UNITED STATES OF AMERICA, ex rel. MELISSA SIMMS POWELL, ANGELA HITCHENS, JOSEPH PLUMLEY, JR., ED.D., and GLENN W. DOBSON, Plaintiffs, v. AMERICAN INTERCONTINENTAL UNIVERSITY, INC., a Georgia Corporation, CAREER EDUCATION, CORP., a Delaware Corporation, and JOHN DOE NOS. 1-100, Defendants CIVIL CASE NO. 1:08-CV-2277-RWS-LTW United States District Court, N.D. Georgia, Atlanta Division Filed May 24, 2012 Counsel David M. Pernini, Joseph Duane Wargo, Wargo & French LLP, Atlanta, GA, Amy L. Berne, Office of United States Attorney Northern District of Georgia, Atlanta, GA, for Plaintiff United States of America, ex rel. David M. Pernini, Joseph Duane Wargo, Michael Scott French, Wargo & French LLP, Atlanta, GA, for Plaintiffs Melissa Simms Powell, Angela Hitchens, Joseph P. Plumley, Jr., Ed.D., Glenn W. Dobson. BeLinda I. Mathie, Pro Hac Vice, Mary Ellen Hennessy, Pro Hac Vice, Michael S. Weisman, Pro Hac Vice, Katten Muchin Rosenman, LLP, Chicago, IL, Terance A. Gonsalves, Cara Marie Peterman, Jason Popp, William H. Jordan, Brandon R. Williams, Derin Bronson Dickerson, William Roy Mitchelson, Jr., John Ludlow Latham, Alston & Bird, LLP, Atlanta, GA, Leanne Michelle Marek, Office of the United States Attorney, Atlanta, GA, for American Intercontinental University, Inc. BeLinda I. Mathie, Pro Hac Vice, Mary Ellen Hennessy, Pro Hac Vice, Michael S. Weisman, Pro Hac Vice, Katten Muchin Rosenman, LLP, Chicago, IL, Terance A. Gonsalves, Cara Marie Peterman, Jason Popp, William H. Jordan, Brandon R. Williams, Derin Bronson Dickerson, William Roy Mitchelson, Jr., John Ludlow Latham, Alston & Bird, LLP, Atlanta, GA, Eric S. Fisher, Barnes & Thornburg LLP, Atlanta, GA, Leanne Michelle Marek, Office of the United States Attorney, Atlanta, GA, Michael Eric Ross, Taylor English Duma LLP, Atlanta, GA, for Career Education, Corp. Brandon R. Williams, Derin Bronson Dickerson, William Roy Mitchelson, Jr., Cara Marie Peterman, Jason Popp, Terance A. Gonsalves, William H. Jordan, John Ludlow Latham, Alston & Bird, LLP, Atlanta, GA, for John Does Nos. 1-100. Walker, Linda T., United States Magistrate Judge MAGISTRATE JUDGE'S ORDER *1 Pending before the Court are discovery-related issues raised by the parties duringt this Court's March 23, 2012 status conference, the parties' briefing in connection with Relators' Motion for a Status Conference and Defendants' Motion for a Status Conference and for Temporary Extension of the Discovery Period, and the parties' briefing in response to this Court's April 5, 2012 Order. Docket Entries [158, 159, 160, 162, 164, 170, 172, 174]. For the reasons outlined below, the parties are ORDERED to meet and confer as described in the body of this Order. If the parties cannot reach an agreement, they are further ORDERED to each submit two separate proposals outlining potential solutions to their remaining discovery disputes as well as deadlines for completion of the review process by June 17, 2012. BACKGROUND On July 14, 2008, Relator Plaintiffs Melissa Simms Powell, Angela Hitchens, Joseph P. Plumley, Jr., Ed.D., and Glenn W. Dobson (“Relators”) filed the instant lawsuit on behalf of themselves and the United States of America pursuant to the False Claims Act, 31 U.S.C. § 3729, et seq. Defendants are American Intercontinental University, Inc. (“AIU”), a for-profit higher education institution with two of its five campuses in Fulton County, Georgia, and its parent corporation, Career Education Corporation (“CEC”), who Relators believe exercises complete dominion and control over AIU and develops and oversees the implementation of all policies and procedures for AIU. (Compl. ¶¶ 11-14). Defendants answered the lawsuit on December 26, 2010, and discovery began on January 5, 2011. The parties began to have disputes during the discovery process starting at the end of February 2011. As a result, Defendants filed a Motion for Protective Order to define the scope of discovery and a Motion to Quash Subpoena issued to a third party and Relators filed a Motion to Compel Discovery. Docket Entries [86, 87, 106]. In June 2011, the lawsuit was referred to this Court for supervision of discovery. Docket Entry [112]. After holding a hearing on the parties' discovery motions and reviewing Defendants' supplemental briefing, this Court issued an Order defining the scope of discovery on January 20, 2012. Docket Entry [140]. In late February 2012, both parties requested that this Court have a status conference to discuss the length of the discovery period and a framework for producing the remaining documents necessitated by Relators' Requests for Production. Defendants argued that in light of the Court's January 20, 2012 Order, they are obligated to produce volumes of additional documentation responsive to Relators' Requests for Production. Defendants argue that due to the complexity of the issues in the case and the substantial volume of documents to be produced, an extension of the discovery period as well as document production deadlines is warranted. At the discovery conference, Relators agreed to limit the key words used to search for responsive documents to those proposed by the Defendants if Defendants would agree