Johnson v. Charps Welding & Fabricating, Inc.
Johnson v. Charps Welding & Fabricating, Inc.
2017 WL 9516243 (D. Minn. 2017)
March 3, 2017
Brisbois, Leo I., United States Magistrate Judge
Summary
The Court denied Plaintiffs' motion to compel additional ESI, found that Defendants had fulfilled their discovery obligations with regard to the ESI, and denied Plaintiffs' motion to amend the scheduling order to overrule Defendants' objections to ESI discovery requests. The Court also noted that Plaintiffs had their own searchable electronic database of all documents produced.
Additional Decisions
Glen Johnson, et al., Plaintiffs,
v.
Charps Welding & Fabricating, Inc., et al., Defendants
v.
Charps Welding & Fabricating, Inc., et al., Defendants
Court File No. 14-cv-2081 (RHK/LIB)
United States District Court, D. Minnesota
Filed March 03, 2017
Brisbois, Leo I., United States Magistrate Judge
ORDER
*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636(b)(1)(A), upon Defendants’ Motion to Compel, [Docket No. 110]; Plaintiffs’ Motion for a Protective Order, [Docket No. 116]; Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122]; and Defendants’ Motion for Protective Order, [Docket No. 123]. The Court held a Motions Hearing on February 15, 2017, and thereafter the Court took the Motions under advisement.
For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion to Compel, [Docket No. 110]; GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion for a Protective Order, [Docket No. 116]; GRANTS IN PART AND DENIES IN PARTPlaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122]; and GRANTS Defendants’ Motion for Protective Order, [Docket No. 123].
I. Background and Statement of Alleged Facts
Plaintiffs Glen Johnson, Timothy Gillen, Kyle Jones, Steven Hall, Clayton Johnson, Mark Hubbard, Steve Piper, and Bill Patt are trustees of the Operating Engineers Local #49 Health and Welfare Fund. (Order, [Docket No. 31], 1 n.1). Plaintiff Michael Fanning is a fiduciary of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers. (Id.). Plaintiffs Joseph Ryan, Bruce Carlson, Glen Johnson, Frank Frattalone, Lee Hiller, Tony Phillipi, Greg Waffensmith, and Mark Ryan are trustees of the Local #49 International Union of Operating Engineers and Associated General Contractors of Minnesota Apprenticeship and Training Program. (Id.). Plaintiffs the Operating Engineers Local #49 Health and Welfare Fund (“Health and Welfare Fund”), the Central Pension Fund of the International Union of Operating Engineers and Participating Employers (“Central Pension Fund”), and the Local #49 International Union of Operating Engineers and Associated General Contractors of Minnesota Apprenticeship and Training Program (“Apprenticeship and Training Program”) are multi-employer, jointly trusteed employee fringe benefit plans. (Id.). The Health and Welfare Fund, the Central Pension Fund, and the Apprenticeship and Training Program are collectively referred to as “the Funds,” and the Plaintiffs in totality are referred to as “Plaintiffs.”
On June 23, 2014, Plaintiffs filed their Complaint in this Court, bringing suit against Defendants Charps Welding & Fabricating, Inc. (“Charps”); Kenneth Charpentier; Clearwater Energy Group, Inc. (“Clearwater”); C&G Construction (“C&G”), and Alpha Oil & Gas Services (“Alpha Oil”) (collectively, “Defendants”). (Compl., [Docket No. 1], 1). Plaintiffs sought “to collect unpaid fringe benefit contribution payments.” (Id. at 3).
Plaintiffs allege that three categories of collective bargaining agreements (“CBAs”) require Defendant Charps to make monthly contributions to the Funds for each hour worked by employees covered by the CBAs. (Id. at 4-5). The “Builders CBAs” are CBAs negotiated between the Builders Division of the Associated General Contractors of Minnesota and the International Union of Operating Engineers, Local No. 49. (Id. at 4). Plaintiffs allege that Defendant Charps was bound through the Builders CBAs from at least October 1, 2001, through at least April 30, 2016. (Id.). The “Pipeline CBAs” are CBAs negotiated between the International Union of Operating Engineers and the Pipe Line Contractors Association, which Plaintiffs allege bind Defendant Charps from at least May 31, 2005, through at least January 31, 2015. (Id.). The “Distribution and Utilities CBA” consists of the National Distribution and Utilities Agreement, which was negotiated between the International Union of Operating Engineers and the Distribution Contractors Association. (Id.). Plaintiffs assert that Defendant Charps was bound to the Distribution and Utilities CBA from at least March 5, 2008, through at least May 31, 2015. (Id.). The Builders CBA, the Pipeline CBAs, and the Distribution and Utilities CBA are hereafter referred to collectively as “the CBAs.”
*2 Plaintiffs also allege that Defendant Charpentier executed a Participating Agreement with Plaintiff Health and Welfare Fund (the “Welfare Participating Agreement”) under the terms of which Defendant Charps andDefendant Charpentier individually agreed to contribute to the Health and Welfare Fund. (Id. at 4-5). In addition, Plaintiffs allege that under the Welfare Participating Agreement, Defendants Charps and Charpentier were bound to contribute to the Health and Welfare Fund in accordance with the terms of Agreement and Declaration of Trust for the Health and Welfare Fund (“Welfare Trust Agreement”) and to be held to the terms of the Welfare Trust Agreement. (Id. at 5).
Plaintiffs argue that the Welfare Trust Agreement requires Defendants Charps and Charpentier to contribute to the Health and Welfare Fund, that the Restated Agreement and Declaration of the Central Pension Fund of the International Union of Operating Engineers (“Central Pension Trust Agreement”) requires Defendant Charps to contribute to the Central Pension Fund, and that the Restated Agreement and Declaration of Trust of the Apprenticeship and Training Program (“Apprenticeship Trust Agreement”) requires Defendant Charps to contribute to the Apprenticeship and Training Program. (Id. at 5).
Plaintiffs further allege that the Builders CBAs, the Welfare Trust Agreement, and the Central Pension Trust Agreement permit the Funds or their authorized agents to examine signatory employers’ payroll and employment records as deemed necessary by the Funds or their authorized Agents in order to ensure proper administration of the Funds and require Defendants Charps and Charpentier to furnish, on demand, all necessary employment and payroll records relating to their employees covered by the CBAs. (Id. at 7). The Builder CBAs, the Welfare Trust Agreement, and the Central Pension Trust Agreement provide for liability and liquidated damages if employers are delinquent on their contribution payments. (Id.).
In Count I of their Complaint, Plaintiffs assert that their authorized agent requested payroll and employment records from Defendants Charps, Clearwater, C&G, and Alpha Oil for January 1, 2008, through the present. (Id. at 8). Plaintiffs allege that Defendants Charps and Charpentier breached the terms of the CBAs, the Welfare Trust Agreement, the Central Pension Trust Agreement, and the Apprenticeship Trust Agreement by refusing to produce employment and payroll records for Defendants Clearwater, C&G, and Alpha Oil for the period requested (“the Audit Period”[1]). (Id.). Plaintiffs further allege that Defendants employed individuals during the Audit Period on whose behalf contributions may be owed, so Plaintiffs ask the Court to order Defendants to produce the records requested and to enjoin Defendants from further refusal to allow access to the records. (Id. at 9, 14). In Count II, Plaintiffs allege that Defendants Clearwater, C&G, and Alpha Oil are alter egos of Defendant Charps and/or Charpentier such that Defendants Clearwater, C&G, and Alpha Oil are also bound by the CBAs. (Id. at 9-10). In the alternative, in Count III, Plaintiffs assert that all Defendants form a joint venture, which similarly results in Defendants Clearwater, C&G, and Alpha Oil being bound by the CBAs. (Id. at 11-12). In Count IV, Plaintiffs bring a claim for liquidated damages for unpaid contributions under the CBAs and the Employee Retirement Income Security Act of 1974 (“ERISA”), 28 U.S.C. § 1001, et seq. (Compl. [Docket No. 1], 2, 12-13).
*3 Defendants filed a Joint Answer on July 17, 2014, generally denying Plaintiffs’ factual allegations and any liability, and asserting numerous affirmative defenses. (Answer, [Docket No. 8] ). Defendants also filed Rule 7.1 Statements, stating that Defendant Clearwater has no parent corporation, but is a corporate parent of Defendant Charps, Defendant Alpha Oil, and Defendant C&G. (Statements, [Docket Nos. 9-12] ).
On October 3, 2014, this Court held the Pretrial Conference and shortly thereafter issued a Pretrial Scheduling Order. (Pretrial Scheduling Order, [Docket No. 18], 1).
As part of discovery, Plaintiffs requested certain electronically stored information (“ESI”) from Defendants.[2] The earliest mention in the record before the Court appears to be a letter dated January 20, 2015, in which Defense counsel informed Plaintiffs’ counsel that a “very rough estimate of the email records alone you want us to search and produce amounts to over 300 [gigabytes] of data spread over hundreds of separate custodian’s email accounts,” and expressed concern for the cost and time related to fulfilling such a request. (Kappenman Aff., Exh. 43, [Docket No. 142-3], 96). In February 2015, in response to discovery requests, Defendants produced paper documents, after which the parties agreed that “emails can be withheld from production until further discussion/demand is made. Once the remaining responsive documents are produced and reviewed by [Plaintiffs], [Plaintiffs] will provide [Defendants] with key words [to perform a search] for the responsive emails.” (Id. at Exh. 36, [Docket No. 142-3], 78).
On February 19, 2015, Defendants served Plaintiffs notice of a Rule 30(b)(6) deposition scheduled for March 15, 2016; the 30(b)(6) Notice identified 16 topics as potential subjects for the deposition. (Lawrie Aff., Exh. A, [Docket No. 68-1], 2-5).
On March 6, 2015, Plaintiffs filed a Motion to Compel certain discovery responses. ( [Docket No. 22] ). Defendants opposed the Motion and, after a Motion Hearing, this Court granted in part and denied in part the Motion to Compel. (Mem. in Opp., [Docket No. 28]; Order, [Docket No. 31], 1). As relevant here, this Court held that at that stage of the proceedings, Rule 26 limited the scope of discovery to information relevant to Plaintiffs’ threshold claim that they are entitled to conduct the requested audit. (Order, [Docket No. 31], 7-9). Allowable discovery at that time therefore included only:
information and documents relevant to determining whether Plaintiffs are entitled to perform the requested audits – namely, the CBAs, governing trust documents, and documents and/or information that may have a bearing on their interpretation – and the issues of alter ego and joint venture through which Plaintiffs seek to assert their alleged right to audit against Defendant Clearwater, Defendant C&G, and Defendant Alpha Oil, which were not signatories to those documents.
(Id. at 9-10). Plaintiffs filed Objections to this Court’s Order, but the District Court overruled the Objections on July 8, 2015. (Objections, [Docket No. 33]; Order, [Docket No. 35] ).
On July 28, 2015, pursuant to a stipulation by the parties, this Court issued an Amended Pretrial Scheduling Order, extending the discovery deadline to April 1, 2016. (Amend. Pretrial Sched. Order, [Docket No. 40], 1-2).
*4 In September 2015, Defendants inquired as to whether Plaintiffs had created ESI search terms yet; Plaintiffs’ counsel responded that she would provide proposed search terms after an initial review of the paper documents already produced. (Kappenman Aff., Exh. 39, [Docket No. 142-3], 85). In November 2015, Defendants inquired again about ESI search terms, and Plaintiffs’ counsel replied that Defendants’ “non-compliance with their discovery obligations” had delayed creation of the search terms. (Id. at Exh. 41, [Docket No. 142-3], 90). Plaintiffs’ counsel offered to “provide a more comprehensive list of general terms in the meantime, which would be more burdensome for all parties,” but does not appear to have done so. (Id.).
On January 8, 2016, Defendants filed a Motion for Summary Judgment. (Mtn for SJ, [Docket No. 57] ). On March 11, 2016, Plaintiffs filed a Motion for Summary Judgment. (Mtn for SJ, [Docket No. 63] ). Over the next 2 months, the District Court received additional Memoranda, Declarations, and Affidavits in support of and in opposition to the Motions for Summary Judgment. ( [Docket Nos. 74-82, 84-87, 90, 93-101).
