Firefighters' Retirement System et al v. Citco Group Limited et al

Filing 512

RULING AND ORDER denying 484 Renewed Motion to Compel on Documents in the Control of The Citco Group, Ltd. Signed by Magistrate Judge Erin Wilder-Doomes on 1/3/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FIREFIGHTERS’ RETIREMENT
SYSTEM, ET AL.
CIVIL ACTION
VERSUS
13-373-SDD-EWD
CITCO GROUP LIMITED, ET AL.
RULING AND ORDER ON MOTION TO COMPEL
Before the court is The Louisiana Funds’ Renewal of Motion to Compel on Documents in
the Control of the Citco Group, Ltd. (the “Renewed Motion to Compel”).1 The Renewed Motion
to Compel reasserts a previous Motion to Compel filed by plaintiffs, Firefighters’ Retirement
System (“FRS”), Municipal Employees’ Retirement System of Louisiana (“MERS”), and New
Orleans Firefighters’ Pension & Relief Fund (“NOFF”) (collectively, “Plaintiffs”). 2 Defendants,
Citco Technology Management, Inc. (“CTM”), Citco Banking Corporation N.V. (“Citco
Banking”), Citco Fund Services (Cayman Islands) Limited (“CFS Cayman”), and The Citco Group
Limited (“Citco Group”) (collectively, the “Citco Defendants”) have filed an Opposition.3 On
December 12, 2017, the parties participated in a status conference in this matter and the Renewed
Motion to Compel was discussed. For the reasons set forth herein, Plaintiffs’ Renewed Motion to
Compel is DENIED.
I.

Background
On March 1, 2013, Plaintiffs filed suit against 23 defendants, including the Citco

Defendants, asserting claims under the Louisiana Securities Act and Louisiana Unfair Trade

1

R. Doc. 484. Plaintiffs were subsequently granted leave to file their Memorandum in Support of the Renewed Motion
to Compel under seal. See, R. Docs. 489 & 490.
2

R. Doc. 454.

3

R. Doc. 500.

1

Practices Act, as well as third party beneficiary, unjust enrichment, breach of contract, negligent
misrepresentation, and general tort claims.4 Plaintiffs’ claims arise from a $100 million investment
loss. In April of 2008, the Louisiana Funds purchased 100,000 Series N Shares offered and issued
by FIA Leveraged Fund (“Leveraged”) for $100 million.5 After a series of investment transactions
initiated by Leveraged, in March of 2011, Plaintiffs sought to redeem their Series N shares.6
Ultimately, the shares went unredeemed and the Plaintiffs determined that the investment was
illiquid and, thus, the N shares, for which there was no market, were valueless.7
Plaintiffs previously filed a Motion to Compel8 (the “Initial Motion to Compel”) seeking
an order compelling Citco Group to respond to multiple interrogatories and requests for production
based upon the knowledge of entities controlled by Citco Group and/or possession of documents
by entities controlled by the Citco Group. Plaintiffs’ Initial Motion to Compel also asserted that
Plaintiffs had issued particular interrogatories to the Citco Group for the purpose of obtaining
information regarding Citco Group’s procedures for responding to discovery requests and
gathering documents, but that Citco Group had refused to respond to those interrogatories.9 In

4

R. Doc. 1-3.

5

R. Doc. 1-3, ¶ 34.

6

R. Doc. 1-3, ¶ 41.

7

R. Doc. 1-3, ¶¶ 34-45 & 18. Leveraged was a feeder fund which Plaintiffs allege was formed primarily to invest in
a master fund, Fletcher Income Arbitrage, Ltd. R. Doc. 1-3, ¶ 10.
8

R. Doc. 454.

Plaintiffs stated that “[t]o the extent the Louisiana Funds are saddled with the obligation to know which areas to tell
Citco Group to search, Citco Group should have been obligated to respond” to certain interrogatories “so that it could
have a better understanding of the scope of the search.” R. Doc. 454-2, p. 9. Plaintiffs pointed to Interrogatories 1-5
issued by FRS to Citco Group. R. Doc. 454-4. Per Interrogatory No. 1, Plaintiffs asked Citco Group to identify “all
Persons employed or compensated by Defendant or Citco that have been, will be, or may be designated as the corporate
representative(s)…to testify as to the scope and completeness of the search for the documents requested….” In
Interrogatory No. 2, Plaintiffs similarly asked Citco Group to identify the corporate representative(s) “to testify to the
location of the documents requested….” Interrogatory No. 3 asks Citco Group to identify all persons with whom
defendants “communicated…in attempting to determine the existence of the documents requested….” Interrogatory
No. 4 asks Citco Group to identify all persons with whom defendants “communicated…in attempting to determine
the location of the documents requested….” Finally, Interrogatory No. 5 asks Citco Group to identify all persons with
9