to include Directors of Admissions for the various campuses in the list of custodians whose documents will be collected and reviewed. Defendants did not agree to Relators' proposal, and this Court instructed the parties to brief the issue of whether Directors of Admissions should be added as additional custodians. LEGAL ANALYSIS I. Production of Electronically Stored Information for Directors of Admissions *2 At this Court's March 23, 2012 hearing, Relators' counsel indicated that they would agree to narrower search terms for electronic discovery proposed by Defendants if Defendants would expand their list of custodians whose electronic records would be searched to include Directors of Admissions for the various campuses. Defendants argue that given the limited relevance of the Directors of Admissions' documents and the same information likely could be obtained from other custodians whose documents Dependants have already agreed to produce, namely those of the Vice President of Admissions, the expense of production of such documents is unjustified. Discovery sought must be relevant to any party's claim or defense or must be reasonably calculated to lead to the discovery of admissible evidence. Mancuso v. Fla. Metro. Univ., No. 09-61984-CIV, 2011 WL 310726, at *3 n.3 (S.D. Fla. Jan. 28, 2011); Fed. R. Civ. P. 26(b)(1). The starting point for ascertaining whether or not discovery may be had on a topic is the Complaint and the defenses. Fed. R. Civ. P. 26(b)(1), 2000 Advisory Committee Notes (“The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action”); United States v. R&F Props. of Lake Cnty., 433 F.3d 1349, 1359 (11th Cir. 2005) (defining the temporal scope of discovery in qui tam action under False Claims Act by analyzing the time period of unlawful conduct alleged in the complaint). This does not mean, however, “that a fact must be alleged in a pleading for a party to be entitled to discovery of information concerning that fact. It means that the fact must be germane to a specific claim or defense asserted in the pleadings for information concerning it to be a proper subject of discovery.” 6 Moore's Federal Practice § 26.41 [a]. Nevertheless, the Court must limit the frequency or extent of discovery otherwise allowed under the federal rules if it determines that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C). A. Relevance Relators seek discovery concerning AIU's violation of the Higher Education Act's incentive compensation ban, failure to meet accreditation standards, admissions policies, procedures, and practices, and requirements that admitted students provide proof of a high school diploma. (Docket Entries [162-2], document requests 5, 11-15, 24-34, 36-40, 43-45, 47-52, 54-55, 64, 82, 90; Relators' Br., Docket Entry [171], pp. 2-3, 6). Relators believe that admissions personnel would have knowledge of the aforementioned topics, specifically, incentives for enrolling students, the preparation for SACS visits to AIU campuses, adherence to the requirement that admitted students present proof of graduation, as well as admissions policies and procedures. In this Court's view, the information requested by Relators is targeted at the heart of their case and is relevant. Defendants argue, however, that a portion of the requested electronically stored information possessed by the Directors of Admissions would have limited or no relevance. In support, Defendants take issue with Relators' argument that documents previously produced indicate that Directors of Admissions were involved in alleged fraudulent practices. By example, Defendants contend that Relators' email evidence from Lori Minor in which she mentions the 20 and Up Club does not show that admissions personnel received illegal incentives because there is no evidence that the “club” involved any “commission, bonus, or other incentive payment” that would violate the incentive compensation ban. (Docket Entry [173], p. 21). Defendants further argue that the fact that some Directors of Admission attended High Achievers Conferences does not demonstrate fraudulent practices on behalf of Defendants because paid attendance at such conferences do not violate the incentive compensation ban. (Docket Entry [173], p. 21). A school, in order to receive federal funds under Title IV of the Higher Education Act, 20 U.S.C. § 1094, must enter into a Program Participation Agreement with the Department of Education. 20 U.S.C. § 1094; United States v. Corinthian Colleges, 655 F.3d 984, 989 (9th Cir. 2011). Under the Program Participation Agreement, the school must agree to a recruiter incentive compensation ban, which prohibits institutions from paying recruiters a “commission, bonus, or other incentive payment” based on the number of students recruiters enroll. 20 U.S.C. § 1094(a)(20); Corinthian Colleges, 655 F.3d at 989. “The concern is that recruiters paid by the head are tempted to sign up poorly qualified students who will derive little benefit from the subsidy and may be unable or unwilling to repay federally guaranteed loans.” United States ex rel. Main v. Oakland City Univ., 426 F.3d 914, 916 (7th Cir. 2005). Under the regulations, a “commission, bonus, or other incentive payment” means “a sum of money or something of value, other than a fixed salary or wages, paid or given to a person or an entity for services rendered.” 