Richard Zeitlin, et al., Plaintiffs, v. Bank of America, N.A., Defendant Case No. 2:18-cv-01919-RFB-BNW United States District Court, D. Nevada Filed October 03, 2022 Weksler, Brenda, United States Magistrate Judge Order *1 Before the Court is Plaintiffs’ motion to compel. ECF No. 195. Defendants responded (ECF No. 224), and Plaintiffs replied (ECF No. 236). I. Background In 1994, Zeitlin opened a personal deposit account with Bank of America, N.A. (“BANA”). ECF No. 1 at 3. Over the next 24 years, Zeitlin opened several more accounts for himself and many of the Plaintiff entities. Id. Each of these accounts is subject to the terms and conditions of BANA's deposit agreement. Id. The agreement allows BANA to “freeze some or all of the funds,” in its discretion, if BANA “believe[s]” the accounts “may be subject to irregular, unauthorized, fraudulent, or illegal activity.” Id. at 4. In August 2018, BANA froze several of Zeitlin's personal and business accounts. Id. Zeitlin demanded that BANA explain why the accounts were frozen, and in its response BANA relied on the above-quoted freeze clause. Id. Zeitlin and the other entity Plaintiffs filed a complaint against BANA in October 2018. Id. at 1. Zeitlin alleged that, due to the freezes, he lost at least $2 million in sales, was forced to lay off employees, and suffered $150,000 in damages due to lost daily production. Id. at 6. Plaintiffs’ surviving claims include breach of contract and breach of the implied covenant of good faith and fair dealing. Id. 6–8; ECF No. 27. For its part, BANA asserts that it froze the accounts because it identified transactions that it believed were “irregular, unauthorized, fraudulent or illegal.” ECF No. 114 at 2. Specifically, BANA identified the deposit of millions of dollars into Plaintiffs’ accounts, all from different purported charities. Id. Following these deposits, Zeitlin supposedly wired millions of dollars out of the country to Panama, Guatemala, and the Philippines. Id. BANA grew concerned that Zeitlin's accounts were being used in a largescale fraud scheme. Id. BANA's concerns were buttressed by public records research into Zeitlin, which revealed that Zeitlin and some of the other Plaintiffs were being investigated for fraud and other illegal practices in the charity sphere. Id. With this in mind, BANA froze Plaintiffs’ accounts pursuant to the terms of the deposit agreement(s). Id. BANA eventually closed Plaintiffs’ accounts and returned his balances. Id. II. Legal Standard The scope of discovery is governed by Federal Rule of Civil Procedure 26. Rule 26(b)(1) allows a party to obtain information that is relevant to any claim or defense, proportional to the needs of the case, and non-privileged. Fed. R. Civ. P. 26(b)(1). The party opposing a motion to compel bears the burden of establishing why the discovery should not be had. See Krause v. Nevada Mutual Insurance Co., 2014 WL 496936, at *3 (D. Nev. Feb. 6, 2014) (person opposing a motion to compel generally carries the burden to show why the discovery should not be had). If, however, the relevance of the discovery sought is not apparent, then the party seeking discovery must make an initial showing of how the discovery sought is relevant. Id. *2 The court has broad discretion to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). III. Analysis Plaintiffs move to compel responses to certain requests for production, unredacted copies of certain documents, and responses to deposition questions that witnesses were instructed not to answer. ECF No. 195 at 7-8 (listing these three discovery issues and stating, “[t]hese are the disputed discovery issues upon which Plaintiffs move to compel.”). Plaintiffs also seek several other forms of relief. The Court will address these requests in this order. a. Plaintiffs’ Requests for Production Plaintiffs move to compel responses to 17 requests to produce. The Court will address these requests in groups based on the objections BANA stands on. i. First Set of Requests for Production 1-3, 6-7 Plaintiffs move to compel responses to their First Set of Requests for Production 1-3 and 6-7. See ECF No. 195 at 15-16; ECF No. 195-3 (Plaintiffs’ requests and BANA's responses). Plaintiffs note that they would expect the responses to these requests to include the following categories of documents: (1) BANA's Anti-Money Laundering (AML) investigations of Plaintiffs; (2) BANA's investigation of the correspondent banks through which Plaintiffs’ large-dollar wire transfers were transacted; (3) BANA's communications with Federal Law Enforcement; (4) BANA internal communications; (5) Frey's written investigative work product; (6) documents of BANA executives who were involved in the investigation; and (7) fraud alerts generated on Plaintiffs’ accounts. Id. at 15-16. However, Plaintiffs do not believe they received all documents responsive to these requests based on BANA's many objections. BANA responds by stating that while it asserted several objections to these requests, it only withheld documents based on the suspicious activity report (“SAR”) privilege.