JOAN OBESLO, ROYCE HORTON, DANIEL FISHER, NATHAN COMER, STEVE MIGOTTI, VALERIE MIGOTTI, JAMES DIMAGGIO, ANNE HALL, CAROL V. REYNON-LONGORIA, on behalf of GREAT-WEST FUNDS, INC., Plaintiffs, v. GREAT-WEST CAPITAL MANAGEMENT, LLC, Defendant Civil Action No. 16-cv-00230-CMA-MJW (consolidated for all purposes with Civil Action No. 16-cv-01215-CMA-MJW) United States District Court, D. Colorado Filed March 01, 2017 Counsel Dustin L. Goldberger, Kurt Charles Struckhoff, Michael Armin Wolff, Sean E. Soyars, Jerome Joseph Schlichter, Schlichter Bogard and Denton, LLP, St. Louis, MO, for Plaintiffs. Adam Michael Regoli, Robert Michael Little, Great-West Life and Annuity Insurance Company, Greenwood Village, CO, Benjamin James Reed, Sean Miles Murphy, Milbank LLP, New York, NY, Edward Craig Stewart, Wheeler Trigg O'Donnell LLP, Denver, CO, James Dennis Whooley, Robert Liubicic, Milbank LLP, Los Angeles, CA, Lisa M. Northrup, Stradling Yocca Carlson & Rauth PC, Newport Beach, CA, for Defendant. Watanabe, Michael J., United States Magistrate Judge ORDER REGARDING (1) Defendant’s Motion for a Protective Order Staying Depositions of Employees of Defendant and Its Affiliates (docket no. 133); (2) Plaintiffs’ Motion to Compel Production of ESI (docket no. 80); (3) Defendant’s Motion to Strike Obeslo Plaintiffs’ Demand for a Jury Trial (docket no. 98); (4) Plaintiffs’ Motion to Compel Production of Document Withheld by Former Director Donna Lynne [Non-Party] (docket no. 106); (5) Defendant’s Motion to Compel Production of Documents from the Obeslo Plaintiffs (docket no. 109); (6) Plaintiffs’ Motion for Hearing on Plaintiffs’ Motion to Compel ESI [docket no. 80](docket no. 104); and (7) Plaintiffs’ Motion to Amend Case Schedule and for a Pre-Trial Conference to Set Hearings on All Pending Motions and a New Schedule (docket no. 144) *1 This is an action under § 36(b) of the Investment Company Act (“ICA”) (15 U.S.C. § 80a-35(b)). Plaintiffs content that Defendant breached its fiduciary duties to the shareholders of the registered investment company - Great West Funds, Inc. - by taking excessive compensation for its advisory services. 15 U.S.C. § 80a-35(b); Jones v. Harris Assocs. L.P. 559 U.S. 335, 346 (2010): Doc. 53 at 8-14 (Mem. 2-8). Now before this court for consideration are the following motions: (1) Defendant’s Motion for a Protective Order Staying Depositions of Employees of Defendant and Its Affiliates (docket no. 133); (2) Plaintiffs’ Motion to Compel Production of ESI (docket no. 80); (3) Defendant’s Motion to Strike Obeslo Plaintiffs’ Demand for a Jury Trial (docket no. 98); (4) Plaintiffs’ Motion to Compel Production of Document Withheld by Former Director Donna Lynne [Non-Party] (docket no. 106); (5) Defendant’s Motion to Compel Production of Documents from the Obeslo Plaintiffs (docket no. 109); (6) Plaintiffs’ Motion for Hearing on Plaintiffs’ Motion to Compel ESI [docket no. 80] (docket no. 104); and, (7) Plaintiffs’ Motion to Amend Case Schedule and for a Pre-Trial Conference to Set Hearings on All Pending Motions and a New Schedule (docket no. 144). The court has reviewed each of the above motions, the responses and the replies thereto. In addition, the court has taken judicial notice of the court file and has considered applicable Federal Rules of Civil Procedure, the Local Rules of Practice of this court and case law. The court now being fully informed makes the following findings of fact, conclusions of law and Order. FINDINGS OF FACT AND CONCLUSIONS OF LAW As to the Defendant’s Motion for a Protective Order Staying Depositions of Employees of Defendant and Its Affiliates (docket no. 133), the court finds that both sides to this litigation have used “procedural gymnastics” to create the current status of this case. Seedocket. [as of the date of this Order the last docket number entry is 182]. As this case is currently postured, we are still not sure what will be the operative pleading [i.e. complaint] in this case. The court notes that on Friday, December 23, 2106, the same day they filed the New Obselo Action 16-cv-03162-RM-STV, the Obeslo Plaintiffs also filed a Motion for Leave in the Obeslo/Duplass Action seeking permission to file a Proposed Second Amended Complaint. See docket no. 119. Moreover, Defendant suggests that it will be filing a Motion to Consolidate the New Obselo Action 16-cv-03162-RM-STV into the current Action 16-cv-00230-CMA-MJW. The court further notes that the ObesloPlaintiffs’ deadline to amend was May 31, 2016. See Scheduling Order 11, (docket no. 25). In a nutshell, the Proposed Second Amended Complaint includes a number