UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

DENNIS BLACK, et al., 

 Plaintiffs, CIVIL ACTION NO. 09-cv-13616 

 v. DISTRICT JUDGE ARTHUR J. TARNOW 

 

PENSION BENEFIT GUARANTY MAGISTRATE JUDGE MONA K. MAJZOUB 

CORP., et al., 

Defendants. 

________________________________/ 

 

OPINION AND ORDER GRANTING PLAINTIFFS’ RULE 37 MOTION TO ENFORCE 

COURT ORDER [275] AND DENYING PLAINTIFFS’ MOTION FOR LEAVE TO FILE 

A SUPPLEMENTAL REPLY BRIEF [280] 

 This matter comes before the Court on Plaintiffs’ Rule 37 motion to enforce this Court’s 

August 21, 2013 Order. (Docket no. 275.) Defendant Pension Benefit Guaranty Corporation 

(PBGC) responded to Plaintiffs’ motion (docket no. 278), and Plaintiffs replied to Defendant’s 

response (docket no. 279). Also before the Court is Plaintiffs’ Motion for Leave to File a 

Supplemental Reply Brief in support of their Rule 37 motion. (Docket no. 280.) The motions 

have been referred to the undersigned for consideration. (Docket nos. 276 and 281.) The Court 

has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of 

Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 

636(b)(1)(A). 

I. BACKGROUND 

 The Court previously set forth the relevant facts and procedural history of this matter in 

its August 21, 2013 Order: 

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Plaintiffs, participants in a pension plan formerly maintained by Delphi for 

salaried employees (“Delphi Salaried Plan”), commenced this lawsuit against the 

PBGC and others challenging the termination of the Plan. The Plan was 

terminated in or around July 31, 2009 after Delphi Corporation entered into an 

agreement with the PBGC that placed the Plan under the trusteeship of the PBGC. 

Plaintiffs’ five count Second Amended Complaint alleges violations of ERISA 

(Counts 1, 2, and 4), the Due Process Clause of the Fifth Amendment (Count 3), 

and the Equal Protection Clause of the Fifth Amendment (Count 5). (Docket no. 

145). Counts 1 through 4 of the Second Amended Complaint are asserted against 

Defendant PBGC only. 

 On September 24, 2010, Judge Tarnow held a hearing on two dispositive 

motions filed by Defendant PGBC. In a bench ruling Judge Tarnow denied both 

motions on the grounds that they were premature because the parties had not had 

a chance to engage in discovery. (Docket no. 152, TR at 58:15-16). According to 

the transcript, no further discussion was had concerning the scope of discovery or 

whether discovery should proceed on all claims. 

 Several weeks after the hearing Plaintiffs filed a motion for adoption of a 

scheduling order which was referred to the undersigned. (Docket no. 152). The 

motion asked the Court to interpret Judge Tarnow’s bench ruling in Plaintiffs’ 

favor and adopt a scheduling order setting a deadline for initial disclosures and 

permitting eight months for discovery on Counts 1 through 4 of the Second 

Amended Complaint. (Docket no. 152). Defendant PBGC objected to the motion 

and offered a different interpretation of the bench ruling, requesting a much more 

limited three month discovery period limited to Count 4 only with no initial 

disclosures and limited to determining the completeness of the PBGC’s 

administrative record. Ultimately, the undersigned denied Plaintiffs’ motion in 

March 2011 and entered a scheduling order which allowed three months for 

discovery as to Count 4 only relative to determining the completeness of the 

administrative record. (Docket no. 170). 

 On September 1, 2011 Judge Tarnow ruled that discovery should proceed 

on Counts 1 through 4 of the Second Amended Complaint. (Docket no. 193). He 

further concluded that he had not decided that his review would be limited to the 

administrative record. In addressing the scope of discovery, he stated that his 

initial focus was on Count 4 “and whether termination of the Salaried Plan would 

have been appropriate in July 2009 if ... Defendants were required under 29 

U.S.C. § 1342(c) to file before this Court ‘for a decree adjudicating that the plan 

must be terminated in order to protect the interests of the participants or to avoid 

any unreasonable deterioration of the financial condition of the plan or any 

unreasonable increase in the liability of the fund.’ ” (Docket no. 193 at 4). Judge 

Tarnow stated that a finding by the Court that termination was proper under 29 

U.S.C. § 1342(c) would moot the remainder of the complaint pertaining to PBGC. 