[1] ECF No. 224 at 29. Were this BANA's only response (that it is not standing on any other objections and produced all responsive documents other than those it is not permitted to disclose), the Court's analysis would end. The Court cannot force a party to produce documents that do not exist. However, BANA made other arguments that concern the Court. Specifically, BANA's other arguments suggest that BANA has unilaterally imposed an unreasonably narrow reading on Plaintiffs’ requests to produce. For example, BANA states, “Plaintiffs claim that RFPs 1-3 and 6-7 as drafted require production of the following: AML investigations of the Plaintiffs; investigation of correspondent banks; executive documents; and fraud alerts generated on Plaintiffs’ accounts. They do not.” Id. at 30. “Even the broadest reading of Plaintiffs’ First RFP's does not include these types of documents.” Id. at 31. The Court disagrees. For example, Request to Produce No. 2 seeks, “all documents relating to any pre-freeze investigation that led to the decision to freeze Plaintiffs’ accounts ....” ECF No. 195-3 at 2. Similarly, Request to Produce No. 3 seeks, “all documents relating to the alleged (post-freeze) investigation ....” Id. at 3. Accordingly, to the extent any (1) AML investigations of Plaintiffs; (2) BANA's investigation of the correspondent banks through which Plaintiffs’ large-dollar wire transfers were transacted; (3) BANA's communications with Federal Law Enforcement; (4) BANA internal communications; (5) Frey's written investigative work product; (6) documents of BANA executives who were involved in the investigation; and (7) fraud alerts generated on Plaintiffs’ accounts exist and relate to BANA's pre or post-freeze investigation of Plaintiffs, they must be produced (if they are not SAR privileged). *3 Indeed, all documents that are non-privileged and responsive to Plaintiffs’ First Set of Requests to Produce 1-3 and 6-7 must be produced within 30 days of this Court's order. BANA is specifically ordered to interpret the requests as written and produce all responsive documents unless they are SAR privileged (as this is the only objection BANA stood on). See ECF No. 224 at 29. To the extent BANA does not produce all responsive documents and Plaintiffs successfully move to compel on these requests again based on an unreasonable interpretation by BANA, the Court will not look kindly on it. ii. Second Set of Requests for Production 9-12, 17 Plaintiffs moves to compel responses to their Second Set of Requests for Production 9-12 and 17. ECF No. 195 at 17-24. BANA responds that it has no documents responsive to these requests. ECF No. 224 at 35. Again, if this was BANA's only response, the Court's analysis would end. As the Court previously stated and the parties are aware, the Court cannot order a party to produce documents that do not exist. Again, however, BANA made additional statements that concern the Court about whether it has interpreted Plaintiffs’ discovery requests in a reasonable and good faith manner. For example, Request to Produce No. 9 seeks, “all Do Not Do Business with lists that were prepared in connection with any investigation concerning Plaintiffs or Plaintiffs’ Accounts.” ECF No. 195-4 at 2. BANA notes that it does not have any DNDB list responsive to this request, as the DNDB list was generated once the investigation was over. ECF No. 224 at 35. Accordingly, BANA seems to be reading Plaintiffs’ request (and specifically the language, “in connection with any investigation”) in an unreasonable manner. If Plaintiffs were put on a DNDB list because of BANA's investigation, the DNDB list would be “prepared in connection with” an investigation of Plaintiffs’ accounts. In all events, however, BANA also objected to Request No. 9 on the grounds that it sought irrelevant documents. ECF No. 224 at 36; ECF No. 195-4 at 2-4. Plaintiffs argue that the DNDB list is relevant to its claim for punitive damages. ECF No. 195 at 17. Plaintiffs suggest that BANA attempted to cause them financial harm by putting them on a DNDB list. Id.; ECF No. 236 at 22. Plaintiffs’ theory is that BANA shared the DNDB list with others to harm Plaintiffs. ECF No. 195 at 12. However, BANA asserts that the DNDB list is highly confidential and, as such, is not shared inside or outside BANA. ECF No. 224 at 36. Based on BANA's assertion that this list is not shared inside or outside BANA, the list would not be relevant to show that BANA tried to financially harm Plaintiffs by sharing this list. However, to the extent the DNDB list was shared with anyone outside BANA, the list must be produced. Request to Produce No. 10 seeks all listings of all recipients of any Do Not Do Business list prepared in connection with any investigation concerning Plaintiffs. ECF No. 195-4 at 4. BANA asserts that no responsive documents exist. ECF No. 224 at 36. In response, Plaintiffs suggest that the Court cannot take BANA's word for this, but they do not provide any evidence that responsive documents actually exist. See ECF No. 236 at 23. Again, the Court cannot force a party to produce documents that do not exist and will not do so. However, BANA is advised that the Court interprets this request as including any document that lists (in any way) recipients of this DNDB list. Accordingly, to the extent this DNDB list was shared with anyone, BANA must produce documents that show who the list was shared with. *4 Request to Produce No. 11 seeks listings of recipients of documents prepared in connection with any investigation concerning Plaintiffs that represented that Plaintiffs were engaged in a confirmed fraud. ECF No. 195-4 at 6. BANA responds that it has no responsive documents. ECF No. 224 at 36-37. Plaintiffs do not discuss this response in their reply. See ECF No. 236. Accordingly, the Court has no indication that responsive documents exist and will not order BANA to produce documents that do not exist. Request to Produce No. 12 seeks “all retractions or corrections of any Do No Do Business with list or any document representing that any Plaintiff was engaged in a confirmed fraud.” ECF No. 195-4 at 8. BANA asserts that it has no responsive documents. ECF No. 224 at 37. BANA explains that because it has no documents responsive to Requests 9-11, it follows that it has no retractions or corrections to nonexistent documents. Id. First, it appears clear that BANA does have responsive documents to Request No. 9 (i.e., the DNDB list) when this request is interpreted fairly. However, as the Court previously explained, this document is not relevant to any claim or defense. Similarly, Plaintiffs have not explained how any retractions or corrections to such a list