of new substantive allegations concerning each of the Gartenberg factors. See Gartenberg v. Merrill Lynch Asset Management, Inc., 487 F. Supp. 999 (S.D.N.Y. 1980). The Proposed Second Amended Complaint also drops three individual plaintiffs who no longer own shares of the Great-West Funds and adds two new individual plaintiffs. Thus, for the above reasons, the Defendant’s Motion for a Protective Order Staying Depositions of Employees of Defendant and Its Affiliates (docket no. 133) is GRANTED. *2 As to the Plaintiffs’ Motion to Compel Production of ESI (docket no. 80), the court finds that the parties have attempted to agree upon search terms from July 2016 through September 2016 concerning requested ESI in the form of Emails that plaintiffs are seeking to discovery from defendant. Plaintiffs argue that the search terms and custodians listed in Exhibit 3 (docket no. 80-3) are not overly broad or unduly burdensome and should be used. Further, that the court should order the defendant to produce ESI consistent with Exhibit 3. Moreover, plaintiffs’ argue that the ESI sought is relevant to the Garternberg factors that are at issue in this case and production is proportional to the needs of this case. Lastly, plaintiffs argue that the burden on defendant in producing the requested ESI is outweighed by plaintiffs’ need for this ESI. Defendant, in essence, argues that the requested ESI is overly broad, largely irrelevant, unduly burdensome, and disportionate to the needs of this case. Here, the court finds that the parties have been unsuccessful in agreeing upon such search terms. See Exhibit 8 (docket no. 80-8). In addition, the court finds that plaintiffs are entitled to discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). Further, the court has reviewed the last proposals regarding search terms proffered both by the plaintiffs and defendant in their moving papers and attached exhibits. After careful consideration of such proposals, this court finds that the search terms and custodians listed in Exhibit 3 (docket no. 80-3) are not overly broad or unduly burdensome and are proportionate to the needs of this case. That any burden to defendant is outweighed by the need for such ESI and that such ESI would be relevant to the Garternberg factors that are at issue in this case. Accordingly, the court finds that Plaintiffs’ Motion to Compel Production of ESI (docket no. 80) should be GRANTED and that defendant should produce ESI to plaintiffs consistent with the parameters outlined in Exhibit 3. As to the Defendant’s Motion to Strike Obeslo Plaintiffs’ Demand for a Jury Trial (docket no. 98), the court finds that the nature of both the claim and relief sought in this Section 36(b) action is equitable - regardless of whatever strategic label a plaintiff attempts to affix to the action. See Table of Authorities on page 3 of docket no. 98 which this court incorporates by reference. In particular, see Gartenberg v. Merrill Lynch Asset Management, Inc., 487 F. Supp. 999 (S.D.N.Y. 1980). Thus, this subject motion (docket no. 98) should be GRANTED. As to the Plaintiffs’ Motion to Compel Production of Document Withheld by Former Director Donna Lynne [Non-Party] (docket no. 106), the court finds that on June 29, 2016, Plaintiffs served a subpoena to produce upon Non-Party Lt. Gov. Lynne. In particular, Plaintiffs’ subpoena Request No. 3 that was served upon Non-Party Lt. Gov. Lynne requests: All correspondence (including email) you have from January 2011 to the date of deposition regarding: Great-West Fund, Inc., Great-West Capital Management, LLC, Great-West Life & Annuity Insurance Co., or Great-West Financial. In response to subpoena Request No. 3, Non-Party Lt. Gov. Lynne objected on the grounds that Request No. 3 was overly broad and unduly burdensome and because it seeks documents related to topics that are unrelated to this lawsuit. In addition, Non-Party Lt. Gov. Lynne objected on the grounds of attorney-client privilege. The dispute in this motion (docket no. 106) is limited to Request No. 3 and only relates to an email dated February 29, 2016. Non-Party Lt. Gov. Lynne has filed with this court a Declaration (docket no. 117-2) which outlines the February 29, 2016 email [i.e. disputed email] but the specific content of such email is not contained in her Declaration (docket no. 117-2). In this case, the court finds it necessary to review, in camera, the actual February 29, 2016 email [i.e. disputed email] before it can rule on Plaintiffs’ Motion to Compel Production of Document Withheld by Former Director Donna Lynne [Non-Party] (docket no. 106). Accordingly, the