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Rick Dolfo and Susan Dolfo, On Behalf of Themselves, All Others No. Similarly Situated and the General Public v. Bank of America

March 29, 2013

RICK DOLFO AND SUSAN DOLFO, ON BEHALF OF THEMSELVES, ALL OTHERS NO. SIMILARLY SITUATED AND THE GENERAL PUBLIC, PLAINTIFFS,
v.
BANK OF AMERICA, N.A.; AND BAC HOME LOANS SERVICING, LP,
DEFENDANTS.



The opinion of the court was delivered by: Bernard G. Skomal United States Magistrate Judge

ORDER IN RE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE REGARDING PLAINTIFFS' REQUEST TO COMPEL DISCLOSURE OF CLASS INFORMATION MEMBER CONTACT

On March 18, 2013, counsel for all parties contacted the Court regarding a discovery dispute. Plaintiffs seek to compel Defendant Bank of America to produce a list of the names and addresses of those individuals identified by Bank of America as likely class members. Pursuant to Court order, the parties filed a joint motion for determination of this discovery dispute on March 22, 2013. (Doc. No. 68.)

For the reasons set forth below, the Court denies without prejudice Plaintiffs' request to compel production of this information.

I. Relevant Background

On December 5, 2011, Plaintiffs filed this putative class action alleging causes of action against Defendants Bank of America, N.A. and BAC Home Loans Servicing, LP for breach of contract, violation of California's Unfair Competition Law, violation of California's Rosenthal Fair Debt Collection Practices Act, violation of California's Consumer Credit Reporting Agencies Act, conversion, and declaratory relief. (Doc. No. 1.) Plaintiffs' complaint is based upon allegations that Bank of America created impound accounts*fn1 for residential mortgage loan customers without prior notice to or consent of the customer. On February 7, 2013, Plaintiffs filed a first amended complaint ("FAC"), which defines the proposed class as:

All persons who entered into a residential mortgage loan with Bank of America secured by property located in the State of California, where Bank of America created an impound account up until May 31, 2011, as a result of Bank of America's evaluation of eligibility for a loan modification pursuant to the Home Affordable Modification Program, and not because of a circumstance permitted by Civil Code §2954. Excluded from the Class are those who entered a "trial period program" pursuant to the Home Affordable Modification Program and defendants and any of their officers, directors and employees.

(Doc. No. 57, FAC ¶40.)

On June 29, 2012, Plaintiffs served interrogatory requests, the first of which is the subject of the present dispute. (Doc. No. 68 at 7.) Plaintiffs asked Defendant to identify all members of the class by providing: the name of the class member; the current or last known mailing address of the class member; the current or last known email address of the class member;the residential property address secured by the loan; and the loan number. (Doc. No. 68-1 at 5.) Defendant timely objected to this interrogatory on the grounds that it sought confidential, personal, and/or financial information that is protected from disclosure by statutes governing the privacy rights of consumers and other person and was premature prior to a ruling on class certification. (Doc. No. 68 at 7; Doc. No. 68-1 at 5.) Defendant did, however, agree to produce data sufficient to establish the potential size of the putative class. (Id.) After receiving these objections, the parties did not contact the Court within 30 days regarding a discovery dispute pursuant to Judge Skomal's chambers' rules.

On October 31, 2012, Bank of America provided Plaintiffs' counsel with a spreadsheet containing information about roughly 9,200 potential members of the putative class. (Doc. No. 68 at 7.) Thereafter, the parties agreed to a representative sample of 221 Servicing Records. (Id.) The Sample Servicing Records produced contain the following loan information: loan amounts; property values; payment histories; schedules of fees and charges; escrow/impound records; and summaries of calls with each borrower. (Id. at 7-8.) Bank of America redacted the borrower names, addresses, and account numbers to protect consumer privacy. (Id. at 8.) The parties did not contact the Court regarding any discovery dispute concerning the production of the spreadsheet or the redacted Sample Servicing Records.

Following seven months of discovery and several extensions of time, Plaintiffs filed their motion to certify the class on January 11, 2013. (Doc. No. 48.) Defendants filed their response in opposition to the motion to certify the class on February 15, 2013. (Doc. No. 62.) On February 28, 2013, the day before Plaintiffs' reply was due, Plaintiffs filed an ex parte motion to continue the class certification hearing so that Plaintiffs could have sufficient time to take additional discovery, namely a deposition of Bank of America pursuant to Fed.R.Civ.P. 30(b)(6) relating to issues raised in Bank of America's opposition to class certification. (Doc. No. 64 at 1.) Nowhere in Plaintiffs' ex parte motion to continue or the attached declaration of counsel was it mentioned that Plaintiffs were also seeking discovery of class member contact information in order to reply to Defendant's opposition. (See id. & Doc. No. 64-1, O'Reardon Decl.) On March 1, 2013, the Court granted Plaintiffs' ex parte motion, continuing Plaintiffs' reply deadline to April 5, 2013 and the hearing on the motion to certify to April 19, 2013. (Doc. No. 65.)

On March 18, 2013, the parties first contacted the Court regarding a discovery dispute concerning Plaintiffs' Interrogatory No. 1 seeking class member contact information.

II. Discussion

A. Waiver

Plaintiffs served the interrogatory seeking class member contact information on June 29, 2012. Bank of America served timely objections and thereafter also produced a spreadsheet containing information about roughly 9,200 putative class members and 221 Sample Servicing Records. This information was used by Plaintiffs in their motion for class ...


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