MORTGAGE RESOLUTION SERVICING, LLC, 1st Fidelity Loan Servicing, LLC, and S&A Capital Partners, Inc., Plaintiffs, v. JPMORGAN CHASE BANK, N.A., Chase Home Finance LLC, and JPMorgan Chase & Co., Defendants 15 Civ. 0293 (LTS) (JCF) United States District Court, S.D. New York Signed May 18, 2017 Counsel Brent Steven Tantillo, Mary Jane Fait, Tantillo Law PLLC, Washington, DC, Gary Frederick Eisenberg, Perkins Coie LLP, Lance Gotthoffer, Helen Davis Chaitman, Chaitman LLP, New York, NY, for Plaintiffs. Robert D. Wick, Christian J. Pistilli, Michael M. Maya, Philip J. Levitz, Covington & Burling, L.L.P., Washington, DC, Michael C. Nicholson, Covington & Burling LLP, New York, NY, for Defendants. Francis, James C. IV, United States Magistrate Judge MEMORANDUM AND ORDER *1 This action arises from the sale by the defendants of thousands of residential mortgages to the plaintiffs. As established in a prior decision, Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., No. 15 Civ. 293, 2016 WL 3906712 (S.D.N.Y. July 14, 2016) (the “7/14/16 Order”), discovery is currently limited to the plaintiffs' tort and breach of contract claims, concerning “(1) the alleged misrepresentations and omissions by the defendants about loans sold to the plaintiffs and (2) the defendants' practice of retaining payments made on the loans, forgiving loans, or releasing liens on loans sold to the plaintiffs.” Id. at *2. The scope of discovery does not include information relevant only to a related qui tam action pending in the United States District Court for the District of Columbia, id. at *4, and discovery as to the plaintiffs' claim under the Racketeer Influenced Corrupt Organizations Act is stayed during the pendency of a motion to dismiss, id. at *7. The plaintiffs have moved to compel the defendants to respond to a variety of discovery demands, each of which I will address in turn. Loan Information The plaintiffs contend that the defendants have failed to provide complete information about the loans that the plaintiffs purchased, as was required by the 7/14/16 Order. (Plaintiffs' Memorandum of Law in Support of Motion to Compel Discovery (“Pl. Memo.”) at 5-6). The defendants respond that they have provided all responsive information located over the course of a comprehensive search. (Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion to Compel Discovery and in Support of Defendants' Cross-Motion for Protective Order (“Def. Memo.”) at 10-12). In particular, the defendants produced a spreadsheet containing information gleaned by queries of their databases. (Def. Memo. at 12). The defendants acknowledged one shortcoming in their responses, however. In briefing the prior discovery dispute, they represented that in a database known as RCV1, loans “cannot normally be queried using the identity of the entity to which a loan has been sold.” (Declaration of Michael J. Zeeb dated June 10, 2016, ¶ 4). Indeed, in the 7/14/16 Order, I relied on that representation and rejected the plaintiffs' application for a Rule 30(b)(6) deposition to explore the basis for that assertion. Mortgage Resolution Servicing, 2016 WL 3906712, at *8. On the eve of oral argument on the current motion, the defendants advised me that their previous representation was wrong, and that they could query the RCV1 database for information about charged off loans sold to Mortgage Resolution Servicing, LLC. (Letter of Robert D. Wick dated May 8, 2017 (“Wick 5/8/17 Letter”), at 1). The defendants provided the results of that search to the plaintiffs with the expectation that it would meet most of the plaintiffs' demands. (Wick 5/8/17 Letter at 2; Tr. at 38).[1] The plaintiffs are less sanguine about whether the additional information will meet their needs. (Tr. at 39-40). *2 The defendants maintain, with some justification, that they are trying to hit a moving target. Many of the plaintiffs' discovery demands are contained not in formal document requests but in letters that enlarge or elaborate on prior requests. The time has come to achieve closure. By May 31, 2017, the defendants shall complete all document production, including the results of any queries of RCV1 and any other relevant database. By June 15, 2017, the plaintiffs shall provide the defendants with a list specifying any information that they consider to be missing. If, after having met and conferred, there are still residual disputes, the parties shall present them to the Court in a joint letter by June 30, 2017. Wick Analysis In the course of the qui tam litigation, Robert D. Wick, counsel for the defendant, JPMorgan Chase Bank, N.A. (“Chase”), sent a letter to counsel for the relator stating in part: The complaint that is now on file with the court may have been intended to allege that Chase claimed credit under the National Mortgage Settlement (“NMS”) for releasing liens that it did not own or that were ineligible for credit under the NMS. For each lien identified in the complaint, Chase has investigated whether it claimed credit for the lien and whether it was entitled to do so. With two exceptions, Chase did not, in fact, claim credit for the identified liens. The two exceptions relate to liens