On January 15, 2016, Wright Medical filed a motion to compel Beijing Fito to supplement its document production by using certain search terms to locate responsive documents. (ECF No. 57.) Beijing Fito responded in opposition on February 1, 2016. (ECF No. 59.) On March 7, 2016, after briefing by the parties and a hearing, the court denied the motion without prejudice. (ECF No. 72.) By denying the motion without prejudice, the court allowed Wright Medical to renew its motion if it could later produce evidence that Beijing Fito's document production methods were deficient. (ECF No. 72.)

In the ensuing period, Wright Medical continued to challenge Beijing Fito's discovery efforts, culminating in the filing of the motions at issue here. Wright Medical contends that Beijing Fito's belated production of approximately 300 documents after the court's order on the first motion to compel represents substantial evidence that Beijing Fito's initial document production was deficient. (See ECF No. 74-1 at 7.) Additionally, Wright Medical claims it has received unsatisfactory responses to certain interrogatories, despite multiple rounds of responses and revisions. (See id.at 4.) Finally, Wright Medical was dissatisfied with its Rule 30(b)(6) deposition of Beijing Fito, claiming that its designees were unprepared and provided evasive responses. (See id. at 1.)

As relief, Wright Medical seeks:

(Id.) Additionally, Wright Medical asks the court to issue a protective order “to stay the 30(b)(6) deposition of Wright Medical until such time as [Beijing Fito] satisfies its discovery obligations and Wright completes the deposition of Fito's corporate representatives.” (ECF No. 75.)

*2 Beijing Fito refutes Wright Medical's characterization of its conduct and argues that the relief requested is unwarranted. (See ECF No. 86 at 1-3; ECF No. 85 at 1.) Beijing Fito contends that discovery has been difficult for both parties in this case, and that Wright Medical has likewise provided responses that have been late and have caused delays. (See ECF No. 85 at 1-2.) The proper solution, according to Beijing Fito, is for the parties to continue to work with each other to overcome these issues, which Beijing Fito argues are mostly related to language and cultural barriers. (See ECF No. 86 at 1-3.)

As an initial matter, Beijing Fito's contention that the motion to compel should be denied due to Wright Medical's failure to meet and confer prior to filing the motion, is without merit. The only authority cited by Beijing Fito is Kinnard v. Shoney's, Inc., 39 Fed.Appx. 313, 315 (6th Cir. 2002). There, the Sixth Circuit upheld the district court's denial of plaintiff's motion to compel where plaintiff's counsel did not submit a jointly signed statement, as required by a case management order particular to that case, prior to filing the discovery motion. In the Western District of Tennessee, pursuant to Local Rule 7.2(a)(1)(B), a party making a discovery motion must certify that it consulted with the other party and that they were unable to reach an accord. Wright Medical has satisfied this requirement. (ECF No. 74 at 3.) Therefore, Kinnard is inapposite. Moreover, Wright Medical's certification appears justified, as the record reveals numerous email exchanges and phone calls relating to these discovery issues (see, e.g., ECF No. 74, Exs. 5, 7, 21; ECF No. 86, Ex. B). “The meet-and-confer requirements of the rules were designed to eliminate unnecessary motion practice.” Taylor v. Midland Credit Mgmt., Inc., No. 1:07-CV-582, 2007 WL 2710802, at *2 (W.D. Mich. Sept. 13, 2007) (referring to the Fed. R. Civ. P. 37 requirement of a good faith attempt to confer). Beijing Fito has not established that Wright Medical's motion is unnecessary nor that Wright Medical has been derelict in any way in its duties to meet and confer prior to filing its motion.

Wright Medical requests that the court order Beijing Fito to supplement its ESI discovery responses by using search terms proposed by Wright Medical. This was the same relief sought by Wright Medical in its first motion to compel, where it argued that Beijing Fito's discovery efforts, which did not involve the use of any search terms, were unreasonable. (See ECF No. 57.) In denying that motion without prejudice, the court concluded that there was “insufficient evidence in the record at [that] time to justify the relief sought.” (ECF No. 72 at 1.) However, after the court's ruling on the initial motion, Beijing Fito took it upon itself to run simple search terms (e.g. “Wright”), resulting in the production of approximately 300 additional responsive documents. Beijing Fito concedes that these new documents should have been produced in response to Wright Medical's discovery requests, and could offer no reasonable explanation as to why they were not captured during Beijing Fito's initial efforts to locate and produce documents.

