UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MORTGAGE RESOLUTION SERVICES, LLC, 1ST
FIDELITY LOAN SERVICING, LLC, and S & A
CAPITAL PARTNERS, INC.,
CHASE BANK, N.A., CHASE HOME
FINANCE LLC, and JPMORGAN CHASE & CO.,
PLAINTIFFS’ MOTION AND INCORPORATED MEMORANDUM OF LAW
CHALLENGING THE DESIGNATION OF THE DEPOSITION TRANSCRIPTS OF
THIRD-PARTY WITNESSES BRIAN BLY AND ERIKA LANCE
On or about February 17, 2017, Plaintiffs served two employees of non-party Nationwide
Title Clearing, Inc. (“NTC”), Bryan Bly and Erika Lance, with subpoenas to appear as witnesses
at their respective depositions to obtain their personal knowledge as to the preparation process and filing of documents by NTC, an entity whose actions have contributed to the injuries suffered by Plaintiffs at issue in this action.
Both depositions were taken on March 21, 2017. Mr. Bly was deposed first, and provided
information regarding his positions at NTC, which included serving as a Title Policy Researcher,
Document Inspector (a quality control position), a notary, as well as an authorized representative
to sign documents on behalf of banks and mortgage companies, including Chase, and other duties
and responsibilities at NTC. He testified that he had signed documents for Chase, such as Lien
Releases, but had no knowledge as to whether Chase actually had a lien on the properties or as to
how mortgage-related documents such as a Lien Release were prepared or whether they were
accurate. At the end of the deposition. Chris Barker, counsel for Mr. Bly, designated under the
Protective Order the entire transcript “For Attorneys’ Eyes Only”, claiming that dissemination of
Mr. Bly’s personal information could cause problems for him and because he didn’t want any
Plaintiffs then began the deposition of Erika Lance, whose name was disclosed as having
prepared the actual fraudulent documents, such as the lien releases, that had damaged Plaintiffs in their business and property. At first, she testified that she knew the types of work or the types of clients NTC has and that she prepared the lien releases and other mortgage related documents on behalf of Chase contained in Composite Exhibit 1 to her deposition transcript, which pertained to notes and mortgages owned by Plaintiffs, not Defendants. She also testified that she had the personal knowledge as to how NTC’s systems worked to create those documents, the content of the forms, and the systems used to create the documents, but she refused to testify about that information. The witness, however, claimed that she was “not there on behalf of NTC” and then Mr. Barker – who is also representing Ms. Lance – directed her not to answer questions, claiming she was not authorized to testify even based on her personal knowledge. Mr. Barker admitted that his claim that Ms. Lance’s employer, NTC, might take action against her was purely hypothetical.
After an exchange among the lawyers where it became obvious that no progress could be made on
this issue, Plaintiffs were forced to terminate the deposition since Ms. Lance continued to refuse
to provide answers to highly relevant questions within her personal knowledge. As with the
deposition transcript of Mr. Bly, Mr. Barker designated the entire transcript of Ms. Lance’s
deposition “For Attorneys’ Eyes Only” under the Protective Order as well.
Prior to filing this Motion, Plaintiffs wrote further to Mr. Barker to object to the wholesale
designations of these deposition transcripts as “Confidential and Attorneys’ Eyes Only”. This
objection was renewed during a telephonic conference with the Honorable James Francis IV on
April 11, 2017, and the Court instructed Plaintiffs to file a motion challenging the confidentiality designations, outlining the bases for their objections to the designations, by April 14, 2017.
The blanket designation of both transcripts as “ATTORNEYS” EYES ONLY” was improper under the Protective Order because neither the questions asked nor the answers provided revealed highly personal information, non-public financial information, or could otherwise result in substantial competitive, commercial or personal harm to either deponent. The answers provided by both deponents were based solely on publicly available employment background and job responsibilities. No highly personal information such as medical, financial, personnel records, competitive information or trade secrets were contained in the transcripts.
Mr. Barker’s purported justification of his wholesale designations of the deposition testimony of Mr. Bly and Ms. Lance as “ATTORNEYS’ EYES ONLY” was that NTC employees had been subject to harassment in the past based on the contents of prior deposition transcripts.
However, the transcripts at issue in this action provide no non-public information regarding NTC
or these employees, particularly with regard to Ms. Lance’s transcript, wherein she refused to
answer any specific questions.