Birster v. Am. Home Mortgage Servicing, Inc.
Birster v. Am. Home Mortgage Servicing, Inc.
2012 WL 12854863 (S.D. Fla. 2012)
December 3, 2012
Snow, Lurana S., United States Magistrate Judge
Summary
The court granted the Plaintiffs' motion to compel in part, ordering AHMSI to provide ESI such as addresses and telephone numbers for witnesses, the pooling and service agreement, dunning letters, phone logs, and reports generated in the regular course of business. AHMSI was also ordered to provide a more detailed privilege log and to produce the documents in native format.
Angela Birster and Paul Birster, Plaintiffs,
v.
American Home Mortgage Servicing, Inc. a Delaware Corporation, Defendant
v.
American Home Mortgage Servicing, Inc. a Delaware Corporation, Defendant
CASE NO. 10–80735–CIV–DIMITROULEAS/Snow
Signed December 03, 2012
Snow, Lurana S., United States Magistrate Judge
OMNIBUS ORDER
*1 THIS CAUSE is before the Court on the Plaintiffs' Motion to Compel and/or Determine Sufficiency of Answers and Objections to Requests for Admissions (DE 129), Motion to Compel Better Responses to Request for Production (DE 130), Motion to Compel Better Responses to First Set of Interrogatories (DE 131), and Supplemental Motion to Compel Better Responses to Request for Production (DE 144) which were referred to United States Magistrate Judge, Lurana S. Snow. The Plaintiffs move for their attorneys' fees and costs in connection with each motion. The motions are fully briefed and ripe for consideration.
The Plaintiffs' Complaint which alleges violations of Florida's Consumer Collection Practices Act (FCCPA), the federal Fair Debt Collection Practices Act (FDCPA), as well as state law tort claims, was removed to this Court on June 21, 2010. (DE 1) The allegations in the Complaint relate to the efforts of Defendant, AHMSI, a loan servicing company, to collect on a mortgage obtained by the Plaintiffs for their home in Jupiter, Florida. According to the Plaintiffs, AHMSI made repeated harassing and threatening telephone calls in connection with its attempt to collect the debt, and repeatedly visited the property to take photos and harass the Plaintiffs.
I. THE REQUESTS FOR ADMISSIONS (DE 129)
Fed.R.Civ.P. 36 governs Requests for Admission. Subsection (a)(4) states:
Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
Subsection(a)(6) reads:
Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.
The Plaintiffs assert that of 76 Requests, AHMSI admitted or denied only 15, and objected to the rest. According to the Plaintiffs, AHMSI never stated it made a reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny as required by Rule 36.
Requests 1–26 concern the number of dunning letters sent by AHMSI in 2008 and 2009, the method of delivery, and the category of individuals to whom they were sent. The Plaintiffs defined “dunning letter” as follows:
*2 (o) The term “dunning letter(s)” means any letter delivered that contains the same or substantially the same notice, or similar language:
THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS DOES NOT IMPLY THAT AMERICAN HOME MORTGAGE SERVICING, INC. IS ATTEMPTING TO COLLECT MONEY FROM ANYONE WHOSE DEBT HAS BEEN DISCHARGED UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES.
or any letter that is otherwise delivered in an attempt to collect a debt, or in an attempt to, or in compliance with the FDCPA, specifically 15 USC 1692g.
To each of the first 26 requests AHMSI responded that it cannot truthfully admit or deny the request because the Plaintiffs' definition of “dunning letter” is vague and effectively asks AHMSI to guess at the scope of the request. AHMSI also contended that it would be unable to determine the exact number of letters without searching through 375,000 accounts. It then answered each request as though it pertained only to the Plaintiffs.
The Plaintiffs assert that their definition of “dunning letter” is not vague and that AHMSI's response is not credible in light of modern technology which should provide it with the ability to search for key words and phrases that would be found in such documents to obtain the results. According to the Plaintiffs, AHMSI has not made a reasonable inquiry which would support its assertion that it cannot truthfully admit or deny the request.
In its response to the Plaintiffs' motion, AHMSI admits that it sent over 1000 dunning letters (therefore admitting requests 1–20), but continues to deny these requests to the extent they concern the Plaintiffs. AHMSI asserts that it raised its objections because the definition of “dunning letter” exceeded the scope of the claims and defenses in this case, and meshed multiple definitions together. According to AHMSI, had this topic been addressed before the Plaintiffs filed their motion, it would have revised its responses upon clarification, and the motion would have been unnecessary.[1] It asserts it has clearly explained why it cannot properly admit or deny requests 21–26 and therefore stands by its objections. The Plaintiff has not filed a reply.
Since AHMSI now understands what the Plaintiffs mean by “dunning letters” it now is able to admit or deny, with qualification, if necessary, that it delivered such letters by U.S. mail (request 21), whether such letters were delivered to account holders that were past due (request 22), whether such letters were delivered to individuals who owed debts incurred for personal, family or household purposes (request 23), whether such letters were delivered to individuals who owed debts on residential mortgages and/or notes (request 24), and whether such letters were delivered to collect monies on accounts past due (request 25). Therefore, AHMSI shall amend its responses to Requests 21–25.
Requests 28–45 concern the number of telephone calls made by AHMSI in 2008 and 2009 to account holders that were past due, the purpose of the calls, and the type of debt it was trying to collect. In response to each of these requests (except Request 44)[2], AHMSI responded by stating it was unable to answer the question without searching through 375,000 individual loan accounts. It then answered each request as though it pertained only to the Plaintiffs.
*3 The Plaintiffs contend that this response is not credible because AHMSI undoubtedly has established departments which routinely make phone calls to past due account holders, has established training procedures for making such phone calls and has information relating to the phone calls made from the lines used by the employees responsible for calling persons who are past due on their accounts. The Plaintiffs have learned through discovery that AHMSI has “auto-dialers” who made certain phone calls to the Plaintiffs. They assert that AHMSI has not made a reasonable inquiry which would permit it to respond that it is unable to admit or deny the requests.
AHMSI stands by its responses, which it asserts explain in detail why it cannot truthfully admit or deny these requests. The Court finds that the responses to these requests are deficient in that they do not state that AHMSI made reasonable inquiry in an attempt to respond. Therefore, AHMSI shall amend its responses to requests 28–43 and 45 to indicate whether it made a reasonable inquiry and learned that the only way to obtain the information necessary to respond would be to manually search through 375,000 individual loan accounts. If the information can be learned in some less burdensome fashion, AHMSI shall amend its responses accordingly.
