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staying discovery on the RICO claims until their pending motion to

dismiss is decided. The plaintiffs’ motion is granted in part and

denied in part; the defendants’ motion is granted.

Background

The plaintiffs purchase residential mortgages “which are not

performing according to their original terms.” (Third Amended

Complaint (“Complaint”), ¶ 11). This case relates to a pool of

thousands of such loans that the plaintiffs purchased from the

defendants in 2009. (Complaint, ¶ 1; Plaintiffs’ Memorandum of Law

in Support of Motion to Compel and Define Scope of Discovery (“Pl.

Memo.”) at 7-8). The plaintiffs assert that certain

representations and warranties that the defendants made about the

loans -- that the information provided about each loan was “true

and correct in all material respects,” that each loan complied with

applicable laws, and that the defendants actually owned all of the

loans that were sold -- were false at the time the parties’

agreement was executed and that the defendants further breached the

agreement after its execution by, for example, representing to

borrowers that the defendants still owned certain loans and then

collecting and retaining payments on those loans. (Complaint, ¶¶

43, 56, 59-60, 68, 85-86; Pl. Memo. at 8-9).

In addition, the Complaint alleges the defendants improperly

forgave loans or released liens connected with the purchased loans.

The so-called National Mortgage Settlement, approved in April 2012,

required the defendants to provide billions of dollars in consumer

relief, including loan modifications, to borrowers whose loans it

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owned or serviced. (Complaint, ¶¶ 97, 100). According to the

plaintiffs, in order to comply with that settlement, the defendants

forgave thousands of mortgage loans on three separate occasions:

September 13, 2012, December 13, 2012, and January 13, 2013.

(Complaint, ¶¶ 103-104). However, some of the forgiven loans were

owned by the plaintiffs. (Complaint, ¶ 105; Pl. Memo. at 9-10).

Further, a November 2013 settlement resolving claims by various

federal agencies and states arising out of the residential market

backed securities market, characterized in the papers as the RMBS

Settlement, again required the defendants to provide billions of

dollars in consumer relief. (Complaint, ¶ 146; Pl. Memo. at 10).

The defendants allegedly claimed credit under the RMBS Settlement

for indebtedness owed by borrowers whose loans were sold to the

plaintiffs. (Complaint, ¶ 147; Pl. Memo. at 10). The plaintiffs

also allege that in order to avoid “anti-blight” responsibilities,

the defendants “releas[ed] liens on properties that served as

collateral for loans” that the defendants had sold to the

plaintiffs. (Complaint, ¶¶ 132-140; Pl. Memo. at 10). Some of

these were released in connection with the “Pre-DOJ Lien Release

Project,” which the defendants allegedly established in October

2013 in order to excise from their books loans that would otherwise

require compliance with anti-blight programs. (Complaint, ¶¶ 134,

140).

The contract and commercial tort claims in this action

concern, primarily, (1) the alleged misrepresentations and

omissions by the defendants about loans sold to the plaintiffs and

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(2) the defendants’ practice of retaining payments made on loans,

forgiving loans, or releasing liens on loans sold to the

plaintiffs. (Complaint, ¶¶ 151-152, 157, 162, 168-169, 172-173,

177-181, 186, 194). The RICO claim relates to these or similar

misrepresentations and misdeeds insofar as they were allegedly

intended to induce governmental entities to believe, falsely, that

the defendants had fulfilled their consumer relief obligations

under the National Mortgage Settlement and the RMBS Settlement.

(Complaint, ¶¶ 206, 210, 212).

Meanwhile, in Schneider, plaintiff-relator Laurence Schneider,

the principal of the three plaintiff companies here, filed a second

amended complaint alleging violations of the federal False Claims

Act, 31 U.S.C. § 3729, and various state equivalents. (Second

Amended Complaint, U.S.A. ex rel. Schneider v. J.P. Morgan Chase

Bank (“Schneider Complaint”), attached as Exh. E to Declaration of

Christian J. Pistilli dated June 13, 2016 (“Pistilli Decl.”), ¶¶ 1-

2, 305-419). The plaintiff-relator alleges that, after the

National Mortgage Settlement was executed and a Consent Judgment

entered, the defendants sent numerous loan-forgiveness letters to

borrowers and released numerous liens, purportedly pursuant to that

settlement. (Schneider Complaint, ¶¶ 11-12, 14). A number of

these letters forgave loans or released liens on mortgage loans

sold to Mr. Schenider’s companies (the plaintiffs here).

