IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

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, ET AL., )

) Case No. 3:16-CV-580-AC 

 Plaintiffs, ) 

) 

v. ) July 25, 2017 

) 

DELOITTE & TOUCHE, LLP, )

EISNERAMPER, LLP; SIDLEY AUSTIN, )

LLP; TONKON TORP, LLP; TD )

AMERITRADE, INC.; and INTEGRITY )

BANK & TRUST, )

) 

 Defendants. ) 

__________________________________) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS

(Telephonic Status Conference) 

BEFORE THE HONORABLE JOHN V. ACOSTA, MAGISTRATE JUDGE 

COURT REPORTER: AMANDA M. LeGORE 

 CSR, RDR, CRR, FCRR, CE 

 U.S. COURTHOUSE 

 1000 SW Third Avenue, Suite 301 

 Portland, OR 97204 

 (503)326-8184 

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 1 of 47
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APPEARANCES: 

FOR THE PLAINTIFFS: TIMOTHY DeJONG 

 KEITH KETTERLING 

 Stoll, Stoll, Berne, et la. 

 209 SW Oak Street, Fifth Floor 

 Portland, OR 97204 

 (503)227-1600 

 STEVEN BERMAN 

 Hagens Berman, et al. 

 1918 8th Avenue Suite 3300

 Seattle, WA 98101 

 (206)623-7292 

FOR DEFENDANT DELOITTE 

& TOUCHE: PETER WALD 

 Latham & Watkins LLP 

 505 Montgomery Street, 20th Floor 

 San Francisco, CA 94111 

 (415)391-0600 

 GARY GRENLEY 

 ERYN HOERSTER 

 Garvey, Schubert & Barer 

 11th Floor, 121 SW Morrison Street 

 Portland, OR 97204 

 (503)228-3939 

FOR DEFENDANT 

EISNERAMPER: WILLIAM FERRANTI 

 The Ferranti Firm, LLC 

 1819 SW Fifth Avenue, Suite 403 

 Portland, OR 97201 

 (503)877-9220 

 LINDA COBERLY 

 Wintston & Strawn, LLP 

 35 West Wacker Drive 

 Chicago, IL 60601 

 (312)558-8768 

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 2 of 47
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FOR DEFENDANT SIDLEY 

AUSTIN: KEVIN BRADY 

 BRUCE ABBOTT 

 Munger, Tolles & Olson, LLP 

 350 South Grand Avenue, 50th Floor 

 Los Angeles, CA 90071 

 (213)683-9100 

 JEFFREY EDELSON 

 Markowitz, Herbold, et al., 

 1211 SW Fifth Avenue 

 Suite 3000 

 Portland, OR 97204 

 (503)295-3085 

FOR DEFENDANT TONKON 

TORP: PHILIP VAN DER WEELE 

 K&L Gates, LLP 

 One SW Columbia Street, Suite 1900 

 Portland, OR 97258 

 (503)228-3200 

FOR DEFENDANT TD 

AMERITRADE: NICHOLAS CHRISTAKOS 

 Eversheds Sutherland (US) LLP 

 700 Sixth Street, Suite 700 

 Washington, DC 20001 

 (202)383-0100 

 MATTHEW KALMANSON 

 Hart Wagner, LLP 

 1000 SW Broadway, Suite 2000 

 Portland, OR 97205 

 (503)222-4499 

FOR DEFENDANT 

INTEGRITY BANK: SREEVAMSHI C. REDDY 

 Lane, Powell, P.C. 

 601 SW Second Avenue, Suite 2100 

 Portland, OR 97204-3158 

 (503)778-2169 

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 3 of 47
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(Tuesday, July 25, 2017; 9:30 a.m.) 

P R O C E E D I N G S 

THE COURT: Good morning. This is Judge Acosta.

All right.

THE ATTORNEYS: Good morning, your Honor.

THE COURT: I'm going to take something of an

abbreviated roll because I'm going to ask who's representing

the parties, and I would prefer that the lawyer or lawyers

representing each party are the ones who respond.

We may have multiple lawyers on the call for each of

the parties, but I'm guessing not everyone's going to speak.

But let's start with the plaintiffs, and we'll see

what we -- what we get from that.

One thing to note, I have a court reporter with me.

So when you do speak, please do identify yourselves.

Who do we have for the plaintiffs?

MR. DeJONG: Good morning, Judge Acosta. Tim DeJong

with Stoll Berne, for the plaintiff.

THE COURT: Thank you.

Who do we have --

(Indiscernible.) 

THE COURT REPORTER: I didn't hear him.

THE COURT: Repeat that, please.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 4 of 47
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MR. BERMAN: Steve Berman for the plaintiff. 

THE COURT: Thank you. 

Anyone else for the plaintiff?

All right. Thank you.

MR. KETTERLING: Your Honor, this is Keith

Ketterling. I don't plan to participate (indiscernible).

THE COURT: All right. Thank you. And,

Mr. Ketterling, I would point out that you sound like you're in

a car, on a cell phone, and you're -- at least on our end of

it, it is slightly broken up. So if you don't plan to talk,

that's probably a good idea. But if you do, we'll -- we'll see

how that works.

All right.

MR. KETTERLING: Your Honor, I do plan to put my

phone on mute, so it won't affect the call.

THE COURT: Thank you.

All right. Who do we have for the defendant Deloitte

& Touche?

MR. WALD: Good morning, your Honor. It's Peter Wald

and Gavin Masuda from Latham & Watkins on behalf of Deloitte.

THE COURT: All right. Is there any --

MR. GRENLEY: And, your Honor, it's Gary Grenley and

Eryn Hoerster of Garvey Schubert, also for Deloitte. And we

don't plan to speak, though.

THE COURT: Thank you.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 5 of 47
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Who do we have for EisnerAmper?

MR. FERRANTI: Good morning, your Honor. You have

William Ferranti, from the Ferranti firm, for EisnerAmper. And

also on the call with us this morning is my co-counsel, Linda

Coberly from Winston & Strawn.

THE COURT: All right. Thank you.

For Sidley Austin?

MR. BRADY: Good morning, your Honor. This is Kevin

Brady, here with Bruce Abbott, from Munger Tolles & Olson, for

Sidley Austin.

THE COURT: Thank you.

Anyone else?

