Gilchrist et al v. Bank of America N.A. et al

Filing 71

ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND ON PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY, granting in part and denying in part 62 Motion to Compel; denying 67 Motion for Extension of Time to Complete Discovery. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DAVID T. GILCHRIST
LEANNE L. GILCHRIST,

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CASE NO. 14-5062-RJB
ORDER ON PLAINTIFFS’ MOTION
TO COMPEL DISCOVERY AND ON
PLAINTIFFS’ MOTION FOR
EXTENSION OF TIME TO
COMPLETE DISCOVERY

Plaintiffs,
v.
BANK OF AMERICA, N.A.,
Defendant.

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This matter comes before the Court on Plaintiffs’ Motion to Compel Discovery (Dkt. 62)
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and on Plaintiffs’ Motion for an Extension of Time to Complete Discovery (Dkt. 69). The Court
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has reviewed the motions and the remaining file. Because Defendant has responded to Plaintiffs’
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requests and Plaintiffs have not shown good cause, the Court should deny both motions.
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I.

BACKGROUND

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On January 21, 2014, Plaintiffs filed this lawsuit. Dkt. 1. Plaintiffs alleged violations of
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the Fair Debt Collections Practices Act (“FDCPA”), Fair Credit Reporting Act (“FCRA”) and
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the Washington Fair Credit Reporting Act (“WFCRA”); violations of the Consumer Protection
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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 1

1 Act (“CPA”); and violations of the Telephone Consumer Protection Act (“TCPA”). Id.
2 Defendants Bank of America, N.A. (“BANA”), BAC Home Loan Servicing LP, MERS, Inc.,
3 MERSCORP, and Freddie Mac (“BANA Defendants”) filed a Partial Motion to Dismiss (Dkt.
4 21) on April 1, 2014, seeking dismissal of every claim but the TCPA claim. On May 5, 2014,
5 this Court granted the Partial Motion to Dismiss, dismissing every claim but the TCPA claim
6 against BANA. Dkt. 42.
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On July 2, 2014, Plaintiffs submitted to BANA twenty-seven Requests for Production,

8 twenty-one Interrogatories, and fifty-eight Requests for Admissions. Dkt. 62-3. BANA stated in
9 its Opposition to Plaintiffs’ Motion to Compel (Dkt. 65) (“Opposition”) that it responded to
10 Plaintiffs’ July 2, 2014 requests on September 2, 2014, with answers, objections, and 477 pages
11 of documents. Dkt. 65 at p. 3; see also Dkts. 62-4, 62-5, and 62-6. Mr. Lorber, BANA’s attorney,
12 claimed in his Declaration (Dkt. 66) that the produced documents included documents relevant to
13 the TCPA claim, a log of calls placed to Plaintiffs, and histories of all correspondences between
14 BANA and Plaintiffs. Dkt. 66 at p. 1; see also Dkt. 65 at p. 3.
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On October 6, 2014, Plaintiffs sent BANA a letter claiming that BANA’s objections to

16 Plaintiffs’ requests were improper and requesting that BANA respond with proper answers
17 immediately. Dkt. 62-12 at p. 2. BANA responded to Plaintiffs on October14, 2014, objecting
18 that Plaintiffs’ requests, among other things, called for legal conclusions. Dkt. 62-13. The legal
19 conclusions Plaintiff was asking BANA to make, BANA claimed in its Opposition (Dkt. 65),
20 were the questions the case revolved around. Id. (citing, for example, the definition of an
21 “automatic telephone dialing system”). BANA also provided, in response, a copy of the manual
22 for the phone used to call Plaintiffs. Dkt. 62-13. Plaintiffs responded to BANA on October 15,
23 2014, that they disagreed with BANA’s objections and threatened to file a motion to compel
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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 2

1 discovery. Dkt. 62-14. On October 21, 2014, BANA responded to Plaintiffs with explanations of
2 BANA’s objections to Plaintiffs’ requests. Dkt. 62-15. Mr. Lorber, in his Declaration (Dkt. 66),
3 also contended that BANA provided Plaintiff with 498 more pages of documents on October 21,
4 2014. Dkt. 66 at p. 3. On October 23, 2014, Plaintiffs filed this Motion to Compel Discovery
5 (Dkt. 62). BANA responded on November 3, 2014, with its Opposition (Dkt. 65). On November
6 5, 2014, Plaintiffs filed a Motion for Extension of Discovery and Pretrial Dates (Dkt. 67). On
7 November 7, 2014, Plaintiffs filed their Reply in Support of Plaintiffs’ Motion to Compel (Dkt.
8 68). BANA filed its Response to Plaintiffs’ Motion for Extension of Discovery and Pretrial
9 Dates (Dkt. 69) on November 10, 2014. Plaintiffs replied on November 14, 2014 with their
10 “Reply in Support of Plaintiffs’ Motion for Extension of Discovery and Pretrial Dates” (Dkt. 70).
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II.

DISCUSSION

A. Motion to Compel Discovery

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1. Legal Standard

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Federal Rule of Civil Procedure 26(b)(1) provides:

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Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense--including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.