2

opposition to the Initial Motion to Compel, the Citco Defendants did not challenge Plaintiffs’
position that an entity must produce documents within its “possession, custody, or control,” or that
such custody or control extends to documents within the party’s control, even if owned by a
nonparty; instead, the Citco Defendants argued that granting Plaintiffs’ motion would ignore the
substantial discovery efforts already made in this case and would be incompatible with the
proportionality requirement of the federal rules.10
The Initial Motion to Compel was discussed during an October 24, 2017 status conference
with the parties, and the court found that Plaintiffs’ concerns regarding how information was
gathered by the Citco Group to respond to discovery should be addressed via a deposition pursuant
to Fed. R. Civ. P. 30(b)(6).11 Accordingly, the court denied the Initial Motion to Compel (without
prejudice to re-urging following the corporate deposition) and ordered the parties to proceed with
the 30(b)(6) deposition of Citco Group to “address the method by which Citco responded to
interrogatories and requests for production, identified appropriate custodians, gathered both hard
copy documents and electronically stored information, and whether documents were produced as
kept in the ordinary course of business.”12
Plaintiffs took the 30(b)(6) deposition of Citco Group via Mr. John Diver, Associate Group
General Counsel, on November 8, 2017.13 The Notice setting the deposition set forth 38 topic
areas.14

Topic areas included names of persons responsible for searching for responsive

who defendant “communicated…to determine that all documents requested in the Document Production Requests
have in fact been produced.”
10

R. Doc. 458, p. 2.

11

R. Doc. 469, p. 4.

12

R. Doc. 469, p. 4.

13

A copy of the entire deposition transcript is attached to Plaintiffs’ Renewed Motion to Compel. R. Doc. 484-4.

14

R. Doc. 484-3.

3

documents, how searches were made and the location of electronic files and servers, methods used
to locate documents other than electronic searches, and the identity of any person with whom Citco
Group communicated with “in attempting to determine that all documents requested in the
Document Production Requests have in fact been produced.”15 The notice also included topic
areas which asked if there were any documents in Citco Group’s possession or control responsive
to particular requests for production.16 During the deposition, Plaintiffs asked a number of
questions regarding Mr. Diver’s attempts to confirm the accuracy of certain interrogatory
responses. Counsel for Citco Group consistently objected to these questions as outside the topics
set in the Deposition Notice, and contended that Mr. Diver had “done nothing to confirm the
accuracy or inaccuracy of any interrogatory asked of any defendant.”17
With regard to the gathering of documents, Mr. Diver testified that
Paul Weiss, Andrew and various other people at Paul Weiss, had
overall responsibility for collecting and for searching all of the
various documents. They worked with myself and Nick Braham,
who is the General Counsel of Citco, to identify a representative of
each of the defending companies, with the exception of CFS Suisse
which no longer exists.18 Those people who are identified
undertook a search of the archives, the hard copy files and also a
search of shared drives for any soft copy documents in relation to
Fletcher or any of the Fletcher funds. In addition to that, the
members of the Citco IT security team…Ricardo Marrero, Cory
Lewis and another gentleman called Audrey Fyodorov conducted a
search against the 56 search terms that were identified against the
21 custodians that were named.19

15

R. Doc. 484-3, topic 17.

16

R. Doc. 484-3, topics 18-28.

17

See, R. Doc. 484-4, p. 29:4-6.

