{}

Keith A. Ketterling, OSB No. 913368

Email: kketterling@stollberne.com

Timothy S. DeJong, OSB No. 940662

Email: tdejong@stollberne.com

Jacob S. Gill, OSB No. 033238

Email: jgill@stollberne.com

Nadia H. Dahab, OSB No. 125630

Email:ndahab@stollberne.com

STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. Oak Street, Fifth Floor

Portland, Oregon 97204

Telephone: (503) 227-1600

Facsimile: (503) 227-6840

Steve W. Berman (pro hac vice)

Email: steve@hbsslaw.com

Karl P. Barth (pro hac vice)

Email: karlb@hbsslaw.com

HAGENS BERMAN SOBOL SHAPIRO LLP

1918 Eighth Avenue, Suite 3300

Seattle, Washington 98101

Telephone: (206) 623-7292

Facsimile: (206) 623-0594

Attorneys For Plaintiffs

[Additional Counsel of Record Listed on Signature Page]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

LAWRENCE P. CIUFFITELLI, for himself 

and as Trustee of CIUFFITELLI 

REVOCABLE TRUST; GREG and ANGELA 

JULIEN; JAMES and SUSAN 

MACDONALD, as Co-Trustees of the 

MACDONALD FAMILY TRUST; R.F. 

MACDONALD CO.; ANDREW NOWAK, 

for himself and as Trustee of the

Case No. 3:16-cv-00580-AC

JOINT REPORT ON ESI 

DISCOVERY ISSUES

Case 3:16-cv-00580-AC Document 262 Filed 09/19/17 Page 1 of 19
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ANDREW NOWAK REVOCABLE LIVING 

TRUST U/A 2/20/2002; WILLIAM 

RAMSTEIN; and GREG WARRICK, for 

himself and, with SUSAN WARRICK, as CoTrustees of the WARRICK FAMILY TRUST, 

individually and on behalf of all others 

similarly situated,

Plaintiffs,

v.

DELOITTE & TOUCHE LLP; 

EISNERAMPER LLP; SIDLEY AUSTIN 

LLP; TONKON TORP LLP; TD 

AMERITRADE, INC.; INTEGRITY BANK & 

TRUST; DUFF & PHELPS, LLC,

Defendants.

In accordance with the Court’s instructions at the July 25, 2017, telephone hearing, the 

parties have conferred regarding ESI discovery issues and present the following Joint Report to 

address outstanding issues between the parties at this time.

I. General ESI Protocol

All parties, including new defendant Duff & Phelps, LLC, have reached agreement on the 

terms of a Stipulated ESI Protocol. The Stipulated ESI Protocol will be filed separately. 

The Stipulated ESI Protocol establishes a process for selecting search parameters but 

requires the parties to meet and confer separately about the specific search parameters for a 

particular defendant’s specific document search (sources and time frame, custodians, noncustodial data sources, and search terms). The status of the parties’ conferrals, including two 

disputes that require Court involvement, are discussed below.

II. Disputes as to Party-Specific ESI Discovery 

Plaintiffs reached agreements with defendants Tonkon Torp LLP, EisnerAmper LLP, 

Deloitte & Touche LLP and Integrity Bank & Trust, as to the parameters for an initial ESI 

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search, with all parties reserving their rights with respect to potential subsequent searches. 

Plaintiffs and defendants Sidley Austin LLP and TD Ameritrade, Inc. were unable to reach 

agreement. The parties’ respective positions as to those disputes are set forth below.

A. Sidley Austin LLP

1. Plaintiffs’ Position

Plaintiffs and Sidley disagree as to both (1) Sidley’s search obligations and (2) the scope 

of Sidley’s production obligations. Whereas other defendants agreed to perform comprehensive 

ESI searches (Tonkon, Deloitte, EisnerAmper and Integrity), or at least to address now the 

parameters of a comprehensive ESI search to be performed later (Ameritrade), Sidley did 

neither. Sidley insists that ESI discovery must be limited to items 1-8 of the Court’s February 

2017 Order. Plaintiffs provided proposed comprehensive search terms, and also identified flaws 

in Sidley’s limited search proposal. See Exhibit A. However, Sidley declined to discuss a 

broader set of search terms, even after the Second Amended Complaint was filed. 

Plaintiffs believe that Sidley should be required to make a comprehensive production of 

documents, including ESI, relevant to the allegations of the Second Amended Complaint. 

Plaintiffs’ comprehensive search terms should be adopted regardless whether Sidley is required 

to make a full production at this time. In the alternative, the protocol proposed by Sidley is 

insufficient even to comply with the Court’s February 2017 Order and should be enhanced.

