Bizzaro et al v. First American Title Company
MEMORANDUM DECISION granting in part and denying in part 48 Motion for Protective Order Limiting Scope of Deposition under Rule 30(b)(6). Signed by Magistrate Judge Dustin B. Pead on 5/19/2016. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
RICHARD B. BIZZARO et al.,
Case No. 2:15-cv-00320-DB-DBP
FIRST AMERICAN TITLE COMPANY,
LLC, dba FIRST AMERICAN TITLE
INSURANCE AGENCY, LLC,
District Judge Dee Benson
Magistrate Judge Dustin B. Pead
And related counterclaims, third-party claims
This case was referred to the court pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 49.) This
matter involves an alleged error made during a real estate transaction that resulted in the
inadvertent repayment of a loan secured by certain property in California, rather than a loan
secured by certain property in Park City, Utah. 1 (See ECF No. 48.) Third-Party and Crossclaim
Defendant Wells Fargo (“Wells Fargo”) filed a motion for protective order seeking to strike topic
9 of Defendant First American Title Company’s (“First American”) notice of designee
deposition, and to modify topics 1–2 and 4–7. (Id.) Wells Fargo argues that topic 9 is irrelevant,
and the remaining topics are vague, unduly burdensome, disproportionate, and lacking in
reasonable specificity as presently framed. (Id.) The motion is now fully briefed. (See id.; ECF
Nos. 52, 55.) First American requested oral argument to the extent helpful to the court. (ECF No.
Wells Fargo was the lender for both the California and the Park City loans. (ECF No. 48.)
52.) The court does not find good cause for oral argument. See D.U. Civ. R. 7-1(f). For the
reasons set forth below, the court GRANTS IN PART AND DENIES IN PART Wells Fargo’s
“Motion for Protective Order Limiting Scope of Deposition under Rule 30(b)(6).” (ECF No. 48.)
WELLS FARGO’S MOTION FOR PROTECTIVE ORDER
The framework for Rule 30(b)(6) deposition notices is necessarily a flexible one. The
court must “ensure that both sides are adhering to [Rule 30]’s objective of fair access to
corporate information and, at the same time . . . guard against overreaching by the party seeking
discovery and failure of the corporate party to satisfy its obligations under the rule.” Persons
Subject to Examination—Corporations and Other Organizations, 8A Fed. Prac. & Proc. Civ. §
2103 (3d ed.). A proper notice must specify the areas of inquiry with “reasonable particularity.”
Fed. R. Civ. P. 30(b)(6). While the court has an obligation to allow discovery of relevant and
proportional information, it must also limit discovery in certain circumstances. See Fed. R. Civ.
P. 26(b). With these guidelines in mind, the court turns to the specific topics in this case.
a. Topic 9 seeks relevant information
Topic 9 seeks:
Wells Fargo’s reasons for declining, failing and/or refusing to reinstate its
loan on the California Property (Loan No. 0074460965) after discovering that
such loan was paid off on or about February 14, 2014.
(ECF No. 48, Ex. 1.)
Wells Fargo suggests that this topic is not relevant because Plaintiffs Richard B. Bizzaro and
Wendy G. Bizzaro (“Plaintiffs”) have not alleged they requested reinstatement of the California
loan or that Wells Fargo refused to reinstate that loan. Wells Fargo argues it was not required to
reinstate the loan or “cure First American’s mistake.” (ECF No. 48 at 4.) First American argues
that this matter is relevant because First American asserts a claim for equitable reinstatement of
the loan on the California Property. (ECF No. 52.) First American also argues that this
information is relevant to a conversation that one of its employees had with Wells Fargo about
the mistakenly-paid loan and whether Wells Fargo would agree to substitute collateral. (Id.)
Wells Fargo has not shown good cause for a protective order here. Wells Fargo’s relevance
argument is somewhat surprising in the context of this case. Here, Plaintiffs allege that a Wells
Fargo loan was erroneously paid off when a second Wells Fargo loan should have been paid.