18

For Citco Group, Mr. Diver and Group General Counsel, Nicholas Braham, met. R. Doc. 484-4, pp. 19:24-20:1.
For Citco Technology, Diver met with Ben Jansen. R. Doc. 484-4, p. 20:5. For CFS, Diver met with Weikert Weber,
and for Citco Bank, Diver met with Ronald Irausquin. R. Doc. 484-4, p. 20:8 & 11. Mr. Diver further testified that
the representative of each defendant company helped identify custodians. Custodian laptops were also searched. R.
Doc. 484-4, p. 71:21-24.
19

R. Doc. 484-4, pp. 58:19-59:12.

4

Mr. Diver testified that “[f]or the companies that had shared drives, the search was
performed by the local representative of that defendant company, in the location of that defendant
company.”20 With respect to Citco Banking, Mr. Diver stated that “[a]ny files within the shared
drive that were either Fletcher-related or had a name of the Fletcher Fund” were searched and “also
just a general search of the term ‘Fletcher’” was performed. 21 Hard copy archives were also
searched.22 Regarding CFS, “a gentleman called Weikert Weber at CFS Cayman searched the
archives of CFS Cayman for any and all hard copy files related to Fletcher or the Fletcher
Funds….In addition, Weikert performed a search of the offices to ensure there were no other hard
copy files that weren’t in the archives….And then Weikert performed a search of the shared drives,
on the same basis.”23
Per their Renewed Motion to Compel, Plaintiffs assert that they previously propounded
interrogatories to the Citco Defendants in order to identify persons with knowledge of “key issues”
in order to determine appropriate custodians.24 Plaintiffs contend that defendants’ responses to
these interrogatories “were incomplete and inaccurate” and thus resulted in “a flawed list of

R. Doc. 484-4, p. 79:12-15. Citco Group does not have a shared drive. Mr. Diver stated that for Citco Group, “emails of the specific custodians were searched and also the individuals themselves that are named as custodians that
worked for the Citco Group; to the extent that they had any hard copy files, they were also produced.” R. Doc. 4844, p. 80:14-18.
20

21

R. Doc. 484-4, p. 89:8-10.

22

R. Doc. 484-4, p. 93:19-21 (explaining that Ronald Irausquin identified Jonathan Luckmann, Aracelis Martinez,
and Heidi Friedemer who “searched the hard copy archives, which are actually files stored in a bank vault at Citco
Bank’s premises in Curacao.”).
23

R. Doc. 484-4, pp. 95:23-94:10.

24

In addition in interrogatories 1-5 set forth above, Plaintiffs assert that on February 10, 2017, they propounded what
they now term as “Custodian Interrogatories” “which asked the Citco Group to identify persons that had knowledge
of key issues…that are each part of the claims made by the Louisiana Funds….” R. Doc. 490, p. 2. These
interrogatories generally seek identification of persons with knowledge regarding specific issues. Citco responded to
these interrogatories on March 21, 2017 and for certain responses identified Ermanno Unternaehrer, Gabriele Magris,
Christopher Smeets and/or Nicholas Braham. For other requests, Citco objected or stated it was unaware of any person
with knowledge. R. Docs. 484-10 – 484-12.

5

custodians” and a “flawed electronic search for documents.”25 However, Plaintiffs do not assert
that a specific custodian (or even search term) should be added. Instead, Plaintiffs contend that
Mr. Diver confirmed during his deposition that “one email can be sent to everyone in the Citco
organization and ask them limited questions about their personal knowledge of the issues in this
lawsuit”26 and assert that “[t]he group of Citco entities and persons employed by them that have
personal knowledge of the Key Issues can be readily and economically identified through one
questionnaire to all employees of Citco through a direct email.” 27 In addition to emailing this
questionnaire, Plaintiffs contend that Citco Group should be required to “respond completely and
accurately to the Custodian Interrogatories to determine whether the custodian list on which the
electronic searches were based were in fact complete, comprehensive, and accurate.”28 Plaintiffs
also assert that the court should order a search of the “individual business and personal computers
of persons having personal knowledge”29 as well as a “search of local networks” and hard copy
documents of Citco Trust and CTC,30 Millennium Foundation, Richcourt, Global Hawk,31 “and all
subsidiaries controlled by Citco Group, Ltd. in which a positive response is received from their

25

R. Doc. 490, p. 4.

26

R. Doc. 490, p. 7, n. 8.

27

R. Doc. 490, p. 17.

28

R. Doc. 490, p. 15.

Mr. Diver testified that “Citco policy is that you are not allowed to use personal e-mails – e-mail addresses to do
any work-related activities. So [personal emails] would not have been searched.” R. Doc. 484-4, p. 75:9-12. Mr.
Diver also testified that any laptops of custodians were searched. R. Doc. 484-4, p. 71:21-24.
29

