Henry et al v. Ocwen Loan Servicing, LLC et al, No. 3:2017cv00688 - Document 47 (S.D. Cal. 2018)
Court Description: ORDER denying 39 Joint Motion for Determination of Discovery No. 2 as to Requests 1-21, 27, 31-33, 34-36, 39-41, 43-45. As to the remaining requests, the Court ORDERS the parties to meaningfully meet and confer. If they have not already been pro duced, the confidential servicing notes that Defendant represented would be produced under a protective order must be produced by no later than May 1, 2018. Plaintiffs request for an award of attorneys fees is DENIED. Signed by Magistrate Judge Nita L. Stormes on 4/17/2018. (gac)
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Henry et al v. Ocwen Loan Servicing, LLC et al Doc. 47 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ATLEY HENRY, LAURA HENRY, Plaintiff, 12 13 v. 14 OCWEN LOAN SERVICING, LLC, et al., 15 Case No.: 3:17-cv-688-JM-NLS ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 2 [ECF No. 39] Defendants. 16 17 Before the Court is the parties’ Joint Motion for Determination of Discovery 18 19 Dispute No. 2. ECF No. 39. Plaintiff Laura Henry (“Plaintiff”) moves to compel 20 additional documents from defendant Ocwen Loan Serving, LLC (“Defendant”). Id. at 1. 21 22 I. BACKGROUND This case arises from a home loan modification and alleges breach of contract and 23 violations of the Fair Credit Reporting Act, Fair Debt Collection Act, and similar state 24 statutes. ECF No. 1. Plaintiff propounded Requests for Production of Documents on 25 December 20, 2017. ECF No. 39 at 3. Defendant requested and was given an extension 26 of time to respond, until February 21, 2018. Id. at 8. As the deadline for responses drew 27 closer, Defendant requested an additional extension, which Plaintiff at first appeared to 28 be agreeable to and then clearly denied as of February 19, two days prior to the response 1 3:17-cv-688-JM-NLS Dockets.Justia.com 1 deadline. Id. Defendant timely provided initial responses on February 21, 2018 that 2 contained objections only and did not include a document production at that time. Id. 3 Plaintiff’s counsel began the meet and confer process, and Defendant agreed to produce 4 documents by March 16, 2018. Id. at 4-5. On March 13, 2018, Defendant produced 5 upwards of 1500 pages of documents as well as supplemental responses.1 Id. at 5, 9. 6 Plaintiff reviewed the production and prepared its portion of the Joint Motion. 7 ECF No. 39 at 5. Defendant argues Plaintiff failed to properly meet and confer following 8 Defendant’s supplemental responses and production, but nonetheless prepared its portion 9 of the Joint Motion. Id. at 10. 10 It is clear to the Court after reviewing the Joint Motion and Joint Statement (Ex. A) 11 that Plaintiff did not adequately meet and confer following Defendant’s supplemental 12 responses and production. However, it also not clear to the Court that ordering a further 13 meet and confer will be productive for most of the requests, and so addresses Plaintiff’s 14 arguments. 15 II. DISCUSSION Plaintiff’s motion to compel identifies four issues as problematic, paraphrased as 16 17 follows: (1) the responses provided did not identify which documents were responsive to 18 which request; (2) documents were withheld pending entry of a protective order; (3) 19 documents contained redactions without explanation; and (4) no privilege log was 20 provided. ECF No. 39 at 2. Plaintiff does not dispute that 1500 pages of responsive 21 documents were produced. Id. at 5. 22 A. Defendant’s Responses 23 Plaintiff argues Defendant’s responses are deficient because they do not correlate 24 responsive documents to specific requests. ECF No. 39 at 12. Defendant correctly points 25 26 27 28 1 Defendant withheld some documents subject to entry of a protective order. Id. at 9. Since the time the parties submitted this joint motion, the Court has entered a protective order. ECF No. 44. It is not clear whether Defendant has since produced the documents withheld until a protective order was in place. 2 3:17-cv-688-JM-NLS 1 to Rule 34’s disjunctive nature: documents may be produced as they are ordinarily kept 2 or corresponding to the categories of the request. ECF No. 39 at 17. Particularly in light 3 of the limited scope of this case, and relatively small number of documents involved, the 4 Court sees no reason (and Plaintiff points to none) that Defendant should be compelled to 5 identify precisely which documents are responsive to each request. 6 B. Privilege Log and Redactions 7 Plaintiff argues—in only its introduction—that no privilege log was provided and 8 that redactions were made to documents without production of privilege log. ECF No. 39 9 at 2-3. As to the matter of a privilege log, Defendant responds that no documents were 10 withheld on the grounds of privilege so no privilege log is necessary. Plaintiff fails to 11 show any reasonable basis to believe otherwise responsive documents were withheld on 12 the basis of privilege and so fails to satisfy her burden. There is nothing left to compel. 13 As to the redactions, Defendant also explains that redactions were made solely to 14 “confidential information, such as portions of the loan number, social security numbers 15 and birth dates, which it routinely redacts for confidentiality purposes and for ease of use 16 of the Bate[s] stamped documents in public filings and trial.” Id. at 6. Plaintiff argues 17 that a privilege log is necessary for Plaintiff to evaluate what privilege or confidentiality 18 is being asserted and whether that assertion is proper. ECF No. 39 at 3. 