Jafari v. Federal Deposit Insurance Corporation et al, No. 3:2012cv02982 - Document 90 (S.D. Cal. 2014)
Court Description: ORDER denying as moot plaintiffs' 80 Motion to Compel. The Court reserves its ruling on Plaintiffs' request for reasonable expenses in bringing the motion. Signed by Magistrate Judge Ruben B. Brooks on 12/5/14. (kas)
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Jafari v. Federal Deposit Insurance Corporation et al Doc. 90 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) ) ) Plaintiff, ) v. ) ) ) FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for LA ) ) JOLLA BANK, ) ) Defendants. ) Civil No. 12cv2982 LAB(RBB) REZA JAFARI, ORDER DENYING AS MOOT PLAINTIFFS’ MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS AND RESERVING THE RULING ON PLAINTIFFS’ REQUEST FOR REASONABLE EXPENSES [ECF NO. 80] 17 18 This is an action for breach of contract, unjust enrichment, 19 and equitable subrogation arising out of a short sale of 20 residential property located in Rancho Santa Fe, California. 21 (Compl. 1-4, ECF No. 1.) 22 Jafari and First American Title Insurance Company (“Plaintiffs”) 23 filed a Motion to Compel Deposition and Production of Documents and 24 for Reasonable Expenses [ECF No. 80]. 25 compelling the completion of the deposition of Defendant Federal 26 Deposit Insurance Corporation as Receiver for La Jolla Bank, FSB 27 (the "FDIC-R") and the production of 1788 documents. On October 29, 2014, Plaintiffs Reza Plaintiffs seek an order (Pls.’ Mot. 28 1 12cv2982 LAB(RBB) Dockets.Justia.com 1 Compel Attach. #1 Mem. P. & A. 16,1 ECF No. 80.) 2 request that the Court order FDIC-R to pay $4,345 for Plaintiffs’ 3 expenses in bringing this Motion to Compel. 4 Plaintiffs also (Id. at 17.) On November 17, 2014, Defendant FDIC-R opposed Plaintiffs’ 5 motion as “unnecessary,” claiming that it has produced the 6 discovery items at issue on November 12, 2014, and will have 7 produced its witness for a deposition on November 21, 2014, before 8 the December 1, 2014 hearing date on Plaintiffs’ Motion. 9 Opp’n Pls.’ Mot. Compel 4, 12, ECF No. 81.) (FDIC Defendant argues that 10 because there is nothing more for the Court to compel the FDIC-R to 11 produce, the Plaintiffs’ motion is moot and should be denied. 12 at 12.) 13 because it was not brought within thirty days of the date when the 14 parties’ dispute arose. 15 that it should not be ordered to pay expenses Plaintiffs incurred 16 in bringing their motion. 17 (Id. FDIC-R also points out that Plaintiffs’ motion is untimely (Id. at 9.) Finally, Defendant argues (Id. at 13-15.) Plaintiffs filed a Reply in Support of Motion to Compel [ECF 18 No. 82] on November 24, 2014, arguing that their motion was “a 19 necessary catalyst in obtaining this discovery in a timely 20 fashion,” and that although FDIC-R produced documents following the 21 filing of the motion, the production is incomplete and contains 22 extensive redactions. 23 No. 82.) 24 25 (Pls.’ Reply Supp. Mot. Compel 1, 4, 6, ECF A hearing on Plaintiffs’ Motion to Compel was set for December 1, 2014. The Court determined the matter to be suitable for 26 27 28 1 The Court will cite to Plaintiffs’ Memorandum of Points and Authorities, Defendant’s Response in Opposition, and Plaintiffs’ Reply using the page numbers assigned by the electronic case filing system. 2 12cv2982 LAB(RBB) 1 resolution without oral argument, submitted the motion on the 2 parties’ papers pursuant to the Local Civil Rule 7.1(d), and 3 vacated the motion hearing [ECF No. 88]. 4 reasons, the Court DENIES as moot Plaintiffs’ Motion to Compel 5 Deposition and Production of Documents. 6 ruling on Plaintiffs’ request to award expenses in bringing the 7 Motion. 8 9 I. For the following The Court reserves its THE PARTIES’ DISCOVERY DISPUTE After Plaintiffs served their initial discovery requests on 10 FDIC-R, the parties agreed to produce documents pursuant to a 11 protective order, which was approved by the Court on December 12, 12 2013 [ECF No. 44]. 