34 C.F.R. § 668.14(b)(22)(iii)(A) (emphasis added). This broad definition appears to encompass other forms of compensation, such as paid travel and membership in a club offering some sort of benefit or value. *3 Additionally, while the 1995 letter from the Department of Education provides that sending an institution's top recruiters to business meetings designed for the purpose of educating and improving the skills of the institution's admissions personnel for the benefit of the institution would not violate the incentive compensation ban, no evidence in this case shows that the “High Achievers Conference” was for the betterment of the institution or improving the skills of admissions personnel. See United States ex rel. Gatsiopoulos v. Kaplan Ctr., No. 09-21720-CIV, 2010 WL 5392668, at *4 (S.D. Fla. Dec. 22, 2010) (concluding that Department of Education letter was not persuasive because defendant did not present evidence showing trips were for the purpose of educating and improving the skills of admissions personnel). Moreover, Defendants present no authority for the proposition that the 1995 interpretation letter sets forth current Department of Education policy or that the letter is controlling authority for the Court. United States ex rel. Main, 426 F.3d at 917 (rejecting Department of Education memo as authority for the case because memo had no legal effect); United States ex rel. Irwin v. Significant Educ., Inc., No. CV-07-1771-PHX-DGC, 2009 WL 322875, at *2 (D. Ariz. Feb. 10, 2009) (rejecting 1999 letter from Department of Education as authority in the case because there was no basis for concluding that letter reflected current policy or that the letter is authority for the court). This Court is further persuaded that the Directors of Admissions may be custodians of pertinent documents. Relators' Complaint asserts that AIU required enrollment counselors to meet certain enrollment quotas and enrollment counselors' salaries and incentives were directly based on their enrollment numbers, eschewing academic qualifications of enrollees. (Compl. ¶¶ 22-28). As Defendants' Director of Admissions Interview/Selection Process document makes clear, Directors of Admission managed the teams of Admissions Advisors who helped interested students enroll in the University. (Def. Ex. 2, Docket Entry [171-1], p. 34). According to that document, Directors of Admissions “are responsible for assuring the integrity of all university processes related to admissions and that all Admissions Advisors exhibit ethical behavior and act with integrity.” (Def. Ex. 2, Docket Entry [171-1], p. 34). Additionally, in determining whether Defendant AIU would retain its accreditation, SACS interviewed certain Directors of Admissions. (Def.'s Ex. 3,4, Docket Entry [171-1], pp. 38, 40). Furthermore, the limited number of documents produced regarding Directors of Admissions thus far lend some support for the notion that the Directors of Admissions fostered or were part of a culture within Admissions which focused on the number of enrollments. (Def.'s Ex. 10-12, Docket Entry [171-2], pp. 40-53). Additionally, while Defendants contend that these types of documents may likely be obtained from custodian sources whose documents they have already agreed to produce, such as Vice Presidents of Admissions' documents, they fail to provide support for the conclusion that the Vice President of Admissions' documents are likely to yield the same responsive documents. It appears to this Court that documents collected thus far which reference Directors of Admissions lend support for the conclusion that they were directly involved in incentivizing Admissions Advisors to meet enrollment numbers. Moreover, given that the Directors of Admissions, not the Vice Presidents of Admissions, served as the Admissions Advisors' direct supervisors, it is logical that there may be more written documents that pertain to the issues in this case that are not shared with Vice Presidents of Admissions. Docket Entry [171-2], pp. 39-46. Although Defendants contend that production of the Directors of Admissions' documents would be duplicative of the documents produced in the original production of the other custodians, Defendants do not explain why duplicate documents cannot be removed electronically. That being said, regardless of the relevance of the discovery or the likelihood that the discovery will lead to admissible evidence, the court may still limit the extent of discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C). B. Burdensomeness *4 Defendants argue that the additional production of electronic documents retained by Directors of Admissions would exponentially increase the amount of documents to be produced because more than 254 Directors of Admissions worked at AIU from the period of 2001 to the present. Defendants estimate that with 25 reviewers, it will take 35 weeks, at a cost exceeding $9,500,000, to review the approximately 19,000,000 pages of documents they have already proposed