Requests 49–54 concern the date the Plaintiffs' account was past due. The Plaintiffs defined “past due” as follows: (p) The term “past due” or “missed payment” means the date after the payment is due, but has not been received by AHMSI. The Requests and AHMSI's responses state as follows:
Request 49. Admit that the Plaintiffs' account was past due as of June 1, 2008.
Response. This request is impossible to admit or deny because the Birsters made several late payments in an effort to bring their loan current. The vague definition of “past due” makes it impossible for Homeward to respond to this request. Homeward admits the Birsters submitted payment for June 1, 2008 on September 26, 2008, but this payment was subsequently reversed.
Request 50. Admit that the Plaintiffs' account was past due as of July 1, 2008.
Response. This request is impossible to admit or deny because the Birsters made several late payments in an effort to bring their loan current. The vague definition of “past due” makes it impossible for Homeward to respond to this request. Homeward admits the Birsters submitted payment for July 1, 2008 on September 26, 2008, but this payment was subsequently reversed.
Request 51. Admit that the Plaintiffs' account was past due as of July 29, 2008.
Response. This request is impossible to admit or deny because the Birsters made several late payments in an effort to bring their loan current. The vague definition of “past due” makes it impossible for Homeward to respond to this request. Homeward admits the Birsters submitted payment for June 1, 2008 on July 30, 2008, but this payment was subsequently reversed.
Request 52. Admit that any records in your custody or control indicate that the Plaintiffs' account was in default as of July 29, 2008.
Response. Denied.
Requests 53. Admit that any third party, including U.S. Bank and/or Option One and/or Sand Canyon, stated or indicated that the Birsters' account was past due as of July 29, 2008.
Response. This request is impossible to admit or deny because the Birsters made several late payments in an effort to bring their loan current. The vague definition of “past due” makes it impossible for Homeward to respond to this requests. Homeward admits the Birsters submitted payment for June 1, 2008 on July 30, 2008, but this payment was subsequently reversed.
Requests 54. Admit that any third party, including U.S. Bank and/or Option One and/or Sand Canyon, stated or indicated that the Birsters' account was in default as of July 29, 2008.
*4 Response. Homeward admits notices of acceleration had been sent to the Birsters prior to July 29, 2008, and the Birsters subsequently submitted payments to Homeward.
The Plaintiffs complain that AHMSI failed to adequately respond by admitting that the account was past due in response to Requests 49–51, and that AHMSI failed to admit that the account was in default as of July 29, 2008 in response to Request 52. Alternatively, the Plaintiffs ask the Court to order AHSMI to provide a more specific response relating to the acceleration of the Plaintiffs' account on or before July 29, 2008, in light of the fact that it cannot admit and has no knowledge whether the Plaintiffs' account was past due or in default during this same period.
AHMSI contends that its responses each provide a detailed explanation for why it could not admit or deny the requests as framed. It argues that the requests are confusing and that when the Plaintiffs ask the Court to require AHMSI to provide a more specific response relating to the acceleration of the Plaintiffs' account, that is not the same as the date the loan was arguably “past due.” It therefore answered the requests, which it argues are vague, as completely as possible.
The Court finds that the Plaintiffs' definition of “past due” could not be more clear, and that it is AHMSI that is confusing the issue. AHMSI either received the Plaintiffs' payments on or before they were due or “after the date the payment was due.” AHMSI also should be able to admit or deny whether any third party stated that the Plaintiffs' account was in default.as of July 29, 2008. If it must, in good faith, qualify its responses, in good faith, it may do so, as long as its qualifications are compliant with Rule 36(a)(4). AHMSI shall amend its responses to Requests 49–51 and 53 and 54.
Requests 64–75 concern the number of accounts AHMSI acquired in past due status. In response to each of these requests AHMSI responded by stating it was unable to answer the question without searching through 375,000 individual loan accounts.
The Plaintiffs contend that this response is not credible since AHMSI undoubtedly has established departments which routinely handle past due accounts which likely create reports relating to past due accounts. In its response to the motion, AHMSI asserts that it explained that it could not admit or deny these requests because they were framed in a confusing manner.
The Court notes that AHMSI did not assert that the requests were confusing in its responses, but instead stated that it could not answer without searching through 375,000 loan accounts as reported by the Plaintiffs in their motion. The Court finds that the responses to these requests are deficient in that they do not state that AHMSI made reasonable inquiry in an attempt to respond. Therefore, AHMSI shall amend its responses to requests 64–75 to indicate what inquiry it made in an effort to respond to theses requests. If the only way to obtain the information necessary to respond would be to manually search through 375,000 individual loan accounts, the Court agrees that it is unreasonable to expect AHMSI to do so. However, if the information can be learned in some less burdensome fashion such as, for example, by generating a report which lists accounts, and indicates when they were acquired and whether they were in past due status at the time they were acquired, AHMSI shall amend its responses accordingly.
II. THE REQUESTS FOR PRODUCTION (DE 130)
*5 Fed.R.Civ.P. 34 permits a party to serve requests to produce documents within the scope of Fed.R.Civ.P. 26(b). A party seeking discovery may move for an order compelling discovery responses pursuant to Fed.R.Civ.P. 37(a). Motions to compel are committed to the sound discretion of the court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The party resisting production of information bears the burden of establishing lack or relevancy or undue burden in supplying the requested information.” Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000).
The Federal Rules of Civil Procedure set forth the scope and limits of discovery. Under Rule 26(b),
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...[that] is 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..., [however] the court must limit the frequency or extent of discovery otherwise allowed by these rules...if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues....”
Fed.R.Civ.P. 26(b). The Advisory Committee notes to Rule 26 are instructive. They make clear that a broad search for facts, and indeed “fishing” for evidence is permitted. Adv. Com. Notes, 1946 Amendment, Rule 26, Fed.R.Civ.P. “Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible.” Id. (citations omitted).
The Plaintiffs' contend that AHMSI's responses to certain of their production requests are deficient. (DE 130) They also argue that any privilege asserted in AHMSI's privilege log is waived because the log was not timely filed. Alternatively, the Plaintiffs argue that AHMSI's privilege log is deficient because AHMSI failed to describe with enough specificity the documents it is withholding on the basis of privilege. (DE 144)
AHMSI responds that much of what is contained in the motion to compel was not brought to its attention before the motion was filed.[3] AHMSI asserts that it has produced documents responsive to Requests 6, 7, 12, 25, 26, 27, 28, 29 and 33 rendering the Plaintiffs' motion moot with regard to those requests. The Plaintiffs did not file a reply brief in support of their motion, therefore, it appears that the Court need not address the Plaintiffs' motion with regard to the aforementioned requests.