Pursuant to Federal Rule of Civil Procedure 26, a party “has the obligation to make ‘reasonable inquiry’ in responding to [an opposing party's] discovery requests.” Jarvis v. Mich. Bell Tel. Co., No. 08-CV-12262-DT, 2009 WL 2475581, at *2 (E.D. Mich. Aug. 11, 2009) (quoting Fed. R. Civ. P. 26(g)(1)). “Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.” Little Hocking Water Ass'n v. E.I. du Pont de Nemours & Co., 94 F. Supp. 3d 893, 906 (S.D. Ohio 2015) (quoting Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 WL 2987051, at *17 (S.D. Ohio July 1, 2014)). The parties have argued extensively over whether Beijing Fito has the ability to run advanced or complex searches, such as searches including connectors, as opposed to simple, single-term searches. However, by its own admission, Beijing Fito has the ability to run simple search terms and then outsource the results to a third-party vendor who can further narrow them by running complex searches. (ECF No. 86 at 9 (Beijing Fito discussing how it ran the simple search terms “Wright” and “WMT” to come up with approximately 2,000 e-mails that were then “separately processed by a third-party vendor” to remove duplicates and run additional search terms).)

*3 The court finds that the unexplained identification of the 300 new documents by Beijing Fito demonstrates that the initial process employed by Beijing Fito to locate responsive documents was deficient. Cf. Jarvis, 2009 WL 2475582, at *2 (finding that party had not adequately challenged the producing party's reasonable inquiry in circumstances where there was no direct evidence of documents that had not been produced). While search terms may not be a necessary component of discovery in every case, the totality of the circumstances suggest that they are necessary here in order to ensure Beijing Fito's electronic discovery efforts produce documents that are responsive to Wright Medical's requests. Therefore, the motion as to this issue is GRANTED.

At the conclusion of the first hearing, the court directed the parties to meet and confer as to a search protocol, including search terms, in order for Beijing Fito to move forward with this additional ESI discovery. At the second hearing, the parties reported that they had agreed on search terms and a protocol. Beijing Fito is ORDERED to produce responsive documents pursuant to the parties' agreement on a rolling basis as they become available, but in any event, by no later than July 18, 2016.

Interrogatory No. 2 asks Beijing Fito to identify its witnesses. Wright Medical contends that Beijing Fito has not adequately responded to what it believes is a straightforward interrogatory, and that Beijing Fito's untimeliness and constant revisions have prejudiced Wright Medical. Wright Medical requests that the court order Beijing Fito to identify all individuals it intends to have testify at trial and produce those individuals in Memphis for depositions. Beijing Fito argues that these witnesses, who are its employees and located in Beijing, should not be required to travel to Memphis, and instead should be deposed by video or telephone.

“When a dispute arises as to the location of a deposition, the court has wide discretion regarding designation of the time and place of the deposition.” Brasfield v. Source Broadband Servs., LLC, 255 F.R.D. 447, 449 (W.D. Tenn. 2008) (citing Fed. R. Civ. P. 26(c)(1)(B); Lomax v. Sears, Roebuck & Co., No. 99–6589, 2000 WL 1888715, at *3 (6th Cir. Dec. 19, 2000)). As a general rule, “the proper location of a plaintiff's deposition, including that of a corporate officer if the plaintiff is a corporation, is in the forum where the litigation is pending.” Scooter Store, Inc. v. Spinlife.com, LLC, No. 2:10-CV-18, 2011 WL 2118765, at *2 (S.D. Ohio May 25, 2011). The court notes, however, that “this is at best a general rule, and is not adhered to if plaintiff can show good cause for not being required to come to the district where the action is pending.” 8A Fed. Prac. & Proc. Civ. § 2112 (3d ed.). The court may also consider cost, convenience, and litigation efficiency. See Scooter, 2011 WL 2118765, at *2-4 (applying the above factors rather than the general rule in a case where “the plaintiff is not litigating in his choice of forum as a consequence of a defendant's successful motion to transfer venue”); Brasfield, 255 F.R.D. at 450 (applying similar factors rather than the general rule as to opt-in plaintiffs in Fair Labor Standards Act case).