He further stated that he would consider the remaining issues in the complaint if 

he found that termination of the Plan was not supported under 28 U.S.C. 

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§ 1342(c). Citing the broad scope of discovery under Fed. R. Civ. Pro. 26(b), and 

stating that he would conduct a de novo review of the PBGC’s decision to 

terminate the Plan, Judge Tarnow ordered the parties to serve their initial 

disclosures by September 16, 2011 and he set April 30, 2012 as the date by which 

all discovery related to Counts 1 through 4 should be completed. 

 In December 2011 Plaintiffs filed a second motion to compel discovery 

which was referred to the undersigned for determination. (Docket no. 197). In 

the motion Plaintiffs asked the Court to compel responses to their First Requests 

for Production of Documents nos. 1-14 and Second Requests for Production of 

Documents nos. 15-17. During the hearing on this motion the undersigned 

informed the parties that the Court had fully reviewed the parties’ briefs on this 

matter and was familiar with the parties’ arguments and with the objections to 

discovery raised by Defendant. After discussing Judge Tarnow’s reliance on the 

broad scope of discovery under Rule 26(b) and the fact that he had not placed any 

limitations on discovery as it related to Counts 1 through 4 of the Second 

Amended Complaint, the undersigned granted the motion. (Docket nos. 204, 

205). The March 9, 2012 order states that Defendant PBGC must produce full 

and complete responses to Plaintiffs’ First and Second Requests for Production of 

Documents nos. 2 through 17 within ninety days of issuance of the order, or by 

June 9, 2012. [Defendant] filed objections to the March 9, 2012 order. (Docket 

no. 209). Those objections [were denied as moot. (Docket no. 255.)] 

 Almost one year later Plaintiffs filed [a] Rule 37 motion to enforce the 

Court’s March 9, 2012 order. (Docket no. 218). In their motion Plaintiffs state[d] 

that Defendant PGBC [] produced a portion of the responsive documents in its 

possession but [] withheld almost 30,000 documents on the basis of an 

unspecified privilege, along with other key data and documents central to the 

merits of the case. Plaintiffs argue[d] that the time for asserting privilege ha[d] 

long since passed. They ask[ed] the Court to impose sanctions under Rule 37(b) 

in light of Defendant’s disregard of the Court’s orders. They also [sought] an 

order compelling Defendant to produce documents responsive to Document 

Request nos. 12 and 13. 

 

(Docket no. 231 at 1-4.) 

 The Court granted Plaintiffs’ motion in part on August 21, 2013. (Docket no. 231.) The 

August 21, 2013 Order states, in relevant part, that Defendant PBGC must produce on or before 

September 30, 2013 “documents responsive to Request for Production nos. 12 and 13 generated 

subsequent to the Plan’s termination” and “documents withheld on the basis of privilege as 

discussed in th[e] order.” (Id. at 8.) Defendant’s Motion for Reconsideration of the Order was 

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denied on September 5, 2013, and its objections to the Order were overruled on July 21, 2014. 

(Docket nos. 237 and 257.) Defendant then filed a petition for a writ of mandamus with the 

United States Court of Appeals for the Sixth Circuit, which was denied on September 23, 2014. 

(Docket no. 266.) Defendant also moved Judge Tarnow to certify for appeal the July 21, 2014 

Order overruling Defendant’s objections to the August 21, 2013 Order (docket no. 258); Judge 

Tarnow denied this motion as moot on March 30, 2015 (docket no. 271). 

On the discovery motion deadline of August 14, 2015, Plaintiffs filed the instant Rule 37 

motion to enforce the August 21, 2013 Order, alleging that Defendant has refused to produce (1) 

more than 15,000 documents that it withheld on the basis of privilege; and (2) documents related 

to Defendant’s audit of the Plan’s assets, which Plaintiffs assert is responsive to their Request for 

Production (RFP) no. 12. (Docket no. 275.) As relief, Plaintiff seeks production of these 

documents. 