*6 Of the remaining requests at issue, AHMSI's responses to Requests 8 and 20 contain objections based upon attorney-client and/or work product privilege. The Plaintiffs are correct that for AHMSI's objections to be sustained they must be supported by a privilege log.[4] Rule 26(b)(5) requires that privilege objections must be made expressly, and describe the nature of the documents not produced or disclosed, doing so in a manner that, without revealing information itself privileged, will enable other parties to assess the claim. Because AHMSI's privilege objections in Requests 8 and 20 are not compliant with Rule 26(b)(5), they are overruled.
The Court will address the remaining Requests at issue in turn.
Request 8. Any and all documents concerning any and all investigations and for surveillance conducted relating to the BIRSTERS or their Property.
Response. Homeward objects to this request because it is not reasonably calculated to lead to the discovery of admissible evidence. Further responding, Homeward objects to this request as vague because “investigations” could include all work done by Homeward's counsel in this case, which is clearly work product and attorney-client privileged information. Further, investigations and/or surveillance relating to the Birsters' Property have no relevance to any of [sic] pleadings. Property inspection [sic] are legally permissible, and contemplated and allowable under the terms of the mortgage.
The Plaintiffs contend that this request is directly relevant to the Amended Complaint, which alleges that AHMSI's home inspections violated the FDCPA. (DE 97) AHMSI responds that it properly objected on the ground that the request is vague because investigations could include work product and attorney-client privileged information. The Court has already overruled AHMSI's privilege objections to this request, and agrees with the Plaintiffs that the documents it seeks are relevant to the claims contained in the Amended Complaint. Because AHMSI has not met its burden in resisting the discovery, it shall produce documents responsive to this request.
Request 15. Any and all dunning letters you delivered from April 1, 2008 to present.
Response. Homeward objects to this request as grossly overbroad and unduly burdensome. In particular, this request is not limited in time or scope to the loan which is the subject of this lawsuit, and is not likely to lead to the discovery of admissible evidence. Homeward also objects to this request as seeking confidential private financial information of non-parties.
The Plaintiffs contend that the time frame is appropriate, and that this request seeks information relevant to the issue of whether AHMSI is a debt collector. They assert that they are not seeking financial information relating to any non-parties and have no objection to the redaction of amounts owed. Finally, they argue that AHMSI should be able to utilize technology to search for key words and phrases enabling it to produce responsive documents.
AHMSI contends that the only communications relevant in this case are those between itself and the Plaintiffs. It explains that it would be unduly burdensome for it to search individually through approximately 375,000 individual loan accounts, and the identical information the Plaintiffs seek can be obtained via testimony at the 30(b)(6) deposition.
*7 The allegations in the Plaintiffs' Amended Complaint concern events that occurred between June of 2008 and December of 2009. AHMSI claims that it began servicing the Plaintiffs' loan in April of 2008. Documents responsive to this request are directly relevant to the Plaintiffs' claim that AHMSI was a debt collector during the times relevant to their Amended Complaint. To the extent that the Defendant is arguing that the Plaintiffs can obtain the requested information via testimony at the 30(b)(6) deposition, the Court notes that in order to prepare its witness to answer questions concerning all dunning letters delivered between April 1, 2008 to present, AHMSI likely would be required to undertake the same search as would be necessary to respond to the request. Nevertheless, the Court finds that the span of more than five years is overbroad. Accordingly, the AHMSI shall produce any dunning letters it delivered from April 1, 2008 through April 1, 2009. In order to protect the private information of non-parties, AHMSI may redact any information contained in the letters which would identify non-party borrowers.
Request 16. Any and all letters you delivered from April 1, 2008 to present stating that you were requesting payment of monies from account holders for past due amounts and/or indicating that the loan would be foreclosed.
Response. Homeward objects to this request as grossly overbroad and unduly burdensome. In particular, this request is not limited in time or scope to the loan which is the subject of this lawsuit. Homeward also objects to this request as seeking confidential private financial information of non-parties.
The parties each make the same arguments as they did with regard to Request 15. Therefore, the analysis is the same. AHMSI shall produce any letters that it delivered from April 1, 2008 through April 1, 2009 stating that it was requesting payment of monies from account holders for past due amounts and/or indicating that the loan would be foreclosed. In order to protect the private information of non-parties, AHMSI may redact any information contained in the letters which would identify non-party borrowers.
Request 17. Any and all letters you delivered from April 1, 2008 to present, including the following language, or similar language:
THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS DOES NOT IMPLY THAT AMERICAN HOME MORTGAGE SERVICING, INC. IS ATTEMPTING TO COLLECT MONEY FROM ANYONE WHOSE DEBT HAS BEEN DISCHARGED UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES.
Response. Homeward objects to this request as grossly overbroad and unduly burdensome. In particular, this request is not limited in time or scope to the loan which is the subject of this lawsuit. Homeward also objects to this request as seeking confidential private financial information of non-parties.
Since the parties each make the same arguments as they did with regard to Request 15, the analysis is the same. AHMSI shall produce any letters that it delivered from April 1, 2008 through April 1, 2009 which includes the above quoted or similar language. In order to protect the private information of non-parties, AHMSI may redact any information contained in the letters which would identify non-party borrowers.
Request 18. Any and all documents relating to any person who has alleged that you violated the FDCPA between April 1, 2008 to present, including but not limited to, pleadings, transcripts, settlement agreements, etc.
Response. This request is not reasonably calculated to lead to the discovery of admissible evidence, as it has zero bearing on any of the claims or defenses in this lawsuit. Even if the information were discoverable, Homeward also objects to this request as grossly overbroad and unduly burdensome.
The Plaintiffs contends that this request is proper because it seeks information directly relevant to AHMSI's status as a “debt collector.” To the extent that other civil actions have been filed against AHMSI, it may have already been determined to be a debt collector. AHMSI stands by its objections, arguing that allegations by others of FDCPA violations have no bearing on the claims and defenses in this lawsuit, or on AHMSI's status as a debt collector.
*8 The Court finds that the information sought is reasonably calculated to lead to the discovery of admissible evidence and therefore discoverable. See Yancey v. Hooten, 180 F.R.D. 203, 214 (D.Conn. 1998). Additonally the Defendant has not met its burden of establishing specifically how responding to this request is overbroad or would unduly burden it. Therefore, the Defendant's objections are overruled.
Request 20. Any and all documents referring to AHMSI as a “debt collector,” or similar term.
