
[Federal Register: March 13, 2009 (Volume 74, Number 48)]
[Notices]               
[Page 10973-10980]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr09-113]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59534; File No. SR-FINRA-2008-024]

 
Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Proposed Rule Change and Amendment 
No. 1 Thereto Relating to Amendments to the Discovery Guide To Update 
the Document Production Lists

March 6, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on June 11, 2008, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc. 
(``NASD'')) filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') and amended by Amendment No. 1 on January 21, 
2009,\3\ the proposed rule change as described in Items I, II, and III 
below, which Items substantially have been prepared by FINRA. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 to SR-FINRA-2008-024 replaced and superseded 
the original rule filing.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA proposes to amend the Discovery Guide to update the Document 
Production Lists. The text of the proposed rule change is available at 
FINRA, at its Web site (http://www.finra.org), and at the Commission's 
Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. FINRA has prepared summaries, set forth in sections A, 
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The proposed rule change adds clarifying and conforming language to 
the introduction in the Discovery Guide and updates the Document 
Production Lists. The text of the proposed rule change is contained in 
Exhibit 5 and is available on the FINRA Web site at www.finra.org.
Background
    In January 1996, the Arbitration Policy Task Force chaired by 
former SEC chairman David Ruder issued a document entitled, 
``Securities Arbitration Reform: Report of the Arbitration Policy Task 
Force to the Board of Governors of NASD'' (the ``Report''). The Report 
made a number of broad recommendations to the Board of Governors to 
improve the securities arbitration process. One of the recommendations 
states that: ``Automatic production of essential documents should be 
required for all parties, and arbitrators should play a much greater 
role in directing discovery and resolving discovery disputes.'' After 
the work of the Task Force was completed, several groups were formed to 
work on discovery issues in response to this recommendation. Each group 
was composed of persons offering diverse perspectives, including 
counsel for investors and industry parties, and all made a substantial 
contribution to the process. The outcome of this process was the 
Discovery Guide, which the SEC approved after a public comment 
period,\4\ and was made available for use in arbitration proceedings 
involving customer disputes upon the publication of NASD Notice to 
Members (``NTM'') 99-90 (November 1999).
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    \4\ See Exchange Act Release No. 41833 (Sept. 2, 1999), 64 FR 
49256 (Sept. 10, 1999).
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    In March 2004, after more than four years of use, FINRA \5\ 
determined to review the Discovery Guide and consider whether it should 
be updated. This review was undertaken by FINRA's National Arbitration 
and Mediation Committee (``NAMC''), a majority public committee of the 
FINRA Board made up of attorneys who represent investors, attorneys who 
represent brokerage firms, arbitrators, and mediators. In addition, 
FINRA staff met with frequent users of the arbitration forum 
representing both the public and the industry to listen to concerns 
regarding the Discovery Guide's document production lists, proposals 
for changes, and reactions to other constituents' proposals. Many of 
the provisions of the Discovery Guide were incorporated into a major 
revision of the portion of the Code of Arbitration Procedure for 
Customer Disputes (``Customer Code''), which was submitted to the SEC 
in 2003 and approved by the SEC in 2007.\6\ The remaining provisions in 
the Discovery Guide consist primarily of lists of documents that are 
presumptively discoverable (``Document Production Lists'').\7\
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    \5\ On July 26, 2007, the Commission approved a proposed rule 
change filed by NASD to amend NASD's Certificate of Incorporation to 
reflect its name change to FINRA in connection with the 
consolidation of the member firm regulatory functions of NASD and 
NYSE Regulation, Inc. See Securities Exchange Act Release No. 56146 
(July 26, 2007).
    \6\ Exchange Act Release No. 55158 (Jan. 24, 2007), 72 FR 4574 
(Jan. 31, 2007) (File No. SR-NASD-2003-158).
    \7\ See Rule 12506.
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Summary of Significant Changes
    The proposed rule change adds clarifying and conforming language to 
the introduction in the Discovery Guide and updates the Document 
Production Lists.
    In the introductory language, FINRA proposes to add, ``Where 
additional

[[Page 10974]]

