Plaintiff Osborn has asserted various claims in this case against three of her brothers stemming from her allegations that John M. Griffin and Dennis B. Griffin transferred out of the estate and/or trust of their father, John L. Griffin, six properties (hereafter the Properties) and shares of Craig Protein[3] that should have gone to Osborn and her sisters. (R. 187). Osborn also alleges that she has reason to believe John and Dennis Griffin misappropriated other unknown assets from the estate and/or trust. (Id., at ¶ 79). During the relevant time period, Defendants were also officers, directors and shareholders of Griffin Industries, a family-run business started by their father in 1941. Over the years, Griffin Industries expanded into a successful multi-million dollar business.

As part of its business, Griffin Industries used real property that was owned by John L. Griffin personally, or as trustee, or that he had transferred to the 1967 Trust. Osborn further alleges that Defendants John M. Griffin and Dennis Griffin failed to collect rents owed for Griffin Industries' use of certain properties held in the 1967 Trust, and did not collect rent owed for Griffin Industries' use of the Cold Spring property while it was an asset of the estate. In addition, Osborn alleges that upon John L. Griffin's death, the Properties and other assets were improperly transferred or sold out of his estate and/or trust in an effort to ensure that the Properties would remain available to Griffin Industries. Osborn alleges that since the Properties were transferred out of the estate and/or trust, Griffin Industries has begun to pay rent for its use of five of the Properties—payments that should have gone to her and her sisters. Specifically relevant here are her allegations that five Properties were improperly sold to Martom Properties, LLC (Martom), and that the Cold Spring Property was improperly transferred to Griffin Industries. Osborn also alleges that her father's shares of Craig Protein were improperly transferred to Griffin Industries, and she believes other assets may have also been improperly transferred. Osborn seeks compensatory damages, including her pro rata share of the allegedly misappropriated properties, lost rents and profits, as well as punitive damages (R. 187). She also seeks an accounting of all assets of the estate and trust.

*2 As part of discovery in this matter, Osborn served Griffin Industries with two subpoenas. The first subpoena sought documents only and the second subpoena sought documents and the deposition of Griffin Industries' records custodian.[4] (See subpoenas, R. 103-2). Griffin Industries served objections to both subpoenas on the basis that they are overly broad, unduly burdensome, irrelevant, and are protected by the attorney-client privilege, work-product doctrine and/or “other privileges or immunities,” and has refused to produce certain documents on these grounds; specifically, its tax returns, financial statements and insurance documents (other than the 2010 policy).[5] (R. 103-5, 191). While Griffin Industries ultimately provided some documents in response to the first subpoena, Osborn argues that many of the documents are heavily redacted; specifically, minutes of Griffin Industries' Board of Directors and merger documents.

Unable to extrajudicially resolve their dispute, Osborn filed the pending Motion to Compel seeking an order requiring Griffin Industries to produce, in unredacted form, documents responsive to its requests. Specifically, she seeks: minutes of Griffin Industries' Board of Directors; its tax returns and financial statements; merger documents; appraisals, valuations and insurance for any of the Properties; any documents evidencing improvements made to the Properties; and John L. Griffin's estate and trust documents.[6]

Federal Rule of Civil Procedure 26 sets forth the general provisions governing discovery and specifically sets forth the scope of discovery in civil matters: “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Rule 45 governs subpoenas issued to non-parties and permits the same scope and limitations of discovery as provided for under Federal Rule of Civil Procedure 26. See United States v. Blue Cross Blue Shield of Michigan, No. 10-cv-14155, 2012 WL 4838987, at *2 (E.D. Mich. Oct. 11, 2012); United States v. Elsass, 2:10-cv-334, 2012 WL 1409624, at *3 (S.D. Ohio Apr. 23, 2012) (scope of subpoena under Rule 45 is the same as the scope of discovery under Rule 26).

