SouthPoint Bank v. Origin Bank
SouthPoint Bank v. Origin Bank
2022 WL 341132 (S.D. Miss. 2022)
January 24, 2022
Parker, Michael T., United States Magistrate Judge
Summary
The court granted Planters Bank & Trust Company's Motion to Compel in part, ordering Origin Bank to produce documents related to the Lubbock Loan and FSU Commitment, communications between Origin and the borrowers/guarantors, documents filed in the public record, and internal compilation reports. Origin was also directed to provide a privilege log for all documents withheld on the basis of privilege. The court declined to award attorney's fees to either party.
Additional Decisions
SOUTHPOINT BANK PLAINTIFF
v.
ORIGIN BANK DEFENDANT
and
PLANTERS BANK & TRUST COMPANY and PEOPLES BANCSHARES, INC. d/b/a PEOPLES BANK PLAINTIFFS
v.
ORIGIN BANK DEFENDANT
and
FIRST BANK PLAINTIFF
v.
ORIGIN BANK DEFENDANT
v.
ORIGIN BANK DEFENDANT
and
PLANTERS BANK & TRUST COMPANY and PEOPLES BANCSHARES, INC. d/b/a PEOPLES BANK PLAINTIFFS
v.
ORIGIN BANK DEFENDANT
and
FIRST BANK PLAINTIFF
v.
ORIGIN BANK DEFENDANT
CIVIL ACTION NO.: 3:21-cv-156-TSL-MTP, CIVIL ACTION NO.: 3:21-cv-381-KHJ-MTP, CIVIL ACTION NO.: 3:21-cv-392-HTW-LGI
United States District Court, S.D. Mississippi, Northern Division
Filed January 24, 2022
Counsel
Michael B. Odom, Pro Hac Vice, McGlinchey Stafford, PLLC, Birmingham, AL, Stephen T. Masley, McGlinchey Stafford, PLLC, Ridgeland, MS, for SouthPoint Bank in 3:21-cv-156-TSL-MTP.Sarah Elizabeth Wilson, D. Michael Hurst, Jr., Garrett Alan Anderson, Gregory Todd Butler, Phelps Dunbar, LLP, Jackson, MS, Ida Danielle Mashburn-Myrick, Phelps Dunbar, LLP, Mobile, AL, for Defendant in 3:21-cv-156-TSL-MTP.
William C. Brabec, Timothy J. Anzenberger, Adams and Reese, LLP, Ridgeland, MS, for Plaintiffs in 3:21-cv-381-KHJ-MTP.
Garrett Alan Anderson, Phelps Dunbar, LLP, Jackson, MS, for Defendant in 3:21-cv-381-KHJ-MTP, 3:21-cv-392-HTW-LGI.
Dennis L. Horn, Horn & Payne, PLLC, Madison, MS, Eileen N. Shaffer, Eileen N. Shaffer, Attorney, Jackson, MS, for Plaintiff in 3:21-cv-392-HTW-LGI.
Parker, Michael T., United States Magistrate Judge
ORDER
*1 [111] THIS MATTER is before the Court on the Urgent and Necessitous Motion to Compel filed by Planters Bank & Trust Company (“Planters”). Having considered the submissions of the parties and the applicable law, the Court finds that the Motion to Compel [111] should be granted in part and denied in part as outlined below.
In the Motion to Compel [111], Planters asks the Court to strike Origin Bank's (“Origin”) “boilerplate objections,” direct Origin to produce all responsive and non-privileged documents by a date certain, direct Origin to label the documents produced which correspond to each request for production, and to order that all privilege claims by Origin are waived for failing to provide a privilege log. See [112] at 2-3.
In its response, Origin argues that the Court should summarily deny Planters' Motion for failing to comply with L.U. Civ. R. 37, that its objections are reasonable given the overly broad and “burdensome” discovery requests, that Origin has produced documents as they are maintained in the usual course of business, and that it has “agreed” to provide a privilege log. See [130] at 6-10. On December 3, 2021, Planters filed its Reply [134]. On January 4, 2022, the Court held a Zoom discovery conference with the parties to address the various issues raised in the Motion to Compel [111]. The Court also held a discovery conference with the parties before the Motion was filed. This matter is now ripe for review.