30

Mr. Diver testified that no records were gathered from Citco Trading, CTC Corporation, Millennium, or Global
Hawk because these weren’t defendant companies. R. Doc. 484-4, pp. 86-87.
Mr. Diver confirmed during the deposition that Citco searched “Richcourt documents that remained” in Citco’s
possession after “Fletcher made the purchase in June of 2008.” R. Doc. 484-4, p. 98:9-12. However, Mr. Diver
testified that “[t]he servers that the Richcourt e-mails are on, went as part of the acquisition” and therefore were not
in Citco’s control and that Citco does not have a back up of the Richcourt server emails. R. Doc. 484-4, pp 98-99.
31

6

employee [in response to the proposed email questionnaire]” as well as “all company networks of
companies which employ attorneys listed on the privilege log of Citco.”32
In opposition to the Renewed Motion to Compel, the Citco Defendants reiterate that
Defendants “collected documents from the three general sources litigants ordinarily…collect from:
(a) hard copy files of each Citco Defendant entity; (b) the shared drive files of each Citco
Defendant entity; and (c) email files of the 21 agreed-upon custodians using 56 agreed-upon search
terms.”33 The Citco Defendants assert that they “are prepared to review their interrogatory
responses and supplement where appropriate, and are also (as they have been) prepared to discuss
with Plaintiffs additional document custodians (if Plaintiffs identify any)….”34

The Citco

Defendants contend that none of the topics set forth in the corporate deposition notice “involved
the Citco Defendants’ identification of Custodians” and that “Mr. Diver…was not prepared to
testify on Citco Group’s interrogatory responses since Plaintiffs failed to designate those responses
as a topic.”35 The Citco Defendants assert Plaintiffs’ requests for searches of shared drives 36 and
hard copy documents have been effectively already done, and that any additional searches based
on an e-mail questionnaire to all employees would be disproportional to the needs of this case.
II.

Law and Analysis
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense

32

R. Doc. 490, p. 16.

33

R. Doc. 500, p. 3.

34

R. Doc. 500, p. 11.

35

R. Doc. 500, pp. 10-11.

36

The Citco Defendants reiterate that for Citco Banking and CFS Cayman (which apparently have shared drive files
to centrally save client files), searches of Fletcher-related folders on the shared drives were performed. R. Doc. 500,
p. 6. The Citco Defendants state that Citco Banking did not have any Fletcher-related folders, but that Citco is
currently running the term “Fletcher” across the entire shared drive to ensure nothing was missed. R. Doc. 500, p. 6.

7

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. Information within this scope of
discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). A
determination of relevancy is tied to applicable substantive law and then weighed against the six
proportionality factors. Any information sought that is not relevant to a party’s claim or defense
is not discoverable, regardless of proportionality. The court must additionally limit the frequency
or extent of discovery 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).
“For a motion to compel, ‘[t]he moving party bears the burden of showing that the materials
and information sought are relevant to the action or will lead to the discovery of admissible
evidence.’” Mirror Worlds Technologies, LLC v. Apple Inc., Case No. 6:13-cv-419, 2016 WL
4265758, at *1 (E.D. Tex. Mar. 17, 2016) (quoting SSL Servs., LLC v. Citrix Sys., Inc., No. 2-08cv-158, 2010 WL 547478, at *2 (E.D. Tex. Feb. 10, 2010)). “Once the moving party establishes
that the materials requested are within the scope of permissible discovery, the burden shifts to the
party resisting discovery to show why the discovery is irrelevant, overly broad or unduly
burdensome or oppressive, and thus should not be permitted.” Mirror Worlds Technologies, LLC,
2016 WL 4265758 at *1. See also, Wymore v. Nail, No. 5:14-cv-3493, 2016 WL 1452437, at *1
(W.D. La. April 13, 2016) (“Once a party moving to compel discovery establishes that the

