The opinion of the court was delivered by: Gerald L. Rushfelt United States Magistrate Judge
This case involves Defendants' (also referred to as "Borrowers")
application for mortgage loan modification under the federal Home
Affordable Modification Program ("HAMP") that was created through the
Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, 122
Stat. 3765 (codified as amended at 12 U.S.C. §§ 5201-5261).*fn1
The Court has under consideration Defendants' Motion to
Compel (ECF No. 100).*fn2 Pursuant to Fed. R. Civ. P.
37, the Borrowers seek to compel CitiMortgage Inc.'s ("CitiMortgage")
corporate representative, Salvatore J. Ghertkin, to appear for a
supplemental deposition and to compel CitiMortgage to produce
documents he had reviewed or otherwise mentioned during the
deposition. The supplemental deposition would allow the Borrowers to
complete his deposition and require the deponent to answer questions
he refused to answer, as instructed by counsel. For the reasons set
out below, the Court grants the motion in part and denies it in
I. Relevant Factual Background
Pursuant to Fed. R. Civ. P. 30(b)(6), the Borrowers served an amended notice to depose CitiMortgage's corporate representative on August 24, 2012. Among other things, CitiMortgage moved to limit or eliminate deposition topics and production requests set out in the amended notice.*fn3 By granting that motion in part, the Court limited the scope of one topic to which the deposition would apply, pursuant to Rule 30(b)(6).*fn4 And it also limited some requests for production.*fn5
The Borrowers then served a second amended deposition notice to depose
a corporate representative on January 30, 2013.*fn6
The second amended notice requested CitiMortgage to designate one or
mor persons to testify on its behalf in Chesterfield,
Missouri.*fn7 Like the prior notice, the second
amended notice identified two topics for the deposition: (1) facts and
circumstances surrounding the acquisition by CitiMortgage of the
servicing contract and the right to foreclose on the Borrowers' loan
and (2) circumstances of the Borrowers' application for a loan
modification from January 2009 through November 2010.*fn8
The notice also contains seven requests for production of
documents at the deposition.*fn9
On January 30, 2013, Salvatore J. Ghertkin appeared for deposition as the corporate representative of CitiMortgage. Upon direction from counsel, however, he refused to answer questions deemed to lie outside the topics identified in the deposition notice. In addition, CitiMortgage purportedly did not produce all requested documents at the deposition. The refusal to answer questions and failure to produce documents prompted the Borrowers to file the instant motion to compel. The motion is fully briefed and ready for ruling.
CitiMortgage opposes the motion for failure of Defendants to comply with D. Kan. Rule 37.2. The rule provides:
The court will not entertain any motion to resolve a discovery dispute pursuant to Fed. R. Civ. P. 26 through 37, or a motion to quash or modify a subpoena pursuant to Fed. R. Civ. P. 45(c), unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed. R. Civ. P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A "reasonable effort to confer" means more than mailing or faxing a
letter to the opposing party. It requires that the parties in good
faith converse, confer, compare views, consult, and deliberate, or in
good faith attempt to do so. "The purpose of these rules is to
encourage the parties to satisfactorily resolve their discovery
disputes prior to resorting to judicial intervention."*fn10
Parties are to treat the conference requirement "as a
substitute for, and not simply a formalistic prerequisite to, judicial
resolution of discovery disputes."*fn11 Thus, "parties
should confer with the same detail and candor expected in the
memoranda they would file with the court on the discovery
Although the motion contains no certificate of conference, the Borrowers state that the parties had a lengthy discussion at the deposition about the issue of answering deposition questions and that they attempted to contact the Court to resolve the issue. CitiMortgage, nevertheless, points out that following the deposition, it worked closely with counsel for the Borrowers to submit a joint pretrial order, but they did not discuss the filing of a motion to compel. The submitted proposed pretrial order, furthermore, did not indicate that the Borrowers intended to file a motion to compel. In their reply brief the Borrowers do not contest the facts presented by CitiMortgage. They instead reiterate that they conferred about the questioning at the deposition.
By not filing a certificate of conference, the Borrowers have not complied with Fed. R. Civ. P. 37(a)(1) or D. Kan. Rule 37.2. They conferred to some extent, nevertheless, at the deposition. And further conferring after the deposition ended appears unlikely to resolve the issues without judicial involvement. On the other hand, the Borrowers have not shown that they conferred at all about the requests for production. Furthermore, conferring about the production issues might have resolved those issues even after concluding the deposition.
Despite the lack of compliance, "it remains within the discretion of the court to consider the motion on its merits."*fn13 Given the utter lack of conferring on the production issues and any rationale for not making good faith efforts to confer on those issues prior to filing the motion to compel, the Court declines to consider the production issues raised by the motion. The motion is denied to that extent. The Court, however, will consider the motion to the extent it seeks to compel a supplemental deposition of the corporate representative. The ...