153 Memorandum of Law

Case 1:15-cv-00293-LTS-RWL Document 153 Filed 03/14/17 Page 1 of 30
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
-------------------------------- x
S & A CAPITAL PARTNERS, INC., :
MORTGAGE RESOLUTION SERVICING, :
LLC, and 1ST FIDELITY LOAN :
SERVICING, LLC, : No. 15-cv-00293-LTS-JCF
Plaintiffs, :
:
- v. - :
:
JPMORGAN CHASE BANK, N.A., :
JPMORGAN CHASE & CO., and CHASE :
HOME FINANCE LLC, :
:
Defendants. :
-------------------------------- x
DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’

MOTION TO COMPEL DISCOVERY AND IN SUPPORT OF DEFENDANTS’ CROSS-
MOTION FOR PROTECTIVE ORDER
Robert D. Wick
Christian J. Pistilli
Philip J. Levitz
COVINGTON & BURLING LLP
One CityCenter, 850 Tenth Street, NW
Washington, DC 20001-4956
(202) 662-6000
Michael C. Nicholson
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
(212) 841-1000
Attorneys for Defendants

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
A. Plaintiffs’ Complaint ............................................................................................... 2
B. The Dismissal of Plaintiffs’ RICO and Tort Claims ............................................... 3
C. Discovery in This Action ........................................................................................ 3
LEGAL STANDARD..................................................................................................................... 8
ARGUMENT .................................................................................................................................. 9
I. PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF ADDITIONAL

DOCUMENTS SHOULD BE DENIED. ........................................................................... 9
A. Plaintiffs Failed to Comply with Local Rule 37.1. ................................................. 9
B. Chase Has Produced All Responsive Loan Data and Documents Located
in a Comprehensive Search. .................................................................................. 10
C. Chase Counsel’s Analysis and Investigation for the Dismissed Qui Tam
Action Is Irrelevant and Privileged. ...................................................................... 13
D. Plaintiffs’ Request for Additional Custodians Is Premature and

Disproportionate to the Needs of the Case. .......................................................... 14
II. PLAINTIFFS’ REQUEST FOR A PRIVILEGE LOG IS MOOT. .................................. 18
III. PLAINTIFFS’ OVERBROAD 30(B)(6) NOTICE SHOULD BE QUASHED. .............. 20
CONCLUSION ............................................................................................................................. 24
i
TABLE OF AUTHORITIES
Page(s)
Cases
Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc.,

2013 WL 1195545 (S.D.N.Y. Mar. 25, 2013) .........................................................................17
Barton Grp., Inc. v. NCR Corp.,

2009 WL 6509348 (S.D.N.Y. July 22, 2009) ..........................................................................11
Brown v. Chappius,
2014 WL 1795015 (W.D.N.Y. May 6, 2014) ....................................................................10, 12
Dongguk Univ. v. Yale Univ.,

270 F.R.D. 70 (D. Conn. 2010)................................................................................................23
Douglas v. Victor Capital Grp.,

1997 WL 716912 (S.D.N.Y. Nov. 17, 1997) ...........................................................................20
Eng-Hatcher v. Sprint Nextel Corp.,

2008 WL 4104015 (S.D.N.Y. Aug. 28, 2008) .........................................................................22
FDIC v. Wachovia Ins. Servs., Inc.,

2007 WL 2460685 (D. Conn. Aug. 27, 2007) .........................................................................24
Five Borough Bicycle Club v. City of N.Y.,

2008 WL 704209 (S.D.N.Y. Mar. 10, 2008) ...........................................................................11
Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99
(S.D.N.Y. 2013) ...........................................................................................................16, 17, 18
Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co., 2013 WL 6439069
(S.D.N.Y. Dec. 9, 2013) ..........................................................................................................21
Fort Worth Emps.’ Ret. Fund v. v. J.P. Morgan Chase & Co., 2015 WL 1726435
(S.D.N.Y. Apr. 15, 2015) ........................................................................................................19
Foster v. City of N.Y.,

2016 WL 524639 (S.D.N.Y. Feb. 5, 2016) ..............................................................................19
Henry v. Morgan’s Hotel Grp., Inc.,

2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) ..........................................................................8, 9
Innomed Labs, LLC. v. Alza Corp.,

211 F.R.D. 237 (S.D.N.Y. 2002) .............................................................................................21
ii
Lightsquared Inc. v. Deere & Co.,

2015 WL 8675377 (S.D.N.Y. Dec. 10, 2015) ...................................................................16, 18
Nunez v. City of N.Y.,

2013 WL 2149869 (S.D.N.Y. May 17, 2013) .........................................................................11
Pem-Am., Inc. v. Sunham Home Fashions, LLC,

2007 WL 3226156 (S.D.N.Y. Oct. 31, 2007) ..........................................................................19
Prescient Partners, L.P. v. Fieldcrest Cannon, Inc.,

1998 WL 67672 (S.D.N.Y. Feb. 18, 1998) ..............................................................................15
R.F.M.A.S., Inc. v. So,

271 F.R.D. 13 (S.D.N.Y. 2010) ...............................................................................................11
Robertson v. People Magazine,

2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) ...........................................................................9
Sanofi-Synthelabo v. Apotex Inc.,

2009 WL 5247497 (S.D.N.Y. Dec. 30, 2009) .........................................................................23
Schwartz v. Mktg. Pub. Co.,

153 F.R.D. 16 (D. Conn. 1994)................................................................................................12
Sheehy v. Ridge Tool Co.,

2007 WL 1548976 (D. Conn. May 24, 2007) ..........................................................................21
Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc.,

255 F.R.D. 340 (W.D.N.Y. 2009) ............................................................................................22
Trilegiant Corp. v. Sitel Corp.,

2012 WL 1883343 (S.D.N.Y. May 22, 2012) .........................................................................15
United States v. Briggs,

831 F. Supp. 2d 623 (W.D.N.Y. 2011) ....................................................................................11
United States v. Ghavami,

882 F. Supp. 2d 532 (S.D.N.Y. 2012)......................................................................................14
Yoon v. Celebrity Cruises, Inc.,

1999 WL 135222 (S.D.N.Y. Mar. 12, 1999) ...........................................................................21
In re Zyprexa Prod. Liab. Litig.,

