The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Allianz Global Investors GmbH et al.,
Plaintiffs,
1:18-cv-10364 (LGS) (SDA)
-against- ORDER
Bank of America Corporation et al.,
Defendants.
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE:
Following a telephone conference with the parties on Thursday, October 14, 2021, for the
reasons stated on the record, as well as the reasons set forth below, the Court hereby ORDERS,
as follows:
1. With respect to the disputes raised in the parties’ October 11 Joint Letter
regarding Defendants’ requests for supplementary document custodians from Plaintiffs PIMCO,
BlackRock and PFA (see 10/11/2021 Joint Ltr., ECF No. 927, at 1-3, 7-11; id. App’x A at 1-22, 29-
35),1 the Court finds that Defendants are entitled to some supplementary custodians, as follows:
a. PIMCO
After careful consideration, the Court in its discretion DENIES Defendants’ requests to add
Bill Powers and Doug Hodge as supplementary custodians. See, e.g., Fort Worth Employees’ Ret.
Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107 (S.D.N.Y. 2013) (party moving to compel
additional proposed custodians “must demonstrate that the additional requested custodians
1 The page numbers for the 10/11/2021 Joint Letter that are cited in this Order are the page numbers
reflected at the bottom of the pages to the 13-page summary that is appended to the parties’ one-page
cover letter. Similarly, the page numbers for Appendix A to the 10/11/2021 Joint Letter that are cited in
this Order are the page numbers reflected at the bottom of the pages to that 48-page Appendix.
would provide unique relevant information not already obtained” (emphasis in original)); Harris
v. Union Pac. R.R. Co., No. 16-CV-00381 (SMB), 2018 WL 2729131, at *4 (D. Neb. June 6, 2018)
(production of records from senior executives is appropriate only where there is “a sufficient
showing that this information is necessary and not cumulative of other materials”). Although
Defendants assert that Messrs. Powers and Hodge attended “feedback meetings” with
Defendants, Plaintiffs assert, and Defendants do not dispute, that Messrs. Powers and Hodge
“had no involvement in FX trading, strategy or analysis,” and that these two “relied on others”—
including existing custodians and less senior proposed supplementary custodians—"to educate
them about FX.” (10/11/21 Ltr., App’x A at 5-6, 10.) Accordingly, Defendants will be able to obtain
relevant internal communications with Messrs. Powers and Hodge via the counterparties to
those communications, who are the persons actually in possession of relevant knowledge. Any
marginal utility of obtaining internal communications involving Messrs. Powers or Hodge but not
any other custodians who are less removed from the trading would be outweighed by the burden
of pulling, searching, processing and producing several years of these senior executives’ emails.
Defendants may select four supplementary PIMCO custodians out of the remaining eight
that they propose.2
b. BlackRock
After careful consideration, the Court in its discretion DENIES Defendants’ requests to add
Laurence Fink and Robert Kapito as supplementary custodians, for substantially the same reasons
2 On further reflection, the Court declines to permit Defendants to substitute newly proposed
supplementary custodians in place of Messrs. Powers and Hodge. Such substitution was not contemplated
in the process Ordered by the Court in August, and would further prolong an already drawn-out process
of custodial production.
as provided above with regard to Messrs. Powers and Hodge. Although Defendants argued during
the October 14, 2021 conference that the documents of Messrs. Fink and Kapito are “literally
potentially the most significantly critical documents in this case” (10/14/21 Tr., ECF No. 935, at
18), the Court does not find this argument persuasive. Defendants focus on the purportedly
critical importance of any communications between these two senior executives in preparation
for, or at postmortems after, their meetings with Defendants.3 (See, e.g., id. at 19-20.) Plaintiffs
represent, however, that these inter-party meetings were “high-level meetings to discuss the
nature of the parties’ relationship,” and that they were not focused on FX.4 (Id. at 23-24.) In any
event, nowhere do Defendants adequately articulate in non-conclusory fashion how any such
pre- or post-meeting discussions—over and above (i) the data and feedback from actual FX
traders that were provided to Messrs. Fink and Kapito, which would have informed any such
discussions,5 and (ii) the documents from the Defendants’ own representatives who attended
these meetings—are relevant to any claim or defense in this case, let alone of significant
importance in resolving the issues in the case.6 See Fed. R. Civ. P. 26(b)(1).
3 Defendants also call attention to an email chain between
Setting aside the parties’ dispute
as to whether the subject of that communication is relevant (see 10/14/21 Tr. at 27-29, 31-32), the fact
that is unremarkable and unlikely to be probative of anything material.
4 As Plaintiffs note, Defendants, who were present at these meetings, have not supported their request
for “the most significantly critical documents in this case” with any evidence of what, if anything, about
the FX market was actually discussed during any of the meetings. (See 10/14/21 Tr. at 25.)
