In Re Convergent Technologies Securities Litigation

ORDER

The principal1 issue in this discovery dispute can be simply framed: when (at which juncture in the pretrial period) should plaintiffs answer “contention”2 interrogatories served by defendants. The parties do not disagree about whether the questions should be answered. The sole question is when.

Counsel already have spent upwards of $40,000 of their clients’ money on this one discovery dispute.3 That fact strikes this court as strong evidence that there has been in this case a major breakdown in what is supposed to be the self-executing system of pretrial discovery. The spirit of Rule 26,4 as amended in 1983, has been *331violated. So has the spirit of Rule l,5 which declares that the purpose of the Federal Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action” The discovery system depends absolutely on good faith and common sense from counsel. The courts, sorely pressed by demands to try cases promptly and to rule thoughtfully on potentially case dispositive motions, simply do not have the resources to police closely the operation of the discovery process. The whole system of Civil adjudication would be ground to a virtual halt if the courts were forced to intervene in even a modest percentage of discovery transactions. That fact should impose on counsel an acute sense of responsibility about how they handle discovery matters. They should strive to be cooperative, practical and sensible, and should turn to the courts (or take positions that force others to turn to the courts) only in extraordinary situations that implicate truly significant interests.

These are not simply the sentiments of an idealistic and frustrated magistrate. They are the law. They were clearly made so by the 1983 amendments to Rule 26.6 Those amendments formally interred any argument that discovery should be a free form exercise conducted in a free for all spirit. Discovery is not now and never was free. Discovery is expensive. The drafters of the 1983 amendments to sections (b) and (g) of Rule 26 formally recognized that fact by superimposing the concept of proportionality on all behavior in the discovery arena. It is no longer sufficient, as a precondition for conducting discovery, to show that the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” After satisfying this threshold requirement counsel also must make a common sense determination, taking into account all the circumstances, that the information sought is of sufficient potential significance to justify the burden the discovery probe would impose, that the discovery tool selected is the most efficacious of the means that might be used to acquire the desired information (taking into account cost effectiveness and the nature of the information being sought), and that the timing of the probe is sensible, i.e., that there is no other juncture in the pretrial period when there would be a clearly happier balance between the benefit derived from and the burdens imposed by the particular discovery effort.

This articulation of the responsibilities counsel must assume in conducting or responding to discovery may make it appear that the 1983 amendments require counsel to conduct complex analyses each time they take action in the discovery arena. Not so. What the 1983 amendments require is, at heart, very simple: good faith and common sense. Counsel can satisfy these requirements by not using or responding to discovery for some ulterior purpose and by exercising straight forward judgment. The questions are simply stated: 1) what information am I really likely to need and 2) what is the most cost effective way to get it. Tailoring probes and responses to the real issues in the case at hand, rather than relying on stock questions or knee jerk objections and evasive responses, is all that is required.

*332The problem, one senses, is not that the requirements the law imposes are too subtle. Rather, the problem is more likely to be that counsel are less interested in satisfying the law’s requirements than in seeking tactical advantages. At least in cases involving big economic stakes, good faith and common sense hardly seem to be the dominant forces. Instead, it appears that the root evil in complex civil litigation continues to be the pervasiveness of gaming. Civil litigation is too often civil only on the surface. Underneath, it is obsession with pursuit of procedural or psychological edge. In adopting the 1983 amendments, the rulemakers have unequivocally condemned that obsession.

The fact that counsel have spent so much money on this one discovery dispute raises troubling questions in this court’s mind that reach beyond the confines of this particular litigation. In little more than a year this court has been forced to intervene in discovery disputes in many cases involving big economic stakes. I have emerged from my contacts with these matters with an uneasy sense that the discovery system in large commercial cases more than occasionally may be perverted into an arena for economic power plays, that parties use discovery tools (or cast their responses to discovery requests) not so much to learn what the facts are, but more to muscle one another into attitudes conducive to favorable settlements. While I do not have sufficient evidence to make a fair judgment about whether the discovery process has been so perverted in this case, my fear that discovery has been distorted by economic combat in this type of litigation compels me to make it absolutely clear that it is irresponsible, unethical, and unlawful to use discovery for the purpose of flexing economic muscle.

