*1 The above matter came before the undersigned United States Magistrate Judge for hearing upon (1) plaintiffs’ Motion to Compel Written Discovery, to Compel Production of Documents, to Compel Production of Defendant’s Corporate Designees for Deposition, to Deem Plaintiffs’ Requests for Admissions Admitted or Denied, for Default Judgment, and for Sanctions [Docket No. 58]; (2) Defendant’s Motion for Protective Order [Docket No. 64]; (3) plaintiffs’ Motion for leave to File Untimely Memorandum [Docket No. 85]; (4) plaintiffs’ Motion for Enlargement of the Discovery Period and Amendment to the Scheduling Order [Docket No. 99]; (5) Defendant’s Motion to Strike Reply Memo to Plaintiffs’ Motion to Compel Discovery [Docket No. 104]; (6) plaintiffs’ Motion for Enlargement of the Discovery Period and Amendment to the Scheduling Order [Docket No. 109]; (7) Defendant’s Motion under Fed. R. Civ. P. 37(a) and (b) [Docket No. 116]; (8) plaintiffs’ Motion for Sanctions [Docket No. 121]; and (9) plaintiffs’ Motion for Leave to File Supplemental Reply [Docket No. 171]. Jeffrey Goldstein, Esq. and Thomas Pahl, Esq. appeared on behalf of plaintiffs; Michael Gray, Esq. and Quentin Whittrock, Esq. appeared on behalf of Domino’s.
The Court, upon all of the files, records, and proceedings herein, and for the reasons stated on the record, now makes and enters the following Order.
IT IS HEREBY ORDERED that:
1. Plaintiffs’ Motion to Compel Written Discovery, to Compel Production of Documents, to Compel Production of Defendant’s Corporate Designees for Deposition, to Deem Plaintiffs’ Requests for Admissions Admitted or Denied, for Default Judgment, and for Sanctions [Docket No. 58] is GRANTED in part and DENIED in part as set forth in the Memorandum below;
2. Defendant’s Motion for Protective Order [Docket No. 64] is GRANTED in part and DENIED in part as set forth in the Memorandum below;
3. Plaintiffs’ Motion for leave to File Untimely Memorandum [Docket No. 85] is GRANTED for the reasons stated forth on the record at the June 5, 2006 hearing;
4. Plaintiffs’ Motion for Enlargement of the Discovery Period and Amendment to the Scheduling Order [Docket No. 99] is DENIED for the reasons stated forth on the record at the June 5, 2006 hearing;
5. Defendant’s Motion to Strike Reply Memo to Plaintiffs’ Motion to Compel Discovery [Docket No. 104] is DENIED for the reasons stated forth on the record at the June 5, 2006 hearing;
6. Plaintiffs’ Motion for Enlargement of the Discovery Period and Amendment to the Scheduling Order [Docket No. 109] is GRANTED in part and DENIED in part as set forth in the Memorandum below
7. Defendant’s Motion under Fed. R. Civ. P. 37(a) and (b) [Docket No. 116] is GRANTED in part and DENIED in part as set forth in the Memorandum below;
8. Plaintiffs’ Motion for Sanctions [Docket No. 121] is GRANTED in part and DENIED in part as set forth in the Memorandum below; and
9. Plaintiffs’ Motion for Leave to File Supplemental Reply Memorandum and Supplemental Reply [Docket No. 171] is DENIED pursuant to this Court’s June 29, 2006 Order [Docket No. 156].
*2 10. The stay on discovery and motions issued by this Court in its June 29, 2006 Order [Docket No. 156] is cancelled.
11. All document request responses, document production, and interrogatory answers ordered to be amended, as set forth in this Order, shall be served on the opposing side by February 12, 2007, except for Domino’s production of additional e-mails, which shall be governed by the revised scheduling order to be issued separately by this Court.
12. To the extent that this Court awarded attorneys fees and costs in this Order in connection with any motion, counsel for the successful party shall provide this Court on or before February 12, 2007 with an affidavit itemizing the hours expended, hourly rate charged by each service provider, and a description of the services rendered in connection with the motion, as set forth in the Memorandum below.
12. On or before February 5, 2007, the parties shall confer and deliver to this Court a proposed revised scheduling order, as set forth in the Memorandum below.
3. Plaintiffs’ Second and Third Sets of Requests for Production of Documents
Plaintiffs complained that Domino’s failed to respond or produce documents in response to plaintiffs’ Second Set of Requests for Documents and that Domino’s failed to produce any documents in response to their Third Set of Requests for Documents. Pls.’ Compel Mem. at p. 10.
*5 With regards to plaintiffs’ second set of document requests, contrary to plaintiffs’ assertion, it does appear that Domino’s did respond to this discovery, as evidenced by the fact that plaintiffs attached to their Reply part of Domino’s response. See Pls.’ Compel Reply, Ex. A. However, as the attachment is incomplete, the only complete response this Court has before it is Domino’s response to Document Request No. 1.
But even as to Document Request No. 1, plaintiffs have not provided this Court with an explanation why Domino’s objection is inappropriate. As such, plaintiffs’ motion to compel is denied as it relates to their second set of document requests for (a) their failure to specify why Domino’s objection to Request No. 1 is improper, and (b) their failure to provide this Court with a complete recitation of Domino’s response to the other three document requests. See Local Rule 37.2. Lacking such information, this Court has no basis upon which to judge the validity of Domino’s responses.
As to plaintiffs’ Third Request for Production of Documents, the main issues of contention are plaintiffs’ requests for Domino’s Uniform Franchise Officering Circulars (“UFOCs”) and operation manuals (Document Request Nos. 1 and 3), and the files maintained on plaintiffs as franchisees (Document Request No. 2).
