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Anderson v. Bank of America, N.A.

United States District Court, D. Oregon, Portland Division

February 18, 2015

JODEE ANDERSON, Plaintiff,
v.
BANK OF AMERICA N.A., a Delaware corporation, and JOHN DOE, an unknown trust, Defendants.

ORDER ON MOTIONS

JOHN V. ACOSTA, Magistrate Judge.

On February 11, 2015, Defendant Bank of America filed four motions pertaining to discovery issues: Unopposed Motion for Hearing (Dkt. No. 69), Motion to Postpone Ruling on Motion for Reconsideration and Objections to Order (Dkt. No 71), Motion for Reconsideration (Dkt. No. 72), and Objections to Magistrate Judge's Order (Dkt. No 73). Bank of America challenges the court's January 28, 2015 order allowing Plaintiff Jodee Anderson to depose Bank of America employee and declarant Erin Avera, seeks to delay the court's consideration of that challenge while the parties schedule mediation and Anderson contemplates the necessity of the deposition, and asks the court to extend the deadlines for discovery closure and dispositive motions. Bank of America requests a hearing on its request for an extension of deadlines. (Dkt. No. 69.)

Relevant to the court's rulings on these motions, the court notes the parties have required the court's intervention on discovery disputes on at least six occasions:

1. January 29, 2014 (P's motion to compel - #22);
2. November 4, 2014 (P's 2nd motion to compel - #48);
3. December 22, 2014 email order in response to December 19, 2015 letter from Bank of America counsel requesting clarification of court's December 11, 2014 order on Anderson's Second Motion to Compel;
4. January 9, 2015 (discovery conference - #67);
5. January 20, 2015 email order in response to January 16, 2015 letter from Bank of America counsel requesting the court decline to order Bank of America produce emails; and
6. January 28, 2015 email order in response to January 21, 2015 letter from Anderson's counsel requesting the court order Bank of America to produce emails and related information.[1]

Federal Rule of Civil Procedure 1 states that the federal rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." Federal Rule of Civil Procedure 16(a) provides in relevant part that the court may order counsel "to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establish early and continuing control so that the case will not be protracted because of lack of management; [and] (3) discouraging wasteful pretrial activities[.]" Federal Rule of Civil Procedure 16(c)(2) empowers the court to "consider and take appropriate action" on numerous matters including "(F) controlling and scheduling discovery, " and "(P) "facilitating in other ways the just, speedy, and inexpensive disposition of the action."

Pursuant to these rules and consistent with their purpose, and in accordance with the court's inherent authority to manage its case docket, the court enters this order regarding the court motions currently pending in this case:

1. Unopposed Motion for Hearing (Dkt. No. 69).

RULING: DENIED in part, GRANTED in part.

Bank of America asks for a hearing to discuss an extension of the discovery closure and dispositive motions deadlines. The court finds a hearing is unnecessary and DENIES that part of Bank of America's motion.

Bank of America asks to extend the discovery closure and dispositive motion deadlines. The court concludes that a reasonable extension is appropriate, and thus GRANTS that part of Bank of America's motion, but finds that a 120-day extension is not reasonable. This case now is 17 months old and the parties have yet to complete discovery. Significantly contributing to this prolonged course is the parties' multiple discovery disputes. As noted above, court intervention has been necessary on at least six separate occasions to resolve the parties' various discovery disagreements. Further, additional delay resulted form the parties' inability to agree on a date for their first mediation. The parties' request mediation, first made on December 4, 2013, by Bank of America's counsel, resulted in an order on December 16, 2013 (see Dkt. No. 17), referring this case to the court's Staff Mediator, but that the mediation did not occur until February 18, 2014. The record contains no justification for the delay in scheduling and convening the parties' first mediation, and the court is unwilling to grant another extensive delay of discovery to allow the parties to schedule and convene a second mediation.

