BACKGROUND

Plaintiffs assert various claims against Defendant related to a “Cost of Funds” provision in loan documents executed by Plaintiffs. Plaintiffs allege that Defendant arbitrarily increased the “Cost of Funds,” thereby artificially inflating Plaintiffs' quarterly interest payments. ECF No. 100 at 7-8. Plaintiffs assert claims for breach of contract, breach of an implied term limiting Defendant's discretion to change the interest rate, and declaratory judgment. Id. at 17-21. Plaintiffs also assert class action allegations. Id. at 12-17.

Three other actions involving similar loan products and claims as those at issue in this case have been filed in California: Dugan v. Lloyds TSB Bank; (2) Osmena v. Lloyds TSB Bank (consolidated with Dugan); and (3) Lloyds TSB Bank v. Kilroy. As detailed below, the parties in this action have argued and continue to argue that the discovery completed in these cases can be utilized in this action to minimize burden and increase efficiency.

Plaintiff Bradley Willcox served his First Request for Production of Documents on November 26, 2013 (“November 2013 RFPs”). ECF No. 126-3. Nearly a year later, the parties met and conferred regarding discovery issues, at which time Plaintiffs took the position that Defendant was required to serve written responses to the November 2013 RFPs. ECF No. 137-1 ¶ 14. Defendant disagreed in light of the fact that the November 2013 RFPs were served while the original Complaint was pending, the Original Complaint was superceded by the First Amended Complaint, which was dismissed, the Second Amended Complaint asserted entirely new claims and added a new Plaintiff, Mr. Dominick. Id. Plaintiffs did not file any motion regarding the November 2013 RFPs following that meeting in September 2014.

On December 23, 2014, the court issued its decision granting in part and denying in part Defendant's Motion to Dismiss the Second Amended Complaint. See ECF No. 73. In denying Defendant's motion to dismiss on forum non conveniens grounds, the court noted that “Plaintiffs submit evidence indicating that much of this [discovery] information has already been collected and electronically processed as part of [Defendant's] litigation efforts in Dugan and, therefore, is in possession of [Defendant's] U.S. based counsel.” ECF No. 73 at 16-17.

*2 Counsel began to confer again regarding discovery issues in January 2014. See ECF No. 126-2 ¶¶ 18, 19. By letter dated February 6, 2015, Plaintiffs acknowledged that the parties needed “to distill what, if any, production issues remain that require the Court's prompt attention.” ECF No. 126-6 at 2. To that end, Plaintiffs served their Second Request for Production of Documents (“February 2015 RFPs”). ECF No. 127-6. Plaintiffs also specified that they were seeking the Kilroy/Dugan production of documents, the loan files for the named Plaintiffs, an anonymized data set for all putative class members, the redacted facility agreements, promissory notes and draw down instructions for putative class members, and updated discovery since the time of the Dugan production. ECF No. 126-6 at 2.

Following further meet and confer efforts, Plaintiffs' counsel sent a letter to Defendant's counsel stating that “[w]hile the Dugan production will not accomplish complete responses to discovery in this matter, Plaintiffs are willing to accept the Dugan production to satisfy the overwhelming majority of requests for responsive documents here.” ECF No. 126-8 at 1. Plaintiffs stated that “the additional materials we seek for this litigation involve borrower information for the putative class” and that Plaintiffs “have endeavored to describe that information to you and follow the format used in Dugan.” ECF No. 126-8 at 2.

