Gary BUUS, Sidney John Flor, Kellie Plumb, Audrey Schulman, and Margaret Weber, individually and on behalf of all others similarly situated, Plaintiffs, v. WAMU PENSION PLAN and the Washington Mutual Pension Plan Administration Committee, Defendants Case No. 07-CV-903MJP United States District Court, W.D. Washington, at Seattle Signed May 12, 2008 Filed May 13, 2008 Counsel Amy C. Williams-Derry, Derek W. Loeser, Karin Bornstein Swope, Lynn Lincoln Sarko, Gretchen S. Obrist, Margaret E. Wetherald, Keller Rohrback, Seattle, WA, Gary A. Gotto, Pro Hac Vice, Keller Rohrback LLP, Phoenix, AZ, for Plaintiffs Gary Buus, Sidney John Flor, Margaret Weber. Gary A. Gotto, Pro Hac Vice, Keller Rohrback LLP, Phoenix, AZ, Amy C. Williams-Derry, Derek W. Loeser, Gretchen S. Obrist, Karin Bornstein Swope, Margaret E. Wetherald, Keller Rohrback, Seattle, WA, for Plaintiffs Kellie Plumb, Thomas Schoenleber. Anne E. Rea, Pro Hac Vice, Danielle J. Carter, Rachel Blum Niewoehner, Kathleen L. Holthaus, Pro Hac Vice, Sidley Austin, Chicago, IL, Brian S. Rosen, Pro Hac Vice, Weil Gotshal & Manges, New York, NY, Fred B. Burnside, Ladd B. Leavens, Davis Wright Tremaine, Seattle, WA, for Defendants Pechman, Marsha J., United States District Judge ORDER GRANTING IN PART AND DENYING PART PLAINTIFFS' MOTION TO COMPEL RESPONSES TO PLAINTIFFS' FIRST REQUESTS FOR PRODUCTION AND INTERROGATORIES *1 This matter comes before the Court on Plaintiffs' Motion to Compel Responses to Plaintiffs' First Request for Production and Interrogatories (Dkt. No. 72.) After reviewing the moving papers, Defendants' Opposition, (Dkt. No. 85), Plaintiffs' Reply (Dkt. No. 90), the Court GRANTS Plaintiffs' Motion in part, and DENIES in part. The Court’s reasoning is set forth below. Background On December 18, 2007, this Court denied Defendants' Motion to Dismiss in part, allowing a portion of Plaintiffs' ERISA § 204(h) notice-related claims to survive. Buus v. WaMu Pension Plan, 2007 WL 4510311, *4 (W.D. Wash. 2007). On September 19, 2007, a Scheduling Order was issued that set the deadline for expert witness reports at June 11, 2008 and a trial date of December 8, 2008. (Dkt. No. 17.) Plaintiffs have a pending motion for class certification, filed March 20, 2008. (Dkt. No. 61.) On February 22, 2008, Plaintiffs served Defendants the First Set of Requests for Production and First Set of Interrogatories, with responses due March 24, 2008. Plaintiffs move to compel responses to these discovery requests because Defendants' responses have allegedly been inadequate; specifically, Plaintiffs argue that Defendants' responses consist only of objections, and are impermissibly limiting the scope of Plaintiffs' surviving claim. Defendants respond that (1) the Complaint limits the scope of relevant discovery materials to the named five pension plans and the dates those plans converted from a final average pay plan to a cash balance plan; (2) materials related to the design, amendment, and termination of pension plans are protected by the attorney-client privilege; and (3) a portion of the requested material is third-party proprietary information not it their control. Discussion 1. Scope of Discovery Under Fed. R. Civ. P. 26(b)(1), parties may obtain discovery of “any nonprivileged matter that is relevant to any party’s claim or defense.” Plaintiffs argue that they “have always intended that Count II include all amendments that trigger an obligation for Defendants to issue a Notice in accordance with ERISA § 204(h),” not just non-cash balance conversion amendments, and that the Washington Mutual Plan (“WaMu Plan”) referred to in the Complaint encompasses more than the five plans listed. Looking at the allegations in the Complaint, Plaintiffs are too broad in their discovery requests. The central allegation in the surviving claim is that “amendments to the WaMu Plan and amendments to its Predecessor Plans during the Class Period caused a significant reduction in the rate of future accrual by converting the Plan from a final average pay plan to a cash balance plan, and by reducing participants' rates of benefit accrual by these conversions.” (Second Amended Complaint (“SAC”) ¶ 78, Dkt. No. 79) (internal quotation marks omitted). The Complaint then lists five plans and the dates where the conversions allegedly occurred. (Id. at ¶ 80.) Until a class is certified, the only bank plans relevant to the named plaintiffs are those listed in the Complaint. While