FDIC v. Old Republic Nat'l Title Ins. Co.
FDIC v. Old Republic Nat'l Title Ins. Co.
2013 WL 12096453 (S.D. Fla. 2013)
November 13, 2013
Hunt, Patrick M., United States Magistrate Judge
Summary
The court granted Defendant's Motion to Compel in part and denied it in part, ordering Plaintiff to produce the requested documents related to the CPL's at issue. The court also determined that Plaintiff is not required to produce or reproduce ESI in a format different than the format in which it is kept in the ordinary course of business. The court denied Defendant's motion for attorney's fees associated with its Motion to Compel.
Federal Deposit Insurance Corporation, as Receiver for Washington Mutual Bank, Plaintiff,
v.
Old Republic National Title Insurance Company, Defendant
v.
Old Republic National Title Insurance Company, Defendant
CASE NO. 12-81172-CIV-ZLOCH/HUNT
United States District Court, S.D. Florida, Fort Lauderdale Division
Signed November 13, 2013
Counsel
Aaron M. Forester, Federal Deposit Insurance Corporation, Arlington, VA, Antony S. Burt, Matthew Crowl, Mir Y. Ali, Sarah A. Ratliff, Tal C. Chaiken, Brian L. Josias, Schiff Hardin, LLP, Chicago, IL, Carla M. Barrow, Joan Carlos Wizel, Onier Llopiz, Lydecker | Diaz, Miami, FL, for Plaintiff.Aaron Christopher Wong, Cynthia Morales, Mario M. Ruiz, Cohen Ruiz P.A., Miami, FL, for Defendant.
Hunt, Patrick M., United States Magistrate Judge
ORDER ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS
*1
THIS CAUSE is before this Court on Defendant's Motion to Compel
Production of Documents from Plaintiff and Defendant's accompanying
Request for Oral Argument. (DE 43–44). On October 21, 2013, the
Honorable William J. Zloch referred the Motions to the undersigned for
disposition. (DE 55); see also 28 U.S.C. § 636(b)(1)(A);
S.D. Fla. L.R. Mag J Rule 1(c). This Court has carefully reviewed
Defendant's motions and the responses and replies thereto, the case
file, applicable law, and is otherwise fully advised on the matter. For
the reasons set forth below, it is hereby ORDERED AND ADJUDGED that
Defendant's Motion for Oral Argument is DENIED,[1] but Defendant's Motion to Compel is GRANTED IN PART AND DENIED IN PART.
Background
On
October 23, 2012, Plaintiff, Federal Deposit Insurance Company (“FDIC”)
as receiver for Washington Mutual Bank (“WaMu”), filed its Complaint
against Defendant Old Republic National Title Insurance Company (“Old
Republic”) for the alleged breach of five closing protection
letters/indemnity contracts (the “CPL's”). (DE 1). The Complaint was
later amended on July 3, 2013. (DE 34). On July 17, 2013, Defendant
answered the First Amended Complaint by asserting affirmative defenses
challenging, inter alia, causation, damages, standing, and
several notice-related issues. (DE 35). On August 9, 2013, Plaintiff
filed a Motion to Strike the following affirmative defenses of
Defendant: (1) the Third and Fourth Affirmative Defenses based on WaMu's
fault for their own damages under the CPL's; (2) the Ninth Affirmative
Defense based on WaMu's “unclean hands” because of its own employees' or
agents' fraudulent behavior; and (3) the Fourteenth Affirmative Defense
based on an apportionment of fault to third parties involved with the
CPL's. See (DE 35 at 7–9; DE 38).