Defendant's counsel responded on February 23, 2015, noting that because Plaintiffs were taking the position that the prior Dugan production would satisfy some, but not all of Plaintiffs' discovery requests, Defendant did not have any “way of knowing what additional discovery Plaintiffs are actually seeking.” ECF No. 137-10 at 6. Defendant's counsel requested a “detailed description of Plaintiffs' proposed ‘limited update of material’ (including a list of the discreet number of topics on which Plaintiffs seek production of additional documents and, if they are different, the discrete requests for updated information since the last production in Dugan/Osmena) that Plaintiffs will seek to complete [Defendant's] production in this action.” Id. at 6. Defendant proposed that it produce the following: a subset of documents from the Dugan action; approximately one thousand pages of documents produced in the Kilroy case, which included documents produced as recently as February 2015 and thus were more current than the Duganproduction which was completed on October 31, 2013; the loan files for Dr. Willcox and Mr. and Dr. Dominick; and anonymized data relating to the loans that met the proposed class definition, similar in form to a data set produced in the Dugan action (the “Anonymized Data”). ECF No. 137-10 at 7-8; ECF No. 137-1 ¶ 17.

On March 3, 2015, Plaintiffs' counsel emailed Defendant's counsel with a list of specific topics “on which [Plaintiffs] believe some limited follow up beyond previously collected/ produced documents may be appropriate.” ECF No. 137-11 at 2. The list included proposed steps to address each topic as well. Id. Plaintiffs' counsel also stated in the email that “[o]nce [Plaintiffs] have the Kilroy D/O production, it would be our expectation that we can be more specific for some of these topics and/or remove them.” Id.As to the February 2015 RFPs at issue in the present Motion, Plaintiffs' counsel presented a list of “Updated Requests” as follows:

ECF No. 137-11 at 3-4.

The parties met and conferred again on March 6, 2015. ECF No. 137-1 ¶ 18. On April 1, 2015, Defendant produced the Dugan subset of documents, the additional Kilroy documents, and the loan files for Dr. Willcox and Mr. and Dr. Dominick. Id. ¶ 19. On April 24, 2015, Defendant produced the Anonymized Data, which included information about each of the 169 loans meeting the proposed class definition. Id.

On April 24, 2015, Plaintiffs' counsel sent a letter to Defendant identifying a few specific issues relating to Defendant's document production and, for the first time, asked Defendant to search for responsive documents from seven additional custodians “who appear to have significant roles in pricing decisions and funding of the loans.” ECF No. 126-10 at 3. The parties met and conferred regarding this letter on April 29, 2015. See ECF No. 126-11. Following the meeting, Plaintiffs' counsel sent a letter to Defendant's counsel outlining several categories of documents that Plaintiffs asserted Defendant was obligated to search for and produce:

ECF No. 126-11 at 3-4. Regarding the seven additional custodians, Plaintiffs reiterated their request for documents related to these custodians and asserted that these individuals were members on several banking committees and “the documents produced demonstrate these individuals played a role in determining Cost of Funds for the IMS loans at issue in this litigation.” ECF No. 126-11 at 3. Plaintiffs' counsel's letter also noted that “Plaintiffs agreed provisionally to accept a spreadsheet with anonymous class data.” ECF No. 126-11 at 1 n.1.

*4 In the present Motion, Plaintiffs ask the Court to compel Defendant to produce the following:

1. All documents responsive to Requests Nos. 27, 28, 32, 33, 38, 39, 40, 47, 49, and 51 of the November 2013 RFPs and Requests Nos. 20-33 of the February 2015 RFPs, including any supplemental production since the date of the last Dugan collection;

2. All documents responsive to the same requests above from seven additional custodians; and

3. Copies of the loan files for the putative class members and up-to-date loan files from the named Plaintiffs. ECF No. 126 at 3.

DISCUSSION

Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense .... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). However, the court must “limit the frequency or extent of discovery” otherwise allowed if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(C)(iii). A party may move for an order compelling discovery after a good faith attempt to confer with the party failing to respond. Fed. R. Civ. P. 37(a)(1).

1. Plaintiffs' Request to Compel Defendant to Produce All Documents Responsive to Requests Nos. 27, 28, 32, 33, 38, 39, 40, 47, 49, and 51 of the November 2013 RFPs and Requests Nos. 20-33 of the February 2015 RFPs is GRANTED IN PART and DENIED IN PART.

