IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL ROTHSTEIN and ROMAINE 

ROTHSTEIN, 

Plaintiffs, 

v. 

BAYVIEW LOAN SERVICING, LLC, 

Defendant. 

PAPAK, Magistrate Judge: 

3:14-CV-1102-PK 

OPINION AND 

ORDER 

Plaintiffs Michael Rothstein ("Michael") and Romaine Rothstein ("Romaine" and, 

collectively with Michael, the "Rothsteins") brought this action against defendant Bayview Loan 

Servicing, LLC ("Bayview"), in the Multnomah County Circuit Court on June 5, 2014. Bayview 

removed the action to this court effective July 10, 2014. The Rothsteins amended their 

complaint in this court effective October 24, 2014. By and through their amended complaint, the 

Rothsteins alleged Baview's liability for violation of Oregon's Unlawful Trade Practices Act (Or. 

Rev. Stat. 646.605 et seq.), violation of the federal Fair Debt Collections Practices Act (15 

U.S.C. § 1692 et seq.), breach of contract in violation of Oregon common law, and negligent 

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misrepresentation in violation of Oregon common law. On Janumy 9, 2015, I recommended that 

the Rothsteins' common-law claims of negligent misrepresentation and breach of contract should 

be dismissed with prejudice, and effective March 10, 2015, Judge Brown adopted that 

recommendation without modification. This court has federal-question jurisdiction over the 

Rothsteins' Fair Debt Collections Practices Act ("FDCPA") claim pursuant to 28 U.S.C. § 1331, 

and may properly exercise supplemental jurisdiction over plaintiffs' state-law Unlawful Trade 

Practices Act ("UTPA") claim pursuant to 28 U.S.C. § 1367. 

Now before the comt is the Rothsteins' motion (#26) to compel Bayview to produce 

documents in discovery. I have considered the motion and all of the pleadings and papers on file. 

For the reasons set fotth below, the Rothsteins' motion is granted as discussed below. 

LEGAL STANDARDS 

I. Scope of Permissible Discove1y, Generally 

Federal Civil Procedure Rule 26(b)(l) provides that "[p]atties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party's claim or defense - including the 

existence, description, nature, custody, condition, and location of any documents or other 

tangible things and the identity and location of persons who know of any discoverable matter." 

Fed. R. Civ. P. 26(b)(1). The Rule specifies that "[r]elevant information need not be admissible 

at the trial if the discovety appears reasonably calculated to lead to the discovety of admissible 

evidence." Id However, the district comts should limit the scope of discovety under specified 

circumstances, as follows: 

On motion or on its own, the comt must limit the frequency or extent of discove1y 

otherwise allowed by these rules or by local rule if it determines that: 

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(i) the discove1y sought is unreasonably cumulative or duplicative, or can be 

obtained from some other source that is more convenient, less burdensome, or less 

expensive; 

(ii) the party seeking discovery has had ample opportunity to obtain the 

information by discovery in the action; or 

(iii) the burden or expense of the proposed discove1y outweighs its likely benefit, 

considering the needs of the case, the amount in controversy, the parties' 

resources, the impo1iance of the issues at stake in the action, and the imp01iance 

of the discove1y in resolving the issues. 

Fed. R. Civ. P. 26(b)(2)(C). 

II. Motion to Compel 

As noted above, Federal Civil Procedure Rule 26(b)(l) authorizes discove1y regarding 

any matter, not privileged, that is relevant to the claim or defense of any pmiy. Rule 26(b )(1) is 

to be construed broadly, and encompasses any matter that bears on, or that reasonably could lead 

to other matters that would bear on, any issue that is or may be in the case. See, e.g., 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 351 n. 12 (1978). 

If a pmty elects to oppose a propounding party's discovery requests, the opposing party 

bears the burden of establishing that the discove1y is overly broad, unduly burdensome or not 

relevant. See Graham v. Casey's General Stores, 206 F.R.D. 251, 253-4 (S.D. Ind. 2000). 

"Boilerplate, generalized objections are inadequate and tantamount to not making any objection 

at all." Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D. 584, 587 (C.D. Cal. 

1999); see also Farber and Partners, Inc. v. Garber, 234 F.R.D. 186 (C.D. Cal. 2006). 

Federal Civil Procedure Rule 37(a)(3)(B) empowers a propounding party to "move for an 

order compelling an answer, designation, production, or inspection" if: 

(i) a deponent fails to answer a question asked under Rules 30 or 31; 

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(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 

31(a)(4); 

(iii) a party fails to answer an interrogatory submitted under Rule 33, or 

(iv) a party fails to respond that inspection will be permitted - or fails to permit 

inspection - as requested under Rule 34. 

