Plaintiffs' motions [D.E. 39, 46, 63] seek to compel Defendant to produce documents responsive to a request for production and answers to interrogatories. We address the discovery requests and related motions in turn below.

Plaintiffs served their First Request for Production of Documents (“RFP”) on Defendant on July 17, 2013. The RFPs seek, among other things, production of technical documents for Defendant's allegedly infringing “Drive Test Simulator” (“DTS”), license agreements Defendant has entered into, and other documents relating to liability and damages issues. As of the filing of Plaintiffs' Motion to Compel Motorola to Answer Interrogatories and Produce Documents (“First Motion to Compel”) [D.E. 39] on September 25, 2013, Plaintiffs state that Defendant had not produced any documents in response to the RFP. [D.E. 39 at p.3]. Plaintiffs note that Defendant agreed that the roughly 1400 documents it previously produced in a related, preceding case[2] (regarding whistleblower claims) could be counted as production in this case. However, Plaintiffs also note that “claim construction discovery issues, license and damage issues were not part of the Whistleblower case” [Id.], thus giving rise to the need for this Motion to Compel.

In its Response [D.E. 48], Defendant principally responds to Plaintiffs' argument seeking answers to their interrogatories, which we address in the next section. With respect to the RFPs, however, Defendant states that the “whistleblower” documents were effectively “produced” in response thereto and also that Plaintiffs were “well aware that new trial counsel for [Defendant] were in the process of gaining admission pro hac vice, when [Plaintiffs were] planning to file [their] [First] Motion [to Compel].” [D.E. 48 at pp.7-8]. Thus, Defendant concludes that Plaintiffs' First Motion to Compel “falsely depicts [Defendant's] efforts to comply with its discovery obligations.” [Id.].

In their Reply [D.E. 52], Plaintiffs' state that “[o]n October 10, 2013, just prior to the deadline for [Defendant] to file an opposition to Plaintiffs' opening motion [to compel], [Defendant] made its document production in response to the July 17, 2013, document request. [Defendant] produced 42 documents.” [D.E. 52 at p.4]. Plaintiffs argue that Defendant's production was insufficient and thus filed a “four-page supplement” – entitled Plaintiffs' Emergency Supplement to Is (sic) Motion to Compel–To Advise Court of Motorola's “Production” and to Urgently Reurge and Focus the Requested Relief [D.E. 46] – for the purpose of informing that Court that Defendant produced 42 documents but “failed to produce any license agreements responsive to demands within the [RFP].” [D.E. 52 at p.4]. Moreover, Plaintiffs' state that “[t]his supplement is not a separate motion to compel, but simply focuses the Court's attention on the particular items from the [RFP] that remained relevant after [Defendant's] production of the 42 documents.” [Id.]. Plaintiffs' further state that they “were not sure how to advise the Court of the narrowing of the issues” and therefore “styled their supplement an ‘emergency’ supplement – but the intent is simply to update and narrow the pending motion to compel.” [Id.].

*2 While we appreciate Plaintiffs' seemingly good intentions, a lack of certainty as to how to advise the Court of an update regarding outstanding discovery issues should not default to an “emergency” filing. Indeed, and as Defendant's opposition [D.E. 55] to Plaintiffs' Supplement correctly points out, the Court's procedures for emergency motions seeking expedited relief are intended to be employed only in truly time-sensitive circumstances where the it is expected that “the Court [will] drop[ ] whatever it is working on to give the motion its full attention.” Privitera v. Amber Hill Farm, L.L.C., No. 5:12-CV-7-OC-32TBS, 2012 WL 1900559, at *2 (M.D. Fla. May 24, 2012) (“It is fundamentally wrong to characterize a matter as an emergency when it obviously is not an emergency.”). Thus, in light of Plaintiffs' tacit acknowledgment that their Supplement is not actually an “emergency” motion, the “emergency” designation is STRICKEN. Moreover, while we will consider the content of Plaintiffs' Supplement as it relates to Plaintiffs' First Motion to Compel, the Supplement is not, in and of itself, a proper motion. Plaintiffs' Emergency Supplement to Is (sic) Motion to Compel–To Advise Court of Motorola's “Production” and to Urgently Reurge and Focus the Requested Relief [D.E. 46] is DENIED.