REQUEST NO. 1: All Uniform Franchise Officering Circulars offered by Domino’s in the past eight years, as well as everyone that was disclosed to each of Plaintiffs’ for any and all of their franchisees.
RESPONSE: This request is overly broad and burdensome. Each UFOC consists of over 460 pages. By plaintiffs’ own admission plaintiffs have been issued the franchise offering circulars and have them already.
REQUEST NO. 3: All Operations Manuals provided to franchisees by Domino’s in the past eight years, as well as each and every version that was provided to Plaintiffs for any and all of their franchisees.
RESPONSE: This request is overly broad and burdensome. Plaintiffs have been issued the operations manuals and have them already.
See Ex. C to Memorandum in Support of Plaintiffs’ Motion for Sanctions Against Domino’s Pizza, LLC and its Inside Counsel, Mr. Joel Graziani, Esq. (“Pls.’ Sanctions Mem.”).
Domino’s represented that it had produced copies of the UFOC and Operations Manual. See Memorandum of Domino’s Pizza, LLC in Opposition to Plaintiffs’ Motion to Compel, to Deem Admissions, for Default Judgment, and for Sanctions (“Def.’s Compel Opp. Mem.”) at p. 5. However, the e-mail referenced by Domino’s that allegedly demonstrates proof of production only provides that Domino’s produced the UFOC with an effective date of April 1, 2005 and an undated Operations Manual that was produced as an exhibit during a deposition. See Gray Aff., Ex. B (May 11, 2006 e-mail from Wittrock to Goldstein). In addition, Domino’s counsel represented that they produced the new 2006 UFOC to plaintiffs on May 16, 2006. Id., 8. Domino’s also pointed to receipts from plaintiffs showing that they had received copies of the UFOCs from 1997 though 2005 in the ordinary course of business. Id., Ex. C.
*6 The two objections set forth by Domino’s as to the UFOCs and the Operations Manuals were that their production would be burdensome given their length and that Domino’s does not need to produce these documents because plaintiffs already have them in their possession. This Court rejects these objections.
“The party opposing discovery bears the burden of showing that the discovery request is overly broad and burdensome by alleging facts demonstrating the extent and nature of the burden imposed by preparation of a proper response.” Sinco, Inc. v. B & O Mfg., Inc., No. 03-5277(JRT/FLN), 2005 WL 1432202 at *2 (D. Minn. May 23, 2005) (citing Mead Corp. v. Riverwood Natural Res. Corp., 145 F.R.D. 512, 515-16 (D. Minn. 1992)). Domino’s has not met that burden. First, with regards to the burdensome nature of these requests, Domino’s represented that each UFOC consists of 460 pages. However, Domino’s has not explained why the production of the UFOCs would be overly burdensome despite their length, or why production of the Operations Manuals for the past 8 years is too burdensome to produce.
Second, Joseph Devereaux, a Rule 30(b)(6) deponent for Domino’s, testified as follows regarding how the UFOCs were maintained by Domino’s:
Q: Now, for each agreement there’s obviously a corresponding UFOC, Uniform Franchise Offering Circular; is that correct?
Q: And do you also have the UFOCs associated with each of the different versions of the franchise agreement?
Q And like the franchise agreement, are those also on the computer?
Q Okay. And you would have access to those; is that correct?
Q. Are you able to e-mail them?
See Affidavit of Kelly J. Shannon (“Shannon. Aff.”), Ex. D (Deposition of Devereaux) at pp. 83-84.
From Domino’s Rule 30(b)(6) witness, this Court concludes that the UFOCs at issue are available in electronic format, and thus, production of these documents is not too burdensome. Further, while neither plaintiffs nor Domino’s elicited testimony regarding the availability of Operations Manuals in electronic format, Domino’s has not provided this Court with any evidence to support its contention that producing these documents for the past 8 years would be overly burdensome.
This Court also rejects Domino’s assertion that plaintiffs are not entitled to the UFOCs and Operations Manuals on the grounds that they already received these materials in their capacity as franchisees. The fact that a party had at one time received the material sought does not mean that the materials are not discoverable. See Central Valley Chrysler-Jeep v. Witherspoon, No. CVF046663AWILJO, 2006 WL 2600149 at *9 (E.D. Cal. Sept. 11, 2006); Weiner v. Bache Halsey Stuart, Inc., 76 F.R.D. 624, 625 (S.D. Fla. 1977) (finding that whether a requesting party was already in possession of the document it sought was immaterial to relevance under the Federal Rules); see also 6 James Wm. Moore et al., Moore’s Federal Practice § 26.41 (3d ed. 2006) (“There is, strictly speaking, no relevance question that arises merely because the discovering party already knows or has access to the information it seeks to discover. Relevance is inherent in the content of the information, not in who possesses or has access to it.”).
Based on the evidence, this Court concludes that Domino’s has only produced UFOCs for the years 2005 and 2006 and only one undated Operations Manual.
As such, plaintiffs’ motion to compel, as it relates to the production of UFOCs and Operation Manuals for the past eight years is granted.
*7 With respect to Document Request No. 2 from plaintiffs’ Third Set of Document Requests, this Request and Domino’s Response are as follows:
REQUEST NO. 2: All Franchise files and other files kept by Defendant regarding Plaintiffs’ franchises.
RESPONSE: This request is vague as to the phase “other files”. Domino’s has already produced correspondence and communications obtained from files in Defendant’s possession regarding plaintiffs’ franchises.
See Ex. C to Pls.’ Sanctions Mem; see also Pls.’ Compel Mem. at p. 10.
