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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

PLAINTIFF’S MOTION TO COMPEL PURSUANT TO 

FEDERAL RULES OF CIVIL PROCEDURE 26 AND 37

Plaintiff Andrew J. Maxwell (“Maxwell”) moves this Court for an order 

compelling discovery responses and imposing sanctions against Defendant Wells 

Fargo Bank, N.A., (“Wells”) for its noncompliance with Federal Rules of Civil 

Procedure 26 and 37, as follows:

Introduction

This matter is before the Court on Plaintiff’s motion to compel after numerous 

conferences with the Court and nearly eight hours of meet and confer by

videoconference between counsel for the Parties. The issues are straightforward. At 

the outset of the case, Plaintiff requested Wells Fargo produce cloned discovery from 

the Hernandez case of the liability related documents and excluding any consumer 

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loan files or confidential consumer information. Wells refused to provide this cloned 

discovery of the liability related documents produced in the Hernandez case. Wells 

also refused to produce the 54 deposition transcripts of Wells Fargo employees taken 

in the Hernandez case. The Court denied Plaintiff’s request for cloned discovery 

without prejudice. However, the Court indicated that it would revisit the issue if 

Plaintiff could show a need for cloned discovery after first seeking traditional 

discovery.

Plaintiff’s counsel served interrogatories, requests for production, and requests 

for admission on Defendant’s counsel. The Parties summarized their current 

respective positions in a status report filed with the Court on October 7, 2021. The 

Court entered an order at D.E. 47 directing Wells Fargo to supplement its discovery 

responses within fourteen days. The Court further ordered any motion to compel 

follow within ten days of the supplementation. This Motion follows. 

Additional Factual Background

1. Plaintiff provides the following list of additional relevant facts following 

entry of the Court’s order at D.E. 47, on October 8, 2021. 

2. On October 11, 2021, Wells Fargo produced an additional 142 documents 

labeled WF_GARCIA_00001325-1466. Again, these documents are borrower specific 

to the Garcias’ mortgage servicing account with Wells Fargo. 

3. On October 14, 2021, Plaintiff’s counsel wrote Wells Fargo’s counsel to 

inquire as to whether Wells Fargo had any further documents to produce or any 

additional responses by supplementation to Plaintiff’s discovery requests. Wells 

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Fargo’s counsel indicated there would be further supplemental written responses to 

discovery. 

4. On October 22, 2021, Wells Fargo served unverified supplemental 

written responses to Plaintiff’s interrogatories and supplemental objections and 

responses to Plaintiff’s First Requests for Admission. 

5. On October 29, 2021, Wells Fargo served its verified supplemental 

written responses to Plaintiff’s Interrogatories. 

Interrogatory Responses

6. Despite being given the opportunity to supplement their responses, 

Wells Fargo continues to assert boilerplate objections and refuses to respond to 

Plaintiff’s interrogatories. 

7. Wells Fargo’s verified supplemental responses are attached to this 

motion as Exhibit 1 hereto. 

8. Wells Fargo supplemented its responses to Interrogatories 1, 3, 5, 7, 11, 

12, and 20. 

9. Despite supplementing its responses, Wells Fargo still refuses to provide 

complete and meaningful answers to Interrogatory Numbers: 1, 2, 4-5, 7-10, 13-19, 

21-25.

Requests for Admission Responses

10. Wells Fargo served supplemental responses to Plaintiff’s First Request 

for Admission on October 22, 2021. These responses continue Wells Fargo’s pattern 

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of resting on boilerplate objections rather than simply admitting or denying a Request 

for Admission. 

11. Wells Fargo’s supplemental responses are attached hereto as Exhibit 2

to this motion to compel. 

12. While Plaintiff finds fault with many of the non-answers to the Requests 

for Admission, the Plaintiff will not seek to compel these answers since they can be 

addressed through the examination of Wells Fargo. 

13. Plaintiff reserves the right to later seek appropriate sanctions for Wells 

Fargo’s intentional obstruction of discovery related to its failure to respond to these 

Requests for Admission truthfully and fully, including the costs and fees associated 

with securing responses to these requests. 

Supplemental Responses to Requests for Production

14. The Court’s Order at D.E. 47 addressed Wells Fargo’s obligations with 

respect to document production. Thereafter, On October 22, 2021, Wells Fargo 

provided an email with an index tying its document production to certain of Plaintiff’s 

requests for Production of Documents. The Table is reproduced herein, as follows: 

Loan File Documents Responsive to RFP No(s).