(Schneider Complaint, ¶¶ 11, 14-15). These and other practices did

not meet the servicing standards required by the National Mortgage

Settlement, and allowed the defendants “to take credit for

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valueless charged-off and third-party owned loans” rather than

applying the standards required under the National Mortgage

Settlement to offer relief “to properly vetted borrowers who could

have applied for and benefitted from the relief and modification

programs.” (Schneider Complaint, ¶¶ 17-19). In addition, the

complaint alleges that the defendants failed to comply with the

Department of the Treasury’s Home Affordable Mortgage Program

(“HAMP”) -- a program that provided certain borrowers the

opportunity to modify certain mortgage loans -- by failing to

solicit borrowers to apply for the program and failing to abide by

its servicing requirements. (Schneider Complaint, ¶¶ 39, 118, 181,

190-191, 198-199). The HAMP allegations relate particularly to

loans known as Recovery One or RCV1 loans, which are “a collection

of various federally related mortgage loans that have been charged

off by [the defendants] and whose documentation has been corrupted,

ignored[,] or allowed to fall into disarray.” (Schneider

Complaint, ¶ 172). According to the plaintiff-relator, the

defendants violated the False Claims Act when they certified to

federal and state governments that they were in compliance with the
standards required by the National Mortgage Settlement and HAMP.

(Schneider Complaint, ¶¶ 1-2).

The defendants have filed motions to dismiss in both this

action and in Schneider. While the motion in Schneider seeks

dismissal of the entire complaint on both procedural and

substantive grounds (Defendants’ Memorandum in Support of Their

Motion to Dismiss Relator’s Second Amended Complaint, attached as

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Exh. F to Pistilli Decl.), the motion in this case argues only that

the tort and RICO claims should be dismissed: the tort causes of

action because they are both duplicative of the breach of contract

claims and insufficiently pled, and the RICO claim because it fails

to allege both the existence of a valid RICO enterprise and a

pattern of continued criminal activity (Defendants’ Memorandum of

Law in Support of Their Motion to Dismiss Counts Four through Nine

of Plaintiffs’ Third Amended Complaint (“Motion to Dismiss RICO

Claims”)).

The plaintiffs now move to compel the defendants to produce

documents responsive to certain requests for production. The

plaintiffs divide these requests into two categories: “(1)

[d]ocuments that relate to the qui tam [c]ase or that [the]

[d]efendants claim are beyond the scope of the breach of contract

claims . . . ; [and] (2) [d]ocuments [the] [d]efendants claim they

cannot produce unless [the] [p]laintiffs provide them with a list

of loans that [the] [d]efendants sold.”2 (Pl. Memo. at 11). The

defendants seek a protective order staying discovery as to the RICO

claim until their motion to dismiss is decided (Defendants’

Memorandum of Law in Opposition to Plaintiffs’ Motion to Compel and

Define Scope of Discovery and in Support of Defendants’ Cross-

Motion for Protective Order (“Def. Memo.”) at 12-17), and oppose

the motion to compel on various grounds (Def. Memo. at 9-11, 17-

19).

2
For convenience, I will refer to these two groups of
documents as “Category One” and “Category Two” documents.

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Discussion

A. Legal Standard

The amendments to Rule 26(b)(1) allow discovery of

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.

Fed. R. Civ. P. 26(b)(1). Relevance is still to be “construed

broadly to encompass any matter that bears on, or that reasonably

could lead to other matter that could bear on” any party’s claim or

defense. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

(1978). However, as the advisory committee notes, the

proportionality factors have been restored to their former position

in the subsection “defining the scope of discovery,” where they had

been located prior to the 1993 amendments to the rules. Fed. R.

Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment.

Thus, the amended rule is intended to “encourage judges to be more

aggressive in identifying and discouraging discovery overuse” by

emphasizing the need to analyze proportionality before ordering

production of relevant information, as was the practice prior to

1993. Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015

amendment. The burden of demonstrating relevance remains on the

party seeking discovery, but the newly-revised rule “does not place

on the party seeking discovery the burden of addressing all

proportionality considerations.” Id. In general, when disputes

are brought before the court, the parties’ responsibilities remain

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the same as they were under the previous iteration of the rules, so

that the party resisting discovery has the burden of showing undue

burden or expense. Fed. R. Civ. P. 26(b)(1) advisory committee’s

note to 2015 amendment; see also Fireman’s Fund Insurance Co. v.