II. DISCUSSION

A. Documents Withheld on the Basis of Privilege 

Defendant argues that it need not produce the 15,000 documents that Plaintiffs seek 

because the parties agreed to exclude them from Plaintiffs’ discovery requests. (Docket no. 278 

at 12-16.) According to Defendant, the alleged agreement was effectuated through 

communications between the parties in January and February of 2013. On January 30, 2013, 

Plaintiffs’ counsel sent a letter to Defendant’s counsel, which states, in relevant part: 

In the spirit of cooperation, Plaintiffs have worked with PBGC to modify the 

discovery schedule numerous times to accommodate the PBGC's repeated 

requests for production extensions. Similarly, you'll recall that, in an effort to 

speed the process along, Plaintiffs made a number of offers to narrow the scope of 

production, some of which the PBGC has taken advantage of (e.g., our proposal 

that the PBGC need not review or produce responsive “archived documents”), and 

some of which the PBGC has ignored (for example, after Plaintiffs explicitly 

agreed that the PBGC need not produce bankruptcy court filings in its 

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productions, the PBGC's very first production consisted largely of just that; 

indeed the PBGC has produced such documents by the thousands). In the same 

vein of cooperation, Plaintiffs wish to make clear that, notwithstanding their right 

to have the PBGC produce the entirety of documents that have been improperly 

withheld, and notwithstanding our position that had the PBGC limited its 

productions to those documents expressly requested rather than producing 

voluminous, irrelevant documents (like the bankruptcy filings) solely to be able to 

claim (as has often happened during our conference calls) that the PBGC has 

produced "hundreds of thousands" of pages of documents, Plaintiffs are willing to 

modify the scope of their request regarding the remaining responsive documents 

in two ways: 

(1) PBGC's production going forward need not include any documents 

created, received or produced by the PBGC prior to August 2008. 

(2) PBGC need not produce any correspondence solely among lawyers in 

its Office of Chief Counsel, or between lawyers in its Office of Chief 

Counsel and its outside counsel. 

Again, just as with the Plaintiffs' previous offers, it is ultimately the 

PBGC's decision whether to accept these modifications or to continue producing 

documents that Plaintiffs have not asked for. However, we would ask that in 

deciding how to proceed the PBGC be mindful of the Court's current Scheduling 

Order, which cuts off the time for discovery motions at the end of March (and 

cuts off discovery at the end of April). The PBGC's plan to finalize its production 

in the middle of April is plainly incompatible with these deadlines, and to the 

extent that these delays could be ameliorated by a modification to the discovery 

parameters, we hope that the PBGC will accept our good faith offer to negotiate 

an appropriate modification.

(Docket no. 275-6 at 3-4 (footnote omitted).) Defendant claims that it accepted Plaintiffs’ offer 

in a February 13, 2013 letter from Defendant’s counsel to Plaintiffs’ counsel: 

PBGC appreciates plaintiffs' offer to narrow the production to exclude documents 

created, received or produced by PBGC prior to August 1, 2008 and to exclude 

correspondence solely among lawyers in its Office of Chief Counsel and its outside 

counsel. We will remove those documents from the privilege log as we work to 

complete it. However, as a practical matter, this offer comes far too late in PBGC's 

review process to have a meaningful impact on the time within which PBGC can 

complete its production.

(Docket no. 275-7 at 3.) Plaintiffs contest Defendant’s assertion that the exchange cited above 

resulted in an agreement, arguing that there was no meeting of the minds and no consideration 

(docket no. 275 at 20); the Court agrees. The cited exchange demonstrates that Plaintiffs offered 

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to modify their discovery requests in exchange for the expedited production of documents. And 

while Defendant accepted Plaintiffs’ proposed modifications, it did not expressly agree to 

accelerate its production, and the Court is not persuaded by Defendant’s allegations that it 

accepted the offer by conduct. Conversely, Defendant argues that Plaintiffs received 

consideration for the agreement because by limiting its production according to Plaintiffs’ offer, 

Plaintiffs did not receive documents that they no longer wanted. (Docket no. 278 at 13-14.) 

