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Choudhuri v. Wells Fargo Bank, N.A.

United States District Court, N.D. California

November 21, 2017

KABITA CHOUDHURI, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SANCTIONS RE: DKT. NO. 150

          KANDIS A WESTMORE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kabita Choudhuri brought this suit against Defendant Wells Fargo Bank, N.A., alleging violations of the Real Estate Settlement Procedures Act ("RESPA") and the California Homeowner Bill of Rights ("HBOR"), as well as bringing claims of promissory estoppel and breach of the implied covenant of good faith and fair dealing. (Second Amended Compl. ("SAC"), Dkt. No. 74.)[1] On October 11, 2017, Defendant filed the instant motion for sanctions. (Def.'s Mot., Dkt. No. 150.)

         Having considered the papers filed by the parties, the relevant legal authority, and the arguments advanced at the November 16, 2017 hearing, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for sanctions.

         I. BACKGROUND

         This case is the seventeenth action brought by Plaintiff against Defendant, based on the same loan. (Def.'s Mot. at 7 fn. 3 (listing prior sixteen cases, appeals, and bankruptcy adversary proceedings).) On January 6, 2017, the case was referred to the undersigned for discovery purposes. (Dkt. No. 89.)

         On April 25, 2017, Defendant filed four discovery letters. (Dkt. Nos. 112-115.) On May 4, 2017, the Court terminated the four discovery letters because the letters did not comply with the Court's standing order. (Dkt. No. 117 at 1-2.) Nevertheless, the Court addressed the issues raised in the letters in order to provide the parties with guidance. (Id. at 2.)

         The first discovery letter concerned Plaintiff's assertion of her "Fifth Amendment rights" in response to each question during Plaintiff's deposition. (Id.) The Court explained that the Fifth Amendment only protected against disclosures that could be used in criminal proceedings, and that Plaintiff's invocation of the Fifth Amendment was not proper. The Court thus required Plaintiff to provide dates for a second deposition, and required that Plaintiff not assert the Fifth Amendment unless it involved a disclosure that could be used in a criminal prosecution. The Court warned that failure to comply could result in the Court recommending sanctions, including terminating sanctions. The second and third discovery letters concerned Plaintiff's responses to Defendant's requests for production ("RFPs") and interrogatories, respectively. (Id. at 3, 4.) Plaintiff had refused to provide any documents or responses, arguing that the presiding judge already found the complaint to be sufficient and that Defendant already possessed all of the documents sought. Plaintiff further stated that she would only identify relevant documents after Defendant provided responses to her requests for production. The Court found that these were not proper objections, and also rejected Plaintiff's assertions that the requests were only intended to hound and harass the plaintiff or that the requests had been "asked and answered." (Id. at 3-5.) Finally, the fourth discovery letter concerned Plaintiff's "asked and answered" objections to Defendant's requests for admission. (Id. at 5.) The Court found that the requests were not duplicative, and that Plaintiff had to respond to the extent the requests for admission were not repetitive. (Id. at 5-6.) The Court concluded the order by suggesting that Plaintiff contact the Federal Pro Bono Project's Help Desk for assistance with discovery. (Id. at 6.)

         On May 22, 2017, Defendant requested that the presiding judge extend the remaining litigation deadlines and trial date by thirteen to fifteen weeks, due in part to Plaintiff's lack of cooperation in responding to discovery. (Dkt. No. 119 at 3.) Defendant stated that despite the undersigned's May 4, 2017 order, Plaintiff had failed to provide any additional written discovery response. (Id.) Plaintiff opposed the motion, but did not appear to deny her failure to provide further written discovery. (Dkt. No. 123. at 2.) On May 30, 2017, the presiding judge granted the motion to extend the deadlines. (Dkt. No. 124 at 2.)

         On August 16, 2017, Defendant filed a second motion to extend the remaining litigation deadlines and trial date by three months, due to Plaintiff's failure to produce documents responsive to Defendant's requests for production. (Dkt. No. 131 at 2-3.) Defendant also stated that Plaintiff had failed to provide any meaningful discovery responses or document production. (Id. at 3.) Plaintiff opposed the motion, filing the same opposition she had filed as to Defendant's May 22, 2017 motion. (Dkt. No. 133.) On August 28, 2017, the presiding judge granted Defendant's motion to change time, and ended the order by stating:

In light of the substantial delay and expense caused by Ms. Choudhuri's numerous discovery violations, Ms. Choudhuri is warned that if she fails to comply meaningfully with her discovery obligations going forward, her case will be dismissed as a discovery sanction.

