*1 Before the Court is Petitioner Teachers Insurance and Annuity Association of America's (“Petitioner”) Motion for Review of Order. (“Motion,” Dkt. 46).

After considering all the papers filed in support of, and in opposition to, the Motion, the Court deems this matter appropriate for resolution without a hearing pursuant to Local Rule 7-15. The Court DENIES the Motion.

This motion concerns a request for discovery served on Petitioner in the underlying action Allen L. Munro et al v. University of Southern California et al, No: 2:16-cv-06191-VAP (Ex) (“Munro”). Munro is an ERISA class action alleging, inter alia, that USC breached its fiduciary duties to participants in USC's employer-sponsored retirement plans (“Plans”) by overcompensating the Plans' recordkeeper. Petitioner, who is not a party to the case, provided recordkeeping services to the Plans. Plaintiffs Allen L. Munro et al (“Plaintiffs”) are a class of participants and beneficiaries on behalf of the USC Defined Contribution Retirement Plan and the USC Tax Deferred Annuity Plan.

On July 24, 2021, the Office of the Attorney General of the State of New York (“OAG”) and the United States Securities and Exchange Commission (“SEC”) announced settlements of claims that Petitioner's subsidiary made “materially misleading” statements to pressure participants in employer-sponsored retirement plans to move investments into higher-cost accounts. (Opposition, “Opp'n,” Dkt. 49, at 1). Petitioner's subsidiary was required to pay fines and disgorge profits in an amount exceeding $97 million. Id. at 2.

On August 20, 2021, the Munro Plaintiffs served Petitioner with a subpoena seeking all documents that Petitioner produced to the OAG, the SEC, and other regulators in connection with the investigation. (Opp'n, at 3; Dkt. 11-1). Plaintiffs claimed that these documents were relevant to their allegations that USC breached its duty to monitor the actions of its recordkeeper, TIAA. Petitioner objected to the subpoena as burdensome and overly broad. It claimed that the vast majority of the 385,000 documents in question were internal records and communications that contained no reference to USC or Plan participants, and that only 109 USC Plan participants participated in the regulatory settlements. See Dkt. 11-6. Petitioner offered to produce documents and information related to those 109 Plan participants but refused to produce the remainder of the documents from the OAG/SEC investigation. See Dkt. 11-7. The parties ultimately failed to come to an agreement as to the scope of the subpoena.

Petitioner filed a Motion for a Protective Order in the Southern District of New York on November 18, 2021, which was transferred to this Court. Petitioner argued, “inter alia, that some or all of the subpoenaed documents [we]re: (1) irrelevant or not proportional; (2) unduly burdensome to produce; (3) privileged; and (4) being sought for an improper purpose.” (Dkt. 45, at 1). On March 18, 2022, Magistrate Judge Charles F. Eick denied Petitioner's Motion. (Dkt. 45). Judge Eick analyzed Petitioner's arguments under Federal Rule of Civil Procedure 26(b) and concluded that the documents sought by the subpoena were relevant to the parties' claims or defenses in the Munro action and were proportional to the needs of that case. Id. In response to Petitioner's concerns that the documents would be used in a related class action that the parties are involved in, Carfora v. TIAA, No. 21-08384 (S.D.N.Y), Judge Eick also issued a protective order stating the following: “The parties to Munro, et al. v. University of Southern California, et al. and their respective counsel shall not use any discovery obtained in that action for any purpose other than the litigation of that action.” Id. at 3.

*2 In the instant Motion, Petitioner requests this Court set aside or modify the Magistrate Judge's order pursuant to Federal Rule of Civil Procedure 72. Petitioner contends that the Order erred by failing to analyze proportionality and imposing disproportionate discovery burdens on a non-party. Petitioner also renews the privilege argument it made before the Magistrate Judge, arguing that the bank examiner's privilege prevents Petitioner from unilaterally turning over the documents produced to the banking and insurance regulators. The Munro Plaintiffs filed their Opposition on April 18, 2022 (Dkt. 49) to which Petitioner filed a Reply on April 25, 2022. The University of Southern California and the USC Retirement Plan Oversight Committee also filed a Brief in Support of Petitioner's Motion for Review on April 8, 2022 (Dkt. 48).

A party objecting to a magistrate judge's order must show it to be “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636 (b)(1)(A). A reviewing district judge will hold a magistrate judge's findings of fact “clearly erroneous” only if the district judge has “a definite and firm conviction that a mistake has been committed” by the magistrate judge. Concrete Pipe & Prods v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993); see, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 971 (C.D. Cal. 2010). “Under this standard of review, a magistrate's order is clearly erroneous if, after considering all of the evidence, the district court is left with the definite and firm conviction that a mistake has been committed, and the order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Yent v. Baca, No. 01-10672-PA, 2002 U.S. Dist. LEXIS 28776, at *4 (C.D. Cal. Dec. 12, 2002).

Petitioner first argues that this Court should review de novo the Order's legal conclusions to determine whether they are contrary to law. (Motion, at 8). Citing out-of-circuit authority, Petitioner contends that de novo review applies because the underlying Order “resolved this miscellaneous action in its entirety” and “is a ruling on a dispositive matter.” Id. at 9.

