Patrick et al v. Teays Valley Trustees, LLC et al

Filing 152

ORDER GRANTING IN PART PLAINTIFFS' MOTION TO COMPEL; DENYING DEFENDANT'S MOTION TO COMPEL; GRANTING PLAINTIFFS' MOTION TO STRIKE granting in part and denying in part 103 MOTION to Compel PHH Mortgage Corporation; denying 121 MOTIO N to Compel Discovery Responses; and granting 124 Motion to Strike. Plaintiffs shall submit within fourteen (14) days of this Order an affidavit of reasonable expenses in relation to their Motion to Compel and Defendants Motion to Compel. Defendant shall have fourteen (14) days to respond. Signed by Magistrate Judge James E. Seibert on 12/12/2013. (cwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RUSSELL PATRICK,
and MONA PATRICK,
Plaintiffs,
v.

Civil Action No. 3:12-cv-39

TEAYS VALLEY TRUSTEES, LLC, et. al.,
Defendants.

ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO COMPEL; DENYING
DEFENDANT’S MOTION TO COMPEL; GRANTING PLAINTIFFS’ MOTION TO
STRIKE

On November 26, 2013, came the above named Plaintiffs, by Aaron C. Amore, Esq., by
telephone, and Defendant PHH Mortgage Corporation (“Defendant”), by R. Terrance Rodgers, Esq.,
by telephone, for an evidentiary hearing and argument on Plaintiffs’ Motion to Compel Discovery
Responses, Plaintiffs’ Motion to Strike Defendant’s Response to Plaintiffs’ Motion to Compel, and
Defendant’s Motion to Compel Discovery Responses. No additional testimony or evidence was
presented at the hearing.
I. INTRODUCTION
A. Background
This case revolves around Defendant’s handling of Plaintiffs’ home mortgage loan account
after Plaintiffs modified their loan through the Home Affordable Mortgage Program (“HAMP”).
Plaintiffs initially filed this action on March 6, 2012, in the Circuit Court of Jefferson County, West
Virginia, alleging invasion of privacy, intentional infliction of emotional distress, and numerous

1

violations of the West Virginia Consumer Credit and Protection Act (“WVCCPA”). On April 27,
2012, the Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
Plaintiffs later amended their complaint to add claims for violations of the Fair Debt Collection
Practice Act (“FDCPA”), tortuous interference with contractual relations, trespass, fraud, and breach
of contract. On March 27, 2013, the Court issued a Memorandum Opinion and Order1 granting in
part Defendant’s Motion to Dismiss as to Plaintiffs’ FDCPA, intentional infliction of emotional
distress, invasion of privacy, and fraud claims. In addition, the Court dismissed several of Plaintiffs’
claims under the WVCCPA. However, the Court denied Defendant’s Motion to Dismiss as to nine
of Plaintiffs’ WVCCPA claims, as well as Plaintiffs’ state-law claims for breach of contract, tortuous
interference with contract, and trespass. After Defendant responded to Plantiffs’ complaint with an
answer, the parties engaged in discovery and several disputes arose.
B.

The Motions
1. Plaintiffs’ Motion to Compel Discovery.
2. Defendant’s Motion to Compel Discovery.
3. Plaintiffs’ Motion to Strike.

C.

Decision
Plaintiffs’ Motion to Compel (Dkt. 103) is GRANTED IN PART and DENIED IN PART,

because the discovery sought is reasonably calculated to lead to the discovery of admissible
evidence, and no valid claims of burden, over-broadness, or privilege have been advanced by
Defendant. The Court does, however, find that all of the requests, except for Request for Production
4, must be limited to the time period of January 1, 2010, to November 9, 2012. Defendant’s Motion

1

Dkt. No. 75.

2

to Compel (Dkt. 121) is DENIED because Defendant failed to make a good faith effort to confer
with Plaintiffs prior to filing the motion. Plaintiffs’ Motion to Strike (Dkt. 124) is GRANTED
because Defendant’s Response violates Local Rule 7.02(b).
II. FACTS
1.

On September 27, 2013, Plaintiffs filed a Motion to Compel Defendant to Fully
Answer Plaintiffs’ First Set of Interrogatories and Requests for Production of
Documents.2

2.

On October 18, 2013, this Court set an evidentiary hearing and argument on
Plaintiff’s Motion for October 25, 2013.

3.

On October 22, 2013, Defendant filed a Motion to Compel Plaintiffs to Fully Answer
Defendant’s First Set of Interrogatories and First Set of Requests for Production of
Documents.3

4.

On October 23, 2013, Defendant filed a Response in Opposition to Plaintiffs’ Motion
to Compel,4 and Plaintiffs filed a Response in Opposition to Defendant’s Motion to
Compel.5

5.

Plaintiffs filed a Motion to Strike Defendant’s Response in Opposition to their
Motion to Compel on October 24, 2013.6

6.

At the conclusion of the evidentiary hearing and argument on Plaintiffs’ Motion to

2

Dkt. No. 103.

3

Dkt. No. 121.

4

Dkt. No. 123.

5

Dkt. No. 123.

6

Dkt. No. 124.

3

Compel held on October 25, 2013, this Court ordered Defendant to file a compilation
of its responses and objections, including all supplemental answers, to Plaintiffs’
First Set of Interrogatories and Requests for Production of Documents. The Court
also ordered Plaintiffs to respond to the compilation with any outstanding objections
to Defendant’s responses.7
7.

On November 1, 2013, Defendant filed a Compilation of all answers, responses, and
objections it made in its initial and first, second, third, and fourth supplemental
responses to Plaintiffs’ First Set of Interrogatories and Requests for Production of
Documents.8

8.

On November 8, 2013, Plaintiffs filed a Response to Defendant’s Compilation.9

9.

This Court held an evidentiary hearing and argument on Plaintiffs’ Motion to
Compel, Defendant’s Motion to Compel, and Plaintiffs’ Motion to Strike on
November 26, 2013.
III. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY

A. Contentions of the Parties
Plaintiffs seek an order compelling Defendant to supplement its responses to Interrogatories
1, 2, 3, 4, 5, 6, 12, 14, 15, 17, 18, 19, 24, 25 and Requests for Production of Documents 1, 3, 4, 5,

7

Dkt. No. 126.

8

Dkt. No. 127. On November 25, 2013, Defendant filed an amended compilation to account for
subsequently served fifth, sixth, and seventh supplemental responses. (Dkt. No. 142).
9

Dkt. No. 129.

4

6, 7.10 Plaintiffs contend that Defendant’s responses to these discovery requests are incomplete and
that its objections are frivolous and without merit. Defendant raises several procedural arguments
in support of its contention that Plaintiffs’ Motion to Compel should be denied.11 First, Defendant
argues that Plaintiffs’ Motion is untimely, and, therefore, pursuant to Local Rule of Civil Procedure
37.02(b), Plaintiffs have waived their right to object to Defendant’s discovery responses. Second,
Defendant contends that even if Plaintiffs’ motion was timely, it must still be denied because
Plaintiffs “cite no authority supporting their right to the discovery they seek” as required by Local
Rule of Civil Procedure 37.02(a)(1). Substantively, Defendant maintains that it fully responded to
Plaintiffs’ requests and that where it did not respond, its objections are valid.
B. Discussion
1. L.R. Civ. P. 37.02 and Its Effect on Plaintiff’s Motion to Compel
Pursuant to Fed. R. Civ. P. 37(a), a party may move for an order to compel discovery or
disclosure from an opposing party where the opposing party fails to respond or where the party’s
response is evasive or incomplete. Local Rule 37.02 states that “[a] motion to compel...is deemed
waived if it is not filed within thirty (30) days after the discovery response or disclosure requirement
sought was due, which date is determined in accordance with a rule or by mutual agreement among
the parties, unless such failure to file the motion was caused by excusable neglect or by some action
of the non-moving party.” L.R. Civ. P. 37.02(b). The Federal Rules of Civil Procedure provide that

10

Plaintiffs contend in their Motion that Requests No. 9, 10, and 11 are also deficient, but at the motion
hearing, Plaintiffs stated that Request No. 7 is broad enough to cover the documents requested in Requests 9, 10, and
11, and withdrew their objections to Defendant’s responses.
11

Although Plaintiffs’ Motion to Strike Defendant’s Response is granted, the Court still considers
Defendant’s arguments because they were presented during oral argument and because the Court ordered Defendant
to file a compilation of all objections.