would be relevant to any claim or defense. As such, the Court will not order BANA to produce any retractions or corrections to any DNDB list. Second, it is not clear that BANA has interpreted the second part of Request to Produce No. 12 reasonably. It seeks, “all retractions or corrections of any ... document representing that any Plaintiff was engaged in a confirmed fraud.” ECF No. 195-4 at 8. BANA suggests that because it has no documents responsive to Requests No. 11, it follows that it has no documents responsive to Request No. 12. ECF No. 224 at 37. However, Request Nos. 11 and 12 are slightly different: Request No. 11 seeks listings of recipients of documents representing that Plaintiffs engaged in a confirmed fraud, and Request No. 12 seeks retractions or corrections to documents representing that Plaintiff was engaged in a confirmed fraud. ECF No. 195-4 at 6, 8. Accordingly, it is not clear to the Court that BANA has interpreted Request No. 12 consistent with its plain meaning. It must do so. To the extent BANA has any “retractions or corrections of any ... document representing that any Plaintiff was engaged in a confirmed fraud,” it must produce them within 30 days of this Court's order. Request to Produce No. 17 seeks all internal and external audit reports for Plaintiffs’ accounts for the three years before BANA froze Plaintiffs’ accounts. ECF No. 195-4 at 14-15. BANA asserts that it has no responsive documents. ECF No. 224 at 37-38. Plaintiffs do not respond to this assertion in their reply. See ECF No. 236. Accordingly, the Court has no reason to believe these documents exist and cannot order BANA to produce documents that do not exist. iii. Second Set of Requests for Production 13-16, 18-20, 22 Plaintiffs seek responses to their Second Set of Requests for Production 13-16, 18-20, and 22. BANA stands on its objections to all these requests on the grounds that they seek irrelevant information, are unduly burdensome, and not proportional to the needs of the case. ECF No. 224 at 38-41. The Court will address each request in turn. Request to Produce No. 13 seeks the name of certain account monitoring systems. ECF No. 195-4 at 9. Plaintiffs have not established how this request is relevant to the case but simply state that this request was taken from another case in which BANA was ordered to produce similar documents. See ECF No. 195 at 25. Because the relevance of this request is not apparent and Plaintiffs have not carried their burden to show the request is relevant, the Court will not order BANA to produce documents in response to this request. *5 Requests to Produce 14 through 16 and 19 are related. Request to Produce No. 14 seeks all fraud alerts from any automated or manual account monitoring system for Plaintiffs’ accounts within the three-years preceding the account freeze. ECF No. 195-4 at 10. Request to Produce No. 15 seeks all reports (excluding SARs) relating to BANA's accounting monitoring systems that reference Plaintiffs for the three-years before the account freeze. Id. at 12. Request to Produce No. 16 seeks all documents relating to the resolution of alerts generated by BANA's account monitoring systems for Plaintiffs’ accounts. Id. at 13. Request to Produce No. 19 seeks all documents pertaining to any investigation because of any fraud detection or antimony laundering reports for Plaintiffs’ accounts. ECF No. 195-4 at 16. Plaintiffs assert that these requests are relevant to BANA's “contrived narrative that there was something inherently suspicious about large, offshore wire transfers when Plaintiffs had been making them for years.” ECF No. 195 at 26. Plaintiffs believe that alerts would likely have been issued in the past, flagged, investigated, and subordinated by BANA's fraud-monitoring protocols after certain information was validated. Id. at 26, 28. Plaintiffs assert that the flagging of their accounts and the subsequent subordination of these flags would “impeach the credibility of [BANA's] key witnesses and show that there was nothing inherently suspicious about Plaintiffs’ large wire transfers.” Id. at 29, 31. BANA responds by arguing that these requests seek irrelevant information because they seek alerts unrelated to the investigation at issue. ECF No. 224 at 39. Further, BANA asserts that it produced the documents it relied on in conducting the investigation that led to the freeze. Id. BANA also asserts that the investigation at issue was not triggered by a fraud alert but by a BANA analyst. Id. In reply, Plaintiffs again state that they believe that their previous transactions were flagged by BANA's fraud monitoring systems but manually subordinated by BANA, as BANA knew Plaintiffs were conducting legitimate business operations. ECF No. 236 at 22. Plaintiffs have not carried their burden to show how BANA's fraud alerts for the past three years before the account freeze are relevant to any claim or defense. The Court understands Plaintiffs’ belief that their transactions were previously flagged for fraud, but these flags were “subordinated” because Plaintiffs were believed to be legitimate customers. The Court also understands (but disagrees with) Plaintiffs’ assertion that past fraud alerts on Plaintiffs’ accounts would show that there was nothing inherently suspicious about Plaintiffs’ large wire transfers.[2] But even assuming that all of Plaintiffs’ assertions are true, Plaintiffs have not explained how they relate to any claim or defense. Put another way, Plaintiffs have not explained how these alerts and the subordination of them would make any element of their claims (breach of contract and breach of the covenant of good faith and fair dealing) or defense more or less likely. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ....”). To be clear, the Court is not saying that these documents are irrelevant to this case, but Plaintiffs have not fleshed out how these documents would be relevant to any claim or defense. And this is the third time Plaintiffs have briefed this motion. See ECF Nos. 104, 151, 195. Accordingly, the Court will not order BANA to produce documents in response to Requests to Produce No. 14-16 and 19. *6 Request to Produce No. 18 seeks all compliance audits regarding transactions in Plaintiffs’ accounts for the three years before the account freeze. ECF No. 195-4 at 16. Plaintiffs do not explain why these documents are relevant and it is not apparent to the Court. See ECF No. 195 at 31; ECF No. 236. Accordingly, Plaintiffs have not carried their burden to show the relevance of these documents to any claim or defense. Request to Produce No. 20 seeks all large dollar reports on any transaction in Plaintiffs’ accounts within the three years before the freeze. ECF No. 195-4 at 18. Plaintiffs have not established how this request is relevant to the case but simply state that this request was taken from another case in which BANA was ordered to produce similar documents. See ECF No. 195 at 32. Because the relevance of this request is not apparent and Plaintiffs have not carried their burden to show the request is relevant, the Court will not order BANA to produce documents in response to this request. Request to Produce No. 22 seeks all Customer Due Diligence Forms in their native format. ECF No. 195-4 at 20. BANA objected on relevance grounds, and Plaintiffs argue that BANA's objection is based on a distorted reading of comments made by the district judge in this case. ECF No. 195 at 33. The Court agrees with Plaintiffs that BANA, in general, appears to have misconstrued the district judge's comments to impermissibly narrow the scope of all relevant discovery.[3] However, it is still Plaintiffs’ burden to show that this document request is relevant to any claim or defense. See Krause v. Nevada Mutual Insurance Co., 2014 WL 496936, at *3 (D. Nev. Feb. 6, 2014) (if the relevance of the discovery sought is not apparent, then the party seeking discovery must make this initial showing). Again, Plaintiffs do not explain how this discovery request is relevant to any claim or defense and it is not apparent to the Court.[4] See ECF No. 195 at 33; ECF No. 236. Accordingly, the Court will not order BANA to produce documents responsive to this request. b. BANA's Redactions Plaintiffs move to compel BANA to produce unredacted copies of certain documents that were produced in a redacted format without being logged on BANA's privilege log. ECF No. 195 at 33-36. Plaintiffs suggest that BANA may have redacted irrelevant or nonresponsive information but that this is not permitted under the Federal Rules of Civil Procedure or caselaw. Id. at 34-35. Plaintiffs note that BANA claims that at least some names it redacted are confidential. Id. at 36. However, Plaintiff suggests that this is impermissible because, at other times, BANA produced documents containing unredacted names of non-parties that are unrelated this suit. Id. *7 BANA responds that Plaintiffs agreed that the parties could redact certain confidential information from documents produced in discovery in their stipulated protective order. ECF No. 224 at 45. BANA states that it has only redacted and not logged confidential information relating to third parties, as the parties’ agreement allows. Id. In their reply, Plaintiffs do not respond to this argument. BANA is correct. In the parties’ protective order, they agreed that “[a] producing party may also redact confidential information to the extent such is, or relates to, personal, private, or financial information of a non-party.” ECF No. 42 at 2; ECF No. 43 (adopting protective order subject to certain requirements when documents are filed under seal). Accordingly, the Court will not order BANA to produce unredacted documents Plaintiffs agreed they could redact. c. BANA's Deposition Objections During Mr. Frey and Ms. Miller's depositions, BANA instructed the witnesses not to answer several questions based on the SAR privilege and a “grand jury privilege.” Plaintiffs move to compel responses to certain questions, asserting the answers were not privileged. ECF No. 195 at 36-44. The Court will first discuss the SAR privilege and whether BANA's SAR objections were proper. The Court will then turn to the grand jury privilege and whether BANA's objections on this basis were proper. i. The SAR Privilege If a bank makes a SAR, then it and its employees are prohibited from “notify[ing] any person involved in the transaction that the transaction has been reported.” 31 U.S.C. § 5318(g)(2)(A)(i). Critically, banks are prohibited from disclosing a SAR and any information that “would” reveal the existence of a SAR. 31 C.F.R. § 1020.320(e)(1)(i);12 C.F.R. § 21.11(k)(1)(i). Disclosure prohibitions extend to no-SAR decisions as well. 75 Fed. Reg. 75593, 75595 (Dec. 3, 2010) (“an institution also should afford confidentiality to any document stating that a SAR has not been filed.”) (emphasis added); 75 Fed. Reg. 75576, 75579 (Dec. 3, 2010) (“By extension, a national bank also must afford confidentiality to any document stating that a SAR has not been filed.”). If a bank were able to disclose “information when a SAR is not filed, institutions would implicitly reveal the existence of a SAR any time they were unable to produce records because a SAR was filed.” 75 Fed. Reg. 75593, 75595 (Dec. 3, 2010); accord 75 Reg. 75576, 75579. In short, information is privileged if it would reveal “with effective certainty” a SAR or no-SAR decision. See First Am. Title Ins. Co. v. Westbury Bank, 2014 WL 4267450, at *2 (E.D. Wis. Aug. 29, 2014). However, “information that, with aid of supposition or speculation, might tend to suggest to a knowledgeable reviewer whether a SAR was filed, is not privileged.” Id. To the extent the SAR privilege applies, it “is unqualified and cannot be waived.” Id. at *1. ii. Whether BANA Properly Asserted the SAR Privilege First, BANA asserted the SAR privilege in response to six questions relating to Mr. Frey's investigative conclusions. ECF No. 195 at 37. Specifically, the questions all asked, in one way or another, whether Mr. Frey concluded that Plaintiffs were engaged in illegal conduct.