MOTION FOR PROTECTIVE ORDER 

Robert C. Weaver, Jr., OSB #801350

E-Mail: rweaver@gsblaw.com 

Gary I. Grenley, OSB #751380 

E-Mail: ggrenley@gsblaw.com 

Paul H. Trinchero, OSB #014397 

E-Mail: ptrinchero@gsblaw.com 

Garvey Schubert Barer 

121 SW Morrison Street, Eleventh Floor 

Portland, Oregon 97204-3141 

Telephone: (503) 228-3939 

Facsimile: (503) 226-0259 

Peter A. Wald (admitted pro hac vice) 

E-Mail: peter.wald@lw.com

Gavin M. Masuda (admitted pro hac vice) 

E-Mail: gavin.masuda@lw.com 

Latham & Watkins LLP 

505 Montgomery Street, Suite 2000 

San Francisco, California 94111 

Telephone: (415) 391-0600 

Attorneys for Defendant Deloitte & Touche LLP 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

LAWRENCE P. CIUFFITELLI, for himself 

and as Trustee of CIUFFITELLI 

REVOCABLE TRUST, et al., 

Plaintiffs, 

v. 

DELOITTE & TOUCHE LLP; 

EISNERAMPER LLP; SIDLEY AUSTIN

LLP; TONKON TORP LLP; TD

AMERITRADE, INC.; and INTEGRITY 

BANK & TRUST, 

Defendants.

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

DEFENDANT DELOITTE & 

TOUCHE LLP’S MOTION FOR 

PROTECTIVE ORDER 

Oral Argument Requested 

Case 3:16-cv-00580-AC Document 139 Filed 09/29/16 Page 1 of 13
MOTION FOR PROTECTIVE ORDER 

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ...............................................................................................................1

II. PROCEDURAL HISTORY .................................................................................................3

III. ARGUMENT .......................................................................................................................4

A. The Requests Would Impose Substantial Burden And Expense On 

Deloitte .....................................................................................................................5

B. The Discovery Plaintiffs Seek Is Neither Relevant Nor Proportional To 

The Needs Of This Case ..........................................................................................6

C. The Requested Order Will Promote The Just, Speedy, And Inexpensive 

Determination Of This Action .................................................................................8

IV. CONCLUSION ..................................................................................................................10

 

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TABLE OF AUTHORITIES 

 Page(s) 

CASES 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...............................................................................................................6, 8 

Ministerio Roca Solida v. U.S. Dept. of Fish and Wildlife, 

288 F.R.D. 500 (D. Nev. Jan 14, 2013) .....................................................................................9 

O’Neal v. Or. DOJ, Div. of Child Support, 

2015 U.S. Dist. LEXIS 120378 (D. Or. Sept. 9, 2015)..............................................................6 

Rutman Wine Co. v. E. & J. Gallo Winery, 

829 F.2d 729 (9th Cir. 1987) .....................................................................................................6 

Wenger v. Monroe, 

282 F.3d 1068 (9th Cir. 2002) ...............................................................................................6, 7 

STATUTES 

ORS 59.055 ......................................................................................................................................3 

ORS 59.115(1)(b) ............................................................................................................................3 

ORS 59.115(3) .............................................................................................................................7, 9 

ORS 59.135(2) .................................................................................................................................3 

RULES 

Fed. R. Civ. P. 1 ...........................................................................................................................8, 9 

Fed. R. Civ. P. 8 .......................................................................................................................6, 7, 8 

Fed. R. Civ. P. 12 .............................................................................................................................6 

Fed. R. Civ. P. 12(b)(6)....................................................................................................................6 

Fed. R. Civ. P. 26(b)(1)............................................................................................................6, 7, 8 

Fed. R. Civ. P. 26(c) ........................................................................................................................4 

Fed. R. Civ. P. 26(c)(1) ....................................................................................................................4 

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MOTION FOR PROTECTIVE ORDER 

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LR 7-1 AND 7-2(b) CERTIFICATION 

 Undersigned counsel certifies that the parties made a good faith effort through personal 

conferences to resolve the dispute and have been unable to do so, and that the memorandum in 

support of this Motion complies with the LCR 26-3(b)(1) word limit. 

