Roger Krueger, et al., Plaintiffs, v. Ameriprise Financial, Inc., LLC, et al., Defendants CIVIL NO. 11–2781 (SRN/JSM) Signed August 15, 2013 Mayerson, Janie S., United States Magistrate Judge ORDER *1 The above matter came on before the undersigned upon plaintiffs' Motion to Compel [Docket No. 90]. Michael A. Wolff, Esq., Troy A. Doles, Esq. and Thomas W. Pahl, Esq. appeared on behalf of plaintiffs. Stephen P. Lucke, Esq., Amy J. Longo, Esq., and Benjamin G. Bradshaw, Esq. appeared on behalf of defendants. The Court, being duly advised in the premises, upon all of the files, records, and proceedings herein, now makes and enters the following Order. IT IS HEREBY ORDERED: Plaintiff's Motion to Compel [Docket No. 90] is GRANTED in part and DENIED in part as follows: 1. Plaintiffs' Motion to Compel is GRANTED in part and DENIED in part as set forth in the Memorandum below. 2. Regarding the timing of defendants' production of the documents covered by this Order, the parties shall meet and confer to develop a schedule for the production of these documents, and a proposal for the extension of the various deadlines set forth in the operative pretrial scheduling order, and shall submit to the Court on or before noon on August 26, 2013 their proposed schedule and amendments to the pretrial scheduling order. To the extent the parties cannot agree on a schedule for the production of the documents governed by this Order and a new scheduling order, they shall each submit to the Court on or before noon on August 26, 2013, their own proposals, along with a letter, no more than three pages in length, setting forth why their proposal should be adopted and the other party's proposal should be rejected. The Court will take up the proposed schedule at the status conference on August 26, 2013 at 2:00 p.m. MEMORANDUM I. PLAINTIFFS' MOTION TO MODIFY PROTECTIVE ORDER[1] At the hearing, the Court denied plaintiffs' motion to categorically remove the “Attorney's Eyes Only” (“AEO”) designation from the Protective Order. First, the Court concluded that the few mistakes made by defendants (hereinafter “Ameriprise”)—i.e., marking documents AEO or Confidential when they were in the public domain—did not warrant the removal of the AEO designation all together as a sanction. Second, the reason Ameriprise marked so many documents AEO appeared to be driven by its desire to prevent third parties (i.e., competitors) from having access to competitively sensitive information through paragraph 6(f) of the Protective Order, which allowed access to documents marked Confidential to any person whose deposition has been scheduled or had been identified as a witness who may testify at any hearing or deposition. Therefore, to address this anomaly—which prevented the plaintiffs from having access to documents that bore on their case—the Court modified the Protective Order to create three levels of protection: Confidential Information, Confidential—Parties' Eyes Only Information, and Confidential—Attorneys' Eyes Only Information. Amended Protective Order [Docket No. 114]: II. PLAINTIFFS' MOTION TO COMPEL – ISSUES RULED UPON AT HEARING OR OTHERWISE RESOLVED A. Definition of Plan Sponsor or “Ameriprise” *2 At the hearing, the Court overruled Ameriprise's effort to limit the definition of “Ameriprise” to itself and determined that the definition will be as set forth in Plaintiff's First Set of Interrogatories and Requests for Production to Defendants: “Plan Sponsor” or “Ameriprise” means Ameriprise Financial, Inc. and all of its subsidiaries, divisions, affiliates, predecessors or successors, all entities with which it has merged, and all present and former officers, directors, employees, representatives, agents, and all other persons acting for and on its behalf. Declaration of Troy A. Doles in Support of Memorandum in Support of Motion to Compel (“Doles Decl.”) [Docket No. 93], Exs. 14, 15. B. Interrogatory No. 7: Identification of Plan Investment Options Offered in the Brokerage Window Interrogatory No. 7 asked Ameriprise to “[i]dentify and describe in detail the options available to Plan participants through the brokerage window, including how the options changed over time. Identify all Documents relating thereto.” Plaintiffs sought documents reflecting the different options offered over the course of several years. While plaintiffs had obtained such information from Charles Schwab from 2011 to the present, they sought pre–2011 information from Ameriprise. At the hearing, the Court ruled that this interrogatory shall be answered by Ameriprise with the production of documents that show the options available to Plan participants through the brokerage window for the period of time that Ameriprise administered the Plan, commencing in (starting on October 1, 2005) through the time Schwab began administering the Plan. C. Document Request No. 72: Section 15(c) Material Request No. 72 sought: “Form 15(c) for all mutual funds in the Plan for each year and related documents including memoranda or minutes discussing the Form 15(c) for all years.”[2] During the hearing, plaintiffs clarified that they only wanted the forms and not the “related documents” at this time. Tr. 122. While Ameriprise claimed it did not have these documents, plaintiffs asserted that Ameriprise possessed these forms because they are generated by Ameriprise Mutual Fund, which is a subsidiary or affiliate of Ameriprise Financial, Inc. The Court granted plaintiffs' motion to compel as to Request No. 72 to the extent that plaintiffs are entitled to the Form 15(c) reports generated by third parties for Ameriprise, its affiliates or subsidiaries, having to do with the reasonableness of the fees charged. This production will cover the time period from October 1, 2005, until the production date for the period of time in which these forms were prepared with respect to the Ameriprise Mutual Fund. Plaintiffs are not entitled to “related documents” at this time. Plaintiffs may revisit their request for related documents after they get the Form 15(c) reports, to the extent that plaintiffs can set forth specifically the related documents they seek. D. Documents Identified in Defendants' Initial Disclosures *3 Request No. 1 sought “[a]ny and all Documents identified in Defendants' initial disclosures that have not already been produced.” At the hearing, the Court ordered Ameriprise to produce all documents identified in defendants' initial disclosures within three weeks of the hearing. Tr. 62, 65. E. Interrogatory No. 8: Discovery regarding Benefits to Ameriprise as a Result of the Plan's Selection of Affiliated Service Providers The parties represented that they have resolved plaintiffs' motion to compel as it related to the substance of Interrogatory No. 8. See Pls.' April 24, 2013 Letter to Court,[3] p. 16. The issue of supplementation of discovery as it relates to Interrogatory No. 8 is addressed below. F. Document Request No. 21 : Part 1 and Part 2 of Defendants' Form ADVs that were Operative from 2005 to the Present. Plaintiffs' motion to compel as it relates to Request No. 21 was denied as moot, as the parties notified the Court via a March 20, 2013 letter that they reached an agreement as to this request. III. PLAINTIFFS' MOTION TO COMPEL—UNRESOLVED ISSUES A. Electronically Stored Information (“ESI”) Based on the stipulation of the parties, on January 9, 2013, this Court entered an Order regarding the discovery of electronically stored information (“ESI”). See Docket No. 77. This Order required the parties to meet and confer to reach an agreement or define an impasse regarding key custodians, data locations, e-mail storage locations and other systems containing potentially relevant ESI, the preservation and collection of ESI, metadata, and search terms. Id. In their motion, plaintiffs complained that Ameriprise failed to describe the locations of its data and its other “other systems,” including those for their identified custodians; refused to include as custodians in-house counsel who attended fiduciary meetings; failed to identify those subsidiaries and business units that interact or deal with the Ameriprise Plan; only identified the “Benefits” shared drive as a location with useful information; failed to provide any information regarding ESI that exists or may exist prior to October 2005, except email and other ESI on the computer systems of the proposed custodians; refused to provide an electronic index of documents stored at Iron Mountain; and failed to identify “accessible” and “nonaccessible” ESI. See Memorandum in Support of Plaintiffs' Motion to Compel (“Pls.' Mem.”) [Docket No. 92], p. 9. Plaintiffs sought an order requiring Ameriprise to comply with the ESI Order. Id., p. 13. Ameriprise responded that it had provided plaintiffs with sufficient information regarding its data systems and locations; descriptions of Ameriprise Employees' Individual Network Space; descriptions of shared drives, including the “Benefits Department” shared drives that would be searched for responsive information; a description of Ameriprise's email systems; the names and titles of present proposed custodians; organizational charts; a description of the company's email storage and retained emails; information regarding Ameriprise's back-up policies and their retention of former employees' emails; Ameriprise and American Express's retention policies; an archive of hard copy documents; and a contact employee knowledgeable about Ameriprise's email systems. See Defendants' Memorandum in Opposition to Plaintiffs' Motion to Compel [Docket No. 104] (“Defs.' Mem.”), pp. 5–7. *4 Plaintiffs replied that Ameriprise's compliance with the ESI order was incomplete in that it only identified one relevant group shared drives; it failed to identify computer hard drives, desktop computers and laptops (except for the identified custodians); did not identify mobile or handheld devices; failed to identify third-party storage systems; only offered to produce custodial saved email dating back to September 2001; failed to describe the data locations or other systems that custodians regularly accessed (relevant to the foundation of these proposed custodians); failed to explain the availability of ESI dating back to 2001 that may be contained in their proposed custodians' hard drives or how this data is inaccessible; and failed to identify sources containing potentially responsive information it is not producing. See Reply in Support of Plaintiffs' Motion to Compel [Docket No. 109] (“Pls.' Reply”), pp. 3–4. During the February 21, 2013 hearing, the Court ordered the parties to do the following over a period of five weeks, with respect to the outstanding issues regarding ESI: Ameriprise must complete the production of all information that it disclosed within its Rule 26(a)(1) disclosures; Ameriprise must complete its interview of potentially relevant custodians and business units identified by Ameriprise and as agreed upon by the parties; Ameriprise must provide to plaintiffs the names of those custodians and business units that Ameriprise does not agree to interview and search for responsive ESI; the parties would hold a robust meet and confer about their disagreement as to those custodians and business units that Ameriprise was not willing to search for responsive ESI; and the parties would work to develop a list of search terms to use to obtain responsive information from the agreed upon sources of ESI. At the end of the five week period the parties were directed to provide to the Court a written explanation indicating whether an agreement has been reached on the custodians, the business units and the sources to be searched, along with the search terms to be used to search for responsive ESI, or whether an impasse has been reached on any of these issues. Tr. 65–68. Having received no report from the parties on the status of the ESI dispute, the Court inquired of the parties during the April 17, 2013 hearing regarding their ESI endeavors. The parties indicated that impasse had been reached on the ESI sources and custodians to be searched (specifically from American Express), and the ESI search terms. See April 17, 2013 Hearing Transcript (“Tr.2”) [Docket No. 127], 37–57. The parties were instructed to provide the Court with simultaneous initial and responsive letter briefs on the remaining outstanding issues. Id., 75. 1. Sources of Relevant Information a. American Express According to plaintiffs, Ameriprise has failed to address their obligation to produce responsive documents in their control but in the possession of American Express. See Pls.' May 1, 2013 Letter, p. 3. Plaintiffs maintained that these documents are in Ameriprise's control because the Separation Agreement between the parties allows Ameriprise to obtain such documents from American Express. Id. Ameriprise argued that American Express is only required to produce those documents under the Separation Agreement that American Express determines Ameriprise reasonably needs, and the agreement does not provide a means for plaintiffs to obtain unfettered discovery from American Express. See Defs.' May 1, 2013, p. 2. Ameriprise represented that plaintiffs had subpoenaed documents from American Express and American Express has already agreed to make a broad production in response to plaintiffs' Rule 45 subpoena. Id. What is within Ameriprise's possession, custody or control as it relates to documents that American Express possesses is governed by the Separation and Distribution Agreement between American Express and Ameriprise, which provides: *5 SECTION 6.01. Agreement for Exchange of Information. (a) Each of AXP and Ameriprise, on behalf of its respective Group, agrees to provide, or cause to be provided, to the other Party and its auditors, at any time before, on or after the Distribution Date, as soon as reasonably practicable after written request therefor from such other Party, any Information in the possession or under the control of such respective Group (including access to such Group's accountants, personnel and facilities) that the requesting Party reasonably needs ... for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or other similar requirements ...; provided, however, that in the event that any Party reasonably determines that any such provision of Information could be commercially detrimental to such Party or any member of its Group, violate any Law or agreement to which such Party or member of its Group is a party, or waive any attorney–client privilege applicable to such Party or member of its Group, the Parties shall provide any such Information and the Parties shall take all reasonable measures to comply with the obligations pursuant to this Section 6.0l(a) in a manner that mitigates any such harm or consequence to the extent practicable. AXP and Ameriprise intend that any transfer of Information that would otherwise be within the attorney–client privilege shall not operate as a waiver of any potentially applicable privilege. See Pls.' April 24, 2013 Ltr., Ex. 1 (AMER_KR2_000033682) (emphasis added). The only basis for arguing that Ameriprise has control over the American Express documents is the Separation Agreement, and under this Agreement, American Express is obligated to turn over what Ameriprise requests only if American Express determines that Ameriprise reasonably needs the documents for litigation. At best, the Agreement permits Ameriprise to ask American Express to turn over documents related to this litigation, but the Agreement does not require American Express to produce anything much less any and all documents that plaintiffs seek. Thus, the Agreement does not establish that American Express's documents are within the possession, custody or control of Ameriprise. Further, plaintiffs have subpoenaed what they want from American Express and American Express is deciding (or has decided) what it is willing to produce. Consequently, the Court concludes that this subpoena should govern what plaintiffs are entitled to receive. That said, to the extent that American Express has voluntarily provided to Ameriprise (or does so in the future) documents for use in this litigation, then Ameriprise shall produce those documents to plaintiffs that are responsive to plaintiffs' document requests. b. Documents in Files of General Counsel's Office Plaintiffs claimed that Ameriprise should be required to search for and produce relevant information from the files of its General Counsel's Office because the office was intimately involved with administering the Ameriprise Plan. See Pls.' April 24, 2013 Ltr., p. 2; Pls.' May 1, 2013 Ltr., p. 3. Plaintiffs point to the fact that a representative of the General Counsel's Office, counsel Theresa Atanasio, routinely attended and participated in the 401(k) Investment Committee (“KIC”) and Employee Benefits and Administrative Committee (“EBAC”) meetings that oversaw the Ameriprise Plan at issue in this case. See Pls.' April 24, 2013 Ltr., p. 2, Ex. 3 (KIC Minutes); Pls.' May 1, 2013 Ltr., p. 3. In addition, plaintiffs pointed to the involvement of Ameriprise's General Counsel, John Junek, who assisted in approving the members of the initial KIC. See Pls.' April 24, 2013 Letter, p. 3, Ex. 5 (September 29, 2005 Email). Ameriprise objected to a general search of its General Counsel's office, arguing that Atanasio was not a member of the KIC or the EBAC and had no decision-making authority regarding the Ameriprise Plan or its administration. See Defs.' May 1, 2013 Letter, p. 4. Additionally, Ameriprise submitted that Atansio's involvement with the Ameriprise Plan fiduciaries did not justify a search of the entire General Counsel's Office, especially when Ameriprise has agreed to search the files of fiduciaries with whom Atanasio may have communicated. Id. *6 The Court rejects plaintiffs' request for a wholesale search of Ameriprise's General Counsel's Office for responsive ESI when plaintiffs have only identified two individuals who may have had contact and involvement with the Ameriprise Plan via the KIC and EBAC. Instead, the Court finds that a search of responsive ESI should be limited to Atanasio and Junek as set forth below. 