I. QUICKEN'S MOTION

Quicken seeks documents under three broad categories: (i) FHA guidelines, (ii) damages and causation, and (iii) certain affirmative defenses. Each is considered in turn.

A. FHA Guidelines

Quicken seeks to compel documents under various Requests for Production (“RFP”), which it contends would bear on the key issue of the alleged violation of FHA guidelines. While some of the guidelines are critical in this case, each RFP is flawed.

RFP 182 seeks “[d]ocuments sufficient to identify any and all differing interpretations by and among HUD's Homeownership Centers and HUD's headquarters as to the FHA guidelines concerning the underwriting practice alleged in the Complaint.” The Government rightfully objects that the request is vague. Pl. Resp. at 7 (Dkt. 99). The request calls on the Government to make a judgment about what constitutes an “interpretation” and whether that “differs” from some other interpretation of the agency. Document requests should define a category with “reasonable particularity,” rather than call on the producing party to engage in a subjective guessing game of whether a document is responsive. See Fed. R. Civ. P. 34(b)(1)(A).

RFPs 202 and 207 seek minutes and associated records of bi-weekly conference calls regarding guidelines. The Government argues that it has conducted a reasonable search for the documents in non-custodial ESI, including the relevant portions of the shared J: drives. Pl. Resp. at 8. It also claims that the documents were generally emailed and stored in custodial ESI, and should be captured by Quicken's broad search terms. Id. According to the Government, Quicken has refused to request additional ESI searches, even though that appears to be the protocol that the parties agreed to in their Rule 26(f) reports. Id. Quicken claims that the Government is using ESI discovery as some kind of “delay tactic.” Def. Mot. at 7 (Dkt. 93). But that contention is not substantiated. Rather, it is Quicken that appears to be seeking the more cumbersome and time-consuming route for locating documents for the relevant multi-year period.

RFP 200 seeks lists and associated documents kept by the Home Mortgage Insurance Division that identified which guidelines HUD was proposing to revise. Quicken says that its “review to date” has not located these documents. Id. at 9. After Quicken completes its review, it may renew its request to compel production of these documents if they are not part of what has already been made available. This action is without prejudice as well to the Government's counter-arguments against production.

*2 RFP 184 seeks an assortment of documents concerning efforts to expand the FHA lending program and loosen underwriting guidelines in response to the economic crisis of the relevant period. The request asks for documents that “concern, discuss, reflect or comment upon the consideration, decision, and implementation of policies, practices, initiatives and efforts to expand the program lending, loosen underwriting standards or guidelines, grant or allow underwriting exceptions, alter credit requirements towards expansion of credit availability, and otherwise encourage the use of FHA lending in any fashion at any time during the period 2005-2009, considered or undertaken in response, in whole or in part, to the credit crisis....” Using phrases such as “loosen underwriting standards” and “expand the program,” the request is a vaguely worded assortment of phrases that fails to describe with particularity what Quicken is seeking. Further, the request is overbroad, as this case is focused on only certain guidelines – those set out in the complaint (Dkt. 1) and the Government's Loan Findings (Dkt. 67) – not all of the guidelines as they may have existed during the relevant period.

For these reasons, the Court will not compel production relative to the above requests.[2]

1. Damages and Causation

RFPs 203-206 seek documents as to how damages were calculated. But the Government contends that that it has supplied “an extract of data related to damages, including all data fields requested by Quicken.” Pl. Resp. at 10. Quicken does not articulate why that information is not sufficient. It simply says that it “should have the ammunition necessary to probe how the losses reflected in data extracts were calculated....” Mot. at 9. But that undefined statement fails to articulate what is missing in the Government production and why that does not supply Quicken with the necessary “ammunition.” Quicken argues that the documents it seeks are “source materials,” which may be demanded when a summary is offered. See Fed. R. Evid. 1006. But it is not clear that an “extract” is the equivalent of a summary if it is not summarizing data from another source. Quicken fails to substantiate that the information provided qualifies under Fed. R. Evid. 1006. Without a clearer explanation regarding why the extracts are not sufficient or why Quicken is entitled to production under Fed. R. Evid. 1006, Quicken's motion on this point is not justified.

RFPs 177-181 seek documents relative to loss mitigation. While the Government contests whether mitigation is required under the False Claims Act, 31 U.S.C. § 3279 et. seq., it does not and cannot contest that it is available as a defense under the common law claims it has brought. Nonetheless, Quicken's requests regarding mitigation are improperly overbroad, because they are not targeted to loans where Quicken has reason to believe a sale of the mortgaged property fetched an inadequate price. Instead, its requests are broad-brush, seeking documents pertaining to all properties. See, e.g., RFP 177 (“All correspondence and communications between HUD or HUD-OIG and any of the Subject Contractors with respect to the performance of such Subject Contractor in the marketing, selling, managing, or closing of the HUD-owned real estate that secured Claim Loans.”). Quicken has been provided data on mitigation, Pl. Resp. at 12, which presumably includes what the properties sold for. To the extent that it can identify properties that sold below market values, it may be entitled to more information. But given the volume of loans at issue here – 2,804 – it is plainly disproportionate to demand information on many loans for which mitigation is not an issue.