On March 15, 2016, Plaintiffs filed a Motion for Protective Order, seeking protection from Defendants’ noticed Rule 30(b)(6) deposition. (Motion, [Docket No. 65]; Order, Docket No. 92], 4). On April 19, 2016, the Court granted the Motion in part and denying it in part, limiting the topics on which Defendants could conduct their Rule 30(b)(6) deposition to only topics related to the threshold issues of Plaintiffs’ right to audit i.e., whether Defendants Clearwater, C&G, and Alpha Oil were alter egos of, or in a joint venture with, Defendants Charps and Charpentier. (Id. at 7-17). On May 9, 2016, Defendants deposed Plaintiffs’ Rule 30(b)(6) designee, Craig Siiro. (Kappenman Dec., Exh. 1, [Docket No. 140-1], 1-8).
The District Court held a hearing and, on June 27, 2016, the Court issued an order denying the Motions for Summary Judgment and expanding the scope of allowed discovery. (Amended Minute Entry, [Docket No. 104]; Order, [Docket No. 107] ). U.S. District Court Judge Richard H. Kyle held: “Whatever merit there may have been in requiring Plaintiffs to make a ‘threshold’ showing before entitling them to additional discovery, at this juncture the Court concludes that they have done so.” (Id. at 3-4, 4 n.2). As a result, this Court issued on July 6, 2016, a Second Amended Scheduling Order, setting completion of discovery as March 1, 2017. (Sec. Amend. Sched. Order, [Docket No. 108], 2).
On August 12, 2016, Plaintiffs served Defendants with a Request for Supplementation of Defendants’ Answers to Plaintiffs’ First Set of Discovery Requests. (Lawrie Aff., Exh. A, [Docket No. 127-1], 3-5). On September 9, 2016, Defendants informed Plaintiffs that Defendants were producing an additional 210 boxes of documents in supplemental response to Plaintiffs’ Document Requests, which would be available in Defense counsel’s office for Plaintiffs’ counsel’s review. (Kappenman Dec., Exh. 5, [Docket No. 113-1], 45-46). Defense counsel also stated that there were approximately 35 additional boxes of documents located in North Dakota and 35 boxes in Pennsylvania, also for Plaintiffs’ counsel’s review. (Id. at 45).
In an email dated October 2, 2016, Plaintiffs’ counsel asked whether the documents were separated or could be separated to segregate pre-2013 documents, and Defense counsel replied that the documents were “generally separate.” (Id. at 27). Plaintiffs’ counsel then asked whether all of the documents were responsive to Plaintiffs’ discovery requests, and Defense counsel responded that they were, but because of the breadth of Plaintiffs’ Requests, there might be documents included that Plaintiffs would not need to copy. (Id.). Defense counsel encouraged Plaintiffs’ counsel to review the documents before making copying arrangements. (Id. at 26).
*5 Plaintiffs’ counsel requested an inventory of the documents and that the documents be labeled. (Id. at 30). Although Defense counsel replied that the documents were being produced in the manner they were kept in the ordinary course of business and therefore Defendants did not need to label the documents, further organize them, or provide an index, on October 25, 2016, Defense counsel provided Plaintiffs’ counsel with an inventory. (Id. at 26, 38, 47). The Inventory consists of a spreadsheet listing the box number; company; year or years of the documents; the primary contents (i.e.,“Payroll – Timesheets,” “Payroll – QB Reports,” “Accounts Payable,” “Credit Card Receipts,” etc.); additional contents (in some of the boxes); the location of the boxes (if in North Dakota or Pennsylvania); and the Bates numbers for documents that had Bates numbers (not all documents). (Lawrie Aff., Exh. U, [Docket No. 127-3], 15-20).
Meanwhile, in an email dated October 19, 2016, Plaintiffs returned to the issue of the ESI. After acknowledging the previous agreement that Plaintiffs would provide search terms after review of the paper discovery documents, Plaintiffs’ counsel stated:
[W]ith respect to responsive email correspondence, the [Plaintiffs] would agree to limiting the production of e-mails to those containing key words that would be provided by the [Plaintiffs] once responsive documents had been produced by the Defendants and reviewed by the [Plaintiffs].... To date, there remains more than 250 boxes of responsive documents that have not been produced to be reviewed by the [Plaintiffs]. It is therefore impossible for the [Plaintiffs] to come up with meaningful search terms as previously discussed. While I understand that your client believes that it is impossible for such a complete production of correspondence to be made, the information I obtained indicates that a complete production is possible. As such, the [Plaintiffs] request that all electronic correspondence be produced.
(Id. at Exh. S, [Docket No. 127-2], 77). Plaintiffs’ counsel also suggested that Defendants create a list of proposed search terms reasonably likely to include all responsive documents and use that list to begin document production, contingent on the agreement that if Plaintiffs later provided additional search terms, ESI from those search terms would also be produced. (Id.).
Defense counsel responded that Defendants were willing to work with Plaintiffs to set an initial, later-revisable, list of search terms. (Id. at 76). Plaintiffs responded that if Defendants would stipulate to a 3-month extension of all deadlines in the operative Scheduling Order, Plaintiff “would, following a complete and appropriate production of documents that complies with the Rules, agree to provide search terms that could potentially narrow the production of correspondence.” (Id. at 75). Defense counsel replied that he was willing to work with Plaintiffs’ counsel to create search terms, but that it seemed most prudent to follow the agreed-upon plan of Plaintiffs reviewing the paper documents and then providing search terms. (Id. at 74).
By November 4, 2016, most of the boxes of paper documents at Defense Counsel’s office had been picked up by Plaintiffs’ copy service, the parties had arranged pickup of the documents in North Dakota, and Plaintiffs’ counsel had contacted a copy service about obtaining the documents in Pennsylvania. (Kappenman Dec., Exh. 5, [Docket No. 113-1] 61, 63-64). The production encompassed over 948,000 documents in 285 banker’s boxes. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 11).
In an email dated November 14, 2016, Plaintiffs provided Defendants with an initial list of search terms for the ESI, including: paid, employee, lease, purchase!, sale or sold, rent, transfer, exchange, equipment, between, through, decide or decision, debt, capital!, profit, budget, bid or estimate, allocation or allocate, bank, operators, union, benefit, all project names, all employees, fringe, loan, job, project, management, billing, report!, hours, availability, welders, and payroll rate. (Id. at Exh. Y, [Docket No. 127-3], 35-38).
*6 Two days later, Defense counsel emailed Plaintiffs’ counsel to clarify the search terms, and stated that after a required conference call with the vendor, data collection would take 2 to 4 days and indexing (to make the collection searchable) would take an additional 5-6 days. (Id. at Exh. Z, [Docket No. 127-3], 40). Plaintiffs’ counsel responded on November 17, 2016, explaining that the search terms “all project names” and “all employees” were indicators that the search terms should include the name of every project during the audit period and the name of each and every employee of Defendants. (Id. at Exh. AA, [Docket No. 127-3], 42).
On November 22, 2016, Defense counsel informed Plaintiffs’ counsel that the vendor had stated that Plaintiffs’ understanding of the search terms “all project names” and “all employees” “would necessarily result in a data set coextensive with the universe of data.” (Id. at Exh. BB, [Docket No. 127-3], 44). The total size of the data set of ESI collected by the vendor was approximately 1,300 gigabytes of data, including 6,794,655 documents. (Kappenman Aff., [Docket No. 131], 2).
In an email dated November 30, 2016, Defense counsel asked Plaintiffs’ counsel to send him, on a thumb drive, “a copy of whatever paper documents you have copied from our production.” (Lawrie Aff., Exh. F, [Docket No. 138-1], 72). Plaintiffs agreed to provide the electronic copy only if Defendants paid half the amount Plaintiffs had spent to scan the paper documents and create the electronic set of documents. (Id. at 71-72). Defense counsel objected to the request to split the cost. (Id. at 71).
On December 23, 2016, Defendants’ counsel emailed Plaintiffs’ counsel a Hit Report on the ESI search terms, which identified each search term and the number of items resulting. (Lawrie Aff., Exh. CC, [Docket No. 127-3], 46-50; Mem. in Supp. of Defs’ Mtn for Prot. Order, [Docket No. 128], 3 n.1). The report did not include searches related to every employee’s name or every project name. (Id.). Even without searching for all employees or all projects, however, the search terms captured 6,207,538 items, approximately 91% of the entire data set. (Id. at 4; Kappenman Aff., Exh. 4, [Docket No. 131-1], 11).
On January 5, 2017, Defense counsel proposed search terms for a new report. (Id. at Exh. 6, [Docket No. 131-1], 13-14). Plaintiffs’ counsel responded by email on January 12, 2017, but did not address the proposed search terms, instead stating: “Consistent with your obligations under Rule 26, please produce the responsive documents pursuant to the search terms that your client believes are not overly broad.” (Id. at 13). Plaintiffs’ counsel also asserted that the parties could continue to work to narrow the other search terms. (Id.; Lawrie Aff., Exh. DD, [Docket No. 127-2], 52). Defense counsel agreed, but warned Plaintiffs’ counsel that “as a result of doing the production in stages since we were unable to resolve the search term issue, we are likely to incur an additional $10,000 to $20,000 a month in fees to the ediscovery vendor. We will be looking to shift that cost to your side for failing to properly cooperate.” (Id.).
On January 25, 2017, Defendants served Plaintiffs another Notice of Rule 30(b)(6) Deposition (“the Second 30(b)(6) Notice”), noticing the deposition for February 28, 2017. (Lawrie Aff., Exh. C, [Docket No. 119-1], 28-31).
On January 30, 2017, Defendants made initial production of ESI. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 13).
On February 1, 2017, the parties filed the four present Motions.[3]Defendants filed the present Motion to Compel, [Docket No. 110], asking this Court to (1) order Plaintiffs to produce certain documents in response to Defendants’ Document Request Nos. 2 through 9, (2) order Plaintiffs to provide Defendants at no cost with an electronic copy of documents Defendants provided to Plaintiffs in paper form in response to Plaintiffs’ discovery requests; and (3) award Defendants costs and attorney’s fees incurred in bringing this Motion.[4] (Defs’ Mtn to Compel, [Docket No. 110], 2; Mem. in Supp. of Defs’ Mtn to Compel, [Docket No. 112], 2-8).
*7 Second, Plaintiffs filed the present Motion for Protective Order, [Docket No. 116], in which they ask the Court to issue a protective order providing that Plaintiffs are not required to produce designees for a second Rule 30(b)(6) deposition. (Mem. in Supp. of Plfs’ Mtn for Prot. Order, [Docket No. 118], 2). Plaintiffs also request that this Court award the costs and attorney’s fees incurred in bringing their Motion. (Id. at 17).
Third, Plaintiffs filed a Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asking the Court to: (1) order Defendants to organize and label all responsive documents produced in 2016 in the bankers boxes; (2) overrule Defendants’ objections to Plaintiffs’ discovery requests regarding ESI; (3) order Defendants to fully respond to all of Plaintiffs’ Interrogatories and supplement any previous responses to include information through the present day; (4) order Defendants to similarly supplement their Responses to Plaintiffs’ Requests for Production of Documents; (5) amend the Second Amended Scheduling Order; and (6) award Plaintiffs the attorney’s fees incurred in bringing the Motion. (Id. at 2).
Fourth, Defendants filed a Motion for Protective Order, [Docket No. 123], which asks the Court to issue a protective order holding that Defendants do not have to further produce the ESI also at issue in Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order. (Defs Mtn for Prot. Order, [Docket no. 123], 2; Mem. in Supp., [Docket No. 128], 6-8).
II. Standards of Review[5]
Federal Rule of Civil Procedure 26(b)(1) states:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Courts generally have construed Rule 26(b)(1) broadly. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see, also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). In order to preclude fishing expeditions in discovery, courts require the party seeking discovery to make a threshold showing of relevance before production of information is required. Id. at 380. This threshold showing “is met if the information sought is ‘relevant to the subject matter involved in the pending action.’ ” Orduno v. Pietrzak, No. 14-cv-1393 (ADM/JSM), 2016 WL 5853723, *3 (D. Minn. Oct. 5, 2016) (quoting Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 579 (D. Minn. 1999)).