We now turn to the substance of Plaintiffs' Supplement, which specifies ten categories, listed (a) through (j), that Defendant has allegedly failed to provide responsive documents to. [D.E. 46 at pp.2-3]. In response, Defendant states that “[t]o the extent that the Emergency Supplement refers to properly requested, discoverable documents, such documents have been produced.” [D.E. 55 at p.4]. Plaintiffs' did not “reply” to Defendant's response. Instead, Plaintiffs filed a Motion to Compel Motorola to Answer Interrogatories and Produce Documents Relating to the Use Motorola Makes of its Infringing Activity (“Second Motion to Compel”) [D.E. 63].

In the Second Motion to Compel, Plaintiffs again list categories (a) through (j) and contend that they “still do not have full compliance from [Defendant] for those issues identified above.” [D.E. 63 at p.6]. In response, Defendant plainly states that “[a]side from their having been presented to Court already, it is further improper to raise these items here because – for the entire list, items (a) through (j) – [Defendant] has already agreed (in its original discovery responses) to produce any responsive non-privileged documents.” [D.E. 70 at p.5]. Plaintiffs did not “reply” to Defendant's response. Thus, at this juncture, and without any further motion practice regarding the RFPs, we are led to believe that Plaintiffs' issues regarding Defendant's production of documents pertaining to the RFPs are resolved. Accordingly, to the extent they address Plaintiffs' RFPs and Defendant's production of documents in response thereto, Plaintiffs' First Motion to Compel [D.E. 39] and Second Motion to Compel [D.E. 63] are DENIED. However, to the extent Defendant has not already produced documents responsive to Plaintiffs' RFPs, Defendant shall do so within seven days of this Order.

Plaintiffs' First Motion to Compel [D.E. 39] focuses primarily on Interrogatories Nos. 2 and 3 propounded on Defendant. Interrogatory No. 2 asks: “For those devices and models listed in Interrogatory No. 1, identify how many devices and [m]odels Motorola has sold worldwide after testing such devices and models in each and every DTS.” [D.E. 39-2 at p.4].[3] Interrogatory No. 3 asks: “For those sales identified in Interrogatory No. 2, identify on an annual basis and with respect to each model, the gross sales revenue, net sales revenue, and, to the extent any different, gross profits and net profits, that Motorola has enjoyed, and explain what costs Motorola deducts from gross revenue and gross profits in determining nets sales revenue and net profits.” [Id.].

In short, Interrogatories Nos. 2 and 3 seek information and documents regarding sales of certain of Defendant's cellular phone models that were sold outside of the United States that Plaintiffs claim were tested with and developed using the allegedly infringing DTS system. Plaintiffs argue that they are entitled to obtain Defendant's worldwide sales volumes and revenues because it “is relevant to patent damages” and “impacts the reasonable royalty analysis” that they contend they are entitled to. [D.E. 39 at pp.1-2].

*3 In response, Defendant argues that the First Motion to Compel should be denied because the information and documents Plaintiffs seek about its foreign activities are “not relevant to any issue in this lawsuit.” [D.E. 48 at p.1]. Defendant first refers to “the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 441 (2007). In turn, Defendant argues that “there can be no infringement whatsoever – and thus no damages – relating to any of [Defendant's] cellular phones that are made and sold outside of the United States and discovery into such activities, which cannot be relevant to any aspect of this lawsuit, should be denied.” [D.E. 48 at p.2]. In other words, Plaintiffs' patent is something that might be used “to model and test various mobile network configurations and scenarios,” and, “[c]onsequently, no cellular phone made anywhere (either inside or outside the U.S.) could infringe [Plaintiffs'] patent.” [Id.]. In the same vein, Defendant points out “a critical flaw” in Plaintiffs' First Motion to Compel, namely that the “patent-in-suit does not include any claims that cover any cellular phones themselves, or any method of making cellular phones.” [Id.]. And although Defendant firmly believes that its cellular phone sales information is not relevant to Plaintiffs' infringement allegations, it nevertheless agreed to (and subsequently did) produce U.S. sales data for its cellular phones. [Id. at p.3].

