Feinberg v. T. Rowe Price Group, Inc. et al

Filing 125

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 12/3/2019. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID G. FEINBERG, et al.,
and all others similarly situated,

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*

Plaintiffs
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v.

Civil Case No. 17-cv-00427-JKB
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T. ROWE PRICE
GROUP, INC., et al.,
Defendants.

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*
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MEMORANDUM OPINION

This matter has been referred to me for discovery and all related scheduling. (ECF No.
75). Presently before the Court is T. Rowe Price Groups’ (“Defendants”) Motion to Compel
Further Interrogatory Responses. (ECF No. 120). David Feinberg, and all others similarly situated
(“Plaintiffs”) filed an Opposition (ECF No. 120-10), and Defendants filed a Reply (ECF No. 12012). This issue is fully briefed, and no hearing is necessary. See Local Rule 105(6) (2018). For
the reasons stated below, Defendants’ Motion to Compel Further Interrogatory Responses is
GRANTED in PART.
I.

Background
As pertinent to this Motion, Plaintiffs allege that Defendants violated the Employment

Retirement Income Security Act (“ERISA”) by limiting the investment options of the T. Rowe
Price U.S. Retirement Program (“the Plan”) to a range of investment options offered by T. Rowe,
to the exclusion of other funds by non-T. Rowe affiliated providers. (ECF No. 120-2 at 2). In
addition, Plaintiffs allege that the Plan’s investment options were too expensive, Defendants
imprudently failed to remove funds that underperformed, Defendants relied upon improper
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benchmarks to assess performance, and Defendants used Plan assets to seed new investment
vehicles. Id.
Regarding the discovery posture of this matter, a scheduling order was issued on December
18, 2018, establishing a June 1, 2019 deadline for the service of fact discovery requests including
requests for admission. (ECF No. 65). On March 27, 2019, the fact discovery deadline was reestablished as July 30, 2019.1 (ECF No. 73). Shortly thereafter, on April 17, 2019, this case was
referred to me for discovery and related scheduling, prompted by a motion to compel filed by
Plaintiffs regarding Defendants’ Response to Request for Production of Documents. (ECF No.
75). The motion was denied. (ECF No. 76.)
In short order, this Court next dealt with various discovery disputes centered largely on the
discovery of Electronically Stored Information (“ESI”). (ECF Nos. 85, 94, 104 & 105). On July
1, 2019, the Court also granted the parties’ joint motion to extend the schedule deadlines by ninety
days, extending the deadline for service of written discovery to September 30, 2019, and fact
discovery to October 28, 2019. (ECF No. 103).
On August 19, 2019, Plaintiff filed a Motion for Targeted ESI Discovery Relief (ECF No.
107), to which Defendants responded on September 3, 2019. (ECF No. 110). This Court denied
Plaintiffs’ Motion (ECF No. 111).2 On September 30, 2019, Counsel filed an additional joint
motion for a thirty-five day extension of time to complete fact discovery, which this Court granted
on that same day, thereby extending the discovery deadline to December 2, 2019. (ECF Nos. 114
and 115). Thus, the parties have been engaged in fact discovery for almost a year, have

The Court’s original scheduling order had the fact discovery deadline erroneously as April 30, 2019, instead of the
intended June 30, 2019. (ECF No. 65 at 2).
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2

Plaintiffs then filed an Appeal of Magistrate Judge Decision (ECF No. 112), which was denied by Chief Judge
Bredar. (ECF No. 113).

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appropriately and promptly sought Court assistance when necessary, and hopefully would agree
that the Court has responded in a nimble fashion to resolve disputes as they arose.
The question pending before the Court is whether to compel Plaintiffs to fully respond to
Defendants’ Interrogatories, specifically numbers 4, 5, 6, 7, 9, 10, 12, and 14, with the information
available to them at this stage of the case now that fact discovery has closed. (ECF No. 120 at 1).
Plaintiffs resist answering, arguing that the interrogatories are premature, overly broad, unduly
burdensome, and/or compound.
II.