5

responses to interrogatories and requests for production are due within 30 days of service unless the
parties or the court stipulate to a different due date. Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P.34(b)(2).
However, the Court has discretion to examine the circumstances surrounding an untimely motion
to compel in order “to avoid what may constitute overly ‘technical’ applications of the Rule.” Ayers
v. Continental Cas. Co., 250 F.R.D. 216, 225 (N.D.W.V. 2007).
Here, Plaintiffs served their First Set of Interrogatories and Requests for Production upon
Defendant on May 10, 2013. Plaintiffs allege that on June 6, 2013, four days before responses were
due, Defendant’s counsel requested an extension of the response deadline. On June 7, 2013, the
parties filed a joint stipulation extending the response deadline to June 24, 2013.12 Plaintiffs state
that Defendant requested another extension on June 21, 2013, and, on June 24, 2013, the parties filed
another stipulation further extending Defendant’s response deadline to July 9, 2013.13 According to
Plaintiffs, Defendants asked for a third extension, and, on July 8, 2013, the parties filed a third
stipulation making Defendant’s responses due by July 16, 2013.14 Defendant served its Objections,
Answers and Responses to Plaintiffs’ First Set of Interrogatories and Requests for Production of
Documents upon Plaintiffs on July 16, 2013. Thus, pursuant to the Local Rules, Plaintiffs had until
August 19, 2013, to file a Motion to Compel if they found Defendant’s responses deficient.
On August 7, 2013, Plaintiffs’ counsel sent an email to Defendant’s counsel detailing
numerous alleged deficiencies in Defendant’s responses and requesting that the parties schedule a
teleconference to discuss the deficiencies so as to “avoid the necessity of filing a Motion to

12

Dkt. No. 83.

13

Dkt. No. 84.

14

Dkt. No. 85.

6

Compel.”15 Plaintiffs’ counsel asserts that he followed up with Defendant’s counsel several times
in an attempt to schedule a time to meet and confer to discuss the deficiencies outlined in the August
7 email, but due to scheduling conflicts, he was not able to confer with Defendant’s counsel until
a teleconference held on August 19, 2013, the day a motion to compel was due. During the
teleconference, Plaintiffs’ counsel advised Defendant’s counsel that he would file a Motion to
Compel if Defendant did not supplement its responses by August 30, 2013. Because a Motion to
Compel would be untimely if not filed by August 19, 2013, the parties filed a Joint Stipulation to
Extend Deadline, which extended the deadline for Plaintiffs to file a Motion to Compel to August
30, 2013, because “[t]he parties’ counsel have been unable to adequately meet and confer due to
scheduling conflicts, and need additional time to discuss Plaintiffs’ claimed discovery deficiencies
and to try and resolve these discovery issues without the assistance of this Court.”16
Also on August 19, 2013, Defendant’s counsel sent Plaintiffs’ counsel a letter which states
that he “will endeavor to respond to the points in your letter to me, dated August 7, 2013. As some
points will require more consultation with...[PHH], which I was unable to do because of recent
events, not all points made in your August 7, 2013 letter will be addressed herein, and, even the
points addressed herein, may not be addressed fully.”17 Although much of the letter elaborates on
Defendant’s objections to Plaintiffs’ discovery requests, there are several instances where
Defendant’s counsel states that he is still trying to obtain responsive information. For example, in
discussing Plaintiffs’ objections to Defendant’s answer to Interrogatory 6, Defendant’s counsel

15

Dkt. No. 103, Exhibit C at p. 9.

16

Dkt. No. 87.

17

Dkt. No. 103, Exhibit D.

7

states:
I am attempting to gain an understanding of how any “shared access”
platform which PHH may have used in connection with the referral
to foreclosure works, if such was used, so as to be able to
knowledgeably request information from PHH so that PHH may
provided [sic] responsive information, if any, on whatever “shared
access” platform may have been used, if any, to supplement PHH’s
responses if there is additional responsive information.
Thus, clearly, the parties contemplated that Defendant would be supplementing its responses after
August 19, 2013.
Defendant served its First Supplemental Answers and Responses on August 30, 2013.
Plaintiffs found this supplement to be unsatisfactory, and Defendant’s counsel informed Plaintiffs’
counsel he would supplement again. Thereafter, Defendant filed a second supplement on September
5, 2013. Still dissatisfied, Plaintiffs’ counsel asked for more supplementation, and Defendant
supplemented again on September 9, 2013. Plaintiffs’ state that they again asked Defendants for
more complete answers and Defendant’s counsel informed Plaintiffs’ counsel “that he would be
supplementing and that he had more documents on his desk ready to produce.” However, Defendant
did not file another supplement. Plaintiffs’ counsel sent Defendant’s counsel an email on September
24, 2013, asking if any more documents would be forthcoming, but did not receiving a response.
Plaintiffs finally filed the instant Motion to Compel on September 27, 2013.
Defendant argues that Plaintiffs’ Motion to Compel is untimely because it was filed well
after the August 30th deadline to which the parties stipulated. Defendant further contends that
“Plaintiffs had a clear opportunity to move to compel if they were not satisfied with PHH’s
supplemented discovery objections, answers and responses as they stood when the motion to compel
deadline approached, or could have sought an additional extension of the clearly stipulated deadline

8

of [August 30].” However, to the extent that Defendant is asserting that its responses were already
supplemented when the August 30th motion to compel deadline approached, this argument misstates
the facts almost to the point of being disingenuous. Defendant did not supplement its initial
responses until August 30, 2013. Plaintiffs could have filed a Motion to Compel at any time after
attempting to confer with Defendant regarding its deficient discovery responses. However, relying
on Defendant’s assurances that it would produce additional discovery, Plaintiffs agreed to wait for
further supplementation in an effort to resolve the issue without court intervention. Had Defendant
failed to supplement by August 30 as promised, and Plaintiffs waited until September 27, 2013, to
file this Motion to Compel, Defendant’s untimeliness argument would be appropriate. However,
Defendant did supplement its responses, on the last possible day before Plaintiffs’ deadline to file
a motion to compel, and Plaintiffs found the supplementation to be unsatisfactory. Plaintiffs
continued to attempt to resolve the issue informally before requesting court intervention, and
Defendant continued to assure Plaintiffs that additional information would be produced.
Based on the foregoing, the Court finds that any delay in filing the Motion to Compel was
the direct result of Defendant’s repeated assurances that further responses would be forthcoming.
Moreover, Plaintiffs went out of their way to avoid bringing this matter to the Court, which is
exactly what the Rules require. See Ayers v. Continental Cas. Co., 250 F.R.D. 216, 225 (N.D.W.V.
2007) (finding that a delay is excusable when the facts show an effort to avoid bringing a motion
to compel to the Court because “counsel should not be faulted for complying with the Rules”).
Accordingly, Plaintiffs’ delay is excusable and their Motion to Compel is not untimely. See, e.g.,
Kidwiler v. Progressive Paloverde Insurance Co., 192 F.R.D. 193 (N.D. W. Va. 2000) (holding that
a motion to compel is not untimely when the delay in bringing it is the result of assurances by the