to produce, which do not include documents for the Directors of Admissions. Defendants estimate that production of electronically stored information for the 254 additional custodians will necessitate review of an additional 5,410,000 documents (89,700,000 pages), or quadruple the number of pages to be reviewed, which, with its current team of reviewers would take 162 weeks to complete. (Docket Entry [173], p. 13-15). Defendants propose that they could provide Directors of Admissions data if Relators would bear the costs associated with the review and production of the data, which is currently approximated at $37,500 per custodian. Alternatively, Defendants propose that instead that they will substitute any specific Directors of Admissions of Relators' choice for any of the 105 other custodians for which Defendants are producing documents. Relators argue in response that the scope of discovery is justified by the extensiveness of the fraud that Defendants perpetrated in that they obtained more than $2.8 billion in Title IV student aid funds. “Under Rule 26(b)(2)(C), courts impose a proportionality test to weigh the interests of the parties to determine whether discovery, even if relevant, should be allowed to proceed.” Tucker v. Am. Int'l Grp., No. 3:09-CV-1499 (CSH), — F.R.D. —, 2012 WL 902930, at *4 (D. Conn. Mar. 15, 2012). Thus, courts may limit discovery when the discovery sought is unreasonably cumulative or duplicative, can be obtained from a more convenient, less burdensome, or less expensive source, or where the burden of producing the proposed discovery outweighs its likely benefit. Id. at *5; Fed. R. Civ. P. 26(b)(2)(C). Given Defendants' present estimate that 5,410,000 documents (89,700,000 pages) will be yielded by a search of the 254 Directors of Admissions, this Court is concerned that Defendants' methodology for the search is yielding too many unresponsive documents. As a result, this Court observes that the parties may be able to agree to use a tighter search protocol to cull the numbers of documents which must be reviewed, by considering implementation of one or more of the following: 1. More focused key words targeted specifically at the types of relevant documents that the Director of Admissions may have to be used in the searches of their documents; 2. Limits on the sources of documents for each Director of Admission to those likely to render responsive documents; 3. Use of Boolean connectors, Bayesian classifiers, or fuzzy logic for more refined key word searches (See, e.g., Victor Stanley v. Creative Pipe, Inc., 250 F.R.D. 251, 261 & n.9 (D. Md. 2008); 4. Use of de-duplication software to eliminate duplicate electronic files; 5. Performing sample searches using the parties' proposed protocols and examining the results of the searches to determine if certain criteria are over-inclusive; and/or 6. Consideration of other search methodologies other than key word searches, such as predictive coding or statistical techniques (See, e.g., Moore v. Publicis Group & MSL, No. 11 Civ. 1279 (ALC)(AJP), 2012 WL 607412, at *3-4 (S.D.N.Y. Feb. 24, 2012); Jason R. Baron et al., The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conference J. 189, 202-03, 207-08 (2007)).[1] Therefore, the parties are ORDERED to meet and confer in order to cooperatively construct a search protocol that will yield a more reasonable number of documents to be reviewed. In doing so, the Court envisions that Relators should be able to propose possible search protocols and Defendants shall be expected to provide Relators with transparency into its search process, estimates of the amount of documents Relators' proposed searches could be expected to yield, as well as estimates of the amount of relevant documents the proposed search would be expected to yield. In the event that either too few or too many files would be retrieved when employing certain proposed search protocols, search protocols should be adjusted accordingly for subsequent rounds of searching. The level of cooperation between the parties that this Court envisions is a back and forth, honest negotiation to arrive at a reasonable solution for this problem. Thus, the parties are expected to negotiate with one another in person or on the telephone on multiple occasions (not just an exchange of emails or letters) to see if they can further refine the search protocol to minimize the number of disputes between them. *5 If this process does not produce an agreement, the parties shall each submit two different proposals to the Court by June 18, 2012. The proposals shall contain potential solutions to address the remaining disputes, so that the Court may assist the parties in resolving them. In doing so, however, the parties are required to back up their positions with respect to any remaining disputes involving the appropriateness of the proposed ESI search protocols with reliable information about the strengths and weaknesses of the parties' competing information retrieval methodologies from someone with the qualifications to provide a helpful, educated opinion on the matter. Victor Stanley, Inc., 250 F.R.D. at 260 n. 10. The parties should also provide