Search Obligations

Sidley has resisted discovery in this case for more than a year. Plaintiffs served 

discovery requests in September 2016, and Sidley was ordered to produce documents in 

February 2017. Per the February 2017 Order, emails were due for production in March 2017, 

when the attorney-client privilege issues were resolved. See Dkt. No. 215. Yet Sidley has 

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produced only a few documents (139 documents in total, which includes insurance policies and 

duplicate documents) and still has not produced any ESI pertaining to its own Aequitas-related 

services The “1.5 million pages of documents” Sidley refers to below are of a subset of 

Aequitas’ documents re-produced to plaintiffs that Sidley collected from Aequitas’ files and

produced to the SEC on behalf of its client, Aequitas, which documents include Aequitas emails, 

but not emails between Aequitas and Sidley. 

Now, Sidley is the only defendant to decline to discuss comprehensive search terms. 

Sidley contends that a comprehensive set of search terms is premature until the pleadings are set 

and that the Court made this clear in the July 2017 telephone conference. Plaintiffs have a 

different understanding. The Court appeared to direct the parties to formulate a comprehensive 

set of search terms: “So it seems to me, Mr. Brady, that you and the defendants can move 

forward to finalizing a set of ESI protocols that the defendants agree should be used to look for 

documents that are relevant to the claims asserted in the complaint. ... And those can be 

modified, it seems to me, as necessary based on additional allegations that appear in the second 

amended complaint when that is filed in September.” Tr. at 23:22-24:4. 

Sidley made no effort to formulate such search terms. Because plaintiffs have proposed 

comprehensive search terms that the majority of defendants agreed to (see, e.g., Exhibit B), 

plaintiffs’ search terms should be adopted (to be supplemented by Sidley, as necessary, to 

comply with its obligations to make full production).

Scope of Production

The Court also provided guidance as to defendants’ production obligations at this stage. 

The transcript of the July 2017 discovery conference reflects that the Court posed the question 

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“whether to move forward with discovery” (Tr. at 18:20-23), which suggests that the Court has 

not ruled that the February 2017 Order continues to define the scope of discovery as to Sidley. 

It is plaintiffs’ understanding that the Court has not decided the appropriate scope of 

discovery at this stage. The Court suggested that the scope of production of ESI at this stage 

might be broader than what was ordered before the motions to dismiss were resolved, 

recognizing that “there is [not] much dispute about ... what documents are or potentially are 

implicated in the case” (Tr. at 23:17-21) and “even a dismissed party in this case, if there is to be 

any, will have evidence that will bear on the claims and defenses that have been asserted or 

argued” (Tr. 30:12-14). Moreover, the Court’s February 2017 Order was directed to the time 

period before the motions to dismiss were resolved. Those motions have now been resolved, and 

plaintiffs have filed a 160-page Second Amended Complaint providing the additional detail 

required by the Court. With this amount of detail, there is even less dispute as to what 

documents are implicated or potentially implicated in the case.

There is no reason to postpone discovery from Sidley at this point, or to limit discovery 

to the items specified in the Court’s February 2017 Order. In ruling on Sidley’s motion to 

dismiss, the Court required that plaintiffs allege the specific misleading statements by ACOF and 

allege facts connecting other services provided by Sidley to sales of securities other than ACOF. 

Plaintiffs have done so. The Second Amended Complaint identifies the misleading statements 

by ACOF in paragraphs 153-157, and ties Sidley to all sales of securities by any Aequitas entity 

on and after April 5, 2013, when Sidley issued a legal opinion required by Aequitas’ auditor, 

thereby enabling Aequitas to continue to sell securities. SAC ¶192(d). Plaintiffs also tie Sidley 

to sales of AIOF-II securities (and roll over of AIPF investments into AIOF-II), Aequitas’ “Note 

Manufacturing” program (including sales of AMLF Notes in 2015), and other activities. See

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SAC ¶192(f)-(h); see also SAC ¶63 (discussing AMLF Notes and “Note Manufacturing” 

Program). Plaintiffs have pleaded broad claims against Sidley, and postponing discovery will 

only cause unnecessary delay.