MR. EDELSON: Good morning, your Honor. Jeff

Edelson, Markowitz Herbold, also for Sidley.

THE COURT: All right. Thank you, Mr. Edelson. 

All right. And for Tonkon Torp?

MR. VAN DER WEELE: Good morning, your Honor. Phil

Van Der Weele, from K&L Gates, for Tonkon Torp, and nobody

else.

THE COURT: Thank you.

For TD Ameritrade.

MR. CHRISTAKOS: Your Honor, this is Nick Christakos,

Eversheds Sutherland, for TD Ameritrade.

THE COURT: Thank you. 

MR. KALMANSON: Good morning, your Honor. It's

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 6 of 47
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Matthew Kalmanson from Hart Wagner, also for TD Ameritrade.

THE COURT: Thank you.

And for Integrity Bank & Trust.

MS. REDDY: Good morning, your Honor. It's Vamshi

Reddy from Lane Powell for Integrity Bank.

THE COURT: All right. Thank you.

Anyone else for Integrity?

MS. REDDY: No.

THE COURT: All right. Thank you.

All right. So now that we have that out of the way,

we're here for a scheduling conference in light of Judge

Mosman's adoption of my F & R on the motions to dismiss.

The first thing I'll ask -- and Mr. DeJong, I will

address my question to you first -- is whether the parties have

talked about scheduling of next steps.

MR. DeJONG: Thank you, your Honor. Yes, this is Tim

DeJong for the plaintiffs. We have spoken, and I'm pleased to

report that I believe we have agreements on -- on a schedule to

propose to you.

I have heard from everybody except Integrity, I

believe. Everybody has indicated that they agree with the

proposed schedule.

THE COURT: Mr. -- Mr.DeJong has -- hang on just a

minute.

Has Integrity seen the schedule?

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 7 of 47
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MS. REDDY: Your Honor, this is Vamshi Reddy. We

have seen the schedule, and it's acceptable to Integrity Bank.

THE COURT: Thank you. All right. Mr.DeJong, it

sounds like we have an agreed-upon schedule.

It would probably be best for you to submit a

stipulated scheduling order. But for purposes of today, it

would be helpful to know what the schedule sets out, in case

there are any things that need to be adjusted, tweaked, or

discussed for clarity.

Go ahead, please.

MR. DeJONG: Sure. The first event would be the

plaintiffs' filing of a second amended complaint, which we

agreed would happen 45 days from today; which I've calculated

as September 8th.

THE COURT: All right. Thank you.

MR. DeJONG: The second item would be the responses

to the second amended complaint, which would be 45 days

thereafter, which I've calculated as October 23rd.

THE COURT: Thank you.

MR. DeJONG: And the third event anticipates that the

responses will be motions to dismiss. And it's the deadline

for the plaintiffs' oppositions to the motions to dismiss which

we have agreed would happen 30 days after the motions are

filed, and I've calculated that as November 22nd.

THE COURT: Thank you.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 8 of 47
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MR. DeJONG: The final date is the replies for the

motion to dismiss, which would be 28 days after the opposition

or December 20th, 2017.

THE COURT: Thank you.

All right. What else is on the agreed-upon schedule?

MR. DeJONG: That is as far as we took the scheduling

discussion, your Honor.

THE COURT: All right. Thank you.

So I anticipated that might be the likely next step.

And, of course, that's fine. The questions I have, then -- and

Mr. DeJong, I will again start with you on behalf of the

plaintiffs -- is whether the parties have had any discussion

about discovery now that the protective order motions have been

determined and since we apparently will have a second amended

complaint and motions to dismiss that address the second

amendment complaint.

MR. DeJONG: Your Honor, I suppose the answer to that

is we've had sporadic discussions with certain defendants, but

nothing, I suppose, positive to report to the Court on that

front.

THE COURT: All right. So before I hear from any of

the defendants, my other question is, from your perspective, do

you think whatever discovery discussions the parties have had

will result in an agreed-upon discovery schedule? Or is this

something that you anticipate the Court will need to resolve?

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 9 of 47
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(Pause. No response.)

THE COURT: Mr. DeJong?

MR. DeJONG: Oh, I apologize. I thought you directed

that to the defendants.

THE COURT: No. That was my last -- that was my

other question to you, and then I was going to hear from the

defendants.

MR. DeJONG: My apologies.

THE COURT: That's all right.

MR. DeJONG: My expectation is that discussions

with -- between the parties would not be fruitful and that we

will require visits with the Court, set -- for the Court

setting a discovery schedule in resolving questions such as

whether or not, you know, the limited stay that was recognized

as to some of the defendants is still in place; or if that

should be lifted now that the motions to dismiss were decided.

THE COURT: All right. All right. So I'll take the

defendants in the order in which they appear in the case

caption.

Mr. Wald, I'll start with you.

What is Deloitte's view of discovery at this point,

going forward?

MR. WALD: Thank you, your Honor. I think, briefly,

our position can be summarized as follows. There is an

important second amended complaint, and that was there will be

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 10 of 47
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motion practice with respect to that complaint that will play

out over the fall. At issue -- as you know from your findings

and recommendations, now adopted as the rule of the case --

will be whether and to what extent the plaintiffs can allege

facts that allow them to stay in court on claims with respect

to specific securities offerings.

In our view the resolution of those issues will have

the dramatic impact on the scope of discovery that ultimately

will be allowed.

We think that the Court's rulings on the predicate

discovery motions that have been brought to the Court, up until

now, reflect a balance and fair balancing, if you will, of the

interests of all the parties until we -- the pleadings are

finally set and the parties really understand which

transactions are going to be put at issue and, therefore, what

the scope of discovery should be.

So while we're certainly open -- I want to be very

clear about this. While we're certainly open to any further

discussions with the plaintiffs as to whether there is

additional incremental discovery beyond what's already been

ordered that would be efficient for the parties to produce --

and I have in mind two-way discovery on this because class

certification is around the corner. And, in our view, if we're

going to have additional discovery, it should include discovery

on class certification issues as well.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 11 of 47
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But our view is that the bulk of the discovery should

await the Court's final ruling as to which transactions are in

and which transactions are out, subject to, as I said,

continued discussions with the plaintiffs and through meet and

confer and -- and hopefully the presentation to the Court of --

of a position when that process is completed.