[5] See id. *8 BANA argues that the responses to Questions 1-6 are protected by the SAR privilege. ECF No. 224 at 20-24. BANA notes that it was specifically Mr. Frey's job to determine whether to file a SAR about Plaintiffs’ accounts. Id. at 21. Further, BANA is obligated by law to file a SAR if it detects known or suspected criminal violations over a certain dollar amount. Id. Therefore, Mr. Frey's conclusions about whether Plaintiffs were engaged in illegal activity would reveal with effective certainty whether BANA filed a SAR, as it would have been required to do. Id. Plaintiffs do not substantively respond to this argument other than to say that the SAR privilege does not apply based on a person's job description. See ECF No. 236 at 12-13. The Court agrees with BANA that allowing Mr. Frey to answer Questions 1-6 would have revealed, with effective certainty, the existence or non-existence of a SAR. It was Mr. Frey's job to decide whether to file a SAR, and he would have been obligated to do so upon finding that Plaintiffs were engaged in illegal conduct. Accordingly, answering whether he concluded that Plaintiffs were engaged in illegal activity would have revealed with effective certainty whether a SAR or no-SAR decision was made.[6] Accordingly, BANA's SAR objections to Questions 1-6 are sustained. Second, BANA asserted the SAR privilege in response to six questions relating to Mr. Frey's cooperation with law enforcement. ECF No. 195 at 37-43.[7] Id. Regarding the SAR privilege, Plaintiffs argue that the answers to Questions 7-12 are either not SAR-privileged or, if they would be, this means that BANA improperly revealed its SAR decision to law enforcement. See ECF No. 195 at 39-40. BANA argues that Plaintiffs’ position is based on a misunderstanding of the law, as banks are allowed to reveal SAR decisions to law enforcement. ECF No. 224 at 22. BANA argues that it was proper for them to instruct Mr. Frey not to answer Questions 7-12 because Mr. Frey's answers would reveal either that he filed a SAR or that he complied with a grand jury subpoena, neither of which BANA is permitted to do. Id. *9 In reply, Plaintiffs acknowledge that SARs can sometimes be disclosed to law enforcement. ECF No. 236 at 13. However, Plaintiffs state that BANA does not say that all of Mr. Frey's communications with law enforcement were SAR privileged “because it cannot.” Id. Plaintiffs do not further flesh out why BANA cannot assert the SAR privilege to Questions 7-12 (other than suggesting that BANA attempted to influence law enforcement to investigate Plaintiffs’ counsel and that this would not be SAR privileged). See id. The Court will analyze each question in turn. Question 7 asked how the Secret Service came to be involved in BANA's investigation. ECF No. 195-39 at 168. BANA instructed Mr. Frey not to answer if the answer would reveal the existence of a SAR or a grand jury investigation. Id. Based on the briefing before the Court, the Court cannot tell if the answer to Question 7 would reveal whether a SAR or no-SAR decision was made. Accordingly, the Court will order BANA to file a declaration by Mr. Frey, ex parte and under seal within 14-days of this Court's order, providing his answer to this question under penalty of perjury. The Court will then determine whether the answer is shielded from disclosure by the SAR privilege. Question 8 asked whether Mr. Frey discussed his belief that Plaintiff was a part of a fraud scheme with the FBI or Secret Service. Id. at 243. BANA instructed Mr. Frey not to answer because the response “could potentially reveal whether or not a SAR was filed.” Id. This objection was not proper. Banks are prohibited from disclosing a SAR and any information that “would” reveal the existence of a SAR. 31 C.F.R. § 1020.320(e)(1)(i);12 C.F.R. § 21.11(k)(1)(i). Simply answering “yes” or “no” would not reveal with effective certainty whether or not a SAR was filed. This is so because Mr. Frey could have discussed his opinion with the FBI and Secret Service (if he did) because of a SAR or no-SAR decision or because these agencies were independently investigating Plaintiff. Similarly, if Mr. Frey did not discuss his opinion with the FBI or Secret Service, this would not automatically mean that he did or did not file a SAR. Accordingly, BANA's SAR objection is overruled. Question 9 asked Mr. Frey whether he provided any of his work product regarding BANA's investigation of the Plaintiff to the FBI. ECF No. 195-39 at 244. BANA instructed Mr. Frey not to answer because the answer could reveal whether or not a SAR was filed or the existence of a grand jury subpoena. For the same reason that the SAR-objection to Question 8 was not proper, this objection was not proper either. Answering “no” would not reveal that he did or did not file a SAR, as he is not required under the regulations to provide the SAR to the FBI. Answer “yes” would not reveal that he did or did not file a SAR, as he could have provided the FBI with a SAR or other documents related to the FBI's investigation of Plaintiff. Accordingly, the Court overrules BANA's SAR objection. Question 10 asked if the FBI or Secret Service ever provided documents or information to Mr. Frey about Plaintiff. Id. at 244-245. BANA instructed the witness not to answer on the basis that the response may reveal whether or not a SAR was filed. After Mr. Frey's deposition, BANA's counsel followed up on this question with Mr. Frey. ECF No. 224 at 23. Counsel learned that neither the FBI nor the Secret Service provided Mr. Frey with any