that Chase repurchased before they were released. As a result of the repurchases, Chase owned both of the liens for which credit was claimed. (Letter of Robert D. Wick dated Aug. 8, 2014, attached as part of Exh. 6 to Declaration of Brent Tantillo dated Feb. 28, 2017). The plaintiffs seek disclosure of the analysis to which Mr. Wick refers in his letter. (Pl. Memo. at 12-14). The defendants have objected on grounds of relevance and attorney work product. The defendants are correct that information concerning whether Chase claimed a credit for any particular lien under the NMS is irrelevant, since it relates only to the qui tam action. Whether information pertinent to Chase's entitlement to claim credit is discoverable here is more nuanced, since one of the underlying questions in both litigations is whether Chase owned the underlying mortgages at the time that it released liens or issued forgiveness letters. To that extent, the analysis referred to by Mr. Wick would be relevant. The analysis itself, however, would be protected from disclosure under the work product doctrine. The doctrine applies to work product generated in related cases as well as in the litigation where the information is sought. See Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 30 (1983)(Brennan, J., concurring); U.S. Information Systems, Inc. v. International Brotherhood of Electrical Workers Local Union Number 3, AFL-CIO, No. 00 Civ. 4763, 2002 WL 31093619, at *1-2 (S.D.N.Y. Sept. 17, 2002). But, “neither the attorney-client privilege nor the work product privilege protects underlying facts.” Gucci America, Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2010 WL 2720015, at *3 (S.D.N.Y. June 29, 2010) (quoting SR International Business Insurance Co. v. World Trade Center Properties LLC, No. 01 Civ. 9291, 2002 WL 1455346, at *4 (S.D.N.Y. July 3, 2002)). Therefore, to the extent that they have not already done so, the defendants shall produce within two weeks any documents upon which Mr. Wick's analysis was based insofar as those documents are relevant to the contract and tort claims at issue here. Custodians Next, the plaintiffs ask that the Court compel the defendants to search the files of an additional five custodians: Joy Palazzo, Nancy Rubino, Panikos Palettas, Jonathan B. Driver, and Steve Hemperly. (Pl. Memo. at 14-18).[2] Generally, “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” The Sedona Conference, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, at ii princ. 6(2007), http://www.thesedonaconference.org. Absent agreement among the parties, then, the responding party is entitled to select the custodians most likely to possess responsive information and to search the files of those individuals. Unless that choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should play no role in dictating the design of the search, whether in choosing search tools, selecting search terms, or, as here, designating custodians. In any event, “a party seeking to compel another party to search the files of additional custodians bears the burden of establishing the relevance of the documents it seeks from those custodians.” Lightsquared Inc. v. Deere & Co., No. 13 Civ. 8157, 2015 WL 8675377, at *5 (S.D.N.Y. Dec. 10, 2015); see Fort Worth Employees' Retirement Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107 (S.D.N.Y. 2013). *3 In this case, the plaintiffs have not met the threshold for court intervention. To be sure, as discussed above, they contend that the defendants' production is incomplete. They do not, however, adequately link any purported shortcomings with the failure to search the files of the additional custodians. For example, the plaintiffs allege that Ms. Palazzo was responsible for “communications with the Monitor of the National Mortgage Settlement.” (Pl. Memo. at 15). That might render information within her possession relevant to the qui tam action, but it does not make her an appropriate custodian here. Similarly, the plaintiffs assert that Mr. Palettas “participated in the initial removal of RCV1 loans for lien release.” (Pl. Memo. at 17). Perhaps so, but in his role as an information technology employee, he is unlikely to have had substantive responsibilities relevant to the claims in question. (Def. Memo. at 18). Ms. Rubino was in charge of RCV1 administrative support (Pl. Memo. at 17), and the defendants' production already includes more than 5,300 email communications involving her (Def. Memo. at 18). The plaintiffs have not suggested a basis for believing that a search of her files would unearth new information of any significance. The issue is somewhat closer with respect to Mr. Driver. As Vice President of Lien Management at Chase, he was in charge of the business unit that processed lien releases. (Pl. Memo. at 17; Def. Memo. at 17). However, the defendants have already produced over 5,600 emails involving Mr. Driver, including any communications contained in Chase's shared drive. (Def. Memo. at 17 & n.9). The chances that there are unique materials contained on his personal drive are slim. Finally, Mr. Hemperly purportedly “exercised senior responsibility as Managing Director—Head of