The York Group, Inc., Milso Industries Corporation, and Matthews International Corporation, Plaintiffs, v. Scott Pontone, Harry Pontone, Batesville Casket Company, Inc, and Pontone Casket Company, LLC, Defendants CIVIL DIVISION No. 2:10-CV-1078-JFC United States District Court, W.D. Pennsylvania Filed August 06, 2012 Counsel Brian T. Himmel, David B. Fawcett, III, REED SMITH LLP, Reed Smith Centre, 225 Fifth Avenue, Pittsburgh, PA 15222, bhimmel@reedsmith.com, dfawcett @reedsmith.com, Steven I. Cooper, Danielle J. Marlow, REED SMITH LLP, 599 Lexington Avenue, New York, NY 10022, scooper@reedsmith.com, dmarlow @reedsmith.com, Counsel for Plaintiffs Matthews International Corporation, Milso Industries Corporation and The York Group, Inc. Kathleen M. Anderson, Barnes & Thornburg LLP, 600 One Summit Square, Fort Wayne, IN 46802, kathleen.anderson@btlaw.com, John R. Maley, Barnes & Thornburg, 11 South Meridian Street, Indianapolis, FN 46204, jmaley@btlaw.com, A. Patricia Diulus-Myers, Martin J. Saunders, Jackson Lewis LLP, One PPG Place, 28thFloor, Pittsburgh, PA 15222, diulusmp@jacksonlewis.com, saunderm @jacksonlewis.com, Counsel for Defendant Batesville Casket Company. Valeria Calafiore Healy, Healy LLC, 154 Grand Street, New York, NY 10013, vch@healylex.com, Mindy J. Shreve, DeForest Koscelnik Yokitis Skinner & Berardinelli, 436 Seventh Avenue, 3000 Koppers Building, Pittsburgh, PA 15219, shreve@deforestlawfirm.com, Counsel for Defendant, Scott Pontone, Harry Pontone and Pontone Casket Company. Shepard, Mark D., Special Discovery Master SPECIAL DISCOVERY MASTER'S REPORT AND RECOMMENDATION AND MEMORANDUM DECISION RE: 1. DEFENDANT SCOTT PONTONE'S MOTION TO COMPEL PLAINTIFFS TO RESPOND TO CERTAIN OF HIS THIRD DISCOVERY REQUESTS TO PLAINTIFFS; 2. DEFENDANT PONTONE CASKET COMPANY'S (“PCC”) MOTION TO COMPEL PLAINTIFFS TO RESPOND TO CERTAIN OF PCC'S FIRST DISCOVERY REQUESTS TO PLAINTIFF MATTHEW INTERNATIONAL CORPORATION; PCC'S FIRST DISCOVERY REQUESTS TO PLAINTIFF YORK, GROUP INC.; PCC'S FIRST DISCOVERY REQUESTS TO PLAINTIFF MILSO INDUSTRIES CORPORATION AND PCC'S SECOND DISCOVERY REQUESTS TO PLAINTIFFS; and 3. DEFENDANT HARRY PONTONE'S MOTION TO COMPEL PLAINTIFFS TO RESPOND TO CERTAIN OF HIS FIRST, SECOND AND FOURTH DISCOVERY REQUESTS TO PLAINTIFFS I. Introduction and Background *1 By letters dated July 10, 2012, July 14, 2012 and July 15, 2012, Defendants, Scott Pontone, Pontone Casket Company (“PCC”) and Harry Pontone (collectively, “the Pontone Defendants”), submitted Motions to Compel pursuant to Fed.R.Civ.P. 37 relating to alleged deficiencies in Plaintiffs' responses to various discovery requests served by these Defendants in 2011 and 2012. Plaintiffs timely responded to each Motion to Compel. Counsel for the Pontone Defendants conveniently prepared and attached to each of the Motions to Compel a summary table setting forth the text of the discovery request at issue, Plaintiffs' objection and/or response to that discovery request and the Pontone Defendants' description of the alleged deficiency in that response. In serving their responses to the Motions to Compel at issue, Plaintiffs' counsel conveniently reprinted those summaries and added a specific response to each alleged deficiency with respect to the Harry Pontone and PCC Motions to Compel. Thus, although there are a substantial number of discovery requests at issue in these three Motions, counsel for the Parties has organized their arguments in such a way as to allow me to address these three Motions in a single Report and Recommendation.[1] For ease of understanding for the Parties and the Court, in the event objections are filed to this Report and Recommendation, I have attached as Exhibit “A” the comprehensive summary of the alleged deficiencies and Plaintiffs' response to each alleged deficiency for the PCC discovery requests and I have attached as Exhibit “B” the same comprehensive summary regarding Defendant Harry Pontone's discovery requests.[2] At this stage of the litigation, more than, a dozen depositions have been taken by the Parties and over 500,000 pages of responsive documents have been produced by Plaintiffs alone. Additionally, Plaintiffs recently narrowed the scope of their alleged damages (identifying both the nature and source (the funeral home customer) of the alleged damages) and provided Defendants with calculations of each category of damages. My intent in this Report and Recommendation, therefore, is to evaluate the discovery requests at issue by focusing on what actual discovery is necessary and pertinent to the remaining claims in this litigation and the defenses asserted by the Defendants. Because this litigation is nearing the end of a protracted discovery process and the subject of many of the discovery requests at issue in these Motions to Compel has been addressed in deposition testimony and other discovery, my determination of what discovery is relevant and necessary is obviously much better defined than if these decisions were being made at or near the outset of this litigation. II. Discussion and Analysis A. Plaintiffs' claim that counsel for the Pontone Defendants has not satisfied the “meet and confer” requirement in Fed.R.Civ.P. 37(a) *2 Several times in the course of my service as Special Discovery Master in this case, counsel for the Party opposing a Motion to Compel or for Protective Order has asserted that counsel for the Moving Party (in this case the Pontone Defendants) has failed to meet and confer in good faith regarding some or all of the discovery requests at issue as required by Fed.R.Civ.P. 37(a)(1). Frankly, no counsel has ever provided me a written and signed Certification of Compliance with the meet and confer requirement as contemplated by Rule 37(a)(1). Rather, in the letter submissions to me under the terms of the Amended Order Appointing Special Discovery Master, the submitting Party generally has described the occurrence of a telephonic or in person meet and confer. With respect to these three Motions to Compel, counsel for the Pontone Defendants states in each of her submissions that the Parties held a telephonic meet and confer on June 8, 2012 during which they were unable to resolve the dispute. Counsel for Plaintiffs argues that the issues addressed in this June 8, 2012 meet and confer telephone conference only addressed certain of the discovery requests raised in the Motions to Compel. Frankly, it is almost impossible for me to evaluate whether or not an adequate “meet and confer” has occurred with respect to these three Motions given the Parties' competing representations on that topic. Given the unlikelihood, however, that any additional meet and confer sessions, whether mediated by me or not, would produce any discernible progress or compromise with respect to these discovery disputes, I have determined that the best course is to render a decision with regard to the Motions to Compel. B. Plaintiffs' claim that the Motions to Compel are untimely Counsel for Plaintiffs also asserts that the three Motions to Compel should be denied because they were submitted many months after Plaintiffs' objections and responses were served to the discovery requests at issue. In my judgment, given the resources the Parties were required to expend in the first part of 2012 on discovery related to Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and the more recent flurry of depositions taken by the Parties, timeliness or lack thereof is not a sufficient basis to deny all three Motions outright. Obviously, however, the additional discovery that has taken place since the challenged discovery responses were served impacts my decision on the merits of each alleged deficiency. C. Scott Pontone's Motion to Compel 1. Interrogatories Nos. 1 and 2: In these two interrogatories, Scott Pontone requests that Plaintiffs identify any and all confidential information or trade secrets allegedly misappropriated, taken, used or disclosed by Scott Pontone in breach of his Confidentiality Agreement or common law as well as the identity of every individual with personal knowledge of information supporting Plaintiffs' claim that Scott Pontone allegedly misappropriated, took, used or disclosed such confidential information or trade secrets. In their response, Plaintiffs refer to and incorporate their response to Scott Pontone's First Set of Interrogatories, No. 1 which I previously determined was a sufficient description of the categories and types of allegedly confidential and trade secret information allegedly misappropriated or misused by Scott Pontone. See, Special Master's Report and Recommendation dated December 22, 2011. In response to Interrogatory No. 2 requesting the identity of individuals with personal knowledge of information supporting the Plaintiffs' confidential information and trade secret misappropriation claims against Scott Pontone, Plaintiffs identified Andrew Pontone, Steven Pontone, Michael Pontone and the 37 funeral home customers Plaintiffs initially identified as “at issue” in this litigation. In his Motion to Compel, Scott Pontone argues that Plaintiffs responses to these two interrogatories are not sufficiently detailed and specific. In their Response in Opposition to the Motion to Compel, Plaintiffs attached an e-mail dated June 20, 2010 to counsel for the Pontone Defendants in which Plaintiffs identified by Bates number samples of confidential information allegedly misappropriated by Defendants. A true and copy of the June 20, 2010 e-mail is attached hereto as Exhibit “D”. Plaintiffs further argue that they have no way of knowing precisely what Scott Pontone has taken from them or disclosed to third-parties allegedly in violation of his Confidentiality Agreement or common law. See, e.g., Bausch & Lomb, Inc. v. Alcon Laboratories, Inc., 64 F.Supp. 2d 233, 249 (W.D.N.Y. 1999). Plaintiffs also point to the fact that they have identified for Plaintiffs what confidential information Scott Pontone, Harry Pontone, Josephine Pesce and Joey Redmond had access to during their employment with Plaintiffs.