On
September 3, 2013, Defendant filed the instant motions, requesting this
Court to compel Plaintiff to provide all documentation responsive to
Defendant's First Request for Production. (DE 43–44). Specifically,
Defendant claims that Plaintiff failed to adequately respond to
Defendant's requests to produce by improperly using general objections
to discovery. (DE 43 at 3 n.2). Defendant also argues that Plaintiff is
required to produce documents in the possession of third-party JP Morgan
Chase (“Chase”) that relate to the CPL's. (DE 43 at 12–13). Last,
Defendant requests this Court to compel Plaintiff to reproduce
electronically stored information (“ESI”) in a form more suitable to
Defendant. (DE 43 at 11–12). Defendant attached Exhibit A to its Motion
to Compel, wherein it set out each request for production and the
alleged inadequate responses thereto. (DE 43 Ex. A). Defendant only
omits objections to requests “17” and “35,” out of a total 36 requests,
from its list of inadequate responses. See (DE 43 Ex. A).
On
September 20, 2013, Plaintiff responded to the Motion to Compel. (DE
48). Plaintiff's Response asserts that it has fully complied with the
requests for relevant documents that it has in its possession, control,
or custody, but argues that Defendant's requests were mostly too broad
in scope because they were not limited to documents concerning the CPL's
at issue. (DE 48 at 1). Thereafter, on September 27, 2013, after full
briefing on the Motion to Strike but before full briefing on the Motion
to Compel, Judge Zloch denied Plaintiff's Motion to Strike.[2] (DE 50).
Analysis
*2
The contested discovery can be broken-down, with some overlapping, into
the following categories: (1) Plaintiff's General Objections applied to
all 36 requests; (2) requests for documents pertaining to causation of
damages, e.g., WaMu's loan policies and procedures—Requests 15–16,
29–34; (3) requests for documents pertaining to the amount of damages
and standing, e.g., value of subject properties and foreclosure
documents—Requests 6–9, 14, 18–19, 36; (4) requests for documents
relating to notice of breach, e.g., subpoenas regarding the
CPL's—Requests 25–28; (5) request for documents allegedly not in
Plaintiff's possession, control, or custody, e.g., documents retained by
Chase related to the CPL's; (6) remaining Requests 1–5, 10–13, 20–24;
and (7) Defendant's objections to the format of the documents already
produced by Plaintiff.
Federal Rule of Civil Procedure 26(b) sets forth the parameters of discovery, in relevant part, as follows:
Parties
may obtain discovery regarding any nonprivileged matter that is
relevant to and party's claim or defense.... For good cause, the court
may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence. ...
....
On
motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule 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.
See also Bellosa v. Universal Tile Restoration, Inc., No. 08-60054, 2008 WL 2620735, at *2 (S.D. Fla. 2008) (addressing discovery guidelines under Rule 26).
These rules of discovery should be applied liberally to allow parties
to gather information that will aid them in their case. See Adkins v. Christie, 488 F.3d 1324, 1331 (11th Cir. 2007) (citing Burns v. Thiokol Chem. Corp., 483 F.2d 300, 305 (5th Cir. 1973)); see also Fed. R. Civ. P. 26
Adv. Comm. Notes, 1946 Amend. (“The purpose of discovery is to allow a
broad search for facts, the names of witnesses, or any other matters
which may aid a party in the preparation or presentation of [its]
case.”).
“Nonspecific,
boilerplate objections do not comply with U.S. Southern District of
Florida Local Rule 26.1(g)(3)(A), which provides, ‘Where an objection is made to any interrogatory or subpart thereof or to any production request under Federal Rule of Civil Procedure 34, the objection shall state with specificity all grounds.’ ” Chavez v. Mercantil Commercebank, N.A., No. 10-23244, 2011 WL 1135005, at *2 (S.D. Fla. March 28, 2011).
“Any ground not stated in an objection ... shall be waived.” S.D. Fla.
L.R. 26.1(g)(3)(A). “To be adequate, objections ... should be ‘plain
enough and specific enough so that the court can understand in what way
the [discovery is] alleged to be objectionable.’ ” Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)); see also Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)
(holding that a party resisting discovery “must show specifically how
... each interrogatory is not relevant or how each question is overly
broad, burdensome, or oppressive”). Accordingly, “this district
typically condemn[s] boilerplate objections as legally inadequate or
‘meaningless.’ ” Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) (citing various Southern District of Florida cases condemning boilerplate objections).
