*1 This matter is before the Court on the Order Referring Case entered by Judge Philip A. Brimmer on February 20, 2014 (Docket No. 22) and four discovery motions: (1) Plaintiff's Motion to Compel RBS to Expand the Date Range for Its Search Protocol (Docket No. 156 (public), Docket No. 162 (restricted)) (the “Date Range Motion”); (2) Plaintiff's Motion to Compel RBS to Search the Files of Additional Custodians (Docket No. 158 (public), Docket No. 163 (restricted)) (the “Custodians Motion”); (3) Plaintiff's Motion to Compel RBS to Produce Information About Their Revenues and Profits (Docket No. 160) (the “Finance Motion”); and (4) Plaintiff's Motion to Compel the Production of Materials Relied Upon By Experts in Connection With Due Diligence Expert Reports in Similar Cases (Docket No. 161) (the “Experts Motion”). Defendants filed an omnibus response in opposition to all four motions (Docket No. 176) and Plaintiff filed an omnibus reply in further support of the four motions (Docket No. 190). The Court addresses each motion in turn.

The scope of evidence that is subject to discovery under the federal rules is broad:

Fed. R. Civ. P. 26(b)(1). The party objecting to discovery must establish that the requested discovery does not fall under the scope of relevance as defined in Rule 26(b)(1) or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Simpson v. University of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) (citation omitted).

A. Date Range Motion

Plaintiff argues that the date range for relevant documents should be expanded from February 15, 2006 through November 15, 2006 to January 1, 2005 through December 31, 2008 (Docket No. 162 at 1). Plaintiff maintains that this expansion is necessary because “documents after November 2006 show that RBS had concerns about its diligence and the outside vendors it used to perform certain facets of the diligence.” (Id. at 7). Specifically, Plaintiff cites to documents showing that RBS employees expressed frustration and dissatisfaction with the valuation diligence conducted on the securitization of the residential mortgage-backed securities (“RMBS”) at issue in this litigation. (Id. at 7-8). With regard to its request to expand the date range to prior to the six months before the close of the securitization, Plaintiff maintains that those documents are relevant because “RBS contends that it did not know, and in the exercise of reasonable care could not have known that statements in the offering materials for the securitization contained untrue or misleading statements.” (Id. at 11). Plaintiff argues that documents showing Defendants’ due diligence with regard to the securitization are relevant and may pre-date February 15, 2006 (Id.)

*2 Defendants argue that documents outside of the existing 9-month date range are not relevant. They point to another lawsuit involving the securitization at issue in this case that proceeded to trial. Defendants argue that because the 9-month date range was sufficient in that case, it is sufficient here. (Docket No. 176 at 23-25). This argument does not address Plaintiff's assertions summarized above. The sufficiency of a 9-month date range in a different lawsuit that involved this securitization does not conclusively show that a larger date range is not appropriate. Further, the Court finds Plaintiff's arguments convincing. Defendants also argue that the expanded date range would impose an undue burden. (Id. at 25-27). Defendants state that running searches of the agreed terms within the expanded date range would require they review an additional 290,000 documents which would cost “no less than $300,000.” (Id. at 26). Defendants also note that they will incur additional costs by hosting any produced documents on a vendor's database. (Id.) Defendants argue that “[t]his cost is completely unjustified and disproportionate to the needs of the case, which involves a single plaintiff, a single defendant group, a single mortgage loan originator, [and] a single securitization ....” (Id. at 26-27). The Court finds that this cost may be burdensome, but it is not clear whether it is unduly burdensome because Defendants do not provide the number of unique documents that would have to be reviewed. The Court also concludes that the date range should be expanded in order to capture potentially relevant documents. Accordingly, the Court will GRANT the Date Range Motion (Docket No. 162) in part and order the parties to further meet and confer regarding an expanded date range. Defendants shall de-duplicate the 290,000 documents against all documents already produced to Plaintiff prior to the meet and confer regarding the expanded date range and provide that number to Plaintiff in writing. The meet and confer shall be held on or before January 20, 2017. If the parties are not able to reach a negotiated resolution, Plaintiff may file a renewed motion. If the Court finds that any party has not negotiated in good faith, it may impose sanctions for failure to comply with this Order. See Fed. R. Civ. P. 16, 37.

B. Custodians Motion

Plaintiff asks the Court to require Defendants to add two former employees as document and transcript custodians: Scott Gimpel and Brian Farrell. (Docket No. 163 at 2). According to Plaintiff, Mr. Gimpel “was a senior executive at RBS with direct responsibility for surveillance of RMBS, which included monitoring the performance of RMBS and underlying loans.” (Id.) Plaintiff alleges that Mr. Farrell “joined RBS's in-house due diligence team as senior credit officer shortly after the RMBS offering, or securitization, as issue ... closed.” (Id. at 3). “Prior to joining RBS, he was a client service manager at Clayton, the outside due diligence vendor that RBS hired to conduct due diligence on the Securitization.” (Id.) Plaintiff maintains that documents already produced by Defendants show that these individuals “were directly involved with post-closing surveillance of the Securitization” and that they “worked on reviews designed to detect problems with the due diligence and fraud in connection with RMBS.” (Id.)