[3] *3 I agree with Plaintiffs that the responses they have provided to these two interrogatories along with the information Defendants have been able to obtain through the depositions of Andrew Pontone, Steven Pontone and Michael Pontone are adequate with two exceptions. First, to the extent Plaintiffs have evidence of documents (allegedly containing confidential or trade secret information), that Scott Pontone allegedly took with him and/or obtained from other employees of Plaintiffs, including but not limited to Josephine Pesce and Joey Redmond, Plaintiffs should specifically identify those documents to Defendants. Second, given the recent limitation of Plaintiffs' damage claims to a subset of the 37 funeral homes originally identified as being at issue in this litigation, Plaintiffs should confirm to Defendants in writing whether or not they are relying on any individuals associated with any of the funeral home customers with respect to whom they are not seeking damages, in support of their misappropriation of confidential information/trade secrets claim against Scott Pontone. This will allow Defendants to focus any remaining discovery on those funeral home customers upon whom Plaintiffs are relying in part to prove their liability and damages claims. 2. Interrogatory No. 3: In this interrogatory, Scott Pontone seeks the identification of all confidential information or trade secrets allegedly misappropriated, taken, used or disclosed by Josephine Pesce or Joey Redmond. In response to this Interrogatory, Plaintiffs incorporated their response to Defendant Batesville Casket Company's (“Batesville”) Interrogatory No. 2 and also identified 10 additional individuals who allegedly possess knowledge or information supporting Plaintiffs' claims involving Josephine Pesce and Joey Redmond. My analysis of the alleged deficiency in this interrogatory response is the same as with Interrogatories No. 1 & 2 above. Plaintiffs' June 20, 2010 e-mail along with the information in Plaintiffs' response to Batesville's Interrogatory No. 2 is sufficient to respond to this interrogatory. Plaintiffs, however, should identify any documents (allegedly containing confidential or trade secret information) that they believe Josephine Pesce or Joey Redmond took with them when they left Plaintiffs' employment or obtained from other employees of Plaintiffs. Additionally, Plaintiffs should confirm whether or not they intend to rely on any individuals associated with any of the originally identified 37 funeral home customers at issue in this litigation with respect to whom they are not seeking damages to support their claims involving Josephine Pesce or Joey Redmond. 3. Interrogatory No. 5: In this interrogatory, Scott Pontone asked Plaintiffs to provide the computation of each category of damages Plaintiffs claim to have suffered as set forth in the Amended Complaint. In response, Plaintiffs refer to damage calculations that they produced to Defendants at Bates YORK-0453394-YORK-0453397. In their written response to the Motion to Compel, Plaintiffs also point out that they have provided both initial and supplemental damages calculations which identify the categories of damages they are claiming and the specific customers with respect to which they are claiming those damages. Additionally, Plaintiffs are producing Ed Wolford, their Vice President of Finance Administration, as a corporate designee regarding their damage claim. The information provided and documents produced by Plaintiffs since their response to Interrogatory No. 5 was served cure any alleged deficiency in their response to this interrogatory. Additionally, in connection with discovery disputes between Plaintiffs and Defendant Batesville relating to damages discovery, I recently conducted a mediated meet and confer session which resulted in agreements being reached under which Plaintiffs will be producing additional sales records relating to the 10 funeral home customers with respect to which they are claiming damages. That agreement is reflected in my July 20, 2012 e-mail to counsel for Batesville and counsel for Plaintiffs, a copy of which is attached hereto as Exhibit “E”. The additional documents Plaintiffs have agreed to produce, as reflected in the attached e-mail, should also be produced to the Pontone Defendants. *4 4. Interrogatory No. 6: This interrogatory asks Plaintiffs to describe in detail each and every act Plaintiffs contend constitutes a breach of Scott Pontone's fiduciary duties toward any of the Plaintiffs and each and every individual with knowledge or information of such alleged breaches. In response, Plaintiffs incorporated their answer to Interrogatory No. 4 and the allegations set forth in their Amended Complaint. In their written response to Scott Pontone's Motion to Compel, Plaintiffs also point to a seven page description set forth in their response to Request No. 10 of Defendant Batesville's Fourth Discovery Request to Plaintiffs. A true and correct copy of this description and response is attached hereto as Exhibit “F”. The discovery information cited by Plaintiffs and the discovery responses incorporated in response to this interrogatory are sufficient in my judgment to provide Defendant Scott Pontone with the necessary information he seeks. Additionally, counsel for Scott Pontone has had the opportunity to depose many of the individuals listed in Plaintiffs' response to Scott Pontone's Interrogatory No. 4 who allegedly possess knowledge of Scott Pontone's alleged wrongdoing. 5. Request for Production Nos. 1 & 2: These requests for production ask Plaintiffs to produce any and all confidential information or trade secrets allegedly misappropriated, taken, used or disclosed by Scott Pontone, Josephine Pesce or Joey Redmond. As noted in my decision regarding the related interrogatories requesting Plaintiffs to identify this same information (Interrogatories 1 & 3), if Plaintiffs believe there are specific documents (allegedly containing Plaintiffs' confidential or trade secret information) that Scott Pontone, Josephine Pesce or Joey Redmond actually took from Plaintiffs' offices or otherwise impermissibly obtained from Plaintiffs, Plaintiffs should identify and produce those documents, to the extent not previously produced in this case. 6. Request No. 3: In this request, Scott Pontone asked Plaintiffs to produce any and all documents that Plaintiffs intend to use in support of any of their claims against Scott Pontone, PCC and Batesville in this action. In their Response to the Motion to Compel related to this Request for Production, Plaintiffs note that a trial date in this case has yet to be set and, pursuant to the pretrial provisions and schedule to be established by this Court, Plaintiffs will identify which documents among the half million pages of documents they have produced to Defendants in this case, they intend to use at trial to support their claims. Generally, a request for production attempting to require a Party to identify each and every document they intend to rely upon a trial is viewed as overly broad and inappropriate. See, Miller v. Pruneda, 236 F.R.D. 277, 285 (N.D.W.V. 2004) (denying similar request based on party's right to receive a trial exhibit list under the scheduling order); Beham v. Rice, 238 F.R.D. 15, 19 (D.D.C. 2006) (denying similar request based on party's right to receive a trial exhibit list under the scheduling order); IBP, Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kansas 1998) (court noted that other discovery procedures such as depositions and production of documents better address these issues than broad based contention interrogatores). Several courts also have sustained objections to such broad ranging discovery requests in light of the pretrial requirement by which each Party must identify those documents it intends to introduce at trial. Id. See also, Bradley v. Lockheed Martin Corp., 2006 WL 1751801, *1 (S.D. Miss. June 20, 2006). D. PCC's Motion to Compel 1. PCC's First Discovery Request to Plaintiff, Matthews *5 a. Interrogatory No. 6: In this interrogatory, Defendant PCC asked Plaintiff to identify each and every member of Matthews' Board of Directors who participated in any discussion concerning any breaches of fiduciary duties or breaches of duties of loyalty by any Director, officer or employee of any of Plaintiffs from