ROYAL PARK INVESTMENTS SA/NV, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Defendant 14-CV-04394 (AJN) (BCM) United States District Court, S.D. New York Signed September 27, 2016 Counsel Arthur C. Leahy, Steven W. Pepich, Darryl J. Alvarado, Jeffrey James Stein, Joseph Marco Janoski Gray, Lucas F. Olts, Ashley M. Robinson, Cody R. LeJeune, Jennifer Nunez Caringal, Juan Carlos Sanchez, Kevin S. Sciarani, Robbins Geller Rudman & Dowd LLP, San Diego, CA, Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP, Melville, NY, Christopher M. Wood, Robbins Geller Rudman & Dowd LLP, San Francisco, CA, for Plaintiffs. Kevin James Biron, Bernard J. Garbutt, III, Grant R. MacQueen, John Michael Vassos, Regina Schaffer-Goldman, Morgan, Lewis and Bockius LLP, Christopher James Stanley, Gila Sara Singer, Gregory P. Joseph, Peter R. Jerdee, Joseph Hage Aaronson LLC, New York, NY, Ashley Anelcha Krupski, Dennis Sinclitico, Jr., Elizabeth Allen Frohlich, Rollin Bernard Chippey, Tera Marie Heintz, Joseph Edward Floren, Morgan, Lewis & Bockius LLP, San Francisco, CA, Motty Shulman, Paul Fattaruso, II, Robin Ann Henry, Boies, Schiller & Flexner LLP, Armonk, NY, for Defendant. Moses, Barbara, United States Magistrate Judge MEMORANDUM AND ORDER *1 By letter-motion dated August 26, 2016 (Dkt. No. 256), plaintiff Royal Park Investments SA/NV (RPI) seeks reconsideration of the portion of this Court's Discovery and Scheduling Order dated August 12, 2016 (Dkt. No. 253) directing RPI to search for and produce otherwise-discoverable documents from the email accounts used by its directors Guido De Clercq and Thierry Buytaert, and its director representative Fabrice Susini, to conduct their RPI business. Defendant Deutsche Bank National Trust Company (Deutsche Bank) filed an opposing letter on August. 30, 2016 (Dkt. No. 260) and RPI filed a reply letter on September 1, 2016. (Dkt. No. 262.)[1] For the reasons that follow, the motion will be denied. I. STANDARD Local Civil Rule 6.3 requires a party seeking reconsideration to set “forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.” The burden is on the movant “to demonstrate that the Court overlooked controlling decisions or material facts that were before it on the original motion.” Ferring B. V. v. Allergan, Inc., 2013 WL 4082930, at *1 (S.D.N.Y. Aug. 7, 2013). “The standard for granting such a motion is strict,” Shrader v. CSX Tramp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), and “reconsideration will generally be denied” unless the matters previously overlooked “might reasonably be expected to alter the conclusion reached by the court.” Id. See also Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (“the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision”). “Rule 6.3 is intended to ‘ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.’ ” S.E.C. v. Ashbury Capital Partners, L.P., 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (quoting Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988)). Thus, “[t]he parties may not present new facts or theories at this stage,” id., unless the moving party can point to “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation and citation omitted). Even in such cases, reconsideration is “an ‘extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” ’ Parrish, 253 F. Supp. 2d at 715 (quoting In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 613, 614 (S.D.N.Y. 2000)). The decision to grant or deny a motion for reconsideration “rests within the sound discretion of the district court.” Williams v. Rosenblatt Sec. Inc., 2016 WL 590232, at *4 (S.D.N.Y. Feb. 11, 2016) (quoting Vincent v. The Money Store, 2011 WL 5977812, at *1 (S.D.N.Y. Nov. 29, 2011)). II. BACKGROUND[2] *2 RPI is a Belgian limited liability company (société anonyme n French; naamloze vennootschap in Dutch) formed as a special purpose vehicle during the 2008 financial crisis to take over a portfolio of distressed assets held by Fortis Bank SA/NV and its affiliates, including the residential mortgage-backed securities (RMBS) at issue in this action. RPI has three shareholders. Ageas SA/NV (Ageas), formerly known as Fortis Holding, owns 3.8 million “category A” shares, constituting 44.7% of RPI's 8.5 million shares. See Shareholding Structure, Royal Park Invs., http://www.royalparkinvestments.corn/EN/shareholding-structure (last visited Sept. 23, 2016). The government of Belgium owns 3.7 million “category B” shares, or 43.53%. Id. BNP Paribas (BNPP) owns one million “category C” shares, or 11.77%. Id. Beginning in 2011, RPI sued a number of United States-based financial institutions in an effort to recover its RMBS losses, The present action, filed on June 18, 2014, concerns 13 RMBS certificates (Certificates) that derive their value from pools of residential mortgages held in ten different trusts (Trusts) for which Deutsche Bank serves as the trustee. RPI alleges that Deutsche Bank violated its contractual and fiduciary duties to RPI and other investors in the Trusts and is