2009 WL 1310890 (E.D.N.Y. May 8, 2009) ...........................................................................12
Rules
Fed. R. Civ. P. 26(b)(1)....................................................................................................8, 9, 15, 22
iii
Fed. R. Civ. P. 26(b)(2)....................................................................................................................9
Fed. R. Civ. P. 26(c)(1) ....................................................................................................................9
Fed. R. Civ. P. 30(b)(6).......................................................................................................... passim
Fed. R. Civ. P. 34 .....................................................................................................................11, 12
Fed. R. Civ. P. 37(a)(1) ..................................................................................................................15
Local Civil Rule 37.1 .......................................................................................................................9
iv
PRELIMINARY STATEMENT
As Judge Swain’s recent order dismissing Plaintiffs’ RICO claim confirms, this is a
straightforward breach of contract action focused primarily on a pool of distressed mortgage
loans that Plaintiffs purchased from Chase in 2009. In response to Plaintiffs’ burdensome
discovery requests, Chase has already produced approximately 370,000 pages of documents.
Plaintiffs nevertheless filed this motion, more than a year into the discovery period, seeking still
more documents and discovery. For several reasons, Plaintiffs’ motion should be denied, and
Chase’s cross-motion for a protective order should be granted.
First, Chase has already produced or agreed to produce all responsive documents and
data related to the commercial relationship between Plaintiffs and Chase that can be located
through a comprehensive search. Plaintiffs’ main grievance appears to be not that Chase has
failed to produce responsive documents, but that Plaintiffs have had difficulty analyzing and
understanding the materials they have been given. The law is clear, however, that parties are not
required to create new documents to help their adversaries understand the materials produced in
discovery.
Second, the additional document discovery sought in Plaintiffs’ motion is irrelevant,
disproportionate to the needs of the case, and beyond the scope of Plaintiffs’ document requests.
Plaintiffs complain that they are entitled to additional “loan data,” but Chase has already
provided loan data to Plaintiffs, and the only data elements that Plaintiffs identify as missing
were not included in their document requests. Moreover, although Plaintiffs now ask Chase to
retrieve documents from the files of five additional document custodians, those custodians
played no role in the commercial relationship between Plaintiffs and Chase. Instead, these
custodians—if relevant to anything at all—would be relevant at most to Plaintiffs’ now-
dismissed RICO claim and the now-dismissed qui tam action that was separately filed by
1
Plaintiffs’ owner and operator.
Third, Plaintiffs’ request for a privilege log should be denied as moot. On July 14, 2016,
this Court granted in part Plaintiffs’ motion to compel insofar as it sought documents regarding
Chase’s efforts to release certain liens and forgive certain debts. The Court’s order required
Chase to review and collect a voluminous quantity of materials, much of which was privileged.
In an effort to produce documents as quickly as possible, Chase made rolling productions and
promised to deliver a privilege log by the end of February 2017, shortly after the completion of
its production. Yet Plaintiffs inexplicably filed a motion to compel production of a privilege log
only a few hours before Chase produced its privilege log on February 28 as promised.
Fourth, the topics set out in Plaintiffs’ Rule 30(b)(6) deposition notice are overbroad,
unduly burdensome, and fail to identify the topics for examination with reasonable particularity.
Plaintiffs’ deposition notice seeks testimony from a corporate representative regarding 23
distinct topics and 30 additional subtopics. As just one example, Plaintiffs seek a witness to
testify regarding how Chase’s “data”—without any further limitation—“is collected, stored,
maintained and deleted.” Chase has more than 240,000 employees and operations in more than
100 countries. Plaintiffs’ request for a corporate designee to testify regarding all Chase “data”—
and other comparably broad requests—is overbroad and oppressive. For these reasons and the
additional reasons set forth below, Plaintiffs’ Rule 30(b)(6) deposition notice should be quashed.
BACKGROUND
A. Plaintiffs’ Complaint
In 2009, Plaintiff Mortgage Resolution Servicing, LLC (“MRS”) purchased a pool of
distressed mortgage loans from Chase pursuant to a Mortgage Loan Purchase Agreement
(“MLPA”). Declaration of Christian J. Pistilli (“Pistilli Decl.”) Ex. A (Third Amended
Complaint), ¶ 38. Although the total face value of the loans exceeded $150,000,000, MRS paid
2
only $200,000 for the pool. Id. ¶¶ 38, 40.
Plaintiffs’ Third Amended Complaint alleges that Chase fraudulently induced MRS to
enter into the MLPA and then breached the MLPA by delivering defective and non-conforming
loans. Id. ¶¶ 46-79. Plaintiffs also allege that Chase improperly released liens and forgave debts
relating to loans sold to Plaintiffs. Id. ¶¶ 103-145. Finally, Plaintiffs allege that Chase
orchestrated a fraudulent scheme to evade its obligations under a pair of settlement agreements
with the federal government—the 2012 National Mortgage Settlement (“NMS”) and the 2013
Residential Mortgage-Backed Securities Settlement (“RMBS”). Id. ¶¶ 201-220. The latter
allegations formed the basis of a RICO treble damages claim that the Court has now dismissed.
Id. ¶ 209.
B. The Dismissal of Plaintiffs’ RICO and Tort Claims
On February 13, 2017, Judge Swain granted Chase’s motion to dismiss Plaintiffs’ RICO,
conversion, slander of title, and tortious interference claims. Pistilli Decl. Ex. B, at 6-11. Judge
Swain’s order left intact only Plaintiffs’ breach of contract claims (which Chase did not move to
dismiss) and MRS’s fraudulent inducement and negligent misrepresentation claims, which relate
exclusively to the circumstances surrounding its decision to enter into the MLPA. Id. at 8.
Although Plaintiffs recently moved for leave to amend their complaint for a fourth time,
the proposed amendments fail to cure the defects identified in Judge Swain’s dismissal order,
and Chase intends to oppose that motion.
C. Discovery in This Action
1. Document discovery
On January 8, 2016, Plaintiffs served document requests on Chase. Pistilli Decl. Ex. C.
In response, Chase agreed to provide Plaintiffs with extensive discovery relating to Plaintiffs’
breach of contract and commercial tort allegations, including:
3
v Communications with or regarding Plaintiffs;
v Documents relating in any way to the MLPA;
v Data regarding the loans purchased by Plaintiffs; and
v Documents relating to debt forgiveness letters and lien releases for Plaintiffs’ loans.
Pistilli Decl. Ex. D (Responses 1-3, 6, 8-25, 28, 30, 32).
To identify responsive documents, Chase agreed to (i) search for responsive loan data,
(ii) search the custodial files of eight current and former Chase employees who interacted with
Plaintiffs and the disputed loans, and (iii) apply a set of search terms to the documents of the
eight custodians. Id. & Appendix A-B. Pursuant to these procedures, Chase produced
approximately 22,000 pages of documents.1
Chase did not, however, agree to provide certain additional discovery requested by
Plaintiffs, including discovery unrelated to the relationship between Plaintiffs and Chase. On
May 27, 2016, Plaintiffs moved to compel production of many of these documents. On July 14,
2016, this Court denied Plaintiffs’ motion in part, granted it in part, and granted Chase’s cross-
motion for a stay of discovery on Plaintiffs’ RICO claim. Pistilli Decl. Ex. F.
Significantly, the Court’s July 2016 order rejected Plaintiffs’ argument that they could
seek discovery in this action that is relevant only to the separate qui tam action filed by
Plaintiffs’ owner and operator, Laurence Schneider. Id. at 9-11. On the other hand, the Court
accepted Plaintiffs’ argument that Chase should be required to produce the following two sets of
documents:
1. “Documents focused on the loans that the defendants sold to the plaintiffs” (which, as
1
At Plaintiffs’ request, Chase is currently in the process of reviewing and producing additional
documents from these custodians using an expanded set of search terms agreed to by Plaintiffs.
Pistilli Decl. Ex. E.
4