Accordingly, the court extends the current discovery closure and dispositive motion dates by seventy-five (75) days. Discovery shall close on May 1, 2015, and dispositive motions must be filed no later than June 1, 2015. Further, the court ORDERS expert disclosures to be served no later than July 1, 2015, and expert depositions to be completed by August 17, 2015.

2. Motion to Postpone Ruling on Motion for Reconsideration and Objections to Order (Dkt. No 71).

RULING: DENIED in part, GRANTED in part.

These two motions present different procedural issues.

A. Motion for Reconsideration.

A motion for reconsideration is directed to the judge who issued the decision that the filing party asks be reconsidered. Accordingly, this court may decide whether to postpone a determination of Bank of America's motion for reconsideration of the court's January 28, 2015 email order, which gave Anderson permission to depose Ms. Avera. Given Bank of America's representation that Anderson currently is uncertain whether she will depose Ms. Avera and that Anderson consents to the motion to postpone, the court GRANTS this part of Bank of America's motion, as modified below.

B. Objections to Order.

Bank of America has filed objections to the court's January 28, 2015 email discovery order, and asks this court to postpone referring those objections to a district judge while Anderson considers whether she will depose Ms. Avera. Objections to a magistrate judge's non-dispositive order are referred to and decided by a district court judge. FED R. CIV. P. 72(a). However, the parties here have consented to jurisdiction by magistrate judge ( see Dkt. No. 52, November 12, 2014), and the parties' consent authorizes this court to preside over this case for all purposes. See FED R. CIV. P. 73(a) ("When authorized under 28 U.S.C. § 636(c) a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial."); 28 U.S.C. § 636(c)(1) ("Upon the consent of the parties, a full-time United States magistrate judge... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves."). Thus, Bank of America's objections to this court's January 28, 2015 email order are not the proper procedural route for challenging that order. See 28 U.S.C. § 636(c)(3) (providing that the appeal route from any final order or judgment entered by a magistrate judge is directly to the appropriate united states court of appeals); FED. R. CIV. P. 73© ("In accordance with 28 U.S.C. §636(c)(3), an appeal from a judgment entered at a magistrate judge's direction may be taken to the court of appeals as would any other appeal from a district-court judgment.").[2] Accordingly, the court DENIES this part of Bank of America's motion because the objections it seeks to postpone consideration of are procedurally improper, and thus need not be referred to a district court judge.

3. Motion for Reconsideration (Dkt. No. 72).

Given Bank of America's representation that Anderson agrees the court need not rule on its motion for reconsideration until after the parties' mediation, the court GRANTS Bank of America's motion. Accordingly, the court STRIKES AS MOOT Bank of America's motion for reconsideration, without prejudice and with leave to refile five (5) calendar days after the date of the parties' mediation.

4. Objections to Magistrate Judge's Order (Dkt. No 73).

As explained above, Bank of America's objections to this court's January 28, 2015 email order are procedurally improper. Accordingly, the court DENIES the objections as moot.

IT IS SO ORDERED.

1 Attachment

Letter to Judge Acosta re motion to compel.pdf

Dear Counsel:

I have Mr. Laurick's December 19, 2014 letter regarding defendant Bank of America's ("BoA") progress in complying with the discovery order (Dkt. No. 63) entered memorializing my rulings at the December 11, 2014 hearing. Mr. Laurick asks for clarification of two of my rulings. I address each question in turn.

"(i) all non-privileged documents and communications between Defendants and third parties related to Defendants obligations to implement the settlement agreement created between 1/1/13 and 9/19/13."

Mr. Laurick states BoA's belief that it has produced all documents within the scope of this category that are reasonable accessible. In response to the court's request at the December 11 hearing, Mr. Laurick provides additional detail regarding the burden to BoA of processing additional electronic and email discovery, and the comparative benefit such a search would yield in light of the documents BoA already has produced. He asks for clarification whether BoA must "(A) confirm that its readily available business records have been produced for the specified time period and topic; (B) undertake a large scale search and review of employee emails to determine if non-privileged emails exist to supplement the business records that have been produced; or (C) complete A and B."

