Hoehl Family Found. v. Roberts
Hoehl Family Found. v. Roberts
2023 WL 3271517 (D. Vt. 2023)
April 13, 2023

Crawford, Geoffrey W.,  United States District Judge

Privilege Log
Failure to Produce
Cost Recovery
Proportionality
Form of Production
Redaction
Waiver
Manner of Production
Clawback
Metadata
Native Format
In Camera Review
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Summary
The court ordered Defendants to produce complete and accurate metadata for a subset of approximately 10,000 documents by June 1, 2023, as well as documents to or from the SEC relating to the investigation that the SEC opened regarding Eideard's conduct. The court also ordered Defendants to review documents with redactions and to supply a report by June 1, 2023 indicating which redactions are for privilege. Each party was ordered to bear its own fees and expenses.
Additional Decisions
THE HOEHL FAMILY FOUNDATION, Plaintiff,
v.
RONALD L. ROBERTS, JOHN P. AUBIN, KEVIN D. GABORIAULT, THE EIDEARD GROUP, LLC, and ROBERTS ASSET MGT., LLC, a/k/a ROBERTS ASSET MANAGEMENT, LLC, Defendants
Case No. 5:19-cv-229
United States District Court, D. Vermont
Filed April 13, 2023
Crawford, Geoffrey W., United States District Judge

ORDER ON MOTIONS TO COMPEL (Docs. 147, 153)

*1 The Hoehl Family Foundation (the “Foundation” or “HFF”) has filed a ten-count Amended Complaint against the above-captioned individuals and companies involved in providing investment management services to the Foundation. The claims concern the use of $1 million in Foundation funds to purchase an equity interest in G-Form, LLC (“G-Form”), a manufacturer of protective sports equipment. (See Doc. 11.) The court granted Defendants’ motion for partial dismissal in part on October 15, 2020, dismissing Count X and the portions of Counts I and II that were brought against Mr. Roberts and Mr. Aubin. (Doc. 76.) The court also granted portions of Plaintiffs’ February 2021 motion to compel in an order dated May 27, 2021. (Doc. 106.)
Also in May 2021, BDP Holdings, LLC (“BDP”)—an entity that is majority owned by members of the Hoehl family and whose assets several of the defendants managed (see Doc. 11 ¶¶ 10, 16, 25)—sued Defendants in New Hampshire state court. (See Docs. 148 at 3 n.2; 151-2 ¶ 5); see also BDP Holdings, LLC v. The Eideard Grp., LLC, No. 216-2021-CV-00315 (N.H. Super. Ct. filed May 19, 2021). Discovery in the New Hampshire case and in this federal case has been proceeding jointly. (See Doc. 151-2 ¶ 5.) This federal case was stayed from June 2021 through July 2022 while the parties engaged in mediation. (See Docs. 114; 136.) The mediation did not result in a settlement.
Currently pending are two motions to compel, both filed by the Foundation. (Docs. 147, 153.) In the motion filed in January 2023, the Foundation asserts that Defendants have “delayed, obfuscated and obstructed the discovery process, and have consistently insisted on inverting the burden of production.” (Doc. 147 at 1.) Defendants oppose the Foundation's motion (Doc. 151) and the Foundation filed a reply (Doc. 152). In the motion to compel filed in February 2023, the Foundation seeks to compel Defendants to produce documents that the Foundation asserts were improperly claimed as privileged. (Doc. 153.) Defendants filed a partial opposition (Doc. 158) and the Foundation filed a reply (Doc. 161). The court heard argument on both motions on April 12, 2023.
