I hereby direct Defendants to supply, by January 29, 2009, as to each of their 39 current and former employees identified at Exh. A, pp. 3–4 as “Conflicted Analysts,” either (a) the contact information for the person, or (b) the contact information for the person's attorney.

In 2002, certain regulators began an investigation and requested Defendants to supply them with various documents, including all of the e-mails for certain employees for a broad time period without any limitation as to subject matter. Defendants weeded out privileged communications, and then supplied the regulators with 84 CDs, including 69 CDs of e-mail (approximately 300,000 e-mails). Defendants say that many of those e-mails are (a) purely personal and/or highly confidential and (b) entirely unrelated to the issue of whether Goldman Sachs's research analysts perceived any pressure to slant their reports to please persons in Goldman Sachs's investment banking division.

In the case at bar, Defendants told me in 2007 that they wanted to negotiate with Plaintiff about “search terms” that would narrow the electronic documents so that Plaintiff will receive only those that are potentially relevant. By Memorandum and Order dated May 10, 2007, before there was a ruling on class certification, I directed as follows:

Subsequently, Judge Sullivan became the new District Judge on this case, and he granted class certification on September 15, 2008. On November 20, 2008, the attorneys held a meeting to discuss “search terms.” Plaintiff says: “Defendants had not provided Plaintiff with an index of the 84 CDs or copies of the ... regulators' discovery requests. At that time, ... Plaintiff could not devise informed search terms in the absence of such information.” (1/5/09 joint letter, p. 23, n. 15.) I believe that, more recently, Defendants have provided Plaintiff with (a) an index of the 84 CDs, and (b) copies of the regulators' discovery requests, and (c) the privilege logs identifying the documents withheld from Defendants' production to the regulators; if not, I hereby direct Defendants to provide Plaintiff with those items by January 29, 2009 .

*2 In any event, Plaintiff has resumed making objections to the entire concept of search terms. On December 22, 2008, Defendants served their list of proposed search terms (Exh. G, first enclosure). Defendants' list consists of 75 company names from Plaintiff's Document Requests, plus 23 other search terms including:

I have no expertise in this area, but I think Defendants' first effort shows good faith. At page 24, Plaintiff asserts that the entire search term approach is of questionable validity, but if the Court adopts it, Plaintiff wants an order requiring Defendants to submit “revised” search terms, and only then would Plaintiff have to suggest his own search terms. Instead, I direct Plaintiff to serve his own list of search terms, and then the attorneys and their computer experts must promptly hold a meeting with at least four hours of discussion about proposals for search terms. Among other things, they should discuss (a) the estimated cost of the search and (b) the cost of a possible follow-up search with a supplemental list of search terms.

If Plaintiff wishes, he may delay serving his list of search terms until 14 days after he receives the documents I shall now require Defendants to produce under Dispute # 2 (discussed below after Dispute # 3).

Meanwhile, even prior to the next meeting about search terms, the parties should also discuss the likelihood that certain classes of e-mails (defined solely by sender and recipient) would be such logical sources of relevant evidence that it is fair to require Defendants to review each document if they want to make redactions. Plaintiff proposes two such classes at pages 23–24 of the joint letter. I think those are overbroad, but I would propose modifying the first class, limiting the second class to the immediate supervisor, and limiting both classes to a pertinent period of time (perhaps 7/1/99 to 10/31/03):

I think those two classes would be very logical sources of relevant evidence. Some of the evidence may favor Plaintiff, while some of it may favor Defendants.

Aside from the e-mails, the Defendants have produced more than 120,000 pages to Plaintiff, including 13 of the 15 non-email CDs that were produced to the regulators. (See Exh. G, pp. 3–4, where Defendants say that the two other CDs were not called for by Plaintiff's First Request for Documents.) But Plaintiff wants many documents that were not demanded by the regulators.

*3 Defendants state: “During the relevant period, ... Goldman Sachs had over 20,000 employees, including approximately 700 research analysts and thousands of investment bankers and employees in its institutional sales force ....“ (Joint letter, p. 13.) “The regulators understood that it was not reasonable or practical to perform a global search of all emails for all research analysts or all investment bankers .... (Id., p. 15.) In 2002, the regulators demanded e-mails only for specified research analysts, and specified investment bankers. (Ibid.) This was sufficient for the regulators to reach an “industry-wide settlement with state and federal regulators in April 2003.” (Id., p. 3.)

Defendants argue: Plaintiff should first review the production that was made to the regulators (the 120,000 non-email documents that have been provided to Plaintiff, and the relevant portions of the 300,000 e-mails that will be provided to Plaintiff in the near future). After that, “[t]o the extent that additional discovery is necessary, Plaintiff would be able to, and should be required to, ... narrowly tailor his requests for additional discovery.” (Id., pp. 15–16.)

In my view, Plaintiff's first set of document requests would impose burdens and expenses that “outweigh[ ] its likely benefit, considering the needs of the case.” Rule 26(b)(2)(C)(iii), F.R.Civ.P. Plaintiff should articulate why he needs to study more of the analysts than the regulators did and, if so, which analysts. I urge Plaintiff to offer compromises that would narrow his requests and avoid unnecessary burden and expense.

On the other hand, I reject Defendants' suggestion that Plaintiff should receive no more documents until the dispute about the 300,000 e-mails is resolved. Plaintiff need not wait if he is able to make reasonable, tailored requests, now or in the near future, for documents that go beyond the documents that Defendants produced to the regulators. Plaintiff has made at least one such request; in the joint letter, at p. 8, n. 6 he demands “the production of all performance evaluations—including, but not limited to, 360 degree reviews—for the [39] Conflicted Analysts during the relevant time period.” I hereby direct Defendant to produce to Plaintiff, by February 9, 2009, all performance evaluations—including, but not limited to, 360 degree reviews—that were written for any of the 39 “Conflicted Analysts” during the period from July 1, 1997 through October 31, 2005. Defendants may make redactions, but only if Defendants clearly state the ground for each redaction; I can foresee only three possible grounds: (1) the information is proprietary and would adversely affect Goldman Sachs's competitive position even at this late date; (2) the information would invade the analyst's privacy rights and is entirely irrelevant to the issue of whether the analyst perceived any pressure to slant a report to please anybody in Goldman Sachs's investment banking division; or (3) the information is protected by the attorney-client privilege.

*4 At page 9 of the joint letter, Plaintiff writes:

On the present record, I see no need for a deposition about the time and expense of locating responsive documents. If Plaintiff wants to spend time pressing for such a deposition, and if the parties are unable to reach a compromise, then they should send me a joint letter devoted solely to this issue.

On December 22, 2008, Defendants sent Judge Sullivan their proposed scheduling order; it is now Exh. J to the 1/5/09 joint letter. It was criticized by Plaintiff in his December 22 letter to Judge Sullivan; at page 10, Plaintiff argued that “fact discovery should end no earlier than February 2010,” and that it was too early to schedule the remainder of discovery. However, Plaintiff now submits Exh. I to the 1/5/09 joint letter; he proposes to run fact discovery until February 19, 2010, and expert discovery until September 8, 2010. In my view, Plaintiff's proposed schedule is far too prolonged. I hereby adopt Defendants' proposed Case Management Plan and Scheduling Order, except at ¶ 7(b), where I agree with Plaintiff that either side may serve interrogatories as late as May 8, 2009. My reasoning is to discourage interrogatories; instead, I encourage the parties to take some depositions prior to May 2009.

I will hold one settlement conference. I propose a tentative date of September 17, 2009, at 9:30 a.m., with a firm date to be set during a telephone conference to be initiated by Plaintiff no later than June 17, 2009.