June 1, 2007 to the present. Plaintiff objected to this interrogatory as overly broad and seeking information not relevant to the claims and defenses at issue in this litigation or reasonably calculated to lead to discovery of admissible evidence. Subject to those objections, Plaintiffs identified Joseph Bartolacci as having discussions regarding Harry Pontone's alleged breaches of fiduciary duties at Board meetings. Plaintiff Matthews has also produced the minutes of the Board meetings at which Mr. Bartolacci discussed Harry Pontone's alleged breaches of fiduciary duty and those minutes identify each Board member present at the meeting. In its response to PCC's Motion to Compel, Plaintiff notes that the Pontone Defendants have already deposed Mr. Bartolacci on two occasions with a third deposition scheduled as per my June 15, 2012 Report and Recommendation. In my judgment, Plaintiff's answer to this interrogatory coupled with the deposition testimony of Mr. Bartolacci is a sufficient response. Identification of Board meetings over the past five years at which any officer or employee, other than the individual Defendants in this case, were alleged to have breached fiduciary duties to Plaintiff is too remote or collateral to be relevant to the claims and defenses at issue in this litigation. PCC's Motion to Compel, therefore, is denied. b. Request for Production Nos. 12, 13, 14 & 15: In these requests for production, PCC requests documents and communications regarding: (i) Matthews' alleged analysis and copying of Batesville's price lists; (ii) Matthews' alleged attempts to reverse engineer Batesville's caskets; (iii) Matthews' alleged copying of Batesville's products and/or promotions; and (iv) Matthews' alleged use of pictures of Batesville's caskets or other products in advertising and/or catalogs. In its response to these four related requests for production, Plaintiff notes that, in a letter dated June 1, 2012 to counsel for the Pontone Defendants, Plaintiff Matthews identified specific documents it had produced responsive to Request No. 12. With respect to the remaining three requests for production, Plaintiff asserts that the requested documents are neither relevant to the claims and defenses in this litigation nor calculated to lead to the discovery of relevant information. From my perspective, it appears Defendant PCC is seeking information regarding alleged anti-competitive behavior or other alleged misconduct by Plaintiff Matthews to support an as yet unasserted defense or counterclaim in this case. If and until Defendant PCC provides more information, such as references in discovery to date or other documents, to establish the relevancy of the information and documents requested in these four requests for production, PCC's Motion to Compel is denied without prejudice to resubmitting it with adequate supporting information to establish the relevancy of these requests. c. Request No. 16: In this request, PCC asks Plaintiff to produce copies of each and every identification of origin or source printed on Matthews' caskets that have been sold since January 1, 2010. Not surprisingly, Plaintiff objects to this request on the grounds that it is overly broad and seeks information that is neither relevant to the claims or defenses at issue in this litigation nor calculated to lead to the discovery of admissible evidence. Although Defendant PCC argues that this request is tailored to lead to evidence concerning causation and damages, in my view it seeks completely collateral information that is not relevant to the damage claims asserted by Plaintiff nor the defenses to those claims. I also fail to see how the identification of origin or source that may be printed on a Matthews' casket relates to “Matthews' methodologies concerning treatment of trade secrets and confidential information.” Thus, PCC's Motion to Compel is denied. *6 d. Request No. 17: In this request, Plaintiff seeks copies of all advertising, marketing letters, communications or correspondence with customers and/or press releases regarding any member of the Pontone Family or individuals with the last name Pontone. Plaintiff objected to this request on the grounds that it seeks information that is neither relevant to the claims or defenses in this litigation nor calculated to lead to the discovery of relevant information although they noted that documents responsive to this request relating to Harry Pontone were previously produced to Plaintiff. Defendant PCC's explanation of the relevance of this request is that it will show that “Plaintiffs continue to free ride on Scott and Harry's reputation by using not only their names, but also Harry's likeness in connection with customer events.” Again, I fail to see the relevance of whether or not Plaintiff Matthews uses the “Pontone” name in any communications with their customers, to the claims and defenses at issue in this litigation. Therefore, PCC's Motion to Compel is denied. e. Request No. 21: In this request, PCC seeks documents that Plaintiff contends Josephine Pesce printed or deleted as alleged in Paragraph 91 of the Amended Complaint. In their response, Plaintiffs identify a number of documents responsive to this request but also indicate that they will produce additional responsive documents to the extent they exist. Although I understand Plaintiff's argument that they may not have been able to recover all documents Josephine Pesce allegedly deleted from her computer, to the extent Plaintiff believes there are additional documents (other than those identified in their response to this request) that Ms. Pesce printed or deleted, Plaintiff should identify those documents by Bates number for PCC. If Plaintiff has not identified any additional documents, they should so state. f. Request No. 22: This request seeks all documents and communications discussing breaches of fiduciary duties by Scott Pontone or Harry Pontone. Plaintiff's response claims that documents responsive to this request have already been produced by Plaintiff Matthews. In some of my previous Reports and Recommendations, given the volume and extent of discovery in this case, I have ruled that the Responding Party need not identify all previously produced documents responsive to a discovery request by Bates number. Given the narrow scope of this request, however, in my judgment, Plaintiffs can and should identify those non-privileged documents (whether e-mail communications, Board minutes or otherwise) that specifically discuss alleged breaches of fiduciary duties by Scott Pontone or Harry Pontone. g. Request No. 23: This document request concerns documents relating to the retirement or departure of James Doyle and any agreement relating to the terms of his departure. Mr. Doyle was deposed during the discovery relating to Subject Matter Jurisdiction and, based on my June 15, 2012 Report and Recommendation, he will be subject to deposition again by Defendants, including but not limited to PCC. To the extent Mr. Doyle signed a separation agreement with Plaintiff Matthews in connection with his departure or retirement, Plaintiff should produce a copy of that Agreement to PCC as it may contain relevant provisions or information regarding, for example, Mr. Doyle's requirement to cooperate in connection with this litigation. With the exception of the Agreement, however, PCC's Motion to Compel is denied. h. Request No. 24: This request seeks documents and communications relating to each of the New York golf outings held by Plaintiffs in May 2010 and May 2011 in the New York metropolitan area. In their response, Plaintiff Matthews object to this request on relevancy grounds but indicates that it has previously produced responsive documents to Defendants. In its response to the Motion to Compel, Plaintiff Matthews also refers to its counsel's June 1, 2012 letter to counsel for PCC, in which he represents that Plaintiffs do not possess any responsive documents relating to the May 2011 golf outing. Given this representation, there is nothing to compel and PCC's Motion to Compel, therefore, is denied. *7 i. Request No. 25: This request seeks all documents and communications discussing the reasons for filing this lawsuit or the progress of the lawsuit. Plaintiff Matthews originally responded to this discovery request by objecting to its relevancy and because it allegedly seeks documents that are protected by privilege. PCC, in its Motion to Compel, represents that recent deposition testimony and other discovery has made it apparent that Plaintiff's made non-privileged communications to third-parties regarding the lawsuit. Plaintiffs deny that assertion. Again, based on the submission and response of the Parties, it is not clear that there is anything to compel. Nevertheless, to the extent Plaintiff Matthews possesses any documents discussing this lawsuit that were communicated to or provided to third-parties (and, therefore, are not privileged), they should be produced to Defendants. If Plaintiffs do not have any such documents in their possession, custody or control, they should so indicate in writing. 