First American intends to present evidence that it contacted Wells Fargo and asked them to
remedy this situation. (ECF No. 52 at 3.) Topic 9 simply seeks information about Wells Fargo’s
motives for not reinstating the loan when the error was brought to Wells Fargo’s attention. Thus,
this information appears facially relevant to this case. It provides important context for the events
that led to this lawsuit, even in the absence of a related claim.
In addition to context, the information is directly relevant to First American’s equitable
reinstatement claim. A court has substantial discretion to determine equitable claims. Koch v.
Koch, 903 F.2d 1333, 1336 (10th Cir. 1990). Wells Fargo points to no authority that suggests the
court would abuse that discretion by considering Wells Fargo’s motives. Thus, the court does not
find that Wells Fargo’s motives for non-reinstatement of the loan are irrelevant to this inquiry.
Wells Fargo also makes a number of arguments that the equitable reinstatement claim is
flawed, yet Wells Fargo has not moved for summary judgment on this claim. Wells Fargo has
not convinced the court that this claim is as futile as Wells Fargo suggests. For example, the
Eleventh Circuit case that Wells Fargo cites considered whether a reinstated loan should have
been given priority over a certain tax lien. See In re Haas, 31 F.3d 1081, 1092 (11th Cir. 1994).
Wells Fargo does not suggest a tax lien is at issue here. This case provides little guidance under
the present circumstances. Likewise, the Utah case cited by Wells Fargo denied equitable
reinstatement of a loan where the party requesting reinstatement committed negligence. See First
Nat. Bank of Layton v. Palmer, 362 P.3d 904, 907–08 (Utah Ct. App. 2013). 2 Wells Fargo has
not shown that First American was negligent here. While Wells Fargo alleges it; this allegation
does not make it so. Accordingly, Wells Fargo’s motion for protective order will be denied as it
relates to topic 9 because Wells Fargo has not shown the information sought is irrelevant.
b. Topics 1 and 2
Topics 1 and 2 seek:
Wells Fargo’s communication or provision of any or all of the following
loan numbers to any or all of [Plaintiffs], Kyria Cropper, Kelly Miller, First
American, Shane Herbert, Whitney Olch, and/or anyone purporting to act for or
on behalf of any of them during the period from July 1, 2013 through February
28, 2014: [account numbers related to loans at issue in this case].
Communications during the period from July 1, 2013 through the present
between Wells Fargo and [Plaintiffs] (or anyone purporting to act for them or on
their behalf) concerning First American, the real property located at 5304
Mountain Meadow Lane, Park City, Utah (the “Park City Property”), the real
property located at 20700 Northridge Road, Chatsworth, California (the
“California Property”) and/or any one or more of the loans [at issue in this case].
(See ECF No. 48, Ex. 1.)
Wells Fargo states that First American did not “identify . . . the ‘communications’ that it
seeks to examine under Topics No. 1 and 2.” (ECF No. 48 at 5.) First American argues that this
provides no meaningful basis for Wells Fargo’s request for a protective order on topics 1 and 2.
(ECF No. 52.) Wells Fargo responds in its reply that these topics are “cumulative of the evidence
already produced in this case.” (ECF No. 55 at 4.) Wells Fargo specifically argues the
information is cumulative of Wells Fargo’s prior interrogatory response. (Id.)
Wells Fargo also cites this case to support the proposition that First American lacks standing to
bring an equitable reinstatement claim, but the case does not appear to consider a standing issue.
The court is unpersuaded by Wells Fargo’s arguments. First, as First American correctly
notes, Wells Fargo only made a meaningful argument regarding these two topics in its reply. The
single statement that First American did not identify communications is insufficient to apprise
the parties or the court of the basis of Wells Fargo’s objection. To the extent Wells Fargo
suggests the topics lack the requisite particularity, the court disagrees. The notice provides
specific participants, timeframe, and the subject of communications that First American seeks.
Second, the interrogatory to which Wells Fargo previously responded is not identical to the
deposition topics. Moreover, it is insufficient to show the requests are identical or cumulative;
Wells Fargo must demonstrate the requests are “unreasonably cumulative.” Fed. R. Civ. P.