information is relevant in a particular case, it can be sought in 
accordance with the time frames provided in the 12500 series of 
rules.'' This is intended to clarify that the Document Production Lists 
are not exhaustive, and that other documents may be requested. FINRA is 
also proposing to replace the reference to ``churning'' with the term 
``excessive trading'' to conform the introduction to the language used 
in the Document Production Lists. FINRA also proposes to add a 
reference in the introduction to new List 12 relating to documents 
involving particular products or securities. Although FINRA is not 
proposing any changes to the paragraph on confidentiality, FINRA 
intends to call attention to an article in FINRA's newsletter for 
arbitrators and mediators, the Neutral Corner, that provides additional 
background on the subject.\8\
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    \8\ The article would be discussed in the Regulatory Notice 
announcing approval of the amendments to the Discovery Guide. The 
article, Arbitrators and Orders of Confidentiality, The Neutral 
Corner, April 2004, is available at: http://www.finra.org/
ArbitrationMediation/Neutrals/Education/NeutralCorner/P010040.
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    Non-substantive, stylistic changes are proposed in some Document 
Production Lists; for example, the term ``Associated Person'' would be 
changed to lower case to conform to usage in the Customer Code.
    Document Production Lists 1 and 2 apply to all types of disputes. 
The remainder of the Document Production Lists are categorized by the 
type of dispute, and within each type, they list first what the 
industry party must produce, and then what the customer must produce. 
The discussion below addresses each list by its current number. It 
should be noted, however, that some lists would be renumbered and/or 
renamed as part of the proposed rule change.
List 1--Documents To Be Produced in All Customer Cases by Firm/
Associated Person(s)
    List 1 includes documents to be produced in all customer cases by 
firm/associated person(s).
    FINRA proposes to delete the footnote in the heading for List 1. 
This information is covered in the Customer Code's subpoena and 
discovery rules (Rules 12505 through 12514).
    List 1, Item 1 requires firms and associated persons to produce all 
agreements with the customer, including account opening documents, 
cash, margin, and option agreements, trading authorizations, powers of 
attorney, or discretionary authorization agreements, and new account 
forms. FINRA proposes to amend Item 1 to require production of the 
account record information for the customer. The account record 
contains important information about the customer, such as the 
customer's annual income, net worth, and account objectives, and it 
indicates whether the record has been signed by the associated person 
responsible for the account and approved or accepted by a principal of 
the firm.
    FINRA proposes to delete List 1, Items 2 and 3 in their entirety. 
In many instances, the customer has retained account statements and/or 
confirmations, and requiring production of these documents in every 
case adds unnecessary delay and cost to the discovery process. If 
necessary, the customer may request these documents separately under 
proposed List 1, Item 2.
    FINRA proposes to move current List 1, Item 5 into proposed new 
List 1, Item 2. Item 5 requires production of all correspondence 
between the customer and firm/associated person(s) relating to the 
transaction(s) at issue. Proposed Item 2 clarifies that the required 
documents are those that were sent to the customer or received by the 
firm and relate to the accounts or transactions at issue. A new 
sentence explains that monthly statements and confirmation slips need 