Plaintiffs objected to having their “clearly stated request” characterized as “vague” by Domino’s. See Pls.’ Compel Mem. at p. 10. The plain text of plaintiffs’ request asks for any documents found in any files kept by Domino’s regarding plaintiffs’ franchisees. This Court does not find that the phrase “other files” is vague, as plaintiffs included the term to ensure that all documents from any file kept by Domino’s regarding their franchises were produced, regardless of the file name. While Domino’s represented that it has produced correspondence and communications from files in its possession regarding plaintiffs’ franchises, the request asks for all documents contained in these files regarding plaintiffs, not just correspondence and communications. As such, to the extent stated above, plaintiffs’ Motion to Compel is granted as it relates Request No. 2 of plaintiffs’ Third Set of Requests for Production of Documents.
4. Plaintiffs’ Second Set of Interrogatories and First Set of Request for Admissions
Plaintiffs asserted that Domino’s did not answer their First Set of Requests for Admissions by Domino’s. See Pls.’ Compel Mem. at p. 11. In their supporting memorandum, plaintiffs provided six unnumbered examples of what they considered to be unanswered Requests for Admissions, and paraphrased Domino’s response to these Requests. Id. at pp. 11-12. Plaintiffs then asserted that Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure gives this Court the authority to designate all vague and incomplete answers by Domino’s as either “admitted” or “denied in plaintiffs’ discretion, or in the alternative, the authority to strike Domino’s responses to plaintiffs’ requests for admissions. Id. at p. 16.
Rule 37(a)(2)(B) provides as follows:
If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
*8 Fed. R. Civ. P. 37(a)(2)(B).
As an initial matter, this Court notes that there is nothing in Rule 37(a)(2)(B) that authorizes a court to strike responses to requests for admission, or for that matter, to allow a party to designate their opponent’s responses as either admitted or denied. The plain language of Rule 37(a)(2)(B) only allows a party to move a court to compel a response in conjunction with discovery propounded under Rules 30, 31, 33, and 34 of the Federal Rules of Civil Procedure. On the other hand, Rule 36 provides in relevant part:
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial.
Fed. R. Civ. P. 36(a) (emphasis added). Accordingly, under Rule 36(a), a court can require a party to answer a request for admission if the asserted objection is unjustified, and it may deem an answer admitted or require that it be amended, if the answer does not comply with the Rule 36.
Here, plaintiffs argued that five of the six requests for admissions set forth in their memoranda of law were the subject of the improper objection of vagueness. In support of that contention, with respect to two of these Requests (Nos. 4 and 12), plaintiffs simply reiterated defendant’s objections; as to the other three Requests (Nos. 8, 10, 20), plaintiffs only stated that these requests were clear despite defendant’s objections. See Pls.’ Compel Mem. at pp. 11-12. The Requests for Admissions and Domino’s Responses at issue are as follows:
INTERROGATORY/REQUEST FOR ADMISSION NO. 4: Admit that Domino’s has in its possession specifications that would allow companies other than Domino’s to manufacture and provide software to franchisees that would enable them to run PULSE on their POS systems.
ANSWER: This request is objected to for the reason that it does not make sense and calls for conjecture and speculation. Defendant can neither admit nor deny whether any information it has in its possession would allow “companies” to “manufacture and provide software to franchisees that would enable them to run Domino’s PULSE on their POS systems”. Furthermore, Defendant does not know what POS systems this request refers to.
INTERROGATORY/REQUEST FOR ADMISSION NO. 8: Admit that if requested to do so, Domino’s will grant licenses to third parties for the right to manufacture and sell PULSE.
ANSWER: This request is objected to as vague and hypothetical.
INTERROGATORY/REQUEST FOR ADMISSION NO. 10: Admit that other third party vendors are capable of providing POS systems that are functionally equivalent to in any nature, including performance and operation, to PULSE.
*9 ANSWER: This request is objected to as vague as to the phrases “other third party vendors” and “in any nature, including performance and operation, to PULSE.”
INTERROGATORY/REQUEST FOR ADMISSION NO. 12: Admit that specific information that Domino’s will have access to and obtain from its franchisees using PULSE has market value in that others outside of Domino’s system will pay for access to for obtaining this information.
ANSWER: This request is objected to as vague and hypothetical.
INTERROGATORY/REQUEST FOR ADMISSION NO. 20: Admit that Domino’s has never disclosed to its franchisee that the PULSE system will never be available for purchase from anyone other than Domino’s.
ANSWER: This request is objected to as incomprehensible.
See Pls.’ Compel Reply, Ex. C.
Having reviewed these Requests and Responses, this Court finds that Domino’s objections to each Request was justified, and it will not compel Domino’s to amend these answers.
Other than Request No. 20, the common defect in each Request is that plaintiffs asked Domino’s to admit to unknown, undefined or speculative “facts” (e.g. Request No. 4 – “companies other than Domino’s” – what companies?; Request No. 8 – if requested by unnamed “third parties” to grant licenses – what third parties?; Request No. 10 –unnamed “other third party vendors” who will provide “POS systems that are functionally equivalent to in any nature, including performance and operation, to PULSE”—what third party vendors? What does “functionally equivalent to in any nature, including performance and operation” mean?; Request No. 12 – reference to “specific information” that Domino’s will have access to – what information?) As to Request No. 20, despite plaintiffs’ position that it is clear, this Court agrees with Domino’s that the request is not comprehensible.
As to the inadequacy of the substance of Domino’s responses to their Request for Admissions, plaintiffs only addressed Domino’s response to Interrogatory/Request for Admission No. 2, which states:
INTERROGATORY/REQUEST FOR ADMISSION NO. 2: Admit that Domino’s has the ability to on a case-by-case basis to determine through testing, examination, use or otherwise whether any non-PULSE POS system is compatible with the hardware and software of the Domino’s PULSE system.
