The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JOHN NYPL, et al., :
Plaintiffs, :
: 15 Civ. 9300 (LGS)
-against- :
: ORDER
JP MORGAN CHASE & CO., et al., :
Defendants. :
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LORNA G. SCHOFIELD, District Judge:
I. Documents Other Than the UBS Letters
WHEREAS, pursuant to the Third Amended Civil Case Management Plan and
Scheduling Order, all fact discovery was to be completed by July 20, 2020. Dkt. No. 548.
WHEREAS, the Court permitted limited fact discovery after the July 20, 2020, deadline,
of documents or information that either are or reflect communications between Defendants and
the United States Department of Justice, related and leading up to the plea agreements referenced
in the stipulation the Court approved on March 18, 2018 (Dkt. No. 425). See, e.g., Dkt. No. 645.
WHEREAS, pursuant to the Court’s Orders at Docket Nos. 574 and 622, on August 21,
2020, the parties filed a joint status letter to apprise the Court of certain discovery disputes. Dkt.
No. 623.
WHEREAS, the Court held a conference on September 10, 2020, to address, among other
issues, the issues the parties raised in their August 21, 2020, joint status letter.
WHEREAS, on September 10, 2020, the Court ordered the parties to meet and confer to
discuss the further production of any previously requested documents or information that either
are or reflect communications between Defendants and the United States Department of Justice,
related and leading up to the plea agreements referenced in the stipulation the Court approved on
March 18, 2018, (Dkt. No. 425), and to file a status letter apprising the Court of the outcome of
the parties’ discussion and informing the Court of any remaining disputes. Dkt. No. 645.
WHEREAS, on September 21, 2020, Plaintiffs filed a letter pursuant to the Court’s
Orders at Docket Nos. 645 and 653. Dkt. No. 655. Plaintiffs’ September 21, 2020, letter noted
that “[a]s specifically enumerated in Plaintiffs’ August 21, 2020, letter there were many items
that were not provided in [Defendants’] answers.” Id. at 3.
WHEREAS, on September 23, 2020, Defendants filed a responsive letter pursuant to the
Court’s Orders at Docket Nos. 645 and 653. Dkt. No. 659.
WHEREAS, on September 30, 2020, Plaintiffs filed a responsive letter to Defendants’
September 23, 2020, letter at Docket No. 659. Dkt. No. 665.
WHEREAS, on October 1, 2020, the Court construed Plaintiff’s assertion that, “[a]s
specifically enumerated in Plaintiffs’ August 21, 2020, letter there were many items that were not
provided in [Defendants’] answers,” (Dkt. No. 655 at p. 3), as a motion to compel; denied the
motion without prejudice to renewal; and directed Plaintiffs to file, by October 8, 2020, any
renewed motion to compel specifically identifying each of the documents Plaintiffs identified in
the parties’ joint letter filed on August 21, 2020, (Dkt. No. 623), about which the parties had met
and conferred but for which the parties had not reached a resolution.
WHEREAS, the Court granted an extension of Plaintiffs’ time to file a renewed motion to
compel. Dkt. No. 668.
WHEREAS, on October 14, 2020, Plaintiffs filed a pre-motion letter in anticipation of a
renewed motion to compel, seeking the production of the following:
1. “[d]ocuments showing ‘[t]he total fix order volume for the WM/R and ECB fixes’
from 2008 to 2012 referenced in the Defendants’ Appendices”;
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2. “[d]ocuments showing ‘[t]he spot FX market share’ for each of the Defendants, as
referenced in the Appendices;
3. “[d]ocuments showing the ‘methodology’ used by the DOJ to calculate
Defendants’ fines, as referenced in the Appendices”;
4. “[d]ocuments showing the ‘overlapping financial sanctions imposed by other
regulatory and enforcement entities’ argued by each Defendant to minimize fines,
as referenced in the Appendices”;
5. “[d]ocuments, presentations, or mathematical calculations that were referenced by
Defendants in their responses (fn1) and that must have been exchanged between
the Defendants and the DOJ -- or any regulatory entity -- including any reference
by Defendants to three pips”; and
6. “[d]efendants’ notes or memoranda reflecting communications with the
Government.” Dkt. No. 669 at p. 1.
WHEREAS, on October 19, 2020, Defendants filed a responsive letter to Plaintiffs’
October 14, 2020, pre-motion letter at Docket No. 669, indicating that, with the exception of
UBS, Defendants have produced or described as withheld on a privilege log, all documents about
which the parties met and conferred. Dkt. No. 671.