not be produced unless separately requested.
    FINRA proposes to adopt new List 1, Item 3 to require the 
production of documents pertaining to the customer's employment status, 
financial status, annual income, net worth, investment objectives, and 
risk tolerance. These documents would show what the firm/associated 
person(s) recorded about the customer's financial status and investment 
objectives/risk tolerance.
    List 1, Item 4 requires the production of all ``holding (posting) 
pages'' for the customer's account(s) at issue or, if not available, 
any electronic equivalent. Holding pages are handwritten records of 
transactions made and kept by associated persons. FINRA proposes to 
delete Item 4 in its entirety, because holding pages generally are no 
longer in use, and transaction information in an electronic form would 
be available to the customer on account statements and/or 
confirmations.
    FINRA proposes to adopt new Item 4 to require the production of 
documents evidencing any investment or trading strategies utilized or 
recommended in a customer's account, including options programs, and 
any supervisory review of such strategies. New Item 4 would ensure that 
a customer has access to evidence of trading strategies utilized or 
recommended by the firm/associated person(s) that may not have been 
publicly disseminated by the firm/associated person(s). The proposal 
would also provide the customer with documentation of any management 
supervision over the account.
    As noted above, FINRA has proposed to move List 1, Item 5 into Item 
2.
    List 1, Item 6 requires the production of all notes by the firm/
associated person(s) or on his/her behalf, including entries in any 
diary or calendar, relating to the customer's account. FINRA proposes 
to modify the Item to clarify that notes of telephone calls or 
conversations must be produced and that required production is not 
limited to the items specified in the Item. The proposed amendment also 
provides that required production relates to the customer, in addition 
to those relating to his or her account(s) or transactions at issue. 
Because Item 6 requires production of all notes by the firm/associated 
person(s), the phrase ``or on his/her behalf'' would be deleted as 
unnecessary. This Item would be renumbered as Item 5.
    Current List 1, Item 7 requires the production of all recordings 
and notes of telephone calls or conversations about the customer's 
account(s) at issue that occurred between the associated person(s) and 
the customer, and/or between the firm and the associated person(s). 
FINRA proposes to delete Item 7 in its entirety. Notes of telephone 
calls or conversations would continue to be discoverable under proposed 
new Item 5, discussed above. FINRA proposes to eliminate mandatory 
production of recordings in every case because producing recordings is 
labor intensive, expensive, and unnecessary in cases where there is no 
dispute relating to conversations between the parties. Recordings would 
continue to be subject to discovery on a case by case basis, as the 
arbitrators deem to be appropriate under Rule 12507 of the Customer 
Code (Other Discovery Requests).
    Current List 1, Item 8 requires production of all Forms RE-3, U4 
and U5 including all amendments, all customer complaints identified in 
such forms, and all customer complaints of a similar nature against the 
associated person(s) handling the account(s) at issue. FINRA proposes 
to amend this item to clarify that Disclosure Reporting Pages must be 
produced. These pages, which are part of Forms U4 and U5, provide 
customer claimants with valuable, detailed information about prior 
customer complaints. With regard to customer complaints alleging 
conduct of a similar nature to that alleged in the Statement of Claim, 
the amendments

