Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

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1 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION DEBORAH INNIS, on behalf of the Telligen, Inc. Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated, Plaintiff, CIVIL NO. 4:16-cv RGE-SBJ ORDER v. BANKERS TRUST COMPANY OF SOUTH DAKOTA, Defendant. I. INTRODUCTION Before the Court is a Motion to Compel Discovery Responses and Production of Documents (Dkt. 79) filed by plaintiff Deborah Innis n/k/a Dee Landry Dawson on August 9, Plaintiff contends defendant Bankers Trust Company of South Dakota ( Bankers Trust ) provided incomplete answers to two interrogatories and failed to produce highly relevant documents that it should possess without providing an explanation for the absence of those documents. Bankers Trust filed a Resistance (Dkt. 82) on August 23, Bankers Trust insists it has satisfied its obligation to conduct a diligent search and produce all responsive materials within its possession, custody or control. Bankers Trust further insists it has responded fully to plaintiff s interrogatories. In a Reply (Dkt. 83) filed August 30, 2018, plaintiff insists Bankers Trust has failed to produce documents that must exist. From plaintiff s perspective, Bankers Trust s conclusory assertion of conducting a diligent search is insufficient. Plaintiff also reasserts entitlement to responsive answers to her interrogatories. The Court considers the motion fully submitted. Although requested, oral argument by

2 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 2 of 17 counsel is not necessary. L.R. 7(c). As set forth below, the motion will be granted in part and denied in part. II. PLAINTIFF S MOTION TO COMPEL & DEFENDANT S RESISTANCE Plaintiff served her First Request for Production of Documents to Bankers Trust on November 29, See Dkt Bankers Trust served Responses and Objections (Dkt. 91-3) to plaintiff s requests on December 29, Subject to and without waiving objections, Bankers Trust repeatedly indicated it will produce responsive, non-privileged documents as to nearly all of the 44 numbered requests made by plaintiff. Id. In response to some of the requests, Bankers Trust further indicated: At this time, Bankers Trust does not intend to withhold otherwise responsive, non-privileged documents and/or limit its search for such documents on the basis of its specific objections. Id. According to Bankers Trust, 11,037 pages of documents were then produced to plaintiff on February 9, See Dkt. 82 p. 4. Subsequently, on March 22, 2018, plaintiff served her First Set of Interrogatories. Dkt On April 11, 2018, Bankers Trust produced an additional set of documents to plaintiff and, within a corresponding letter, stated: Subject to and without waiving the objections we served on you on December 29, 2017, and, together with Bankers Trust s production on February 9, 2018, Bankers Trust has satisfied its responsibility to respond to Plaintiff s Requests. Dkt p. 4. Bankers Trust served Responses and Objections (Dkt. 91-4) to plaintiff s interrogatories on April 20, 2018, then produced three additional documents to plaintiff on April 26, See Dkt. 82 p. 5. Plaintiff sent letters to Bankers Trust dated May 24, 2018 (Dkt. 91-5) and June 5, 2018 (Dkt. 91-7), regarding the discovery responses, to which Bankers Trust responded in a letter dated June 25, 2018 (Dkt. 91-8). The following day, June 26, 2018, counsel for Bankers Trust sent an to plaintiff s counsel stating:

3 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 3 of 17 I am writing to confirm that we have conducted a diligence search and, subject to our objections, have produced all responsive documents in our possession, custody, or control, with the exception of the particular documents identified in yesterday s letter as to be included in a forthcoming production. We have thus fulfilled our obligations under the Federal Rules. Dkt On July 11, 2018, plaintiff s counsel requested via a telephone conferral on discovery issues relating to Bankers Trust s production that need to be resolved or brought to the Court s attention including [t]he absence of certain documents. Dkt p. 3. In reply on July 12, 2018, counsel indicated, inter alia: as we have stated multiple times, Bankers Trust conducted a diligent search for documents responsive to Plaintiff s requests and, subject to our objections, Bankers Trust has produced all responsive documents in its possession, custody, or control, including documents that will be in this week s supplemental production. Id. p. 2. Counsel for Bankers Trust further stated: [w]ith this additional response, we do not see a need for a call to discuss the issues in your . Id. Plaintiff subsequently filed her Motion to Compel (Dkt. 79) and all supporting materials on August 9, 2018, under seal. Pursuant to order of the Court (Dkt. 87, 90), plaintiff refiled the motion on the public docket with the exception of a few redactions and exhibits which remained under seal. See Dkt Within her motion, plaintiff first asserts Bankers Trust provided an incomplete answer to the following Interrogatory No. 6: Identify the Person(s) who selected the Trustee-side service providers including but not limited to Defendant, Prairie Capital Advisors, Inc., and McDermott Will & Emery LLP in the ESOP Transaction. Dkt p. 17. Bankers Trust responded to Interrogatory No. 6 as follows: Bankers Trust refers to and incorporates its General Objections and Objections to Instructions and Definitions as if fully stated in this Response. Bankers Trust 1 The Court did not expect Bankers Trust to respond to the refiling of plaintiff s motion on the public docket but Bankers Trust did so on October 17, 2018, as the Court was finalizing this order. This resistance (Dkt. 92) appears to be nearly identical to Bankers Trust s first resistance other than information as to discovery which has occurred in the interim, to which certain arguments are made. It did not alter the Court s ruling as set forth herein and a reply from plaintiff is unnecessary.