Here, the court recognizes the potential pitfalls of conducting depositions via telecommunications technology and across time zones. On the other hand, there are inherent difficulties and expenses in traveling from Beijing, where all potential witnesses are located, to Memphis. Therefore, the court, at the first hearing, directed Beijing Fito to supplement its response to Interrogatory No. 2 by Tuesday, June 28, 2016, (i.e., prior to the second hearing) so that Wright Medical could be better informed about the relevant knowledge of each witness and possibly depose those witnesses with more limited knowledge by video. While the court understands that Beijing Fito timely served its supplemental response, it is still unclear exactly which witnesses will testify at trial and the extent of their testimony.

*4 Based on the present record, the motion as to this issue is GRANTED. Beijing Fito has not demonstrated with any specificity why any potential witnesses should not be required to appear in Memphis for his or her deposition. Thus, the court will adhere to the general rule that a plaintiff's depositions should take place in the forum where the litigation is pending. Beijing Fito is ORDERED to produce its employee-witnesses in Memphis for deposition.

At the first hearing, Wright Medical informed the court that, while it still contends Beijing Fito's responses to Interrogatory Nos. 16 and 20 have been evasive, Wright Medical no longer requests that Beijing Fito be ordered to supplement these responses. Therefore, the motion to compel as to Interrogatory Nos. 16 and 20 is DENIED as moot.

The court finds that Interrogatory Nos. 18, 19, and 22 request fairly straightforward information from Beijing Fito. For example, Interrogatory No. 18 states, “Please identify every Wright product in your possession, custody, or control, stating for each such product its name and lot number, the date the product was purchased from Wright, and the actual amount you paid for the product.” (ECF No. 74, Ex. 6.) Interrogatory No. 19 requests similarly straightforward information regarding sales of Wright Medical products, and Interrogatory No. 22 asks basic information about the foot or ankle implants “designed, developed, copied, reproduced, and/or imitated” by Beijing Fito during a certain time period. (Id.)

Beijing Fito has attempted to respond to these interrogatories with business records pursuant to Federal Rule of Civil Procedure 33(d), including spreadsheets that are purportedly responsive to Interrogatory Nos. 18 and 19 (see ECF No. 74, Exs. 13 & 16) and blueprint drawings that are purportedly responsive to Interrogatory No. 22 (see id., Ex. 17).

Mullins v. Prudential Ins. Co. of Am., 267 F.R.D. 504, 514-15 (W.D. Ky. 2010). At issue here is a dispute between the parties as to whether Beijing Fito's responses are a “confusing mass of documents” that impose an undue burden on Wright Medical. (ECF No. 86 at 13.) Following the lead of Mullins when faced with a similar dispute, the court in Davis v. Hartford Life & Accident Insurance Co., No. 3:14-CV-00507-TBR, 2015 WL 7571905, at *4-5 (W.D. Ky. Nov. 24, 2015), reviewed a 164-page document provided by the defendant purporting to respond to certain interrogatories, and concluded that the plaintiff's argument that the information sought was not fully ascertainable had merit. Likewise, here, the court has reviewed the allegedly responsive documents, including Beijing Fito's “instructions” as to how to interpret the spreadsheets (ECF No. 74, Ex. 15), and finds that Beijing Fito has failed to meet its burden of sufficiently specifying how these documents are responsive and how a party unfamiliar with them could effectively ascertain the requested information.

*5 Finally, Beijing Fito relies on the general principle that a party is not required to create a document in response to an interrogatory. See Harris v. Advance Am. Cash Advance Ctrs., Inc., 288 F.R.D. 170, 172 (S.D. Ohio 2012). However, that principle is not applicable here. Wright Medical's interrogatories do not require Beijing Fito to create a document by, for example, demanding a chart or a graph—they simply require a response. Cf. id. (refusing to compel response to interrogatory that specifically required party to create a “list”).

For these reasons, Wright Medical's contention that Beijing Fito's responses to Interrogatory Nos. 18, 19, and 22 are inadequate is well taken, and the motion as to these interrogatories is GRANTED. Beijing Fito is ORDERED to produce complete responses to Interrogatory Nos. 18, 19, and 22 by July 18, 2016.