Loan Documentation 1 – 6, 15, 22, 23, 75

Loan History / Loan Activity Records 1 – 6, 15, 16, 22, 23, 75

Borrower Correspondence 11, 12, 23, 25

Call Logs 13, 16

Loss Mitigation / Home Preservation Applications 1 – 6

Foreclosure Notices, Judgments, Materials 24

Remediation Correspondence 11, 25

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CAP Sheet 10, 18

15. This Index does not advise Plaintiff’s Counsel which documents address 

each of Plaintiff’s Requests for Production. 

16. Wells Fargo also does not address whether documents are being 

withheld in response to each request for production. Rather, Wells Fargo states 

generally materials are being withheld.

17. Wells Fargo produced a non-compliant privilege log that notes two 

documents are withheld. See attached Exhibit 3 hereto. The privilege log fails to 

identify the author of the communications, the recipients of the communications, or 

inform the Court these communications are part of the consolidated notes log for the 

Garcia file, which is accessible by thousands of Wells Fargo’s employees, not intended 

to be confidential, not kept as confidential, and entered in the consolidated notes log 

for the purpose of memorializing and documenting Wells Fargo’s conduct during the 

servicing of the mortgage loan. The communications are also not between executive 

or management level decision makers charged with determining litigation strategy, 

and counsel providing that advice.

18. Plaintiff’s counsel requested Wells Fargo produce a compliant privilege 

log and explained the issues with claiming privilege related to the observable 

information related to the two documents. 

19. Wells Fargo has claimed its privilege log is compliant and has not 

responded to the concerns raised about the assertion of privilege over these two 

documents. 

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20. On October 27, 2021, Plaintiff requested Wells Fargo confirm no further 

documents would be produced absent a court order. 

21. Wells Fargo responded on October 28, 2021, stating: “At this time, Wells 

Fargo intends to produce, on a rolling basis, documents in support of its defenses 

(responsive to RFP Nos. 61, 62, 73, 78, 79, 82-97). However, Wells Fargo’s production 

is complete as to the rest of Plaintiff’s RFPs. Wells Fargo does not anticipate further 

supplementation of its discovery responses.” See, Exhibit 4, email from Wells Fargo’s 

counsel. 

22. Wells Fargo has not committed to producing a single corporate level 

document relevant to the liability issues in this case. 

23. Beyond these communications, and the production of the additional 142 

loan level documents, Wells Fargo has not supplemented its initial responses to 

Plaintiff’s First Requests for Production. Wells Fargo’s initial responses are attached 

hereto as Exhibit 5. 

Compliance with Rule 37.1 Meet and Confer

24. As previously represented, the Parties have spent roughly 8 hours in 

videoconferences devoted to meeting and conferring over discovery disputes. 

25. Wells Fargo’s position on the production of documents is succinctly 

stated as: “Wells Fargo will produce no corporate level documents regarding liability 

in this case absent a court order.” 

26. Meeting and conferring will not break the Parties’ disputes. 

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27. The Plaintiff requires the intervention of the Court to address these 

disputes. 

Two Paths to End Discovery Obstruction

28. It is Plaintiff’s position that there are two paths to end the discovery 

obstruction in this case. 

29. The first is the long and tedious process of going item by item related to 

the disputed interrogatories and requests for production and fighting over each 

dispute and objection. 

30. This process always seems to reward an obstructing defendant even in 

clear liability cases. This seems true no matter how baseless or boilerplate the 

objection raised. 

31. The second path available here would be to simply order Wells Fargo to 

produce the documents Wells Fargo already produced in the Hernandez case that are 

not consumer loan files or consumer specific. In other words, limited cloned discovery 

related solely to liability.

Contents of Hernandez Documents Generally

32. Plaintiff’s counsel has investigated certain questions around the 

documents produced in Hernandez. 

33. Undersigned counsel has learned that the Hernandez case was 

approximately two months from trial when a settlement was reached. 

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34. Wells Fargo had produced more than 200,000 documents in Hernandez. 

Of those documents, more than 100,000 Hernandez documents were corporate level 

documents bearing on the liability claims. 

35. These documents are not borrower specific. Rather, these documents 

touch 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. 