4 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 4 of 17 specifically objects to this Interrogatory as vague and ambiguous including, but not limited to, its use of the term service providers. Subject to the foregoing general and specific objections, Bankers Trust responds as follows: The Company appointed Bankers Trust to serve as the transactional trustee, and Bankers Trust accepted that appointment subject to the condition that it be duly approved and ratified by the Company s Board of Directors. Trustee Engagement at BTC_ Bankers Trust was required under Section 4 of its engagement agreement to engage the services of a qualified independent financial advisor and under Section 5 to engage the services of a qualified law firm to serve as its legal counsel. Id. at BTC_ Bankers Trust selected and engaged Prairie under Section 4 and MWE under Section 5 of the Trustee Engagement, respectively. Dkt pp Plaintiff also asserts Bankers Trust provided an incomplete answer to the following Interrogatory No. 14: Identify all compensation, direct or indirect, received by You in connection with the Plan including but not limited to engagement fees, management fees, assetbased fees, consulting fees, monitoring fees, recordkeeping fees, finder s fees, referral fees, revenue sharing, syndication fees, gratuities, soft dollars, and Transaction fees the Person that made the payment to You, including for entities the natural persons who authorized or approved the payments, the date of payment, amount of payment, and the service provided in connection with the payment, and the contract or arrangement pursuant to which the compensation was paid to You. Dkt p. 24. Bankers Trust responded to Interrogatory No. 14 as follows: Bankers Trust refers to and incorporates its General Objections and Objections to Instructions and Definitions as if fully stated in this Response. Bankers Trust specifically objects to this Interrogatory as vague and ambiguous including, but not limited to, its use of the terms engagement fees, management fees, asset-based fees, consulting fees, monitoring fees, recordkeeping fees, finder s fees, referral fees, revenue sharing, syndication fees, gratuities, soft dollars, Transaction fees, and service. Bankers Trust further objects to this Interrogatory as vague, overly broad, and not proportional to the importance of the discovery in resolving the issues in this case to the extent it does not specify a relevant time period. Given that Bankers Trust was engaged in October 2013 and the ESOP Transaction occurred in December 2013, Bankers Trust will define the relevant time period as running from January 1, 2013 until January 31, Further, Bankers Trust will respond to the Interrogatory only to the extent it pertains to the ESOP Transaction or ESOP Loan.

5 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 5 of 17 Subject to the foregoing general and specific objections, Bankers Trust responds as follows: Bankers Trust received a total transaction fee of $40,000 from the Company under the Transactional Trustee Engagement Agreement as compensation for Bankers Trust serving as trustee in connection with the ESOP Transaction. The Company paid an initial retainer of $20,000 on November 25, 2013 and the remaining $20,000 on December 31, Dkt pp Plaintiff argues Bankers Trust improperly objected on the basis of relevance to the extent government investigations related to the transactions at issue occurred after the transactions closed and provided an evasive answer to the question asking for the identity of individuals who made critical decisions. Dkt Plaintiff also contends Bankers Trust did not provide sufficient documents in response to the following requests for production of documents: a. Request No. 1: All Documents that support, relate to, or contravene Your defenses and affirmative defenses in this Action, including but not limited to the defenses and affirmative defenses identified in the Answer. b. Request No. 4: All of Your written policies, practices, and procedures relating to the valuation, pricing or appraisal of Company stock in connection with the purchase or sale of Company stock in effect at the time of the ESOP Transaction. c. Request No. 10: All Documents evidencing any negotiation between You and/or any Person acting on Your behalf or on behalf of the ESOP, on the one hand, and the Sellers and/or any Person acting on behalf of the Sellers, on the other hand, regarding the terms of the ESOP Transaction or the Loan Transaction. d. Request No. 14: All Documents relating to the roles, participation, and membership of Defendant s ESOP Committee and Fiduciary Committee in the ESOP Transaction or the Loan Transaction. e. Request No. 15: All minutes, agendas, handouts, notes, calendars, planners, travel itineraries/plans, and related Communications preceding, concurrent with, and following the Plan Trustee s meetings related to the ESOP, the ESOP Transaction or the Loan Transaction, as well as meeting minutes of Trustee committees, subcommittees, other Plan administrative groups and any other Plan committee meetings (administrative or investment), including but not limited to the ESOP Committee, related to the ESOP, the ESOP Transaction or the Loan Transaction.

