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Navient Requests Special Master To Help With Discovery in BCFP Suit

Navient has submitted a request to a federal judge to help it obtain documents from the Bureau of Consumer Financial Protection to fight a lawsuit the agency has filed against the student loan servicer.

The request from Navient comes just a few months after the BCFP made virtually the same complaint, accusing Navient of not releasing documents because it did not have the proper permission from the Department of Education to do so.

In a letter filed with the court yesterday, the lawyer representing Navient accused the BCFP of failing “to produce virtually any documents”  during the discovery phase of the suit. While the defendant has produced more than six million pages of documents, the BCFP has produced less than 1,300 documents, which represents less than 0.05% of what it has reviewed.

“While Defendants can only guess at the review protocols employed by the CFPB, it appears, based on conversations with the CFPB, that the agency has taken the view that only documents supporting its claims are relevant, and is withholding everything else, including potentially exculpatory evidence,” wrote Jonathan Paikin. “For example, when asked how documents that hit on the term “forbearance” were not responsive, the CFPB explained that borrower complaints about being pushed into forbearance were responsive, whereas communications with borrowers about forbearance that did not involve “steering” would not be responsive. The natural conclusion of this perverse view of relevance is that documents supportive of our defenses are left out, including documents suggesting a borrower requested forbearance or was informed about income-driven repayment.”

Navient has requested that the court appoint a special master who would independently review documents the BCFP has deemed to be privileged and to referee any other discovery-related disputes. The judge in the case has set a December deadline for discovery to be concluded.

The BCFP claims that 99% of documents that have been flagged as potentially related to Navient’s discovery request were “false positives” even though the defendants have no way to test or verify that claim.


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