Fed. R. Civ. Pro. 37(a)(3)(B). Moreover, Rule 37(a)(4) provides that "an evasive or incomplete 

disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. 

R. Civ. P. 37(a)(4). Rule 26 provides that "[fjor good cause, the court may order discovery of 

any matter relevant to the subject matter involved in the action." Fed. R. Civ. Pro. 26(b)(l). 

FACTUAL BACKGROUND 

I. The Parties 

Plaintiffs Michael and Romaine are residents of Washington County, Oregon. Defendant 

Bayview is a limited liability company organized under the laws of the State of Delaware, with 

its principal place of business in Coral Gables, Florida. 

II. The Rothsteins' Allegations Regarding the Parties' Dispute1 

In August 2006 the Rothsteins purchased a residential prope1ty located at 13 52 Evah Lane 

in West Linn, Oregon (the "property"). In connection with their purchase of the property, the 

Rothsteins entered into two m01tgage loans with Bank of America, each secured by a Trust Deed 

for the prope1ty. 

In or around August 2009, the Rothsteins stopped making monthly payments on both 

Bank of America loans. In early 2011, Bank of America advised the Rothsteins that the property 

1 Except where otherwise indicated, the following is intended as a recitation of the 

allegations of the Rothsteins' complaint, and is not intended to constitute findings of fact. 

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would be sold at a public foreclosure sale. The Rothsteins filed for Chapter 7 bankruptcy in June 

2011, and in December 2011, the Bankrnptcy Court granted a discharge absolving the Rothsteins 

of personal liability on each of the two defaulted loans. 

In 2012, Bank of America transferred the "servicing" of the senior loan to Bayview and 

the servicing of the junior loan to third party Real Time Resolutions. At some time in 2012, 

Bayview initiated discussions with the Rothsteins regarding the possibility of avoiding 

foreclosure proceedings through transfer of the Rothsteins' interest in the property to Bayview (a 

type of transaction referred to by the parties as a "deed in lieu of foreclosure" or more briefly as a 

"deed in lieu"). 

From late 2012 through late 2013, Michael negotiated with Bayview representatives 

regarding the terms of the proposed transfer. In late 2013, a Bayview representative orally 

advised Michael that "the deed in lieu was approved," and that Bayview would pay the 

Rothsteins $8,500 in exchange for their execution of the transfer documents. Subsequently, a 

different Bayview representative advised Michael that Bayview would pay only $2,000 in 

exchange for the transfer. The Rothsteins then requested that the proposed arrangement be 

memorialized in a writing, but Bayview sent them only "mortgage assistance request forms" by 

and through which Bayview requested information about the Rothsteins' financial status. The 

Rothsteins did not fill out or return the forms. 

From July to December 2013, Bayview sent the Rothsteins a total of eight letters 

indicating that Bayview was negotiating the te1ms of a deed-in-lieu transfer with Real Time 

Resolutions (the junior loan servicer). Notwithstanding that repeated representation, Bayview 

did not, in fact, at any time contact Real Time Resolutions regarding the proposed transfer of 

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interest. Moreover, Bayview has continued to send the Rothsteins monthly billing statements in 

connection with the senior m01igage loan on the property, notwithstanding the bankruptcy 

discharge of December 2011. The pmiies never executed documents effecting a deed-in-lieu 

transfer of the Rothsteins' interest in the prope1iy to Bayview. 

II. Material Procedural History 

On Februmy 4, 2015, the Rothsteins served Bayview with a set ofrequests for production 

of documents. Bayview responded to the Rothsteins' requests on March 10, 2015, objecting to 

each request but agreeing to produce documents responsive to all but two of them. The parties 

conferred regarding Bayview's objections to the Rothsteins' requests, without success in resolving 

the dispute over the two requests as to which Bayview refused to produce documents. This 

motion followed. 

ANALYSIS 

The Rothsteins challenge Bayview's refusal to provide documents in response to their 

Requests for Production Nos. 4 and 5. Those requests, and Bayview's responses thereto, are set 

forth below. 

REQUEST FOR PRODUCTION NO. 4: A documented copy of all versions of 

[Bayview's) company policies for the years 2011, 2012, and 2013 concerning 

agreements, offers, arrangements, or otherwise concerning deeds in lieu of 

foreclosure transactions for loans [Bayview] service[ s]. 

RESPONSE: Defendant objects to this request as overbroad, unduly 

burdensome, not reasonably limited in time and scope, and not reasonably 

calculated to lead to the discovery of admissible evidence. Defendant fmiher 

objects on the grounds that the request is vague and ambiguous as to "documented 

copy of all versions" and reference to "otherwise," and that the request potentially 

seeks proprietmy information and/or attorney client privileged information. 

