IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LA WREN CE P. CIUFFITELLI, for himself 

and as Trustee ofCIUFFITELLI 

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 ANDREW 

NOW AK REVOCABLE LNING TRUST 

U/A 2/20/2002; WILLIAM RAMSTEIN; and 

GREG WARRICK, for himself and, with 

SUSAN WARRICK, as Co-Trustees 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; and DUFF & PHELPS, LLC, 

Defendants. 

ACOSTA, Magistrate Judge: 

1 - ORDER ON ESI DISCOVERY ISSUES 

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

ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 1 of 10
On September 19, 2017, the parties filed a Corrected Joint Status Report ("Report") on 

electronically stored information ("ESI") Discovery Issues. ECF No. 263. In that Report, all parties, 

including new Defendant Duff & Phelps, LLC, indicated they have agreed to the terms of a 

Stipulated ESI Protocol, also filed September 19, 2017. ECF No. 261. The Stipulated ESI protocol 

establishes a process for selecting search parameters and how the information will be produced, with 

the parties conferring separately about specific search parameters pertaining to that particular 

Defendant's document search (i.e., sources and time frame, custodians, non-custodial data sources, 

and search terms). Plaintiffs and Defendants Tonkon Torp LLP, EisnerAmper LLP, Deloitte & 

Touche LLP, and Integrity Bank & Trnst have reached agreement on the parameters for an initial ESI 

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

Plaintiffs and Defendants Sidley Austin LLP ("Sidley") and TD Ameritrade, Inc. 

("Ameritrade") have not reached agreement on an initial ESI search, and in the Report, request the 

court's intervention to resolve their ongoing ESI discovery disputes. The court has reviewed the 

Report and its attached Exhibits (ECF No. 263), Sidley's Amended Statement on ESI discovery 

issues (ECF No. 264), the court's February 21, 2017 Opinion and Order on protective motions 

("February Order") (ECF No. 213), the transcript of the July 25, 2017 Telephone Status Conference 

("July Transcript") (ECF No. 255), and other pertinent portions of the record. The court resolves 

the parties' disputed issues as set forth below. 

RELEVANT BACKGROUND 

After Plaintiffs filed their initial complaint, Defendants each filed motions to dismiss. ECF 

Nos. 74, 78, 80, 81, 85, 95, and 113. Additionally, Defendants Sidley and Ameritrade filed motions 

for protective orders seeking to stay discovery in whole or in pmi pending resolution of their motions 

2 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 2 of 10
to dismiss. ECF Nos. 160, 171. In the Februaty Order, the court granted in part and denied in part 

Sidley and Ameritrade' s protective order motions, holding that staying all discovery until resolution 

of the motions to dismiss was not warranted. Instead, the court required limited, focused merits 

discovery, requiring Sidley to produce nine categories of documents, and Ameritrade to provide six 

categories of documents. Feb. Op. & Order 8-11. 

On April 10, 2017, the court resolved the motions to dismiss, and the Amended Findings and 

Recommendation was adopted by the Honorable Michael W. Mosman on July 5, 2017 .. ECFNos. 

242, 250. The court granted in part and denied in part the collective defendants' seven motions to 

dismiss, and granted Plaintiffs leave to file a Second Amended Complaint because the defects of the 

First Amended Complaint could be cured with additional factual allegations. Thereafter, Ameritrade 

sought reconsideration of the Februaiy Order and Sidley requested clarification of its obligations 

under the February Order. ECF No. 221. The court denied Ameritrade's motion for reconsideration 

and indicated it would resolve Sidley's concerns about production of emails and ESI protocols at the 

July 25, 2017 status conference. ECF No. 252. 

At the July 25, 2017 Status Conference, the court heard from all parties about the status of 

discove1y, the timeline for Plaintiffs' filing of a Second Amended Complaint ("SAC"), and 

Defendants reported they anticipate filing another round of motions to dismiss. July Tr. 8-9, ECF 

No. 255. At the status conference, Sidley expressed its understanding that it was not required to 

produce ESI and emails until an ESI protocol was reached. July Tr. 21-22. The court urged the 

parties to quickly reach an agreement on an ESI protocol, and for discovery to proceed as the 

pleadings are likely many months from being resolved. For example, the court stated: 

3 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 3 of 10
I don't think there is much dispute about what the Plaintiffs are looking for, or at 

least what documents are or potentially are implicated in the case based on the 

allegations that already exist. 

So it seems to me that ... 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 asse1ied in the current complaint. 

And those can be modified, it seems to me, as necessary based on additional 

allegations that appear in the [SAC] when that is filed in September. 

July Tr. 23:18-24:4. The court also observed that: 

It's not just one plaintiff and one defendant in this case, such that if the 

defendants' motion to dismiss were successful the case would be over. There are 

multiple defendants. And if any of them are dismissed from the case it does not 

necessarily mean the information in their possession suddenly does not become 

discoverable. 