6 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 6 of 17 f. Request No. 22: All Documents that constitute, refer to or relate to Communications between You and third party service providers about services to be performed for or concerning the ESOP (e.g., regarding the ESOP Transaction or due diligence related to transactions involving the sale or purchase of Company stock) by You and/or the third party service providers, including but not limited to any contracts for a third party to provide valuation services or fairness opinions for the ESOP Transaction or the stock held in the ESOP and all Communications about such contracts and services. g. Request No. 23: All Documents relating to Your selection of an entity or person to perform any valuation services or fairness opinions relating to the Plan, the ESOP Transaction, or the Loan Transaction. This request includes, but is not limited to, any requests for proposal, bids, and reviews of qualifications. h. Request No. 29: All Documents referred to, related to, quoted from, cited to, or relied upon, either directly or indirectly, in your discovery responses, including, without limitation, any answer to an interrogatory that may be posed in this Action. i. Request No. 34: All Documents and Communications exchanged between You and any governmental agency, including but not limited to the U.S. Department of Labor and the Internal Revenue Service (IRS), related to the Plan. This Request specifically requires the production of Documents and Communications as they were produced to the DOL, IRS or other agency, including the Bates stamp applied to such productions, and the production of transcripts from any administrative depositions related to the Plan. j. Request No. 35: All Communications with the Company related to a potential or actual regulatory or court action or investigation or review concerning the ESOP Transaction or Loan Transaction, including but not limited to this Action or an investigation or review or action by the Department of Labor or the Internal Revenue Service. k. Request No. 39: All documents related to Defendant s participation, investigation, and due diligence in the ESOP Transaction or Loan Transaction, including but not limited to calendars and calendar entries, planners, travel itineraries and plans, and task lists. l. Request No. 40: All document retention policies governing any of the Documents requested by Plaintiff in this First Request for Production of Documents, including policies relating to retention of electronically stored information. Dkt As described by plaintiff, Bankers Trust either objected to responding to Plaintiff s requests or claimed it had no responsive documents after performing a diligent search. Id. 12.

7 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 7 of 17 Plaintiff questions the search that Bankers Trust performed, however, [g]iven the importance of the documents at issue and Defendant s own policies on records that must be kept and retained. Id. Plaintiff seeks an order from the Court compelling Bankers Trust as follows: (i) to produce all of Defendant s ESOP Committee Minutes related to the Transaction or explain why they cannot be produced (Request Nos. 14, 15, 22 and 39); (ii) to produce all documents related to Defendant s selection of advisors in the Transaction or explain why they cannot be produced (Request Nos. 22, 23 and 29); (iii) to produce all documents reflecting Defendant s negotiation over the price and terms of the Transaction or explain why they cannot be produced (Request Nos. 1, 10, 14, 22 and 39); (iv) to produce all documents relating to the role of the ESOP Committee and its members (Request No. 14, 15 and 39); (v) to produce complete copies of its policy manuals (Request No. 4, 14 and 40); (vi) to produce all documents and communications with government agencies relating to the Transaction (Request No. 34); (vii) to produce all documents and communication with third parties relating to government investigations (Request No. 35); (viii) respond to interrogatories about who at Defendant selected its advisors in the Transaction and the amount of compensation it received during its engagement; and (ix) set this matter for oral argument. Id. pp Plaintiff expounded upon her basis for those requests within a supporting brief. Dkt In resistance, Bankers Trust complains that the motion comes nearly a month after the parties last exchange about Bankers Trust s discovery responses, four months after Bankers Trust informed Plaintiff that its production was complete, and without any warning that Plaintiff was preparing to file such a motion. Dkt. 82 p. 5. In addition, Bankers Trust insists it conducted a diligent search and produced all responsive materials within its possession, custody or control