Osborn argues that Rule 45 does not permit a non-party, such as Griffin Industries, to redact or withhold documents/information on the basis of relevancy. While Rule 45 does not specifically address relevancy objections, relevancy is a factor to consider in light of the scope of discovery as set forth in Rule 26. See Elsass, 2012 WL 1409624, at *3; Travelers Cas. & Surety Co. of Am. v. Pascarella, 1:10-cv-157, 2011 WL 2149524, at *1 (E.D. Tenn. May 31, 2011) (relevance is a factor to consider when reviewing a motion to modify subpoena); 9 James Wm. Moore et al., Moore's Federal Practice § 45.41 [1][c] (3d ed. 2012 Supp.) (“[t]he person subject to the subpoena may raise an objection to production or inspection on any available legal ground, but the most common grounds are that the materials sought are irrelevant or privileged....”); but see Laborers Pension Trust Fund-Detroit &Vicinity v. CRS Poured Concrete Walls, Inc., No. 04-cv-74714-DT, 2006 WL 3804912, at *5 (E.D. Mich. Dec. 22, 2006)(acknowledging that it is unclear if non-party has standing to raise relevance objection to subpoena). Thus, relevancy is a factor to be considered.

*3 Relevancy at the discovery stage, however, is broadly defined and parties have a right to conduct discovery to determine the facts of their case. See Fed. R. Civ. P. 26(b)(1). Relevant information is not limited to the specific facts at issue, but may involve background or contextual information that aids a party in its understanding of the facts to enable the party to have “the fullest possible knowledge of the issues and facts before trial.” See Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”). Thus, “Rule 26 has been ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” United States ex rel. Robinson-Hill v. Nurses' Registry & Home Health, No. 5:08-cv-124-KKC, 2013WL2476568, at *1 (E.D. Ky. June 7, 2013) (citing Marsico v. Sears Holding Corp., 370 Fed.Appx. 658, 664 (6th Cir. 2010) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978))).

As another court in this Circuit has explained:

Ledford v. State Farm Fire & Cas. Co. (In re Sams), 123 B.R. 788, 792 (S.D. Ohio 1991) (quoting In re Lee Way Holding Co., Case No. 2-85-00661, Adversary No. 2-86-0175 (S.D. Ohio Nov. 30, 1988)).

The scope of discovery, however, is not unlimited and district courts have the discretion to limit its scope when they find that the discovery sought is overly broad or unduly burdensome. Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). Thus, while “a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted ‘to “go fishing” and a trial court retains discretion to determine that a discovery request is too broad and oppressive.’ ” Id. (quoting Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978)).

With these principles and parameters in mind, the Court will consider the dispute at hand.

In her second subpoena, Osborn requested Griffin Industries produce: “All minutes of the Griffin Industries' Board of Directors, Board sub-committee meetings, special meetings and/or actions without meeting, relating to any or all of the Properties from January 1, 1974 to the present.” (R. 103-2, at 24).[7] Osborn states that in response to this request, Griffin Industries produced only thirteen sets of heavily redacted minutes from 1968 through September 19, 1975. Griffin Industries asserts that it has produced all minutes in its possession that refer to either the Properties or Craig Protein. (R. 120, at 13). Osborn argues that she is particularly concerned that Griffin Industries is withholding documents because despite Griffin Industries' representation that it produced all of the Board's minutes and tax records referencing the properties (see R. 120-1, ¶¶ 3-4, 6-7), she has located documents of Griffin Industries that are responsive to the subpoenas but were not produced, including minutes of its Board that relate to one or more of the Properties and/or Craig Protein. (R. 133, at 8).[8]

*4 At the evidentiary hearing, Christopher Griffin, Griffin Industries' Deputy General Counsel who orchestrated the company's production, testified that after he searched the three storage areas within Griffin Industries for responsive documents,[9] including minutes of Griffin Industries' Board, he noticed that the Company did not have minutes in its possession for the approximate time period of 1975 to 1995.[10] (R. 249, at 83-95). When questioned by the Court as to the whereabouts of the missing minutes, defense counsel stated that Thompson Hine, a law firm that had represented Griffin Industries for many years beginning in 1959 (see R. 109-1, at ¶ 2), may have them. (R. 249, at 81).

