Oral argument was held telephonically on November 15, 2017, before Hon. Rosalyn Chapman, Special Master. Joshua Furman and Peter A. Arhangelsky attorneys with the law firm Emord & Associates, appeared on behalf of Plaintiff NIC; Stephanie Sperber, an attorney with the law firm Callahan & Blaine APLC, appeared on behalf of Defendant NTG; and counsel did not appear on behalf of Defendants Andrew Nilon, Sam Pfleg, Matthew Dronkers, Taylor Demulder, Sam Schoonover, and Giovanni Sandoval (collectively, “non-NTG Defendants”).

Relevant Procedural History

I.

This action commenced on December 7, 2015, when Plaintiff NIC filed its original complaint against Defendant NTG and Defendants Scott J. Ferrell, Ryan A. Ferrell, Victoria C. Knowles, David Reid, and Andrew Lee Baslow (collectively with NTG, “NTG Defendants”) and non-NTG Defendants. On May 10, 2016, Plaintiff NIC filed its Second Amended Complaint for Damages and Injunctive Relief (“SAC”) against all defendants, raising claims for: (1) malicious prosecution, against Defendants NTG, Scott J. Ferrell, Ryan M. Ferrell, Victoria C. Knowles, David Reid, Andrew Lee Baslow, Andrew Nilon and Giovanni Sandoval; (2) violation of RICO (Racketeering Influenced and Corrupt Organizations Act), 18 U.S.C. §§ 1961, 1962c & 1964, by wire fraud, mail fraud, extortion, obstruction of justice, bribery and witness tampering, against all Defendants; (3) conspiracy to violate RICO, 18 U.S.C. §§ 1961, 1962(d) & 1964(c), against all Defendants; and unfair competition in violation of California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq., against all Defendants.[1][Dkt. 92].

*2 Judge Selna notes that the SAC identifies four lawsuits filed in connection with the false advertising scheme: (1) Andrew Nilon v. Natural-Immunogenics Corp., 12 CV-0930-LAB-BGSx ( S.D. Cal. 2012) (removed from San Diego County Superior Court)(“Nilon”); (2) Sam Pfleg v. Nature's Way Products, Inc., 12 CV 01018-LAB-BLM (S.D. Cal. 2012) (removed from San Diego County Superior Court) (“Nature's Way”); (3) Matthew Dronkers v. Kiss My Face LLC, 12 CV 01151-JAH (S.D. Cal. 2012) (“Kiss My Face”); and (4) Morales, et al. v. Magna Inc., 10 CV 1601-EDL (N.D. Cal. 2010) (“Bobba”). [Dkt. 157]. “Sandoval later substituted in as lead plaintiff and class representative in Nilon.” Id. And the SAC also identifies four lawsuits filed in connection with the wiretapping scheme: (1) Andrew Nilon v. ChromaDex Inc., No. 56-2013-00436790-CU (Ventura County Superior Court) (“ChromaDex”); (2) Taylor Demulder v. Carter-Reed Co., 12 CV 0333-BTM-MDD (S.D. Cal. 2012) (“Carter-Reed”); (3) Sam Schoonover v. Himalaya Drug. Co., 12 CV 1782-JLS-RBB (S.D. Cal. 2012) (“Himalaya Drug”); and (4) Raquel Torres v. Nutrisystem Inc., 12 CV 1854-CJC-JPR (C.D. Cal. 2012) (removed from Orange County Superior Court) (“Nutrisystem”). Id.

II.

On April 4, 2017, Defendant NTG served Plaintiff NIC with Set Four, Requests for Production of Documents (“RPD”). Sperber Decl. ¶ 2. On May 2, 2017, Plaintiff NIC served responses and objections to Set Four, RPD. Id. ¶ 3. On July 13, 2017, NTG's counsel, Stephanie Sperber (“Sperber”), sent NIC's counsel, Peter Arhangelsky (“Arhangelsky”), a letter regarding NIC's responses and objections and seeking a conference. Id. ¶ 4, Exh. 1; Arhangelsky Decl. ¶ 11. On July 25, 2017, Arhangelsky responded on behalf of NIC, stating, in part: “If NTG insists that NIC must produce additional documents in response to the objectionable, boilerplate requests in NTG's Fourth Set, NIC will seek a protective order from the Court.” Sperber Decl. ¶ 5, Exh. 2; Arhangelsky Decl. ¶ 12.