III. Defendants’ Motion to Compel, [Docket No. 110]
A. Standards of Review
In addition to the general relevance requirement in discovery, Rule 26(b)(2)(C) provides:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
*8 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
“On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). For the purposes of such a motion, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
B. Analysis
i. Defendants’ Document Request No. 3 – Contracts between Plaintiff Funds and Wilson-McShane during the Audit Period
Defendants’ Document Request No. 3 asked for “[a]ll communications between Wilson-McShane[6] and Plaintiffs.” (Kappenman Dec., Exh. 1, [Docket No. 113-1], 6). Defendants now assert that Plaintiffs have not provided a copy of the contract between Wilson-McShane and Plaintiffs under which Wilson-McShane audited Charps. (Mem. in Supp. of Defs’ Mtn to Compel, [Docket No. 112], 2-3). Defendants argue that contracts are communications, and therefore the contracts were encompassed by the plain language of Defendants’ Document Request No. 3, which asked for “[a]ll communications between Wilson-McShane and Plaintiffs.”[7] (Id.). Defendants also argue that the contracts are relevant because they describe the scope of the audits undertaken by Wilson-McShane and whether the previous Wilson-McShane audits addressed the issues now being litigated. (Mem. in Supp. of Defs’ Mtn to Compel, [Docket No. 112], 4-5).
In response, citing the former version of Rule 26(b)(1), which included the statements “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence,” Plaintiffs argue that the Court should deny this Motion because the contracts cannot lead to the discovery of admissible evidence. (Id. at 7-9). Currently, however, Federal Rule of Civil Procedure 26(b)(1)states:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
*9 The language upon which Plaintiffs depend no longer exists in Rule 26(b)(1) and all of Plaintiffs’ legal authority cited in support predates the 2015 Amendments to the Rule. (See, Mem. in Opp. to Defs’ Mtn to Compel, [Docket No. 136], 7-9). Thus, this argument fails.
Plaintiffs also argue that Defendants already have all of the audit-related documents created by Wilson-McShane, and that those documents are sufficient evidence of the scope of the audits actually conducted. (Id. at 7, 10-12). On February 10, 2016, Defendants served a subpoena duces tecum on Wilson-McShane seeking, in part:
Any and all documents relating to or concerning all audits performed by Wilson-McShane Corporation during the period January 1, 2008 to the present, including but not limited to audits and audit reports, emails, letters, closing letters, notes, memoranda, reports, spreadsheets, audit work papers, and financial statements, relating to or concerning:
A. Charps;
B. Clearwater;
C. C&G; and
D. Alpha [Oil].
(Lawrie Aff., Exh. A, [Docket No. 138-1], 3, 7-8).
In March 2016, in response to this subpoena duces tecum, Defendants received over 650 pages of documents detailing the audits Wilson-McShane performed. (Id. at Exh. B, [Docket No. 138-1], 12). In addition, in March 2016, Melissa Urban-Brown, a supervisor of auditing and collections at Wilson-McShane, testified at her deposition about the steps auditors at Wilson-McShane take when conducting a routine audit. (Court Aff., Exh. T, [Docket No. 87-6], 19-46). Also in March 2016, Matthew Loberg, fund administrator and former payroll auditor at Wilson-McShane, testified about the steps he performed on a routine payroll audit of Defendant Charps he began in December 2015. (Kappenman Dec., Exh. 13, [Docket No. 95-1], 68-80). In light of the information Defendants already possess, Plaintiffs argue that it is mere speculation for Defendants to assert that the requested contracts will contain additional relevant information. (Mem. in Opp. to Defs’ Mtn to Compel, [Docket No. 136], 11).
The Court agrees. The contracts sought through Defendants’ Motion to Compel are duplicative of the information already produced to Defendants through the audit documents themselves, which show the scope of the audits Wilson-McShane actually performed during the relevant period. Nevertheless, at the February 15, 2017, Motions Hearing, Plaintiffs agreed on the record to produce the contracts sought, with any proprietary information redacted and any information in the contracts regarding the scope of auditing duties left unredacted. (Feb. 15, 2017, Motions Hearing, Digital Record, 1:44-46).
Accordingly, Defendants’ Motion to Compel, [Docket No. 110], is granted in part and denied in part with regards to Defendants’ request for all contracts between Plaintiff Funds and Wilson-McShane which were in effect during the Audit Period. Plaintiffs are ordered to produce the contracts in redacted form, as set forth above.
ii. Defendants’ Document Request Nos. 2-9 – Contribution Reports submitted to Plaintiff by Defendant Charps and Records and Documents related to those Reports
Defendants assert that Plaintiffs have failed to produce the contribution reports[8] that Defendant Charps originally submitted to the Plaintiff Funds and other related documents. (Mem. in Supp. of Defs’ Mtn to Compel, [Docket No. 112], 6). Defendants claim that these documents were requested in Document Request Nos. 2-9, which stated:
*10 REQUEST NO. 2: All documents in your possession and control that refer or relate to any of the Defendants, including, but not limited to, all e-mails in the possession of each and every Plaintiff responsive to this request.
Response: Plaintiffs object to this Request as vague and overboard [sic], and on the grounds of attorney client privilege and that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, for the audit period at issue in this litigation, to the extent that this Request seeks non-privileged documents, see documents produced with the Plaintiffs’ Initial Disclosures and documents produced herewith.
REQUEST NO. 3: All communications between Wilson-McShane and Plaintiffs.
Response: Plaintiffs object to this Request as vague and overboard [sic], and on the grounds of attorney-client privilege and that it is not reasonably calculated to lead to the discovery of admissible evidence.
REQUEST NO. 4: All communications between any union or representative of any union and the Plaintiffs that relate or refer to any of the Defendants or the allegations of the Complaint.
Response: Plaintiffs object to this Request as vague and overboard [sic]. Subject to and without waiving these objections, for the audit period at issue in this litigation, see documents attached hereto.
REQUEST NO. 5: All documents created by Wilson-McShane that refer or relate to any of the Defendants or the audit of Charps Welding.
Response: Plaintiffs object to this Request as vague and overboard [sic], and on the grounds of attorney client privilege and that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, to the extent that this Request seeks non-privileged documents, for the audit period at issue in this litigation, see documents produced herewith.
REQUEST NO. 6: All documents provided by Defendants to Plaintiffs or Wilson-McShane.
Response: Plaintiffs object to this Request as vague, overboard [sic] and that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, for the audit period at issue in this litigation, other than the Defendants[’] Answer and Initial Disclosures and documents produced therewith, none to date. Discovery is continuing.
REQUEST NO. 7: All documents that refer or relate to any employee or former employee of any Defendant, including, but not limited to, all communications with current or former employees of any Defendant.
Response: Plaintiffs object to the Request as vague, overboard [sic] and that it is not reasonably calculated to lead to the discovery of admissible evidence and on the grounds of attorney client privilege. Subject to and without waiving these objections, for the audit period at issue in this litigation and relevant to such employee’s employment with the Defendants, see documents produced herewith.
REQUEST NO. 8: The entire contents of Wilson-McShane’s physical and electronic files relating to any of the Defendants.
Response: Plaintiffs object to this Request as vague and overboard [sic], and on the grounds of attorney client privilege and that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, to the extent that this Request seeks non-privileged documents for the audit period at issue in this litigation, see documents produced herewith.
*11 REQUEST NO. 9: The entire contents of Plaintiffs’ physical and electronic files relating to any of these Defendants.
Response: Plaintiffs object to this Request as vague and overboard [sic], and on the grounds of attorney client privilege and that it is not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving these objections, to the extent that this Request seeks non-privileged documents for the audit period at issue in this litigation, see documents produced with the Plaintiffs’ Initial Disclosures and documents produced herewith.
(Kappenman Dec., Exh. 1, [Docket No. 113-1], 6; Id. at Exh. 2, [Docket No. 113-1], 11-13).
Plaintiffs respond that they have agreed to produce and are in the process of producing all responsive documents in existence. (Mem. in Opp. to Defs’ Mtn to Compel, [Docket No. 136], 12-13). Plaintiffs agree to and have at least begun producing the remittance reports, although Plaintiffs were unsure at the February 15, 2017, Motions Hearing how long production would take. (Feb. 15, 2017, Motions Hearing, Digital Record, 1:42-43). Plaintiffs also state that no additional related documents exist. (Mem. in Opp. to Defs’ Mtn to Compel, [Docket no. 136], 13). In support, Plaintiffs have filed an Affidavit from Jason Wolfe, Director of Audits at Wilson-McShane. (Wolfe Aff., [Docket No. 137], 1-2). Wolfe explains that two employees at Wilson-McShane receive and process 1,142 remittance reports each month, from the 778 contractors that are signatories to the Plaintiff Funds. (Id. at 2). The employees date-stamp each report and enter the hours listed on the report into a computer; the employees do not review, comment on, or otherwise assess the reports. (Id.). The only notation that might occur is on the remittance reports and may indicate that the employee entering the data noticed a math error on the remittance report. (Id.). At the February 15, 2017, Motions Hearing, Defendants clarified that they seek any copies of remittance reports that Plaintiffs marked after receipt. (Feb. 15, 2017, Motions Hearing, Digital Record, 1:37-38). Without conceding relevance of any such markings, Plaintiffs agreed to produce the documents. (Id. at 142-43).
To the extent that Plaintiffs contend no additional “related documents” exist, “[o]f course, the Court cannot order any party to produce something in discovery that does not, in fact, exist.” Farmers Insurance Exchange v. West, No. 11-cv-2297 (PAM/JJK), 2012 WL 12894845, *5 (D. Minn. Sept. 21, 2012). When a party from whom documents are requested represents to the Court that no such documents exist, the party requesting the documents must present some evidence that the documents do exist in order to prevail on a related motion to compel. Struzyk v. Prudential Inc. Co. of Am., No. 99-cv-1736 (JRT/FLN), 2003 WL 21302966, *3 (D. Minn. May 16, 2003) (citation omitted).
Accordingly, Defendants’ Motion to Compel is granted in part and denied in part. To the extent that Defendants request the remittance reports submitted to the Plaintiff Funds by Defendant Charps and any copies of such reports that Plaintiffs marked in any way after receipt, Plaintiff shall complete any remaining production of such reports within 14 days of the date of this Order. To the extent that Defendants request production of additional related documents, the Motion is denied.
iii. Electronic Copies of the Paper Documents Plaintiffs Obtained from Defendants and Scanned
*12 Defendants also ask this Court to order Plaintiffs to produce an electronic copy of the documents Defendants provided Plaintiffs in paper form. Defendants assert that the Federal Rules of Civil Procedure provide that each party must bear the ordinary costs of financing its own suit and a party requesting documents pays for the costs of the copies, so Plaintiffs’ request that Defendants share in the cost of converting the paper documents to an electronic format is contrary to the Rules. (Mem. in Supp. of Defs’ Mtn to Compel, [Docket No. 112], 7). Defendants contend that they should only have to pay the nominal cost of obtaining the electronic record of the Bates-numbered documents from the copying service Plaintiffs used. (Id. at 8). Without such a record, Defendants assert that they will not be able to efficiently take depositions and submission of documents to the Court at trial will be frustrated. (Id. at 7-8).
Plaintiffs disagree, asserting that there is no legal authority which requires them to give Defendants free access to electronic records of documents that Plaintiffs paid to have scanned and Bates-numbered. (Mem. in Opp. to Defs’ Mtn to Compel, [Docket No. 136], 14). Plaintiffs point out that Defendants have the original documents and will timely receive any Bates-numbered documents Plaintiffs use in discovery or intend to use as trial exhibits. (Id. at 14-15).
Contrary to Defendants’ assertion, this is not a discovery issue, so the Rules regarding discovery do not control. Defendants produced the boxes of documents for Plaintiffs, who scanned the documents, then returned them to Defendants. Plaintiffs’ actions in scanning and Bates-numbering the documents resulted in a convenient, searchable, electronic-format set of the documents which was created at Plaintiffs’ expense, and Plaintiffs have no legal obligation to share it with Defendants.[9] Plaintiffs are willing to do so—for a price. Defendants may either pay that price or not; as Plaintiffs point out, Defendants are in possession of all the documents from which Plaintiffs’ database was compiled.
Accordingly, to the extent that Defendants’ Motion to Compel, [Docket No. 110], asks this Court to order Plaintiffs to provide an electronic copy of the documents in question without requiring Defendants to pay half the cost of creating the electronic copies, the Motion is denied.