With respect to the Board's minutes located at Griffin Industries, Christopher Griffin testified that he went page by page to determine whether each document was responsive to the subpoena, and Griffin Industries produced those minutes that he found responsive. (Id. at 84-86). Christopher Griffin further explained that in searching for responsive documents, he also went to the offices of Thompson Hine to review documents in its possession. (Id.). While he recalled reviewing some minutes at Thompson Hine's Offices, Christopher Griffin could not state whether Thompson Hine had a complete set of Griffin Industries' Board's minutes, and he did not know the date range of the minutes he reviewed. He explained that he reviewed boxes of documents at Thompson Hine, made copies of some documents, and understood that those documents have been produced to Osborn. (Id.at 89-92, 101). He could not recall if any of the documents he copied from Thompson Hine were minutes, but testified that if he found responsive minutes he would have produced them.

The subpoenas reach documents that are in Griffin Industries' “possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). The Advisory Committee has stated that “[a] non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” Fed. R. Civ. P. 45 advisory committee's note of 1991. “The “custody or control” standard for production of documents does not imply that the party must have actual possession of the materials. Rather, the mere ‘legal right to obtain the documents on demand’ constitutes sufficient possession for the purposes of discovery.”Sollitt v. KeyCorp., No. 1:09-cv-43, 2009 WL 723196, at *2 (N.D. Ohio Mar. 16, 2009) (citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)); see also Flagg v. City of Detroit, 252 F.R.D. 346, 352-53 (E.D. Mich. Aug. 22, 2008).

Here, Griffin Industries has not argued that it does not have the legal right to obtain its minutes from Thompson Hine. Thompson Hine has explained that Griffin Industries was a client of the firm for many years. (R. 109-2, at ¶ 2). Christopher Griffin testified that he thinks Mr. Solimine, the Thompson Hine attorney with whom he met, would make copies of the Board's minutes for him if he so requested. (R. 249, at 100). Accordingly, the Thompson Hine documents are sufficiently in Griffin Industries' possession and control, such that they must be produced if responsive to the subpoena.[11] While Christopher Griffin's Declaration states Griffin Industries produced all minutes in Griffin Industries' actual possession that referred or related in any way to the Properties (see R. 12-1, at ¶ 4), his testimony was not clear that he had reviewed all of the Board's minutes in Thompson Hine's possession.

*5 Further concerning is Christopher Griffin's explanation of how he determined whether a reference to a property in a particular county or city was a reference to a property at issue here or whether it was a reference to another property owned by Griffin Industries. (See R. 249, at 84-85; R. 146-1, at ¶ 8). For instance, he testified that if he saw a reference to “Jackson” in one of the Board's minutes, he would consider the date to determine whether it was in reference to Griffin's operating property in Jackson versus the Martom property it leased in Jackson because the property owned by Martom would not have been in Griffin Industries' Board's minutes since it was not owned by Griffin Industries. (Id. at 85). As the Court understands it, however, that is what Osborn is trying to determine: i.e., whether Griffin Industries did, in fact, make expenditures to improve the Properties before and/or after her father's death. Thus, a determination of whether the minutes are responsive cannot simply be determined by date.

Christopher Griffin also explained that if he was not sure whether a particular entry in minutes was responsive, he would confer with fellow in-house counsel, Ms. Gasser-Callow, and after considering the entire document for context, they would make such a determination. (Id. at 93, 105, 133). The Court is concerned that Christopher Griffin, along with counsel, are unilaterally making relevancy determinations based upon their interpretation of the documents.