MOTION 

 Pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure, Defendant Deloitte & 

Touche LLP (“Deloitte”) hereby moves the Court for a protective order against Plaintiffs’ First 

Set of Requests for Production. 

LEGAL MEMORANDUM 

I. INTRODUCTION 

 On August 26, 2016, Plaintiffs served Deloitte with 36 staggeringly broad discovery 

requests that cumulatively demand every document in Deloitte’s possession related to 

“Aequitas”1

 (the “Requests”). Compliance with the Requests would require hundreds of hours, 

and hundreds of thousands of dollars, when it is far from clear that Plaintiffs’ claim against 

Deloitte will be allowed to proceed. Good cause exists to protect Deloitte from these Requests 

until, at minimum, this Court rules on Deloitte’s pending Motion to Dismiss (“Motion” or 

“Motion to Dismiss”).2

 

1

 As explained in Defendants’ Joint Motion to Dismiss, Plaintiffs refer to “Aequitas” rather than 

the individual entities that sold securities to them. But the First Amended Class Action 

Complaint (Dkt. 57) (“Complaint” or “Compl.”) admits that each Aequitas entity and security is 

functionally and legally distinct. See Compl. ¶¶ 21-25 (describing the legally distinct “Aequitas 

Entities”); Compl. ¶¶ 31-63 (admitting that each “Aequitas Security” was sold by different 

entities through different offering documents). 

2

 In the parties’ Joint Report of Rule 26(f) Conference (Dkt. 94), Defendants proposed phased 

discovery that would involve meaningful productions from all parties on class certification issues 

while Defendants’ Motions to Dismiss are pending. See infra, Section II. The order requested 

herein aligns with this proposal because it would defer “merits” discovery until this Court 

determines that Plaintiffs are entitled to proceed with their claims. 

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First, the Requests will unquestionably subject Deloitte to enormous burden and expense. 

The Requests seek, among other things, all documents related to any professional service 

Deloitte performed for any “Aequitas Company” (defined to include 88 entities, only six of 

which issued securities that are challenged in this case), as well as all Deloitte communications 

with Aequitas personnel, regulators, the Defendants, and any purchaser of “Aequitas” securities. 

It is likely that millions of pages of documents are responsive to the Requests; identifying, 

reviewing, and producing these documents will require massive efforts. 

Second, the Complaint does not justify imposing this burden on Deloitte. As Deloitte’s 

pending Motion to Dismiss explains, the Complaint fails—as a matter of law—to state a claim 

against Deloitte because it fails to allege any actionable connection between Deloitte and the 

securities transactions at issue. Moreover, even if the Complaint did state a claim, at most

Plaintiffs allege that Deloitte “participated or materially aided” the transactions at issue by 

performing annual financial statement audits for six of the 88 identified “Aequitas Companies.” 

The Requests—which seek documents relating to all 88 “Aequitas Companies”—are a clear 

fishing expedition by Plaintiffs. 

Third, the requested order will promote the just, speedy, and inexpensive resolution of 

this action. In addition to saving Deloitte from the substantial expense of complying, the 

requested order will promote judicial economy because it will defer the Requests until this Court 

has provided clarity as to the sufficiency and scope of Plaintiffs’ claim. No prejudice to 

Plaintiffs or delay of this matter would result; the Court is taking Deloitte’s Motion under 

advisement in less than two weeks, and no discovery deadline been set. Indeed, Plaintiffs agree 

that no deadline should be set until after this Court rules on Defendants’ Motions to Dismiss. 

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There is no reason to permit the unbounded and unjustified discovery that Plaintiffs seek to 

impose at this stage of the litigation. 

