Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp., et al.

Filing 470

Memorandum Opinion and Order denying plaintiff's motion to compel discovery and for sanctions. (Related Docs. # 380 , 425 ). Signed by Magistrate Judge William H. Baughman, Jr., on 05/02/2018. (S,MD)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
OHIO PUBLIC EMPLOYEES
RETIREMENT SYSTEM,

)
)
)
)
Plaintiff,
)
)
v.
)
FEDERAL HOME LOAN MORTGAGE )
)
CORPORATION, et al.,
)
)
Defendants.

CASE NO. 4:08 CV 160
JUDGE BENITA Y. PEARSON
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER

In this case that this year passes from childhood to adolescence, plaintiff Ohio Public
Employee Retirement System (OPERS) requested production of documents provided by
defendant Federal Home Loan Mortgage Corporation (Freddie Mac) to the Securities
Exchange Commission (SEC). Although Freddie Mac initially objected to the request as
overly broad and burdensome, it eventually produced the documents in the same electronic
form as provided to the SEC. OPERS, however, found this production inadequate for its
purposes because of the absence of certain metadata. After extensive, unsuccessful efforts
to agree on an accommodation, OPERS has moved to compel Freddie Mac to cure remaining
perceived defects in the production and for sanctions.1 Freddie Mac opposes the motion.2
I deny the motion.

1

ECF # 425.

2

ECF # 447. OPERS has filed a reply. ECF # 447.

I.
On December 1, 2015, an amendment to Federal Rule of Civil Procedure 26(b)(1)
took effect providing that "[p]arties may obtain discovery regarding any non-privileged
matter that is relevant to any party's claim or defense and proportional to the needs of the
case. . . ." This discovery dispute pre-dates this amendment, but it governs the decision on
the pending motion.
OPERS asked for all the documents provided by Freddie Mac to the SEC in
connection with an investigation into some subjects similar to OPERS's complaint. Despite
initially objecting to the request as overly broad and burdensome, Freddie Mac gave OPERS
what it asked for - the entire production in the same electronic format given to the SEC.
OPERS considered the production flawed because it lacked certain metadata. This
launched a collaborative effort by counsel to find an accommodation. Eventually the Court
became involved in this process, setting out a framework for counsel to work through the
parties' differences. From my observations during several conferences with counsel, the
parties sincerely wanted and sought a resolution but could not find one. Accordingly,
OPERS filed the motion now before me.
Curiously, OPERS's motion asks the Court to order Freddie Mac to fix the defects
that OPERS alleged in the SEC production. It does not detail what Freddie Mac should do.
Rather OPERS asks the Court to place the burden to find the fix on a set schedule, to pay for
the fix, and to pay certain expenses of OPERS as sanctions.3

3

ECF # 425-1, at 14.
-2-

What OPERS seeks is a fix of the SEC production to permit OPERS to mine the
documents for evidence in support of its claims. Under the limitations imposed by Rule
26(b)(1)'s proportionality requirement, this prayer is excessive. OPERS gives an example
of some information that it cannot extract from the SEC production in the format given to the
SEC and provided to OPERS. OPERS believes that all emails between individual defendants
Richard Syron and Anthony Piszel have relevance to the claims asserted.4 The absence of
complete metadata makes the identification of all those emails within the SEC production
impossible.5

But the solution proposed by OPERS is excessive and not proportional.

Assuming arguendo the importance of these emails to OPERS's case, OPERS should at this
point request the emails rather than seek an undefined fix that might permit its counsel to
look for them.

II.
The parties and counsel have struggled with the "SEC production" problem since
2012. It is time to move on. Going forward counsel must request with specificity the
documents needed to prepare this case for disposition on the merits, keeping in mind the
requirement of proportionality. OPERS's motion to compel and for sanctions is denied.
IT IS SO ORDERED.
Dated: May 2, 2018

4

Id. at 8-9.

5

s/ William H. Baughman, Jr.
United States Magistrate Judge

Id.
-3-