The federal discovery rules permit an inspection of documents. See Fed. R. Civ. P. 34(a)(1)(A), 45(2)(A). Given the backdrop of this case, the level of distrust between the parties, the numerous discovery impasses to date, and the repeated error of interpreting relevancy questions on the side of not producing a document and/or heavily redacting documents to the point that they are virtually useless,[12] the Court will require Griffin Industries to gather all of the minutes of its Board from 1975 forward, regardless of where they may be stored, and provide a location for Plaintiff to inspect them. During her review of the minutes, Plaintiff may flag those minutes that she wants copied and produced, and Griffin Industries shall produce those minutes flagged within one week of the inspection. If Griffin Industries has a specific objection to producing a document flagged for production, it can bring it to the Court's attention in a step-two conference.

In her second subpoena, Osborn requested: “[a]ll appraisals, valuations, projections, and/or budgets from 1974 to the present which reflect values, estimated or otherwise, for any or all of the Properties.”[13] (R. 103-2, at 25). Osborn argues that in response Griffin Industries produced only one appraisal, which consisted of five heavily-redacted pages. (R. 107). Griffin Industries argues that Osborn is misstating its production, as it produced a forty-five page appraisal of the Cold Spring Property from 1987 and property tax documents that provided the assessed value of the Cold Spring property, including tax documents from 2009-2012 and a printout from the Property Valuation Administrator's website that provides the assessed values from 1995 to 2011. (R. 121-11, 121-12). Griffin Industries also produced Christopher Griffin's Declaration stating that he searched Griffin Industries' corporate records for any appraisals or valuations relating to the Properties, and Griffin Industries produced all responsive documents that were located in its files. (R. 146-1, at ¶¶ 4, 6, 7). Osborn again expresses concern that Griffin Industries is withholding documents based on her counsel's discovery of a 1985 appraisal of the Company that provided a valuation on certain properties it leased from John L. Griffin. (R. 133-2, at 18).

*6 Christopher Griffin's Declarations and testimony suggest that the search was limited to the documents found in Griffin Industries' actual possession, i.e., those found on site. While Christopher Griffin reviewed documents at Thompson Hine's offices, it is not clear that he requested to see any appraisals Thompson Hine may have on any of the Properties. (R. 249, at 140) (“I don't recall what I asked [Mr. Solimine]. I know I went over there to review documents.”).

To the extent there is any doubt, let it be clear that the Court expects Griffin Industries to produce all responsive documents in its actual possession and those in its “custody or control” as discussed herein. Such production shall include documents that are not just on Griffin Industries' premises, but those located at the offices of its attorneys, or any other third party from whom it has the legal right to obtain the document.

Here, it is not entirely clear that all appraisals of the Properties were produced. Christopher Griffin testified “if there was an appraisal on a property, we produced it.” (R. 249, at 126). Yet, in response to the Court's question to counsel regarding whether the appraisals had been produced, counsel responded “we produced some appraisals, Your Honor.” (R. 249, at 120) (emphasis added). Some of the confusion may stem from the fact that Defendants, Martom, and Griffin Industries all maintain some documents at the Griffin Industries' Cold Spring Property. Christopher Griffin orchestrated the search for documents for both Martom and Griffin Industries. (Id. at 150). When he located a responsive document, he provided it to counsel who then determined what entity or person would produce it. (Id. at 133). To the extent Griffin Industries has in its possession and control any appraisals or valuations for, or including, any of the Properties, it shall produce them to Osborn in unredacted form.

Osborn also requested “all documents relating or referring to any improvements and additions to any of the Properties.” (R. 103-2, at 26). She argues that the eighty-one pages she received in response, all dated between 1987-1990, relate only to a few of the Properties and cannot possibly be all of the documents Griffin Industries has in its possession and control regarding improvements to any of the Properties. Osborn noted that her skepticism is fueled by the fact that she did not receive any documents from Griffin Industries regarding the recent four million dollar addition to its Cold Spring Property.

Christopher Griffin testified as to his search efforts for improvement documents. (R. 249, at 121-23, 141-47). He testified that while Griffin Industries did not produce general maintenance documents, it did produce any documents in its actual possession that reflected improvements to a fixture or construction on any of the Properties, i.e., documents for the construction of Building B on the Cold Spring Property were produced. He explained that despite his search in all three storage areas of the company and a discussion with the head of accounting, he did not locate any documents regarding the four million dollar addition to the Cold Spring Property. (Id. at 144).

