Maher v. Bank of Nova Scotia

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

------------------------------------------------------------ X DATE FILED: 05/06/2019

IN RE: :

: 14-MD-2548 (VEC)

COMMODITY EXCHANGE, INC., GOLD : 14-MC-2548 (VEC)

FUTURES AND OPTIONS TRADING :

LITIGATION : OPINION AND ORDER

:

This Document Relates to All Actions :

------------------------------------------------------------ X

VALERIE CAPRONI, United States District Judge:

These consolidated cases concern an alleged conspiracy to manipulate the price of gold

and gold-denominated instruments during the class period of January 1, 2004 to December 31,

2012. See Third Amended Complaint (Dkt. 266) ¶ 406; Dkt. 377 at 1. Defendants are

multinational financial institutions (“Fixing Banks”) that perceive a conflict between their

discovery obligations in this litigation and the bank secrecy laws in France, Singapore, England,

and Wales. See Def. Letter (Dkt. 362) at 1, 3–4. In an ostensible effort to avoid disclosing any

customer identifying information (“CII”) in violation of foreign law, Defendants propose

producing documents during discovery in pseudonymized or redacted form. Plaintiffs contend

that foreign law does not conflict with Defendants’ discovery obligations and, even if a conflict

does exist, that this Court should not defer to foreign law under a comity analysis. See Pl. Opp.

(Dkt. 366) at 3, 5. Defendants’ motion for a protective order is granted in part and denied in part

as set forth below.

I. Background

The Court will not recount the full history of this litigation here and will instead briefly

describe the context of the discovery issues currently in contention.1

1 For a detailed description of the underlying allegations and factual background, see In re Commodity Exch.,

Inc., 213 F. Supp. 3d 631 (S.D.N.Y. 2016).

After much negotiation, the parties are now largely in agreement as to the appropriate

scope of Defendants’ document production. See Def. Letter (Dkt. 362) at 1.2 The anticipated

document production contains customer information, including customers’ identities and their

transaction data. See Def. Letter at 1. Defendants, however, argue that disclosure of CII would

violate bank secrecy statutes in France and Singapore and common law obligations in England

and Wales. Id. at 3–4.

Defendants have proposed what they view as a compromise that would allow them to

meet their discovery obligations without violating foreign laws. Specifically, Defendants seek

permission to pseudonymize customer names where possible and to redact identifying

information where pseudonymization is impracticable. Id. at 2. Pseudonymization is not always

feasible, because only electronically tabulated data, typically in the form of spreadsheets, contain

CII that can be readily manipulated in a consistent way. See id. The electronically tabulated

data in this case largely consists of transaction data, whereas other documents are a mix of

emails, chat histories, and other materials that contain sporadic, non-uniform references to CII.

See id.

Plaintiffs object to Defendants’ proposed compromise, in part because pseudonymization

and redaction may deprive readers of important context. Pl. Opp. at 1. Specifically, they argue

that the combination of pseudonymization and redaction would prevent Plaintiffs from piecing

together different documents that reference the same customer or account. Pl. Opp. at 2.

Plaintiffs also object because pseudonymization would hinder their ability to demonstrate class-

wide impact and provide class-wide notices. Pl. Opp. at 2–3. As to class-wide impact,

2 The Court expresses its appreciation to the attorneys for all parties who have worked together cooperatively

and collegially to resolve among themselves the logistics of the discovery in this case. The Court trusts that their

successful collaboration will continue throughout the discovery in this matter.

Plaintiffs’ primary concern appears to be that any given class member would be assigned a

different pseudonym by each Defendant, preventing Plaintiffs from being able to compare or de-

duplicate across datasets, including those obtained from other sources.3 See id. at 3. Based on

these concerns, Plaintiffs essentially argue that their interest in full production outweighs

Defendants’ interest in complying with foreign law, to the extent that such a conflict exists at all.

II. Discussion

A. Legal Framework

When foreign law is invoked as the basis for resisting discovery, the party resisting

discovery bears the burden of “proving what the [foreign] law is and demonstrating why it

impedes production.” S.E.C. v. Gibraltar Glob. Sec., Inc., No. 13-CV-2575, 2015 WL 1514746

at *2 (S.D.N.Y. 2015) (collecting cases). To meet that burden, the party must “provide the Court

with information of sufficient particularity and specificity.” Alfadda v. Fenn, 149 F.R.D. 28, 34

(S.D.N.Y. 1993).