8 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 8 of 17 and, therefore, [t]here is simply nothing more to compel Bankers Trust to do. Dkt. 82 pp. 3, 6-7. Bankers Trust emphasizes it has repeatedly represented to Plaintiff that it has conducted a diligent search of its files and produced everything responsive within its possession, custody or control and neither Plaintiff s Motion nor Bankers Trust has provided any basis for the Court to doubt these representations. Id. p. 7. In doing so, Bankers Trust indicates in a footnote it reviewed available documents once again after receiving plaintiff s motion and identified a small set of additional documents that it will produce. Id. p. 5 n. 1. Bankers Trust also insists it has stated its objections with specificity and indicated whether it is withholding any materials thereby meeting its discovery obligations. Id. pp From its perspective, [n]othing in the Federal Rules requires a responding party to affirmatively state that no documents responsive to a particular request exist. Id. Bankers Trust views plaintiff s demands for admissions and/or explanations as to why specific documents do or do not exist as improper attempts to solicit information far beyond what Bankers Trust is legally obligated to provide in its responses. Id. p. 8. Bankers Trust also suggests plaintiff s counsel failed to sufficiently confer as to the adequacy of its search for documents, or utilize other formal discovery methods to explore Bankers Trust s representations, prior to filing her motion to compel. Id. As for the specific categories of documents sought by plaintiff, Bankers Trust first contends it has produced all documents relating to ESOP Committee minutes, advisor selection, negotiations, and the role of the ESOP Committee. Id. pp Next, Bankers Trust contends it produced all sections of its policy manual that were relevant to Plaintiff s requests and insists it is not obligated to produce a complete copy of the manual. Id. p. 13. In its view, [n]othing else... would be at all relevant to this case a fact Plaintiff could have learned had she actually made a good faith attempt to confer with Bankers Trust. Id. Third, Bankers Trust contends it has

9 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 9 of 17 properly withheld documents related to its communications with government agencies as sought by plaintiff. Id. pp In that regard, Bankers Trust argues it properly objected to producing documents responsive to Request No. 35 which were created after January 31, 2014, as being irrelevant because the allegations in the Complaint all predate January 31, Id. pp Bankers Trust refused to search for or produce documents that post-date January 31, 2014 because, in its view, [t]he burden of requiring Bankers Trust to dig through years worth of s outweighs the benefit to Plaintiff of these communications. Id. p. 15. Finally, Bankers Trust contends it has responded fully to plaintiff s interrogatories. Id. pp In regard to Interrogatory No. 6, Bankers Trust argues plaintiff s complaint that it did not name an individual person is without merit. Id. p. 16. Bankers Trust notes plaintiff in her interrogatories defined a person to include any legal entity, including, without limitation, any trust or business or governmental entity or association. Id. In the view of Bankers Trust, its response that as the transactional trustee, Bankers Trust selected its legal and valuation advisors per its engagement agreement directly responds to that inquiry. Id. p. 15. In regard to Interrogatory No. 14, Bankers Trust argues it properly limited its response to the period from January 1, 2013 until January 31, 2014, [g]iven that Bankers Trust was engaged in October 2013 and the ESOP Transaction occurred in December 2013, and only to the extent it pertains to the ESOP Transaction or ESOP Loan. Id. p. 17. In reply, plaintiff emphasizes that Bankers Trust never explains the steps of its purported diligent search or why responsive documents are not within its custody or control. Dkt. 83 p. 2. Plaintiff further notes Bankers Trust is only now producing documents that were requested months ago and only after this motion to compel was filed. Id. Turning to the specific categories addressed by Bankers Trust, plaintiff argues there is no justification for slicing up the policy