THE COURT: All right. Thank you.

All right. For EisnerAmper.

MR. FERRANTI: Thank you, your Honor. 

Our position is basically the same as Deloitte's,

with -- you know, we've fully complied with the Court's

November discovery order, which did not contemplate the ESI

would proceed at all, yet. And, in fact, it actually went

beyond the terms of that order to produce -- (indiscernible)

opinions; which is ten, not just the six mentioned in the

order. So it was a substantial production. 

And we think the Court struck a good balance that

should continue to govern the competing concerns, including

costs and proportionality and the fact of the scope of the

plaintiffs' claims are -- were disputed and continue to be

disputed. And, of course, your court approved certain portions

of the allegations, but that all seems (indiscernible) the

amended complaint, plaintiffs' effort to -- to add a

particularity demanded by the Court, including to connect

EisnerAmper to specific quotes of Aequitas entities and sales

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 12 of 47
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that they claim were aided. 

So -- so, really, the long story short, what we

propose for next steps is we would like to see the second

amended complaint, see how plaintiffs respond to the Court's

ruling, and discuss further discovery from there and possibly

be able to resolve that. And, if not, then we would be looking

for help from the Court.

THE COURT: Mr. Ferranti, so that I understand, when

you discussed -- or when you described the discovery that

EisnerAmper has so far produced, my understanding is you said

ESI was not included?

MR. FERRANTI: That's correct, your Honor.

THE COURT: All right.

MR. FERRANTI: We did produce the work papers in the

electronic form.

THE COURT: Right.

MR. FERRANTI: But our understanding of the order was

that it did not contemplate ESI. And we made that clear to

plaintiffs, when we made our production. And its -- as far as

our understanding, is plaintiffs were satisfied with what we

produced. And I have been in touch with plaintiffs' counsel

about further discovery, and look forward to talking to them

further about that. But, yes, our production did not include

ESI.

THE COURT: All right. Thank you.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 13 of 47
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For Sidley.

MR. BRADY: Thank you, your Honor.

We generally agree with Deloitte and Eisner that

broader discovery should await a new complaint from the

plaintiff, since our motion to dismiss was focused on the lack

of spec -- specificity with respect to -- with respect to

Sidley; and the Court ultimately agreed with that.

As far as the protective order, we have produced all

materials consistent with the protective order, which amounts

to over 1.5 million pages of materials that the plaintiffs

have. The only issue is the production of ESI and specifically

of e-mails.

And given the Court's recent ruling with respect to

Integrity, we think it makes sense to start discussions about

an ESI protocol now in the case.

In our view, an ESI -- an ESI protocol makes a lot of

sense. There are a lot of parties to the case. There are lots

of documents, lots of potential search terms and custodians.

And we think it makes a lot of sense to get all of the parties

on the same page as far as a unified process for selecting

custodians and selecting search terms and also creating a

unified process for the metadata that will be provided.

THE COURT: All right. Thank you. 

For Tonkon Torp?

MR. VAN DER WEELE: Your Honor, Phil Van Der Weele

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 14 of 47
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for Tonkon Torp.

First of all, Tonkon didn't move for a protective

order, but we produced -- I would say, by analogy, what we

envisioned your order contemplating that -- that Sidley

produce -- with, I guess, one -- one distinction, which is that

we produce based on matter-based repositories of documents.

But -- not custodial but within the matter-based. We didn't

distinguish between ESI and nonESI because it was almost all

electronic.

That being said, I agree with the position

articulated by Deloitte that further broader discovery should

be -- if any, should be framed by what's in the second amended

complaint.

THE COURT: Thank you.

TD Ameritrade.

MR. CHRISTAKOS: Your Honor, this is Nick Christakos

speaking for TD Ameritrade. Our position is not terribly

dissimilar from the others, but I suppose I would emphasize one

or two different points.

First, we understood the Court's order in response to

the various motions for protective order to essentially strike

a compromise on what should happen until the pleadings are set,

recognizing that that could take a long time.

So our understanding -- subject to clarification from

the Court on what the Court intended -- is that the order,

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 15 of 47
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which -- to which the parties have responded and produced quite

a bit of documentation was to be the extent of at least the

written discovery until the pleadings are in fact set.

That said, we do think that, like everyone else, we

need to see what the complaint looks like, currently. There is

no complaint in the case, so we need to see what the next

complaint looks like. Certainly happy to discuss with

plaintiffs various issues once we see that.

But our position is and remains that when subsequent

discovery does resume and proceed, we think there should be a

bifurcation between class discovery and merits discovery,

because we think that could be quite significant --

particularly for our client -- given, as the Court is aware, if

class certification is decided in the favor of TD Ameritrade,

then the named plaintiffs would be required to proceed to

arbitration. So we think that's a pretty significant, at

least, possibility that would, in this case, warrant proceeding

with class discovery before merits.

Finally, as to ESI, I think a lot of our documents,

frankly, are stored electronically. So to the extent that

we -- to the extent that we identify and produce specific

subject matters of documents that was electronic, we have not

discussed with plaintiffs an ESI protocol. And we have not

done general searches on all possible responsive documents as

yet, consistent with -- with what we understood the Court's

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 16 of 47
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order to be.

Certainly happy to begin discussion of an ESI

protocol so if and when we get to that point we are ready to go

with the plaintiffs. But, again, I would not propose to do

that until we see what the second amended complaint looks like.

THE COURT: Thank you. 

And then for Integrity Bank?

MS. REDDY: Thank you, your Honor.

Obviously Integrity is in receipt of the Court's

order, and we intend to fully comply. I think, at this stage,

it provides much needed clarity, as we attempt to discuss -- as

others have raised -- an ESI protocol. And, I think, a unified

process with respect to ESI generally makes sense at this

stage.

We have already made a preliminary production,

including the files for the named plaintiff and other

representative agreements.

So, at this stage, we just need to figure out what we

need to do to comply with the Court's opinion and order.

THE COURT: Thank you.

Mr. DeJong, do the plaintiffs agree or disagree that

whatever additional discovery should occur next should be

determined based on the allegations in the second amended

complaint that will be filed in early September?

MR. DeJONG: Your Honor, we disagree. It's our

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 17 of 47
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position that the second amended complaint will simply supply

additional detail. The allegations and the charges are known.

