... Class Plaintiffs have identified deficiencies in document production from third parties Samuel C. Randazzo and Sustainability Funding Alliance of Ohio, Inc. (“SFAO”). (Doc. 438 at 2–9). Namely, Class Plaintiffs say that the third parties have not produced any discovery regarding what happened to a $4.3 million payment that Defendant FirstEnergy Corp. (“FirstEnergy”) made to SFAO. (Id. at 2). The third parties challenge these deficiencies based upon a belief that the documents sought “are neither relevant to the claim or defense of any party, nor discovery reasonably calculated to lead to the discovery of admissible evidence.” (Id. at 9). The Court, however, finds that the discovery sought is clearly relevant and reasonably calculated to lead to the discovery of admissible evidence.

*2 As Class Plaintiffs highlight, FirstEnergy has represented that the $4.3 million payment to SFAO was a quid pro quo exchange in furtherance of the fraud scheme at the center of Class 2 Plaintiffs' allegations. (Doc. 438 at 2–7); (see, e.g., Doc. 72, ¶¶ 6, 72, 194, 207). Additionally, Class Plaintiffs have alleged that several of the individual Defendants in this action had direct involvement with the payment. (Id., ¶¶ 11, 211, 216, 222, 224). But those Defendants have denied the illicit purpose of the payment. (Doc. 438 at 4–5). So, information from the third parties regarding how the payment was used and disbursed will make the respective positions of the Class Plaintiffs and the Defendants more or less reasonable, and the liability of Defendants for the alleged harm to Class Plaintiffs therefore more or less likely. This tendency is the cornerstone of relevance. Randazzo and SFAO are ORDERED to produce any documents regarding the $4.3 million payment within their possession, custody, or control to Class Plaintiffs.

The present dispute “concerns non-parties Samuel C. Randazzo (“Randazzo”) and Sustainability Funding Alliance of Ohio Inc.’s (“SFAO”) compliance with the Court's April 5, 2023 Order.” (Doc. 459 at 2). In that prior Order, the Court found that subpoenas served on Randazzo and SFAO were requesting clearly relevant information about a $4.3 million payment that FirstEnergy Corp. made to SFAO. (Doc. 440). The Court ordered the non-parties “to produce any documents regarding the $4.3 million payment within their possession, custody, or control to Class Plaintiffs.” (Id. at 2).

Since that Order, Randazzo and SFAO have purportedly produced only nine documents, and have refused to detail (or employ at all) a search protocol to identify responsive information. (Doc. 459 at 4–5). Randazzo and SFAO maintain that, because certain bank and tax records have been produced, no further production is required. (Id. at 7–12). They rely on an overly narrow interpretation of the Court's prior Order to say they were only required to produce information about how the payment was “used and disbursed.” And they further say that the receipts of credits and debits from these various bank accounts provide that complete picture. In other words, they seem to suggest that because they have collected certain quantitative information about the payment, they are under no obligation to produce other qualitative information “regarding” the payment, like emails discussing the payment. And beyond that, they claim to have identified all relevant quantitative information without disclosing their search protocol—if any—for doing so. Their position is not consistent with the Court's prior Order, which, as stated, ordered them “to produce any documents regarding the $4.3 million payment within their possession, custody, or control to Class Plaintiffs.” (Doc. 440 at 2). Further, their reluctance to be transparent about their search methodology does not suggest good-faith compliance with their discovery obligations.

Accordingly, it is ORDERED that Randazzo and SFAO comply with the Court's prior Order and file declarations to the public docket by May 29, 2023 certifying: (1) that they have made reasonable efforts to locate and produce “any documents regarding the $4.3 million payment within their possession, custody, or control” and that all such documents of which they are aware have been produced; (2) the specific steps taken to identify responsive documents, including locations and email accounts searched, and inquiries made of others; and (3) the search methodology utilized to comply with the Court's April 5 Order.