therefore responsible for some portion of the losses incurred on the Certificates. On April 26, 2013 – more than a year before this case was filed – RPI agreed to sell the bulk of its RMBS portfolio to Lone Star Funds, retaining only the Certificates at issue here and certain securities underlying its other lawsuits. See On the Subject of RPI, Royal Park Invs., http://www.royalparkinvestments.com/EN/on-the-subject-of-rpi (last visited Sept. 23, 2016). Thereafter, “all the people and the employees of Royal Park Investments gradually were let go,” with the last group – including Chief Executive Officer Danny Frans – leaving at year-end 2013. See Transcript of Frans Deposition, taken May 18, 2016 (Ex. B to Declaration of Grant R. MacQueen, dated May 24, 2016 (Dkt. No. 156)), at 50:18-52:22. Since the Lone Star sale, “the residual activity of RPI” has been “limited to following upon the legal disputes initiated in the United States of America.” On the Subject of RPI, supra. That “residual activity,” including the filing and prosecution of the present action, is managed directly by the RPI Board of Directors. Frans Tr at 54:6-22, 326:22-327:3. Even before the Lone Star sale, responsibility for authorizing and overseeing RPI's litigation lay with the directors. Id. at 15:15-16:21. Frans and other RPI executives presented information and made recommendations, but management could not proceed without the unanimous approval of the Board of Directors. Id. RPI has five directors. De Clercq and Buytaert, along with Christophe Boizard and Dominique Favillier, are individual directors, with terms running to the close of the 2017 shareholders' meeting. De Clercq is Chairman of the Board; Buytaert is the Managing Director. See Board of Directors, Royal Park Invs., http://www.royalparkinvestments.com/EN/board-of-directors (last visited Sept. 23, 2016). The fifth director is BNPP itself, represented on the board by Susini. Id. For ease of reference, all five individuals may be referred to herein as “directors” A. The Motions to Compel Deutsche Bank first sought to compel RPI to collect and produce documents from additional custodians – including all five of its current directors, as well as former Chairman of the Board Bart Bronselaer – by letter-motion filed on March 17, 2016. (Dkt. No. 111.) RPI opposed the request on March 23, 2016 (Dkt. No. 115), arguing, among other things, that the directors' “personal files” (electronic or otherwise) were not within RPI's “possession, custody or control,” as that term is used in Fed. R. Civ. P. 34(a)(1). *3 On March 30, 2016, during a discovery conference, the Court asked RPI's counsel for his position regarding the discoverability of annotated board agendas or other notes taken during board meetings by individual RPI directors: Q. Are you really taking the position that those are not RPI's documents? A. No, Your Honor. We can ask them for that and if they have them, we'll produce them. Mar. 30, 2016 Transcript (Dkt. No. 136), at 40 15-18. However, counsel drew a distinction between paper documents and emails, asserting that none of the current directors used an RPI email account, even for RPI-related business, and arguing that emails sent or received through non-RPI accounts were for that reason not in RPI's control. Id. at 41:10-14. Counsel continued: [I]f the Court were to suggest otherwise, I think we should have an evidentiary hearing and we can put in declarations to that effect because I think t is highly problematic to have us go and look through those files from those folks at institutions that are not RPI and I would not[,] respectfully, Your Honor, want that done on this record. There – it's a very big issue. Id. at 40:15-21; see also id. at 45:6-13 (“I mean, it's a fundamental question, and frankly, I think that that determination is going to require not only declarations but probably expert testimony”); id. at 80:6-8 (“we would encourage the Court to request supplemental briefing”). On April 4, 2016, the Court directed RPI to search the board materials provided to its directors and produce them, if responsive to defendant's requests, as well as “any non-identical copies ... in the physical possession of individual Royal Park directors, including any marginalia or related notes.” Disc. Order, dated Apr. 4, 2016 (Dkt. No. 122), ¶ 3. The Court also ordered RPI to search the email account of former director Bronselaer, who – unlike the current directors – used an RPI email address during his tenure on the board. Id. ¶ 4. As to the current directors, the Court directed Deutsche Bank to file a formal noticed motion, thereby giving RPI an opportunity to create the enhanced record it sought. Id. ¶ 5.