Mashiri v. Ocwen Loan Servicing, LLC et al, No. 3:2012cv02838 - Document 60 (S.D. Cal. 2014)
Court Description: ORDER granting 55 MOTION to Compel Plaintiff to Attend Further Deposition; to Respond to Questions and Produce Documents; and Request for an Order Awarding Attorneys Fees and Costs. Plaintiff is ORDERED to appear at a further deposition for no lon ger than four hours at a date to be agreed upon by the parties. Although the deposition may occur later, the parties must agree on a date, time and location within seven days of the filing date of this Order. Plaintiff is ORDERED to produce a compl ete and accurate copy of the voice mail recordings allegedly made to his mobile telephone by persons he believes to be representatives of Defendant no later than ten days following the filing date of this Order. Counsel for Plaintiff is ORDERED to b ear the cost of the official reporter and interpreter for the further deposition of Plaintiff. Counsel for Plaintiff also is ORDERED to pay the cost of any facility necessary to conduct the further deposition if a cost normally would apply. Counsel for Plaintiff is ORDERED to reimburse Defendant the sum of $960.00 representing the costs and fees for Defendant preparing and bringing this motion no later than thirty days following the filing date of this Order.See attached Order. Signed by Magistrate Judge Mitchell D. Dembin on 9/15/14. (Dembin, Mitchell)
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Mashiri v. Ocwen Loan Servicing, LLC et al Doc. 60 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FARID MASHIRI, Plaintiff, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. OCWEN LOAN SERVICING, LLC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 12cv2838-L (MDD) ORDER GRANTING DEFENDANT’S MOTIONS TO COMPEL AND FOR SANCTIONS [55] AND DENYING PLAINTIFF’S MOTIONS TO TERMINATE DEPOSITION AND FOR SANCTIONS [54]. [ECF NOS. 54, 55] ______________________________ Before the Court are two Joint Motions. The first presents Plaintiff’s Motions to Terminate Plaintiff’s Deposition and for an Order Awarding Attorney’s Fees and Costs. (ECF No. 54). The second presents Defendant’s Motions to Compel Plaintiff to Attend Further Deposition, To Respond to Questions and Produce Documents, and for an Order Awarding Attorney’s Fees and Costs. (ECF No. 55). Both were filed on August 21, 2014. As provided below, Defendant’s Motions are GRANTED and Plaintiff’s Motions are DENIED. Background Originally filed in Superior Court, this case was removed to this Court on November 27, 2012. (ECF No. 1). The operative pleading is 12cv2838-L (MDD) Dockets.Justia.com 1 the First Amended Complaint filed on June 25, 2013. (ECF No. 18). 2 There are fourteen federal and state causes of actions alleged. (Id.). In 3 gross summary, Defendant is the current servicer of a mortgage on 4 Plaintiff’s home. All of the allegations relate to Defendant’s handling of 5 Plaintiff’s mortgage including attempts to foreclose, collect the debt and 6 modify the loan. (Id.). A more detailed factual summary may be found 7 in the Order Denying Defendant’s Motion to Dismiss filed on October 8 28, 2013. (ECF No. 29). 9 The instant dispute derives from the deposition of Plaintiff taken 10 on June 25, 2014. Plaintiff seeks an order terminating the deposition 11 asserting that counsel for Defendant asked repetitive questions which 12 served to harass and annoy Plaintiff and presented documents not 13 previously produced in discovery. Counsel for Plaintiff notes that 14 Plaintiff is undergoing treatment for advanced stomach cancer and 15 should not have to be subjected to further questioning. (ECF No. 54). 16 Defendant, on the other hand, seeks permission to further depose 17 Plaintiff alleging that counsel for Plaintiff obstructed the examination 18 and frequently instructed his client to not answer questions without 19 justification. Defendant also asserts that Plaintiff failed to produce 20 documents and information required at the deposition. (ECF No. 55). 