Great American Insurance Co. of New York, 284 F.R.D. 132, 135

(S.D.N.Y. 2012) (“Once relevance has been shown, it is up to the

responding party to justify curtailing discovery.” (quoting

Trilegiant Corp. v. Sitel Corp., 275 F.R.D. 428, 431 (S.D.N.Y.

2011))). Moreover, information still “need not be admissible in

evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

“If the evidence sought is relevant, ‘the burden is upon the

party seeking non-disclosure or a protective order to show good

cause’” by “demonstrating a particular need for protection.” Rosas

v. Alice’s Tea Cup, LLC, 127 F. Supp. 3d 4, 8 (S.D.N.Y. 2015)

(first quoting Penthouse International, Ltd. v. Playboy

Enterprises, 663 F.2d 371, 391 (2d Cir. 1981), and then quoting

Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.

1986)). “Although the burden is on the movant to establish good

cause for the entry of a protective order, the court ultimately

weighs the interests of both sides in fashioning an order.” Duling

v. Gristede’s Operating Corp., 266 F.R.D. 66, 71 (S.D.N.Y. 2010).

B. Category One Documents

Category One documents would be responsive to fifteen of the

plaintiffs’ RFPs.3 The defendants object to producing documents

3
Plaintiffs’ RFP Nos. 5, 7, 26-27, 29, 31, 33-41. (Pl. Memo.
at 22; Appendix (“App.”) 1, attached as Exh. to Pl. Memo.; Def.
Memo. at 17 n.20; Plaintiffs’ Reply Memorandum of Law in Further

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that are relevant only to the qui tam action, only to the RICO

claim, or only to both of those claims. (Def. Memo. at 9, 12).

That is, they object to producing documents that are not relevant

to the breach of contract and tort claims.4 The defendants advance

two arguments: first, that requests for production of documents

relevant only to the qui tam action are inappropriate in this

separate action; and second, that discovery relevant only to the

RICO claim should be stayed in light of the pending motion to

dismiss.

1. Documents Relevant to Qui Tam Action

The plaintiffs contend that “this Court has ordered the

parties to coordinate discovery in this case with discovery in the

qui tam case” in order “to avoid duplication.” (Pl. Memo. at 14-

15). Therefore, according to the plaintiffs, the defendants should

produce discovery even if it relates only to claims not included in

this action. This argument overreaches. To be sure, the Honorable

Laura Taylor Swain, U.S.D.J., in denying the plaintiffs’ motion to

transfer this action to the District of Columbia, “encouraged” the

Support of Motion to Compel and Define Scope of Discovery and in

Opposition to Defendants’ Cross Motion for a Protective Order (“Pl.
Reply”) at 10).
4
The plaintiffs state that the defendants refuse to produce
discovery “that [the] [d]efendants claim [is] beyond the scope of
the breach of contract claims.” (Pl. Memo. at 11). As I read the
defendants’ submission, they have not objected to producing
discovery that might be relevant only to the plaintiffs’ common law
tort claims. (Defendants’ Reply Memorandum of Law in Support of
Their Cross-Motion for Protective Order (“Def. Reply”) at 2). As
they have argued in their motion to dismiss that each of the tort
claims is duplicative of the breach of contract claims, however
(Motion to Dismiss RICO Claims at 14-16, 18, 20-21), they
presumably find this to be a distinction without a difference.

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parties “in the interests of efficient pre-trial management . . .

to undertake efforts to coordinate informally discovery of common

issues of fact, insofar as feasible, that may arise in the [False

Claims Act] action pending in D.C.” Mortgage Resolution Servicing

LLC v. JPMorgan Chase Bank, N.A., No. 15 Civ. 293, 2015 WL 9413881,

at *2 (S.D.N.Y. Dec. 22, 2015). However, that is not the same as

ordering the defendants to produce documents in this action that

are relevant only to the qui tam action, especially as Judge Swain

found that the two cases were not sufficiently intertwined to

counsel in favor of transfer. See id. at *1-2.

Nor is it accurate that the defendants “opened the door” to

this discovery. (Pl. Memo. at 19-20). As a general matter, I am

unaware of any rule (and the plaintiffs have cited none) indicating

that when a party asks for production of certain categories of

information (or even produces such information), it is prohibited

from arguing that similar discovery sought by the other party is

not relevant. Cf. State Farm Mutual Automobile Insurance Co. v.