If a court finds that there is an actual conflict between the discovery request and foreign

law, the court must then perform a comity analysis to decide “the weight to be given to the

foreign jurisdiction’s law,” balancing this country’s national interests against those of the foreign

jurisdiction. Laydon v. Mizuho Bank, Ltd., 183 F. Supp. 3d 409, 413 (S.D.N.Y. 2016) (quotation

marks and citations omitted). Courts in the Second Circuit consider a wide range of factors as

part of the balancing test:

(1) the importance to the investigation or litigation of the documents or

other information requested;

(2) the degree of specificity of the request;

3 At the Court’s direction, the parties have explored ways of generating consistent pseudonyms, which would

enable Plaintiffs to track customer activity across datasets. Dkts. 390, 391. The available means of doing so appear

to be prohibitive in terms of time and cost and would not enable Plaintiffs to cross-reference data provided by the

Fixing Banks with documents obtained from third parties. See Tr. (Apr. 25, 2019 Hearing) at 6–10.

(3) whether the information originated in the United States;

(4) the availability of alternative means of securing the information;

(5) the extent to which noncompliance with the request would undermine

important interests of the United States, or compliance with the request

would undermine the important interests of the state where the information

is located;

(6) the hardship of compliance on the party or witness from whom

discovery is sought; and

(7) the good faith of the party resisting discovery.

Laydon, 183 F. Supp. 3d at 419–20 (citing Wultz v. Bank of China Ltd., 910 F. Supp. 2d 548,

552–53 (S.D.N.Y. 2012)). Of those factors, “the competing interests of the countries involved

and the hardship imposed by compliance” are generally the most important. Minpeco, S.A. v.

Conticommodity Servs., Inc., 116 F.R.D. 517, 522 (S.D.N.Y. 1987) (collecting cases).

B. Application

1. Conflict with Foreign Law

Defendants claim conflicts with bank secrecy laws in France, Singapore, England, and

Wales. As detailed below, the Court concludes that Defendants have adequately demonstrated

that disclosure of CII would violate bank secrecy requirements in France and, in at least some

circumstances, Singapore, but they have not demonstrated that disclosure would violate common

law obligations in England and Wales.

a. France

Defendant Société Générale (SG) has demonstrated with sufficient particularity and

specificity that, as a French bank, it cannot disclosure CII during civil discovery without

violating French law. Specifically, Article L. 511-33 of the French Monetary and Financial

Code imposes a duty of “professional secrecy” on any person who “is employed by” or

“participates in the management or administration of” a French credit institution. Parleani Decl.

(Dkt. 362, Ex. A) ¶ 10. This duty of secrecy applies to any non-public information that would

divulge the nature of an identifiable customer’s business with a French bank. See id. ¶¶ 54–57.

Protected information therefore includes transaction data, customer lists, account balances, and

internal communications concerning customer activity that is connected to a customer’s identity.

Id. ¶ 52–53. Accordingly, there is no serious dispute that SG’s document production will contain

at least some information that is subject to the French duty of secrecy.

The French statute does contain exceptions, including for French criminal proceedings

and French regulatory and tax authorities—but no exception exists for civil lawsuits, whether

French or foreign. Id. ¶ 22. In addition to civil liability and regulatory discipline, a breach of the

duty of secrecy is also punishable under the French Criminal Code, which provides for penalties

of one year’s imprisonment and a fine of €15,000. Id. ¶¶ 12–13, 39, 41 (quoting Article L. 571-4

and Article 226-13 of French Criminal Code). While Plaintiffs dispute the weight that this Court

should give to French law under the comity analysis, such as by pointing out that the risk of

actual prosecution and liability is low, Pl. Opp. at 5, there is no genuine dispute that SG has

adequately supported its position that disclosure would violate French law.4 Indeed, at the most

4 Plaintiffs mischaracterize a case in which, purportedly, a court in the Second Circuit “[found] no conflict

with the French Bank Secrecy Statute.” See Pl. Opp. at 5. In Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199

(E.D.N.Y 2007), the district court ruled in favor of disclosure but only after concluding that the French bank had

“adequately supported its position that the discovery sought is indeed prohibited by foreign law.” 242 F.R.D. at 207

(internal quotations and citation omitted).