Mortgage Originations at Chase.” (Pl. Memo. at 18). But speculation that his position as a senior executive might increase the relevance of his files is not a basis for designating him as a custodian. See Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc., Nos. 12 Civ. 1579, 12 Civ. 7322, 2013 WL 1195545, at *3-4 (S.D.N.Y. March 25, 2013). To the contrary, it is equally plausible to assume that because of his senior position, he would have less information about specific transactions than employees lower in the hierarchy. Even if the plaintiffs had cleared the hurdle of showing that the proposed additional custodians had some unique relevant information, discovery of their files would not be warranted because the cost and burden would be disproportionate. As discussed above, given the information already produced, the marginal utility of that possessed by these custodians is low. Yet the cost of producing it would be substantial. Phil Verdelho, the Executive Director for Electronic Discovery Platform Services for Chase, has presented a detailed (and uncontradicted) analysis, showing that the cost of restoring the additional custodians' email mailboxes and deduplicating, culling, and reviewing the data would likely exceed $400,000.00. (Declaration of Phil Verdelho dated March 13, 2017, ¶¶ 2, 6-18). The game is simply not worth the candle. Privilege Log At the time that they filed the current motion, the plaintiffs sought an order requiring the defendants to produce a supplemental privilege log with respect to documents withheld from the latest wave of production or produced in redacted form. (Pl. Memo. at 18-21). They also complained of certain deficiencies in the original privilege log. (Pl. Memo. at 19-20). By the time the defendants answered the motion, they had submitted a supplemental log and argued that the plaintiffs' application was moot. (Def. Memo. at 18-19). The plaintiffs, however, contend that, because of the late submission of the log, any privilege should be deemed waived, and they argue that several of the deficiencies that they previously identified have not been remedied. (Plaintiffs' Reply Memorandum of Law in Further Support of Motion to Compel Discovery and Memorandum of Law in Opposition to Defendants' Cross-Motion for Protective Order at 8-9). In appropriate circumstances, the failure to produce an adequate and timely privilege log can result in forfeiture of privilege. See JDS Therapeutics, LCC v. CVS Pharmacy, Inc., No. 15 Civ. 4365, 2015 WL 6459092, at *2 (S.D.N.Y. Oct. 21, 2015); S.E.C. v. Yorkville Advisors, LLC, 300 F.R.D. 152, 157-58 (S.D.N.Y. 2014); In re Chevron Corp., 749 F. Supp. 2d 170, 180-82 (S.D.N.Y. 2010). However, “[o]nly flagrant violations of discovery rules should result in a waiver of privilege.” Johnson v. Riverhead Central School District, No. 14 CV 7130, 2016 WL 4507002, at *7 (E.D.N.Y. Aug. 26, 2016) (quoting Chevron Corp. v. Donziger, No. 11 Civ. 691, 2013 WL 4045326, at *3 (S.D.N.Y. Aug. 9, 2013)). This is not such a case. The defendants did not refuse to produce a privilege log, nor did they engage in calculated foot-dragging. Rather, they deferred production of a log so that they could focus on producing the documents themselves more expeditiously (Def. Memo. at 18-19), an approach for which they should not be punished. It is not clear which, if any, of the purported deficiencies in the log are still at issue. Therefore, by June 15, 2017, the plaintiffs shall provide the defendants with a list of any such shortcomings, and, if the parties are unable to resolve their differences, they shall identify any remaining disputes in the joint letter they are to submit by June 30, 2017. Plaintiffs' Rule 30(b)(6) Notice *4 In their motion to compel, the plaintiffs sought an order directing the defendants to produce a witness pursuant to a Rule 30(b)(6) notice. (Pl. Memo. at 21-23). The defendants cross-moved to quash the notice as overbroad and disproportionate to the needs of the case. (Def. Memo. at 20-24). Subsequent to oral argument, the parties reached a tentative resolution of this issue. The plaintiffs agreed to withdraw the original Rule 30(b)(6) notice and to proceed with a deposition on a more limited range of topics without prejudice to seeking a further deposition at a later date. That issue is therefore moot for the time being. Conclusion As detailed above, the plaintiffs' motion to compel (Docket no. 146) is granted in part and denied in part, and the defendants' motion for a protective order (Docket no. 152) is denied as moot. SO ORDERED. Footnotes [1] “Tr.” refers to the transcript of the oral argument held on May 10, 2017. [2] The plaintiffs also demanded the production of documents from the files of Mark Davis, who had been proposed as a custodian by the defendants. (Pl. Memo. at 14). In preparing to respond to the current motion, the defendants determined that they had initially searched the files of a former employee named Mark Davis who is not the person they intended to designate as a custodian. (Def. Memo. at 14 n.7). They have committed to rectifying the error and producing responsive documents from the files of the correct individual.