Legal Standard
“A party may move for an order compelling disclosure or discovery under Federal Rule of Civil Procedure 37(a).” Troy Boiler Works, Inc. v. Long Falls Paperboard, LLC, No. 2:21-cv-30-wks, 2022 WL 855543, at *1 (D. Vt. Mar. 23, 2022). Rule 26 specifies the default scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
*2 Fed. R. Civ. P. 26(b)(1). Rule 26 also requires the court to limit the frequency or extent of discovery if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C). The court has “broad discretion” in deciding motions to compel. Country Home Prods., Inc. v. Banjo, No. 2:15-cv-00037-cr, 2016 WL 9344261, at *1 (D. Vt. Nov. 14, 2016) (quoting Fin. Guar. Ins. Co. v. Putnam Advisory Co., 314 F.R.D. 85, 87 (S.D.N.Y. 2016)).
Analysis
I. Motion to Compel Filed January 2023 (Doc. 147)
The Foundation seeks to compel Defendants to rectify allegedly incomplete discovery responses in four areas. First, the Foundation contends that Defendants have improperly produced documents without original metadata and in a manner other than the way the Defendants kept the documents in the usual course of business. Second, the Foundation faults Defendants for producing materials related to only three of twenty-two requests that the Securities and Exchange Commission (“SEC”) sent to The Eideard Group, LLC (“Eideard”). Third, the Foundation seeks to compel Defendants to produce a physical binder with information on Eideard employees’ stock holdings that Eideard's Chief Compliance Officer maintained. Finally, the Foundation requests that the court compel Defendants to produce attachments that are missing from a number of documents and to produce a smaller number of documents that are not readable due to technical problems. (Id. at 2–3.)
Defendants oppose the Foundation's motion. (Doc. 151.) They assert that the motion should be denied because the document production was “essentially completed” in early 2022 and the Foundation re-producing the materials “would entail substantial additional expense.” (Id. at 1.) Defendants further contend that re-production of the documents is unnecessary because the Foundation has had full access to and ability to search the 400,000-page production for an ample period of time. (Id.) The court considers each of the four areas of discovery that the Foundation moves to compel, beginning with the metadata issue, which the Foundation describes as “perhaps [the] most critical[ ].” (Doc. 147 at 2.)
A. ESI and Metadata
The court approved a stipulated discovery order in this case on February 27, 2020. (Doc. 20.) The order provided, in part, that unless otherwise noted, electronically stored information (“ESI”) would be produced with searchable text in the following formats:
native files; single-page TIFFs or PDFs (with load files for e-discovery software that includes metadata fields identifying natural document breaks and companion OCR and/or extracted text files). For any production made in non-native format, the producing party shall preserve the integrity of the underlying ESI, including original formatting, file structure (e.g., files attached to email), and metadata. The parties may de-duplicate their ESI production across custodial and non-custodial data sources.
*3 (Id. at 1–2.) The order further provided that “Unless otherwise agreed to by the parties, files that are not easily converted to image format, such as spreadsheet, audio, and video files, shall be produced in native format ....” (Id. at 2.)
The Foundation subsequently served Eideard with its First Set of Interrogatories and Requests to Produce dated April 17, 2020. (Doc. 148-13.) Paragraph “N” of a “Definitions and General Instructions” section defined “Document” to include “all metadata and hidden data” such as that “maintained by an application program and metadata maintained about a file by the operating system or by other programs.” (Id. at 3.) The definition further specified:
For the avoidance of doubt, metadata and hidden data include without limitation: the computer or server name and fully qualified location (path) upon which the electronically stored information was located, the dates and times associated with the creation, modification and last access to the electronically stored information, and, to the extent they exist, author name or initials, company or organization name, names of previous Document authors, Document revisions and versions, hidden text or cells, template information, other file properties and summary information, non-visible portions or embedded objects, personalized views and comments.
(Id.) Paragraph “Z” stated:
Electronically Stored Information (“ESI”) shall be produced in a format that preserves all metadata. Acceptable formats include: native files; single-page TIFFs or PDFs (with load files for e-discovery software that includes metadata fields identifying natural document breaks and companion OCR and/or extracted text files). For any ESI productions made in non-native format, You shall preserve the integrity of the underlying ESI, including original formatting, file structure (e.g., files attached to e-mail), and metadata. Unless otherwise agreed to by the parties, files that are not easily converted to image format, such as spreadsheet, audio, and video files, shall be produced in native format.