Sidley’s discovery position is based upon the flawed premise that discovery from Sidley 

is limited to the specific allegations that the Court upholds as sufficient to state an independent 

claim. Even with the 2015 changes to the discovery standard, the scope of discovery “is 

construed broadly to encompass any matter that bears on, or that reasonably could lead to other 

matters that could bear on, any issue that is or may be in the case.” Wilson v. Decibels of Or., 

Inc., 2017 WL 393602 (Jan. 26, 2017) (Clarke, J.); see also Oppenheimer Fund, Inc. v. Sanders, 

437 U.S. 340, 351 & n.12 (1978). In Oppenheimer Fund (which was decided under an early 

version of Rule 26 but is still cited today for the Rule 26 standard), the Supreme Court went on 

to explain that “[c]onsistently with the notice-pleading system established by the Rules, 

discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help 

define and clarify the issues.” 437 U.S. at 351 (citing Hickman v. Taylor, 329 U.S. 495, 500-01 

(1947)). The Advisory Committee’s Notes to the 2015 amendments to Rule 26 explain that:

The distinction between matter relevant to a claim or defense and matter relevant 

to the subject matter was introduced in 2000. The 2000 Note offered three 

examples of information that, suitably focused, would be relevant to the parties’

claims or defenses. The examples were “other incidents of the same type, or 

involving the same product”; “information about organizational arrangements or 

filing systems”; and “information that could be used to impeach a likely witness.”

Such discovery is not foreclosed by the [2015] amendments. Discovery that is 

relevant to the parties’ claims or defenses may also support amendment of 

the pleadings to add a new claim or defense that affects the scope of 

discovery.”

Fed R. Civ. P. 26 advisory committee’s note to 2015 amendment (emphasis added.)

Plaintiffs’ claim is that Sidley participated and aided in Aequitas’ sales of securities. 

Plaintiffs are entitled to discovery concerning both the acts of participation and aid that they 

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know of, which are pleaded in the Second Amended Complaint, and acts of participation and aid 

that are presently unknown to plaintiffs. 

Compliance With February 2017 Order

Sidley’s proposed search terms are inadequate even to identify the ESI responsive to the 

Court’s February 2017 Order. Sidley has not produced documents, including ESI, responsive to 

topics 1 (“All transaction documents for the ACOF offering, including offering memoranda, 

subscription agreements, articles of incorporation, bylaws, and LLC agreements.”), 2 (“All 

documents relevant to whether the ACOF offering was or was not exempt from registration.”); 4

(“All documents Sidley sent to and received from any Aequitas company pertaining to the ACOF 

offering.”); 5 (“All documents Sidley sent to and received from the General Partner of the ACOF 

fund, including documents regarding the preparation of the ACOF PPM.”), 6 (“All documents 

Sidley sent to and received from the Investment Advisor to the ACOF fund, including documents 

regarding the preparation of the ACOF PPM.”), 7 (“All documents Sidley sent to and received 

from the Securities and Exchange Commission ... relating to any inquiry or investigation of any 

Aequitas company.”), and 8 (“All documents Sidley sent to and received from any purchaser or 

prospective purchaser of the ACOF securities.”).

Sidley’s proposed custodians are insufficient. For items 1, 2, 4, 5, 6, and 8 of the 

February 2017 Order, Sidley would limit its search to 6 custodians “who performed 10+ hours of 

work relating to ACOF.” Exhibit C (Sidley initial list identifies custodians who performed 10+ 

hours of work relating to ACOF; same custodians as revised list). The February 2017 Order 

contains no such limitation. Furthermore, item 5 extends to “all documents Sidley sent to and 

received from the General Partner” and is not limited to ACOF documents. Sidley proposes no

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custodians to address the unlimited scope of that item. With respect to item 6, Sidley proposes 

five more custodians, but has not explained how those custodians were determined.

With respect to item 2 of the February 2017 Order, the search terms proposed by Sidley 

are not directed to registration or exemptions. For example, none of the search terms includes 

“exemption,” “registration,” or forms thereof, or any other term that would identify “all 

documents relevant to whether the ACOF offering was or was not exempt from registration. It is 

Sidley’s obligation, armed with its knowledge of and access to its own ESI, to implement search 

terms that will ensure compliance with the Order, and to explain why its search terms will 

identify those documents, not plaintiffs.

Sidley acknowledges that item 6 of the February 2017 Order is not limited to ACOFrelated documents. However, the additional search terms Sidley proposes for item 6 are 

insufficient. Sidley is obligated to produce all communications between Sidley and the 

Investment Advisor, Aequitas Investment Management (“AIM”). AIM did not have its own 

email domain; its employees used the general “@aequitascapital.com” email domain for emails. 