the Court acknowledged, Chase had already “agreed to produce”); and
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, 201[3]” and “similar documents relating to the Pre-DOJ Lien
Release Program.”
Id. at 11-12.2
With respect to the first of these two categories—loans purchased by Plaintiffs—the
Court accepted Chase’s representation that it is unable to search its RCV1 database to identify
the purchaser of a loan, but indicated that, if Chase “maintain[s] 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, [it] shall produce such information.” Id. at 18-19. As Chase
has repeatedly informed Plaintiffs, however, it does not maintain any database that can be
searched to identify the purchasers of charged-off mortgage loans like the loans purchased by
Plaintiffs. Pistilli Decl. Ex. G, at 3; Pistilli Decl. Ex. H, at 2.
Following the Court’s order, Chase began collecting and producing the documents
covered by the July 2016 order on a rolling basis. Chase produced documents from several
additional custodians with responsibility for the relevant issues, applying a new set of search
terms designed to capture material within the scope of the Court’s order. Chase also collected
and produced documents from a “shared drive” that was the principal repository for documents
and information relating to Chase’s efforts to release liens and forgive loans during the 2012-13
period. In addition, Chase continued the process of collecting and producing documents and data
relating to the loans that Plaintiffs claimed to have purchased, including any available data
2
In addition, the Court ordered Chase to produce “documents relating to the criteria and
processes defendants employed in deciding to place loans in the RCV1 database.” Pistilli Decl.
Ex. F, at 12-13. In response to this order, Chase has produced its policies and procedures
relating to the decision to charge-off mortgage loans and transfer the charged-off loans to RCV1.
5
regarding the borrower’s name and address, the loan amount, the borrower’s total payments, the
date of last payment, and the amount that Chase charged off for accounting purposes for each
non-performing loan.
On November 10, 2016, Plaintiffs for the first time asked Chase to produce the “analysis
and investigation relied upon by [Chase outside counsel] Robert Wick” in two letters that Mr.
Wick sent in connection with the now-dismissed qui tam action. Pistilli Decl. Ex. I, at 2. These
letters addressed whether Chase had claimed credit under the NMS for releasing certain loans
referenced in the qui tam complaint. Pistilli Decl. Exs. J-K. Chase responded by explaining that
“in addition to being work product and attorney-client privileged,” counsel’s “analysis and
investigation” in preparing the letters “is neither encompassed within the terms of the July 14
order nor even arguably relevant to the private commercial dispute between Chase and Plaintiffs
at issue in this action.” Pistilli Decl. Ex. G, at 2.
On December 6, 2016, more than nine months after Chase informed Plaintiffs of the
custodians and search terms it intended to use for its document production, Plaintiffs for the first
time requested that Chase add six additional custodians and 28 additional search terms. Pistilli
Decl. Ex. L, at 1-2. The parties reached a compromise on Plaintiffs’ request for additional search
terms (Pistilli Decl. Ex. E), but remain divided as to five of the six additional custodians
requested by Plaintiffs (Pistilli Decl. Ex. M, at 2). As to these five custodians—Panickos
Palettas, Nancy Rubino, Jonathan Driver, Steve Hemperly, and Joy Palazzo, Esq.—Chase
informed Plaintiffs that, on the basis of a reasonable investigation, it does not believe that these
individuals possess relevant, non-cumulative information relating to the business dispute
between Plaintiffs and Chase. Id. Chase also noted that the vast majority of the documents in
the custodial files of Ms. Palazzo, who was an in-house lawyer for Chase, reflect privileged legal
6
advice. Id. Chase added, however, that “[i]f Plaintiffs have a basis for believing that these
individuals are likely to possess material, non-cumulative documents relevant to any non-stayed
claim in this case, please let us know that basis so that we may consider the issue further.” Id.
Plaintiffs replied that “[w]e will follow-up in a separate letter regarding our justification
for these custodians.” Pistilli Decl. Ex. N, at 3. Plaintiffs later reiterated, “[a]s previously stated,
Plaintiffs will be providing justification for the additional requested custodians after
consideration of your most recent production.” Pistilli Decl. Ex. O, at 2. Chase, however, never
received the promised “justification.”
On February 8, 2017, Chase informed Plaintiffs that its production in response to the
Court’s July 14, 2016 order was complete. Pistilli Decl. Ex. H, at 2. In the same letter, Chase
informed Plaintiffs that it intended to produce a privilege log for the documents produced in
response to the Court’s order by the end of February. Id. at 2. On February 28, 2017, Chase
produced that privilege log as promised. Pistilli Decl. Ex. P.
All told, Chase has already produced over 82,000 documents, totaling nearly 370,000
pages, in this action. Chase is currently in the process of producing additional documents
pursuant to the recent compromise it reached with Plaintiffs with respect to additional search
terms.
2. Rule 30(b)(6) notice
In April 2016, Plaintiffs served a Rule 30(b)(6) deposition notice on Chase. It sought
testimony from a corporate representative regarding 53 distinct topics and subtopics. A copy of
the noticed topics is attached hereto. See Pistilli Decl. Ex. Q.
After requesting a telephonic meet-and-confer with Plaintiffs on April 22, 2016, Chase
informed Plaintiffs on April 28, 2016 that it intended to seek a protective order regarding
Plaintiffs’ 30(b)(6) notice on the ground that the notice “fails to give reasonable notice, is
7
overbroad, and is not reasonably particularized (among other things).” Pistilli Decl. Ex. R. After
further discussions, on June 8, 2016, Chase informed Plaintiffs that, “[a]s a compromise,” if
Plaintiffs withdrew their overbroad notice, Chase would offer a corporate designee on a narrower
set of topics.3 Plaintiffs declined to accept Chase’s proposed compromise at that time, but
agreed to hold their Rule 30(b)(6) notice in abeyance pending further clarification from the Court
regarding the appropriate scope of discovery. Pistilli Decl. Ex. S.
Five months later, on November 10, 2016, Plaintiffs renewed their request for a Rule
30(b)(6) deposition. Pistilli Decl. Ex. H, at 3. Chase responded by seeking to determine whether
Plaintiffs now intended to withdraw their overbroad Rule 30(b)(6) notice and accept Chase’s
offer of compromise. Pistilli Dec. Ex. G, at 3. After further discussion, Plaintiffs declined that
offer and filed this motion. Pistilli Decl. Ex. T, at 1-2.
LEGAL STANDARD
Pursuant to Rule 26(b)(1), parties may obtain discovery regarding “nonprivileged
matter[s] that [are] 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). “The burden of demonstrating relevance
remains on the party seeking discovery.” Henry v. Morgan’s Hotel Grp., Inc., 2016 WL 303114,
3
Pistilli Decl. Ex. S. The topics were: (1) “General retention policies and procedures for
electronic documents (i.e., emails, calendars and shared drives) applicable to Chase’s mortgage
lending and/or debt sale businesses, including the use of back-up tapes”; (2) “The document
retrieval procedures used for electronic documents in this case, including the retention periods
applicable to each custodian that Chase has committed to produce”; and (3) “The location,
storage and maintenance of (a) communications with or regarding Plaintiffs, (b) communications
relating to loans sold or offered for sale to Plaintiffs, and (c) documents and data regarding loans
sold to Plaintiffs or offered to Plaintiffs.” Id.
8
at *3 (S.D.N.Y. Jan. 25, 2016). The proportionality rule, as amended, is intended to “‘encourage
judges to be more aggressive in identifying and discouraging discovery overuse.’” Id. (citing
Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment); see also Robertson v.
People Magazine, 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (amendment “serves to
exhort judges to exercise their preexisting control over discovery more exactingly”). Pursuant to
Rule 26(b)(2), “the court must limit the frequency or extent of discovery otherwise allowed . . . 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).
Under Rule 26(c)(1), this Court may grant a protective order to protect a party from
requested discovery that imposes any “undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
ARGUMENT
I. PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF ADDITIONAL