(Id. at 6.)
In written responses dated May 22, 2020, Defendants objected to the Foundation's “Definitions” and to the “General Instructions” insofar as they “call for or encompass information outside the scope of that required under the Federal Rules of Civil Procedure, the Local Rules of this Court, or other applicable law.” (Doc. 147-2 at 1, 2.)
After receiving the Foundation's requests, Defendants engaged Consilio as their electronic discovery servicer. (Doc. 151-2 ¶ 2.) Defendants provided Consilio with access to their computer systems and Consilio performed a “full and comprehensive retrieval” of documents matching search terms upon which the parties had agreed. (Id.) Defendants began producing documents in response to the Foundation's requests on February 12, 2021. (Id. ¶ 4.) Defendants produced 39,557 pages of documents on that date. (Id.) Defendants produced additional documents on a “rolling” basis through February 2022. (Id.)[1] The parties agree that the majority of these documents are emails. (See Docs. 147 at 4 n.3; 151 at 5.)
*4 In a letter addressed to counsel for Defendants dated May 11, 2021, counsel for the Foundation asserted several deficiencies with Defendants’ productions. (Doc. 148-2.) Two of the asserted deficiencies explicitly concerned metadata. First, the Foundation asserted that “Defendants’ recent document productions include at least 9,588 documents with missing filenames and file extensions” and that “Defendants’ failure to include this metadata prevents the Foundation's e-discovery vendor from correctly classifying these documents as e-mails, which in turn makes the documents harder to review and search.” (Id. at 1.) Second, the Foundation noted that Defendants had produced “at least 5,658 documents with incorrect metadata in the ‘date created’ field.” (Id.)
In a response dated May 26, 2021, counsel for Defendants advised that “the DAT files included with our production do include file type (including for emails), which will allow you and your vendor to identify any emails in our productions.” (Doc. 148-3 at 2.) Defendants further stated that “[t]he discrepancies you might see regarding the ‘Create Datetime’ field do not indicate errors, but rather may reflect changes made to servers, file organization, etc. occurring at Eideard that resulted in created dates being updated.” (Id.) Defendants explained:
Our vendor collected the documents being produced in their native form directly from the locations where they resided. We also note that in addition to the “Create Datetime” field our productions include the “Email Sent Datetime” field, which accurately reflects the dates the emails were sent. We will also be adding a “File Datetime” field to the DAT files for future productions.
(Id.)
Counsel for the Foundation responded by letter dated August 17, 2021. (Doc. 148-4.) That letter mentioned the Foundation's instruction to preserve the integrity of ESI (including file structure and metadata) but only in the context of objecting to documents that were missing attachments. (See id. at 2.) The letter requested that Defendants advise when they intended to complete their final production with amended discovery responses, noting that “[a]s it stands, the Foundation has no way of determining which of the supplemented documents are responsive to which requests.” (Id.)
A year later, in a letter addressed to defense counsel, BDP's counsel raised several issues related to discovery. (See Doc. 148-17 at 1 (letter dated August 8, 2022).) Lawyers for the Foundation, BDP, and Defendants conferred by video on August 18, 2022.[2] (Doc. 148 ¶ 36.) The Foundation's counsel asserts that they discussed “how original metadata had not been retained because Defendants moved documents from where they are stored in the ordinary course of business to intermediary folders in preparation for document production.” (Id.) The Foundation asserts that Defendants’ counsel “acknowledged that Defendants moved documents to new folders in order to then transmit documents to their counsel for document review prior to production” and that “metadata was stripped during this process.” (Id.)