The Discovery at Issue

The interrogatories at issue are as follows.
Interrogatory number four requests that Plaintiffs:
State all facts and identify all Documents and Communications that You
believe support Your contention that Plan Investment Options charged the Plan
and/or Plan participants excessive or unreasonable fees at any point during the
Relevant Time Period. See Compl. ¶ 53–74. Include in Your response an
identification of Investment Options allegedly bearing excessive or unreasonable
fees, and the period of time within the Relevant Time period during which You
contend those Investment Options’ fees were excessive or unreasonable. (ECF No.
120-4 at 8).
Plaintiffs object on the grounds that the interrogatory is premature (by which Plaintiffs mean prior
to the close of expert discovery), overbroad, unduly burdensome, compound and impermissibly
seeks discovery of expert information prior to an obligation to provide same. (ECF No. 120-5 at
7). Plaintiffs also object to the phrase “excessive or unreasonable fees” as an improper distillation
of the allegations in paragraphs 53–74 of Plaintiffs’ Second Amended Complaint. Id.
Interrogatory number five requests that Plaintiffs:
State all facts and identify all Documents and Communications that You
believe support Your contention that the Plan’s Investment Options charged fees
that “were generally many times higher than the fees in comparable funds offered
by other mutual fund companies that were frequently used by other plans.” Compl.
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¶ 52. Include in Your response an identification of the purportedly “comparable
funds” and all facts purporting to show that those funds are “comparable” to one or
more of the Investment Options. (ECF No. 120-4 at 8).
Plaintiffs raise the same objections. (ECF No. 120-5 at 8).
Interrogatory number six requests that Plaintiffs:
Identify all Investment Options that You contend had a “cheaper, yet
materially identical Sub-advised analogue[] that could have replaced the
Investment Option in the Plan at any point during the relevant Time Period. Compl.
¶ 68. Include in Your response an identification of each “cheaper, yet materially
identical Sub-Advised analogue[]” that corresponds to each Investment Option and
the period of time within the Relevant Time Period during which you contend that
the “cheaper, yet materially identical Sub-Advised analogue[]” was available. (ECF
No. 120-4 at 7–8).
Plaintiffs objects that the interrogatory is premature and seeks disclosure of expert information
prior to any obligation to provide same. (ECF No. 120-5 at 8).
Interrogatory number seven requests that Plaintiffs:
Identify the investment Options that You contend were “underperforming”
or “poorly performing investments” that Defendants imprudently and disloyally
“failed to monitor” and remove at any point during the Relevant time period. See
Compl. ¶¶ 75–90. Include in Your response an identification of the date on which
You contend a prudent fiduciary would have removed the identified Investment
Options. (ECF No. 120-4 at 7–8).
Plaintiffs object that the interrogatory is premature and compound and seeks disclosure of expert
information prior to any obligation to provide same. (ECF No. 120-5 at 9).
Interrogatory number nine requests that Plaintiffs:
State all facts and identify all Documents and Communications that You
believe support Your contention that Plan participants “would have earned at least
$123 million more for their retirement” if Investment Options with “weak”
performance had been replaced with “alternative comparable funds.” Compl. ¶ 90.
Identify in Your response those Investment Options that You contend contributed
to the asserted $123 million loss and the “alternative comparable funds” that You
contend should have replaced those investment options.” (ECF No. 120-4 at 9).

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Plaintiffs re-allege that the interrogatory is overly broad and unduly burdensome. (ECF No. 1205 at 10).
Interrogatory number ten request that Plaintiffs:
Identify the collective trust Investment Options that You contend
Defendants offered in the Plan “to give the trust[] the capital [it] needed to sustain
operations and attract new investors” at any point during the Relevant Time Period,
and state all facts and identify all Documents and Communications that You believe
support Your Contention. Compl. ¶ 92. (ECF No. 120-4 at 10–11).
Plaintiffs object that the Interrogatory is premature and compound and seeks disclosure of expert
information prior to any obligation to provide same. (ECF No. 120-5 at 10).
Interrogatory number twelve requests that Plaintiffs:
Identify the Investment Options for which You contend that Defendants
“rel[ied] on comparisons to benchmarks that do not adequately correspond” to the
Investment Option’s “investment strategy and risk profile” at any point during the
Relevant Time Period and, to the extent You contend that Defendants’ use of such
benchmarks for those Investment Options harmed the Plan, state all facts and
identify all Documents and Communications that You believe support that
contention. Compl. ¶ 87. (ECF No. 120-4 at 10).
Plaintiffs raise the same objections and re-insert that the interrogatory is overly broad and unduly
burdensome. (ECF No. 120-5 at 11–12).
Finally, interrogatory number fourteen requests that Plaintiffs:
State all facts and identify all Documents and Communications that You
believe support Your contention that Defendants T. Rowe Price Trust Company
and T. Rowe Price Associates, Inc., gave the Plan’s trustees “imprudent investment
advice” that was “routinely . . . followed, in conjunction with the monitoring,
selection, and the appropriateness of continuing to offer in-house funds for the
401(k) Plan.” Compl. ¶ 106. (ECF No. 120-4 at 10–11).
Plaintiffs raise the same objections as immediately above. (ECF No. 120-5 at 12).
After receiving complaints from Defendants, Plaintiffs filed supplemental answers which,
in large part, reiterated the above objections. (ECF No. 120-8). Plaintiffs also generally referred
to the following:
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•
The listing of all available mutual funds and share classes on T. Rowe Price’s public facing
website,
available
at
https://www.troweprice.com/financialintermediary/us/en/investments/mutual-funds.html;
•
Registration statements, prospectuses, and incorporated documents for mutual funds,
available at https://www.sec.gov/edgar.shtml;
•
Department of Labor 5500s for the collective trust investment options, available at
https://www.efast.dol.gov;
•
Fact sheets for collective trust investment options, indexed on Google through at
https://www3.troweprice.com/rws/rps/public/assets/ffs/; and
•
Audited financial statements for collective trust investment options, indexed on Google at
https://www.benefits.ml.com.
•
Changes to the Plan line-up, disclosed on Department of Labor 5500s, available at
https://www.efast.dol.gov; and
•
Account Statements (e.g., TRP_Feinberg00069054).
Id. at 6.
III.

