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County of Cook v. Bank of America Corp.

United States District Court, N.D. Illinois, Eastern Division

October 22, 2019

COUNTY OF COOK, Plaintiff,


          Sunil R. Harjani United States Magistrate Judge.

         Cook County brings this action under the Fair Housing Act, 42 U.S.C. § 3601 et seq., alleging that Defendants discriminated against African-American and Hispanic/Latino borrowers in Cook County in the origination and servicing of residential mortgage loans. On August 22, 2019, this case was reassigned to the undersigned magistrate judge from then-Magistrate Judge Rowland for discovery supervision. In effort to resolve the many pending discovery disputes between the parties that have prolonged this litigation, the Court set a deadline for the parties to meet and confer, and then to file motions to compel on all pending discovery disputes. Five motions to compel are now pending before this Court. In this order, the Court rules on two of those motions: (1) Plaintiff's Motion to Compel the Addition of Custodians [339] and (2) Defendants' Motion to Compel the County to Provide ESI Discovery [343]. For the following reasons, the County's Motion to Compel the Addition of Custodians [339] is denied and Defendants' Motion to Compel the County to Provide ESI Discovery [343] is granted in part and denied in part.


         The current motions concern the ESI issues on which the parties remain in dispute. The Court addresses the parties' arguments below.

         A. County of Cook's Motion to Compel the Addition of Custodians

         After more than five years of litigation and nearly 26 months of discovery, Cook County moves to compel Defendants to search the electronically-stored information of 24 additional custodians. The parties began the process of identifying Defendants' potential custodians on November 17, 2015. Doc. 351-3 at 4. The County identified “employees of the Company at the operational management level or higher” relevant to each of the Defendants' operations involving marketing, application process, underwriting, funding, mortgage lending, mortgage loan servicing, default servicing, loan modifications, foreclosures, control and compliance, risk assessment, and safety and soundness oversight. Id. At that time, the County identified, among others, all custodians whose ESI it now moves to compel. Id. On February 18, 2016, the County served a list of 785 proposed custodians. Doc. 113 at 53:22-23.

         During a March 24, 2016 status hearing, the parties discussed the custodian issue with then-Magistrate Judge Rowland. Doc. 113. Counsel for the County asserted that “people like [Andrew] Gissinger, who was at the very top of that chart, those are very important people” because “the way that system was set up over there [at Countrywide], it's the people at the top that knew what was going on and intended it and planned it.” Id. at 59:9-13. In discussing the custodian issue, Judge Rowland stated: “There are not going to be 700 custodians, and there are not going to be 80 custodians, so you're going to need to pick your fights.” Id. at 69:17-19; see also 67:9 (stating “You're not searching 80 e-mail boxes. You're just not.”). With the goal of identifying the “most effective people, ” Judge Rowland ordered: Defendants to identify the amount of data available for Countrywide custodians; the parties to meet and confer regarding which custodians will be searched for responsive data; and the parties to file a joint status report identifying any custodians still at issue by April 11, 2016. Id. at 57:12-13; doc. 108 at 2.

         Thereafter, the parties exchanged custodian lists and met and conferred about potential custodians on April 8 and April 11, 2016. The County proposed a narrowed list of 97 custodians, but the parties were unable to reach an agreement regarding email custodians. The parties briefed their positions with respect to the custodian issue for Judge Rowland in a Joint Report on Outstanding Discovery Disputes filed on April 11, 2016. Doc. 120 at 2-17. The parties included a chart of the custodians in dispute that listed the relevant topic(s) for each custodian and identified the custodian's job title. Id. at 3-8. On that chart, the County listed all 24 individuals it now moves to compel Defendants to add as custodians. In the Joint Report, Defendants argued that 31 custodians should be searched.

         At a status conference on May 18, 2016, Judge Rowland orally ruled on the parties' ESI custodian dispute. Doc. 143. In addition to the custodians Defendants agreed to provide, Judge Rowland ordered Defendants to collect ESI for three additional categories of custodians: (1) nine confidential sources identified in the Complaint, (2) “three new people that were added” by the County (Brian Robinett, John Berens, and John Boland), and (3) Rebecca Mairone and Tony Meola. Id. at 4:5-6-15. However, Judge Rowland ruled: “I am not going to allow the __ what I would call the national whistle-blower[s] the -- Mr. O'Donnell, Miss Foster and Miss Winston, to be included in the custodians. . . . I am sure they have very interesting e-mails that would be interesting to read about, but I don't see the relevance to this case.” Id. at 2:24-3:4. Judge Rowland also did “not [] allow the custodians to include the major players at CW and Bank of America, Gissinger, Bielanski, Desoer and Lumsden.” Id. at 3:5-7. Exercising her broad discretion to limit discovery based upon relevancy and proportionality, Judge Rowland explained:

I am trying to give you a fair number of custodians. I think we are into the 40s __or about 40 custodians. I don't want this to become, you know, a monster so that you get such a data dump that you can't swim out of it. Okay?
And I also don't want the banks having such a __ such a monster to review that we are in 2025 before we are done with discovery in this case. Okay? That doesn't serve anybody.

Id. at 7:18-25, 8:1. In total, Judge Rowland ruled that the County was entitled to ESI from 38 specific custodians, including the ESI for Countrywide CEO Angelo Mozilo. Judge Rowland stated that she was “done with custodians. So let that work begin.” Id. at 6:22-23. The County did not seek reconsideration of Judge Rowland's ruling on the custodian issue nor did it file objections with the district court concerning Judge Rowland's order.

         Subsequently, Defendants collected the data from the 38 Court-ordered custodians and transmitted it to an e-discovery vendor.[1] Defendants began reviewing ESI documents in February 2019 and say they “dramatically accelerated their review in July 2019.” Doc. 348 at 9. As of September 16, 2019, Defendants had produced over 35, 000 ESI documents consisting of over 137, 000 pages, which were produced through four separate productions beginning on April 12, 2019. Plaintiffs' reply brief confirms that Defendants have produced 45, 973 documents as of October 1, 2019. Doc. 357 at 10, n.13.

         Although styled as a Motion to Compel, the County actually seeks reconsideration of Judge Rowland's May 18, 2016 ruling. A district court has “discretion to reconsider its interlocutory rulings, subject to the law-of-the-case doctrine.” Phillips v. Baxter, 768 Fed.Appx. 555, 558 (7th Cir. 2019); Fed.R.Civ.P. 54(b) (non-final orders “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”). “[T]he law of the case doctrine embodies the notion that a court ought not to re-visit an earlier ruling in a case absent a compelling reason, such as manifest error or a change in the law, that warrants re-examination.” Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). The purpose of the doctrine is to “further consistency, to avoid constantly revisiting rulings, and to conserve judicial resources.” Sharp Electronics Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 510 (7th Cir. 2009). The presumption against reconsideration of earlier rulings “holds when the case is reassigned from one judge to another.” Minch, 486 F.3d at 301. “In situations where a different member of the same court re-examines a prior ruling, ‘the law of the case doctrine . . . reflects the rightful expectation of litigants that a change of judges midway through a case will not mean going back to square one.” Id. (internal citations and quotations omitted); but see ...

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