Counsel for Plaintiff NIC and Defendant NTG met telephonically on July 28, 2017. Sperber Decl. ¶ 6; Arhangelsky Decl. ¶ 13. “At no point during that call did NIC state that it would request a protective order.” Supp. Sperber Decl. ¶ 2. During the conference, “NIC's counsel confirmed that it intends to utilize documents from the 8 cases identified in the SAC as well as documents from any other case where the NTG Defendants have served as counsel.” Id. (emphasis added). NTG's counsel “reiterated that NIC need not identify documents already produced in this litigation, but that documents that had not been produced and were identified as ‘publicly available’ would need to be identified.” Id. ¶¶ 7-8, Exh. 3.

The Discovery Disputes

III.

Defendant NTG seeks to compel Plaintiff NIC to provide supplemental responses to Set Four, RPDs, which NTG divides into two categories. As to the first category, which consists of ten document requests that contain typographical errors, NTG argues that the inadvertent typographical errors in the requests did not prevent NIC from understanding the requests, since each request specifically refers to an allegation from a paragraph in the SAC, and NIC's claims that it could not respond are disingenuous. Jt. Stip. at 2:11-25. Thus, Defendant NTG seeks to compel Plaintiff NIC to provide “a supplemental response that identifies by bates number all documents that are responsive....” Id. at 1:4-6; see also id. at 2:19-25 (“Because NIC ... failed to assert any objections to the RFPs, NTG asks that NIC be required to produce all documents responsive to [Category 1 documents requests] (if not previously produced) as well as identify those documents by bates number to ensure NIC does not attempt to hide behind documents identified in its privilege logs.” (underlining in original).).

As to the second category, which consists of 238 document requests, Defendant NTG notes that since Plaintiff NIC's responses make clear that NIC supports its allegations, in part, with documents filed in cases other than the eight cases that are the underlying subjects of this litigation, it must identify or produce those documents, which have never been produced; otherwise, NIC has not responded to the requests. Id. at 2:26-4:2. Thus, Defendant NTG seeks to compel Plaintiff NIC to “either specifically identif[y] or produce[ ] the publicly-available documents it references.” Id. at 1:7-2. Finally, NTG seeks reasonable expenses under Rule 37(a)(5)(A). Id. at 1:13-14.

*3 On the other hand, Plaintiff NIC claims that although its responses to the first category of document requests do “not expressly state” that it has produced “all responsive documents in NIC's exclusive custody or control,” NIC represented that this is so in its July 25, 2017 letter and during the conference between counsel. (emphasis added). Id. at 4:4-27. “To the extent that NTG desires written confirmation through a formal supplement, NIC would have obliged that request....” Id. at 4:28-5:3. Further, NIC notes, the ten discovery requests are “redundant” with other requests served by NTG, and also seek information related to other legal matters beyond the eight cases listed in the SAC. NIC Supp. Memo. at 1:11-2:4.

As to the Category 2 document requests, Plaintiff NIC argues that Defendant NTG improperly is attempting to convert document requests into interrogatories by asking NIC to identify documents, and there is no authority requiring NIC to identify which documents are responsive to which document requests. Jt. Stip. at 5:4-6:2. Once again, Plaintiff NIC contends that it has produced “all responsive documents in NIC's exclusive custody or control”; thus, it need not produce documents that are publicly available. Id. (emphasis added). Lastly, Plaintiff NIC argues that sanctions are not appropriate because the document requests are burdensome and, even if NIC is ordered to provide a written supplement that simply states it has produced all responsive documents, that merely puts “form over substance [and] provid[es] NTG no discernible benefit....” Id. at 6: 3-18.

