*1 This is a civil class action initiated on December 21, 2020 by Plaintiffs Steven and Leslie Walden (“Plaintiffs,” or, “the Waldens”) against Defendants Bank of New York Mellon Corporation and BNY Mellon, N.A. (together, “BNY Mellon”). Defendants brought a Partial Motion to Dismiss the First Amended Complaint, Dkt. 43, which Chief Magistrate Judge Eddy granted, dismissing Counts I and II for breach of fiduciary duty and negligence, respectively. Order, November 30, 2021, Dkt. 49. The operative, remaining counts allege breach of contract, Count III, as well as for violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 through 201-92, Counts IV and V.

In dismissing the first two counts, Judge Eddy's Memorandum Opinion, Dkt. 48, relied on the “gist-of-the-action” doctrine, which she determined “precludes Plaintiffs from recasting ordinary breach of contract claims into tort claims.” Mem. Op., at 6 [internal quotations, citations omitted.] As to Plaintiffs’ first claim for breach of fiduciary duty, the Court observed that the fiduciary relationship in question must be well-established and clearly defined; otherwise, the torts ancillary to the primary contract claim may not stand. Judge Eddy then recognized Yenshi v. Ameriprize Financial, Inc., 639 Pa. 618, 161 A.3d 811 (Pa. 2017) as controlling the issue. The Pennsylvania Supreme Court there determined that the law of the Commonwealth does not recognize an independent fiduciary duty between an investor and a financial advisor, absent more. Judge Eddy was also not convinced that federal banking regulation[s] Plaintiffs cited provided sufficient support for the proposition that BNY Mellon served in a fiduciary role solely as a result of its status as the Waldens’ investment advisor. As a result, the Court found the relationship between the parties is defined solely by the contract between them.

Judge Eddy similarly dismissed Plaintiffs’ other tort claim, for negligence, on the same “gist-of-the-action” grounds. Rather than stating the breach of a general tort duty of care, she determined that Plaintiffs’ specific allegations in Count II made out a breach of explicit contractual obligations in the purchase of affiliated securities with respect to how Defendants made decisions and determined they were in the clients’ best interests (“These are obligations that arise first and foremost from the contractual agreement between the parties....”).

On January 26, 2022, Dkt. 57, the Court entered its initial Case Management Order for this case. The parties got into disputes over discovery soon after that, resulting in the Court's order for counsel to “continue discussions in an attempt to resolve discovery issues on the matter,” Text Order, March 31, 2022, Dkt. 62. Plaintiffs filed their first Motion to Compel on April 12, 2022, which Judge Eddy denied without prejudice on May 12, 2022, following a conference with the parties, again by Text Order, Dkt. 71 (“the Motion to Compel Discovery is denied without prejudice for the reasons stated at the conference”).

*2 On May 24, 2022, with the discovery process stalling and opposing counsel at loggerheads, the Court entered an Order for appointment of this Special Master, Dkt. 77, whose Affidavit pursuant to Fed. R. Civ. Proc. 53 was docketed on July 14, 2022, Dkt. 78.

The parties met with the Special Master for an initial video status conference on June 3, 2022, and convened again by video conference for ‘mediated meet-and-confer’ sessions on June 13 and again on June 20, 2022, for several hours on each occasion. In addition, counsel for the parties and the undersigned corresponded directly by electronic mail during that time period. The efforts resulted in partial resolution of two of five major issues of conflict. The Special Master also proposed an Amended Case Management Order, which this Court adopted and entered on June 29, 2022, Dkt. 81.

The remaining discovery issues, however, remained unresolved. It became clear that counsel, all of whom are experienced and have already devoted significant time and good faith attention to moving discovery forward, have fundamental differences as to their understanding of what they must produce. As a result, the parties agreed to have the Special Master resolve the existing production request disputes by way of a second Motion to Compel, which Plaintiffs timely submitted on July 1. Defendants responded according to schedule, on July 15. Unfortunately, the Special Master was unable to focus attention on it until approximately ten days following that. This Report and Recommendation follows.

Plaintiffs’ Motion, in broad terms, believe “Defendants should be compelled to conduct a reasonably broader search for their electronically stored information to identify relevant material and information,” with respect to facts concerning both named Plaintiffs the Waldens and with respect to putative class members, in order to identify evidence sufficient to assess Rule 23 factors. They argue their Requests for Production seek discovery on three claims: first, that BNY Mellon required their “wealth managers” [i.e., investment account representatives] to buy only pre-approved funds for their managed accounts, most of which “are affiliated funds that generate fees for the Defendants;” second, that Defendants rewarded individual wealth managers for doing so and penalized those who did not; and third, they seek “Defendants’ “internal correspondence” concerning “contractually mandated compliance with their fiduciary duties.”

