A. Introduction

*1 Following the Special Discovery Master's August 9, 2022, Report and Recommendation (“R&R”), Doc. 83, denying without prejudice Plaintiffs Steven and Leslie Waldens’ (“Plaintiffs” or “the Waldens”) original Motion to Compel (the “Motion to Compel”) further responses to document production requests by Defendants Bank of New York Mellon Corporation and BNY Mellon, N.A. (together, “BNY Mellon” or “Defendants,”), Plaintiffs renewed their motion on August 23, 2022 (the “Renewed Motion”) per direction of the Special Master. They seek an order compelling Defendants to conduct “a reasonably broader search of their electronically stored information (‘ESI’),” Renewed Motion, at 1, presumably of both email and other electronically stored documents, texts, etc. Defendants timely filed their Response in Opposition on September 6, 2022. Plaintiffs, as permitted, filed a short Reply, summarizing that they specifically seek an order compelling Defendants to “extend... their search for ESI material to the search terms and custodians referenced in the Renewed Motion.” Plaintiffs’ Reply Memorandum of Law in Further Support, etc., September 9, 2022. The date for the parties to seek Magistrate Judge Eddy's review of the R&R passed on September 8, 2022, Doc. 85, and they have now thoroughly and timely briefed the issues. The Special Master's earlier R&R previously identified the operative counts remaining before the Court, summarized the procedural posture of the case, and canvassed the discovery efforts of the parties that led to the Plaintiffs’ original Motion. The Renewed Motion is therefore now ripe for decision.

B. Applicable Legal Standards For Decision

Under Federal Rule of Civil Procedure (“Fed. R. Civ. Proc.”) 26(b)(1):

Privilege is not at issue here, save for RFP No. 7 (dealt with separately, below); nor is there any doubt that the amount in controversy is considerable, since this case involves putative class claims by managed investment accounts holders in a national money center bank over a significant time period. There is also no doubt that Plaintiffs here seek information largely if not exclusively held by Defendants. At the risk of conflating the second prong (as separated by the commas) of Rule 26’s subsection (“the importance of the issues at stake in the action”) and the fifth prong (“the importance of the sought-after discovery to resolving those issues”), whether the discovery in question should be ordered relies on its relevance in proportion to the cost of its production. That is, the relevance inquiry is not binary (i.e., it either is or it isn't), but rather a matter of degree: of relevance to the particular facts, which Plaintiffs’ RFPs are attempting to discover, and the substantive law which governs the claims in each case in comparison with the cost of such discovery. Finally, admissibility of the requested documents must not, per the rule, bear on the decision. Thus, this motion turns almost solely on whether and to what degree the actionable claims rely on things responsive to Plaintiffs’ RFPs, and the cost and effort (i.e., the burden) of producing them.

*2 Accordingly, the party seeking the discovery on a motion to compel has the initial burden of showing that the sought-after items are worth the effort to produce them. Hughes v. Allegheny Cnty. Airport Auth., 2017 U.S. Dist. LEXIS 24349, at *1 (W.D. Pa. Feb. 22, 2017) (“[T]he moving party bears the initial burden to show the relevance of the requested information and that it is proportional to the needs of the case.”). But the standard of relevance is broadly construed, especially at this early stage of the case. Southeastern Pennsylvania Transportation Auth. v. Orrstown Fin. Services, Inc. et al., 2022 WL 3567340, at *21 (M.D. Pa. Aug. 18, 2022). Once the propounding party demonstrates that a discovery request is relevant under the circumstances, the party objecting to the discovery request bears the burden of showing it should not be enforced. See Fantone v. Burger, 2015 WL 4608061, at *2 (W.D. Pa. July 31, 2015) (Eddy, Chief M.J.) (“The objecting party must demonstrate in specific terms why a particular discovery request does not fall within the broad scope of discovery or is otherwise privileged or improper.”).

C. The Requests for Production

Grossly oversimplified, Plaintiffs assert three claims, each of which, they argue, demonstrate Defendants’ breach of their contract(s) to act as a fiduciary, as well as violation(s) of Pennsylvania's Uniform Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 through 201-92 (“UTPCPL”): 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, Defendants did not make adequate disclosure of this alleged “undisclosed conflict of interest.” In their Renewed Motion, the Waldens seek to compel production of electronic data demonstrating their claims, as well as ones showing “Defendants’ ‘internal correspondence’ ” concerning “contractually mandated compliance with their [own professed] fiduciary duties.” Renewed Motion, at 8. The Renewed Motion seeks Defendants’ compliance with seven (7) specific RFPS; they are analyzed separately here.