Again, Christopher Griffin limits his search to those documents in Griffin Industries' actual possession. Certainly, documents exist regarding a recent four million dollar addition to its headquarters. The fact that no documents were produced is concerning. Counsel has an obligation to instruct their client on its obligations under the Rules, and it appears counsel paid little attention to whether its client was complying with its obligations to locate documents outside of its actual possession. The Court is not finding Griffin Industries' conduct thus far is sanctionable, but its responsive conduct to date falls below what is required under the Rules.

*7 Griffin Industries' failure to comply with its obligations under the Rules is further illustrated by the fact Mr. Griffin admitted that his search did not include any search for electronic discovery. (Id. at 146-47). This is unacceptable. Osborn's subpoenas contained a broad definition for “communication” and “documents” that would encompass electronically stored information (ESI). Further, electronic discovery is permissible in modern litigation and Rule 45 discusses the duties of a person responding to a subpoena to produce electronically-stored information. Fed. R. Civ. P. 45(d)(1).

At the hearing, Christopher Griffin explained why Griffin Industries has not produced ESI, offering that while Griffin Industries is not a heavy electronic company, its servers require a lot of specificity to narrow the universe of data to search because of the number of employees that have email access. (Id. at 87, 129). He also explained that, based on his experience in other litigation, the cost of such a search is very expensive, as high as “six figures.” The Court was not presented with any specific evidence of costs, and has not had similar experience of such exorbitant expense being associated with a basic electronic search. More is required of Griffin Industries in responding to the subpoena seeking, inter alia, electronically-stored information.[14]

In an effort to reduce the burden on Griffin Industries, however, counsel andtheir respective information technology consultants/employees[15] will be ordered to meet within fifteen days of this Order to discuss how and where Griffin Industries retains its electronic data, and the method, scope and protocol to be used in conducting the electronic search. Within five days of this meeting, the parties shall file a joint status report of the plan they have developed for conducting the discovery as to ESI and the proposed timeline for its completion.

As for the costs that Griffin Industries may incur in conducting the electronic search, an initial search for electronic discovery should not create “significant” costs. Specifically, applying the cost-shifting analysis explained by the Court in its July 9, 2013, Order adjudicating the Motion to Compel Thompson Hine (R. 221), the Court finds Griffin Industries has an interest in the outcome of the litigation given it is alleged to have benefitted from the transfers of the Cold Spring Property and the Craig Protein stock. See Blue Cross Blue Shield of Michigan, 2012 WL 4838987, at *3 (If non-party substantially involved in underlying transactions and could have anticipated it leading to litigation, expenses should not be awarded). In addition, Griffin Industries, a multi-million dollar company, can more readily bear the cost of compliance than can Osborn, an individual. Thus, at this time, the Court will not order that the cost of the electronic search be shifted to Osborn.

In Osborn's second subpoena, she requested: “[t]he Company Disclosure Letter as defined in Section IV [of] the Agreement and Plan of Merger among Darling International, DG Acquisition Corp., Griffin Industries, Inc. and Robert A. Griffin (“Merger Agreement”), as well as all disclosures, schedules, exhibits and attachments to the Merger Agreement.” (R. 103-2, at 25). Griffin Industries argues that it produced the Merger Agreement, and the portions of the merger-related documents that referenced the Properties. It further argues that the redacted portions of the Disclosure Letter or merger-related documents are not relevant to this case.