DOCUMENTS SHOULD BE DENIED.
A. Plaintiffs Failed to Comply with Local Rule 37.1.
Under Local Civil Rule 37.1, a party filing a motion to compel “shall specify and quote
or set forth verbatim in the motion papers each discovery request and response to which the
motion or application is addressed” and “set forth the grounds upon which the moving party is
entitled to prevail as to each request or response.” Here, Plaintiffs’ motion wholly fails to satisfy
this requirement. This is no mere technical defect: Chase’s ability to respond to Plaintiffs’
motion is materially prejudiced by its inability to discern which specific document request
purportedly applies to the ill-defined categories of documents sought in the motion. Indeed, in
9
several instances described further below, Plaintiffs’ motion appears to seek documents or data
that are not encompassed by any of Plaintiffs’ document requests. See Brown v. Chappius, 2014
WL 1795015, at *5 (W.D.N.Y. May 6, 2014) (“It is basic that a party seeking to compel
discovery must first serve formal discovery demands.”). For this threshold reason, Plaintiffs’
motion to compel the production of additional documents should be denied.
B. Chase Has Produced All Responsive Loan Data and Documents Located in a
Comprehensive Search.
Plaintiffs’ request for additional “loan data” and related loan documents, see Mem. 7-12,
should be rejected. Chase has already produced (or committed to produce) all of the responsive
documents it could identify after a comprehensive search of the relevant databases, custodial
files, and shared files.4 Plaintiffs’ motion provides no basis for believing that this production is
incomplete; rather, their main concern appears to be that the documents at issue are hard to
interpret and do not include all the information that Plaintiffs were hoping to obtain. Plaintiffs’
disappointment notwithstanding, Chase cannot produce documents that do not exist and, under
settled law, is not obligated to create new documents for Plaintiffs’ benefit.
Chase has already produced 370,000 pages of documents and data relating to the
commercial relationships between the parties and the loans at issue on Plaintiffs’ claims.
Contrary to Plaintiffs’ unsubstantiated assertion (Mem. 8-9, 10), this production included all
non-privileged documents relating to (1) the MLPA, and (2) Chase’s efforts to release liens and
4
Chase substantially completed its document production on February 6, 2017. Pistilli Decl. Ex.
U. For the first time, on November 10, 2016, Plaintiffs specifically requested copies of “the
1,000 or so individual note sale agreements between S & A Capital and 1st Fidelity on one hand
and JPMC on the other.” Pistilli Decl. Ex. I, at 2. Chase informed Plaintiffs that it “has
produced (or is in the process of producing) any note sale agreements that it has located to date.
To the extent that Chase is able to locate, by means of a reasonably diligent search, additional
note sales agreements . . . , it will produce those to Plaintiffs.” Pistilli Decl. Ex. V, at 2. Chase’s
search for and production of note sale agreements is ongoing.
10
forgive debts in the 2012-13 time period, that Chase was able to locate by means of a diligent
search. In fact, Plaintiffs’ own brief shows that Chase has provided substantial discovery to
Plaintiffs. For example, Plaintiffs assert that they have “examin[ed] dozens of unlabeled
spreadsheets received as part of thousands of documents produced by Chase during discovery,”
and purportedly determined that “more than 500 of the first lien mortgage loans that Chase
supposedly sold to MRS were lien released.” Mem. 10.
Plaintiffs assert that the documents Chase has produced are “incomplete,” “unlabeled,”
and “unexplained,” and further assert that they are “entitled to a full accounting” regarding the
disputed loans. Mem. 11. Under Rule 34, however, Chase has no obligation to “help plaintiff[s]
understand the existing evidence,” R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 44 (S.D.N.Y. 2010), or
to “re-sort evidence that [it] ha[s] already produced” for Plaintiffs’ ease of use, Five Borough
Bicycle Club v. City of N.Y., 2008 WL 704209, at *2 (S.D.N.Y. Mar. 10, 2008). To the contrary,
Chase was entitled to produce its responsive documents “as they are kept in the usual course of
business.” Fed. R. Civ. P. 34; see United States v. Briggs, 831 F. Supp. 2d 623, 629 (W.D.N.Y.
2011) (“a responding party need not categorize the production or label and organize them to
correspond to a specific request”). “While that [may be] inconvenient to the plaintiffs,” it “is
consistent with the Rule.” Five Borough Bicycle Club, 2008 WL 704209, at *2.
Chase also has no obligation to produce documents that “do not exist” or to “create
documents to clarify plaintiff’s claims.” Barton Grp., Inc. v. NCR Corp., 2009 WL 6509348, at
*1 (S.D.N.Y. July 22, 2009); accord R.F.M.A.S., 271 F.R.D. at 44 (no obligation “to create new
documents to help plaintiff understand the existing evidence”). This is because “the Federal
Rules evince a concern that discovery tools not be used to unduly shift the burden of analyzing
evidence from the requesting party to the responding party.” Nunez v. City of N.Y., 2013 WL
11
2149869, at *6 (S.D.N.Y. May 17, 2013) (citation omitted). Because Chase has produced
responsive documents and data regarding the disputed loans as they are kept in the ordinary
course of business, it has fulfilled its obligations under the Rules.
Plaintiffs’ assertion that they are entitled to “complete original loan file[s],” see Mem. 8,
also fails. As an initial matter, it is unclear precisely what documents or data Plaintiffs believe
are part of a “loan file” and what specific information they claim to be lacking. Chase has
already produced responsive data regarding, for example, borrowers’ names and addresses,
original principal amounts, borrowers’ total payments to Chase, payment date information, and
charge-off amounts. See, e.g., JPMC-MRS-00099526-00099577. To the extent Plaintiffs are
now seeking additional information—such as interest rates, lien positions, and borrowers’ phone
numbers, see Mem. 8-10—their motion fails for the fundamental reason that their document
requests did not request this information. See Chappius, 2014 WL 1795015, at *5 (“It is basic
that a party seeking to compel discovery must first serve formal discovery demands.”); Schwartz
v. Mktg. Pub. Co., 153 F.R.D. 16, 21 & n.12 (D. Conn. 1994) (if “documents were not requested
pursuant to Fed. R. Civ. P. 34,” then “Rule 37 does not by its terms apply”).5 Moreover, it would
be unfair and unduly burdensome at this late date to force Chase to redo its production of loan
data to include additional information that Plaintiffs failed to include in their original document
requests. See, e.g., In re Zyprexa Prod. Liab. Litig., 2009 WL 1310890, at *3 (E.D.N.Y. May 8,
2009) (late in the discovery period, “[t]he time for making such broad discovery demands has
5
In addition, Plaintiffs appear to be seeking certain additional loan data not because it is
relevant to their claims, but because of a perceived need to have this information in order to
“service” certain charged-off mortgage loan debt. See, e.g., Mem. 9 (“First, this spreadsheet
titled ‘Defendants’ Production of Loan Data - November 30, 2016’ is not sufficient for actually
servicing the 3,529 loans Chase supposedly sold to MRS.”). That, however, is plainly not a
proper basis for discovery in this action.
12
long since passed”).
C. Chase Counsel’s Analysis and Investigation for the Dismissed Qui Tam
Action Is Irrelevant and Privileged.
The Court should also deny Plaintiffs’ request for production of certain “analysis and
investigation by [Chase outside counsel] Robert Wick” that was undertaken in connection with
the now-dismissed qui tam action filed by Plaintiffs’ owner and operator, Laurence Schneider.
Mem. 12-14. The qui tam complaint alleged that Chase improperly claimed credit under the
NMS for forgiving certain loans that Chase had sold to Plaintiffs. In response to those
allegations, Chase’s counsel wrote to Schneider’s counsel, explaining that:
For each lien identified in the complaint, Chase has investigated whether it
claimed credit for the lien and whether it was entitled to do so. With two
exceptions, Chase did not, in fact, claim credit for the identified liens. The two
exceptions relate to liens that Chase repurchased before they were released. As a
result of the repurchases, Chase owned both of the liens for which credit was
claimed.
Pistilli Decl. Ex. J; see also Pistilli Decl. Ex. K (similar). The Court should deny Plaintiffs’
request for counsel’s analysis and investigation of these issues for two main reasons.
First, counsel’s analysis and investigation of Chase’s course of conduct under the NMS is
utterly irrelevant to the remaining claims in this action. The remaining claims that come closest
to these issues are breach of contract claims alleging that Chase improperly released the liens on
certain loans that Plaintiffs purchased from Chase. The only questions presented by those
contract claims, however, are (i) whether Chase in fact released the liens at issue, (ii) whether
doing so breached any contracts between Chase and Plaintiffs, and (iii) whether Plaintiffs were
harmed by any such breaches. Counsel’s analysis of Chase’s NMS conduct has nothing to do
with these issues. Plaintiffs’ request for production of this analysis therefore flies in the face of
this Court’s July 2016 order that Plaintiffs may not use this action to seek discovery relevant
13
only to the now-dismissed qui tam action.6
Second, counsel’s “analysis and investigation” is not subject to discovery. Under the
work product doctrine, “an attorney’s analysis made in anticipation of litigation” is subject to a
“virtually absolute” privilege, on the theory that “an opponent should not benefit from an
attorney’s efforts.” United States v. Ghavami, 882 F. Supp. 2d 532, 539-540 (S.D.N.Y. 2012).
Further, “the work product doctrine protects more than the mental impressions and strategies of
counsel: fact work product may encompass factual material, including the result of a factual
investigation.” Id. at 540 (internal quotation marks omitted). Thus, any analysis that Chase’s
counsel conducted for the qui tam action is immune from discovery.
D. Plaintiffs’ Request for Additional Custodians Is Premature and