In broad terms, whether there are “documents,” in whatever form provided to Wealth Managers exercising discretion over client investments that provide training, guidance and explanation about how to carry out this core responsibility of their job function, is certainly relevant to what Defendants believed their contractual obligations to be. Those documents would detail how investment managers were taught, directed and managed. Gauging just how relevant the discovery is on the basis of the record here is imprecise, but the policy documents, training materials and discretionary investment guidelines suggested by this RFP seem to go to the heart of issues the Waldens’ suit raise, increasing their importance to commonality and numerosity for class certification purposes.

As written, however, the RFP would be prohibitively costly to satisfy. It seeks production of such “documents and communications” for investment managers for all putative class members, without date restriction. Judge Eddy's January 26, 2022 Case Management Order (“CMO”) does not bifurcate class discovery with a sharp edge; rather, her CMO provides for discovery “sufficient to permit the Court to determine whether the requirements of Fed. R. Civ. P. 23 are satisfied, including a preliminary inquiry into the merits of the case to ensure appropriate management of the case as a Class Action.” Doc. 57, No. 2. Thus, Plaintiffs need the latitude to make “preliminary inquiry into the merits” in order to flesh out common questions of fact and law for class certification purposes. Only then will they be able to demonstrate for the Court the facts and legal theories they will put at issue in the litigation, In re Honeywell Int'l, 211 F.R.D. 255, 264 (D.N.J. 2002). Necessarily, this is not a precise exercise, and may “entail some overlap with the merits of the plaintiff's underlying claim.” Walmart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011).

*3 It is not, however, license to take discovery as to the entire class for the entire alleged class period. Nor is it in keeping with the Court's direction to begin with discovery as to the named, putative class representatives, and work outward to determine whether the Court can and should proceed as a class action. Compliance with the RFP as written will not be compelled.

The undersigned's role is not to craft the text of discovery requests: what documents and communications (including ESI) they want produced, where to search for them, whether or when to notice a Rule 30(b)(6) custodian of records deposition or other witness whose testimony may provide guidance on where and what to seek, e.g., whether members of the “Solutions Strategy Committee” are the custodians whose documents and communications are most likely to yield relevant, material evidence. Plaintiffs know best how to best make their case; the undersigned has neither the authority nor the insight to rewrite, supplement or reword interrogatories and requests for production.

But discovery in this case has dragged on for too long without progress, to the detriment and cost of both sides, to simply reject the Plaintiffs’ motion to compel that Defendants respond to this RFP, and to the others here. And based on past results, to merely direct the parties yet again to hold another “meet and confer,” by themselves without direction or mediated by the undersigned, would not be responsible to either the parties, their counsel or the Court, when so many in the past have not succeeded. Most importantly, time is ticking; the Court will grant only so many extensions, regardless of who caused the delay.

Fed. R. Civ. Proc. 53(c)(1)(A), (C) (“Masters’ Authority”), as well as the Order of this Court Appointing Special Master, Doc. 77, grants the undersigned the power to “regulate all proceedings,” and to “take all appropriate measures” to resolve discovery disputes “fairly and efficiently.” These disputes must be resolved. The undersigned therefore will exercise discretion to approve in part and deny in part the individual discovery requests, without adding to or wholly rewriting them in order to impose reasonable limits on Plaintiffs’ demands.[1] Hopefully this will begin to provide the Waldens with realistic, practical discovery responses that are not overly or disproportionately burdensome to BNY Mellon, so that counsel can move this matter promptly forward to a hearing on class certification before the Court.

a. Documents

It is logical to assume Defendants had “documents” during the time the Waldens were BNY Mellon customers which in general terms directed and guided their wealth managers on a company-wide basis “how to invest funds pursuant to the discretionary investment management services...”, and that such documents included “training material or investment guidelines provided to wealth managers who provide discretionary investment management services.”[2] If they exist, they should be produced (if they have not been already, see Defendants’ Response in Opposition, at 14) for the time period the Waldens had accounts at the Bank, and for the period(s) of time dictated by the substantive statute of limitations underlying the relevant cause of action(s) (or for a reasonable time before they commenced). Such “Documents” may be stored in hard copy or electronically; they thus could constitute “ESI.” But such “Documents” are not understood in the context of this RFP here to be “communications,” i.e., individual email, which will be treated separately below. They may also be stored by some individual or by a group of individuals, a corporate department, remotely or onsite, and on and on. It is for this reason Defendants are in the best position to decide how best to design and conduct their searches. Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 Civ. 0293 (LTS)(JCF), 2017 U.S. Dist. LEXIS 78217 (S.D.N.Y. May 18, 2017).[3]

