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Clark v. Bank of America, N.A.

United States District Court, D. Idaho

September 6, 2017

SHEILA CLARK, Plaintiff,
BANK OF AMERICA, N.A., as successor by, Defendants.


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Now pending before the Court is Plaintiff's Motion to Compel Production of Documents (Docket No. 70). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


         The underlying dispute in this action relates to a loan modification by Defendant Bank of America, N.A. (“BANA”) on Plaintiff's home mortgage. Plaintiff brings claims for breach of contract, fraud, breach of implied covenant of good faith and fair dealing, equitable estoppel, and intentional infliction of severe emotional distress. See generally Am. Compl. (Docket No. 17).


         FRCP 26 states that, in general, any matter relevant to a claim or defense is discoverable. Fed.R.Civ.P. 26(b) (“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”). Moreover, relevancy does not turn on admissibility - that is, relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. See id.


         A. Plaintiff's RFP Nos. 7-11

         Plaintiff's RFP Nos. 7-11 ask BANA to produce and identify all communication sent or received by specific individuals (Sheila Speller, Ashley Haufle, Janet Home, Denise Wolbert, and Patricia Manson) regarding the at-issue mortgage loan. See Mem. in Supp. of MTC, pp. 4-5 (Docket No. 70, Att. 1). As to each such request, BANA responded:

Subject to and without waiving its objections, BANA responds that it has produced documents containing information responsive to this Request at BANA 01900-BANA 02870.

See id. According to Plaintiff, the referenced “BANA 01900-BANA 02870" simply reflects the entire range of documents BANA produced in response to Plaintiff's Second Set of Requests for Production of Documents. See id. at p. 8. BANA does not disagree, but counters that (1) it produced responsive documents as they are kept in the usual course of business, as allowed by FRCP 34(b)(2)(E)(i); and (2) it conducted a “diligent search and is not aware of any additional, non-duplicative documents” responsive to these requests. Opp. to MTC, p. 2 (Docket No. 71).

         At the outset, it must be said that, in affixing their signatures to BANA's responses to Plaintiff's Second Set of Requests for Production (and, now, BANA's opposition to Plaintiff's Motion to Compel), BANA's counsel is representing under oath that BANA has identified any documents responsive to RFP Nos. 7-11 and has likewise produced the same. BANA's counsel have duties (as officers of the court) that go along with the signatures to the discovery responses, and the Court will accept their statements that there are no additional documents (as the responses have been framed) - in other words, the Court will not purport to order production of that which BANA claims does not exist or has already produced.

         The disconnect, however, is the potential space between what BANA has produced and whether that production actually contains the documents that Plaintiff seeks and has requested. On this point, Plaintiff argues that “no internal communication for each of the named individuals has been produced, ” despite notations elsewhere making references to such sought-after communications. Mem. in Supp. of MTC, p. 8 (Docket No. 70-1). But BANA's responses state exactly the opposite. See supra. To resolve this conundrum, by September 9, 2017, BANA must specifically identify those documents that have been produced which BANA contends are responsive to RFP Nos. 7-11. See Schwarzer, Tashima & Wagstaff, Federal Civil Procedure Before Trial, (2015) at § 11:1944 (“If the responding party produces a truckload of documents, saying ‘this is how they are kept, ' the requesting party may seek an order requiring the producing party to segregate the documents into categories.”); see also 8A Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice & Procedure, § 2213 (2014) (“Accordingly, in the first instance the producing party should retain the right to choose between the production formats authorized by Rule 34(b) (but not others), and the court should have the authority where necessary to direct some disclosure of the manner of organization of the producing party's files.”). Plaintiff's Motion to Compel is therefore granted, in part, and denied, in part, in this respect.

         B. Plaintiff's ...

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