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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREW J. MAXWELL, not 

individually, but as Trustee for the 

estate of Eduardo Garcia and Julia 

Escamilla (nka Julia Garcia); 

EDUARDO GARCIA; JULIA 

GARCIA; BYRON GARCIA; and 

MIRIAHM GARCIA, individually, 

 Plaintiffs,

 v.

WELLS FARGO BANK, N.A.,

 Defendant.

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Case No. 1:20-cv-02402

Honorable Rebecca R. Pallmeyer

Honorable Heather K. McShain

MEMORANDUM IN SUPPORT OF 

PLAINTIFF’S MOTION TO COMPEL PURSUANT TO 

FEDERAL RULES OF CIVIL PROCEDURE 26 AND 37

Plaintiff Andrew J. Maxwell (“Maxwell”), through counsel, files this 

memorandum in support of his first motion to compel discovery pursuant to Rules 26 

and 37. In support of his position, Maxwell shows, as follows: 

LEGAL STANDARD

Federal Rule of Civil Procedure 26(a)(1) requires, generally, that parties identify 

discoverable information and make available by category documents in their 

possession. Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii). Under Federal Rule of Civil Procedure 

26(b)(1), “[p]arties may obtain discovery regarding any non-privileged matter that is 

relevant to any party’s claim or defense and proportional to the needs of the case, 

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considering the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely benefit. Information 

within this scope of discovery need not be admissible in evidence to be discoverable.” 

Relevant discovery includes “any matter that bears on, or that reasonably could lead 

to other matter[s] that could bear on, any issue that is or may be in the case.”

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

A party may seek an order to compel discovery when an opposing party fails to 

respond to discovery requests or provides evasive or incomplete responses. Fed. R. 

Civ. P. 37(a)(2)-(3). “The burden rests upon the objecting party to show precisely why 

a request is improper.” Meyer v. S. Pac. Lines, 199 F.R.D. 610, 612 (N.D. Ill. 2001).

ARGUMENT

I. Boilerplate Objections Should Be Stricken

The boilerplate objections included in all of Wells Fargo’s written responses –

on relevance, overly broad, and unduly burdensome grounds – are improper and 

highly disfavored. (Wells Fargo’s written responses, Exhibits 1, 2 and 5 to Plaintiff’s 

Motion to Compel). Hodgdon v. Northwestern Univ., 245 F.R.D. 337, 340, n. 4 (N.D. 

Ill. 2007) (boilerplate objections are meaningless and insufficient under Rule 33(b)(1) 

and (4)). See also Burkybile v. Mitsubishi Motors Corp., 2006 U.S. Dist. LEXIS 57892, 

at *20-21 (N.D. Ill. 2006) (citing cases). “General objections to discovery requests that 

merely recite boilerplate language without explanation do not meet this burden, and 

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courts within the Seventh Circuit consistently overrule them or entirely disregard 

them.” Odongo v. City of Indianapolis, 2015 WL 420110 (S.D. Ind. Jan. 30, 2015).

Wells Fargo has made no effort to show any specific applicability to its litany 

of boilerplate objections to every discovery request. These efforts to avoid direct 

answers to direct discovery devices should not be accepted. Wells Fargo utilizes these 

qualified, objection filled responses to avoid direct and binding answers. This 

frustrates both the spirit and the purpose of the Federal Rules. The Plaintiff requests 

the Court order Wells Fargo to provide answers to Plaintiff’s discovery requests free 

from boilerplate objections. 

II. Wells Fargo Has Improperly Withheld Discovery 

In addition to filling its responses with boilerplate objections, Wells Fargo has 

willfully failed to produce relevant discovery materials in this case. Wells Fargo has 

taken the position that Plaintiff should have no document production beyond the 

Garcias’ mortgage loan servicing records. “The proposition that an adverse litigant 

may not unilaterally determine the scope of discovery needs no citation. It is well 

grounded in Anglo-American notions of fairness and due process.” United States v. 

Bd. of Trade of Chi., 1973 U.S. Dist. LEXIS 11307, at *3 (N.D. Ill. Oct. 30, 1973). 

Neither can Wells Fargo “unilaterally define the scope of discovery based upon its 

own theory of the case.” Hills v. At&T Mobility Servs., LLC, No. 3:17-CV-556-JDMGG, 2021 U.S. Dist. LEXIS 136680, at *21 (N.D. Ind. July 22, 2021). 

Under Rule 26(b)(1), “[p]arties may obtain discovery regarding any 

nonprivileged matter that is relevant to any party’s claim or defense and proportional 

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to the needs of the case, considering the importance of the issues at stake in the 

action, the amount in controversy, the parties relative access to relevant information, 

the parties’ resources, the importance of the discovery in resolving the issues, and 

whether the burden or expense of the proposed discovery outweighs its likely benefit.”