IV.

Defendant NTG moves to strike NIC's references to a motion for a protective order under Rule 26(c) in NIC's supplemental memorandum, see NIC Supp. Memo. at 3:3-25, arguing that NIC failed to meet and confer on this issue within the meaning of Local Rule 37-1 since no discussion of a protective order took place during counsel's conference. NTG Motion to Strike at 1. Defendant NTG notes that its counsel called this shortcoming to NIC's counsel's attention; but NIC did not correct its filings. Id. at 3-4; Sperber Decl. ¶¶ 2, 4, Exh. 1. In light of Plaintiff NIC's willful failure to comply with Local Rule 37, Defendant NTG argues, sanctions should be awarded against NIC and in favor of NTG. NTG Motion to Strike at 4. Alternatively, if the Special Master does not strike NIC's request for a protective order, NTG should be allowed to file a sur-reply addressing the issue. Id.

Plaintiff NIC opposes the motion to strike, arguing that its supplemental memorandum is not improper since the Court has discretion to issue a protective order under Rule 26(c) when a motion to compel is denied under Rule 37(a)(5)(B), (C). NIC Oppo. at 1-3. “To the extent NTG now demands compliance beyond what the Rules require, NIC would be entitled to a protective order.” Jt. Stip. at 6:9-11 (emphasis added). Plaintiff NIC argues that granting Defendant NTG's motion to require it to list documents and Bates numbers would place an undue burden on it; thus, a protective order would be required. Oppo. at 3. Further, Plaintiff NIC contends that it is not making a cross-motion for a protective order, so compliance with Rule 37(a) and Local Rule 37-1 is not necessary. Id. Lastly, Plaintiff NIC requests reasonable expenses incurred in opposing NTG's motion to strike. Id. at 4-5.

The Special Master, having reviewed the documents and considered the parties' arguments, denies Defendant NTG's motion to strike portions of Plaintiff NIC's supplemental memorandum, finding NIC is not raising a cross-motion for a protective order under Rule 26(c), but merely requesting consideration of a protective order in the event the Court denies NTG's motion to compel, pursuant to Rule 37(a)(5). Additionally, the Special Master denies the requests of both Defendant NTG and Plaintiff NIC for reasonable expenses incurred in either making or opposing the motion to strike. The lack of communication and cooperation between the parties is not something the Special Master wants to encourage with an award of attorney fees.

DISCUSSION

V.

*4 The scope of discovery under the Federal Rules of Civil Procedure is governed by Rule 26(b)(1), which provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” considering six factors: 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. Fed.R.Civ.P. 26(b)(1).

Under Rule 26(b)(2)(C), the Court must impose limitations to discovery when “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, and less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C).

Rule 26(a)(1) requires that the parties make Initial Disclosures that include, among other things, “a copy -- or a description and location – of all documents ... that the disclosing party has in its possession, custody, or control and may use to support its claims of defenses, unless the use would be solely for impeachment[.]” Fed.R.Civ.P. 26(a)(1) (emphasis added). Rule 34 uses almost identical language when providing for discovery by requests for the production of documents: “A party may serve on any other party a request ... to produce and permit the requesting party to inspect [or] copy ... the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information....” Fed.R.Civ.P. 34(a)(1)(A) (emphasis added). Rule 34(b) requires that “[t]he request ... must describe with reasonable particularity each item or category of items to be inspected....” Fed.R.Civ.P. 34(b)(1)(A) (emphasis added).

Rule 34 further provides that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed.R.Civ.P. 34(b)(2)(C). Under Rule 34, “[a]n objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad.” Adv. Comm. Notes to 2015 Amendment. Further, “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed.R.Civ.P. 34(b)(2)(C). This means that “an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection.” Adv. Comm. Notes to 2015 Amendment.