Discussion
In addition to objections outlined above, Plaintiffs assert in their Opposition ( ECF No.

120-10) that Defendants failed to comply with Local Rule 104.8; failed to show that further
supplemental responses would provide complete, useful information; and failed to offer a “single
valid reason why they would be prejudiced by waiting a bit longer,” as Plaintiffs have “made clear
to Defendants that they intend to further supplement their responses to Defendants’ Contention
Interrogatories later in this case.” (ECF No. 120-10 at 2 & 10). The procedural objections are
addressed first, and then the Court will turn to the substantive objections.
A. Procedural Objections
Plaintiffs argue that Defendants’ Motion can be denied as procedurally improper because
it violates the Local Rules of this Court. (ECF No. 120-10 at 3). Specifically, Local Rule 104.8(a)
requires:
If a party who has propounded interrogatories or requests for production is
dissatisfied with the response to them and has been unable to resolve informally . . .
that party shall serve a motion to compel . . . . The memorandum in support of the
motion shall set forth, as to each response to which the motion is directed, the

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discovery request, the response thereto, and the asserted basis for the insufficiency
of the response. L.R. 104(8)(a) (2018) (emphasis added).
Assuming, arguendo, that Defendants failed to comply with the “delineation requirement”
of this rule such a failure does not per se require dismissal of a party’s motion to compel. Tucker
v. Ohtsu Tire & Rubber Co., Ltd., 191 F.R.D. 495, 497 (D. Md. 2000) (“[A]n absolute rule
requiring [dismissal] without first determining whether the opposing party would suffer any real
prejudice if the motion is granted would be too harsh a construction of the local rule.”). If the nonmoving party will not suffer any undue prejudice as a result of the moving party’s failure to comply
with Local Rule 104.8, and there is good cause to excuse the failure to comply, then the moving
party’s motion will not be dismissed because of the procedural defect. Chavis v. Plumbers &
Steamfitters Local 486 Pension Plan, 2019 WL 4879015, at *4 (D. Md. Oct. 3, 2019). Here, the
well-documented communications between Counsel illustrate that the non-moving party
(Plaintiffs), would not suffer any undue prejudice as a result of the (alleged) failure to comply with
the minutia of the rule. Further, the parties submitted a Joint Certificate of compliance (ECF No.
120), certifying that in accordance with Local Rules 104.7 and 104.8, they met and held a discovery
conference. At this time, Defendants discussed the motion to compel with Plaintiffs prior to
requesting Court involvement. Id.
Plaintiffs argue that this Motion should be dismissed because Defendants failed to set out
(for each disputed interrogatory response), the text of the interrogatory, the text of Plaintiffs’
response, and the ground on which Defendants contend each response is insufficient. (ECF No.
120-2 at 2, 3, 10). Although the format utilized by Defendants does not follow that set forth in our
Local Rules, Defendants’ format was not a significant hindrance to the Court. Moreover, striking
Defendants’ motion would only further delay this dispute.