5 Plaintiffs have agreed to produce to Defendants the briefing memoranda provided to Messrs. Fink and
Kapito in connection with the meetings. (See 10/11/21 Ltr., App’x A at 21.)
6 Also telling is the fact that Defendants made no mention of seeking to add Messrs. Fink or Kapito as
supplementary custodians in the parties’ Joint Letter dated August 17, 2021. (See 8/17/21 Ltr., ECF No.
886.)
Defendants may select three supplementary BlackRock custodians out of the remaining
five that they propose.
c. PFA
The Court GRANTS Defendants’ request to add Martin Hygild Sørensen as a
supplementary custodian. Plaintiffs’ counsel promptly shall confirm with the PFA Plaintiffs
whether any PFA Plaintiff or any non-Plaintiff PFA entity has in its possession, custody or control
any reasonably accessible emails or chats of Mr. Sørensen. PFA’s document retention policies
and implementation thereof vis-à-vis Mr. Sørensen may be addressed in a 30(b)(6) deposition. In
addition to Mr. Sørensen, Defendants may select two further supplementary custodians out of
the other four that they propose.
d. Search Terms
No later than Monday, October 25, 2021, Defendants shall inform Plaintiff of the
supplementary custodians it wishes to add, pursuant to the above. The parties then promptly
shall meet and confer regarding the search terms to be used for these supplementary custodians.
If the parties cannot agree on search terms, then they shall set forth their respective positions in
the joint letter to be submitted to the Court pursuant to paragraph 6 infra.
2. With respect to the dispute raised in the parties’ October 11 Joint Letter regarding
Defendants’ request for location information of third-party entities that traded on Plaintiffs’
Defendants presumably would have requested
those two as supplementary custodians back in August 2021 when they first requested supplementary
custodians from BlackRock.
behalf (see 10/11/2021 Joint Ltr. at 4-5, 11-12), the parties shall meet and confer and seek to
stipulate to a resolution of this dispute. If no stipulation can be agreed upon, the parties shall set
forth an update of their respective positions in the joint letter to be submitted to the Court
pursuant to paragraph 6, infra, so that the Court can revisit the issue.
3. With respect to the dispute raised in the parties’ October 11 Joint Letter regarding
Plaintiffs’ request for Defendants’ “intermediary data” (see 10/11/2021 Joint Ltr. at 5, 13), no
later than Tuesday, December 7, 2021, Defendants shall complete and share with Plaintiffs a
meaningful sample of results from their analysis project. The Court may extend this deadline
upon showings of diligence and good cause.
4. With respect to the dispute raised in the parties’ October 11 Joint Letter regarding
Plaintiffs’ request for Bank of America’s and BNPP’s FX futures data for futures transacted on the
CME (see 10/11/2021 Joint Ltr. at 5-6, 13):
a. No later than Monday, November 15, 2021, Bank of America shall produce
such data for the 2003-07 period.
b. BNPP shall diligently investigate whether it has within its possession, custody
or control such data for the 2003-07 period, and set forth in the joint letter to
be submitted to the Court pursuant to paragraph 6, infra, the results of such
investigation.
5. The parties’ Joint Letter Motion to Seal (ECF No. 928) is GRANTED. ECF No. 9297
shall remain under seal. Although “[t]he common law right of public access to judicial documents
7 ECF No. 929 is an unredacted version of the Joint Letter filed at ECF No. 927.
is firmly rooted in our nation’s history,” this right is not absolute, and courts “must balance
competing considerations against” the presumption of access. Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (internal quotation marks omitted). Maintaining
the unredacted version of the parties’ October 11 Joint Letter under seal is necessary to prevent
the unauthorized dissemination of confidential business information.
6. No later than Tuesday, November 16, 2021, at 6:00 p.m. EST, the parties shall file
a joint letter regarding the status of discovery and any existing disputes.
7. The parties are directed to appear for a Telephone Conference in this action on
Thursday, November 18, 2021, at 2:00 p.m. EST. At the scheduled time, the parties shall each
separately call (888) 278-0296 (or (214) 765-0479) and enter access code 6489745.
8. Two versions of this Order are being filed by the Court to the ECF docket—a public
version that redacts footnotes 3 and 6 and a complete version that is filed under seal. The public
version redacts footnotes 3 and 6 since they contain discussion of language that was redacted
from the publicly filed versions of the emails cited in those footnotes (see ECF Nos. 884-1, 927-2
& 927-4).
SO ORDERED.
Dated: New York, New York
October 18, 2021
List A.
STEWART D. AARON
United States Magistrate Judge