[[Page 10975]]

would allow the firm/associated person(s) to redact portions of these 
documents to prevent disclosure of nonpublic personal information about 
other customers. Item 8 would be renumbered as Item 6.
    Current List 1, Item 9 requires production of all sections of the 
firm's Compliance Manual(s) related to the claims alleged in the 
Statement of Claim, including any separate or supplemental manuals 
governing the duties and responsibilities of the associated person(s) 
and supervisors, any bulletins (or similar notices) issued by the 
compliance department, and the table of contents and index to each 
Manual. FINRA proposes to amend this Item to replace ``Compliance 
Manual(s)'' with ``manuals and any updates thereto'' and ``compliance 
department'' with ``firm.'' The proposal would clarify that manuals 
must be produced regardless of whether the firm characterizes them as 
``Compliance Manuals,'' and bulletins must be produced from any 
department issuing them. FINRA is also proposing to require the 
production of updates to the firm's manuals for the time period related 
to the claims at issue. Updates are material to establishing the firm's 
procedures in place during a specified time frame. Item 9 would be 
renumbered as Item 7.
    Current List 1, Item 10 requires the production of all analyses and 
reconciliations of the customer's account(s) during the time period 
and/or relating to the transaction(s) at issue. FINRA proposes to amend 
this Item to clarify that production is limited to analyses and 
reconciliations prepared during the time period at issue, and includes 
analyses and reconciliations prepared as part of a review of the 
customer's account(s) or transaction(s) at issue. These documents are 
valuable because they contain firm findings concerning reviews of 
customer accounts. Item 10 would be renumbered as Item 8.
    Current List 1, Item 11 requires the production of all records of 
the firm/associated person(s) relating to the customer's account(s) at 
issue, such as internal reviews and exception and activity reports, 
which reference the customer's account(s) at issue. FINRA proposes to 
amend Item 11 to provide guidance concerning the types of documents 
that may have been created by a firm in the course of its usual 
surveillance and compliance activities. The proposed Item would require 
the production of all exception reports, supervisory activity reviews, 
activity concentration reports, active account runs and similar 
documents produced to review for activity in customer accounts in which 
customer's account or the transaction(s) at issue are referenced or 
listed. Item 11 would be renumbered as Item 9.
    Current List 1, Item 12 requires the production of records of 
disciplinary action taken against the associated person(s) by any 
regulator or employer for all sales practices or conduct similar to the 
conduct alleged to be at issue. Item 12 would be renumbered as Item 10.
    FINRA proposes to adopt new List 1, Item 11 to require production 
of all documents related to the case at issue that are received by the 
Respondent by subpoena or document request directed to third parties. 
The subpoena rule, Rule 12512(e) of the Customer Code, requires 
production of subpoenaed documents. FINRA proposes to cross-reference 
that rule in the Discovery Guide. Documents received by request would 
be added to List 1 to ensure that all parties have access to evidence 
obtained from non-parties.
List 2--Documents and Information To Be Produced in All Customer Cases 
by Customer
    List 2 includes documents and information to be produced by the 
customer in all customer cases.
    Current List 2, Item 1 requires the production of all customer and 
customer-owned business (including partnership or corporate) federal 
income tax returns, limited to pages 1 and 2 of Form 1040, Schedules B, 
D, and E, or the equivalent for any other type of return, for the three 
years prior to the first transaction at issue in the Statement of Claim 
through the date the Statement of Claim was filed. FINRA proposes to 
require the production of complete copies of tax returns for the five 
years prior to the first transaction at issue in the arbitration, 
through the year in which the statement of claim is filed. The expanded 
production would provide parties with a broader understanding of a 
customer's financial status during the relevant period. The amendments 
would provide that the income tax returns being provided must be 
identical to those that were filed with the Internal Revenue Service.
    Current List 2, Item 2 requires the production of financial 
statements or similar statements of the customer's assets, liabilities, 
and/or net worth for the period(s) covering the three years prior to 
the first transaction at issue in the Statement of Claim through the 
date the Statement of Claim was filed. To provide parties with a 
broader understanding of a customer's financial status during the 
relevant period, FINRA proposes to amend this Item to expand the 
covered period to five years.
    Current List 2, Item 3 requires the production of copies of all 
documents the customer received from the firm/associated person(s) and 
from any entities in which the customer invested through the firm/
associated person(s), including monthly statements, opening account 
forms, confirmations, prospectuses, annual and periodic reports, and 
correspondence. FINRA proposes to amend Item 3 to eliminate mandatory 
production of account statements and confirmations if the customer 
stipulates to having received them. The amendments would require the 
customer to produce any statements or confirmations with handwritten 
notations on them or which are in any way non-identical to those sent 
by the firm. The amendments would decrease a customer's discovery costs 
while preserving the requirement to produce documents that may have 
probative value. FINRA also proposes to add research reports to Item 3. 
Research reports may provide evidence concerning the basis for a 
customer's investment decisions.
    Current List 2, Item 4 requires the production of account 
statements and confirmations for accounts maintained at securities 
firms other than the respondent firm for the three years prior to the 
first transaction at issue in the Statement of Claim through the date 
the Statement of Claim was filed. FINRA proposes to amend Item 4 to 
require the customer to identify each securities firm where the 
customer has maintained an account and to produce account statements 
for the five year period prior to the first transaction at issue in the 
arbitration, through the completion of discovery. The proposal would 
permit the customer to provide written authorization allowing the 
respondent firm/associated person to obtain account statements directly 
from the securities firms in lieu of providing copies of the 
statements. The proposal would ensure that other parties to the matter 
have a more complete understanding of the customer's investing history. 
FINRA proposes to eliminate confirmations from Item 4 because most of 
the information detailed in confirmations is also contained in account 
statements.
    Current List 2, Item 5 requires the production of all agreements, 
forms, information, or documents relating to the account(s) at issue 
signed by or provided by the customer to the firm/associated person(s). 
FINRA proposes to expand the scope of this Item by requiring production 
of documents relating to accounts or transactions at the firm 
regardless of whether the