8

materials and information it seeks are relevant or will lead to the discovery of admissible evidence,
the burden rests upon the party resisting discovery to substantiate its objections.”) (citing McLeod,
Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)); Rivero v.
Sunbeam Products, Inc., Civil No. 08-591, 2010 WL 11451127, at *4 (W.D. Tex. Jan. 12, 2010)
(“Plaintiffs, who bear the burden of proof in support of their motion to compel....”).
The Federal Rules of Civil Procedure explicitly direct parties to discuss “issues about
disclosure, discovery, or preservation of electronically stored information…” early in the litigation
process when making their discovery plan. FRCP 26(f)(3)(C). See also, Advisory Committee
Notes to the 2006 Amendments (“Rule 26(f) is amended to direct the parties to discuss discovery
of electronically stored information during their discovery-planning conference” and noting that
the parties “may identify the various sources of such information within a party’s control that
should be searched for electronically stored information.”). A responding party is generally
entitled to select the custodians most likely to possess responsive information. See, Mortgage
Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 CV 0293, 2017 WL 2305398, at *
2 (S.D.N.Y. May 18, 2017) (“Absent agreement among the parties, then, the responding party is
entitled to select the custodians most likely to possess responsive information and to search the
files of those individuals.”). “Unless that choice is manifestly unreasonable or the requesting party
demonstrates that the resulting production is deficient, the court should play no role in dictating
the design of the search, whether in choosing search tools, selecting search terms, or…designating
custodians.” Id. Further, “‘a party seeking to compel another party to search the files of additional
custodians bears the burden of establishing the relevance of the documents it seeks from those
custodians.’” Id. (quoting Lightsquared Inc. v. Deere & Co., No. 13 Civ. 8157, 2015 WL
8675377, at *5 (S.D.N.Y. Dec. 10, 2015)). See also, Enslin v. Coca-Cola Company, 14-6476,

9

2016 WL 7042206, at * 3 (E.D. Pa. June 8, 2016) (“Asking a court to compel a party to search the
ESI of additional custodians is similar to asking a court to compel a party to undertake additional
efforts to search for paper documents. In either case, the requesting party is second-guessing the
responding party’s representation that it conducted a reasonable inquiry for responsive
information, and in either case, the burden appropriately lies with the requesting party to show that
the responding party’s search was inadequate.”) (citing Scott C. v. Bethlehem Area Sch. Dist., No.
00-642, 2002 WL 32349817, at *1 (E.D. Pa. July 23, 2002) (refusing to compel a party to conduct
a further search for documents because the requesting party “ha[d] not pointed to any evidence”
that the responding party had failed to conduct a reasonable search) & The Sedona Conference,
The Sedona Principles 43 (2007) (“The requesting party has the burden on a motion to compel to
show that the responding party’s steps to…produce relevant electronically stored information were
inadequate.”)); Ford Motor Co. v. Edgewood Properties, Inc., Civil Action No. 06-1278, 257
F.R.D. 418, 427 (D.N.J. May 19, 2009) (“‘[a]bsen[t] agreement, a [responding] party has the
presumption, under Sedona Principle 6, that it is in the best position to choose an appropriate
method of searching and culling data.’”) (citing The Sedona Conference Best Practices
Commentary on the Use of Search and Information Retrieval Methods in E–Discovery).37
Based on the parties’ correspondence, the parties agreed upon 56 search terms and the
following 21 document custodians: (1) Albert van Nijen, (2) Angus Dacker, (3) Aracelis Martinez,
(4) Chris Smeets, (5) Ermanno Unternaechrer, (6) Gabriel Magris, (7) Larry Luckmann, (8) Miklos
Ujhelyi, (9) Ronald Irausqin, (10) Shaun Gale, (11) Trent Grant, (12) Wiekert Weber, (13) Katie

Courts in this Circuit have explained that the “Sedona Principles and the related Sedona commentaries are the
leading authorities on electronic document retrieval and production.” Matrix Partners VIII, LLP v. Natural Resource
Recover, Inc., Civil Action No. 08-547, 2009 WL 10677430, at *5 n. 3 (E.D. Tex. June 5, 2009); Kleppinger v. Texas
Dept. of Transportation, 2013 WL 12137773, at * 3 (S.D. Tex. Jan. 24, 2013) (“Rule 26 provides very little guidance
on discovery of ESI, and courts have used the ESI discovery principles published by the Sedona Conference as a guide
in resolving ESI discovery disputes.”).
37

10

Bernard, (14) Yves Bloch, (15) Demetria Moss, (16) Nina Michelsen, (17) Jan Oyens, (18)
William Keunen, (19) Gilbert Grosjean, (20) Enrico Laddaga, (21) Denis Muys. 38 Plaintiffs still
have not explained why the custodians and search terms used were unreasonable. Moreover,
although the Citco Defendants have been willing to add additional search terms during the course
of this litigation, and note in opposition to the Renewed Motion to Compel that they are “prepared
to discuss with Plaintiffs additional document custodians (if Plaintiffs identify any),”39 Plaintiffs
failed to identify proposed additional custodians in either their Renewed Motion to Compel or
during the December 12, 2017 status conference.
Instead, Plaintiffs seek permission from this court to email everyone in every Citco entity
to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and
thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for
documents. That is simply unreasonable, and in essence is a request for the Citco Defendants to
“go back to square one” of their document production efforts despite the parties’ agreement
regarding custodians and search terms, the Citco Defendants apparent willingness to consider
additional custodians and search terms, and Plaintiffs failure to identify or explain the necessity of
any additional custodians or search terms. Further, such a large scale search raises proportionality
concerns and, especially in light of the parties’ previous agreements and efforts, would be unduly
burdensome.40 See, Fed. R. Civ. P. 26(b)(2)(C) (The court must limit the frequency or extent of