I. GENERAL PRINCIPLES

Before considering specific interrogatories it is advisable to articulate some of the generalizations the court has considered en route to deciding matters presented by defendants’ motions.

At the outset I point out that the phrase “contention interrogatory” is used imprecisely to refer to many different kinds of questions. Some people would classify as a contention interrogatory any question that asks another party to indicate what it contends. Some people would define contention interrogatories as embracing only questions that ask another party whether it makes some specified contention. Interrogatories of this kind typically would begin with the phrase “Do you contend that____” Another kind of question that some people put in the category “contention interrogatory” asks an opposing party to state all the facts on which it bases some specified contention. Yet another form of this category of interrogatory asks an opponent to state all the evidence on which it bases some specified contention. Some contention interrogatories ask the responding party to take a position, and then to explain or defend that position, with respect to how the law applies to facts. A variation on this theme involves interrogatories that ask parties to spell out the legal basis for, or theory behind, some specified contention.

It is not uncommon for a set of “contention interrogatories” to include all of these kinds of questions. For example, a threshold question in a sub-set of interrogatories might begin: “Do you contend that.....”. This question might have “subparts” which would be made applicable by an affirmative answer to the first question. Thus, if the responding party replies that it does make the contention on which the threshold question focuses, the next question it would face would be: “Specify all facts and evidence on which you base such contention.” A subsequent “subpart” might ask for the legal basis for the contention.

In this section the court develops a framework for handling contention interrogatories that are served before substantial discovery has been completed through other means. Unless otherwise indicated, this framework will apply to all the kinds of “contention interrogatories” described here. The court does not intend this *333framework to apply to questions in which a party asks another to identify the names of witnesses or other people with knowledge about the alleged events that give rise to the litigation. Nor do the generalizations articulated here apply to Rule 347 requests for documents that bear on material factual allegations. Finally, nothing said here is intended to obstruct a litigant’s decision to depose other parties and to ask them to identify the facts or evidence that support their claims or defenses.

Despite assertions to the contrary by defendants, no party has an absolute right to have answers to contention interrogatories, or to any kind of interrogatory. Rule 33(b),8 which declares that an interrogatory is “not necessarily objectionable merely because an answer ... involves an opinion or contention that relates to fact or the application of law to fact” confers no such absolute right. The sentence of Rule 33(b) that includes the quoted passage makes it clear that it applies only to interrogatories that are “otherwise proper.” After 1983, a court can determine whether any given interrogatory is “otherwise proper” only after considering, among other things, whether it is interposed for any improper purpose, and whether it is “unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues át stake in the litigation.”9 If it were clear, for example, that by using some other discovery tool a party could acquire information of comparable quality while imposing less of a burden on an opponent, a court would be constrained to rule that a contention interrogatory need not be answered, regardless of when in the pretrial period it was served.10

Rule 33(b) and the Advisory Committee Notes accompanying the 1970 amendments thereto clearly confer on the courts considerable discretion in deciding when (if ever) ,a party must answer contention interrogatories. After declaring that an otherwise proper interrogatory is not necessarily objectionable merely because it calls for an opinion or contention, the Rule immediately adds: “but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.” 11 Commenting on this passage, the Advisory Committee notes that “Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer.” 12

Another passage in the Notes drafted by the 1970 Advisory Committee gives rise to the inference that the Committee anticipated that courts normally would not order responses to contention interrogatories until late in the pretrial period. Commenting on its codification of the work product doctrine in Rule 26(b)(3),13 the Advisory Committee pointed out that under its amendments to Rule 33 “a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions.”14 The Committee went on to explain that “Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use.”15 Thus the Advisory Committee gave what appear to be several signals that its em*334brace of contention interrogatories was something less than unqualifiedly enthusiastic: it indicated that they are “not necessarily objectionable”, that parties or counsel “may be required to disclose, to some extent, mental impressions, opinions, or conclusions”, and that parties “may ultimately have to disclose” in response to this form of discovery probe.