So there's no -- you know, in our view, the second amended

complaint isn't the dramatic event that Deloitte characterized

it as in terms of discovery.

We -- in our view, we're not limited to discovery

based upon claims that are allowed to proceed. The discovery

(indiscernible) is matters that are reasonably calculated to

lead to the discovery of admissible evidence.

And so regardless of the outcome of a motion to

dismiss against the second amended complaint, I think we would

still have latitude for discovery well beyond what -- any, you

know, misrepresentations that aren't found to be specific

enough.

So that does not seem to be a valid reason to delay

discovery further. We're already, you know, a long time into

this case. And the expectations, I think, should be on

everybody's part that a very substantial case is going to be

proceeding.

THE COURT: All right. My next question then is

whether to move -- Mr. DeJong, I'll start with you -- to move

forward with discovery. The parties first must have an

agreed-upon set of ESI protocols.

MR. DeJONG: I don't understand why we would have to

have that in advance of discovery, your Honor. I think we have

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 18 of 47
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a couple of different issues to discuss here. And one is the

discovery that's already been ordered by the Court.

THE COURT: Yes.

MR. DeJONG: And then there's the issue of discovery

beyond that, if your Honor is going to allow it.

And I don't -- so let's take -- let's take the issues

regarding the discovery that your Honor has already ordered.

And I understood your order of yesterday to be -- to clarify

that Integrity and Ameritrade are now required to produce their

ESI that was responsive on the topics that you identify in your

order.

I heard some ambiguity, at least from Integrity's

lawyer, who seems to suggest that we have to have an ESI

protocol before that can happen. I didn't see that in your

order. And -- but Sidley has raised that issue and has

asserted that an ESI protocol is required before they comply

with the balance of your -- your Honor's order.

We don't understand why that's needed. We've asked

repeatedly for Sidley to tell us why, and we've had no response

to that. I think the burden clearly falls under Rule 26 on

Sidley to make a case and a showing as to why an ESI protocol

is necessary and not just an additional matter of delay of the

production process here.

It's hard -- it's hard to argue against something

when we don't know what their position is because they haven't

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 19 of 47
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(indiscernible). 

THE COURT: Mr. Brady, can you address that?

MR. BRADY: Yes, your Honor.

First of all, in terms of the -- our production with

respect to the protective order, like I said before, we have

produced over a million pages of documents that -- so I'm not

sure where counsel's coming from with respect to not having

complied with the bulk of the order.

And we simply have said to -- to plaintiffs and also

to the Court that the -- in our view that the order was unclear

with respect to ESI, and that's why plaintiffs turned to the

Court and sought the clarification with respect to that. And

we also had agreed that we could use an additional

clarification with respect to whether ESI was required under

the protective order.

But, as I said earlier, we -- and we said this to --

to plaintiff. We think that an ESI protocol will help to put

all of the defendants on the same page. We've already run into

issues where, for example, different parties have produced

documents with -- using different metadata fields, which makes

it far more difficult to search those documents, to -- to order

them by date, or -- or to find the author of the documents, and

so on. So -- and, again, this is something we -- we've

explained to the plaintiffs.

THE COURT: So just a follow-up question, Mr. Brady.

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First, to confirm what I heard you say about my

ruling on the protective order that Sidley filed, that it left

some question or it was not clear that electronically stored

information was included.

I'm not sure I understand how Sidley reached that

conclusion or has that question?

MR. BRADY: Sure, your Honor. So as we -- as we read

the order -- just to provide the context in which we received

the order, back in -- I believe it was November or earlier,

when the parties filed a joint report of the Rule 26

conference, the parties had agreed at that time that production

with ESI would not be appropriate, and we agreed to discuss ESI

issues in conjunction, or as the case proceeded.

And then, later on, the Court, as well, in November

had explained -- or noted in the November 4th conference that

the parties should start thinking about ESI issues, and

essentially should come back to the Court to address protocol.

So with that background, as we read the orders, ESI

was never discussed as part of the meet-and-confer process

surrounding the protective order motion.

THE COURT: All right. Well, my comment -- and this

perhaps falls under the category of "no good deed goes

unpunished," was intended to get the parties working

proactively to address an issue that often comes up in

document-intensive cases, which is, for example -- but not the

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 21 of 47
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exclusive example -- what search terms will be used to find

documents that are relevant to the allegations in the complaint

and the defenses that have been asserted. I certainly --

because I anticipated there would be discovery, at least to

some extent going forward, notwithstanding the pending motions

to dismiss, I certainly thought it was prudent for the parties

to start looking ahead to the likelihood that they would have

to produce documents and, therefore, get in place ESI protocols

that everyone agreed upon so that there aren't motions filed or

the parties dispute the search terms they're using; whether

they have to search for archived or legacy data, and the format

in which ESI would be produced.

So that's what I had in mind with respect to

electronically stored information. In large part, driven by my

experience in other cases where there have been

document-intensive discovery efforts and electronically stored

information has been the subject of disagreement. Or, I should

say, have -- find that it has been the subject of disagreement.

Mr. Brady, have you proposed any specific ESI

protocols to the plaintiff?

MR. BRADY: No, your Honor.

We twice offered to begin a -- a discussion with all

of the parties about ESI protocol, but that -- the plaintiffs

haven't yet agreed to go forward with that discussion.

THE COURT: Have -- Mr. Brady, have the defendants

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had a discussion among themselves about -- even if only

generally -- ESI protocols?

MR. BRADY: In general terms, yes, your Honor. We

haven't narrowed down any specifics, but we have been

discussing these issues.

THE COURT: So, Mr. Brady, since I have you in the

crosshairs, as it were, on this issue, here's my next question.

In your view, what is the likelihood the defendants can agree

upon a set of ESI protocols to present to the plaintiffs?

MR. BRADY: I think there's a very high likelihood

that we could reach some sort of agreement.

THE COURT: All right. So, Mr. Brady, here's the way

I'm going to -- and, everyone else, I'm going to resolve this

particular issue.

I realize the second amended complaint will be

forthcoming in about a month and a half. However, I think 

Mr. DeJong has a very good point. Even though additional

detail will be added, 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 in the case that already exist.

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

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 23 of 47
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current 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.