II. PROCEDURAL HISTORY 

 Plaintiffs are eleven sophisticated investors who purchased various securities from 

Aequitas entities over a six-year period. Plaintiffs allege that “Aequitas” committed primary 

violations of Oregon securities law by selling unregistered securities in violation of ORS 59.055, 

and by making false or misleading statements in connection with its sales of securities in 

violation of ORS 59.135(2) and ORS 59.115(1)(b). Compl. ¶ 190(a)-(c); see also Defs.’ Joint 

Mot. to Dismiss (Dkt. 74), at 9-10. Deloitte is not alleged to have committed any primary 

violation of Oregon securities law. Rather, it is alleged to have “participated or materially aided” 

Aequitas’ allegedly illegal sales by performing annual financial statement audits for six Aequitas 

entities that issued securities. See Compl. ¶¶ 15-18, 190; Deloitte’s Mot. to Dismiss (Dkt. 85), at 

4 (identifying six entities and dates of Deloitte’s 2013 and 2014 audit opinions). 

 As shown in Defendants’ Joint Motion to Dismiss and Deloitte’s Individual Motion to 

Dismiss, the Complaint fails to state a claim against Deloitte. Plaintiffs have not alleged, and 

cannot allege that Deloitte had any actionable connection to the transactions in which Plaintiffs 

purchased their securities. See, e.g., Deloitte’s Mot. to Dismiss (Dkt. 85), at 10-20. As 

discussed more fully in Deloitte’s Motion, Plaintiffs have not alleged that Deloitte’s audit report 

on any Aequitas entity was included in the Private Placement Memoranda (“PPMs”) through 

which these securities were sold—let alone, that Deloitte consented to the inclusion of its report 

in any such PPM. Id. at 13. 

 On June 30, 2016, the parties held a Rule 26(f) conference. The parties agreed that 

discovery should be phased, but could not agree on how it should be phased. Plaintiffs sought 

immediately to take substantive discovery regarding all “services Defendants provided to 

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Aequitas.” See Joint Report of Rule 26(f) Conference (Dkt. 94), at 2-3. Deloitte rejected this 

proposal because it would subject Deloitte to enormous expense despite Plaintiffs’ failure to state 

a claim against Deloitte. By way of compromise, Defendants proposed that the parties engage in 

phased discovery, beginning with a first phase directed towards class certification. See id. at 6-7. 

Each signing Defendant committed to produce meaningful categories of documents; Deloitte 

committed to produce all documents “pertaining to the named Plaintiffs’ purchases” identified in 

the Complaint. Id. 

 Rather than await this Court’s scheduling order, Plaintiffs proceeded to serve their First 

Set of Requests for Production of Documents on August 26, 2016. See Declaration of Gavin M. 

Masuda in Support of Deloitte’s Mot. for Protective Order (“Masuda Decl.”) Ex. 1. Deloitte 

requested that Plaintiffs defer Deloitte’s response obligations until, at minimum, this Court issues 

a scheduling order. Masuda Decl. ¶ 4. Deloitte also suggested that instead of filing discovery 

motions, the parties should jointly file an updated Report of Rule 26(f) Conference regarding 

their proposals for phased discovery. Masuda Decl. ¶ 4. Plaintiffs refused, informing Deloitte 

that if it did not move the Court for a protective order, Plaintiffs would file a motion to compel. 

Masuda Decl. ¶ 4, Ex. 2. 

III. ARGUMENT 

Under Rule 26(c) of the Federal Rules of Civil Procedure, this Court “may, for good 

cause, issue an order to protect a party . . . from annoyance, embarrassment, oppression, or undue 

burden or expense” caused by disclosure or discovery. See Fed. R. Civ. P. 26(c)(1). Among 

other things, this Court may “forbid[ ] the disclosure or discovery” or “limit[ ] the scope of 

disclosure or discovery to certain matters.” Id. Good cause exists to preclude the discovery 

Plaintiffs seek until (at minimum) this Court decides Deloitte’s pending Motion to Dismiss. 