2. PCC's First Discovery Request to Plaintiff The York Group, Inc. a. Request No. 6: This is the same as Request No. 21 in PCC's First Discovery Request to Matthews and my analysis and ruling at page 13 of this Report and Recommendation with respect to that discovery request applies here. 3. PCC's First Discovery Request to Plaintiff Milso Industries Corporation a. Interrogatory No. 1: This interrogatory asks Plaintiff Milso to identify each and every customer to which it sold caskets or anything else in New York City or the New York metropolitan area from June 1, 2010 to the present. As Plaintiff notes in its response, Plaintiff Milso has limited its damage claims in this litigation to alleged lost sales relating to 10 funeral homes and alleged increased discounts provided to an additional 15 funeral homes. Given the narrowing and specification of Plaintiff's damage claims and the additional documents Plaintiffs have agreed to provide in connection with the resolution of the discovery issues relating to damages as between Plaintiff and Defendant Batesville (see, Exhibit “E” attached hereto), PCC's request that Milso produce documents relating to its sales to other customers in the New York City or New York metropolitan area not at issue in this litigation, is overly broad and not calculated to lead to the discovery of relevant information. Thus, PCC's Motion to Compel is denied. b. Request No. 6: This is the same request as PCC's Request No. 21 to Matthews and my analysis and ruling with respect to that request are incorporated herein by reference. 4. PCC's Second Discovery Requests to Plaintiffs a. Interrogatory No. 1: This interrogatory seeks damage information relating to certain specified funeral homes. Because Plaintiffs have now produced specific calculations of their alleged damages and the funeral homes with respect to which they are claiming damages based on lost sales or increased discounts, Plaintiffs have adequately responded to this interrogatory and PCC's Motion to Compel is denied. b. Interrogatory No. 2: This interrogatory asks whether Plaintiffs informed any of the attendees at a Matthews event held in October of 2010 as a celebration of the Pontone Family's 80 years in the death services business, that Plaintiffs had filed a lawsuit against Scott and Harry Pontone. In their response to this Motion, Plaintiffs argue that the Pontone Defendants had an opportunity to depose numerous representatives of Plaintiffs who attended this event and have asked about the subject matter of this request in those depositions. Frankly, I fail to see the relevance of the information sought in this interrogatory but the Pontone Defendants ability to inquire about this topic during depositions of Plaintiffs' representatives, both in the past and in upcoming depositions, is sufficient in my judgment. PCC's Motion to Compel, therefore, is denied. c. Interrogatory No. 3: This interrogatory asks Plaintiffs to identify each and every individual representative of the 37 funeral homes Plaintiffs originally put at issue in this litigation with whom they have discussed the allegations in the Amended Complaint against the Pontone Defendants or discussed Josephine Pesce or Joey Redmond. The interrogatory also asks Plaintiffs to provide the name of any Matthews representative who participated in those discussions and the date of those discussions. Plaintiffs respond to this Motion to Compel by arguing that the Pontone Defendants have had an opportunity to depose numerous representatives of Plaintiffs and have inquired about the subject matter in this request in those depositions. *8 Now that Plaintiffs have narrowed their “lost sales” damage claims to 10 funeral home owners and approximately 25 funeral homes (1 understand that many of the 10 funeral home owners own multiple funeral homes), in my judgment this interrogatory should be answered with respect to those funeral homes. Defendants, including PCC, are entitled to know whether any representative of Plaintiffs specifically discussed the allegations in the Complaint with any of the funeral home customers now at issue, particularly in light of the Affidavits filed by Defendants from those funeral home owners. Thus, although Plaintiffs can refer to deposition testimony in response to this interrogatory, to the extent they are aware of other meetings or conversations in which the allegations in the Complaint were discussed with specific individuals who own or operate any of the funeral homes at issue, Plaintiffs should provide that information to Defendants. PCC's Motion to Compel a more specific response to this interrogatory, therefore, is granted. d. Interrogatories Nos. 4, 5 & 6: All three of these interrogatories request damage information with respect to specific funeral home customers. Now that Plaintiffs have identified the specific amount of damages claimed with respect to a limited number of funeral home customers, Defendant PCC has the information it needs in response to these interrogatories. PCC's Motion to Compel, therefore, is denied. e. Request No. 1: This request again seeks documents and communications regarding alleged damages with respect to specific funeral homes. Again, now that Plaintiffs have produced their calculations for each funeral home with respect to which they are seeking damages and have agreed to produce the additional sales and revenue information identified in my July 20, 2012 e-mail attached hereto as Exhibit “E”, Defendant PCC has the necessary information responsive to this request. f. Request No. 2: This request seeks production of all sales and incentive agreements or other written agreements for the sale of caskets between any of the Plaintiffs and any funeral home in the New York metropolitan area which were in place on or after August 2010. In response to the Motion to Compel, Plaintiffs represent that they have produced the sales agreements for all funeral homes in the New York metropolitan area and, to the extent any of those agreements were redacted, Plaintiffs will be producing unredacted versions as directed in my July 12, 2012 Report and Recommendation. Thus, Defendant PCC will have the requested information responsive to this particular request for production. g. Request No. 3: This request seeks production of pictures, photographs, drawings or any images of Harry Pontone, Scott Pontone or Harry Pontone's parents that may have been used or considered for use in connection with an event held by Plaintiffs on or about October 2011 celebrating the Pontone Family's years in the death services business. Plaintiffs object to this request on the grounds that it is seeking information that neither relevant to the claims and defenses at issue in this litigation nor reasonably calculated to lead to the discovery of relevant and admissible evidence. In response, PCC claims that the requested information supports its claim that Plaintiffs somehow impermissibly continued to free ride on Scott and Harry Pontone's reputation in connection with Plaintiffs' customer events. I agree with Plaintiffs that the subject matter of this request is not relevant to any existing claim or defense in this litigation, although it may be potentially relevant to an unasserted defense or counterclaim on behalf of PCC. Assuming Plaintiffs are aware of any pictures, photographs or drawings used at the referenced October 2011 event which depicted Harry Pontone, Scott Pontone or Harry Pontone's parents, Plaintiffs, without prejudice to their arguments as to relevancy, should produce that picture, photograph or drawing. h. Request Nos. 4 & 5: These requests seek documents, including announcements, invitations, notices, articles, press releases or other documents, related to the Pontone Family's celebration held on or about October 2011 as apparently referenced in the deposition of Andrew Pontone on March 12, 2012. Although I agree with Plaintiffs that the requested documents appear to have marginal relevance to the claims and defenses in this case, I cannot say that they have absolutely no relevancy. Thus, to the extent Plaintiffs still have in their possession custody and control any documents related to this event, such as announcements, invitations, notices, articles or press releases, they should produce them to Defendant PCC. *9 With respect to Request No. 5, I agree with Plaintiffs that they need not create a document with the names of invitees or attendees at the celebration. If there is an existing document showing the invitees and attendees, however, Plaintiffs should produce that document. i. Request No. 6: In this request, Defendant PCC essentially asks Plaintiffs to conduct an ESI search of the pst e-mail files of 11 employees of Plaintiffs using certain broad search terms and a date range of June 1, 2007 through the present. In response, Plaintiffs objected to the temporal scope of the request but agreed to conduct the search queries using the terms specified by PCC for a more limited time period. Given my involvement in this case for the past year, in my judgment the time period used by Plaintiffs with respect to these search terms is reasonable as it encompasses the time period during which Plaintiffs claim Defendants committed their alleged wrongdoing. PCC's Motion to Compel, therefore, is denied. j. Request