As the Special Master has previously noted, “the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute. Toward this end, Rule 26(b) is liberally interpreted to permit wide-ranging discovery....” Cable & Computer Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997). Accordingly, the party resisting discovery carries a “heavy burden” of demonstrating why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Nat'l Academy of Recording Arts & Sciences, Inc. v. On Point Events, LP., 256 F.R.D. 678, 680 (C.D. Cal. 2009). The resisting party must specifically detail the reasons why each discovery request is improper. Beckman Indus. Inc. v. Int'l Ins. Co., 966 F.2d 470, 472-73 (9th Cir. 1992).

VI.

(1) Category 1 – RPD Nos. 103, 104, 108, 109, 121, 137, 189, 190, 266 & 355

*5 All ten requests in this category seek documents that support, refer or relate to particular allegations made in specific paragraphs of the SAC. Each document request refers to only one allegation in any SAC paragraph. For example, RPD No. 103 asks for: “All DOCUMENTS that support, refer, or relate to YOUR allegation in Paragraph 7 of the SAC that “Baslow has instructed and advised individuals to sign documents containing statements known to be false in support [, refer, or relate to] of those fabricated and fraudulent NTG lawsuits.” Jt. Stip. at 7:8-12 (bracketed words are the “typographical error”). Here are the requests in dispute:

Each of the foregoing document requests includes a typographical error of some sort. RPD Nos. 103, 104, 108, 109, 121, 137, and 190, as set forth in brackets in RPD No. 103 quoted above, include the extra words “refer, or relate to” in the quoted allegation from the specified paragraph of the SAC, Jt. Stip. at 12-14. RPD No. 266 is missing the word “payment” between the words “future” and “in exchange for” in the quoted allegation from Paragraph 203 of the SAC. Id. at 15. And at the end of RPD No. 355 -- after the period -- an extra phrase is inserted. Id. at 15-16.

In response to each of these requests, NIC objected that it “is unable to respond ... because the quoted passage does not appear in the Second Amended Complaint.... [B]ecause NIC has not advanced the exact quoted passage in its document, the Request is predicated on a false supposition, and no response here is possible.” Jt. Stip. at 7-12. However, NIC does not state whether it withheld any responsive documents on this ground, as required by Rule 34(b)(2)(C).

In the Joint Stipulation, Plaintiff NIC contends that although its responses to the Category one document requests do “not expressly state” that it has produced “all responsive documents in NIC's exclusive custody or control,” NIC would be willing to provide “written confirmation through a formal supplement,” if NTG requested. Id. at 4: 28-5:3. Further, Plaintiff NIC argues that the discovery requests are “redundant” with other requests served on NIC. NIC Supp. Memo. at 1:11-2:4.

It is well-recognized that the test for “reasonable particularity” within the meaning of Rule 34(b) “is whether the request places the party upon reasonable notice of what is called for and what is not. Therefore the party requesting the production of documents must provide sufficient information to enable [the party to whom the request is directed] to identify responsive documents. Courts have interpreted the ‘particularity’ requirement to mandate that a responding party be given sufficient information to enable it to identify responsive documents.” St. Paul Reinsurance Co., Ltd. v. Commercial Financial Corp., 198 F.R.D. 508, 514 (N.D. Ia. 2005) (internal quotation marks omitted) (citations omitted). Here, the ten document requests in Category 1 are stated with “reasonable particularity” within the meaning of Rule 34(b) in that they each refer to a specific allegation from an identified paragraph in the SAC; the requests “place the plaintiff[ ] upon reasonable notice of what is called for.” Id. Thus, Plaintiff NIC's objections of inability to respond to the Category 1 document requests are overruled, and Defendant NTG's motion to compel supplemental responses to the Category 1 document requests is granted.

*6 In the Joint Stipulation, Plaintiff NIC asserts that it has produced all documents responsive to Defendant NTG's requests in its “exclusivecustody, or control.” By inserting the word “exclusive” before the words “custody, or control,” Plaintiff NIC contends that it need not produce responsive documents which are already in Defendant NTG's possession, custody or control or are publicly available. That is not so. NIC cannot unilaterally change the language of Rule 34(a). As the Sixth Circuit holds: “[F]ederal courts have consistently held that documents are deemed to be within the ‘possession, custody, and control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 11205 (1996); Cf. United States v. Int'l Union of Petroleum and Indus. Workers, 870 F.2d 1450, 1454 (9th Cir. 1989)(“[W]e inquire whether actual control exist[s].”).