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A. The Requests Would Impose Substantial Burden And Expense On Deloitte 

 Propounded as 36 separate requests, the Requests cumulatively seek every document in 

Deloitte’s possession, custody or control related to “any Aequitas Company,” which is defined to 

include 88 separate legal entities.3 See Requests, at 7-10. These Requests can be generalized 

into two categories. Requests 1-13 and 16-19 seek all work papers and documents related to any 

professional service Deloitte performed for “any Aequitas Company.” Among other things, 

these Requests seek: (i) “all documents concerning” Deloitte’s report on the 2013 and 2014 

financial statements of “any Aequitas Company” (Request No. 6); (ii) “all work papers or other 

documents” related to any other audits or engagements performed for any other “Aequitas 

Company” (Request Nos. 6-13); and (iii) all documents related to any “investigation, audit 

procedures or other analysis performed” after May 29, 2015 (Request No. 19). Request Nos. 14-

15, 20-30, 32, and 34 seek all communications between Deloitte and Aequitas, the other 

Defendants in this case, any state or federal regulator, and any purchaser of any “Aequitas 

Security.” Most broadly, Request No. 26 seeks “[a]ll documents comprising, evidencing, or 

reflecting any communications between [Deloitte] and any Aequitas Company,” its officers, 

employees or agents.4

 

 There can be no reasonable dispute that these Requests would impose an enormous 

burden on Deloitte. Deloitte’s work papers for its year-end 2013 and 2014 audits alone (i.e., 

work papers related to the only conduct alleged to be actionable in this case) are comprised of 

 

3

 Plaintiffs define “ACF Consolidated Audit Entities” to include 30 entities. See Requests, at 7. 

They define “Aequitas Companies” to include 58 companies plus “[e]ach of the ACF 

Consolidated Audit Entities.” See Requests, at 7-9. As discussed in Deloitte’s Motion to 

Dismiss, “[o]f the many Aequitas entities, only six are alleged to have issued securities that 

Plaintiffs purchased.” Deloitte’s Mot. to Dismiss (Dkt. 85), at 3. 

4

 Request No. 34 is virtually identical to Request No. 26, seeking “[a]ll documents reflecting any 

communications between You and any employee or officer of any Aequitas Company.” 

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thousands of work papers. Masuda Decl. ¶ 3. Even worse, the Requests—because they seek all 

“other documents” and communications—will require Deloitte to search the files of every 

Deloitte engagement team member. Outside counsel would need to interview dozens of Deloitte 

personnel, identify and collect potentially responsive documents and emails, and review those 

documents and emails for responsiveness and privilege. These efforts will require hundreds of 

hours of work, resulting in hundreds of thousands of dollars in legal and technical fees. Masuda 

Decl. ¶ 3. 

B. The Discovery Plaintiffs Seek Is Neither Relevant Nor Proportional To The 

Needs Of This Case 

 Under amended Rule 26(b)(1), discovery must be “relevant to any party’s claim or 

defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). 

The Requests satisfy neither criteria; Plaintiffs have failed to state a claim against Deloitte, and 

even if they had, the Requests seek documents far beyond the claim alleged. 

 First, the Complaint fails—as a matter of law—to state a claim against Deloitte. As the 

United States Supreme Court has held, when a “complaint is deficient under Rule 8, [plaintiff] is 

not entitled to discovery, cabined or otherwise.” Ashcroft v. Iqbal, 556 U.S. 662, 685-86 (2009). 

Accordingly, courts in the Ninth Circuit regularly stay or limit discovery while a Rule 12(b)(6) 

motion to dismiss is pending. See Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002) 

(affirming grant of protective order staying discovery pending resolution of motion to dismiss for 

failure to state a claim); O’Neal v. Or. DOJ, Div. of Child Support, 2015 U.S. Dist. LEXIS 

120378, at *7 (D. Or. Sept. 9, 2015) (staying discovery “until . . . the court resolves in Plaintiff's 

favor any Rule 12 motion on any amended complaint”). Indeed, the Ninth Circuit has held that 

“the purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal sufficiency of 

complaints without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo 

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Winery, 829 F.2d 729, 738 (9th Cir. 1987) (holding that “it is sounder practice to determine 

whether there is any reasonable likelihood that plaintiffs can construct a claim before forcing the 

parties to undergo the expense of discovery.”). 

