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NATIONAL UNITY INSURANCE COMPANY v. LOPEZ

September 20, 2005.

NATIONAL UNITY INSURANCE COMPANY, a Texas Corporation, Plaintiff,
v.
KARLA LOPEZ, LOPEZ & DUKES, Defendant.



The opinion of the court was delivered by: WILLIAM McCURINE Jr., Magistrate Judge

ORDER GRANTING MOTION FOR PROTECTIVE ORDER, DETERMINING COSTS, DENYING REQUEST TO TAKE JUDICIAL NOTICE, DENYING REQUEST FOR SANCTIONS, AND DENYING MOTION TO STRIKE
I.
INTRODUCTION
On or about June 15, 2005, Plaintiff National Unity Insurance Company ("National")served a Subpoena Duces Tecum on third-party witness, Wells Fargo Bank ("Wells") calling for the production of financial records. On July 18, 2005, Wells filed a Motion for a Protective Order and Determination of Costs in Complying with Subpoena. On August 17, 2005, National filed an Opposition to Wells' Motion and Request for Monetary Sanctions as well as Evidentiary Objections. On August 25, 2005, Wells filed a Reply to National's Opposition and Request for Monetary Sanctions. On August 29, 2005, National filed a Motion to Strike the Reply. On September 14, 2005, the parties communicated telephonically with Judge McCurine through his law clerk regarding this dispute. Also on September 14, 2005, Wells provided supplemental documentation requested by the Court. The Court has carefully considered and reviewed all of the above-listed papers along with all supporting documents. Based upon the papers submitted in this case, and for the reasons set forth below, the Court DENIES National's Request to take Judicial Notice, DENIES National's Motion to Strike the Reply, DENIES National's Request for Monetary Sanctions, GRANTS Wells' Motion for Protective Order and GRANTS Wells' Request for Determination of Costs.

II.

  BACKGROUND

  On January 21, 2004, National filed this action for declaratory relief regarding its duty to defend and indemnify the Defendants Karla Lopez, Lopez & Dukes Trucking, Jose Carlos Lopez Ruiz, Saul Medrano, Evangelina Lopez, and Cynthia Dukes (collectively, "Defendants") in an underlying state court action. The underlying action was filed on March 7, 2003 by an individual who suffered serious personal injuries as a result of an accident involving one of Defendants' trucks that is not listed on an insurance policy National issued to Defendants. National contends it owes no duty to Defendants and is entitled to reimbursement of defense costs and indemnity payments because the insurance policy National issued covers only vehicles stored in Mexico and (subject to the policy's terms and conditions) protects the insured only during international trips within a geographically limited area north of the United States-Mexico border. National believes that Defendants made material misrepresentations to procure the subject insurance policy, including the statement that Defendants' business was based in Mexico and the insured truck was stored in Mexico.

  III.

  ARGUMENTS

  A. Judicial Notice

  National asks the Court to judicially notice (1) The United States House of Representatives Report No. 91-975, (2) Wells' Annual Report for fiscal year 2004 filed with the United States Securities & Exchange Commission, (3) the cases filed by Wells Fargo in Federal courts since the approximate date of service of the subpoena at issue, and 4) 31 C.F.R. § 103.34.

  B. Motion to Strike

  National brings a Motion to Strike Wells' Reply asserting various arguments. First, National states that Wells' Opposition demonstrates that it lied about the existence of a Federal Court decision substantiating its charges.*fn1 (Mot. To Strike at 2.) Second, National states that Wells' Reply and supporting papers are untimely as National received the papers two days late according to its calculation. (Id. at 3.) Third, National asserts that the evidence submitted demonstrates that it is the business policy of Wells to fail to meet time requirements set by Federal Rule of Civil Procedure 45. (Id. at 3-4.) Lastly, National states that Wells is being untruthful regarding its comments about the Arizona State Bar complaint. (Id. at 4-5.)