Here, there is no doubt that Plaintiff NIC has actual possession, custody and control of documents from other cases NTG has litigated than the eight cases which are the subject of the SAC, and NIC represents in the discovery dispute that documents from these other cases support its claims and defenses. Nevertheless, Plaintiff NIC objects to producing these documents because NIC contends that the documents are undoubtedly in Defendant NTG's case files and are publicly available to NTG from the courts in which the documents were filed. Under Rule 34, however, NIC cannot avoid its obligations to produce these documents:

Shatsky v. Syrian Arab Republic, 312 F.R.D. 219, 223-24 (D.D.C. 2015) (citations omitted); Prime Focus Creative Services Canada, Inc. v. Legend3D, Inc., 2016 WL 6662724 (C.D. Cal. 2016); Cf. Martino v. Kiewit N.M. Corp., 600 Fed. Appx. 908, 911 (5th Cir. 2015) (upholding district court's sanction of party for not initially disclosing public document, stating “even if a document is publicly available or in the opposing party's possession, a party must still disclose it under Rule 26(a)(1)(A) to provide notice of evidence central to its claims or defenses” (emphasis added).).

As the District Court for the District of Columbia aptly observed, it would be grossly unfair to Defendant NTG if Plaintiff NIC was not ordered to produce all responsive documents, including those documents which NIC opines are in NTG's case files or are publicly available documents filed in various cases. As a law firm that has existed for several years and has employed dozens of attorneys, Defendant NTG has litigated hundreds, if not thousands, of cases. Defendant NTG cannot defend against Plaintiff NIC's claims and defenses without discovering which of the thousands of cases it has litigated contain documents NIC identifies as supporting its allegations in the SAC. Otherwise, discovery is blind man's bluff. United States v. Procter & Gamble, 358 U.S. 677, 682 (1958); see also Anderson v. Cryovac, Inc., 862 F.2d 910, 929 (1st Cir. 1988) (“Once a proper discovery request has been seasonably propounded, we will not allow a party sentiently to avoid its obligations by filing misleading or evasive responses, or by failing to examine records within its control.”).

*7 In making this ruling, the Special Master is cognizant of Judge Selna's Order limiting discovery to the eight cases set forth in the SAC and the Stratalutz matter. However, granting Defendant NTG's motion to compel does not conflict with that limitation. First, none of Defendant NTG's Set Four, RPD, specifically ask for documents from other cases; rather, such documents are merely part of a responsive group of documents. Second, for Defendant NTG to have an equal playing field at trial, where the Court may determine to admit evidence from other NTG cases at Plaintiff NIC's request, NIC should provide documents supporting NIC's allegations in the SAC, and produce all responsive documents, including documents from other cases, as requested by Defendant NTG's Set Four, RPD.

Lastly, the Special Master has compared the Category one document requests to other requests made by Defendant NTG, see Supp. Arhangelsky Decl., ¶ 4, Exh. B, and does not find them to be redundant; rather, they seek different documents. For example, Defendant NTG's Set One, RPD, seeks documents relating solely to the Nilon action, but not specifically documents supporting allegations in the SAC related to the Nilon action; Set Two, RPD, seeks documents regarding communications with Baker and others; and Set Three, RPD, seeks information related to Benjamin Quinto's declaration and Sovereign Silver. Id. In any event, even assuming arguendo that some documents responsive to Category one document requests may duplicate documents previously produced by NIC, NIC will be allowed to forego producing documents in response to Set Four that it has already produced to Defendants in this litigation.

For all these reasons, NIC's objections to the Category 1 document requests are overruled, and the Special Master grants NTG's motion to compel supplemental responses to Category 1 document requests.