[[Page 10976]]

documents were signed by the customer.
    Current List 2, Item 6 requires the production of all account 
analyses and reconciliations prepared by or for the customer relating 
to the account(s) at issue. FINRA proposes to clarify this Item by 
changing ``the account(s) at issue'' to ``the accounts at the 
respondent firm or transactions with the respondent firm during the 
time period at issue.''
    Current List 2, Item 7 requires the production of all notes, 
including entries in diaries or calendars, relating to the account(s) 
at issue. FINRA proposes to amend Item 7 to provide clarity by changing 
``the account(s) at issue'' to ``the accounts at the respondent firm or 
transactions at issue with the respondent firm.''
    Current List 2, Item 8 requires the production of all recordings 
and notes of telephone calls or conversations about the customer's 
account(s) at issue that occurred between the associated person(s) and 
the customer (and any person purporting to act on behalf of the 
customer). FINRA proposes to clarify Item 8 by specifying that the 
required recordings and notes relate to the customer's accounts or 
transactions.
    Current List 2, Item 9 requires the production of all 
correspondence between the customer (and any person acting on behalf of 
the customer) and the firm/associated person(s) relating to the 
account(s) at issue. FINRA proposes to amend this Item to broaden the 
scope of the production by deleting the reference to firm/associated 
person(s). The customer may have corresponded with persons/entities 
unrelated to the firm concerning the transactions at issue. The 
amendment would also clarify that the required correspondence relates 
to the accounts or transactions.
    Current List 2, Item 10 requires the production of previously 
prepared written statements by persons with knowledge of the facts and 
circumstances related to the account(s) at issue, including those by 
accountants, tax advisors, financial planners, other associated 
person(s), and any other third party. FINRA proposes to amend this Item 
to clarify that the required written statements relate to the accounts 
or transactions at issue.
    Current List 2, Item 11 requires the production of all prior 
complaints by or on behalf of the customer involving securities matters 
and the firm's/associated person's response(s). FINRA proposes to 
delete this item as unnecessary because the respondent firm/associated 
person would be in possession of any responsive documents and 
production by the customer would be duplicative.
    Current List 2, Item 12 requires the production of Complaints/
Statements of Claim and Answers filed in all civil actions involving 
securities matters and securities arbitration proceedings in which the 
customer has been a party, and all final decisions and Awards entered 
in these matters. FINRA proposes to amend Item 12 to: (1) Add 
``Identify and'' before ``produce;'' (2) include any non-confidential 
settlements entered in these matters; and (3) extend the time period 
through the completion of discovery. The proposed change would add 
that, although an agreement is not presumptively discoverable, a party 
to a confidential settlement agreement, that by its terms does not 
preclude identification of the existence of the settlement agreement, 
must identify the underlying documents of the confidential settlement 
agreement. The proposed change also would state that such a settlement 
agreement could be obtained with an order from the panel. By adding the 
requirement to identify the stated documents, the proposal would ensure 
that parties are aware of other securities actions even if a customer 
is not in possession of documents relating to the actions. The 
amendments would require the customer to produce non-confidential 
settlements, because the subject matter may be relevant to the pending 
case. Item 12 would be renumbered as Item 11.
    Current List 2, Item 13 requires the production of all documents 
showing action taken by the customer to limit losses in the 
transaction(s) at issue. FINRA proposes to delete this item from the 
Discovery Guide because the firm/associated person is in possession of 
any documents that would be responsive to this item and production by 
the customer would be duplicative.
    FINRA proposes to adopt new Item 12 to require the customer to 
identify loans that he or she applied for or guaranteed for the five 
years prior to the first transaction at issue in the arbitration 
through the date the Statement of Claim was filed. The customer also 
would be required to produce copies of related loan applications, or 
provide a written authorization allowing the respondent firm/associated 
person to obtain loan applications directly from each lender. This 
information may provide evidence relating to the customer's financial 
status, including, for example, information on net worth, assets, and 
liabilities.
    FINRA proposes to move the content of Lists 8 (Misrepresentations/
Omissions), 10 (Negligence/Breath of Fiduciary Duty) and 14 
(Unsuitability) to List 2 because the Items contained in these lists 
would provide valuable information to parties in all customer cases. 
Proposed List 2, Items 13 through 16, would require the production of:
     Documents showing the customer's ownership in or control 
over any business entity, including general and limited partnerships 
and closely held corporations.
     Written documents relied upon by the customer in making 
the investment decision(s) at issue.
     Copy of the customer's resume.
     Documents showing the customer's complete educational and 
employment background or, in the alternative, a description of the 
customer's educational and employment background if not set forth in a 
resume produced under item 15.
    In addition, FINRA proposes to add to Item 13 the requirement that 
a claimant Trustee would be required to identify accounts over which he 
or she has trading authority. A Trustee's trading activity for other 
accounts may provide relevant evidence of his or her sophistication as 
an investor.
    FINRA proposes to adopt new List 2, Item 17 to require the 
production of all documents related to the case at issue that are 
received by the customer by subpoena or document request directed to 
third parties at any time during the case. Rule 12512(e) of the 
Customer Code requires production of subpoenaed documents. FINRA 
proposes to cross-reference the rule in the Discovery Guide. Documents 
received by request would be added to ensure that all parties have 
access to evidence obtained from non-parties.
List 3--Churning (Firm/Associated Person)
    Current List 3 applies to documents required to be produced by 
firms/associated persons in cases involving claims based on churning. 
As part of its plain English initiative, FINRA proposes to change the 
title of List 3 from Churning, which is defined as excessive activity 
in a customer's account, to Claims of Excessive Trading.
    Current List 3, Item 1 requires the production of all commission 
runs relating to the customer's account(s) at issue or, in the 
alternative, a consolidated commission report relating to the 
account(s). Current List 3, Item 2 requires the production of all 
documents reflecting compensation of any kind, including commissions, 
from all sources generated by the associated person(s) assigned to the 
customer's account(s) for the two months