21 Both sides seek costs and fees. 22 23 Analysis The Court has reviewed the competing joint motions, the 185 page 24 deposition transcript and the additional documents submitted in 25 support of each motion. The Court agrees with Defendant that counsel 26 for Plaintiff obstructed the examination, often testified and frequently 27 and improperly instructed his client not to answer questions. The 28 Court also agrees with Defendant that Plaintiff is obligated to produce 2 12cv2838-L (MDD) 1 either a verified copy of voice mail communications allegedly from 2 representatives of Defendant and stored on Plaintiff’s mobile telephone 3 or produce a verified transcript of those calls. The Court disagrees with 4 counsel for Plaintiff that counsel for Defendant asked the same 5 questions repeatedly so as to harass and annoy Plaintiff. To the 6 contrary, the questioning by counsel for Plaintiff appears well within 7 the ambit of legitimate examination of a party-opponent, particularly 8 considering that the examination was conducted through an 9 interpreter. 10 1. Conduct of the Deposition 11 Rule 30 of the Federal Rules of Civil Procedure governs 12 depositions by oral examination. Rule 30(c)(2) relates to objections and 13 provides, in part: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). A review of the deposition transcript reveals multiple objections with instructions not to answer by counsel for Plaintiff. (See ECF No. 55-5 at 14-60 (using the ECF’s page numbering)). Not a single objection that the Court could find was necessary to preserve a privilege, to enforce a court-ordered limitation or to present a motion under Rule 30(d)(3). There were objections based upon privacy, based upon a claim that the question previously had been asked and answered and based upon counsel for Defendant presenting documents to Plaintiff not previously provided in discovery. For a compilation, see the letter from counsel for Defendant to counsel for Plaintiff at ECF No. 55-5 at 62-71. None of those objections justifies an instruction not to answer under Rule 30(c)(2). Plaintiff’s objections based upon privacy concerns are obviated by 3 12cv2838-L (MDD) 1 the existence of a Protective Order issued in this case on August 5, 2 2014. (ECF No. 47). Consequently, those objections are overruled and 3 Plaintiff must answer. 4 Plaintiff’s objections to questions as “asked and answered” also 5 are overruled. In the context of questioning a party-opponent, 6 particularly through an interpreter, the examining attorney is 7 permitted to attempt to exhaust the deponent’s memory on a given 8 topic. One of the ways to do that is to ask differently formulated 9 questions seeking basically the same information. The transcript 10 reflects that counsel for Defendant was using this technique and even 11 explained that to counsel to Plaintiff. (See ECF No. 55-5 at 25, page 42 12 of the transcript). If counsel for Plaintiff believed that counsel for 13 Defendant was asking the same question repeatedly in bad faith or to 14 unreasonably annoy, embarrass or oppress Plaintiff, counsel’s option 15 was to move to terminate or limit the deposition under Rule 30(d)(3). 16 Plaintiff’s current motion to terminate the deposition is untimely for 17 that purpose as Rule 30(d)(3) requires the motion be made during the 18 deposition. Fed.R.Civ.P. 30(d)(3)(A). In any event, the Court finds that 19 the questioning was not in bad faith and not intended to unreasonably 20 annoy or oppress Plaintiff. 21 2. Document Production 22 Counsel for Plaintiff also instructed his client not to answer 23 questions regarding a credit report presented to Plaintiff during his 24 deposition. Counsel asserts that the document was required to be 25 produced under Fed.R.Civ.P. 26 prior to the deposition justifying the 26 instruction. Specifically, Rule 26(a)(1)(A)(ii) requires a party to 27 disclose, without awaiting a discovery request: 28 a copy . . . of all documents, electronically stored information, and tangible things that the disclosing party 4 12cv2838-L (MDD) 1 2 has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment. 3 First, the fact that a document presented at deposition may have been 4 subject to earlier production is no basis to instruct a client not to 5 answer. Second, it is unclear that this document was required to be 6 produced by Defendant under Rule 26(a)(1)(A)(ii). It is not obvious that 7 Defendant would use Plaintiff’s credit report in support of its defenses 8 and, if it was to do so, whether it would be solely for impeachment. 9 And, even if the document was required to be produced earlier, the 10 correct response was to take the time to review it and later seek relief 11 from the court for the late disclosure. 