Disproportionate to the Needs of the Case.
Plaintiffs’ request that Chase produce documents from five additional custodians should
be denied as premature and because it exceeds the proper scope of discovery under Rule 26.7
First, Plaintiffs have not satisfied Rule 37’s meet-and-confer requirement, which
provides that, before filing a motion to compel, a party must first “confer[] or attempt[] to confer
6
Plaintiffs assert that the Wick letters “squarely contradict” Chase’s “represent[ation] to the
court that [Chase is] unable to search the loans which were sold to the Plaintiffs.” Mem. 13. Not
so. In his qui tam complaint, Schneider identified specific loans for which he claimed that Chase
improperly claimed credit, and Chase’s investigation was avowedly limited to those specific
loans. See Pistilli Decl. Ex. J (“For each lien identified in the complaint . . . .”).
7
Plaintiffs also seek additional documents from a custodian whose files Chase previously
agreed to produce: former employee Mark Davis. See Mem. 14. In the course of responding to
this motion, undersigned counsel learned that Chase had inadvertently retrieved the custodial file
of a former employee named Mark Davis who is not at issue in this case. While Chase identified
the “right” Mark Davis and preserved his documents at the start of this litigation, during the
document excavation process, documents were collected from the “wrong” Mark Davis, who,
like the “right” Mark Davis, also separated from Chase in March 2015. Chase regrets this
mistake and has already begun the process of reviewing and producing documents from the
“right” Mark Davis on an expedited basis.
.
14
with the person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” Fed. R. Civ. P. 37(a)(1). Here, when Plaintiffs first requested that Chase produce
documents from five additional custodians (nine months after Chase informed Plaintiffs of the
custodians it was searching), Chase informed Plaintiffs that it did not believe that these
custodians possessed any relevant, non-cumulative, non-privileged information. Pistilli Decl.
Ex. M, at 2. Chase nevertheless invited Plaintiffs to “please let us know” of any basis Plaintiffs
might have for believing otherwise, “so that we may consider the issue further.” Id. In response,
Plaintiffs twice indicated that they would “follow-up in a separate letter regarding our
justification for these custodians.” Pistilli Decl. Ex. N, at 3; Pistilli Decl. Ex. O, at 2. Chase
never received Plaintiffs’ promised letter; instead, Plaintiffs filed this motion.
“Under ordinary circumstances . . . the failure to meet and confer mandates denial of a
motion to compel.” Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., 1998 WL 67672, at *3
(S.D.N.Y. Feb. 18, 1998). “This requirement is not a mere formalism; rather, it is designed to
‘encourage cooperation, requiring parties to work with opposing counsel to clarify discovery
requests and resolve apparent deficiencies in discovery responses rather than resorting to formal
motion practice in the first instance.’” Trilegiant Corp. v. Sitel Corp., 2012 WL 1883343, at *2
(S.D.N.Y. May 22, 2012) (quoting R.F.M.A.S., 271 F.R.D. at 43). Plaintiffs should be held to
the meet-and-confer rule here, so as not to place an unnecessary burden on this Court.
Second, based on the information Chase has reviewed to date, it continues to believe that
the additional custodians do not possess relevant, non-cumulative, non-privileged information.
Rule 26(b)(1) provides that parties may obtain discovery only regarding matters relevant to the
parties’ claims and “proportional to the needs of the case,” considering, among other things, “the
importance of the issues at stake in the action,” “the amount in controversy,” and “whether the
15
burden or expense of the proposed discovery outweighs its likely benefit.” The requesting party,
moreover, “bears the burden” of justifying a request for additional custodians. Lightsquared Inc.
v. Deere & Co., 2015 WL 8675377, at *5 (S.D.N.Y. Dec. 10, 2015). And where, as here, “the
defendants have already included [relevant] custodians,” the Plaintiffs must show not only that
the additional custodians possess relevant information, but that they possess “unique relevant
information not already obtained.” Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co.,
297 F.R.D. 99, 107 (S.D.N.Y. 2013). Plaintiffs have not met that burden.
Conspicuously absent from Plaintiffs’ justification for the additional custodians is any
indication that these five witnesses were involved in (1) the commercial relationship between
Plaintiffs and Chase, (2) the negotiation of Plaintiffs’ contracts with Chase, or
(3) communications regarding alleged lien releases or debt forgiveness letters impacting loans
purchased by Plaintiffs. For example, the justification that Plaintiffs offer for seeking documents
from Chase in-house counsel Joy Palazzo is that she was “responsible for . . . communications
with the Monitor of the National Mortgage Settlement, Joseph A Smith, Jr., and his office.”
Mem. 15. Plaintiffs, however, do not explain how Chase’s communications with the NMS
Monitor would be remotely relevant to the straightforward contract claims that remain in this
case.8
Plaintiffs’ justifications for the other four custodians identified in their motion are
8
Plaintiffs cite an email exchange involving Joy Palazzo and the Monitor’s counsel as evidence
that Ms. Palazzo may possess relevant documents (see Mem. 16), but the email demonstrates the
opposite. The email memorializes an agreement between Chase and the Monitor that the
charged-off mortgage loans contained in RCV1 would not need to be included by Chase in
“metrics testing” used by the Monitor to determine Chase’s compliance with various servicing
standards under the NMS, if Chase released the liens on those loans. See Pistilli Decl. Ex. W
(JPMC-MRS-00368705-00368706). While that and similar communications might arguably be
relevant to Schneider’s now-dismissed qui tam claims, they plainly have no relevance to the
claims that remain in this case.
16
similarly infirm. For example, Plaintiffs seek documents from Steve Hemperly “because he
exerted senior responsibility” regarding lien releases in general. Mem. 18. But, as this Court has
explained, mere “speculat[ion]” that “positions . . . as senior executives ‘increase the relevance
of their files’” provides no basis to compel production. See Assured Guar. Mun. Corp. v. UBS
Real Estate Sec. Inc., 2013 WL 1195545, at *3-4 (S.D.N.Y. Mar. 25, 2013) (emphasis omitted)
(citation omitted).
Plaintiffs’ request for documents from former Chase employee Jonathan Driver also
misses the mark. While Mr. Driver, as Vice President of Lien Management, was in charge of the
Chase business unit that processed lien releases, Plaintiffs do not offer any evidence that he was
involved in identifying whether or not particular liens should be released or any other issue that
is arguably material to this case. Moreover, in the course of producing the custodial files of the
individuals likely to have documents material to Plaintiffs’ lien release-related allegations (as
well as documents from the “shared drive” used by Chase employees in connection with the
2012-13 lien release project), Chase produced over 5,600 email communications (to/from/cc/bcc)
involving Mr. Driver. Plaintiffs thus have not met their burden of showing “that there are unique
responsive documents being missed in the current search scheme.” Fort Worth Emps.’ Ret.
Fund, 297 F.R.D. at 107.9
Plaintiffs’ request for documents from Nancy Rubino fails for similar reasons. Plaintiffs
merely speculate that Ms. Rubino may have “unique knowledge” relevant to this case because
she was “in charge of RCV1 administrative support.” Mem. 17. That sort of unfounded
9
For the avoidance of doubt, any responsive, non-privileged communications involving the five
custodians requested by Plaintiffs would already have been produced if the communication was
stored in the “shared drive” used by Chase employees as the principal repository for documents
and communications relating to its lien release efforts.
17
speculation, however, is “not enough” to satisfy Plaintiffs’ burden. Lightsquared Inc., 2015 WL
8675377, at *5. Moreover, as with Mr. Driver, Chase’s existing productions include over 5,300
email communications involving Ms. Rubino, and there is no basis to infer that her remaining
files contain “unique relevant information.” Fort Worth Emps.’ Ret. Fund, 297 F.R.D. at 107.
Plaintiffs’ request for documents from Panickos Palettas likewise should be denied. Mr.
Palettas—whose title was “Decision Sciences, Statistical Models and Populations”—is an
information technology worker. He had no substantive responsibilities even remotely relevant to
any of the remaining claims in this case.
Finally, even assuming for the sake of argument that additional productions from these
five custodians might yield some marginally relevant, non-duplicative information, the collection
and production of documents from these individuals would be disproportionate to the needs of
the case. Chase estimates that the cost of reviewing and producing their documents would be
over $400,000. Declaration of Phil Verdelho ¶ 18. Accordingly, Plaintiffs’ request for these