REQUEST FOR PRODUCTION NO. 5: A documented copy of all versions of 

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[Bayview's) policies for the years 2011, 2012, and 2013 that were implemented to 

avoid violations of the FDCPA and the procedures adopted to avoid such 

violations, as referenced in [Bayview's) Sixth Affinnative Defense2 in [its) 

Answer and Affinnative Defenses filed August 18, 2014. 

RESPONSE: Defendant objects to this request as overbroad, unduly 

burdensome, not reasonably limited in time and scope, and not reasonably 

calculated to lead to the discove1y of admissible evidence. Defendant fmther 

objects on the grounds that the request is vague as to "documented copy of all 

versions" and ambiguous and vague as to the types of policies Plaintiffs are 

requesting. Further, Defendant objects on the grounds that the request potentially 

seeks proprietmy information and/or attorney client privileged information. 

(Footnote supplied.) 

The Rothsteins take the position that they are entitled to production of documents 

responsive to both disputed requests because such documents "will shed light on whether 

Defendant's conduct was proper as compared to its own policies or not" and because documents 

responsive to the requests "relate directly to the hemt of the Complaint's allegations -namely, 

whether Defendant engaged in unlawful trade practices and debt collection practices." As to 

Bayview's objections to both requests based on "proprietmy infonnation and/or attorney client 

privileged information," the Rothsteins argue that responsive documents are highly unlikely to 

contain proprietmy info1mation or be subject to the attorney-client privilege, in that such 

documents are written company policies rather than compilations of trade secrets or 

communications made in confidence for the purpose of seeking legal advice. 

Specifically as to Request for Production No. 4, the Rothsteins argue that the request is 

not unduly burdensome in that it is unlikely that Bayview has a large number of policies or 

2 Bayview's sixth affirmative defense is as follows: "Defendant has no civil liability 

under the FDCPA, 15 U.S.C. § 1692, et seq. pursuant to 15 U.S.C. § 1692k(c) as any violation 

was unintentional and resulted from the maintenance of procedures reasonably adopted to avoid 

any such violation." 

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voluminous policies specifically relating to the nmrnw topic of "deeds in lieu of foreclosure 

transactions." The Rothsteins fmiher argue that Bayview's objection based on vagueness and 

ambiguity is misplaced in that the Rothsteins have specified that "all versions" refers only to 

cuITent and superceded officially promulgated or adopted versions of written policies rather than 

to draft policies that were not finalized and adopted or promulgated. The Rothsteins do not, by 

and through their memorandum in supp01i of their motion to compel, address Bayview's 

objections based on the purported vagueness or ambiguity of the reference to "otherwise" or 

based on the purp01ied failure to limit the request in time and scope. 

Bayview takes the position that Request for Production No. 4 is vague, overbroad and not 

reasonably limited in time or scope because it purportedly "will potentially cover all policies 

regarding any communications with borrowers, including former policies and drafts of policies" 

and "documents that were never adopted into policy and are protected by attorney-client 

privilege." Bayview also challenges the Rothsteins' assertion of the clear relevance ofresponsive 

documents, arguing that what is at issue here is whether Bayview's conduct was lawful with 

respect to the FDCPA and the UTPA, and not whether its conduct conformed with its own 

policies. Finally, Bayview asserts that its policies regarding deed-in-lieu transactions are 

confidential and proprietary. 

Bayview's positions regarding Request for Production No. 4 are disingenuous. First, 

while I agree with Bayview that the nmrnw question ofBayview's liability will tum on whether 

Bayview's actual conduct was lawful with respect to the FDCPA and/or the UTPA rather than on 

the content of its policies, under Federal Civil Procedure Rule 26(b)(l), the standard of 

discoverability is not whether documents are themselves material or admissible as evidence, but 

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rather whether they contain information reasonably calculated to lead to the discove1y of 

admissible evidence. Analysis ofBayview's policies specifically addressing deed-in-lieu 

transactions, if any such exist, is reasonably calculated to guide further discove1y by the 

Rothsteins regarding the conduct ofBayview's employees and agents in connection with their 

negotiations with the Rothsteins. Second, in light of the Rothsteins' express position that it seeks 

only current and superceded officially promulgated or adopted versions of written policies 

specifically relating to the narrow topic of "deeds in lieu of foreclosure transactions," Bayview's 

suggestion that it could be required to produce draft policies that were never implemented, or all 

policies relating to communications with b01Towers, is without basis. I agree with the Rothsteins 

that responsive documents are highly unlikely to contain proprietmy or confidential information, 

and indeed find that to the extent they may contain such information, Bayview has not met its 

burden to establish the likelihood that its objection based on proprietmy or confidential 

information is well taken. I further agree with the Rothsteins that the request is not overbroad, 

unduly burdensome, or vague, and moreover find that the express limitation of the request for 

policies effective in the years 2011, 2012, and 2013 and specifically relating to deeds in lieu of 

foreclosure transactions constitutes a reasonable limitation in both time and scope. 