"(iii) all documents from Defendant's counsel directing Defendant's employees on how to implement the settlement agreement created between 1/1/13 and 9/19/13."

Mr. Laurick interprets this ruling to require BoA to produced privileged communications between its outside counsel and its employees. He reiterates the attorney-client privilege arguments previously asserted, but offers a privilege log from BoA's outside counsel identifying these documents. Mr. Laurick asks for clarification whether BoA outside counsel is to provide a privilege log of communications with BoA employees, or whether instead BoA in-house counsel is to produce its non-priviileged communications retrieval of which "would require lengthy and costly processing" equal to that required to produce employee emails.

Regards,

Attached is a letter to Judge Acosta from James Laurick. The original will follow by U.S. Mail.

732 N.W. 19t

Note - If you get an "out of office" reply, please re-send your email to jlauric@kilmerlaw.com

CONFIDENTIALITY NOTICE: This e-mail message may contain confidential or privileged information. If you have received this message by mistake, please do not review, disclose, copy, or distribute the e-mail. Instead, please notify us Immediately by replying to this message or telephoning us. Thank you.

732 N.W. 19t jlaurick@kilmerlaw.com Jodee Anderson v. Bank of America, N.A.

Dear Judge Acosta:

In response to the Court's January 9, 2015 Order, I submit the following on behalf of Defendant Bank of America, N.A.

(1) The Order requires production of unredacted pages of Bank of America's production. I have provided Plaintiffs counsel with unredacted copies of BANA001220 through 001222.

(2) The Order requires Bank of America to confirm whether its outside counsel communicated with Bank of America only regarding the implementation of the settlement agreement, the quitclaim deed, foreclosure efforts and credit reporting. Following the April 2012 settlement, Bank of America's outside counsel only communicated on the above issues with Bank of America employees, other outside counsel of Bank of America, and counsel for Jodee Anderson. Unrelated to the Court's specified topics, Bank of America's outside counsel has communicated with the taxing authority and utilities for the property because Plaintiff directed that tax statements be sent to Bank of America's outside counsel through her November 2012 quitclaim deed. Further, in or around March and April 2013, outside counsel received unsolicited contact from a real estate broker, inquiring as to the status of the property.

(3)(a) The Order requires a list of BANA employees identified as having performed work on Plaintiff's loan between the settlement date and September 19, 2013. Accompanying my letter is a potential custodian list containing the names of 76 current and former employees identified as having worked on or come into contact with Plaintiff's loan file or the litigations/disputes with Plaintiff during the specified time period.

(3)(b) The Order requires the estimated time and expense to retrieve entails of the BANA employees. Accompanying my letter is a declaration of Bank of America employee, Erin Avera, addressing the Court's Order and providing time and cost estimates. As detailed in Ms. Avera's declaration, the retrieval, processing and review will take approximately four months to complete and will cost between $686, 000 and $1.4 million.

Federal Rule 26 permits a Court to consider whether the expense of discovery is necessary and proportional:

"On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues."

Fed. R. Civ. P. 26(b)(C).

Here, the anticipated cost of email discovery is dramatically disproportionate to the amount in controversy, far exceeding the original principal balance of the loan upon which Plaintiff bases her claims. Moreover, the records of servicing activities of interest in the litigation are contained in the servicers' computerized record system. Plaintiff has set forth no basis for concluding that the servicing records already produced are so inadequate such that email discovery must be completed, despite the cost. Accordingly, Bank of America respectfully requests that the Court decline to order production of email discovery.