additional custodians should be denied.
II. PLAINTIFFS’ REQUEST FOR A PRIVILEGE LOG IS MOOT.
Plaintiffs seek to compel production of a supplemental privilege log from Chase. Mem.
18-21. That request is moot.
Chase repeatedly explained to Plaintiffs that it would produce its supplemental privilege
log shortly after it completed its production in response to the Court’s July 2016 Order. E.g.,
Pistilli Decl. Ex. X, at 2; Pistilli Decl. Ex. V, at 3; Pistilli Decl. Ex. H, at 2. Chase also promised
that it would produce the log by the end of February. Pistilli Decl. Ex. H, at 2. That is precisely
what Chase did. See Pistilli Decl. Ex. P. Because the July 2016 Order required Chase to collect
and produce a large volume of documents, many of which included privileged content, Chase’s
358-page supplemental privilege log took substantial time to prepare. Chase did not wish to hold
18
up production of documents otherwise ready for production (including documents that were
redacted on privilege grounds) pending the completion of its supplemental privilege log, given
Plaintiffs’ requests to receive the documents as soon as possible.10 Chase therefore produced
those documents on a rolling basis, and provided its supplemental privilege log shortly after its
production of documents was complete. Thus, Plaintiffs’ motion to compel production of a
supplemental privilege log is now moot. See Fort Worth Emps.’ Ret. Fund v. v. J.P. Morgan
Chase & Co., 2015 WL 1726435, at *4 (S.D.N.Y. Apr. 15, 2015) (dispute concerning privilege
log is “moot” after adequate privilege log is produced).11
Plaintiffs’ memorandum also includes a lengthy quotation from a letter dated December
6, 2016, setting forth a list of seven purported deficiencies in Chase’s initial privilege log. See
Mem. 19-20. Chase does not understand Plaintiffs to be seeking any relief with respect to those
complaints—none of which are well-founded—and respectfully refers the Court to its December
19, 2016 letter for a full and complete response. Pistilli Decl. Ex. X.
Plaintiffs are wrong that Chase’s privilege logs are infirm because they do not assign
10
Plaintiffs assert that some of Chase’s “redactions d[o] not appear to relate to issues of
privilege but rather whether the document may be considered damaging to [Chase].” Mem. 19.
Plaintiffs, however, make this serious charge without any basis. As Chase previously informed
Plaintiffs’ counsel, “Chase redacted documents . . . solely on privilege or work product grounds.
If and when you raise questions regarding any specific redactions, we will address them as
appropriate.” Pistilli Decl. Ex. Y, at 2.
11
Plaintiffs’ now-moot suggestion that Chase should be deemed to have waived its privilege if it
did not produce a log was unwarranted. Even “failure to provide a privilege log” at all does not
alone “warrant a waiver of the attorney-client privilege.” Pem-Am., Inc. v. Sunham Home
Fashions, LLC, 2007 WL 3226156, at *2 (S.D.N.Y. Oct. 31, 2007). “‘Only ‘flagrant’ violations
. . . should result in a waiver of privilege.’” Id. (quoting In re InStore Adver. Sec. Litig., 163
F.R.D. 452, 457 (S.D.N.Y. 1995)). “[T]ardiness in providing a privilege log is not a ‘flagrant’
violation.” Id.; see also Foster v. City of N.Y., 2016 WL 524639, at *5 & n.9 (S.D.N.Y. Feb. 5,
2016) (declining to find waiver of privilege even when privilege log was both untimely and
substantively “deficient”). Here, given the volume of materials that Chase was required to
search and produce in response to the Court’s July 14, 2016 Order, Chase’s production of a
supplemental privilege log was not tardy, let alone the sort of “flagrant violation” that warrants a
finding of waiver.
19
Bates numbers to documents withheld on privilege grounds. That is a standard practice and
could not possibly result in any prejudice to Plaintiffs, especially since Chase included on its
privilege logs the page count for each individual document. Douglas v. Victor Capital Grp.,
1997 WL 716912 (S.D.N.Y. Nov. 17, 1997) is not to the contrary. That case says only that
“[n]umber-stamping document productions” is always appropriate. Id. at *3 (emphasis altered).
Chase has number-stamped all of the documents it produced.12
III. PLAINTIFFS’ OVERBROAD 30(B)(6) NOTICE SHOULD BE QUASHED.
Plaintiffs also ask for an order compelling Chase to identify a witness to testify on the 23
topics and 30 subtopics identified in their Rule 30(b)(6) deposition notice. Mem. 21-23. As
Chase has repeatedly explained to Plaintiffs, however, the Rule 30(b)(6) notice they served is
vague, overbroad, unduly burdensome, does not specify the topics for examination with
reasonable particularity, and seeks irrelevant information. See, e.g., Pistilli Decl. Ex. S; Pistilli
Decl. Ex. M, at 1-2. Chase previously offered to present a witness on a narrower set of topics,
but Plaintiffs declined that offer and elected to seek enforcement of their overbroad notice as
written. That notice is plainly defective and should be quashed in its entirety for the following
reasons.
First, the notice fails to satisfy Rule 30(b)(6)’s requirement that a deposition notice to a
corporation “must describe with reasonable particularity the matters for examination.” Fed. R.
Civ. P. 30(b)(6). “The purpose of this rule is to avoid the difficulties encountered by both sides
when the party to be examined is unable to determine who within the corporation would be best
12
Plaintiffs also complain that, after they raised a question regarding seven specific documents
on Chase’s privilege log, Chase responded that it would “re-review[] the documents . . . and, if
it determines that any of the documents should be produced, it will include them in its next
production of documents.” Pistilli Decl. Ex. X, at 2 (emphasis added). Contrary to Plaintiffs’
suggestion, this is precisely what responsible counsel should do where discrete questions are
raised (in good faith) regarding the inclusion of specific documents on a log.
20
able to provide the information sought.” Innomed Labs, LLC. v. Alza Corp., 211 F.R.D. 237, 240
(S.D.N.Y. 2002). Where the deponent is left guessing as to the topics for the deposition, the
notice should be quashed. See Yoon v. Celebrity Cruises, Inc., 1999 WL 135222, at *6
(S.D.N.Y. Mar. 12, 1999) (“[D]efendant[] cannot be expected to produce a proper witness
pursuant to Rule 30(b)(6) . . . if plaintiffs do not ‘describe with reasonable particularity the
matters on which examination is requested.’”).
Plaintiffs’ boilerplate notice makes no effort to satisfy this requirement. For example,
Plaintiffs seek a corporate representative deposition regarding “the subject matter outlined in the
Third Amended Complaint” (Pistilli Decl. Ex. Q, at 1), but numerous courts have recognized that
such a topic is “fatally vague.” See Fort Worth Emps.’ Ret. Fund v. J.P. Morgan Chase & Co.,
2013 WL 6439069, at *3 (S.D.N.Y. Dec. 9, 2013) (quashing request for testimony regarding
“‘[d]isputes of any kind’ relating to every aspect of the subject matter of this litigation”); accord
Sheehy v. Ridge Tool Co., 2007 WL 1548976, at *3-4 (D. Conn. May 24, 2007) (notice seeking
testimony from corporate representative who is “most knowledgeable as to the subject
Complaint” does not describe the issues to be addressed with “reasonable particularity” (citation
omitted)).
Second, the notice is vastly overbroad and reflects a wholesale failure to tailor the
requested discovery to the needs of the case. Plaintiffs seek an enormous range of information
on a total of 53 distinct topics and subtopics including:
v “How data is collected, stored, maintained and deleted” (Topic (c));
v “Policies and procedures regarding electronic records management” (Topic (h));
v “Company Database and Systems Administration” (Topic (w)); and
v “Network architecture….” (Topic (k)).
21
Each of these topics is enormous in scope.13 Chase is one of the largest banks in the world, with
multiple lines of business, millions of customers, hundreds of thousands of employees, and
dozens of distinct networks and information systems. No single Chase employee could
reasonably be expected to testify regarding even one of Plaintiffs’ fifty-three topics and
subtopics, much less all of them. Instead, it would likely take at least a dozen witnesses to
attempt to satisfy Plaintiffs’ blunderbuss deposition notice. The notice therefore should be
quashed. See, e.g., Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc., 255 F.R.D. 340, 349-
50 (W.D.N.Y. 2009) (rejecting topics that were “so broad that they will . . . fail to permit counsel
to ensure that the witnesses are prepared to answer specific questions on those topics”); Eng-
Hatcher v. Sprint Nextel Corp., 2008 WL 4104015, at *5 (S.D.N.Y. Aug. 28, 2008) (rejecting
topics as to which it would be “impossible for the defendants to identify the limits of the
inquiry”).
Third, Plaintiffs’ notice violates Rule 26(b)’s requirements that discovery must be
“relevant to [a] party’s claim or defense” and “proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1). Despite these requirements, Plaintiffs seek discovery on a wide range of
irrelevant issues such as:
v “Disaster Recovery Systems….” (Topic (r));
v “Instances of computer or systems failures and subsequent data recovery efforts”