At the outset, we are compelled to point out a logical fallacy at the heart of Plaintiffs' First Motion to Compel. In support of their argument that Defendant should produce its overseas sales information, Plaintiffs state:

[D.E. 52 at pp.2-3]. Plaintiffs have not cited any authority in support of this argument, nor do we believe that Defendant's decision to “compromise” [D.E. 48 at p.3] and produce its U.S. sales data for its cellular phones can be interpreted as an “admission of relevancy” to require Defendant to produce all sales information – domestic and foreign – for its cellular phones. Without more, Plaintiffs' argument that Defendant implicitly agreed to produce its foreign sales data is simply without merit.

As to the merits of the First Motion to Compel, none of Plaintiffs' cited authorities support their argument that they are “entitled to discovery relating to the value and benefit [Defendant] received by testing and developing each cell phone model in the infringing DTS” that was produced and sold overseas. [D.E. 52 at p.2]. Indeed, none the authorities cited address the rights of patentees, such as Plaintiffs, potentially obtaining damages for products made and sold overseas. Moreover, at this procedural juncture, Plaintiffs have not demonstrated that Defendant's foreign sales records for its cellular phones have any meaningful role in the upcoming claim construction hearing scheduled for January 27, 2014. [D.E. 76]. For now, discovery of sales data pertaining to Defendant's cellular phones is limited to its domestic sales figures, which it has already produced. If and when Defendant's overseas sales data becomes a material issue in this case, we can revisit it upon proper motion and a showing of relevant and applicable authority.

Thus, as to Interrogatories Nos. 2 and 3, Plaintiffs' First Motion to Compel [D.E. 39] is DENIED.

Plaintiffs' Second Motion to Compel [D.E. 63] focuses on Interrogatories Nos. 8, 9, and 10 propounded on Defendant, as follows:

*4 Interrogatory No. 10: For each firmware version you identified in response to Interrogatory No. 8, explain how each cell phone received each firmware upgrade, where each firmware upgrade originated from, and the persons most knowledgeable about the subject matter of this Interrogatory. If the firmware upgrade originated from a server, identify the location of the server.

[D.E. 70-1 at pp. 7-8].[4]

As to Interrogatory No. 8, Plaintiffs' Second Motion to Compel takes issue with two aspects of Defendant's response. First, in response to this interrogatory, Defendant states that it “will produce reasonably accessible, nonprivileged and non-work-product documents responsive documents (sic), if any exist and have not been produced already.” [D.E. 70-1 at pp.7-8]. In its opposition to the Second Motion to Compel, Defendant acknowledges that its “investigation is ongoing, and [it] anticipates producing available documents pursuant to Fed. R. Civ. P. 33(d), from which an answer to Interrogatory 8 may be ascertained.” [D.E. 70 at p.2]. Plaintiffs did not “reply” to Defendant's opposition. Thus, we assume that Defendant has produced documents pursuant to Fed. R. Civ. P. 33(d) as it agreed to do, and Plaintiffs have no further objection in this regard.

Plaintiffs' second complaint regarding Defendant's response to Interrogatory No. 8 is that Defendant failed to answer the part of the interrogatory asking for the identities of the “persons most knowledgeable about the subject matter of this Interrogatory.” [D.E. 63 at p.3]. In its opposition, Defendant states that it “did not identify such persons in its initial response because of its on-going document investigation efforts, which is eminently reasonable,” it “anticipates supplementing its answer to include the identity of any such person(s) based on its reasonable on-going investigation,” and that “[t]hese efforts are more than sufficient to address [Plaintiffs'] asserted concerns.” [D.E. 70 at pp.2-3]. Again, Plaintiffs did not reply to Defendant's opposition. Here, too, we assume that Defendant has since identified those “persons most knowledgeable about the subject matter of this Interrogatory” as it agreed to do during its continuing investigation, and Plaintiffs have no further objection in this regard. Based on this record, it appears that Defendant's agreement and continuing efforts to supplement its response to Interrogatory No. 8 have effectively mooted the need for the Court's intervention. Thus, as to Interrogatory No. 8, Plaintiffs' Second Motion to Compel [D.E. 63] is DENIED. However, to the extent Defendant has not already fully responded to Interrogatory No. 8, Defendant shall do so within seven days of this Order.

