Michelo et al v. National Collegiate Student Loan Trust 2007-2 et al

Filing 167

ORDER terminating (146) Letter Motion for Local Rule 37.2 Conference in case 1:18-cv-01781-PGG-BCM; terminating (89) Letter Motion for Local Rule 37.2 Conference in case 1:18-cv-07692-PGG-BCM. Judge Moses will conduct a further telephonic discove ry conference on June 18, 2020, at 10:30 a.m. At that time, the parties shall dial in to the following teleconference: call in number: 888-557-8511; access code: 7746387. The Clerk of Court is respectfully directed to terminate the letter-motions at Dkt. Nos. 140 and 146 in Case No. 18-CV-1781, and Dkt. Nos. 83 and 89 in Case No. 18-CV-7692. (As further set forth in this Order.) (Signed by Magistrate Judge Barbara C. Moses on 5/15/2020) Filed In Associated Cases: 1:18-cv-01781-PGG-BCM, 1:18-cv-07692-PGG-BCM (cf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MUTINTA MICHELO, individually and on
behalf of all others similarly situated, et al.,

5/15/20
18-CV-1781 (PGG) (BCM)

Plaintiffs,
-againstNATIONAL COLLEGIATE STUDENT
LOAN TRUST 2007-2, et al.,
Defendants.
CHRISTINA BIFULCO, individually and on
behalf of all others similarly situated, et al.,
Plaintiffs,

18-CV-7692 (PGG) (BCM)
ORDER

-againstNATIONAL COLLEGIATE STUDENT
LOAN TRUST 2007-2, et al.,
Defendants.
BARBARA MOSES, United States Magistrate Judge.
For the reasons stated on the record during the telephonic discovery conference held on
May 12, 2020, it is hereby ORDERED that:
1. Unauthorized Filings. The parties are reminded that the Court will disregard
supplemental filings and sur-replies submitted without advance permission. (See, e.g.,
Dkt. Nos. 152, 154 in Case No. 18-CV-1781; Dkt. Nos. 95, 97 in Case No. 18-CV7692.)

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2. Trust Defendants' Letter-Motion Dated April 17, 2020 (Dkt. No. 140 in Case No. 18CV-1781; Dkt. No. 83 in Case No. 18-CV-7692).
a. Trust Defendants' Written Discovery to Plaintiffs. 1
i. Discovery Concerning Plaintiffs' Factual Allegations. Plaintiffs shall
promptly produce all non-privileged documents responsive to the Trust
Defendants' Requests for Production (RFPs) No. 16, 17, and 24. The
fact that responsive documents may have been obtained by counsel
"from sources other than Plaintiffs" does not make such documents
privileged nor shield them from production as attorney work product.
See S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 410 (S.D.N.Y.
2009) ("producing the compilations of documents that support the
factual allegations of a complaint reveals no more than that already
revealed by the filing of the complaint"); In re Grand Jury Subpoenas,
2002 WL 31040322, at *5 (S.D.N.Y. Sept. 12, 2002) (rejecting
argument that "merely by gathering pre-existing materials, even as part
of a far-ranging and diligent investigation, an attorney transforms them
into work product"), aff'd sub nom. In re Grand Jury Subpoenas Dated
Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379 (2d Cir. 2003). Plaintiffs
need not further respond to RFP No. 27, which is vague, overbroad,
and incomprehensible, nor to Interrogatories No. 14-16, which are
1

This Order refers (by number) to one set of the Trust Defendants' document requests and
interrogatories: those addressed to plaintiffs Christina Bifulco and Francis Butry. (Dkt. Nos. 1501, 150-5 in Case No. 18-CV-1781; Dkt. Nos. 93-1, 93-5 in Case No. 18-CV-7692). However, the
Court's rulings apply equally to the corresponding discovery requests addressed to the other
named plaintiffs.