1. Penelope Tolbert 2. Zachary McKinzie 3. Sandra Hale 4. Melissa R Von Hoyningen Huene 5. Alyssa K Rodriguez 6. Sandra Garcia 7. Ana Castellanos 8. Arlette Karamian 9. Olga Salinas 10. Julio Juarez 11. Juan L Campos 12. Michael Wilson 13. Renee Hudson 14. Janitha Ranaweera 15. Bryan Massey 16. Angela Dates 17. Sandhana Kulkarni 18. Jennifer Farr 19. Lorraine Sygulla 20. Stina Raschke 21. Martha Porter 22. Sara Petikyan 23. Catherine Villareal 24. Harry Velez

25. Keiera Mouton 26. Igor Yusim 27. Scott Muldowney 28. Sabrina Morrison 29. Michelle Hawkins 30. Virgina Contreras 31. Audrey Parham 32. Natasha Ceaser 33. C. Liffrig 34. Marilyn Dennis 35. Evelynne Swagerty 36. Jamie Walk 37. Keith Nichols 38. Susan Sotak 39. Alba Batres 40. Krysta Clark 41. Brianna May 42. Dawn Frascello 43. Srinivas Kanury 44. Kamlesh Korat 45. Deepak Rayindran 46. Allison Krivansky 47. Karen Finnegan - 2 48. Karen M Homrock 49. Kasey Coates 50. Amber McCrary 51. Richard Villagrana 52. Heidi Recinos 53. Sandra Aldrete 54. Camille Hicks 55. Stacey Haggard 56. NBK1LAF 57. NBK8CHU 58. NBKCKHP 59. NBKCX4M 60. NBKDOVS 61. NBKEJGC 62. NBKEUZM 63. NBKHBZI 64. NBKHIYN 65. NBKIF9N

I, Erin S. Avera, declare as follows:

1. I am currently employed by Bank of America (the "Bank") as Senior Vice President - Senior Technology Manager of Systems and Data Security. I am part of a team that collects and processes electronically stored information, such as email and certain other electronic files, for litigation. I have personal knowledge of the matters stated herein, based upon information obtained in connection with my employment at the Bank and through others at the Bank, except as noted herein.

2. I make this declaration in support of the Bank's response to Judge Acosta's Order dated January 9, 2015, which requested information regarding the estimated time and expense to conduct a search and retrieval emails for a specified period of time using Court ordered search terms.

3. This declaration will respond by providing an overview of the manner in which the Bank collects and processes data for litigation, and the potential volume of material that appears to be encompassed by the Judge's Order. I will also try to quantify some of the burdens involved in conducting such a search and retrieval of emails for production.

4. The Court requests that the Bank estimate the time and expense to conduct a search to collect and retrieve emails for "all BANA employees identified as having performed any work on or task relating to Plaintiff's account, including the parties' settlement agreement, " over a time period of approximately a year and a half. The Court also identifies 11 search terms which should be used after retrieving the data. Such a search would be tremendously time-consuming and expensive, involving Bank personnel, outside vendors, contract attorneys, and outside counsel. This time and expense would be grossly disproportionate to the stakes at issue in this litigation.

5. At this time, more than 75 potential custodians (employees) have been identified who may have performed work on the Plaintiff's account up to and including the time of settlement and implementation of the settlement.

6. Confirming the identity and employment of these 75 custodians alone will be time intensive and burdensome for the Bank. Bank attorneys and eDiscovery associates, in possible conjunction with Human Resources, will have to conduct a comprehensive and potentially difficult search in order to identify the legal name of all 75 employees, and in turn, their unique Bank identifying number. Once the custodian is identified by this number, a search will be run to see if the potential custodian is still employed at the Bank. If the potential custodian is no longer employed, searches will have to be run to identify their legacy employment history if any, prior legal holds if any, and prior collections if any. It will be necessary to conduct similar searches for those employees identified as current. In addition, most, if not all of these current employees will have to be interviewed to determine whether they have retained emails that are potentially responsive to these requests. Overall, this process could take upwards of 200 hours of Bank time.

7. Following the identification of custodians, the Bank would move onto collection of the requested data for each potential custodian. As the collections process may span multiple systems, repositories and individual computers, the process for collection can be (and often is) incredibly time-intensive.