9

non-moving party that a response would be forthcoming).
Local Rule 37.02 also mandates that “[a] motion to compel...must be accompanied by a
statement setting forth...[t]he specific rule, statute or case authority supporting the movant’s position
as to each discovery request or disclosure requirement.” Defendant contends that Plaintiffs’ Motion
violates this rule because it “cite[s] no authority supporting their right to the discovery they seek.”
The Court disagrees. Plaintiffs filed with their motion several exhibits containing all of the
information required by the Local Rule. Plaintiffs’ exhibit C to which Plaintiffs refer in their Motion,
consists of the email Plaintiffs’ counsel sent to Defendant’s counsel outlining Plaintiffs’ position as
to each contested discovery response. The Court finds that this email is sufficient to meet the
requirements of Local Rule 37.02.
2. Scope of Discoverable Information and Appropriateness of Defendant’s General, Boilerplate
Objections to Plaintiffs’ Discovery Requests
In general, parties in a civil action enjoy broad discovery, and “the discovery rules are given
‘a broad and liberal treatment.’” Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal
Co. Inc., 967 F.2d 980, 983 (4th Cir.1992) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947).
If a party believes that a discovery request exceeds the broad scope of allowable discovery, it may
object, but “the party resisting discovery has the burden of clarifying, explaining and supporting its
objections.” Herbalife Int’l, Inc. v. St. Paul Fire & Marine Ins.Co., No. 05-CV-41, 2006 U.S. Dist.
LEXIS 68744, at *1, *17 (N.D.W.Va. Sept. 21, 2006). “The mere recitation of the familiar litany
that an interrogatory or document production request is overly broad, burdensome, oppressive and
irrelevant will not suffice.” PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D.W.Va. 2004).
These boilerplate objections to discovery requests are highly disfavored in the Fourth Circuit. See

10

e.g., Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W.Va. 2010) (“[G]eneral objections to discovery,
without more, do not satisfy the burden of the responding party . . . because they cannot be applied
with sufficient specificity to enable courts to evaluate their merits.”); Mills v. East Gulf Coast
Preparation Co., LLC, 259 F.R.D. 118, 132 (S.D.W.V. 2009) (“[B]oilerplate objections
regurgitating words and phrases from Rule 26 are completely unacceptable.”); Mancia v. Mayflower
Textile Svcs. Co., 253 F.R.D. 354 (D. Md. 2008) (courts disapprove of a general objection asserted
“to the extent” that it applies). “Failure to state objections specifically in conformity with the Rules
will be regarded as a waiver of those objections.” Mills, 259 F.R.D. at 132.
Thus, while it is not per se unreasonable for a party to object on the basis that a request is
overly broad, burdensome, or seeks irrelevant information, the objecting party has an obligation to
show specifically why responding to the request would create a burden or how the request is overly
broad in relation to the claims and defenses presented in the litigation. Here, Defendant prefaces its
responses with a litany of general, boilerplate objections “to the extent” they apply to Plaintiffs’
discovery requests. Defendant then incorporates those objections into its responses. In many
instances, Defendant merely recites these boilerplate objections without any particularized showing
of how they apply to the individual interrogatory or request for production to which it is objecting.
Where this is the case, the Court will strike the objections from Defendant’s responses.
3. Relevancy of the Information Sought
Defendant also objects to many of Plaintiffs’ discovery requests as seeking irrelevant
information. However, Defendant’s arguments take too narrow a view of relevancy in the discovery
context. Unless limited by court order, the scope of discovery is governed by Federal Rule of Civil
Procedure 26(b)(1) which states “[p]arties may obtain discovery regarding any nonprivileged matter

11

that is relevant to any party's claim or defense.” Fed.R.Civ.P. 26(b)(1). In the discovery context,
“[r]elevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Id. While Defendant is correct that the
2000 amendments to Rule 26 narrowed the scope of permissible discovery from any matter relevant
to the subject matter of the action to only those matters relevant to the claims and defenses asserted
in the pleadings, “[t]here is no indication that the 2000 amendment to Rule 26's definition of
relevance for discovery purposes marks a substantial departure from the traditional liberal
construction of the term, which is designed to assure access to the information necessary for the
achievement of justice and fair trials.” 6 James Wm. Moore, et al., Moore's Federal Practice §
26.41[3][c] (3d ed. 2004) (emphasis in original). “All that the 2000 Amendment implies is that ‘the
fact must be germane to a claim or defense alleged in the pleading for information concerning it to
be a proper subject of discovery.’”In re PE Corp. Securities Litigation, 221 F.R.D. 20, 24 (D. Conn.
2003) (quoting Moore's Federal Practice § 26.41[6][c] (3d ed.2004)); see also Thompson v. Dep't
of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001) (“[C]ounsel should be forewarned
against taking an overly rigid view of the narrowed scope of discovery. While the pleadings will be
important, it would be a mistake to argue that no fact may be discovered unless it directly correlates
with a factual allegation in the complaint or answer.”).
4. Substantive Analysis
Plaintiffs’ discovery requests fall into four broad categories of information: (1) Defendant’s
communications with Plaintiffs; (2) Defendant’s communications with third parties; (3) Defendant’s
policies and processes; and (4) Plaintiffs’ account file.
a. Information Regarding Defendant’s Communications with Plaintiffs

12

Interrogatories 1, 2, and 17 and Requests for Production 1, 5, and 6 seek information and
records regarding Defendant’s communications with Plaintiffs.
Interrogatory 1: Please state the names, addresses, job titles of all
employees, past and present, supervisory and non-supervisory, who
communicated with the Plaintiffs, either directly or indirectly, from
January 1, 2010 to present date.
Interrogatory 2: State the names and addresses of all supervisory
personnel who controlled the employees who communicated with the
Plaintiff, either directly or indirectly, from January 1, 2010 to present
date.

Defendant objects that these requests are vague and ambiguous, overly broad, and seek
irrelevant information. Without waiving any of its objections, Defendant provided Plaintiffs with
the names of 55 individuals who may have communicated with them. However, Defendant only
provides job titles for three of the employees it identified, and refuses to provide home addresses
for any of the employees, citing privacy concerns. Defendant does not explain how or why these
requests are overly broad, so the Court strikes that objection as boilerplate.
Defendant contends that these interrogatories are vague and ambiguous in that they do not
define the terms “communicate” and “indirectly.” “The party objecting to discovery as vague or
ambiguous has the burden of showing such vagueness or ambiguity. A party responding to discovery
requests ‘should exercise reason and common sense to attribute ordinary definitions to terms and
phrases utilized in interrogatories....If necessary to clarify its answers, the responding party may
include any reasonable definition of the term or phrase at issue.’” Deakins v. Pack, 2012 WL
242859, at *12 (S.D.W.V. Jan. 25, 2012) (quoting McCoo v. Denny's Inc., 192 F.R.D. 675, 694
(D.Kan.2000)) (internal citations omitted). Defendant has not carried its burden to show that these
terms are vague and ambiguous. Here, Plaintiffs explicitly define the term communication as “any
13