2. Custodians Plaintiffs proposed adding 18 additional document custodians to the 35 custodians previously agreed upon by the parties. See Pls.' April 24, 2013 Letter, p. 4. Plaintiffs asserted that Ameriprise had rejected these additional custodians to the search of emails for responsive ESI without making any attempt to demonstrate the they lacked relevant information or possessed duplicative information. Id. Further, plaintiffs claimed that the searches from the additional custodians would not be burdensome given that the ESI searches are limited to custodians' emails. Id. In response, Ameriprise argued that most of the 18[4] additional custodians are either senior–level executives who were chosen because of their title (but who are not plan fiduciaries) and have no direct involvement with the Ameriprise Plan or the issues in this case, or they are portfolio managers who had nothing to do with the selection or monitoring of the Ameriprise Plan. See Defs.' April 24, 2013 Ltr., pp. 5–6. In response to Ameriprise's position that custodians should be limited to just those with day-to-day involvement of the Ameriprise Plan, and should not include high level custodians such as Ted Truscott,[5] Christopher Keating,[6]Walter Berman,[7] Steve Moen[8] and Amy Johnson,[9] plaintiffs claimed that Ameriprise's rejection of additional custodians ignore plaintiffs' requests (1) regarding Ameriprise's relationship with other employee plans and other clients; (2) non–Plan assets; (3) revenues and profits derived from Ameriprise Plan services; (4) pricing practices related to Ameriprise Plan's investment options and services; (5) other financial arrangements related to Ameriprise's relationship with the Plan; and (6) those with knowledge of the spin-off and selection of committee members or the sale of the recordkeeping business to Wachovia (e.g., Kelli Hunter,[10] Berman, Jim Caracchiolo[11]and Junek). See Pls.' May 1, 2013 Ltr., pp. 5–7. Plaintiffs also claimed that Ameriprise's objections to their list of custodians (on the grounds that they are not Plan fiduciaries) should be rejected, as that is too narrow of a definition at the early stages of this case; Ameriprise has not provided any proof or assurances that Ameriprise's proposed custodians will produce all of the relevant documents; and Ameriprise has provided no proof that the individuals it claimed were chosen only because of their title did not have relevant information Id., pp. 6–8. *7 Ameriprise countered that it is plaintiffs' position that if someone has knowledge of the Plan, then that individual should be subjected to broad and invasive discovery regardless of whether the individuals had any responsibilities with regard to fiduciary decisions for the Plan or selecting investment options; eight of the 18 proposed custodians are no longer with Ameriprise; plaintiffs' attempts are improperly seeking to drag senior employees into the litigation; and the discovery sought from the additional 18 custodians is likely to be duplicative of that gathered from the 35 agreed upon custodians or from other (unspecified) targeted collections. See Defs.' May 1, 2013 Ltr., pp. 5–6. The Court's decision as to the 18 additional custodians proposed by plaintiffs is set out below. Suffice it say that as a general matter, the fact that a person did not sit on the KIC or the EBAC, was not a Plan fiduciary, or that the information may be in the possession of more than one person (including one or more of the 35 custodians that Ameriprise is agreeable to a search for responsive ESI) does not drive the outcome. The question is whether based on their position and role, each proposed custodian was likely to possess ESI that is relevant to the claims and defenses in this suit and is responsive to plaintiffs' document requests. a. Theresa Atanasio—Plan Counsel from Ameriprise Financial, lnc.'s General Counsel's Office Plaintiffs argued that when the KIC was formed, Atanasio was selected as a non-voting member of the committee; she provided information to the KIC committee regarding fee disclosures; she provided an overview to the members of the EBAC (including on their fiduciary duties); and she discussed fee levels with an investment manager later selected by the KIC. See Pls.' April 24, 2013 Ltr., pp. 4–5, Exs. 2–4, 7, 8. It is Ameriprise's position that although Atanasio attended KIC meetings, she is not a plan fiduciary, and that the search of her ESI would be burdensome and duplicative. See Defs.' May 1, 2013 Ltr., pp. 6–7. Ameriprise's attempt to limit discovery to only those persons who were plan fiduciaries or were voting members of the KCI and EBAC is rejected. The question is whether the individual is likely to possess relevant information. Here, as a person who provided information to the EBAC regarding their fiduciary duties, and who dealt with the issue of investment fee levels—all of which is relevant to the issues in this case—the Court concludes that Atanasio is likely to possess relevant information responsive to plaintiffs' document requests and should be included in the list of custodians whose computers will be searched. Further, the mere fact that some of the information she may possess may be duplicative is irrelevant given that the culled ESI will go through an electronic de-duplication process. Finally, Ameriprise's conclusory claim (See Defs.' May 1, 2013 Ltr., p. 6) that the search of Atanasio's documents will result in the production of a burdensome privilege log is not reason to take her off of the list of custodians in possession of responsive ESl.[12] b. John Junek—Executive Vice President and General Counsel for Ameriprise Financial, Inc. *8 Plaintiffs asserted that Junek reviewed and selected the initial members of the KIC committee prior to the establishment of the Ameriprise Plan. See Pls.' April 24, 2013 Ltr., p. 5. In support, plaintiffs pointed to an email dated September 29, 2005, from the Ameriprise Vice President of Benefits Human Resources that stated that Junek, among others, reviewed and approved the KIC members. Id., Ex. 5. Additionally, plaintiffs argued that the record demonstrated that Junek has information relating to provisions of the governing Ameriprise documents for its plans and the oversight structure for such plans. Id., Ex. 11 (September 28, 2006 Minutes of Compensation and Benefits Committee). Ameriprise contended that the Plan dictates the membership of the KIC and the Compensation and Benefits Committee (“CBC”) that Junek attended is not a fiduciary for the Ameriprise Plan. See Defs.' May 1, 2013 Ltr., p. 8. The Court concludes that Junek should be included in the list of custodians, as the evidence shows he is likely to possess information bearing on the claims and defenses of the suit and responsive to plaintiffs' discovery. Again, the fact that Junek was not a fiduciary to the Plan or that the CBC is not a Plan fiduciary is not decisive. The evidence points to Junek's participation in the selection process of the KIC. In addition, the evidence demonstrates that Junek has knowledge of oversight structure for Ameriprise plans. Further, according to the Amended Complaint, the CBC is a committee of the Board of the Board of Directors of Ameriprise and was responsible for the appointment, supervision and removal of the EBAC members, and as such, is a fiduciary of the Plan. Amended Complaint [Docket No. 45], ¶ 32. Additionally, the Amended Complaint is replete with claims that the CBC is a fiduciary within the meaning of 29 U.S.C. § 1002(21)(A), and engaged in activities that breached and violated its fiduciary duties. Id., ¶¶ 33, 39, 40, 56, 118–125, 132–157, 168–175. Whether those allegations will ultimately be proven at trial, is not for this Court to decide now in a discovery motion. For all of these reasons, Junek shall be added to the list of custodians from whom relevant ESI shall be obtained. c. William (Ted) Truscott—President, Chairman of the Board, and Chief Investment Officer of RiverSource Investments and other Ameriprise-affiliated entities, and later CEO of Global Asset Management at Columbia Management. Plaintiffs argued that Truscott was personally involved in the administration of the Plan. Plaintiffs relied on the KIC Minutes dated September 16, 2010, which stated that the KIC committee wanted to provide Truscott the committee's position with regard to the Columbia target-maturity products and invited him to a meeting where he made a presentation regarding the products. See Pls.' April 24, 2013 Ltr., p. 6, Exs. 12, 13. Plaintiffs maintained that this showed that Truscott was involved in the fiduciaries' decision-making process regarding target-maturity products that are at issue in this case. Id. In addition, Truscott stated during a deposition in a separate matter that he was in charge of RiverSource Investments, a subsidiary of Ameriprise, which handled the equity and fixed income investments for Ameriprise. Id., Ex. 14, p. 6. Further, plaintiffs claimed that Truscott had knowledge of the spin-off of Ameriprise due to what he learned from a webcast. See Pls.' April 24, 2013 Ltr., p. 7, Exs. 15, 16. Ameriprise claimed that Truscott is responsible for managing Ameriprise's retail, institutional and asset owned portfolios. See Defs.' May 1, 2013 Ltr., p. 9. The fact that Truscott was invited to attend a KIC meeting to provide an update on funds, as were other fund investment executives, did not make him an advisor to the KIC, and he had no authority to make decisions on behalf of the Plan. Id. Ameriprise also took issue with the assertion that attending a webcast regarding the spin-off of Ameriprise makes him a custodian on documents relating to the spin-off. Id. *9 The Court concludes that Truscott should not be added to list the custodians from whom ESI is obtained. He had no involvement with the administration of the Plan or the selection of the Plan options, which are the focus of the claims at issue in this case. The mere fact that he may have provided information to the KIC, as did other investment executives, does not make him a repository for relevant and responsive information. Further, the fact Truscott obtained information of the spin-off through materials disseminated on the internet does not make him a source for information regarding the Ameriprise spin-off. d. Christopher Keating—Head of Institutional Sales and Client Services at RiverSource Investments As the head of Institutional Sales for RiverSource Investments, plaintiffs asserted that Keating has knowledge regarding the degree of due diligence conducted by large plan sponsors, such as Ameriprise. See Pls.' April 24, 2013 Ltr., p. 7. Plaintiffs claimed Keating had knowledge of Ameriprise's actions following the investment of Plan assets in the newly created RiverSource target date funds, in comparison to other plan sponsors. Id. Ameriprise argued that Keating's primary role was that of institutional sale activities, as opposed to having any role in the Ameriprise Plan, was not on the KIC, had no role in the Plan's selection of investment options and plaintiffs did not claim he did. See Defs.' May 1, 2013 Ltr., pp. 9–10 Keating had no role in with administration of the Plan or the selection of the Plan options. Nor have plaintiffs provided the Court with any evidence that he had knowledge regarding such activities and therefore, was likely to possess ESI responsive to their document requests. Accordingly, the Court denies plaintiffs' request to add Keating as a custodian. e. Phil Wentzel—Vice President of Finance, Ameriprise Financial Plaintiffs maintained that Wentzel should be added as a custodian because he is a defendant in this case and that because he is the Vice President of Finance for Ameriprise, he is an ex officio member of the EBAC according to the governing plan document. Id., p. 8. Ameriprise asserted that plaintiffs have incorrectly identified Wentzel as a defendant in this case because he cannot be considered an ex officio member of the EBAC, as the Plan Document does not contemplate ex officio members, except for an enumerated list of which the Vice President of Finance for Ameriprise is not included. See Defs.' May 1, 2013 Ltr., p. 10; See also Pls.' April 24, 2013 Ltr., Ex. 40, § 10.1 (Plan Documents Setting forth the criteria for fiduciaries of the Administration Committee and Investment Committee). The fact that Wentzel is a named defendant does not dictate that his ESI should be searched. Right now, there is no evidence before the Court that Wentzel was ever a member of or attended the meetings of the KIC or the EBAC, or that he had any involvement or knowledge regarding the activities of these committees or the Plan. Further, the fact that Wentzel was a former Vice President for Ameriprise, does not make him a custodian related to the claims in this case. As such, plaintiffs' request to add Wentzel as a custodian is denied. f. Jim Cracchiolo—Chairman and CEO of Ameriprise Financial, Inc. (and formerly American Express Financial Corporation) Plaintiffs asserted that like Junek, Caracchiolo reviewed and selected the initial members of the Ameriprise KIC committee prior to the establishment of the Ameriprise Plan. See Pls.' April 24, 2013 Ltr., p. 8, Ex. 5. Plaintiffs also asserted that Cracchiolo, as the Chairman and Chief Executive Officer of Ameriprise Financial, was involved in the spin-off of Ameriprise Financial from American Express and has attended meetings of the CBC, a named defendant in this case. Id. *10 According to Ameriprise, Cracchiolo has held the position of Chairman and CEO of Ameriprise Financial, Inc. since 2005 and in that capacity, oversees all of Ameriprise's business lines and units, but has no day-to-day involvement in the administration of the Ameriprise Plan. See Defs.' May 1, 2013 Ltr., p. 10. Ameriprise also argued that the Plan dictates the membership of the KIC, as opposed to any individuals, and that the CBC that Cracchiolo attended is not a fiduciary for the Ameriprise Plan. Id., p. 11. For all of the same reasons articulated by this Court in connection with Junek, Cracchiolo shall be added to the list of custodians from whom responsive ESI shall be obtained. g. Kelli Hunter—Executive Vice President of Human Resources, Ameriprise Financial, Inc. Plaintiffs argued that Hunter reviewed and selected the initial members of the Ameriprise KIC committee prior to the establishment of the Ameriprise Plan. See Pls.' April 24, 2013 Letter, p. 8. Plaintiffs also claimed that as the Executive Vice President of Human Resources, Hunter has the authority to “execute amendments to the Ameriprise Plan.” Id., pp. 8–9. Additionally, Hunter had the authority to execute and deliver necessary amendments to the Ameriprise Plan, and did so on at least one occasion, changing that language from “severance from employment” to “separation from service.” Id., Ex. 22. Ameriprise, without any support, asserted that Hunter did not have a substantive role in selecting the initial members of the KIC committee, but rather filled a due diligence role. See Defs.' May 1, 2013 Ltr., p. 11. As for her authority to execute and deliver necessary amendments to the Ameriprise Plan, Ameriprise claimed that this authority was based on her role in human services. Id., p. 22. The Court concludes that Hunter should be included in the list of custodians, as the evidence shows she participated in the selection of the KIC committee prior to the effective date of the Ameriprise Plan and had the authority to make amendments to the Ameriprise Plan. h. Walter Berman—Executive Vice President and Chief Financial Officer of Ameriprise Financial, Inc. Plaintiffs claimed that Berman, as the former CFO for American Express, was involved in the company's business discussions and strategy as it prepared to spin off American Express, as part of the spin-off reviewed and selected the initial members of the KIC committee of the Ameriprise Plan, and as CFO for Ameriprise attended CBC meetings and presented on the financial condition of the company. See Pls.' April 24, 2013 Ltr., p. 9. In support, plaintiffs attached minutes of the CBC dated December 15, 2005, referencing a presentation to the CBC addressing the company overall ratings based on shareholder, customer and employee metrics, none of which appeared to involve the Ameriprise Plan. Id., p. 9, Ex. 25. Ameriprise argued that Berman in his role of CFO, was responsible for enterprise-wide financial accounting and reporting, and his presentation had nothing to do with the Ameriprise