Plaintiffs have sought discovery of all banks, plans, and plan amendments dating back 20 years, there are only four plans listed specifically in the Complaint as WaMu “Predecessor Companies.” (Seeid. at ¶ 21) (listing Great Western Financial Corporation, H.F. Ahmanson & Co., Dime Savings Bank of New York, and Pacific First Bank). Additionally, none of the named plaintiffs are alleged to have been “participants” in the H.F. Ahmanson Retirement Plan; the Complaint only alleges that the Ahmanson Plan merged into the WaMu Plan on July 1, 1999 and that active participants “ceased benefit accruals” as of June 30, 1999. (See id. at ¶¶ 43-44.) Plaintiffs' requests for material unrelated to the factual basis of its allegations for the surviving claim is therefore inappropriate. See Milazzo v. Sentry Ins., A Mutual Co., 856 F.2d 321, 322 (1st Cir. 1988) (scope of discovery limited by factual basis for party’s claim) (citation omitted). Until a possible class certification says otherwise, there is no basis for requesting materials on a plan that none of the named Plaintiffs participated in. Defendants are therefore not obligated to produce materials related to the H.F. Ahmanson & Co. predecessor plan, or other plans not listed in the Complaint. *2 Plaintiffs' primary concern on this issue is that without a completion date set for document production and depositions, Defendants' allegedly inadequate responses will not give them enough time to allow their experts to submit their reports by the June 11, 2008 deadline. Defendants anticipate completing their hard copy production on or before May 9, 2008. The Court extends the deadline for the expert witness reports to July 11, 2008. Further, the Court holds Defendants to their anticipated completion date of May 9 for document production; if not done presently, document production is due within five days from the date of this order. 2. Privilege The parties dispute the extent to which the materials Plaintiffs seek are protected by the attorney client privilege. Plaintiffs argue that they are entitled to drafts of communications or notices to plan participants because they fall within the fiduciary exception to that privilege. This is premature because the Court cannot decide what is privileged without a privilege log. Defendants state that they are preparing the privilege log, and anticipate its completion by May 2, 2008. Assuming the privilege log is not completed presently, Defendants are to produce it within five days from the date of this order. 3. Third Party Proprietary Information Plaintiffs argue that Defendants have refused to produce employment and pension documentation for some potential class members because Defendants believe “third-party proprietary database and software keys” are not within their control. However, Defendants state that they are willing to disclose the underlying participant data within that database. Fed. R. Civ. P. 34(a)(1) states that a responding party need only provide material in its “possession, custody or control.” ERISA regulations mandate that employers “maintain records with respect to each of his employees sufficient to determine the benefits due or which may become due to such employees.” See 28 U.S.C. § 1059(a)(1). Electronic storage is authorized under ERISA regulations, but the record keeping system cannot be subject to any restriction that would “directly or indirectly ... compromise or limit a person’s ability to comply with any reporting and disclosure requirement[.]” 29 C.F.R. § 2520.107-1(b)(4) (2007). Further, case law has explicitly rejected Defendants' attempt to separate access to the underlying data from the databases in which it is stored. See Tomlinson v. El Paso Corp., 245 F.R.D. 474, 477 (D. Colo. 2007) (defendants cannot delegate ERISA record keeping obligations to third parties or bypass them by claiming no control over third parties' “computerized infrastructure”). The Court therefore orders Defendants to disclose the requested material in a “usable form,” meaning that Plaintiffs are to be provided access to the database via a temporary VPN password with read only access. Conclusion Plaintiff’s Motion to Compel Discovery is GRANTED in part and DENIED in part. The Court orders the following discovery deadlines: 1) Expert witness reports: July 11, 2008. 2) Hard copy document production: Within at least 5 days of this order. 3) Privilege log: Within at least 5 days of this order.