documents, and thus Mr. Frey's answer to this question would not have revealed the existence of a SAR. Id. Accordingly, BANA withdrew its SAR objection and supplemented Mr. Frey's deposition with a sworn declaration that he did not recall receiving any documents from the FBI or the Secret Service. ECF No. 195-40 at 8. *10 Question 11 asked Mr. Frey whether, during or after his investigation, he gave a statement or sworn testimony about Plaintiff. ECF No. 195-39 at 245. BANA objected based on the SAR privilege and to the extent the answer would reveal a grand jury subpoena. Id. Simply answering “yes” or “no” to whether Mr. Frey gave a statement or testimony would not, by itself, reveal whether or not a SAR was filed. Accordingly, the Court overrules BANA's SAR objection. Question 12 asked whether Mr. Frey had communications with the FBI or Secret Service regarding Plaintiff after BANA released the funds. ECF No. 195-39 at 262. BANA instructed Mr. Frey not to answer based on the SAR privilege and the “grand jury investigation.” Id. Simply answering “yes” or “no” to this question would not reveal whether or not a SAR was filed. Accordingly, the Court overrules BANA's SAR objection. Finally, Plaintiffs also state that BANA obstructed Ms. Miller's deposition by instructing Ms. Miller not to answer questions about communications with the Secret Service. ECF No. 195 at 44. Plaintiffs cite Ex. 40 at 122-125. The Court reviewed the testimony on these pages. Ms. Miller testified that Mr. Frey told her he had conversations with the Secret Service. ECF No. 195-42 at 122-123. Plaintiffs inquired about what Mr. Frey and Ms. Miller discussed about Mr. Frey's conversations with the Secret Service. Id. at 123. BANA instructed Ms. Miller that she could answer if it would not reveal whether or not a SAR was filed. Id. Ms. Miller testified that she could not answer the question. Id. Ms. Miller further specifically testified that she could not answer the question because it would reveal whether or not a SAR was filed. Id. at 125. The Court finds that this was a proper assertion of the SAR-privilege, as her testimony would reveal whether or not a SAR was filed. Accordingly, BANA's SAR objection is sustained. iii. The Grand Jury Privileges BANA instructed witnesses not to answer certain questions because their answers might reveal a grand jury investigation or grand jury subpoena. See ECF No. 224 at 24. BANA relies on the following two statutes to support its grand jury privilege. First, BANA relies on 18 U.S.C. § 1510(b)(2) Id. This statute provides, (2) Whoever, being an officer of a financial institution, directly or indirectly notifies-- (A) a customer of that financial institution whose records are sought by a subpoena for records; or (B) any other person named in that subpoena; about the existence or contents of that subpoena or information that has been furnished in response to that subpoena, shall be fined under this title or imprisoned not more than one year, or both. 18 U.S.C.A. § 1510(b)(2) (West). In other words, it would be a crime under this statute for BANA to notify Plaintiffs about the existence of a subpoena or information produced in response to the subpoena. Second, BANA relies on 12 U.S.C. § 3420(b)(1). ECF No. 224 at 24. This statute provides, (b)(1) No officer, director, partner, employee, or shareholder of, or agent or attorney for, a financial institution shall, directly or indirectly, notify any person named in a grand jury subpoena served on such institution in connection with an investigation relating to a possible-- (A) crime against any financial institution or supervisory agency or crime involving a violation of the Controlled Substance Act, the Controlled Substances Import and Export Act, section 1956, 1957, or 1960 of Title 18, sections 5313, 5316, 5322, 5324, 5331, and 5332 of Title 31, or section 6050I of Title 26; or *11 (B) conspiracy to commit such a crime, about the existence or contents of such subpoena, or information that has been furnished to the grand jury in response to such subpoena. 12 U.S.C.A. § 3420 (West). In other words, if BANA received a grand jury subpoena seeking information about Plaintiffs related to certain offenses, it would be a crime for BANA to notify Plaintiffs of the existence of the subpoena, its contents, or what information was produced in response to the subpoena. iv. Whether BANA Properly Asserted the Grand Jury Privilege Plaintiffs argue that BANA improperly instructed Mr. Frey not to answer certain questions based on the “limited privileges” set forth in 18 U.S.C. § 1510 and 12 U.S.C. § 3420. ECF No. 195 at 40. Plaintiffs argue that BANA cannot meet its burden of demonstrating that these privileges apply because they are “patently inapplicable to the facts of this case.” Id. at 41. Plaintiffs argue that 12 U.S.C. § 3420(b)(1) cannot apply because there are no facts to suggest Plaintiffs committed any of the enumerated offenses. Id. at 41-42. Regarding 18 U.S.C. § 1510, Plaintiffs only suggest it does not apply because one section (not relied on by BANA) requires that information be disclosed with the intent to obstruct a judicial proceeding. Id. at 42. In response, BANA argues that it properly instructed Mr. Frey not to answer questions that could have revealed the existence of a grand jury subpoena under 12 U.S.C. § 3420(b) and 18 U.S.C. § 1510. ECF No. 224 at 24. BANA argues that Plaintiffs read these two statutes too narrowly and that when they are more closely examined, they clearly apply to the facts of this case and prohibit BANA from disclosing the existence of any grand jury subpoena that may have been served on it. Id. In reply, Plaintiffs take issue with a sentence from BANA's response brief. ECF No. 236 at 13. Specifically, BANA wrote the following sentence in its brief, “BANA correctly instructed Mr. Frey and Ms. Miller not to respond to questions that