Pursuant to Federal Rule of Civil Procedure 30(b)(6), a party may notice a deposition upon an organization, at which point the named organization must “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” “It is well-established that an organization served with a Rule 30(b) (6) deposition notice is obligated to produce a witness knowledgeable about the subjects in the notice and to prepare that witness to testify not just to his own knowledge, but the corporation's knowledge.” Consol. Rail Corp. v. Grand Trunk W. R.R. Co., 853 F. Supp. 2d 666, 670 (E.D. Mich. 2012) (citing Prosonic Corp. v. Stafford, No. 07-cv-0803, 2008 WL 2323528 (S.D. Ohio June 2, 2008)). At issue here is a disagreement between the parties as to whether Beijing Fito's designated Rule 30(b)(6) representatives, Wayne Yue and Nannan Liu, were evasive and unprepared during their deposition that spanned four days, from May 2 through May 6, 2016.[1] As relief, Wright Medical seeks a court order compelling Yue and Liu to return to Memphis to continue the Rule 30(b)(6) deposition.

Wright Medical has presented numerous examples to the court to illustrate its point. For example, to illustrate Yue's inadequate preparation, Wright Medical cites an exchange where Yue admits to not knowing for certain how much Wright Medical product had been sold by Beijing Fito after the filing of the amended complaint in the case, which speaks directly to the issue of damages. (See ECF No. 74-1 at 18-19.) Beijing Fito responds by arguing that this is merely an instance of a witness failing to memorize complex financial figures, which it contends is not a requirement under Rule 30(b)(6). (See ECF No. 86 at 18.) Beijing Fito claims that most of the problems that arose during the deposition were due to language and cultural barriers, including the need to translate all questions and answers through an interpreter. (See id. at 16-17.)

The court has reviewed the deposition transcripts (ECF No. 93), and finds that the problems that arose during the deposition were not the result of systemic unpreparedness, significant obfuscation, or bad faith on the part of Beijing Fito. This is especially true in light of the absence of evidence to rebut Beijing Fito's contentions that it took significant measures to prepare its witnesses (see ECF No. 86 at 16) (as opposed to the more indirect examples of alleged unpreparedness from the testimony transcripts). Cf.Nacco Materials Handling Grp. v. Lilly Co., 278 F.R.D. 395, 400-01 (W.D. Tenn. 2011) (finding that party violated Rule 30(b) (6) duty to prepare its witness in case where very specific facts as to what preparation the party did and did not do were in the record). Rather, the court finds merit in Beijing Fito's assertion that most of the problems with the deposition were a result of discussing complex documents and topics in different languages through an interpreter. The following is an example of some of the translation problems between counsel and the witness:

(ECF No. 93-3 at 38-40.) Translation problems also arose between counsel and the interpreter:

(ECF No. 93-3 at 10.)

Despite these translation issues, as Wright Medical accurately asserts (seeECF No. 97 at 12), these difficulties and delays due to the language barrier should not be allowed to prejudice Wright Medical in obtaining the information sought pursuant to Rule 30(b)(6). Therefore, Beijing Fito must be required to produce designated Rule 30(b)(6) witnesses to continue the deposition. Remaining at issue as to the continued deposition are its length and scope, its location, and whether Beijing Fito must produce the same Rule 30(b) (6) witnesses or be allowed to designate new witnesses.

At the second hearing, the parties disagreed on the topics to be covered during a continued Rule 30(b)(6) deposition, with Wright Medical claiming that it should be allowed to cover any and all topics in the Rule 30(b)(6)notice, and Beijing Fito arguing that Wright Medical should only be allowed to cover topics that were not previously covered during the first deposition, such as the newly produced 300 documents. The court finds that Wright Medical shall be permitted to cover all topics contained in the notice, regardless of whether or not some of those topics may have already been covered. The parties have informed the court that the week of July 25, 2016, has been set aside for Beijing Fito's Rule 30(b)(6) depositions. The court fully expects the parties to complete those depositions by the end of that week.

*7 As to location, the court recognizes that the parties have already experienced significant difficulties in adequately conducting Beijing Fito's Rule 30(b)(6) deposition. Conducting the deposition remotely via video conference would only serve to exacerbate these problems. Because litigation efficiency and the fact that Beijing Fito chose this forum outweigh the added costs and inconvenience to Beijing Fito, the court finds that the Rule 30(b)(6) deposition shall be continued in Memphis.