(Topic (s));
v “Off-site Escrow Services” (Topic (o)); and
13
Other, similarly infirm requests include Topics (b), (d), (e), (f), (g), (i), (j), (l), (m), (n), (o),
(p), (q), (r), (s), (t), (u), and (v), as well as many subparts of Topic (a).
22
v “Online (third party hosted) repositories” (Topic (t)).14
Plaintiffs have no apparent need for any of this information. They do not allege, for example,
that the documents they seek were ever the subject of a disaster recovery effort or a systems
failure. These topics therefore fall outside the bounds of proper discovery. See Sanofi-
Synthelabo v. Apotex Inc., 2009 WL 5247497, at *2 (S.D.N.Y. Dec. 30, 2009) (issuing protective
order as to Rule 30(b)(6) notices “address[ing] topics that are not relevant”), aff’d, 659 F.3d 1171
(Fed. Cir. 2011).
Finally, several of Plaintiffs’ topics seek discovery of information that Chase has already
provided. For example, Plaintiffs served interrogatories seeking the identity of persons with
“knowledge or information that is potentially relevant to the subject matter of the action” and the
custodians of “documents that are potentially relevant to this matter.” See Pistilli Decl. Ex. Z
(Interrogatories 1, 3). Chase responded by identifying current and former Chase employees who
interacted with Plaintiffs and the relevant loans. See Pistilli Decl. Ex. D, Appendix A. Plaintiffs
also received these custodians’ documents and noticed depositions of most of them. Yet topics
(f) and (g) of the Rule 30(b)(6) notice nonetheless seek testimony regarding the “identity of
potential additional custodians” and “[w]hat is stored in individual custodians’ files.” Pistilli
Decl. Ex. Q. Plaintiffs already have the ability to see the answers to these questions for
themselves through the depositions they have noticed and the interrogatory responses and
documents they have received. Chase has no additional corporate knowledge to provide at a
Rule 30(b)(6) deposition on these topics. Plaintiffs’ request for cumulative and duplicative Rule
30(b)(6) discovery should be denied. See, e.g., Dongguk Univ. v. Yale Univ., 270 F.R.D. 70, 74
14
Other, similarly infirm requests include Topics (c), (h), (i), (j), (k), (l), (m), (n), (p), (q), (u),
(v) and (w), and many subparts of Topic (a). While certain subparts of Topic (a) might
potentially have been relevant to Plaintiffs’ RICO claim, that claim has now been dismissed.
23
(D. Conn. 2010) (“Courts have found Rule 30(b)(6) notices to be unduly burdensome which
merely request the duplication of other information already obtained through other discovery
methods.”); id. (“Where the notice seeks information which could more easily be obtained from
another source, the court may refuse to allow that topic to be the subject of a 30(b)(6)
deposition.”).
In sum, the 23 topics and 30 subtopics contained in Plaintiffs’ Rule 30(b)(6) notice are
facially overbroad and vastly disproportionate to the needs of the case. The court should
therefore quash the notice in its entirety. See, e.g., FDIC v. Wachovia Ins. Servs., Inc., 2007 WL
2460685, at *3 (D. Conn. Aug. 27, 2007) (it would be “abusive” to enforce a subpoena that
“seeks to burden [a party] with educating representatives with respect to twenty-seven areas of
inquiry (many of which are open ended)” and “many of which are of marginal, tangential, or
dubious relevance”); see also id. at *5 (where notice is facially deficient, Court may order
noticing party to “reformulate its proposed deposition topics,” without “addressing on an item-
by-item basis each of the topics”).
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion should be denied in its entirety and Chase’s
cross-motion for a protective order should be granted.
24
Dated: Washington, DC Respectfully submitted,