Plaintiffs also cite a line of cases holding that the French duty of secrecy does not apply to cases in which

the bank is a party. See Alfadda v. Fenn, No. 89-CV-6217, 1993 WL 33445, at *3 (S.D.N.Y. Feb. 1, 1993); see also

Bodner v. Paribas 202 F.R.D. 370, 376 n.6 (E.D.N.Y. 2000). In this Court’s view, SG has sufficiently demonstrated

that this carveout applies only if the customer whose information is at issue is the bank’s adversary in the relevant

litigation. Parleani Decl. ¶ 28. Such a distinction makes imminent sense: a bank customer, to whom the bank owes

a duty of confidence, could waive that duty in order to litigate a claim against the bank. See Bodner, 202 F.R.D. at

376 n.6 (noting that French bank secrecy law does not apply when bank is “party to the action brought against it by

the beneficiaries of the principle of banking secrecy rule” (quoting expert declaration) (emphasis added)).

Additionally, a bank, to defend itself against an adversarial customer, could in fairness rely on information

concerning subject matter that the client has placed at issue, in the same way that an attorney may use privileged

communications to defend against a malpractice action. In contrast, there is no apparent rationale for a broader

recent hearing on this issue after the submission of letter briefs, Plaintiffs conceded that SG may

violate “the [French] law on its face” if SG were to comply with Plaintiffs’ discovery demands.

See Tr. (Hearing on Apr. 25, 2019) at 43.

b. Singapore

Defendants have demonstrated with sufficient particularity and specificity that disclosure

of CII would violate the Singapore Banking Act under limited circumstances. Specifically, the

Singaporean prohibition applies only to disclosures by a bank’s Singaporean branch or office

(collectively “branch”), and to disclosures by a non-Singaporean branch if the disclosed

information originated in a Singaporean branch and was transferred to the non-Singaporean

branch via Part II of the Third Schedule of the Banking Act. Defendant Barclays has made an

adequate showing that a subset of its documents is entitled to protection under Singaporean law;

no other Defendant has done so.

Section 47 of the Singapore Banking Act prohibits the disclosure of “customer

information” by “a bank in Singapore.” Hai Decl. (Dkt. 362, Ex. B) ¶ 9; Bull Decl. (Dkt. 368)

¶ 13. Under Section 40A, “customer information” includes “any information relating to, or any

particulars of, an account of a customer of the bank,” a definition that clearly includes the

customer identities and transaction data sought in this case. Hai Decl. ¶ 11 (noting exceptions

for “deposit information” and “information that is not referable to any named customer or group

of named customers”). Section 2(1) defines a “bank in Singapore” as either “a bank incorporated

in Singapore” or the Singaporean branches of a bank incorporated outside Singapore. Id. ¶ 10;

Bull Decl. ¶ 14. In this case, because no Defendant is incorporated in Singapore, the Court is

only concerned with the documents that originate in one of Defendants’ Singaporean branches.

carveout that would apply to every case in which a bank is a party to litigation, whether as a plaintiff or as a

defendant.

Bull Decl. ¶ 15. Based on the parties’ supplemental joint letter, the Court agrees with Plaintiffs

that such documents will likely make up only a very small portion of the expected production

and cannot justify wholesale redaction of documents regardless of origin.5 See Dkt 382 at 4.

The Singapore Banking Act does not expressly contain an exception for compulsion by a

foreign court order. Hai Decl. ¶¶ 22(g), 25–26. Plaintiffs’ declaration also concedes that a

confidentiality order preventing further disclosure, like the protective order already entered in

this case, would not immunize a Singaporean bank from liability. Bull Decl. ¶ 36 (“Disclosure

pursuant to the terms of a confidentiality order is not an exception to bank secrecy under

Singapore law.”). A breach of the statute is criminally punishable, by a fine up to S$125,000 or

a term of imprisonment of up to three years. Hai Decl. ¶ 33.

If, however, a document otherwise protected from disclosure has been transferred out of

Singapore, the Singapore Banking Act may not prohibit further disclosure by the non-

Singaporean recipient. The parties’ competing declarations agree that a recipient of a protected

document transferred pursuant to Part I of the Third Schedule of the Banking Act may re-

transmit that document without risk of liability, whereas a recipient of a protected document

transferred pursuant to Part II may not. Hai Decl. ¶¶ 21–23; Bull Decl. ¶ 16, 36. Defendant

Barclays has represented that its transaction data pertaining to Singaporean customers were

transferred to London under Part II, which would prevent further disclosure absent another

5 The Singaporean production will likely consist of documents from one Barclays custodian for a period of

one year, a slice of transaction data for orders placed in Singapore, and incidental communications related thereto.

