United States District Court, D. Idaho
STEWART TITLE GUARANTY COMPANY, a Texas corporation, Plaintiff,
CREDIT SUISSE, Cayman Islands Branch, Defendant.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it a motion to quash and for protective order filed by Credit Suisse, and a motion to compel discovery filed by Stewart Title. In this decision, the Court is resolving on an expedited basis only the issues raised in these motions concerning the three depositions set for November 19, 20, and 21, 2014. The Court will allow those depositions to proceed as scheduled, but the inquiry must strictly adhere to the limits placed on the reopening of discovery that allowed this discovery.
About a month after discovery had closed, Stewart Title filed a motion to reopen discovery. It argued that an event occurring after the discovery deadline was especially relevant to Stewart Title's claim that Credit Suisse failed to mitigate damages. More specifically, Stewart Title argued that Credit Suisse's failure to accept its tender to redeem two properties - known as the Trillium and Village Plaza II properties - constituted a failure to mitigate.
Credit Suisse's refusal was communicated to Stewart Title by Credit Suisse official, Megan Kane. Stewart Title sought to depose her and others who directed or participated in that decision to refuse the tender. Stewart Title also sought to submit a supplemental expert report on "Credit Suisse's refusal to redeem the foreclosed properties...." See Stewart Title Brief (Dkt. No. 146) at p. 10.
Judge Benson granted this portion of Stewart Title's motion, and reopened discovery for 60 days for Stewart Title to (1) depose Kane; (2) depose any Credit Suisse employee(s) and individual lender(s) who directed or participated in the decisions communicated by Ms. Kane regarding Credit Suisse's refusal to redeem; (3) submit a supplemental expert report on the issue; and (4) obtain production of all correspondence related to the failure to accept the tender for the redemption of the two properties.
Within that 60-day period, Stewart Title has noticed up three depositions: (1) Kane; (2) Charles Bender; and (3) Michael Criscito. Credit Suisse has filed a motion to quash and for protective order, arguing that Criscito's subpoena should be quashed and that the questioning of Kane and Bender should be limited.
Megan Kane Deposition
Credit Suisse objects to most of the subjects set forth in Stewart Title's Rule 30(b)(6) Notice setting the deposition of Kane, although it concedes that four areas are proper. The Court agrees in part with Credit Suisse's objections.
For example, the Notice seeks to inquire about "any efforts to mitigate damages claimed in the lawsuit." The reopening of discovery was done for a limited purpose - to inquire into Credit Suisse's refusal to accept the tender for redemption of the two properties, the Trillium and Village Plaza II properties. Stewart Title had a full opportunity to do discovery on mitigation during the original discovery period, and the Court is not going to reopen discovery on mitigation generally. Moreover, Stewart Title's briefing before Judge Benson was very narrow in its request for a reopening of discovery - that is a sound strategy for success, but it limits the scope of the successful result. Judge Benson carefully tracked Stewart Title's request in his decision, and did not go beyond that request. This Court will likewise refuse to expand discovery beyond that request. The Court will not allow inquiry into "any efforts to mitigate damages claimed in this lawsuit."
For identical reasons, the Court will not allow inquiry into (1) the sale of properties other than the Trillium and Village Plaza II properties; (2) communications with Banner/Sabey or Mike Dunne; (3) the New TR Acquisition Co. LLC; (4) the Tamarack Resort property; and (5) identities of those with "knowledge" or "notice" of the redemptions. These are all areas that were listed in Stewart Title's Notice that go far beyond the limited reopening of discovery allowed by Judge Benson.
The Court does find, however, that Stewart Title may inquire into decisions regarding the eventual redemption of the Trillium property, and the decisions concerning whether to redeem the Village Plaza II property. Credit Suisse has objected to these two areas, but the Court finds them ...