8. There is not one central system for all BANA emails. There is no central system or location that collects and stores emails from the loss mitigation and other loan servicing departments and teams that had contact or involvement with Plaintiffs' loan. In order to collect emails across a broad set of custodians, the collection of emails would likely have to be conducted across numerous systems, including large repositories, servers, and a large number of individual machines.

9. While there is not one central system for individual employee emails, BANA does utilize several structured databases for creating and maintaining business records. BANA instructs its employees engaged in loan servicing activities to record any communications or actions on a particular loan in the applicable structured databases, such as AS400, which are then used as systems of record for documenting servicing-related activity. While BANA employees possess the ability to communicate with each other via email, such communications may not replace the recording of events in the structured database of record. As such, the most reliable record of servicing events that occur relative to a specific loan and the reasons for those events are contained within the structured database of record.

10. BANA's general email retention policy is to maintain emails to or from employees for a period of ninety (90) days, in the absence of a requirement to maintain an employee's email for a period of time specified by a regulatory agency. At the end of 90 days, an email to or from an employee that has not been archived is deleted from the BANA email system automatically.

11. There are approximately 224, 000 employees and contractors at BANA and approximately 164, 000 are non-regulated. Internal to internal email volume at BANA averages 787, 000, 000 emails per month or 2.4 billion emails every 90 days. Internal to external email volume averages 197, 000, 000 per month, or 590, 000, 000 every 90 days. Accordingly, BANA has an average volume of 11.8 billion emails annually, with an estimated 75% no longer retained on BANA's active network.

12. Considering the volumes of data described above, and the incredibly large number of potential custodians identified here, the burden on the Bank simply to collect the requested data would be staggering. For instance, the collection process that would need to be undertaken would differ for each custodian depending on their legacy acquired institutional policies, technology, and regulatory status, and could necessitate the collection of emails from multiple repositories that contain email as well as the collection and processing of emails located on other network sources and individual hard drives. Collection of emails as described and for this matter will result more than 600 GB of data which is equivalent to 3 million email messages. After specifically-identified custodian emails are collected, the emails must be loaded onto a platform and sent to BANA's discovery vendor for review and indexing, elimination of duplicate emails, and key-word searching as ordered by the Court. Furthermore, processing and review of mortgage related documents is time consuming due to the large number of documents per file. Therefore, the collection and subsequent processing of emails will incur costs between $686, 000 and $1.4 million and take the Bank, in conjunction with a discovery vendor, approximately four months to complete.

13. The estimated costs and four-month estimates can be broken down as follows:

Task Est. Cost Range Est. Time Required Custodian Research and Collection of $172, 000-$266, 000 8 weeks Emails; Processing Collected Data; Applying Search Terms Attorney Review of Data for Relavance, $514, 000-$1.1 million 8 weeks Privilege; Quality Control Procedures

I declare under penalty of perjury that the foregoing is true and correct, and that this Declaration was executed on the 16th day of January, 2015, in Jacksonville, Florida.

Dear Counsel:

I have reviewed the materials forwarded by Mr. Laurick with his January 16, 2015 email regarding the electronic discovery we discussed at our January 9, 2015 status conference. At this time I accept Ms. Avera's representations regarding the work and expense range she projects for locating and retrieving the identified information from potentially 75 BANA employee and contractor custodians. Therefore, BANA will not be required to engage in locating and retrieving emails regarding Ms. Anderson's mortgage and implementation of the parties' prior settlement agreement.

At the time of our January 9 status conference, Mr. Scannell had not yet reviewed in detail the servicing records BANA produced or deposed any BANA employees. If information developed during further discovery contradicts that which is contained in the Avera Declaration, I will revisit the email discovery question upon request or motion by plaintiff.

Regards,

Mr. Gale:

Attached are the following documents for Judge Acosta's consideration.

• Letter to Judge Acosta
• Potential Custodian List
• Declaration of Erin S. Avera

We are also sending the attached by regular mail. Thank you for your assistance.