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20 “The court should and ordinarily does interpret ‘relevant’ very broadly to mean matter that is
21 relevant to anything that is or may become an issue in the litigation.” Oppenheimer Fund, Inc. v.
22 Sanders, 437 U.S. 340, 351 n.12 (1978) (quoting 4 J. Moore, Federal Practice ¶ 26.56 [1], p. 26–
23 131, n. 34 (2d ed. 1976)). “At the same time, discovery, like all matters of procedure, has
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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 3

1 ultimate and necessary boundaries. Discovery of matter not ‘reasonably calculated to lead to the
2 discovery of admissible evidence’ is not within the scope of Rule 26(b)(1).” Id., at 351–352.
3 Regarding interrogatories, if the requesting party can determine the answer by business records
4 already available to that party as easily as the responding party could determine the answer, the
5 responding party may simply specify the records to be reviewed with enough specificity so that
6 the requesting party may locate and identify them. Fed. R. Civ. P. 33(d).
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2. Merits

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Plaintiffs’ Motion to Compel Discovery (Dkt. 62) should be denied. Many of Plaintiffs’

9 requests to BANA are not reasonably calculated to lead to the discovery of admissible evidence.
10 For instance, Request for Production No. 20 in which Plaintiff requests insurance policies that
11 could cover a violation of the TCPA. Dkt. 66-1 at p. 75. The requested documents are irrelevant
12 to the remaining claim in this case. The claim remaining in this case is whether BANA violated
13 the TCPA. Dkt. 42 at p. 14. To prove that BANA violated the TCPA, Plaintiffs must prove that
14 “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing
15 system; (3) without the recipient's prior express consent.” Meyer v. Portfolio Recovery
16 Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) cert. denied, 133 S. Ct. 2361, 185 L. Ed.
17 2d 1068 (2013) (citing 47 U.S.C. § 227(b)(1)). Discovery calculated to prove any other claim is
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In the interest of economy, the Court will not discuss here every request that Plaintiffs

20 have submitted to BANA. In summary, BANA has provided Plaintiffs with almost all the
21 documents they requested—over 1000 pages—, and BANA is under a continuing obligation to
22 supplement its responses. The requests that BANA has not provided answers or documents for
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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 4

1 are either irrelevant or require legal conclusions that are at the heart of the claim in this case (for
2 example, whether BANA called Plaintiff using an automatic telephone dialing system).
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The sole Request for Production that has merit that may not have been answered

4 adequately is Request for Production No. 13. Plaintiffs have requested “[a]ll archived recordings
5 of all phone calls made to Plaintiffs’ phone numbers . . . .” Dkt. 66-1 at p. 71. Plaintiffs claimed
6 that three call recordings are missing: “March 20, 2013 at 7:22 PM, March 23, 2014 at 10:52
7 AM, and April 1, 2013 at 8:52 AM. BANA responded that they have “produced recordings of
8 phone calls with Plaintiffs,” id. at p. 72, but the word “all” is notably missing. If BANA has
9 recordings of the three calls Plaintiffs claimed are missing and has not yet provided them to
10 Plaintiffs, BANA must produce them.
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As the Court noted above, the issue remaining in this case is limited. Plaintiffs have made

12 many irrelevant requests that are out of proportion with the scope of the issue remaining in this
13 case, and the requests are bordering on harassment. Plaintiffs are cautioned to restrict their
14 requests to relevant information.
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B. Motion for Extension of Time to Complete Discovery
Plaintiffs’ Motion for Extension of Time to Complete Discovery (Dkt. 67) should be

17 denied. “The pretrial schedule may be modified ‘if it cannot reasonably be met despite the
18 diligence of the party seeking the extension.’ If the party seeking the modification ‘was not
19 diligent, the inquiry should end’ and the motion to modify should not be granted.” Zivkovic v. S.
20 Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citations omitted). Plaintiffs have not been
21 diligent in conducting their discovery. Many of Plaintiffs’ discovery requests to BANA were
22 irrelevant and did not relate to the claim at issue. Dkt. 62-3. BANA has produced over 1000
23 pages of documents in response to Plaintiffs’ requests already. Dkt. 66 at p. 1. The Court is
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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 5

1 sympathetic to Plaintiffs’ parents’ health problems, but whatever additional discovery Plaintiffs
2 need to complete for their single claim, they should be able to complete in the remaining time
3 before the discovery deadline. Plaintiffs’ Motion for an Extension of Time (Dkt. 67) should be
4 denied.
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Accordingly, the Court ORDERS:


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Plaintiffs’ Motion to Compel Discovery (Dkt. 62) is DENIED, except the Motion is
GRANTED as to Request for Production No. 13;

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BANA is ORDERED to produce any archived recordings of calls made to Plaintiffs on
March 20, 2013 at 7:22 PM, March 23, 2014 at 10:52 AM, and April 1, 2013 at 8:52 AM

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if such recordings exist, and if BANA has not already provided these records to

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Plaintiffs; and

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Plaintiffs’ Motion for Extension of Time to Complete Discovery (Dkt. 67) is DENIED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and

14 to any party appearing pro se at said party’s last known address.
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Dated this 18th day of November, 2014.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY AND ON PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME TO COMPLETE
DISCOVERY- 6