[[Page 10977]]

preceding, through the two months following, the transaction(s) at 
issue, or up to 12 months, whichever is longer. The firm is permitted 
to redact all information identifying customers who are not parties to 
the action except for the last four digits of the non-party customer 
account number for each transaction. Proposed new Item 1 combines Items 
1 and 2. New Item 1 would expand the scope of discovery concerning the 
associated person's(s') compensation and provides specificity about the 
documents that must be produced. New Item 1 would require production of 
the record of all compensation (monetary and non-monetary), including a 
listing of the securities traded, dates traded, solicited or 
unsolicited nature, and the gross and net commission from each trade, 
for all years in which the conduct alleged in the Statement of Claim 
occurred. The firm would be permitted to redact nonpublic personal 
information concerning customers who are not parties to the claim, but 
could not redact or delete any other information. The expanded time 
frame would ensure that the associated person's compensation is 
produced for the entire period that he or she serviced the account. If 
the firm asserts that the client controlled the trading in the account, 
the firm would have to produce sufficient information to distinguish 
the associated person's(s') accounts, and would be required to identify 
whether the associated person had related accounts that traded at the 
firm during the period in question. Activity in the associated 
person's(s') account is relevant because it may provide a basis for 
transactions that took place in a customer's account.
    FINRA proposes to adopt new List 3, Item 2 to require production of 
a memorandum of each order or instruction given for all transactions at 
issue in the Statement of Claim. Order memoranda may contain valuable 
notations made at the time an order was received. Proposed Item 2 would 
also require documentation showing the associated person's(s') 
compensation for each transaction. If a wrap fee or similar arrangement 
applied to the account, the firm would be required to produce a record 
showing compensation earned by period. Documentation of compensation on 
an order by order basis provides parties with a clear understanding of 
how much the associated person was paid for the trading at issue.
    Current List 3, Item 3 requires production of documents describing 
the basis upon which the associated person(s) was compensated during 
the years in which the transaction(s) or occurrence(s) in question 
occurred, including any bonus or incentive program, and compensation 
and commission schedules. The proposed amendments would clarify the 
Item by requiring production of a record of all agreements pertaining 
to the relationship between the associated person and the firm, 
summarizing the associated person's compensation arrangement or plan 
with the firm, including commission and concession schedules, bonus or 
incentive plans, and schedules showing compensation. If compensation 
was based on factors other than remuneration per trade, the amendments 
would require a record of the method by which compensation was 
determined.
List 4--Churning (Customer)
    FINRA proposes to delete current List 4 (Churning--Customer) which 
does not identify any documents or information that the customer must 
produce.
List 5--Failure To Supervise (Firm/Associated Person(s))
    Current List 5, requires firms/associated persons to produce 
documents in cases involving claims of failure to supervise.
    Current List 5, Item 1 requires the production of all commission 
runs and other reports showing compensation of any kind relating to the 
customer's account(s) at issue. The proposed amendments would clarify 
the Item by requiring production of commission runs and other reports 
showing compensation of any kind relating to the customer's account(s) 
or transactions at issue. The Item would be renumbered as List 4, Item 
1.
    Current List 5, Item 2 requires the production of all exception 
reports and supervisory activity reviews relating to the associated 
person(s) and/or the customer's account(s) generated not earlier than 
one year before or not later than one year after the transaction(s) at 
issue, and all other documents reflecting supervision of the associated 
person(s) and the customer's account(s). FINRA proposes to amend Item 2 
to clarify that activity concentration reports and active account runs 
must be produced. List 5, Item 2 would be renumbered as List 4, Item 2.
    Current List 5, Item 3 requires production of the portions of 
internal audit reports at the branch in which the customer maintained 
his/her account(s) that focused on the associated person(s) or the 
transaction(s) at issue, and were generated not earlier than one year 
before or not later than one year after the transaction(s) at issue and 
discussed alleged improper behavior in the branch against other 
individuals similar to the improper conduct alleged in the Statement of 
Claim. FINRA is not proposing any substantive changes to this Item. The 
proposed amendments would simplify the language and sentence structure 
in accordance with FINRA's plain English initiative. List 5, Item 3 
would be renumbered as List 4, Item 3.
    Current List 5, Item 4 requires production of the portions of 
examination reports or similar reports following an examination or an 
inspection conducted by a state or federal agency or a self-regulatory 
organization that focused on the associated person(s) or the customer's 
account(s) or transaction(s) at issue or that discussed alleged 
improper behavior in the branch against other individuals similar to 
the improper conduct alleged in the Statement of Claim. The Item would 
be moved to proposed new Item 6 and the word ``improper'' would be 
deleted, as redundant, from the phrase ``improper conduct alleged in 
the Statement of Claim.''
    FINRA proposes to adopt new List 4, Item 4 to require the 
production of any writings reflecting conversations between the 
associated person assigned to the customer's account during the time 
period at issue and members of the firm's compliance department. FINRA 
believes that such writings may provide evidence concerning firm 
supervisory activities relating to the associated person.
    FINRA proposes to adopt new List 4, Item 5 to require the 
production of copies of any inquiries, charges or findings by any 
regulator (state, federal or self-regulatory organization) and the 
responses thereto by the firm/associated person for alleged improper 
behavior by the associated person similar to that alleged in the 
Statement of Claim. This Item is intended to complement proposed Item 6 
by expanding the scope of documents produced that relate to supervision 
of the associated person.
    Proposed new List 4, Item 6 is discussed under current List 5, Item 
4, above.
    FINRA proposes to adopt new List 4, Item 7 to require the 
production of any notes or memoranda evidencing supervisory or 
managerial review of the customer's account or trades for the period at 
issue. These documents would provide important evidence in a case 
alleging failure to supervise.
    FINRA proposes to adopt new List 4, Item 8 to require the 
production of all correspondence between the customer and firm/
associated person relating to the customer's account(s) or 
transaction(s) at issue bearing

[[Page 10978]]