Counsel for the Foundation suggested that Defendants provide screenshots of Eideard's D: Drive—i.e., a “folder tree”—and that Defendants identify which document came from which folder(s). (Id. ¶ 37.) Defendants’ counsel refused to provide the “folder tree” citing concerns about client confidentiality. (Id. ¶ 38.) Counsel for the Foundation proposed redacting other clients’ names or marking the folder tree as “for attorneys’ eyes only.” (Id. ¶ 39.) Defense counsel stated that he would “check with his clients about producing a limited folder tree of just the compliance folder for the Foundation and/or BDP.” (Id.)
*5 In a letter dated August 26, 2022, counsel for Defendants responded to BDP's August 8, 2022 letter, cc'ing the Foundation's counsel. Defendants stated, among other things: “We are ... glad to provide Metadata references for specific documents for which you have legitimate questions.” (Doc. 148-17 at 1.) Defendants declined, however, to provide “a full map of the Eideard D Drive,” explaining that “this would necessarily cause Eideard to breach its obligations to other clients.” (Id. at 2.) Instead, defense counsel provided two screenshots that he represented were “all portions of the D Drive that are the sources of documents produced in the two cases.” (Id. at 2; see also id. at 3–4 (screenshots).)
The Foundation asserts that the screenshots do not show all such portions of the D: drive, and instead only show the structure for two folders: “R & A Venture Capital II, LLC (Global Tech)” and “R & A Venture Capital III, LLC (G-Form).” (Doc. 148 ¶ 40.) The Foundation states that discovery in this case[3] has shown the existence of other folders—such as “Compliance,” “quarterly reports,” and “SEC Examination”—and that those folders are highly relevant to this case. (Id.) The Foundation further notes that the screenshots show subfolders that were not expanded or visible. (Id.)
Defendants assert that the Foundation did not raise the metadata issues that are the subject of its motion to compel until a meet-and-confer on August 26, 2022. (Doc. 151-2 ¶ 6.) By that time, according to Defendants, the Foundation “had the benefit of having reviewed over 400,000 pages of documents, and had never previously raised any issue as to metadata.” (Id.) Defendants state that they have expended approximately $200,000 on charges from their electronic discovery vendor Consilio. (Id. ¶ 7.)
On September 2, 2022, Defendants’ counsel produced a spreadsheet containing “file path” metadata. (Doc. 148 ¶ 41; see also Doc. 148-19 (spreadsheet excerpts).) The Foundation concedes that the spreadsheet shows the folder structure for each listed document. (Doc. 148 ¶ 41.) But the Foundation maintains that the spreadsheet does not resolve all the metadata issues because it does not contain fields other than the “file path”—such as author, date created, and date modified. (Id.) The Foundation further argues that the file paths in the spreadsheet do not contain the other folders that the Foundation is aware of (such as “Compliance” or “SEC Examination”) and that the file paths “clearly show that the documents provided had their metadata re-written by being moved to an intermediary folder.” (Id.)
The parties’ attorneys exchanged further emails, with counsel for the Foundation ultimately stating in a September 20, 2022 email:
[I]t seems there is a disconnect between what we're asking for and what you're responding to. We are entitled to have these documents produced with metadata intact under our discovery order in this case. We are also entitled under Rule 34 to have either responses to our document requests or the production of documents as they were stored in the regular course of business. Your clients have not preserved the original metadata of these documents (because they were moved to an intermediate folder) and they have not complied with Rule 34. It is not a question of accessing or opening a document, it is a question of understanding where the documents come from and to what they're responsive.
(Doc. 148-14 at 1.) The Foundation's motion to compel followed.
1. Waiver and Timeliness
Each party accuses the other of failing to timely raise the metadata issues.
a. Defendants’ Timeliness Argument
*6 Defendants assert that the Foundation “failed to raise these metadata issues until August 26, 2022, when counsel for BDP first raised the issue.” (Doc. 151 at 4.) The Foundation maintains that it “repeatedly objected to Defendants’ failure to provide metadata” (Doc. 152 at 4) and that the process took as long as it did because of its “patience with Defendants and its attempts to resolve (what should be) a straightforward discovery issue without needlessly involving the Court” (id. at 6).