[3] Deutsche Bank filed its motion on April 29, 2016, once again seeking an order compelling RPI to search the email accounts of all five current directors. See. e.g., Def. Mem. in Supp of Mot. to Compel, dated Apr. 29 2016 (Dkt. No. 126), at 3 (“That the emails may be maintained in email accounts hosted by entities other than Royal Park is irrelevant.”). On May 24, 2016 RPI filed its opposition brief, once again arguing that the directors' RPI-related emails are not in RPI's “possession, custody, or control” because they do not use RPI accounts. PI. Opp. Mem., dated May 24, 2016 (Dkt. No. 153), at 10-11. Instead, RPI explained, “as is typical for independent directors,” they “utilized email accounts administered by their employers.” Id. at 11. RPI identifies those employers as “BNPP, Ageas SA/NV the Belgian State, and, with regard to Guido De Clercq, Engie NV and/or GDF Suez, which are not Royal Park shareholders.” Id. n.10. *4 Notwithstanding its counsel's previous comments concerning the need for “not only declarations but probably expert testimony,” Mar. 30, 2016 Tr. at 80:6-8, RPI submitted no evidence in opposition to the motion to compel. Nor did its brief address any other factual matters – beyond the directors' use of non-RPI email accounts – bearing on the question of control. For example, RPI did not disclose whether the corporation ever asked its directors to turn over relevant emails for litigation purposes, and did not discuss whether they would do so if asked. However, on June 8, 2016, when RPI filed its motion for class certification, it included a declaration from De Clercq attesting that as Chairman of the Board of RPI he ‘‘participate[s] in and oversee[s] the administration of Royal Park and the decisions it makes related to this litigation.” De Clercq Declaration, dated May 26, 2016 (Dkt. No. 187-3), ¶ 2. As part of his participation in the litigation, De Clercq stated, he and other members of the Board of Directors “searched for and produced documents responsive to defendant's discovery requests.” Id. ¶ 4. Deutsche Bank cited this testimony in its reply memorandum, which also argued that RPI could not shield itself from discovery of otherwise-relevant email traffic among or from its directors by virtue of its decision not to give them RPI email accounts. Def. Reply Mem., dated June 13, 2016 (Dkt. No. 193), at 6 (citing Montesa v. Schwartz, No. 12-CV-06057 slip op. at 1-2 (S.D.N.Y. Mar. 6, 2015)). B. The August 12 Hearing On August 12, 2016, counsel appeared to argue the motion to compel, as well as several related discovery disputes. During the hearing, the Court asked counsel for one or both parties several questions not answered, or not fully answered, by their motion papers, including: (i) “[H]as RPI ever asked [the current directors] to search their emails or other files for discoverable documents in this case?” (ii) Were any of those directors “officers or employees, as we would use that term in an American corporate structure?” (iii) “[D]oes or did [RPI] have the ability to discharge any of those proposed custodians from their position as director?” See Aug. 12, 2016 Transcript (Dkt. No. 268), at 10:9-12, 36:12-17, 37:6-8. In response to the first question, RPI's counsel stated: “[W]e certainly made the board aware that their e-mails were being requested or issued in the case,” but, “I don't think there was a directive that they search them. They're certainly aware of it in terms of the fact that there has been a request and to make sure that they're preserved.” Aug. 12, 2016 Tr. at 11:15-20. In response to the second question, Deutsche Bank's counsel stated that he did not think any of the current directors were RPI employees. As to whether they were “officers,” counsel again stated, “I don't think that they were,” but added, “[w]e haven't asked that question of [RPI] in discovery yet.” Id. at 37:3-5. In response to the third question, counsel for both parties stated they did not know the answer. Id. at 38:3, 38:11-12, Counsel for RPI added, “Your Honor, if you want an answer, we can absolutely get you one.” Id. at 39:11-12. At the conclusion of the August 12 hearing, the Court granted Deutsche Bank's motion in part, directing RPI to search the email accounts used by De Clercq, Buytaert, and Susini in their capacity as RPI directors and to produce responsive and non-privileged documents thereby identified. Disc. & Sched. Order ¶ 2(a). RPI is not required to search the accounts of us remaining directors, Boizard and Favillier. As to De Clercq, Buytaert, and Susini, the Court limited the search to the time period that each individual has served as a director, and to “emails that were sent to or received from persons identifiable as RPI directors, officers, employees or agents (whether or not such persons used RPI email addresses)” or “otherwise clearly reference RPI.” Id. III. ANALYSIS RPI argues that reconsideration is in order because it has located evidence that partially answers one of the Court's questions on August 12, 2016 and that – in its view – supports its argument that RPI does not “control” its directors or their email accounts. See Pl. Letter dated Aug. 26, 2016, at 1-2. The evidence it cites is RPI's Subscription and Shareholders' Agreement (SSA), executed by RPI and its three shareholders and dated May 12, 