ANSWER: This request is objected to because Domino’s can neither admit or deny whether or not its has the “ability to on a case-by-case basis determine through testing, examination, use or otherwise whether any non-PULSE POS system is compatible with the hardware and software of the Domino’s PULSE system” without first seeing the other system. And even in that event, the system may be so complex or unique that Domino’s would not have the ability to make such a determination. This request requires Domino’s to speculate about matters neither in evidence nor even in existence. For the foregoing reasons Domino’s denies this request.
*10 See Pls.’ Compel Reply, Ex. C.
Plaintiffs have characterized Domino’s Answer to Interrogatory/Request for Admission No. 2 as a refusal to “answer whether it can determine compatibility with the system that Domino’s itself has developed and purports to require of all.” Pls.’ Compel Mem. at p. 11. This Court finds Domino’s response is not a refusal to answer, but a denial based on its inability to determine compatibility without having access to the non-PULSE System. The answer by Domino’s meets the requirements of Rule 36, and thus this Court will not deem the answer admitted or require an amended answer to be served.
For all the reasons stated above, this Court denies plaintiffs’ motion to compel as it relates to plaintiffs’ Second Set of Interrogatories and First Set of Request for Admissions.
5. Plaintiffs’ Third Set of Interrogatories
Plaintiffs characterize Domino’s May 5, 2006 answers to two interrogatories from plaintiffs’ Third Set of Interrogatories as “long-winded but evasive and self-contradictory responses.” See Pls.’ Compel Mem. at p. 12. To remedy this alleged deficiency, on May 12, 2006, plaintiffs served two notices for a corporate designee from Domino’s to testify regarding Domino’s Answers to Interrogatories Nos. 1 and 2 from plaintiffs’ Third Set of Interrogatories. See Affidavit of Quentin Wittrock (“Wittrock Aff.”), Ex. O. Now plaintiffs have asked for an order to force Domino’s to produce a corporate representative for deposition to “shed light upon Domino’s mysterious discovery responses” to these interrogatories. See Pls.’ Compel Mem. at p. 15. In turn, Domino’s, as a part of its Motion for a Protective Order, has asked that it not be required to designate a Rule 30(b)(6) deponent with regards to its answers to Interrogatory Nos. 1 and 2, on the grounds that it had properly objected to these Interrogatories as overly broad. See Memorandum in Support of Defendant’s Motion for a Protective Order (“Def.’s Protect. Mem.”) at pp. 19-23. Further, Domino’s maintained that it had provided relevant information relating to the POS computer system that is at issue in this case in its responses to Interrogatory Nos. 1 and 2. Id. at pp. 22-23. Domino’s also asserted that plaintiffs should not be permitted to proceed with these corporate depositions when they had canceled the depositions of those individuals who could have testified on the process for determining the POS System vendor, the subject of the discovery in this lawsuit. Id. at p. 23 (citing Wittrock Aff. Exs. N, T). Thus, at the heart of this portion of plaintiffs’ motion to compel is the adequacy of Domino’s answers to Interrogatory Nos. 1 and 2, Set Three.
The Interrogatories and Answers at issue are as follows:
INTERROGATORY NO. 1: With regard to all items for which DPLLC provides third-party approval to franchisees, list and describe all testing procedures and conforming procedures utilized by DPLLC to identify and approve vendors.
ANSWER: This interrogatory is vague as to the phrase “identify” vendors. This interrogatory is also overly broad as to testing and approval of “all items”. Without waiving any objection, Defendant states that because of the varied nature of products used in the Domino’s Pizza system it is impossible and unwise to have a single set of evaluating requirements and criteria. In addition, different persons in different units of the organization possess the requisite skills and experience to evaluate products. For example, the criteria for evaluating signage or floor tiles is necessarily quite different from the criteria to evaluate food products and food contact items. As a result, the persons who evaluate items such as signage are not the same persons who evaluate meat products, for example. At the same time, some products are of such a generic nature that there are no “approved” suppliers. Interior and exterior doors, light fixtures and light bulbs, and “open” signs are examples. Even though there are not approved suppliers for many items (i.e., “open” signs) there are standards relating to the size, shape, color, etc. of these items. Approved suppliers may manufacture a variety of items in their line of business but the items one class of approved suppliers manufactures for Domino’s Pizza are not available to any other customer. This applies specifically to the following proprietary products: boxes, cooked beef, Buffalo Kickers, Buffalo Wings, pepperoni, cheese for pizza, flour, Premix, sauce for pizza, cooked Italian sausage, Blue Cheese dipping sauce, breadstick shake-on seasoning, cinnamon sugar blend, garlic sauce, hot sauce, marinara sauce, ranch dipping sauce, etc. Other approved vendors are approved only for a limited number of specific products. Some examples include: bacon, cheddar cheese, dough oils, ham, olives, hot peppers, pineapple and yeast. A CONFIDENTIAL copy of the Supplier Qualification Questionnaire/Audit will be produced subject to the Court’s Protective Order. Following completion of this process a vendor submits samples which are further tested and evaluated. In addition, some construction items are limited to approved suppliers. These include: signage, floor tile in the customer area, window graphics, customer area paint, and certain neon window signs. These vendors were selected through a detailed bidding process. The Equipment and Supply division evaluates most of the remaining required products; such as, ovens, counters, etc. Defendant’s Information Services department, in consultation with an independent consultant, developed a number of criteria for a point of sale system. The department also consulted with an expert consultant on the process to evaluate and select the basis for a custom-designed point of sale system. Franchisees were consulted with regard to functions and features that were important in their view. At least two franchisee surveys were conducted in addition to numerous meetings attended by franchisees. Defendant followed the procedures, criteria and guidelines established in conjunction with the expert consultants, and results of the franchisee surveys, in order to develop a list of approximately 60 software vendors to contact. Through application of the established process this number was reduced to a dozen or so, and through further due diligence five finalists were selected. These finalists came to Ann Arbor to make a day long presentation. Following the presentations a vendor was selected and the development team then began developing the customized product now known as Domino’s PULSE. Documents further describing this process have already been produced.