10 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 10 of 17 manual thereby robbing the documents of context and possibly leaving out relevant information. Id. p. 3. Next, plaintiff maintains all documents and communications exchanged between [Bankers Trust] and governmental agencies related to the Plan must be produced. Id. p. 4. In regard to Interrogatory No. 6, plaintiff maintains she is entitled to answers to two simple questions: who at Bankers Trust selected PCA to act as its financial advisor? Who at Bankers Trust selected MWE to act as its legal advisor? Id. p. 5. Plaintiff characterizes Bankers Trust response as a cute attempt to evade a direct and sworn response to potentially damning questions. Id. Plaintiff also maintains Interrogatory No. 14 seeks relevant information and should be answered by Bankers Trust. Id. III. RULES AND STANDARDS FOR DISCOVERY The Federal Rules of Civil Procedure govern the procedure in all civil actions before this Court, including the discovery process. The rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. Pursuant to Rule 26(b)(1), and unless otherwise limited by court order, the scope of discovery in general is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2) provides for certain limitations on discovery, including: (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is

11 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 11 of 17 sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(B), (C). Under Rule 33, a party may serve an interrogatory which may relate to any matter that may by inquired into under Rule 26(b). Fed. R. Civ. P. 33(a)(2). Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3). The grounds for objecting to an interrogatory must be stated with specificity. Fed. R. Civ. P. 33(b)(4). 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. Fed. R. Civ. P. 33(a)(2). A party responding to an interrogatory has the option to produce business records, including electronic stored information, but is required to specify the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could. Fed. R. Civ. P. 33(d)(1). Rule 34 addresses the production of documents and electronically stored information, and provides that a party may serve a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party s possession, custody,

12 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 12 of 17 or control: (A) any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things.... Fed. R. Civ. P. 34(a)(1). Subsection 34(b)(2) sets forth specific procedures and standards for responding to such a request: (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

13 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 13 of 17 Fed. R. Civ. P. 34(b)(2)(B), (C), (D), (E). Finally, pursuant to Rule 37, a party is permitted to move for an order compelling disclosure or discovery including if the opposing party fails to answer an interrogatory under Rule 33, or fails to produce documents or fails to respond to a request for documents under Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). [A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. Fed. R. Civ. P. 37(a)(4). The motion must include a certification that the movant has in good faith conferred or attempted to confer with the... party failing to make disclosure or discovery in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(1). Similarly, pursuant to this Court s Local Rule 37(a)(1), [n]o motion relating to discovery may be filed unless counsel for the moving party attaches a declaration attesting that [c]ounsel, in good faith, has conferred personally with counsel for the opposing party in an attempt to resolve or narrow by agreement the issues raised by the motion. L.R. 37(a)(1). IV. DECISION OF COURT Beginning with the good faith conferral requirement, the Court is satisfied plaintiff, as the movant, attempted to meet the mandate of Rule 37(a)(1) by requesting a telephone conversation on July 11, 2018, to discuss certain remaining discovery issues that need to be resolved or brought to the Court s attention. Dkt p. 3. Plaintiff specifically referred to the absence of certain documents from Bankers Trust s production and Interrogatories Nos. 6 and 14 as requiring discussion. Id. Counsel for Bankers Trust, however, appears to have fallen short of the rule, and the Court s expectations, by taking a hard line stance by replying: i. We are currently processing a supplemental production that, barring any technical issues, we will be sending to Plaintiff before the end of this week.

14 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 14 of 17 ii. As [counsel] explained in her June 26 and as we have stated multiple times, Bankers Trust conducted a diligent search for documents responsive to Plaintiff s requests and, subject to our objections, Bankers Trust has produced all responsive documents in its possession, custody, or control, including documents that will be in this week s supplemental production. iii. We already responded to issues Plaintiff raised with Bankers Trust s responses to Interrogatory Nos. 6 and 14 in [counsel s] June 25 letter. You have not raised any specific issues with our additional responses, and Bankers Trust has satisfied its obligation to respond to Plaintiff s interrogatories. With this additional response, we do not see a need for a call to discuss the issues in your . Id. p. 2. From the Court s reading of counsel s correspondence, the suggestion by Bankers Trust that plaintiff failed to confer in good faith is misplaced. It appears counsel for Bankers Trust, not plaintiff, prematurely ended the requisite conferral process. Further, in the Court s opinion, and as contemplated by the rules, a personal good faith conversation by counsel, beyond exchange, would have likely narrowed, if not fully resolved, issues subsequently raised within plaintiff s motion. Notably, in that regard, communication by counsel as to a party s search for documents, and whether responsive documents exist or not, should be in general a part of counsel s good faith conferral. Such matters should not lead to stonewall discourse as reflected in the parties submissions to the Court. However, plaintiff has not shown a sufficient basis, under the present record or circumstances, for the Court to compel Bankers Trust to explain its search for documents or explain why [documents] cannot be produced as sought within plaintiff s motion. The rules of discovery do not explicitly require such explanations. Moreover, plaintiff has not shown a discovery request in any form has been served on Bankers Trust seeking such explanations or information, to which Bankers Trust has failed to respond. Nor has plaintiff shown a witness has refused to answer inquiry into such matters.