As to Interrogatories Nos. 9 and 10, Defendant wholly objects to the information and documents sought. Plaintiffs state that these interrogatories “will provide information that links the firmware tested and/or developed on the infringing device to [Defendant's] worldwide phones.” [D.E. 63 at p.4]. As with Interrogatories Nos. 2 and 3 discussed above, Plaintiffs here argue that they are entitled to this “worldwide” information because it is relevant to their claims and therefore must be produced. In response, Defendant states that the information sought “is not relevant to any claim or defense in this case.” [D.E. 70 at p.3]. Defendant further states that “the arguments in [Plaintiffs Second] Motion [to Compel as to Interrogatories Nos. 9 and 10] are nothing more than a rewording of its previous incorrect arguments about entitlement to [Defendant's] international sales data, but where the new angle is to focus on the ‘firmware.’ ” [Id. at p.4].

*5 As we previously concluded, Plaintiffs have not demonstrated that information about Defendant's “worldwide” activities have any meaningful role in the upcoming claim construction hearing. Nor have Plaintiffs provided any legal authority for the their argument that Defendant must produce information regarding its worldwide or foreign activities. Accordingly, as to Interrogatories Nos. 9 and 10, Defendant need not provide information regarding its worldwide or foreign activities, but shall provide information regarding all domestic activity, to the extent such information exists. Plaintiffs' Second Motion to Compel [D.E. 63] is GRANTED in part and DENIED in part as stated herein.

Plaintiffs' Request for a Hearing on its Pending Motions to Compel [D.E. 64] is DENIED.

Defendant's motion to compel [D.E. 49] arises out of alleged deficiencies and improprieties with Plaintiffs' production of approximately 40,000 PDF text-searchable pages. Defendant argues that Plaintiffs' production is improper for several reasons.

First, Defendant complains that the documents “produced are formatted in large clusters of undifferentiated subdocuments that makes review and analysis of [Plaintiffs'] document productions extraordinarily difficult.” [D.E. 49 at p.2]. Specifically, Defendant argues that numerous documents are missing, others are incomplete, and there are unexplained gaps in Bates numbering. [Id.]. Defendant also argues that these issues could have been avoided had Plaintiffs employed “an industry standard electronic-discovery vendor.” [D.E. 66 at p.9].

In response, Plaintiffs state that the documents were produced as they are kept in the ordinary course of business. [D.E. 58 at p.5]. Plaintiffs detail how they searched for documents from various email accounts and then compiled the collection of responsive documents into a “comprehensive production in PDF format.” [Id. at pp.5-6]. As for the incomplete or inadvertently cropped documents, Plaintiffs state that they have located the majority of those documents and will search for and produce the remaining ones. [Id. at pp.4,7]. This is significant because, as Plaintiffs point out in their response, their offer to search for any particular incomplete documents was extended prior to Defendant filing its motion. [Id.]. This is precisely the type of issue that can be worked out between the parties during a pre-filing conference as required by S.D. Fla. L.R. 7.1(a)(3). Additionally, Plaintiffs explain that the gaps in Bates numbering are from privileged documents that were originally Bates numbered and removed from the responsive documents produced or otherwise non-responsive documents. [Id.]. That is a well-accepted explanation for gaps in Bates numbering that does not require relief here. Similarly, Defendant's argument that Plaintiffs could or should have employed an outside vendor to prepare their production is not well-founded. There does not appear to be any agreement in place regarding how or by what means the parties are to produce documents or whether such vendors need be retained. Nor has there been any showing that the Federal Rules require that relief here.

Second, and seemingly most important to Defendant, it complains that the documents Plaintiffs produced “are simply not in a usable form” and thus do not comply with the requirements of Fed. R. Civ. P. 34. [Id. at pp.1-2]. In this regard, Defendant argues that the documents were not produced in “native” format which, in turn, inappropriately degraded Defendant's searching capabilities. [D.E. 49 at p.5]. To cure this alleged deficiency, Defendant asks this Court to compel Plaintiffs to redo their production by reproducing the emails in their native format. [Id. at p.8].