statistics within their proposals showing an estimate of the documents required to be reviewed after de-duplication when using their proposed search methodology, an estimate of the number of relevant documents the search is expected to yield, and the cost of conducting the search so that the Court may examine whether the benefit of the proposed search justifies its burden. This Court expects that the parties' negotiations will resolve a majority of the parties' disputes and that if proposals must be submitted, the proposals will include earnest solutions to the problem at hand and shall not include hardline, stalwart positions or all or nothing gamesmanship. II. Timeline for Production Relators argue that Defendants have been “leisurely” in producing documents required by this Courts January 2012 Order and that they have not yet received documents Defendants agreed to produce in response to discovery requests served in January 2011, even though Defendants counsel informed counsel for Relators in writing that they expected to complete initial production by October 11, 2011. Relators argue that Defendants have not even provided them with the date when they expect to complete their document production. In response, Defendants argued that volume of documents necessitated by this Court's January 2012 Order is so large that it has not been able to assess exactly how long full compliance would take and what resources are required to ensure compliance. While Defendants state as of March 21, 2012, that they have been working diligently to determine how much data they must review and how long it will take them to review and produce it, they still do not know how long compliance with this Court's January 20, 2012 Order will take. Docket Entry [162], p. 2. Defendants believe, after extrapolating from data they already have, that if they use twenty-five document reviewers per day for five days per week, it will take them thirty-five weeks to complete the review and production of hard copy documents and electronically stored information. Docket Entry [162], p. 8. Defendants contend that increasing the number of document reviewers will not improve matters because they still would be slowed by the time it takes for supervision of the reviewers work. Defendants point out that even after they complete their document production, however, they will still need to create a privilege log and make redactions pursuant to the Family Educational Rights and Privacy Act. Unsurprisingly, the parties disagree as to a timeline for Defendants' production of additional documents and as to how long the discovery period should be extended. At any time, a party from whom discovery is sought may move for a protective order to protect it from undue burden or expense. Fed. R. Civ. P. 26(c)(1). In order to protect a party from undue burden or expense, the court may specify the terms, including time and place, for the disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(B). This Court agrees that the discovery period and Defendants' production deadlines have to be extended. However, this Court is hesitant to impose deadlines at this time without the parties advising the Court as to their efforts in devising a search protocol and the expected time for completion of the review assuming their proposed search protocol is implemented. As Relators' counsel indicated that the Relators may be willing to agree to utilize Defendants' proposed key words if Defendants produced documents for the Directors of Admissions, the Relators' agreement may result in further culling of the documents to be reviewed. During the parties negotiation sessions, they should consider addressing and further narrowing the search protocol for not only Directors of Admissions, but also the other custodians as well. The parties should also consider staged deadlines for production of certain categories of documents. This Court's present thoughts on the matter are that the documents for custodians other than the Directors of Admissions could be produced within a date certain in approximately four months. Defendants may employ additional document reviewers and supervisors to assist them in reaching any deadline ultimately imposed. A separate, later deadline could be set for production of documents from the Directors of Admissions. However, the parties may negotiate a different solution in their meet and confer sessions based on their priorities. To the extent that the parties cannot agree on deadlines for production, the parties should address potential staged deadlines in their competing proposals to the Court. CONCLUSION *6 For the foregoing reasons, the parties are ORDERED to meet and confer as described in the body of this Order. If the parties cannot reach an agreement, they are further ORDERED to each submit two separate proposals outlining potential solutions to their remaining discovery disputes as well as deadlines for completion of the review process by June 17, 2012. IT IS SO ORDERED this the 24 day of May, 2012. Footnotes [1] By proposing these suggestions, the Court is not attempting preclude other methods that the parties may devise which were not included in this list.