While these passages in the Rule and Notes probably do not go so far as to create a formal presumption in favor of not compelling responses to contention interrogatories until the end of the discovery period, they certainly invite courts to give active consideration to the wisdom of ordering such a postponement of answers to these kinds of interrogatories.

Plaintiffs in this case argue vigorously that they should not be compelled to answer any of defendants’ contention interrogatories until after defendants have substantially completed the document production the plaintiffs requested earlier in the pretrial period. Citing the passages in Rule 33(b) and the Advisory Committee Notes that empower courts to postpone answers to these kinds of interrogatories, plaintiffs insist that they will not be in a position to offer full, useful answers until they have completed their study of defendants’ documents.16 Plaintiffs have offered to answer all of defendants’ subject interrogatories within 60 days after substantial completion of the document production by defendants.17 In essence, plaintiffs argue that to compel them to answer these interrogatories early in the merits discovery phase of this class action, before they have examined defendants’ documents, would be to order plaintiffs to engage in a wasteful, unproductive exercise. Counsel for plaintiffs argue that they have attempted to answer similar kinds of interrogatories at a comparable stage in other class action securities cases only to find that the information they have been able to provide does not satisfy defendants, who then press plaintiffs, near the end of the pretrial period, to answer the same interrogatories again.18 Plaintiffs also argue that defendants have full access to information about their own behavior, and, since it is that behavior that gives rise to the plaintiffs’ claims, defendants cannot be prejudiced by having to wait until completion of some discovery before having plaintiffs systematically describe the conduct of the defendants that plaintiffs contend offends legal norms.19 In short, plaintiffs argue that because defendants know what their own behavior was and what the law requires, they have no real need for early answers to their contention interrogatories.20 Pro*335ceeding from that premise, plaintiffs go on to argue that the real purpose of the defendants interrogatories, which numbered more than 1,000 questions (counting sub-parts separately) as originally submitted, was to harass and pressure plaintiffs’ counsel.

In support of their position plaintiffs direct the court’s attention to recent treatment of contention interrogatories in two federal district courts and in the revised edition of the Manual for Complex Litigation. In February of 1985 the United States District Court for the Southern District of New York adopted a local rule (Rule 46) that presumptively prohibits use of contention interrogatories early in the discovery period and that encourages counsel not to use this form of discovery until just prior to the discovery cut-off date, i.e., after the parties have completed their substantive discovery.21 The report of the Committee that proposed this local rule indicates that it was drafted in response to a perception that contention interrogatories that are served early in the pretrial period often generate friction between parties, contribute relatively little to the case development process, and more than occasionally are used to impose economic pressures on opponents, to otherwlsqharass them, or to delay progress toward tmL22

Plaintiffs also cite discussion of problems associated with interrogatories in the Revised Report of the Special Committee On Effective Discovery in Civil Cases for the Eastern District of New York to the Honorable Jack B. Weinstein, Chief Judge.23 According to the lawyers and law professors who drafted the Revised Report, “substantive interrogatories ... often lead to objections or self-serving responses which do not advance the discovery process and which can derail the lawsuit by generating time-consuming discovery litigation. Additionally, the same or similar questions are frequently repeated at later depositions. Contention interrogatories are too often used at the outset of a litigation to harass the opposition knowing that the responses at that stage will produce little useful information.” 24 The Revised Report goes on to suggest that “substantive or contention interrogatories [as distinguished from “identification interrogatories”] are better used, if at all, near the completion of discovery and after utilization of other dis*336covery devices.”25 Finally, plaintiffs point to the recently revised passages of the Manual for Complex Litigation, II,26 which clearly indicate that courts should be cautious in permitting the use of contention interrogatories in complex civil cases and which suggest that this discovery tool often may not be the most effective device for clarifying and narrowing issues (the Manual suggests that early pretrial conferences, stipulation procedures, and motions, e.g., for partial summary judgment, often accomplish the end of narrowing issues more effectively than contention interrogatories, especially in light of the limitations on the evidentiary use of interrogatory answers in multi-party cases).27