Fayda, No. 14 Civ. 9792, 2015 WL 7871037, at *6 (S.D.N.Y. Dec. 3,

2015) (co-operating in discovery to produce documents in response

to request is not concession that documents are relevant).

Moreover, a number of the defendants’ requests for production that

the plaintiffs cite as pertaining to the qui tam case are also

relevant to the RICO claim in this case (which I discuss below),

such as requests seeking communications with governmental

authorities related to the allegation that the defendants’ conduct

caused the plaintiffs “to face the ire of governmental entities,”

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or documents related to the defendants’ alleged violations of the

National Mortgage Settlement and the RMBS Settlement. (Complaint,

¶¶ 145-147; Defendants’ First Request for Production of Documents

to Plaintiffs S&A Capital Partners, Inc., Mortgage Resolution

Servicing, LLC, and 1st Fidelity Loan Servicing, LLC, attached as

Exh. Q to Pistilli Decl., at 8). That is, these requests do not

appear to indicate that the defendants seek discovery in this case

relevant only to the Schneider action.

This does not mean, however, that the defendants’ position on

the plaintiffs’ requests for production succeeds. Because many of

the fifteen requests for production at issue are broadly written,

apparently to encompass documents relevant to all claims at issue

in this case as well as in the Schneider litigation, they often

encompass documents that are relevant mainly to the plaintiffs

contract and tort claims. As I noted in a prior opinion:

The allegation that ties the plaintiffs’ breach of

contract, tort, and civil RICO causes of action together
is that the defendants, after selling mortgage loans to
the plaintiffs, released liens securing those loans,
purported to forgive debt on mortgages they sold, and
accepted and retained payments on loans they no longer
owned.
Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A.,
No. 15 Civ. 293, 2015 WL 6516787, at *1 (S.D.N.Y. Oct. 28, 2015)

(footnote omitted).5 Documents focused on the loans that the

defendants sold to the plaintiffs are relevant to “the private,

5
That opinion denied the defendants’ motion to transfer this
action to the District of Columbia. Judge Swain subsequently
issued a decision likewise denying the same motion. Mortgage
Resolution Servicing, 2015 WL 9413881, at *2.

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commercial dispute between the parties” and the defendants have

purportedly agreed to produce these. (Def. Reply at 2). Documents

relating to communications, investigations, research, policies, or

selection criteria connected to loan forgiveness letters sent on

September 13, 2012, December 13, 2012, and January 13, 2012, are

also relevant, as are similar documents relating to the Pre-DOJ

Lien Release Program, even though these documents relate also to

loans not sold to the plaintiffs.6 (Pl. Memo. at 17-19). The

defendants shall therefore produce documents responsive to any of

the relevant requests for production that fall into one of these

two sub-categories.

There is one request that merits a short, separate discussion.

Plaintiffs’ RFP No. 7 seeks documents relating to the criteria and

processes defendants employed in deciding to place loans in the

RCV1 database. (App. 1 at 27). The complaint alleges that by

placing loans in this database, which contained loans “charged-off

for accounting purposes” (Def. Memo. at 18), the defendants

“den[ied] the borrowers their rights concerning federally-related

mortgages yet allowed [the defendants] to retain the lien and the

benefit of the security interest.” (Complaint, ¶ 60(g)). It is

clear that the RCV1 database included some of the loans sold to the

plaintiffs that form the basis of the breach of contract and

commercial tort claims in this case. (Complaint, ¶ 60(g); Def.

Memo. at 18). Therefore, this request is relevant (in the broad

6
The defendants have not argued that this discovery would be
unduly burdensome. (Def. Memo. at 9-11).

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sense contemplated by Rule 26) to those claims and these documents

shall be produced.

2. Documents Relevant to RICO Claim

In light of their assertedly meritorious motion to dismiss the

plaintiffs’ RICO claim, the defendants seek a protective order in

the form of a partial stay of discovery shielding them from

producing a subset of documents responsive to the same fifteen RFPs

that are relevant only to that claim. (Def. Memo. at 12-17).