March 14, 2017
By: s/ Robert D. Wick

Robert D. Wick
Christian J. Pistilli
Philip J. Levitz
One CityCenter, 850 Tenth Street, NW
Washington, DC 20001-4956
Telephone: (202) 662-6000
Facsimile: (202) 662-6291
[email protected]
[email protected]
[email protected]
Michael C. Nicholson
The New York Times Building
620 Eighth Avenue
New York, New York 10018-1405
Telephone: (212) 841-1000
[email protected]
Attorneys for Defendants
25

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Case 1:15-cv-00293-LTS-RWL Document 153 Filed 03/14/17 Page 1 of 30

UNITED STATES DISTRICT COURT

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’

Attorneys for Defendants

PRELIMINARY STATEMENT .................................................................................................... 1

A. Plaintiffs’ Complaint ............................................................................................... 2

B. The Dismissal of Plaintiffs’ RICO and Tort Claims ............................................... 3

C. Discovery in This Action ........................................................................................ 3

I. PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF ADDITIONAL

A. Plaintiffs Failed to Comply with Local Rule 37.1. ................................................. 9

D. Plaintiffs’ Request for Additional Custodians Is Premature and

II. PLAINTIFFS’ REQUEST FOR A PRIVILEGE LOG IS MOOT. .................................. 18

III. PLAINTIFFS’ OVERBROAD 30(B)(6) NOTICE SHOULD BE QUASHED. .............. 20

Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc.,

Barton Grp., Inc. v. NCR Corp.,

Dongguk Univ. v. Yale Univ.,

Douglas v. Victor Capital Grp.,

Eng-Hatcher v. Sprint Nextel Corp.,

FDIC v. Wachovia Ins. Servs., Inc.,

Five Borough Bicycle Club v. City of N.Y.,

Foster v. City of N.Y.,

Henry v. Morgan’s Hotel Grp., Inc.,

Innomed Labs, LLC. v. Alza Corp.,

Lightsquared Inc. v. Deere & Co.,

Nunez v. City of N.Y.,

Pem-Am., Inc. v. Sunham Home Fashions, LLC,

Prescient Partners, L.P. v. Fieldcrest Cannon, Inc.,

R.F.M.A.S., Inc. v. So,

Robertson v. People Magazine,

Sanofi-Synthelabo v. Apotex Inc.,

Schwartz v. Mktg. Pub. Co.,

Sheehy v. Ridge Tool Co.,

Tailored Lighting, Inc. v. Osram Sylvania Prods., Inc.,

Trilegiant Corp. v. Sitel Corp.,

United States v. Briggs,

United States v. Ghavami,

Yoon v. Celebrity Cruises, Inc.,

In re Zyprexa Prod. Liab. Litig.,

Fed. R. Civ. P. 26(b)(1)....................................................................................................8, 9, 15, 22

Fed. R. Civ. P. 26(b)(2)....................................................................................................................9

Fed. R. Civ. P. 26(c)(1) ....................................................................................................................9

Fed. R. Civ. P. 30(b)(6).......................................................................................................... passim

Fed. R. Civ. P. 34 .....................................................................................................................11, 12

Fed. R. Civ. P. 37(a)(1) ..................................................................................................................15

Local Civil Rule 37.1 .......................................................................................................................9

straightforward breach of contract action focused primarily on a pool of distressed mortgage

Chase’s cross-motion for a protective order should be granted.

Second, the additional document discovery sought in Plaintiffs’ motion is irrelevant,

custodians—if relevant to anything at all—would be relevant at most to Plaintiffs’ now-

Plaintiffs’ owner and operator.

Plaintiffs’ deposition notice seeks testimony from a corporate representative regarding 23

In 2009, Plaintiff Mortgage Resolution Servicing, LLC (“MRS”) purchased a pool of

(“MLPA”). Declaration of Christian J. Pistilli (“Pistilli Decl.”) Ex. A (Third Amended

only $200,000 for the pool. Id. ¶¶ 38, 40.

Residential Mortgage-Backed Securities Settlement (“RMBS”). Id. ¶¶ 201-220. The latter

B. The Dismissal of Plaintiffs’ RICO and Tort Claims

and Chase intends to oppose that motion.

C. Discovery in This Action

breach of contract and commercial tort allegations, including:

v Communications with or regarding Plaintiffs;

v Documents relating in any way to the MLPA;

v Data regarding the loans purchased by Plaintiffs; and

Pistilli Decl. Ex. D (Responses 1-3, 6, 8-25, 28, 30, 32).