(2) Category 2 – RPD Nos. 102, 105, 106, 107, 110-115, 122-128, 134-136, 139-188, 191-195, 203-217, 219-226, 228-257, 260-265, 267-277, 280-286, 290-295, 297-308, 311, 313-320, 322-335, 338-348, 350-351, 354, 362-371, 383, 389, 392-401, 408, 454, 456, and 462

Just like the document requests in Category 1, all of the document requests in this category seek documents that support, refer or relate to particular allegations from specific paragraphs of the SAC. Each request refers to only one allegation from a paragraph in the SAC. In response to each request, Plaintiff NIC made the following objections: (1) lack of proportionality; (2) documents are in NTG's own files; (3) requires NIC to produce an exhibit list in advance of deadlines; (4) seeks work-product or attorney-client relationship; (5) too broad in scope and seeks all documents in NIC's possession; (6) calls for legal conclusions; (7) misleading selection of allegations quoted in requests; and (8) NIC has produced responsive documents “through the Rule 45 process; information sourced from NTG Defendants' files and produced to NIC, including, but not limited to, documents listed in Dkt. 291-3 and 294-2; publicly available documents and records; information produced to NTG in the underling litigation (Nilon v. NIC, No. 12-CV-930 (S.D. Cal.)); documents listed in NIC's privilege logs that were produced in association with NIC's five prior productions; information found within NTG Defendants' files and subject to pending discovery disputes or motions; information sourced from non-NTG defendants that has been produced to NIC in discovery; discovery responses authored by NTG Defendants; discovery responses authored by non-NTG Defendants; information found within the non-NTG Defendants' files that is subject to pending discovery disputes or motions; information filed with the Court in this instant matter; and information filed with the Courts in all cases identified in the SAC. All such evidence is and has been available to NTG Defendants at all relevant times in this litigation, and will not be produced or reproduced.... The parties have jointly agreed that communications between counsel and client from and after December 7, 2015 shall not be logged.” Jt. Stip. at 17-820.

*8 The Special Master finds that none of Plaintiff NIC's objections has any merit. First, Plaintiff NIC does not dispute that the Category 2 document requests seek information relevant to NIC's claims and defenses; NIC has admitted this. Second, it is well-recognized that document requests under Rule 34 complement contention interrogatories under Rule 33, and both forms of discovery are consistent with the requirement that a party have some factual basis for its claims and allegations under Rule 11. Nat'l Academy of Recording Arts & Sciences, Inc., 256 F.R.D. at 682. Like contention interrogatories under Rule 33, requests under Rule 34 that seek documents supporting allegations or contentions in the complaint preferably should be served near the close of discovery -- now. Cable & Computer Tech., Inc., 175 F.R.D. at 651-52. Third, as discussed above, the fact that the information sought is equally available to Defendant NTG “is insufficient to resist a discovery request,” St. Paul Reinsurance Co., Ltd., 198 F.R.D. at 514; Nat'l Academy of Recording Arts & Sciences, Inc., 256 F.R.D. at 682, as Defendant NTG has the right to documents upon which NIC relies to support its claims and defenses. Fourth, to support its objection to the discovery, Plaintiff NIC complains about the manner in which Defendant NTG has responded to similar discovery from NIC. Supp. Arhangelsky Decl. ¶ 5, Exh. C. But such complaints are ill-advised since “discovery is not conducted on a ‘tit-for-tat’ basis” and it is not desirable for a party to emulate the opposing party's perceived faults. Nat'l Academy of Recording Arts & Sciences, Inc., 256 F.R.D. at 680.

Lastly, NIC contends that the Category 2 requests are objectionable on the ground that they lack proportionality. Proportionality has always been a consideration under the discovery rules and the recent amendments to Rule 26 “do not alter the burdens imposed on the party resisting discovery.” Areizaga v. ADW Corp., 314 F.R.D. 428, 435 (N.D. Tex. 2016) (citing Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 463-69 (N.D. Tex. 2015).). In other words, a “party resisting discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.” Id. at 434. Likewise, a “party seeking to resist discovery ... still has the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address ... 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.” Id. at 435.