First, Plaintiffs' requests related to the November 2013 RFPs are DENIED. It is undisputed that Defendant did not provide written responses to Plaintiffs' November 2013 RFPs. However, the parties disagree regarding whether Plaintiffs waived Defendant's obligation to provide such a response. Based on the Court's careful review of the correspondence between the parties, it appears that Plaintiffs agreed, at a minimum, to temporarily stay discovery until early 2015. In early February 2015, Plaintiffs propounded the February 2015 RFPs, which Plaintiffs acknowledged “overlap” with the November 2013 RFPs. See ECF No. 137-9 at 3. Based on the Court's review, it appears that six of the RFPs at issue are identical and the remaining are substantially similar. Compare ECF No. 126-3 withECF No. 126-7. Despite this duplication, Plaintiffs ask the Court to compel Defendant to provide responses to ten of the RFPs from the November 2013 set. The Court DENIES this request because Requests Nos. 27, 28, 32, 33, 38, 39, 40, 47, 49, and 51 of the November 2013 RFPs are duplicative of the RFPs from the February 2015 set, which are also at issue in the present Motion.

Second, the Court GRANTS IN PART Plaintiffs' request to compel Defendant to provide a “complete production” and to “certify” that all responsive documents have been produced in response to Requests Nos. 20-33 of the February 2015 RFPs regarding Cost of Funds. As detailed above, Plaintiffs agreed to accept the Dugan/Kilroy productions to satisfy most of the document requests propounded by Plaintiffs. Contrary to Defendant's argument, however, this does not preclude Plaintiffs from seeking additional documents in this litigation. Plaintiffs' Requests Nos. 20-33 of the February 2015 RFPs are as follows:

ECF No. 126-7.

Regarding the “topical” gaps in the prior productions, Plaintiffs contend that the prior productions do not contain sufficient information regarding Cost of Funds. To address this gap, Plaintiffs ask the Court to compel Defendant to produce all documents responsive to Requests Nos. 20-33. Defendant contends that the discovery in Dugan “was an absolutely enormous undertaking” and should be sufficient for Plaintiffs in this litigation. ECF No. 137 at 29. Defendant argues that Plaintiffs' requests are “entirely cumulative” because several of the RFPs at issue are nearly verbatim to those that were served in the Dugan action. See ECF No. 137. The Court agrees that several of the RFPs at issue appear to be duplicative of the requests in Dugan. Additionally, the RFPs at issue are written broadly and would require extensive collection, searching, reviewing, and redaction. Plaintiffs do not identify any specific custodians in these requests and appear to ask for all responsive documents for all times. As detailed in the declarations of counsel submitted with Defendant's Opposition, massive quantities of data were collected in the Dugan matter after the parties worked cooperatively to identify likely custodians and keywords. Although Plaintiffs identified specific shortcomings in the documents already produced in their meet-and-confer letters, for this Motion, Plaintiffs ask the Court to compel the production of all documents responsive to these fourteen requests that address the central issue in this litigation. This would likely result in duplicative efforts given that the central issue was the same in Dugan. The Court finds that the burden and expense of requiring Defendant to produce all documents responsive to these fourteen RFPs outweighs the likely benefit to Plaintiffs. The Court DENIES Plaintiffs' request to compel Defendant to produce all documents responsive to Requests Nos. 20-33 of the February 2015 RFPs.

*6 Regarding the “temporal” gap in the prior productions, as noted by the parties, the documents in Dugan were collected in 2013. Although Defendant represents that some of the Kilroy documents were collected in 2015, Defendant does not provide any assurances that those documents are a full up-to-date supplement of the prior Dugan production related to Cost of Funds. The Court GRANTS Plaintiffs' request to compel Defendant to supplement the productions that it made in Dugan and Kilroy and to produce any additional documents from 2013 to the present that are responsive to Requests Nos. 20-33 of the February 2015 RFPs.