*11 INTERROGATORY NO. 2: For each vendor that has been approved under relevant provisions of the DPLLC Franchise Agreement to provide any product, material, or service to Domino’s franchisees, identify the vendor and the product, material or service for which they have been approved.
ANSWER: This interrogatory is overly broad as to testing and approval of “any product, material, or service” and vague and argumentative. The Domino’s Pizza Approved Supplier List is confidential and proprietary and is not distributed to franchisees unless the franchisee has already been approved to operate a class A or class B commissary. None of the plaintiffs operate a class A or class B commissary. All of the plaintiffs purchase the supplies they need to operate their stores from Defendant. Consequently, Defendant objects to disclosing the names of its suppliers for the reason that the names are not relevant and are not likely to lead to the discovery of admissible evidence. Without waiving any objection, Defendant has approved suppliers for the following items: boxes, cooked beef, Buffalo Kickers, Buffalo Wings, cheese for pizza, flour, Premix, sauce for pizza, cooked Italian sausage, BBQ sauce, Blue Cheese dipping sauce, breadstick shake-on seasoning, cinnamon sugar blend, garlic sauce, hot sauce, marinara sauce, ranch dipping sauce, wing sauces, bacon, cheddar cheese, dough oils, ham, olives, pepperoni, hot peppers, pineapple, yeast, signage, floor tile in the customer area, window graphics, customer area paint, and certain neon window signs, ovens, counters, etc., other toppings, other cheeses, packaging and non food items used in a store, beverages, salads, cleaning chemicals, other oils, corn meal, corrugated liners, other seasonings, and sub sandwich ingredients. With regard to Domino’s PULSE, Defendant is the only approved supplier of software in part because Defendant has developed and created Domino’s PULSE as a proprietary custom-designed system specifically for use in the Domino’s Pizza delivery business. IBM, NCR and franchisees have contributed to the selection or development of Domino’s PULSE and have evaluated it. Other third party software vendors have supplied products which are incorporated in Domino’s PULSE. The names of these vendors are set out in the Domino’s PULSE License Agreement, a copy of which has already been furnished to plaintiffs.
See Wittock Aff., Ex N (emphasis added).
With regards to Interrogatory No. 1, plaintiffs took issue with Domino’s answer that it used different evaluation requirements and criteria in identifying and approving vendors, but failed to describe the relevant requirements and criteria. See Pls.’ Compel Mem. at p. 13. In addition, plaintiffs complained that while Domino’s stated that the Information Services Department had developed a number of criteria and a process to evaluate and select a custom-designed POS system, and followed established guidelines, Domino’s failed to identify the criteria or explain the procedures, criteria or guidelines. Id.
First, this Court will not require Domino’s to produce “testing procedures” and “conforming procedures” utilized by Domino’s to identify and approve vendors for all products obtained by Domino’s from vendors. In fact, while plaintiffs’ August 8, 2006 supplemental memorandum demanded that Domino’s provide complete answers to their Third Set of Interrogatories and produce the corporate designees pursuant to the Rule 30(b)(6) notices, plaintiffs’ counsel represented at the June 5, 2006 hearing that plaintiffs could limit Interrogatory Nos. 1 and 2 and the related Rule 30(b)(6) depositions to issues pertaining to the POS system. See Pls.’ Supp. Mem. at p. 37; 6/05/06 Tr. 37-38. Regardless, the procedures, criteria or guidelines used by Domino’s to determine third-party vendors who will provide Domino’s with items such as cheese, flour, pizza sauce, or pepperoni is not relevant to the issues underlying this case. What is relevant to this case are procedures, criteria or guidelines utilized by Domino’s to identify and approve vendors for a point-of-sale system.
*12 As to the procedures used to identify and approve vendors for its POS system, as the highlighted language to Interrogatory No. 1 above indicates, Domino’s stated that it had developed a number of criteria for a POS system, consulted with an expert on the process used to evaluate and select a POS system, and conducted at least two franchisee surveys, which resulted in established criteria and guidelines used to select vendors. Id. However, this Court agrees with plaintiffs that what is missing from this response are the criteria and guidelines used to select possible vendors. While Domino’s represented that it had produced documents that described the process to choose a vendor for the POS system, Domino’s did not attach or specify by bates number the documents it has produced that are responsive to Interrogatory No. 1. As such, Domino’s shall be required to provide an answer to Interrogatory No. 1 that sets forth the criteria and guidelines used to select possible vendors for the POS system. In the alternative, in compliance with Rule 33(d), Domino’s may produce documents or identify by bates number responsive documents already produced, that set forth the criteria and guidelines used, in lieu of setting forth such information in its interrogatory response. However, as to plaintiffs’ request for a Rule 30(b)(6) deposition on the topics covered in Interrogatory No. 1, this Court is satisfied that once Domino’s has amended its answer to set forth the criteria and guidelines used to select possible vendors for the POS system, that plaintiffs will have the information they need and that a Rule 30(b)(6) deposition will not be required to shed further light on Domino’s “mysterious discovery responses.”
Similarly, with regards to Interrogatory No. 2, plaintiffs are not entitled to a list of all third-party vendors approved by Domino’s for any product since the issue of who provides Domino’s with such items as blue cheese and floor tiles, has no relevance to the POS system that is at issue in this case. Further, this Court finds that Domino’s has adequately answered the interrogatory as to the PULSE System. As such, this Court will not require Domino’s to amend its answer to respond to this overly broad interrogatory and will not require Domino’s to produce a Rule 30(b)(6) deponent regarding Interrogatory No. 2.