Yet, Plaintiffs now represent that Randazzo and SFAO have failed to identify their search methodology to Plaintiffs. (Doc. 468 at 3–4). The Court agrees with Plaintiffs that this is impermissible. Typically, it is a matter of course that parties voluntarily exchange information that documents and validates a discovery protocol—particularly when there have been specific questions regarding deficiency raised by the requesting party. Further, the Court is satisfied from its own in camera review that no legitimate concerns about attorney-client privilege or work product preclude sharing the details of the search terms, protocol, and methodology with Plaintiffs. Accordingly, Randazzo and SFAO are ORDERED to provide the search terms, protocol, and methodology previously provided to the Court to Plaintiffs on or before June 2, 2023.

In their response, Plaintiffs further identify purported deficiencies in Randazzo and SFAO's production and ask that the Court give them leave to depose Sugarman regarding compliance with the Court's Order. (See Doc. 468). The Court will not make any rulings on these issues in the present Order. There is more work to be done by the parties, which will begin with the production of the above protocol. Aided by this additional information, the parties must confer regarding the sufficiency of the production and attempt to resolve any disputes. The parties are ORDERED to file a joint status report on or before June 16, 2023, updating the Court on the progress of their conferral and which—if any—disputes remain at an impasse.

Separately, they talked about how all the documents are going to be exclusively privileged.

First, when you make arguments regarding undue burden, it is your burden to explain how that's true. They have submitted no declaration saying that they are exclusively privileged. They didn't say, Hey, I ran a sample of documents, and ten out of ten came back privileged. Nothing. Rather, they produced a privilege log where less than 8 percent of the documents that they have produced in this litigation they were claiming are privileged. So from Plaintiffs' perspective, there's no reason to believe that all of these documents are going to be privileged. Further, that privilege log covers documents from November 2020 and from the time where Mr. Sugarman had already been hired. So, again, there's no basis for them to claim that all of these are exclusively privileged. That's simply their conjecture. Further, they have not explained how this time period, when Mr. Randazzo was not acting as an attorney -- he had resigned as an attorney from a firm years ago to pursue nonlegal work about a payment that was not made -- that was not about a legal payment -- would be privileged.

These new objections and demands are long overdue and waived. Mr. Randazzo and SFAO did not raise these objections pursuant to Rule 45 when they responded to Plaintiffs' subpoena. They did not raise these objections when Plaintiffs moved to compel the documents. They did not raise these objections and new demands to Judge Jolson before her April 5th order.

When Judge Jolson issued her April 5th order, they did not file an objection; they did not file a motion for reconsideration; they did not seek clarification based on any of these new grounds and demands. Same with the May 16 order.

According to the law of the case doctrine, “a legal decision made at one stage of a civil or criminal case ... becomes the law of the case for future stages of the same litigation.” United States v. Bell, 988 F.2d 247, 250 (citing Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987); United States v. Duchi, 944 F.2d 391, 393 (8th Cir.1991)); see also United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). Once a decision has been made, the doctrine “precludes a court from ‘reconsideration of identical issues.’ ” Hanover Ins. Co. v. American Engineering Co., 105 F.3d 306 (6th Cir.1997) (quoting Petition of United States Steel Corp., 479 F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973)). Important policy concerns support this doctrine, including “stability in the decisionmaking process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy.” Bell, 988 F.2d at 250 (quoting United States v. Rivera–Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991)).

Application of the doctrine is not mandatory but discretionary; nonetheless, courts should generally avoid reopening an already decided issue in the absence of extraordinary circumstances. Arctic Express, Inc. v. Del Monte Fresh Produce NA, Inc., No. 2:09-CV-00403, 2010 WL 1009777, at *2 (S.D. Ohio Mar. 15, 2010) (Marbley, J.). Such extraordinary circumstances include “where substantially different evidence is presented, or where controlling legal authority has changed, or where the initial decision was clearly erroneous and would work a manifest injustice.” McCready v. Michigan State Bar Standing Comm. on Character & Fitness, 926 F. Supp. 618, 621 (W.D. Mich. 1995), aff'd, 100 F.3d 957 (6th Cir. 1996).

[Counsel for Randazzo and SFAO, MR CORCORAN:] So, again, I think, when you look at the relative burden -- or excuse me -- the relative ability to pay here, I think that factor weighs very, very heavily in favor of cost-shifting.