Finally, Beijing Fito shall be allowed, if it so chooses, to designate different Rule 30(b)(6) designees, both for the sake of cost and convenience and also to provide Wright Medical with the most knowledgeable witnesses for addressing the deposition topics. The court is concerned that requiring the same designees to appear for the deposition will only result in further delay. Wright Medical's own briefing suggests that Beijing Fito should be ordered to produce Yue “along with other witnesses who can testify to the topics that Mr. Yue and Mr. Liu were not prepared to address.” (ECF No. 74-1 at 20.) The court cannot discern how Wright Medical would be prejudiced by additional Rule 30(b)(6) designees. Designating more than one Rule 30(b)(6) witness is common practice. Although Wright Medical suggests that a new designee might provide testimony that would be inconsistent with the prior Rule 30(b)(6) witnesses' testimony, it would seem the best way for Wright Medical to avoid inconsistent responses by two different Rule 30(b) (6) designees would be to not ask questions that have already been answered.

Considering all of the above, the court GRANTS in part Wright Medical's motion to continue the Rule 30(b) (6) deposition and ORDERS Beijing Fito to produce a Rule 30(b) (6) witness (or witnesses) in Memphis.

Wright Medical moves for the court to enter a protective order pursuant to Federal Rule of Civil Procedure 26(c). The court understands the relief requested to be quite limited: namely, that Wright Medical should be allowed to postpone the Rule 30(b) (6) deposition of its representatives until after Beijing Fito has complied with any obligations ordered by the court. The court finds this request, for the most part, to be reasonable in light of the nature of the discovery shortcomings on the part of Beijing Fito. Beijing Fito, as discussed above, did not undertake a reasonable inquiry as to its ESI discovery and failed to adequately respond to certain interrogatories, even after multiple rounds of conferences and revisions.

The general rule under Federal Rule of Civil Procedure 26(d) is that discovery may proceed in any sequence, and there is no formal sequence dictating that a particular party must go first or last. See Volkswagen AG v. Dorling Kindersley Pub., Inc., No. CIV A 05-CV-72654-DT, 2006 WL 2357543, at *1 (E.D. Mich. Aug. 15, 2006) (“Federal Rules of Civil Procedure do not permit one party to make unilateral decisions regarding the timing and sequence of depositions during the discovery phase of civil litigation.”). Although the court does not find it appropriate to order a sequence to the depositions in this case, Wright Medical should at least be given the opportunity to review Beijing Fito's yet-to-be-produced documents (as ordered above) before proceeding with the depositions of its (Wright Medical's) designees. Therefore, the motion for protective order is GRANTED in part and DENIED in part. It is ORDERED that Wright Medical be granted relief from producing its Rule 30(b)(6) representatives until Beijing Fito has completed its written discovery obligations as ordered pursuant to Sections II.A.2 and II.A.5 herein.

*8 Wright Medical moves the court to dismiss Beijing Fito's claim for tortious interference with business relationships (Count II), as a sanction for Beijing Fito's alleged discovery misconduct. The Sixth Circuit has recognized the sanction of dismissal as an extreme sanction. See Peltz v. Moretti, 292 Fed.Appx. 475, 478 (6th Cir. 2008) (quoting Reg'l Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 153–54 (6th Cir. 1988)) (stating that “[d]ismissal of an action for failure to cooperate in discovery is a sanction of last resort that may be imposed only if the court concludes that a party's failure to cooperate in discovery is due to willfulness, bad faith, or fault.”). The court finds that this severe sanction is clearly not warranted under the present set of facts. The motion to dismiss Beijing Fito's Count II is DENIED.

Alternatively, Wright Medical asks that the court require Beijing Fito to reimburse Wright Medical for its attorney's fees and expenses as a sanction. See Fed. R. Civ. P. 37(a)(5)(C) (“If the motion [to compel] is granted in part and denied in part, the court ... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.”). Here, the court finds fault with Beijing Fito as to certain actions and omissions regarding its discovery obligations—including not making a reasonable inquiry into its ESI discovery, inadequate interrogatory responses, and, perhaps, poor selection of Rule 30(b)(6) designees. However, the court believes that any potential prejudice to Wright Medical has been cured by the terms of this order. The court finds that the conduct of Beijing Fito, although deficient in various respects, does not justify the imposition of sanctions. The motion for sanctions, including reimbursement of attorney's fees and expenses, is DENIED.

For the above reasons, Wright Medical's motions are GRANTED in part and DENIED in part.

IT IS SO ORDERED.

Wright Medical also highlights the fact that Yue left Memphis only two and a half days into the scheduled four day deposition, leaving Liu to complete the deposition. The court does not address whether or not this departure was warranted, as this does not ultimately factor into the analysis as to these issues.