IV. Plaintiffs’ Motion for a Protective Order, [Docket No. 116]
A. Standards of Review
In addition to the general requirement of relevance set forth above, Rule 26(c) also allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). “The party seeking the order ... bears the burden of establishing the requisite ‘good cause.’ ” Northbrook Digital, LLC v. Vendio Servs., 625 F. Supp. 2d 728, 734 (D. Minn. 2008).
B. Analysis
On January 25, 2017, Defendants served Plaintiffs another Notice of Rule 30(b)(6) Deposition (“the Second 30(b)(6) Notice”), noticing a deposition for February 28, 2017. (Lawrie Aff., Exh. C, [Docket No. 119-1], 28-31). The Second 30(b)(6) Notice articulated 13 topics for the deposition, topics which were identical to topics identified in the First 30(b)(6) Notice. (Id. at 29-30). The topics in the Second 30(b)(6) Notice are as follows:
1) All facts which substantiate Plaintiffs’ allegations in Count I of the Complaint.
2) All facts which substantiate Plaintiffs’ allegations in Count II of the Complaint.
3) All facts which substantiate Plaintiffs’ allegations in Count III of the Complaint.
*13 4) All facts which substantiate Plaintiffs’ allegations in Count IV of the Complaint.
5) The identity of all witnesses who will testify at trial to the facts to be described in response to items 1 through 4 above.
6) All facts which undermine or contradict any defenses asserted by the Defendants in the above-entitled action.
7) All facts that Plaintiffs contend show that any response provided by Defendants in response to any Interrogatory, deposition or other discovery or response is false or inaccurate.
8) The identity of each employee or former employee of any of the Defendants who believes appropriate pension fund contributions were not made on his or her behalf and has any complaint whatsoever regarding the Defendants and all facts which support any such belief or complaint.
9) The actions taken by the Plaintiffs to gather factual information regarding the Defendants and their business practices prior to bringing the current lawsuit and the information obtained by the Plaintiffs in any such pre-suit investigation.
10) The facts supporting Plaintiffs’ claims that the Defendants are bound to the agreements referenced in Paragraphs 11 through 32 of Plaintiffs’ Complaint and all facts Plaintiffs claim evidence any breach of the referenced agreements.
11) The facts supporting Plaintiffs’ contention that Defendant Kenneth Charpentier has personal liability for any claims of the Plaintiffs.
12) Plaintiffs’ total alleged damages in this case, if any, including, but not limited to, a break down by category of alleged damages and the corresponding dollar amounts, including the identity of each employee for whom a contribution was not properly made, the date the employee worked for which a contribution was not paid and the amount Plaintiffs’ [sic] claim is deficient. For each category of alleged damages identified, provide a detailed description of all facts supporting such calculation.
13) If Plaintiffs have attempted to calculate damages, the method used to calculate such damages. If Plaintiffs have yet to calculate damages, the methodology Plaintiffs intend to utilize to calculate Plaintiffs’ damages, if any.
(Id.). On February 1, 2017, Plaintiffs filed their Motion for Protective Order, [Docket No. 116], requesting protection from the deposition noticed in the Second 30(b)(6) Notice to the extent that the topics were allowed at the First Rule 30(b)(6) deposition or, if the topics were prohibited at the First Rule 30(b)(6) deposition, they are overbroad, insufficiently particular, or seek to depose on purely legal topics.[10] (Plfs’ Mem. in Supp. of Mtn for Prot. Order, [Docket No. 118], 2).
i. Topics Allowed at the First Rule 30(b)(6) Deposition – Topics 2, 3, 7, and 10, which were allowed in unlimited form
Plaintiffs argue that Rule 30(a) requires Defendants to obtain the Court’s permission prior to conducting a second Rule 30(b)(6) deposition on topics covered at the first Rule 30(b)(6) deposition. (Mem. in Supp. of Plfs’ Mtn for Prot. Order, [Docket No. 118], 10). Defendants respond by characterizing the Second Rule 30(b)(6) Notice as seeking to continue the prior 30(b)(6) deposition, for which they assert they do not need leave of the Court. (Mem. in Opp. to Plfs’ Mtn for Prot. Order, [Docket No. 139], 2).
*14 Defendants cite no controlling case law from the Eighth Circuit for this assertion, nor has this Court’s independent research found any such case law from within the Eighth Circuit. (See, Id. at 10-11). Instead, Defendants cite case law from federal district courts outside of Minnesota for the proposition that “leave of the court is not required to reconvene or continue a deposition that was suspended or not completed.” (Id. at 9). However, none of the cases cited are binding on this Court, and they are easily distinguishable from the present case.
Defendants cite Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (D. C. D. Cal. 2008), which held that a plaintiff who arrived for a deposition that did not take place due to plaintiff’s arrest was not “deposed” since he was not examined by oral questions. Thus, the defendant was entitled to renotice plaintiff’s deposition without leave of the court. Id. In the present case, the Rule 30(b)(6) deponent clearly was deposed; therefore, Paige is inapposite. Defendants also cite Settles v. Livengood, No. 13-cv-662 (CEJ), 2015 WL 2089222, *1 (D. E.D. Mo. May 4, 2015), which actually recognizes a change in the law that undermines Defendants’ assertion in the present case. Settles states: “Generally, a party may obtain a deposition simply by serving a notice or subpoena. At one time, this was also true even if a party was seeking to reopen or retake a deposition. Under the 1993 amendments, Rule 30 now requires that ‘[a] party must obtain leave of the court, ... if the parties have not stipulated to the deposition and ... the deponent has already been deposed in the case.’ ” Id.
Finally, Defendants cite Huertas v. City of Camden, 6-cv-4676-NLH-AMD, 2009 WL 3151316, *1 (D. N.J. June 16, 2009), which recognizes that the advisory comments to the 1993 Amendments for Rule 30 state that leave a court is not required “ ‘when a deposition is temporarily recessed for convenience of counsel or the deponent or to enable additional materials to be gathered before resuming the deposition.’ ” In Huertas, both parties represented to the Court in written pleadings that the deposition in question had begun and was halted with the clear intent and agreement that it would be completed at a later time. Id. at *2. Although the plaintiff later did not recall agreeing to a continuation, the Huertas court pointed out that in a prior motion to compel, the plaintiff had stated that he had been previously deposed “ ‘with the intent to complete the deposition within one month.’ ” Id.at *2.
The present case is materially factually distinguishable from Huertas. Here, there is no indication in the record that either party, much less both parties, understood at the completion of the first 30(b)(6) deposition that another such deposition further exploring the topics available on that day was forthcoming. The transcript of the deposition in the present case ends with Defense counsel stating: “I don’t have any more questions for you today. I’m sure I’ll see you next week.” (Kappenman Aff., Exh. 1, [Docket No. 140-1], 7). There was no agreement that the deposition would continue at a later date. Thus, the cases Defendants cite do not support the conclusion that the First 30(b)(6) deposition in the present case was recessed, not concluded.
In light of the plain language of Rule 30(a)(2)(A)(ii) and (b)(6), Defendants were required to obtain leave of this Court prior to noticing a Second Rule 30(b)(6) deposition regarding topics on which Defendants had leave to question the deponent at the First Rule 30(b)(6) deposition. Moreover, Defendants have not shown good cause why the Court should allow additional questioning on those topics.
*15 Accordingly, to the extent that it requests that the Court enter a protective order barring Defendants from inquiring at the Second Rule 30(b)(6) deposition into topics that were allowed in unlimited form at the First Rule 30(b)(6) deposition—topics 2, 3, 7, and 10—Plaintiffs’ Motion for a Protective Order, [Docket No. 116], is granted.
ii. Topics Allowed at the First Rule 30(b)(6) Deposition – Topics 5, 6, and 9, which were allowed in limited form
Defendants argue that Judge Kyle’s Order on the Summary Judgment Motions expanded the scope of permissible discovery, such that topics disallowed or restricted at the First Rule 30(b)(6) deposition are now permissible and appropriate. ( [Docket No. 139], 3, 9-10). Plaintiffs do not contest this point, arguing only that questioning should not be allowed at the Second Rule 30(b)(6) deposition which could have been covered at the First Rule 30(b)(6) Deposition. (Mem. in Supp. of Plfs Mtn for Prot. Order, [Docket No. 118], 11-12; Feb. 15, 2017, Motions Hearing, Digital Record, 1:54-56, 2:10-11).
In any event, the circumstances of this case support allowing questioning at the Second Rule 30(b)(6) deposition which was not allowed at the First Rule 30(b)(6) deposition. The Court limited the topics allowed at the First Rule 30(b)(6) deposition, clearly contemplating that if the threshold showing of a right to audit was met, discovery would expand to areas earlier impermissible. Subsequently, Judge Kyle held that discovery on the additional theories and claims may proceed. This material change in circumstances now allows deposition regarding topics on which Plaintiffs’ Rule 30(b)(6) deponent has not already been deposed in this case.
Thus, Plaintiffs’ Motion for a Protective Order, [Docket No. 116], is granted in part and denied in part. Defendants may depose the designee on topics 6 and 9 only as they relate to issues that were prohibited at the First 30(b)(6) deposition.
Although the Court would grant the same limited relief with respect to topic 5 in any event, Defendants make an additional argument regarding topic 5: that Defendants should be allowed to depose Plaintiffs’ 30(b)(6) designee at the Second Rule 30(b)(6) deposition on the topic as a whole (including alter ego and/or joint venture theories) because Plaintiffs’ designee was unprepared at the First Rule 30(b)(6) deposition to answer questions on the topic as allowed at that time. (Mem. in Opp. to Plfs’ Mtn for Prot. Order, [Docket No. 139], 10).
Minnesota federal courts have recognized that a party receiving notice of a 30(b)(6) deposition has an obligation “ ‘to produce a deponent who has been suitably prepared to respond to questioning within that scope of inquiry.’ ” See, Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc., No. 3-cv-1091 (JNE/JSM), 2013 WL 12142579, *3 (D. Minn. March 20, 2013)(quoting Prokosch, 193 F.R.D. at 638). “ ‘Producing an unprepared witness is tantamount to a failure to appear,’ which is sanctionable under Fed. R. Civ. P. 37.” Id. (citation omitted).
The transcript of the First 30(b)(6) deposition clearly supports Defendants’ position. The relevant testimony is as follows:
Q.... I’ll begin with the identity of witnesses who will testify at trial to the facts related to alter ego and joint venture. As the designee of the Plaintiffs, who do you believe those individuals will be?
*16 A. I don’t know who they would be.
Q. Why not?
A. The question hasn’t been asked of me.
Q. And do you understand that you’re here today as the designee of the Plaintiffs?
A. I am.
Q. And you didn’t understand that as one of the areas that you were being designated to be deposed for today?
A. I was not prepared for that question.
(Kappenman Aff., Exh. 1, [Docket No. 140-1], 3).
On the record before the Court, it is clear that the Plaintiffs’ Rule 30(b)(6) designee was not prepared at the First Rule 30(b)(6) deposition to discuss topic 5.
Accordingly, to the extent that Plaintiffs’ Motion for a Protective Order, [Docket No. 116], asks for a protective order barring or limiting questioning by Defendants on noticed topic 5, the motion is denied. At the Second Rule 30(b)(6) deposition, Defendants may depose Plaintiffs’ Rule 30(b)(6) designee upon topic 5 as it has been noticed.
iii. Specific Objections to Topics 1 and 4
Although questioning on topics 1 and 4 was not allowed at the First Rule 30(b)(6) deposition, Plaintiffs argue that topics 1 and 4 should not be allowed at the Second Rule 30(b)(6) deposition because they are overbroad and they are not stated with reasonable particularity in that they “require[ ] testimony spanning the life of Defendants’ contracts, some of which are well outside the Audit Period.” (Mem. in Supp. of Plfs’ Mtn for Prot. Order, [Docket No. 118], 12).
As this Court set forth in the last Order on a protective motion it issued to these parties:
[T]he reasonable particularity requirement requires a party noticing a Rule 30(b)(6) deposition to list topics that are specific, discrete, and relevant. Similarly, a topic will be overbroad where the party whose deposition is to be taken cannot determine the outer boundaries of the area of inquiry, where the topic is open-ended, and where the topic seeks irrelevant information. See, e.g., Rogers v. Giurbino, 288 F.R.D. 469, 481 (S.D. Cal. 2012); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005).