732 N.W. 19t Jodee Anderson v. Bank of America, N.A.

Dear Judge Acosta:

I am in receipt of the correspondence of Mr. Laurick as well as the Declaration of Ms. Avera. We have asked Mr. Laurick to find a half day in the very near future when I can depose Ms. Avera.

I believe the deposition can be done via Skype or some other communication system. often when we do this, the banks will object to us having the court reporter present on their end of the deposition. In Plaintiff's view, this objection has no merit. The presence of the court reporter ensures that the deponent is not getting any help that they should not be getting. The presence of the court reporter also allows us to send exhibits to the reporter. This in turn prevents the deponent or counsel time to review them before the deponent is required to answer questions about the exhibits.

At a minimum, the bank should also be Ordered to provide the full names, the last known addresses, email addresses, cell phone and home phone numbers, and dates of birth for all the "custodians" it has listed. This list should also be divided between current employees of the bank, who the Plaintiff will not contact, and those who are former employees, who we do plan to contact. We also ask that if the bank decides to contact its former employees in advance of our efforts to interview them, that the bank not threaten or mention the fact that the former employees have signed confidentiality agreements with the bank. In the event the issue of confidentiality agreements and their scope should come up while interviewing potential witnesses, both parties can raise it with the Court. The Plaintiff simply wants to avoid any chilling effect the bank might have on its former employees coming forward as witnesses in this case.

The Plaintiff has four comments on the material submitted by Mr. Laurick. First, the position taken by BOA is essentially that, due to its size and its large volume of emails and the associated cost of doing a search, it should be relieved from the requirements of FRCP 26. In the Plaintiff's, view this positon adds one more "too big to" for this bank.[1] In essence, the bank is arguing it is also too big to have to comply with discovery requests. BOA is not too large to be held accountable to homeowners in civil cases. The Plaintiff respectfully asks the Court reject BOA's reasoning.

Second, the Plaintiff thinks it is clear that Bank of America has no intention of looking for emails, let alone producing them. In any event, the bank admits that it has destroyed the emails, For these reasons, and in lieu of a deposition of Ms. Avera, the Plaintiff asks that the Court give an adverse inference instruction, at least as to emails in the case after the request for a litigation hold was sent to BOA's counsel on May 10, 2013. The Ninth Circuit has approved the use of adverse inferences as a sanction for spoliation of evidence and has adopted the three-part test of the Second Circuit. The three-part test provides that "a party seeking an adverse inference instruction based on the destruction of evidence must establish[:] (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind'; and (3) that the evidence was relevant' to the party's claim or defense such that a reasonable trier of fact could find that it *990 would support that claim or defense." Apple Inc. v. Samsung Electronics Co., 888 F.Supp.2d 976, 989-90 (N.D. Cal. 2012).

The Plaintiff respectfully urges the Court to not give BOA a "pass" on looking for or producing emails and other key documents in this case because it is too big. An adverse inference instruction is likely the most efficient, fair and best way forward.

Third, this leaves the material that BOA is still withholding due to "attorney client privilege and work product." The Plaintiff does not believe that BOA has met its high burden to show that there is any attorney client privilege in the case, other than the communication between Mr. Laurick's law firm and BOA and its outside counsel. The Plaintiff incorporates by reference counsel's letter to the Court, dated December 22, 2014, which covers these issues and others.

There remain significant redactions in the loan notes. For example, BANA 001268-001287 are heavily redacted. Due to the small volume of material the Plaintiff asks that BOA turn these notes over to the Court for an in camera inspection. So far, the Court found that the notes withheld by the bank did not contain attorney client communication or work product material.

In addition, the Plaintiff continues to seek the communication between various outside attorneys and BOA employees. There was never a satisfactory privilege log produced. For that reason, any objection is waived. In addition, BOA has not complied with the Court's earlier Order of January 9, 2015.