*4 There remains the choice of custodian(s) for such document searches. The parties’ submissions suggest that both sides believe that members of the “Solutions Strategy Committee” are the most likely custodians to have responsive “Documents,” Plaintiffs’ Renewed Motion, Exh. B (Jon Chally email to Perry A. Napolitano, etc., June 8, 2022, and Exh. B thereto) (providing a list of its eight “2020 Voting Members”). But Plaintiffs also indicate they are willing to narrow their designation “if Defendants provide more information regarding the role of each person on the Committee.” If Plaintiffs can narrow their list, they not only should, they must, just as Defendants should assist them in doing so. Each additional custodian whose ESI must be obtained through device imaging, database searching and segregation, and server downloads represents additional cost, which the rules impose a duty on all sides to minimize. Counsel for the parties shall thus attempt to identify and limit the number of Solutions Strategy Committee members to a reasonable subset of no more than four (4) custodians within three days from the date of this R&R, or immediately report to the Special Master that the issue has not been resolved. Should that occur, the undersigned will promptly entertain a brief telephone conference to resolve the issue(s), first by attempting to mediate and reach consensus among the parties, and if necessary, by deciding the issue and putting it to rest.

Plaintiffs complain that Defendants are willing to conduct ESI discovery for only three Walden-related wealth manage advisors (“Advisors”) and three compliance personnel involved with the Waldens’ accounts. Renewed Motion, at 12. Exhibit B to this, however, indicates that they acquiesced to this designation Defendants made. (Attachment to June 8, 2022 email from Jon Chally to all counsel, listing “Walden advisors or BNY employees otherwise affiliated with Waldens,” listing six persons.)

b. Communications

RFP No. 4 also seeks “communications,” a broad term with many meanings, from merely an enclosure letter or email communicating to the entire investment manager workforce a new guidance “document,” see above, or reemphasizing an existing one; to addressing specific conduct of individual wealth managers; to addressing specific investment decisions for specific clients. As written, the undersigned cannot in good faith require defense counsel to comply with this part of the request without limitations as to what they seek.

Nor do their original proposed search terms provide assistance in fashioning an RFP both sides can accept. See Plaintiffs’ Renewed Motion, Exh. B, p. 2 – 3, as any search would likely capture almost every single email from a given custodian (e.g., “solution*,” “disclose*,” “Dreyfus,” “merge*,” “duty,” etc.). And their amended, shorter list of terms has little practical effect on the universe of documents a search for such terms would yield. See Plaintiffs’ Renewed Motion, Exh. A (e.g., “investment committee,” “model portfolio*,” “except* invest*/10,” “action plan,” “fiduciary”).

Plaintiffs can discuss alternatives with counsel, or not; reword or resubmit this RFP, or not; or otherwise await compliance with their other RFPs and refashion their search terms for this RFP further, or take some other action entirely, at their discretion. In the meantime, an order to produce communications according to the search terms Plaintiffs propose in their Renewed Motion, as to both Exhibits A and B, is hereby denied.

Similarly, if Plaintiffs believe the time frame noted above is overly restrictive, and want documents for more than, e.g., 5 – 10 years be produced, they should agree on a logical sampling protocol, e.g., every other one of the years in question. If they wish to address the choice of custodians, they must also work with opposing counsel, keeping the decisions and especially the process used to reach them in this R&R in mind. Likewise, should Defendants believe the description of “documents” requires further clarification, remains overly burdensome or otherwise objectionable, requires a search of too many custodians, etc., they must consult with Plaintiffs. If agreement cannot be reached promptly to serve the interests of discovery progress for Plaintiffs in a way that does not disproportionately burden Defendants or revisit the decisions set out here, the undersigned shall entertain brief telephone consultations at the request of either party to assist in resolving the dispute(s), hopefully through consensus building. Should that prove impractical, the undersigned will enter a brief order deciding the issue. Such consultations will take place within hours of any request; where the dispute eludes consensus, the decision will issue promptly, and certainly within 24 hours. Discovery cannot be delayed further.