8. Domino’s Production of E-mails
*13 In plaintiffs’ May 22, 2006 motion to compel, plaintiffs represented that Domino’s had failed to produce any relevant e-mails as part of its document production.
See Pls. Compel Mem. at p. 7. Domino’s countered that plaintiffs’ document requests had not asked for the production of e-mails.
See Defs.’ Compel Opp. Mem. at p. 5. Regardless, the parties came to a preliminary agreement regarding e-mail production. On May 8, 2006, plaintiffs requested that Domino’s produce all e-mails within its archives and within all employee and personnel archives that contained any of twenty-eight specified search terms including, but not limited to: Pulse, mandate, point of sale, standard, standards, computer, Bores, bugs, ovens, bags and IBM. See Gray Aff., Ex. F. On May 11, 2006, Domino’s counsel sent a letter to plaintiffs’ counsel complaining that many of the requested search terms were too broad and would result in the production of thousands of irrelevant e-mails. Id., Ex. G. The parties then agreed to have Domino’s review the e-mail archives and correspondence files of five Domino’s employees – David Brandon, Jim Stansik, Matthew Maguire, Mike Soignet, and Don Reichert – for all PULSE and POS-related correspondence. Id., Ex. H (May 11, 2006 Letter from Goldstein to Wittrock).
On May 12, 2006, counsel for Domino’s informed plaintiffs’ counsel that Domino’s had completed the requested search, and it had resulted in the generation of several thousand e-mails. Id., Ex. I. Domino’s counsel represented that they would produce the documents as soon as they had completed the review of the documents and bates stamped them for production. Id. By May 26, 2006, Domino’s represented that it had produced 1,336 pages of e-mails, and had spent over 400 hours of employee and legal staff time on the discovery and production of these e-mails since May 11, 2006. See Gray Aff., 10.
During the June 5, 2006 hearing, Domino’s represented that it had produced an additional 8,000 pages of e-mails since the initial 1,336 pages of e-mail production. See 6/05/06 Tr. 61. In addition, Domino’s represented that it had located an additional 180,000 pages of e-mails that were responsive to the narrowed search and that almost all of them containing no relevant information to the present matter. Id., Tr. 61-62. According to Domino’s, if it was required to produce all of these e-mails, it would take many months and cost hundreds of thousands, if not millions of dollars, to complete. Id., Tr. 62. In response to plaintiffs’ motion to compel, Domino’s sought at the hearing a protective order relieving it from having to go through the approximately 180,000 e-mails, or alternatively, requiring plaintiffs to pay for the expense. Id., Tr. 63-64.
During the June 26, 2006 hearing, counsel for Domino’s further represented that its search for documents had been completed, but that it had not processed all e-mails for production. See 6/26/06 Tr. 85-86 [Docket No. 163]. On July 12, 2006, Domino’s produced another disk containing documents for production, including 2000 pages of e-mails, despite this Court’s stay on discovery. See Memorandum of Domino’s in Opposition to Plaintiffs’ Supplemental Memorandum Regarding Various Filed and Pending Motions and Request for Sanctions (“Def.’s Supp. Mem.”) at p. 23; see also Pls.’ Supp. Mem. at p. 31.
*14 At the same time as Domino’s is seeking to cut off any further production of emails, plaintiffs have stated that they want to work with Domino’s to identify other individuals from whom e-mails should be obtained, and have suggested that relevant e-mails from Tim Monteith from the Pulse Leadership Team, Jim Viteck from the Advisory Board, and the twenty individuals identified as members of the PULSE Team be retrieved and produced. See Pls.’ Supp. Mem. at p. 32 (citing Affidavit of Kelly Shannon (“Shannon Aff.”), Ex. P (organizational chart for PULSE sales and installation). Thus, the dispute over e-mails boils down to this: plaintiffs want all relevant e-mails produced at Domino’s expense, while Domino’s asserts that it should not be required to produce any more e-mails, or alternatively, that plaintiffs should bear the expense of such a production.
As stated previously, the party opposing discovery bears the burden of showing that the discovery request is overly broad and burdensome by alleging facts demonstrating the extent and nature of the burden imposed by preparation of a proper response. Sinco, WL 1432202 at *2 (citations omitted). “The fact that production of documents would be burdensome and expensive and would hamper the party’s business operations is not a reason for refusing to order production of relevant documents.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (citing 7 Moore’s Federal Practice § 34.14 (3rd ed. 1997)); see also Carlson v. Freightliner LLC, 226 F.R.D. 343, 370 (D. Neb. 2004) (same). Under Rule 26(c), “discovery should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery.” Wright, Miller & Marcus, Federal Practice and Procedure § 2214, (2006). Further, there is a presumption that “the responding party must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). However, under Rule 26(c), a court may require a party requesting electronic discovery to pay the costs of discovery at issue if the responding party satisfies its burden of proof of showing that the production would cause it undue burden or expense. See Quinby v. WestLB AG, No. 04Civ.7406(WHP)(HBP), 2006 WL 2597900 at *6 (Sept. 5, 2006 S.D.N.Y.) (citing Oppenheimer Fund, Inc., 437 U.S. at 358; Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003) (“Zubulake III”)); see also Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003) (“Zubulake I”) (quoting Fed. R. Civ. P. 26(c)) (“[C]ost-shifting should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party.”).
Courts that have undertaken an analysis of whether the production of electronic discovery would impose an undue burden or expense on the responding party have found that the determination depends “primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).” Zubulake I, 217 F.R.D. at 318 (emphasis omitted); see also Quinby, 2006 WL 2597900 at *7 (same) (citation omitted); OpenTV v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D. Cal. 2003) (same). Accessible data is data that is stored in a usable format in that it “does not need to be restored or otherwise manipulated to be usable[,]” while “inaccessible” data, including backup tapes, must be restored before its is usable. See Zubulake I, 217 F.R.D. at 320. This Court notes at least one court has found “that cost-shifting is potentially appropriate only when inaccessible data is sought. When a discovery request seeks accessible data--for example, active on-line or near-line data--it is typically inappropriate to consider cost-shifting.” See Zubulake III, 216 F.R.D. at 284 (emphasis added); see also OpenTV, 219 F.R.D. at 476 (same).
