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Subpoena Duces Tucem For Production Only
Served October 21, 2016

Brief In Support of Summary Judgment


TO: Wells Fargo Bank, N.A.

FROM: Montana First Judicial District Court, Lewis and Clark County

Pursuant to M.R.Civ.P. Rules 30 and 45, YOU ARE HEREBY COMMANDED TO produce copies of the below-designated documents, electronically-stored information, tangible things or property in your possession, custody or control on or before November 21, 2016. The copies shall be delivered to the Nickersons at the above address via first class mail, overnight express mail or priority mail.

The things which you are required to produce are associated with the Nickersons’ Wells Fargo Home Mortgage Account ending in REDACTED. Please produce the following:

· Communication records – dates, times, context and actual content of all communications with the Nickersons

· Account notations – all notes from all conversations or other communications both internal within Wells Fargo and with the Nickersons in the original, unabridged and unaltered form they were entered and attached to the accounts

· Written and verbal correspondence – all written and verbal correspondence, unabridged and unaltered, including all conversations initiated by Wells Fargo and the reason for the correspondence

· Recordings of conversations – unabridged copies of all recorded conversations in CD format

· Any and all internal emails, notes or other communications of Wells Fargo employees, contractors, representatives or agents regarding these accounts

· Any internal or external requests for research or other account inquiries and the results of those requests including any changes or corrections made to the account for any reason whatsoever

· Documentation as to why local branch access to accept payments on the accounts was terminated and who made the decision to deny local branch access to accept payments on the accounts

· Documentation as to who decided to refuse the Nickersons’ payments and prevent the Nickersons’ performance and what date(s) this decision was made

· Details of any and all inquiries and requests for research from Wells Fargo employees, representatives, contractors or agents regarding their rejected attempts to process the Nickersons’ payments

· Any and all other documents, correspondence, communications internal or external, file transfers and reporting associated with these accounts

· Comprehensive results and conclusions of the independent review processes that determined the Nickersons were due compensation for the wrongdoings of Wells Fargo regarding these accounts

· Proof of authority for the attorney Wells Fargo chooses to represent them in this matter and proof of authority and the dates that authority was provided for any attorney(s) regarding these accounts

· Original loan documents

· Proof of ownership of loan, note and mortgage and dates of any transfers of ownership or servicing to establish Wells Fargo’s authority to accept payments or establish reasons why Wells Fargo refused payments

· Current access status of loan in Wells Fargo’s system, detail any changes to access that have occurred and when those changes occurred since March 2012.

· Dates, times and names of all bankers, tellers, Wells Fargo employees, contractors or agents who accessed or attempted to access the accounts

· All correspondence, written and verbal, between Wells Fargo and government agencies, consumer advocates and state employees or representatives regarding these accounts

· All correspondence between HSBC and Wells Fargo regarding these accounts

If any of these items are stored electronically, please produce that information in PDF format or any other format that can be easily read and copied.

Failure to produce the designated items may constitute contempt of court.

For your information, M.R.Civ.P. Rule 45 contains the following provisions:

 (d) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -- which may include lost earnings and reasonable attorney fees -- on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance not Required. A person commanded to produce designated documents, electronically-stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.

(B) Objections. A person commanded to produce designated materials or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the designated materials or to inspecting the premises -- or to producing electronically-stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expenses resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person -- except that, subject to Rule 45(d)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or

(iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically-Stored Information. These procedures apply to producing documents or electronically-stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form of Producing Electronically-Stored Information Not Specified. If a subpoena does not specify a form for producing electronically-stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically-Stored Information Produced in Only One Form. The person responding need not produce the same electronically-stored information in more than one form.

(D) Inaccessible Electronically-Stored Information. The person responding need not provide discovery of electronically-stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of the undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly assert the claim; and

(ii) describe the nature of the withheld documents, communications, or things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(f) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(d)(3)(A)(ii).







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