*6 In response, Plaintiffs state that Defendant never requested that emails (including attachments) be produced in their original “native” format. [D.E. 58 at p.1]. Thus, Plaintiffs contend, “[Defendant] cannot now compel something that was never asked for and[ ] asking Plaintiffs to essentially redo all of this work at this juncture is a burden that far outweighs [Defendant's] need for ‘native’ format emails.” [Id. at pp.1-2]. In responding to Defendant's request for production, Plaintiffs searched through email accounts maintained with Yahoo and Gmail. [Id. at p.3]. They ran keyword searches to identify responsive documents and then electronically “printed” them to PDF format while maintaining the ability to conduct word searches in the documents. [Id. at p.4]. Plaintiffs' counsel then reviewed the documents for privilege, Bates numbered all of the pages, pulled the privileged documents, and produced all non-privileged and responsive documents. [Id.]. Plaintiffs acknowledge that certain documents may have been inadvertently cropped or otherwise incomplete, and they have agreed to rectify any such issues as they appear. [Id.].

Federal Rule of Civil Procedure 34, which governs the production of electronically stored information, provides that a party may specify the form in which electronically stored information is to be produced. Fed. R. Civ. P. 34(b)(1)(C). The advisory committee notes to Rule 34 provide that if the requesting party is not satisfied with the form stated by the responding party, or if the responding party has objected to the form specified by the requesting party, the parties must meet and confer pursuant to Rule 37(a)(1) in an effort to resolve the matter before the requesting party can file a motion to compel. Further, the notes provide that if the parties cannot agree to the form of the response and the court resolves the dispute, the court is not limited to the forms initially chosen by either the requesting party or the responding party. See Seven Seas Cruises S. De R.L. v. V. Ships Leisure Sam, No. 09-23411-CIV, 2011 WL 181439, at *4 (S.D. Fla. Jan. 19, 2011).

Our review of Defendant's request for production makes clear that it did not specify that the requested documents were to be produced in “native” form. Thus, Plaintiffs were required to produce the requested documents “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). Plaintiffs state that they have complied with this provision. Moreover, based on Plaintiffs' representations that they will produce supplemental discovery for those documents for which issues have been identified, Plaintiffs shall abide by these representations and timely provide to Defendant the supplemental discovery on a going-forward basis, assuming they have not yet done so.

As to Plaintiffs' production of their approximately 40,000 PDF text-searchable documents referenced in Defendant's motion to compel, we find it unnecessary for Plaintiffs to reproduce in “native” format the PDF versions of documents that Plaintiffs have already produced. Our conclusion is bolstered by Defendant's failure to specify that such documents were to be produced in “native” format and Rule 34's mandate that “[a] party need not produce the same electronically stored information in more than one form.” See Armor Screen Corp. v. Storm Catcher, Inc., No. 07-81091-CIV, 2008 WL 4753358, at *2 (S.D. Fla. Oct. 29, 2008) (not requiring a party to reproduce documents in electronic format after it previously produced those same documents and where the requesting party did not originally specify the format for production). We find that the steps taken by Plaintiffs to locate and produce responsive documents were reasonable under the circumstances of this case, and the cost of utilizing a third-party vendor to conduct searches and compile Plaintiffs' production–as Defendant suggests–outweighs the potential benefit to be derived therefrom. Going forward, we remind the parties of their obligation to work together in an attempt to resolve any discover disputes prior to filing motions to compel. In the future, the parties should more clearly specify the way in which e-discovery will be conducted, and if they cannot agree, file a motion to resolve ESI discovery methodology prior to the production of ESI, as contemplated by Fed. R. Civ. P. 34(b)(2)(D),(E).

*7 Defendant's Motion to Compel Plaintiffs to Produce Documents Compliant with the Federal Rules of Civil Procedure [D.E. 49] is DENIED.

Defendant moves to strike the Plaintiffs' expert report entitled “Opinions of Dr. Sumi Helal and Dr. Edwin Hernandez, Limited to Select Claim Construction Issues” because it is allegedly deficient under Fed. R. Civ. P. 26(a)(2)(B). [D.E. 50 at p.1]. The report is signed and offered “individually and collectively” by Drs. Helal and Hernandez, who are the named inventors of the patent at issue in this case. Defendant argues that the report is improper because “there is no explanation as to whether Drs. Helal and Hernandez share exactly identical beliefs or whether each holds a view that must be combined with that of the other, in order to achieve the acts and statements set forth.” [Id. at pp.2-3]. In support, Defendant cites several cases where courts were confronted with combined or joint expert reports that failed to explain whose opinion is being expressed (and in which portions) among proffered experts. See Adams v. United States, No. 4:CV 03-49-BLW, 2011 WL 2144574 (D. Idaho May 29, 2011); Dan v. United States, No. CIV. 01-25MCA/LFG-ACE, 2002 WL 34371519 (D.N.M. Feb. 6, 2002).