For instance, Wells Fargo has steadfastly refused to allow discovery into the 

corporate level documents relevant to liability in this case. As the Court knows, the 

Garcias’ claim, brought through the bankruptcy trustee, is an opt out from the 

Hernandez class action. The Hernandez case can therefore be considered the parent 

litigation to this child of Hernandez. The Garcia family pursued their claim as an opt 

out because of the devastating harms suffered from Wells Fargo’s conduct. Important 

to presenting the full picture of liability and the need for a punitive damages award, 

is the ability to present a clear view of the corporate level conduct. 

Publicly available docket entries indicate that Wells Fargo produced over 

200,000 pages of documents in the Hernandez case. As noted in the motion, Plaintiff’s 

counsel’s investigation of the Hernandez document production reveals that over 

100,000 pages of production can be classified as corporate level document production 

relevant to liability issues. This 100,000 + pages of document production is also devoid 

of sensitive customer information or customer account records. 

Despite producing more than 100,000 pages in the parent litigation, Wells 

Fargo has not produced or identified so much as a single page of corporate level 

documentation relevant to liability issues in this case. In fact, Wells Fargo steadfastly 

refuses to produce any corporate level documents related to liability unless ordered 

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to do so by this Court. Wells Fargo has also failed to explain how it could identify 

more than 100,000 pages of corporate level production in the parent litigation but not 

a single document in the child litigation. “A party withholding production must claim 

the material is privileged or protected as work product and must describe the nature 

of the material in such a way that the requesting party can "assess the applicability 

of the privilege or protection." Federal Rule of Civil Procedure 26(b)(5). The 

withholding party bears the burden of proving the materials are privileged or 

protected from discovery.” Cunningham v. SmithKline Beecham, 255 F.R.D. 474, 480 

(N.D. Ind. 2009). 

A. The Hernandez Liability Documents Would Complete Paper 

Discovery 

Hernandez’s class counsel were less than two months from trial when the case 

settled. Hernandez’s class counsel was ready to proceed to trial based upon the 

contents of the 100,000 + pages of corporate level document production and the 

deposition testimony already taken. This corporate level document production 

touches upon Wells Fargo’s identification of the error, Wells Fargo’s investigation of 

the error, Wells Fargo’s efforts (or lack thereof) to correct the error. These documents 

identify the persons at Wells Fargo who were aware of the error and involved in 

addressing the error. Plaintiff’s counsel anticipates these documents would also 

identify the highest level of management involved in this issue for Wells Fargo. If the 

Court orders the Hernandez liability documents to be produced, the Plaintiff’s paper 

discovery would be complete. 

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B. Production of the Hernandez Liability Documents Resolves 

This Motion to Compel

If the Court ordered Wells Fargo to produce the Hernandez liability documents, 

then Plaintiff’s counsel would withdraw this motion to compel as to all other issues. 

C. The Hernandez Liability Documents Easily Satisfy the Rule 

26(b)(1) Factors Supporting Production. 

Applying the Rule 26(b)(1) test, these Hernandez liability documents are 

clearly relevant to the Plaintiff’s claims. Production is proportional to the needs of 

the case as these Hernandez liability documents are the single largest and most 

concentrated source of evidence to prove Wells Fargo’s corporate conduct. The 

Hernandez liability documents were previously identified by Wells Fargo as 

discoverable materials bearing upon the claims and defenses, including Wells Fargo’s 

possible liability for this error in the parent Hernandez litigation. The amount in 

controversy is clearly large enough to justify the production. The Plaintiff has no 

access to this evidence from any other source. 

Finally, there is no burden or expense on Wells Fargo (or its counsel) in 

producing the Hernandez liability documents. Wells Fargo has already produced 

these documents once in the parent litigation. The Hernandez liability documents 

were produced in electronic form and by use of a file sharing service. This means that 

Wells Fargo does not have to pay its counsel to review the documents for privilege or 

conduct a new review of the documents in general. Rather, the documents can be 

produced simply by providing those documents that are not specific to a particular 

consumer or consumer mortgage loan servicing account with the Hernandez bates 

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labeling. In other words, Wells Fargo can simply share the documents with Plaintiff’s 

counsel that were provided to class counsel in Hernandez.

D. The Hernandez Liability Documents are Relevant to 

Plaintiff’s Burden of Proof and Punitive Damages. 