The Plaintiffs made this point early on in the case. I agree generally that even 

a dismissed party in this case, ifthere is to be any, will have evidence that will bear 

on the claims and defenses that have been asserted or argued. 

July Tr. 30:11-17. During the status conference, the comi set a briefing schedule for filing the SAC, 

the anticipated dispositive motions in response thereto, as well as a briefing schedule for filing an 

ESI protocol and the Joint Status Report concerning any disputed issues. July Tr. 24-26. 

DISCUSSION 

I. Legal Standards 

Rule 26 governs discovery in federal civil cases, the scope of which includes "any 

nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs 

of the case." FED. R. C!V. P. 26(b)(l). "A district court has wide latitude in controlling discovery." 

Lane v. Dep 't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008). As relevant, the court has applied 

the legal standards as set forth in the February Order. See Feb. Op & Order 7-8; see also Ciuffitelli 

4 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 4 of 10
v. Deloitte & Touche, LLP, Case No. 3:16-cv-00580-AC, 2016 WL 6963039, *5 (D. Or. Nov. 28, 

2016) (applyingSkelleruplndus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995)). 

II. Plaintiffs and Sidlev's ESI Disagreements 

Plaintiffs and Sidley disagree as to whether discovery is limited to the February Order, or 

whether the scope of discovery has expanded to include allegations in the recently filed SAC. 

Plaintiffs contend that limiting discovery to the February Order will cause unnecessary delay. 

Plaintiffs argue that at the July status conference, the court indicated discovery should include 

allegations in the SAC, and that they have provided additional detail to which discovery responses 

should be tailored. Thus, Plaintiffs appear to propose an expanded list of search terms and 

custodians in the initial ESI search relating to allegations in the SAC. Alternatively, Plaintiffs 

contend that Sidley's proposed search terms are inadequate to identify documents, including ESI, 

responsive to even the February Order. 

Sidley responds that the February Order still controls the scope of discovery until the 

pleadings are set. Sidley argues that its potential liability is limited to a single offering - ACOF -

and discovery is limited to that offering. Additionally, Sidley contends the date range proposed by 

Plaintiffs is unworkable because it begins two years before Sidley was engaged by any Aequitas 

company. Sidley contends that its custodian list is based on the custodian's seniority, closeness to 

the relevant issue, and those persons who billed more than ten hours. On September 28, 2017, Sidley 

provided an updated list of search terms and custodians that it proposed to Plaintiffs for its response 

to item 6 in the February Order. Amended Report, Ex. 1, ECF No. 264. 

5 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 5 of 10
III. Ruling Regarding Plaintiffs and Sidley 

As the court noted at the July status conference, ESI protocols are typically helpful in 

complex cases such as this one, and the court commends the parties for filing a Stipulated ESI 

Protocol. Sidley's production of all discovery, including ESI and emails, responsive to the court's 

February Order is now past due and must be provided to Plaintiffs without further delay. 

Additionally, Plaintiffs are correct that the court intends for discovery to include the 

allegations in the now filed SAC. As the court held in the February Order and stated at the July 

status conference, staying discovery until the pleadings are set is not warranted, and limited, focused, 

merits discovery should proceed. See Feb. Op. & Order 8. Thus, discovery as it pertains to Sidley 

now includes the nine categories of documents identified in the February Order, as refined or 

expanded by the allegations in the SAC. 

The court reiterates it is unlikely that all defendants would be dismissed from the case 

following ruling on the likely second round of motions to dismiss. Therefore, even if Sidley prevails 

on its anticipated motion, Sidley likely has documents in its possession relevant to the claims and 

defenses in the SAC that are discoverable. Additionally, the pleadings are likely many months from 

firm resolution. Limiting discovery to the Februaiy Order to the extent it pertained solely to the First 

Amended Complaint would unnecessarily delay discovery this case. 

With respect to the parties' proposed search terms, the court concludes that Sidley must use 

Plaintiffs' proposed list of search terms, custodians, and email domains. This includes Plaintiffs' 

request that Sidley search all emails sent to or from "@aeguitascaptial.com" email domain to identify 

and produce communications responsive to item 6 of the February Order. See Joint Report 7, ECF 

6 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 6 of 10
263. Additionally, the court finds Sidley's limitation of custodians to those with seniority and those 

who billed only ten plus hours to be arbitrary and inadequately explained. 

However, the court agrees with Sidley the date range in Plaintiffs' request is overly broad. 

Plaintiffs seek relevant ESI from January 1, 2010 through April 4, 2016. Sidley contends the date 

range extends two years prior to its engagement with any Aequitas company. See Joint Report 4, 11, 

& Ex. A at 1. In SAC paragraph 192(a), Plaintiffs allege that Sidley's initial engagement letter was 

dated March 1, 2012. Additionally, the alleged misleading statements by ACOF in paragraphs 153 

to 157 occur in 2014 to 2015, and it is an April 5, 2013 legal opinion that Plaintiffs allege connects 

Sidley to sales of securities by any Aequitas entity. SAC~~ 63, 153-57, 192, ECF No. 257. Thus, 

at this stage, the court concludes the appropriate date range for Sidley' s initial ESI search is March 

1, 2012 through April 4, 2016. The court might revisit the date range as discovery proceeds, as 

appropriate. 