(Dkt. No. 137.)

         On August 25, 2017, the parties filed joint discovery letters regarding Plaintiff's responses to Defendant's RFPs and interrogatories. (Dkt. Nos. 135, 136.) With respect to the RFPs, Plaintiff had apparently brought a binder to her re-noticed deposition, and had stated towards the end of the deposition that many of the documents in the binder were relevant. (Dkt. No. 135 at 3.) Defendant reserved the right to keep the deposition open pending Plaintiff's document production. (Id.) Defendant informed Plaintiff that they would engage in further meet and confer efforts to obtain her additional document production and re-notice her deposition if needed, to which Plaintiff responded that Defendant was rejecting her offer to keep the documents. (Id. at 3-4.) After Defendants withdrew a number of the RFPs, on June 27, 2017, Plaintiff responded with the 7, 000-page loan file which Defendant had provided to her earlier in the lawsuit, and a list of blanket objections. (See Dkt. No. 135, Exh. E.) On June 28, 2017, Defendant asked Plaintiff if her production was complete, and Plaintiff responded that she believed more documents existed but that she did not have to produce them prior to the discovery cut-off date of August 17, 2017. (Dkt. No. 135 at 4.) As the parties' July 13, 2017 meet and confer, Plaintiff did not bring any additional documents and did not confirm whether her production was complete. (Id.) At the August 18, 2017 meet and confer, Plaintiff stated that discovery was ongoing, and claimed that she had lost the binder of documents and was still trying to find it. (Id.)

         In the joint discovery letter, Defendant argued that Plaintiff should be required to produce all documents, or to state under oath that she did not have any further responsive documents. (Dkt. No. 135 at 5-14.) Defendant further argued that if Plaintiff failed to do so, the Court should prohibit Plaintiff from introducing as evidence at summary judgment or trial any documents supporting her claims other than those already produced to her by Defendant. In response, Plaintiff did not object to the substance of the RFPs or defend her prior objections, instead arguing that she had already produced 7, 000 pages in evidence, had previously advised Defendant that she would be out of town until August 15 and would continue searching for documents upon her return, that Defendant had refused the binder she offered to let them keep, that discovery was ongoing, and that it was unethical and illegal for Defendant to request the evidentiary sanctions sought. (Id. at 6-15.)

         As to the interrogatories, Plaintiff had either failed to provide further responses or objected on the grounds that the interrogatories were compound, "nonsensical, " not clearly defined, not reasonably calculated to lead to discovery of admissible evidence, duplicative, burdensome, or sought information that was "proprietary" and "privileged." (Dkt. No. 136 at 3, 7-8.) At the July 13, 2017 meet and confer, Plaintiff did not bring additional responses and would not confirm whether her responses were complete. (Id. at 2.) The parties also had a second meet and confer on August 18, 2017. (Id.) In the letter, Defendants requested that Plaintiff be required to produce substantive responses within two weeks, or to state under oath that she had no responsive information. (Id. at 5.) Plaintiff, in turn, argued that she had produced over 7, 000 pages in evidence, Defendant never objected to her responses, Defendant failed to explain how her responses were incomplete, and that she had advised Defendant that she would be out of town until August 15 and that discovery was ongoing. (Id.)

         On September 12, 2017, the Court issued an order requiring Plaintiff to provide a supplemental document production or a verification under oath that she had no additional documents within fourteen days. (Dkt. No. 141 at 5.) In so ordering, the Court explained that the fact that the discovery deadline had not yet passed was not a legitimate reason to withhold production of documents, as Plaintiff was not entitled to withhold all document production until the last day of discovery. (Id.) The Court warned that Plaintiff's failure to produce additional responsive documents or a verification under oath that she had no additional documents could result in the Court recommending evidentiary sanctions prohibiting Plaintiff from introducing any additional documents in response to a summary judgment motion or at trial. (Id.)