*3
Here, Plaintiff responded to Defendant's First Request for Production
by including seventeen “General Objections.” Plaintiff stated that the
General Objections apply “to each and every one of the [36] Requests ...
[and] are incorporated into each specific response set forth below
whether or not specifically referenced, and are neither waived nor
limited by any specific response.” (DE 43 Ex. 2 at 1). A majority of the
blanket objections are overly general and reused as “specific”
objections under each request. For example, Plaintiff asserts in General
Objection 4 and subsequent specific objections, as follows,
“Plaintiff objects to the Request to the extent they are overbroad, are
unduly burdensome, seek information that is not reasonably calculated to
lead to the discovery of admissible evidence, are harassing, or have
been made for any other improper purpose.” (DE 43 Ex. 2 at 2).
Plaintiff's
vague, boilerplate objections (specifically General Objections 1–2 and
4–7) do not meaningfully present this Court, or Defendant, with enough
information to understand which specific documents Plaintiff objects to
providing or for what specific reason. This Court will not entertain
broad-stroked, nonspecific objections. See, e.g., Ochoa v. Empresas ICA, S.A.B. de C.V., No. 11-23898, 2012 WL 3260324 (S.D. Fla. Aug. 8, 2012)
(holding that objections to requests for production which attempt to
incorporate boilerplate objections are “unhelpful and unacceptable, and
will not be accepted by the Court going forward.”). Accordingly,
Plaintiff's General Objections 1–2 and 4–7 are overruled.
Notwithstanding
Plaintiff's failed attempt to use General Objection 4—which states that
“Plaintiff objects to the Request to the extent they are overbroad, are
unduly burdensome, seek information that is not reasonably calculated
to lead to the discovery of admissible evidence, are harassing, or have
been made for any other improper purpose”—Plaintiff also states in its
“specific” objections to Requests 15 and 16, as follows, “Plaintiff
objects ... as being overbroad, unduly burdensome, not reasonably
limited in scope, and not reasonably calculated to lead to the discovery
of admissible evidence.” (DE 43 Ex. 2 at 10).
Plaintiff's
objections to Requests 29, 30, and 33, state, “Plaintiff further
objects to this Request as being irrelevant, overbroad, unduly
burdensome, not reasonably limited in scope, and not reasonably
calculated to lead to the discovery of admissible evidence.”[3] (DE 43 Ex. 2 at 15–16).
Plaintiff's
objections to Requests 31, 32, and 34, state: “Plaintiff objects ... to
the extent that it calls for the production of trade secrets or
confidential commercial information. Plaintiff further objects to this
Request to the extent that it is overbroad, unduly burdensome, not
reasonably limited in scope, and not reasonably calculated to lead to
the discovery of admissible evidence.” (DE 43 Ex. 2 at 15–16).
The
above referenced objections are identical to those phrased in the
General Objections and, likewise, are improperly vague. Additionally,
this Court determines that the requested documents are relevant, with
limitation. Though the specifics relating to 1.5 million unrelated loans
are not relevant, the underlying policies and procedures used to
execute loans at the time of the CPL's is relevant to Defendant's
causation defense—that notwithstanding Defendant's alleged fraudulent
acts, WaMu's aggressive lending policies would have resulted in the
execution of the CPL's. Accordingly, this Court orders Plaintiff to
provide all of the requested documents in Requests 15, 16, 29, 30, 31,
32, 33, and 34 that relate to the underlying policies and procedures
used by WaMu to execute loans at the time the CPL's were executed.
*4
First, Plaintiff's response to Request 9 states that “Plaintiff will
produce responsive, non-privileged documents in its possession, custody,
or control, including those documents that can be obtained from JP
Morgan Chase upon request.” (DE 43 Ex. at 2). Thus, despite Defendant's
inclusion of this response as objectionable, there is no need for this
Court to compel Plaintiff to produce documents it has agreed to produce.