In the interest of clarity, Sidley is hereby ORDERED to produce all discovery, including 

emails and ESI, detailed in the court's February Order, with the adjustments set forth above to 

incorporate the allegations in the Second Amended Complaint. Sidley is ORDERED to use 

plaintiff's proposed list of search terms, custodians and requested email domains set fo1th in Exhibit 

A to Dkt. Entry 263 for the dates March 1, 2012 through April 4, 2016, when providing ESI 

discovery set forth in the February Order. 

IV. Plaintiffs and Ameritrade 's ESI Disagreements 

In the Report, Plaintiffs and Ameritrade indicate that they have reached an agreement on the 

parameters and timing of a search for documents, including ESI, responsive to the February Order. 

Joint Report 12, ECF No. 263. However, Plaintiffs and Ameritrade, similar to the disagreement 

7 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 7 of 10
between Plaintiffs and Sidley, disagree as whether discovery is limited to the February Order, or if 

discovery should be adjusted to include documents that may be responsive to the SAC. Id. 

Plaiiltiffs contend that at the July status conference, the court indicated its desire to broaden 

the scope of discovery to encompass documents, including ESI, that may be responsive to the 

allegations in the SAC. Plaintiffs seek clarification to that effect, and indicate they are confident 

they can work with Ameritrade to reach a comprehensive discovery agreement. 

Ameritrade argues that the February Order encompasses the court's intended scope of 

discovery until the pleadings are set. Ameritrade highlights that under the February Order, it is 

obligated to produce discovery related not only to named Plaintiffs but also putative class members. 

Joint Repmi 14. Ameritrade further contends that the SAC does not cure the deficiencies in the First 

Amended Complaint, and that it intends to challenge those deficiencies. 

Ameritrade has offered a compromise to Plaintiffs that would provide discovery in two 

phases: Phase I would include completing its responses to Items 2 and 3 of the February Order (to 

which the pa:tiies have agreed); and Phase II would include some discovery beyond the scope of the 

February Order prior to disposition of the anticipated second round of motions to dismiss. 

Ameritrade proposes that in Phase II it would search its database of all internal emails (created by 

using the agreed upon search terms) and produce all internal email communications that mention any 

specific Ameritrade customers who purchased Aequitas by February 1, 2018. Additionally, 

Ameritrade would agree to work with Plaintiffs to identify specific custodians and systems to be 

searched for all ESI (the remaining internal email and other electronic files) and any physical files 

in the possession of any custodian and would produce this set of documents within two weeks after 

its answer is filed. Joint Repmi 15-16. 

8 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 8 of 10
V. Ruling Regarding Plaintiffs and Ameritrade 

As detailed above, Plaintiffs are correct that the court intended discovery to include the 

allegations in the now filed SAC. As noted above, staying discovery until the pleadings are set is 

not warranted, and limited, focused, merits discovery should proceed. See Feb. Op. & Order 8. And, 

even if Ameritrade prevailed on its anticipated motion to dismiss, Ameritrade likely has documents 

in its possession relevant to the claims and defenses in the SAC that are discoverable, and limiting 

discovery to the allegations in the now replaced First Amended Complaint at this juncture would 

unnecessarily delay resolution of the issues. 

Based on the Report, it appears that Plaintiffs and Ameritrade are very close to reaching an 

agreement as to search parameters and timing. Plaintiffs have stated they are confident they can 

work out a comprehensive agreement with Ameritrade if discovery includes allegations in the SAC 

because they have reached agreement on search terms, but have yet to agree on custodians. 

Additionally, the court agrees with Plaintiffs that the two-phased proposal submitted by Ameritrade 

is confusing and fails to provide relevant ESI responsive to the February Order in a timely fashion. 

Therefore, in the interest of clarity, Ameritrade is hereby ORDERED to provide all discovery, 

including emails and ESI, responsive to the February Order, with the adjustments discussed above 

to incorporate the allegations in the Second Amended Complaint without further delay. 

Additionally, Ameritrade is ORDERED to work with Plaintiffs to establish a comprehensive set of 

search te1ms, custodians, and date ranges to produce the six categories of documents identified in 

the February Order as adjusted by the SAC allegations without delay. 

9 - ORDER ON ESI DISCOVERY ISSUES 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 9 of 10
CONCLUSION 

The court resolves the ESI discovery disputes as set forth above. 

IT IS SO ORDERED . 

. / 4v DATED th!s1=:L_ day of October, 2017. 

10 - ORDER ON ESI DISCOVERY ISSUES 

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iJOHN V. ACOSTA 

Unite\:L£tates Magistrate Judge 

Case 3:16-cv-00580-AC Document 265 Filed 10/06/17 Page 10 of 10