*8 Since the filing of the Motion and Response, the Court has held that the documents sought by an identical request to Thompson Hine (R. 95-2, at 11), which also requested the Disclosure Letter and the attachments to the Merger Agreement, are relevant to the litigation as they appear reasonably calculated to lead to the discovery of admissible evidence regarding the transfer/sale of the Cold Spring property at issue. (See R. 221, at 9). Thus, the relevancy of these documents will not be addressed further.[16]

With respect to Griffin Industries' production of heavily redacted responsive documents, as discussed in footnote 12 above, the Court will order unredacted documents be produced. Griffin Industries shall produce the unredacted merger documents, including the Disclosure Letter and schedules, exhibits and attachments to the Merger Agreement, subject to the Confidentiality Agreement if it so chooses to designate any or all of these materials as confidential.

In her second subpoena, Osborn requested: “[a]ll state and federal tax returns which reflect or otherwise account for any or all of the Properties from 1974 through 2010, as well as all schedules and attachments thereto.”[17] (R. 103-2, at 25). She also requested

(Id. at 26). Griffin Industries did not produce its tax records or financial documents, arguing the requests are invasive, overbroad, and not reasonably likely to lead to useful information. (R. 120, at 18; R. 249, at 106).

“When the discovery material sought appears to be relevant, the party who is resisting production has the burden to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure.” U.S. ex rel. Robinson-Hill, 2013 WL 2476568, at *2 (quoting Groupwell Int'l (HK) Ltd. v. Gourmet Exp., LLC, 277 F.R.D. 348, 359 (W.D. Ky. 2011) (internal quotation marks and citations omitted)).

Here, Osborn seeks information from Griffin Industries on the valuation of any of the Properties for purposes of her claim for damages. Osborn has demonstrated that Griffin Industries' tax returns and financial statements, at least those she was able to locate from 1990, do contain information that may lead to admissible evidence regarding the value of one or more of the Properties. (R. 133-4, 133-5). Specifically, Griffin Industries' Schedule A, Form 720, for the 1990 tax year, provides aggregate values for buildings and land. (R. 133-4). Similarly, Griffin Industries' Consolidated Financial Statements as of December 31, 1990 and 1989 (R. 133-5), also contain aggregate valuation information for land and buildings. As Osborn argues, these values are likely to have some back-up documentation that may lead to a more specific valuation of one or more of the Properties and thus would be relevant to her claim for damages.

*9 In addition, Defendants are arguing that originally the deed on the Cold Spring Property was placed in the name of “John L. Griffin, Trustee” not for his own interest, but for the beneficial interest of Griffin Industries. (see R. 110). They argue that this theory is supported by evidence of how the Cold Spring Property was treated over the years by both John L. Griffin and Griffin Industries. Id. Thus, whether Griffin Industries included this property in its fiscal reporting over the years would be relevant to a central issue in this matter.

Similarly, Osborn has alleged that Dennis Griffin and John M. Griffin failed to collect rents for trust properties prior to John L. Griffin's death, and failed to collect rent for the Cold Spring Property after his death. The financial documents may lead to the discovery of admissible evidence regarding expenses, improvements and rental payments affecting one or more of the Properties, which would be relevant to the issue of ownership, control and value of the Properties.

Griffin Industries' argument that Osborn's broad requests for financial documents and tax returns are the same type of requests that the court found overly broad in Pioneer Resources Corp. v. Nami Resources Co., No. 04-465, 2006 U.S. Dist. LEXIS 38004, at * *5-6 (E.D. Ky. June 8, 2006), lacks merit. The Court in Pioneer Resources found that none of the requested financial documents had any relevance to the claims before the court. Here, on the other hand, financial documents and tax returns are likely to lead to the discovery of admissible evidence on the issue of the valuation of the Properties, and how Griffin Industries viewed its interest in the Cold Spring Property over the years, i.e., as Griffin Industries' asset or as a leased property. Thus, Pioneer Resources is distinguishable as the discovery sought here is relevant to Osborn's claims.

In addition, Griffin Industries argues that Osborn's requests are overbroad because they seek tax returns from 1974 to 2010, and financial documents from 1985 to the present. This time frame is not overly broad given its relevance to Osborn's claims: in 1974, the Cold Spring Property was transferred to John L. Griffin, Trustee (R. 187-3); in 1985, Mrs. Griffin, the parties' mother, died; in 1986, some of the Properties were transferred to the trust; and in 2010, two of the Defendants transferred the Cold Spring property to Griffin Industries.[18] Thus, the requests are not irrelevant or overbroad given the allegations and controversy at hand, and Griffin Industries shall produce the documents responsive to these requests.