Thus there is considerable recent authority for the view that the wisest general policy is to defer propounding and answering contention interrogatories until near the end of the discovery period. On the other hand, even the local rule in the Southern District of New York recognizes that there may be situations in which this general policy should give way to showings, in specific factual settings, that important interests would be advanced if answers were provided early to at least some contention interrogatories.28 In 1970, when the provision was added to Rule 33(b) making it clear that contention interrogatories were not per se objectionable, the Advisory Committee took the position that “requests for opinions or contentions that call for the application of law to fact ... can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery.” 29 In making this statement, the Advisory Committee did not purport to identify the stage in the pretrial period at which answers to contention interrogatories might appreciably contribute to this objective. Read in the context of its other comments about timing answers to this kind of interrogatory, however, it seems fair to infer that the Committee probably contemplated that this contribution would often best be made near the end of the discovery period. It also is clear, however, that neither the Advisory Committee nor the authors of the second edition of the Manual for Complex Litigation take the position that there are no circumstances in which early answers to contention interrogatories might significantly clarify or narrow issues. And since 1970 the judiciary has intensified its search for means to narrow the scope of disputes early in the pretrial period, so that parties are not constrained to spend valuable resources conducting discovery or filing motions in irrelevant or otherwise unproductive areas.30 One basic question raised by defendants’ motions is: to what extent, and in what circumstances, does it make sense to use early contention interrogatories (in lieu of or in addition to other tools) as a means to clarify or narrow issues?

Defendants in this case argue that there are several different ways in which compelling parties to answer contention interrogatories early in the case development period might contribute to the efficiency of dispute resolution. First, defendants argue that by helping clarify what the issues in the case are, early answers to contention interrogatories can help parties improve the focus of their discovery and can equip courts to more reliably contain discovery excesses.31 The persuasiveness of this pos*337sible justification for compelling early answers to contention interrogatories may vary with the complexity the case or the subtlety of plaintiffs’ theories, as well as with the quality of the information provided in the complaint. If a complaint presents a relatively detailed specification of the real world events giving rise to it, and proceeds on relatively well established legal theories, an attempt to justify early use of contention interrogatories on the ground that answers would clarify the issues would not be especially persuasive.

Defendants further argue that in the process of crafting answers to contention interrogatories parties can be forced to systematically assess their positions earlier than they might if left to their own devices 32 — and that such early systematic assessments might persuade parties to abandon tenuous causes of action, or to dismiss opponents as to whom proof problems seem very substantial. A systematic assessment also might persuade a litigant that the cost of developing the evidence to support a particular claim outweighs whatever benefits might be achieved by prevailing on it. Early answers to interrogatories seeking the factual or evidentiary bases for contentions also might serve as predicates for successful motions for summary judgment on part or all of a suit.33 Defendants argue here, for example, that compelling plaintiffs to respond early to certain interrogatories might establish a firm basis for a statute of limitations defense on one of plaintiffs’ causes of action.34 Early answers to contention interrogatories also might expose frivolous or unsupportable claims, and thus might help achieve some of the objectives that inspired the 1988 amendments to Rule 11. This benefit might be especially significant when the mere existence of certain kinds of allegations causes significant harm, as might be the case when allegations force a party to freeze significant assets, or prevent a litigant from entering a new relationship or launching a new venture.

Because the benefits that can flow from clarifying and narrowing the issues in litigation early in the pretrial period are potentially significant, and because it is possible that in some circumstances answers to some kinds of contention interrogatories might contribute meaningfully toward these objectives, it would be unwise to create a rigid rule, even if applicable to only certain categories of cases, that would always protect parties from having to answer contention interrogatories until some predetermined juncture in the pretrial period.

On the other hand, there is substantial reason to believe that the early knee jerk filing of sets of contention interrogatories that systematically track all the allegations in an opposing party’s pleadings is a serious form of discovery abuse. Such comprehensive sets of contention interrogatories can be almost mindlessly generated, can be used to impose great burdens on opponents, and can generate a great deal of counterproductive friction between parties and counsel. Moreover, at least in cases where defendants presumably have access to most of the evidence about their own behavior, it is not at all clear that forcing plaintiffs to answer these kinds of *338questions, early in the pretrial period, is sufficiently likely to be productive to justify the burden that responding can entail.