See Dkt. 382 at 1–4. As Defendant Barclays has noted, most of its custodians are not based in Asia. Dkt. 382 at 2.

Defendant Bank of Nova Scotia (BNS) further indicated that its branch in Singapore does not execute trades of

precious metals and instead channels precious metals orders to its Hong Kong office, which suggests that a

relatively small share of its gold-related activity actually originates in Singapore. Id. at 2. Additionally, Defendants

BNS, SG, and HSBC do not anticipate any document collection efforts in Singapore, and SG and HSBC are not able

to speak with specificity and certainty as to their Singaporean customers and their processes for executing their gold

orders. Id. Consequently, the share of documents likely to be impacted by Singaporean law is minimal.

exception; other Defendants are silent as to how their Singaporean CII has come to reside outside

of Singapore. Dkt 382 at 1–3.

Based on the foregoing, only Barclays has demonstrated with particularity and specificity

that production of at least a subset of its anticipated responsive documents is prohibited by the

Singapore Banking Act. Specifically, Barclays has met its burden as to the documents obtained

from Singapore associated with the options trader referenced in the parties’ joint letter, for the

time that the trader was based in Singapore. See Dkt. 382 at 1. Barclays has also met its burden

as to the transaction data or other documents transferred out of Singapore pursuant to Part II of

the Third Schedule of the Banking Act. See id. Defendants’ request to redact or pseudonymize

in accordance with Singaporean law is denied in all other respects.

c. England and Wales

Defendants have failed to show that the disclosure of materials from England and Wales

would violate foreign law. Although Defendants have shown that the common law of England

and Wales creates an implied contractual term of secrecy between a banker and a customer, they

are unable to show that disclosure in this case would fall outside of recognized exceptions to the

duty of secrecy; nor do they show that disclosure subject to a protective order would be

inconsistent with that duty. See Tomlinson Decl. (Dkt. 367) at ¶ 3.

All parties agree that the common law duty of confidentiality has four exceptions. They

are: customer consent, public duty, interests of the bank, and compulsion of law. Def. Letter at 4

(citing Tournier v. Nat’l Provincial & Union Bank of England [1924] 1 KB 461); Tomlinson

Decl. ¶ 3 (citing Halsbury’s Laws of England (Vo. 48, 2008, § 229)). Most relevant here are the

public duty and compulsion of law exceptions. Defendants argue, without a supporting

declaration, that ordinary civil lawsuits do not give rise to a public duty and that a foreign

subpoena is inadequate to constitute compulsion of law. Def. Letter at 4. On the other hand,

Plaintiffs’ declaration asserts that it is essentially hornbook law that a court order, including a

foreign one, is sufficient to trigger both exceptions. Tomlinson Decl. ¶ 4–6. Plaintiffs’

declaration further represents that, under the common law, the duty of confidentiality is separate

from a legal claim of privilege, which is necessary to resist discovery, and that the common law

duty of confidentiality would be adequately safeguarded by a protective order. Id. ¶ 6–8.

The Court agrees with Plaintiffs. The Court finds Defendants’ argument that no public

duty is triggered because this private litigation does not pertain to “massive international fraud”

to be disingenuous. See Def. Letter at 4. If the allegations in this case are true, Defendants have

engaged in a decade-long antitrust conspiracy to manipulate the global price of gold, distorting

the free market to the detriment of potentially tens of thousands (if not hundreds of thousands) of

individuals across the world. In terms of public interest, the scale is easily comparable to that of

a “massive international fraud.” Defendants have also failed to establish that a federal court

order necessarily falls short of the legal compulsion exception. See Tomlinson Decl. ¶ 5 (noting

that Defendants’ only authority on this point, X Ag v. A Bank [1983] 2 All ER 464, is

distinguishable on due process grounds). Nor have Defendants demonstrated that the customers’

interest in confidentiality would not be adequately preserved by the protective order in this case.

In short, Defendants have not met their burden to demonstrate, with “particularity and

specificity,” that their discovery obligations are in conflict with English or Welsh common law.

See Fenn, 149 F.R.D. 28 at 34. As such, Defendants must proceed with discovery without regard

to any duty of confidentiality created by the common law of England and Wales.