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See Daimler Trust v. Prestige

Annapolis, LLC, 2017 WL 3085680 (D. Md. July 20, 2017) (“District courts enjoy broad latitude
in administering local rules.”).
B. Substantive Objections
The interrogatories at issue can generally be categorized as “contention” interrogatories
wherein the requesting party seeks the factual basis for contentions asserted in a pleading. Such
discovery is specifically authorized by the Federal Rules of Civil Procedure:
An interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact, but the court may
order that the interrogatory need not be answered until designated discovery is
complete or until a pretrial conference or some other time. Fed. R. Civ. P. 33(a)(2).
Although many courts disfavor “early” contention interrogatories, and postpone the responding
party’s answers until at or near the close of discovery, that is not universally the case where a
requesting party shows sufficient justification for an earlier response. Compare Cardoza v.
Bloomin’ Brands, Inc., 2015 WL 3875916, at *2 (D. Nev. June 22, 2015), with Wide Voice, LLC
v. Sprint Communications Co., LP., 2016 WL 1150772, at *2 (D. Nev. May 19, 2016); see also
CSX Transp., Inc. v. Peirce, 2012 WL 12892733, at *4 (N.D. W.Va. May 23, 2012) (holding
contention interrogatories may be used once a case is “well into” the discovery phase).
Importantly, interrogatories requesting the identification of supporting witnesses and documents
are not subject to the timing concerns discussed above. See Dalmatia Import Group, Inc. v.
Foodmatch, Inc., 2016 WL 5721161, at *2 (E.D. Pa Oct. 3, 2016).
Plaintiffs assert in each of their objections that the discovery sought is premature and
should await the conclusion of expert disclosures and discovery.3 Defendants counter that the

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It is not entirely clear what that deadline is. Although the parties initially proposed separate deadlines for expert
identification and reports keyed to the Court’s decision on class certification, it does not appear as though those
proposals were part of the Court’s initial scheduling order or extension orders. For purposes of this opinion, the Court

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interrogatories seek the specific factual support for matters asserted in the Second Amended
Complaint and do not invade the province of experts. As set forth above, courts are somewhat
receptive to “timing” arguments seeking to defer contention interrogatory answers until discovery
is complete or substantially complete. Although Plaintiffs’ objection of “prematurity” may well
have been valid when the discovery was first propounded and during the initial pendency of this
discovery dispute — fact discovery has now concluded. Defendants should not be required to wait
any longer to explore the specific factual basis underlying those parts of the Second Amended
Complaint to which the interrogatories refer, even if experts will further expound on these areas.
See e.g., Facedouble, Inc. v. Face.com, Inc., 2014 WL 585868, at *3 (S.D. Cal. Feb. 13, 2014)
(finding no basis to delay responding to a contention interrogatory until expert discovery); In re
Urethane Antitrust Litig., 2009 WL 2058759, at *2 (D. Kan. July 15, 2009) (“Although plaintiffs’
expert may identify additional [information] that support[s] plaintiffs’ claims, plaintiffs may not
shirk their duty of answering [contention interrogatories] now ‘with whatever information they
have.’”). With the exception of Interrogatory number nine which appears to contemplate expert
calculations, the remaining interrogatories do not themselves directly seek an expert opinion, the
names of experts, or the materials relied upon by experts, and thus are not objectionable on that
basis. See United States v. Blue Cross Blue Shield, 2012 WL 12930840, at *6 (E.D. Mich. May
30, 2012) (compelling a response to an interrogatory challenged as premature when the
interrogatory did not “call for expert opinion or facts known only to experts,” because substantial
discovery had already occurred at the time).

assumes that expert disclosures and reports are due at some point after the December 2, 2019 fact discovery deadline
and prior to a dispositive motion deadline.

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As for Plaintiffs’ repeated objection that the interrogatories are overbroad, burdensome
and/or compound, it is true that Defendants’ interrogatories could be interpreted as overly
expansive, although that is somewhat tempered by the fact that these interrogatories are aimed at
what Plaintiffs contend or what Plaintiffs believe. In other words, Defendants seek to discover
exactly what evidence Plaintiffs intend to point to in order to prove the allegations in their Second
Amended Complaint. That is the core purpose of discovery and, with the fact discovery deadline
now passed, Plaintiffs should be in a perfect position to do so. Plaintiffs’ citation to publicly
available securities information is too general to fulfill their discovery obligations. As Defendants
state:
The central problem is that none of Plaintiffs’ references to undifferentiated masses
of public records identify Plaintiffs’ contentions. Defendants’ primary interest is
in ascertaining which specific funds in the Plan are being challenged by Plaintiffs
on various grounds, and no amount of rummaging through public records and Planspecific reporting will allow Defendants to divine Plaintiffs’ litigation targets. But
identifying the targets of Plaintiffs’ claims is precisely what Defendants need to do
in order to properly prepare a defense in this action. (ECF No. 120-2 at 11).
Finally, contrary to Plaintiffs’ arguments, requiring such disclosures does not reveal
matters otherwise protected by the work product doctrine any more than the information set forth
(voluntarily) in a detailed complaint, such as Plaintiffs’ Second Amended Complaint. See In re
San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1015–1016 (1st Cir. 1988) (“[N]ot every
item which may reveal some inkling of a lawyer’s mental impressions, conclusions, opinions, or
legal theories is protected as opinion work product.”). This is equally true with respect to
contention interrogatories seeking information that Plaintiffs are relying upon in support of those
contentions, which all should anticipate as being disclosed during the course of the discovery
process. Id. See also Johnson v. N.C. Dep’t of Justice, 2018 WL 5831997, at *8 (E.D.N.C. Nov.