Defendant’s argument in this regard belies logic; if Plaintiffs no longer wanted those documents, 

Plaintiffs would not have consistently and continuously sought them throughout the discovery 

period, and this issue would not be before the Court. 

 The lack of an agreement is further evidenced by the pleadings related to the August 21, 

2013 Order, and the Order itself. Plaintiffs filed their Rule 37 motion to enforce this Court’s 

March 9, 2012 Order one week after the exchange cited above. In that motion, Plaintiffs 

mention their January 30, 2013 offer and Defendant’s response, but they continued to seek the 

entire lot of 30,000 documents that were withheld on the basis of privilege. (See docket no. 218 

at 10, 21.) In its response to Plaintiffs’ motion, Defendant notes Plaintiffs’ offer in a footnote, 

but makes no mention of an ensuing agreement and does not dispute the production of any 

documents on the basis of such an agreement. (See docket no. 223 at 19 n.40.) The Court 

addressed Plaintiffs’ motion in its August 21, 2013 Order, in which it noted Plaintiffs’ assertion 

that Defendant had withheld almost 30,000 documents on the basis of an unspecified privilege, 

found that Defendant had waived its right to assert privilege with regard to those documents, and 

ordered Defendant to produce the “documents withheld on the basis of privilege as discussed in 

[the] order.”1

 (Docket no. 231 at 4, 7, 8.) Notably, the Court did not acknowledge the alleged 

 

1

 Defendant seemingly interprets the Order differently; however, Defendant’s interpretation does not supersede that 

of the issuing Court. 

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February 2013 agreement, and it did not reduce the number of documents to be produced in 

accordance with the alleged agreement. 

 Moreover, as Plaintiffs point out, Defendant raised four separate challenges to the August 

21, 2013 Order, but not once did Defendant challenge the Order or the production of any of the 

30,000 documents on the basis of the alleged February 2013 agreement. (See docket no. 275 at 

19.) To raise such an argument over two years later at this juncture is inappropriate. 

Additionally, while the Court declines to do so, one could reasonably construe Defendant’s 

argument as a frivolous last-ditch effort to delay or ultimately avoid the production of these 

documents. Accordingly, the Court holds that the August 21, 2013 Order stands as written. To 

the extent that Defendant has not produced all of the approximately 30,000 documents that it had 

previously withheld on the basis of privilege, it will do so within thirty days of this Opinion and 

Order. Defendant is advised that failure to comply with this Opinion and Order in this regard 

may result in sanctions under Federal Rule of Civil Procedure 37(b)(2)(A). 

B. Documents Related to Defendant’s Audit of the Plan’s Assets 

 Plaintiffs assert that Defendant has withheld documents generated between 2011 and 

2012 that are responsive to Request for Production no. 12 concerning its audit of the Plan’s 

assets, in violation of the August 21, 2013 Order. (Docket no. 275 at 7, 22.) Specifically, the 

documents that Plaintiffs seek in this regard are documents generated by Bazillo, Cobb, and 

Associates (BCA), a contractor employed by Defendant between June 2011 and August 2012 to 

provide asset evaluation services related to the Delphi pension plans.2 (Id. at 24; docket no. 275-

11 at 4.) 

 

2

 Defendant terminated BCA’s service contract for deficient performance in August of 2012 and subsequently 

contracted with KPMG to perform the asset evaluation work. Without conceding its responsiveness to any of 

Plaintiffs’ document requests, Defendant has agreed to produce the final Plan Asset Audit generated by KPMG once 

it is complete. (Docket no. 275 at 23-24; docket no. 275-11 at 4; docket no. 278 at 20.) 

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Plaintiffs’ Request for Production no. 12 asks Defendant to produce “[a]ll documents and 

things received, produced or reviewed by the PBGC since January 1, 2006 related to the PBGC’s 

potential or actual liability for any benefit payments under Delphi’s Pension Plans.” (Docket no. 