13 relevant materials, Plaintiffs scheduled depositions. 14 Compel Attach. #2 Dec. Heather Herd 4, ECF No. 80.) 15 deposition was noticed for August 15, 2014; however, the day 16 before, Defendant notified Plaintiff that additional relevant 17 documents have been discovered and would need to be gathered and 18 produced. 19 produce the newly found materials, and asked to postpone the 20 deposition, which Plaintiffs opposed. 21 FDIC-R agreed to conduct the first session of the deposition on 22 August 15, 2014, as scheduled, and produce the witness again after 23 the documents were gathered and turned over to Plaintiffs. 24 (Id.) By July 2014, believing they received all (Pls.’ Mot. FDIC-R’s Defendant asked for additional time to review and (Id. at 5.) Eventually (Id.) FDIC-R began to collect the relevant documents, but the 25 process took longer than expected. 26 ECF No. 81.) 27 approaching, and FDIC-R requested an extension of discovery dates 28 [ECF No. 74]. (See FDIC Opp’n Mot. Compel 6, The September 15, 2014 discovery deadline was Plaintiffs did not oppose the request [ECF No. 76], 3 12cv2982 LAB(RBB) 1 and the Court gave the parties until December 15, 2014, to complete 2 all fact discovery [ECF No. 79]. 3 With this deadline in mind, Plaintiffs’ counsel repeatedly 4 asked FDIC-R for the date it would produce the documents so that 5 the continued deposition could be scheduled. (Pls.’ Mot. Compel 6 Attach. #2 Dec. Heather Herd 6, ECF No. 80.) In a phone 7 conversation on September 17, 2014, Defendant’s counsel represented 8 that the documents were being reviewed for privilege, but could not 9 offer a date certain for production or for scheduling a deposition. The lawyers continued to communicate by email from September 10 (Id.) 11 22 through September 30, 2014. 12 Defendant’s continued assurances, however, and on September 26, 13 2014, they served a deposition notice and subpoena to produce 14 documents directly on FDIC-R. 15 objected to the subpoena to produce documents on various grounds, 16 including attorney-client privilege and attorney work product 17 doctrine. 18 Plaintiffs were not satisfied with (Id. Attach. #6 Ex. D.) Defendant (Id. Attach. #8 Ex. F, at 67-78.) After service of the subpoena, Defendant’s counsel continued 19 to assure Plaintiffs that the documents would be produced. (Pls.’ 20 Mot. Compel Attach. #2 Dec. Heather Herd 7-8, ECF No. 80.) Because 21 FDIC-R could not “commit” to a date certain for production, 22 Plaintiffs filed this Motion to Compel on October 29, 2014. 23 at 8.) 24 II. (Id. DISCUSSION 25 A. 26 “Parties may obtain discovery regarding any nonprivileged Legal Standard 27 matter that is relevant to any party's claim or defense . . . . 28 Relevant information need not be admissible at the trial if the 4 12cv2982 LAB(RBB) 1 discovery appears reasonably calculated to lead to the discovery of 2 admissible evidence.” 3 Federal Rules of Civil Procedure enables the propounding party to 4 bring a motion to compel responses to discovery. 5 37(a)(3)(B). 6 opposing disclosure. 7 Cal. 1992). Fed. R. Civ. P. 26(b)(1). Rule 37 of the Fed. R. Civ. P. The party resisting discovery bears the burden of Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. 8 When ruling on a motion to compel, a court “‘generally 9 considers only those objections that have been timely asserted in 10 the initial response to the discovery request and that are 11 subsequently reasserted and relied upon in response to the motion 12 to compel.’” 13 F.R.D. 508, 516 n.4 (D. Idaho 2013) (citation omitted). 14 party fails to provide any response or objection to interrogatories 15 or document requests, courts deem all objections waived and grant a 16 motion to compel. 