In response, Plaintiffs state that “[t]he report prepared by Dr. Helal and Dr. Hernandez is not long or complicated, and it is not beyond reason that two inventors who are experts in the field cannot share [the same] opinions ....” [D.E. 57 at p.2]. Further, Drs. Helal and Hernandez “submitted their opinions in a single report, that they each participated in preparing through joint video conference calls, and each signed individually as his own.” [Id. at p.3]. Moreover, at their depositions, “each expert testified that the report contained his own opinions, which they arrived at by considering the issues, collaborating on background material and facts, and then reaching opinions that each embraced completely as his own.” [Id.]. Indeed, there is no place in the report where a reader “could interpret any statement or opinion as being not shared equally by both individual experts, as all of the opinions are embraced individually by each of them.” [Id. at p.5]. In support, Plaintiffs cite Dale K. Barker Co., P.C. v. Valley Plaza, No. 12-4147, 2013 WL 5185004, at *4 (10th Cir. Sept. 17, 2013) for its holding that permitted a joint report where both experts reviewed the same material and, working together, arrived at the same opinions.

Upon review of Adams and Dan, we find that those decisions are inapposite to the facts and circumstances of this case. In Adams, the court held that because the two experts had divided up the work to prepare a report and had not disclosed in the report which expert had done which portion of the work, the court required the experts to supplement the report to disclose (1) how they divided up the work and (2) how each relied on the other in arriving at their opinions. Adams, 2011 WL 2144574 at **1-2. In Dan, the plaintiffs submitted a joint report of a doctor and a nurse. The report never disclosed which person was offering the opinions when being offered in the “I” vernacular and the court noted that some of the opinions were more in the nature of what a doctor could be offering and “appear[ed] to go beyond the expertise of a nurse.” Dan, 2002 WL 34371519 at *3. Significantly, the report was “not signed by either of the proposed experts.” Id. “[R]ather than striking the reports and the experts, the [c]ourt require[d] that Plaintiffs submit separate expert reports.” Id. at 5. Accordingly, Adams and Dan are not persuasive or controlling.

*8 Plaintiffs reliance on Valley Plaza is more fitting. In Valley Plaza, the plaintiff complained on appeal of the district court's refusal to strike a joint expert report filed by the defendant. Valley Plaza, 2013 WL 5185004, at *4. The appellate court rejected the plaintiff's argument, finding, under the circumstances, that a joint report was permissible:

Id. (citations omitted); see Adams, 2011 WL 2144574 at *1 (“the [Federal] Rule[s] contain[ ] no bar to filing a joint report signed by two experts”).

The circumstances surrounding the nature of the report in Valley Plaza are akin to those of the experts and the joint report in this case. Here, Drs. Helal and Hernandez each unequivocally testified that all of the statements and opinions in their joint report are the opinions of each of them individually as well as their mutual and collective opinions. Thus, there can be no confusion as which expert offers which opinions set forth in the joint report. Accordingly, Defendant's Motion to Strike Plaintiffs' Expert Report [D.E. 50] is DENIED. Having denied this motion as to a discovery matter, however, this Order does not address whether the trial court will permit both experts to testify at trial if it finds that the experts' testimony is cumulative or redundant.

DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of December, 2013.

On May 22, 2013, the Honorable K. Michael Moore referred these motions to the undersigned Magistrate Judge for disposition. [D.E. 8].

Hernandez v. Motorola Solutions, Inc., No. 12-60930-CIV-COHN/SELTZER.

Interrogatory No. 1 asks: “List the devices and models that Motorola has tested in each and every DTS.” [D.E. 39-2 at p.4].

Plaintiffs did not attach to their Second Motion to Compel a copy of their second set of interrogatories propounded on Defendant. Instead, Interrogatories Nos. 8, 9, and 10, as reproduced herein, are derived from Exhibit 1 to Defendant's opposition to Plaintiffs' Second Motion to Compel. [D.E. 70].