26(b)(2)(C)(i). Even if the requests were identical, it is not always unreasonable to allow both
interrogatories and a designee deposition regarding the same subject matter. See Salt Lake City
Corp. v. ERM-W., Inc., No. 11-1174, 2014 WL 6386802, at *3 (D. Utah Nov. 14, 2014).
Notwithstanding the above, the court is not insensitive to Wells Fargo’s concerns here.
Topics 1 and 2 are not overly-burdensome on their face; however, the manner and scope of First
American’s inquiry could create problems. First American is entitled to learn Wells Fargo’s
position on these issues and attempt to resolve any apparent discrepancies amongst employee
witnesses who testified about these matters. Nonetheless, given that these employees have
already provided testimony regarding these issues, First American’s inquiry will likely be short
and Wells Fargo’s answers may, in large part, simply reference prior testimony. If, as Wells
Fargo suggests, it has no knowledge of any additional communications, this inquiry will likely be
short. Nonetheless, Wells Fargo should be prepared to explain discrepancies with the prior
witnesses’ testimony. On the other hand, First American should not seek to create discrepancies
by forcing Wells Fargo’s witness to engage in a memory test regarding prior testimony.
c. Topics 4, 5, 6, and 7 are not described with reasonable particularity
Topics 4, 5, 6, and 7 seek:
The allegations set forth in the Bizzaros’ Amended Complaint in the
The allegations set forth in First American’s Answer, Counterclaim and
Third-Party Complaint in the above-captioned action.
The defenses asserted by Wells Fargo in connection with the abovereferenced action.
The documents produced by Wells Fargo in connection with the abovecaptioned action.
Wells Fargo is entitled to a protective order requiring First American to modify these topics.
Under Rule 30, a noticing party must describe topics for a corporate designee’s deposition with
“reasonable particularity.” Fed R. Civ. P. 30(b)(6). “When the notice is overbroad, the
responding party is unable to identify the outer limits of the areas of inquiry noticed, and
designating a representative in compliance with the deposition notice becomes impossible.”
Lipari v. U.S. Bancorp, N.A, No. 07-2146, 2008 WL 4642618, at *5 (D. Kan. Oct. 16, 2008).
Topics 4, 5, 6, and 7 are completely lacking in particularity. The proposed topics appear to
require Wells Fargo to prepare a designee witness to testify about every aspect of nearly all
claims made in this lawsuit and discuss every document Wells Fargo produced. While breadth
might not by itself pose a particularity problem, 3 First American has provided no meaningful
guidance for Wells Fargo to use as it attempts to prepare its designee.
First American faults Wells Fargo for failing “to explain how or why such preparation would
be unduly challenging.” (ECF No. 52.) The court is sympathetic to Wells Fargo’s lack of
specificity. These topics are facially overbroad. Wells Fargo cannot reasonably be expected to
Given the court’s conclusion that these topics are not set forth with reasonable particularity,
the court will not address Wells Fargo’s argument that they are disproportionate under Rule 26.
prepare a designee to discuss every possible question that falls under these broad topics because
these four topics appear to encompass nearly every matter relevant to this case. While ordinarily
the court would be willing to interpret these topics in light of some limiting principle, First
American offers none. Thus, Wells Fargo is excused from preparing a witness on topics 4, 5, 6,
and 7 as currently drafted in the Amended Notice of Rule 30(b)(6) Deposition of Wells Fargo
Bank, NA. (See ECF No. 48, Ex. 1.)
Based on the foregoing, the court:
GRANTS IN PART AND DENIES IN PART Wells Fargo’s “Motion for Protective Order
Limiting Scope of Deposition under Rule 30(b)(6).” (ECF No. 48.) Wells Fargo is excused from
preparing a witness to testify about topics 4, 5, 6, and 7 as presently drafted. The remaining
requests in the motion are denied.
IT IS SO ORDERED.
Dated this 19th day of May, 2016.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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?