MR. JUDGE: What are your client's liquid assets? How much cash on hand? If you're talking about 13,000 for re-imaging and the search to do the cloud-based search plus attorney time, how much are we talking? You know, what does your client have available?

MR. CORCORAN: Well, I don't know, you know, down to the penny of what my client has. Like I said, the big thing that I know about are the things that I just referenced, that the plaintiffs have been referencing, you know, the $3 million that's gone into trust accounts. Part of that's frozen, and part of it's not accessible.

MR. JUDGE: No, I am not asking what's unavailable. I'm asking what's available.

MR. CORCORAN: I can't speak to that myself right now. Mr. Sugarman, perhaps, has more knowledge on that issue.

MR. SUGARMAN: Well, let me just start -- on our filing, we estimated the cost of compliance with the motion to compel, paragraph 30 of my declaration, Your Honor, to be 20 roughly -- you know, a range -- 25- to $31,000.

*8 MR. JUDGE: I mean, I appreciate that that's -- within other people's resources. How can I evaluate whether it's fair to ask your client to pay all of that, a portion of that, or none of that when I don't know your client's circumstances?

MR. SUGARMAN: Sure. I don't want to speculate, which is what I'd exactly have to do to be responsive. If you would want us to supplement what we filed with some financial information to address that point, we could certainly do that in a timely fashion. Otherwise, I'm just guessing, frankly, because I don't know.

[SPECIAL MASTER JUDGE:]

Frankly, from the evidence submitted by both sides, I have no idea how much Mr. Randazzo -- money he has or does not have. That hurts you. That hurts him, the fact that I don't know that.

And, you know, I don't think it's a surprise, you know, today's decision. I'm going to take it under advisement. I'll issue a decision.

Where I'm lea[n]ing right now -- I need to do a little bit of research -- is not in his favor, in part, because of the dearth of information in front of me.

Today was the day to submit that information. There's been ample briefing and opportunity for oral argument. And I'm not going to extend the period to learn that information if he didn't care to present it to me now.

MR. CORCORAN: Sure. With regard to the cost-shifting issue, to wrap it up, you know, it's fairly easy to request something if you don't think that it's going to cost you anything. And that's what the plaintiffs have done. They've basically said they want us to bear all costs that are connected with this. Frankly, I think, if the plaintiffs had to the bear the costs in connection with reviewing a bunch of privileged documents that are almost to certain to not really yield anything, I think that they'd reconsider it. And so that's really what we want, Your Honor, is we think it should be the plaintiffs that actually have to bear some costs associated with trying to go through e-mails from, you know, November 2020 onward when Mr. Randazzo had counsel, and the communications are almost certainly going to be privileged.

MR. JUDGE: So what's your opinion of a fair percentage that they would need to bear?

MR. CORCORAN: A fair percentage?

MR. JUDGE: Yes.

MR. CORCORAN: Well, Your Honor, we've asked for all of it.

(1) Non-parties Randazzo and SFAO will search for and produce any documents regarding the $4.3 million payment within their possession, custody, or control, including for the period from November 21, 2020 to August 31, 2021, to Plaintiffs;

(2) Non-parties Randazzo and SFAO will produce such documents and any corresponding privilege log(s) on a rolling basis;

(3) Non-parties Randazzo and SFAO will collect Randazzo's 2019 email from its cloud-based sources; and

(4) Non-parties Randazzo and SFAO will bear (a) the costs of complying with this Order; (b) the reasonable costs and fees Plaintiffs incurred in connection with the recent related motion briefing; (c) Plaintiffs' reasonable fees and costs for preparing for and participating in the relevant portion of the October 19, 2023 oral argument; and (d) the costs billed by the Special Master for the relevant portion of the October 19, 2023 oral argument and the preparation of this Order, as designated in the upcoming invoice. If Plaintiffs and non-parties Randazzo and SFAO are unable to agree on (a)-(c) within 14 days from the date of filing of this Order, Plaintiffs shall file for these fees and costs to be awarded by the Special Master, providing supporting authority and a proposed order for such an award.