The Motion to Compel [111] is somewhat unorthodox, as it asks the Court to address certain discrete issues in a vacuum instead of asking the court to direct responses to specific requests to production as contemplated by Local Uniform Civil Rule 37(b). This is explained, at least in part, by Origin's equally unorthodox responses to the requests which attempted to raise blanket, general objections without clearly indicating which objections it might be relying on to withhold documents or whether it even withheld responsive documents. Origin's Response [130] did identify the requests and objections and further appears to identify the records withheld.
The Court will attempt to address the issues raised by the parties as follows:
Good Faith Certificate
Origin asks the Court to deny the Motion to Compel on the basis that Planters did not attach a good faith certificate as required by L.U. Civ. R. 37(a). The Court declines to do so. The parties had a conference with the Court prior to the Motion being filed and the records reflect considerable “back and forth” between the parties about the discovery requests. The Court also conducted conferences with the parties both before and after the Motion was filed. The Court will not mechanically apply the rule under these facts when doing so would not lead to the “just, speedy, and inexpensive determination” of the issues.[1] See Fed. R. Civ. P. 1.
*2 That having been said, the Court made clear to the parties at the January 4 discovery conference that future discovery motions, both pending and otherwise, made without the requisite good faith certificate may be summarily denied on this ground.
Boilerplate Objections
One of Planters' primary issues with Origin's responses to its requests for production is with the general “boilerplate” objections raised by Origin. See [111] at 2. Planters' concern in this regard has some validity. It is difficult for the Court to apply a “general objection,” especially as applied to specific requests for production.
“General or boilerplate objections are invalid, and ‘[o]bjections to discovery must be made with specificity, and the responding party has the obligation to explain and supports is objections.’ ” See Lopez v. Don Herring Ltd., 327 F.R.D. 567, 578 (N.D. Tex. 2018); see also Fed. R. Civ. P. 34(b)(2). However, the objections are broad here as Planters' requests, though few in number, are equally broad in scope.[2] Additionally, the documents requested include large numbers of files and records involving other ongoing litigation with different loans and parties. In other words, the broad and general objections by Origin were somewhat invited by the broad discovery requests which implicate other litigated matters where privilege issues are bound to arise.
Documents Withheld:
Instead of striking Origin's objections, the Court will focus on the documents which Origin has withheld on various grounds as noted on pages 5 and 6 of Origin's Response [130] and determine whether the documents must be produced.
Documents related to the Lubbock Loan and Documents related to the FSU Commitment
Origin need not produce all documents related to the Lubbock Loan and FSU Commitment as the request is too broad and not in proportion to the needs of the case. The Court rejects the argument that all records are discoverable and in proportion to the needs of the case simply because the amount of the loan at issue was large. However, all written communications between Origin (or counsel for Origin) and the borrowers (or the potential borrowers as to the FSU Commitment),[3] guarantors, and/or counsel for the borrowers, potential borrowers, or guarantors related to the Lubbock Loan and FSU Commitment shall be produced.
In addition, as to the Lubbock Loan, Origin shall produce the documents executed by the borrowers and/or guarantors to close the loan. As to the FSU Commitment, Origin shall produce the commitment letter or such other documents which outline the terms of the commitment and the documents by which the commitment was terminated.
Production of the written communications and the records documenting these transactions shall allow Planters a reasonable opportunity to determine or verify what took place with respect to these transactions. In addition, Planters is free to inquire about the transactions in depositions if questions remain.
Origin shall produce the correspondence between Origin and/or its counsel and the guarantors and or/borrowers and/or their counsel in the other litigation.
Documents filed in the public record of any court proceeding or otherwise available in the public domain.
Pleadings filed in the “other litigation” need not be produced as they are readily and equally available to all parties. See Fed. R. Civ. P. 26(b)(1). However, aside from pleadings in the “other litigation,” it is not clear what other documents Origin may have withheld based on the ground that they are in the public domain. As the Court cannot determine what other documents were withheld and it is not clear that such other documents are readily available to Planters, this objection is otherwise overruled as too general. Accordingly, the remaining responsive “public domain” records shall be produced.
Undersigned counsel's litigation files related to the Other Litigation or this litigation, including internal/team correspondence, memoranda, notes and impressions, drafts, compilations, and analysis; Internal Origin communications concerning the Other Litigation and/or this lawsuit that include or reflect litigation strategy, impressions of counsel, advice of counsel, or that constitute work produce; and Communications between Origin and its attorneys.
During the January 4 discovery conference, counsel for Planters confirmed that it is not looking for counsel for Origin's work product, attorney-client communications, or their litigation files. Accordingly, these documents need not be produced at this time. However, Origin shall produce its correspondence (and that of its attorneys) with the borrowers, guarantors, attorneys for the borrowers/guarantors, the other parties, and the Court (with the exception of confidential settlement memoranda) in the other litigation.