Plan. See Defs.' May 1, 2013 Ltr., p. 12. In addition, Ameriprise claimed that Berman did not have a substantive role in selecting the initial members of the KIC committee. Id. The Court finds that Berman's role with respect to the issues in this case is too tangential to warrant adding him to the list of custodians from whom responsive ESI should be obtained. Nothing in the evidence provided to the Court suggests that he was involved in the selection of investment options, played a role in the EBAC or CBC, or in the administration of the Plan. The information submitted by Berman to the CBC did not bear on the Plan. As such, plaintiffs' request to add him to the list of custodians is denied. i. Amy Johnson—President, Ameriprise Trust Company and Chief Financial Officer of Columbia Management Investment Advisors *11 Plaintiffs have alleged that defendant Ameriprise Trust Company (“ATC”) was the trustee and record-keeper of the Plan through March 31, 2007. Amended Complaint, ¶ 10. Columbia Management Investment Advisers, LLC (“Columbia”) formerly known as RiverSource Investments, LLC (“RiverSource”), is a subsidiary of Ameriprise, a related party to Ameriprise, and served as investment adviser for Ameriprise's Columbia, RiverSource, Seligman, and Threadneedle investment products. Id., ¶ 45. As president of ATC and CFO of Columbia, plaintiffs argued that because Johnson was responsible for one of the primary service providers to the Ameriprise Plan, and was involved in the materials justifying the level of fees charged for the RiverSource mutual funds, she possesses relevant information. See Pls.' April 24, 2013 Ltr., p. 9. Ameriprise contended that Johnson has no direct involvement with the Plan and was never a member of KIC or the EBAC. See Defs.' May 1, 2013 Ltr., p. 12. For the reasons articulated by plaintiffs, the Court agrees that Johnson is likely to possess relevant information bearing on the claims and defenses in this case and responsive to plaintiffs' document requests. Therefore, plaintiffs' request to add Johnson as a custodian is granted. j. Christy Lueck—President (and later Vice President) of ATC and Vice President of Ameriprise Retirement Services In her capacity as the President of ATC, plaintiffs asserted that on September 29, 2005, Lueck executed the “RiverSource Trust Collective Investment Funds for Employee Trust,” which governs the Ameriprise Plan's proprietary collective trust investment options. See Pls.' April 24, 2013 Ltr., p. 10, Ex. 39. Lueck was also part of the Ameriprise Trust Investment Subcommittee (id., Ex. 27) that plaintiffs asserted made her responsible for the selection of investment options for the Plan and other Plan–services. Id., p. 10. Ameriprise claimed that Lueck's role was compliance oversight and had no bearing on the Plan, and that while she drafted trust documents, this does not demonstrate any discretion over the Plan. See Defs.' May 1, 2013 Ltr., p. 13. Per Ameriprise, Lueck was never a member of KIC or the EBAC. Id. Ameriprise also maintained that any assertion of relevance of Lueck's responsibility at the ATC to the Ameriprise Plan is conclusory. Id. Given her capacity as the President of ATC, her execution of the September 29, 2005 (just prior to the spin-off of the Ameriprise Plan) “RiverSource Trust Collective Investment Funds for Employee Trust,” which governs the Ameriprise Plan's proprietary collective trust investment options, and her involvement in the Ameriprise Trust Investment Subcommittee, the Court finds that it is very likely that she possesses documents relevant to the issues in this case and responsive to plaintiffs' document requests. Thus, the Court grants plaintiffs' request to add Lueck as a custodian. k. Colin Lundgren—Senior Portfolio Manager, RiverSource Investments and later head of Fixed Income, Columbia Management; Dimitris Bertsimas—Senior Portfolio Manager, RiverSource Investments; and Erol Sonderegger—Portfolio Manager, RiverSource Investments Plaintiffs argued that Lundgren possesses relevant information because, as a senior portfolio manager of RiverSource target date funds, he had knowledge about the management of the target date funds from their inception, the selected performance benchmarks to evaluate a fund's performance, and the fees charged for a product offering; he made presentations to the KIC; and has knowledge regarding of RiverSource's prior management, which is relevant to the merits of the investment options selected for the Ameriprise Plan prior to and after the spin-off. See Pls.' April 24, 2013 Ltr., pp. 10–11. As for Bertsimas and Sonderegger, plaintiffs asserted that both of these individuals were portfolio managers for RiverSource Investments, are knowledgeable about the management of the target date funds, the selected performance benchmarks used to evaluate a fund's performance, and the fees charged for a product offering. See Pls.' April 24, 2013 Ltr., p. 11. *12 According to Ameriprise, Lundgren is not a plan fiduciary, but a portfolio manager, who, like other managers, were invited to speak to the KIC. See Defs.' May 1, 2013 Ltr., p. 13. To the extent that Lundgren provided information to the KIC, Ameriprise argued that such documents will be picked up by other custodians. Id. Likewise, Ameriprise submitted that Bertsimas and Sonderegger have no involvement with the Plan, the KIC or EBAC and that having knowledge regarding target funds is not enough to make them document custodians. See Defs.' May 1, 2013 Ltr., p. 14. This Court agrees with Ameriprise. The fact that Lundgren has facts regarding funds that were used as investment options in the Plan and the fact he provided information during the KIC, as evidenced by documents that plaintiffs already possess (presumably from a different source), does not mandate that he be designated as a custodian. The focal inquiry is what information fund fiduciaries received and what they did with it. To the extent Lundgren provided the fiduciaries with information, such evidence will be in the possession of other custodians, such as the KIC and EBAC members. Thus, the Court denies plaintiffs' request to add Lundgren as a custodian. Similarly, plaintiffs' motion to add Bertsimas and Sonderegger as custodians is denied. They had no direct involvement with the Plan or the relevant fiduciaries, and any information received by fiduciaries from RiverSource can be obtained from other custodians. I. Steve Moen—Senior Vice President, Head of Defined Contribution Investment Services, RiverSource Retirement Services Plaintiffs claimed that Moen was responsible for RiverSource's institutional investments in the geographical area where the Plan is located, has direct knowledge of the placement of RiverSource target date funds in the Plan's recordkeeper's platform, established relationships with other third-party recordkeepers to sell the funds to other retirement plans, and is knowledgeable of the sale of the recordkeeping business to Wachovia. See Pls.' April 24, 2013 Ur, pp. 11–12. Plaintiffs based Moen's knowledge of the sale of the recordkeeping business to Wachovia on an article, in which Moen was cited, announcing that RiverSource was looking to sell target date funds to the recordkeepers of other institutions, such as such as Fidelity Investments. Id., p. 12, Ex. 33. According to Ameriprise, Moen oversaw the client service offerings of the recordkeeping business as it pertained to institutional clients, but was not the liaison between the recordkeeping business and the Plan, which was reserved for custodians John Baker (Vice President and Chief Client Service Officer) and Robin (Harrison (Team Manager)). See Defs.' May 1, 2013 Ltr., p.14. Ameriprise also argued that the fact that Moen was knowledgeable about RiverSource funds does not reach the issue of the Plan fiduciaries' decisions on what funds to add to the Plan and there is no evidence that Moen has unique knowledge regarding the sale of the recordkeeping business to Wachovia. Id., p. 15. There is no evidence that Moen had any connection to the Plan or the fiduciaries of the Plan. The fact that he may have knowledge of funds that may have been included in the Plan does not alone provide a basis to make him a custodian for the purposes of this case. In addition, other than knowledge about the sale of the record keeping business to Wachovia, plaintiffs provided this Court with no evidence that Moen was involved in any way with the sale. For these reasons, the Court denies plaintiffs' request to add Moen as a custodian. m. Paul Peichel—Senior Account Administrator, Ameriprise Financial and previously at AMEX *13 Plaintiffs asserted Peichel was a Senior Account Administrator at Ameriprise, and previously at American Express, who administered these entitles' nonqualified retirement plans. See Pls.' April 24, 2013 Ltr., p. 12. Ameriprise disagreed, stating that Peichel was not involved with the Plan and that any involvement with other plans does not justify adding him as a records custodian. See Defs.' May 1, 2013 Ltr., p. 15. The Court has already concluded that the administration by Ameriprise of other plans, such as Ameriprise's non-qualified plans, is relevant to this case. See Tr. 140–42. As such, the Court grants plaintiffs' request to add Peichel as a custodian. n. Nancy Aadalen—Former Director, Institutional Products, Ameriprise Retirement Services, and Director, Institutional Business Development, RiverSource Investments Plaintiffs alleged that Aadalen, as Director of Institutional Products and Business Development from 2000 to 2009, is likely to have relevant information regarding products offered to the Plan and the development of Ameriprise's business, including the RiverSource's target date funds. See Pls.' April 24, 2013 Ltr., p. 12. Ameriprise asserted that Aadalen is no longer with the company, played no role in the Plan and had no role in the development of the RiverSource's target date funds. See Defs.' May 1, 2013 Ltr., p. 15. Ameriprise also argued that any relevant information in the possession of Aadalen would be picked up by other custodians. Id., p. 16. No evidence was presented to suggest that Aadalen had any connection to the Plan (e.g., selection of options or administration) or the fiduciaries of the Plan. The fact that she may have knowledge of products that may have been offered to the Plan does not by provide a basis to make her a custodian for the purposes of this case. For these reasons, the Court denies plaintiffs' request to add Aadalen as a custodian. o. Jacqueline Sinjem—Vice President, Plan Sponsor Services., Ameriprise Financial and Vice President, Ameriprise Trust Company Sinjem previously served as Vice President of Plan Sponsor Services from 2000 to 2006, after which she moved to the Office of the Chairman and CEO. See Pls.' April 24, 2013 Ltr., p. 12. Plaintiffs claimed that Sinjem has information regarding services provided to large plan clients, like the Plan, and the relationship between Ameriprise and other plans. Id. Ameriprise does not dispute plaintiffs' claims; instead, it asserted that she played no role in the Plan and that the Plan agreements satisfy plaintiffs' request for information regarding Ameriprise's relationship with other plans. See Defs.' May 1, 2013 Ltr., p. 16. No evidence was presented to suggest that Sinjem had any connection to the Plan (e.g., selection of options or administration) or the fiduciaries of the Plan. The mere fact that she may have knowledge of services provided to large plan clients and the relationship between Ameriprise and other plans, prior to the spin-off of the Plan and after, does not by provide a basis to make her a custodian for the purposes of this case. For these reasons, the Court denies plaintiffs' request to add Sinjem as a custodian. p. Rusty Field—Financial Education and Planning Services, Ameriprise Retirement Services Plaintiffs claimed that Field has direct knowledge of retirement benefits provided to employees of employer-sponsored retirement plans, and the effect of increased costs on those savings, and therefore, he has information regarding Ameriprise's relationship with other plans. See Pls.' April 24, 2013 Ltr., p. 13. In support, plaintiffs relied on an Ameriprise news release dated November 13, 2006, describing a study conducted by Ameriprise which found that “the majority of benefit cost increases experienced by workers have been health care related.” Id., Ex. 34. In the news release, Field is quoted regarding the rising costs of health care and the impact on a person's retirement income. Id. *14 Ameriprise argued that the fact that Field is knowledgeable regarding retirement savings does not justify his inclusion as a custodian. See Defs.' May 1, 2013 Ltr., p. 16. In addition, Ameriprise claimed that there is no evidence that Field had any involvement with the Plan or that, by virtue of his knowledge of retirement savings, he had knowledge of Ameriprise's relationship with other Ameriprise plans. Id. The only evidence before this Court is Field's title and the fact that he is quoted regarding the rising costs of health care benefits and the impact of those costs on employee retirement savings. There is no indication that he has any information regarding the claims, defenses or information responsive to plaintiffs' document requests. Therefore, plaintiffs' request to add Field as a custodian is denied. In summary, the following custodians shall be added to the list of 35 custodians which Ameriprise has already agreed to conduct a search for responsive ESI: Theresa Atanasio, John Junek, Jim Cracchiolo, Kelli Hunter, Amy Johnson, Christy Lueck and Paul Peichel. That said, if during the course of discovery, plaintiffs develop additional information regarding any of the rejected custodians that would support a search of their ESI, plaintiffs may revisit their request as to that particular custodian with Ameriprise, and if necessary, with the Court. 3. Search Terms and Filter At the hearing on April 17, 2013, counsel for both sides represented that the parties still had a dispute regarding whether a filter should be used prior to the application of any search terms in searching custodial emails, and had not reached any agreement on the search terms to be used. See Tr.2, 46–47, 55. Ameriprise proposed as a filter the application of the Ameriprise 401 K Plan at issue in this case before any search terms were used and then the application of their proposed 75 search terms to the filtered set of documents.[13] Id., 44. On the other hand, fearing exclusion of relevant documents, plaintiffs rejected the use of a filter and have proposed the application of 203 search terms to the entire universe of documents.[14] Ameriprise believed it was impractical to talk about the search terms unless the impasse regarding the filter is resolved. Id., 46–47. After hearing their respective positions, the Court ordered the parties to clarify their respective positions regarding their use of a filter and search terms in letters to the Court. Id., 62–63. The Court also instructed Ameriprise to apply its proposed filters using plaintiffs' proposed 203 keywords and to run a search using its proposed 75 keywords without a filter. Id., 64–65. In their April 24, 2013 letter, plaintiffs again argued that no filter should be used because it will exclude relevant discovery, including information this Court has already ordered produced regarding other employee benefit plans and other retirement plan clients. See Pls.' April 24, 2013 Ltr., p. 13. Plaintiffs also asserted that Ameriprise's proposed terms for the filter may miss documents where Ameriprise employees do not use such formal terms to describe other plans. Id. By way of example, plaintiffs pointed to a relevant document produced by one of the Plan's third party service providers who communicated with fiduciary committee members regarding the selection of target date funds for the Plan, which plaintiffs claimed would not have been picked up using the proposed filter. Id. (citing Ex. 9). To the extent that any filter should be applied, plaintiffs argued that it should be done on a custodian-by-custodian basis. Id., p. 14. For instance, to the extent that a custodian only worked with the Plan, there was no need to apply the filter given the custodian would not have any documents outside of the Plan. Id. As to the alleged burden on Ameriprise to review all of the documents generated by the use of search terms without a filter, plaintiffs proposed that they conduct the review of the universe of documents generated by the search terms for relevancy, and then pursuant to Rule 502(d) of the Federal Rules of Evidence, Ameriprise could claw back any privileged documents. Id. Plaintiffs asserted that once the issue of the filter is resolved, then the parties can focus on what search terms to use. Id. *15 In its April 24, 2013 letter, Ameriprise proposed using a filter of five terms including “Ameriprise Financial 401(k) Plan,” “401 K” (and variations on this term), “Defined Contribution,” “DC Plan” and “D.C. Plan,” in order to cull out documents responsive to plaintiffs' document requests. See April 24, 2013 Ltr., p. 8, Ex. L. Ameriprise noted that out of the 5.6 million emails collected by Ameriprise from their proposed 35 custodians, about 10% of plaintiffs' search terms yielded more than 