*15 In this case, the electronic discovery that Domino’s has refused to produce consists of approximately 180,000 pages of e-mails that it has already culled from its computer systems. This is not information that is inaccessible to Domino’s. Instead, the thrust of Domino’s argument is that the time required to review and prepare the e-mails for production to plaintiffs constitutes an undue burden and expense to it.
Here, the only support provided by Domino’s regarding the cost and undue burden is the sworn statement in attorney Gray’s Affidavit, in opposition to plaintiffs’ motion to compel, that between May 11, 2006 to May 26, 2006, his office spent 400 hours staff and attorney time, to produce 1,336 pages of e-mails. See Gray Affidavit, 10. As to of the remaining 180,000 e-mails, other than stating at the hearing on June 5, 2006 that it has had a “team of eight people reviewing the documents gathered,” that they have reviewed about 10,000 pages of documents for privilege, and that it would take many months and hundreds of thousands or millions of dollars to complete the review and production of the documents (6/5/06 Tr. 62), Domino’s did not provide this Court with sworn testimony to support these statements, or demonstrate how this exercise would adversely impact the fiscal or operational capabilities of Domino’s. In fact, this Court notes that according to Domino’s, between May 26, 2006 and June 5, 2006, it had produced an additional 8,000 pages of e-mails to plaintiffs. See 6/05/06 Tr. 61. While Domino’s did not state how many hours of staff and attorney time it took to produce these e-mails, there does appear to be a significant increase in efficiency as to Domino’s production of e-mails as the process progressed. Further, to the extent that Domino’s claims that it will take too long to produce documents because of the need to review the documents for privilege, this Court notes that “electronic evidence is frequently cheaper and easier to produce than paper evidence because it can be searched automatically, key words can be run for privilege checks....” Zubulake I, 217 F.R.D. at 318.
This Court takes also issue with Domino’s position that because the sample based on the terms “PULSE” and “POS” yielded thousands of e-mails, plaintiffs are not entitled to any e-mails responsive to their document requests. Domino’s is reminded that it agreed, in lieu of searching for e-mails directly responsive to plaintiffs’ document requests, to produce e-mails based on these terms for five individuals, and began to produce responsive documents.
See Def.’s Compel Opp. Mem. at p. 6 (citing Gray Compel Opp. Aff., 10); see also Gray Compel Affidavit, Ex. H (May 11, 2006 Letter from Goldstein to Wittrock). Further, while these terms may be broad in the context of this case, Domino’s has made no suggestions as to what the appropriate search criteria should be in this case.
*16 Moreover, Domino’s suggestion at the June 5, 2006 hearing that it should not be required to produce any more e-mails regarding the PULSE System because these documents have no bearing the legal issue in this case (i.e., whether Domino’s has the contractual right to require the PULSE System) is without merit. See 6/05/06 Tr. 64. Plaintiffs have claimed in their Amended Complaint that: (1) the PULSE mandate violates the franchise agreement between the parties on the grounds that the agreement gives franchisees the ability to source from third-party vendors a comparable or better POS system than PULSE; (2) Domino’s violated the franchise agreements by not acting reasonably in requiring all franchisee to install the PULSE System; (3) Domino’s violated the franchisee agreement by not seeking approval from the franchisees for the PULSE System; and (4) Domino’s breached the franchise agreement by refusing and failing to research the most efficient and effective POS system. See Amended Complaint, 3, 4, 6, 7. While Domino’s may ultimately prevail on its theory that it has a contractual right to require franchisees to install the PULSE System, this Court is not willing to foreclose discovery on plaintiffs’ theories of the case on a non-dispositive motion.
For all the reasons stated above, Domino’s request to be relieved from producing any more e-mails is denied. Domino’s has two choices: at its own expense (1) it can provide plaintiffs with all PULSE and POS-related e-mails obtained from the files of David Brandon, Jim Stansik, Matthew Maguire, Mike Soignet, and Don Reichert as it had agreed to do; or (2) it can search for and produce e-mails from whatever source that are specifically responsive to those document requests for which Domino’s is obligated to provide responsive documents. Domino’s will not be relieved from its obligation to produce responsive documents merely because they are maintained in electronic form.
9. The Manner of Domino’s Production of Documents
Plaintiffs argued that the manner in which Domino’s electronically produced documents amounted to an improper document dump. In particular, plaintiffs asserted that Domino’s went out of its way to produce documents in the most difficult format for them to review -- TIFF format
-- which required plaintiffs to open each of the 65,000-plus pages individually. See Pls.’ Compel Mem. at pp. 6-7. In addition, plaintiffs’ expert witness, Robi, stated in his Affidavit that the documents were electronically scanned into an unsearchable format rather than in their original native format. See June 22, 2006 Affidavit of Eric Robi in Support of Plaintiffs’ Reply to Memorandum in Opposition to Plaintiffs’ Motion for Enlargement of Discovery Period and Amendment of Scheduling Order (“First Robi Aff.”) at p. 4. Further, Robi stated that the documents produced were missing metadata.
Id. Robi also asserted that many documents, such as spreadsheets, have been needlessly rotated 90 degrees, thereby making them hard to read, and were produced as multiple TIFF documents that could not be manipulated for the purposes of analysis. Id. at pp. 4-5.