Plaintiffs argue that since Defendants responded to Plaintiffs on the Requests for Production on April 4, 2022, objecting on, among other grounds, relevancy, Plaintiffs have provided only scant stored records limited to “a handful of non-electronic records.” Since then, Plaintiffs note that Defendants apparently did agree to provide ESI resulting from narrow searches but involving only the named Plaintiffs, despite numerous “meet-and-confers,” and then, only after they had to bring a Motion to Compel. They assert the Court in conference suggested, and BNY agreed, that initial ESI discovery could proceed first by searching for and producing results from the Waldens’ documents; but then, by more expansive electronic discovery (presumably to be guided by the experience from and observations of the initial e-discovery of the class representatives’ documents, concerning relative success and failure of search terms, etc.), for evidence as to class certification. Plaintiffs now claim Defendants have refused to do just that, and more, that they have not cooperated in good faith.

*3 Specifically, Plaintiffs claim that Defendants will only search for documents that “touch” the Waldens’ accounts; that they refuse to use additional search terms to capture documents relevant to the named Plaintiffs unless the documents specifically name or concern the Waldens; and that Defendants will not search for similar ESI for other class members. This, they assert, violates the specific Order of this Court of March 31, 2022, that discovery be sufficient to address class certification. In support they proffer Defendants’ responses to nine (9) individual requests for production, grouped into four “topics,” with commentary which they had originally provided for meeting with the undersigned highlighting what Plaintiffs believe are improper objections based largely on relevancy. Plaintiffs conclude by explaining why the requested documents in their opinion are relevant and discoverable as to these four topics.

Defendants, on the other hand, object on multiple grounds to Plaintiffs’ Motion, especially that Plaintiffs have not identified specific requests for production for the undersigned to determine whether to compel specific requests on an individualized, one-by-one basis, and the reasons they believe each individual request should be granted. Instead, they argue the four discovery “topics” Plaintiffs identify are impermissibly broad. Also, by not seeking rulings on a request-by-request basis, they claim Plaintiffs’ Motion amounts to a request for an impermissible advisory opinion, and not for a court order regarding specific search terms, custodians and other variables. They also argue that Plaintiffs seek to compel documents regarding internal guidance and management conduct which Plaintiffs merely “suspect” exist. Instead, Defendants assert they have already produced voluminous documents they allege contradict Plaintiffs’ “suspicion,” if not outright disprove it. Nor, according to Defendants, have Plaintiffs yet evaluated “Walden-specific ESI” they have already provided before seeking broader production of electronic discovery, per this Court's suggestion; they rely on Judge Eddy's admonition to conduct discovery in stages, reviewing first the Waldens’ documents and only then moving to discover the broader universe of documents relating to other class members. They also claim Plaintiffs’ proposed search terms “are on their face grossly overbroad and disproportionate to the needs of the case” (e.g., “investment committee,” “strategic committee,” “fiduciary,” and “conflict of interest”). Finally, Defendants raise two other substantive issues: that the documents sought in Plaintiffs’ identified topics are “not grounded in Plaintiffs’ theory of the case,” and that Plaintiffs’ claims are “not supported by documents already produced” (“i.e., the documents Defendants have produced show exactly the opposite of what Plaintiffs claim”).

Having reviewed the submissions of the parties, their attachments and the authorities they cite with specific reference to the particular claims in the First Amended Complaint in this case, the undersigned believes Defendants’ demand that Plaintiffs identify each specific Request for Production not adequately complied with and why Defendants need do more is well taken. Defendants’ argument that documents they have already produced cast doubt on Plaintiffs’ claims, however, is not relevant to discovery disputes; Plaintiffs believe otherwise and are free to and can seek additional, proper discovery in support of their case. For that reason, their Motion is denied without prejudice to refile consistent with this Report and Recommendation as soon as possible, and certainly within the next fourteen (14) days, with Defendants’ Response to follow within the same time period.[1] Plaintiffs’ Motion for Award of Attorneys’ Fees is also denied.