100,000 hits per search term, approximately 25% of plaintiffs' search terms yielded 50,000 hits per search term, and a total of about 2.6 million unique documents were generated using all of the search terms. Id. On the other hand, application of its proposed filter and 75 search terms to the 5.6 million documents generated 123,978 unique documents; application of the filter and plaintiffs' 203 proposed keywords, resulted in the generation of 200,700 unique documents; and a search using its 75 proposed keywords without a filter, returned about 475,600 unique documents. Id., pp. 8–9. In their May 1, 2013 letter, plaintiffs reiterated that the only issue before the Court was whether a filter should be applied prior to the application of the search terms. See Pls.' May 1, 2013 Ltr., p. 8. Plaintiffs also alleged that the only issue identified by Ameriprise regarding proceeding with a search without a filter was the burden caused by the review of a large amount of documents. Id. According to plaintiffs, this burden could be alleviated by allowing plaintiffs to review all of the unique documents, subject to Ameriprise's ability to claw back privileged documents from the documents plaintiffs selected, pursuant to Rule 502(d). In their May 1, 2013 letter, Ameriprise conceded that no filter set and search terms will ever be perfect, and offered to add “KIC” and “EBAC” to the filter terms and other filter terms to capture documents about other Ameriprise plans. See Defs.' May 1, 2013 Ltr., p. 17. According to Ameriprise, such filter terms would have captured the relevant document produced by one of the Plan's third party service providers who communicated with fiduciary committee members regarding the selection of target date funds for the Plan, as set forth in plaintiff's Exhibit 9. Id. As to making a custodian-by-custodian determination on the use of a filter, Ameriprise claimed that none of the proposed custodians worked only with the Plan. Id. Ameriprise conceded that email communications could be informal and claimed they had made a concerted effort to devise a filter and search terms that accounted for this issue and have invited plaintiffs to work with them on an appropriate filter but plaintiffs have refused. Id. As for plaintiffs' suggestion that they will undertake the review of the documents generated by their 203 terms for relevancy and Ameriprise could claw back any privileged documents based on Fed. Rule Evid. 502(d), Ameriprise submitted that this Rule was meant to preclude the waiver of privilege due to an inadvertent disclosure and was not intended to be used as a means to give plaintiffs unfettered access to non-responsive and privileged documents.[15] Id., p. 18. As a starting point, the Court concludes that a filter is not appropriate. The evidence demonstrates that relevant documents may be missed as a result of using such a filter. While Ameriprise stated that it can add words to the filter in order to capture additional documents, such as plaintiffs' Exhibit 9, there is no way to know if there is another category of relevant documents that will be missed because the filter terms are not broad enough. Further, while Ameriprise conceded that emails tend to be informal and offered to add additional terms as needed, nevertheless, at some point the filter will become just a narrow list of search terms. Moreover, just because the use of a filter and smaller number of search terms results in the generation of significantly fewer documents does not lead this Court to conclude that Ameriprise has put on the table a plan that will ensure that all responsive emails are captured and no more. All the Court can conclude from that exercise is the obvious—use of filters and fewer numbers of search terms leads to fewer hits and fewer unique documents. The Court will not adopt Ameriprise's proposal regarding a “first tier” filter. *16 At the same time, although a decision about search terms is not on the table right now, the Court nonetheless observes that many of plaintiffs' 203 search terms appear to be problematic,[16] particularly when about 10% of the search terms yielded more than 100,000 hits per search term, approximately 25% of search terms generated 50,000 hits per search term, and a total of about 2.6 million unique documents were generated out of 5.6 million potential e-mails from 35 custodians. One way to avoid the obvious cost and burden on Ameriprise of having to review 2.6 million documents for relevancy and privilege is to take plaintiffs up on their offer and allow them to review the culled documents for relevant information, subject to Ameriprise's right to withdraw any document selected by plaintiffs on the basis of privilege, without the fear of waiver. Contrary to Ameriprise's interpretation, Rule 502 of the Federal of Evidence does provide a method to allow plaintiffs to perform the review of the universe of documents for relevancy without jeopardizing Ameriprise's right to assert and claw back any privileged document. In this regard, Rule 503 provides in relevant part: (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. Fed. R. Evid. 502. The Advisory Committee Notes to Rule 502(d) provide that the purpose of a court order under Rule 502(e) is to “limit[ ] the costs of privilege review and retention, especially in cases involving electronic discovery.” Fed. R. Evid. 502, Advisory Committee Notes. Similarly, the Statement of Congressional Intent for Rule 502(d) explains that “[t]his subdivision is designed to enable a court to enter an order ... that will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while still preserving each party's right to assert the privilege to preclude use in litigation of information disclosed in such discovery.” Fed. R. Evid. 502, Statement of Congressional Intent. Regardless of the Court's authority to enter an order requiring the production of the 2.6 million documents to plaintiffs for them to review, subject to Ameriprise's right to claw back any documents on the basis of privilege, the Court is not satisfied at this time that this is an appropriate solution. The Court is cognizant of the fact that giving plaintiffs such unfettered access to all of Ameriprise's emails is clearly at odds with the fundamental principles and purposes of the attorney-client privilege—to keep confidential client communications out the hands of others, especially opposing parties, regardless of whether the information can be ultimately used. Requiring such a production could chill client-attorney communications between large institutional clients and their attorneys, which inherently generate and deal with huge amounts of documents. On the other hand, if plaintiffs were allowed to conduct the relevancy review before Ameriprise has the opportunity to conduct a privilege review, there are procedures that could be implemented to insure that plaintiffs do not have access to the contents of any of Ameriprise's documents until the privilege review has taken place. For example, all of the documents could be treated Confidential—Attorneys' Eyes Only Information under the Amended Protective Order, or the review and selection of relevant documents could be conducted by third party contractors hired by plaintiffs. *17 Suffice it to say, the obvious “elephant in the room” is the time and expense associated with the review of 2.6 million or more documents for relevancy and privilege and who should bear the costs of such an endeavor. Plaintiffs will not be hampered by Ameriprise's proposed filter. On the other hand, the Court does not believe that the parties have applied their best efforts to arrive at a process for examining this wealth of information in a timely and cost effective manner. Therefore, before this Court will entertain allowing plaintiffs to conduct the review in excess of 2.6 million documents, on or before August 30, 2013, the parties are ordered to confer and provide to the Court in writing the following information. (In providing this information, the parties shall assume that Ameriprise will be searching 42 custodians emails—the 35 original custodians plus the additional 7 custodians ordered by this Court)—and shall assume de-duplication of the emails.) (1) Ameriprise shall inform plaintiffs and the Court (a) how many hits and unique documents are generated by application of Ameriprise's 75 search terms to the universe of emails; and (b) how many hits and unique documents are generated by application of plaintiffs' 203 search terms to the universe of emails. (2) For all of the unique documents generated by application of Ameriprise's 75 search terms to the universe of emails, the parties shall jointly if they agree (or separately if they do not agree) provide the Court (a) an itemization of the estimated amount of time needed to review all of these documents for relevancy and to produce to Ameriprise for a privilege review those documents selected as relevant, and (b) an itemization of the costs associated with this review for relevancy and production to Ameriprise. (3) For all of the unique documents generated by application of plaintiffs' 203 search terms to the universe of emails, the parties shall jointly if they agree (or separately if they do not agree) provide the Court (a) an itemization of the estimated amount of time needed to review all of these documents for relevancy and to produce to Ameriprise for a privilege review those documents selected as relevant, and (b) an itemization of the costs associated with this review for relevancy and production to Ameriprise. (4) In lieu of application of 75 or 203 (or some other number of) search terms to the universe of emails, the parties shall indicate whether have considered using other procedures to search for relevant documents or to arrive at an appropriate search terms. For example, have the parties considered computer-assisted coding (a/k/a predictive coding)?[17] Have the parties considered prior to the development of search terms, taking one or more depositions of Ameriprise employees to learn the concepts, phrases or words that Ameriprise personnel use in the emails to address the issues in the case? Have the parties considered performing tests or a sampling review of the terms proposed by either side to determine whether particular terms are or are not returning relevant information? If the parties have considered alternative processes, describe the time and costs associated with any other such process. (5) Whether the parties can agree on a procedure (which ultimately would be adopted in Order by this Court) for plaintiffs to conduct the review of the Ameriprise's universe of emails for relevancy and to allow Ameriprise to conduct a privilege review and claw back any documents it claims are privileged prior to production of any selected documents to plaintiffs. Once the Court has received this information from the parties, the Court will determine whether or not additional information is required to make a determination on the search and production of Ameriprise's ESI to plaintiffs, and who shall bear the cost of this endeavor. B. Timeframe of Discovery Responses *18 Prior to October 2005, Ameriprise was part of American Express Companies and Ameriprise participated in the American Express 401(k) retirement plan. See Krueger v. Ameriprise Financial, Inc., Civil No. 11–2781 (SRN/JSM), 2012 WL 5873825 at *1 (D. Minn. Nov. 20, 2012). When Ameriprise spun off from American Express in October 2005, the newly created Ameriprise Financial 401(k) Plan at issue in this case, cloned the American Express plan, including all of its investments. Id. In light of the cloning of the American Express plan, plaintiffs have sought information and documents responsive to their discovery going back to September 28, 2001. See Doles Decl., Ex. 14, p. 3, Ex. 15, p. 3. Ameriprise objected to this timeframe as overly broad and unduly burdensome and limited its responses and production going back to October 1, 2005. Id., Ex. 1, p. 7; Ex. 2, p. 2. Ameriprise also objected to the production of documents created between November 28, 2012, the date plaintiffs served their discovery requests, and the close of discovery. Id. Plaintiffs argued that they needed discovery going back to September 28, 2001, as it is relevant to the fiduciary process used to monitor and select the American Express Plan options that were cloned, who decided to clone the American Express Plan, what were the financial motivations to clone the plan, the monitoring and fiduciary oversight of the American Express Plan, and the profitability and motivation of using affiliated service providers for this plan—all of which plaintiffs claimed are fundamental to understanding the fiduciary breaches that began when the Ameriprise Plan was created. See Pls.' Mem., pp. 18–19. As for documents created after November 28, 2012, plaintiffs asserted that this limitation made no sense, as Ameriprise did not respond to discovery on this date, Ameriprise has a duty to preserve documents created during the pendency of litigation, and that the breaches by Ameriprise related to investments made by it and the fees it charges are ongoing. Id., pp. 20–21. Ameriprise responded that it had agreed to search emails dating back to September 28, 2001 for individual custodians;[18] and that while seeking non-custodial ESI and hard copy documents from custodians going back five years before the creation of the Ameriprise Plan is unduly burdensome and unlikely to contain relevant information, Ameriprise asserted that it was willing to consider proposals for narrowing the scope of the searches. See Defs.' Mem., pp., 21–22. As to the November 28, 2012 cut-off date, Ameriprise claimed that it has not refused to produce documents that post-date November 28, 2012; instead, its concern was being required to conduct an additional search before the close of discovery. Id., pp. 23–24. During the February 21, 2013 hearing, Ameriprise reiterated its proposal that it would produce all ESI in the possession of custodians going back to September 28, 2001, but to the extent that it was searching for ESI from non-custodian sources or hardcopies from any sources (including custodian sources), that the October 1, 2005 date would still apply with the exception that it would agree to produce documents responsive to some requests dating back to January 1, 2005. Tr. 82. Plaintiffs asserted that Ameriprise should produce all documents—whether ESI or hardcopy—dating back to September 28, 2001, as information before October 1, 2005—the date the Ameriprise Plan came into existence—is relevant to the process and decision-making behind the cloning of the Plan, including the investment options offered in the Plan, which in many cases were the same as what had been offered by American Express (although American Express got out of the investment options while the Ameriprise Plan stayed with them). Id., 82–83, 85. *19 At the hearing, the Court required the parties to confer regarding the timeframe of discovery before October 1, 2005 and after November 28, 2012. Id., 106–07. Specifically, the Court ordered the parties to identify which document requests the parties agreed information should be disclosed pre–October 1, 2005 (e.g. September 28, 2001 or January 1, 2005), the document requests for which no agreement was reached, and where there was disagreement, the rationale behind the parties' respective positions. Id. As for the production of documents after November 28, 2012, the Court indicated that it would permit periodic supplementation and required the parties to confer and report on which requests they agreed should be supplemented and the timing and frequency of supplementation, the requests for which no agreement was reached, and where there was disagreement, the rationale behind the parties' respective positions. Id. On March 20, 2013, the parties submitted a letter to the Court setting forth those document requests where the parties had reached agreement on the date from which documents responsive to the requests should be produced, and those requests where there was no agreement. The chart provided by the parties did not set forth their respective reasoning for the positions taken. At the April 17, 2013 hearing, the Court required the parties to submit in writing the reasoning for each request still in dispute for their respective start dates from which they believed Ameriprise should be required to produce documents. Tr.2, 32–37. In addition, the Court required the parties to set forth in writing the categories of documents the parties agreed should be supplemented. Id., 37. As to the frequency of supplementation, it was plaintiffs' position that Ameriprise be required to supplement every six months and then a month before the end of trial. Id., 34. Ameriprise maintained that it only needed to supplement once at the end of fact discovery. Id. Having received now all of the required information from the parties, the Court rules as follows on the issues of the timeframe and frequency of supplementation:[19] 1. Agreement by the Parties Per the agreement of the parties, Ameriprise's production of documents shall date back to January 1, 2005, as to Document Request Nos. 11, 20, 21, 33, 34, 38, 43, 44, 47, 48, 53–60, 63, 67, 70 and 71. With regard to Request No. 41, the parties are in agreement that an additional meet and confer is necessary as to this request. 