2009. The SSA, written in English, fixes the RPI Board of Directors at five members, all of whom must be appointed “by the shareholders' meeting of the Company.” Ex. A to Pl. Letter dated Aug. 26. (SSA), art. 9.1. Two directors “shall be appointed from a list of candidates proposed by the holders the Class A shares” (Ageas); two must be appointed from a list proposed by the holders of the Class B shares (the Belgian State), and one must be appointed from a list proposed by the holders of the Class C shares (BNPP). Id. The Chairman of the Board (now De Clercq) “shall be appointed from amongst the B Directors,” while the Managing Director (now Buytaert) “shall be appointed from amongst the A Directors.” Id. art. 9.3. The SSA also provides: “Directors may be removed from office on the request of the class of Shareholder(s) that proposed their appointment.” Id. art. 9.5. *5 Although the language of article 9.5 is permissive (directors “may” be removed from office as specified), RPI concludes, without analysis, that “a director may only be removed ‘on the request of the class of Shareholder(s) that proposed their appointment.’ ” Pl. Letter dated Aug. 26, 2016, at 1 (additional emphasis added). Relying on this reading of the SSA and on Miniace v. Pac. Mar. Ass'n, 2006 WL 335389, at *2 (N.D. Cal. Feb. 13, 2006). RPI argues that since RPI itself (acting through a majority of its board or shareholders) cannot dictate whether any individual director may continue to serve, it cannot have sufficient control over them to warrant this Court's order compelling it to search for and produce relevant documents from the directors' non-RPI email accounts. See id. at 2; PI. Letter dated Sept. 1, 2016, at 3. A. The SSA Is Not New and Could Not Have Been Overlooked by the Court. The SSA has been in existence since 2009. Deutsche Bank reports that it was produced in discovery on February 23, 2016, well before the parties briefed the underlying motion to compel. See Def. Letter dated Aug. 30, 3016, at 2. Thus, the SSA is not “new evidence.” See Lima LS PLC v. Nassau Reinsurance Grp. Holdings, L.P., 160 F. Supp. 3d 574, 578 (S.D.N.Y. 2015) (“For evidence to be considered ‘newly available,’ it must be ‘evidence that was truly newly discovered or could not have been found by due diligence.’ ”) (quoting Space Hunters, Inc. v. United States, 500 Fed.Appx. 76, 81 (2d Cir. 2012) (internal quotation marks omitted)). Nor was the SSA “overlooked” by the Court, since RPI never previously submitted it – notwithstanding that its counsel requested, and received, a second opportunity to brief the “control” issue and make whatever evidentiary record it deemed appropriate. See Ferring B. V., 2013 WL 4082930, at *1 (movant must demonstrate that court overlooked matters “that were before it on the original motion”); Lewis v. N.Y. Tel., 1986 WL 1441, at *1 (S.D.N.Y. Jan. 29, 1986) (facts set forth for the first time in the motion to reargue “cannot have been ‘overlooked’ by the court during its consideration of the initial motion”) (citation omitted). Having failed twice to present the Court with the SSA – or any other evidence bearing on the control issue – RPI cannot now obtain a third bite at the apple. RPI's suggestion that reconsideration is required because t “asked for an opportunity” to answer a question asked during oral argument, see Pl. Letter dated Aug. 26, 2016, at 1, is misplaced. The Court did not request post-argument supplementation. Moreover, Rule 6.3 cannot be used to “plug[ ] the gaps of a lost motion with additional matters.” Lewis, 1986 WL 1441, at * 1; accord, Ashbury Capital Partners, 2001 WL 604044, at * 1. That the gaps became apparent in open court – a few hours before the written ruling issued – does not call for a different rule. B. Reconsideration Is Not Required to Prevent Manifest Injustice. Since RPI cannot point to any evidence “overlooked” by the Court, submits no newly-available evidence, and cites no intervening change of controlling law, its motion cannot succeed unless reconsideration is required to “prevent manifest injustice.” Virgin Atl. Airways, 956 F.2d at 1255. This in turn requires two findings: that the SSA “might reasonably be expected to alter the conclusion reached by the court,” Shrader, 70 F.3d at 257, and that it would be manifestly unjust not to alter that conclusion now (notwithstanding the tardy presentation of the SSA) so as to relieve RPI of the obligation to produce relevant emails sent or received by its directors. 1. The “Practical Ability” Test A party may obtain discovery, within the scope of Fed. R. Civ. P. 26(b), of documents or other items “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “If the party from whom production is sought does not actually have the document in hand, courts look to see whether the party has control of it, construing the word ‘control’ broadly.” Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 233 F.R.D. 338, 341 (S.D.N.Y. 2005). “Documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.” In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (quoting Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y. 1997)). See also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“if a party has access and the practical ability to possess documents not available to the party seeking them, production may be required”); Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 559 (S.D.N.Y. 1994) (“If the producing party has the legal right or the practical ability to obtain the documents, then it is deemed to have ‘control,’ even if the documents are actually in the possession of a non-party.”). *6 In determining whether a corporate party has the “practical ability” to obtain relevant documents from a non-party officer, director, or employee, the courts look at a variety of factors. One of those factors – the one that RPI highlights in its reconsideration motion – is whether the corporation can discharge the individual if he or she fails to cooperate in discovery. On this basis, among others, “[n]umerous courts have found that corporations have control over their officers and employees and that corporations may be required to produce documents in their possession.” Miniace, 2006 WL 335389, at *2. See, e.g., Herbst v. Able, 63 F.R.D. 135, 138 (S.D.N.Y. 1972) (since defendant Douglas Aircraft's employees are “plainly” within its control, Douglas must “have its non-defendant employees procure copies of their private testimony before the SEC so that Douglas may give same to plaintiffs”); Riddell Sports, 158 F.R.D. at 559 (audio tapes created and held by officer “are within Riddell's control and must be disclosed in response to a proper notice for production”); accord Chevron Corp. v. Salazar, 275 F.R.D. 437, 448-49 (S.D.N.Y. 2011) (“[c]ourts have repeatedly found that employers have control over their employees and can be required to produce documents in their employees' possession”); Canton v. Hoaglin, 2009 WL 1687927, at *3 (S.D. Ohio June 12, 2009) (collecting cases).[4] In Miniace, the court relied on the same logic to require defendant PMA, a nonprofit mutual benefit corporation organized under California law to produce documents in the possession of its outside (non-employee) directors. The court noted that California law “allows for removal of a director of a nonprofit mutual benefit corporation without cause provided the removal is approved by a majority of the members or directors,” 2006 WL 335389, at *2 & n.l, and held that this fact alone “easily satisfies the standard for control over the current members of the Board of Directors.” Id. at *2. Under this line of cases, if RPI (as opposed to a single RPI shareholder) can remove its current directors from their board seats, it can also be ordered to conduct – or require them to conduct – a search of their email accounts for discovery purposes. The converse, however, is not necessarily true. A corporation may be deemed to have the “practical ability” to obtain documents from an affiliated non-party whom it cannot fire (for example, a former officer or employee) if the non-party has a fiduciary duty to turn over the documents, see Riddell, 158 F.R.D. at 559 (where documents were created by corporate officer in connection with his functions as such, he “has a fiduciary duty to turn them over on demand”) (citing In re Folding Carton Antitrust Litig., 76 F.R.D. 420, 423 & n.2 (N.D. 111. 1977)); if there is a continuing economic relationship between the party and the non-party, see In re Folding Carton, 76 F.R.D. at 423 (“we assume that, if defendants contact their former employees who still receive compensation from them, they will secure the requested documents and can produce them for plaintiffs”); or if the non-party was acting as an “agent” of the corporation with respect to the events or transactions at issue in the litigation, see Montesa, slip op. at 2 (ordering defendant corporation to produce “its board members' and agents' documents”).[5] Courts also look to “the existence of cooperative agreements or contracts between the responding party and non-party, the extent to which the non-party has a stake in the outcome of the litigation, and the non-party's past history of cooperating with document requests.” Alexander Interactive, Inc. v. Adorama, Inc., 2014 WL 61472, at *3 (S.D.N.Y. Jan. 6, 2014). *7 Additionally – and most relevant here – a number of courts in this District and elsewhere apply the most “practical” test of all: whether the party has asked the non-party to turn over the documents at issue and, if so, whether the non-party is willing to do so. Because this question is so crucial (and perhaps because its answer is typically known only to the party from which discovery is sought), “courts insist that corporations, at the very least, ask their former employees to cooperate before asserting that they have no control over documents in the former employees' possession.” Exp.