17 Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (finding that a 18 party who failed to timely object to interrogatories and document 19 production requests waived any objections); 7 James Wm. Moore et 20 al., Moore's Federal Practice, § 33.174[2], at 33–106, § 21 34.13[2][a], at 34–56 to 34–56.1 (3d ed. 2012). 22 established that a failure to object to discovery requests within 23 the time required constitutes a waiver of objection.” 24 959 F.2d at 1473. Calderon v. Experian Info. Solutions, Inc., 290 When a See Richmark Corp. v. Timber Falling “It is well Richmark, 25 B. 26 Unlike most discovery disputes, Plaintiffs’ Motion to Compel Plaintiffs’ Motion 27 the production of documents and a witness for deposition did not 28 focus on Defendant’s objections to discovery requests. 5 Instead, 12cv2982 LAB(RBB) 1 the Plaintiffs were concerned with FDIC-R’s ability to produce the 2 documents and the witness for a deposition before the December 15, 3 2014 discovery cutoff date. 4 & A. 4, ECF No. 80.) 5 were entitled to complete the deposition of FDIC-R and obtain the 6 additional relevant documents. 7 Compel 4, ECF No. 81.) 8 produced the documents in question to Plaintiffs after the filing 9 of the instant Motion. (Pls.’ Mot. Compel Attach. #1 Mem. P. Indeed, the parties agree that Plaintiffs (See id; FDIC Opp’n Pls.’ Mot. There is also no dispute that FDIC-R has (FDIC Opp’n Pls.’ Mot. Compel 4, ECF No. 10 81; Pls.’ Reply 2, ECF No. 82.) 11 maintains that the Motion to Compel is not mooted by Defendant’s 12 production because FDIC-R redacted portions of documents without 13 sufficient justification or explanation, and failed to produce all 14 the relevant documents. 15 Plaintiffs’ Reply, however, (Pls.’ Reply 2-3, ECF No. 82.) Plaintiffs allege that FDIC-R produced “extensively redacted” 16 documents without offering either a privilege log or other 17 information to explain the redactions. 18 in some instances, Defendant produced duplicate records where some 19 documents “contain redactions that are not included on identical 20 duplicate documents.” 21 Court’s attention to monthly reports generated to analyze the 22 status of loans issued on the property. 23 claim that although FDIC-R produced “multiple duplicate copies of 24 several of these reports[,] . . . the redactions vary from one copy 25 to the next, even though the documents appear identical in all 26 other aspects.” 27 calls into question all redactions of the requested documents. 28 (Id. at 6.) (Id.) (Id.) (Id. at 4.) They note that In their Reply, Plaintiffs draw the (Id. at 5.) Plaintiffs Plaintiffs argue that this discrepancy 6 12cv2982 LAB(RBB) 1 In addition to the discrepancies in the redactions, Plaintiffs 2 now claim that some redacted material appears to fall outside of 3 the privileged attorney-client communications or attorney work 4 product. 5 that attorney-client privilege cannot be used to avoid disclosure 6 of underlying facts referenced in a qualifying communication. 7 at 4.) 8 privilege nor the attorney work product doctrine extends to the 9 communications or materials generated by counsel acting in a (Id. at 4-5.) Jafari and First American Title point out (Id. Plaintiffs also state that neither the attorney-client (Id. at 5.) They argue that many 10 business capacity for a client. 11 of the redacted portions in the produced documents contain non- 12 privileged information, such as “well-known facts and/or 13 information generated by an attorney acting in a business or 14 administrative capacity, rather than as legal counsel.” 15 (Id.) Plaintiffs also allege that FDIC-R failed to produce all 16 relevant responsive documents. 17 response to their request for all documents related to Jafari’s 18 administrative proof of claim with the FDIC-R, Defendant produced 19 the claim itself along with “a few computer database screen shots 20 and several almost entirely redacted email communications.” 