2. Plaintiffs' Proposal of September 28, 2001 versus Ameriprise's Proposal of October 1, 2005 Reguest No. 1: Any and all Documents identified in Defendants' initial disclosures that have not already been produced. Ameriprise represented that it has produced all of the documents identified in its initial disclosures. See April 24, 2013 Joint Letter Regarding the Time Frame Dispute related to Plaintiffs' First Set of the Requests for the production of Documents (“Time Frame Ltr.”), p. 4. This Court finds that Ameriprise gets to decide what documents to identify and produce as part of their Rule 26(a)(1) disclosures because it gets to decide what documents bear on its defenses. If plaintiffs are not satisfied with Ameriprise's response, they can move to compel under other document requests. As such, plaintiffs' motion for additional documents beyond October 1, 2005, is denied. Request No. 2: Any and all Documents identified in Defendants' Reponses to Plaintiffs' First Set of Interrogatories and any and all Documents referred to by Defendants in drafting Defendants' Responses to Plaintiffs' First Set of Interrogatories. Ameriprise asserted that it did not identify or refer to any documents that pre-date October 1, 2005 in their responses to plaintiffs' first set of interrogatories or responses to plaintiffs' first set of interrogatories. See Time Frame Ltr., p. 5. As such, plaintiffs' motion for additional documents before October 1, 2005, is denied. *20 Request No. 4: Any and all Documents filed with the Department of Labor with regard to the Plan, including, but not limited to, Form 5500s and any attachments thereto. Plaintiffs asked for the Form 5500s for the Ameriprise Plan. Ameriprise claimed that any Form 5500s, would be effective as of October 1, 2005, the date of the Plan's Formation and that the Ameriprise Plan did not file Form 5500s prior to its formation. See Time Frame Ltr., p. 6. In other words, the Form 5500s for the Ameriprise Plan did not exist until October 1, 2005, and therefore, there are no documents to compel prior to this date. As such, plaintiffs' motion for additional documents before October 1, 2005, is denied. Reguest No. 6: Any and all trust statements, accounting records and/or similar Documents identifying the income, holdings, disbursements, contributions and/or expenses incurred for each Plan[20] investment options. Request No. 32: To the extent not captured in any other Request, any and all documents calculating Plan costs, fees, expected costs, expected fees, or comparing or assessing such costs or fees. Plaintiffs argued that these requests seek basic plan data and information related to the American Express 401(k) Plan that Ameriprise cloned into the Ameriprise 401(k) plan. See Time Frame Ltr., pp. 7, 16. Plaintiffs also stated that the plan for spinning off and forming the Plan by American Express dated back to 2004, as evidenced by fact that it was set out in American Express's 2004 Annual Report. Ameriprise asserted that because the Ameriprise 401(k) plan was formed on October 1, 2005, any trust statements, accounting records or similar documents identifying the income, holdings, disbursements, contributions and expenses incurred for each Plan investment option prior to October 1, 2005, would be effective as of October 1, 2005, the date of the Plan's formation, and that the Plan did not have Plan trust statements or accounting records prior to its formation. Id. Additionally, Ameriprise claimed that the statements, accounting records, or other documents for the American Express Plan have no relevance to plaintiffs' claims and are not within its possession, custody or control. Id. Also, according to Ameriprise, the decision to clone and transfer the type of assets from investments that existed in the American Express Plan into the Ameriprise Plan was a decision by American Express and not Ameriprise. This Court finds that obtaining an understanding of the nature of the income, holdings, disbursements, contributions and expenses incurred for each of the Plan's investment options and expenses incurred in connection with the American Express Plan at the time of the decision to spin off the Plan from American Express to Ameriprise bears on the claims in this case. By asserting that it decided to clone the American Express 401(k) Plan and the options in it into the Ameriprise Plan, plaintiffs should have the ability to compare the performance of these options when under American Express Plan versus their performance after the spin-off. However, there is no reason to go back to September 1, 2001, as the performance of these investment options and expenses incurred by the American Express Plan dating back four years is simply too far afield of the central issues in plaintiffs' case against Ameriprise—that Ameriprise was self-dealing to benefit itself at the expense of the beneficiaries of the Plan by receiving excessive profits, paying excessive fees and incurring excessive expenses. The Court finds that to obtain an understanding of the nature of the income, holdings, disbursements, contributions and expenses incurred for each of the Plan investment options and the Plan that were in place at the time of the decision to spin-off the Plan, plaintiffs are entitled to information related to the American Express Plan prior to October 1, 2005. As such, Ameriprise will be required to produce documents responsive to Request Nos. 6 and 32 to the extent that the documents are in its possession, custody or control,[21] dating back to January 1, 2004. *21 Request No. 12: Any corporate organizational chart, reflecting the Ameriprise corporate organization including all subsidiaries, affiliates, and business units. Ameriprise was spun off as an independent public company from American Express on October 1, 2005. Therefore, the Court does not find that the corporate organization of American Express prior to this date is relevant to the claims and defenses in this case. As such, defendants shall only be required to provide responsive documents to Request No. 12 dating back to October 1, 2005. Request No. 16: Any and all Documents relating to or reflecting revenues and profits made by Ameriprise and/or its subsidiaries from Plan assets, assets of the Ameriprise Financial Retirement Plan, any Plan investment option, or any participant investment in registered investment companies related to the Plan. Request No. 17: To the extent not produced in response to the above, any and all Documents relating to any benefit, revenue, or Compensation received by Ameriprise and/or its subsidiaries from the Plan and/or trust, the Ameriprise Financial Retirement Plan and/or trust, or any other service provider, including but, not limited to, correspondence, bills, invoices, and descriptions of services provided to the Plan, the trust, and/or the participants and beneficiaries. Request No. 26: Any and all Documents indicating any expenses paid by the Plan Sponsor for services provided to the Plan, the trust, and/or participants and beneficiaries Request No. 40: All bills, invoices, spreadsheets, billing details, descriptions of services provided, fee agreements, and other Documents reflecting, summarizing, or regarding any legal, accounting, or auditing services paid for, directly or indirectly, by the Plan or the trust. Reauest No. 52: Any and all Documents relating to or reflecting Defendants and/or Plan fiduciaries who are also officers, directors, executives, key employees and/or owners of Ameriprise and/or its subsidiaries. Request No. 61: Any and all Documents reflecting an analysis of profitability to Ameriprise and/or its subsidiaries which includes the Plan and any other defined contribution plan of which Ameriprise and/or its subsidiaries is a service provider. Reauest No. 62: Any and all Documents relating to, referring to, or reflecting the competitiveness of Ameriprise's and/or its subsidiaries fees charged to the Plan. Reguest No. 64: Any and all Documents reflecting the incentives, compensation and/or commissions received by or credited to Ameriprise and/or its subsidiaries relationship manager(s), client executive(s), employee(s) or agent(s) with regard to any services provided to any defined contribution plan, including the Plan, and the Ameriprise affiliated investment options they offer. *22 Request No. 72: Form 15(c) for all mutual funds in the Plan for each year and related documents including memoranda or minutes discussing the Form 15(c) for all years. Request No. 73: Profitability reports for the mutual funds, common and collective trusts, and separately managed accounts in the Plan and related documents including memoranda or minutes discussing the profitability reports for all years. The thrust of plaintiffs' suit against Ameriprise is that it was engaged in self-dealing to benefit itself at the expense of the beneficiaries of the Plan by receiving excessive profits, paying excessive fees, and incurring excessive expenses. All of these requests seek information bearing on Ameriprise's revenues, expenses, and fees charged arising out of the Ameriprise Plan and revenues and profits inuring to Ameriprise from these activities. The Ameriprise Plan did not come into existence until October 1, 2005. Therefore, plaintiffs are not entitled to pre-October 1, 2005 documents in response to these requests. Reauest No. 22: Any and all Documents submitted to an investigating authority (including, but not limited to, the Securities and Exchange Commission, the Office of the Comptroller of the Currency, the Department of Labor, or state authorities, including, but not limited to, the Minnesota Department of Commerce) whose investigation involved a fund in the Plan or a service provider to the Plan. Request No. 24: Any and all Documents relating to or reflecting monitoring, supervision, and/or tracking of, potential or actual revenue sharing, securities lending, float, and/or other rebates or benefits that are available to the Plan, the Ameriprise Financial Retirement Plan, the trust, the Plan service providers, and/or any of the underlying investment options in the Plan and/or the trust including those received from insurance companies, mutual fund companies, investment managers, brokers, brokerage firms, or any other Plan service provider. Reguest No. 27: Any and all Documents relating to or reflecting any Plan fiduciaries' and/or Defendants' review, analysis, and/or monitoring of the fees and expenses of the Plan and/or the Trust, including, but not limited to, support for any conclusion that such fees and expenses are reasonable in light of the services provided to the Plan and/or the Trust and that such fees and expenses were incurred solely for the benefit of Plan participants. Request No. 68: Any and all Documents relating to any audit investigation of any employee benefit plan of the Plan Sponsor by the Department of Labor. Request No. 69: Any and all communications between Defendants, Plan fiduciaries, or Plan service providers and the Department of Labor or the Internal Revenue Service regarding the Plan. According to Ameriprise, the decision to clone and transfer the type of assets from investments that existed in the American Express Plan into the Ameriprise Plan was a decision by American Express and not Ameriprise. As stated previously, plaintiffs argued that the plan for spinning off and forming the Plan by American Express dates back to 2004. Getting an understanding of government investigations and any internal investigations or analysis of the funds and plans (including communications with the governmental entities), fiduciary reviews of the plan, and Form 15(c)s submitted for all mutual funds used, bears on the claims in this case. Plaintiffs should have the ability to compare the analyses of the operation of and communications regarding the American Express Plan to what became the Ameriprise Plan. However, the performance, reviews and analyses of the plan dating back to September 1, 2001 is too far removed from issue of whether Ameriprise was self-dealing to benefit itself at the expense of the beneficiaries of the Plan. As such, Ameriprise will be required to produce documents in response to Request Nos. 22, 24, 27, 68, and 69 dating back to January 1, 2004. *23 Request No. 31: Any and all Documents including disclosures and correspondence provided to Plan participants pursuant to and as defined by 29 CFR § 2550.404a–5.[22] According to plaintiffs having these basic communications dating back to 2001 is important to understand Ameriprise's claim that it “cloned” the Ameriprise Plan after the American Express Plan and presumably, this cloning also included the disclosures made by American Express. See Time Frame Ltr., p. 15. Ameriprise stated that any disclosures and communications by American Express to their plan participants prior to the formation of the Ameriprise Plan are irrelevant to plaintiffs' claims. Id. This Court agrees with Ameriprise. The communications and disclosures made to American Express plan participants prior to October 1, 2005, neither relate to the decision to clone the American Express Plan, nor on the appropriateness of the disclosures and communications made by Ameriprise to its Plan participants. Thus, Ameriprise will not be required to provide documents responsive to Request No. 31 prior to October 1, 2005. Reauest No. 37: Any and all Documents relating to or referring to delegations of authority to or from the Plan Sponsor, the Plan fiduciaries, the committees, the Plan administrator, and any other party for operation, decision making, or administration of the Plan and/or the trust. The Court denies plaintiffs' request for pre–October 1, 2005 discovery regarding delegation of authority, as how American Express delegated authority under the American Express Plan has no bearing on the claims as to the Ameriprise Plan. Request No. 74: Any and all Documents reflecting or comprising Defendants', Plan fiduciaries', and/or Plan service providers' record retention or destruction policies and procedures. In light of this Court's decision to require Ameriprise to produce documents responsive to some requests dating back to January 1, 2004, Ameriprise shall produce the documents sought by Document Request No. 74 dating back to January 1, 2004. Request No. 77: Any and all Documents relating to the employment of the named Plaintiffs, including personnel files. This case deals Ameriprise's alleged malfeasance relating as to the managing of a 401(k) plan and does not relate to plaintiffs as employees, except to the extent that they were participants in the Ameriprise Plan. As such, the Court does not find that plaintiffs' personnel files with American Express are relevant to this case. The Court denies plaintiffs' request that Ameriprise produce plaintiffs' respective personnel files prior to October 1, 2005. 