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7, 2018) (“[C]ourts do not, as a general matter, allow a party to use the work-product doctrine to
avoid answering contention interrogatories.” Further, citing cases in support of such).
As mentioned above, Interrogatory number nine appears to call for calculations and would
more efficiently be addressed by an expert at the appropriate time. Plaintiffs need not supplement
their answer to Interrogatory number nine.
The remaining interrogatories are narrowed somewhat below, and Plaintiffs are ordered to
provide the following:
1. The specific investment options alleged to have charged the Plan excessive or
unreasonable fees and the specific time period in which each option allegedly charged
those fees. If Plaintiffs take issue with “excessive or unreasonable,” they may
substitute what they consider a fair characterization of the allegations in ¶¶ 53–74 of
the Second Amended Complaint (Interrogatory No. 4);
2. The specific investment options alleged to have charged higher fees than “comparable
funds” and what those “comparable funds” purportedly are (Interrogatory No. 5);
3. The specific investment options that allegedly could have been replaced with a
“cheaper, yet materially identical Sub-Advised analogue” and the specific time period
in which the alleged analogue was available (Interrogatory No. 6);
4. The specific investment options that were allegedly underperforming such that
Defendants should have removed them and the specific date on which Plaintiffs
contend Defendants should have removed those investment options (Interrogatory No.
7);
5. The specific collective trust investment options that Plaintiffs contend Defendants
improperly seeded with Plan investments (Interrogatory No. 10);

6. The specific investment options for which Defendants allegedly relied on improper
benchmarks to report or assess performance (Interrogatory No. 12); and
7. The specific facts supporting Plaintiffs’ contention that Defendants T. Rowe Price
Trust Company and T. Rowe Price Associates, Inc. gave the Plan’s trustees improper
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investment advice (Interrogatory No. 14).

By way of further guidance, Plaintiffs should not simply reiterate phrases from their
Second Amended Complaint in providing substantive responses, given that these interrogatories
are targeted at the information supporting those allegations. See M & F Fishing, Inc. v. Certain
Underwriters at Lloyds, 2007 WL 9706573, at *9 (S.D. Cal. Apr. 13, 2007) (“What Plaintiffs
provided were narrative responses that appear to have been copied nearly verbatim from the text
of Plaintiffs’ Second Amended Complaint . . . . Courts have routinely concluded that these types
of answers are nonresponsive and improper.”). Additionally, to the extent there are specific
documents that Plaintiffs are relying on for any of the above, they should either be produced or
described with sufficient specificity (such as a Bates number within a document production) to
allow Defendants to locate them. In providing facts and/or identifying documents, Plaintiffs
should avoid the phrase “including but not limited to” or similar phrases; it shall be recognized
that the facts or documents so identified represent Plaintiffs’ best efforts at the point of
supplementation, and that they have the ability (and duty) to timely supplement their answers as
required should additional information come to their attention.
Finally, notwithstanding the supplementation ordered here, Plaintiffs’ experts will not be
limited by Plaintiffs’ supplemental responses, may base opinions upon additional or different
information, and express opinions more expansive than or different from Plaintiffs’ supplemental
responses, as long as they are otherwise compliant with the expert disclosure and report timing
and requirements imposed by the Federal Rules and this Court.
Plaintiffs should provide this supplementation by January 6, 2020, however the parties are
authorized to reasonably extend that deadline by stipulation, and such requests should be
reasonably agreed-upon by Defendants. If no agreement can be reached, the parties should contact
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Chambers and schedule a call. Any further discovery disputes or scheduling issues that cannot be
agreed upon after a good faith effort to do so should be summarized in a letter to me not to exceed
three single-spaced pages and also filed via the Electronic Court Filing system. I will then conduct
a phone call with the parties and decide whether more extensive briefing is necessary.
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion to Compel Further Interrogatory Responses

(ECF No 120), is GRANTED in PART, subject to the limitations described above. A separate
Order shall follow.

December 3, 2019

/s/
J. Mark Coulson
United States Magistrate Judge

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