275-2 at 11.) Plaintiffs argue that the documents sought are responsive to RFP no. 12 because 

Defendant needs to know the value of the Plan’s assets to determine its liability for benefit 

payments under the Plan. (Docket no. 275 at 22-23.) To support this argument, Plaintiffs cite to 

a report generated by Defendant’s Office of Inspector General in which Defendant’s Assistant 

Inspector General for Audit states that “[t]he value of a plan’s assets is important because it is 

used in calculating retirement benefits. For some plans, increases in the calculated value of plan 

assets at the date of plan termination result in increased benefits for plan participants.” (Id. at 23 

(citing docket no. 275-10 at 4).) Plaintiffs also cite to a November 28, 2014 letter from 

Defendant’s Director to members of Congress regarding the Delphi Pension Plans, in which she 

states that completion of asset evaluation reports “are a necessary prerequisite to issuing final 

benefit determinations.” (Id. at 23 (citing docket no. 275-11 at 5).) Plaintiffs also assert that 

Defendant has been on notice since January of 2013 that Plaintiffs were seeking the documents 

at issue in response to RFP no. 12 and that Defendant had not disputed their responsiveness until 

now, instead asserting that the documents had not yet been created. (Id. at 24-25.) 

 Defendant argues that it should not be required to produce the documents that Plaintiffs 

seek because Plaintiffs’ RFP no. 12 did not state with reasonable particularity a request for 

documents related to Defendant’s audit of the Plan’s assets.3 (Docket no. 278 at 16.) Defendant 

expounds that no reasonable reading of the RFP suggests that it encompasses such documents 

because by its terms, the RFP is directed at documents related to “liability,” and nowhere in the 

 

3

 Requests for production “must describe with reasonable particularity each item or category of items to be 

inspected.” Fed. R. Civ. P. 34(b). 

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RFP do the words “assets,” or “plan asset audit” appear. (Id. at 17-18.) Defendant contends that 

if Plaintiffs’ position – that information related to the Plan’s assets relates to Defendant’s actual 

or potential liability for benefits payments – is adopted, the purpose of the reasonable 

particularity rule would be defeated because “[p]arties like PBGC would not only have to 

produce the specific documents that the request put them on notice that the other party wanted, 

but they would also have to guess, at their peril, everything that the other party might think was 

‘related’ to those documents.” (Id. at 18.) 

 While Defendant’s argument may hold weight in some instances, it is illogical here in 

light of Defendant’s own statements cited by Plaintiffs, supra. If, as Defendant says, the value of 

a plan’s assets and the asset evaluation reports are so “important” and “necessary” to calculating 

benefits and making benefit determinations, then ascertaining that documents concerning the 

audit of the Plan’s assets are indeed responsive to Plaintiffs’ request for documents related to 

Defendant’s liability for benefit payments under the Plan would not require any guesswork; such 

a determination should be automatic. Having previously found in the August 21, 2013 Order 

that information responsive to Request for Production no. 12 that has been received, produced, or 

reviewed by Defendant subsequent to the Plan’s termination is relevant to the claims at issue in 

this case (docket no. 231 at 6), and in currently finding that documents concerning the audit of 

the Plan’s assets are responsive to RFP no. 12, the Court will grant Plaintiffs’ motion in this 

regard and order Defendant to produce those documents within thirty days of this Opinion and 

Order. 

IT IS THEREFORE ORDERED that Plaintiffs’ Rule 37 motion to enforce this Court’s 

August 21, 2013 Order [275] is GRANTED as follows: 

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a. To the extent that Defendant has not produced all of the approximately 30,000 

documents that it had previously withheld on the basis of privilege, it will do so 

within thirty (30) days of this Order. Failure to comply with this Order may result 

in sanctions; and 

b. Defendant will produce all documents in its possession related to an audit of the 

 Plan’s assets as they are responsive to Plaintiffs’ Request for Production no. 12 

 within thirty (30) days of this Order. 

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File a Supplemental 

Reply Brief [280] is DENIED as moot. 

NOTICE TO THE PARTIES 

 Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen 

days from the date of this Order within which to file any written appeal to the District Judge as 

may be permissible under 28 U.S.C. § 636(b)(1). 

Dated: March 11, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE

 I hereby certify that a copy of this Order was served upon counsel of record on this date. 

Dated: March 11, 2016 s/ Lisa C. Bartlett 

 Case Manager

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