City of Providence, Rhode Island v. Bats Global Markets, Inc. et al

Filing 422

MEMORANDUM OPINION AND ORDER re: 413 LETTER MOTION for Discovery Conference Pursuant to Individual Rule 2(C) addressed to Judge Jesse M. Furman from Douglas W. Henkin and Steven M. Shepard dated April 27, 2020. filed by New York St ock Exchange, L.L.C., Direct Edge ECN, L.L.C., Chicago Stock Exchange, Inc., Nasdaq OMX BX, Inc., Bats Global Markets, Inc., The Nasdaq Stock Market L.L.C., BATS Global Markets, Inc., NYSE Arca, Inc., 415 LETTER MOTION for Discove ry Conference on ESI Custodians addressed to Judge Jesse M. Furman from Joshua C. Littlejohn of Motley Rice LLC dated April 29, 2020. filed by Boston Retirement System, Forsta AP-fonden, State-Boston Retirement System, Employees' Retirement System of the Government of the Virgin Islands, Plumbers and Pipefitters National Pension Fund, City of Providence, Rhode Island. For the reasons set forth in Defendants' opposition letter, see ECF No. 418, and articulated by de fense counsel during the teleconference, Plaintiffs' motion to compel Defendants BATS Global Markets, Inc. and Direct Edge ECN, LLC to collect relevant documents from Plaintiffs' proposed list of additional custodians is DENIED. Plaintiff s have not made the requisite showing that Defendants' list of custodians, made pursuant to the parties' ESI Protocol, see ECF No. 401, is so "manifestly unreasonable" or deficient as to require judicial intervention at this ju ncture. See, e.g., Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15-CV-0293 (LTS) (JCF), 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). This denial is without prejudice to Plaintiffs renewing their motion after reviewing Defen dants' initial production and/or making a sufficient factual showing that one or two of Plaintiffs' proposed custodians possess information that would not otherwise be discoverable from Defendants' custodians. The Clerk of Court is directed to terminate ECF Nos. 413 and 415. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/6/20) (yv)

Case 1:14-cv-02811-JMF Document 422 Filed 05/06/20 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CITY OF PROVIDENCE, RHODE ISLAND, et al.,
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:
Plaintiffs,
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-v:
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BATS GLOBAL MARKETS, INC., et al.,
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Defendants.
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14-CV-2811 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
As stated on the record during the teleconference held on May 1, 2020, the deadlines set
forth in the August 16, 2019 Case Management Plan as amended on March 4, 2020, see ECF Nos.
329 & 408, are hereby EXTENDED by three months. In accordance with the Case Management
Plan, the parties shall continue to submit joint status letters on a bi-monthly basis. See, e.g., ECF
No. 404. Further, unless and until the Court orders otherwise, the parties shall appear for a
conference with the Court on September 22, 2020, at 3 p.m.
Upon review of the parties’ submissions, see ECF Nos. 413, 417, 419-21, and consideration
of counsel’s arguments during the teleconference, Defendants’ motion to compel production of
counsel’s communications with third parties relating to Plaintiffs’ trade data is DENIED. The Court
does not doubt Defendants’ need for guidance in construing the data received from the third parties,
but — putting aside the fact that Plaintiffs have the better of the argument over the scope of
Defendants’ actual requests — the more appropriate means to obtain that guidance would be Rule
30(b)(6) depositions of those third parties.1 Plaintiffs’ counsel’s communications may shed some
light on the data, but it is likely to be hit or miss; that is, it is speculative — indeed, farfetched — to
Plaintiffs’ counsel shall cooperate with defense counsel in identifying the topics and, if
necessary, formulating questions for Rule 30(b)(6) depositions to ensure that they are effective.
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Case 1:14-cv-02811-JMF Document 422 Filed 05/06/20 Page 2 of 2

assume that disclosure of those communications would provide the guidance that Defendants
actually need. Moreover, production of counsel’s communications would be unduly burdensome, in
no small part because it would undoubtedly lead to litigation over the propriety of redactions to
shield Plaintiffs’ trial strategy. Accordingly, Defendants’ motion is denied, albeit without prejudice
to more targeted requests after Defendants have exhausted other means, such as Rule 30(b)(6)
depositions, to get the information and guidance they allegedly need.
Finally, for the reasons set forth in Defendants’ opposition letter, see ECF No. 418, and
articulated by defense counsel during the teleconference, Plaintiffs’ motion to compel Defendants
BATS Global Markets, Inc. and Direct Edge ECN, LLC to collect relevant documents from
Plaintiffs’ proposed list of additional custodians is DENIED. Plaintiffs have not made the requisite
showing that Defendants’ list of custodians, made pursuant to the parties’ ESI Protocol, see ECF
No. 401, is so “manifestly unreasonable” or deficient as to require judicial intervention at this
juncture. See, e.g., Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15-CV0293 (LTS) (JCF), 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). This denial is without
prejudice to Plaintiffs renewing their motion after reviewing Defendants’ initial production and/or
making a sufficient factual showing that one or two of Plaintiffs’ proposed custodians possess
information that would not otherwise be discoverable from Defendants’ identified custodians.
The Clerk of Court is directed to terminate ECF Nos. 413 and 415.
SO ORDERED.
Dated: May 6, 2020
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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