could implicate whether BANA responded to a grand jury subpoena.” ECF No. 224 at 24. Plaintiffs use this sentence to say that BANA is asking the Court to “create a new evidentiary privilege that allows a bank to instruct a witness not to answer questions ‘that could implicate whether [a bank] responded to a grand jury subpoena.” ECF No. 236 at 13. Plaintiffs continue by arguing that BANA claims its new privilege is based on 12 U.S.C. § 3420(b) and 18 U.S.C. § 1510 but, Plaintiffs argue, these statutes do not say anything about statements that “ ‘could implicate’ a grand jury subpoena.” Id. Plaintiff concludes by stating that BANA failed to show that it was proper to instruct Mr. Frey not to answer under any existing privilege, and BANA has not made a convincing argument for the creation of a new privilege. Id. at 13-14. The facts of this case are unique. It is BANA's burden to establish that Mr. Frey's answers are protected from disclosure. BANA has not provided the Court with enough information to reach this conclusion for certain questions. However, if the Court ordered BANA to respond to these questions and the answers are protected, the Court would be ordering BANA to commit a crime. Accordingly, based on the Court's broad discretion to control discovery, it will order BANA to file certain answers to the disputed questions ex parte and under seal to determine whether these answers are protected, as discussed below. *12 Question 7 asked how the Secret Service came to be involved in BANA's investigation. ECF No. 195 at 37, 40; ECF No. 195-39 at 168. The answer to this question could violate 12 U.S.C. § 3420(b) and/or 18 U.S.C. § 1510(b)(2), but on the record before the Court, it cannot tell. Accordingly, the Court will order BANA to file a declaration by Mr. Frey, ex parte and under seal within 14 days of this Court's order, providing his answer to this question under penalty of perjury. The Court will then determine whether the answer is shielded from disclosure by 12 U.S.C. § 3420(b) and/or 18 U.S.C. § 1510(b)(2). Question 9 asked whether Mr. Frey provided any of his work product regarding BANA's investigation of the Plaintiff to the FBI. ECF No. 195 at 37-38, 41; ECF No. 195-39 at 244. On the record before the Court, it cannot tell if Mr. Frey's answer to this question would violate U.S.C. § 3420(b) and/or 18 U.S.C. § 1510(b)(2). Accordingly, the Court will order BANA to file a declaration by Mr. Frey, ex parte and under seal within 14 days of this Court's order, providing his answer to this question under penalty of perjury. The Court will then determine whether the answer is shielded from disclosure by 12 U.S.C. § 3420(b) and/or 18 U.S.C. § 1510(b)(2). Question 11 asked Mr. Frey whether, during or after his investigation, he has given a statement or sworn testimony about Plaintiff. ECF No. 195 at 38, 41; ECF No. 195-39 at 245. This question calls for a “yes” or “no” answer. Responding “yes” or “no” to whether Mr. Frey gave a statement or sworn testimony would not reveal the existence of a subpoena, as Mr. Frey could have provided testimony pursuant to a subpoena or could have simply provided a voluntary statement. Accordingly, the Court overrules BANA's grand jury privilege objection. Question 12 asked whether Mr. Frey had communications with the FBI or Secret Service regarding Plaintiff after BANA released the funds. ECF No. 195 at 38, 41; ECF No. 195-39 at 262. This question calls for a “yes” or “no” answer. Responding in this way would not reveal the existence of a subpoena. If Mr. Frey answers “no,” this does not reveal the existence of a subpoena. If Mr. Frey answers “yes,” this does not reveal the existence of a subpoena because he could have voluntarily cooperated with law enforcement or responded to a subpoena. Accordingly, the Court overrules BANA's grand jury privilege objection. Question 13 asked which United States Attorney's Office was going to see if they could get a seizure warrant. ECF No. 195 at 40. After Mr. Frey's deposition, BANA conferred with its client and realized that the answer to this question would not have revealed a grand jury subpoena. ECF No. 224 at 23. Accordingly, BANA provided Plaintiffs with a signed declaration from Mr. Frey answering this question. ECF No. 195-41 at 3 (“I do not recall which United States Attorney's Office the FBI intended to meet with.”). Finally, Plaintiffs’ counsel asked Ms. Miller if BANA received any grand jury subpoena regarding Plaintiffs’ accounts before July 24, 2018. ECF No. 195 at 44; ECF No. 195-42 at 69. BANA instructed Ms. Miller not to answer whether or not BANA received a grand jury subpoena. Id. A review of Ms. Miller's testimony reveals that this objection and the dispute between the parties is moot. Shortly after this objection was asserted, Ms. Miller testified that she was not aware of any grand jury subpoena being issued to BANA. ECF No. 195-42 at 72. The question now becomes whether Mr. Frey should be redeposed to answer the questions to which the Court overruled BANA's objections (8, 11, and 12), the questions that BANA withdrew its objections to after the deposition (10 and 13), and potentially the questions that may not be protected (7 and 9). Under Federal Rule of Civil Procedure 30(a)(2)(A)(ii), a party must obtain leave of court to re-depose a person. The Court must grant this leave to the extent it is consistent with Rule 26(b)(1) and (2). Fed. R. Civ. P. 30(b)(2). Rule 26(b)(1) provides that discovery may be obtained that is relevant, proportional, and non-privileged. Rule 26(b)(2)(C) provides that on motion or on its own, the Court must limit discovery in certain circumstances. However, neither party analyzed these rules. See ECF Nos. 195, 224. Accordingly, in the Court's broad discretion to control discovery, it will not order Mr. Frey to be redeposed at this time. Instead, it will order Mr. Frey to provide