Defendants argue that there are other custodians who would have more relevant information. (Docket No. 176). This argument is meritless. One custodian's ability to testify as to a subject does not render another's irrelevant. Defendants also argue that certain documents may be obtained from other custodians or may have already been produced because they were sent by or to other custodians. (Id. at 20-21). This, again, misses the mark. While the parties are entitled to agree to a protocol that de-duplicates materials prior to production, the Court is not being asked to reach a decision about whether these speculatively duplicate documents should be produced; it is being asked to determine whether two additional custodians’ materials must be searched. Finally, Defendants argue that searching the files of the additional two custodians would impose an undue burden. (Id. at 21-23). Defendants maintain that Plaintiff is not as interested in these individuals’ custodial files, but, instead, is seeking transcripts from depositions relating to different deals on which they worked. (Id. at 22). Defendant argues that because these individuals did not work on the securitization at issue in this case, those transcripts are not relevant. (Id. at 23). The Court agrees. Accordingly, the Custodians Motion (Docket No. 163) is GRANTED in part and DENIED in part. The Custodians Motion is granted to the extent it seeks to compel Defendants to search the files of Mr. Gimpel and Mr. Farrell and produce any relevant material. However, transcripts from other litigations regarding other securitizations do not have to be produced. However, because the Court finds that these individuals may have relevant information, Plaintiff may depose them in this case if Plaintiff determines that it is necessary.

C. Finance Motion

In the Finance Motion, Plaintiff asks the Court to compel Defendants to “provide information about the revenues and profits associated with RBS's overall [RMBS] operation.” (Docket No. 160 at 1). Plaintiff admits that Defendants already provided “profit and loss data with respect to the particular transaction at issue here, but refuses to provide similar information for its overall RMBS operation.” (Id.) In short, Plaintiff argues that this information is relevant because it goes to Defendants’ motivation for not performing thorough due diligence with regard to RMBS. (Id. at 5-7). As Plaintiff puts it, “[t]he profit and revenue information that the FDIC requests will demonstrate why RBS securitized loans that did not comport with representations made in the offering materials and why RBS performed inadequate due diligence.” (Id. at 7).

*3 Defendants argue that this information is not relevant to this case which “involves a single, non-agency securitization backed by Alt-A mortgage loans from a single mortgage loan originator in 2006.” (Docket No. 176 at 12). As Defendants note, “[d]uring the years 2004-2008, RBS served as an underwriter on numerous securitizations, collectively involving more than $100 billion dollars ... [and this case] involves a single certificate whose stated principal value was $10 million.” (Id. at 13) (emphasis omitted). Defendants further argue that the requested information would have to be created because it does not currently exist. Accordingly, they maintain that the request is unduly burdensome. (Id. at 14-15).

The Court agrees with Defendants for two reasons. First, the requested material is not relevant to this litigation. Second, the Court will not require Defendants to compile information in order to create producible material. Accordingly, the Finance Motion (Docket No. 160) is DENIED.

D. Experts Motion

Plaintiff's fourth motion asks the Court to compel Defendants to produce “the materials relied upon by experts in connection with due diligence expert reports served by or on RBS in similar cases.” (Docket No. 161 at 1). Plaintiff argues that these materials “contain relevant information about the effectiveness of RBS's due diligence practices.” (Id.) As with the Date Range Motion, Plaintiff argues that the materials it seeks are relevant because Defendants assert a due diligence defense and these materials “will relate to the general policies and practices of RBS with respect to due diligence, and the extent to which RBS exercised reasonable care in conducting diligence on mortgage loans in connection with RMBS.” (Id. at 7). Plaintiff also maintains that these materials “may be probative of the likelihood and existence of untrue or misleading statements in RBS's offering materials.” (Id.)

As Defendants argue, this request includes not only experts retained by Defendants in other RMBS-related litigations, but also any experts retained by opposing parties relating to other securitizations. (Docket No. 176 at 15). The Court will not order Defendants to comb through other litigations to determine what materials experts hired by other parties may have relied on and order them to produce those materials in this case. Accordingly, to the extent the Experts Motion (Docket No. 161) requests materials relied on by experts retained by other parties in other lawsuits, it is DENIED.

With regard to the materials relied on by experts retained by Defendants in other lawsuits involving other RMBS securitizations, the Court is sympathetic to Plaintiff's argument that there may be materials that relate to Defendants’ general practices regarding RMBS, but those documents should be produced in this litigation and Plaintiff can hire an expert to review them to draw conclusions about Defendants’ practices. Similarly, if Defendants retain experts in this case, the materials those individuals rely on in forming their opinions are subject to discovery. Accordingly, to the extent the Experts Motion (Docket No. 161) requests materials relied on by experts retained by Defendants in other lawsuits, it is DENIED.

Based on the foregoing,

It is hereby ORDERED that Plaintiff's Motion to Compel RBS to Expand the Date Range for Its Search Protocol (Docket No. 156 (public), Docket No. 162 (restricted)) is GRANTED in part.

It is further ORDERED that the parties shall meet and confer regarding an expanded date range as described above.

It is further ORDERED that Plaintiff's Motion to Compel RBS to Search the Files of Additional Custodians (Docket No. 158 (public), Docket No. 163 (restricted)) is GRANTED in part and DENIED in part as discussed above.

*4 It is further ORDERED that Plaintiff's Motion to Compel RBS to Produce Information About Their Revenues and Profits (Docket No. 160) is DENIED.

It is further ORDERED that Plaintiff's Motion to Compel the Production of Materials Relied Upon By Experts in Connection With Due Diligence Expert Reports in Similar Cases (Docket No. 161) is DENIED.