2. Plaintiffs' Proposal of September 28, 2001 versus Ameriprise's Proposal of January 1, 2005 Request No. 7: Any and all Documents relating to and/or identifying the Plan fiduciaries, including those relating to or reflecting the authority of the Plan fiduciaries. Request No. 8: Any and all Documents that guide, advise, or provide support for Defendants to appoint, monitor, manage, oversee, or terminate any Plan fiduciaries. *24 Request No. 9: Any and all Documents relating to or reflecting the establishment, authority and operation of the defendant committees, including committee charters, bylaws, operating rules and procedures, meeting minutes, agendas, reports, presentations, and attachments and exhibits thereto. Request No. 10: Any and all Documents relating to or reflecting the defendant committees' appointment, monitoring and oversight of Plan fiduciaries, including, without limitation, committee charters, bylaws, operating rules and procedures, meeting minutes, agendas, reports, presentations, and attachments and exhibits thereto. Request No. 23: Any and all Documents relating to, reflecting, or referring to any investment guidelines, policies, objectives, or directives applicable to the Plan or the trust and/or the investment options within the Plan or the trust, or to the Ameriprise Financial Retirement Plan. Request No. 35: Any and all Documents regarding the guidelines, policies, educational materials or training that Defendants and Plan fiduciaries used or received related to their role with the Plan, including any guidelines, policies, educational materials or training related to determining whether or not a Plan–related expense is chargeable to the Plan. Ameriprise shall produce documents, in its possession custody or control, responsive to Request Nos. 7, 8, 9, 10, 23 and 25 dating back to January 1, 2004. Ameriprise submitted that American Express made the decision to spin off this Plan and to clone it. Plaintiffs argued that the strategy for spinning off and forming the Plan by American Express dated back to 2004. The Court will not require Ameriprise to produce documents dating back to September 1, 2001, as the appointment, training, and oversight of the American Express Plan fiduciaries and committees charged with operation and performance of the American Express plan is not relevant to the issue of whether Ameriprise was self-dealing to benefit itself at the expense of the beneficiaries of the Ameriprise Plan. As for Ameriprise's argument that it should only have to produce documents dating back to January 1, 2005, that position is rejected. Plaintiffs are entitled to understand how those fiduciaries and committees that existed during the formation of and as of the date the Ameriprise Plan was spun off were trained, supervised and overseen. Request No. 15: Any and all Documents reflecting any Request for proposal, any Request for information, or any similar Document, conducted for the purpose of selecting a service provider to the Plan, the Ameriprise Financial Retirement Plan, or the American Express 401(k) Plan. Request No. 18: Any and all Documents relating to or comprising any investigation, research, review, analysis, or consideration of any kind that you undertook regarding the selection of any of the service providers; monitoring and oversight of the performance and the fees and/or costs of the service providers; and the termination or replacement of any Plan service providers. Request No. 19: Any and all documents relating to or comprising research, review, analysis, or consideration of any kind regarding the selection, monitoring, or removal of the Plan's investment options and the establishment of benchmarks for the Plan's investment options. *25 Request No. 25: Any and all Documents relating to or reflecting any negotiations with service providers regarding services provided to the Plan and the fees or expenses charged by the Plan service providers and the use of revenue sharing, or any other form of indirect compensation, as it relates to the fees or expenses charged. Request No 46: Any and all Documents concerning or related to the selection, monitoring, and fees charged by Plan service providers, Plan investment options, or Plan fiduciaries to the American Express 401(k) Plan, whether or not those documents concern or relate to time periods before, during or after Ameriprise was spun-off of American Express. This Request specifically includes, but is not limited to, the fees and indirect compensation arrangements between Ameriprise and American Express related in any way to investments of the American Express 401(k) Plan in Ameriprise-managed investments and any and all documents concerning, related to, or reflecting Compensation to Ameriprise resulting in any way from investments of the American Express 401(k) Plan or its participants and beneficiaries. For any investment option or service provider that was in the Plan at the time it was spun off to Ameriprise on October 1, 2005, and to extent the requested documents are in its possession, Ameriprise shall produce documents responsive to Request Nos. 15, 18, 19, 25 and 46 dating back to September 28, 2001. This information bears on how the service providers or investment options in Plan, ended up in the Ameriprise Plan at the time Ameriprise took over the Plan. Request No. 3: Any and all Documents relating to the establishment, structure, governance, maintenance, operation, administration and communication of the Plan, including, without limitation, the Plan document(s) and any amendments thereto; any summary plan description(s) for the Plan; any communication(s) relating to the Plan; any summary annual report, any summary of material modifications, and any other documents under which the Plan was established or is maintained, operated, or communicated or disseminated to employees, participants, and/or beneficiaries, responsive, nonprivileged documents that relate to any claims or defenses in this action and that fall within the Relevant Period. Request No. 5: Any and all Documents relating to the trust not including those Documents already produced, including, without limitation, the trust document(s) and any amendments thereto; trust statements; any communication(s) relating to the trust; all accounts held by the Plan and the trust with the trustee(s), including both accounts held directly by the Plan and trust as well as accounts held for the use or benefit of the Plan or trust; and any other Documents under which the trust was established or is maintained, operated, administered and/or communicated or disseminated to employees, participants, and/or beneficiaries. Request No. 36: Any and all Documents relating to or reflecting any discussion, consideration, or decision by the Defendants regarding the Plan, Plan service providers, and/or Plan investment options, including notes, internal communications, e-mails, meeting minutes, agendas, background material, handouts, reports, presentations, recommendations, and attachments and exhibits thereto. *26 Request No. 39: Any and all Documents that are intended to guide, advise, or provide support for the Defendants, Plan fiduciaries, or Plan service providers (or their delegate(s)) in the operation, administration, management, and oversight of the Plan or the trust. Request No. 42: Any and all consultant reports or Documents regarding the selection and monitoring of Plan service providers, Plan investment options, or Plan fiduciaries. This Request specifically includes any drafts of consultant reports and correspondence with any consultant related to the selection and monitoring of Plan service providers, Plan investment options, or Plan fiduciaries. Request No. 45: Any and all Documents concerning or related to the transition or splitting of the Plan from American Express. This Request shall include, but is not limited to, Documents concerning the selection of Plan service providers, Plan investment options, Plan fiduciaries, and the costs associated with the split. Plaintiffs asserted that the information sought by these requests, dating back to September 28, 2001, is relevant to the decision to clone the American Express 401(k) Plan; Ameriprise acknowledged that evidence related to the American Express 401(k) Plan is relevant to the Plan's formation and to the cloning of the Plan's investment options from the American Express Plan, but maintained that production of documents dating back to January 1, 2005, will provide plaintiffs with sufficient relevant information. See, e.g., Time Frame Ltr., p. 30. In light of the evidence that discussions regarding spinning off and cloning of the American Express plan occurred in 2004, Ameriprise shall produce documents responsive to Request Nos. 3, 5, 36, 39, 42, 45 dating back to January 1, 2004. Request No. 66: Any and all documents Defendants plan to rely on to support any claims, defenses, affirmative defense in this action. Ameriprise represented that it is not aware of any documents dated prior to January 1, 2005, that it intends to rely on as part of its defenses against plaintiffs' claims. See Time Frame Ltr., p. 47. Based on this representation, plaintiffs' motion to compel documents responsive to Request No. 66 prior to January 1, 2005 is denied. However, in light of its representation, Ameriprise will not be allowed rely on documents dated prior to January 1, 2005, to support its defenses that have not previously been produced to plaintiffs and without prior permission of the Court. 4. Plaintiffs' Proposal of January 1, 2005 versus Defendants' Proposal of October 1, 2005 Request No. 28: Any and all Documents including disclosures and correspondence received from Plan service providers pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550.408b–2. Request No. 29: Any and all Documents relating to or reflecting the Plan fiduciaries' obligations pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550.408b–2. This shall include, but is not limited to, Documents relating to the receipt of disclosures from Plan service providers, analysis of the disclosures, and subsequent actions taken after receiving the disclosures. Request No. 30: Any and all Documents relating to or reflecting the preparation and dissemination of the disclosure created by Ameriprise and provided to the Plan pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550 .408b–2. *27 The disclosure requirements set forth by 29 CFR § 2550.408b–2 became effective on July 1, 2012: Effective date. Paragraph (c) of this section shall be effective on July 1, 2012. Paragraph (c)(1) of this section shall apply to contracts or arrangements between covered plans and covered service providers as of the effective date, without regard to whether the contract or arrangement was entered into prior to such date; for contracts or arrangements entered into prior to the effective date, the information required to be disclosed pursuant to paragraph (c)(1)(iv) of this section must be furnished no later than the effective date. Based on the language of the regulation, Ameriprise is correct that plaintiffs' request for information regarding disclosures going back to January 1, 2005 is without merit given that the regulatory disclosures were not required until July 1, 2012. As such, plaintiffs' request for documents responsive to Request Nos. 28–30 is denied. Request No. 65: Any and all Documents reflecting the seeding of any product or service offered to the Plan or the Ameriprise Financial Retirement Plan by Ameriprise and/or its subsidiaries. The parties fail to define or explain what is meant by “seeding” of a product or service offered to the Plan. As such, the Court has no choice but to deny plaintiffs' request. Plaintiffs are only entitled documents responsive to Request No. 65 going back to October 1, 2005. Request No. 75: Any and all Documents regarding any legal services provided to, or paid for by, the Plan or the trust and for the purpose of furthering, assisting in, or clarifying the administration or operation of the Plan or the trust. This Request includes, but is not limited to, all bills, invoices, spreadsheets, billing details, descriptions of services provided, fee agreements, correspondence, opinion letters, recommendations, memoranda, email, voicemail, telephone messages, meeting agendas, notes and minutes. This Request explicitly includes any and all Documents subject to the fiduciary exception to the attorney client privilege. Plaintiffs asserted that because Ameriprise relied upon prior fiduciary processes in accepting and maintaining elements of the Ameriprise Plan, including its investments and the fiduciary structure, they are entitled to any legal advice received prior to October 2005. See Timeframe Ltr., p. 53. Ameriprise argued that it did not become an independent company until October 1, 2005, and the present case pertains to the conduct of fiduciaries with respect to the Ameriprise Plan, formed on October 1, 2005. Id. Thus, the Ameriprise Plan could not have received legal services prior to its formation. The Court agrees with Ameriprise. Since neither Ameriprise nor the Ameriprise Plan came into being until October 1, 2005, plaintiffs' request for pre-October 1, 2005 documents is denied. 4. Post–Production Supplementation a. Discovery to be Supplemented The parties have agreed on certain items to be supplemented as discovery proceeds pertaining to Document Request Nos. 3, 5–8, 18–20, 25, 27, 32–34, 36, 37, 39, 41, 46, 47, 66, 76. See Defs.' April 24, 2013 Supplementation Ltr., pp. 1-2. Further, according to Ameriprise, the parties have agreed that “some” supplementation to Document Request Nos. 26, 28, 29–31, 66 and 67 is appropriate, but cannot agree on the scope of the supplementation. Id., pp. 2–3. In addition, pursuant to parties' representations, the parties agreed that Ameriprise shall supplement Request Nos. 40, 42, 73, but cannot agree on the scope of the supplementation. See Pls.' April 24, 2013 Supplementation Ltr., pp. 2–3; Defs.' April 24, 2013 Supplementation Ltr., pp. 3–4. In addition, plaintiffs seek the supplementation of Interrogatory No. 8 with the production of documents, however, Ameriprise has represented that it does not believe it needs to be supplemented. Id., p. 3. The Court addresses those requests for which the parties still are in disagreement as to the scope or timing of supplementation. *28 Request No. 26. Any and all Documents indicating any expenses paid by the Plan Sponsor for services provided to the Plan, the trust, and/or participants and beneficiaries. Request No. 28. Any and all Documents including disclosures and correspondence received from Plan service providers pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550.408b–2. Request No. 29. Any and all Documents relating to or reflecting the Plan fiduciaries' obligations pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550.408b–2. This shall include, but is not limited to, Documents relating to the receipt of disclosures from Plan service providers, analysis of the disclosures, and subsequent actions taken after receiving the disclosures. Request No. 30. Any and all Documents relating to or reflecting the preparation and dissemination of the disclosure created by Ameriprise and provided to the Plan pursuant to and as defined by ERISA § 408(b)(2) and 29 CFR § 2550 .408b–2. Request No. 31. Any and all Documents disclosures and correspondence provided participants pursuant to and as defined by including to Plan 29 CFR § 2550.404a–5. Request No. 66. Any and all documents Defendants plan to rely on to support any claims, defenses, affirmative defense in this action. Request No. 67. Any and all Documents reflecting releases of claims by putative class members that You intend to use to support Your defense in this litigation. As to Request No. 26, Ameriprise represented that it will supplement documents in a manner sufficient to show expenses paid by the Plan sponsor, trust, participants, and beneficiaries. See Defs.' April 24, 2013 Supplementation Ltr., p. 2. With regard to Request Nos. 28–30, Ameriprise stated that it will supplement the § 408(b)(2) disclosures and supplement Request No. 31 as to the disclosures required under 29 C.F.R. § 2550.404a–5. Id., pp. 2–3. Finally, Ameriprise stated it would supplement “as applicable” with regard to Request Nos. 66 and 67. Id., p. 3. Ameriprise's main issue with the supplementation of these requests is that they seek “any and all documents.”, p. 2. To the extent that it possesses any documents responsive to Request Nos. 26, 28, 29-31, 66 and 67, Ameriprise will be required to supplement these requests, subject to the frequency of the supplementation as set forth below, regardless of the form of the documents—i.e., correspondence. In other words, the Court rejects the limitations proposed by Ameriprise. Request No. 40. All bills, invoices, spreadsheets, billing details, descriptions of services provided, fee agreements, and other Documents reflecting, summarizing, or regarding any legal, accounting, or auditing services paid for, directly or indirectly, by the Plan or the trust. Ameriprise proposed producing trust company statements. See Defs.' April 24, 2013 Supplementation Ltr., p. 3. Plaintiffs' review of a sample of a trust company statement showed that it was insufficient because it did not reflect the amounts paid by the Plan. See Pls.' April 24, 2013 Supplementation Ltr., p. 2. To the extent that the trust company statements do not itemize the legal, accounting, or auditing services paid by the Plan or the trust, then they must be produced as part of the supplementation. If the supplemental trust statements do itemize these services, then the underlying documents do not need to be produced. *29 Request No. 42. Any and all consultant reports or Documents regarding the selection and monitoring of Plan service providers, Plan investment options, or Plan fiduciaries. This Request specifically includes any drafts of consultant reports and correspondence with any consultant related to the selection and monitoring of Plan service providers, Plan investment options, or Plan fiduciaries. Ameriprise proposed supplementing to extent that the information was considered by the Plan fiduciaries and as such, is contained in the updated committee materials. Id., p. 2. Plaintiffs seek information regardless of whether it was contained in the updated committee materials. Id. Plaintiffs' rationale was that “consultant reports” should be produced regardless of if they were contained in the committee materials. Id., pp. 2–3. Ameriprise shall supplement its discovery by producing all requested documents, including consultant reports, whether or not they were considered by the Plan fiduciaries and whether or not they were contained in the updated committee materials. Request No. 73. Profitability reports for the mutual funds, common and collective trusts, and separately managed accounts in the Plan and related documents including memoranda or minutes discussing the profitability reports for all years. Ameriprise has represented that profitability reports do not exist. See Defs.' April 24, 2013 Supplementation Ltr., p. 4. The Court cannot require Ameriprise to provide information to plaintiffs that it does not possess. See VICA Coal Co., Inc. v. Crosby, 212 F.R.D. 498, 501 (S.D. W.Va. 2003) (denying a motion to compel where the party moved for documents that did not exist, while failing to provide even a scintilla of evidence that the defendant was anything less than completely truthful); Century Industries Co. v. Rosemount Inc., No. Civ. 01–103 (DWF/AJB), 2002 WL 1035455, *2 (D. Minn. May 21, 2002). As such, if such reports do not exist, then there is no duty to supplement. Interrogatory No. 8. Identify and describe in detail any benefit