36. Wells Fargo produced these documents electronically, through an FTP 

file transfer service to the Hernandez plaintiffs. This means the Hernandez 

documents are subject to ready production in this case, with the existing Hernandez 

bates labeling, with minimal to no new or additional costs to Wells Fargo. 

37. Wells Fargo’s counsel in this case, Winston & Strawn LLP, also 

represented Wells Fargo in the Hernandez case and are familiar with these 

documents. 

38. Most importantly, prior to settlement, class counsel for Hernandez was 

ready to proceed to trial with the key documents from the Hernandez liability 

documents and did not need any further documents or discovery to prosecute the 

intended class action trial.

39. These documents were also the documents utilized for the selection of 

the 54 Wells Fargo individual fact witnesses deposed in the Hernandez case. 

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Utility of Hernandez Liability Documents

40. If the Court ordered Wells Fargo to produce the Hernandez liability 

documents, the dataset would include more than 100,000 pages. 

41. However, in exchange for such an order, Plaintiff’s counsel would forgo 

its motion to compel and any further or additional written discovery responses from 

Wells Fargo. 

42. Rather, Plaintiff’s counsel would simply request approximately 60 days 

to complete a thorough review of the documents and then be allowed to take the 

30(b)(6) deposition of Wells Fargo in this case. 

43. Plaintiff’s counsel believes that the production of the Hernandez liability

documents, along with the Wells Fargo 30(b)(6) deposition, would be all the discovery 

needed to prepare for trial. 

44. Plaintiff’s counsel represents that such an order would conserve judicial 

resources. The Court would be spared the substantial time and effort needed to 

address Wells Fargo’s resistance to meaningful discovery of corporate level 

documents and witnesses relevant to this case. It cannot be forgotten Wells Fargo has 

already admitted knowledge of this error that took the Garcias’ home and devastated 

their lives. 

45. Production of the Hernandez liability documents would also establish 

that Wells Fargo had internal notice and knowledge of the error, the length of time 

the error had gone unresolved, the executives who were aware of the error and 

responsible for its cure, Wells Fargo’s knowledge the error had caused and was 

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causing widespread consumer harm, and Wells Fargo’s understanding that failing to 

remedy the error exposed Wells Fargo to serious financial liabilities. 

46. Wells Fargo cannot argue the Hernandez liability documents do not fall 

within the Scope of Rule 26. Wells Fargo has already identified and produced these 

documents in Hernandez. This litigation, a Hernandez opt-out, is based upon the 

same error and same alleged wrongdoing. It cannot be seriously contended that 

documents bearing upon liability based upon the identical error and wrongdoing can 

be discoverable in the parent litigation but not the child litigation where liability 

depends upon the exact same evidence. 

47. Production of the Hernandez liability documents is also supported by the 

factors set out in Rule 26(b)(1). These documents are clearly relevant to the Parties’ 

claims and defenses, production is proportional to the needs of the case, these 

documents were identified by Wells Fargo as bearing upon its possible liability for 

this error in Hernandez, the anticipated amount in controversy is larger than the 

class recovery, Plaintiff has no access to this evidence from any other source, these 

documents are critical to proving Wells Fargo’s liability, corporate complicity, and in 

support of Plaintiff’s request for punitive damages. 

48. Most importantly, 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 class case. 

49. The fact that Wells Fargo previously produced the Hernandez liability 

documents means that Wells Fargo does not have to pay its counsel to review the 

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documents for privilege, or 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 their loan file.

50. Any burden would then shift to Plaintiff’s counsel to sort through the 

100,000 plus pages of production for the relevant documents to the trial of this case.

51. Alternatively, the Court could direct findings against Wells Fargo that 

are appropriate to remedy the obstruction to discovery that has already taken place 

in this case. 

52. Plaintiff seeks an order compelling either: (1) full and complete answers 

to Plaintiff’s discovery; or (2) production of the Hernandez liability documents; or (3) 

an order directing findings against Wells Fargo for its obstruction of discovery in this 

matter. 

53. Plaintiff’s memorandum in support will follow in a separate document. 

WHEREFORE, the Plaintiff requests an order compelling the responses to all 

written discovery set forth herein, or production of the Hernandez liability 

documents; or an order directing findings against Wells Fargo for its obstruction of 

discovery; or any other sanctions deemed necessary to do justice in this matter, and 

any other just and equitable relief. 

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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

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 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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