written letter, e-mail, facsimile, and/or oral communication.” In addition, when taken in context with
the rest of the interrogatory, it should be apparent to Defendant that the term “indirectly” refers to
communications addressed to Plaintiffs but not delivered directly. Accordingly, this objection is
overruled.
As to relevance, the Court finds that information about Defendant’s communications with
Plaintiffs is clearly relevant. Defendant’s communications with Plaintiffs form the basis of several
of their claims. In their Complaint, Plaintiffs allege that Defendant employed “threats or coercion
in an attempt to collect its debt in violation of West Virginia Code §46A-2-124” by continuing to
“seek collection of past due amounts that were no longer due.” Plaintiffs also allege that Defendant
sent “threatening letters misrepresenting the debt and claiming a default when none existed” and
“employ[ed] fraudulent and/or misleading representations in an attempt to collect its debt.”
Additionally, Plaintiffs allege that Defendant “was informed by the Plaintiffs that they were
represented by counsel, provided the name and telephone number of counsel, and subsequently
communicated with the Plaintiffs when it knew or should have known they were represented by
counsel in violation of West Virginia Code §46A-2-128(e).” Moreover, a hotly contested factual
issue in this case concerns whether Plaintiffs’ loan modification took effect in 2009 or 2010.
Defendant contends that the effective date of Plaintiffs’ modification was October 1, 2009. However,
Plaintiffs allege that the original loan modification documents, signed by them in 2009, were later
replaced with corrected documents, which were not executed until December of 2010. Thus,
Plaintiffs contend that the 2010 agreement “effectively modified their mortgage note and effectively
brought their note current and their loan was no longer deemed in default.” Plaintiffs base this
contention, in part, on conversations they had with Defendant through its employees.

14

Defendant’s objections to providing information about its communications are without merit.
Defendant argues that “there can be several types of communications, such as the forwarding of tax
documents, that have no relevancy to any of the claims asserted herein.” The Court disagrees.
Because the communications between Plaintiffs and Defendant are so central to the claims of this
case, the Court finds that all communications, no matter the type, are likely to lead to the discovery
of admissible evidence. Defendant also contends that information about the identities of the
customer service and collection agents who communicated directly with Plaintiffs is not relevant
because “there has been no showing that any employees who may have communicated directly with
Plaintiffs will have any knowledge about or remembrance of such communication given the nature
of their jobs and the time that has passed, or that any of them would be able to provide information
from personal knowledge” and without such personal knowledge, any testimony from Defendant’s
employees would be inadmissible at trial. Putting aside the question of how Plaintiffs could possibly
make such a showing without being provided a complete list of employees who communicated
directly with them, no such threshold showing is required for information to be discoverable. Rule
26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense-including ... the identity...of persons who know of any
discoverable matter.” Fed.R.Civ.P. 26(b)(1) (emphasis added). Moreover, as noted above,
“[r]elevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Each and every
employee who communicated with Plaintiffs is likely to have information regarding those
communications. Therefore, their identities are discoverable. However, the Court agrees with
Defendant that information about communications occurring after November 9, 2012, the date of

15

the Third Amended Complaint, are outside the scope of discovery in this case.
Defendant’s privacy objections also lack merit. Rule 26(b)(1) provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or
defense-including ... the identity and location of persons who know of any discoverable matter.”
Fed.R.Civ.P. 26(b)(1) (emphasis added). Defendant takes the position that the disclosure of home
addresses is only required for the purpose of conducting background checks of potential trial
witnesses disclosed under Rule 26(a)(1). However, numerous courts have interpreted Rule 26(b)(1)
as requiring the disclosure of home addresses. See, e.g. U.S. E.E.O.C. v. McCormick & Schmick’s
Seafood Restaurants, 2012 WL 2577795 (D.Md. July 2, 2012); Bowman v. Green Tree Servicing,
Inc., 3:12-CV-31, 2012 WL 4849718 (N.D.W. Va. Oct. 11, 2012); Fausto v. Credigy Services Corp.,
251 F.R.D. 427, 431 (N.D.Ca. 2008). Defendant also argues that “[i]t is the clear and unambiguous
holding in this federal circuit that there is a strong public policy against disclosing personnel files
and information in them, such as home addresses.” However, the cases Defendant cites in support
of this proposition all involve public disclosure of employee information under the Freedom of
Information Act or requests for the complete personnel files of employees. The discovery requests
here are much more limited in scope and purpose. The Court finds that Plaintiffs are entitled to home
addresses of the employees listed in response to these interrogatories.
Plaintiffs Motion is GRANTED with respect to Interrogatories 1 and 2. Defendant is ordered
to fully respond to Interrogatories 1 and 2 by providing the names, job titles, and home addresses
of ALL employees who communicated with Plaintiffs, or supervised employees who communicated
with Plaintiffs, from January 1, 2010 to the date of Plaintiffs’ Third Amended Complaint.
Interrogatory No. 17: Please identify who made collection calls on
behalf of PHH on the Plaintiffs’ account from January 1, 2010 to the
16

present. Please specify the name of the person, the entity for whom
they are employed, where they are employed, the telephone number
they were using. Include calls that are routed to a collection agent
from any automated dialer system so employed to dial the Plaintiffs’
telephone number.
Defendant objects to Interrogatory 17 for the same reasons that it objected to Interrogatory
1. The Court overrules those objections for the same reasons it overruled Defendant’s objections to
Interrogatory 1. Defendant also contends that this request is burdensome, but does not explain how
responding to the request would create a burden. Accordingly, the Court strikes this objection.
Plaintiffs’ Motion regarding Interrogatory No. 17 is GRANTED.
Request for Production 1: All records of Defendant’s
communications (including but not limited to computer logs and per
the Instructions/Definitions above, to include communications to and
from PHH and Plaintiffs) with the Plaintiffs from January 1, 2010 to
the present date.
Defendant contends that it produced all the documents it has that are responsive to this
request. Plaintiffs contend that Defendant has not fully responded to this request because Defendant
produced no escrow analysis documents, interest notices, account statements, or insurance and tax
documents. Plaintiffs also assert that Defendant only provided documents up to May of 2012 even
though the complaint alleges facts occurring later.
In general, the Court “cannot compel a party to produce documents based solely on opposing
speculation and belief that responsive documents exist and that the producing party is withholding
them.” Susko v. City of Weirton, 2011 WL 98557 at *5 (N.D.W.V. January 12, 2011). Here,
however, Plaintiffs have good reason to suspect that Defendant is withholding responsive
documents. In an email to Plaintiffs’ counsel, counsel for Defendant states:
In your objection to PHH’s response, you mention the lack of certain
documents such as escrow statements, insurance and tax documents,
17

interest notices etc. You also specifically mention a “performance
payment” which PHH received on the one year anniversary of the
HAMP loan due to on time payments. I will request PHH supplement
with escrow statements, insurance documents, and interest notices
which reflect communications PHH had with Plaintiffs to the extent
they are discoverable with respect to the claims Plaintiffs have
asserted. However, I do not read the Third Amended Complaint as
making any claim regarding tax payments.
(emphasis added). By stating to Plaintiffs that it will produce all documents it determines to be
relevant, Defendant’s response “hides the ball” by leaving Plaintiffs “wondering...what documents
are being withheld.” Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190 (D.D.C. 1998);
see also Kinetic Concepts, Inc. v. ConvaTec, Inc., 268 F.R.D. 226, 248 (M.D.N.C. 2010) (“By
appending the adjective “relevant” as a qualifier to their otherwise sweeping declaration of
compliance with Defendants' requests and by reiterating that they produced documents “subject to”
certain objections, Plaintiffs' foregoing response confuses more than it clarifies.”). As discussed
above, all communications between Defendant and Plaintiffs are highly relevant to this case and
must be produced. Defendant cannot pick and choose which documents it deems discoverable.
Accordingly, Plaintiffs Motion is GRANTED with respect to Request for Production No. 1.
Defendant is ordered to produce ALL records of ALL communications it had with Plaintiffs from
January 1, 2010 to November 9, 2012, the date of the Third Amended Complaint.
Request for Production 5: If not already provided in response to this
Request for Production of Documents, please provide a copy of all
documents referred to or used to answer these Interrogatories. If
claiming that said documents are proprietary and/or privilege, please
provide a confidentiality agreement/protective order for release of
said information.
Defendant objects that this request seeks irrelevant information because by “asking for
documents ‘referred to,’ [it] is not limited to documents containing information used in answering