RFPs 210-218 seek documents that discuss HUD's evaluation of program losses and loan defaults. But these are not documents that pertain to specific loans. Rather, they appear to be documents discussing overall conditions that can contribute to the process of default, such as poor economic conditions that lead to job loss and failure to keep up with payments. Def. Mot. at 11. It is unclear how these macro concerns would bear on Quicken's potential liability under the False Claims Act. While Quicken argues that such concerns would be relevant to causation, Id. at 11-12, the documents do not appear to address the default of any specific loan. The Government will not be compelled to produce these documents, because they bear no relevance to the specific issues in our case; even if there is some tangential relevance, the burden would be disproportional to the needs of the case.

2. Affirmative Defenses

*3 Quicken has a theory that this action is the product of a “political initiative unrelated to loan quality.” Def. Mot. at 14. To support that theory, it seeks a Government memo and email supposedly showing that. See RFPs 198-199. The Government has objected on the grounds that the theory is not relevant as a defense and the documents are protected by the attorney-client privilege and work product doctrine. Pl. Resp. at 14. In terms of relevant subject matter, the Government is correct that it has broad discretion to determine when, how, and against whom, to enforce various statutory schemes enacted for the public good. See, e.g., United States v. Leggett, 542 F.2d 655, 658 (6th Cir. 1976) (rejecting “discriminatory enforcement” as a defense to antitrust action brought by the United States, because “[t]he government alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically”) (internal quotation marks omitted). That does not necessarily mean that the memo and email sought here are not discoverable. If they show an admission by the Government that there was no fraudulent scheme, the documents would be highly relevant. That can only be determined upon inspection. Because there is an assertion of privilege, the Court will order that the two documents be furnished to the Court only, and a decision will later be made – after considering relevance, privilege and work product – whether they should be turned over to Quicken.

Quicken also seeks documents relative to the Government's decision to continue doing business with Quicken (RFP 189) and documents pertinent to its statute of limitations defenses (RFPs 162-163). The Government claims it is not aware of any responsive documents. The Government will be ordered to file a declaration, by June 11, 2018, detailing what search was conducted to look for such documents.

II. GOVERNMENT'S MOTION TO COMPEL

The Government's motion seeks two forms of relief: (i) production of loan files with the functionality available through Quicken's proprietary software (AMP, LARS, and GURU); and (ii) an order requiring Quicken to respond to the Loan Findings memoranda (Dkts. 67, 69).

Regarding the first issue, the Government argues that Quicken has not presented its information in usable form, allegedly in violation of Federal Rule of Civil Procedure 34(b)(2)(E)(ii). Pl. Mot. at 12 (Dkt. 92). It argues that the Government has been stymied in examining Quicken underwriters, because the documents it has shown witnesses are not in the formats with which they have familiarity. Id. Quicken responds that the Government exaggerates the difficulties encountered. See generally Def. Resp. at 6-13 (Dkt. 100). Further, Quicken claims that there is no feasible way to grant the Government access only to relevant loans in AMP and LARS, as well as access to GURU underwriting guidelines, without also allowing the Government to access other proprietary intranet sites and resources that hold non-discoverable Quicken data unrelated to this lawsuit. Id. at 9-10.

Because Quicken's claim of infeasibility of access needs to be explored fully, the Court will conduct an evidentiary hearing on that issue on June 14, 2018 at 9:30 a.m. Quicken will be given 30 minutes for direct testimony of witnesses; the Government will be allowed 30 minutes for cross-examination; 15 minutes will be allowed for redirect. Similar periods will be allowed if the Government wishes to call witnesses.

As to compelling a response from Quicken to the Loan Findings Memoranda, Quicken is correct in pointing out that it is not under any obligation, by court rule or prior court order, to respond to the Loan Findings. The Government previously sought such an order, but the Court denied the request for leave to file such a motion as premature, stating that the case was then in its early stages of discovery, and that Quicken was entitled to “sufficient time to understand the details of the Government's case and canvass its own records and personnel before it must register agreement or disagreement with the Government's contentions.” 9/26/17 Order (Dkt. 70). The order, however, went on to state that “[t]here may well come a time when a process will need to be developed to fine-tune the parties' respective positions on the details of the various loans....” In a related vein, more recently, the Court stated its intention to hold a conference to discuss future motion practice. See 4/15/18 Order (Dkt. 98).

*4 The Court does believe that it would be fruitful for counsel to have a conference, first among themselves and later with the Court, to explore the mode of presenting the parties' respective cases at trial, and the way in which remaining discovery efforts and motion practice should be organized in light of such suggested modes of proof. Therefore, counsel shall confer on these issues and submit a joint statement setting forth points of agreement and disagreement on or before June 18, 2018. An in-person conference shall be conducted with the Court on June 27, 2018 at 9:30 a.m.

III. CONCLUSION

For all of the above reasons, the Court denies in part both Quicken's motion (Dkt. 93) and the Government's motion (Dkts. 91, 92), except as otherwise provided above. Furthermore, the Government shall file its declaration regarding searches and produce the Government memo and email referenced above by June 11, 2018. The parties shall file their joint statement by June 18, 2018. They shall appear for an evidentiary hearing on Quicken's software on June 15, 2018 at 9:30 a.m. and for a conference on the joint statement on June 27, 2018 at 9:30 a.m.

SO ORDERED.

Dkt. 91 is the sealed motion; Dkt. 92 is the unsealed version of the motion.

Quicken also moved regarding RFP 201, but the Government contends, without contradiction, that the parties are engaged in negotiations regarding the Government's claim of privilege. Pl. Resp. at 9. Because the Government says that there is no current dispute to be resolved, the Court will not further address RFP 201 at this time.