Response. The Birsters' loan servicing notes, correspondence between the parties and breach letters and payment history have been produced. To the extent this request seeks more information, Homeward objects to this request as overbroad and unduly burdensome. In particular, this request is not limited in time or scope to the loan which is the subject of this lawsuit. Further responding, this request is not reasonably calculated to lead to the discovery of admissible evidence because it has no bearing on any of the claims or defenses. Homeward also objects to this request because as framed it encompasses documents protected by the attorney client privilege, work-product privilege, or other applicable privileges. Homeward also objects to this request as seeking confidential private financial information of non-parties. Due to the overbroad and vague nature of this request, Homeward cannot identify the privileged and confidential documents which may be responsive.
The Plaintiffs contend that AHMSI's objection is improper because the request seeks documents directly relevant to AHMSI's status as a debt collector. At the time they filed their motion, AHMSI had not served a privilege log and it was therefore impossible to determine what AHMSI was withholding on the basis of privilege. AHMSI makes the same arguments it made with regard to Request 15.
Although AHMSI asserts privilege, it does not identify with any specificity what documents it is withholding on this basis. The privilege log which was served on October 25, 2012, refers to a consolidated notes log. The consolidated notes log is heavily redacted, but it appears to document telephone calls and other action concerning the Plaintiffs' account. To the extent that documents responsive to Request 20 are not included in the privilege log AHMSI served, any asserted privilege is waived.
The Court finds that documents referring to AHMSI as a debt collector are relevant to the claims and defenses in this case, but agrees that the request should be limited in time and any responsive documents should be redacted to protect the personal information of non-parties. Accordingly, AHMSI shall produce documents responsive to this request which were generated between April 1, 2008 and April 1, 2009. To the extent that any responsive documents contain the private information which might identify non-parties, such information may be redacted. If any documents are being withheld based upon any asserted privilege they shall be identified with enough particularity so that the Plaintiffs can properly evaluate the objection.
Request 35. Any and all documents identifying the number of AHMSI's employees, location, the title of each employee, and a description of their duties.
Response. Homeward objects to this request because it is not reasonably calculated to lead to the discovery of admissible evidence.
*9 AHMSI's response is non-compliant with Local Rule 26.1(g)(3)(A) which requires an objection to explain the specific and particular way(s) in which a request is objectionable. Boilerplate objections are properly overruled. Guzman v. Irmaden, Inc., 249 F.R.D. 399 (S.D. Fla. 2008). Furthermore, the identity of AHMSI's employees is reasonably calculated to lead to the discovery of admissible evidence in this case since each employee is a potential witness not only to the facts related to the Plaintiffs particular case, but also to AHMSI's debt collection activities. Accordingly, AHMSI shall produce documents responsive to this request.
Request 41. Any and all lists of your employees, location and description of their position.
Response. Homeward objects to this request as duplicate and is merely intended to harass Homeward and multiply discovery costs. The request has no bearing on the claims or defenses in this lawsuit.
As discussed with regard to Request 35, the Court finds that the identity of AHMSI's employees is reasonably calculated to lead to the discovery of admissible evidence in this case as each one is a potential witness not only to the facts related to the Plaintiffs particular case, but also to AHMSI's debt collection activities. AHMSI argues that this Court recently sustained its objection that its corporate representative need not be able to identify all three thousand employees by name, location, job title and description of duties. (DE 123, p.6) That ruling was based on the Plaintiffs' clarification that they intended only to inquire about AHMSI's general corporate structure and about specific departments and employees who engage in debt collection activities for past due accounts. While it may be unreasonable to expect an individual to be able to testify as to the identity, location, job title and description of duties of three thousand employees, it does not follow that it also is unreasonable to expect the corporation to produce documents containing that information. Accordingly, AHMSI shall produce documents responsive to this request.
Request 42. Any and all reports, lists, and/or documents showing a percentage or number of accounts received from U.S. Bank after the debtor missed a payment in comparison to those you obtained prior to a missed payment.
Response. Homeward objects to this request because it is not reasonably calculated to lead to the discovery of admissible evidence. This has no bearing on any of the claims or defenses, except for whether Homeward was servicing the loan before it went into default. This request is overbroad to the extent it seeks information from any borrower other than the Birsters. Homeward also objects to this request as seeking confidential private information of non-parties.
The Plaintiffs contend that this request seeks information directly relevant to whether AHMSI is a debt collector. Documents responsive to this request would show whether AHMSI services accounts that are not in default, and if so, what percentage of its business such accounts comprise. AHMSI concedes that there is an issue regarding whether it regularly collects debts is but argues that the percentage of business performed for accounts in default is not a proper indicator. Further, there is no way for AHMSI to determine which of 4765 loans from U.S. Bank concerned a borrower that had ever “missed a payment,” a term which could include late payments and payments withheld pursuant to a forbearance agreement.
The Court finds that reports, lists or documents showing the percentage of accounts AHMSI acquired after the debtor missed a payment is reasonably calculated to lead to the discovery of admissible evidence on the issue of whether AHMSI is a debt collector. The reports or lists need not distinguish between types of missed payments, and may be redacted to eliminate information identifying non-parties to protect their privacy.
Format of the Documents Provided
*10 The Plaintiffs complain that the electronic documents AHMSI has produced to them are not clearly legible. They request that AHMSI produce all documents, particularly e-mail communications, in native format as well as electronic format. AHMSI did not respond or otherwise object to this request. Accordingly, all email communication produced to the Plaintiffs by AHMSI shall be provided in native format.
Adequacy of AHMSI's Privilege Log (DE 144)
AHMSI produced a privilege log on October 25, 2012 in connection with the Plaintiffs' document requests. The log identifies portions of “consolidated notes” that AHMSI is withholding on attorney-client and work product grounds. (DE 144–1) The Plaintiffs complain that the privilege log fails to describe with enough specificity the nature of the information being withheld, Universal City Development Partners, Ltd. v. Ride & Show Engineering, Inc., 230 F.R.D. 688, 696 (M.D. Fla. 2005) (privilege waived when log failed to identify the capacity of many recipients and did not provide sufficient information to assess the claim); Pensacola Firefighters' Relief Pension Fund Bd. of Trustees v. Merrill Lynch Pierce Fenner & Smith, 265 F.R.D. 589, 593 (N.D. Fla. 2010) (citing abundant district court case law concerning the necessity for a claim of privilege to accompanied by a detailed privilege log so that the requesting party may assess the claim.)
Fed.R.Civ.P. 26(5)(A) provides:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
The Plaintiffs further argue that AHMSI has waived the claim of privilege by failing to timely comply with the requirements of the Rule.