(Order, [Docket No. 92], 9-10). In the same Order, this Court considered a challenge to topics 1 and 4 as overbroad and not described with reasonable particularity and concluded, in part:
because the Topics seek testimony concerning all facts that support the allegations in Count I and Count IV, regarding which Plaintiffs have not yet been able to conduct discovery, Plaintiffs are unable to identify a deponent to testify regarding the Topics, meaning the Topics are also not described with reasonable particularity.
(Id. at 11). Plaintiffs aver that this justification for finding the topics overbroad remains. (Mem. in Supp. of Plfs’ Mtn for Prot. Order, [Docket No. 118], 15).
The Court entered the previous Order on April 19, 2016, at which point there had been no discovery on the breach of contract and ERISA issues (the claims at issue in topics 1 and 4). (Order, [Docket No. 92] ). However, since Judge Kyle’s order denying the cross-Motions for Summary Judgment, which was entered on June 27, 2016, the parties have been able to conduct such discovery. (Order, [Docket No. 107] ). It is unlikely that Plaintiffs, at this point, still do not know which facts will substantiate their claims in Counts I and IV to the extent that they could designate a Rule 30(b)(6) deponent to testify regarding those facts.
*17 Plaintiffs also argue that topic 1 encompasses facts covering more than 15 years, well beyond the Audit Period, which renders topic 1 overbroad. This argument is similarly unpersuasive. Topic 1 is limited to the facts relevant to Count I of Plaintiffs’ Complaint. If Plaintiffs rely on certain facts to substantiate their claims, Defendants may depose Plaintiffs’ Rule 30(b)(6) designee regarding those facts. The facts substantiating the allegations in Count I of the Complaint will likely not have occurred prior to the Audit Period’s start date of January 1, 2008. However, if such facts did occur earlier, Defendants may depose on those facts or Plaintiffs will not be allowed to present such facts at trial.
Accordingly, to the extent that Plaintiffs’ Motion for a Protective Order, [Docket No. 116], seeks an order prohibiting Defendants from deposing Plaintiffs’ Rule 30(b)(6) designee on topic 1 at the Second Rule 30(b)(6) deposition, the Motion is denied.
In addition, Plaintiffs argue that they are entitled to a protective order regarding topic 4 because it seeks testimony regarding purely legal conclusions. (Mem. in Supp. of Plfs’ Mtn for Prot. Order, [Docket No. 118], 15). Topic 4 covers “[a]ll facts which substantiate Plaintiffs’ allegations in Count IV,” which is the claim for damages, in part under ERISA, specifically 29 U.S.C. § 1132(g). (Compl., [Docket No. 1], 12-13). Section 1132(g)provides how to calculate attorney’s fees and costs in certain ERISA actions, stating in relevant part that:
[If] a judgment in favor of the plan is awarded, the court shall award the plan –
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate. For the purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26.
29 U.S.C. § 1132(g)(2).
Plaintiffs allege that their claim to these damages is purely legal in nature and as such is protected from 30(b)(6) deposition. (Mem. in Supp. of Mtn for Prot. Order, [Docket No. 118], 16). Plaintiffs cite only one case from within the Eighth Circuit: Furminator, Inc. v. Munchkin, Inc., No. 8CV00367 ERW, 2009 WL 1176285, *3-4 (D. E.D. Mo. May 1, 2009), in which the Federal District Court for the Eastern District of Missouri granted, without citation to legal authority, a motion for protective order in part prohibiting a party “from inquiring into the interrogatories and requests for admissions ... that call for a legal conclusion.”
Despite the lack of on-point case law from within this Circuit, this Court recognizes the folly in deposing a Rule 30(b)(6) designee on a subject that calls only for legal conclusions and statutorily mandated calculations of damages. Therefore, to the extent that Plaintiffs’ Motion for a Protective Order, [Docket No. 116], seeks protection from Defendants deposing Plaintiffs’ Rule 30(b)(6) designee on topic 4 at the Second Rule 30(b)(6) deposition, the Motion is granted.
iv. Summary
In summary, the Court grants in part and denies in part Plaintiffs’ Motion for a Protective Order. Defendants are permitted to depose Plaintiffs’ Rule 30(b)(6) designee on topics 1, 5, 8, 11, 12, and 13 as noticed, and on topics 6 and 9 to the exclusion of questions or information regarding claims of alter ego and/or joint venture or defenses to those claims. Defendants shall not depose Plaintiffs’ Rule 30(b)(6) designee on topics 2, 3, 4, 7, and 10.
V. Defendants’ Motion for Protective Order, [Docket No. 123]
*18 Defendants’ Motion for Protective Order, [Docket No. 123], asks the Court to hold that Defendants need not comply with Plaintiffs’ ESI discovery requests. (Defs’ Mtn for Prot. Order, [Docket No. 123], 2). Defendants argue that the requests are vague and overbroad, and would annoy, oppress, and impose an undue burden upon Defendants. (Id.). Because resolution of the ESI issue will resolve this Motion in its entirety, as well as part of Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], they are addressed together here.
A. Standards of Review
As set forth above, Rule 26(c) allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A). “The party seeking the order ... bears the burden of establishing the requisite ‘good cause.’ ” Northbrook Digital, LLC, 625 F. Supp. 2d at 734.
B. Analysis
At the February 15, 2017, Motions Hearing, Plaintiffs informed the Court that they had received two productions of ESI, one production of approximately 2,000 emails and/or documents and a second production of approximately 10,000 emails and/or documents. (Feb. 15, 2017, Motions Hearing, Digital Record, 2:16-18). Defendants indicated that as of the Motions Hearing, Defendants have produced all of the ESI they intend to produce. (Id. at 2:20-2:21). Defendants argue that further production would be unduly burdensome and disproportional and they seek a protective order stating that Defendants need not produce any further ESI or further work with Plaintiffs on acceptable search terms. (Id. at 2:21-22; Defs’ Mtn for Prot. Order, [Docket No. 123], 2; Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 16).
For their part, as clarified at the February 15, 2017, Motions Hearing, Plaintiffs ask the Court “for the continued production of ESI with respect to agreeable search terms.” (Feb. 15, 2017, Motions Hearing, Digital Record, 2:18-20). Plaintiffs no longer seek the entire universe of data that would have resulted from the initial search terms; they merely seek to run searches with additional agreed-upon search terms. (Id. at 2:19-20).
Rule 26(b)(2)(B) explicitly sets forth limitations on ESI:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).
Rule 26(b)(2)(C) states:
On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Plaintiffs argue that Defendants “have provided no evidence of undue burden or expense.” (Mem. in Opp. to Defs’ Mtn for Prot. Order, [Docket No. 134], 9-10). This assertion is directly contradicted by Defendants’ estimation that reviewing the ESI requested by Plaintiffs (presumably the entire data universe) would take approximately 50 years and cost approximately $91.6 million in billable hours.[11] (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 18). Defendants also note that production of the ESI would involve considerable expense to its electronic discovery vendor, Ricoh USA, INC. (Id.). Thus far, ESI has caused Defendants $131,440 in costs to Ricoh and, if review continues beyond the term of Defendants’ contract with Ricoh, Defendants assert such costs would “increase exponentially.” (Id.).
*19 Plaintiffs cite cases in which objecting parties failed to provide an estimate of hours or cost per hour to produce or review ESI and courts found that the objecting parties had not shown undue burden. (Id. at 12-13). But Defendants here have provided both. Plaintiffs directly concede that “courts routinely find that ‘good cause’ is established when the moving party demonstrates the time and cost burden.” (Id. at 13). Defendants have done so here.
The record before this Court shows that Defendants have fulfilled their discovery obligations with regard to the ESI in this case. As set forth above, the parties agreed in February 2015 to postpone demand for email discovery until Plaintiffs gave Defendants search terms with which to compile the discovery. Due to disagreements stemming from the production of paper documents in 2016, Plaintiffs then asked Defendants to produce an initial list of search terms. Defendants declined to do so, instead offering to work with Plaintiffs to come up with a list of search terms, an offer Plaintiffs rejected. In October 2016, Plaintiffs requested that Defendants produce the entirety of their email data. Defendants declined to do so, stating a high estimated cost and large volume of ESI. Finally, Plaintiffs provided a list of search terms in November 2016 and Defendants informed Plaintiffs that certain of Plaintiffs’ search terms would result in a data set coexistent with the universe of data. Instead of providing Defendants with new search parameters, Plaintiffs told Defendants to search with terms Defendants believed reasonable. (Kappenman Aff., Exh. 6, [Docket No. 131-1], 13-14). Defendants did so and have produced that resulting ESI.
This Court concludes that requiring Defendants to engage in such additional discussion of search terms is unnecessary. Contrary to Plaintiffs’ representations at the February 15, 2017, Motions Hearing, Defendants did not consistently refuse to work with Plaintiffs to craft appropriate search terms. (See, Feb. 15, 2017, Motions Hearing, Digital Record, 2:15-16; Lawrie Aff., Exh. S, [Docket No. 127-2], 74-76; Kappenman Aff., Exh. 6, [Docket No. 131-1], 13-14). Plaintiffs had ample opportunity to cooperate with Defendants to determine search terms and instead informed Defendants to use search terms Defendants found reasonable and produce the resulting ESI. (See, Lawrie Aff., Exh. S, [Docket No. 127-2], 74-76; Kappenman Aff., Exh. 6, [Docket No. 131-1], 13-14). Requiring Defendants to further production of ESI would be unreasonable and unduly burdensome, especially considering Plaintiffs’ admission at the February 15, 2017, Motions Hearing that Plaintiffs have no strategy of how to sort, review, or otherwise use the ESI if it is produced in full as originally requested. As stated above, Plaintiffs have not proposed specific additional search terms, only stating a desire for continued conversation.
Discovery in the present case closed on March 1, 2017, and Plaintiff has not shown good cause to extend discovery so that Plaintiff can belatedly accept Defendants’ offer to work together to determine additional search terms. Rule 26(b)(2)(C)(ii) permits the Court to limit the extent of discovery when “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” Here, Plaintiffs had ample opportunity to work with Defendants to define the search terms used to produce ESI. Plaintiffs declined to take full advantage of that opportunity. No further ESI production by Defendants is required.
*20 Accordingly, Defendants’ Motion for Protective Order, [Docket No. 123], is granted.
VI. Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122]
A. Standards of Review
If information is otherwise discoverable, Federal Rule of Civil Procedure 26(b)(5) requires a party withholding that information by claiming that the information is privileged to “expressly make the claim” and to “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”
“On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). For the purposes of such a motion, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
An issued Scheduling Order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The ‘good cause’ standard requires a demonstration that the existing schedule cannot reasonably be met despite the diligence of the party seeking the extension.” Burris v. Versa Prods., Inc., No. 07-cv-3938 (JRT/JJK), 2009 WL 3164783, *4 (D. Minn. Sept. 29, 2009). “The primary measure of good cause is the movant’s diligence in attempting to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d 813, 822, (8th Cir. 2006), superseded on other grounds by Rivera v. Illinois, 556 U.S. 148 (2009). “While the prejudice to the nonmovant resulting from modification of the scheduling order may also be a relevant factor, generally, we will not consider prejudice if the movant has not been diligent in meeting the scheduling order’s deadlines.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008).
B. Analysis
In their Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], Plaintiffs ask the Court to: (1) order Defendants to further organize and label the paper documents produced in 2016 in the boxes; (2) order Defendants to produce the ESI Plaintiffs seek; (3) order Defendants to provide supplemental responses to all of Plaintiffs’ discovery requests in order to provide information and documents through the present date; (4) overrule Defendants’ various objections to discovery requests; (5) order Defendants to fully respond to other discovery requests; (6) amend the Second Amended Scheduling Order to extend the deadlines therein by 6 to 7 months; and (7) award Plaintiffs’ the attorney’s fees and costs incurred in bringing the Motion.
i. Further Organize and Label Documents
Plaintiffs’ argument on this point relates back to the boxes of paper documents Defendants produced in 2016. First, Plaintiffs argue that Defendants did not satisfy Rule 34 because they did not sufficiently state when and where the inspection of the documents could take place. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 17-18). This is moot, as Plaintiffs have, at this point, copied all of the documents and now have those copies in their possession. Next, Plaintiffs argue that it is unbelievable that the documents were produced as they are kept in the usual course of business, so this Court should require Defendants to reorganize and label the documents. (Id. at 19).
