(i) the historical and current savings to OFB from using an in-house valuation shop, Ocwen Realty Advisors (“ORA”), to provide residential BPOs rather than a national vendor; (ii) the historical and current charges by OFB and/or ORA to affiliated clients and outside third party clients for residential BPOs; (iii) the historical revenue and profits/losses realized by OFB and/or ORA from the resale of residential BPOs generated by national vendors and retail vendors; (iv) the prices paid by OFB and/or ORA for residential BPOs in Deposition Exhibit 4 and 5; and (v) the historical and current cost/resale revenue of OFB/ORA for residential BPOs (broken down by vendors identified in Deposition Exhibit 4) and the historical and current profit/loss realized from such resale.
In response to the Court's Order, Ocwen produced some documents on March 12, 2004 and more documents on April 1, 2004 (more than a month after the February 15th deadline set by the Court). These documents, totaling over a thousand pages, included some of the information that Cartel needed to calculate its disgorgement damages.... Additional needed documents were produced at the Fed .R.Civ.P. 30(b)(6) deposition of Ocwen Federal Bank FSB, held on April 8, 2004 (held after the Court overruled Ocwen's objections to the deposition). Once those documents had been produced by Ocwen, Cartel's counsel advised Ocwen's counsel that Cartel would be updating its expert report to include the disgorgement damages. The supplemental report was issued on May 6, 2004.
*7 any of the following (in whole or in part): supports, proves, tends to prove, is associated or affiliated with, is connected with, corresponds to, complements, provides background for, evidences, embodies, includes, comprises, refers to, explains, mentions, describes, contradicts or tends to contradict.
Cartel is not limited on re-trial to proving unjust enrichment damages only within the four year window proposed by Tenbrook.... Nothing in the Tenth Circuit's opinion indicates that the Tenth Circuit limited Cartel to evidence relevant to the four year window on retrial.... Cartel proposes to examine additional evidence concerning events that occurred during and following the first trial to determine if it can demonstrate damages that accrued during and after the first trial.... Following the Tenth Circuit's remand ..., Cartel seeks to examine additional evidence to determine if the relevant damages time window extends beyond the four year time window proposed by TenBrook at the first trial.... In view of the Tenth Circuit's direction that Cartel have a chance to correct its evidentiary shortcomings by establishing a basis for a relevant time window in which to calculate damages, I conclude that it would create manifest injustice to prohibit Cartel from examining the additional evidence it seeks to examine.... Further, the evidence Cartel seeks to examine was developed during or after the first trial so this evidence was not readily accessible or known at the time of the first trial.
*14 retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.... Cooperation does not conflict with the advancement of their clients' interests—it enhances them. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.
If the motion [for protective order] is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(a) and may after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
Rule 26(g) charges those responsible for the success or failure of pretrial discovery—the trial judge and the lawyers for the adverse parties—with approaching the process properly: discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense), and be proportional to what is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to punish and deter.
a. Provide such information as is available (on a monthly or other periodic basis if available) as to the success achieved by the Bank in building or increasing any such [database of individual real estate professionals who prepare and provide BPOs for the Bank] during this period.
*24 Rather than provide this simple but critical information, the Ocwen Defendants state that they view “success” in terms of the number of real estate professionals who have at one time expressed an interest in selling BPOs to Ocwen. These individuals are presumably included in Ocwen's BPO provider database, but it is patently absurd to respond that the inclusion of these individuals in the database is a “success” if, in fact such individuals are ineligible to provide BPOs.
*25 the magistrate judge shall ... certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge ... to show cause why that person should not be adjudged in contempt by reason of the facts so certified.
End of Document.