AHMSI responds that the redacted information in the consolidated notes log pertains to the Plaintiffs' foreclosure, and asserts that the privilege log makes this clear. According to AHMSI, this was explained to Plaintiffs' counsel when the parties conferred about this discovery dispute. The information is both privileged and irrelevant to this case, and all redactions concern notes subsequent to February 2009, when the foreclosure case was filed. Other portions of the redacted notes pertain to attorney client communications regarding the foreclosure. The un-redacted portions of the consolidated notes involve communications between the Plaintiffs' Attorney and AHMSI, and expressly relate to the foreclosure case. The Plaintiff did not file a reply.
It is undisputed that the Defendant did not serve its privilege log with its response to the Plaintiffs' Request for Production. In fact, the privilege log was served shortly before the Defendant filed its response to the motion to compel. The Court in Pensacola Firefighters noted that although the Eleventh Circuit has not determined what constitutes a timely production of a privilege log in response to a request for production, the only Circuit to address the issue concluded that a “holistic reasonableness analysis” should be employed. 265 F.R.D. at 593 (citing Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for the Dist. of Montana, 408 F.3d 1142 (9th Cir. 2005)). In Burlington, the Ninth Circuit held that:
*11 [U]sing the 30 day period as a default guideline, a district court should make a case-by-case determination, taking into account the following factors: the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy...or unusually hard.
Id. at 1149. This analysis was adopted by the Court in Universal City, 230 F.R.D. at 695.
The instant case was remanded by the Eleventh Circuit in August of 2012. On September 4, 2012, the Court entered an Order re-setting deadlines giving the parties until October 5, 2012 to complete discovery. The Requests for Production were served on September 18, 2012, and AHMSI served its responses on October 4, 2012.[5] AHMSI served its privilege log on October 25, 2012, after the Plaintiffs' filed their motion to compel. The privilege log pertains to a single document, a consolidated notes log prepared in connection with the Plaintiffs' account. The notes are redacted, and each redaction is identified as protected by both work product and attorney client privilege. The author of each redacted item is identified only by code, and no recipients are identified. No other information is provided which would enable the Plaintiffs or the Court to assess the privilege claims.
Although under the particular circumstances of this case the Court declines to find that AHMSI's privilege log was untimely, the Plaintiffs are correct that the privilege log does not provide sufficient information to determine whether the redacted communications were between counsel and employees of AHMSI who are entitled to assert attorney client privilege, or were otherwise entitled to work product protection. However, since the Plaintiff's did not respond to the Defendant's assertion that the redacted notes pertain to legal services related to the foreclosure as was explained during the deposition of the Defendant's Rule 30(b)(6) representative, the Court will not find the privilege to have been waived at this time. Instead, the Defendant shall serve a more detailed privilege log with respect to the consolidated notes to enable the Plaintiff to evaluate the privilege claims.
III. THE INTERROGATORIES (DE 131)
The Plaintiffs' motion seeks better responses to their Interrogatories numbered 1, 4, 7, 8, 9, 10, 12, 21 and 23. The Court will address each in turn.
Interrogatory 1. Please provide the name, address, telephone number, place of employment, job title and subject matter knowledge, of any person who has, claims to have or whom you believe may have knowledge or information pertaining to any fact alleged in the pleadings (as defined in Federal Rule of Civil Procedure 7(a)) filed in this action, or any fact underlying the subject matter of this action, including but not limited to the following:
*12 (1) All individuals who input information into AHMSI's call logs concerning the BIRSTERS' account;
(2) All individuals who communicated with the BIRSTERS about their account, whether orally or written;
(3) All telephone operators who called or received calls from the BIRSTERS;
(4) All individuals who inspected the BIRSTERS property; and
(5) All individuals who directed the activities described above.
Response. The response to this interrogatory can be answered in part by referencing the loan servicing history, which has been produced. This indicates the nature of the communications between Homeward and the Birsters. Between April 2, 2009 to June 2, 2009, the following individuals communicated with the Birsters, and inputted the information aobut the communication in the loan servicing history:
Tabular or graphic material set at this point is not displayable.
The only individual that remains an employee of Homeward is Amanda Strobel–Velasquez. The remaining individuals are no longer employed by Homeward. Homeward objects to providing the confidential information of its current and former employees, and this information has no bearing on any of the claims or defenses. Plaintiffs have other resources to obtain contact information for non-party witnesses. With respect to subpart (4), Homeward contracted Lender Processing Services, Inc., 30825 Aurora Road, Solon, Ohio 44139 with the exception of the inspection conducted on 10/05/2009 which was conducted by vendo: Safeguard Properties, LLC 7887 Safeguard Circle, Valley View, OH 44125. Homeward does not have the names of the specific individuals that performed the inspections. To the extent this interrogatory seeks additional information, Homeward objects because the request is overbroad, and unreasonably cumulative and duplicative. Further responding, the request for subpart (5) is protected by attorney client privilege and work product privilege, and the request is not reasonably calculated to lead to the discovery of admissible evidence.
The Plaintiffs complain that although AHMSI identified the names of certain individuals, it did not provide information sufficient to permit the Plaintiffs to subpoena them. Further, although AHMSI identified the companies with which it contracted to conduct the inspections of the Plaintiffs' property, they failed to identify the persons who inspected the property. This is information AHMSI should be able to acquire from the contractors. The Plaintiffs request that AHMSI be required to immediately provide this information.
AHMSI responded that the Plaintiffs have ample methods for tracking down fact witnesses, and point out that the Plaintiffs did not support their motion with an affidavit detailing what efforts they undertook to locate the witnesses. The Plaintiffs replied that prior to filing their motion, counsel discussed with AHMSI's counsel the difficulty she was having locating the witnesses, owing to the fact that she found multiple individuals with the same names, with no way to know which of them were employed by AHMSI.
Thereafter, AHMSI voluntarily supplemented its response to Interrogatory 1 (DE 142), indicating that it had provided the Plaintiffs with the names of all individuals who had spoken to the Plaintiffs, and with regard to the ex-employees, had provided their city of employment and the department in which they each had worked. The Plaintiffs replied to AHMSI's supplemental response (DE 143) contending that the response is still incomplete.
*13 The Court agrees with the Plaintiffs that a complete response to Interrogatory 1 requires AHMSI to provide the witnesses' addresses, telephone numbers and subject matter knowledge. Accordingly, to the extent that AHMSI has a record of addresses and telephone numbers for the witnesses listed in its response, it shall provide them to the Plaintiffs, together with the subject matter about which the witnesses may be expected to have knowledge. AHMSI shall further provided the names, addresses and telephone numbers of the individuals who conducted the inspections on behalf of the companies with which it contracted.
