In re Foreign Exchange Benchmark Rates Antitrust Litigation

A pre-motion conference will be held on October 7, 2020, at 10:40 a.m. T

conference will be telephonic and will be held on the following conference

September 23, 2020 line: 888-363-4749, access code: 5583333. The time of the pre-motion

conference is approximate, but the parties shall be ready to proceed by th

The Honorable Lorna G. Schofield time.

United States District Court

40 Foley Square Dated: September 24, 2020 .

New York, New York 10007 New York, New York LORNA G, SCHOFIEL:

UNITED STATES DISTRICT JUDGE

Re: Inre Foreign Exchange Benchmark Rates Antitrust Litigation

Case No. 1:13-CV-07789-LGS (S.D.N.Y.) (“Forex”)

Dear Judge Schofield:

Forex Plaintiffs oppose Credit Suisse’s motion for an order permitting it to produce the

“Class Database” in the Allianz action. As explained below, Credit Suisse’s request rests on the

fallacy that there is an actual, live discovery dispute before the Court. There is not, and even if

there were, Credit Suisse lacks standing to bring its motion. Credit Suisse’s motion is also an

improper attempt to make an end run around Rule 45 and the additional protections it affords to

nonparties. Even if Credit Suisse’s request did not suffer from these procedural infirmities, it

would still violate the Forex protective order, grant Credit Suisse a free ride on Class Counsel’s

work, and fail to deliver on the efficiencies Credit Suisse postulates. The motion should be denied.

Credit Suisse brings this motion to compel Forex Plaintiffs to produce the Class Database

in response to Rule 34 requests that the A//ianz plaintiffs served on Credit Suisse in that separate

action. But the Allianz plaintiffs are not seeking the production of the Class Database through

those requests. There is no live dispute. Credit Suisse omits this inconvenient fact by failing to

“specify and quote or set forth verbatim” the discovery request and response to which their

application is addressed, as required by Local Rule 37.1.

Because Credit Suisse is not the propounding party of the discovery, it lacks standing under

Rule 37 to compel production under the A/lianz plaintiffs’ Rule 34 requests. The text of Rule

37(a)(3)(B) provides that “[a] party seeking discovery may move for an order compelling an

answer, designation, production, or inspection.” “Thus, only the party who propounded the

disputed discovery requests,” here, the A//ianz plaintiffs, “has standing to move to compel their

answers.” MDAdvantage Ins. Co. of New Jersey v. Hasiuk, No. 16-CV-969, 2018 WL 3328049,

at *3 (E.D. Pa. July 6, 2018) (citing Payne v. Exxon Corp., 121 F.3d 503, 510 (9th Cir. 1997)

(“Only ‘the discovering party’ ... may bring a motion to compel.”)); accord Kingsway Fin. Servs.,

Inc. v. PriceWaterhouse-Coopers LLP, No. 03 CIV. 5560 RMB HBP, 2009 WL 72165, at *3

(S.D.N.Y. Jan. 9, 2009) (citing Jn re Urethane Antitrust Litig., 237 F.R.D. 454, 457-58 (D. Kan.

2006)).

Rather than pursue this motion, Credit Suisse should have served Forex Plaintiffs (or Class

Counsel), as nonparties to the A//ianz action, with a Rule 45 subpoena. By moving under Rule 37,

Page 2

Credit Suisse deprives Forex Plaintiffs of the heightened protections afforded to nonparties under

Rule 45.1 Credit Suisse’s motion is therefore improper and premature.

Forex Plaintiffs developed the Class Database for the dual purposes of the settlement

claims process and prosecuting claims on behalf of the class against Credit Suisse. Forex Plaintiffs

disclosed the Class Database to Credit Suisse as part of their experts’ backup materials in

connection with class certification reports and designated it “Highly Confidential” under the

confidentiality order (ECF No. 555). Because the Class Database was designated “Highly

Confidential,” it may be used “solely for the purposes of the prosecution or defense” of the Forex

action “and for no other purpose whatsoever.” ECF No. 555, ⁋2. Credit Suisse, thus, received the

Class Database for the limited purpose of defending against the claims in Forex.2 Credit Suisse,

however, now seeks to use the Class Database in Allianz to defend against claims asserted by those

entities that opted out of Forex.

Credit Suisse fails to provide any authority supporting the assertion that it acquired the

right to freely use the Class Database in Allianz merely because it was disclosed in Forex. While

the cases are “related” under Rule 13 of the Rules for the Division of Business Among District

Judges, they are not consolidated for discovery or trial, and there is no order providing that

disclosure in one case constitutes disclosure in the other.

Similarly, the production of the raw data in Forex, and participation in subsequent meet

and confers, does not provide Credit Suisse with any right to use the Class Database in Allianz.