indications of managerial or supervisory review of such correspondence. 
This Item is intended to complement proposed List 1, Items 2 
(correspondence between the customer and firm/associated person 
relating to the transactions) and 5 (notes by the firm/associated 
person relating to the customer's account) by requiring production of 
documents indicating supervisory review of customer correspondence with 
the firm.
List 6--Failure To Supervise (Customer)
    FINRA proposes to delete List 6 (Failure To Supervise--Customer) 
which does not identify any documents or information that the customer 
must produce.
List 7--Misrepresentations/Omissions (Firm/Associated Person(s))
    Current List 7 requires firms/associated person(s) to produce 
documents in cases involving claims of misrepresentations or omissions. 
List 7 requires the production of all materials prepared or used by the 
firm/associated person(s) relating to the transactions or products at 
issue, including research reports, prospectuses, and other offering 
documents, including documents intended or identified as being ``for 
internal use only,'' and worksheets or notes indicating the associated 
person(s) reviewed or read such documents. As an alternative, the firm/
associated person(s) is permitted to produce a list of such documents 
that contains sufficient detail for the claimant to identify each 
document listed. Upon request by a party, the firm/associated person(s) 
is required to provide any documents identified on the list. FINRA 
proposes to clarify this List by specifying that in addition to 
materials prepared or used by the firm/associated person(s), materials 
provided to the customer must be produced. The amendments would also 
require production of sales literature and performance or risk data. In 
addition, FINRA proposes to delete the alternative procedure provided 
in this Item. Because this two-step production causes delays in the 
discovery process. Disputes about the details contained on the lists 
often arise, resulting in parties requesting production of every item 
on the list. Current List 7 would be renumbered as proposed List 5.
List 8--Misrepresentations/Omissions (Customer)
    Current List 8 requires customers to produce documents in cases 
involving allegations of misrepresentations or omissions. FINRA 
proposes to move Items 1 through 3 of current List 8 to proposed List 
2. This would expand required production of these documents to all 
customer cases.
    FINRA proposes adopt new List 6 to require the customer to produce 
copies of all materials received or obtained from any source relating 
to the transactions or products at issue, and other prospective 
investments, including research reports, sales literature, performance 
or risk data, prospectuses, and other offering documents, including 
documents intended or identified as being ``for internal use only,'' 
and worksheets or notes. Production of these documents may provide 
evidence concerning representations made to the customer by the firm/
associated person. Current List 8 would be renumbered as List 6.
List 9--Negligence/Breach of Fiduciary Duty (Firm/Associated Person)
    Current List 9 requires production of copies of all materials 
prepared or used by the firm/associated person relating to the 
transactions or products at issue, including research reports, 
prospectuses, and other offering documents, including documents 
intended or identified as being ``for internal use only,'' and 
worksheets or notes indicating that the associated person reviewed or 
read such documents. As an alternative, the firm/associated person is 
permitted to produce a list of such documents that contains sufficient 
detail for the claimant to identify each document listed. Upon further 
request by a party, the firm/associated person is required to provide 
any documents identified on the list. In addition, FINRA proposes to 
clarify this List by specifying that in addition to materials prepared 
or used by the firm/associated person, materials provided to the 
customer must be produced. The amendments would also specify that sales 
literature and performance or risk data must be produced. FINRA 
proposes to delete the alternative procedure provided in this Item 
because this two-step production causes delays in the discovery 
process. Disputes about the details contained on the lists often arise, 
resulting in parties requesting production of every item on the list. 
Current List 9 would be renumbered as List 7.
List 10--Negligence/Breach of Fiduciary Duty (Customer)
    The contents of current List 10 (Negligence/Breach of Fiduciary 
Duty (Customer)) are being moved to proposed List 2, as described 
above. FINRA proposes to revise List 10 to require the customer to 
produce copies of all materials received or obtained from any source 
relating to the transactions or products at issue, and other 
prospective investments, including research reports, sales literature, 
performance or risk data, prospectuses, and other offering documents, 
including documents intended or identified as being ``for internal use 
only,'' and worksheets or notes. Current List 10 would be renumbered as 
List 8.
List 11--Unauthorized Trading (Firm/Associated Person)
    Current List 11, Item 1 requires the production of order tickets 
for the customer's transaction(s) at issue. FINRA proposes to amend 
this Item to specify that for all allegedly unauthorized transactions 
at issue in the Statement of Claim, the firm/associated person is 
required to produce a memorandum of each order or instruction given as 
well as documentation showing the compensation, gross and net, to the 
associated person for each such transaction. The term ``order ticket'' 
would be replaced with the term ``memorandum of each order'' to reflect 
the current use of various order management systems by FINRA member 
firms. FINRA would require documentation of compensation for each 
transaction because such information may provide evidence of the 
Associated person's motivation for executing a particular trade.
    FINRA does not propose to change current List 11, Items 2 and 3.
    FINRA proposes to adopt new List 11, Item 4 to require the 
production of commission runs or other documents showing all trading by 
the associated person in the security at issue from ten trading days 
before until ten trading days after each transaction the customer 
alleges was unauthorized. The firm/associated person would be permitted 
to redact customer names but would be required to disclose the security 
traded, dates traded, whether trades were solicited or unsolicited and 
gross and net commission from each trade. These documents may reflect a 
pattern of trading behavior by the association persons. List 11 would 
be renumbered as List 9.
List 12--Unauthorized Trading (Customer)
    FINRA does not propose to current change List 12, Items 1 and 2. 
List 12 would be renumbered as List 10.
List 13--Unsuitability (Firm/Associated Person)
    Current List 13, Item 1 requires production of all materials 
prepared,