Contrary to Defendants’ assertion that the Foundation “never ... raised any issue as to metadata” before August 26, 2022 (Doc. 151-2 ¶ 6), the Foundation's May 11, 2021 letter did raise issues about the metadata in Defendants’ productions. (See Doc. 148-2.) But Defendants’ argument is that the Foundation did not raise the metadata issues presented in the Foundation's motion until August 26, 2022. That argument appears to focus on two issues: which metadata issues were raised, and by whom? The courts starts with the first issue.
The Foundation's May 11, 2021 letter raised two metadata issues: (1) the absence of filenames and file extensions for at least 9,588 documents; and (2) incorrect metadata in the “date created” field for at least 5,658 documents. (Doc. 148-2 at 1.) Defendants addressed those issues in their May 26, 2021 response (Doc. 148-3) and the Foundation's August 17, 2021 reply (Doc. 148-4) did not challenge or otherwise mention Defendants’ responses to the two metadata issues. Defendants assert that the absence of any further discussion of metadata in the August 2021 reply “apparently reflect[s] that this was no longer an issue.” (Doc. 151 at 4.)
The Foundation's August 17, 2021 reply might suggest that Defendants had adequately resolved the metadata issues for the documents that the Foundation referenced in its May 11, 2021 letter. However, at the time of the 2021 exchanges about metadata problems, it does not appear that the Foundation had a basis to conclude that those particular problems reflected any ongoing or larger issue with the metadata in Defendants’ productions.[4]
Consistent with the court's June 30, 2021 Order, Defendants continued to produce documents on a rolling basis through February 2022. (See Doc. 151-2 ¶ 4.) It appears that no further concerns about metadata surfaced until BDP raised the issue at a February 18, 2022 meet-and-confer. The record does not indicate the dates or how many batches of documents Defendants produced between August 2021 and February 2022. Nor is it clear from the record which batches of production during those times contained metadata errors or omissions. The court notes, however, that: (1) most of the documents that Defendants produced were emails and (2) the Foundation's motion seeks metadata associated with non-email documents.[5] Thus it seems likely that the metadata issues with documents other than emails were not apparent at the time of Defendants’ fall 2021 productions.
*7 The court accordingly rejects Defendants’ contention that the Foundation somehow sat on its rights regarding the metadata presently at issue. The court also rejects that argument insofar as it is premised on the fact that the Foundation did not itself raise any metadata issues during the time between its May 2021 letter and the parties’ August 2022 meet-and-confer. Defendants concede that discovery in this federal case proceeded jointly with discovery in the BDP Holdings case in New Hampshire. And BDP did raise metadata issues in February and August 2022. The Foundation joined BDP on those issues at those times. Thus even if the Foundation was not the first to raise the issues at those times, it did raise them by joining BDP.
b. The Foundation's Waiver Argument
The Foundation argues that Defendants have waived any objection to the production of documents with original metadata in place. (Doc. 147 at 8.) It is true that, as this court has previously held, “[i]f the responding party does not assert any objection to the requesting party's format, that objection is waived.” Goldberg v. Dufour, No. 2:17-cv-00061 (D. Vt. Apr. 24, 2020), ECF No. 173 at 3 (citing cases). Defendants do not argue otherwise. But Defendants do not need to dispute that point because it concerns a different issue.
Here, Defendants do not dispute that the parties specified the forms in which ESI would be produced in this case. Defendants’ argument is that, by the time the Foundation raised (or joined BDP in raising) the metadata issues, Defendants had substantially completed their document production. They contend that it would be unduly burdensome for them to incur any additional expense to resolve the metadata issues. The court considers that argument next.
2. Burden, Expense, and Benefit
Defendants argue that requiring production of any more metadata than Defendants have already supplied would be too expensive and that granting the Foundation's motion would be “totally unnecessary” because the Foundation has had sufficient time to review the word-searchable document production. (See Doc. 151 at 1.) The court agrees that—in the language of Rule 26(b)(2)(C)(ii)—the Foundation has had “ample opportunity” to conduct word searches of the documents that Defendants have produced. But as the Foundation correctly observes, it cannot search or review associated metadata that has not been produced. (See Doc. 152 at 3.)
Moreover, the Foundation seeks the metadata as an aid for organizing the productions that it has received from Defendants. (See Doc. 147 at 13 (discussing need “to make Defendants’ productions usable”).) Notably, file-system metadata “makes electronic documents more functional because it significantly improves a party's ability to access, search, and sort large numbers of documents efficiently.” Aguilar v. Immigration & Customs Enf't Div. of U.S. Dep't of Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008). In its reply brief, the Foundation confirms that it seeks “the organizational tools ... to understand the 400,000 plus pages of documents it has received.” (Doc. 152 at 7.)
The court ruled on the metadata at the April 12, 2023 hearing. By failing to produce documents with complete and accurate metadata, Defendants fell short of their discovery obligations. Accord, BDP Holdings, LLC, No. 216-2021-CV-00315, at 7 (N.H. Super. Ct. Apr. 12, 2023) (Defendants’ failure to produce documents in original format did not satisfy their discovery burden). Because the Foundation seeks metadata for non-email documents, the court understands that the metadata issues relate to a set of approximately 10,000 documents—not the entire 400,000-page production. The Foundation is directed to send Defendants a list of that subset of documents, and Defendants are ORDERED to supply complete and accurate metadata for those documents by June 1, 2023. This imposes some burden on Defendants, but, as the New Hampshire court stated, that is “a function of the way in which the defendants chose to respond to the RFPs in the first place.” Id. at 8.
B. Request to Produce No. 10—Eideard Documents Provided to Regulators
*8 The Foundation's First Set of Interrogatories and Requests to Produce requested that Defendants produce “all Documents provided to the Securities and Exchange Commission or other state or federal regulatory body, including without limitation, Documents provided pursuant to 15 U.S.C. § 80b-3.” (Doc. 148-13 at 9, ¶ 10.) In an October 17, 2022 email to defense counsel entitled “SEC Documents,” counsel for the Foundation asserted that “your clients clearly have not produced all the documents” and that “[i]t seems you have allowed your clients to hand pick what documents they deem relevant.” (Doc. 148-15 at 1.) The Foundation explained that it had received copies of the “Additional Requests” numbered 15, 19, and 22 that the SEC had sent to Eideard but that Defendants had not produced (at least) the other 19 “Additional Requests” or any of Eideard's responses to those requests. (Id.)
Defense counsel insists that Defendants have produced “all documents that they provided to and received from the SEC that relate to HFF, BDP and the Hoehls.” (Doc. 151-2 ¶ 9.) He states that the SEC's remaining “Additional Requests” relate to other clients and were not produced because they “have nothing to do with this case.” (Id.) At the April 12, 2023 hearing, counsel for the Foundation explained that the SEC opened an investigation regarding Eideard's conduct with respect to the Hoehls, but that the investigation may have expanded to other Eideard clients.
The court ruled on this issue at the April 12, 2023 hearing. Defendants are ORDERED to produce documents to or from the SEC relating to the investigation that the SEC opened regarding Eideard's conduct with respect to the Hoehls. This includes documents from that investigation relating to other Eideard clients, although Defendants are authorized to redact all of those other clients’ names.
C. Request to Produce No. 20—Eideard Binder on Employee Stock Holdings
Kevin Gaboriault testified at his deposition that his duties as the compliance officer at Eideard included gathering information from Eideard's “access persons” every quarter regarding their investments, and that he maintained a physical binder with the quarterly responses to his requests for that information. (See Doc. 148-11 at 7–8.)[6] After Mr. Gaboriault's deposition, the Foundation requested that Defendants produce the materials from that binder. (Doc. 148 ¶ 26.) Defendants declined to do so, asserting that compliance would be burdensome and that “the documents in question would be cumulative of what has already been produced, with no new information.” (Doc. 148-12 at 1.)
The Foundation argues that Defendants cannot unilaterally decide that the requested documents are “cumulative” and that the Foundation's request that Defendants copy and scan a single binder is not “unduly burdensome.” (Doc. 147 at 18.) Defendants insist that the contents of the binder go “beyond the bounds of this case, extending to confidential materials relating to other Eideard clients.” (Doc. 151 at 7.) Instead of producing the binder, Defendants state that they “are willing to produce those pages from the binder that contain information that is potentially relevant to this case, including any investments by the Defendants made by them on behalf of HFF.” (Id.) Defendants state that they would make that production even though it “would be redundant of other discovery.” (Id.) The Foundation argues in reply that Defendants’ position is “contradictory” because the defense requests that the Foundation's motion on this issue be denied but also agrees to produce extracts from the binder. (Doc. 152 at 9.)
The court ruled on this issue at the April 12, 2013 hearing. The Foundation's interest in discovering evidence of conflicts of interest is sufficient to warrant production of portions of the binder. Defendants are ORDERED to produce all portions of the binder showing the employees’ non-public investments.
D. Missing Attachments and Technical Problems
*9 On November 4, 2022, counsel for the Foundation wrote to defense counsel stating that “[t]here are still 140 documents in Defendants’ productions without the associated attachments” and requesting reproduction of those documents with the missing attachments. (Doc. 148-6 at 1; id. at 3–4 (spreadsheet listing documents missing attachments).) The Foundation also asserts that Defendants have produced 184 documents that are not in a readable format. (Doc. 147 at 19; see also Doc. 148-6 at 1.)
At the April 12, 2023 hearing, the defense agreed to produce the attachments and to resolve the technical issues. This portion of the motion to compel is MOOT.
II. Motion to Compel Filed February 2023 (Doc. 153)
The Foundation asserts that Defendants have “failed to provide an adequate privilege log that allows the Foundation to assess many of Defendants’ claims of privilege” and that “Defendants have withheld documents they incorrectly assert are privileged.” (Doc. 153 at 1.) For relief, the Foundation asserts that, “given Defendants’ serial failures, the Court should treat the privilege as waived with respect to the documents sought by the Foundation.” (Id. at 2.) Defendants oppose the motion to the extent that it seeks production of all documents on the privilege log; they assert that the court should permit Defendants sufficient time to address the remaining outstanding issues. (Doc. 158.)
Five days after the Foundation filed its February 2023 motion to compel, the New Hampshire Superior Court issued an order granting BDP's motion to compel in part and ordering the defendants to produce a revised privilege log. (Doc. 158-1.) In response to that order, Defendants have produced a (sixth) revised privilege log. (Doc. 161-1.) That somewhat narrows the dispute before this court. The court ruled on those remaining issues at the April 12, 2023 hearing. This Order memorializes those rulings.
A. Adequacy of the Privilege Log
The Foundation asserts that Defendants’ latest privilege log is still deficient and seeks a ruling that Defendants have waived the privilege due to their alleged “egregious pattern of delay and failure to comport with the Federal Rules.” (Doc. 161 at 2.) According to the Foundation, the most recent privilege log “fails to identify in which capacity Mr. Roberts was acting for any single entry.” (Id. at 7.) The Foundation argues that a proper privilege log should contain that information. (See Doc. 158-1 at 4.) And the Foundation contends that such information is necessary to evaluate Defendants’ privilege claims in this case because, by serving as a director of G-Form at the same time he was acting on behalf of BDP, Mr. Roberts broke the privilege. (See Doc. 161 at 8 (citing United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999).)
The court ruled on this issue at the April 12, 2023 hearing. The court recognizes that this process has been drawn out but declines to grant a sweeping waiver of the privilege. Instead, the court ORDERS that, for any documents that Defendants have withheld in their entirety, Defendants produce those documents to the court by April 24, 2023. Defendants are instructed to include the 138 “clawback” documents (discussed below) in a separate folder for the court's review.
B. Documents Not Appearing on the Privilege Log
1. The 138 “Clawback” Documents
This is a set of 138 documents that Defendants produced but subsequently requested be “clawed back” on privilege grounds. The Foundation faults Defendants for not providing a privilege log as to these documents. Defense counsel has represented that he is working to produce the full details regarding the 138 documents. As noted above, the court will review this set of documents in camera.
2. The 111 Redacted Documents Removed from the Log
*10 This is a set of documents that appeared on the privilege log at one time, but that Defendants later removed from the log. Defendants have produced all of those documents, albeit with redactions. The court addresses redacted documents next.
3. Redacted Documents
Defendants made redactions on numerous documents—approximately 150,000—but failed to maintain a system to distinguish between redactions for attorney-client privilege and redactions for confidentiality. Although defense counsel represented at the April 12, 2023 hearing that the vast majority of redactions were for confidentiality, at least some of the redactions were for privilege.
As the court indicated at the April 12, 2023 hearing, the only way to determine which redactions were for which purpose is to review each document individually. The court therefore ORDERS Defendants to review the documents with redactions and to supply a report by June 1, 2023 indicating which redactions are for privilege.
III. Fees and Expenses
Finally, the court considers the Foundation's request under Fed. R. Civ. P. 37(a)(5)(A) for an award of the fees and expenses associated with bringing its motions to compel. (Doc. 147 at 20; Doc. 153 at 15.) Because the court grants each motion in part and denies each in part, Fed. R. Civ. P. 37(a)(5)(C) applies. Each party shall bear its own fees and expenses.
Conclusion
Plaintiff's Motion to Compel Complete Production of Documents (Doc. 147) is GRANTED IN PART and DENIED IN PART as stated above.
Plaintiff's Motion to Compel Documents Improperly Claimed as Privileged (Doc. 153) is GRANTED IN PART and DENIED IN PART as stated above.
Defendants must comply within 30 days unless otherwise noted above.
Each party shall bear its own fees and expenses.
The court will schedule periodic status conferences in this case.
Dated at Rutland, in the District of Vermont, this 13th day of April, 2023.

Footnotes

Although the court stayed the case on June 30, 2021, the court specifically directed the parties to continue producing documents notwithstanding the stay of all other aspects of the case. (Doc. 114.) The stay was lifted in July 2022. (See Doc. 136.)
Defendants represent in their memorandum that counsel for the Foundation, BDP, and Defendants also met and conferred on February 18, 2022. (Doc. 151 at 4.) According to Defendants, BDP's counsel raised a metadata issue at that conference and the Foundation's counsel joined BDP on that point. (Id.)
Namely, the deposition of Kevin Gaboriault (see Doc. 148-11).
Defendants’ statement that some of the metadata discrepancies might reflect “changes made to servers, file organization, etc.” (Doc. 148-3 at 2) would have been cause for concern. Such actions can change or delete metadata associated with those files. See Leidig v. Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG), 2017 WL 6512353, at *5 (S.D.N.Y. Dec. 19, 2017) (metadata was changed or deleted when moved to another hard drive containing materials to be produced “thereby deleting the original file and creating a new version with new metadata”); Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274, at *5 (M.D. Fla. Oct. 25, 2013) (“Copying or moving a file alters system metadata.”). But it does not appear that the Foundation could have known precisely what file-system actions Defendants took or whether Defendants or their vendor would be rectifying any potentially resulting metadata problems with future productions.
The Foundation confirms in its reply memorandum that it seeks “metadata for only those documents (not e-mails) missing it.” (Doc. 152 at 3 (emphasis added).)
See also 17 C.F.R. §§ 270.17j-1(a)(1) (defining “access person”) and 275.204A-1 (investment adviser code of ethics).