No. 7: This request covers handwritten notes and a notebook maintained by Plaintiffs' former employee, James Doyle, as well as minutes of any Board meetings of Milso and/or York from August 1, 2008 through Mr. Doyle's departure from those companies. In response to the Motion to Compel, Plaintiffs note that Mr. Doyle testified under oath that he reviewed his personal notebook and produced documents responsive to Defendants' discovery requests. Plaintiffs further agreed to review the notebook, through counsel, to identify non-privileged and responsive documents and, to the extent they have not been produced, to produce the same. Plaintiffs continue to object to the request, however, to the extent it seeks information from Mr. Doyle's notebook relating to (i) the coordination, control and direction of Milso's casket business; (ii) Batesville, other than with respect to Harry Pontone, Scott Pontone, Josephine Pesce, Joey Redmond, or the 37 funeral home customers Plaintiffs placed at issue; and (iii) Board meetings of Milso and/or York. In my judgment, Plaintiffs review and production of responsive pages of Mr. Doyle's notebook with the exception of the above three categories which are either too broad or mooted by the District Court's recent denial of Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, is appropriate. Defendant PCC's Motion to Compel, therefore, is denied. k. Request No. 8: In this request, Defendant PCC asks for all communications, documents and notices relating to meetings of the Board of Directors of York, including but not limited to, all such communications, documents and notices regarding Harry Pontone, sent to or from Harry Pontone or sent to or from Josephine Pesce from June 1, 2007 through September 30, 2010. Plaintiffs objected to this request as being overly broad and not calculated to lead to discovery of relevant information. PCC counters by arguing that documents related to Harry Pontone's notice of and attendance at York Board meetings is relevant to certain of Plaintiffs' allegations relating to his purported breaches of fiduciary duties in connection with his role on the Board of Directors of York. Although the request, as drafted, is too broad to the extent it goes beyond notices or Board minutes sent to or reflecting Harry Pontone's attendance and participation at the Board, in my judgment Plaintiffs should produce minutes or notices specifically related to Harry Pontone. PCC's Motion to Compel, therefore, is granted to this limited extent. *10 l. Request No. 9: This document request essentially asks Plaintiffs to produce all documents and communications to, from or including any member of the Board of Directors of Matthews (which would include certain of its senior officers) discussing the business activities of Milso Industries Corporation, Inc. Plaintiffs object to this request as being overly broad and relating to the issue of subject matter jurisdiction which this Court recently decided. In their response to the Motion to Compel, Plaintiffs also represent that any documents responsive to this request regarding Harry Pontone, Scott Pontone, Josephine Pesce, Batesville or the 37 funeral homes Plaintiffs placed at issue in this litigation have been previously produced. In my judgment, the request as drafted is too broad and communications generally regarding Milso's business are not relevant to the issues and defenses in this litigation. Conversely, communications and documents regarding Harry Pontone, Scott Pontone, Josephine Pesce, Batesville or the 37 New York metropolitan area funeral homes at issue in this litigation, are relevant and should be produced. Plaintiffs represent that they have produced those responsive documents and, therefore, Defendant PCC's Motion to Compel is denied. m. Request Nos. 10 & 11: These two requests essentially ask for documents and communications between either Plaintiffs' general counsel or outside counsel in this litigation and James Doyle related to his March 13, 2012 deposition, the March 16, 2012 hearing before this Court on the subject matter jurisdiction issue or his role as a witness in this litigation including his severance agreement and all records of expenses paid or reimbursed by Plaintiffs' outside counsel for Mr. Doyle's travel to Pittsburgh, PA for his deposition. In my judgment, most if not all of the requested documents are protected by the attorney work-product doctrine given Mr. Doyle's position as a former officer of Plaintiffs consistent with my ruling in connection with Mr. Doyle's earlier deposition. As a practical matter, because Mr. Doyle will be deposed again, counsel for PCC will clearly have the opportunity to question him regarding any expense reimbursement or other agreements to cooperate with Plaintiffs in connection with this litigation that PCC or other Defendants may wish to use to argue bias. PCC's Motion to Compel, therefore, is denied. n. Request No. 13: In this request, Defendant PCC seeks production of any Confidentiality Agreement from any of the Plaintiffs and a company named J&R entered into on or after August 1, 2008. Plaintiffs objected to this request on the basis that it is neither relevant to the claims and defenses in this litigation nor reasonably calculated to lead to the discovery of relevant and admissible evidence. The only relevance that counsel for PCC cites in her Motion is that certain witnesses testified oath that Milso was considering the acquisition of J&R and that for that purpose entered into a Confidentiality Agreement. In my judgment, whether or not Milso considered the acquisition of another company or entered into a Confidentiality Agreement with that company, is completely collateral to the issues in this litigation and, even under the broadest interpretation of relevancy, is not calculated to lead to the discovery of relevant and admissible evidence. Defendant PCC's Motion to Compel, therefore, is denied. o. Request No. 14: This request seeks all audited or unaudited financial statements from Milso and/or York from June 1, 2007 to the present In their response in opposition to the Motion, Plaintiffs assert that they have produced documents with the supporting data underlying their recent damages calculations and that the overall financial condition of Milso and York is not relevant. *11 Based on Plaintiffs narrowing of its damages claims in this case and the additional information it has agreed to produce relating to sales and revenue, as reflected in my July 20, 2012 e-mail to counsel for Batesville and Plaintiffs (attached as Exhibit “E” hereto), I agree that general financial information or statements covering Milso's and York's entire business are not relevant to the claims and defenses in this case. PCC's Motion to Compel, therefore, is denied. p. Request Nos. 15 & 16: In these requests, Defendant PCC seeks tax returns for 2010 from Milso, York and Matthews in the State of New York and various reports from independent auditors and/or third-party consultants made to the Matthews Board of Directors for the years 2007 to the present. In their response to these discovery requests and to the Motion to Compel, Plaintiffs generally object to the relevancy of the requested information. I agree with Plaintiffs that the Milso, York and Matthew tax filings in the State of New York in 2010 are not relevant to the claims and defenses in this litigation. The same is true of the part of Request No. 15 that seeks disclosure of any and all reports made to the Matthews Board relating to “internal control deficiencies and Sarbanes-Oxley 404 Reports” The only exception would be any reports identifying “internal control deficiencies” related to Milso's, York's or Matthews' treatment of confidential or trade secret information. To the extent any such report was made to the Matthews Board for the years set forth in this request, Plaintiffs should produce those documents or indicate in writing that it has no responsive documents. With this narrow exception, therefore, Defendant PCC's Motion to Compel is denied. q. Request No. 19: In this request, Defendant PCC seek all documents or communications informing anyone, other than Plaintiffs' lawyers, that Harry Pontone and/or Scott Pontone are being sued by Matthews and are no longer working for Matthews. This request, like the earlier information requested in Interrogatory Nos. 2 and 3 and Request for Production Nos. 3, 4 and 5 appear to relate to Defendant PCC's claim that Plaintiffs are somehow continuing to use the “Pontone” name to promote their business while at the same time suing Scott Pontone and Harry Pontone for breaches of fiduciary duty. As noted in my rulings with respect to those prior discovery requests, in my judgment, Plaintiffs alleged use of the Pontone name is a collateral issue or claim unrelated to the core claims and defenses in this litigation. Defendant PCC Motion to Compel, therefore, is denied. r. Request No. 20: This request seeks documents allegedly supporting a potential anti-trust claim against Plaintiffs Matthews relating to Matthews alleged use of exclusive contracts requiring customers to purchase its products. In their response, Plaintiffs notes that the contracts between