In Grande v. U.S. Bank Nat’l Ass’n, No. C19-333 MJP (W.D. Wash. Feb. 20, 2020), Washington District Judge Marsha J. Pechman granted the plaintiffs’ motion to compel discovery, finding the policies requested were “relevant under the broad civil discovery standard” and that the defendants “ha[d] not demonstrated that the policies are confidential, proprietary, or trade secrets”. Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion.
In this case involving the plaintiffs’ allegations that the defendants breached a loan agreement (and violated several laws), the plaintiffs served written discovery on the defendants in July 2019 – to which the defendants responded in September 2019 with a production that the plaintiffs described as “completely deficient.” The Parties held a discovery conference in October and the defendants served amended responses several weeks later, which the plaintiffs indexed and determined that large numbers were duplicative and the defendants’ production remained deficient. After the plaintiffs drafted a Request for a Joint Submission to the Court pursuant to Local Rule 37, seeking assistance in resolving the discovery disputes, the defendants’ attorney declined to use the joint submission but claimed that the document provided him with “additional information” that clarified the alleged discovery deficiencies and asked for plaintiffs’ counsel to “work with him” to resolve the discovery dispute.
The plaintiffs held another discovery conference in November 2019 and the defendants agreed to supplement production with additional documents totaling 1,000 pages, voice recordings of four phone calls made by the Plaintiffs to Nationstar, a full life of loan history, and communications that had not been previously produced, all before November 28. The defendants produced the 1,000 pages but none of the other material, with no explanation. On January 11, 2020 the plaintiffs filed a Motion to Compel, seeking complete responses to a dozen Interrogatories and Requests for Production, as well as attorney’s fees. Several weeks later, the defendants produced additional documents, a privilege log, and supplemental discovery responses, but still did not produce documents responsive to Request for Production No. 17. The defendants argued that the loan modification guidelines requested in that request were not relevant and confidential, proprietary, and trade secrets.
With regard to the plaintiffs’ motion to compel and the defendants arguments, Judge Pechman stated: “First, the requested documents are relevant under the broad civil discovery standard, which allows litigants to ‘obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.’…Here, Plaintiffs contend that documents responsive to this request provide ‘information about the policies, processes, and procedures Defendants used to make various decisions regarding the Grandes’ loan modification application.’…Where Plaintiffs allege that Defendants’ evasive, shifting explanations for denying their loan modification were bad faith attempts to avoid their obligations, comparing Defendants’ policies to their behavior is relevant to Plaintiffs’ claims.”
Continuing, Judge Pechman stated: “Second, Defendants have not demonstrated that the policies are confidential, proprietary, or trade secrets… Here, Defendants have not moved for a protective order or listed the documents on a privilege log…Nor have they explained how these policies are trade secrets that give them a competitive advantage over competitors… Further, the only two cases cited by Defendants concern a third-party subpoena where the movant failed to demonstrate relevance and a case concerning a motion for a protective order, neither of which support Defendants’ position… Because the Defendants here have not described any harm that would result from producing the guidelines and have not sought a protective order, the Court declines to find the documents so confidential that they cannot be produced. Defendants must therefore produce all documents responsive to Plaintiffs’ Request for Production No. 17 within seven days of the date of this Order.”
Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion, stating: “Here, Plaintiffs brought this Motion after several good faith attempts to obtain the requested discovery…and nothing before the Court suggests that Defendants’ delay was justified or that an award of expenses would be unjust. To the contrary, Defendants’ substantial delay in responding to the discovery requests has delayed the trial in this matter…and necessitated the present Motion”.
So, what do you think? Was the court justified in granting the request for attorney’s fees or should it have been more patient since the defendants continued to supplement their production? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
By the way, there was some confusion about the list of EDRM Global Advisory Council members that I initially posted on Friday. I had thought that was the entire list, but it was only a supplemental list to the list of Global Advisory Council members announced earlier this year. I have updated my post to reflect the entire list of members — click here to view the post with the entire list this time.
Case opinion link courtesy of eDiscovery Assistant, which now is directly to the eDA site, enabling you to search within the case and see related cases (with eDA subscription).
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data..
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.