*5 Request No. 7: All Documents and Communications concerning Defendants’ understanding of their contractual, statutory, common law, or other obligations to the Class, including, but not limited to, their obligation to “be a fiduciary with respect to the discretionary investment management powers set out in” agreements with the Class.

Defendants will not be compelled to respond to this RFP as currently phrased. Any documents containing Defendants’ “understanding of their contractual, statutory, common law, or other obligations to the Class” would likely be withheld as confidential under BNY Mellon's corporate attorney-client privilege. Conceivably, Plaintiffs could seek documents and other discovery of how Defendants instructed or communicated or carried out whatever actions they took in order to fulfill some obligation under contract, but this RFP does not do that. In addition, this RFP seeks only marginally relevant discovery. Plaintiffs’ surviving causes of action are based first in contract. The obligations Defendants owed to the Waldens, and their putative class members thereunder is for the Court to determine based on its contractual interpretation of Defendants duties under such contracts’ terms, not Defendants’ subjective intent towards or understanding of them. And under the UTPCPL, the intent of a party allegedly engaging in an unfair or deceptive act requires scienter in only 3 of its 21 subparts. 73 P.S. §§ 201-1 – 201-9.2 (Sec. 201.2 (x) (“Advertising goods or services with intent not to supply reasonably expectable public demand,” not relevant here); (xv) (“Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed,” also not relevant here); and, the final, general “catch-all” subpart, (xxi) (“Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding”) the only one relevant here.

Request No. 8: Policies, procedures, reports, or similar summary documents concerning Defendants’ efforts to comply with their promise that “Manager will not ... exercise ... discretion to purchase, review or vote any securities issued by BNY Mellon, its subsidiaries or affiliates,” as set forth in paragraph 49(c) of the First Amended Complaint [ECF No. 40 at 16], or any other promise to any Class member that Defendants would not invest discretionary investment management clients’ funds in BNY Mellon Securities (as that term is used in Your investment advisory agreement); and,

Request No. 9: Policies, procedures, reports, or similar summary documents concerning Defendants’ compliance or noncompliance with their promise to members of the Class that “Manager will not ... exercise ... discretion to purchase, review or vote any securities issued by BNY Mellon, its subsidiaries or affiliates,” as set forth in paragraph 49(c) of the First Amended Complaint [ECF No. 40 at 16], or any other promise to any Class member that BNY Mellon would not invest discretionary investment management clients’ funds in BNY Mellon Securities (as that term is used in Your investment advisory agreement.

*6 Certainly, discovery about “any other promise to any Class member” as each of these RFPs seek is overbroad and will not be enforced for that reason alone; such a request also strays broadly into what the undersigned perceives as true class discovery (as to every class member), and class certification discovery (as to the numerosity and commonality of some practice or occurrence, on a representative basis). However, documents and “communications” as to whether in fact Defendants’ wealth managers were engaged in the “... exercise ... [of] discretion to purchase, review or vote any securities issued by BNY Mellon, its subsidiaries or affiliates;” what Defendants did to prevent or stop them, if anything; how wealth managers who exercised such discretion were trained, instructed or managed so that they complied with BNY Mellon's’ commitments, is relevant, and seems relatively important. But as presently phrased, it is not possible to identify with specificity what types of responsive “policies, procedures, reports, or similar summary documents” Plaintiffs seek: training materials and investment guidelines, as per RFP No. 6? Internal disciplinary records for wealth managers who failed to carry out such contractual obligation(s)? Internal compliance communications concerning job performance of individual wealth managers, based on how they made discretionary investments, and what if any rules, policies or guidelines wealth managers were following in making discretionary investment purchases? Internal audit and compliance programs which might have tested for this specific issue? Without more, there is simply no way to order meaningful compliance with production demands absent reasonable limitations to provide additional, reasonable and certain direction to the responding party. What opposing counsel might believe is reasonable compliance to the request as phrased presently in these two RFPs cannot avoid disappointing Plaintiffs, with the choice of documents and communications opposing counsel might identify and produce in response. Absent further definition or restriction in line with the above, Defendants need not produce documents in response to RFP 8 yet.