Furthermore, Sidley proposes to search the names of only four individuals, but those four 

individuals are not the only employees of AIM. AIM was the manager and investment advisor 

for both AIPF and AIOF-II, but those search terms are not included in Sidley’s proposal. Sidley 

should be required to search all emails sent to or from the “@aequitascapital.com” email domain 

and identify and produce all communications that are responsive to item 6. That is the only way 

to ensure compliance with the February 2017 Order. Additionally, Sidley maintained a separate 

billing matter for services provided to AIM. See Exhibit D (title of the billing matter, “AIM –

1940 Act Compliance”); SAC ¶192(d) (alleging that Sidley participated and aided sales of all 

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securities by issuing a legal opinion regarding Aequitas’ compliance with the 1940 Act). Sidley 

should produce all documents associated with that billing number that are responsive to item 6.

Item 5 of the February 2017 Order also is not limited to ACOF-related materials. Sidley 

is obligated to produce all communications between Sidley and the General Partner, which is 

Aequitas Capital Opportunities GP, LLC. The General Partner also has no unique email domain 

and its employees used the general “@aequitascapital.com” email domain for emails. Thus, as 

with item 6, the only way for Sidley to ensure compliance with the Order is to review all emails 

to or from the “@aequitascapital.com” email domain and identify responsive documents.

2. Sidley Austin LLP’s Position

In discussions with Plaintiffs, Sidley has set forth its understanding that its current 

discovery obligations are governed by the Court’s February 21 protective order. (See Opinion 

and Order, Feb. 21, 2017 [Dkt. No. 213].) This order granted in part Sidley’s motion for a 

protective order, requiring Sidley to produce nine categories of documents that relate to the 

ACOF offering, as well as communications with employees of AIM or with various government 

agencies about any Aequitas company. (See id. at 8–10.) Sidley has already produced more than 

1.5 million pages of documents in response to this order. Also, in accordance with Sidley’s 

understanding of its discovery obligations, Sidley has proposed to Plaintiffs additional 

searches—including 18 custodians and 26 search terms—to identify any further ESI that is 

responsive to the order.

Search Obligations and Scope of Production

The nine categories of documents that Sidley must produce under the February 21 

protective order are, in Sidley’s view, consistent with the Court’s later ruling on its motion to 

dismiss. In that motion, Sidley requested a dismissal of the Plaintiffs’ First Amended Complaint, 

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primarily on the grounds that, aside from ACOF, the complaint failed to allege that Sidley had 

participated or materially aided in the sale of any Aequitas securities. (See Sidley’s Motion to 

Dismiss, June 10, 2016 [Dkt. No. 81].)

The Court generally agreed with Sidley’s position, concluding that “the allegations of 

secondary liability against Sidley are factually insufficient.” (Amended F&R, April 10, 2017 

[Dkt. No. 242], at 69; see also Opinion and Order, July 5, 2017 [Dkt. No. 250] (adopting the 

F&R).) The complaint did not “specify how Sidley’s legal services constituted participation or 

material aid in any transaction or group of transactions, and thus are insufficient to show 

participation or material aid in any transaction or group of transactions.” (Dkt. No. 242, at 68–

69.) Nor did the complaint “identify with any detail the majority of Sidley’s alleged interactions 

with the Aequitas Entities.” (Id. at 69.) As a result, the complaint did not adequately allege 

Sidley’s participation or material aid in the sale of any non-ACOF securities. (See id. at 68–69.)

Despite the Court’s February 21 protective order and later ruling on Sidley’s motion to 

dismiss—both of which generally limited Sidley’s obligations and potential liability to ACOF—

Plaintiffs now request that Sidley engage in wide-ranging discovery relating to its work for any 

Aequitas company. In Plaintiffs’ view, the Court’s July 25 minute order [Dkt. No. 245] 

expanded Sidley’s discovery obligations. Sidley, however, understood the minute order and 

related hearing more narrowly as requiring the parties to negotiate an ESI protocol to govern all 

future document productions—including in response to the Court’s February 21 protective order. 

(See Minute Order, July 25, 2017 [Dkt. No. 245] (setting a schedule for filing and responding to 

Plaintiffs’ amended complaint and requiring the parties to confer regarding an ESI protocol).) 

The parties have done exactly that and are submitting the stipulated ESI protocol along with this 

joint status report. Although other Defendants apparently have had broader discussions with 

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Plaintiffs about discovery issues, it is worth noting that Sidley is the only Defendant whose 

potential secondary liability was limited to a single offering after the motions to dismiss. (See 

generally Dkt. No. 242, at 59–71.)

