third party regarding all
agreements – whether formal or informal – between Wells Fargo Bank, N.A.
and Plaintiff regarding the Loan File.
In response to the MTC, Wells Fargo argues:
The requests for no reason seek communications with
third parties. Moreover, Plaintiff seeks documents concerning
communications between Wells Fargo and third parties. However, the
third parties are neither named nor identified, and moreover Plaintiff
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provides no indication of the relevance of such communications to
Plaintiff’s second lawsuit against Wells Fargo. See e.g., Request for
Production No. 6 (“All communications and documents received from,
sent to, and exchanged between [Wells Fargo] and third-party regarding
the Loan”), id. at p. 6 (emphasis added); Request for Production No. 9
(“All communications, documents, or other tangible items or [sic]
exchanged with any third party regarding all agreements – whether
formal or informal – between [Wells Fargo] and Plaintiff regarding the
Loan”), id. at p. 8 (emphasis added). See also Requests for Production
Nos. 5, 7, 8, 10, 19, 28-30. The instant lawsuit has a vague reference to
alleged communications with credit bureaus, but no cause of action is
asserted regarding such alleged communications. See Haritharan
Mahalingam’s Original Petition at ¶ 14 (Doc. 1-4). In addition to lacking
relevance to the claims asserted by Plaintiff in this lawsuit and being
completely out of proportion to the allegations made by Plaintiff in his
pleading, these requests are overbroad, unduly burdensome, harassing
and invasive of privacy.
Dkt. No. 29 at 4.
Mahalingam’s claims are based in part on Wells Fargo’s communications about
his loan and other related matters, including communications that Wells Fargo may
have had with third parties. See Dkt. No. 1-4 at 5-9 of 11.
The Court finds that Request Nos. 5-10 seek information that would be
sufficiently relevant to the claims at issue and proportional to the needs of the case
to fall within Rule 26(b)(1)’s scope of discovery. See McGowan v. S. Methodist Univ.,
No. 3:18-cv-141-N, 2023 WL 2920848, at *1 (N.D. Tex. Apr. 11, 2023) (“Courts
construe relevance broadly, as a document need not, by itself, prove or disprove a
claim or defense or have strong probative force to be relevant.”).
D. Incomplete production
Federal Rule of Civil Procedure 34(b)(2) requires that “[a]n objection must

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state whether any responsive materials are being withheld on the basis of that
objection” and so reflects that “[o]bjections must have a consequence” – that is, that
parties should only object where the “objection … preclude[s] or prevent[s] a response,
at least in part,” and “the request is truly objectionable” because “the information or
documents sought are not properly discoverable under the Federal Rules.” VeroBlue,
2021 WL 5176839, at *7, *8, *27 (cleaned up). Rule 34(b), “in combination with
[Federal Rule of Civil Procedure 26(g)(1)],” is written and structured as it is “so that
both the requesting party and the court may be assured that all responsive, nonprivileged materials are being produced, except to the extent a valid objection has
been made.” Heller, 303 F.R.D. at 487 (cleaned up).
Wells Fargo, in its Objections and Responses to Plaintiff’s Requests for
Production of Documents and Other Tangible Items, does state that it “will not
produce documents in response to Request” Nos. 1-10 and 14-34 – that is, every
request at issue in this MTC. Dkt. No. 20-1 at 4-19 of 20.
But, in response to the MTC, Wells Fargo asserts that it has produced
documents and explains that, after it
served its responses and objections to Plaintiff’s requests for production,
Plaintiff alleged deficiencies in the responses. The parties exchanged
emails over several months. See generally Appendix. Communications
between the parties were prolonged due to Plaintiff counsel’s medical
leave in the fall of 2022. Doc. 13; Doc. 15 at ¶ 3. In communications with
Plaintiff about the requests for production, Wells Fargo noted, among
other things, that the requests sought the complete loan file, even
though the instant lawsuit did not concern the origination of the loan,
App. 02, and that the instant lawsuit did not concern third parties or
credit reporting, yet the requests for production also sought such
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documents. Id. Plaintiff proposed that the timeframe for the requests
begin in January 2017 or January 2018 – but that is still more than
three years before the dismissal of Plaintiff’s previous lawsuit against
Wells Fargo asserting the same claims that are now pleaded in the
instant lawsuit. The dismissal of the first lawsuit was in November
2021. App.07-08; Doc. 26 at App. 213.
After communications with Plaintiff’s counsel, and in a good faith
effort to try to limit potential discovery disputes, on February 15, 2023,
Defendant produced more than 280 pages of documents in response to
Plaintiff’s requests. Wells Fargo produced loan correspondence dated
after the dismissal of Plaintiff’s first lawsuit and before the filing of the
instant lawsuit. Wells Fargo also produced publicly filed loan
documents. App. 12. [As set forth in the Brief in Support of Defendant’s
Motion to Dismiss, the current lawsuit is barred in its entirety by the
doctrine of res judicata, including claims that could have been asserted
in Plaintiff’s first lawsuit. Doc. 23 at pp. 6-9. Nonetheless, out of an
abundance of caution, Wells Fargo produced documents dated after the
dismissal of the first lawsuit. See supra.] Plaintiff now complains about
this being a “measly” production, but Plaintiff fails to address that the
current lawsuit was filed less than three months after dismissal of the
first lawsuit. Plaintiff also fails to address that the most recent action of
Wells Fargo cited in the current lawsuit is in October 2021 – more than
one month before the first lawsuit was dismissed. Additionally, Plaintiff
fails to acknowledge that in the current lawsuit Plaintiff complains
about the same matters that were the subject of the first lawsuit. See
Doc. 23 at pp. 4, 6-10. The Motion to Compel should be denied.
Dkt. No. 29 at 5-6 (cleaned up).
That is, Wells Fargo is defending its actual – but incomplete – production to
date as sufficient based on its views that Mahalingam’s claims will fail on the merits
or on res judicata grounds and on its views of the proper scope of discovery.
But the Court has already addressed those arguments and is not persuaded
that they provide any basis to excuse Wells Fargo from its further discovery
obligations.
III.

