In response, the plaintiffs contend that the motion to compel is untimely because it was filed outside the discovery period [Doc. No. 228]. The plaintiffs' position ignores this court's litigation schedule established by order of October 7, 2014 [Doc. No. 297]. Moreover, it was during the depositions taken pursuant to that order in which the defendant learned of the alleged deficiencies in the search for email correspondence responsive to the requests to produce. Accordingly, the court will consider the substance of the requests in light of what the defendant learned about the plaintiffs' steps to search for and respond to the requests.

The requests at issue in this motion are:

The bases for the defendant's contention that the plaintiffs did not make a good faith effort to locate documents responsive to these requests are: (1) testimony of Zac Valentine, former Information Technology Manger for the plaintiffs, indicating that he searched only emails in which the defendant was in the TO, FROM, CC, or BCC line; (2) testimony of Peter Battisti, Vice President of Business Development for Chemence, Inc., indicating that he sent emails that did not copy the defendant about Dermaflex QS, a product produced by the plaintiffs on which the defendant worked and for which he is owed commissions; and (3) testimony of Jeff Roberson, the plaintiffs' former Vice President of Sales, who stated that he received emails regarding the defendant's opinion that the plaintiffs' product could be changed from a Class I to a Class II product by the FDA.

*2 While the emails described by Battisti and Roberson may be responsive to two of the requests set forth above (Requests j and 1), the court is not convinced that the plaintiffs have failed to fulfill their discovery obligations with respect to those two requests. First, the Valentine deposition took place on November 6, 2014. Thus, at the time this court conducted a telephone conference with the parties (November 10, 2014), the defendant knew of the limitations of Valentine's email search. During the court's phone conference, the court directed the defendant to send his expert to search the Chemence system as offered by the plaintiffs' counsel. This was to occur within 10 days of the phone conference. Despite the ongoing discovery process, the defendant does not refer to his review of the Chemence computer systems that occurred in November 2014.

Second, the court is completely baffled by the search terms proposed by the defendant [Doc. No. 339-2]. Of the 56 proposed terms, only approximately 10 seem calculated to find emails that are responsive to Requests j and 1 above.

The court has grown weary of the parties' discovery disputes. As the defendant points out, the plaintiffs were derelict in complying with their obligations at earlier points in this action. However, since the undersigned became assigned to this matter and conducted a hearing on the discovery motions and issued the resulting order, the plaintiffs have followed the court's directives. Moreover, the court has already indicated that the plaintiffs will be sanctioned for their prior misconduct, even if the defendant does not agree with the level of sanction or the speed at which it is being imposed. The defendant has been resistant to solutions implemented by the court (i.e., utilizing is own expert to search the Chemence computer system—to which the plaintiffs have agreed), and seems to repeatedly point to the past missteps by the plaintiffs as justification to engage in broad ranging fishing expeditions.

Because the court cannot discern whether the emails sought by the defendant are in fact responsive to the relevant discovery requests and because the defendant does not appear to have made a good faith effort to reach a resolution of this issue with the plaintiffs, the motion to compel as it applies to the emails in the possession of the plaintiffs is DENIED. Nevertheless, the plaintiffs do have an obligation to search for and produce all responsive documents. To the extent that no search has been undertaken on emails outside of those sent to or from the defendant, the plaintiffs should endeavor to complete this search and turn over all responsive documents immediately. The court will not be drawn into a dispute about search terms and individual email stores. The plaintiffs have the obligation to produce documents responsive to all requests to produce. To the extent the plaintiffs are unable or unwilling to turn up the responsive documents, they proceed at their own peril.

Finally, the motion to compel seeks documents held by the plaintiffs' attorney, Robert Wilson. The defendant learned in Wilson's November 11, 2014, deposition that he had never searched his own documents to determine if he held documents responsive to the requests to produce. At the time of the deposition, Wilson was seeking to testify in this matter as a fact witness. The court has now excluded Wilson from being a fact witness. Nevertheless, his role as corporate counsel for the plaintiffs entails a duty to include his documents in the universe of documents searched by the plaintiffs. Undoubtedly, there will be privileged documents in that universe of documents. However, the plaintiffs are required to search the documents, turn over the non-privileged, responsive ones, and supply a privilege log listing the privileged ones. Therefore, the motion to compel production of documents within Wilson's files is GRANTED to the extent there are responsive documents therein that are non-privileged. These documents must be produced within 10 days of the date of this order.

*3 The court reminds counsel for all parties of their professional responsibilities to the court. It is the goal of the court to move this litigation toward a resolution. It appears the goal of counsel is to antagonize each other though gamesmanship, which will no longer be tolerated by the court.

SO ORDERED this 10th day of February, 2015.