Plaintiffs and the funeral home customers at issue in this litigation have been produced and that Plaintiffs have only asserted damages relating to a single customer that has a written sales contract with Plaintiffs. In my judgment, the requested discovery is not relevant to the claims and defenses in this litigation, but rather seeks information potentially relevant to some counterclaim or separate claim that Defendants PCC, Harry Pontone or Scott Pontone may wish to assert against Matthews. At this late date in discovery in this case, it is neither the time nor the place for such a fishing expedition. Defendant PCC's Motion to Compel, therefore, is denied. *12 s. Request No. 21: This request seeks all information concerning the attorney's fees and costs incurred by Plaintiffs in this case given Plaintiffs' request for fees in their Amended Complaint. Consistent with the procedure used by most courts in situations where attorney's fees are requested, this discovery should be deferred until and if this court makes a determination that Plaintiffs are entitled to an award of fees at which time the Court can fashion a procedure for a determination of an appropriate fee award. E. Defendant Harry Pontone' Motion to Compel 1. Harry Pontone's First Discovery Requests to Plaintiffs a. Interrogatory Nos. 1 &2: These interrogatories seek the same information as Interrogatory Nos. 1 and 2 addressed in Scott Pontone's Motion to Compel at pages 5 and 6 of this Report and Recommendation. My decision with respect to those interrogatories applies equally to these interrogatories. b. Interrogatory Nos. 4, 5 & 6: These three interrogatories request Plaintiffs to provide the computation of each category of damages being claimed and to identify the specific damages suffered as a result of Ms. Josephine Pesce's and Mr. Joey Redmond's departures from Plaintiffs' employment. As noted in earlier portions of this Report and Recommendation, Plaintiffs have now provided a complete computation of then alleged damages, including the category and source of those damages. They also have agreed to produce additional documents related to sales and revenues related to those funeral home customers for whom they are claiming lost sales as a result of Defendants' alleged misconduct. See, Exhibit “E” attached hereto. It is clear from Plaintiffs discovery responses to date and their computation of damages that they are seeking damages which they contend are the result of Defendants' collective behavior as set forth in the numerous counts in Plaintiffs' Amended Complaint. Although Defendant Harry Pontone has asked Plaintiffs to assign specific damages to specific events or acts set forth in Plaintiffs Amended Complaint (i.e., Josephine Pesce's departure and Joey Redmond's departure), Plaintiffs are free to seek damages collectively from the Defendants just as Defendants are free to argue that Plaintiffs' failure to segregate damages among the various Defendants and/or the various acts of alleged misconduct identified in the Amended Complaint bars Plaintiffs' recovery of damages. With those positions preserved, Defendant Harry Pontone's Motion to Compel with respect to these interrogatories is denied. c. Interrogatory No. 7: In this interrogatory, Harry Pontone asks Plaintiffs to specify the individuals and the specific conduct of such individuals that allegedly caused Plaintiffs to suffer damages in relation to each of the 37 funeral homes Plaintiffs originally put at issue in this litigation. In their response to the Motion to Compel, Plaintiffs note that, in response to Request No. 10 of Batesville's Requests for Admission Directed to Plaintiffs, Plaintiffs have specified 46 separate acts committed by the Defendants or by Josephine Pesce and Joey Redmond, all of which Plaintiffs allege caused the specific damages still at issue in this litigation. Although I understand Defendant Harry Pontone's position that Plaintiffs are required to identify specific conduct by specific individual with respect to each funeral home customer whose sales Plaintiffs allege were actually or potentially affected by Defendants' alleged wrongdoing, Plaintiffs have adopted a “collective” approach to liability and causation in connection with the claims asserted in the Amended Complaint. Ultimately, this Court will determine which of these positions prevails, but, given Plaintiffs' position, there is nothing to compel with respect to this interrogatory. Harry Pontone's Motion to Compel, therefore, is denied. *13 d. Interrogatory Nos. 8, 9, 10, 11, 12 & 13: Each of these interrogatories asks Plaintiffs to state with specificity how Plaintiffs claim they were damaged and in what amount with respect to specific funeral homes as a result of the conduct of each named Defendant, Josephine Pesce or Joey Redmond. For all the reasons set forth in my decision regarding Interrogatory No. 7, Harry Pontone's Motion to Compel is denied without prejudice to Harry Pontone or any other Defendants' ability and right to argue that Plaintiffs' alleged failure to tie specific acts of misconduct to specific customers precludes recovery of damages with respect to that funeral home customer. e. Interrogatory No. 14: In this interrogatory, Defendant Harry Pontone asks Plaintiffs to identify: (i) each and every instance of Mr. Pontone going “out of his way” to specifically solicit customers to buy from Batesville; and (ii) each and every instance of Harry Pontone soliciting customers for the benefit of Scott Pontone and Batesville under the alleged “ruse of selling insurance for the Whitmore Group”, as alleged in various paragraphs of Plaintiffs' Amended Complaint. The interrogatory also asks Plaintiffs to identify each and every individual with knowledge of such actions by Harry Pontone. In their response to this interrogatory, Plaintiffs cite Harry Pontone's activities at the 2011 Metropolitan Funeral Directors Association golf outing and at other industry conventions and events and his activities generally with respect to some or all of the 37 funeral home customers Plaintiffs identified as at issue in this litigation. Plaintiffs further identify at least nine witnesses with alleged information regarding Harry Pontone conduct. In their response to the Motion to Compel, Plaintiffs specifically identify five funeral homes which Harry Pontone allegedly solicited to buy from Scott Pontone and/or Batesville. In that response to the Motion, they also identify three additional witnesses with alleged knowledge of Harry Pontone's activities. Plaintiffs also note that many of the identified witnesses have been deposed extensively regarding the subject matter of this interrogatory. Based on Plaintiffs original response as supplemented by their response to this Motion, Plaintiffs have provided a sufficient response to this interrogatory in my judgment. As noted earlier with respect to the interrogatories requesting more specific damage and causation information, Harry Pontone is certainly free to argue that the evidence cited by Plaintiffs and the testimony of the witnesses they identify in answer to this interrogatory are insufficient to prove Plaintiffs' allegations against Harry Pontone. That, however, is an issue of proof and not a discovery issue. Harry Pontone's Motion to Compel with respect to this interrogatory, therefore, is denied. f. Interrogatory No. 15: This interrogatory seeks specific information related to allegations in Paragraph 105 of Plaintiffs Amended Complaint, including the identity of any and all customers that Harry Pontone allegedly visited on behalf of Scott Pontone or Batesville and the names of the individuals he allegedly met with. In their response to the Motion to Compel relating to this interrogatory, Plaintiffs incorporate their responses to Interrogatory No. 14 in which they identify specific funeral homes at which Harry Pontone allegedly solicited business for Scott Pontone or Batesville and specific individuals with alleged knowledge of those activities. In my judgment, this information is a sufficient response to this interrogatory, particularly when coupled with Harry Pontone's ability to depose those identified witnesses. *14 g. Interrogatory No. 17: In response to this interrogatory, Plaintiffs identified their employees who called, contacted or intended to call or contact Harry Pontone during the time period specified in the interrogatory. Harry Pontone's only claim of deficiency in his Motion to Compel is that Plaintiffs failed to provide the telephone numbers of the identified employees so that Harry Pontone can verify the alleged calls. In response to the Motion, Plaintiffs represent that they have previously provided the telephone numbers sought (see response to Interrogatory No. 2 of Scott Pontone's Second Discovery Request). Given Plaintiffs representation and their prior response to this interrogatory, Plaintiffs have provided the requested information. Harry Pontone's Motion to Compel with respect to this interrogatory, therefore, is denied. h. Interrogatory No. 18: In this interrogatory, Harry Pontone seeks the same information sought in Defendant Scott Pontone's Interrogatory No. 3. Consistent with my decision regarding