2. Comity Analysis

Because Defendants have adequately demonstrated a conflict between French law and

SG’s discovery obligations and between Singaporean law and a small subset of Barclays’

document production, the Court must next determine whether to accommodate the relevant

foreign laws under the comity analysis. As a starting point, the Court notes that Defendants are

not seeking to block discovery altogether, but merely to pseudonymize where possible, or redact

where pseudonymization is infeasible, their clients’ identity. Plaintiffs’ primary contention is

that Defendants’ risk of prosecution and liability in a foreign jurisdiction is likely to be low,

which reduces Defendants’ hardship of compliance with discovery. While that may be accurate,

this Court will not require Defendants, who are acting in good faith, to mass-produce CII held in

foreign jurisdictions in violation of foreign law, unless Plaintiffs demonstrate a specific need for

that information.

Several of the comity factors weigh in Defendants’ favor. First, there is no dispute that

most of the information at issue in this case is of foreign origin, which favors deference to the

law of the jurisdiction in which the information was created or is currently being held. Pl. Opp.

at 7 (“Plaintiffs concede that much of the information they seek originates outside of the United

States. Thus, this factor may weigh in favor of granting deference to foreign laws.”). Second, as

to the specificity of Plaintiffs’ request, the Court finds it difficult to characterize the requests in

this matter as “highly specific.” See Pl. Opp. at 6. While it may be true that, ordinarily, a

request for unredacted versions of agreed upon production may be considered a specific request,

the Court cannot ignore the fact that the requests in this case likely sweep in thousands of

customers and essentially all of those customers’ account information over a decade-long period;

to engage in massive understatement, the production of documents in this case is likely to

include enormous amounts of otherwise private information that is irrelevant to the case. See

Minpeco, 116 F.R.D. at 528, 530 (declining to compel production in part because “given the

wide scope of plaintiffs’ requests and interrogatories, compliance by [the bank] is very likely to

yield much material that plaintiffs will not find useful in this litigation); cf. Royal Park

Investments SA/NV v. Deutsche Bank Nat’l Tr. Co., No. 14-CV-4394, 2017 WL 7512815, at *10

(S.D.N.Y. Dec. 29, 2017). Third, there is no indication that Defendants are acting in bad faith.

See Pl. Opp. at 10.

The balance of national interests, ordinarily the most important factor, is not dispositive

here. France and Singapore clearly have an interest in the application of their laws to banks

operating within their jurisdictions; compliance with local laws provides certainty and

predictability to those who do business with said banks.6 See Laydon, 183 F. Supp. 3d at 423

(noting that foreign nations have interest in protecting privacy rights of their citizens); see also

Minpeco, 116 F.R.D. at 523 (finding that codification of secrecy obligations into criminal law

was indicative of substantial foreign interest). On the other hand, the United States also has an

obvious interest in the application of federal law to discovery in its courts; compliance with

federal procedural rules provides certainty and predictability to litigants in this country. See

Laydon, 183 F. Supp. 3d at 423. Additionally, even in private litigation in which the United

States government is not a party, the United States generally has a strong national interest in

combatting antitrust and price manipulation conspiracies. Minpeco, 116 F.R.D. at 523–24 (“The

strength of the congressional policies behind the antitrust and commodities laws is not open to

6 Plaintiffs argue that the Court should discount French and Singaporean interests because they have not

raised an objection to production in this case. While it is true that courts do often consider foreign governments’

opposition or acquiescence to disclosure in particular cases, the lack of an apparent objection from France or

Singapore is not especially probative here, because nothing in the record indicates that the governments were

informed of this litigation (by either party) or otherwise had an opportunity to weigh in. See Alfadda, 149 F.R.D. at

34–35 (noting that defendants gave Swiss government opportunity to express view on disclosure and that Swiss

government declined to take position).

question.”); In re Air Cargo Shipping Servs. Antitrust Litig., 278 F.R.D. 51, 54 (E.D.N.Y. 2010)

(“[E]nforcement through private civil actions . . . is a critical tool for encouraging compliance

with the country’s antitrust laws.”). The strength of the United States’ interest in this case,

however, depends substantially on whether Defendants’ customer names are actually material to

Plaintiffs’ efforts to enforce this nation’s antitrust and commodities laws and, if so, whether that

information can be obtained through alternative means. Laydon, 183 F. Supp. 3d at 423 (noting

that interest of United States grows stronger when “the discovery sought is vital to the litigation”

(internal quotation marks and citation omitted)); In re Payment Card Interchange Fee & Merch.