The
remaining requests relating to damages are relevant, but overbroad in
that they are not solely limited to the CPL's that are the subject of
this action. (DE 43 Ex. 2 at 7). Defendant uses the terms “any” and
“all” when referring to many different discovery requests. Plaintiff
objects to the requests by stating that the requests are “overbroad,
unduly burdensome, not reasonably limited in scope, and not reasonably
calculated to lead to the discovery of admissible evidence.” (DE 43 Ex. 1
at 3). Both parties are guilty of using overly broad statements and
objections. See Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)
(“[T]he mere statement by a party that the interrogatory was ‘overly
broad, burdensome, oppressive and irrelevant’ is not adequate to voice a
successful objection to an interrogatory. On the contrary, the party
resisting discovery must show specifically how each interrogatory is not
relevant or how each question is overly broad, burdensome or
oppressive.”). Accordingly, this Court determines that Plaintiff shall
respond to Requests 6–8, 14, 18–19, and 36, only to the extent that such
requests apply to documents related to the CPL's at issue, including
documents related to the bulk sale of mortgage loans on September 25,
2008, which included the CPL's.
Similar
to the other objections to requests previously addressed, Plaintiff's
responses are generic statements of privilege, scope, and relevance.
Because Plaintiff has failed to specifically object by identifying why
the documents should not be discoverable, this Court orders Plaintiff to
produce the responsive documents related to Requests 25–28.
Defendant
asks this Court to compel Plaintiff to provide requested documents that
may be in Chase's possession. Plaintiff's Response to the Request for
Production has repeated statements, under various requests, that
“Plaintiff will produce responsive, non-privileged documents in its
possession, custody, or control, including those documents that can be
obtained from JP Morgan Chase upon request.” See, e.g.,
(DE 43 Ex. 2 at 11). Plaintiff also restates in its Response to the
Motion to Compel that it has received some of the requested documents
from Chase, is preparing them to be submitted to Defendant, and will
continue to provide documents received from Chase on a rolling basis.
(DE 48 at 1 n.1). However, Plaintiff later challenges Defendant's
requests for documents in Chase's possession because they are not within
Plaintiff's possession, custody, or control. (DE 48 at 2).
Plaintiff's
argument that documents in Chase's custody concerning the CPL's are not
within Plaintiff's “possession, custody, or control,” is inconsistent
with Plaintiff's responses to the requests, which acknowledge that
documents in its possession, custody, or control, include documents that
can be obtained from Chase upon request. Regardless, Defendant's
request to compel documents in Chase's possession is moot because
Plaintiff represents that it is actively complying with the requests.
Plaintiff shall continue to comply with the production of documents in
Chase's possession responsive to the Requests discussed herein.
*5
Defendant asks this Court to compel responses to all other requests not
specifically addressed above based on Plaintiff's vague objections to
the specific requests. Indeed, various improperly vague objections are
contained in Plaintiff's response to Requests 1–5, 10–13, and 20–24.
Accordingly, Plaintiff shall produce responsive documents to these
requests that pertain to the subject CPL's, concern WaMu's loan policies
and procedures at the time the CPL's were executed, and are in
Plaintiff's possession or attainable by request to Chase.
Federal Rule of Civil Procedure 34(a) provides, in pertinent part, as follows:
A party may serve on any other party a request within the scope of Rule 26(b):
(1)
to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding
party's possession, custody, or control:
(A)
any designated documents or electronically stored information—including
writings, drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations—stored in any medium
from which information can be obtained either directly or, if necessary,
after translation by the responding party into a reasonably usable form ....
(Emphasis added). The procedure for production of documents or electronically stored information is guided by Rule 34(b)(2)(E), as follows:
(i)
A party must produce documents as they are kept in the usual course of
business or must organize and label them to correspond to the categories
in the request.