In your experience, working with the other

defendants' counsel in this case, how much time from today do

you think would be necessary for the defendants to present to

the plaintiffs their proposal for search protocols of

electronically stored information?

MR. BRADY: I would say two weeks, please, your

Honor.

THE COURT: All right. And I want to be clear about

one thing, Mr. Brady.

If you say two weeks, my anticipate -- my expectation

is that is the time you think is reasonable and gives you

sufficient cushion to get it done. Don't give yourself a close

deadline or the other defendants a close deadline simply

because you're trying to make me happy.

I want to make sure that if you commit to a date,

barring any unforeseen developments, you'll be able to produce

on that date.

Is two weeks enough time?

MR. BRADY: Understood, your Honor. Perhaps, in

light of your counsel, I would propose three weeks.

THE COURT: That's pretty much what I figured, too. 

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 24 of 47
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So three weeks from today -- today is July 25. Three

weeks from today would be Tuesday -- hang on. I have to make

sure I'm looking at the right year. That's the 21st -- is that

the 21st of August?

Yeah, that's the 21st. August 21 --

Doesn't sound right to me.

MR. DeJONG: Excuse me, your Honor, I think it would

be August 15, three weeks from today.

THE COURT: Thank you. You're right. Sorry. I'm

not sure -- I couldn't read that. August 15.

Mr. Brady, since you volunteered for this -- I'm sure

I heard you say that -- I'm going to put you in charge of

taking the lead, making sure this moves forward in that

three-week time period, and you will be the one transmitting

the suggested protocols to plaintiffs' counsel on August 15.

MR. BRADY: Sounds good, your Honor. We'll get it

done.

THE COURT: Thank you.

Mr. DeJong, you're going to see protocols you may or

may not agree with. How much time do you think you're going to

need in order to take a look at what the defendants will

present, based on what you know about the case, and give a

meaningful response?

MR. DeJONG: Your Honor, I would ask for two weeks,

although we will certainly try to do it more quickly than that.

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THE COURT: All right.

THE CLERK: 29th.

THE COURT: So by August 29, the plaintiffs will

respond.

If there is a disagreement that cannot be resolved

over the search terms and other protocols to be put in place,

then if, Mr. DeJong, you are to respond by the 29th and talk

with plaintiffs' counsel -- I'm sorry, defendants' counsel,

what I will ask is that no later than September 12, the parties

submit a joint report with their respective positions on ESI to

the Court, and I will resolve it.

And if I think I need to have a hearing because I

have questions, I will enter that in the docket. Otherwise, I

will let you know my determination on that.

And I was thinking about this particular point over

the weekend, as I was getting ready for the hearing today.

It seems to me, from my experience, that the parties

are better off -- almost always -- if they can agree on

protocols, search terms, and -- and other matters related to

the production of electronic information. And that the

alternative of having the Court decide it for the parties is

often less desirable.

I'm happy to do that, if I have to. But I'll tell

you the way I'll look at it if there is a dispute.

I am likely to adopt one side's proposal. I may or

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 26 of 47
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may not modify it. But, right now, what I think is the parties

know this case better than I with respect to the documents that

are there and to be gained and searched for, and so I would

suggest that if there are disagreements that cannot be

resolved, each side should put forth their most reasonable

proposal to obtain electronically stored information in light

of the case's procedural posture. Which is, specifically,

there will be a second amended complaint, and we know there

will be a second round of motions to dismiss.

All right. And, Mr. Brady, to be clear, just in

case, if there is a disagreement and the defendants' proposal

is presented in the report, you should take the lead in making

sure that the defendants' views are accurately and fully

represented.

MR. BRADY: Understood, your Honor.

THE COURT: Thank you.

All right.

MR. WALD: Your Honor?

THE COURT: Yes.

MR. WALD: This is Peter Wald. Can I just have two

minutes on this subject?

THE COURT: Go ahead.

MR. WALD: Thank you.

I think I understand the Court's order and,

obviously, will comply. And I think it's an important first

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 27 of 47
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step.

I just want to address something that Mr. DeJong

stated about the discovery standard. I believe Mr. DeJong --

if I heard him correctly -- said that the discovery standard

has to do with discovery that is likely to lead to relevant

evidence. And, of course, that was the rule under the old Rule

26.

THE COURT: Right. Right.

MR. WALD: Not the rule under the new Rule 26, which

talks about relevance and the parties' claim or defense and

proportional to the needs of the case.

Why -- why I do raise this? I raise it because under

the schedule that the Court has heard this morning and is going

to adopt, there will be a second amended complaint that will be

filed. There will be motions to dismiss. And, ultimately, the

Court will resolve, fully and finally, which claims are in the

case against which defendants.

As the Court knows, different defendants intersected

specific Aequitas entities or did not intersect specific

Aequitas entities at different times. So timing is important

and the nature of the intersection and whether it actually

happened with specific entities will be important.

And until we see whether plaintiffs are able to

survive on specific entity-by-entity claims and

offering-by-offering claims, we aren't really going to know

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 28 of 47
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what the second amended complaint is going to look like with

respect to each defendant. I know that that is self-evident,

and the Court knows that.

The reason I go into it is because I would like at

least to put a marker down that whatever we decide sort of on

the first round of this negotiation with respect to ESI, that

it be open to the parties to come back to the Court and suggest

tweaks or modifications, so that the ESI protocol, as -- as is

appropriate for whatever specific claims remain against

specific defendants, covering specific entities and specific

time periods.

THE COURT: Well, thank you, Mr. Wald.

First, I did hear Mr. DeJong's characterization of

the discovery standard, and I made the same observation about

it that you did; that the standard is different now, following

the 2015 amendments.

And I think, because I have issued a handful of

rulings on various protective order motions, the parties are

well aware of my overall view about discovery in this case in

its current procedural posture.

I anticipate that I will continue in that view, even

with the second amended complaint because there is quite a bit

of distance to go yet in this case.

I don't have any concern about revisiting the scope

of discovery as appropriate, especially if, for example, one or

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 29 of 47
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more motions to dismiss are filed and ultimately granted in a

way that limits or, perhaps, even eliminates categories of

discovery that any party or perhaps former party must produce,

but I also want to make this observation.

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, if

there is to be any, will have evidence that will bear on the

claims and defenses that have been asserted or argued.