Finally, it does not appear that Defendant has provided written responses to the February 2015 RFPs. Defendant shall, no later than June 30, 2015, serve written responses to Requests Nos. 20-33 of Plaintiffs' February 2015 RFPs. Defendant's responses must include specific reference to responsive documents produced by Bates range.

2. Plaintiffs' Request to Compel Defendant to Search for and Produce Documents Responsive to Requests Nos. 20-33 of the February 2015 RFPs from Seven Additional Custodians is GRANTED IN PART and DENIED IN PART.

Plaintiffs ask the Court to compel Defendant to search for and produce all responsive documents from seven custodians not included in the productions in the prior litigations. Specifically, Plaintiffs ask for responsive documents from: Joseph Cheung, Ken McGowan, Sebastian Colabella, Phil Rawling, Annabel Murday, Emma Koops, and Ashley Garvin. Plaintiffs first identified these seven custodians in their letter of April 24, 2015. See ECF No. 126-10. However, the idea that additional custodians would need to be identified and searched was discussed by the parties earlier in March 2015. See ECF No. 126-5. In their May 4, 2015 letter, Plaintiffs state that these seven individuals were on “several banking committees” and that the documents produced “demonstrate that these individuals played a role in determining Cost of Funds for the IMS loans at issue in this litigation.” ECF No. 126-11 at 3. Although Plaintiffs made these general assertions in their letters to counsel, Plaintiffs do not provide any specific information in their Motion regarding any of these individuals. See ECF Nos. 126-7, 139. Defendant asserts that searching for and producing documents from these seven new custodians would be unduly burdensome and likely duplicative of the 37 custodians already produced. ECF No. 137 at 36-38. The Court considers each of the seven custodians below.

First, regarding Joseph Cheung, in the April 24, 2015 letter, Plaintiffs state that they have one email from Mr. Cheung that describes “Hong Kong funding” relating to the development of a policy. ECF No. 126-10 at 3. Defendant notes that Mr. Cheung's documents and information have not been located or collected in relation to this action or the Dugan action. ECF No. 137 at 36. This reference to one email is insufficient for the Court to determine whether the benefit of the proposed discovery from Mr. Cheung outweighs the burden and expense on Defendant for collecting and reviewing potentially responsive documents. Because Plaintiffs do not provided sufficient information regarding the responsive materials that Mr. Cheung may have, Plaintiffs' request to compel as to Mr. Chueng is DENIED.

Second, as to Ken McGowan, Plaintiffs' counsel submitted a declaration that states that specific documents have been identified that demonstrate Mr. McGowan's involvement in Cost of Funds issues. See ECF No. 139-1 ¶ 5. No such statements are made about the other six custodians requested. Although Defendant states that Mr. McGowan's documents and information have not been located or collected in relation to this action or the Duganaction, that is not determinative here given the representations regarding the benefit of the documents and information requested. The Court finds that the benefit of the information and documents from Mr. McGowan's custodial files outweigh the burden on Defendant for collecting, reviewing, and producing the documents. The Court GRANTS Plaintiffs' request to compel as to Ken McGowan. Defendant must search for and produce all documents responsive to Requests Nos. 20-33 of the February 2015 RFPs from Ken McGowan's custodial files.

*7 Third, regarding Emma Koops, Plaintiffs note in the April 24, 2015 letter that Ms. Koops visited Hong Kong in 2007 to review the IMS loan product. ECF No. 137-12 at 3. Defendant notes that Ms. Koops' documents and information have been preserved. ECF No. 137 at 37. Because Ms. Koops' custodial files have already been collected and preserved, the burden on Defendant is less than for other previously unidentified custodians. Given Ms. Koops' involvement in the review of the IMS loan product and the lessened burden on Defendant, the Court GRANTS Plaintiffs' request to compel as to Emma Koops. Defendant must search for and produce all documents responsive to Requests Nos. 20-33 of the February 2015 RFPs from Emma Koops' custodial files.