(ii)
If a request does not specify a form for producing electronically
stored information, a party must produce it in a form or forms in which
it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
Defendant
argues in its Motion to Compel, “While WaMu finally produced thousands
of pages in response to Old Republic's requests ... it failed to produce
these documents in the form in which they were maintained by the bank.”
(DE 43 at 11) Defendant states that the documents were produced in “the
format most convenient to WaMu's counsel and its available document
management software ‘in accordance with the Production Protocol proposed
by Plaintiff on March 11, 2013.’ ” (DE 43 at 11 (quoting Ex. B at 4)).
Defendant also argues that the documents were not organized and labeled
to correspond to the categories in the request, as contemplated by Rule 34(b)(2)(E).
Plaintiff argues, however, that it did not need to organize the
documents because they were produced “as they [were] kept in the usual
course of business (as emails, attachments, and other records maintained
on the FDIC-R's server or obtained from Chase).” (DE 48 at 13).
Plaintiff states that Defendant did not specify the form of production.
(DE 48 at 13). Accordingly, Plaintiff produced the documents as
“TIFF's,” including metadata fields. Plaintiff represents that the “TIFF
is a reasonably usable format that is compatible with most document
management programs, and the metadata fields further enable electronic
searching.” (DE 48 at 14).
A plain reading of Rule 34
supports Plaintiff's position. Defendant did not ask for specific forms
of production; thus, Plaintiff could produce the ESI in the way in
which it was maintained in the usual course of business. There is no
indication that Plaintiff produced the ESI in a manner inconsistent with
the way in which it was kept during the normal course of business, and
this Court will not compel that which Defendant failed to originally
request. See D'Onofrio v. SFX Sports Grp., Inc., 247 F.R.D. 43, 48 (D.D.C. 2008) (citing Fed. R. Civ. P. 37(a)(1)(B); Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007))
(“A motion to compel is appropriate only where an appropriate request
is made of the responding party.”). Accordingly, this Court denies
Defendant's request to compel reproduction of ESI in a different format.
Conclusion
*6 Based on the analysis contained herein, it is hereby ORDERED AND ADJUDGED as follows:
(1) Defendant's Request for Oral Argument is DENIED; and
(2) Defendant's Motion to Compel is GRANTED IN PART AND DENIED IN PART as follows:
(a)
To the extent that Plaintiff has not already complied, Plaintiff shall
produce to Defendant documents responsive to Requests 1–16, 18–34, and
36 that relate to the CPL's at issue or WaMu's loan policies and
guidelines in effect at the time the subject CPL's were executed.
(b)
Plaintiff shall continue to provide, on a rolling basis, responsive
documents to 1–16, 18–34, and 36—as limited by this Order—that are
attainable by request to JP Morgan Chase;
(c)
Plaintiff is not required to produce or reproduce electronically stored
information in a format different than the format in which it is kept
in the ordinary course of business;
(d) All production ordered herein shall be produced on or before November 25, 2013;
(e)
Defendant's motion for attorney's fees associated with its Motion to
Compel is DENIED because this Court finds that an award of fees would be
unjust and some objections were substantially justified. See Fed. R. Civ. P. 37(a)(5)(A)(ii)–(iii).
DONE AND ORDERED at Fort Lauderdale, Florida this 13th day of November 2013.
Footnotes
The undersigned finds that oral argument was unnecessary given the thoroughness of the parties' briefing.
Plaintiff
relied on its motion to strike in support of its claim that some of the
requests were going to be irrelevant. Because this Court subsequently
denied Plaintiff's Motion to Strike, Plaintiff's arguments in opposition
to the Motion to Compel that are buttressed by the Motion to Strike are
meritless.
Plaintiff
also objects to Requests 29 and 30 “to the extent that [they] impl[y]
that WaMu is an existing entity with present employees.” (DE 43 Ex. 2 at
15). This specific objection has no bearing on this Court's review.