Internal compilation reports that list the Haven-Starkville loan, among others.
During the multiple conferences with the parties, and in written communications with Origin, Planters made clear that it is not requesting compilation reports that may mention the loan. These documents need not be produced.
Identify Responsive Documents
*4 In addition to the admittedly withheld documents, Planters argues in its Motion [111] that Origin has produced large numbers of documents in batches, and that Origin has not identified the documents sufficiently for Planters to know which documents are responsive to which requests. See [134] at 6-7. Origin has maintained that it is producing documents as kept in the ordinary or usual course of business. See [130] at 9-10.
“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 of the request[.] Fed. R. Civ. P. 34(b)(2)(E)(i). The Court rejects Origin's assertion that it is producing documents as they are kept in the bank's usual and ordinary course of business. Its manner of producing selected files in batches and the withholding of specific documents demonstrates clearly that it has not produced records as kept in the ordinary course of business. Origin shall specify which records are being produced with respect to each response.
In its Response [130], Origin provided this information for documents Haven_Stark_0000001-0030119. During the conference with the parties, Origin indicated that additional documents have been produced since its Response [134] was filed. Origin shall supplement its production of documents by identifying which documents are responsive to which request for all documents produced.
Privilege Log
Planters also objects to Origin's production of redacted documents and refusal to produce documents on the basis of privilege without providing a privilege log as required by L.U.Civ. R. 26(e) and Fed. R. Civ. P. 26(b)(5). As noted above, Origin provided a list of documents in its Response [134] that it has produced as well as a list of documents that it objects to producing. Origin admits that some of the documents have not been produced on the basis of privilege. See [130] at 4-6.
During the January 4 conference with the parties, Origin indicated that it has or will be providing a privilege log. Even so, except for the documents which the Court has directed need not be produced, the Court directs Origin to produce a privilege log in compliance with L.U. Civ. R. 26(e) for all responsive documents withheld by Origin to Planters' Requests for Production on the basis of privilege. Origin shall prepare and serve the privilege log within fourteen days of this Order.
Attorney's Fees
Both Planters and Origin requested for the Court to grant them attorney's fees related to the filing of this Motion. The Court declines to do so. As both parties have prevailed to some degree, an award of attorney's fees is not appropriate at this time.
IT IS, THEREFORE, ORDERED that:
1. The Urgent and Necessitous Motion to Compel [111] is GRANTED in part and DENIED in part.
2. Origin Bank shall provide responsive documents as indicated in this Order to Planters Bank & Trust Company on or before February 7, 2022.[6]
3. If Origin Bank withholds any documents, a privilege log shall be provided indicating the document withheld and the privilege claimed on or before February 7, 2022.
*5 SO ORDERED this the 24th day of January, 2022.
Footnotes
The Court agrees in principle with Origin's insistence on strict compliance with the Local Rules. In practice, however, Origin has fared no better, filing several discovery motions of its own without the required certificate (see Motions [153 [155] [157]), failing to provide a privilege log, failure to identify documents withheld, etc.
For example, Planters' Request No. 3 requests production of “all files relating to or for the Loan, including all related Documents.” See [111-1] at 12.
According to Origin, the FSU Commitment project did not proceed to construction, and the commitment to provide financing was withdrawn. See [130] at 12.
Counsel for Origin.
The “Other Litigation” consists of: (1) Origin Bank v. Haven Campus Communities–Starkville, LLC, pending in the United States District Court for the Southern District of Mississippi, Case No. 3:21-CV-61-TSL-MTP (the “Collection Action”), (2) In re Haven Campus Communities – Starkville, LLC, pending in the United States Bankruptcy Court for the Northern District of Mississippi (the “Bankruptcy Case”), and (3) Haven Campus Communities – Starkville, LLC v. Development Enterprises of Starkville, Inc., pending in the United States Bankruptcy Court for the Northern District of Mississippi, Adversary Proceeding No. 21-01018-SDM (the Boundary Litigation”) (collectively these suits are referred to as the “Other Litigation”).
The issue over the period applicable to the requests at issue was addressed in the parties' conference with the Court, though apparently no resolution was reached. Unless stated otherwise herein, the scope of the document requests is limited from 2014 to the present. The loan was made in 2014 and while the participation agreements came later, documents from 2014 on are relevant to the claims and issues.