Although in most cases a motion to dismiss does not

automatically stay discovery, a court has “considerable

discretion,” Integrated Systems and Power, Inc. v. Honeywell

International, Inc., No. 09 Civ. 5874, 2009 WL 2777076, at *1

(S.D.N.Y. Sept. 1, 2009), to determine that “a pending motion to

dismiss [] constitute[s] ‘good cause’ for a protective order

staying discovery,” Hong Leong Finance Ltd. (Singapore) v. Pinnacle

Performance Ltd., 297 F.R.D. 69, 72 (S.D.N.Y. 2013). Courts should

“look to the particular circumstances and posture of each case” and

consider “(1) [the] breadth of discovery sought, (2) any prejudice

that would result, and (3) the strength of the motion.” Id.
(alteration in original) (first quoting Alford v. City of New York,

No 11 CV 622, 2012 WL 947498, at *1 (E.D.N.Y. March 20, 2012), and

then quoting Brooks v. Macy’s Inc., No. 10 Civ. 5304, 2010 WL

5297756, at *2 (S.D.N.Y. Dec. 21, 2010)).

Here, the plaintiffs do not argue that the motion to dismiss

is insufficiently substantial for that factor to weigh in favor of

a stay. (Pl. Reply at 5-8; Def. Reply at 4; Surreply Declaration

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of Helen David Chaitman dated June 27, 2016 (“Pl. Surreply”)).

That concession by omission is well-taken. They do, however,

contend that the discovery is not “disproportionately burdensome”

for the defendants and that a stay will “severely prejudice” the

plaintiffs. (Pl. Reply at 6-8).

a. Burden

The defendants specifically object to requests for production

seeking documents relating to the selection of the recipients of

all loan forgiveness letters sent by the defendants, if those

letters are not connected to three dates mentioned in the

complaint; all written communications with borrowers for whose

loans the defendants claimed consumer relief not only pursuant to

the National Mortgage Settlement and the RMBS Settlement, but also

pursuant to the Emergency Economic Stabilization Act of 2008 (a

statute not mentioned in the complaint in this action, but cited in

the Schneider Complaint (Schneider Complaint, ¶ 52)); documents

identifying all loan modifications for which the defendants claimed

consumer relief under the National Mortgage Settlement consent

decree; and written communications with the monitor of the National

Mortgage Settlement consent decree discussing RCV1. (Def. Memo. at

13-14; App. 1 at 28, 30-31). They characterize these RFPs -- Nos.

27, 29, 36, and 38 -- as “extremely broad and burdensome” and

“lack[ing] any arguable relevance to [the] [p]laintiffs’ commercial

tort or breach of contract claims.”7 (Def. Memo. at 14).

7
The defendants “do[] not concede” that the remainder of the
fifteen relevant requests for production “are relevant or
proportional to the needs of the case, even assuming [] that the

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The defendants assert that using the plaintiffs’ proposed

search terms “designed to capture documents related to their RICO

allegations and qui tam case” for just one of the twenty-six

requested custodians yields over 650,000 documents. (Def. Memo. at

15; Declaration of Phil Verdelho dated June 10, 2016 (“Verdelho

Decl.”), attached as Exh. 4 to Def. Memo., ¶ 17). They have

submitted a declaration from JPMorgan Chase Bank’s Executive

Director for Electronic Platform Discovery Services -- a

professional who manages the firm’s e-Discovery technologies and

responsibilities -- who attests that the total cost of reviewing

that single custodian’s responsive documents would be nearly

$1,000,000. (Verdelho Decl., ¶ 20). The plaintiffs state that

this estimate “strains, if not shatters, all credibility,” and is

a “ludicrous” “sham.” (Pl. Reply at 6-7).

I have been presented with a sworn statement from a person

knowledgeable about the defendants’ documents storage systems and

e-discovery technologies estimating the cost of the defendants’

search for and production of documents responsive to the

plaintiffs’ RFPs. The plaintiffs have countered with mere

speculation (and some overblown rhetoric). They request that if I

do not choose simply to disbelieve the evidence the defendants

present, then I order the defendants to produce a witness pursuant

to Rule 30(b)(6) of the Federal Rule of Civil Procedure, so that

the plaintiffs can “assess [this claim] by deposition.” (Pl. Reply

Court denies [the] motion to dismiss.” (Def. Memo. at 17 n.20).

However, they do not address those other requests in their motion
for a protective order.

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at 6-7).