and/or Compensation the Plan Sponsor, Ameriprise and/or its subsidiaries, the committees, Plan fiduciaries, or Plan service providers received from any service provider as a result of its relationship with the Plan, including, but not limited to, cash, discounts, rebates, revenue sharing, soft dollars, reduced interest rates, directed brokerage, brokerage commission recapture, securities lending, float, travel, entertainment, conference invitations, educational materials, free or discounted services for non-Plan corporate activities (including defined benefit retirement plans, health and welfare plans, non-qualified retirement plans, human resources and payroll, and the like) and/or any other direct or indirect benefits or compensation. Identify all Documents relating thereto. The parties have agreed that defendants will answer Interrogatory No. 8 by preparing a summary report and have agreed upon the content of this report. See Pls.' April 24, 2013 Supplementation Ltr., p. 3; Defs.' April 24, 2013 Supplementation Ltr., p.4. However, plaintiffs want this report supplemented and Ameriprise has not agreed to supplement. Id. Given that the Plan's compensation is a central issue in this case, the Court will require Ameriprise to supplement the report with the frequency set forth below. b. Frequency of Supplementation *30 Plaintiffs proposed that Ameriprise supplement their discovery responses every six months after their initial ESI collection, at the close of discovery, and one month prior to the parties' final pre-trial report. See Pls.' April 24, 2013 Supplementation Ltr., p. 1. Ameriprise proposed one supplementation—at the close of discovery. See Defs.' April 24, 2013 Supplementation Ltr., p. 4. Both parties agree that the ESI collection does not need to be supplemented. As to Document Request Nos. 5–8, 18–20, 25–34, 36, 37, 39, 40–42, 46, 47, 66, 67, 73, 76 and Interrogatory No. 8, Ameriprise shall supplement this discovery as follows: • For documents created by Ameriprise after November 28, 2012, to the extent not already produced in the ordinary course, supplement 60 days before plaintiffs' initial expert disclosures are due. • For documents created by Ameriprise later than 60 days before plaintiffs' expert disclosures are due, supplement 60 days before the trial ready date. For all other requests not specifically identified above, Ameriprise must produce responsive documents in a timely manner if it learns that the disclosure or response is incomplete or incorrect in some material respect, and if the additional or corrective information has not otherwise been made known to plaintiffs during the discovery process or in writing. See Fed. R. Civ. P. 26(e)(1)(A). C. Discovery Concerning Other Ameriprise Plans Plaintiffs seek discovery concerning the American Express 401(k) Plan, a predecessor plan to the Ameriprise Plan, as well as discovery concerning other plans offered to Ameriprise employees and discovery regarding non-plan Ameriprise assets. See Pls.' Mem., p. 27 (citing Doles Decl., Decl. ¶ 4, Ex. 2, Request Nos. 15–17, 23–24, 34, 46, 63, 65, 67, 68, 70–71). Plaintiffs clarified at the hearing that they were seeking discovery regarding other Ameriprise 401(k) plans, Ameriprise pension plans and non-qualified plans, as well as deferred compensation plans for Ameriprise executives for which Ameriprise was a plan sponsor.[23] See Tr. 134–38. Plaintiffs' rationale for seeking this information is as follows: Of the limited information produced already in this case, Plaintiffs have learned that the plans were operated by similar or identical fiduciary committees based on similar or identical contracts with vendors. Defendants object to discovery concerning any plan other than the 401(k) Plan. See, e.g., Doles Decl. ¶4, Ex. 2 at 29. The differences in Ameriprise's handling of the defined benefit plan, which requires corporate money to make up shortfalls in performance or excessive fees, and Ameriprise's plan for high level executives, is highly relevant to the prudence and loyalty of Defendants' decisions with respect to the 401(k) plan, where the harm of excess fees and poor investment choices were borne by their employees. Pls.' Mem., p. 27. Ameriprise was only willing to produce information related to the Plan at issue, taking the position that plaintiffs never mentioned other plans in their Amended Complaint. Tr. 133. Concluding that how Ameriprise addressed its other plans or what benefit Ameriprise may have received from its other plans, could lead to the discovery of admissible evidence, the Court granted the motion to compel as to Document Request Nos. 15–17, 23–24, 34, 46, 63, 65 and 68, with regard to Ameriprise 401(k) plans, Ameriprise pension plans and non-qualified plans, as well as deferred compensation plans for executives for which Ameriprise was a plan sponsor. Tr. 140–41. However, the Court required the parties to confer to narrow the breadth of the requests and to address other objections raised in Ameriprise's responses to the pertinent document requests. Tr. 141–42. *31 At the April 17, 2012 hearing, Ameriprise represented that it had agreed to produce the minutes and materials pertaining to the administration of the other 401k plans, Ameriprise pension plans and non-qualified plans, along with deferred compensation plans for executives, and that it had identified these plans for plaintiffs, agreed to produce the plan guides and summary plan descriptions (“SPDs”) for each of these plans that listed investment options, as well as the expense ratios for those investment options. See Tr.2, 51. Ameriprise noted that plaintiffs appeared to find this proposal inadequate and seemed to be asking for the assets in all of the plans, which Ameriprise indicated it was unwilling to provide. Id. The Court instructed the parties to confer and to set forth in letters to the Court any remaining disputes regarding the discovery sought by plaintiffs on other Ameriprise plans. Id., 73–75. In their April 24, 2013 letter to the Court, plaintiffs proposed that Ameriprise provide them with the following information regarding other Ameriprise employee benefit plans: the proper names of all plans(including acronyms, short names, numbers, etc.); investments in each of the plans; fees associated with each service provider to the plans (including the fees charged by investment managers or other investment providers); asset amounts for each investment in the plans; and the meeting minutes and materials considered from all committees, groups or fiduciaries to these plans. See Pls.' April 24, 2013 Ltr., pp. 14–15. Plaintiffs noted that none of the documents Ameriprise offered to produce set out the fiduciary process for any of the investment providers (including their selection, monitoring or termination), nor did the information offered by Ameriprise allow them to determine if Ameriprise was deriving discounted services or other benefits from a service provider that was also working for the Ameriprise Plan at issue in this case. Id., p. 15. In its April 24, 2013 letter, Ameriprise represented that in addition the 401(k) Plan at issue in this case, there were 10 other Ameriprise qualified and non-qualified compensation and benefit plans that it has identified for plaintiffs. See Defs.' April 24, 2013 Ltr., p. 9. Ameriprise proposed production of the following information describing the structure and operations of the other plans to show the differences between the various plans and the benefits offered in those plans: for the Ameriprise Financial Retirement Plan (“DB Plan” a/k/a “defined benefit plan”), unredacted minutes and presentations to the EBAC, the committee that administers the DB Plan and the 401(k) Plan, and is responsible for the selection and evaluation of recordkeepers and service providers to the plans; SPDs for the DB Plan; unredacted meeting minutes for the CBC, the committee that administers the non-qualified plans; plan Guides and Enrollment Guides for the non-qualified plans, which contain detailed information on eligibility matching, vesting and investment options offered (including fund objectives, performance and expense ratios); additional search terms to get at relevant information; and Form 5500s for the DB Plan. Id., pp. 10–11. According to Ameriprise, this information will allow plaintiffs to examine the manner in which the plans' service providers were selected and the factors the applicable committees considered in making their determinations. Id., p. 11. For example, the SPDs for the DB Plan detail how the DB Plan operates, how interest is earned, vesting, the timing and mechanism of payments to participants, payment options, and plan funding . Id., Ex. O. Ameriprise also claimed that the EBAC minutes contain discussions regarding service providers to the DB Plan and the attendant fees, and the Form 5500s for the DB Plan list the investment options in the DB Plan. Id., p. 10. As for the Plan Guides for the non qualified plans, Ameriprise maintained that they contain detailed information on eligibility, matching, vesting, and the investment options offered, including fund objectives, performance, and expense ratios . Id., Ex. P. *32 In their May 1, 2013 letter to the Court, plaintiffs argued that Ameriprise's proposal regarding other plans does not provide them with the basic information regarding the other plans, including plan fees, plan expenses, or plan asset values. See Pls.' May 1, 2013 Ltr., p. 9. In addition, plaintiffs claimed that by seeking to withhold any investment-related information from them, Ameriprise is excluding committee materials for the only fiduciary committee responsible for the DB plan, the Benefits Plan Investment Committee (“BPIC”). Id. In its May 1, 2013 letter to the Court, Ameriprise again maintained that it had produced the minutes of the EBAC and CBC committees that administer the plans at issue, the SPDs and the Plan Guides for the DB Plan and the non-qualified plans, and it intends to produce the Form 5500s for the DB Plan. See Pls.' May 1, 2013 Ltr., p. 18. According to Ameriprise, the investment options are contained in the Plan Guides and the Form 5500s, while information regarding the selection of service providers and attendant fees is contained in the committee meeting minutes and materials. Id. With regard to plaintiffs' assertion that none of the documents Ameriprise offered to produce sets out a fiduciary process pertaining to any of the investment providers (including their selection, monitoring or termination), Ameriprise presumed that plaintiffs were referencing the BPIC, a separate committee responsible for selecting the DB Plan's investments. Id. Ameriprise claimed that the fiduciary actions of the BPIC and the investments of the DB Plan are not being challenged in the present action. Id. It was Ameriprise's position that it has provided sufficient information to determine the differences between the various plans. Id. In this case, plaintiffs have alleged that despite RiverSource Mutual Funds' poor performance and high expenses relative to other investment options that were readily available to the funds, Ameriprise breached its fiduciary duty by selecting and retaining the RiverSource Mutual Funds as Plan investment options, and by failing to consider investments other than RiverSource Mutual Funds, all for the purpose of generating revenue for RiverSource and ATC, and ultimately to benefit Ameriprise. See Amended Complaint, ¶¶ 110–117. In addition, plaintiffs alleged that Ameriprise breached its fiduciary duty by permitting ATC, and later Wachovia, to administer and perform the recordkeeping for the Plan for excessive compensation, without meaningful market competition, and without evaluating the cost of these services in the marketplace. Id., ¶¶ 159–67. This Court has already determined that plaintiffs are entitled to discover how Ameriprise operated and benefited from its other plans in comparison to how it operated the Ameriprise Plan. As it relates to pension plans and non-qualified plans, as well as deferred compensation plans for executives for which Ameriprise was a plan sponsor, Ameriprise will be required to produce, to the extent it has not already one so, the plan and enrollment guides, SPDs, the unredacted meeting minutes and materials considered by the committees responsible for administering these plans and the Form 5500s for these plans. The Plan Guides and 5500 forms will supply plaintiffs with adequate information regarding the investment funds and options available to the participants in these plans. Further, the Plan Guides will provide plaintiffs with the performance and the gross expense ratio of the funds and options available in other plans. The Court also concludes that plaintiffs are entitled to documents evidencing the rationale expressed by the relevant committees, including the BPIC, as to the choice of any investment options to include or not include in the various plans. For example, if there are documents reflecting communications or analyses within the relevant committees indicating that the RiverSource funds were not chosen by one of the other Ameriprise plans due to a high expense ratio or poor performance, such documents are clearly relevant to whether the Ameriprise breached its fiduciary duties to plaintiffs. *33 As to plan fees and expenses, the Amended Complaint refers to excessive compensation for ATC and Wachovia in relation to administering and performing the recordkeeping for the Plan. As such, Ameriprise will be required to produce documents sufficient to show the compensation paid to entities to administer and conduct the recordkeeping function for these other plans. Such information is relevant to the issue of whether the Ameriprise Plan was overcharged for administering and performing the recordkeeping for the Plan, compared to other Ameriprise plans, and therefore bears on whether Ameriprise breached its fiduciary duty in this regard. However, the Court will not require Ameriprise to provide a list of the assets for each investment option offered in all of the other plans. First, plaintiffs have not set forth the relevance of this information to the claims in this case, and more importantly, the Court does not find that this level of detail is necessary for the comparison plaintiffs seek to perform. D. Ameriprise's Other Retirement Plan Clients Plaintiffs seek discovery regarding Ameriprise's relationships with other non-affiliated, defined contribution plans. See Pls.' Mem., p. 28; Doles Decl., Ex. 1 (Interrogatory No. 6), Ex. 2 (Document Request Nos. 53–55, 57–63). Plaintiffs offered Request No. 55 as an example of these requests: Any and all Documents reflecting payments, Compensation, or other benefits provided by any Ameriprise entity to any recordkeeper or trustee—whether or not it is another Ameriprise entity—of any retirement plan sponsored by Ameriprise, American Express, US Airways, Urban Institute, United Health Group, Carriz, Inc., Information Builders, Inc., Laclede Gas, or Tyco Electronics as a result of or calculated based on investments in Ameriprise affiliated investment products by plans sponsored by those corporations, as well as any and all documents reflecting the fees, account balances, or correspondence relating to the inclusion of Ameriprise managed investment products in those retirement plans. Doles Decl., Ex. 2. Plaintiffs asserted that the information sought regarding other retirement plan clients is relevant to their contention that the fees charged by the investment options in the Ameriprise Plan were excessive; is designed to counter Ameriprise's fifth affirmative defense that plaintiffs' claims are precluded under ERISA and its exemptions, including PTE 77–3 and ERISA § 408,[24] because the fees charged to the Plan were reasonable; and is relevant to the underlying issue in this case as to whether Ameriprise breached its fiduciary duties when it invested in affiliated funds that charged fees that were excessive relative to those available from comparable mutual funds. See Pl.'s Mem., pp. 29–30. Plaintiffs also argued that the reasonableness of Ameriprise's fees and the profitability of their relationship with the Plan can be measured by the comparisons to the fees charged to “non-captive” purchasers of their services—i.e. non-employee clients. Id., pp. 30–31 . *34 Ameriprise complained that the burden of responding to these requests was crushing and would take years to collect responsive information at an enormous expense to Ameriprise. Defs.' Mem., p. 39. Collectively, the ten requests that Plaintiffs identify in their Motion to Compel encompass virtually all documents ever created by Ameriprise's retirement business, and their collection and production would impose a crushing burden on Defendants. In essence, in a case that challenges the reasonableness of the investment product fees and contractual arrangements for the Ameriprise 401(k) Plan, Plaintiffs seek to litigate the details of every other contractual arrangement Ameriprise has concluded with any other 401(k) plan, regardless of the circumstances. The ten requests for production that Plaintiffs have placed at issue here seek any and all documents that relate to the fees, contractual arrangements, benefits, indirect and direct compensation, securities lending, float, rebates, benefits investments, assets, mandates, parameters, revenue sharing, profitability, business analyses, third party consulting reports, and more of all of Ameriprise's hundreds of defined contribution clients over a thirteen year period. Just collecting these materials could take years, and countless millions of dollars. And the process of litigating the details of these arrangements could take years more. Id. Further, Ameriprise asserted that plaintiffs failed to make an attempt to narrow these requests during the parties' meet and confer. Id., p. 38. Ameriprise also maintained that with regard to the prohibited transaction exemption available for investments in affiliated mutual funds under Class Exemption 77–3, it would be relying “primarily” on documents that summarize the mutual fund share classes in which other plan clients invested, and the “revenue sharing” associated with each such share class. Id., p. 40. Similarly, Ameriprise indicated it would rely on summary records to establish the prerequisites for the parallel prohibited transaction exemption for investments in pooled accounts. Id. Ameriprise indicated that these documents could be collected without undue burden. Id. In their April 24, 2013 letter to the Court, plaintiffs maintained that their discovery is designed to address Ameriprise's reliance on a prohibited transaction exemption that mandates the Plan receive pricing comparable to or better than other clients or investors of Ameriprise. See Pls.' April 24, 2013 Ltr., p. 15. While Ameriprise had acknowledged that a comparison of what the Plan was charged versus what other plans were charged was relevant, plaintiffs objected to Ameriprise's refusal to apprise them whether databases or summary reports existed which would allow them to obtain the relevant information and reduce the burden to Ameriprise. Id. According to plaintiffs, all that Ameriprise had offered was production of the other client contracts with Ameriprise, and this was not adequate, as not all of the contracts included information regarding fees and pricing. Id., p. 15. For example, the trust agreement and investment management agreement between the Plan and Ameriprise did not include what fees the parties agreed upon.