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Wells Fargo’s Response To Discovery After Dodd Frank Requirements in Place

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No, there is no problem with your screen…the document that you see above is an example..one page…of hundreds that were produced by Wells Fargo in a foreclosure case.

Here are some of the motions that were directed at this:

Defendant by and through undersigned attorney and pursuant to Fla. R. Civ. P. 1.380(b) hereby moves for the sanction of dismissal without of the action filed by WELLS FARGO BANK, N.A. (hereinafter “Plaintiff”). Additionally or alternatively, and pursuant to Rule 1.380(b), Defendant moves the Court to sanction Plaintiff and limit the evidence and testimony it may present at trial. Finally, and pursuant to Rule 1.460, Defendant moves the Court to continue the trial scheduled for March 3, 2014. In support of the motion, Defendant asserts:

PLAINTIFF WILLFULLY DISOBEYED THE COURT’S FEBRUARY 5TH ORDER BY NOT PROVIDING PROPER ANSWERS DEFENDANT’S INTERROGATORIES
On December 17, 2013 Defendant served a first set of interrogatories on Plaintiff.
Plaintiff “responded” to these interrogatories with a blanket one page “objection” which incorrectly asserted that the interrogatories exceeded thirty in number.
Defendant thereafter filed a motion to compel which was heard by the Court at a hearing on February 5, 2014.

At the hearing, the Court granted Defendant’s motion, denied Plaintiff’s objections, and gave Plaintiff 20 days to file an amended response to Defendant’s interrogatories. The Court’s oral ruling was reduced to a written order that same day. The amended answers were therefore due on or before February 25, 2014.

Plaintiff, however, failed to provide a better response by that date and therefore violated the Court’s explicit instructions. Additionally, the late filed “amended answers” Plaintiff eventually did get around to serve are wholly insufficient because they are not made under oath; evasively or incompletely answer the questions pose; and raise meritless objections, including objections which the Court previously overruled in its February 5th order.

PLAINTIFF’S SUPPLEMENTAL RESPONSE TO PRODUCTION FAILS TO COMPLY WITH THE COURT’S ORDER WHICH RULED HER MOTION TO COMPEL “MOOT”
On December 17, 2013, Defendant served a First Request for Production on Plaintiff.
Because Plaintiff’s initial “response” to Defendant’s first request for production was facially insufficient, Defendant filed and served a motion to compel a better response to that discovery request.

A hearing on Defendant’s motion was held on February 25, 2014. In an order dated that day, the Court denied Defendant’s motion as “moot” upon Plaintiff’s counsel’ representation that additional documents would be served on Defendant.

On February 27, 2014 the additional “documents” were served on Defendant. While Plaintiff may attempt to impress upon the Court that the sheer number of documents provided shows that they have responded to Defendant’s request, even a cursory review of the documents reveals otherwise. Indeed, many of the documents are duplicative and most, if not all, are non-responsive to the 21 very specific requests made by Defendant.

As demonstrative of how facially insufficient Plaintiff’s responses are, nearly 200 of the first 475 pages of documents produced were completed blacked out for reasons cited as “proprietary documents” and “attorney work product.” As a specific example, Defendant has attached the first ten pages of documents produced as Exhibit “A” to this motion. As can be seen from this Exhibit, nine of the first ten pages are completed blacked out, and the one page that was not blacked out was a “service excellence award” given to. The relevancy of Ms. Steel’s customer service has yet to be determined by this Court.
Furthermore, the production revealed for the first time on the eve of trial that the underlying contract sued upon has been modified at least twice.
As a result, Plaintiff has failed to comply with the Court’s February 25th order which rendered Defendant’s motion to compel moot upon Plaintiff’s representation that a supplemental response would be forthcoming.

THE FLORIDA RULES OF CIVIL PROCEDURE PERMIT DISMISSAL AS A SANCTION FOR DISCOVERY ABUSES
Fla. R. Civ. P. 1.380(b)(2) provides, that
If a party or an officer, director, or managing agent of a party…fails to obey an order to provide or permit discovery, including an order made under subdivision (a)…the court in which the action is pending may make any of the following orders:

(A) An order that the matters regarding which the questions were asked or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.

(C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party.

(D) Instead of any of the foregoing orders or in addition to them, an order treating as a contempt of court the failure to obey any orders except an order to submit to an examination made pursuant to rule 1.360(a)(1)(B) or subdivision (a)(2) of this rule.

Instead of any of the foregoing orders or in addition to them, the court shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorneys’ fees, unless the court finds that the failure was justified or that other circumstances make an award of expenses unjust.
Bold emphasis added.

Here, Plaintiff has failed to comply with the Court’s orders requiring it to respond to Defendant’s discovery requests. Plaintiff has failed to provide meaningful answers to Defendant’s interrogatories and have in some cases raised the same objections that were previously overruled by the Court. Moreover, the documents produced revealed that the contract sued upon has been modified as far back as February 2008 even though Plaintiff failed to disclose this until the eve of trial. Therefore, its action should be dismissed without prejudice as a sanction pursuant to Rule 1.380(b)(2)(C).

Alternatively, Plaintiff should be prohibited from introducing evidence or testimony supporting its claims and designated defenses pursuant to Rule 1.380(b)(2)(B).

Finally, Defendant requests that the Court continue the trial scheduled for March 3rd pursuant to Rule 1.460 which equity demands in light of Plaintiff’s failure to engage in good faith discovery.
CONCLUSION AND REQUEST FOR RELIEF

WHEREFORE, based upon the foregoing, Defendant respectfully requests the Court sanction Plaintiff by dismissing the action without prejudice or, in the alternative, limiting the evidence Plaintiff; an award of attorney’s fees and costs pursuant to Fla. R. Civ. P. 1.380(b)(2); and any other relief the Court deems just and proper.

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