12 Plaintiff’s reliance on Rule 26(a)(1)(A)(ii) in this circumstance is 13 ironic. In support of his allegations of unlawful debt collection efforts 14 by Defendant in repeatedly calling Plaintiff’s mobile telephone, it 15 appears likely that Plaintiff would use the recordings to support his 16 claims. If so, the recordings should have been disclosed by Plaintiff to 17 Defendant under Rule 26(a)(1)(A)(ii) without awaiting a discovery 18 request. In any event, Plaintiff was required to produce for deposition 19 “all recordings or transcripts of recordings made between [plaintiff] and 20 [defendant].” (ECF 55-5 at 9 (Request for Production 39)). Rather, 21 Plaintiff produced the Declaration of Cal Kik, a private investigator. 22 (ECF No. 55-5 at 84-86). Mr. Kik asserts that he listened to voice 23 recordings left on Plaintiff’s mobile phone and summarized the 24 contents. (Id.). This does not satisfy the obligation to produce a copy of 25 the recording or a transcript. Consequently, the inadequate disclosure 26 may have been wrong on two counts. 27 3. Request for Sanctions 28 Both parties have requested costs and fees as sanctions for the 5 12cv2838-L (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 other’s transgressions. Fed.R.Civ.P. 30(d)(2) provides: The Court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent. The Court finds that counsel for Plaintiff impeded, delayed and frustrated the fair examination of the deponent. Counsel for Plaintiff repeatedly testified, stated argumentative and suggestive objections and wrongfully instructed his client not to answer questions. Sanctions under Rule 30(d)(2) are appropriate in this case. Moreover, inasmuch as Defendant’s motion constitutes a motion to compel under Fed.R.Civ.P. 37(a)(3)(B)(i), the granting of the motion requires the court to order the party or lawyer or both responsible for the conduct requiring the motion to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees, unless the opposing party’s nondisclosure or objection was substantially justified or other circumstances make the award unjust. See Fed.R.Civ.P. 37(a)(5)(A)(ii-iii). The Court finds that counsel for Plaintiff is responsible for the conduct necessitating the motion and that his objections and nondisclosures are not substantially justified. The Court is unaware of any other circumstances that would make the award unjust. According to the Declaration of Defendant’s counsel, four hours were spent meeting and conferring with counsel for Plaintiff regarding the instant motion and preparing the motion and related documents. Counsel asserts that his billing rate is $240 per hour which appears reasonable. (ECF 55-2). Accordingly, counsel for Plaintiff will be required to reimburse Defendant $960.00. In addition, counsel for Plaintiff will be required to pay the costs of the further deposition limited to the cost of the reporter, the cost of the interpreter and the 6 12cv2838-L (MDD) 1 cost of the deposition facility if there is a cost attending to the use of 2 the facility. Conclusion 3 1. 4 5 The Joint Motion presenting Plaintiff’s Motion to Terminate Plaintiff’s Deposition and For Sanctions is DENIED. (ECF No. 54). 2. 6 The Joint Motion presenting Defendant’s Motion to Compel 7 Plaintiff to Attend Further Deposition; to Respond to Questions and 8 Produce Documents; and For Sanctions is GRANTED. (ECF No. 55). 3. 9 Plaintiff is ORDERED to appear at a further deposition for 10 no longer than four hours at a date to be agreed upon by the parties. 11 Although the deposition may occur later, the parties must agree on a 12 date, time and location within seven days of the filing date of this 13 Order. 4. 14 Plaintiff is ORDERED to produce a complete and accurate 15 copy of the voice mail recordings allegedly made to his mobile telephone 16 by persons he believes to be representatives of Defendant no later than 17 ten days following the filing date of this Order. 5. 18 Counsel for Plaintiff is ORDERED to reimburse Defendant 19 the sum of $960.00 representing the costs and fees for Defendant 20 preparing and bringing ECF No. 55 no later than thirty days following 21 the filing date of this Order. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 7 12cv2838-L (MDD) 1 6. Counsel for Plaintiff is ORDERED to bear the cost of the 2 official reporter and interpreter for the further deposition of Plaintiff. 3 Counsel for Plaintiff also is ORDERED to pay the cost of any facility 4 necessary to conduct the further deposition if a cost normally would 5 apply. 6 7 IT IS SO ORDERED. DATED: September 15, 2014 8 9 Hon. Mitchell D. Dembin U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 12cv2838-L (MDD)
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