Disc. Antitrust Litig., No. 05-MD-1720, 2010 WL 3420517, at *9 (E.D.N.Y. Aug. 27, 2010)

(noting that “strength of the national interest in disclosure depends largely on . . . the importance

of the contested documents to this litigation” when interest of United States is primarily private

enforcement of antitrust law).

The outcome of the comity analysis therefore turns on the relevance of the CII and its

importance to this action. See Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238, 247

(S.D.N.Y. 2010) (“[I]t is necessary [] to judge the degree of importance of the information—

where it falls on the spectrum between merely relevant at one end and crucial at the other—and

then weigh this along with all the other factors.”). The affected documents, generally transaction

data and bank communications regarding gold or gold-related trades, are clearly relevant, but to

overcome the comity factors in Defendants’ favor, Plaintiffs must show specifically that the

identities of customers, which is the only information that Defendants intend to withhold, are

relevant and important to the case. And in particular, Plaintiffs must show that they have a need

for the customer names contained in SG’s document production and Barclays’ Singaporean

documents, notwithstanding the voluminous, unredacted production that Plaintiffs are otherwise

receiving. See Trade Dev. Bank v. Cont’l Ins. Co., 469 F.2d 35, 41 (2d Cir. 1972) (affirming

decision not to compel disclosure of customer identities and noting that “the relative

unimportance of the information as to the clients’ identity in the present proceeding was entitled

to be considered”).

Plaintiffs object to Defendants’ proposed pseudonymization of tabulated data and

anonymization of other documents because the proposal interferes with Plaintiffs’ ability to

cross-reference potential evidence.7 In particular, a pseudonym provided by one bank cannot be

matched against a pseudonym generated by another bank, even when they refer to the same

person or entity; nor can a pseudonym in a spreadsheet be linked to a redacted communication.

See Pl. Opp. at 2–3.

The Court agrees with Plaintiffs that, generally speaking, the ability to piece together

different documents about the same customer or account may lead to relevant evidence, and that

de-duplicating class members across datasets may aid in determining the percentage of class

members affected by Defendants’ actions. See Pl. Opp. at 3; In re Air Cargo Shipping Servs.

Antitrust Litig., No. 06-MD-1175, 2014 WL 7882100, at *55 (E.D.N.Y. Oct. 15, 2014) (“Though

Rule 23 permits the possibility that some class members went un-impacted, the court still needs

some assurance that these putative class members are relatively few in number.”). Nonetheless,

7 Plaintiffs also claim that CII is necessary for purposes of providing class notices under Federal Rule

23(c)(2)(B) of Civil Procedure. The Court finds any dispute over notice to be premature. If a class is certified in

this case, the parties can work together on devising a method to provide notice to potential class members.

Similarly, Plaintiffs argue that Defendants may have an unfair advantage in this litigation if Defendants

oppose class certification on the basis that Plaintiffs cannot show that class members suffered a net loss as a result of

Defendants’ manipulation of gold prices. See Pl. Opp. at 2 n.2. As the parties have described it, this netting issue

could arise if a potential class member has multiple accounts across different banks, generating gains and losses that

may need to be offset to determine the class member’s actual injury. If and when Defendants make such an

argument, the comity analysis would of course change, as Plaintiffs’ need for non-anonymized transaction data

would increase. The Court, however, finds no need to require, at this time, disclosure on the basis of a hypothetical

response to a potential argument that Defendants have not yet tried to make.

there are indications that Plaintiffs’ need for customer names in this case is less than compelling.

First, the parties in the sister case involving silver trading, which is also before this Court and is

premised on essentially the same circumstances as in this case, have agreed to proceed with

discovery without disclosure of CII. See Tr. at 19. Additionally, as Defendants have pointed

out, the Antitrust Division of the Department of Justice closed its Fixing-related investigations

without requiring the Fixing Banks to disclose CII. See Tr. at 36; Def. Letter at 8–9.