 As Deloitte’s Motion to Dismiss explains, the Complaint is deficient under Rule 8 

because it fails adequately to allege that Deloitte “participated [in] or materially aided” the sales 

to Plaintiffs. See Deloitte’s Mot. to Dismiss (Dkt. 85), at 10-20. Specifically, Plaintiffs do not 

allege that Deloitte’s audit reports were included in the PPMs through which the Aequitas 

securities at issue in this case were sold to them, let alone that Deloitte consented to the inclusion 

of its reports in those PPMs. See Deloitte’s Mot. to Dismiss (Dkt. 85), at 13. In fact, Plaintiffs 

concede that Deloitte had no connection to the sales at issue in this case—arguing (wrongly) that 

“Plaintiffs are not required to ‘connect’ their purchases to Deloitte.” Pls.’ Opp. to Deloitte’s 

Mot. to Dismiss (Dkt. 122), at 15. Having failed to connect any professional service performed 

by Deloitte to the sales at issue in this case, Plaintiffs are not entitled to the burdensome 

discovery they seek. See Wenger, 282 F.3d at 1077.

 Second, even if the Complaint were sufficient under Rule 8, the Requests seek documents 

that far exceeding the claim alleged. Plaintiffs allege that Deloitte is liable under ORS 59.115(3) 

because—and only because—it audited the 2013 and 2014 financial statements of six Aequitas 

entities that issued securities purchased by Plaintiffs, and was identified in certain PPMs as 

“Aequitas’” auditor. See Compl. ¶¶ 15-18, 190; Deloitte’s Mot. to Dismiss (Dkt. 85), at 4. Yet, 

Plaintiffs inexplicably seek all documents and communications related to “any service” Deloitte 

performed for “any Aequitas Company.” Supra, Section III.A. Even if Deloitte performed 

services other than the 2013 and 2014 audits referenced in the Complaint,5

 those services are of 

 

5

 Deloitte would need to investigate whether any such services occurred. 

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no relevance to Plaintiff’s claim, and discovery relating to those services would be severely 

disproportional to the needs of this case. See Fed. R. Civ. P. 26(b)(1). 

 Similarly, Plaintiffs disclaim any need to establish that Deloitte’s audits failed to comply 

with professional standards. See Pls.’ Opp. to Deloitte’s Mot. to Dismiss (Dkt. 122), at 6 (“[T]he 

sole element of plaintiffs’ claim against Deloitte is that Deloitte participated or aided in 

Aequitas’ unlawful sales.”). But despite this disclaimer, the Requests seek documents that are 

relevant only to this issue. E.g., Request Nos. 5 (documents related to training of auditors); 9-10 

(all documents related to certain testing required under professional standards); 23-24 

(documents and communications Deloitte sent to or received from regulators regarding any 

services performed for any Aequitas Company). These documents are clearly irrelevant to 

Plaintiffs’ claim, even if that claim were to survive Deloitte’s Motion. 

 If Plaintiffs wished to assert other theories for Deloitte’s liability, they should have 

amended their Complaint long ago.6

 Having failed to state a claim against Deloitte, Plaintiffs’ 

discovery should be disallowed. See, e.g., Iqbal, 556 U.S. at 685-86 (when a “complaint is 

deficient under Rule 8, [plaintiff] is not entitled to discovery, cabined or otherwise.”). This 

Court should protect Deloitte from the Requests until its Motion to Dismiss has been decided, 

and it has been determined whether Plaintiffs will be allowed to proceed. 

C. The Requested Order Will Promote The Just, Speedy, And Inexpensive 

Determination Of This Action 

 In addition to protecting Deloitte from unduly burdensome discovery, the requested order 

will promote the “just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1 

 

6

 As certified in Deloitte’s Motion to Dismiss, Deloitte conferred with Plaintiffs prior to filing its 

Motion and informed Plaintiffs of the Complaint’s deficiencies. Plaintiffs elected not to amend 

their Complaint. See Deloitte’s Mot. to Dismiss (Dkt. 85), at 5. Thus, the Complaint reflects 

Plaintiffs’ “best” articulation of the basis on which Deloitte should be held liable. 