This follows in part from the court’s skepticism about the quality of the information that early responses to contention interrogatories are likely to contain. Counsel drafting responses to these kinds of interrogatories early in the pretrial period may fear being boxed into a position that later embarasses them, or that might be used to try to limit the subject areas of their subsequent discovery. Lawyers generally attempt to maximize and preserve their options while providing as little tactical help to their opponents as possible; so motivated, they are likely to search for ways to give opponents as little information as they can get away with when they respond to contention interrogatories early in the pretrial period. The “substance” of their responses to such questions might reduce to phrases like “research and investigation continuing.”

In assessing the likelihood that early answers to contention interrogatories will contribute materially to the efficiency of case development one also must consider the spirit in which courts respond early in the pretrial period to the kinds of motions that defendants here argue might be used to reduce the scope of the suit. Early in the case development process courts generally are reluctant to rule definitively in response to motions under Rules 12(b)(6),35 12(c),36 or 56.37 Parties resisting such motions frequently can argue that it would be unfair to terminate their action without first giving them an opportunity to conduct at least some core discovery. They also can argue that pressing early in the pretrial period for answers to the kind of contention interrogatories that call for application of law to fact is inconsistent with the basic structure of the system for case development established by the Federal Rules of Civil Procedure. With the limited exception of matters covered in Rule 9,38 that system contemplates pleadings that are sufficient simply to put defendants on notice about the real world events that give rise to plaintiffs’ claims. After such pleadings are filed, counsel are to use discovery tools to develop the evidentiary bases for the claims. Discovery initially is expected to focus on developing evidence. After learning what the evidence is, so the theory goes, parties will be in a position to press for stipulations, admissions, or rulings on legal issues that either dispose of the case or give it the final, focused shape it will take into trial. Thus, if a complaint is not facially deficient, early discovery should focus on generating real world data and not on examining the parties’ contentions about the legal implications of that data. If a defending party believes that a claim'really is facially deficient, the appropriate response, generally, is not to serve contention interrogatories, but to file a motion under Rule 1239 or Rule 9.

Given all of the above considerations, this court believes that the wisest course is not to preclude entirely the early use of contention interrogatories, but to place a burden of justification on a party who seeks answers to these kinds of questions before substantial documentary or testimonial discovery has been completed. This court will look with considerable skepticism at sets of contention interrogatories, filed early in the pretrial period, that simply track all the allegations in an opponent’s pleading. In this court a party who wants early answers to contention interrogatories must hand-craft a limited set of questions. In addition, such a party must be able to show that there is good reason to believe that answers to its well-tailored questions will contribute meaningfully to clarifying the issues in the case, narrowing the scope of the dispute, or setting up early settlement discussions, or that such answers are likely to expose a substantial *339basis for a motion under Rule 1140 or Rule 56. A party seeking early answers to contention interrogatories cannot meet its burden of justification by vague or speculative statements about what might happen if the interrogatories were answered. Rather, the propounding party must present specific, plausible grounds for believing that securing early answers to its contention questions will materially advance the goals of the Federal Rules of Civil Procedure. The Court will be especially vigilant in its evaluation of proffered justifications when a complaint is not facially infirm and when defendants appear to have control over or adequate access to much of the evidence relevant to their alleged misconduct.

Imposing this kind of burden should not significantly impair a party’s ability to protect itself from frivolous claims or clearly overbroad discovery (i.e., discovery into subjects having no meaningful connection to claims or defenses with real potential viability). A party who feels so victimized has access, early in the pretrial period, to a number of discovery tools and other devices, through which it can protect itself. It can take depositions and request documents. It can use interrogatories to compel its opponent to disclose the identities of all percipient witnesses and the location of documents and other tangible evidence, and to respond to well-focused questions about specific factual matters. For example, a defendant may use interrogatories to attempt to establish the basis for a statute of limitations defense by asking the plaintiff questions like the following: when did you purchase [the securities in question]? when did you sell them? why did you sell them? when did you first learn that the defendant was going to earn less [in a given period] than defendant had projected [at a given time or through a given document]? A party also may serve, early in the pretrial period, focused requests for admission, to the extent that they are not simply re-cast contention interrogatories.