Scott Pontone's Motion to Compel related to that interrogatory, as set forth on pages 6 and 7 of this Report and Recommendation, Plaintiffs should identify any documents (allegedly containing confidential or trade secret information) that they believe Harry Pontone, Scott Pontone, Josephine Pesce or Joey Redmond actually took with them when they left the Plaintiffs' employment. To that extent only, Defendant Harry Pontone's Motion to Compel is granted. i. Interrogatory No. 21: This interrogatory asks Plaintiffs to detail each and every act that Plaintiffs contend constitutes a breach of Harry Pontone's fiduciary duties as alleged in the Amended Complaint. In response to the Motion, Plaintiffs point to the seven page description they provided in response to Request No. 10 in Batesville's Requests for Admission Directed to Plaintiffs. I have reviewed that seven page description (attached hereto as Exhibit “F”) and consistent with my previous ruling with regard to similar interrogatories directed to Defendant Scott Pontone, I find Plaintiffs' response to be sufficient. Defendant Harry Pontone's Motion to Compel, therefore, is denied. j. Request No. 1: This request is essentially identical to Request for Production Nos. 1 and 2 in Scott Pontone's Discovery Requests Directed to Defendants. The Motion to Compel, therefore, is granted to the limited extent set forth in my decision regarding Scott Pontone's Motion to Compel as set forth on page 9 of this Report and Recommendation. k. Request Nos. 2 & 3: Both of these requests for production relate to Michael Pontone. In response to both the requests for production and Harry Pontone's Motion to Compel, Plaintiffs represent that they have produced any responsive, non-privileged documents. Based on my review of the requests and Plaintiffs response, there is nothing to compel and Harry Pontone's Motion to Compel, therefore, is denied. I also note that the relevancy cited by Defendant Harry Pontone for these discovery requests, i.e. that this lawsuit was “instigated by the Defendants' family members who harbor animosity against their relative defendants in this case” is certainly an argument the Pontone Defendants can make and has been a theme pursued during depositions in this case. It should not, however, be the subject of any further discovery in this case. l. Request No. 4: This request for production relates to communications by Brian Walters (Matthews' General Counsel) to third-parties concerning Harry Pontone, Scott Pontone, Josephine Pesce or Joey Redmond. In both their response to the request for production and to Harry Pontone's Motion to Compel, Plaintiffs state that they have produced any responsive, non-privileged documents. They specifically note that the October 10, 2010 letter from Mr. Walters to Mr. Metzger of the Whitmore Group, upon which Harry Pontone bases his Motion to Compel with, respect to this request, has in fact been produced. Plaintiffs may wish to identify the Bates number of that letter to the extent that counsel for Harry Pontone cannot locate it. Harry Pontone's Motion to Compel, therefore, with respect to this request is denied. *15 m. Request No. 5: This request seeks communications between anyone at the Plaintiff corporations and anyone at Whitmore Group regarding Harry Pontone, Scott Pontone, Josephine Pesce or Joey Redmond for a specified time period. Again, Plaintiffs, in both their response to the discovery request and to the Motion to Compel, note that they have produced any responsive, non-privileged documents. Defendant Harry Pontone does not cite any deposition testimony or other evidence to refute Plaintiffs representation and, therefore, his Motion to Compel is denied. n. Request No. 12: This request seeks documents supporting Plaintiffs' allegation of damage to goodwill, reputation, business relationships and ability to procure further business. To the extent Plaintiffs are seeking compensation for such damages, over and above the damages they have calculated for lost sales and increased discounts related to specific funeral home customers, they will be required to support those damage claims, through expert testimony or otherwise. In my judgment, therefore, the subject matter of this discovery request should be addressed in the Court's Pretrial Schedule and through Pretrial submissions. Defendant Harry Pontone, as well as the other Defendants, obviously will have an opportunity to seek summary judgment or file motions in limine with respect to these damage claims if Plaintiffs fail to adequately support them. Finally, to the extent Plaintiffs are not seeking monetary recovery for alleged damage to goodwill, reputation, business relationships and the ability to procure further business, they should so state. o. Request No. 14: This request asks Plaintiffs to produce a list of all accounts managed by or assigned to Harry Pontone from May I, 2007 to October 30, 2010. The disagreement between Defendant Harry Pontone and Plaintiffs with respect to this request relates solely to whether or not Plaintiffs should be required to specify by Bates numbers the documents they produced responsive to this request. Although generally, in my view, such designations should not be required when documents are easily searchable, I find this request to be fair and reasonable and would direct Plaintiffs to either identify the requested accounts or identify the documents they have produced which show the requested accounts. p. Request No. 16: This request is the same as Request for Production Nos. 1 & 2 that I addressed in connection with Scott Pontone's Motion to Compel at page 9 of this Report and Recommendation. Thus, my decision with respect to those requests for production applies equally to this request for production. 2. Harry Pontone's Second Discovery Request to Plaintiffs a. Interrogatory No. 2: After reviewing the content of this interrogatory and Plaintiffs response to the interrogatory, it is clear to me that Plaintiffs have adequately answered the interrogatory by noting the exact source of the 37 funeral homes Plaintiffs identified as being at issue in this litigation. Harry Pontone's Motion to Compel, therefore, is denied. b. Request No. 1: Because Plaintiffs specifically identified in answer to Interrogatory No. 2 (discussed immediately above) the source of the 37 funeral homes they initially placed at issue in this litigation, including the document from which those 37 funeral homes were selected, no additional response to this request is necessary. Harry Pontone's Motion to Compel, therefore, is denied. 3. Harry Pontone's Fourth Discovery Requests to Plaintiffs a. Interrogatory No. 1: This interrogatory asks Plaintiffs to identify all actions taken to mitigate alleged damages caused by Harry Pontone, Scott Pontone and PCC. Plaintiffs response to this interrogatory describes the actions Plaintiffs took to mitigate the alleged damages they are seeking in this case. Harry Pontone's Motion to Compel is based on Plaintiffs' failure to identify documents produced by them reflecting these mitigation efforts. In their response to the Motion to Compel, Plaintiffs identify the categories of document related to mitigation efforts and several specific documents, by Bates number. They also note that many of their witnesses have been questioned at deposition regarding mitigation efforts. *16 In my judgment, given the stage of discovery in this case, Plaintiffs' response is adequate to provide Defendant Harry Pontone with, the necessary information regarding Plaintiffs' mitigation efforts. Harry Pontone's Motion to Compel, therefore, is denied. b. Interrogatory No. 2: This interrogatory asks Plaintiffs to identify communications undertaken by any of the Plaintiffs regarding Harry Pontone's alleged breaches of fiduciary duty. In response to both the interrogatory and Motion to Compel, Plaintiffs note that most of the documents sought in this interrogatory are protected by the attorney-client or work-product privilege and are set forth on Plaintiffs' Privilege Log. They also note that the Plaintiffs' officers who would have communicated to the Plaintiffs' Board regarding Harry Pontone's alleged breaches of fiduciary duty have been extensively deposed on this topic. In his Motion to Compel, Harry Pontone focuses on deposition testimony by Matthews' general counsel that Matthews has committees to investigate and take action with respect to alleged breaches of fiduciary duty. Although I generally find Plaintiffs' response to this challenged discovery request to be adequate, to the extent there are written communications to, from or within a specific investigating committee, Plaintiffs should identify those documents (whether produced or on Plaintiffs' Privilege Log) or state definitively that no such documents exist. c. Interrogatory No. 3: This interrogatory asks Plaintiffs to identify each of the banks to which Milso's corporate records were sent from May 2007 to the present, as testified by Mr. Steven Nicola during the March 16, 2012 hearing before this Court on the Motion to Dismiss for Lack of Subject Matter Jurisdiction. I have reviewed Harry Pontone's arguments as to the relevancy of this information and