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

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Form of Production
Manner of Production
Failure to Produce
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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
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.
Defendant includes Request 33 and 36 under this category of requests relating to notice; however, Requests 33 and 36 have already been addressed supra, sections 2–3.