19 The Court will not require a redaction log for the redaction of plainly confidential 20 information such as account numbers, social security numbers, birthdates or addresses. 21 Not only is redaction of this information responsible, it is common practice and brings 22 the documents into compliance with the Southern District’s ECF Policies and Procedures, 23 §1.h (“…parties must refrain from including, or must partially redact where inclusion is 24 necessary, the following personal identifiers from all pleadings and documents filed with 25 the court, including exhibits thereto: 1. Social Security numbers … 4. Financial account 26 numbers … 5. Home address….”). Moreover, where these documents were produced to 27 Plaintiff prior to the time a protective order was place, the redaction of confidential 28 information is particularly appropriate. However, if Plaintiff has a good faith reason to 3 3:17-cv-688-JM-NLS 1 believe the redactions included information other than “confidential information, such as 2 portions of the loan number, social security numbers and birth dates” as the Defendant 3 suggests, the Plaintiff must, in writing, (1) identify by Bates stamp number the 4 redaction(s) in question, (2) clearly articulate the good faith basis for any belief that other 5 than confidential information was redacted. Upon receipt of any challenge, Defendant is 6 ORDERED to meet and confer regarding that content and to settle the dispute may re- 7 produce any challenged documents under the protective order. 8 C. Document Requests 9 Plaintiff’s motion purports to move to compel additional documents in response to 10 nearly every request issued (Nos. 1-27, 31-36, 38-45), but does not identify any 11 documents or categories of documents believed to be withheld or missing in response to 12 any requests, apart from those that Defendant indicated would be produced subject to a 13 protective order. 14 Defendant responds that all relevant documents have been produced, or would be 15 under a protective order. See ECF No. 39 at 16 (“Ocwen’s production included its 16 communications with Plaintiffs, Plaintiffs’ counsel, the Consumer Financial Protection 17 Bureau, a copy of its title insurance policy, the loan documents, recorded documents and 18 credit reports on Plaintiffs”). 19 Plaintiff’s portion of the Joint Statement for each request simply argues that each 20 request seeks relevant documents. See ECF No. 39, Ex. A. Defendant’s responses 21 largely fall into three categories: First, that Defendant has produced responsive 22 documents and the motion to compel is moot. See ECF No. 39 Ex. A, (Requests 1-21, 23 27, 31-33). The second category of responses points to a potential confusion between a 24 Better Business Bureau complaint, for which Defendant states it was unable to locate any 25 responsive documents, and a complaint with the Consumer Financial Protection Bureau, 26 for which documents were produced. ECF No. 39 Ex. A, (Requests 34-36, 39-41, 43- 27 45). The third and final category of responses largely indicate that some documents were 28 4 3:17-cv-688-JM-NLS 1 produced, and confidential servicing notes would be produced under a protective order. 2 See ECF No. 39 Ex. A, (Request Nos. 22-26, 38, 42). 3 For those requests that fall into the first category, Defendant produced documents 4 in response to Plaintiff’s requests. Plaintiff does not satisfactorily identify any basis to 5 believe the production was incomplete or inadequate. Plaintiff’s motion to compel is 6 DENIED as to Requests 1-21, 27, 31-33. 7 For the requests in the second category, Defendant represents that it searched for 8 documents related to a Better Business Bureau complaint and was unable to locate any. 9 Defendant also represents it produced documents reflecting a Consumer Financial 10 Protection complaint. It appears there is nothing left to compel. Having searched for and 11 found no documents relating to the Better Business Bureau, Defendant properly produced 12 the documents it believed to be the target of the request. Plaintiff’s motion to compel is 13 DENIED as to Requests 34-36, 39-41, 43-45. 14 As to the remaining requests in the third category, Requests 22-26, 38, 42, for 15 which additional responsive documents may have been produced under the protective 16 order, the Court ORDERS the parties to meaningfully meet and confer regarding any 17 supplemental production since the entry of a protective order. If they have not already 18 been produced, the confidential servicing notes that Defendant represented would be 19 produced under a protective order must be produced by no later than May 1, 2018. It 20 appears likely to the Court that production of documents under the protective order 21 renders the remaining requests in this category moot as well. However, if following the 22 meet and confer, Plaintiff is able to identify a document or category of documents 23 missing or believed to be missing from Defendant Ocwen’s production, Plaintiff may file 24 a supplemental brief identifying (1) which of these specific document request is at issue, 25 (2) what responsive documents or type of documents that have not been produced; and 26 (3) the basis for any belief that those documents exist in Defendant’s possession, custody, 27 and control and were not produced. 28 5 3:17-cv-688-JM-NLS 1 D. Attorneys’ Fees 2 Plaintiff’s request for an award of attorneys’ fees is DENIED. 3 IT IS SO ORDERED. 4 Dated: April 17, 2018 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 3:17-cv-688-JM-NLS
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