21 Plaintiffs argue that other documents related to the denial should 22 exist and should have been produced. 23 that Defendant failed to produce the documents illustrating FDIC- 24 R’s administrative decision to add certain nonmonetary covenants to 25 the release agreement for the short sale of the property. 26 Plaintiffs argue that because such decisions are made by an 27 administrator, they are not privileged –- even if informed by legal 28 counsel –- and should have been produced. (Id. at 6.) 7 (Id.) They note that in (Id.) Similarly, they claim (Id. at 6-7.) (Id.) In any 12cv2982 LAB(RBB) 1 event, Jafari and First American Title point out that Defendant 2 failed to provide a detailed privilege log justifying its 3 redactions. (Id.) 4 It is clear that the Plaintiffs’ complaint about the 5 sufficiency of Defendant’s production arose after the Motion to 6 Compel was filed, and Plaintiffs’ arguments in the Reply are being 7 raised for the first time. 8 brought to ensure that the Defendant produced the documents 9 pursuant to the subpoena prior to the discovery cutoff date. The Plaintiffs’ Motion to Compel was 10 (Pls.’ Mot. Compel Attach. #1 Mem. P. & A. 16-17, ECF No. 80.) 11 Plaintiffs now acknowledge that Defendant has produced the 12 documents. 13 opposition to the Motion to Compel, Defendant claimed that the 14 “discovery items sought to be compelled by Plaintiff[s] were never 15 actually in dispute.” 16 81.) 17 Plaintiff and by the time of the scheduled hearing on the Motion on 18 December 1, 2014, the FDIC-R will have produced a witness for 19 deposition on November 21, 2014.” 20 by the Plaintiffs in their Motion to Compel has been provided, the 21 Motion is DENIED as moot. (Pls.’ Reply 2-3, ECF No. 82.) Indeed, in its (FDIC Opp’n Pls.’ Mot. Compel 4, ECF No. “The FDIC-R has now produced the documents being sought by (Id.) Because the relief sought 22 Nonetheless, Plaintiffs’ Reply makes it clear that a new 23 controversy has arisen with respect to the sufficiency of the 24 production. 25 Plaintiffs’ Reply. 26 1204 n.1 (D. Nev. 2009) (declining to consider new arguments raised 27 in a reply) (citing United States v. Bohn, 956 F.2d 208, 209 (9th 28 Cir. 1992) (per curiam); Knapp v. Miller, 873 F. Supp. 375, 378 n.3 The new dispute is not properly raised by the Carstarphen v. Milsner, 594 F. Supp. 2d 1201, 8 12cv2982 LAB(RBB) 1 (D. Nev. 1994)). Additionally, there is no indication that the 2 parties attempted to resolve the issues regarding any privileges 3 prior to the filing of this motion. 4 American Title challenge in their Reply the redactions FDIC-R made 5 to the documents produced and allege they have not been provided 6 with a privilege log, the parties must satisfy the meet-and-confer 7 requirements to resolve this disagreement before seeking the 8 intervention of the Court, as required by the Federal Rules of 9 Civil Procedure and the Court’s Local Rules. To the extent Jafari and First See Fed. R. Civ. P. 10 37(a) (establishing the meet-and-confer requirement and 11 circumstances warranting the filing of a motion to compel); S.D. 12 Cal. Civ. R. 26.1(a) (“The court will entertain no motion pursuant 13 to Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have 14 previously met and conferred concerning all disputed issues.”). 15 III. 16 CONCLUSION For the reasons above, Plaintiffs’ Motion to Compel is DENIED 17 as moot. The Court reserves its ruling on Plaintiffs’ request for 18 reasonable expenses in bringing the motion. 19 IT IS SO ORDERED. 20 Dated: December 5, 2014 ______________________________ Ruben B. Brooks United States Magistrate Judge 21 22 cc: Judge Burns All Parties of Record 23 24 25 26 27 28 9 I:\Chambers Brooks\CASES\JAFARI2982\Order Deny as moot Mot to Compel.wpd 12cv2982 LAB(RBB)
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