-Imp. Bank, 233 F.R.D. at 341. The defendant in Export-Import Bank demanded that the plaintiff bank produce portions of a personal journal kept by its former employee Leik. The bank argued that it lacked possession, custody, or control of that document. But there was “no indication in the record that Ex-Im has made any attempt to obtain the journal entries APP seeks from Mr. Leik or that Mr. Leik refuses to cooperate.” Id. at 342. Moreover, the bank had previously secured Leik's presence at a deposition, indicating that it did have some practical ability to obtain discovery from him. Id. The court therefore ordered the bank to “exhaust the practical means at its disposal to obtain the documents from Mr. Leik.” Id. See also Chevron Corp., 275 F.R.D. at 449 (where former employee “would have turned over any responsive e-mails from her Gmail account to [her former employer, attorney Donziger] had he asked for them,” those emails were within Donziger's “control” for discovery purposes, despite “being located in her private e-mail account rather than on his law firm's server”); In re Folding Carton, 76 F.R.D. at 423 (“At the very least, defendants should make inquiry of such former employees. This is especially true where, as here, defendants do not assert that the former employees are unwilling or unable to cooperate.”); Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 307-08 (M D.N.C. 1998) (“there is no indication that defendant Ericsson has even made a request for these documents from [non-party affiliate] Ericsson Mobile”); Grace Bros. Ltd. v. Siena Holdings, Inc., 2009 WL 1547821, at *1 (Del. Ch. June 2, 2009) (granting motion to compel defendant Siena to produce emails “between members of Siena's board of directors” where Siena “failed to even ask that the directors look for any relevant emails in their accounts”).[6] 2. Application In this case, it remains unclear whether and under what circumstances RPI could remove its current directors from the board. The SSA details one method for removing a director but does not rule out other methods. RPI resists the notion that there could be any other methods, but is curiously silent as to the dictates of Belgian law on this point. Cf. Miniace, 2006 WL 335389. at *2 & n.l (citing Cal. Corp. Code § 7222(a) as source for rule regarding removal of directors).[7] The SSA thus does not materially alter the state of the record – which remains murky – concerning RPI's ability to discharge its directors. Equally unclear, on the present record, are the precise duties of the Chairman of the Board (De Clercq) and the Managing Director (Buytaert); whether they (or any other RPI directors) also serve as officers now that the company's Chief Executive Officer and other executives have departed; whether they are paid for their services to the company: and what fiduciary or other duties of cooperation they owe to RPI in connection with this lawsuit. A few significant facts, however, were clear when the Court granted the underlying motion to compel, and remain clear today. First, whatever their titles, and regardless of their payment arrangements (if any), RPI's directors committed the company to this lawsuit and are now – n the absence of any employees – responsible for managing it on a day to day basis. See Frans Tr. at 15:15-16:21, 54:6-22, 326:22-327:14. At least since the end of 2013, the directors have, as a practical matter, taken on the roles ordinarily filled by a company's officers and employees, including (for example) interacting directly with litigation counsel, searching for discoverable documents, and otherwise ensuring that RPI fulfills its litigation responsibilities. *8 Second, both De Clercq and Buytaert have personally exerted themselves to search for and obtain discoverable documents, and De Clercq has executed two declarations in support of RPI's litigation efforts – in this action alone. On April 23, 2016, in connection with a protective order motion made by RPI, De Clercq attested that both he and Buytaert made efforts, on RPI's behalf, to obtain discoverable documents from its assignors. See De Clercq Decl., dated April 23, 2016 (Dkt. No. 131-6) ¶¶ 3-4. A month later, in connection with RPI's class certification motion. De Clercq executed another declaration in which he attested that he was “very involved and active” in this litigation, and has personally “searched for and produced documents responsive to defendant's discovery requests.” May 26, 2016 De Clercq Decl. ¶ 4.[8] Third, RPI could have provided all of its directors with RPI email accounts – as it did for Bronselaer – but either elected not to do so for the current members of the board or permitted them to decline the service. See Montesa, slip op. at 2 (corporation which chose not to provide directors with corporate email accounts “cannot shield discovery of official business on the basis that the email accounts are not in their custody and control”). Consequently, the current RPI directors use outside email accounts, provided by their employers, to conduct their RPI business.