For the foregoing reasons, the Rothsteins' motion is granted as to Request for Production 

No. 4, and Bayview is ordered to produce responsive, non-privileged documents within its 

possession and control within fourteen days of the date hereof. Specifically, Bayview is ordered 

to produce non-privileged documents constituting or containing its finalized policies goveming 

or relating with express particularity to deed-in-lieu transactions, to the extent such policies were 

finalized and promulgated, implemented, or adopted by Bayview and constituted Bayview policy 

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at any time during 2011, 2012, or 2013. 

Specifically as to Request for Production No. 5, the Rothsteins argue that Bayview's 

objection as to vagueness and/or ambiguity is not well taken in light of the fact that the request is 

expressly limited to the policies Bayview has affomatively relied upon in its sixth enumerated 

affirmative defense to the Rothstein's claims against it. The Rothsteins do not otherwise address 

Bayview's objections based on burden, breadth, limitation in time and scope, or relevance. 

Bayview takes the position that Request for Production No. 5 is overbroad in the extreme, 

in that it purportedly "will potentially require production of eve1y policy Bayview has regarding 

affirmative conduct of its employees, as any policy concerning interaction with bonowcrs or the 

handling of bonowers' loans could potentially be a procedure that assists Bayview employees in 

avoiding FDCP A violations." Bayview further takes the position that the request is not 

reasonably limited in scope in that it purportedly "is not limited to policies distributed to 

employees who had contact with plaintiff." Bayview argues that even if the request were 

nanowly tailored it would not be reasonably calculated to lead to the discove1y of admissible 

evidence because, again, what is at issue here is whether Bayview's conduct was lawful with 

respect to the FDCP A and not whether its conduct.conformed with its own policies. Finally, 

Bayview argues that it should not be required to produce responsive documents because the 

Rothsteins "ha[ ve] not stated a claim for violations of the FDCP A. .. [and] could not state such a 

claim." 

Again, Bayview's positions in connection with Request for Production No. 5 are 

disingenuous. First, because the request is expressly limited to precisely the documents upon 

which Bayview affinnatively relies by and through its sixth enumerated affomative defense, 

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responsive documents are of clear and direct relevance to Bayview's defenses, and the request is 

precisely tailored to those specific documents. Second, Bayview's argument that responsive 

documents are not discoverable because the claim in connection with which they are relevant is 

potentially subject to dismissal is wholly unavailing. That claim is pending and at issue at this 

time, and I note (as discussed above) that Bayview has already filed a motion to dismiss in this 

action, in connection with which it elected not to move against the Rothsteins' FDCP A claim. 

The possibility that Bayview might file a new motion to dismiss at some time in the future is 

without bearing on the cunent discoverability of the documents at issue in connection with 

Request for Production No. 5. I agree with the Rothsteins that responsive documents are highly 

unlikely to contain proprietary or confidential information, and again find that to the extent they 

may contain such information, Bayview has not met its burden to establish the likelihood that its 

objection based on proprietmy or confidential information is well taken. 

For the foregoing reasons, the Rothsteins' motion is granted as to Request for Production 

No. 5, and Bayview is ordered to produce responsive, non-privileged documents within its 

possession and control within fourteen days of the date hereof. Specifically, Bayview is ordered 

to produce non-privileged documents constituting or containing the policies upon which Bayview 

affirmatively relies in connection with its sixth enumerated affirmative defense. 

To the extent Bayview withholds documents from production on the basis of privilege, it 

shall provide the Rothsteins with a privilege log describing each such document, its contents, the 

date on which it was created, the identity of its author, the privilege pursuant to which it is 

withheld from production, and Bayview's basis for asse1ting such privilege in sufficient detail to 

pennit the Rothsteins and/or the comt fairly to evaluate the merits of the assertion. 

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CONCLUSION 

For the reasons set forth above, the Rothsteins' motion (#26) to compel production of 

documents is granted, and Bayview is ordered to produce non-privileged, responsive documents 

as discussed above within fou1ieen days of the date hereof, together with a detailed privilege log 

as discussed above in the event it withholds any documents from production on the basis of 

privilege. 

Dated this 27th day of April, 2015. 

~----4----,~~/~~("-"----"Jr Honorable Paul Papa 

United States Magistrate Judge 

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