*4 Defendants’ major objection, that Plaintiffs have not moved to compel responses to single (or even closely related), targeted requests supported by specific, individualized reasons why they should be compelled, and if necessary, demonstrate the fallacy of Defendants’ reasoning for not doing so, is well taken. Absent such item-by-item identification of materials sought, explanation as to why they are relevant to some specific and not overly generalized fact(s) in issue, and is not proportionately or in real terms overly burdensome to search for and produce, or presents other point-by-point refutation of Defendants’ objections, the undersigned does not have a sufficient record on which to decide whether to compel production or not. Defendants’ authority on this is helpful, see, Blue Cross & Blue Shield v. Davita, Inc., Case No. 3:19-cv-574-J-39MCR, 2022 U.S. Dist. LEXIS 95155, at *3, 2022 WL 1619425 (M.D. Fla. Feb. 9, 2022) (motion to compel must “be specifically targeted to specific requests and must have reasons why the motion should be granted.”) While Plaintiffs here do identify nine such specific requests categorized under their four topics, or categories, of issues, they are not treated on an individual basis so that Defendants have the opportunity to respond with individual, request-by-request objections, and for the undersigned to focus on the specific reasons to approve or reject the specific request.

In the two ‘mediated meet-&-confer’ video sessions, the undersigned expressed that opposing counsel appeared to be “talking past each other.” Having reviewed the parties’ submissions, the Special Master fears that he too talked past the parties. In calling for a motion to compel, the goal was to issue a Report and Recommendation approving or overruling each particular RFP. Plaintiffs’ Motion sought offered generalized categories of documents untethered to the specific requests they seek to compel. They should have the chance to renew their motion now with what is hoped to be the clear guidance that the undersigned did not previously provide. Discovery must move forward with all due speed; it will not help the process to order that the parties again simply “meet and confer.” At the risk of being accused of providing an “advisory opinion,” the following will, hopefully, provide some direction on how to “tee up” specific requests for decision-making.

It is not clear from the Parties’ submissions whether or not any electronic discovery has been done. Defendants apparently refuse to proceed with e-discovery for documents that do not ‘touch’ the named Plaintiffs, but it is not clear from this record that any e-discovery has been done as to the Waldens’ documents or not. While the Court did mandate that the parties shall cooperate in discovery sufficient to assess the Rule 23 factors, Judge Eddy's direction, and apparently counsels’ informal agreement as well, was to proceed in stages, beginning with discovery related to the putative class representatives to follow that directed to named Plaintiffs. That is the place to begin e-discovery, if it has not begun already. If Defendants refuse to comply with Plaintiffs’ proposed terms, custodians or other variables, after meeting and conferring in good faith with no agreement or compromise reached, then Plaintiffs should bring their Motion to Compel here promptly. Such motion should identify the specific terms, custodians, types of documents, etc., sought; the reasoning in support, and any facts and argument why Defendants objections as to relevance, overbreadth, burden or other good faith grounds for refusal should not be countenanced. Plaintiffs should seek an order compelling production for whichever Requests they choose, and Defendants will no doubt respond accordingly; the undersigned will approve in full, in part or as modified where appropriate, or reject outright. Once discovery is completed as to the Waldens’ documents, with assistance from rulings on a subsequent motion or through counsels’ own discussions (or compromises,) See, e.g., June 21, 2022 e-mail message from Jon Chally to Justin Kontul, attached as Plaintiffs’ Ex. E. to Plaintiffs’ Motion to Compel (proposing new/revised search terms), Defendants must continue to cooperate with respect to the next “stage” of discovery as to commonality, numerosity, etc., for discovery of documents more expansively as to non-named putative class members. Staged discovery must be an iterative process, such that the next stage of discovery takes into account and benefits from learning the success or failure of the search terms, categories of custodians, etc., to improve (or in the event of failure, abandon) particular search terms and the like. The producing party must do its part. Of course, each of the two discovery stages are subject to all other legitimate objections, which Defendants are free to raise with specificity and in good faith.

*5 Finally, Defendants make much about their production of documents and transcripts from hearings in other matters which they argue undermine Plaintiffs’ allegations. Such documents may be relevant or even dispositive at trial or on a motion for summary judgment. But they need not dissuade Plaintiffs from proceeding with discovery of the allegations in their case, and it is not their job to be convinced by opposing counsel's protestations. Plaintiffs may (indeed, they must) continue to seek discovery for documents which they believe will prove their claims utilizing the processes Judge Eddy directed and hopefully this Report and Recommendation builds on, provided such subsequent requests are otherwise proper under the Federal Rules.