Interrogatory 4. Please describe in detail the location of each of the documents requested in Plaintiffs' First Request for Production, and the nature of the storage, whether physical or electronic. If electronic, please describe the format of the files.
Response. The loan file, servicing notes, and payment history are imaged documents accessible electronically, and printed copies of these documents were produced in response to plaintiffs' production request.
The Plaintiffs complain that when they received the documents on October 2, 2012, they notified AHMSI that many of the images were illegible. They requested AHMSI to provide a date, time and location for inspection. According to the Plaintiffs, AHMSI has not done so. AHMSI responds that the documents are available for inspection and copying at counsel's office.
Since the Plaintiffs did not reply it appears that the issue regarding Interrogatory 4 is resolved.
Interrogatory 7. Please state in detail a description of services that AHMSI performs for U.S. Bank, and your factual basis for contending that AHMSI's principal purpose is mortgage servicing and not collection of debts.
Response. The response to this interrogatory can be ascertained in part from the pooling and servicing agreement, which is publicly available on the SEC website and which has been produced in response to plaintiffs' production requests. This document outlines Homeward's responsibilities and obligations as the loan servicer for the Birsters' mortgage loan.
The Plaintiffs complain that the response indicates that the answer to the interrogatory can be ascertained in part from the pooling and servicing agreement, without specifying in sufficient detail the records which must be reviewed and without giving the Plaintiffs' a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries as required by Fed.R.Civ. P. 33(d). AHMSI responds that the documents referenced in the response fully respond to the request.
The Plaintiff did not reply with regard to this Interrogatory. Since AHMSI clarified its response to reflect that the pooling and service agreement is fully responsive, it shall amend its response to this interrogatory to reflect the clarification.
Interrogatory 8. Please state in detail all activities that AHMSI has engaged in to collect debts from April 1, 2008 to present.
Response. The response to this interrogatory can be ascertained from the pooling an servicing agreement, which is publicly available on the SEC website and which as been produced in response to plaintiffs' production requests, as well as the loan servicing notes, payment history, and loan file, all of which have been produced. Further responding, Homeward is a mortgage loan servicer and not an independent debt collector. Its business involves managing all aspects of mortgage loans for the loan's owner, including receiving and applying timely principal, interest and escrow payments, and, where necessary, maintain hazard insurance, advancing county property taxes, executing on the security interest when defaults occur, and in some instances communicating with borrowers concerning their loan. This is not an (sic) complete list of loan servicing functions, but illustrates Homeward's principal purpose is not collecting debts. To the extent this interrogatory seeks additional information, Homeward objects because it is not sufficiently limited in time or in scope. Homeward also objects because the request is vague, and the interrogatories do not sufficiently identify “engaged in” or “collect debts.”
*14 The Plaintiffs complain that AHMSI's response avoids the question by describing only what it does as a loan servicer. AHMSI contends that its response is fully detailed and describes exactly what it was contractually obligated to do in connection with servicing the Plaintiffs' loan. AHMSI argues that the fact that the Plaintiffs are dissatisfied with the response is no reason to compel a more detailed answer.
A responsive answer to Interrogatory 8 should include activities AHMSI has engaged in to collect any debts, not just those of the Plaintiffs. The Plaintiffs are correct that AHMSI's response avoids answering the question, which is relevant. Accordingly, AHMSI shall amend its response to Interrogatory 8 to answer the question posed.
Interrogatory 9. Please state in detail the number of dunning letters AHMSI has sent to any accounts that it services, or collects debts, from April 1, 2008 to present, and indicate the number of dunning letters sent per month, and indicate the method of delivery, whether by U.S. mail or otherwise.
Response. Homeward objects to this request because (i) the request is not sufficiently limited in time or in scope because the factual allegations in the complaint span from April 2008 to December 2009; (ii) the request is not reasonably calculated to lead to the discovery of admissible evidence as there are no allegations concerning “dunning letters” in the parties' pleadings; (iii) the interrogatory is vague because the definition of “dunning letter” essentially includes all correspondence sent to a borrower; (iv) the burden and expense of the proposed discovery outweighs the likely benefit, as there is no way to calculate the exact number of letters without searching individually through approximately 375,000 individual loan accounts, examining each individual loan account, and counting the number of letters sent to each borrower from April 2008 to date. The request is harassing, overbroad, and this information will not help resolve the issues in this lawsuit.
The Plaintiffs argue that this request is relevant to whether AHMSI is a debt collector. In their motion, the Plaintiffs reference the definition of “dunning letter” contained in its Request for Admissions.[6] For purposes of the Interrogatories, however, “dunning letter” is defined as follows:
(q) The term “dunning letter(s)” means any letter delivered in an attempt to or in compliance with the FDCPA, specifically 15 USC 1692g.
The Plaintiffs contend that based upon the definition of “dunning letter” that was supplied, the request is not vague, and AHMSI should be able to employ modern technology to search through its accounts, using keywords and phrases to obtain the information requested. AHMSI stands by its objection that the definition of “dunning letter” is so broad that it includes routine monthly payment letters.
*15 For purposes of the interrogatories “dunning letters” are defined as letters delivered in an attempt to be in compliance with the FDCPA. In other words, communications seeking routine monthly payment, otherwise known as billing statements, would not be included. To address AHMSI's concerns about overbreadth, the Court will limit the scope of this Interrogatory to the number of dunning letters delivered between April of 2008 and April of 2009. Accordingly, AHMSI shall amend its response to Interrogatory 9 as limited.
Interrogatory 10. Please state in detail the number of employees AHMSI has to make telephone calls to any account holder that it services, or collects debts, from April 1, 2008 to present, requesting payment on the account, and indicate the number of such calls made per month per employee.
Response. Presently, Homeward has approximately 3000 employees. To the extent this request seeks additional information, Homeward objects to this request because (i) the request is not sufficiently limited in time or in scope because the factual allegations in the complaint span from April 2008 to December 2009; (ii) the request is not reasonably calculated to lead to the discovery of admissible evidence as the number of employees has no bearing on the claims or defenses to this lawsuit; (iii) the burden and expense of the proposed discovery outweighs the likely benefit as there is no way to calculate the exact number of letters without searching individually through approximately 375,000 individual loan accounts, examining each individual loan account, and reviewing the loan history to determine when phone calls were made from April 2008 to date. The request is harassing, overbroad, and this information will not help resolve the issues in this lawsuit.
