Morris v. Wells Fargo & Company et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANTHONY MORRIS,
Plaintiff,
v.
WELLS FARGO & COMPANY, et al.,
Defendants.
Case No. 23-cv-03277-HSG (TSH)
DISCOVERY ORDER
Re: Dkt. Nos. 140, 141
The parties have discovery disputes at ECF Nos. 140 and 141
A. ECF No. 140
In ECF No. 135, the Court ordered Wells Fargo to produce a random sample of 1,000 loan
files. In June 2025, the Court had previously ordered Wells to produce the individual loan files at
issue in the case and encouraged the parties to meet and confer to see if sampling would be
workable. ECF No. 99. The meet and confer efforts were unsuccessful. Plaintiff proposed that
Wells produce a sample of 5,000 loan files – a tiny fraction of the 390,000 loan files Wells claims
are at issue. Wells proposed a sample of 25 loan files.
At the hearing on December 1, 2025, Plaintiff said he would be satisfied with a sample of
1,000 loan files. Wells contended that it had produced 35 loan files, though Plaintiff’s counsel
was unable to confirm that at the hearing. Wells contended that if it were ordered to produce
1,000 loan files, that would likely take four to five months because loan files average about 1,000
pages each, so that would amount to about a million pages of documents. In response to the
Court’s question whether Wells would be done by now had it started collecting 1,000 loan files
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United States District Court
Northern District of California
back in June when the Court issued its discovery order, Wells candidly said yes.
Because the parties’ positions during meet and confer and arguments during the hearing
made clear that neither side thought that producing all the loan files was necessary or even useful,
the Court modified its prior order and directed Wells to produce 1,000 loan files.
Four days later the parties filed ECF No. 140, in which Plaintiff seeks leave to move for
sanctions. As an initial matter, Plaintiff has misunderstood the Court’s Discovery Standing Order.
The standing order states that “[n]o motion for sanctions may be filed until after the moving party
has complied with the requirements above.” The joint discovery letter brief at ECF No. 124
resulted in the order at ECF No. 135 requiring Wells to produce the 1,000 loan files. Thus,
Plaintiff had complied with “the requirements above” and was free to move for sanctions without
requesting permission. In any event, since the deadline to file discovery-related motions has
passed, see Civ. L.R. 37-3, the Court will treat ECF No. 140 as a motion for sanctions.
It is DENIED. The Court’s order at ECF No. 135 modified the previous order at ECF No.
99 and gave Wells a new directive to produce 1,000 loan files. The order at ECF No. 135 did not
set a deadline for Wells to complete that production. In the absence of a specific deadline, the
implied deadline is a reasonable time. Given the scope of what the Court ordered Wells to
produce, the Court does not think that the four days between when the Court issued its order and
Plaintiff moved for sanctions is a reasonable time. Plaintiff’s real concern, of course, is that Wells
did not agree to produce the 1,000 loan files by Plaintiff’s deadline to move for class certification.
However, since the 1,000 loan files will likely total a million pages, the Court is unsure that the 42
days between the Court’s order and Plaintiff’s deadline to move for class certification is
necessarily a reasonable time either. Under the circumstances, Plaintiff has not shown that Wells
violated a court order.
B. ECF No. 141
In ECF No. 141, Plaintiff moves to compel a further response to his interrogatory 12,
which asks: “As to (1) each Defendant on an overall basis and (2) Defendants’ mortgage lending
business line specifically, to the extent it differs, state Your annual rate of return on capital for
each year from 2005 through 2023, specifically: (a) Your rate of return on assets; (b) Your
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United States District Court
Northern District of California
weighted average cost of capital for each year; (c) Your net interest margin for each year; (d) the
average yield on Your loan portfolio for each year; (e) the total cumulative return You earned on a
dollar invested at the beginning of this period through the end of 2023; (f) any other rate You
contend is the appropriate measure of Wells Fargo’s enrichment from its possession of the RLEF
funds it later refunded; and (f) the methodology and formulas used to calculate each of these
statements.” ECF No. 158-1.
That’s a request for a lot of information, but Plaintiff has good reasons to seek that
information. He is suing for the net profits that Wells Fargo earned on wrongfully charged rate
lock extensions fees (“RLEFs”). Wells has stated that there is no separate RLEF bank account and
that the fees were rolled into the overall pricing of the loan with no isolated use, so the only way to
measure the benefit Wells obtained is through its actual returns on capital, assets, or loaned funds
during the relevant period. In its rog response, Wells makes a number of objections and then
33(d)’s some financial documents.
The Court GRANTS Plaintiff’s motion to compel. Rog 12 seeks relevant and
discoverable information that goes to the heart of Plaintiff’s damages claim. Although the rog is
broad, that is a function of the time period at issue in the case and the fact that Wells does not have
a particular account or place where it puts RLEFs; therefore, the rog is not overbroad.
Wells’ reliance on Rule 33(d) is improper. Wells itself argues in the joint discovery letter
brief that it doesn’t have all the information Plaintiff seeks. This means that the answer to the rog
cannot be determined by examining the cited records, so the Rule 33(d) reference is inappropriate.
The other large problem with Wells’ response is that Wells is avoiding saying what information it
has and what information it doesn’t have.
The Court ORDERS Wells Fargo to provide a full and complete answer to rog 12 within
30 days. The answer cannot contain any Rule 33(d) references, as it is impossible that the burden
of deriving or ascertaining the answer will be substantially the same for Plaintiff as it is for Wells.
For every piece of information the rog requests, Wells Fargo must either provide that information
(including a reasonable estimate if the exact number cannot be determined) or state that it does not
know that information and cannot figure it out or provide a reasonable estimate through
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United States District Court
Northern District of California
reasonably diligent effort.
IT IS SO ORDERED.
Dated: February 2, 2026
THOMAS S. HIXSON
United States Magistrate Judge
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