court will hold in abeyance this motion (docket no. 106) until it has had an opportunity to review, in camera, the February 29, 2016 email [i.e. disputed email]. Non-Party Lt. Gov. Lynne shall file with the court a copy of the February 29, 2016 email [i.e. disputed email] consistent with D.C.COLO.LCivR 7.2 under Level 2 restriction by March 8, 2017. *3 As to the Defendant’s Motion to Compel Production of Documents from the Obeslo Plaintiffs (docket no. 109), the court finds that defendant seeks an order from this court directing plaintiffs to respond to the following Requests for Production of Productions (“RFP”): a. RFP No. 8 - All documents concerning your investments in mutual funds other than the [Great-West] Funds; b. RFP No. 9 - Any documents used by you to evaluate the fees charged by Great-West including, but not limited to, documents relating to the fees charged on other investments you have made; c. RFP No. 10 - All documents, such as any media announcements, mailings, public notices, or other communications, concerning becoming a plaintiff in an action against Great-West Capital Management, LLC or any other advisor to mutual funds for excessive fees; and d. RFP No. 17 - All documents relating to your research and understanding of the fees paid by any and all of your mutual fund investments, including but not limited to your investment in the [Great-West] Funds. Plaintiffs have objected to responding to RFP Nos. 8, 9, 10 and 17 arguing that such RFPs are irrelevant and are protected by the attorney-client privilege. Defendant argues that the information requested in RFP Nos. 8, 9, 10 and 17 is relevant to: (a) plaintiffs’ credibility; (b) plaintiffs’ motive for bringing this lawsuit; (c) plaintiffs’ theory of the case; and (d) a comparison of the fees with those paid by similar funds” which is one of the Gartenberg factors [Jones v. Harris Assocs. LP., 559 U.S. 335, 334 n.5 (2010)] noting that plaintiffs have made multiple comparative fee allegations against defendant in their Amended Complaint. See ¶¶ 57-58, 68, 75-27. See Obselo Amended Complaint. This court overrules plaintiffs’ objections and finds that defendant is entitled to discovery as requested in RFP Nos. 8,9, 10 and 17. For the reasons stated above and for those additional reasons as outlined in the subject motion (docket no. 109), the Defendant’s Motion to Compel Production of Documents from the Obeslo Plaintiffs (docket no. 109) should be GRANTED. ORDER Based upon these findings of fact and conclusions of law, it is hereby ORDERED: 1. That Defendant’s Motion for a Protective Order Staying Depositions of Employees of Defendant and Its Affiliates (docket no. 133) is GRANTED; 2. That Plaintiffs’ Motion to Compel Production of ESI (docket no. 80) is GRANTED and that defendant shall produce ESI to plaintiffs consistent with the parameters outlined in Exhibit 3 by March 31, 2017; 3. That Defendant’s Motion to Strike Obeslo Plaintiffs’ Demand for a Jury Trial (docket no. 98) is GRANTED. Obeslo Plaintiffs’ Jury Demand is STRICKEN; 4. That Plaintiffs’ Motion to Compel Production of Document Withheld by Former Director Donna Lynne [Non-Party](docket no. 106) is taken under advisement until the court has had an opportunity to review, in camera, the February 29, 2016 email [i.e. disputed email]. Non-Party Lt. Gov. Lynne shall file with the court a copy of the February 29, 2016 email [i.e. disputed email] consistent with D.C.COLO.LCivR 7.2 under Level 2 restriction by March 8, 2017; 5. That Defendant’s Motion to Compel Production of Documents from the Obeslo Plaintiffs (docket no. 109) is GRANTED. ObesloPlaintiffs shall fully respond to Defendant’s RFP Nos. 8,9, 10 and 17 (docket no. 109) by March 31, 2017; *4 6. That Plaintiffs’ Motion for Hearing on Plaintiffs’ Motion to Compel ESI [docket no. 80] (docket no. 104) is MOOT and therefore DENIED. The court has entered an order on docket no. 80. See above. 7. That Plaintiffs’ Motion to Amend Case Schedule and for a Pre-Trial Conference to Set Hearings on All Pending Motions and a New Schedule (docket no. 144) is MOOT and therefore DENIED WITHOUT PREJUDICE. At the Status Conference held on February 27, 2016, this court STAYED all discovery until after this court rules on the many outstanding motions that are pending before this court noting that a number of such outstanding motions are not yet ripe for ruling. The parties are NOT TO FILE any more motions in this case until further Order of Court. The parties may respond to any motion that is currently outstanding as of the date of this Order ONLY. Done this 1st day of March 2017.