The Plaintiffs contend that the number of employees in AHMSI's debt collection department should be readily ascertainable from records it maintains in the ordinary course of business. AHMSI responds that the Court granted its motion for protective order with regard to the information requested by this Interrogatory. However, AHMSI misinterprets the Court's prior Order which merely agreed that AHMSI need not produce a corporate representative for deposition who could identify each of more than 3000 employees by name, location, job title and description of duties.
The Court agrees with the Plaintiffs that AHMSI should be able to ascertain how many people it employs to make phone calls to account holders requesting payment on an account. To narrow the scope of the interrogatory in time, AHMSI need only supply the number of individuals it employed between April of 2008 and April of 2009 to make phone calls to account holders requesting payment on an account.
Interrogatory 12. Please list any and all civil actions that have been brought against AHMSI from April 1, 2008 related to collection of the accounts that is services, and list the outcome of same.
Response. Homeward objects to the request as not reasonably calculated to lead to the discovery of admissible evidence, as other actions have no bearingon the claims or defenses in this lawsuit. Further responding, Homeward objects to this request because all information is publicly available.
The Plaintiffs assert that this request is likely to lead to evidence concerning whether AHMSI is a debt collector because other courts may have already made this determination. AHMSI stands by its objection that the request is not likely to lead to the discovery of admissible evidence.
*16 The Court finds that a response to this interrogatory could lead to the discovery of admissible evidence. The discovery of other civil actions involving AHMSI could reveal witnesses with relevant information concerning whether AHMSI is a debt collector for purposes of the FDCPA.
AHMSI also objects on the ground that the information sought in this interrogatory is publicly available. The case of Jackson v. West Virginia University Hospitals, 2011 WL 1831591 (N.D. W.Va. 2011) discusses objections on this ground, finding that “[c]ourts have generally held such an objection insufficient to resist a discovery request.” Id. at *2. After analyzing authority in Districts throughout the Country, the Court found that even if requested discovery is publicly available, “production through discovery requests insures: 1) both parties to the litigation will be working from the same documents at depositions or trial; 2) there is a certification by counsel that the document produced is the document on which he will rely whereas there is no such certification when the document is procured outside of discovery ... and 3) experts will be able to rely on a common set of documents in researching and formulating any opinion relevant to the litigation.” Id. at *3. The Court went on to explain that the party resisting production has the burden of establishing undue burden. Id. AHMSI has not articulated the nature of the burden it would suffer by being required to provide information that the Plaintiffs could also obtain from the public record. Accordingly, AHMSI's objection is overruled.
Interrogatory 21. Please state the total number accounts (1) you serviced for U.S. Bank from June 1, 2008 to present, and (2) the number of those accounts assigned to you from U.S. Bank after the debtor missed a payment, on an annual and monthly basis.
Response. Homeward serviced 4765 loans for U.S. Bank when it acquired the servicing portfolio from Option One on April 30, 2008. There is no way to determine how many loans in this pool were delinquent when Homeward acquired the servicing rights. To the extent this request seeks additional information, Homeward objects to this request as grossly overbroad and unduly burdensome. The burden and expense of the proposed discovery outweighs the likely benefit, as there is no way to determine which of these accounts were delinquent, and when, and the term “missed a payment” is impossible to define (e.g. as that could include a payment that was simply paid late, or that the missed payment was pursuant to a forbearance agreement.) The request is harassing, overbroad, and this information will not help resolve the issues in this lawsuit. Further, the interrogatory impermissibly seeks privileged and confidential financial information about non-parties.
The Plaintiffs contend that AHMSI likely maintains reports of its past due accounts for U.S. Bank in its regular course of business. AHMSI stands by its objection that “there is no way to determine how many loans in this pool were delinquent when Homeward acquired the servicing rights.” It then objects that the request is grossly overbroad and unduly burdensome to the extent that the interrogatory seeks the same information since it acquired the servicing rights.
The Court notes that it is unclear from AHMSI's response whether it has acquired more loans from U.S. Bank since it acquired the portfolio in April 2008. In other words, it does not fully answer subsection (1) which seeks the total number of accounts serviced to present. Accordingly, AHMSI shall amend its response to fully answer subsection (1).
*17 The Court also finds that the information most relevant in this case is the amount of loans in the pool that were delinquent when AHMSI acquired the servicing rights in April of 2008. If that information is obtainable from reports generated in the regular course of business, then AHMSI shall provide that information to the Plaintiffs.
Interrogatory 23. Please state in detail the actions you took following the delivery of the April 28, 2009 correspondence from counsel to cease and desist communications with the BIRSTERS, and your policies and procedures regarding same.
Response. The response to this interrogatory can be ascertained from the correspondence exchanged between Homeward and the Birsters, as well as the loan servicing notes, which have been produced in response to plaintiffs' production request. Further responding (sic)
The Plaintiffs complain that to the extent AHMSI took any additional action not documented, then the Plaintiffs are entitled to a better response. They also complain that the response fails to comply with Rule 33(d) which requires the responding party, when responding to an interrogatory by referencing documents, to specify the records that must be reviewed in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.
AHMSI responds that its answer is self explanatory and evident from the documents produced. It then explains that when it received the cease and desist communication, it forwarded correspondence to the Plaintiffs acknowledging such receipt, continued property inspections pursuant to the mortgage, and ceased making telephone calls to the Plaintiffs.[7]
AHMSI shall amend its response to Interrogatory 23 to clarify, as it did in its response to the motion referencing by Bate Number the specific documents it refers to.
IV. AWARD OF REASONABLE EXPENSES
The Plaintiffs seek an award of their reasonable expenses, including attorney's fees, in connection with each of the motions addressed in this Order. Fed.R.Civ.P. 37(a)(5) governs the award of fees when a motion to compel is granted. It requires the Court, after giving an opportunity to be heard, to award the reasonable expenses incurred in making the motion. However, “the court must not order payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's non-disclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id.
Each of the Plaintiff's motions (except the Supplemental Motion to Compel) contains a certificate of good faith conference. Although the Court has overruled many of AHMSI's objections, it found others reasonable. Discovery in this case was reopened after remand from the Eleventh Circuit, but for a truncated period forcing the parties to accomplish a considerable amount in a short time. The Court finds that under these particular circumstances, an award of fees is not warranted.