*21 As the party asserting that the documents were produced in the form in which they were kept in the usual course of business, Defendants bear the burden to convince the Court that this is true. See, Farmers Ins. Exchange, 2012 WL 12894845, at *10. Defendants assert that the documents were presented as they are kept in the usual course of business. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 24).
In support, Defendants have provided the Court with a Declaration from Ed Charpentier, who worked within Defendants C&G and/or Alpha Oil from 2006 to the present and is familiar with how Defendants C&G and/or Alpha Oil maintained their records. (E. Charpentier Dec., [Docket No. 143], 2). Ed Charpentier avers that C&G and Alpha Oil maintained their paper records “in a large number of banker boxes that were stored at the office or job trailer sites in North Dakota” and that “[t]hose banker boxes were provided to Plaintiffs’ copy service in the way that we regularly kept those records in our business.” (Id.). Defendants have submitted pictures of a sampling of the boxes; the pictures show numbered boxes labeled with years, topics such as “accounts payable” and “payroll,” and identifying which company the documents are from. (Kappenman Aff., Exh. 28, [Docket No. 142-2], 1-5).
Defendants also provided a Declaration from Joe Van Vynckt, the DFO and Secretary for Clearwater, who states that he has knowledge of the recordkeeping practices of Defendants Clearwater, Charps, C&G, and Alpha Oil, each of which “maintains its own paper records in large numbers of bankers boxes that are kept in file storage rooms” at each company’s office in Clearbrook, Minnesota. (Van Vynckt Dec., [Docket No. 144], 2). Van Vynckt also avers that he has visited Defendants Charps, C&G, and Alpha Oil’s offices and job trailers around the country (including Hallstead, Pennsylvania), and is familiar with the recordkeeping practices at those locations, where they use the same method: “storing paper documents in bankers boxes.” (Id. at 3). Van Vynckt further states that in June 2015, in conjunction with this lawsuit, the bankers boxes from Clearbrook containing documents within the Audit Period were shipped to Defense counsel’s office and, in December 2016, Plaintiffs’ hired copy service picked up boxes of documents in Hallstead, Pennsylvania. (Id. at 2-3). Van Vynckt asserts that all of the boxes were provided in the same way they are regularly kept for business. (Id. at 3).
Finally, Defendants provide a Declaration from Sandy Gray, who worked as an accountant and controller for Defendant Clearwater during the Audit Period. (Gray Dec., [Docket No. 145], 2). Gray and Lori Spray, an accountant and union analyst for Defendant Charps, compiled documents for Defendants’ expert reports in this suit. (Id.). Gray states that Defendant “Charps maintains its paper records in bankers boxes that are kept in file storage rooms.” (Id. at 2-3).
Plaintiffs contend that they nevertheless find it unbelievable that Defendants kept business records in this manner, citing Plaintiffs’ expert’s subjective conclusion that “ ‘it is also irregular for documents to be maintained in the fashion produced by the Defendants,’ ” and taking note of the box of gathered reports, which is explained in Gray’s Declaration. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 21). Despite Plaintiffs’ expert’s opinion, however, it appears in light of the submitted Declarations that Defendants’ practice was to maintain the documents at issue in bankers boxes in the form they were produced to Plaintiffs.
*22 Plaintiffs next argue that even if this is true, Rule 34 requires re-organization and labeling of produced documents when the recordkeeping system used by the producing party “ ‘is so deficient as to undermine the usefulness of production.’ ” (Id. at 22 (quoting Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n.2 (D. N.D.N.Y. 2008)). Courts within this Circuit have made similar holdings. See, N. Nat. Gas Co. v. TEKSystems Glob. Applications, Outsourcing, L.L.C., No. 05 cv 316, 2006 WL 6886660, *2 (D. Neb. Sept. 6, 2006) (“[A] respondent’s unwieldy filing system does not excuse its production of requested documents in usable form when they are properly requested under Rule 34.”).
Plaintiffs also cite Wagner v. Dryvit Systems Inc., 208 F.R.D. 606 (D. Neb. 2001), and multiple other cases in which courts found error where responding parties produced thousands of documents without an index, inventory, or other indication of where responsive information was located. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 22-24). What Plaintiffs fail to acknowledge is that Defendants here have provided an Inventory describing the contents of each box. In addition, Defendants argue that they went beyond their duty under Rule 34, and supplied an Inventory of the documents. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 24). As set forth above, the Inventory is a spreadsheet listing the box number; company; year or years of the documents; the primary contents (i.e., “Payroll – Timesheets,” “Payroll – QB Reports,” “Accounts Payable,” “Credit Card Receipts,” etc.); additional contents (in some of the boxes); the location of the boxes (if in North Dakota or Pennsylvania); and the Bates numbers for the documents that had been Bates numbered. (Lawrie Aff., Exh. U, [Docket No. 127-3], 15-20).
Although the format in which Defendants kept these records in the ordinary course of business may not be ideal, when considered with the Inventory provided to Plaintiffs, the production of records in this format does not undermine the usefulness of the production. In addition, whatever prejudice might exist because of a lack of organization is ameliorated by the fact that Plaintiffs now possess their own searchable electronic database of all of the documents produced.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks the Court to order Defendants to further re-organize and label the boxes of paper documents produced in 2016, the Motion is denied.
ii. Additional ESI
For the reasons stated above in the analysis of Defendants’ Motion for Protective Order, [Docket No. 123], to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks this Court to order Defendants to produce additional ESI, the Motion is denied.
iii. Definition of the Audit Period
Plaintiffs ask this Court to order Defendants to produce supplementation to the Plaintiffs’ discovery requests for the entire audit period. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 27). While Defendants do not contest their duty to supplement under Federal Rule of Civil Procedure 26(e), the underlying dispute is over the definition of the “Audit Period” at issue in this case. Plaintiffs contend that the “Audit Period” continues through the resolution of the present case because in their Complaint, Plaintiffs defined the “Audit Period” as “January 1, 2008 through the present.” (Id.; Compl., [Docket No. 1], 8). Defendants, on the other hand, argue that the Audit Period ends on the date the Complaint was filed: June 23, 2014. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 28).
*23 Plaintiffs support their argument by citing Nali v. MaxPro Flooring, LLC, No. 9-cv-3625 (MJD/JJK), 2013 WL 673779 (D. Minn. Feb. 25, 2013). (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 28). Plaintiffs assert that Nali “interpret[ed] the Complaint language ‘through the present’ to mean through the date of the default entry of judgment.” Id.
In Nali, the plaintiffs were trustees and fiduciaries of a pension fund and fringe benefit fund, and the defendants were entities and individuals bound by the terms of a collective bargaining agreement with the Carpet, Linoleum, Resilient Tile Layers Local #596 of the Lakes and Plains Regional Council of Carpenters and Joiners. 2013 WL 673779, at *1. The plaintiffs filed a complaint in December 2009 alleging breach of contract/failure to submit to an audit and liability for ERISA damages. Id. at 2. The defendants did not answer or otherwise respond, so the Clerk entered default against the defendants. Id. In September 2010, the plaintiffs moved for default judgment and injunction; the defendants again did not respond and, after a hearing, the court granted the motion and ordered the defendants to provide payroll and employment records from May 2009 through the date of the order (December 17, 2010). Id.
The defendants provided documents, and the plaintiffs served a motion for entry of money judgment consisting of money owed based on an audit period of May 2009 through December 2010. Id. at *3. In objecting, the defendants argued, in part, that they owed no fringe benefits after the filing of the Complaint, on December 18, 2009. Id. at *6. The court disagreed, holding: “[T]he fact that the Complaint in this case sought benefits owed through the ‘present’ does not bar recovery beyond the date of the filing of the Complaint. The Court reiterates that Defendants defaulted in this case and failed to respond in any manner before the Court entered judgment in December 2010 setting the Audit Period through December 2010, so Defendants have waived that argument.” Id. at *6.
The reasoning in Nali for extending the audit period past filing of the complaint was not an interpretation of the language in the complaint, as Plaintiffs here represent. The Nali court held that the audit period lasted until December 2010 because the defendants had defaulted in the case and did not respond in any manner until after the court had entered an order setting the audit period to last until December 2010. Here, there has been no such order that the parties point to and Defendants clearly have not defaulted, so Nali is easily and materially distinguishable.
Similarly, Raines v. J.R. Jones Fixture Co., No. 12-cv-2129 (JNE/TNL), 2013 WL 1856768, *1 (D. Minn. May 2, 2013), which Plaintiffs in the present case also cite, involved an order for entry of default. The defendants in Raines had made no argument against setting the audit period as Plaintiffs requested, and the court adopted that audit period. Raines also does not contain persuasive analysis on the issue of the proper way to interpret the phrase “through the present” in a complaint. The remaining Minnesota federal court cases which Plaintiffs cite in support bear the same procedural posture clearly distinguishable from the present case, and fail to be apposite here for the same reasons as Raines. See, Johnson v. Storms, No. 11-cv-3604 (MJD/FLN), 2012 WL 1379376 (D. Minn. April 20, 2012); Seipel v. Speck Tacular Cos., Inc., No. 8-cv-5051 (RHK/FLN), 2008 WL 5157713 (D. Minn. Dec. 9, 2008); Gavanda v. Paint Saint, No. 7-cv-144 (PAM/JSM), 2007 WL 2123561 (D. Minn. July 20, 2007).
*24 None of the cases Plaintiffs cite from outside this jurisdiction support Plaintiffs’ assertion that courts “routinely permit a party an audit ‘through the present’ as pled in the complaint.” (See, Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 27). Locals 302 & 612 of Int’l Engineers Constr. Ind. Health & Security Fund v. Trepus Corp., No. C13-0170-MAT, 2013 WL 4547202, *1-3 (D. W.D. Wash. Aug. 28, 2013), involved a grant of summary judgment where a district court ordered the defendants to produce records from a date certain “through the present.” The motion for summary judgment was unopposed and the interpretation of the language relevant to the present case was not part of the court’s analysis. Id. Here, on the other hand, the length of the Audit Period is highly contested.
In Laborers’ Pension Fund v. Morack Refractory Const., Inc., No. 91 C 228, 1993 WL 181752, *1 (D. N.D. Ill. May 26, 1993), the initial audit period to recover alleged delinquent fringe benefits contributions was defined by a date on either end. The plaintiffs also sought “to compel production of necessary documents for a fringe benefit compliance audit for the period May 1, 1991 through the present.” Id. Liability for this “post-audit period,” as the Laborers’ Pension Fund court called it, was determined based upon the court’s finding that the defendant remained contractually bound by contract to do so. Id. at *7-12. Laborers’ Pension Fund has no bearing on the issue now before this Court.
Likewise, Trustees of Iron Workers’ Local No. 25 Pension Fund v. Municipal & Indus. Storage, Inc., No. 10-cv-12502-PDB-MKM, 2011 WL 1118701, *1 (D. E.D. Mich. Mar. 24, 2011) is materially distinguishable because the plaintiffs alleged, and the defendants did not dispute, that defendant “Municipal owe[d] unpaid fringe benefit contributions from the week ending March 7, 2010, through the present.”
Plaintiffs provide no other authority for their assertion that this Court should hold that Defendants should be subject to ongoing discovery obligations with no end in sight. As Defendants argue, to so hold would result in never-ending discovery, which could result in a constantly changing landscape of the case and repeated need to postpone dispositive motions and/or the trial. (See, Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 28). “At some point, the Court has to stop discovery and require the litigants to commit to their positions so that the case can be concluded.” CIBA Vision Corp. v. Bausch & Lomb, Inc., No. 99-CV-0034-RWS, 2003 WL 25774307, *3 (D. N.D. Ga. Dec. 22, 2003). There is a practical need for an endpoint to discovery. See, e.g., Levy v. Young Adult Inst., Inc., No. 13-cv-02861 (JPO/SN), 2015 WL 10846137, *2 (D. S.D. N.Y. Dec. 22, 2015) (noting that “a perpetual discovery obligation” is unfair to the party under such a burden); U.S. Legal Support, Inc. v. Hofioni, No. 13-cv-1770-MCE-AC, 2015 WL 5916692, * (D. E.D. Cal. Oct. 8, 2015) (rejecting request for rolling supplemental discovery and recognizing that ordering such supplementation would create “what would effectively be a period of endless discovery”); Roberts v. U.S., No. 9-6212 (WJM), 2012 WL 2374656, *5 (D. N.J. June 22, 2012) (rejecting request for continuous discovery, noting that “permitting this to go on further creates an unfair and unworkable situation [because p]arties are entitled to some certainty as they prepare for trial”); So. Elec. Supply Co., Inc. v. Lienguard, Inc., No. 5-cv-422, 2007 WL 2156658, *2 (D. S.D. Ohio July 25, 2007) (“Prolonging the litigation process with endless updates or discovery revelations is antithetical to the purpose of Rule 26 and detracts from the public policy goal of efficient litigation”).