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compound

and

function,

in

part,

as

premature

contention

interrogatories.
ii. Discovery Concerning Plaintiffs' Damages. Plaintiffs shall promptly
produce nonprivileged documents responsive to RFP No. 25 to the
extent those documents are or were in plaintiffs' personal possession or
were obtained by plaintiffs or their counsel through means other than
party or nonparty discovery in this action. Plaintiffs need not reproduce documents obtained by them in this action pursuant to, e.g.,
Fed. R. Civ. P. 34 or 45. Plaintiffs shall also promptly respond to
Interrogatory No. 23 to the extent of (A) itemizing and "describ[ing] in
writing their damages as to which Plaintiffs themselves [are] the best
source of knowledge" (Dkt. No. 141 at 3 in Case No. 18-CV-1781;
Dkt. No. 84 at 3 in Case No. 18-CV-7692) and (B) listing in general
terms, by category: the other damages that they claim; their estimate, if
one can be made, of the amount of those damages; and the source(s) of
the information upon which plaintiffs expect to rely to quantify those
damages. The Court notes that the documents and information sought
in RFP No. 25 and Interrogatory No. 23, as limited by this Order, are
comparable to the documents and information that plaintiffs are
required to provide automatically and supplement seasonably pursuant
to Fed. R. Civ. P. 26(a)(1)(A)(iii) and 26(e).
b. Plaintiffs' Privilege Log (Dkt. No. 151-1 in Case No. 18-CV-1781; Dkt. No.
94-1 in Case No. 18-CV-7692).

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i. No later than May 28, 2020, plaintiffs shall serve an amended
privilege log.
ii. The amended privilege log shall not include (A) documents previously
withheld as privileged but produced pursuant to ¶ 2(a) above, or (B)
any other documents as to which plaintiffs' assertion of work product
protection arises only from the fact that plaintiffs or their counsel
obtained and possess them for purposes of this litigation (e.g., court
filings, news articles, and other publicly-available documents gathered
by plaintiffs or their counsel for use in this action). Those documents
may not be withheld as work product, see In re Grand Jury
Subpoenas, 2002 WL 31040322, at *5, and must be promptly
produced. Plaintiffs need not produce any annotations, labels,
metadata, or other information added by counsel to the documents they
gathered, and may, if necessary, redact such annotations, labels,
metadata or other such information before production. To the extent
plaintiffs produce documents in redacted form, to protect the attorneyclient privilege or attorney work product, they shall log those
documents as redacted on their amended privilege log in compliance
with Local Civil Rule 26.2.
c. With regard to the ninth and tenth categories of documents withheld as
privileged (notes regarding and communications with the "potential Class
members"), the amended privilege log shall individually list and describe
every such note or communication, in accordance with Local Civil Rule 26.2,

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if and to the extent the relevant "potential Class member" is now a named
plaintiff. See Bank Brussells Lambert v. Credit Lyonnais (Suisse), 220 F.
Supp. 2d 283, 288 (S.D.N.Y. 2002) (requiring service of privilege log
including "names of clients" with whom law firm communicated in
confidence).
d. Other Issues Raised by the Trust Defendants. The Court defers ruling on
whether and when plaintiffs must respond to the Trust Defendants' February
20, 2020 Interrogatories. (Dkt. Nos. 150-9, 150-10, 150-11 in Case No. 18CV-1781; Dkt. Nos. 92-9, 92-10, 92-11 in Case No. 18-CV-7692). The parties
shall meet and confer regarding that dispute, and any other disputes remaining
open from the Trust Defendants' April 17, 2020 letter-motion, on the
scheduled provided below in paragraph 3.
2. Plaintiffs' Letter-Motion Dated May 1, 2020 (Dkt. No. 146 in Case No. 18-CV-1781;
Dkt. No. 89 in Case No. 18-CV-7692).
a. "Affiant X." No later than May 15, 2020, counsel for defendant TSI (who
acknowledge that they will serve as counsel for TSI employee "Affiant X" if
and when he sits for deposition) shall advise plaintiffs' counsel whether they
will accept service of a deposition subpoena on behalf of Mr. X (reserving all
rights to object to the deposition on grounds other than service). If TSI's
counsel decline to accept service on behalf of Mr. X, they shall immediately
provide plaintiffs' counsel with his current or last known home and work
addresses. Promptly after service of the subpoena, the parties shall meet and
confer in good faith to determine the extent of Mr. X's disability and explore