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Plaintiffs’ Interrogatories and, as phrased, would include all documents looked at, even if such
documents were discarded because they did not contain responsive information.” Defendant also
objects because the request may be construed as including documents protected by the attorneyclient privilege or the work-product doctrine, but Defendant provides no privilege log. Defendant
produced documents responsive to this request; however, Plaintiffs contend that Defendant did not
produce the employee codes necessary to determine the names of the employees listed in the call
logs. The Court finds that Defendant’s objections are impermissible boilerplate objections. Plaintiffs
Motion with respect to Request for Production 5 is GRANTED as framed.
Request for Production 6: Produce any and all
records/communications/call logs of the automatic dialing systems
that PHH employed in the attempt to collect on the Plaintiffs’
account. Please include and produce any chart(s) with codes that may
be necessary to review the records/call logs as well as the full debt
collectors names that are not readily apparent from the logs. If
information is redacted from this production please provide details as
to why information is being redacted in your privilege log.
Defendant objects to producing any responsive documents for communications prior to
January 2009 as being overly broad and not reasonably calculated to lead to the discovery of
admissible evidence. Plaintiffs do not explain why information about Defendant’s debt collecting
activity prior to 2009 is relevant to their claims. Because all of Plaintiffs’ claims involving
Defendant’s debt collecting activities are limited to events occurring after January 1, 2009, the Court
agrees that this request should be limited in that respect. Accordingly, the Court GRANTS IN
PART Plaintiffs’ Motion with respect to Request for Production 6. Defendant is ordered to respond
to the request by producing all responsive documents from January 1, 2009 to November 9, 2012,
the date of the Third Amended Complaint.
b. Information Regarding Defendant’s Communications with Third Parties
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Interrogatories 6, 24, and 25, and Requests for Production 3 and 7 seek information and
records regarding Defendant’s communications with third parties.
Interrogatory 6: Did you communicate with a person(s) that was not
the Plaintiffs regarding their account from January 1, 2010 to present
date If so, please provide the following information:
a)
Name and address of each person(s);
b)
List phone numbers called if communication(s) was
via telephone along with the times and dates;
c)
Substance of communication(s);
d)
How many times you communicated with said
person(s) that was not the Plaintiffs; and
e)
State the method of communication (e.g. written,
verbal)
Defendant contends that “Plaintiffs have asserted no claims from which communications
with third parties would be relevant or reasonably calculated to lead to the discovery of admissible
evidence with the sole exception of the claims centering around their allegations PHH wrongfully
cancelled their homeowners’ insurance policy in communications to USAA.” Thus, Defendant only
produced its communications with USAA Insurance Company in response to this request.
The Court finds that all communications with all third parties regarding Plaintiffs’ mortgage
account are relevant and must be disclosed. Plaintiffs allege that Defendant violated West Virginia
Code §46A-2-124 by employing threats or coercion in attempting to collect its debt. One of the ways
in which a debt collector can violate that section is by making false accusations “to another person,
including any credit reporting agency, that a consumer is willfully refusing to pay a just debt, or the
threat to make false accusations.” Additionally, several of Plaintiffs’ claims revolve around whether
Defendant knew that the foreclosure sale of Plaintiffs’ house occurred in error and intentionally
provided false information to USAA Insurance. Thus, any communications with third parties during
the applicable time period is likely to lead to the discovery of admissible evidence as to Defendant’s

20

knowledge about the foreclosure sale. Moreover, in Count VII of their Complaint, Plaintiffs allege
that Defendant “on multiple occasions from February 2011 to the present, did intentionally direct
agents to unlawfully trespass on the residential property of the Plaintiffs in order to carry out debt
collection activities.” Therefore, information about Defendant’s communications with third parties
may also lead to the discovery of evidence regarding Plaintiffs’ trespass claim.
Accordingly, Plaintiffs’ Motion with respect to Interrogatory No. 6 is GRANTED.
Defendant is ordered to provide the information requested by the interrogatory from January 1, 2010
to the date of the Third Amended Complaint. Further, if Defendant withholds information based on
privilege, Defendant is ordered to produce a privilege log.
Interrogatory 24: Please describe each and every communication
and/or transfer of information to and from PHH with Teays Valley
Trustee regarding the Plaintiffs’ account from January 1, 2010 to the
present.
Interrogatory 25: Please describe each and every communication
and/or transfer of information to and from PHH with Morris
Hardwick & Schneider regarding the Plaintiffs’ account from January
1, 2010 to the present.
Defendant contends that its communications with Teays Valley and Morris Hardwick &
Schneider are only relevant to Plaintiffs’ unauthorized practice of law and fraud claims both of
which were dismissed by Memorandum Opinion and Order on March 27, 2013. As discussed above,
ALL communications regarding Plaintiffs’ account with ALL third parties from January 1, 2010 to
the date of the Third Amended Complaint is relevant to Plaintiffs’ claims. Accordingly, Plaintiffs’
Motion with respect to Interrogatories 24 and 25 is GRANTED. Defendant is ordered to provide
the information requested from January 1, 2010 to the date of the Third Amended Complaint.
Further, if Defendant withholds information based on privilege, Defendant is ordered to produce a

21

privilege log.
Request for Production 3: All communications sent to any other
person or business (including Teays Valley Trustees, LLC and Morris
Hardwick Schneider, PC) which concerned the Plaintiffs from
January 1, 2010 to present date. Please include credit reporting made
to the credit reporting agencies with respect to the Plaintiff’s [sic]
account.
Defendant raises the same objections that it raised to Interrogatories 6, 24, and 25. Defendant
further contends reports to credit agencies are not relevant because “[n]owhere is there any pending
claim about reports to credit reporting agencies.” However, facts do not have to directly correlate
with a factual allegation in the complaint to be discoverable; they just have to be germane to the
claims. Clearly, Defendant’s reports to credit agencies are germane to Plaintiffs’ claims that
Defendant knew Plaintiffs were not in default. Additionally, Plaintiffs assert that there are
contractors listed in email chains Defendant produced, yet Plaintiffs have not been provided with
those emails. Plaintiffs also note that there are several data entries referencing someone named Joan
Hayes from LOGS, LLC who reviewed Plaintiffs account and removed the hold on the account
thereby allowing the foreclosure process to go forward, yet Plaintiffs have been provided no records
of communications with her or LOGS, LLC. All of these communications are unquestionably
relevant to the instant dispute. As discussed above, the Court finds that ALL communications with
ALL third parties about Plaintiffs’ account are relevant to Plaintiffs’ claims and must be produced.
Plaintiffs’ Motion with respect to Request for Production 3 is GRANTED. Defendant must produce
all records of its communications regarding Plaintiffs account with all third parties from January
1, 2010 to the date of the Third Amended Complaint.
Request for Production 7: Produce any and all documents in
possession of any third party collection and/or independent contractor
(including Teays Valley Trustess, LLC and Morris Hardwick
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Schneider, PC) to which this Defendant has access to relating to the
Plaintiffs’ account from January 1, 2010 to present date.
Defendant contends that “it is obligated only to produce documents in its possession,
custody, or control, meaning documents to which it has a legal right. No rule requires the production
of documents to which a party has ‘access,’ whatever is meant by that.” Defendant also objects that
no third party documents are relevant other than USAA documents. Additionally, Defendant argues
that Teays Valley and Morris Hardwich Schneider were both named defendants in this action, “and
Plaintiffs had every opportunity to obtain the requested documents through discovery, making the
burden of obtaining the documents equal.”
The Court agrees that Defendant is only obligated to produce documents in its possession,
custody, or control. Thus, to the extent there are documents responsive to this request in Defendant’s
possession, custody, or control, Defendant must produce them. As discussed above, all
communications with all third parties relating to Plaintiffs’ account are relevant. Defendant’s
objection that Plaintiffs “had every opportunity to obtain the requested documents” also lacks merit.
See Alberts v. Wheeling Jesuit University, 2010 WL 1539852 at *2 (N.D.W.Va. April 19, 2010)
(“The fact that the information sought is already known to the interrogator is not a valid ground for
objection to the interrogatories. Interrogatories are not limited to facts which are exclusively or
peculiarly within the knowledge of the interrogated party. The fact that the information sought is
equally available to the interrogator, or is a matter of public record, does not render the
interrogatories objectionable.”) (internal citations omitted). Accordingly, Plaintiffs Motion with
respect to Request for Production 7 is GRANTED. Defendant is ordered to produce all responsive
documents in its possession, custody, or control.
c. Defendant’s Internal Policies and Processes
23