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(the Federal Rules should be “construed . . . to secure the just, speedy, and inexpensive 

determination of every action and proceeding”); Ministerio Roca Solida v. U.S. Dept. of Fish and 

Wildlife, 288 F.R.D. 500, 504 (D. Nev. Jan 14, 2013) (collecting cases staying discovery pending 

dispositive motions and observing that Federal Rule 1 should govern the determination of 

whether to stay discovery). As discussed above, the requested order will save Deloitte from 

substantial (and undue) burden and expense. Supra, Section III.B. In addition, the requested 

order will promote judicial economy. As the briefing on Deloitte’s Motion to Dismiss 

demonstrates, the parties have widely different views regarding the reach of participant liability 

under ORS 59.115(3). Plaintiffs’ view is that Deloitte may be held liable even absent 

allegations of a “connection” between Deloitte’s services and the securities transactions at issue. 

See Pls.’ Opp. to Deloitte’s Mot. to Dismiss (Dkt. 122), at 15. Deloitte disagrees with Plaintiffs’ 

stated view and accordingly seeks protection from the Requests. Until the Court resolves this 

issue, disputes like this are sure to ensue. 7

 Meanwhile, the requested order will not prejudice Plaintiffs or delay the determination of 

this action. Plaintiffs waited more than two months after the parties’ Rule 26(f) Conference to 

serve the Requests on Deloitte, two additional weeks to serve nearly identical requests on 

EisnerAmper, and nearly three months to serve similar requests on Tonkon and Sidley. Supra, 

Section II. No discovery deadlines have been set, and Plaintiffs agree that “it is not advisable to 

set a discovery cut-off until the pending motions to dismiss are resolved.” See Joint Report of 

Rule 26(f) Conference (Dkt. 94), at 3. Indeed, even when the motions to dismiss are resolved, 

the parties may still be precluded from obtaining needed discovery from the SEC Receiver, who 

 

7

 Since serving Deloitte with the Requests, Plaintiffs have served Defendants EisnerAmper LLP 

(“EisnerAmper”), Tonkon Torp LLP (“Tonkon”), and Sidley Austin LLP (“Sidley”) with equally 

broad requests for the production of documents. These Defendants are likely to have objections 

that are identical or similar to Deloitte’s. 

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has not indicated when such discovery will be available. See id. at 2 (stating parties’ agreement 

that discovery from SEC Receiver is necessary). Once this Court resolves Defendants’ Motions 

to Dismiss, Plaintiffs will have ample time to seek relevant and proportional discovery from 

Deloitte (and the other Defendants) if any claims remain. 

IV. CONCLUSION 

 For the foregoing reasons, Deloitte respectfully requests that this Court protect Deloitte 

from responding to the Requests until, at minimum, this Court rules on Deloitte’s pending 

Motion to Dismiss. 

Dated: September 29, 2016 LATHAM & WATKINS LLP 

By: /s/ Peter A. Wald 

Peter A. Wald (admitted pro hac vice) 

Gavin M. Masuda (admitted pro hac vice) 

505 Montgomery Street, Suite 2000 

San Francisco, CA 94111-6538 

Telephone: (415) 391-0600 

Email: peter.wald@lw.com 

 gavin.masuda@lw.com 

 –And– 

Robert C. Weaver, Jr., OSB No. 801350 

Gary I. Grenley, OSB No. 751380 

Paul H. Trinchero, OSB No. 014397 

121 SW Morrison Street, 11th Floor 

Portland, OR 97204 

Telephone: (503) 228-3939 

Facsimile: (503) 226-0259 

Email: rweaver@gsblaw.com 

 ggrenley@gsblaw.com 

 ptrinchero@gsblaw.com 

Attorneys for Defendant Deloitte & Touche LLP 

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