So I think you probably appreciate that. But I do

understand your point about adjusting or modifying the scope of

discovery in light of what happens with any motion to dismiss. 

So you've marked it. It's on the radar in the case.

I'm aware of it. And we will address it if we need to. All

right.

MR. WALD: Thanks very much, your Honor.

THE COURT: Thank you, Mr. Wald.

All right. We have a schedule for briefing following

the filing of the second complaint for which we also have a

date.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 30 of 47
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We have deadlines for the parties to start working on

electronically stored information.

Mr. DeJong, one question I have. Putting aside the

electronically stored information or -- that one or more of the

defendants have not yet produced because of the protocol issue,

are there any other documents that were to be produced,

following my protective order rulings, that have not yet been

produced and are not in the process -- as far as you know -- of

being produced?

MR. DeJONG: Your Honor, my -- my recollection is

that TD Ameritrade took the position that they would produce

only documents that relate directly to the named plaintiffs.

And so that was -- you know, in addition to the

position that they didn't have to produce any e-mails that fell

within the categories of documents, which you identified in

your order; so we have -- we have that problem. But the other

problem is that none of the defendants who filed protective

order motions produced e-mails.

THE COURT: Produced e-mails?

All right.

MR. DeJONG: Correct. That would fall within the

categories of the limited discovery that you ordered and in the

response to the protective order motions.

THE COURT: Mr. Brady, in your view, are the ESI

protocols necessary before the e-mails can be produced?

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 31 of 47
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MR. BRADY: Yes, your Honor. The protocols are a

part of the -- the importance of the protocols is to create a

process for selecting the custodians whose e-mails will be

searched and the search terms that will be used to search

through their e-mails.

THE COURT: Mr. Brady, I'll ask you another question,

and then I'll hear from any of the other defendants' counsel

who wish to also weigh in.

Mr. Brady, are there any e-mails that, in your view,

can be produced now, even though ESI protocols are not in

place?

MR. BRADY: To clarify, when we made our prior

production, we turned over -- and these were documents that

were responsive to the protective order. We produced 1.5

million cases of materials. And within those materials -- I --

I don't have the exact number, but it was well over 200,000

separate e-mails within those documents that we have turned

over to the plaintiffs and that the plaintiffs are -- are, I

presume, reviewing now.

THE COURT: All right. Thank you.

Mr. Wald, has Deloitte & Touche produced e-mails

or -- even if it's not all the e-mails that might be within the

scope of the discovery requests?

MR. WALD: Your Honor, I believe that Mr. DeJong will

agree that we have produced ESI electronically stored data for

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 32 of 47
 33

the categories that your Honor ordered produced.

I do not believe that, by and large, that that

production included e-mails, broadly defined.

We -- we certainly believe that we need to have

agreed-upon ESI protocols, including search terms, custodians,

date ranges, sources of ESI, those kinds of things, before we

could make a further search or a -- you know, a full search,

you know, for e-mails.

And we're certainly, you know, happy to talk to the

plaintiffs about that in a -- in a subsequent meet and confer.

It does, of course, (indiscernible) the issue we were just

discussing, which is what are the transactions that are

involved here. But subject to that caveat and the Court's

observations about that caveat, we have not yet. And we

anticipate that that will be the subject of the next round of

discovery.

THE COURT: Thank you. Mr. Ferranti, has EisnerAmper

produced any e-mails yet?

MR. FERRANTI: No, your Honor, I don't believe we

have, unless there were some that were included in the formal

work papers, which is possible.

But we did not understand the Court's order to

require a search of e-mail or other ESI. In part because

plaintiffs specifically conceded in their briefing on their

protective order that they were proposing production of only

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 33 of 47
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the audit work papers with discovery of ESI to go forward

later.

And I think in the Court's order, the Court also

recognized that e-mail and database searches -- they refer to

both of those together -- require that the parties first

propose and work out search terms, and whatnot, that we've

discussed now, sort of doing going forward. But at the time

the Court issued the order, that was ahead. And, again,

plaintiffs have said what they were demanding at the time was

work papers. And we made clear that that's what we were

producing to them was nonESI.

And, again, had not heard any objection to that

production, which was back in January.

THE COURT: Thank you.

Mr. Van Der Weele, e-mails produced?

MR. VAN DER WEELE: Yes, your Honor. Consistent with

what I said before, we produced e-mails that were in electronic

folders that were organized by matter. We did not produce

e-mails that would be in electronic folders, organized by a

custodian.

THE COURT: Thank you.

Mr. Christakos, TD Ameritrade.

MR. CHRISTAKOS: Your Honor, let me respond, first,

generally.

We did comply fully with the Court's order on

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 34 of 47
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discovery, and we did so in a timely manner on the day

indicated, but for the two specific areas that were the subject

of our motion for reconsideration, which the Court has now

resolved.

So we did produce a variety of documents not

specifically related to the customers, and who -- who are

plaintiffs in the case because those were required by the Court

to be produced. But in agreements and various other categories

of documents.

With respect to e-mails, yes, we did produce e-mails.

But somewhat similar to the prior answer, where -- where

e-mails were readily identifiable, contained in files

associated with customers who were -- who were named

plaintiffs, we gathered them and produced them.

I do not believe that we ran, sort of, company-wide

e-mail searches to find any stragglers that were not deposited

where they should have been in the company's, you know, subject

matter folders for these customers. So that is something, of

course, we can -- would do. But we did produce e-mails, to the

extent we're able to find them, using reasonable efforts as

to -- as to the customers in question and as to -- as to the

other categories that were the subject of the Court's order. 

For example, if they were agreements that were

produced, and their communications could readily identify an

e-mail or other form associated with transmittal of those

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 35 of 47
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agreements or regarding those agreements, we endeavored to find

and produce those as well.

THE COURT: Is there any e-mail remaining to be

produced that you haven't yet produced because -- for any

reason? Protocols or otherwise?

MR. CHRISTAKOS: Well, with respect to the documents

that we produced -- and setting aside for the moment our need

to produce documents in response to the Court's resolution of

our motion to reconsider, I suspect that there are. Again, we

didn't run -- we didn't run a -- multiple custodian searches or

searches throughout the entire company database to find all

possible e-mails.

We tried to be a little bit more narrow or a little

more targeted about it to -- to find things with respect to

the -- to the customers who are named plaintiffs. I think we

caught most if not all of those, but we need to go back and

double-check that.