In her second subpoena, Osborn requested Griffin Industries produce “[a]ll insurance policies, insurance applications and related documents or announcements provided to or received from any insurance carriers or their agents relating to any or all of the Properties.”[19] (R. 103-2, at 24). Osborn's counsel explained at the hearing that insurance documents are being sought because they often contain insurance appraisals and valuations. (R. 249, at 68). Griffin Industries produced its 2010 insurance documents,[20]but it has not produced any insurance documents prior to 2010, asserting that it would be burdensome for the Company to search for such documents.

*10 Christopher Griffin testified that Griffin Industries has several different types of insurance: general liability, auto, workers' compensation, property and casualty (R. 249, at 125-127). He explained that “insurance” is a broad term for the Company, and insurance documents could be in any of its three storage areas. (Id.). He testified that he thinks it would be “burdensome for Griffin Industries to go back and look for generally insurance-related documents from 1974 to present” because of all the different types of insurance the Company carries. (Id. at 126). Upon receipt of the subpoena, Christopher Griffin asked someone from the insurance department for the most recent policy and he contacted Griffin Industries' former broker, but they did not have any additional insurance files. (Id. at 125-26). When asked if he was aware of any appraisals for the Cold Spring property that would be attached to or specific for an insurance policy, Christopher Griffin testified that he was aware of only one appraisal that referenced the Cold Spring Property, which he stated had been produced in redacted form. (Id.at 127). Similarly, he testified he was not aware of any insurance that would relate specifically to the properties owned by Martom. (Id. at 126).

Mr. Griffin's testimony indicates that the Company may have read Osborn's request too broadly. The request specifically refers to insurance “relating to any or all of the Properties.” The request is seeking information regarding property insurance. (R. 103-2, at 24). Thus, there is no need to review cargo, auto, workers' compensation, casualty, or general liability policies. Christopher Griffin testified that Griffin Industries has one department that handles insurance. It is likely that further discussions with key members of that department will assist Mr. Griffin in locating property insurance documents that Griffin Industries may have in its possession or control relating to any of the Properties. Griffin Industries will be ordered to conduct a further search for property insurance documents, including ESI, that are responsive to this request.

In her first subpoena, Osborn requested Griffin Industries produce all documents and/or communications relating to the John L. Griffin Estate plans, the estate itself, and its assets. (R. 103-2, at 12). She also requested all documents and communications relating to the 1967 Trust. (Id.) Osborn explained that she has learned through discovery that Mr. Blair and other Griffin Industries' employees were involved in the administration of the trust both before and after her father's death. Yet, she has not received any documents from Griffin Industries regarding the trust and estate. (R. 249, at 131-32).

Christopher Griffin testified to his physical search of Griffin Industries for trust and estate documents. (R. 249, 118-20, 133-39). These efforts were extensive, and covered all three storage areas where Griffin Industries maintains documents. He testified he located one box of trust and estate documents, and those documents were turned over to counsel for production.

Again, some of the confusion appears to stem from the fact that Defendants, Martom, and Griffin Industries all maintain some documents at the Griffin Industries' Cold Spring Property. During Christopher Griffin's search for responsive documents, he found a box of John L. Griffin's estate and trust records, and he gave them to counsel. Counsel reviewed the documents, determined they were the records of the administrators and trustees, and produced them with Defendants' production. (Id. at 133). Christopher Griffin testified that he did not find any other documents regarding John L. Griffin's estate and/or trust during his physical search.

