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McGahey v. Federal National Mortgage Association

United States District Court, D. Maine

July 20, 2018

WALTER McGAHEY, Plaintiff
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION and PHH MORTGAGE CORPORATION, Defendants

          MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION TO PRECLUDE EVIDENCE OR COMPEL FURTHER DEPOSITION TESTIMONY AND COMPEL ANSWERS TO INTERROGATORIES

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

         Plaintiff Walter McGahey moves to (i) preclude defendant PHH Mortgage Corporation (“PHH”) from introducing certain evidence on the basis of the inadequacy of its deposition testimony or, in the alternative, reopen its deposition, (ii) compel supplemental answers to five interrogatories, and (iii) recoup certain litigation costs.[1] For the reasons that follow, I grant the motion in part, to the extent that I order the reopening of PHH's deposition on the conditions described below, enlarge the parties' discovery deadline to August 31, 2018, with commensurate enlargements to other remaining scheduling order deadlines as set forth below, and order that PHH reimburse the plaintiff's costs of bringing the instant motion, including attorney fees.

         I. Applicable Legal Standards

         Federal Rule of Civil Procedure 30(b)(6) provides that “[t]he named organization must . . . designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf[.]” Fed.R.Civ.P. 30(b)(6). A Rule 30(b)(6) designee “must testify about information known or reasonably available to the organization.” Fed.R.Civ.P. 30(b)(6). “Thus, unlike [in the case of] all other depositions, there is an implicit obligation to prepare the witness.” 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure (“FPP”) (3d ed. 2010) § 2103, at 455-57. “As specified in the rule, this preparation is not limited to matters of which the witness has personal knowledge, but extends to all information reasonably available to the responding organization.” Id. at 457. See also, e.g., Bickford v. Marriner, No. 2:12-cv-00017-JAW, 2012 WL 6727531, at *3 (D. Me. Dec. 28, 2012) (“Courts have held that Rule 30(b)(6) requires deposed corporations to both properly identify a capable witness and adequately prepare the witness to answer questions about the designated topics.”).

         When a party is served interrogatories, “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). “It has been said that interrogatories should be answered directly and without evasion in accordance with information that the answering party possesses after due inquiry.” 8B FPP § 2177, at 80 (footnote omitted). “Simply referring to pleadings or other discovery is frequently found insufficient.” Id. (footnote omitted). “Evasive or cryptic answers are ordinary insufficient but each answer must be read in the light of the question in deciding its sufficiency.” Id. at 80-81 (footnote omitted).

         “A party seeking discovery may move for an order compelling an answer” if “a deponent fails to answer a question asked under Rule 30 or 31” or “a party fails to answer an interrogatory submitted under Rule 33[.]” Fed.R.Civ.P. 37(a)(3)(B)(i), (iii). For this purpose, “an evasive or incomplete . . . answer . . . must be treated as a failure to . . . answer[.]” Fed.R.Civ.P. 37(a)(4).

If the motion is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A).

         II. Background

         The plaintiff alleges that PHH and its co-defendant, the Federal National Mortgage Association (“Fannie Mae”), violated the Maine Unfair Trade Practices Act and the federal Real Estate Settlement Procedures Act, and engaged in fraud and misrepresentation, in connection with their failure to provide him with a Making Home Affordable Program (“HAMP”) mortgage modification in accordance with applicable Fannie Mae guidelines. See Plaintiff's Supplemental Second Amended Complaint (ECF No. 44) ¶¶ 202-45.

         On April 12, 2018, the plaintiff noticed the Rule 30(b)(6) deposition of PHH, listing 21 deposition topics. The deposition was taken on May 10, 2018, with Andrew Smith, a loss mitigation underwriter for PHH, testifying as its designee. During the course of the deposition, the plaintiff requested an emergency telephonic hearing with the court to address what he believed to the deponent's repeated evasive and incomplete answers to noticed topics. See ECF No. 72. I instructed the parties to complete the deposition, without prejudice to the plaintiff's seeking post-deposition relief concerning any answer he felt was nonresponsive or for which the deponent was inadequately prepared. See id. The plaintiff now seeks such relief. See ECF No. 81.

         III. Discussion

         The plaintiff complains that PHH failed to answer questions regarding (i) specific Fannie Mae and/or other guidelines, policies, and procedures followed in each review, evaluation, and denial of his loan for a HAMP (Deposition Topics 6(a) and 6(b)), (ii) the manner in which PHH evaluated him for all loss mitigation options, why he was denied a HAMP, and all loan modifications that it offered him, including the terms of each (Deposition Topics 6, 6(b), and 12), (iii) communications he made to PHH alleging a wrongful denial of a HAMP (Deposition Topic 10), and (iv) whether a borrower found qualified and eligible for a HAMP modification by PHH would be granted that modification (Deposition Topic 7). He adds that PHH generally was noncooperative, providing evasive, nonresponsive answers throughout the deposition.

         As a remedy for PHH's allegedly deficient answers, uncooperative behavior, and lack of preparation for the corporate deposition, the plaintiff seeks a court order:

1. Precluding PHH from arguing that he was ineligible to be reviewed for a HAMP from 2012-16; and/or
2. Precluding PHH from presenting any evidence beyond what is in the corporate deposition transcript about (i) any Fannie Mae guidelines that support PHH's denial of a HAMP for him from 2012-16, (ii) any explanations about why he was denied a HAMP from 2012-16, and (iii) any facts related to investigations undertaken, or determinations made, as a result of his notices of error to PHH; and
3. Reimbursing him for the fees and costs associated with the deposition and the instant motion; or
4. In the alternative, reopening the deposition, with directions that PHH provide a deponent or deponents prepared on all topics, to be deposed in Portland, Maine, [2] with an opportunity for follow-up on appropriate responses on all topics, with reimbursement of the costs associated with the plaintiff's counsel preparation for and attendance at the prior deposition, dispute conferences, future depositions, and the instant motion.

         The plaintiff finally argues that PHH provided similar nonresponsive answers to his Interrogatories 8-11 and Second Interrogatory 1, as a result of which he seeks an order compelling the production of more specific answers to those interrogatories.

         For the reasons set forth below, I grant the motion in part and otherwise deny it.

         A. ...


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