THE COURT: All right. Thank you.

MR. CHRISTAKOS: Of course, we need -- obviously, we

need to produce documents now in response to the Court's order

yesterday, and I would anticipate there would be e-mails there

as well.

THE COURT: All right. And, finally, for Integrity,

Ms. Reddy.

MS. REDDY: Yes, your Honor. I think Integrity is

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 36 of 47
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similarly situated to defendant TD Ameritrade.

I think based on your Honor's order of yesterday, we

do anticipate producing e-mails. To the extent that any have

been produced to date, they would have been e-mails that were

included in the files of the named plaintiff that we have

already produced. That it was our understanding the e-mails

were encompassed within the parameters of ESI. There was no

fulsome production of e-mails has been made to date.

To that -- to that end, we, for the reasons already

discussed, believe that a protocol with respect to search

terms, custodians, date ranges, would certainly be helpful in

facilitating that production. But we are happy to confer with

plaintiff offline to discuss any sort of preliminary production

of e-mails that can be made pursuant to your Honor's order.

THE COURT: All right. Thank you.

Mr. DeJong, anything further on this topic before we

move to the next topic?

MR. DeJONG: Yes, thank you, your Honor.

So with respect to the orders on the protective order

motions as to Sidley, Ameritrade, and Integrity, we've had no

meaningful e-mail production from any of those parties.

Mr. Brady referred to the 1.5 million documents and

200,000 e-mails that he says were produced.

What Deloitte did was they produced to us Equitas's

e-mails that had been produced on Aequitas's behalf to the SEC,

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 37 of 47
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so when -- we didn't get any of Sidley's loan e-mails, your

Honor. And with Ameritrade, I think, as Mr. Christakos said,

what they produced to us were any e-mails that happened to be

within Mr. Checkatele's (phonetic) file at Ameritrade. So, you

know, that's -- that's not merits discovery.

And I'm looking at your Honor's order on the

protective order motion. I've just used Sidley as an example.

We have -- we have one item here that is -- that

orders Sidley to produce all documents Sidley sent to and

received from the investment advisor to the ACOF fund. I can't

comprehend why Sidley would need to have an ESI protocol to

respond to that order that is in effect, that has been

outstanding; I think was due in April.

All of -- all of the information known -- necessary

to respond to that order is known to Sidley. So -- and it's

very difficult for us to be in this position of having to

negotiate things when -- when the positions on the other side

are that -- you know, no discovery should proceed. So --

THE COURT: Mr. Brady, what about that?

MR. BRADY: Well, the first point is that that -- the

same e-mails are among the -- are among the 200,000 e-mails

that we produced.

Mr. DeJong's correct, those were e-mails that we

produced -- simply produced on behalf of various Aequitas

entities to the SEC. But there certainly is overlap between

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 38 of 47
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those e-mails and the e-mails in the Sidley files.

THE COURT: All right. Let me be clear about the

protocol process. Once the protocols are resolved, whether the

parties reach agreement or whether they submit any

disagreements to me for final resolution, I will expect that

electronically stored information -- whatever that ends up

being, according to the protocols -- be produced promptly.

Now, this is July 25. The protocol process will take

about four to five weeks. If I have to resolve anything, it

could be longer. And, of course, in early September, the

second amended complaint will be filed.

I mention all of this because I want to be clear that

I don't expect the defendants to be waiting until

mid-September, for example, or sometime in September, to start

looking for electronically stored information or the custodians

who might have it.

I expect all the defendants to be identifying

possible custodians now, so that the process will be as

expedited as appropriate once the protocols are resolved and in

place.

I share Mr. DeJong's concern that this case has been

around now for a while. A year and a half, at least. We are

still getting the pleadings settled, and we still are looking

at what can reasonably be characterized as initial discovery.

So I want to take whatever steps are appropriate to move

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 39 of 47
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discovery forward efficiently and promptly. So everyone should

start looking at that now, in the anticipation of having to do

searches to at least some extent. So custodians, where they're

located, how they're stored, and how to retrieve them.

If any of you are encountering systems that have been

archived or no longer in use, you should start now, working

with your respective clients to figure out how to retrieve data

you might have to get from Legacy Systems, or systems that have

been taken offline or have been upgraded.

I don't want to have any unnecessary delays, because

those are things, it seems to me, you can work on now, even if

you don't know exactly what it is the protocols will require.

All right. I have a question for those of you who

are monitoring or involved in the Securities Exchange

Commission case that is assigned to Judge Papak.

Are there any issues in our case that are affected by

the stay that -- by the stay that had been in place?

Mr. DeJong, to your knowledge, are there any?

MR. DeJONG: Yes, there are.

THE COURT: There are?

MR. DeJONG: Yes. For example, we're -- yes, your

Honor. We're prohibited from taking discovery from Aequitas

itself, presently.

THE COURT: Okay. And that -- Mr. DeJong, that stay

is still in place?

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 40 of 47
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MR. DeJONG: It is, as far as I understand. That's

correct, your Honor.

So it impacts our ability to take discovery on some

of these issues of primary liability.

THE COURT: All right. Do you have any information,

Mr. DeJong, about whether -- when, if ever, that stay will be

lifted in whole or in part?

MR. DeJONG: What I've been told by the receiver's

lawyer is that they are hopeful of making available to all of

the parties a very substantial database of documents. So in

the near future, which --

THE COURT: In the near future?

MR. DeJONG: They've been telling us for some time.

So I don't have any better information than that. I would hope

it would happen in the next several months. But it's dragged

on for a while, your Honor.

But there hasn't been any discussion, that I'm aware

of, of lifting the stay or any specificity given for any

proposal on timing of -- of lifting the stay. So unless

somebody else has better information than I do, I can't answer

that question.

THE COURT: Thank you. 

Any -- for the defendants, anyone have any additional

information about the stay in the SEC case?

All right. Seems --

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 41 of 47
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MR. WALD: Your Honor, it's Peter Wald. I don't know

that I've got better information than Mr. DeJong has on what is

going to happen or on what time frame.

But I do want to underscore what Mr. DeJong said or

at least implied by his tone of voice, which is that it's -- I

think I speak for everybody on the phone call in saying that

it's extremely frustrating and -- and burdensome not to have

access to the very substantial database of documents that has

been collected in connection with that proceeding by the

receiver.