Credit Suisse produced its data pursuant to Forex Plaintiffs’ Rule 34 requests and elected to

informally confer with Forex Plaintiffs to avoid further Rule 30(b)(6) depositions (and/or other

discovery devices) on data topics. But compliance with discovery obligations in Forex should not

relieve Credit Suisse of its discovery obligations in the separate Allianz action.

Credit Suisse’s motion is not a request for the production of discoverable party data.

Defendants produced the raw data underlying the Class Database in Allianz. Rather, Credit

Suisse’s request is for Class Counsel’s work product and Forex Plaintiffs’ expert analysis, which

Credit Suisse concedes took “substantial” and “considerable” time and expense to develop.

Notably, in over seven years of defending regulatory, criminal, and civil matters worldwide,

apparently, Defendants have failed to create their own database out of the raw data they produced

in Forex, despite their prodigious IT resources and the availability of in-house FX specialists.

1 “Paragraph (c)(3),” renumbered in 2013 as (d)(3), “explicitly authorizes the quashing of a subpoena as a

means of protecting a witness from misuse of the subpoena power.” Fed. R. Civ. P. 45 advisory committee’s note to

1991 amendments. Subparagraph (d)(3)(A) “identifies those circumstances in which a subpoena must be quashed or

modified,” including to protect a subpoenaed person from “undue burden.” Id. Subparagraph (d)(3)(B) “identifies

circumstances in which a subpoena should be quashed unless the party serving the subpoena shows a substantial need

and the court can devise an appropriate accommodation to protect the interests of the witness.” Id.

2 The parties’ expert backup materials (including voluminous data and computer programs) were not filed or

otherwise submitted to the Court. Accordingly, apart from Credit Suisse, Forex Plaintiffs have provided no other

party in Forex or Allianz with the Class Database.

Page 3

Instead, they seek a free ride on Class Counsel’s efforts to achieve what they could not – or would

not – accomplish on their own.

Credit Suisse suggests that Class Counsel should have no objection because a portion of

the Class Database’s cost was reimbursed to us out of the settlement funds. It would be unjust to

force the Forex Settlement Classes, which ultimately paid part of these costs from its settlements,

and Class Counsel, which bears the Class Database’s ongoing costs,3 to convey valuable work

product and expert analysis for nothing. There is no justification for such a free ride; it is not

reasonable to expect that Credit Suisse would obtain this work product and expert analysis even

for an exchange of cost. As Class Counsel explained to Credit Suisse, to the extent production of

the Class Database is ordered over Forex Plaintiffs’ objections, Forex Plaintiffs will seek

appropriate recompense from any party using the Class Database in order to capture its value

(beyond mere costs and lodestar) and reimburse the settlement funds from those proceeds.

Finally, the efficiencies Credit Suisse posits as flowing from the production of the Class

Database are unrealistic. The Class Database would not be a plug-and-play solution such that once

it is produced, Defendants would be absolved from meeting and conferring with the Allianz

plaintiffs on data issues. Rather, putting aside that the Allianz plaintiffs have not agreed to use a

common database (Allianz, ECF No. 435-2 at 2-3), let alone the Class Database, the production of

the Class Database is more likely to create an additional layer of conferral issues – one with

Defendants on the scope and meaning of the raw data and another with Class Counsel and our

experts on how that data was cleaned, normalized, and integrated into the Class Database. This

would only further enmesh Class Counsel in protracted and repeated discussions in the separate

Allianz case with respect to information that is clearly protected from use outside of the Forex

litigation. Credit Suisse provides no authority for placing Class Counsel and class experts in the

unprecedented role of data experts in opt-out litigation. Class Counsel should not be saddled with

the burden of refereeing the opt-out case while we prepare the class case for summary judgment

and trial.

Credit Suisse fails to show it has any right to use the Class Database in Allianz. For the

foregoing reasons, Forex Plaintiffs respectfully submit that Credit Suisse’s motion should be

denied.

Respectfully submitted,

SCOTT+SCOTT ATTORNEYS HAUSFELD LLP

AT LAW LLP

s/ Christopher M. Burke s/ Michael D. Hausfeld

3 The Settlement Classes and Class Counsel have paid millions in costs (experts, hardware, software, and

security), as well as attorney time, in developing and maintaining the Class Database. The Settlement Classes bore a

portion of these costs by way of reimbursements to Class Counsel from the settlement funds. However, Class Counsel

continue to incur ongoing costs, which we have borne exclusively with no certainty that such costs will be recovered

in the future.

Page 4

Christopher M. Burke Michael D. Hausfeld

600 W. Broadway, Suite 3300 1700 K Street, NW, Suite 650

San Diego, CA 92101 Washington, DC 20006

Telephone: 619-233-4565 Telephone: 202-540-7200

cburke@scott-scott.com mhausfeld@hausfeld.com