We are still analyzing Plaintiffs’ recently filed (and lengthy) Second Amended Complaint 

to assess whether it affects Sidley’s discovery obligations. (See Sec. Am. Compl. (“SAC”), Sept. 

8, 2017 [Dkt. No. 257].) At first blush, many of the Sidley-specific allegations simply repeat the 

allegations that were deemed insufficient in Plaintiff’s prior complaint. For example, Plaintiffs 

continue to allege that Sidley provided unspecified legal services to AIM and that Sidley 

provided a legal opinion to a bank that “promoted the illusion of success and legitimacy.” 

(Compare SAC ¶¶ 192(b), (i), (j); with Dkt. No. 242, at 68–69 (rejecting similar allegations as 

legally insufficient.) More broadly, according to the amended complaint, Sidley’s alleged legal 

services constituted participation or material aid in all Aequitas securities offerings. (See, e.g., 

SAC ¶¶ 192(a), (b), (j).) Sidley currently intends to challenge the legal basis for that claim, 

which it believes is fundamentally inconsistent with Oregon law—just as it was the last time. In 

any event, to the extent that the amended complaint alleges other discrete areas in which Sidley 

performed services related to a securities offering (e.g., SAC ¶ 192(f)), the custodian list that 

Sidley has already proposed to Plaintiffs includes the key personnel who assisted with those 

services. Sidley is willing to continue its discussions with Plaintiffs about appropriate search 

terms relating to any such discrete services.

Of course, if the Court disagrees with Sidley’s understanding of its current obligations, 

we will meet and confer with Plaintiffs about the appropriate searches for any non-ACOF 

discovery. In the meantime, we will note that Plaintiffs’ initial proposal is overly broad and 

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unworkable for multiple reasons—including by requesting a date range that begins more than 

two years before Sidley was engaged by any Aequitas company.

Sidley’s Compliance With February 2017 Order

Finally, contrary to Plaintiffs’ suggestion above, Sidley has complied with the Court’s 

February 21 protective order for (a) non-emails documents in its own files and for (b) 

documents, including emails, that it previously sent to the SEC on behalf of various Aequitas 

companies. As discussed at the July 25 status conference, the purpose of the further search 

proposals that Sidley has sent to Plaintiffs is to identify emails in its own files that also are 

responsive to the order. The broad search proposals that Sidley has sent to Plaintiffs reflect a 

good-faith effort to identify all such emails.

As for custodians, Sidley has made a reasonable effort to identify custodians who possess 

responsive and non-duplicative emails. Sidley’s proposed custodian list is based on a number of 

factors, including the custodian’s seniority, closeness to the relevant issue, and hours billed. 

Although Plaintiffs complain about Sidley’s selection of custodians, they have not yet identified 

other custodians that they would like Sidley to add—or explained why any such additional 

custodians would potentially have any non-duplicative emails. See Enslin v. Coca-Cola Co., 

2016 WL 7013508, at *1 n.2 (E.D. Pa. May 13, 2016) (“If the requesting party seeks to have the 

responding party search the information of additional custodians, the requesting party should be 

able to articulate a basis for the court to find that ESI in the possession of the additional 

custodians would be different from, and not simply duplicative of, information that the 

responding party has already produced.”).

In addition, Sidley has proposed search terms that are meant to capture emails with the 

general partner of ACOF (Item 5 in the Court’s February 21 order) or AIM (Item 6). These 

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terms include the names of key personnel at various Aequitas companies who were affiliated 

with either the general partner of ACOF or AIM. Plaintiffs have not suggested other specific 

terms that Sidley might use to find responsive emails. Instead, they have requested that Sidley 

search every email with anyone at any Aequitas company—regardless of the identity of such 

individuals or the nature of their connection to AIM. Similarly, with respect to Item 2, Plaintiffs 

propose (for the first time in this joint report) that Sidley use the terms “exemption” and 

“registration” to find emails relating to ACOF’s registration requirements. Although Sidley is 

willing to consider this new proposal provided that Plaintiffs explain their rationale, Plaintiffs 

fail to explain why Sidley’s other ACOF-related terms would not capture the same emails.

B. TD Ameritrade, Inc.

1. Plaintiffs’ Position

Plaintiffs and Ameritrade disagree as to whether discovery at this stage is limited to the 

items specified in the February 2017 Order. In general terms, Ameritrade proposes to produce,

over the next several months, ESI relating to communications between Ameritrade and the 

outside world regarding Aequitas, but to hold all internal Ameritrade communications until the 

pleadings are set. For the reasons discussed above with respect to Sidley, plaintiffs do not 

believe discovery should be limited to the February 2017 Order.

