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Edward J. v. Genuine Title, LLC

United States District Court, D. Maryland

June 17, 2016

EDWARD J. AND VICKI FANGMAN, et al., Plaintiffs
v.
GENUINE TITLE, LLC, . Defendants.

          MEMORANDUM ORDER

          Richard D. Bennett United States District Judge

         Plaintiffs' Second Amended Complaint (ECF No. 138), the operative complaint in this putative class action, alleges violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2607(a), (b)[1], by a series of Defendants, including West Town Bank & Trust ("Defendant" or "West Town")[2]. The facts of this putative class action are set forth fully in this Court's Memorandum Opinions of December 9, 2015 and May 27, 2016. See Fangman, et al. v. Genuine Title, LLC, et al., No. RDB-14-0081, 2015 WL 8315704 (D. Md. Dec. 9, 2015); Fangman, et al. v. Genuine Title, LLC, et al., No. RDB-14-0081, 2016 WL 3027525 (D. Md. May 27, 2016).

         On January 22, 2016, West Town[3] served a Request for Production of Documents (ECF No. 233-2)[4] on the Custodian of Records of Smith, Gildea & Schmidt, LLC ("SGS")[5]. Currently pending before this Court is Smith, Gildea and Schmidt, LLC's Motion for Protective Order (ECF No. 233)[6].[7] The parties' submissions have been reviewed, and a hearing on the pending motions was held in this Court on June 15, 2016. For the reasons stated on the record at this Court's June 15, 2016 hearing, and further explained herein, Smith, Gildea and Schmidt, LLC's Motion for Protective Order (ECF No. 233) is GRANTED IN PART and DENIED IN PART. Specifically, SGS's Motion for Protective Order (ECF No. 233) is GRANTED as to Defendant West Town's Document Request No. 2, but DENIED as to Document Request Nos. 1, 3, & 4. Accordingly, the Custodian of Records of Smith, Gildea & Schmidt, LLC shall comply with Document Request Nos. 1, 3, & 4, but is not required to comply with Document Request No. 2[8].

         BACKGROUND

         Via Memorandum Opinion and Order, dated December 9, 2015, this Court held that Plaintiffs may be entitled to equitable tolling of their RESPA claims, and denied West Town's Motion to Dismiss Plaintiffs' RESPA claims as untimely. See Fangman, et al. v. Genuine Title, LLC, et al., No. RDB-14-0081, 2015 WL 8315704, at *7 (D. Md. Dec. 9, 2015). However, this Court has yet to determine whether RESPA's one-year statute of limitations will in fact be tolled with respect to Plaintiffs' individual RESPA claims. Accordingly, West Town now seeks "documents relating to the communications between and among SGS . . . and [P]laintiffs (prior to the establishment of an attorney-client relationship) and the members of the putative class . . . concerning the subject matter of the litigation" in support of their "limitations defense." Defs.' Opp'n, p. 10, ECF No. 241.

         Therefore, on January 22, 2016, Defendant West Town served a Request for Production of Documents (ECF No. 233-2) on the Custodian of Records of Smith, Gildea & Schmidt, LLC, requesting the following four categories of documents:

1. All correspondence (including electronic correspondence), postcards, advertising material, rack cards, direct mailings or other documents sent by you or on your behalf to any individual or group of individuals (who were not your clients at the time the document was sent) relating in any manner to the subject matter of this litigation or any allegation in the complaints filed in this litigation, including, but not limited to, any correspondence sent by you to encourage or otherwise solicit participation in this litigation either as a plaintiff, potential class representative, or potential class member.
2. All responses received by you to the correspondence (including electronic correspondence), postcards, advertising material, rack cards, direct mailings or other documents produced in response to Request No. 1.
3. All spreadsheets, databases, or other documents containing the name, contact information, and other identifying information of the individuals who were sent the correspondence (including electronic correspondence), postcards, advertising material, rack cards, direct mailings or other documents produced in response to Request No. 1, and the date or dates on which those documents were sent.
4. Exemplars of any and all envelopes used to mail, send or otherwise deliver the correspondence (including electronic correspondence), postcards, advertising material, rack cards, direct mailings or other documents produced in response to Request No. 1.

See Request for Production of Documents: Document Schedule, Pls.' Ex. 2, p. 3-4, ECF No. 233-2. The request defines the terms "you" and "your" to mean "[SGS], its employees, agents, representatives, servants, attorneys, and any other individuals or entity acting on its behalf." Id. at p. 3.

         ANALYSIS[9]

         I. Document Request No. 1: Solicitation Materials

         Plaintiffs' counsel object that solicitation materials sent by SGS to potential Plaintiffs or class members are evidently prepared in anticipation of litigation and are, therefore, shielded from discovery by the work-product doctrine. Motion, p. 11, ECF No. 233. However, West Town has cited several decisions of this Court holding that solicitation materials sent to potential Plaintiffs and class members in a putative class action are discoverable. See, e.g., Petry v. Prosperity Mortgage Co., No. WMN-08-1642 (Gauvey, J.) (D. Md.Aug. 13, 2010) (ECF No. 157) (determining that "solicitation letters are not privileged because an attorney-client relationship had not yet been established."); Marshall v. James B.Nutter & Co., No. RDB-l0-3596 (D. Md. Nov. 26, 2012) (ECF No. 76) (ordering that "[d]ocuments ...


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