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methods of securing his testimony that would accommodate his medical
issues. Should the parties fail to reach agreement, TSI shall file any motion to
quash or modify Mr. X's subpoena no later than one week after service of
that subpoena, supported by properly authenticated medical records
evidencing the medical condition(s) upon which Mr. X relies for any claim
that his health prohibits him from sitting for a (remote) deposition.
b. Documents Related to Consumer Financial Protection Bureau (CFPB)
Investigation and Consent Order. Documents submitted by defendant TSI to
the Consumer Financial Protection Bureau (CFPB or Bureau) pursuant to a
Civil Investigative Demand (CID) may not for that reason alone be withheld
from discovery. The authorities cited by TSI for the proposition that materials
submitted to the CFPB in response to a CID are subject to a "confidentiality
privilege," TSI Ltr. dated May 6, 2020 (Dkt. No. 148 in Case No. 18-CV1781; Dkt. No. 91 in Case No. 18-CV-7692), at 4, are inapposite. 2 If and to
the extent TSI relies on the qualified "bank examination privilege" to shield
communications between it and the CFPB, it must identify such

2

12 U.S.C. § 5562(d)(1) requires the CFPB to comply with its own rules regarding the
confidentiality of materials gathered by it from regulated entities or others. Those rules govern
the circumstances under which the CFPB itself may disclose material received in the course of
an investigation. See 12 C.F.R. §§ 1070.1-1070.63, 1080.14. They also permit the recipient of a
CID to withhold documents from the Bureau based on a claim of privilege. See 12 C.F.R.
§ 1080.8(a); Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 979 F. Supp. 2d 104, 108
(D.D.C. 2013) (noting in dicta that "[m]aterials submitted in response to a CID are considered
confidential" pursuant to 12 U.S.C. § 5562(d) and that "a recipient may withhold responsive
material based on a 'claim of privilege,' 12 C.F.R. § 1080.8(a)"), aff'd, 785 F.3d 684 (D.C. Cir.
2015). The Court has been unable to locate any statute, rule, or case that requires or permits the
recipient of a CID to withhold otherwise discoverable documents from production in private civil
litigation because they were previously submitted to the CFPB pursuant to a CID.

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communications on its privilege log, in accordance with Local Civil Rule
26.2, and promptly notify the Bureau of the dispute so that it can determine
whether to assert a claim of privilege. See Wultz v. Bank of China Ltd., 61 F.
Supp. 3d 272, 286 (S.D.N.Y. 2013) ("The bank examination privilege must be
asserted by the banking regulator, and the regulator has the burden of
establishing that the privilege applies to the documents at issue.").
c. Other Issues Raised by Plaintiffs. The Court defers ruling on plaintiffs'
assertion that "Defendants have failed to produce multiple categories of
documents clearly responsive to Plaintiffs' document requests." Pl. Ltr. Mtn.
at 2. The parties shall meet and confer regarding that dispute, and any other
disputes remaining open from plaintiffs' May 1, 2020 letter-motion, on the
scheduled provided below in paragraph 3.
3. Procedure for Remaining Disputes and Case Scheduling.
a. No later than June 4, 2020, the parties shall meet and confer in good faith
regarding (i) any remaining unresolved disputes raised by the letter-motions
addressed above in paragraphs 1 and 2, and (ii) a proposed revised discovery
schedule for the remainder of discovery, including fact depositions and class
discovery.
b. No later than June 11, 2020, the parties shall file a joint letter, limited to six
pages in total (exclusive of attachments), updating the Court on which of their
disputes, if any, remain unresolved, succinctly describing those areas of
disagreement, and attaching the relevant portions (and only the relevant
portions) of the underlying discovery demands and responses. If the same or

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similar discovery demands and responses have been served on or by multiple
parties, only one exemplar set need be attached. The joint letter shall also
propose a revised schedule for the remainder of fact and class discovery. If the
parties disagree as to an element of that schedule, they may submit separate
proposals as to such element, without argument.
c. Judge Moses will conduct a further telephonic discovery conference on June
18, 2020, at 10:30 a.m. At that time, the parties shall dial in to the following
teleconference: call in number: 888-557-8511; access code: 7746387.
The Clerk of Court is respectfully directed to terminate the letter-motions at Dkt. Nos.
140 and 146 in Case No. 18-CV-1781, and Dkt. Nos. 83 and 89 in Case No. 18-CV-7692.
Dated: New York, New York
May 15, 2020

SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

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