Plaintiffs and Ameritrade have agreed to the parameters and timing of a search for 

documents responsive to the February 2017 Order. However, discovery at this stage should not 

be so limited. The February 2017 Order was intended to provide limited discovery pending a 

ruling on the motions to dismiss, in recognition of the possibility that Ameritrade might prevail 

in part. The Court has now denied Ameritrade’s motion to dismiss as to the allegations of 

participation and aid. Plaintiffs allege additional facts regarding Ameritrade’s participation in 

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paragraph 193 of the Second Amended Complaint. Plaintiffs have also supplied extensive 

additional allegations specifying the false statements and omissions regarding each Aequitas 

security. Thus, in plaintiffs’ view, there is no longer any reason to delay discovery as to 

Ameritrade. Ameritrade’s proposed compromise, to produce internal emails that mention a 

specific Ameritrade customer by name, adds inefficiency and is arbitrary. Plaintiffs are anxious 

to understand, for example, the reasons that Ameritrade initially approved Aequitas investments 

for sale, put a hold on further Aequitas investments in January 2015, and removed Aequitas from 

its platform entirely in October 2015. See SAC ¶193(e). Plaintiffs proposed a compromise that 

would require Ameritrade to produce those documents before the pleadings are set, but 

Ameritrade rejected the compromise.

Plaintiffs request that the Court clarify whether the scope of discovery as to Ameritrade is 

limited to the items specified in the February 2017 Order, or whether Ameritrade is required to 

produce all relevant documents responsive to plaintiffs’ document requests. If the Court agrees 

with plaintiffs, plaintiffs are confident that an agreement can be reached with Ameritrade as to

comprehensive search protocols. In fact, the parties have already agreed on the comprehensive 

search terms, but have not finalized other parameters, such as custodians.

2. Ameritrade’s Position

As noted by Plaintiffs above, Plaintiffs and TD Ameritrade have reached agreement on 

the parameters and timing for completion of TD Ameritrade’s production of documents 

responsive to the Court’s February 2017 discovery order, following the Court’s denial, on July 

24, of TD Ameritrade’s motion for reconsideration of the discovery order as to the documents 

called for by paragraphs 2 and 3 of the order. Plaintiffs, however, take the position that the order 

has outlived its usefulness and that TD Ameritrade must now respond to each and every request 

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remaining in Plaintiffs’ document requests (as to which, it should also be noted, TD Ameritrade 

asserted a variety of targeted objections). TD Ameritrade has a different view of the continuing 

vitality of the Court’s discovery order in February 2017. 

As counsel for TD Ameritrade stated at the status conference on July 25, 2017, TD 

Ameritrade interpreted the Court’s February order as requiring the level of discovery deemed 

appropriate by the Court during the time it may take to resolve all issues raised as to the 

sufficiency of the pleadings. Hence, as to TD Ameritrade, the Court ordered a substantial 

volume of documents relating not only to the named Plaintiffs but also as to all putative class 

members, numbering in the hundreds as to TD Ameritrade, among other things. TD Ameritrade 

believed then, and continues to believe following the July 25 status conference, that the Court 

intended such a broad initial production to suffice during the time it took to resolve all pleading 

issues and determine whether the case would proceed. Although, as Plaintiffs correctly point 

out, TD Ameritrade’s motion to dismiss the secondary liability claims against it was denied, the 

joint motion to dismiss, which included TD Ameritrade, was granted because Plaintiffs failed to 

adequately plead the required element of primary liability. If they are unable to do so, the case 

will not proceed against any Defendant. TD Ameritrade does not believe that the most recent 

amended complaint has cured the pleading deficiencies found by the Court with the prior 

version, and is entitled, along with the other Defendants, to challenge again those pleading 

deficiencies. As a result, the February discovery order should continue to govern the scope of 

discovery at this preliminary stage of the case, until the pleadings are set. 

Counsel for Plaintiffs and TD Ameritrade have exchanged proposals regarding search 

terms and reached agreement on such terms. Counsel discussed a detailed proposal by TD 

Ameritrade for production of ESI in two phases, with Phase 1 consisting of the completion of TD 

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Ameritrade’s ESI responses to paragraphs 2 and 3 of the Court’s order (as to which agreement 

was reached), and Phase 2 covering custodians and a specific proposal for completing discovery 

following disposition of all preliminary motions regarding sufficiency of the pleadings (as to 

which agreement has not been reached). 