And I -- given the -- the unquestioned powerful

impact of that document database and ultimately the testimony

from Aequitas insiders on the claims and defenses advanced in

this case, it's just -- it's -- at the end of the day, there

will be a limit to how far we can proceed in our proceeding,

unless and until the parties to this case -- both the

plaintiffs and the defendants, get full access to that

evidence, both documents and depositions.

So I know that that's something your Honor

appreciates. But it's something that when we talk to each

other, it's something that we talk about a lot.

THE COURT: All right. Thank you. That's helpful.

Well, Judge Papak has that case. I reviewed the

docket but not in great detail this morning before getting on

the call.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 42 of 47
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As far as can I tell, there is no pending motion or

any other pending consideration about lifting the stay. It's

in place, and I suppose will continue to be until someone in

that case moves forward with trying to get it lifted.

All right. All right. So -- but where we are right

now, procedurally in the case, I think that covers the issues

that need to be covered. But I don't want to cut off any issue

discussion that anyone believes we should have at this time.

Mr. DeJong, is there anything else we should take up

at this time?

MR. DeJONG: Your Honor, I just want to make sure I

understand. Are you excusing Sidley, Ameritrade, and Integrity

from producing the e-mails that are responsive to your orders

on the protective order motions, pending resolution of an ESI

protocol?

THE COURT: Well, let me -- not necessarily.

Let me state what I understood to be the answers to

the question I asked about that.

Some e-mail has been produced. Not all e-mail has

been produced. The defendants seem to be of the collective

view that additional production of electronically stored

information needs to happen after protocols are agreed upon.

You mentioned a specific example, which are the

e-mails -- correct me if I'm wrong -- internal to Sidley.

Correct?

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 43 of 47
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MR. DeJONG: Documents that Sidley sent to and

received from the investment advisor to the ACLF fund was the

example that I used.

THE COURT: Right.

MR. DeJONG: There are others that would apply

equally on the list of documents. I just pulled that one.

THE COURT: All right. Mr. Brady, what about that?

I think I -- frankly, I'm not sure if I was precise

enough when I asked you my question. But why can't those

e-mails be produced now?

MR. BRADY: Your Honor, our -- our position is that

there are hopeful potential custodians that are in play here,

and that we need to have in discussion -- we need to have a

preliminary decision which custodians -- who the e-mails we

need to be searching in the first place and what search terms

we should be using.

And that conversation with plaintiffs will be far

more productive after -- after there is an ESI protocol in

place.

But, also, you are correct that some of these e-mails

that Mr. DeJong is referencing are indeed among the 200,000, or

so, e-mails that Sidley has already produced.

THE COURT: Some, but not all?

MR. BRADY: Correct.

THE COURT: Well, I will reiterate what I said a

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 44 of 47
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while back during this call about having mentioned late last

fall the prudence of moving forward with talking about ESI

protocols. For whatever reason or reasons, that either got

lost in the briefing shuffle of the various motions to dismiss

and protective order motions. But I want the parties to move

forward on that now, as we've outlined. 

Mr. DeJong, we're going to have to wait until those

protocols get in place. But all defendants -- as I said, once

the protocols are resolved, I will expect electronically stored

information, including e-mails, to be produced promptly.

And that means -- as I said earlier -- among other

things, identifying custodians or potential custodians now is

the thing to start working on. You could always cut back on

the number of custodians, but it seems to me you have enough

information about what the plaintiffs seek and what the claim

is in the case to start identifying those who might be in

possession of responsive documents.

All right. Mr. DeJong, is there anything else for

the plaintiffs?

MR. DeJONG: No, your Honor.

THE COURT: All right. I'll take the defendants in

turn. 

Mr. Wald, anything else for Mr. Deloitte?

MR. WALD: Not for us, your Honor. Thank you.

THE COURT: Thank you.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 45 of 47
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Mr. Ferranti, for EisnerAmper?

MR. FERRANTI: No. Thank you, your Honor.

THE COURT: All right. Mr. Brady, for Sidley?

MR. BRADY: No, your Honor. Thank you.

THE COURT: Mr. Van Der Weele, for Tonkon Torp?

MR. VAN DER WEELE: No, your Honor. Thank you.

THE COURT: Mr. Christakos, for TD Ameritrade?

MR. CHRISTAKOS: Your Honor, I'll just note -- and

this is something I'll just kind of put on the radar of

everyone, particularly the plaintiffs, that we're all going to

work with them the best we can to comply with the Court's order

yesterday. But what we -- what we in effect must not do is try

to find documents responsive to the initial production order

based on the protective order motions for all putative members

of the class who may have been TD Ameritrade customers. 

The way the TD Ameritrade world works, there could be

any number of custodians who had some level of contact with all

of those customers. We're going to do the best we can. And

we'll try to engage in those discussions with plaintiffs'

counsel early, so that we can keep them posted and -- and try

to do this in a sort of rolling production. But it is not a --

I don't want to underestimate the task we've been handed. We

will rise to it. But I do want to note that it's -- we're

going to have to work on this sort of week by week, as best we

can, and try to work that out with plaintiffs.

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 46 of 47
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THE COURT: All right. Thank you. 

And Ms. Reddy, for Integrity?

MS. REDDY: Nothing further, your Honor. Thank you.

THE COURT: Thank you. Thank you, everyone, for

being available this morning or, as the case may be, this

afternoon. I appreciate it very much, and I hope all of you

have a good day. Bye-bye.

MR. DeJONG: Thanks, your Honor. Goodbye.

(Conclusion of proceedings.)

--oOo-- 

I certify, by signing below, that the foregoing is a correct 

stenographic transcript of the oral proceedings had in the 

above-entitled matter this 7th day of August, 2017. A 

transcript without an original signature or conformed signature 

is not certified. I further certify that the transcript fees 

and format comply with those prescribed by the Court and the 

Judicial Conference of the United States. 

 /S/ Amanda M. LeGore 

____________________________________ 

AMANDA M. LeGORE, CSR, RDR, CRR, FCRR, CE 

CSR No. 15-0433 EXP: 3-31-2018 

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Case 3:16-cv-00580-AC Document 255 Filed 08/08/17 Page 47 of 47