WHEREAS, on October 22, 2020, Plaintiffs filed a responsive letter to Defendants’
October 19, 2020, responsive letter at Docket No. 671. Dkt. No. 675. It is hereby
ORDERED that, Plaintiffs’ October 14, 2020, pre-motion letter at Docket No. 669 is
construed as a motion to compel. It is further
ORDERED that, Plaintiffs’ motion to compel is DENIED (i) for substantially the
reasons stated in Defendants’ October 19, 2020, responsive letter at Docket No. 671, including
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that Defendants (with the exception of UBS) have either produced or identified as privileged any
documents responsive to Plaintiffs’ requests, and further, because (ii) Plaintiffs’ document
requests exceed the scope of the limited fact discovery that the Court permitted (see, e.g., Dkt.
No. 645), and (iii) Plaintiffs’ October 14, 2020, pre-motion letter referenced broad categories of
documents and did not specifically identify documents about which the parties met and conferred
but could not reach a resolution.
II. The UBS Letters
WHEREAS, Plaintiffs’ September 21, 2020, letter also requested that the Court compel
UBS to produce to Plaintiffs, “the letters identified in their answers to interrogatories written by
their counsel to the Government,” (the “UBS Letters”). Dkt. No. 655, p. 3.
WHEREAS, Defendants’ September 23, 2020, responsive letter indicated that the UBS
Letters “have no information concerning fines or fine calculations relating to FX. UBS’s guilty
plea and DOJ fine related to LIBOR, not FX.” Dkt. No. 659, p. 2.
WHEREAS, on September 30, 2020, Plaintiffs filed a responsive letter to Defendants’
September 23, 2020, responsive letter at Docket No. 659, but did not address the contention that
the UBS Letters “have no information concerning fines or fine calculations relating to FX.” See
Dkt. No. 665.
WHEREAS, on October 1, 2020, the Court denied Plaintiffs’ motion to compel
production of the UBS Letters on the ground that the UBS Letters “have no information
concerning fines or fine calculations relating to FX,” “relate[] to LIBOR, not FX,” and are
accordingly, not relevant to this action. Dkt. No. 666 at p. 4.
WHEREAS, Plaintiffs’ October 13, 2020, pre-motion letter requests that the Court
compel UBS “to produce all of the communications between themselves and the DOJ”; indicates
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that the “focal point of the [UBS Letters is] the FX violations”; and explains that “UBS had
already violated the antitrust laws in the LIBOR case. Instead of a plea agreement, UBS was able
to get a non-prosecution agreement with the government. If it violated the law again, that would
be a breach and revocation of the non-prosecution agreement in LIBOR.” Dkt. No. 669 at p.3.
WHEREAS, Defendants’ October 19, 2020, responsive letter addresses the UBS Letters.
Dkt. No. 671, pp. 3-4.
WHEREAS, Plaintiffs’ October 22, 2020, responsive letter addresses the UBS Letters.
Dkt. No. 675, p. 3.
WHEREAS, “[a] motion for reconsideration should be granted only when the [party
seeking reconsideration] identifies an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal
citation and quotation marks omitted). The standard “is strict, and reconsideration will generally
be denied unless the moving party can point to controlling decisions or data that the court
overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(internal citation and quotation marks omitted). A motion for reconsideration is “not a vehicle for
relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a second bite at the apple.” Id. (internal citations quotation marks omitted).
The decision to grant or deny a motion for reconsideration rests within “the sound discretion of
the district court.” See Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (internal quotation marks
omitted); accord Strougo v. Barclays PLC, 334 F. Supp. 3d 591, 595 (S.D.N.Y. 2018). It is
hereby
ORDERED that, Plaintiffs’ request that the Court compel UBS “to produce all of the
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communications between themselves and the DOJ” is construed as a motion for reconsideration.
It is further
ORDERED that, Plaintiffs’ motion for reconsideration is DENIED as Plaintiffs have not
identified “an intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice,” Kolel Beth Yechiel Mechil of Tartikon, Inc.,
729 F.3d at 104 (emphasis added), that would require to Court to reconsider its ruling.
Specifically, Plaintiffs have failed to identify new evidence that became available after Plaintiffs
filed their September 30, 2020, reply to Defendants’ September 23, 2020, responsive letter at
Docket No. 659.
The Clerk of Court is respectfully directed to close Docket No. 669.
Dated: October 23, 2020
New York, New York
UNITED STATES DISTRICT JUDGE