As to what TD Ameritrade views as Phase 2 discovery, TD Ameritrade proposed a 

compromise that would address Plaintiffs’ desire to conduct discovery beyond the scope of the 

Court’s February order, by offering a portion of Phase 2 discovery prior to disposition by the 

Court of the next round of anticipated motions to dismiss. Without waving its position that 

additional discovery (i.e., the anticipated Phase 2 discovery) has not yet been ordered by the 

Court, TD Ameritrade proposed the following approach that would provide a significant amount 

of potentially relevant additional email communications to Plaintiffs sooner rather than later, and 

also ensure that, when the pleadings are set, TD Ameritrade would move quickly with another 

significant portion of Phase II discovery. Specifically, TD Ameritrade proposed, after the Phase 

I discovery is complete, as follows:

1. Using the database of all internal emails derived from searching all TD 

Ameritrade email accounts with the agreed search terms, TD Ameritrade would search for and 

produce all such internal email communications that mention any specific TD Ameritrade 

customers who purchased Aequitas (i.e., the hundreds of putative class members). This will take 

some time and TD Ameritrade would want to focus initially on completing the Phase 1 process, 

but would agree to produce this additional category of emails by February 1 regardless of 

whether the next round of motions to dismiss have been ruled on by that time. 

2. In addition, TD Ameritrade would continue to develop and discuss with Plaintiffs 

the specific custodians and systems to be searched for all ESI (the remaining internal email and 

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other electronic files) and any physical files in the possession of any custodian for production 

after the motions to dismiss are decided and the pleadings are set, and agree to gather this 

additional set of documents (much of which would be the remaining internal emails responsive 

to the agreed search terms) after completing the foregoing tasks and producing this additional set 

within two weeks of filing its answer in the case, assuming Plaintiffs eventually succeed in 

stating a primary violation of the securities laws.

There likely would remain some categories of documents from Plaintiffs’ original 

document requests at that point, subject to other objections TD Ameritrade has asserted, but the 

forgoing process will yield a significant number of potentially relevant documents well before 

any further motions are decided, and assure Plaintiffs of another significant batch of documents 

within two weeks after the pleadings are finally set. The parties would then work through any 

remaining requests/issues in due course

Plaintiffs rejected this proposal but TD Ameritrade urges the Court to adopt the foregoing 

protocol, and proposed time frames for completing each step, as a reasonable path to further 

effectuate the Court’s goal of keeping the case moving at a reasonable pace while continuing to 

evaluate the sufficiency of the pleadings.

Pursuant to LR 11-1(d)(2), counsel signing below consent to their signatures on this 

submission.

DATED this 19th day of September, 2017.

STOLL STOLL BERNE LOKTING

& SHLACHTER P.C.

By: s/Timothy S. DeJong

Keith A. Ketterling, OSB No. 913368

Timothy S. DeJong, OSB No. 940662

Jacob S. Gill, OSB No. 033238

Nadia H. Dahab, OSB No. 125630

MARKOWITZ HERBOLD PC

By: s/ David B. Markowitz

David B. Markowitz, OSB No. 742046

Chad M. Colton, OSB No. 065774

Stanton Gallegos, OSB No. 160091

 Jeffrey M. Edelson, OSB No. 880407

Case 3:16-cv-00580-AC Document 262 Filed 09/19/17 Page 17 of 19
PAGE 17 - JOINT REPORT ON ESI DISCOVERY ISSUES