Dear Counsel:

I have read Mr. Scannell's January 20, 2015 letter, which he sent in response to Mr. Laurick's January 16, 2015 email and attachments. This email responds to the issues raised collectively by those letters and is to be considered an order of the court.

1. Plaintiff may depose Ms. Avera. Plaintiff is entitled to inquire about the bases of her declaration testimony. If after deposing Ms. Avera's plaintiff believes emails do exist that contain discoverable information, and which can be retrieved, plaintiff may file a motion to compel.

2. Plaintiff's request for contact information for former employee-custodians is denied, with leave to renew the request by motion after the Avera deposition.

3. Plaintiff's request for an adverse inference instruction is denied at this time. Such a request is properly made by formal motion based on a sound record, to which defendant may formally. Plaintiff may renew this request by formal motion.

4. Defendant is to produce a privilege log to plaintiff no later than Friday, February 6, 2015. If defendant already has produced a privilege log, then it need not produce it again on February 6. If plaintiff believes defendant's privilege log is inadequate and counsels' conferral does not resolve the issue, plaintiff may file a motion to compel production of a sufficient privilege log. If plaintiff believes one or more of the documents appearing on the privilege log are not privileged, plaintiff may file a motion to compel production of any such documents.

5. Further discovery disputes shall be submitted to the court only by formal motion. The court no longer will accept or decide discovery disputes submitted by email. The court will accept calls regarding disputes arising during depositions in process and will resolve those disputes during the call, unless in the court's judgment formal briefing is necessary or appropriate.

Finally, the discovery close date remains February 16, 2015, and the dispositive motion filing deadline remains March 16, 2015, both as ordered on October 15, 2014 (Dkt. No. 47). If either or both parties wish to extend those dates, a scheduling conference will be required.

Judge Acosta:

Here is our response. I understand your decision based on the information provided by Ms. Avera's declaration. There remain issues in the case and I have now gone through all the loan notes. My requests in the letter reflects that review.

Terry Scannell

Dear Counsel:

I have reviewed the materials forwarded by Mr. Laurick with his January 16, 2015 email regarding the electronic discovery we discussed at our January 9, 2015 status conference. At this time I accept Ms. Avera's representations regarding the work and expense range she projects for locating and retrieving the identified information from potentially 75 BANA employee and contractor custodians. Therefore, BANA will not be required to engage in locating and retrieving emails regarding Ms. Anderson's mortgage and implementation of the parties' prior settlement agreement.

At the time of our January 9 status conference, Mr. Scannell had not yet reviewed in detail the servicing records BANA produced or deposed any BANA employees. If information developed during further discovery contradicts that which is contained in the Avera Declaration, I will revisit the email discovery question upon request or motion by plaintiff.

Regards,

To: "Paul Gale@ord.uscourts.gov"

, Cc: "terry@scannellaw.com" , James Laurick Date: 01/1612015 04:07 PM Subject: Anderson v. Bank of America, Case No. 3:13-cv-01660-AC (XXXXX-XXXX)

Mr. Gale:

Attached are the following documents for Judge Acosta's consideration.

• Letter to Judge Acosta

• Potential Custodian List

• Declaration of Erin S. Avera

We are also sending the attached by regular mail. Thank you for your assistance.

Tamara Parcels | Legal Assistant to James P. Laurick Kilmer, Voorhees & Laurick 732 N.W. 19th Avenue, Portland, OR 97209 P: XXX-XXX-XXXX ~ F: XXX-XXX-XXXX ~ tparcell@kilmerlaw.com

Note - if you get an "out of office" reply, please re-send your email to jlaurick@kilmerlaw.com

CONFIDENTIALITY NOTICE: This e-mail message may contain confidential or privileged information. IF you have received this message by mistake, please do not review, disclose, copy, or distribute the e-mail. Instead, please notify us immediately by replying to this message or telephoning us. Thank you,

[attachment "XXXX_XX_XX Anderson - Letter to Judge Acosta - Response to Laurick Disco....pdf" deleted by John Acosta/ORD/09/USCOURTS]

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