“There are circumstances where [] collateral discovery” --

also known as discovery on discovery -- “is warranted.” Freedman

v. Weatherford International Ltd., No. 12 Civ. 2121, 2014 WL

3767034, at *3 (S.D.N.Y. July 25, 2014). “However, requests for

such ‘meta-discovery’ should be closely scrutinized in light of the

danger of extending the already costly and time-consuming discovery

process ad infinitum.” Freedman v. Weatherford International Ltd.,

No 12 Civ. 2121, 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014).

A party must provide “an adequate factual basis” for its belief

that discovery on discovery is warranted. Freedman, 2014 WL

3767034, at *3. The plaintiffs have failed to do so here.

Moreover, the motion before me seeks merely a stay of discovery

related to the RICO claim in the plaintiffs’ complaint; here I find

only that, in the context of that interim request, the discovery

imposes a significant burden on the defendants in light of the fact

that it may be obviated by Judge Swain’s decision on the pending

motion to dismiss.8

b. Prejudice
The plaintiffs claim they will be “severely prejudiced” if a

stay is granted because having to wait for this discovery will

hamstring their ability to formulate litigation and settlement

strategy. (Pl. Reply at 7). But they offer no further discussion

8
If the motion to dismiss is denied, I expect that the
defendants will continue to explore techniques to lower the cost of
production and, if appropriate, the possibility of sharing the cost
with the plaintiffs.

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of what particular strategic decisions will need to be made prior

to the decision on the motion to dismiss. Moreover, the motion to

dismiss is fully briefed, so any consequent stay is likely to be

short-lived. See, e.g., Integrated Systems and Power, 2009 WL

2777076, at *1 (imposing stay during pendency of motion to dismiss

where briefing on motion would be completed within one month of

application and stay would therefore delay commencement of

discovery “for only a few months”).

I therefore grant the defendants motion for a protective order

staying discovery that is relevant only to the plaintiffs’ RICO

claim until the motion to dismiss is decided. I note, however,

that if the motion is denied, and the stay has the effect of

increasing the cost of discovery in this case, either because it

results in duplication of work or for any other reason, the

defendants will not be heard to complain of that incremental burden

(and any added costs the plaintiffs incur may be shifted).

C. Category Two Documents

These are documents related to data on loans the defendants

sold or offered for sale to the plaintiffs.

1. Request No. 3

This requests asks for documents sufficient to identify

various details (number, type, amount, security, status, and

borrower) of loans the defendants “sold, transferred, put into the

name of, designated as belonging to, or offered to sell to” the

plaintiffs. (App. 2, attached as Exh. to Pl. Memo., at 34). The

defendants have agreed to produce documents related to loans

17
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included on the so-called “Corrupted List,” a list provided by the

defendants to the plaintiffs in connection with the 2009 sale of

loans, which the plaintiffs allege was “grossly deficient” because

it did not include certain basic information (Complaint, ¶ 46), as

well as any loan “that has a bona fide nexus to the parties’

commercial relationship, including other loans purchased by [the]

[p]laintiffs.” (Def. Memo. at 18 & n.21). They object, however,

to identifying and producing loan data for “additional loans sold

to [the] plaintiffs.” (Def. Memo. at 18-19).

As expressed, the defendants’ objection is nearly

unintelligible. Having agreed to produce information related to

“any loan” with a nexus to the commercial relationship between the

parties “including other loans purchased by [the] [p]laintiffs,” it

is unclear how they can then refuse to produce information about

“additional loans sold to the plaintiffs.” Is there some

unexplained difference between loans the plaintiffs purchased from

the defendants and loans the defendants sold to the plaintiffs?

It appears from the context, however, that the defendants

object to producing information identifying loans included in the

RCV1 database, which have been charged-off for accounting purposes.

(Def. Memo. at 18). According to a declaration from Michael J.

Zeeb, a Vice President of Mortgage Banking Recovery at JPMorgan

Chase Bank, the RCV1 loans “cannot normally be queried using the

identity of the entity to which a loan has been sold.”

(Declaration of Michael J. Zeeb dated June 10, 2016, attached as

Exh. 5 to Def. Memo., ¶ 4; Def. Memo. at 18-19).

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The plaintiffs therefore ask for a Rule 30(b)(6) deposition to

challenge that assertion. (Pl. Reply at 9). But they have

provided no factual basis to support their skepticism about the

defendants’ explanation of the workings of the RCV1 database. Such

a deposition is therefore an unsuitable remedy at this time.

