In Re: Wells Fargo ERISA 401(k) Litigation
ORDER OVERRULING 134 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge and AFFIRMING Order 129 .(Written Opinion) Signed by Judge Patrick J. Schiltz on 6/21/2017. (ECW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IN RE: WELLS FARGO ERISA
Case No. 16‐CV‐3405 (PJS/BRT)
Adam J. Levitt and Daniel R. Ferri, DICELLO LEVITT & CASEY LLC;
Robert K. Shelquist and Rebecca A. Peterson, LOCKRIDGE GRINDAL
NAUEN P.L.L.P.; Richard M. Elias, Greg G. Gutzler, and Tamara M.
Spicer, ELIAS GUTZLER SPICER LLC; Lori G. Feldman and Michael B.
Ershowsky, LEVI & KORSINSKY LLP; W. Daniel “Dee” Miles, III, Rebecca
D. Gilliland, and Claire E. Burns, BEASLEY ALLEN CROW METHVIN
PORTIS & MILES, P.C.; Samuel E. Bonderoff, Jacob H. Zamansky, Edward
H. Glenn, Jr., and Justin Sauerwald, ZAMANSKY LLC; Carolyn G.
Anderson and June P. Hoidal, ZIMMERMAN REED LLP; and Douglas J.
Nill, DOUGLAS J. NILL, PLLC, for plaintiffs.
Russell L. Hirschhorn, Joseph E. Clark, Howard Shapiro, and Lindsey H.
Chopin, PROSKAUER ROSE LLP; Kirsten E. Schubert and Stephen P.
Lucke, DORSEY & WHITNEY LLP, for defendants.
This matter is before the Court on defendants’ objection to the April 19, 2017
discovery order of Magistrate Judge Becky R. Thorson. A magistrate judge’s ruling on
nondispositive pretrial matters may be reversed only if it is “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The Court has reviewed
defendants’ objection, plaintiffs’ response, and the transcript of the April 19, 2017
hearing at which Judge Thorson described her rulings and the reasons for them. ECF
No. 131. Based on that review, the Court sees nothing clearly erroneous or contrary to
law, and Judge Thorson’s order is therefore affirmed. Just a couple of matters merit
First, in this litigation focused on the allegedly improper sales practices of Wells
Fargo, documents “relating to Wells Fargo’s Improper Sales Practices” are by definition
relevant. ECF No. 100‐1 at 3. Those documents are relevant to the existence, scope, and
duration of the challenged sales practices—and that, in turn, is relevant to what each
defendant knew or should have known about those sales practices.
Second, the discovery is proportional, particularly in light of the enormous size
and resources of Wells Fargo, and in light of the large amount of money that is at stake
in this litigation. The Court also notes that Wells Fargo’s argument about the
burdensome nature of the discovery is short on specifics. The challenged sales practices
were thoroughly investigated in 2015, and Wells Fargo is defending—and will continue
to defend—other lawsuits regarding those sales practices no matter how this Court
rules on the pending motion to dismiss. Thus, for example, Wells Fargo almost surely
has already created a privilege log or will need to create such a log in connection with
the other pending lawsuits. The marginal burden to Wells Fargo of complying with
Judge Thorson’s order will likely be substantially smaller than the absolute burden
claimed in its brief.
And finally, even if the procedure established by Judge Thorson for agencies to
assert the bank‐examiner privilege reflects a “minority view,” ECF No. 134 at 10, the
procedure is not unreasonable, much less contrary to law. Should any of the deadlines
set by Judge Thorson prove difficult to meet, a party or agency can seek an extension.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT defendants’ objection [ECF No. 134] is OVERRULED
and Judge Thorson’s order [ECF No. 129] is AFFIRMED.
Dated: June 21, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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