  C. Sanctions

  1. National's Arguments

  National claims that Wells' conduct regarding this discovery dispute has been inappropriate. "National Unity will spend $12,000 opposing the motion. The court will spend more than the amount requested by Wells Fargo to review the papers and issue a ruling. National Unity could have paid the $1,700 and obtained the documents, but if that had occurred Wells Fargo's conduct in this case would never get examined by a judge." (National's P.&A. at 2.)

  National claims that Wells refused a reasonable amount*fn2 offered by National. (Id.) National believes that Wells is wrongfully profiting from litigants in need of bank documentation. "Wells Fargo's apparent business policy is to demand unreasonable amounts from litigants to process subpoenas, refuse to explain or substantiate its charges and make questionable representations about the rulings of other courts — all in the name of turning its obligations under Rule 45 into another profit center for the bank." (Id.) National suggests that Wells Fargo has no method of determining reasonable costs. (Id. at 6.) "Wells Fargo was apparently willing to negotiate its compensation as if the parties were purchasing a used car and not attempting to comply with a Federal subpoena." (Id.) National also believes that Wells has been untruthful in claiming that another Federal Court had approved of its charges. (Id. at 9.)

  National argues that Wells has no reason to fail to comply with the deadline set in the Subpoena. (Id.) "If Wells Fargo, a company with a 2004 net income of $7 Billion, does not have enough employees to comply with Federal law, it must hire more employees not bring frivolous motions for protective orders." (Id.)

  National also believes that a lay employee of Wells has engaged in the unauthorized practice of law. (Id. at 4-5.) "Mr. Jay faxed a letter to National Unity's counsel which purported to be an objection to the subpoena pursuant to Federal Rule of Civil Procedure 45(c)(2)(B)." (Id.)

  National concludes that Wells should be sanctioned in the amount of the costs National incurred in the meet and confer process and opposing Wells' Motion for lying about the fact that other courts have approved its subpoena processing charges, filing a frivolous Motion for Protective Order, not timely responding to the Subpoena, and not timely objecting to the Subpoena. (Id. at 23-24.) For these reasons, National feels that its request that Wells be sanctioned in the amount of $11,430 is justified. (Id. at 24.)

  2. Wells' Arguments

  Wells claims that National blames it for protecting itself from threats of applications for contempt. (Reply at 1.) "This is hardly sanctionable conduct and, contrary to National's contention, Wells' request for reimbursement is authorized by law." (Id.) Further, Wells points out that "National calls Wells' employees and its counsel `liars' without any factual basis, wildly speculates that Wells runs a profit center on subpoena requests, also generalizes and speculates about Wells' business policies in connection with subpoenas." (Id.) Additionally, Wells believes that National involved two state bars needlessly for the purpose of gaining leverage in negotiations regarding this dispute. (Id.)

  In response to the accusation that responding to subpoenas is a profit center for it, Wells explains that it loses approximately $2.5 million each year in responding to subpoenas. (See Decl. of Smith, pg. 2.) Wells explains in great detail the process it must go through to respond to subpoenas similar to the one in question. (See Id., pgs. 2-4.) Regarding the alleged misconduct on the part of Mr. Jay, Wells notes that The State Bar of Arizona has rejected the complaint and closed the file accordingly. (Id. at 5.) Responding to the complaint that Wells did not comply with the deadline set in the Subpoena, Wells states that it should have been provided with more than twelve days to respond. (Id.) Through the letter of Mr. Jay, Wells believes that it made a timely objection to National's Subpoena. (Id.) Wells continues that National's implications that one must hire an attorney to objecting to discovery is absurd. (Id.)

  D. Protective Order

  1. Wells' Arguments

  Wells claims that "a protective order is necessary because Wells requires an extension of time to comply with documents requested in the Subpoena, and is also entitled to an order protecting it from incurring significant expense resulting from the inspection and copying." (Wells' P.&A. at 1-2.) Wells does not object substantively to the documents ...


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