Interrogatories 3, 3, 5, 12, 14, 15, 18, and 19 seek information regarding Defendant’s internal
policies and processes.
Interrogatory 3: What policies existed within PHH from January 1,
2010 to present date regarding telephonic, written, or other
communication with a consumer who is in default? Specifically
describe in detail who is responsible for communications with the
consumer, by what means they communicate with the consumer and
how many time per day PHH and/or its representatives can
communicate directly with consumer who is in default.
Interrogatory 4: What policies existed within PHH from January 1,
2010 to present date to investigate claims by a consumer, that PHH
has deemed to be in default, that he/she is not in default but has met
his/her obligations under the note and/or deed of trust or a loan
modification and/or trial loan modification. Please specify the
procedures employed to investigate such a consumer to confirm or
dispel the claim that no default exists.
Interrogatory 5: What policies existed within PHH from January 1,
2010 to present date regarding telephonic, written, or other
communication with a consumer who has informed you that he/she
is represented by counsel? Explain in detail if PHH and/or its
representatives can continue to communicate directly with consumer,
etc.
Defendant objects to these interrogatories on the grounds that the information sought is
irrelevant, unduly burdensome, overly broad, and confidential business information. Plaintiffs
contend that Defendant’s internal policies are relevant to their WVCCPA claims because Defendant
asserted the defense of bona fide error.
As an initial matter, Defendant does not explain how responding to these requests would
result in an undue burden, nor does Defendant explain how the requests are overly broad in relation
to the issues in this litigation. Accordingly, these objections are impermissible boilerplate objections,
and the Court will disregard them. Defendant also objects that “[s]uch policies are confidential
business documents.” Defendant is free to seek a protective order to protect its proprietary
24

information, but this is not a valid reason to withhold production. See Susko v. City of Weirton, 2011
WL 98557 at *5 (N.D.W.V. January 12, 2011) (“Although information is not shielded from
discovery on the sole basis that the information is confidential, a party may request the court to enter
a protective order pursuant to Fed.R.Civ.P. 26(c) as a means to protect such confidential
information. To obtain a protective order, the party resisting discovery must establish that the
information sought is covered by Fed.R.Civ.P. 26(c) and that it will be harmed by disclosure.”).
The heart of the dispute over these interrogatories centers on relevance. Defendant contends
that information about its internal policies and procedures is not relevant because “[a]ll of Plaintiffs’
claims in this civil action center around whether or not PHH did or did not do certain acts,” and “the
existence or non-existence of such policies would not make it more or less likely that PHH engaged
in the conduct, or failed to undertake certain conduct.” As noted above, information is discoverable
when it is relevant not just a party’s claims, but also to a party’s defenses. Here, several of Plaintiffs’
WVCCPA claims involve actions Defendant allegedly took in attempting to collect a debt.
Specifically, Plaintiffs allege that Defendant (1) employed threats or coercion in an attempt to collect
its debt in violation of West Virginia Code § 46A-2-124; (2) misrepresented the amount of the
obligation due and employed fraudulent representations in an attempt to collect its debt in violation
of West Virginia Code § 46A-2-127; and (3) continued to communicate directly with Plaintiffs even
after they were represented by counsel in violation of West Virginia Code § 46A-2-128.
Although Defendant is correct that these claims do not involve Defendant’s policies and
procedures or lack thereof, Defendant’s affirmative defense of bona fide error clearly does. Pursuant
to West Virginia Code § 46A-5-101(8), a creditor faced with allegations that its debt collection
practices violate the WVCCPA may assert a statutory “bona fide error defense” by arguing that its

25

actions were “the result of a bona fide error of fact notwithstanding the maintenance of procedures
reasonably adapted to avoid any such violation or error.” W. Va. Code § 46A-5-101(8); see also
Stover v. Fingerhut Direct Marketing, Inc., 2010 WL 1507182 at *4 (S.D.W.V. March 19, 2010).
(“The ‘maintenance of procedures reasonably adapted to avoid any such violation or error’ discussed
in § 46A-5-101(8) refers to the adaption of a creditor's debt collection procedures to avoid violating
the requirements of the WVCCPA.”). As discussed above in relation to information about
Defendant’s communications with Plaintiffs, Defendant’s employees’ contact with Plaintiffs forms
the basis of several of Plaintiffs’ WVCCPA claims. Thus, Defendant’s policies governing that
contact form the basis of its bona error defense. Evidence that Defendant’s debt collection
procedures are designed to avoid the violations of the WVCCPA for which they are accused can be
used by Defendant to avoid liability. Similarly, evidence that Defendant’s procedures were
substandard or non-existent can be used by Plaintiffs to counter the bona fide error defense. See
Clements v. HSBC Auto Finance, Inc., 2010 WL 4281697 at *12 (S.D.W.V. October 19, 2010)
(granting summary judgment on the issue of Defendant’s bona fide error defense and finding it not
applicable because “none of the measures recited by Defendant...demonstrate that its procedures
were reasonably adapted to avoid the specific error at issue in this case”). Thus, by pleading the
defense of bona fide error in response to Plaintffs’ WVCCPA claims, Defendant placed its internal
debt collection policies squarely at issue, and its assertions to the contrary lack merit. Accordingly,
Plaintiffs’ Motion is GRANTED with respect to Interrogatories 3, 4, & 5. Defendant is ordered to
produce policies responsive to this request or state that it has none.
Interrogatory 12: Please describe the process by which PHH offered
a trial loan modification and loan modification to the Plaintiffs, how
such application was received, what process or procedure was used
to analyze if said loan modification would be accepted and then the
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procedure by which the loan modification was completed and
executed by both parties and then recorded.
Although Defendant provided an answer to this interrogatory, Plaintiffs contend that the
answer is incomplete because it fails to describe the process by which the modification is analyzed
and the procedure by which the modification is executed and recorded. The Court agrees that
Defendant’s answer is incomplete. For example, Plaintiffs asked how their loan modification
application was analyzed by Defendant, and Defendant merely states “Plaintiffs were evaluated for
a HAMP mortgage loan modification.” Moreover, Defendant does not even attempt to describe the
process by which the finalized modification was executed and recorded; it merely states “[o]nce
PHH received the signed corrected 2009 HAMP Agreement in December 2010, it was signed by
PHH.” The Court GRANTS Plaintiffs’ Motion with regard to Interrogatory No. 12.
Interrogatory 14: Please describe the computer system used by PHH
to manage the Plaintiffs’ mortgage accounts, the receipt of payments,
calculations of escrow, generation of monthly or periodic statements
as well as the amortization of the loan. Please state the system used,
who is responsible for the supervision of the system, maintenance and
updating of the system. Please state who has access to this system and
what if any limitations each person has with respect to changing,
altering, adding or deleting information from the system.
Defendant flatly refuses to answer this interrogatory on the grounds that (1) it seeks
confidential business information; (2) it is overly broad; (3) it would be burdensome to answer; and
(4) it seeks irrelevant information. Defendant does not explain how the request is overly broad or
why the request would be burdensome to answer, so these objections are impermissible, boilerplate
objections as discussed above. Further, as previously noted, Defendant is free to seek a protective
order regarding its confidential business information, however Defendant must still answer the
interrogatory.