Award of Expenses and Sanctions
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Finally, after carefully reviewing the parties’ arguments as to awarding
expenses under Federal Rule of Civil Procedure 37(a)(5), and considering all of the
circumstances here and the Court’s rulings above, the Court determines that, under
Rule 37(a)(5)(C), the parties will bear their own expenses, including attorneys’ fees,
in connection with the MTC.
But Wells Fargo’s approach to objecting to and refusing to produce materials
in response to Mahalingam’s discovery requests required this MTC. The Court does
not know what led Wells Fargo’s counsel to draft the objections as they did: whether
it was relying on outdated forms for objections, or falling into “a practice of objecting
to discovery requests reflexively – but not reflectively – and without a factual basis,”
or something else. Heller, 303 F.R.D. at 477.
As the Court noted almost a decade ago, “[t]he practice of asserting objections
and then answering ‘subject to’ and/or ‘without waiving’ the objections – like the
practice of including a stand-alone list of general or blanket objections that precede
any responses to specific discovery requests – may have developed as a reflexive habit
passed on from one attorney to another without any attorney giving serious thought
or reflection as to what this manner of responding means or could hope to accomplish
as to a particular discovery request.” Id. at 486.
“[T]he Court again reminds counsel that they must cease and desist from
raising these free-standing and purportedly universally applicable ‘general
objections’ in responding to discovery requests and that [d]eploying these general

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objections in this manner is … inconsistent with the Federal Rules and is not
warranted by existing law.” Lopez, 327 F.R.D. at 591-92 (cleaned up).
And “failing to follow the Federal Rules’ and case law’s requirements for
specificity in objecting and responding and answering, as well as correspondingly
answering or responding ‘subject to’ and ‘without waiving’ those objections, is
improper, as the undersigned and many other judges in this circuit and elsewhere
have now made clear for several years.” State Auto. Mut. Ins. Co. v. Freehold Mgmt.,
Inc., No. 3:16-cv-2255-L, 2018 WL 3548866, at *13 (N.D. Tex. July 24, 2018). These
“are practices that attorneys must stop.” VeroBlue, 2021 WL 5176839, at *30.
“As all the courts have said over and over, boilerplate objections are,
essentially, nothing more than autonomic responses from attorneys and are
ineffective. .... [And], just because boilerplate objections have a long history does not
mean that the continued warnings and holdings of all the courts are to be ignored.”
VeroBlue, 2021 WL 5176839, at *30 (cleaned up).
The Court has warned that counsel who fail to comply the Federal Rules’ and
case law’s requirements for discovery responses and objections may face sanctions –
including under Rule 26(g)(3) – and does so here again. See VeroBlue, 2021 WL
5176839, at *30; Lopez, 327 F.R.D. at 600; State Auto., 2018 WL 3548866, at *13;
Firebirds Int’l, LLC v. Firebird Rest. Grp., LLC, No. 3:17-cv-2719-B, 2018 WL
3655574, at *18 (N.D. Tex. July 16, 2018); Heller, 303 F.R.D. at 487, 490, 494-95; see
also Baker v. Walters, No. 3:22-cv-552-M, 2023 WL 2752844, at *6 (N.D. Tex. Mar.

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31, 2023) (awarding expenses under Federal Rule of Civil Procedure 37(a)(5) to
plaintiffs based on an order granting a motion to compel when, among other things,
“Defendants’ objections to all 59 requests in Plaintiffs’ First Set of Requests for
Production to Defendants are unsupported boilerplate and are invalid based on
Defendants’ failing to make the objections with specificity and to explain and support
their objections,” as explained in Baker v. Walters, ___ F. Supp. 3d ___, No. 3:22-cv552-M, 2023 WL 424788 (N.D. Tex. Jan. 26, 2023)).
Conclusion
For the reasons and to the extent explained above, the Court grants in part
and denies in part Plaintiff Haritharan Mahalingam’s Motion to Compel Production
of Documents and Motion for Rulings on Objections [Dkt. No. 20] and orders
Defendant Wells Fargo Bank, N.A. to, by Monday, June 5, 2023, serve on Plaintiff
Haritharan Mahalingam complete written responses – without objections – to
Request Nos. 1-10, 14-30, 32, and 34 in Plaintiff’s First Set of Requests for Production
and produce all unproduced, non-privileged documents and electronically stored
information that are responsive to Request Nos. 1-10, 14-30, 32, and 34 in Plaintiff’s
First Set of Requests for Production and that are in Defendant Wells Fargo Bank,
N.A.’s possession, custody, or control, in compliance with Federal Rule of Civil
Procedure 34(b)’s requirements, as explained above and laid out in VeroBlue, 2021
WL 5176839, at *6-*9, and Lopez, 327 F.R.D. at 575-79.
SO ORDERED.

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DATED: May 19, 2023
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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