Under the circumstances of this case, the Court concludes that Plaintiffs’ stated interests

in obtaining CII do not justify wholesale disclosure of SG’s client names or Barclays’

Singaporean customers. First, to the extent that Plaintiffs are interested in the customer

information referenced in SG’s and Barclays’ non-tabulated documents, which consist largely of

chat transcripts and other communications, Plaintiffs will already have access to a majority of

those documents in unredacted form, because the recipients of those messages, e.g., other Fixing

Banks, have no basis to redact or pseudonymize the customer information communicated to them

by SG or Barclays. To the extent that there are internal communications that reference specific

customers, those are unlikely to be probative of an inter-bank conspiracy—or, if Plaintiffs do

identify redacted documents that are particularly probative, they can request SG or Barclays to

provide the unredacted version of those documents.8

Second, as to Plaintiffs’ professed need to de-duplicate customers across all Defendants

to determine class-wide impact, the Court finds that wholesale disclosure of CII by Barclays (as

to Singaporean customers) and SG is unnecessary in light of the other CII to which Plaintiffs

8 As to these targeted requests, the balancing of the comity factors may weigh in Plaintiffs’ favor. First,

when making such requests, Plaintiffs will presumably be able point to specific documents and concrete

circumstances that make clear the relevance of the particular customer’s identity to the case. Additionally, a bank’s

limited disclosure of information for selected accounts is far less likely to result in prosecution or liability than

wholesale disclosure of CII.

have full access. Because Plaintiffs will have unredacted materials from Bank of Nova Scotia,

HSBC, and Barclays (minus Singaporean accounts), Plaintiffs’ experts can already perform

much if not most of the desired de-duplication. Based on those results, the parties’ experts can

likely estimate the number of duplicates that would be found if SG’s clients and Barclay’s

Singapore clients were added to the mix.

Finally, to the extent that Plaintiffs encounter redacted, non-tabulated documents of

particular interest that need to be matched with pseudonymized transaction data, the Court

concludes that Plaintiffs may make a reasonable number of requests to Defendants SG and

Barclays to provide the pseudonym(s) associated with the customer(s) referenced in the non-

tabulated document(s). Given the nature of the discovery in this case, the Court finds it too

burdensome to require Defendants to pseudonymize every account reference contained in each

and every document, particularly because the vast majority of customer and account references

are likely to be of no utility to Plaintiffs.

In sum, the Court finds that, under the comity analysis, Defendants SG and Barclays

should not be required to disclose CII in violation of foreign law unless Plaintiffs demonstrate a

particular need for the disclosure. Although the Court finds that Plaintiffs have failed to

articulate a sufficient need for the wholesale disclosure of CII, the Court concludes that Plaintiffs

may make specific requests for disclosure after receiving the partially pseudonymized and

partially redacted production from SG and Barclays. The parties must meet-and-confer in good

faith to resolve any disputes over any targeted disclosures and to bring any intractable disputes to

the Court’s attention.

III. Conclusion

For the reasons discussed above, as to electronically tabulated data, Defendant SG is

GRANTED leave to pseudonymize customer identity information from such datasets;

Defendant Barclays is GRANTED leave to pseudonymize customer identity information from

such datasets, to the extent that such information originated in Singapore and was transferred

outside of Singapore pursuant to Part II of the Third Schedule of the Singapore Banking Act. As

to the remaining documents that are not available in tabulated form, Defendants Barclays (only

as to Singaporean documents produced by the sole Singapore-based custodian or transferred

outside of Singapore pursuant to Part II of the Third Schedule of the Singapore Banking Act) and

SG are GRANTED leave to redact customer identity information from their production, subject

to a reasonable number of requests from Plaintiffs for disclosure of the pseudonym(s) associated

with the customer(s) referenced in those documents. If after reviewing a pseudonymized or

redacted document, Plaintiffs can articulate a specific need for the disclosure of the customer’s

identity, Plaintiffs may request that Defendants SG or Barclays produce the unredacted version

of the document. Such requests must be reasonable in number, and the parties are directed to

bring any disputes to the Court’s attention if they cannot be resolved after a good-faith meet-and-

confer.

As to all other documents, Defendants’ request to redact or pseudonymize, including for

purposes of complying with the common law of England and Wales, is DENIED.

At the oral argument on this motion, the parties informed the Court that, despite their best

efforts, the discovery schedule previously entered in this case, Dkt. 327, needs to be adjusted.

The parties are directed to meet and confer and to submit an agreed-upon modification of the

schedule by May 17, 2019.

The Clerk of Court is respectfully directed to close the open motion at docket entry 362.

SO ORDERED.

Date: May 6, 2019 Ved La (Gp —

New York, NY ALERIE CAPRONI

United States District Judge

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