*25 Accordingly, this Court denies Plaintiffs’ Motion to Compel Discovery Responses and Amend Scheduling Order, [Docket No. 122], to the extent that it asks this Court to rule that the Audit Period continues through the resolution of this case and asks this Court to order Defendants to supplement all discovery productions through that date. For purposes of this Motion and Defendants’ obligations to supplement under Rule 26(e), the Audit Period shall end as of the end of the discovery period. Whether evidence related to supplemental discovery concerning information from the date the Complaint was filed through the close of discovery will be admitted at trial is a matter more properly decided through a later motion in limine.
iv. Overrule Defendants’ Objections to Specific Discovery Requests
Initially, the Court notes that Plaintiffs stated on the record at the Motions Hearing that all paper documents have been produced and that Plaintiffs are no longer moving to compel production of additional paper documents. (Feb. 15, 2017, Motions Hearing, Digital Record, 2:58-59). Thus, the Court considers the following requests in Plaintiffs’ Motion to Compel, [Docket No. 122], withdrawn: (1) overrule the overbroad and burdensome objections to Document Requests 156 and166; (2) overrule the “temporal scope” objection made to 149 of the 154 requests in Plaintiffs’ Second Set of Document Requests; (3) overrule the objections to Document Request Nos. 30 and 31 as “vague and ambiguous”; (4) overrule the objections to Document Request Nos. 113-117 based on attorney-client privilege and the work-product doctrine; and (5) order Defendants to further respond to Document Request Nos. 155-165 and 167. The remaining discovery requests at issue in this portion of Plaintiffs’ Motion to Compel, [Docket No. 122], are Interrogatory Nos. 1-8 and 10-11. Plaintiffs’ arguments are addressed herein in the order they were presented to this Court.
1. Interrogatory Nos. 10, 11: Overbroad and Unduly Burdensome Objections
INTERROGATORY NO. 10: For each of your employees during the period of January 1, 2008 through the present, identify the union to which such employee is a member together with any local union affiliation.
ANSWER: The request is overly broad and unduly burdensome and amounts to hundreds of interrogatories, which exceeds the limits on Interrogatories. To the extent to which the Defendants are aware of any particular employee’s union affiliation, that information has been or will be provided in response to Defendants’ response [sic] to Plaintiffs’ Document Requests.
INTERROGATORY NO. 11: With regard to any document produced by Defendants for which Defendants contend are contemporaneously accurate records establishing what employees performed what covered work on what project on what date and for what hours pursuant to the CBAs and/or 29 U.S.C.A. § 1059, identify in detail why Defendants contend each such record type can be relied upon by the Plaintiffs as being accurate and admissible as a business record in this proceeding.
ANSWER: Defendants object as the question is vague, ambiguous and overbroad and calling for a legal conclusion. The records produced were kept in the ordinary course of business and provide contemporaneous records of what actually occurred. Witnesses will testify as to the accuracy of those records and the manner in which the specific records were maintained. The volume, scope and specificity of the voluminous records demonstrate why the records can be relied upon. Additionally, the huge volume of documents produced precludes a complete discussion in an interrogatory response as to why each such particular document is admissible and reliable.....
(Lawrie Aff., Exh. K, [Docket No. 127-2, 48-49).
*26 Plaintiffs challenge the objections to Interrogatory Nos. 10 and 11, arguing that the aforementioned discovery requests are not overbroad and unduly burdensome. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 29). In response, Defendants assert that “the remaining overbroad and unduly burdensome objection at issue relates exclusively to the production of ESI.” (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 31). The Court understands this response to mean that Defendants have not withheld any information, other than ESI, which is responsive to Interrogatory Nos. 10 or 11 on the basis that Interrogatory Nos. 10 or 11 is overbroad or unduly burdensome. As explained in this Court’s analysis of Defendants’ Motion for Protective Order, above, the Court agrees that further production of ESI is not warranted.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks the Court to overrule Defendants’ objection to Interrogatory Nos. 10 and 11, the Motion is denied.
2. Interrogatory Nos. 1-6, 11: Vague and Ambiguous Objections
Next, Plaintiffs challenge Defendants’ objections to Interrogatory Nos. 1-6 and 11 as “vague and ambiguous.” (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 38-40). Defendants respond that they are not withholding any information responsive to these discovery requests because of objections to the requests as vague and ambiguous. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 33-34). Plaintiffs have not contested this assertion. However, the Court recognizes that because it has within this Order now defined the Audit Period, some supplementary production may be necessary.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks the Court to overrule Defendants’ objection that Interrogatory Nos. 1-6 and 11 are vague and ambiguous, the Motion is denied. Nevertheless, Defendants are ordered to supplement their production of any documents responsive to these Interrogatories from within the Audit Period as now defined in this Order or inform Plaintiffs by March 21, 2017, that no such additional documents exist.
3. Interrogatory Nos. 1-3: Attorney-Client Privilege and Work Product Objections
INTERROGATORY NO. 1: If you know the existence of, or anticipate any, statements of any persons, including parties and non-parties, supporting the Defendants’ contention that [Alpha Oil’s] ownership structure was dictated by a financial institution, please identify each and every person making the statement, state the date on which the statement was given, the substance of the statement and the identity of the person obtaining the statement.
ANSWER: Defendants object to Interrogatory No. 1 as vague and ambiguous, and to the extent it seeks information protected by Attorney-Client privilege or Work Product doctrine. To the extent this Interrogatory asks Defendants to identify the existence of any “statements” as that term is defined in Federal Rule of Civil Procedure 26(b), Defendants are unaware of any such statements. To the extent this Interrogatory asks Defendants to identify individuals who may be called as future witnesses, Defendants have yet to determine who they will call as witnesses at trial. Defendants will update this response as required by the Court and the Federal Rules of Civil Procedure. Subject to and without waiving the foregoing objections and qualifications, Defendants identify the following individual(s). [Defendants identified one specific individual and “[b]ankers at each bank with which Defendants have maintained accounts [who] also have knowledge regarding Defendants’ banking and financing within the Audit Period.”]
INTERROGATORY NO. 2: If you know the existence of, or anticipate any, statements of any persons, including parties and non-parties, supporting the Defendants’ contention that Defendant companies are required to share insurance policies, please identify each and every person making the statement, state the date on which the statement was given, the substance of the statement and the identity of the person obtaining the statement.
*27 ANSWER: Defendants object to Interrogatory No. 2 as vague and ambiguous, and to the extent it seeks information protected by Attorney-Client privilege or Work Product doctrine. To the extent this Interrogatory asks Defendants to identify the existence of any “statements” as that term is defined in Federal Rule of Civil Procedure 26(b), Defendants are unaware of any such statements. To the extent this Interrogatory asks Defendants to identify individuals who may be called as future witnesses, Defendants have yet to determine who they will call as witnesses at trial. Defendants will update this response as required by the Court and the Federal Rules of Civil Procedure. Subject to and without waiving the foregoing objections and qualifications, Defendants identify the following individual(s). [Defendants identified one specific individual.]
INTERROGATORY NO. 3: If you know the existence of, or anticipate any, statements of any persons, including parties and non-parties, supporting the Defendants’ contention that Defendant companies were required to cross-collateralize all assets, please identify each and every person making the statement, state the date on which the statement was given, the substance of the statement and the identity of the person obtaining the statement.
ANSWER: Defendants object to Interrogatory No. 3 as vague and ambiguous, and to the extent it seeks information protected by Attorney-Client privilege or Work Product doctrine. To the extent this Interrogatory asks Defendants to identify the existence of any “statements” as that term is defined in Federal Rule of Civil Procedure 26(b), Defendants are unaware of any such statements. To the extent this Interrogatory asks Defendants to identify individuals who may be called as future witnesses, Defendants have yet to determine who they will call as witnesses at trial. Defendants will update this response as required by the Court and the Federal Rules of Civil Procedure. Subject to and without waiving the foregoing objections and qualifications, Defendants identify the following individual(s).... See Defendants’ Answer to Interrogatory No. 1.
Lawrie Aff., Exh. H, [Docket No. 127-1], 61-63).
Plaintiffs ask the Court to overrule Defendants’ objections based on attorney-client privilege and/or the work product doctrine to Interrogatories 1-3. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 40-41). Defendants state that they are not withholding statements responsive to Interrogatories 1-3 under the work product doctrine or attorney-client privilege. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 34).
Thus, from the record before the Court, it appears that Defendants are not withholding any responsive information as privileged or protected by the work product doctrine. However, the Court again recognizes that because it has within this Order now defined the Audit Period, some supplementary production may be necessary.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks the Court to overrule Defendants’ objection to Interrogatory Nos. 1-6 and 11, the Motion is denied. Nevertheless, Defendants are ordered to supplement their Responses to these Interrogatories as needed with information or documents from within the Audit Period as now defined in this Order, supplement the Privilege Log to reflect any additional responsive documents being withheld, or inform Plaintiffs by March 21, 2017, that no such documents or information exist.
v. Order Defendants to Fully Respond to Interrogatory Nos. 7-8, 10-11
Plaintiffs argue that notwithstanding their objections, Defendants have failed to provide complete answers and responses to certain Interrogatories. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 41-46). Specifically, Plaintiffs allege that Defendants have failed to fully respond to Interrogatory Nos. 7-8 and 10-11. (Id.).
*28 INTERROGATORY NO. 7: Identify the manner in which the hours worked by your employees are recorded, maintained, and stored. Specifically, describe the documents prepared by you or your employees to record the actual hours worked as well as any document retention policy pertaining to such records.
ANSWER: Mary Jo Jackson has prepared Charps payroll and still does. Ms. Jackson gets timesheets from the foreman out in the field by email attachment, that information is entered into Sprectrum [sic] and then Ms. Jackson reviews that information and then payroll is run each week. The time sheets are maintained in paper format by Ms. Jackson which were printed out from the receipt of emails. Charps has retained those timesheets. For the payroll for Charps large project in Pennsylvania, the time was processed by Kevin Berg and those documents were maintained in the field office in Pennsylvania.
Ms. Jackson did C&G payroll from 2005 until about 2011 and then Sandy Gray did it from February, 2011 to June, 2011 until the company was temporarily shelved. Except for a 9-month period when CLA did C&G’s payroll from mid 2012 to mid 2013, that payroll was processed by Sandy Gray when the company had numerous employees. Linda Quern in 2014 entered Alpha’s payroll and now does C&G. Michelle Godin processed C&G payroll from March 2013 until December 31, 2015.
INTERROGATORY NO. 8: With respect to each of the monthly contribution reports submitted to the Funds for all periods at issue in this lawsuit, identify (a) the individual(s) who were responsible for preparing the reports, (b) the specific tasks each such individual performs in the process of preparing each report, (c) the documents reviewed or consulted in order to prepare the reports, and (d) the method used to calculate the amounts owed to the Plaintiffs’ [sic] each month.
ANSWER: Sandy Charpentier was responsible for preparing the reports from the time Charps signed on to the Union until 2008. Rita Westrum took over those responsibilities in 2008 until Lori Spray and Mary Joe [sic] Jackson took over those responsibilities from her in about January, 2014. Lori Spray has been responsible since then and remains responsible, except for the period of April, 2016 until September, 2016 when it was performed by Debbie Vigil. Generally, these individuals would pull reports out of Quickbooks or Spectrum and would receive contribution reports either in the mail or through the Funds website and would perform the necessary calculations and then issue payment either electronically or by check.
(Lawrie Aff., Exh. K, [Docket No. 127-2], 47-48).