By thoughtfully using these tools, a party normally will have ample ability to learn what evidence an opponent is relying on to support its position. If early discovery through these means reveals clear infirmities in that evidence, the party feeling victimized may turn to Rules 56 or 11 for protection. In addition, a party who honestly feels that an opponent has asserted a frivolous claim or defense can seek a protective order that could postpone its obligation to respond to some or all of that opponent’s discovery. In seeking such protection, the party feeling victimized could submit competent affidavits and/or other documentary evidence that squarely contradicts the fact allegations that support its opponent’s position, along with briefs showing how, under the relevant law, its opponent’s position is meritless. After receiving this kind of material, this court would entertain seriously a motion asking that the party feeling victimized be relieved of its duty to respond to discovery until it had an opportunity to probe, through depositions, document requests, and other discovery tools, the nature of the evidence supporting its opponent’s allegations. Of course, no such protective order would be appropriate if, after such an attack, there remained in an opponent’s pleadings facially plausible allegations that were uncontradicted by competent evidence and that could support rational inferences that would make viable the opposing party’s position.

The court concludes that the following procedure is appropriate with respect to contention interrogatories filed before most other discovery has been completed. The propounding party must craft specific, limited (in number) questions. The responding party must examine such questions in good faith and, where it appears that answering them would materially contribute to any of the goals discussed in this opinion, must answer the interrogatories. If answering some, but not all, of the questions would materially contribute to any of the goals described above, the responding party must answer those questions. Where the responding party feels, *340in good faith, that providing early answers would not contribute enough to justify the effort involved, that party should telephone or write opposing counsel to explain the basis for his position. If opposing counsel continues to press for early answers, the responding party should enter objections in compliance with Local Rule 230-1 or seek permission from the Court to file an objection to the interrogatories as a group. Thereafter, the burden would fall on the propounding party to seek an order compelling answers. In seeking such an order, the propounding party would bear the burden of justification described above. To the extent, if any, that this procedure modifies the way burdens might be allocated with respect to other kinds of discovery disputes,41 this court believes that the problems associated with the early filing of contention interrogatories, discussed above, justify the different treatment.

The sections that follow help clarify how this court will apply these general principles.

II. APPLICATION OF PRINCIPLES TO MOTIONS AS PRESENTED Before writing this opinion this court had not refined its reasoning about what kinds of showings it would require before compelling a litigant to answer contention interrogatories prior to substantial completion of other discovery. The moving parties, for the most part, seem not to have anticipated the kinds of requirements set forth above; their papers generally do not include the kind of information that might justify compelling plaintiffs to respond early to contention interrogatories. The court will, of course, offer the moving parties an additional opportunity to make the necessary showings. The rulings that follow are not intended to preclude defendants from promptly filing more particularized statements of need or justification.

Because defendants, for the most part, have not offered the kinds of showings the court now requires in this setting, because this is not a situation in which it is clear that there is no substance to plaintiffs’ claims, and because defendants have access to much of the evidence about their alleged misbehavior, the court will not enter an order that generally compels plaintiffs to answer the interrogatories that are the subject of the pending motions. Instead, plaintiffs will be required to answer only interrogatories of specified kinds. Thus the court DENIES defendants’ motions to compel, without prejudice, except to the extent set forth below.

Given the amount of time the court already has committed to this litigation, and the press of other cases requiring the court’s attention, it is unreasonable to expect the court to ferret out of the hundreds of interrogatories pending here those which fall in the categories to which responses now are required. Nor is there any need to use the public resource that the court represents in such a manner. After the court identifies the kinds of information plaintiffs must provide at this time, it will be incumbent on all counsel, working together, to identify the specific questions that should be answered because they fall within the court-approved categories.

A. Interrogatories Seeking the Identity of Witnesses

There is no reason plaintiffs should not identify at this juncture any witnesses whom plaintiffs know have information that supports or contradicts any of the controverted allegations in plaintiffs Consolidated Amended Complaint (signed March 1, 1985). The court hereby orders *341plaintiffs to identify such persons for defendants within thirty days of the date this order is filed.