27

Furthermore, information about Defendant’s computer system is relevant. As discussed
above, by asserting a bona fide error defense, Defendant placed its internal systems and process at
issue to the extent they relate to Plaintiffs’ WVCCPA claims. Information about the system used by
Defendant to manage Plaintiffs’ account clearly relates to several of Plaintiffs’ WVCCPA claims,
such as their allegations that Defendant failed to provide them with monthly account statements and
failed to properly apply several mortgage payments to their account. Interestingly, Defendant does
not actually dispute that information about its software system is relevant to Plaintiffs’ claims.
Instead, Defendant contends that the term “computer system” refers solely to computer hardware,
which is irrelevant to Plaintiffs’ claims. In the letter Defendant’s counsel sent to Plaintiffs’ counsel
elaborating on Defendant’s objections to Plaintiffs’ discovery requests, Defendant’s counsel further
states:
In your objection, you appear to believe Plaintiffs asked for
information about the software or programs PHH uses. However, no
reference is made in Interrogatory No. 14 to software or computer
programs. PHH is not obligated to guess what Plaintiffs likely meant
and then answer an interrogatory Plaintiffs did not ask.
The Court finds that Defendant’s response is evasive almost to the point of being
gamesmanship. Plaintiffs prefaced their discovery request with a list of definitions, one of which
defines the term “system” as “any computer, computer program and/or computer software which is
capable of receiving data entries and processing data.” Moreover, the interrogatory itself so clearly
indicates the information Plaintiffs are seeking that Defendant’s contentions to the contrary are
almost absurd. Accordingly, Plaintiffs’ Motion to Compel is GRANTED with regard to
Interrogatory 14. Defendant shall fully answer this interrogatory by providing information about the

28

computer system18 it used to manage Plaintiffs’ mortgage account.
Interrogatory 15: Please describe the process by which Plaintiffs’
loan was approved for a loan modification was changed, altered or
modified in PHH’s mortgage servicing system to reflect the changed,
altered or new terms that are provided for in a mortgage loan which
has been modified. Please identify who is responsible for making the
necessary changes to the system to reflect the terms of the loan
modification.
Defendant objects that the request is confusing, ambiguous, and seeks irrelevant information.
Defendant contends that it “is not obligated to guess or draw any assumptions about an interrogatory
which does not make sense as worded.” The Court disagrees. As noted above, “[a] party responding
to discovery requests ‘should exercise reason and common sense to attribute ordinary definitions
to terms and phrases utilized in interrogatories.’”Deakins v. Pack, 2012 WL 242859, at *12
(S.D.W.V. Jan. 25, 2012) (quoting McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D.Kan.2000)).
Defendant’s objections are without merit. Plaintiffs’ Motion is GRANTED with respect to
Interrogatory 15.
Interrogatory 18: Please describe where customer service calls were
routed made by the Plaintiffs from January 1, 2010 to the present
regarding their mortgage accounts. Please describe how PHH
representatives note the accounts, and records such communications.
Please also state who has access to view the information contained in
the system.
Defendant contends such information is irrelevant because “[n]one of the allegations made
by Plaintiffs’ concern issues to which information on the routing of telephone calls or notations in
records and recording of communication, as well as who has access to view them, would be relevant,
let alone any of the claims resting on those allegations.” As discussed above, many of Plaintiffs’

18

As defined by Plaintiffs on page 9 of Plaintiffs’ First Set of Interrogatories and First Request for
Production of Documents.

29

WVCCPA claims center around actions Defendant took in attempting to collect a debt from
Plaintiffs. Plaintiffs allege that they received collection calls from one department of PHH and were
subsequently transferred to customer service agents who told Plaintiffs to ignore the collection calls
because the collection agents were not able to view the entire account file. Plaintiffs also allege that
in some instances, even the customer service agents could not view all of the information in
Plaintiffs’ account file resulting in Plaintiffs being transferred to other internal departments such as
the HAMP and Loss Mitigation departments. Thus, contrary to Defendant’s contentions, information
about the procedures Defendant’s employees use to transfer calls and view account files directly
bears on Plaintiffs’ claims. Moreover, these procedures are also relevant to Defendant’s bona fide
error defense, as discussed more fully above. Accordingly, Plaintiffs’ Motion is GRANTED with
respect to Interrogatory 18.
Interrogatory 19: Describe the system used to manage escrow funds
to pay property taxes and insurance fees AND indicate why payments
for insurance and property taxes were not made on the Plaintiffs’
account.
Defendant refuses to answer this interrogatory and incorporates its objections to
Interrogatory 14. It further objects to the portion of the interrogatory asking why payments were not
made because it incorporates an unproven fact and because it does not specify a time period during
which such payments were not made. The Court finds that the information about the system used
to manage escrow funds to pay property taxes and insurance fees is highly relevant to Plaintiffs’
claims. However, the Court agrees that the second party of the interrogatory is objectionable because
it is not limited by time and because it incorporates an unproven fact. Accordingly, Plaintiffs’
Motion with respect to Interrogatory 19 is GRANTED IN PART. Defendant must respond to the
part of the interrogatory that asks it to “[d]escribe the system used to manage escrow funds to pay
30

property taxes and insurance fees.”
d. Plaintiffs’ Complete Account File
Request for Production 4 seeks Plaintiffs’ entire account file from the date of the origination
of the initial mortgage loan.
Request for Production 4: A complete copy of Plaintiffs’ file kept
by PHH including electronically stored data, communication logs,
life of loan history with accounting of all payments, payments of
insurance fees, payments for property taxes, a current account
balance, evaluation notes, correspondence, memorandums [sic], emails, reports and electronic messages from the inception of the loan
to the present date.
Defendant asserts that this request is overly broad because it seeks documents outside the
time period relevant to Plaintiffs' claims. Defendant also contends that some of the information
requested, such as information about payments of property taxes, is not relevant to any of Plaintiffs'
claims. The Court disagrees. Plaintiffs have asserted a breach of contract claim relating to the initial
mortgage note signed by the parties in 2006, as well as the modified loan. Thus, all information
about that loan is relevant. Additionally, Plaintiffs' entire account file is relevant to several of
Defendant's affirmative defenses, including waiver and estoppel. Accordingly, Plaintiffs’ Motion
with respect to Request for Production 4 is GRANTED. Defendant is ordered to produce a complete
copy of Plaintiffs’ file.
C. Decision
Plaintiffs’ Motion to Compel is GRANTED IN PART and DENIED IN PART, because
the discovery sought is reasonably calculated to lead to the discovery of admissible evidence, and
no valid claims of burden, over-broadness, or privilege have been advanced by Defendant. The
Court does, however, find that all of the requests except for Request for Production 4 must be