[25] Id., pp. 15–16. Plaintiffs claimed they needed fee invoices charged, as well as the other client asset amounts, in order to determine if the other client plans are comparable to the Plan. Id., p. 16. Plaintiffs argued that the production of the fee schedules for the plans of other clients would be insufficient, as it cannot determine the actual amount paid without knowing the plan assets. Id. In light of Ameriprise's refusal to disclose summary reports or other similar documents, plaintiffs sought the production of contracts with the other clients; any other description of additional services provided (not included in contracts); fee schedules; fee invoices; identification of the amount of assets; and the amounts actually paid by clients and investors to Ameriprise for same or similar services as was provide to the Plan. Id. *35 In its April 24, 2013 letter, Ameriprise proposed production of investment agreements for other defined contribution plans that have invested in the applicable Collective Trusts[26] (redacted for client identity); the underlying service agreements between the applicable affiliated mutual funds and plan recordkeepers (redacted for client identity); and a list of all defined contribution plans that hired Ameriprise or its subsidiaries as a service provider for recordkeeping or administrative services, to extent that the information can be determined (given Ameriprise sold its recordkeeping businesses to Wachovia in 2007). See Defs.' April 24, 2013 Ltr., pp. 11–12. In their May 1, 2013 letter to the Court, plaintiffs argued that while Ameriprise claimed that the discovery requests at issue were broad, they failed to set forth any facts to support their claim of burden associated with producing responsive information. See Pls.' May 1, 2013 Letter, p. 9. Nevertheless, plaintiffs again proposed lessening Ameriprise's alleged burden by asking Ameriprise to share with them whether there were any databases or summary reports that existed, which could provide the information they seek. Id. Plaintiffs also reiterated that production of client contracts was insufficient because the contracts failed to include information regarding the actual amount paid for plan-related services, any favorable pricing received by other plan clients in comparison to Ameriprise arrangement with the Plan, and basic information regarding the other plan clients, such as the asset amounts. Id., p. 10. Finally, in its May 1, 2013 letter, Ameriprise challenged plaintiffs' assertion that the underlying service and investment agreements would not show the relative fees and expenses charged, and pointed to the Plan Administrative Services Agreement that set forth the fees to be paid, and represented that it would produce the fee schedule attached as Addendum B to the Administrative Services Agreement. See Defs.' May 1, 2013 Ltr., p. 19. Ameriprise reaffirmed that it was willing to produce to plaintiffs agreements that contain the financial arrangements between Ameriprise and the other plan clients relevant to defendants' prohibited transaction exemption defense. Id. According to Ameriprise, asking for all of the fee invoices, schedules and documents as to all other clients, is the type of broad discovery that the Court already rejected. Id., p.20 (citing Tr. 154). Ameriprise represented at the hearing (and plaintiffs have not challenged) that there a hundreds of other clients, which necessarily means that there could be many more plans, assuming that in some cases there will be multiple type of plans per client. Tr. 54. As such, plaintiffs are seeking for these numerous plans the contracts with the other clients; any other description of additional services provided (not included in contracts); fee schedules; fee invoices; identification of the amount of assets; and the amounts actually paid by clients and investors to Ameriprise for same or similar services as was provide to the Plan. There is no dispute that the fees for the services provided to other client plans are relevant; it is the breadth of the production that is at issue. But while plaintiffs seek this information as to all other client plans, their stated rationale for the information is to determine which of these plans are comparable to the Ameriprise Plan. Thus, plaintiffs tacitly admit that they do not need information regarding all other client plans; rather they only need information from those plans that are comparable to the Plan in terms of assets and services. *36 Thus, taking into account the information plaintiffs need to address Ameriprise's Fifth Affirmative Defense and at the same time bearing in mind the sheer number of retirement plan clients to whom Ameriprise offers its services, the Court will limit the production of the information set forth below to those retirement plans that are equal or larger in size (with size determined by total dollar value of assets held by the plan or number of beneficiaries in the plan) to the Ameriprise 401(k) Plan at any time during the period of January 1, 2005 to the present. As to the documents to be produced, Ameriprise shall produce: (1) All contractual agreements and associated schedules to these agreements between the clients and Ameriprise for these other retirement plans by year for the years 2005 to the present.[27] To the extent that these agreements and schedules do not set forth a description of the services to be rendered by Ameriprise to each plan, the size of the plan (in terms of total dollar value of assets held by the plan and number of beneficiaries) and the fees and expenses to be charged for the services provided, then Ameriprise will be required to produce documents reflecting this information separately to plaintiffs. (2) Documents reflecting the total amount of fees actually charged to each plan by year for the years 2005 to the present. (3) All documents Ameriprise will be relying on in support of its Fifth Affirmative Defense. The Court concludes that this information will provide plaintiffs with adequate information to address Ameriprise's Fifth Affirmative Defense. However, after receiving this information, if plaintiffs still are of the opinion that they do not have sufficient information to understand and resist Ameriprise's Fifth Affirmative Defense, then the parties shall engage in a full and robust meet and confer to determine what additional information can be provided to plaintiffs without significant burden to Ameriprise, including any summary data or reports prepared by Ameriprise. Footnotes [1] This motion was ruled on at the hearing and was addressed by this Court's Amended Protective Order [Docket No. 114]. This section addresses the reasoning behind this Court's ruling as promised during the hearing on the motion. [2] Section 15(c) pertains to the requirement in the Investment Advisory Act relating to information provided to a mutual fund board of a mutual fund regarding the reasonableness of the fees charged by that mutual fund. Transcript of February 21, 2013 Hearing (“Tr.”) [Docket No. 113], 119, 122. [3] At the hearing on April 17, 2013, the Court ordered the parties to submit a joint letter on April 24, 2013, addressing issues related to the timeframe governing Ameriprise's production and supplementation of its production, and separate letters on April 24, 2013 and May 1, 2013, addressing other issues raised in plaintiffs' motion to compel. The parties did not docket these letters. [4] While Ameriprise claimed that plaintiffs were seeking to add 19 additional custodians, plaintiffs have represented that they no longer were requesting to add former Ameriprise in-house counsel, Lori Buck Brown, as a custodian. See Pls.' May 1, 2013 Ltr., p. 5. [5] William (Ted) Truscott is the President, Chairman of the Board, and CIO of RiverSource Investments and other AP–affiliated entities, and was later CEO of Global Asset Management at Columbia Management. [6] Charles Keating is the Head of Institutional Sales and Client Service at RiverSource Investments. [7] Walter Berman is the Executive Vice President and CFO of Ameriprise Financial, Inc. [8] Steve Moen is the Senior Vice President, Head of Defined Contribution Company and CFO of Investment Services for RiverSource Retirement Services. [9] Amy Johnson is the President, Ameriprise Trust Columbian Management Investment Advisors. [10] Kelli Hunter is the Executive Vice President of Human Resources for Ameriprise Financial, Inc. [11] Jim Caracchiolo is the Chairman and CEO of Ameriprise Financial, Inc. (and formerly American Express Financial Corporation) [12] The attorney–client privilege applies only to confidential communications made to facilitate legal services, and does not apply where a lawyer acts as a scrivener or business advisor. See United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984) (citations omitted); see also Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987) (finding that the attorney-client privilege does not protect client communications that relate only to business information); Boca Investerings Partnership v. United States, 31 F. Supp.2d 9, 11 (D.D.C. 1998) (“By contrast, communications made by and to the same in-house lawyer with respect to business matters, management decisions or business advice are not protected by the privilege.”) (citation omitted). For the attorney client privilege to apply, the legal advice must predominate over the business advice, and not be merely incidental. See In re Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669, 675 (D. Kan. 2005) (“Legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice.”); See also North Pacifica. LLC v. City of Pacifica, 274 F. Supp.2d 1118, 1127 (N.D. Cal. 2003) (“In general, legal advice is implicated ‘if the nonlegal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation.’ ”) (quoting 1 Paul R. Rice, Attorney–Client Privilege in the United States § 7:3, at 39 (2d ed. 1999)); Neuder v. Battelle Pacific Northwest Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000) (citing Great Plains Mutual Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993)) (finding that where business and legal advice are inextricably intertwined, the legal advice must predominate over the business advice, and not be merely incidental, for the communications to be protected by the attorney-client privilege). [13] According to counsel, to capture the plan at issue, the filter would be created through terms “like 401 k, defined contribution, DC plan.” Tr.2, 44. [14] According to Ameriprise, using the 35 custodians it had proposed, 5.6 million documents were generated from a search of their emails. Tr.2, 45; Defs.' April 24, 2013 Ltr., p. 8, Ex. L. Presumably, with the addition of the seven custodians identified in the previous sections, the universe of documents will increase by some unknown number. [15] The Court is puzzled by Ameriprise's argument regarding Rule 502 when Ameriprise did agree to such a claw back procedure for the 186 boxes of recordkeeping documents in archives with Iron Mountain. [16] For example, the search term “Ameriprise WNEAR5 plan” generated nearly 1.7 million hits; common terms such as “pric*” and “complian*,” which generated approximately 375,000 and 470,000 hits, respectively, will no doubt produce many false hits. [17] For a description of predictive coding, the Court refers the parties to Andrew Peck, “Search, Forward,” L. Tech. News, Oct. 2011; Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) aff'd by Moore v. Publicis Groupe SA, 2012 WL 1446534 (S.D.N.Y. 2012)). [18] Ameriprise represented that it does not maintain enterprise-wide stored emails pre–dating January 1, 2005, but that individual custodians may maintain emails pre dating January 1, 2005. [19] To the extent that the parties had other disputes regarding any objections lodged by Ameriprise in connection with these document requests, the Court is not ruling on these objections in this section. [20] This Court notes that “Plan” is defined in plaintiffs' First Set of Requests for the Production of Documents as “the Ameriprise Financial 401(k) Plan and all of its affiliated, predecessor plans, and all plans with which it has merged. See Doles Decl., Ex. 15, p. 2. [21] Documents that are in possession of American Express are governed by Section III(A)(1)(a) of this Order. Therefore, to the extent that this Court is ordering production of documents prior to October 1, 2005, and those documents are in the possession of American Express and not in the possession or custody of Ameriprise, Ameriprise shall have no obligation to obtain the documents from American Express. [22] 29 CFR § 2550.404a–5 governs the disclosure requirements of plan administrators of a covered individual account plan. [23] Plaintiffs acknowledged that Documents Request Nos. 70 and 71, dealing with 10–K and 11–K filings, did not pertain to seeking discovery regarding other plans, but insisted that Request No. 68 (seeking discovery regarding investigations of any employee benefit plan) was germane. Tr. 130. [24] Ameriprise stated as its fifth affirmative defense that “[p]laintiffs' claims for liability for prohibited transactions are barred in whole or in part by ERISA § 408, and the exemptions, including PTE 77–3, granted by the Secretary of Labor pursuant to the authority granted under ERISA § 408(a).” Answer to the First Amended Complaint, [Docket No. 72], p. 33, ¶ 5 (“Fifth Affirmative Defense”). As explained by District Judge Susan Nelson in her decision denying Ameriprise's motion to dismiss: As relevant here, § 408(b)(8) exempts the purchase or sale of shares in a “common or collective trust fund ... maintained by a party in interest,” provided that the party receives only “reasonable compensation” and the transaction is permitted by the plan documents or by a fiduciary with authority over plan assets. See 29 U.S.C. § 1108(b)(8). Similarly, PTE 77-3 exempts purchase or sales of mutual fund shares by a plan covering employees of the mutual fund or an affiliate, provided the plan does not pay any exceptional fees or invest on terms less favorable than those offered to ordinary investors. 42 Fed. Reg. 18,734, 18,735 (Mar. 31, 1977). Krueger, 2012 WL 5873825 at *15. [25] The Investment Engagement Agreement for the Plan set forth that reasonable compensation for ATC's services for the administration of the plan would be charged, as set forth in the Administrative Services Agreement. Pls.' April 24, 2013 Ltr., Ex. 36, Section VII. The Administrative Services Agreement states that the EBAC will pay ATC's fees and expenses as set forth in the “fee schedule attached as Addendum B.” Id., Ex. 37, Article III.A. Addendum B was not provided to the Court. [26] As plaintiffs alleged “that the fees of the collective trusts, and the affiliated mutual funds they invested in, are unreasonable,” (Krueger, 2012 WL 5873825 at *17), it is not clear to the Court why Ameriprise limited its proposal to collective trusts only. [27] Ameriprise shall not redact the names of the other clients, as it has not set forth a valid basis for redaction in light of the protections afforded by the Amended Protective Order.