Petitioner's argument fails as a matter of law. “To determine whether a motion is dispositive,” courts “look to the effect of the motion, in order to determine whether it is properly characterized as ‘dispositive or non-dispositive of a claim or defense of a party.’ ” Flam v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015). “A motion to quash typically involves a subpoena for discovery in connection with a pending lawsuit. In that situation, the motion is non-dispositive because it disposes of an ancillary discovery issue, and not a party's claim or defense.” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 880 (N.D. Cal. 2020).

Here, it is clear the underlying Order did not dispose of any party's claim or defense; rather, it merely resolved an ancillary discovery issue concerning the scope of a subpoena. The Court therefore reviews the Order under the clearly erroneous standard.

A. Proportionality

Petitioner primarily argues that the Order failed to adequately consider proportionality in regulating discovery. Under Rule 26(b)(1), discovery must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26. Rule 45(d)(3) additionally instructs that a “court... must quash or modify a subpoena that ... subjects a person to undue burden.” Fed. R. Civ. P. 45.

*3 The Order's proportionality analysis is not clearly erroneous or contrary to law. The Order weighed the proportionality of the subpoena and concluded that “the documents sought by the subpoena are ‘relevant’ to the parties' claims or defenses ... and are ‘proportional’ to the needs of that case, within the meaning of Rule 26(b)(1) ....” (Dkt. 45, at 1). The Order also analyzed the potential of “undue burden” to Petitioner and concluded that “[p]roduction of the subpoenaed documents would not subject TIAA to any ‘undue burden’ within the meaning of Rule 45(d)(3)” because TIAA has already produced these same documents in connection with the July 2021 settlements. Id. at 2.

Petitioner disagrees with the Magistrate Judge's findings, but it does not identify any legal or factual errors. Petitioner does identify some cases where courts found discovery orders to be overbroad or burdensome, but these are factually inapposite and would not disturb the Order here. For example, this is not a case where Petitioner must engage in “a claim-by-claim review of more than 100,000 claim files” to comply with a discovery request, contra St. Paul Fire and Marine Insurance Co. v. North Am. Capacity Insurance Co., 2013 WL 12076482, at *5 (S.D. Cal. May 10, 2013), nor one where Petitioner must review “an additional 400,000 documents,” after having already “manually reviewed 650,000 unique documents,” contra In re eBay Seller Antitrust Litig., No. C 07-1882 JF (RS), 2009 WL 10694848, at *2 (N.D. Cal. July 13, 2009).

Moreover, some of Petitioner's arguments about undue burden are moot because they run contrary to the ruling. Petitioner claims it will need to spend $300,000 to redact sensitive personal information from the documents concerning clients who have no relation to USC or the Plans. (Motion, at 15). Yet the Order specifically explained that “no redaction of the subpoenaed documents will be necessary to safeguard privacy interests or otherwise,” because of the Stipulated Protective Order filed August 11, 2017, and the Protective Order issued with the ruling. (Dkt. 45, at 2). Petitioner's attempts to relitigate this issue are not grounds for the Court to correct or modify the Order.

Petitioner also argues that the majority of the documents in question are not relevant to Plaintiffs' claims because they contain information about non-USC, non-Plan participants. But Plaintiffs are alleging that Petitioner engaged in the same activities with USC Plan participants as it did with participants in other Plans—instituting deceptive marketing practices for cross-selling purposes. The Court agrees that “evidence that supported the settlement decisions with the OAG and SEC is clearly relevant to Plaintiffs' case against the USC Defendants.” (Opp'n, at 7); see also Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998) (“Rule 26(b) is liberally interpreted to permit wide-ranging discovery of all information reasonably calculated to lead to discovery of admissible evidence.”).

Petitioner also claims the Order “overlooked” its non-party status, which it contends imposes a higher standard in the proportionality analysis. The Court disagrees. Non-party status is one factor courts look to when deciding a discovery dispute, but it is not dispositive. See Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed.Cir.1993) (“Although Rule 26(b) applies equally to discovery of nonparties, the fact of nonparty status may be considered by the court in weighing the burdens imposed in the circumstances.”). Here, Petitioner's conduct as the Plan recordkeeper is deeply intertwined with the claims in the Munro litigation. Taking into consideration Petitioner's non-party status would not change the conclusions in the Order.

B. The Bank Examiner's Privilege

*4 Petitioner also argues the Court erred in its analysis of the bank examiner's privilege, which “protects agency opinions and recommendations, as well as banks' responses to those opinions and recommendations, from disclosure.” United States v. Heine, No. 3:15-CR-00238-SI-2, 2016 WL 1270907, at *9 (D. Or. Mar. 31, 2016) (citations omitted). The Order concluded that Petitioner lacked standing to assert the privilege. Petitioner argues now that it is not attempting to assert the privilege on its own; rather, Petitioner claims it must “identify from among the approximately 385,000 documents subject to the Order those that are potentially subject to a bank examination privilege, and then notify regulators and afford them the opportunity to intervene with the Court.” (Motion, at 17).

The Order did not err with respect to this issue. As it noted, “[t]he bank examiner's privilege belongs to the agency and must be asserted by it; ‘it can neither be claimed nor waived by a private party.’ ” Id. (citations omitted). No bank examiner has intervened under these circumstances. In any event, Petitioner's reported difficulty with notifying regulators about any potentially privileged document is not grounds to correct or modify the Order.

The Court therefore DENIES Petitioner's Motion to Review.

IT IS SO ORDERED.