The Hernandez liability documents are critical to proving Wells Fargo’s 

liability, corporate complicity, and in support of Plaintiff’s request for punitive 

damages. “Under Illinois law, punitive damages may be awarded only if "the 

defendantʹs tortious conduct evinces a high degree of moral culpability, that is, when 

the tort is 'committed with fraud, actual malice, deliberate violence or oppression, or 

when the defendant acts willfully, or with such gross negligence as to indicate a 

wanton disregard of the rights of others. When the defendant is a corporation, like 

[Wells Fargo], the plaintiff must demonstrate also that the corporation itself was 

complicit in its employees' tortious acts.” See, Saccameno v. United States Bank 

National Ass'n, 943 F.3d 1071, 1082 (7th Cir. 2019). Judge St. Eve also explained 

“Illinois law insists on managerial involvement before punitive damages may be 

awarded against a corporation.” Id. 1083-84.

Judge St. Eve also analyzed the constitutionality of the punitive damages 

award in Saccameno. Therein, the Seventh Circuit considered evidence of 

reprehensibility. Crucial to this analysis is evidence touching upon “five factors 

including whether the harm caused was physical as opposed to economic; the tortious 

conduct evinced an indifference to or a reckless disregard of the health or safety of 

others; the target of the conduct had financial vulnerability; the conduct involved 

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repeated actions or was an isolated incident; and the harm was the result of 

intentional malice, trickery, or deceit, or mere accident.” Id. 1086. 

During the trial of Saccameno, Plaintiff’s counsel was not allowed to present 

evidence to the jury which would have established the scope, severity, and enormity 

of Ocwen’s wrongdoing. The Seventh Circuit made clear in Saccameno this evidence 

is absolutely relevant to the proper evaluation of reprehensibility and the assessment 

of punitive damages. Here, the Plaintiff seeks to prove Wells Fargo is a recidivist. 

The Plaintiff may prove this by proving Wells Fargo’s repeated actions towards the 

Garcias or by proving Wells Fargo’s repeated wrongful actions towards similarly 

situated consumers. Id. 1087. The Plaintiff must also show that Wells Fargo’s 

employees were not merely negligent but rather recklessly indifferent. Id. 1088. The 

evidence necessary to meet this burden is contained within the Hernandez liability 

documents. These documents provide the best evidence supporting Plaintiff’s proof 

on three of the five reprehensibility factors for an award of punitive damages. The 

Hernandez liability documents also serve as evidence of managerial involvement and 

corporate complicity necessary to support an award of punitive damages against a 

corporation per the holding in Saccameno. 

E. Production of the Hernandez Liability Documents Expedites 

Discovery and Hastens the End of Litigation

The Plaintiff has shown the production of these materials is highly probative 

of, and relevant to, the dispute in this child of Hernandez litigation by applying the 

Rule 26(b)(1) test. Wells Fargo has made no specific showing as to why production of 

these materials is not proper. Production of the Hernandez liability documents serves 

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the spirit and purpose of Rule 1. If the Court orders Wells Fargo to produce the 

Hernandez liability documents, then the Plaintiff will need no further paper discovery 

in this matter. The Plaintiff will also be able to withdraw this motion to compel 

discovery. Further, the Plaintiff will only need a limited amount of time to review the 

Hernandez liability documents and prepare a thorough 30(b)(6) deposition notice. 

After reviewing the Hernandez liability documents and taking the 30(b)(6) 

deposition, the Plaintiff will be ready to proceed to a trial. This process could be 

completed in less than 90 days. Such an order requiring production of the Hernandez 

liability documents would therefore bring discovery to a rapid close and hasten the 

end of this litigation by allowing a trial to be conducted sooner. 

Further, such an order would conserve judicial resources by allowing the Court 

to avoid the time and energy necessary to undertake a line-by-line review of Plaintiff’s 

discovery requests and Wells Fargo’s objections. This would clearly save hours of the 

Court’s time associated with a hearing and the rendering of a lengthy opinion on the 

discovery dispute. 

The Court’s ordering of Wells Fargo to produce the Hernandez liability 

documents would also keep Wells Fargo’s obstructionist litigation tactics from being 

rewarded. If the Court does not order production of the Hernandez liability 

documents, then Wells Fargo will invariably argue Plaintiff failed to produce 

sufficient evidence of corporate complicity and corporate wrongdoing to support any 

punitive damages award. This would defeat the spirit and purpose of the Rules. 

“Discovery is intended to be a broad exercise where the parties lay all their cards on 

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the table, so to speak, to reveal the truth behind the claims and defenses at issue in 

the case.” Hills v. AT&T Mobility Servs., LLC, No. 3:17-CV-556-JD-MGG, 2021 U.S. 

Dist. LEXIS 136680, at *20 (N.D. Ind. July 22, 2021). Denying production of the 

Hernandez liability documents would allow Wells Fargo to only lay down the cards 

they wished. In effect, Wells Fargo could pull Aces out of its sleeve to show a Full 

House rather than showing the busted hand Wells Fargo actually owns. 