15 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 15 of 17 On the other hand, turning to the specific discovery requests and responses at issue, the Court finds the formal responses served by Bankers Trust on December 29, 2017, to plaintiff s requests for documents require supplementation to fully comply with its discovery obligations and remove uncertainty within those initial responses as to the completeness of its production. Informal exchange between counsel is not a sufficient substitute for responses required of parties under the rules and, in this case, has not led to satisfactory finalization of discovery. Thus, Bankers Trust shall supplement each of its responses to plaintiff s Request Nos. 1, 4, 10, 14, 15, 22, 23, 29, 34, 35, 39 and 40 by (a) specifying in sufficient manner the documents produced in response to each request; (b) specifying in sufficient manner any responsive documents withheld from production; and (c) specifying in sufficient manner the basis for withholding any responsive documents. To eliminate any vagueness created by its initial responses, Bankers Trust must affirmatively state if there are no responsive documents within its possession, custody, or control as to any of those numbered requests. Prior to completion of the formal responses in this manner, it is difficult to assess whether all responsive documents within Bankers Trust s possession, custody, or control have been properly produced by Bankers Trust or withheld on valid grounds. Nevertheless, the Court will address certain disputes which appear to be resolvable at this point. First, Bankers Trust shall produce complete copies of policy manuals which are responsive to plaintiff s requests. Bankers Trust has not provided a sufficient basis for unilaterally producing only certain portions of such policies to plaintiff. Nor has Bankers Trust sufficiently shown an undue burden or expense in producing complete copies or that such production is disproportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Bankers Trust shall also produce all responsive documents related to its communications

16 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 16 of 17 with government agencies as sought by plaintiff, without the time limitation unilaterally placed upon its prior production. Plaintiff has satisfactorily shown the documents requested by plaintiff are discoverable, without the time limitation imposed by Bankers Trust, under the relevance and proportionality requirements of Rule 26(b)(1). On the other hand, Bankers Trust has not sufficiently established a valid basis for such limitation in its production due to irrelevance, burden or otherwise. Finally, the Court finds plaintiff is entitled to further answers to Interrogatory Nos. 6 and 14. In the Court s opinion, there is no valid reason for Bankers Trust to refuse to identify specific persons in answer to Interrogatory No. 6. While plaintiff defined the term person as including any legal entity within her set of interrogatories, she did not do so exclusively but instead also explicitly defined the term as meaning any natural person. Dkt p. 7. Bankers Trust s argument on this point is less than unavailing. Bankers Trust shall therefore supplement its response to Interrogatory No. 6 with a full and complete answer to the information sought by plaintiff including the identity of any natural persons. Nor has Bankers Trust shown sufficient reason to limit its answer to Interrogatory No. 14 to a specific time period. Plaintiff has satisfactorily shown the information requested by the interrogatory is discoverable under the relevance and proportionality requirements of Rule 26(b)(1). Bankers Trust has not sufficiently established, on the other hand, a valid basis for limiting its answer due to irrelevance, burden or otherwise. Bankers Trust shall therefore supplement its response to Interrogatory No. 14 with a full and complete answer to the information sought by plaintiff. V. CONCLUSION & ORDER For those reasons, Plaintiff s Motion to Compel Discovery Responses and Production of

17 Case 4:16-cv RGE-SBJ Document 93 Filed 10/18/18 Page 17 of 17 Documents (Dkt. 79, 91) shall be, and is hereby, granted in part and denied in part. Defendant Bankers Trust Company of South Dakota shall supplement its discovery responses and production as set forth above by no later than November 1, Even though fact discovery closed on October 8, 2018, counsel may and are encouraged to confer in good faith if necessary to resolve any remaining issues in a fair and efficient manner after the supplementation. This supplemental production and process will not, however, be considered by the Court as good cause to extend the deadline to file dispositive motions which will remain firmly set for November 30, See Dkt. 86. The parties must proceed accordingly. IT IS SO ORDERED. Dated October 18, 2018.