B. Interrogatories Seeking the Location of Documents or Other Tangible Evidence

Plaintiffs contend that much of the documentary support for their allegations remains in the custody and control of the defendants. The court obviously does not expect plaintiffs to produce documents to which they currently do not have access. The court can see no good reason, however, why plaintiffs should not promptly disclose to defendants all documents in plaintiffs control that support or contradict any of the controverted allegations in their Consolidated Amended Complaint. The court also can see no good reason for dividing this kind of document production into two stages, the first consisting of responses to interrogatories that identify documents and their location, then the second consisting of the document productions themselves. Nor can the court see why plaintiffs in a case like this should be required to produce the same documents for different defendants at different times. Especially because plaintiffs have indicated42 that they do not have a large number of relevant documents at this juncture, the most cost-effective course would be for plaintiffs to produce simultaneously for all defendants who want them (including those who have not yet filed formal document production requests) all the documents in plaintiffs’ control that support or contradict any of the controverted allegations in their pending Complaint.

C. The Allegations that Inside Director Defendants William A. Harris and Richard G. Meise Were “Control Persons”

During oral argument defense counsel insisted that plaintiffs be compelled at this juncture to articulate how inside director defendants Richard G. Meise and William A. Harris exercised control over various reports and statements made by defendant Convergent Technologies, Inc., and to disclose all facts and identify all documents that relate in any way to the allegations that these two defendants exercised such control. Similarly, defense counsel insisted that plaintiffs be compelled now (before substantial completion of the document production by Convergent) to disclose all facts and to identify all documents that relate in any way to plaintiffs’ claims that Harris and Meise were “control persons” (as that term is defined in the Securities Act of 1933) of Convergent during the class period. Michael F. Perlis, counsel for Convergent and for the inside director defendants, has submitted a Declaration (in support of his clients’ motion to compel) in which he suggests that neither of these two defendants were Directors of Convergent or “signatories to the Registration Statement at issue in the Complaint.”43 Mr. Perlis argues that these two facts make it sufficiently likely that plaintiffs will not be able to prove that Harris and Meise exercised the control attributed to them to justify forcing plaintiffs to disclose now the factual bases for their contentions against these two defendants.

The question the court faces is this: assuming, for purposes of argument, that the two facts Mr. Perlis asserts are true, are they enough, in the context of the applicable law and of the allegations and disclosures already made by plaintiffs, to warrant compelling plaintiffs at this juncture to disclose their views about how Harris and Meise exercised control, as well as all the factual and documentary materials that relate to the roles these two defendants played in the events giving rise to plain*342tiffs’ claims? To answer this question, the court must explore several others. The first is: what information about these two defendants’ roles have plaintiffs already provided? Plaintiffs’ Complaint alleges that “William R. Harris joined Convergent as its Vice President, Manufacturing in February 1980” and that he became Convergent’s Vice President and General Manager, Distributed Systems Division in January 1984.”44 Plaintiffs also assert that Harris worked “in various manufacturing management capacities for Hewlett-Packard Company for more than five years pri- or to joining Convergent Technologies.”45 Plaintiffs allege that “Richard G. Meise has been Vice President, Sales since August 1982. From January 1982 until July 1982, he was Vice President, Domestic Sales. Prior to joining convergent Technologies, defendant Meise was employed by Honeywell Corporation for more than five years, most recently as Vice President, Data Processing Operations.”46

Plaintiffs’ complaint also alleges that Harris and Meise owned and sold shares of stock in Convergent during the period in which both of these defendants allegedly knew that Convergent was experiencing serious but undisclosed problems in designing, manufacturing and selling new products.47 Harris allegedly sold 30,000 shares of Convergent stock on November 21,1983; Meise allegedly sold 21,000 shares in January of 1984.48 It is not clear whether either Harris or Meise owned any additional shares in Convergent. The number of shares that plaintiffs allege each defendant sold appears to represent substantially less than 1% of the shares then outstanding in Convergent. Plaintiffs claim that after March, 1983 “there were more than 30 million Convergent Technologies common shares ... outstanding.”49