Plaintiffs a signed declaration under penalty of perjury answering Questions 8, 11, and 12 within 14 days of this Court's order. *13 To the extent Plaintiffs still desire to redepose Mr. Frey, they may file an appropriate motion to reopen discovery and a separate motion to redepose Mr. Frey. Without ruling on the matter, the Court notes that it seems unlikely that Plaintiffs could get much additional, relevant and non-privileged information by asking follow-up questions to Question 8, 10, 11, 12, and 13. Accordingly, if Plaintiffs choose to file a motion to redepose Mr. Frey, they should be prepared to explain, specifically, what additional relevant and non-privileged information they could obtain from asking follow-up questions to Questions 8, 10, 11, 12, and 13 and how redeposing Mr. Frey would be proportional to the needs of the case. d. Plaintiffs’ Other Requests for Relief Plaintiffs request several other forms of relief. ECF No. 195 at 45-46. However, Plaintiffs did not brief what authority exists for the Court to grant these requests in its opening motion. See ECF No. 195. Accordingly, the Court will deny these requests for relief without prejudice. See LR 7-2(d); Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996) (arguments raised for the first time in the reply brief are waived). e. Plaintiffs’ and BANA's Requests for Fees and Costs Both parties request fees and costs associated with this motion. Under Rule 37 of the Federal Rules of Civil Procedure, if a motion to compel is granted in part and denied in part (as it is here), the court may apportion the reasonable expenses of the motion. Fed. R. Civ. P. 37(a)(5)(C). Here, the Court declines to apportion fees and costs. IV. Conclusion IT IS THEFORE ORDERED that Plaintiffs’ motion to compel (ECF No. 195) is GRANTED in part and DENIED in part, consistent with this order. Footnotes [1] The Court already conducted an in-camera review of documents BANA withheld or redacted based on the SAR privilege and found that BANA properly asserted this privilege. See ECF No. 127. [2] To the extent that Plaintiffs’ accounts were previously flagged for possible fraud, this could suggest that all flagged transactions were suspicious, as was the transaction that led to the freeze. [3] As the Court has already twice admonished BANA, it does not agree that the district judge limited the scope of discovery as narrowly as BANA believes he did. Specifically, the district judge provided some information to guide the parties about what would be relevant to the claim for breach of the covenant of good faith and fair dealing. ECF No. 30 at 22-24. However, the district judge did not ever state that his comments encompassed everything that was relevant to the parties’ claims and defenses. And, in fact, he specifically noted that other information may be relevant in this case. See id. at 23. [4] The Court does not know what these Customer Due Diligence Forms are, what they show, or what their purposes is, as Plaintiffs have not explained this. [5] BANA objected to the following six questions based on the SAR privilege: 1. Q. Mr. Frey, during the course of your investigation, did you conclude that Mr. Zeitlin or his companies were engaged in money laundering? 2. Q. Did you make a – draw a conclusion that what was happening here was illegal? [BOFA's objection omitted] A. I don't believe I can respond to that question. 3. [Referring to above] Q. Why not? [Bank counsel] I'm going to instruct the witness not to respond to that question. 4. Q. You mentioned the word illicit. Did you draw a conclusion during the course of your investigation that Mr. Zeitlin and his companies were engaging in illicit conduct? 5. Q. All right. So you use the word “coconspirator,” as I understand the word – and I think we agree on how you understand the word – is that you had concluded that Mr. Zeitlin and others were engaged in illegal activity; isn't that correct? 6. Q. So you determined that Mr. Zeitlin was engaged in theft by deception; is that correct? A. I believe that these accounts were – were established for that purpose. Q. And consequently he was engaged in illegal activity? Was that the conclusion that you drew? Id. [6] It is irrelevant to the Court's analysis that another bank-employee, not tasked with deciding whether to file a SAR, testified that she believed Plaintiffs engaged in illegal conduct, as Plaintiffs argue. ECF No. 195 at 39; ECF No. 236 at 12-13. What matters for purposes of instructing Mr. Frey not to answer certain questions is whether his answers would have revealed the existence of a SAR with effective certainty. [7] The questions at issue are as follows: 7. Q. How did the United States Secret Service come to be involved in the bank's investigation of the Zeitlin companies and Mr. Zeitlin? 8. A. My belief was that he was part of a scheme to defraud donors that were donating money for charitable cause. Q. Did you discuss that – your belief with FBI and Secret Service special agents? 9. Q. [D]uring the course of your investigation, Mr. Frey, you've obviously developed some work product. We're reviewing some of the documents here today during your deposition. Did you provide any of your work product regarding your bank investigation of Mr. Zeitlin's companies to the FBI? 10. Q. During the course of your investigation, Mr. Frey, did the FBI or Secret Service provide you with [any documents] or information relative to Mr. Zeitlin or his companies? 11. Q. Mr. Frey, during the course of your investigation or after it concluded, even after you left your employ at BOA up to the present time, have you [provided statements] or given a deposition or provided sworn testimony in any matter or manner relative to Mr. Zeitlin or his companies? 12. Q. Did you have communications with FBI or Secret Service regarding Mr. Zeitlin and his companies after the bank released the funds? Id. at 37-38.