However, if the defendants maintain other databases containing the

requested information about loans sold to the plaintiffs that can

be searched by reference to the identity of the buyer of the loan,

the defendants shall produce such information.9

2. Request Nos. 16-18 and 21

These requests seek documents related to the servicing,

foreclosure, charge-off amount, and payment of any loan included on

the Corrupted List. (App’x 2 at 34-37). The defendants have

agreed to “query the appropriate database(s) and retrieve any

reasonably accessible data regarding the loans,” and argue that

therefore the motion to compel is moot as to these requests. (Def.

Memo. at 17-18). The plaintiffs object that the use of the terms

“‘appropriate database(s)’ and ‘reasonably accessible data’ gives

[the] [d]efendants far too much license to withhold responsive

documents.”10 (Pl. Reply at 10).

9
The defendants’ suggestion that this request is
objectionable because it is the plaintiffs’ responsibility to
“identify the specific loans that form the basis of their claims”
(Def. Memo. at 19) is unavailing. The request seeks information
that is within the bounds of Rule 26’s broad definition of
relevance.
10
The plaintiffs also object to the custodians and search
terms that the defendants propose, but the parties have agreed to
meet and confer to resolve that disagreement. (Pl. Reply at 10
n.5).

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Rule 26 requires that a party produce electronically stored

information insofar as it is “reasonably accessible,” and even

where it is not reasonably accessible “if the requesting party

shows good cause.” Fed. R. Civ. P. 26(b)(2)(B) & advisory

committee’s note to 2006 amendments; see also Star Direct Telecom,

Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358

(W.D.N.Y. 2011). The rule also requires the responding party to

identify, by category or type, the sources containing

potentially responsive information that it is neither
searching nor producing. The identification should, to
the extent possible, provide enough detail to enable the
requesting party to evaluate the burdens and costs of
providing the discovery and the likelihood of finding
responsive information on the identified sources.

Fed. R. Civ. P. 26 advisory committee’s note to 2006 amendments.

Here, the defendants have offered a Rule 30(b)(6) witness to

testify on some subjects relevant to the plaintiffs’ concerns: (1)

the general retention policies applicable to the defendants’

mortgage lending and debt sale business; (2) the document retrieval

procedures used in this case; and (3) the location, storage, and

maintenance of (a) communications with or regarding the plaintiffs

and (b) communications and documents or data relating to loans sold

or offered to the plaintiffs.11 (Email of Christian Pistilli dated

June 8, 2016, attached as part of Exh. A to Pl. Surreply). When

this additional information is produced along with the defendants’

11
The defendants have not agreed to produce a witness to
testify as to electronic database retrieval systems generally, so
the offered witness will presumably not testify as to the
assertions made in Mr. Zeeb’s declaration mentioned above. (Pl.
Surreply, ¶ 4; Email of Suzan Arden dated June 9, 2016, attached as
part of Exh. A to Pl. Surreply).

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responsive documents, the plaintiffs should be able to better

assess the likelihood that other databases would include relevant

data.

3. Request Nos. 28 and 3212

These requests seek data about loans that were the subject of

debt forgiveness letters sent out on September 13, 2012, December

13, 2012, and January 12, 2013, and about liens that were released

pursuant to the Pre-DOJ Lien Release Project. (App. 2 at 37). The

defendants argue that these requests are overbroad,

disproportionate, and irrelevant because they do not relate only to

loans purchased by the plaintiffs. (Def. Memo. at 19). The

plaintiffs respond that, as the defendants have indicated that they

are incapable of determining the entire universe of loans were sold

to the plaintiffs and because the operative complaint alleges that

some loan numbers were altered, post-sale, this data will

“provide[] a failsafe mechanism for [the] [p]laintiffs to check

their loans against the full list . . . without allowing [the]

[d]efendants the option of concealing [] information if it resides

in an inappropriate database or somehow proves not to be

‘reasonably accessible.’” (Pl. Reply at 10).

According to the plaintiffs, more than 50,000 loan forgiveness

letters were sent out on the relevant dates, and “tens of

12
Some of the parties’ papers misidentify the second request
for production at issue as No. 31. (Def. Memo. at 19; Pl. Reply at
10). However, it is actually No. 32. (Pl. Memo. at 25; App. 2 at
37; Defendants’ Objections and Responses to Plaintiffs’ First
Request for the Production of Documents to All Defendants, attached
as Exh. A to Declaration of Helen Davis Chaitman dated May 27,
2016, at 24-25).

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