The Special Master finds that the factors described in Rule 26(b)(1) either support the motion to compel or are neutral: the issues at stake in the action are important; the amount in controversy is a neutral factor; although all parties theoretically have access to publicly available information, without Plaintiff NIC producing the relevant publicly available information, Defendant NTG's access to such information is illusory; the parties' resources is a neutral factor; the discovery is essential to NTG's trial preparation or decision to settle; and the burden or expense does not seem to be substantial, as discussed below.

NIC has submitted the declaration of its counsel, Arhangelsky, to support its claim of burden or lack of proportionality in responding to the Category 2 document requests. Arhangelsky states:

Arhangelsky Decl. ¶ 19 (emphasis in original).

*9 The Special Master notes that Arhangelsky does not state that there is any burden attendant to producing the publicly available documents to Defendant NTG. Instead, he addresses only NTG's alternate request that Plaintiff NIC identify the publicly available documents. As to that request, Arhangelsky states conclusorily that identifying responsive public documents “is an enormously burdensome task”; it would take “hundreds of professional hours” and the cost would “very likely exceed $30,000.00.” The declaration does not, however, establish any factual nexus between the “hundreds of professional hours” and the $30,000 estimate. And the Special Master notes that $30,000 in the context of discovery motions in this case does not appear to be an undue burden. To the contrary, Defendant NTG established that its reasonable expenses totaled more than $30,000 in one of the recent discovery motions. See Dkt. 494.

Further, the Special Master will consider whether the factors set forth in Rule 26(b)(2)(C) require that limitations be imposed on the discovery. First, the key factor is that only Plaintiff NIC can produce documents supporting its allegations in the SAC; not a third party. Thus, Plaintiff NIC cannot show, and has not shown, that the discovery can be obtained elsewhere. This is especially true, here, where Defendant NTG does not know what other cases it may have litigated over the years that NIC relies upon to support its claims and defenses. Although 238 document requests are a lot of requests, Plaintiff NIC has not shown that, considering the needs of the case and the Rule 26(b)(1)factors, the burden or expense to NIC outweighs the benefit to NTG from the discovery. Here, the SAC is 96 pages long and contains 412 paragraphs, many of which have more than one substantive allegation. In light of this, the 238 document requests reasonably relate to the needs of the case. Finally, any objection not specifically addressed in this Order is determined to be so devoid of merit, that it is frivolous.

For all these reasons, Plaintiff NIC's objections to the Category 2 document requests are overruled, and Defendant NTG's motion to compel supplemental responses to the Category 2 document requests is granted.

As set forth in the Order, Plaintiff NIC shall provide supplemental responses, and produce all responsive documents it has in its possession, custody and control, to the Category 1 and Category 2 document requests, including documents from other cases or publicly available documents. Defendant NTG cites no authority for its request that Plaintiff NIC should identify the responsive documents, rather than produce them. Moreover, pursuant to Rule 34(b)(2)(E), Plaintiff NIC may produce responsive documents “as they are kept in the usual course of business or ... organize and label them to correspond to the categories in the request.” Although there may be some responsive documents that are duplicative of documents NIC already has produced to Defendants, either in response to another document request or voluntarily (as in third-party discovery), Plaintiff NIC has not shown that such responsive documents will be “unreasonably duplicative” within the meaning of Rule 26(b)(2)(C). Nevertheless, NIC need not produce documents that are duplicative of documents NIC previously has produced to Defendants; however, when NIC does not produce a document in response to a specific document request because it has previously produced the document, NIC shall state that it has previously produced all responsive documents and identify the discovery request, by set and request number, in response to which the document was previously produced and/or identify the third party from whom the documents were received voluntarily. NIC need not identify the duplicative documents by Bates numbers.

VII.

