United States District Court, D. New Mexico
ORDER GRANTING IN PART MONICA WELLINGTON'S MOTION
TO COMPEL DISCLOSURES
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant Monica
Wellington's Motion to Compel Disclosures, filed on
August 20, 2018. Doc 99. Plaintiff MTGLQ Investors, LP
(“MTGLQ”) filed a Response on August 30, 2018.
Doc. 102. Defendant filed a reply on September 7, 2018. Doc.
105. Having reviewed the parties' filings and the
relevant law, the Court finds the motion well-taken in part,
and will therefore GRANT it IN PART.
Wellington's motion asks the Court to order MTGLQ to
disclose “names and contact information of known
witnesses” and “a computation of damages”
as required by Fed.R.Civ.P. 26(a)(1)(A)(i) and (iii). Doc. 99
at 1-2. Ms. Wellington also complains that plaintiff's
attorney Elizabeth Friedenstein did not sign the initial
disclosures, as required by Fed.R.Civ.P. 26(g). Id.
at 2-3. “In alternative” to the Court ordering
MTGLQ to provide the requested information, Ms. Wellington
asks the Court to exclude the non-disclosed information,
pursuant to Fed.R.Civ.P. 37(c). Id. at 4.
argues that it provided all initial disclosures required
under Rule 26 “in a timely manner.” Doc. 102 at
2-3. MTGLQ argues that some of the initial disclosures were
made in the Joint Status Report, as allowed by local rule.
Id. at 2 (citing D.N.M.LR-Civ. 26.3(c)). In its
response to the motion, MTGLQ also provided for the first
time a list of employees for Rushmore Loan Management
Services, LLC-its loan servicer and agent-that it intends to
call as its “corporate witness or witnesses to testify
regarding Rushmore's and Plaintiff's relationship,
Rushmore's servicing of Defendant Monica Wellington's
loan, including any and all workout and loan modification
efforts related to the loan, testify to the Note, Mortgage,
default, amounts due, as well as all allegations made in the
Complaint or any pleading, along with their process in
maintaining original documents.” Id.
reasons discussed below, the Court finds that those initial
disclosures provided by MTGLQ prior to Ms. Wellington filing
her motion to compel were insufficient. However, these
insufficiencies have now been remedied. The Court will not
exclude the previously non-disclosed information, as the
failure to disclose is harmless.
disclosures required under Federal Rule of Civil Procedure 26
include the following:
(i) the name and, if known, the address and
telephone number of each individual likely to have
discoverable information-along with the subjects of that
information-that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment; . . .
(iii) a computation of each category of
damages claimed by the disclosing party- who must also make
available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or
protected from disclosure, on which each computation is
based, including materials bearing on the nature and extent
of injuries suffered.
Fed. R. Civ. P. 26(a)(1)(A)(i), (iii). Generally, a party
must make initial disclosures at or within 14 days after the
parties' Rule 26(f) conference. Fed.R.Civ.P. 26(1)(C). A
party must supplement or correct its disclosure upon learning
that it is materially incomplete or incorrect. See
Fed. R. Civ. P. 26(e)(1).
case, MTGLQ claims that it adequately disclosed “the
name and, if known, the address and telephone number of each
individual likely to have discoverable information, ”
as required by Fed.R.Civ.P. 26 (a)(1)(A)(i), in the Joint
Status Report. Doc. 102 at 2, 23. In the witness section of
the Joint Status Report, however, MTGLQ stated only that
“its representative(s) will testify regarding the
allegations in the Complaint and facts related to the
Loan.” Doc. 90 at 6. Courts have held that
“initial disclosures generically listing custodian of
records or corporate representatives to be insufficient
compliance with Rule 26(a)(1)(A)(i).” Rogers v.
Bank of Am., N.A., No. CIV.A. 13-1333-CM-TJ, 2014 WL
4681031, at *6 (D. Kan. Sept. 19, 2014) (citing Lyon v.
Banks Life and Casualty Co., No. 09-5070-JLV, 2011 WL
124629, at *6 (D.S.D. Jan.14, 2011) (“It is not a good
faith response to the obligation of a party under Rule
26(a)(1)(A)(i) to simply identify those
‘individuals' as corporate representatives, with no
reference to the subject areas of their testimony, and then
to identify their generic address as the address of defense
counsel.”)). MTGLQ, however, disclosed specific names
and addresses in its response to this motion. See
Doc. 102 at 3. If Ms. Friedenstein serves as counsel for
these witnesses, these witnesses may be contacted through
her. Id. at 2. Ms. Friedenstein is hereby directed
to notify Ms. Wellington if she serves as counsel to these
witnesses, or to provide the telephone numbers for
these witnesses within seven days of this order. This issue
therefore is now moot.
second issue-that plaintiff failed to provide “a
computation of damages” in its initial disclosures-is
also moot. In the complaint, plaintiff asked for foreclosure
“in the sum of $125, 049.37, plus late charges, plus
any amounts advanced for taxes, assessments, insurance or
other expenses necessary to preserve the Property with
interest thereon at the current rate of 5.750% per annum from
February 1, 2011, until paid.” Doc. 1-1 at 5. In
addition, in response to defendant's motion, plaintiff
provided a copy of their business records in relation to
defendant's request for damages. Doc. 102 at 3, 26-30.
The Court finds that MTGLQ has provided plaintiff with an
adequate computation of damages.
the Court finds Ms. Wellington's complaint that
MTGLQ's disclosures were not signed to be without merit.
Each of the documents containing the initial disclosures are
signed, as required by Federal Rule of Civil Procedure 26(g).
See Complaint (Doc. 1-1 at 6), Joint Status Report
(Doc. 90 at 9), August 10, 2018 email (Doc. 102 at 24),
response to instant motion (Doc. 102 at 3).
Court finds that any delay in providing these disclosures is
harmless, and exclusion of this information at a hearing or
at trial therefore is not warranted. See Fed. R.
Civ. P. 37(c). Discovery does not end in this case until
February 1, 2019. Doc. 93 at 2. This case is in the early
days of its scheduling order, and defendant still has ample
time to engage in discovery after obtaining these initial
Wellington asks the Court to “impose a monetary
sanction of at least $100” for having to make the
motion. Doc. 105 at 2-3. Pro se parties are not entitled to