Plaintiffs contend that Defendants have not responded fully to Interrogatory No. 7 in that they have not “indicated the very basic point of how employees’ time is actually recorded” and they have not indicated how the records are processed for Defendants other than Defendant Charps. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 42). Regarding Interrogatory No. 8, Plaintiffs argue that Defendants’ Answer fails to identify any specific task performed to calculate the amounts owed, any specific report in Quickbooks or Spectrum utilized, or the methods of calculation. (Id.at 42-43). Defendants reply that their Answers are complete and they invite the Court to review the responses and determine whether additional responses are required. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 37).
*29 Having reviewed Defendants’ responses, the Court finds that additional responses are required. With respect to Interrogatory No. 7, Defendants shall supplement their Answer to explain how the time is recorded by the employees and provide information on the timesheet processing steps, identifying which processes and timekeeping practices pertain to which Defendant. For Interrogatory No. 8, Defendants shall provide more detail on the process by which the amounts due are calculated, including which reports are utilized and the method of calculation used.
INTERROGATORY NO. 10: For each of your employees during the period of January 1, 2008 through the present, identify the union to which such employee is a member together with any local union affiliation.
ANSWER: The request is overly broad and unduly burdensome and amounts to hundreds of Interrogatories, which exceeds the limits on Interrogatories. To the extent to which the Defendants are aware of any particular employee’s union affiliation, that information has been or will be provided in response to Defendants’ response to Plaintiffs’ Document Requests.
(Lawrie Aff., Exh. K, [Docket No. 127-2], 48-49).
In yet another challenge to the boxes of paper documents Defendants produced in 2016, in regard to this Interrogatory, Plaintiffs argue that the “wholesale dumping” of paper documents does not fully answer the Interrogatory. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 43). Defendants argue that they compiled and produced the requested information “in connection with the Expert Report and Rebuttal Expert Reports produced by the Defendants.” (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 37). In support, Defendants provide a Declaration from Sandy Gray, accountant and controller for Defendant Clearwater, in which Gray states that she and Lori Spray spent approximately 490 hours creating summary reports in preparation for the Defendants’ expert reports in this lawsuit. (Gray Dec., [Docket No. 145], 2-3). Review of this Declaration, however, shows that it says nothing about union affiliations or membership, so the basis for Defendants’ argument remains unclear. Nevertheless, Defendants have instead indicated that the requested information has now been provided in their expert reports previously produced to Plaintiffs, and Plaintiffs did not contest that assertion at the February 15, 2017, Motions Hearing.
In any event, Defendants also produced the underlying documents responsive to this Interrogatory as part of their document production of records in 2016. The Court notes again that Plaintiffs are now in possession of their own searchable electronic format of the papers produced in the bankers boxes in 2016.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], requests the Court to order Defendants to supplement their answer to Interrogatory No. 10, the Motion is denied.[12]
INTERROGATORY NO. 11: With regard to any document produced by Defendants for which Defendants contend are contemporaneously accurate records establishing what employees performed what covered work on what project on what date and for what hours pursuant to the CBAs and/or 29 U.S.C.A. § 1059, identify in detail why Defendants contend each such record type can be relied upon by the Plaintiffs as being accurate and admissible as a business record in this proceeding.
ANSWER: Defendants object as the question is vague, ambiguous and overbroad and calling for a legal conclusion. The records produced were kept in the ordinary course of business and provide contemporaneous records of what actually occurred. Witnesses will testify as to the accuracy of those records and the manner in which the specific records were maintained. The volume, scope and specificity of the voluminous records demonstrate why the records can be relied upon. Additionally, the huge volume of documents produced precludes a complete discussion in an interrogatory response as to why each such particular document is admissible and reliable.....
*30 (Lawrie Aff., Exh. K, [Docket No. 127-2], 49-50).
Plaintiffs argue that Defendants’ Answer to Interrogatory No. 11, is deficient because it does not specifically identify any documents; it merely refers to the huge volume of paper documents produced previously in 2016. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 45). Defendants respond that all responsive records have been produced and “[g]iven the huge volume of contemporaneous records regarding payroll, pension fund contributions and the like, it is simply not possible to list each and every such document in response to an Interrogatory request.” (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 38).
When read carefully, Interrogatory No. 11 does not in fact ask Defendants to identify each and every document consisting of a contemporaneous record; it asks Defendants to “identify in detail why Defendants contend each such record type can be relied upon by the Plaintiffs as being accurate and admissible as a business record in this proceeding.” In their Answer, Defendants explained why the records produced could be relied upon as accurate as business records and why they would be admissible. Defendants appear to have answered Interrogatory No. 11 as actually drafted.
In addition, for the reasons stated above, the Court has concluded that Defendants have already produced the records at issue as they were kept in the ordinary course of business and, in doing so, they have complied with their production obligations regarding those documents. Moreover, Plaintiffs admittedly now possess their own searchable electronic database of the documents at issue.
Accordingly, to the extent that Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], asks the Court to order supplemental responses to Interrogatory No. 11, the Motion is denied.
vi. Amend the Scheduling Order
Finally, Plaintiffs ask the Court to extend the deadlines in the Second Amended Scheduling Order, [Docket No. 108], and set the termination of discovery for September 1, 2017; the date for filing and completing hearings on nondispositive motions for October 1, 2017; the date for filing and completing hearings on dispositive motions for December 1, 2017; and the date for the case to be trial ready for the later of March 1, 2018, or 30 days after the Court rules on any dispositive motion. (Plfs’ Mtn to Compel, [Docket No. 122], 2). This request would effectively extend the discovery and motions deadlines by 6 months and postpone the trial-ready date for at least 7 months. (See, Sec. Amend. Sched. Order, [Docket No. 108] ).
*31 Plaintiffs argue that there is good cause to amend the Second Amended Scheduling Order based on the delay in obtaining the multitude of paper documents produced in the late summer and fall of 2016, which total hundreds of thousands of pages. (Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 47-48). Plaintiffs’ counsel alleges that during a meet-and-confer on outstanding discovery issues, Defendants’ counsel appeared to agree that the current timeline was unworkable. (Lawrie Aff., [Docket No. 127], 6). Defendants argue now, however, that there is not good cause to amend the Scheduling Order, pointing out that it has already been amended twice, and the case is over 2.5 years old. (Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 15). In addition, this Court has once before denied a Motion to Amend the Scheduling Order, finding Plaintiffs failed to show they had been reasonably diligent in timely bringing objections to the sufficiency of Defendants’ discovery responses before the Court. (Order, [Docket No. 59], 11-13).
Because the Court has herein ordered the production of additional discovery and allowed Defendants to conduct a Second Rule 30(b)(6) deposition, some limited extension to complete existing discovery is necessary. Accordingly, Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], is granted in part and denied in part to the extent that it asks the Court to amend the Scheduling Order.
No new discovery requests may be served unless otherwise provided for in this Order. The existing discovery cut-off of March 1, 2017, notwithstanding, all supplemental written discovery responses, if any exist to be made, provided for in this Order shall be completed on or before March 21, 2017. The Second Rule 30(b)(6) deposition noticed by Defendants shall be scheduled and completed on or before April 1, 2017. The Second Amended Scheduling Order, [Docket No. 108], shall otherwise remain unchanged.
VII. CONCLUSION
For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED:
1. That Defendants’ Motion to Compel, [Docket No. 110], is GRANTED IN PART AND DENIED IN PART. Plaintiffs are ordered to produce redacted contracts between Plaintiffs and Wilson-McShane that were in effect during the Audit Period of January 1, 2008, through March 1, 2017. Plaintiffs are also ordered to produce within 14 days of this Order any contribution reports/remittance reports submitted to Plaintiffs by Defendant Charps which Plaintiffs have not already produced as discussed above. Defendants’ Motion is otherwise denied.
2. That Plaintiffs’ Motion for a Protective Order, [Docket No. 116], is GRANTED IN PART AND DENIED IN PART. Defendants may fully depose Plaintiffs’ Rule 30(b)(6) designee at a Second Rule 30(b)(6) deposition on topics 1, 5, 8, 11, 12, and 13. Defendants may depose Plaintiffs’ Rule 30(b)(6) designee on topics 6 and 9 as limited in this Order above. Defendants shall not depose Plaintiffs’ Rule 30(b)(6) designee on topics 2, 3, 4, 7, and 10.
3. That Plaintiffs’ Motion to Compel Discovery Responses and Amend the Scheduling Order, [Docket No. 122], is GRANTED IN PART AND DENIED IN PART. By March 21, 2017, Defendants are ordered to (1) produce any supplemental documents responsive to Interrogatory Nos. 1-3 from within the Audit Period as defined in this Order which have not yet been produced, (2) supplement the Privilege Log to reflect any additional responsive documents being withheld, or (3) inform Plaintiffs that no such documents exist, and (4) Defendants are ordered to supplement their Answers to Interrogatory Nos. 7 and 8 as set forth above. In all other aspects, the Motion is denied.
4. That Defendants’ Motion for Protective Order, [Docket No. 123], is GRANTED.
Footnotes
The parties do not agree on the definition of “the Audit Period,” and Plaintiffs did not, in their Responses to the Requests for Documents, provide their definition of “the Audit Period.” (See Kappenman Dec., Exh. 2, [Docket No. 113-1], 8-15; Id. at Exh. 3, [Docket No. 113-1], 21). That disagreement forms the basis for part of Plaintiffs’ present Motion to Compel, [Docket No. 122], and is discussed in the analysis thereof. (See, Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 27-28; Mem. in Opp. to Plfs’ Mtn to Compel, [Docket No. 141], 28-31).
The parties do not identify the original source of the request for the ESI now at issue.
The Court notes that in relation to the present Motions, the parties have filed over 800 pages of Declarations, Affidavits, and accompanying Exhibits, in addition to the 190+ pages consisting of the actual Motions and Memoranda in support or opposition to them. The parties’ citations to these voluminous filings left much to be desired. In portions of Plaintiffs’ Memoranda, Plaintiffs provided only general citations, such as citing to Exhibits H through K from the accompanying Lawrie Affidavit for reference to the text of the Interrogatories or Requests for Documents at issue. (See, Mem. in Supp. of Plfs’ Mtn to Compel, [Docket No. 125], 29). The exhibits cited encompass 75 pages, and Plaintiffs did not indicate specific pages on which the Court could locate the discovery requests at issue. To further complicate matters, the exhibits referred to were mislabeled, making this Court’s review and consideration of the massive filings by the parties even more difficult and time-consuming.
Because this Court grants in part and denies in part each Motion for which Plaintiffs or Defendants request award of the corresponding attorney’s fees and costs, all such requests are denied.
This section sets forth the Standards of Review applicable to all the Motions presently before this Court. As the individual issues require consideration of additional Standards of Review, those are set forth below as required.
Wilson-McShane Corporation is the Plaintiff Trustees’ third-party administrator. (Mem. in Opp. to Defs’ Mtn. to Compel, [Docket No. 136], 2).
Defendants contend that the contracts were encompassed by Request No. 3 and note that they have also served Plaintiffs with supplemental discovery requests that specifically reference the contracts. (Id. at 3 & n.1). Therefore, Defendants inform the Court that if it determines that the contracts were notencompassed by Request No. 3, the issue of the contracts’ relevance will “be before the Court again on the supplementary requests.” (Id. at 3 n.3).
Also called “remittance reports” at the February 15, 2017, Motions Hearing.
To require Plaintiffs to provide Defendants this electronic, searchable set of documents at no cost would be similar to ordering a party to provide an opposing party with a free license for the word processing software used to prepare answers to the opposing party’s interrogatories.
Plaintiffs do not oppose producing a Rule 30(b)(6) designee for deposition on topics that were entirely disallowed at the First Rule 30(b)(6) deposition. (Feb. 15, 2017, Motions Hearing, Digital Record, 2:10-11).
Defendants actually argue it would cost $9.1 million, but their calculations are incorrect. Based on their review of ESI so far, they estimate that they could review 15.35 documents per hour. The remaining ESI contains 6.7 million documents, which would take approximately 436,482 hours (approximately 49.8 years) to review. 436,482 hours at a rate of $210 per hour would equal $91,661,220.
The Court also notes that Rule 33 guidelines on counting interrogatories raises a question as to whether Interrogatory No. 10 constitutes an impermissible number of interrogatories because under Rule 33, the identification of each employee, then his or her individual union membership, and then his or her individual local union affiliation could in each instance possibly constitute a distinct and separate interrogatory.