209 SW Oak Street, Suite 500

Portland, OR 97204

Telephone: (503) 227-1600

Facsimile: (503) 227-6840

Email: kketterling@stollberne.com

tdejong@stollberne.com

jgill@stollberne.com

ndahab@stollberne.com

-AndSteve W. Berman, pro hac vice

Karl P. Barth, pro hac vice

Catherine Y.N. Gannon, pro hac vice

Dawn Cornelius, pro hac vice

HAGENS BERMAN SOBOL 

& SHAPIRO LLP

1918 Eighth Avenue, Suite 3300

Seattle, WA 98101

Telephone: (206) 623-7292

Facsimile: (206) 623-0594

Email: steve@hbsslaw.com

karlb@hbsslaw.com

 catherineg@hbsslaw.com

dawn@hbsslaw.com

-AndRobert S. Banks, Jr., OSB No. 821862

Darlene D. Pasieczny, OSB No. 124172

SAMUELS YOELIN KANTOR LLP

Attorneys at Law

111 SW 5th Avenue, Suite 3800

Portland, OR 97204-3642

Telephone: (503) 226-2966

Facsimile: (503) 222-2937

Email: bbanks@SamuelsLaw.com

darlenep@SamuelsLaw.com

Attorneys For Plaintiffs

1211 S.W. Fifth Avenue, Suite 3000 

Portland, OR 97204

Telephone: 503-295-3085

Email: DavidMarkowitz@MHGM.com

ChadColton@MHGM.com 

stantongallegos@markowitzherbold.com

JeffEdelson@MarkowitzHerbold.com

-AndMichael R. Doyen, pro hac vice

Zachary M. Briers, pro hac vice

Bruce A. Abbott, pro hac vice

Brad D. Brian, pro hac vice

Trevor Templeton, pro hac vice

Kevin L. Brady, pro hac vice

Munger Tolles & Olson LLP

355 South Grand Avenue, 35th Floor

Los Angeles, CA 90071

Telephone: 213-683-9100

Email: michael.doyen@mto.com;

zachary.briers@mto.com;

bruce.abbott@mto.com;

brad.brian@mto.com;

trevor.templeton@mto.com;

Kevin.brady@mto.com;

Attorneys For Sidley Austin LLP

EVERSHEDS SUTHERLAND (US) LLP

By: s/ Nicholas T. Christakos

Bruce M. Bettigole, pro hac vice

Nicholas T. Christakos, pro hac vice

Gail L. Westover, pro hac vice

700 Sixth Street, NW, Suite 700

Washington, DC 20001

Telephone: (202) 383-0100

Email: nicholaschristakos@ evershedssutherland.com

brucebettigole@eversheds-sutherland.com

gailwestover@ eversheds-sutherland.com

-AndCase 3:16-cv-00580-AC Document 262 Filed 09/19/17 Page 18 of 19
PAGE 18 - JOINT REPORT ON ESI DISCOVERY ISSUES 

GARVEY SCHUBERT BARER

By: s/Robert C. Weaver , Jr.

Robert C. Weaver , Jr., OSB #801350 

Gary I. Grenley, OSB # 751380

Paul H. Trinchero, OSB # 014397

121 SW Morrison Street, 11th Floor 

Portland, OR 97204

Telephone: 503-228-3939 

Email: rweaver@gsblaw.com

ggrenley@gsblaw.com 

ptrinchero@gsblaw.com

-AndGavin M. Masuda, pro hac vice

Peter A. Wald, pro hac vice

Latham & Watkins LLP 

505 Montgomery Street, Suite 2000 

San Francisco, CA 94111

Telephone: 415-391-0600 

Email: gavin.masuda@lw.com 

peter.wald@lw.com

Attorneys For DeLoitte & Touche, LLP

HARRANG LONG GARY RUDNICK P.C.

By: s/Sharon A. Rudnick

Sharon A. Rudnick, OSB No. 830835

360 E. 10th Avenue, Suite 300

Eugene, OR 97401-3273

Telephone:(541) 485-0220

Email: sharon.rudnick@harrang.com

Attorneys for Duff & Phelps LLC

Matthew J. Kalmanson, OSB No. 041280

Lindsay H. Duncan, OSB No. 120974

HART WAGNER LLP

1000 SW Broadway, Twentieth Floor

Portland, OR 97205 

Telephone: (503) 222-4499

Email: mjk@hartwagner.com

lhd@hartwagner.com

Attorneys For TD Ameritrade, Inc.

LANE POWELL PC 

By: s/Milo Petranovich

Milo Petranovich, OSB No. 813376 

Peter D. Hawkes, OSB No. 071986 

SreeVamshi C. Reddy, OSB No. 140560

601 SW Second Avenue, Suite 2100 

Portland, OR 97204-3158 

Telephone: (503) 778-2114 

Email: petranovichm@lanepowell.com

hawkesp@lanepowell.com

reddyv@lanepowell.com

Attorneys For Integrity Bank & Trust

THE FERRANTI FIRM LLC

By: s/ William P Ferranti

William P Ferranti, OSB No. 160069

1819 SW 5th Ave., No 403

Portland, OR 97201

Telephone: 503 877-9220

Email: wpf@ferrantiappeals.com

-AndLinda T. Coberly, pro hac vice

Catherine W. Joyce, pro hac vice

Joanna Rubin Travalini, pro hac vice

Winston & Strawn LLP 

35 West Wacker Drive 

Chicago, Illinois 60601 

Email: cjoyce@winston.com; 

jtravalini@winston.com;

lcoberly@winston.com;

Attorneys For EisnerAmper LLP

Case 3:16-cv-00580-AC Document 262 Filed 09/19/17 Page 19 of 19