Plaintiffs' response. I find that the requested information is not relevant to the claims and/or defenses in this case and could lead to collateral and unproductive subpoenas for unnecessary records. I am not aware, and Harry Pontone does not cite to any evidence, that Board minutes from the time period during which Plaintiffs allege Harry Pontone engaged in conduct that constitutes a breach of his fiduciary duty, are missing. Harry Pontone's Motion to Compel, therefore, is denied. d. Request No. 1: This request seeks all documents and communications to any Matthews' Board member regarding the alleged breaches of fiduciary duty by Harry Pontone and Scott Pontone. On its face, the request clearly seeks relevant documents. Plaintiffs respond that they have produced all responsive, non-privileged documents, including relevant Board minutes, and have listed on their Privilege Log those documents allegedly protected by the attorney-client or attorney-work product privilege. As noted in my earlier decision in connection with Interrogatory No. 2 in Harry Pontone's Fourth Discovery Request, if there was a specific committee that investigated the alleged breaches of fiduciary duty by Harry Pontone and there are documents relating to that committee's investigation, Plaintiffs should identify those documents (whether produced or on their Privilege Log). Beyond that, Plaintiffs have adequately responded to this request. *17 e. Request No. 2: As is the case with many of the discovery requests that are the subject of this Motion to Compel, Plaintiffs responded to this request by noting the documents they have produced that are responsive to the request. In my judgment, therefore, there is nothing to compel and Harry Pontone's Motion to Compel, therefore, is denied. f. Request No. 3: This request simply seeks production of any documents or communications identified in response to Interrogatory No. 1 relating to Plaintiffs efforts to mitigate damages. My analysis and decision relating to that interrogatory applies equally here. g. Request No. 4: This request for production seeks production of any documents identified in response to Interrogatory No. 2 relating to any internal investigations undertaken by Plaintiffs regarding Harry Pontone's alleged breach of fiduciary duty. My analysis and decision relating to Interrogatory No. 2 applies equally here. h. Request No. 5: This request seeks all documents sent by and to any member of Matthews Board of Directors regarding Milso's and/or York's business activities from May 27, 2007 to the present. In my judgment, it is overly broad and objectionable. Thus, Plaintiffs objections to this request are legitimate and well founded. Additionally, in the response to the Motion to Compel. Plaintiffs note that, to the extent the request seeks correspondence with Matthews' Board regarding Scott Pontone, Harry Pontone, Batesville and/or PCC, such documents have been produced. Harry Pontone's Motion to Compel, therefore, is denied. i. Request No. 6: In this request, Harry Pontone requests that Plaintiffs produce records sufficient to show what customer list “sits as an asset on the Milso books to date” as testified to by Joseph Bartolacci during the March 16, 2012 Subject Matter Jurisdiction Hearing before this Court. In response to this request and the Motion to Compel, Plaintiffs argue that the current customer lists are not at issue and are highly proprietary. They also argue that their damage claims do not put this customer list at issue. In my judgment, if Plaintiffs are alleging that this customer list is one of the trade secrets or items of confidential and proprietary information that Defendants Harry Pontone or Scott Pontone misappropriated, it must be produced. If Plaintiffs are not making that claim, as appears to be the case from their response to the Motion to Compel, there is no need to produce the list. j. Request No. 7: Consistent with my decision regarding Scott Pontone's Motion to Compel, in my judgment, Plaintiffs have adequately identified all of the individuals with alleged knowledge of any misappropriation or disclosure of confidential information by Scott Pontone and/or Harry Pontone and Defendants have had an opportunity to depose those individuals and determine the source and scope of their knowledge. Additionally, as determined in this Report and Recommendation and my earlier Report and Recommendation dated December 22, 2011, Plaintiffs, in my judgment, have adequately identified the alleged trade secret and confidential information on which they are basing their claims. k. Request No. 8: This request seeks records of the amortization payments being made by Milso for the customer list acquired from Old Milso. In my judgment, it is only relevant if Plaintiffs are seeking specified monetary damages for alleged damage to goodwill. If, as Plaintiffs note in their responses to the Motion to Compel, their damage claim does not put this customer list at issue (i.e., they are not seeking recovery for some general damage or injury to goodwill), there is no need to produce documents responsive to this request. Plaintiffs, therefore, should confirm in writing to Defendants whether or not they are seeking a specific damages award for alleged damage to goodwill. *18 I. Request No. 9: This request asks Plaintiffs to produce all records identifying any trade secret, confidential information, trademark or other asset transferred by Milso, York or Matthews to Matthews Resources, Inc. from July 2005 to the present. Not surprisingly, Plaintiffs objected to this overly broad request as seeking information that is not relevant to the claims and defenses at issue in this litigation nor reasonably calculated to lead to the discovery of relevant and admissible evidence. In his Motion to Compel, Defendant Harry Pontone argues that this information is relevant to Plaintiffs' damages claims related to alleged misappropriation of trade secret and confidential information by the individual Defendants. In response to this Motion, Plaintiffs note that they have provided specified calculations and documents regarding their complete damage claim and that the claim does not put assets transferred by Milso, York or Matthews to Matthews Resources, Inc. at issue. Given my earlier rulings that Plaintiffs have adequately identified the allegedly confidential information or trade secrets allegedly misappropriated or used by Defendants and based on my review of the specific damages Plaintiffs have now calculated and asserted in this litigation, the records sought in this request are not relevant nor calculated to lead to the discovery of relevant and admissible evidence. Harry Pontone's Motion to Compel, therefore, is denied. III. CONCLUSION As I noted in the introduction to this Report and Recommendation, my decision regarding these extensive Motions to Compel is designed to efficiently and fairly complete the protracted discovery process in this case by recognizing the substantial discovery that has taken place since the discovery requests at issue were served and the greater specificity Plaintiffs have provided with respect to their damage claims in this case. It is my hope that the Parties will adopt a practical approach to the recommended decisions contained in this Report and Recommendation and attempt to complete the discovery process consistent with these decisions. Respectfully submitted by: /s/ Mark D. Shepard Mark D. Shepard Special Discovery Master Babst, Calland, Clements and Zomnir, P.C. Two Gateway Center, 6th Floor Pittsburgh, PA 15222 (412) 394-5400 mshepard@babstcalland.com Footnotes [1] Because many of the discovery requests at issue request similar, if not identical, information from Plaintiffs on behalf of each of the three Pontone Defendants, it became apparent to me that the most efficient way to address these three related Motions to Compel would be in a single Report and Recommendation where, as demonstrated herein, I can apply my analysis consistently across similar discovery requests. [2] Because Defendant Scott Pontone's Motion to Compel involves only eight discovery requests, counsel for Plaintiffs did not provide the same comprehensive submission with their response. As a result, I have attached as Exhibit “C” the summary table submitted by counsel for the Pontone Defendants and I will address separately for each discovery request at issue Plaintiffs' arguments challenging Scott Pontone's deficiency claims. [3] Clearly Plaintiffs will have to prove that the information to which Scott Pontone had access is a trade secret and that Scott Pontone impermissibly used or likely disclosed such trade secrets to shift business away from Plaintiffs. Nevertheless, identifying the types of confidential and alleged trade secret information to which a former employee or officer had access and arguably would likely use in his new position with a competitor can support a “trade secrets/confidential information misappropriation” claim. See, Bimbo Bakeries USA, Inc. v. Botticella, 613 F.2d 102 (3d Cir. 2010) (applying “inevitable disclosure” doctrine in trade secrets misappropriation case); Pepsico, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) (same).