Under applicable law, is it conceivable that officers at the levels occupied by Harris and Meise, who owned only a very small percentage of a company’s stock, could be deemed “control persons” or members of a “control group?” The answer is yes. The applicable definition of “control person” focuses on power, whether exercised directly or indirectly, “to direct or cause the direction of the management and policies of a person [including a corporation], whether through the ownership of voting securities, by contract, or otherwise.”50 Ownership of a significant percentage of the voting stock of a corporation is not a prerequisite to a finding of control.51 Analysis turns on whether the defendant, acting alone or as a member of an identifiable group, had the power or influence to direct significant aspects of the management of the corporation. In the words of the leading commentator in this area, former S.E.C. Commissioner A.A. Sommer, Jr., the question reduces to this: “what person or what group calls the day to day shots. The shots in major matters?”52 Unfortunately, this crisp articulation of the target of inquiry disguises a basic ambiguity in the legal standard. As Professor Campbell has pointed out, “defining control as the power to direct management leaves a fundamental question unanswered: what quantity and quality of management function must one have in order to be deemed in control?” 53 What specific functions must be *343controlled? 54 This ambiguity in the legal standard makes it extremely difficult to predict which person or persons will be deemed, in any given situation, to be in “control.”

One thing that the cases and commentary do make clear is that the question of who is a control person, or within a control group, is a question of fact55 that can be answered only on a case by case basis and only after considering a wide range of potentially relevant factors.56 Congress intentionally included no definition of the word “control” in the Exchange Act because, according to the House Report, “[i]t would be difficult if not impossible to enumerate or to anticipate the many ways in which actual control may be exerted.”57

One factor that court’s have decided should be taken into account in resolving the “control” issue is the nature of the position the defendant held in the allegedly controlled corporation. As Professor Campbell notes, a person’s “management position with a corporation often is emphasized as an important factor in determining control.”58 How much weight will be given to this factor in a particular case depends on all the circumstances, but, at the least, occupying a top management position creates a substantial risk that a selling shareholder will be declared a control person. There even is some authority for the view that being a high level officer makes a defendant almost by definition a control person.59 Professor Loss has concluded more cautiously, and apparently more sensibly, that “although a person’s being an officer or director does not create any presumption of control, it is a sort of red light.”60

Analysis of the issue of “control” is further complicated by the availability of the elusive concept of a “controlling group.” This concept can be a predicate for liability in persons who, by themselves, are not sufficiently powerful to dictate the major policy and operational decisions of a corporation but who share in the exercise of that power with a coherent group.61 The availability of this predicate for liability complicates matters considerably, at this stage, for defendants Harris and Meise. As former Commissioner Sommer notes, when it is not clear that control is exercised by one person or by an identifiable group of shareholders, it is arguable that all “principal executive officers are ipso facto members of the controlling group, since they serve at the will of the board and hence it may be fairly implied they would be complaint with the will of whoever controls the board....”62 Sommer goes on to declare that “[i]n general ... unless a person or identifiable group clearly is in control by reason of possession and use of voting power, all directors and policy-making officers are presumptively members of the controlling group and only compelling evidence to the contrary should remove them from the group.” 63

Moreover, job titles and responsibilities are by no means the only factors that can support the conclusion that given persons are members of a controlling group. Again the question is one of fact, taking into account a virtually unlimited number of considerations.64 The trier of fact’s inquiry will focus on whether the defendant in question is sufficiently connected, by any means, with a number of others who *344are in a relevant sense “cemented”65 together and who in fact “run the show.”66 The requisite connection can be accomplished through something as elusive as a person’s persuasiveness, or the subtle powers of his or her personality. If the persons who, in combination, have the clout to determine significant directions the corporation will take in fact are appreciably influenced by a particular defendant, that defendant may be deemed a member of the controlling group.67

The relevance of all this to the question before this court is that defense counsel’s assertions that Harris and Meise were not directors of Convergent or signatories to the 1983 Registration Statement do not show that it is clearly improbable that plaintiffs will be able to prove that these two defendants were control persons or members of the controlling group. These two defendants allegedly played major roles in t