While Christopher Griffin's physical search of the premises was extensive, he admitted he had not conducted an electronic search for responsive documents, and it is not clear that he searched trust and estate documents that may be located at the offices of Thompson Hine or any other third party that may have possession of documents that Griffin Industries has an obligation to procure under Rule 45. (R. 249, at 140). With respect to ESI, Griffin Industries' explained that there is not likely to be ESI regarding the administration of John L. Griffin's estate and trust because the Company was not heavily electronic in 1995. While that may be true, the estate was reopened in 2010, and therefore it is reasonable that ESI exists that would be responsive to this request. Thus, the electronic search outlined in Section A.2 above shall also include information that would be responsive to this request.

*11 As to responsive documents that may be located at the offices of Thompson Hine, Thompson Hine was also served with a subpoena that requested all trust and estate documents. (R. 98-2, 98-5). The Court limited Thompson Hine's obligations under the subpoena to a review of documents contained in four boxes, an electronic search, and a listing of labels affixed to the redwells and subfolders contained in the remaining thirteen boxes. (See R. 221, at 7). Thompson Hine has now provided its responsive documents and/or a privilege log with respect to those documents. To the extent the documents in Thompson Hine's offices have already been searched, the Court will not require an additional search. If Osborn thinks that the list of labels on the files contained in the remaining boxes indicates responsive documents may be found therein, she should bring this to the Court's attention utilizing the three-step procedure for resolving discovery disputes.

Osborn seeks to have Griffin Industries sanctioned for abusive discovery practices under Rule 45(e)[21] and the Court's inherent power.[22] (R. 135, at 10). Osborn's request stems from Griffin Industries' representation that it produced all of its responsive minutes of its Board, appraisals, and tax records (see R. 120-1, ¶¶ 3-4, 6-7), yet she was able to locate responsive documents that were not produced. (R. 133). Christopher Griffin explained that upon review of the records attached to Osborn's Reply (id.), he conducted a second search looking specifically for the records possessed by Osborn. His second search did not reveal these records. He states that the records were not “withheld,” but simply not found. (R. 146-1, at ¶ 4).

As explained above, Christopher Griffin testified at the hearing to his search of Griffin Industries' premises, which was extensive. He also explained that Griffin Industries does not archive its documents permanently, but purges them after a period of time. (R. 249, at 137). However, while he testified he reviewed documents located at Thompson Hine, he could not recall what documents he asked to review or the nature of those he did review. (R. 249, at 140-41). Nor did he conduct any search for ESI. Christopher Griffin's testimony is found credible, but his efforts to date on behalf of his employer do not fulfill Griffin Industries' obligations under the Rules for compliance with the subpoenas.[23] While by this Order Griffin Industries is being directed to take further actions to respond to the subpoenas, the Court does not find that either Griffin Industries or Christopher Griffin[24] have acted in bad faith, vexatiously, wantonly or for oppressive reasons. The Court declines to hold Griffin Industries in contempt, and consideration of sanctions is not warranted based on the circumstances presented in the briefing and at oral argument.

*12 For the reasons stated herein, and the Court being otherwise sufficiently advised,

IT IS ORDERED as follows:

1. Plaintiff Osborn's Motion to Compel the Production of Documents from non-party Griffin Industries (R. 103) is hereby granted in part, consistent with this Memorandum Order. Counsel and their respective IT consultant/employee shall meet within fifteen (15) days, or as otherwise agreed, to discuss the form and sources of storage and establish search criteria and protocol for the production of ESI. Plaintiff Osborn and non-party Griffin Industries, by and through counsel, shall file a joint status report within five (5) days of their meeting, outlining their ESI discovery plan and the timeline for its completion. In addition, Griffin Industries shall compile in one place its Board minutes from 1974 and provide Plaintiff an opportunity to inspect them within twenty (20) days. As to other documents ordered produced herein, Griffin Industries shall produce such documents consistent with this Order within twenty (20) days. Osborn's request for her fees and costs associated with filing this Motion is denied.[25]

2. Plaintiff Osborn's Motion to Show Cause why Griffin Industries Should not be Held in Contempt of Court and Sanctioned (R. 135) is hereby denied.