         The Court also rejected Plaintiff's arguments regarding the interrogatories, again explaining that the fact that Plaintiff had produced some documents or that the discovery deadline had not yet passed did not excuse Plaintiff from responding in full to the interrogatories. (Dkt. No. 141 at 8.) The Court also explained that because Plaintiff chose to bring the instant lawsuit, she had to comply with her discovery obligations by explaining her claims and identifying the relevant documents and witnesses. (Id. at 8-9.) The Court ordered Plaintiff to provide supplemental responses or a verification under oath that she had no additional information within two weeks, and again warned that failure to comply could result in sanctions for failure to cooperate in the discovery process, including monetary or evidentiary sanctions, or a recommendation of terminating sanctions, pursuant to Federal Rule of Civil Procedure 37. (Id. at 8-10.) As with the Court's May 4, 2017 order, the Court informed Plaintiff that she could contact the Federal Pro Bono Project's Help Desk to get assistance with discovery. (Id. at 10.)

         On September 25, 2017, Plaintiff filed a "Response" to the September 12, 2017 discovery order. (Dkt. No. 143.) For Interrogatory Nos. 1-7, in which Plaintiff was asked to state all facts concerning her claims, Plaintiff only copied and pasted from her second amended complaint, and provided no additional information. (Compare Dkt. No. 143 at 2-4 with SAC at 15-17; Dkt. No. 143 at 4 with SAC at 14; Dkt. No. 143 at 5-7 with SAC at 11-14; Dkt. No. 143 at 7-8 with SAC at 9-11; Dkt. No. 143 at 9 with SAC at 11; Dkt. No. 143 at 10-12 and 12-14 with SAC at 17-20.) With respect to the identification of persons with information concerning her claims, Plaintiff typically identified the same four individuals, including former Defendant Treena Berlinsky and attorneys Adam Vukovich and Kimberley Paese, who have litigated the instant case.[2] (Dkt. No. 143 at 4, 7, 8, 9, 12, 13.) Plaintiff only identifies additional individuals in response to Interrogatory No. 2(b), in which she identifies nine individuals "plus multiple other characters, " which Plaintiff does not name. (Id. at 5.) As to the identification of documents concerning her claims, Plaintiff repeatedly states that she had "provided all documents in her possession to the Defendants, " that she had no other documents at this time, and that she reserved her rights to use any other documents that become discoverable. (Id. at 4, 5, 7, 8, 9, 12, 14.) Plaintiff also responded to Interrogatory No. 8(c)'s request for identification of documents concerning her emotional distress claim by not only stating that she had provided all documents in her possession to Defendant, but that the documents were already provided by her health advisor. (Id. at 15.) Similarly, with respect to Interrogatory No. 16's request for the identification of all communications Plaintiff had with Defendant from August 2014 to August 2015, Plaintiff only stated that she had provided all documents, had no other documents, and reserved her right to use any other documents that became discoverable. (Id.) Finally, Plaintiff identified six individuals who lived at the subject property from January 2015 to the present. Although the interrogatory response was signed, the response was not verified, as the interrogatories are not answered "in writing under oath." Fed.R.Civ.P. 33(b)(3).

         The "Response" also included Plaintiff's responses to Defendant's RFPs. (Dkt. No. 143-1.) Every response contained the same copied and pasted statement: "Plaintiff has provided all documents in her possession to the Defendants. At this time, she has no other documents available. Plaintiff reserves her right to use as evidence at the hearing or trial, any other documents that become discoverable. Plaintiff attaches a declaration to that effect, in support of her response." (Id. at 1-12.) Like the interrogatory response, the RFP response was signed but not verified. (Id. at 12.)

         On September 26, 2017, Plaintiff filed a declaration in support of her response. Plaintiff asserted that she had produced in excess of 8, 000 pages, and claimed that there had been "thefts that have occurred at her home and from her car, " resulting in only documents related to this case to be stolen. (Dkt. No. 144 at 1.) Plaintiff stated that her medical records and loan payment records were recently stolen, and that a white binder containing over 1, 000 pages was stolen from her home. (Id.)

         On August 30, 2017, Defendant filed a motion to compel the deposition of third-party witness, Mr. Ronjon Sen. (Dkt. No. 138.) On October 5, 2017, the Court granted Defendant's motion to compel. (Dkt. No. 146.) The Court rejected Plaintiff's argument that Defendant should be required to formally contact Plaintiff to set up Mr. Sen's deposition, explaining that Plaintiff is not an attorney and did not represent Mr. ...


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