Defendant NTG seeks attorney fees under Rule 37(a)(5), which provides that reasonable expenses must be awarded to the prevailing party when a motion to compel is granted, unless the opposing party's nondisclosure, response, or objection was substantially justified or other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). The Special Master finds that Defendant NTG attempted “in good faith to obtain the ... discovery without court action[.]” Fed.R.Civ.P.37(a)(5)(A)(i). And the Special Master also finds that Plaintiff NIC's objections to the document requests in Set Four were not substantially justified and other circumstances do not make an award of expenses unjust. Accordingly, Defendant NTG's request for reasonable expenses is granted.

ORDER

*10 1. Defendant NTG's motion to compel Plaintiff NIC to produce documents responsive to the Category 1 document requests (RPD Nos. 103, 104, 108, 109, 121, 137, 189, 190, 266 & 355) is granted, and no later than fourteen (14) calendar days from the date of this Order, NIC shall provide supplemental responses to these requests and produce all responsive documents. Pursuant to Rule 34(b)(2)(E), Plaintiff NIC may produce documents “as they are kept in the usual course of business or ... organize and label them to correspond to the categories in the request.” Nevertheless, Plaintiff NIC need not produce documents that are duplicative of documents NIC previously has produced to Defendants; however, when NIC does not produce a document in response to a specific document request because it has previously produced the document, NIC shall state that it has previously produced all responsive documents and identify the discovery request, by set and request number, in response to which the document was previously produced and/or identify the third party from whom the documents were received voluntarily. NIC need not identify the duplicative documents by Bates numbers.

2. Defendant NTG's motion to compel Plaintiff NIC to produce documents responsive to the Category 2 document requests (RPD Nos. 102, 105, 106, 107, 110-115, 122-128, 134-136, 139-188, 191-195, 203-217, 219-226, 228-257, 260-265, 267-277, 280-286, 290-295, 297-308, 311, 313-320, 322-335, 338-348, 350-351, 354, 362-371, 383, 389, 392-401, 408, 454, 456, and 462) is granted, and no later than fourteen (14) calendar days from the date of this Order, NIC shall provide supplemental responses to these requests and produce all responsive documents. Pursuant to Rule 34(b)(2)(E), Plaintiff NIC may produce documents “as they are kept in the usual course of business or ... organize and label them to correspond to the categories in the request.” Nevertheless, NIC need not produce documents that are duplicative of documents NIC previously has produced to Defendants; however, when NIC does not produce a document in response to a specific document request because it has previously produced the document, NIC shall state that it has previously produced all responsive documents and identify the discovery request, by set and request number, in response to which the document was previously produced and/or identify the third party from whom the documents were received voluntarily. NIC need not identify the duplicative documents by Bates numbers.

3. Defendant NTG's request for reasonable expenses related to the motion to compel is granted; however, the request is not granted for legal work related to the motion to strike. No later than fourteen (14) calendar days from the date of this Order, NTG shall file a short legal memorandum and declarations supporting its request for reasonable expenses and attorney fees related to the motion to compel; NIC may file an opposition, if any, no later than ten (10) calendar days from the date NTG files its memorandum and declarations; and NTG may file a reply, if any, no later than five (5) calendar days from the date the opposition is filed. The Special Master will set a date for telephonic oral argument on the amount of the attorney fees, after consulting with the parties.

4. The Case Manager shall file and serve the Order on the parties and the District Court.

By:

November 15, 2017

1220053347.26

On August 1, 2016, District Judge Selna granted, in part, and denied, in part, defendants' motions to dismiss and Defendant NTG's anti-SLAPP motion to strike. [Dkt. 157]. Specifically, Judge Selna granted NTG Defendants' motion to dismiss the claims under 18 U.S.C. § 1962(c)-(d) against Defendant Victoria Knowles and non-NTG Defendants' motion to dismiss the claims against Defendants Sam Pfleg, Matthew Dronkers, Taylor Demulder and Sam Schoonover under 18 U.S.C. § 1962(c)and the UCL; and granted NTG Defendants' anti-SLAPP motion to strike all allegations under the UCL on behalf of the general public. Id.