38

R. Doc. 497-1.

39

R. Doc. 497-1, p. 11.

40

In opposition to the Initial Motion to Compel, the Citco Defendants attached the affidavit of Mr. Diver, wherein he
states that searching across all affiliated Citco entities would mean searching the files of 235 affiliates and subsidiaries
and would involve searching 170 terabytes of emails (which the Citco Defendants state is the equivalent of 400 million
documents). R. Doc. 458-1, R. Doc. 458, p. 5. Plaintiffs apparently seek to limit the potential scope of review by
sending an initial email blast to all Citco employees (and presumably past employees). There is no indication that this
would result in a less burdensome procedure.

11

discovery 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).”); Ford Motor Co. 257 F.R.D. at 427 (“The Court finds that reinventing the wheel here
would be unduly burdensome to Ford. The gravamen of Edgewood’s complaint is that it suspects
it has not received all of the documents to which it is entitled. But such a conclusory allegation
premised on nefarious speculation has not moved several courts, nor will it move this one, to grant
burdensome discovery requests late in the game.”); In re Biomet M2A Magnum Hip Implant
Products Liability Litigation (MDL 2391), 12-MD-2391, 2013 WL 1729682, at * 2 (N.D. Ind.
April 18, 2013) (request to institute predicative coding method after significant electronic
discovery efforts using keyword searching was essentially a request to “go back to square one”
and sat “uneasily with the proportionality standard in Rule 26(b)(2)(C).”).41
“‘[T]here is no obligation on the part of a responding party to examine every scrap of paper
in its potentially voluminous files,” and “[i]n an era where vast amounts of electronic information
is available for review,…[c]ourts cannot and do not expect that any party can meet a standard of
perfection.’” Enslin, 2016 WL 7042206, at * 3 (citing Treppel v. Bioval Corp., 03 Civ. 3002, 233
F.R.D. 363, 374 (S.D.N.Y. Feb. 6, 2006) & Pension Comm. of Univ. of Montreal Pension Plan v.
Banc of Am. Sec., 05 Civ 9016, 685 F. Supp. 2d 456, 461 (S.D.N.Y. May 28, 2010) (abrogated on
other grounds, Chin v. Port Authority of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012)).

41

While Plaintiffs complain that Mr. Diver refused to answer questions regarding the accuracy of interrogatory
responses, the undersigned agrees that such questions (although reasonably within the scope of the October 24, 2017
Order allowing the corporate deposition) were not raised as topics in the notice of deposition. The undersigned also
notes that Glenn Hassett, not Mr. Diver, verified Citco Group’s responses to what Plaintiffs now call the “Custodian
Interrogatories.” R. Doc. 484-10.

12

Here, Plaintiffs’ request strikes the undersigned as a request to somehow ensure that every single
potentially responsive document (no matter how cumulative or burdensome to obtain) should be
produced. However, despite Plaintiffs’ protestations, they have not established that the searches
conducted so far were unreasonable, and the court’s review of Mr. Diver’s deposition testimony
shows that the Citco Defendants’ did make reasonable efforts to identify appropriate custodians
and responsive documents. The undersigned assumes that the Citco Defendants, in keeping with
the representations set forth in the opposition, will continue to be willing to discuss additional
custodians and search terms with Plaintiffs.
IV.

Conclusion
For the reasons set forth herein, the Renewed Motion to Compel42 filed by plaintiffs,

Firefighters’ Retirement System (“FRS”), Municipal Employees’ Retirement System of Louisiana
(“MERS”), and New Orleans Firefighters’ Pension & Relief Fund (“NOFF”) (collectively,
“Plaintiffs”) is DENIED.
Signed in Baton Rouge, Louisiana, on January 3, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

42

R. Doc. 484.

13