F. Cloned Discovery is Preferred by existing Seventh Circuit 

Case Law 

“Rule 1 of the Federal Rules requires the Rules to be construed to secure the 

just, speedy, and inexpensive determination of every action.” Wilk et al v. American 

Medical Ass’n. et al., 635 F.2d 1295, 1299 (7th Cir. 1981)(internal citations omitted). 

“We therefore agree with the result reached by every other appellate court which has 

considered the issue, and hold that where an appropriate modification of a protective 

order can place private litigants in a position they would otherwise reach only after 

repetition of another's discovery, such modification can be denied only where it would 

tangibly prejudice substantial rights of the party opposing modification.” Id. (citing: 

Olympic Refining Co. v. Carter, 332 F.2d 260, 265-66 (9th Cir.), cert. denied, 379 U.S. 

900 85 S.Ct. 186, 13 L.Ed.2d 175 (1964); Ex parte Uppercu, 239 U.S. 435, 439-40, 36 

S.Ct. 140, 140-141, 60 L.Ed. 368 (1915). 

Production of the Hernandez liability documents in this case would certainly 

secure a speedy determination of the dispute, as Plaintiff’s counsel anticipates being 

ready for trial within 90 days of such production. And since the issue of liability in 

this case is identical to that in the Hernandez case, there is no dispute that the 

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Garcias will otherwise have to unnecessarily repeat the extensive discovery exercise 

of the Hernandez Plaintiff’s in obtaining over 100,000 pages of liability related 

documents already determined in that case to be discoverable.

III. Wells Fargo Improperly Refused to Answer Discovery

Wells Fargo has also refused to participate in discovery in good faith. Wells 

Fargo failed to respond meaningfully to 21 of 25 Interrogatories. Wells Fargo 

produced no documents directed towards its corporate conduct. By its own admission, 

contained in the table copied into the Plaintiff’s motion, Wells Fargo provided no 

documents responsive to Requests for Production numbered 7-9, 14, 17, 19-21, 26-74, 

76-87. Alternatively, Wells Fargo claims to have responded to 18 of 87 requests for 

production, or 21% of the Requests for Production. Wells Fargo has generally objected 

to responding to these Requests for Production on the basis they would reach 

corporate level documents that Wells Fargo does not believe are relevant to this case.

“When the discovery request is facially relevant, the party opposing the request 

is burdened with establishing lack of relevance or that the likelihood of discovering 

relevant evidence is so minimal that the potential harm occasioned by discovery 

would outweigh the ordinary presumption in favor of broad disclosure. This burden 

cannot be met by the reflexive invocation of the same baseless, often abused, litany 

that the requested discovery is vague, ambiguous, overly broad, unduly burdensome, 

or that it is neither relevant nor reasonably calculated to lead to the discovery of 

admissible evidence. Instead, the objecting party must show with specificity that the 

request is improper.” Close Armstrong LLC v. Trunkline Gas Co., No. 3:18-CV-270-

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PPS-MGG, 2021 U.S. Dist. LEXIS 62569, at *7-8 (N.D. Ind. Mar. 31, 2021) (Internal 

citations and quotations omitted). Furthermore, “[Wells Fargo] cannot unilaterally 

dictate the proper scope of discovery by producing only the documents it deems 

responsive based on its personal interpretation of the [scope of litigation].” Id. at *22. 

If the Court does not order production of the Hernandez liability documents, 

Wells Fargo should be required to provide full and complete responses to these 

discovery requests free from the scourge of boilerplate objections. 

CONCLUSION

Wells Fargo has attempted to thwart, delay, and deny the Plaintiff’s proper 

discovery in this case for many months. Rather than play Wells Fargo’s game for 

many more months, Plaintiff requests the Court order production of the Hernandez 

liability documents. Wells Fargo will suffer no prejudice or burden by such an order. 

The end of litigation will be hastened, and the parties resources will be preserved. 

Dated: November 1, 2021 Respectfully submitted,

/s/ Nick Wooten

Nicholas H. Wooten

NICK WOOTEN, LLC

5125 Burnt Pine Drive

Conway, Arkansas 72034

(833) 937-6389

nick@nickwooten.com

Rusty A. Payton,

PAYTON LEGAL GROUP

20 North Clark Street, Suite 3300

Chicago, Illinois 60602

(773) 682-5210

info@payton.legal

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Salvador J. Lopez

ROBSON & LOPEZ, LLC

180 W. Washington Street, Suite 700

Chicago, Illinois 60602

(312) 523-2166

lopez@robsonlopez.com

Counsel for the Plaintiff 

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing 

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL

PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 26 AND 37 was 

served via the Court's Electronic Filing System on all parties and counsel of record 

on the following date.

Dated: November 1, 2021 By: /s/ Nick Wooten

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