If serious about seeking compliance with these requests, Plaintiffs’ counsel should waste no time in following up with their counterparts and hammer out specific language with limiting characteristics concerning the items they seek as to types of documents (from corporate wide sources, and not as to individual accounts and account representatives, save for the Waldens, if at all); limitations on time frames from which such documents are sought, in order to obtain evidence concerning class certification; and realistic guidance as to what Plaintiffs are looking to receive in terms of specific documents such as may be responsive hereto. Should (or when) that happens, this R&R, infra, at p. 6-9, identifies potential custodians, time frames, and other limitations, as the undersigned would find acceptable for application to this Request, as well as streamlined procedures to promptly enlist the undersigned to work on reaching consensus or simply decide the issue.

Request No. 10: Policies, procedures, reports, or similar summary documents concerning the purchasing of Affiliated Funds for discretionary investment management accounts.

On its face, this request is rationally related to the issues Plaintiffs raise in their Complaint: company documents about wealth managers buying “Affiliated Funds” for their discretionary investment management account clients. With the limitations applied to the previous requests, this one is similarly approved, with the logical limitations which could be applied here from RFP No. 4: types of documents (from corporate wide sources, and not as to individual accounts and account representatives, save for the Waldens, if at all); limited time frames from which such documents are sought, in order to obtain evidence concerning class certification; and realistic guidance as to what in terms of specific documents Plaintiffs are looking to receive, as may be responsive hereto.

Request No. 11: All Documents and Communications concerning commissions, fees, incentive payments, or other compensation received by Defendants and/or their agents and/or employees in connection with the provision of discretionary investment management services to Plaintiffs, including but not limited to commissions, fees, incentive; and,

Request No. 12: Policies, procedures, reports, or similar summary documents concerning commissions, fees, incentive payments, or other compensation received by Defendants and/or their agents and/or employees in connection with the provision of discretionary investment management services to Class members, including but not limited to commissions, fees, incentive payments, or other compensation derived from the practice of purchasing Affiliated Funds.

Again, these two RFPs on their face seek relevant answers to part of a major claim Plaintiffs’ lawsuit makes: that Defendants rewarded individual wealth managers for buying only pre-approved funds for their managed accounts, and penalized those who did not (see supra, at Sec. C). Defendants’ “Documents and Communications” as well as BNY Mellon's “Policies, procedures, reports, or similar summary documents” concerning payment of compensation, commissions, bonuses, etc. to wealth managers for making discretionary investments, and especially making discretionary investments a certain way, would no doubt provide valuable discovery. As written, however, the RFP cannot be enforced; instead, compliance with the requests, again, will be approved only in part and denied as to the rest of the requests.

*7 Production of “documents,” shall be made according to the limitations described above in response to RFP No. 4. As with that request, the production of “Communications” will not be compelled, pending agreement on search terms. Nor will the production of “policies, procedures, reports, or similar summary documents” be required to be produced absent agreement among counsel as set out in the above decision concerning RFP No. 9, above.

D. Conclusion

Plaintiffs’ Requests for Production 4, 8, 9, 10, 11 and 12 are approved in part and denied in part as further indicated herein. Defendants must produce documents responsive to Plaintiffs within twenty (20) days of successfully concluding additional consultations with opposing counsel, as the R&R further directs. The Motion to Compel production as to RFP No. 7 is denied.

Counsel are directed to meet and confer within three (3) days of this Report & Recommendation, and prepare to briefly report on progress to the undersigned by mutually convenient videoconference (proposed for 10 a.m. on Thursday or Friday, September 22 or 23, 2022, schedules permitting), to address the necessary efforts called for in this R&R.

DATED this 19th day of September, 2022.

This is consistent with the role which courts have assigned to special masters. See generally, Scheindlin, Hon. Shira A. & Jonathan M. Redgrave, Special Masters And E-Discovery: The Intersection Of Two Recent Revisions To The Federal Rules Of Civil Procedure, 30:2 CARDOZO LAW REVIEW 348, 383.

The reference in the RFP 4 to “regarding decisions” (“All internal Documents and Communications regarding decisions about how to invest funds ...”) is, at least to the undersigned, unclear in its meaning or direction, and is therefore disregarded as surplusage at this stage of discovery.

Relying on The Sedona Conference, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, at ii (Princ. 6) (2007), http://www.thesedonaconference.org.