[9] In the case of Buytaert and Susini, those employers are also RPI shareholders, see Pl. Opp. Mem. at 11 n.10, which stand to benefit economically if RPI succeeds in this lawsuit. See Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992) (granting motion to compel as to the files of non-party IGD's patent agents where, “as a practical matter, IGD has a financial interest in the outcome of this litigation, thus further ensuring its cooperation”); Alexander Interactive, 2014 WL 61472, at *3 (courts properly consider the “extent to which the non-party has a stake in the outcome of the litigation”). Fourth, RPI has never asked its current directors to search their email accounts for discoverable documents, which is the “least” a corporation must do before asserting that it lacks the necessary practical ability to obtain documents from affiliated non-party individuals. Exp.-Imp. Bank, 233 F.R.D. at 342; In re Folding Carton, 76 F.R.D. at 423. When the Court inquired as to this point on August 12, 2016, counsel for RPI responded only that the directors were “aware” that their emails were being requested. “I don't think there was a directive that they search them.” Aug. 12, 2016 Tr. at 11:17. *9 Fifth, there is no evidence that the directors have refused – or, if asked, would refuse – to cooperate in retrieving relevant emails from their non-RPI accounts. See Exp.-Imp. Bank, 233 F.R.D. at 341 (compelling production of former employee's journal where there was “no indication in the record that [the bank] has made any attempt to obtain the journal entries ... or that [the former employee] refuses to cooperate”). To the contrary: according to De Clercq, he and the other directors are willingly and actively engaged in locating and producing documents so that RPI can satisfy its discovery obligations in this action. They have already “searched for and produced documents responsive to defendant's discovery requests.” May 26, 2016 De Clercq Decl. ¶ 4. They have made affirmative efforts to retrieve documents from RPI's assignors for production in litigation. Apr. 23, 2016 De Clecq Decl. ¶¶ 3-4. They have turned over (or will turn over) their annotated board books and accompanying notes for review and potential production. Mar. 30 2016 Tr. at 40:15-18 (“We can ask them for that and if they have them, we'll produce them.”). Each director, in short, has a significant “past history of cooperating with document requests,” Alexander Interactive, 2014 WL 61472, at *3.[10] On this record, there is no reason to believe that, if asked, De Clercq, Buytaert, and BNPP would refuse to search (or permit RPI's counsel to search) the email accounts they use in their capacities as RPI directors for the limited purpose of identifying and producing documents within the scope of this Court's August 12, 2016 Order. In the case of corporate director (and RPI shareholder) BNPP, any responsive emails reside on its own email system. As to the individual directors, there is no suggestion in the record that either of them has lost his access to his email account or is unable – technically, legally, or otherwise – to conduct the necessary searches. Moreover, Buytaert, like Susini, works for and uses an email account provided by an RPI shareholder. See Golden Trade, 143 F.R.D. at 526 (where no showing of “insurmountable legal or practical obstacles” was made by plaintiffs, “they must now bear the burden of obtaining those files” from the non-party). The “practical ability” test is, necessarily, fact-intensive. The SSA, while relevant to one factor used by the courts to evaluate a party's practical ability to obtain documents from an affiliated non-party, is not dispositive of that factor, much less sufficient to tip the balance of the motion. Nor is it manifestly unjust to require a corporate plaintiff and would-be class representative to comply with a discovery ruling – in this case, a ruling made after full formal briefing – rather than “treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings.” de los Santos v. Fingerson, 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998). CONCLUSION The SSA does not warrant the “extraordinary remedy” of reconsideration. Parrish, 253 F. Supp. 2d at 715. RPI's motion is DENIED. SO ORDERED. Dated: September 27 2016. Footnotes [1] Local Civil Rule 7.1 arguably required RPI to seek reconsideration by noticed motion rather than letter-motion. See S.D.N.Y. Elec. Case Filing Rules & Insts. § 13.1. However, since Deutsche Bank responded in kind, without requesting more formal briefing, the Court will accept the application in the form in which it was filed. See Local Civil Rule 7.1(a) (formal motion practice is required “except for letter-motions as permitted by Local Civil Rule 7.1(d) or as otherwise permitted by the Court”). [2] The Court assumes familiarity with its prior decisions in this matter, some of which describe RPI's formation and structure, as well as the procedural history of this action, in more detail. See, e.g., Mem. & Order, dated Aug. 31, 2016 (Dkt. No. 