31

limited to the time period January 1, 2010, to November 9, 2012. With respect to Request for
Production 4 Defendant is ordered to produce a complete copy of Plaintiffs’ file with all documents
from the origination of the loan to November 9, 2012.
IV. DEFENDANT’S MOTION TO COMPEL DISCOVERY
There is no need for the Court to reach the merits of Defendant’s Motion to Compel because
Defendant failed to confer with Plaintiffs’ prior to filing the Motion as required by Federal Rule of
Civil Procedure 37 and this district’s Local Rules. Federal Rule of Civil Procedure 37 states that a
motion to compel discovery “must include a certification that the movant 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). In Shuffle Master, Inc. v. Bally's Grand,
Inc., 170 F.R.D. 166 (D.Nev.1996), the District of Nevada interpreted the good faith language, under
the Federal Rules, to require “a personal or telephonic consultation during which the parties engage
in meaningful negotiations or otherwise provide legal support for their position.” Additionally, this
District’s Local Rules mandate that “[b]efore filing any discovery motion...counsel for each party
shall make a good faith effort to meet in person or by telephone to narrow the areas of disagreement
to the greatest extent possible. It shall be the responsibility of counsel for the moving party to
arrange for the meeting.” LR Civ. P. 26.04(b). The failure to follow the requirement to confer, or
attempt to confer, is grounds for the court to deny the motion to compel. See, e.g., Ambu, Inc. v.
Kohlbrat & Bunz Corp., 2000 WL 17181, at 2 (W.D.N.C. 2000) (stating “the fact that Defendants
did not confer with opposing counsel and attempt to resolve this dispute before filing the motion to
compel is sufficient reason to deny the motion”); Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173
F.R.D. 651, 656 n. 13 (D.Md. 1997) (stating that there must “have been good faith efforts to resolve

32

the [discovery] dispute before filing the motion [to compel]”).
“‘Good faith’ under 37(a)(2)(B) contemplates, among other things, honesty in one's purpose
to meaningfully discuss the discovery dispute, freedom from intention to defraud or abuse the
discovery process, and faithfulness to one's obligation to secure information without court
action....Accordingly, good faith cannot be shown merely through the perfunctory parroting of
statutory language on the certificate to secure court intervention; rather it mandates a genuine
attempt to resolve the discovery dispute through non-judicial means.” Shuffle Master, Inc. v. Bally's
Grand, Inc., 170 F.R.D. 166 (D.Nev.1996). Here, although Defendant claims that it “communicated
with Plaintiffs’ [sic] about its objections to their objections, answers and responses,” and that
“further meeting to confer will be fruitless” the Court finds that Defendant did not in fact make a
good faith effort to confer with Plaintiffs before filing the instant Motion to Compel. Defendant’s
counsel sent Plaintiffs’ counsel an email on Saturday, October 19, 2013, at 7:58 p.m., seeking
supplementation of Plaintiffs’ discovery responses. The email concludes with “I would appreciate
supplementation by 5:00 p.m., on Monday, October 21, 2013, so, if necessary, I may file any
required motion to compel by the close of discovery on Tuesday, October 22, 2013.” Plaintiffs’
counsel did not receive the email until Monday morning, and replied to Defendant’s counsel that he
needed more time than one day to confer with his clients. However, Plaintiffs’ depositions were
scheduled for the next day, October 22, 2013, and Plaintiffs’ counsel stated in the email that he
“would be happy to meet and confer after the Patrick depositions so [sic] address any unanswered
questions or issues that might remain after the depositions.” The next day, October 22, 2013, after
Plaintiffs’ depositions, Plaintiffs’ counsel sought to confer with Defendant’s counsel about the
discovery dispute, however, Defendant had already filed the Motion to Compel. The Court finds that

33

Defendant’s actions amount to mere lip service to the meet and confer requirements of the Federal
and Local Rules. Defendant went through the motions of conferring with Plaintiffs, but it made no
good faith attempt to actually resolve the dispute before filing the instant motion to compel.
Accordingly, Defendant’s Motion to Compel is DENIED.
V. PLAINTIFFS’ MOTION TO STRIKE
Plaintiffs contend that Defendant’s Response to Plaintiffs’ Motion to Compel violates Local
Rule of Civil Procedure 7.02(b) because it was filed more than fourteen days after service of the
Motion to Compel and because it exceeds twenty-five pages in length. Plaintiffs ask the Court to
strike Defendant’s Response. Local Rule of Civil Procedure 7.02(b)(1) provides that “responses to
motions shall be filed and served within fourteen (14) days from the date of service of the motion.”
L.R. Civ. P. 7.02(b)(1). Local Rule 7.02(b) also states that “[t]he memoranda in response may not
exceed twenty-five (25) pages...” L.R. Civ. P. 7.02(b)(1)(iii). In some cases, a Court may extend the
time for filing responsive pleading pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), which
provides: “When an act may or must be done within a specified time, the court may, for good cause,
extend the time...on a motion made after the time has expired if the party failed to act because of
excusable neglect.”
Here, Plaintiffs filed their Motion to Compel on September 27, 2013, and Defendant filed
its Response twenty-six days later, on October 23, 2013. In addition, Defendant’s Response was
forty-six pages long. Thus, Defendant’s Response violates the Local Rule. Although the Court has
the discretion to extend the time in the case of excusable neglect, Defendant did not move this Court
to do so, nor did Defendant present any reason that its Response was late. Moreoever, because this
Court ordered Defendant to file a compilation of its objections to Plaintiffs’ discovery requests, the

34

Court finds that striking Defendant’s response will cause Defendant no prejudice. Accordingly,
Plaintiffs’ Motion to Strike Defendant’s Response is GRANTED.
VI. REASONABLE EXPENSES
Rule 37 of the Federal Rules of Civil Procedure governs imposition of expenses and
sanctions for discovery violations. If a motion to compel “is granted in part and denied in part...the
court may, after giving an opportunity to be heard, apportion the reasonable expenses for the
motion.” Fed. R. Civ. P. 37(a)(5)(C). If a motion to compel is denied, the court “must, after giving
an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the
party...who opposed the motion its reasonable expenses incurred in opposing the motion, including
attorneys’ fees.” Id. at 37(a)(5)(B). In both cases, the court must not order this payment if the
motion was substantially justified or other circumstances make an award of expenses unjust.
Plaintiffs shall submit within fourteen (14) days of this Order an affidavit of reasonable expenses
in relation to their Motion to Compel and Defendant’s Motion to Compel. Defendant shall have
fourteen (14) days to respond. After the Court is in receipt of those documents, the Court will give
Defendant an opportunity to be heard as to why reasonable expenses should not be awarded pursuant
to Rule 37(a).
VII. CONCLUSION
Plaintiffs’ Motion to Compel Responses to Interrogatories 1, 2, 3, 4, 5, 6, 12, 14, 15, 17, 18,
24, and 25, and Requests for Production 1, 3, 4, 5, and 7 is GRANTED. Plaintiffs’ Motion to
Compel a Response to Interrogatory 19 and Request for Production 6 is GRANTED IN PART
AND DENIED IN PART. Defendant is ORDERED to respond to Plaintiffs’ discovery requests,
as directed by this Order, within seven (7) days of the date of this Order. Defendant’s Motion to

35

Compel is DENIED. Plaintiffs’ Motion to Strike Defendant’s Response is GRANTED. Plaintiffs
shall submit within fourteen (14) days of this Order an affidavit of reasonable expenses in relation
to their Motion to Compel and Defendant’s Motion to Compel. Defendant shall have fourteen (14)
days to respond.
Filing of objections does not stay this Order.
Any party may, within fourteen [14] days of this Order, file with the Clerk of the Court
written objections identifying the portions of the Order to which objection is made, and the basis
for such objection. A copy of such objections should also be submitted to the District Court Judge
of Record. Failure to timely file objections to the Order set forth above will result in waiver of the
right to appeal from a judgment of this Court based upon such order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.
IT IS SO ORDERED.
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

DATED: December 12, 2013

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