[[Page 10979]]

used, or reviewed by the firm/associated person related to the 
transactions or products at issue, including but not limited to 
research reports, prospectuses, other offering documents, including 
documents intended or identified as being ``for internal use only,'' 
and worksheets or notes indicating the associated person reviewed or 
read such documents. As an alternative, the firm/associated person is 
permitted to produce a list of such documents. Upon further request by 
a party, the firm/associated person is required to provide any 
documents identified on the list. FINRA proposes to clarify this List 
by specifying that in addition to materials prepared or used by the 
firm/associated person, materials provided to the customer must also be 
produced. In addition, the proposal also specifies that sales 
literature and performance or risk data must be produced. FINRA 
proposes to delete the alternative procedure provided in this Item 
because this two-step production causes delays in the discovery 
process. Disputes about the details contained on the lists often arise, 
resulting in parties requesting production of every item on the list.
    Current List 13, Item 2 requires the production of documents 
sufficient to describe the basis upon which the associated person was 
compensated during the years in which the transaction(s) or 
occurrence(s) in question occurred, including any bonus or incentive 
program and all compensation and commission schedules showing 
compensation received or to be received. FINRA proposes to amend Item 2 
to specify that documents reflecting agreements between the firm and 
associated person relating to compensation (including those concerning 
fee-based accounts) must be produced for the relevant time period. The 
proposal would eliminate required production of schedules showing 
compensation received or to be received.
    FINRA proposes to adopt new List 13, Item 3 to require the 
production of all documents between the firm/associated person and the 
customer relating to asset allocation, diversification, trading 
strategies and market conditions related to the customer's account(s). 
These documents may provide valuable insight into the reasons for 
particular trading decisions and are germane to an allegation of 
unsuitability. List 13 would be renumbered as List 11.
List 14--Unsuitability (Customer)
    FINRA proposes to move current List 14 (Unsuitability-Customer), 
Items 1 through 4, to List 2, as discussed above. This would expand 
required production of these documents to all customer cases.
    FINRA proposes to adopt new List 12, Claims Involving Particular 
Products or Securities. The Items on this list are designed to provide 
the parties with information about transactions in the customer 
accounts of an associated person and the commission earned on those 
transactions. FINRA proposes to limit discovery to five securities/
products selected by the customer to minimize delays in the discovery 
process.
    New List 12, Item 1 would require the firm/associated person to 
produce a record concerning trading activity in the customer's 
account(s) for a maximum of five securities and/or products selected by 
the customer claimant. The following would be required for each of the 
securities selected:
     Last four digits of the non-party customer account number;
     Trade activity (i.e., buy, sell);
     Number of shares, unit price, and dollar value of 
transaction;
     Date traded;
     Solicited or unsolicited; and
     Gross and net commission.
    New List 12, Item 2 would provide that, in giving a response to 
Item 1, the firm may redact the names of persons other than the 
customer, but should provide sufficient information to identify the 
customer's account, the associated person's own accounts, and the type 
of account. The proposal would require the information to be provided 
for a period of time beginning six months before and ending six months 
after the transactions at issue in the customer's account. If the 
customer seeks production of information related to more than five 
products or securities, a separate request would have to be made; 
however, the information would not be deemed presumptively 
discoverable. In addition, the firm would be required to identify 
related accounts of the associated person that traded in these 
securities or products at the firm during the relevant time period.
    New List 12, Item 3 would provide that, if an insurance product 
that provides a death benefit is included in the Statement of Claim, 
the firm/associated person must produce all information concerning the 
customer's insurance holdings and any recommendations made to the 
customer regarding insurance products.
    If the Statement of Claim includes an insurance product that 
provides a death benefit, New List 12, Item 4 would require the 
customer to produce all insurance information received from an 
insurance sales agent or broker.
    New List 12, Item 5 would require the firm/associated person to 
produce a record of all agreements pertaining to the relationship 
between the associated person and the firm, summarizing the associated 
person's compensation arrangement or plan with the firm, including 
commission and concession schedules, bonus or incentive plans, 
schedules showing compensation received or to be received based upon 
volume, type of product, nature of trade, (agency v. principal) etc. 
and, to the extent that compensation is based on factors other than 
remuneration per trade, the method by which the compensation was 
determined.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\9\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. FINRA believes that these updates to the Discovery 
Guide will reduce the number and limit the scope of disputes involving 
document productions and other matters, thereby improving the 
arbitration process for the benefit of the public investors, broker-
dealer firms, and associated persons who use the forum.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:

[[Page 10980]]

    (A) by order approve such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-FINRA-2008-024 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Securities and Exchange Commission, 100 F Street, NE., Washington, DC 
20549-1090.

All submissions should refer to File Number SR-FINRA-2008-024. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of such filing also will be available for 
inspection and copying at the principal office of FINRA. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-FINRA-2008-024 and should be 
submitted on or before April 3, 2009.
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    \10\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\10\
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-5389 Filed 3-12-09; 8:45 am]

BILLING CODE 8011-01-P