261), at 2-6. [3] RPI did not challenge the rulings regarding the board materials and Bronselaer's emails. Nor has Deutsche Bank made any complaint concerning RPI's compliance. The Court therefore assumes that RPI has searched the directors' board materials and the Bronselaer email account as required and has produced any responsive documents found therein. [4] A recent case from the Northern District of California went the other way, denying a motion to compel plaintiff Stevens Creek to produce emails from the personal accounts used by its employees to conduct company business. Matthew Enter., Inc. v. Chrysler Grp. LLC, 2015 WL 8482256, at *3-4 (N.D. Cal. Dec. 10, 2015). However, the ruling – which does not discuss Miniace, decided by another judge within the same District – was expressly based on the more stringent “control” standard used in the Ninth Circuit, which asks whether the party has the “legal right to obtain documents upon demand.” Id. at *3 (“the Ninth Circuit has explicitly rejected an invitation to define ‘control’ in a manner that focuses on the party's practical ability to obtain the requested documents”) (internal quotations and citation omitted). [5] In Montesa, the board members were also sued as individual defendants. However, the court's ruling did not rest on that ground. “[E]ven if the Second Circuit grants immunity to the [individual defendants], the Defendant District would not be relieved of its obligation to search and provide relevant email correspondences in the personal possession of these defendants.” Slip op. at 2. [6] RPI seeks reconsideration of a discovery order, not a sanctions order. It is worth noting, however, that at least one court has ordered a corporate party to subject its directors' computer storage systems to forensic analysis by a court-appointed expert where that party failed adequately to advise those directors to preserve relevant documents for discovery. See In re Triton Energy Ltd. Sec. Litig., 2002 WL 32114464, at *4-7 (E.D. Tex. Mar. 2, 2002) (notwithstanding Triton's contention that it had no control over “the personal computers of [its] former directors,” court appointed a forensic computer specialist to retrieve information from Triton's computer storage systems “and those of all present and former members of the Board of Directors” to determine whether relevant documents were destroyed). [7] A quick review of readily available English-language sources suggests that Belgian law applicable to a société anonyme/naamloze vennootschap may also permit removal of directors based on a majority vote of the shareholders – and that this rule “has the power of imperative law,” such that it cannot be overridden by a shareholder agreement. Hubert Bocken & Walter de Bondt, Introduction to Belgian Law 325 (2001). See also Denis Phillippe, Int'l Corp. L. Compendium: Belgium § BEL.03[C][2] (M. Pearson ed. 2011 supp.) (“Directors may resign or be dismissed by the general shareholders' meeting at any time.”). [8] De Clercq has also executed declarations for use in RPI's other lawsuits. See, e.g., De Clercq Decl., filed July 5, 2006 in Royal Park Invs. SA/NV v. U.S. Bank Nat'l Ass'n, No. 14-CV-2590 (VM) (.IMF); De Clercq Decl., filed Sept. 2, 2016 in Royal Park Invs. SA/NV v. Bank of N.Y. Mellon, No. 14-CV-6502 (GHW). [9] RPI argues that it is “common practice for non-employee independent directors to rely on external email accounts to communicate with individuals at an entity on whose board they serve.” See Pl. Letter dated Sept. 1, 2016, at 2-3. That may be. The pamphlet that RPI cites for this proposition (which reports the results of a Thomson Reuters board governance survey five years ago) does indeed state that only 10% of the corporations surveyed provided and “always” used corporate email accounts for communications with their directors. See Kimberley Allan, Better Board Governance: Communications, Security and Technology in a Global Landscape of Change. Results of the 2011 Thomson Reuters Board Governance Survey 5, available at: http://wpc.0064.edgecastcdn.net/000064/accelus-pdf/boardsurvey2011.pdf. The report also notes, however, that a majority of respondents (58%) acknowledged that they would need to “canvass computers, files and other data storage maintained by board members at their homes or businesses” if there were a “discovery process.” Id. at 7. [10] Each director likely understands, as well, that “[a] class representative is a fiduciary to the entire class and bears a responsibility to comply with discovery requests.” Koss v. Wackenhut Corp., 2009 WL 928087, at *7 (S.D.N.Y. Mar. 30, 2009). See also Norman v. Arcs Equities Corp., 72 F.R.D. 502, 506 (S.D.N.Y. 1976) (class representative must “comply wholeheartedly and fully with the discovery requirements of modem federal practice”). The fact that RPI's directors authorized it to move for class certification may therefore be taken as another indication that they will not prevent RPI from complying with this Court's August 12 Order.