Being fully advised, it is hereby
ORDERED AND ADJUDGED:
1. The Plaintiffs' Motion to Compel and/or Determine Sufficiency of Answers and Objections to Requests for Admissions (DE 129) is GRANTED IN PART as follows:
*18 a. AHMSI shall amend its responses to Requests 21–25.
b. AHMSI shall amend its responses to Requests 28–43 and 45 to indicate whether it has made a reasonable inquiry and learned that the only way to obtain the information necessary to respond would be to search manually through 375,000 individual loan accounts. If the information can be obtained in some less burdensome fashion, AHMSI shall amend its responses accordingly.
c. AHMSI shall amend its responses to Requests 49–51 and 53 and 54.
d. AHMSI shall amend its responses to Requests 64–75 to indicate what inquiry it made in an effort to respond to these requests. If the information necessary to respond to these requests can be obtained in a less burdensome fashion than manually searching through 375,000 loan accounts, AHMSI shall amend its responses accordingly.
e. If AHMSI must, in good faith, qualify any of its amended responses, in good faith, it may do so, as long as its qualifications are compliant with Rule 36(a)(4).
2. The Plaintiffs' Motion to Compel Better Responses to Request for Production (DE 130) is GRANTED IN PART as follows:
a. AHMSI's objections with regard to Requests 8, 18, 35, and 41 are overruled and AHMSI shall produce responsive documents.
b. AHMSI shall produce documents responsive to Requests 15, 16, and 17, limited to letters delivered between April 1, 2008 and April 1, 2009. In order to protect the private information of non-parties, AHMSI may redact any information which would identify non-party borrowers.
c. AHMSI shall produce documents responsive to Request 20 which were generated between April 1, 2008 and April 1, 2009. Private information identifying non-parties may be redacted. If any documents are being withheld based upon privilege, they shall be identified with enough particularity that the Plaintiffs can properly evaluate the objection.
d. AHMSI shall produce documents responsive to Request 42. The reports or lists need not distinguish between types of missed payments, if they do not already do so. They may be redacted to eliminate information indentifying non-parties to protect their privacy.
e. AHMSI shall provide in native format all e-mail communications previously produced to the Plaintiffs.
3. The Plaintiffs' Supplemental Motion to Compel Better Responses to Request for Production (DE 144) is GRANTED IN PART. AHMSI shall serve a more detailed privilege log identifying with more particularity the individuals involved in the redacted communications.
4. The Plaintiffs' Motion to Compel Better Responses to First Set of Interrogatories (DE 131) is GRANTED IN PART as follows:
a. To the extent that AHMSI has record of addresses and telephone numbers for the witnesses listed in response to Interrogatory 1, it shall provide them to the Plaintiffs, along with the subject matter about which the witnesses may be expected to have knowledge. AHMSI shall further provide the names, addresses and telephone numbers of the individuals who conducted the inspections of the Plaintiffs' property on behalf of the companies AHMSI contracted with.
*19 b. AHMSI shall amend its response to Interrogatory 7 to reflect its clarification that the pooling and service agreement is fully responsive to the interrogatoy.
c. AHMSI shall amend its response to Interrogatory 8 to answer the question that was asked.
d. The scope of the Interrogatory 9 shall be limited the number of dunning letters delivered between April 1, 2008 and April 1, 2009. AHMSI's objections are otherwise overruled.
e. The scope of Interrogatory 10 shall be limited to the number of individuals employed between April 1, 2008 and April 1, 2009 to make phone calls to account holders requesting payment on an account. AHMSI's objections are otherwise overruled.
f. AHMSI's objections with regard to Interrogatory 12 are overruled.
g. AHMSI shall clarify its response to Interrogatory 21 to fully answer subsection (1) and, if reports generated in the regular course of business will reveal the number of loans in the pool that were delinquent when AHMSI acquired servicing rights in April of 2008, it shall amend its response to provide that information.
h. AHMSI shall amend its response to Interrogatory 23 to clarify as it did in its response to the Plaintiffs' motion, referencing by Bate Number the specific documents it refers to.
5. AHMSI shall comply with this Order on or before December 11, 2012.
6. The Plaintiff's motions for attorney's fees in connection with her motions are DENIED. The Court caution however, that failure to comply with this Order will result in sanctions.
DONE AND ORDERED at Fort Lauderdale, Florida, this 3rd day of December, 2012.
Footnotes
The Court is unsure what additional clarifying information made it possible for AHMSI to answer these requests, since the Plaintiffs' motion merely quotes the definition contained in their Request for Admissions.
AHMSI admitted without objection that one of the purposes of making telephone calls to borrowers was to collect past due mortgage payments.
Rule 7.1(3) requires counsel to confer orally or in writing, or make a reasonable effort to do so with all parties who may be affected by the relief sought in the motion in an effort to resolve the issues without involving the court. The Rule further requires Counsel to certify at the end of the motion and above the signature block either that counsel for the movant conferred with all parties or non-parties who may be affected by the relief sought in the motion and has been unable to do so or that counsel for the movant has made reasonable efforts to confer (which efforts shall be identified with specificity) but has been unable to do so. The Court notes that Plaintiffs' counsel asserts that she “made a good faith effort to obtain the requested information before filing the motion.” (DE 130, p. 14) The Court does not have enough information to determine whether the Plaintiffs made the type of efforts at conferral required by the Local Rules, and the Plaintiffs did not file a reply in support of their motion. Nevertheless, AHMSI does not specify which parts of the motion the Plaintiff did not confer with it about prior to filing. Under the circumstances, the Court will not deny the Plaintiffs' motion in its entirety on this basis.
AHMSI produced a privilege log on October 25, 2012, after the Plaintiffs filed their motion to compel. However, the documents identified by the privilege log do not appear to be responsive to Request 8 and they may or may not be responsive to Request 20. The Plaintiffs also challenge the adequacy of the privilege log. (DE 144) The Court will address the adequacy of the privilege log separately in this Order.
Owing to the unusually brief time allotted to complete discovery the Plaintiffs moved for an order requiring the Defendant to respond to their discovery requests in a shortened time. (DE 98) The Court granted the Plaintiffs' request in part, requiring a response to the Request for Production on or before September 28, 2012 (DE 99), which deadline was subsequently enlarged to October 1, 2012. (DE 109) The Court denied the Defendants request that the October 1, 2012 deadline be extended, and required the Defendant to serve its responses on or before October 4, 2012. (DE 112)
In the definition section of the Request for Admissions “dunning letter” is defined as “...any letter delivered that contains the same or substantially the same notice, or similar language: THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS DOES NOT IMPLY THAT AMERICAN HOME MORTGAGE SERVICING, INC. IS ATTEMPTING TO COLLECT MONEY FROM ANYONE WHOSE DEBT HAS BEEN DISCHARGED UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES. or any letter that is otherwise delivered in an attempt to collect a debt, or in an attempt to, or in compliance with the FDCPA, specifically 15 USC 1692g.
AHMSI explains that it produced the correspondence, mortgage and telephone logs from which this information can be obtained.