Next, as to Annabel Murday and Ashley Garvin, in the April 24, 2015 letter, Plaintiffs assert that Ms. Garvin collected “funding information” for a project that Ms. Murday was working on in September 2009 regarding “development of a procedure.” ECF No. 137-12. This ambiguous description does not provide the Court with sufficient information to determine whether these two custodians may possess relevant information in their custodial files. Without such information, the Court is unable to determine whether the benefit of such information outweighs the burden on Defendant. Because Plaintiffs do not provide sufficient information regarding the responsive materials that these two custodians may have, the Court DENIES Plaintiffs' request to compel as to Annabel Murday and Ashley Garvin.

Finally, as to Sebastian Colabella and Phil Rawling, Plaintiffs do not provide any information regarding what, if any, responsive materials these two custodians may have. Accordingly, the Court DENIES Plaintiffs' request to compel as to Sebastian Colabella and Phil Rawling.

3. Plaintiffs' Request to Compel Defendant to Produce Copies of the Loan Files for the Putative Class Members and Up-to-Date Loan Files from the Named Plaintiffs is GRANTED.

First, the Court GRANTS Plaintiffs' request to compel Defendant to provide updated loan files for the named Plaintiffs. According to Plaintiffs, Defendant's production only included loan information through 2013 for Plaintiffs. See ECF No. 126-1. Defendant shall produce updated loan transaction information from 2013 through the present for the named Plaintiffs.

Second, regarding the loan files for the putative class members, Plaintiffs assert that although they initially agreed to accept the Anonymized Data from Defendant, Plaintiffs are entitled to receive loan transaction information for all borrowers in the putative class. Plaintiffs' Request No. 5 of the February 2015 RFPs asks for “[a]ll promissory notes, facility agreements, and draw down instructions for all loan accounts identified” in the Anonymized Data. ECF No. 126-7 at 10. The Court finds that such documents are relevant and the burden on Defendant to produce such documents is minimal. Accordingly, the Court GRANTS Plaintiffs' request to compel their production. Defendant may redact any information in these documents that Defendant contends is protected by various privacy statutes.

CONCLUSION

In accordance with the foregoing, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Compel as follows:

1. Plaintiffs' request to compel Defendant to produce all documents responsive to Requests Nos. 27, 28, 32, 33, 38, 39, 40, 47, 49, and 51 of Plaintiffs' First Request for Production of Documents is DENIED. The Court DENIES Plaintiffs' request to compel Defendant to produce all documents responsive to Requests Nos. 20-33 of Plaintiffs' Second Request for Production of Documents. The Court GRANTS Plaintiffs' request to compel Defendant to supplement the productions that it made in Dugan and Kilroyand to produce any additional documents from 2013 to the present that are responsive to Requests Nos. 20-33 of Plaintiffs' Second Request for Production of Documents. Defendant shall serve written responses to Requests Nos. 20-33 of Plaintiffs' Second Request for Production of Documents.

*8 2. Plaintiffs' request to compel Defendant to search for and produce documents responsive to Requests Nos. 20-33 of Plaintiffs' Second Request for Production of Documents from seven additional custodians is GRANTED as to Ken McGowan and Emma Koops and DENIED as to Joseph Cheung, Sebastian Colabella, Phil Rawling, Annabel Murday, and Ashley Garvin.

3. Plaintiffs' request to compel Defendant to produce copies of the loan files for the putative class members and up-to-date loan files from the named Plaintiffs is GRANTED. Defendant shall produce updated loan transaction information from 2013 through the present for the named Plaintiffs. Defendant shall produce “[a]ll promissory notes, facility agreements, and draw down instructions for all loan accounts identified” in the Anonymized Data, with appropriate redactions.

4. The Court declines to apportion the reasonable expenses under Federal Rule of Civil Procedure 37(a)(5)(C).

5. Defendant's further responses and documents as ordered above shall be produced no later than July 10, 2015.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, JUNE 15, 2015.

WILLCOX, ET AL. V. LLOYDS TSB BANK, PLC; CIVIL NO. 13-00508 ACK-RLP; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS