*1 This case is before the Court on the Motion to Compel Discovery Responses from Trustmark National Bank [416] filed by Alysson Mills, in her capacity as the court-appointed receiver for Arthur Lamar Adams and Madison Timber Properties, LLC (the “Receiver”). Having considered the parties’ submissions and the applicable law, the Court finds that the Motion should be granted in part and denied in part as set forth herein.

The Receiver filed the instant Motion to Compel [416] requesting that the Court compel Trustmark to produce certain information. In her Motion [416], the Receiver identifies three topics of dispute: privilege under the Bank Secrecy Act, production of electronically stored information (“ESI”) in native format, and the need for statements on whether any responsive materials are being withheld.

In response to certain requests for production of documents, Trustmark objected based on a privilege created by the Bank Secrecy Act (“BSA”).[1] The BSA requires banks and other financial institutions “to report any suspicious transaction relevant to a possible violation of law or regulation.” 31 U.S.C. § 5318(g)(1). Federal regulations, promulgated by the Office of the Comptroller of the Currency (“OCC”), require national banks to file a suspicious activity report (“SAR”) “when they detect a known or suspected violation of Federal Law or a suspicious transaction related to a money laundering activity or a violation of the [BSA].” 12 C.F.R. § 21.11(a).

Important to this dispute, SARs “and any information that would reveal the existence of a SAR, are confidential, and shall not be disclosed ....” 12 C.F.R. § 21.11(k). “[T]he [BSA], the OCC's regulations, and case law establish an absolute prohibition on financial institutions from disclosing to third parties information about the filing of a SAR.” BizCapital Business & Indus. Dev. Corp. v. Comptroller of Currency of U.S., 467 F.3d 871, 872 n.3 (5th Cir. 2006). Additionally, “the SAR privilege is unqualified and not subject to waiver by a financial institution required to comply with the BSA.” Rotstain v. Trustmark Nat'l Bank, 2020 WL 1697990, at *8 (N.D. Tex. Jan. 21, 2020).

In response to the Motion to Compel [416], Trustmark explains that it maintains a “Bank Secrecy Act/Anti-Money Laundering” program and argues that all documents relating to its suspicious activity investigations are protected by the SAR privilege. See Response [446]. But certain information is not protected by the privilege. “The underlying facts, transactions, and documents upon which a SAR is based” are not privileged. See 12 C.F.R. § 21.11(k)(1)(ii)(A)(2). Certain categories of documents, including documents produced in the ordinary course of business pertaining to banking activities, transactions, and accounts, are not privileged. See In re JPMorgan Chase Bank, N.A., 799 F.3d 36, 40 (1st Cir. 2015). “Furthermore, those underlying documents do not become confidential by reason of being attached or described in a SAR.” Cotton v. PrivateBank and Trust Co., 235 F. Supp. 2d 809, 814 (N.D. Ill. 2002).

*2 Trustmark argues, in the alternative, that if the Court permits the disclosure of documents, the disclosures should be limited to routine banking records such as bank statements and check images. The SAR privilege is not that broad or clear cut. Defining the universe of information encompassed by this privilege is a “trickier task.” In re JPMorgan, 799 F.3d 36 at 40. Documents other than bank statements and check images may fall outside the privilege.

The “key query” is whether the documents “suggest, directly or indirectly, that a SAR was or was not filed.” Id. at 43. Documents prepared during a suspicious-activity investigation will not necessarily “suggest, directly or indirectly, that a SAR was or was not filed.” See Wultz v. Bank of China Ltd., 56 F. Supp. 3d 598, 602 (S.D.N.Y. 2014) (“investigatory documents do not by themselves reveal the existence of a SAR”). “[A]lthough a bank may undertake an internal investigation in anticipation of filing a SAR, it is also a standard business practice for banks to investigate suspicious activity as a necessary and appropriate measure to protect the bank's interests, and the internal bank reports or memorandum generated by the bank regarding such an investigation are not protected by SAR privilege.” In re Whitley, 2011 WL 6202895, at *4 (Bank. M.D.N.C. Dec. 13, 2011); see also Pershing LLC v. Kiebach, 2017 WL 1284146, at *2 (E.D. La. Apr. 6, 2017) (“It goes without saying that ‘detecting fraud is simply part of a financial institution's ordinary course of business’ ”).

“Some bank-prepared documents may simply aggregate relevant account or transactional information, flag potential suspicious activity that needs to be investigated further, or explain what steps need to be taken as part of that investigation.” Camenisch v. Umpqua Bank, 2021 WL 9880547, at *1 (N.D. Cal. Sept. 14, 2021). Such documents reflecting a bank's due diligence will not always “shed light on whether or not a SAR was filed.” Id. Thus, whether a document is protected by the SAR privilege depends on what the document actually reveals. See Pershing LLC, 2017 WL 1133107, at *2 (E.D. La. March 27, 2017). Furthermore, “information that, with aid of supposition or speculation, might tend to suggest to a knowledgeable reviewer whether a SAR was filed, is not privileged.” First Am. Title Ins. Co. v. Westbury Bank, 2014 WL 4267450, at *3 (E.D. Wis. Aug. 29, 2014).

Trustmark also argues that allowing the disclosure of partial bank records, without the context provided by complete records, will be misleading and confusing. According to Trustmark, “Plaintiff will obtain discovery of fragments of files, and use them to suggest that Trustmark looked at the accounts, observed suspicious activity, and did nothing more.” [446] at 5. Trustmark's concern, however, is not a discovery issue, but an evidentiary issue concerning the admissibility of evidence and/or the weight to be afforded evidence.[2]

Accordingly, the Court holds that all bank records and information therein are discoverable with the exceptions of any SARs and any information which suggests, directly or indirectly, that a SAR was or was not filed, including information that reflects “the decision-making process as to whether a SAR should be filed, the process of preparing a SAR, or an attempt to explain the content of a SAR post-filing.” In re JPMorgan, 799 F.3d at 44. The Court also holds that any information withheld or redacted under the SAR privilege—with the exception of the SARs themselves (if any)—should be listed in a privilege log and described in a manner that does not suggest whether a SAR was or was not filed.

*3 According to the Receiver, she requested that Trustmark produce ESI in native format, but Trustmark produced its employees’ emails in PDF format. The Receiver asserts that “much of the production included only the most recent email in a string, and, with few exceptions, did not include attachments.” [416] at 8. The Receiver now seeks the production of the responsive emails in native format.[3]

Pursuant to Federal Rule of Civil Procedure 34:

Fed. R. Civ. P. 34(b)(2)(E)(i)-(iii).

The Court entered a Case Management Order [7], which provides: “Unless otherwise agreed, ESI produced in this matter may be in .pdf format, printed and produced in paper format, or via a document-sharing platform.” The Order [7] also provides that “[t]he parties reserve the right to request ESI in native format and to conduct forensic searches of the medium in which it is stored.”

In its Response [446], Trustmark points out that the Receiver requested the production of emails in both PDF and native format and that, pursuant to Rule 34(b)(2)(E)(iii), it “need not produce the same electronically stored information in more than one form.” Trustmark also points out that, pursuant to Rule34(b)(2)(D),[4] it objected to producing ESI in more than one form. Trustmark argues that it should not be required to duplicate its efforts by reproducing emails in another form.

The Court agrees that the Receiver should not have requested the production of emails in more than one form. Both parties, however, have a hand in this quarrel's inception. The Receiver informed Trustmark that: “Any responsive email should be produced with all of its attachments. All responsive electronic documents should be produced both in PDF form and in native form with corresponding metadata.” [416] at 10. Aware of the Receiver's desire for emails in native format and the corresponding metadata, Trustmark should have conferred with the Receiver before simply producing the less usable form.

The Court notes that had no specific form of ESI production been ordered or requested, Trustmark would have been required to produce the information “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The advisory committee's notes for Rule 34 provide:

*4 Fed. R. Civ. P. 34 advisory committee's notes.

The Receiver asserts that Trustmark's prior production limits her ability to access email attachments and limits her ability to search and sort the emails by date, custodian, recipient, or otherwise. The Receiver states that “ESI in its native format ensures that emails and their attachments are produced together and allows for the most efficient organization and review of voluminous documents.” [416] at 10. The Court agrees.

“However, a party need not provide discovery of ESI if the party can show the information is not reasonably accessible because of undue burden or cost.” Trmanini v. Ross Stores, Inc., 2021 WL 5926128, at *2 (W.D. Tex. Dec. 15, 2021); see also Romero v. Allstate Ins. Co., 271 F.R.D. 96, 107 (E.D. Pa. 2010) (“Multiple courts have found that, in light of the emerging recognition of the benefits of producing metadata, the burden falls on the party objecting to its production to show undue hardship and expense.”). Trustmark argues that recreating its production would result in the loss of the Bates numbering system and that it may be unable to redact personal and privileged information from native format emails. In reply, the Receiver offers another option: “unitized PDFs of its emails with load files, which will include the attachments and metadata for each email.” [454] at 10. This appears to be a viable option. See Kleppinger v. Tex. Dep't of Transportation, 2012 WL 12893654, at *10 (S.D. Tex. Aug. 23, 2012) (noting that it may not be necessary to produce ESI in native form it if can be converted to a format that is electronically searchable and includes metadata). Regardless, the Court finds that Trustmark's prior production of emails in PDF format is insufficient, and Trustmark has failed to show undue hardship or expense. Id. at *8. Accordingly, the Motion to Compel [416] is granted, and Trustmark is hereby ordered to produce the previously-produced emails and their attachments in native format or some other usable form agreeable to the Receiver.

The Receiver complains that in response to Request for Production Nos. 8, 10-12, 14-18, 22, 23, 26-31, and 34, Trustmark raised objections but failed to state whether it is withholding responsive documents based on the objections.[5] According to the Receiver, she has asked Trustmark multiple times to confirm whether it is withholding responsive documents.

The Receiver does not quote the subject requests for production or Trustmark's objections to each and does not address each of Trustmark's objections to the requests, all of which is required by L.U. Civ. R. 37(b). Although L.U. Civ. R. 37(c) provides that “[f]ailure to comply” with these requirements “will result in a denial of the motion without prejudice,” the Court will not deny the Receiver's motion based on Rule 37(c) and instead will consider her requests for relief.[6]

*5 However, the Court cannot grant the relief the Receiver seeks in her motion, specifically that Trustmark “confirm whether [it] has produced all responsive documents or whether it is withholding responsive documents,” if the request itself is too broad. [416] at 11 (emphasis added). Therefore, for any request to which Trustmark objected as overly broad, the Court must first determine whether it is overly broad.

The Court finds that Request for Production Nos. 10, 17, 18, 26, 28, 31, and 34 are overbroad. The motion is, therefore, denied as to these requests.

As to Request for Production Nos. 8, 11, 12 and 14, the motion is granted in part and denied in part. These requests are also overbroad, but in its responses, Trustmark identified types of documents that have or will be produced. The motion is denied as to documents not identified by Trustmark. But the motion is granted as to the types of documents identified by Trustmark, and Trustmark will be required to comply with Fed. R. Civ. P. 34(b)(2)(C) as set forth below.

As to Request for Production Nos. 15, 16, 22, 23, 27, 29, and 30, the motion is granted. For each of these requests, either Trustmark did not object to it as overly broad or the Court finds that it is not overly broad. Trustmark will be required to comply with Fed. R. Civ. P. 34(b)(2)(C) as set forth below.

Specifically, Fed. R. Civ. P. 34(b)(2)(C) provides: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” A party's discovery response should not leave the requesting party “uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” Fed. R. Civ. P. 34 advisory committee's notes.

Trustmark acknowledges its duty to supplement its production if discoverable information is identified, but argues that the Receiver's “requests are so broad that it is impossible to identify every document that might exist, and that has not been located or identified.” [446] at 2. The Court has considered whether the subject requests are overly broad and, where appropriate, denied the Receiver's motion. Additionally, Rule 34(b)(2)(C) does not require Trustmark to “identify every document that might exist, and that has not been located or identified.” It requires Trustmark to state whether it has purposefully withheld information based on an objection. Where the Court has granted (or granted in part) the motion as to certain requests, Trustmark is required to state whether it has purposefully withheld specific documents based on an objection, pursuant to Rule 34(b)(2)(C).[7] Additionally, if Trustmark withholds or redacts any information under a privilege, the same should be listed in a privilege log.

IT IS, THEREFORE, ORDERED that the Receiver's Motion to Compel Discovery Responses from Trustmark National Bank [416] is granted in part and denied in part as set forth above and as follows:

SO ORDERED this the 10th day of March, 2023.