UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
LEWIS COSBY, KENNETH MARTIN, as
beneficiary of the Kenneth Ray Martin Roth IRA,
and MARTIN WEAKLEY on behalf of
themselves and all others similarly situated,
Plaintiffs,
v.
KPMG, LLP
Defendant.
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No.: 3:16-cv-00121-TAV-DCP
OPPOSITION TO DEFENDANT’S REQUEST FOR
CONFERENCE WITH MAGISTRATE JUDGE
The Court should deny KPMG’s Request for Conference with Magistrate Judge in
Advance of Filing a Motion to Compel Plaintiffs to Produce Documents (“Motion”), ECF No. 93,
as it is premature, unnecessary and fails to comply with the Court’s Judicial Preferences.
First, Plaintiffs have not failed to comply with any Court ordered deadlines. As the Court
is aware, the parties jointly submitted a proposed scheduling order to the Court on January 17,
2019. See The Parties’ Jointly Proposed Modified Scheduling Order (“Proposed Scheduling
Order”), ECF No. 92-1. At the time of this filing, the Proposed Scheduling Order has not been
entered or otherwise acted upon by this Court. This is reason enough to deny KPMG’s request.
However, even if that Proposed Scheduling Order was operative – which it is not – it does not
require Plaintiffs to have completed their document production by January 25, 2019. Rather, it
only requires that document production be completed by April 5, 2019. See id. at 2. And, while
the accompanying Notice of Filing states that, “Plaintiffs anticipate making their production of
documents by January 25, 2019” (Joint Notice of Filing the Parties’ Fourth Proposed Amended
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Scheduling Order, ECF No. 92, at 7) (emphasis added), Plaintiffs are in no way obligated to
produce their documents by that date.
Second, KPMG failed to comply with the Court’s requirement that it first “meet and
confer” with Plaintiffs prior to filing its Motion. Plaintiffs learned that KPMG intended to move
to compel only when the instant motion was filed. In a series of careful evasions that appear to
suggest otherwise, KPMG asserts that it sought “through telephone conversations and e-mails . . .
to convince Plaintiffs . . . to produce their documents without the need for this motion[]”, and that
“KPMG’s counsel has met and conferred with Plaintiffs’ counsel . . . in an attempt to resolve the
present dispute without judicial intervention[.]” Mot. at 5. However, KPMG never raised the
possibility of a motion to compel by phone, email, or otherwise with Plaintiffs prior to filing this
motion. Such tactics are contrary to both the letter and spirit of this Court’s requirement that the
parties first meet and confer in an attempt to resolve disputes between themselves, without judicial
intervention. See U.S. District Judge Thomas Varlan’s Judicial Preferences, Section 12(1) (“the
parties are to meet and confer among themselves in an effort to resolve” discovery disputes); U.S.
Magistrate Judge Debra Poplin’s Judicial Preferences, Section 12(1) (“Lawyers should . . . meet
and confer and use their best efforts to resolve discovery disputes promptly among themselves[.]”).
KPMG claims that an email it sent to Plaintiffs’ counsel on Monday, January 28, 2019,
fulfilled its meet and confer obligation. However, that email, which reads in its entirety: “Didn’t
you say would get us plaintiffs docs by Friday last week? I don’t think we have received them.
Can you let us know? Thanks, Greg” (Mot., Ex. D), plainly does not constitute an effort to meet
and confer in good faith. To the contrary; if anything, the email reflects confusion about when
Class related document productions would occur given that the Court has yet to rule on the parties’
Proposed Scheduling Order.
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Notably, in stark contrast to KPMG, Plaintiffs did ask KPMG to meet and confer regarding
KPMG’s Class certification related discovery, but received no response. Specifically, concurrent
with the parties’ negotiation of the Proposed Scheduling Order, Plaintiffs discussed with KPMG
certain documents that must be produced before the proposed due date for Plaintiffs’ Motion for
Class Certification. Shortly thereafter, and in an attempt to expedite that process, Plaintiffs sent an
email to KPMG on January 16, 2019, with search terms relevant to Class Certification and a
request to meet and confer about potential custodians (see Exhibit A attached hereto). KPMG
neither responded to that email nor has it produced any documents relevant to Class certification.1
KPMG will likely have thousands of relevant documents relevant to Class certification—which
will require substantial time to review – prior to the filing of Plaintiffs’ Motion for Class
Certification.
Finally, Plaintiffs intend to move to substitute certain Miller Energy investors as proposed
Class representatives into the case before moving for Class Certification. Concurrent with that
motion, Plaintiffs will immediately produce any relevant, non-privileged documents from those
proposed Class representatives to KPMG. As KPMG is aware, the likely number of relevant, non-
privileged documents in the possession of individual proposed Class representatives in a securities-
fraud class action is small, and will create no burden on KPMG, nor will production of those
1 Notably, Plaintiffs served their initial request for production on KPMG on September 12, 2018, which
included requests for documents relevant to Class certification (see, e.g., Doc. Req. 9 and 25, attached
hereto as Exhibit B). Yet, until 3 days ago, KPMG had not produced a single document to Plaintiffs. Unlike
the expected minor volume of discovery from the proposed Class representatives, KPMG is likely to have
thousands of documents relevant to Class Certification that will need to be reviewed and analyzed prior to
the filing of Plaintiffs’ motion for Class Certification. The documents that KPMG claims to have produced
concurrent with its filing of the Motion (Mot. at 3), are not relevant to Class Certification, but instead are
the documents that KPMG produced to the SEC years ago in connection with the SEC’s investigation, and
ultimate Order against, KPMG. Furthermore, while KPMG sent a letter on Friday stating that it was
producing said documents and would be providing instructions on how to access the documents via an FTP
site, no such instructions were sent.
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documents in advance of the filing of Plaintiffs’ Motion for Class Certification in any way prevent
it from opposing Plaintiffs’ Motion for Class Certification or deposing the proposed Class
representatives in accordance with the pending Proposed Scheduling Order.
Accordingly, for the reasons set forth above, Plaintiffs’ respectfully request that the Court
deny the Motion.
Dated: February 11, 2019 Respectfully submitted,
/s/ Laura H. Posner
Gordon Ball
GORDON BALL PLLC
550 W. Main Street
Suite 600
Knoxville, TN 37902
Tel: (865) 525-7029
Fax: (865) 525-4678
gball@gordonball.com
lkb@gordonball.com
Lead Counsel for Plaintiffs
Laura H. Posner
COHEN MILSTEIN SELLERS & TOLL
PLLC
88 Pine Street, 14th Floor
New York, New York 10005
Tel: (212) 838-7797
Fax: (212)838-7745
lposner@cohenmisltein.com
Steven J. Toll
Allen Dreschel
COHEN MILSTEIN SELLERS & TOLL
PLLC
1100 New York Ave NW, Suite 500
Washington, DC 20005
Tel: (202) 408-4600
Fax: (202) 408-4699
stoll@cohenmilstein.com
adreschel@cohenmisltein.com
Co-Lead Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on February 11, 2019, I caused the foregoing to be filed using the
Court’s CM/ECF System, which in turn sent notice to counsel of record.
Dated: February 11, 2019 /s/ Laura H. Posner
Laura H. Posner
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