Allianz Global Investors GmbH v. Bank Of America Corporation

Background

The parties submitted a joint update about negotiations over electronic discovery in a case involving alleged foreign-exchange conduct. They had resolved most disputes over search terms but continued to disagree about several categories of electronically stored information.

The Parties’ Positions

The plaintiffs sought additional discovery concerning:

- Audio recordings for a targeted group of custodians who had been indicted, terminated, or suspended in connection with foreign-exchange investigations. - Searches using plaintiffs’ names across documents that defendants had already collected but had not produced, particularly for Bank of America, Barclays, and Deutsche Bank. - Reasonably accessible materials on shared or network drives. - Complete transcripts from a targeted list of chatrooms that plaintiffs said were associated with the alleged conduct.

The plaintiffs argued that these requests were relevant and proportionate and that the defendants had not provided enough information to substantiate their burden objections. They also argued that complete chatroom transcripts were not limited by the parties’ custodian agreements because chatrooms were centralized sources rather than documents tied to particular custodians.

The defendants argued that they had already agreed to extensive supplemental discovery, including more than 15,000 search terms applied to emails and chats for approximately 500 custodians, in addition to producing more than 2.5 million documents. They argued that reviewing five years of audio, searching shared drives, searching additional custodians, and collecting entire chatrooms would be disproportionate and would circumvent the Court’s prior limits on custodial discovery.

Order

The Court ordered the parties to include, in an appendix to a letter due November 5, 2020, the names of each custodian at each defendant for whom audio recordings were sought and whether the custodian had been indicted, terminated, or suspended. Each defendant with a listed custodian had to use its best efforts to determine whether recordings existed, whether they were readily accessible, and the burden and expense of collecting and reviewing them. The Court stated that this information would help it evaluate possible cost-shifting if production of audio recordings were later ordered.

The Court also ordered Bank of America, Barclays, and Deutsche Bank to run plaintiffs’ names as search terms over previously collected but unproduced documents, subject to limitations already agreed to by the plaintiffs. After obtaining hit counts, the parties were to meet and confer as appropriate to reduce any undue burden from producing identified documents.

The Court further ordered both sides to make diligent inquiries about reasonably accessible shared or network drives that might contain relevant information and to conduct reasonable searches of those drives if they had not already done so. The plaintiffs also had to provide, in a second appendix to the November 5 letter, their targeted list of chatrooms—described by defendants as chatroom identification numbers and names—along with the requested date ranges.

This was a discovery-management order. It did not decide the underlying claims about foreign-exchange conduct.