Golden v. BofI Holding, Inc. et al

Filing 193

ORDER Regarding Discovery Disputes. Signed by Magistrate Judge Karen S. Crawford on 4/30/21.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-cv-2324-GPC-KSC

In re BofI HOLDING, INC. SECURITIES
LITIGATION

ORDER REGARDING DISCOVERY
DISPUTES

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The parties have raised several disputes concerning the appropriate search terms and

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ESI custodians to capture documents and information responsive to plaintiffs’ First Set of

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Requests for Production (“RFPs”), and regarding the scope of privilege and the contents of

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any privilege log for documents related to internal investigations. The parties conferenced

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with the Court’s staff regarding these disputes on April 22, 2021, and lodged their

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respective search term and custodian proposals with chambers. The Court heard argument

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from the parties on these issues on April 30, 2021. 1 Having reviewed the materials

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submitted and considered the arguments of counsel, and for the reasons stated during the

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April 30, 2021 hearing, the Court HEREBY ORDERS as follows:

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The telephonic hearing was recorded.
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ESI Custodians. The parties have agreed on 20 document custodians, and plaintiffs

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seek documents from an additional 19 custodians, including BofI’s General Counsel, Eshel

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Bar-Adon. Defendants represent that they are investigating whether custodial documents

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exist for all 19 custodians in dispute. For the reasons discussed at the hearing, the Court

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GRANTS IN PART AND DENIES IN PART plaintiffs’ request for additional

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custodians. Plaintiffs shall select an additional 10 custodians and shall inform defendants

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of their selection by the close of business on May 3, 2021. Plaintiffs’ list shall not include

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Mr. Bar-Adon. Defendants shall identify for plaintiffs as soon as possible any custodians

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for whom custodial documents no longer exist. If defendant lacks custodial documents for

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any of plaintiffs’ selected 10 additional custodians, plaintiff can select another custodian.

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Search Terms.

The parties presented competing search term proposals for

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documents responsive to plaintiffs’ RFPs Nos. 5, 6, 9, 10, 12, 13-15, 18-21, 24, 35 and 38. 2

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The Court provided guidance to the parties during the hearing about the appropriate scope

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of any search for ESI responsive to these RFPs. With this guidance in mind, the parties

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are ordered to further meet and confer in a good faith effort to come to agreement on search

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terms. If the parties cannot come to an agreement despite their best efforts, they shall file

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a joint motion for resolution of their dispute pursuant to the undersigned’s Chambers’ Rules

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setting forth their respective final proposed search terms no later than May 7, 2021. The

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joint submission shall not exceed 7 total pages. If necessary, the parties’ respective

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proposals for each category of search terms (as described in the materials previously

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submitted to the Court) may be attached as exhibits. The Court will select the proposal(s),

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or combination of proposals, it considers the most reasonable and appropriate.

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Privilege Issues. The parties also raised a dispute regarding whether defendants

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should search for documents related to internal investigations of wrongdoing at BofI (RFP

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No. 3), and if so, whether those documents must be logged on a privilege log. The Court

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The parties represented during the hearing that their dispute as to search terms for RFPs No. 16, 17, 22
and 23 has been resolved.
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finds that additional briefing is necessary for resolution of this dispute. On or before May

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7, 2021, plaintiffs and defendants shall each file a brief of no more than 10 pages addressing

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these issues: (1) whether all documents and communications regarding any internal

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investigations are privileged and/or subject to work product protection, including

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communications with in-house counsel, communications with outside counsel, and those

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communications not involving counsel; (2) whether all responsive documents and

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communications must be logged on a privilege log; and (3) any concerns regarding burden

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or proportionality, and any proposals for mitigating such concerns.

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Other Matters. The parties represented that they have reached an agreement as to

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a previously-raised dispute regarding documents subject to the Bank Examination

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Privilege. The parties shall file their stipulation regarding these documents for the Court’s

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approval no later than the close of business on May 3, 2021.

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The Court will hold a telephonic Discovery Conference on May 11, 2021 at 10:00

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a.m. The parties shall advise the Court in advance of the Discovery Conference and in

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accordance with the undersigned’s Chambers’ Rules of any discovery issues to be

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addressed.

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IT IS SO ORDERED.
Dated: April 30, 2021

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