*17 In response, Domino’s represented that it had produced a large amount of documents in a short period of time, the documents were produced electronically at plaintiffs’ request, and were produced in the most generic format available so as to allow plaintiffs to view the documents using the most basic imaging software. See Gray Aff., 7. Specifically, Domino’s stated that it sent responsive documents in hard copy form and electronic form to their legal counsel in response to plaintiffs’ request for production of documents. See August 22, 2006 Affidavit of Michael R. Gray (“Gray Supp. Aff.”), 6. Domino’s counsel then provided the documents to K&B Copy Group to have the hard copy documents scanned into TIFF format and the electronic documents converted into a TIFF file format. Id., 8; see also Shannon Aff., Ex. A (July 25, 2006 Deposition Transcript of Steven Hartwig (“Hartwig Dep.”)) at p. 11. In order to produce the documents to plaintiffs, plaintiffs’ legal counsel were contacted to come to the offices of Gray Plant and Mooty to inspect and copy responsive documents, as they had requested in their request for production of documents. See Gray Supp. Aff., 10. Plaintiffs’ counsel declined this offer and instead, demanded that the copies of all documents be produced on disk. Id. Domino’s produced its first set of 10,000 TIFF images on a CD-ROM to plaintiffs on April 7, 2006, and has subsequently produced additional documents in TIFF format on CD-ROMs. Id., 11.
In addition to converting and obtaining documents in TIFF format from K&B Copy Group, Domino’s also acquired for itself from K&B Copy Group, copies of the documents in searchable format, including metadata from electronic documents, a text file for the electronic documents, and optical character recognition (“OCR”)
text files for the scanned hard copies. Id., 8; see also Shannon Aff., Ex. A (Hartwig Dep.”) at p. 12. It is Domino’s position that if plaintiffs want the documents produced in a searchable form, then they, like Domino’s, should obtain and pay for this format themselves.
During his Rule 30(b)(6) deposition, Steven Hartwig, the present Director for Imaging for K&B Copy Group, testified that K&B Copy Group was instructed by Domino’s to convert electronic files to TIFF, and to separately provide Domino’s counsel with extracted text, metadata, and appropriate image load files. See Shannon Aff., Ex. A (July 25, 2006 Deposition Transcript of Steven Hartwig (“Hartwig Dep.”)) at p. 12. Hartwig also testified that K&B Copy Group has in its possession the files given to it by Domino’s in their original (“native”) formats, the TIFF files, and the metadata files. Id. at p. 49.
With regards to the manner of production, Hartwig testified that in 95 percent of the litigation cases in which K&B Copy Group deals with documents and document productions, they produce documents in TIFF format. Id. at pp. 57-58. Hartwig also stated that it was possible for parties who receive TIFF files to convert them into a searchable text file, and that he had done such work for parties receiving TIFF files from opposing parties. Id. at p. 58. As to the orientation of the documents produced as TIFF files, Hartwig testified that the standard output is to have documents scanned in portrait orientation, however, a landscape orientation is usually used for spreadsheets in order to economize space. See Shannon Aff., Ex. A (Hartwig Dep.) at pp. 58-59. Hartwig further testified that software exists to re-orient documents and also stated in his Affidavit that almost all commonly available document management software used by law firms are able to rotate, enlarge, highlight, and manage TIFF images. Id. at p. 59; see also Affidavit of Steven Hartwig (“Hartwig Aff.”), 8-9.
Rule 34(a), Federal Rules of Civil Procedure, states that “[a]ny party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect and copy, any designated documents or electronically stored information....” Fed. R. Civ. P. 34. This Court notes that the newly amended Rule 34(b), in the form of the new Rule 34(b)(ii), states that “if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” Fed. R. Civ. P. 34(b)(ii). In addition, the amended Rule 34 does not require a party to produce electronically stored information in more than one form. See Fed. R. Civ. P. 34(b)(iii).
*18 This Court rejects plaintiffs’ request that Domino’s produce to them a more searchable format of the documents already produced. First, while it is unclear in what format they wish to have the documents produced—i.e., the documents in their native format, text searchable files or both—the fact is that plaintiffs rejected Domino’s offer to inspect and copy documents in their native format. See Gray Supp. Aff., 10. Instead, plaintiffs’ counsel demanded that documents be produced electronically onto disks. Id. As such, plaintiffs’ claims that they were precluded from inspecting and obtaining the documents in their “native” form is without merit.
Second, plaintiffs’ assertion that Domino’s has produced the documents in a manner or form designed to frustrate plaintiffs’ use of the materials is not supported by the record. Based on the evidence before the Court, it appears that Domino’s followed the accepted industry practice for production of documents and that the information produced was in a format that plaintiffs could manipulate in order to make the information usable. See Wyeth v. Impax Laboratories, Inc., No. Civ.A. 06-222-JJF, 2006 WL 3091331 at *2 (D. Del. Oct. 26, 2006) (noting that the local rules for U.S. District Court for the District of Delaware “directs parties to produce electronic documents as image files (e.g. PDF or TIFF) if they cannot agree on a different format for production.”); Shannon Aff., Ex. A (Hartwig Dep.) at pp. 57-58 (testifying that in 95 percent of the litigation cases involving production of documents, K&B Copy Group has produced documents in TIFF format).
Third, requiring the reproduction of tens of thousands of documents in their native format would only serve to contravene the evidentiary process. Producing documents in TIFF format, as compared to native format, is the most secure method of producing a large amount of documents so as to avoid intentional or inadvertent changes, to avoid claims of alteration, and to be able to easily point to evidence. See In re Pricline.com, Inc. Securities Litigation, 233 F.R.D. 88, 91 (D. Conn. 2005); see also Hartwig Aff., 7 (opining that there is no good way to apply bates numbering to native files, where as TIFF files lend themselves to this process).
Finally, while the documents produced were not text searchable and orientated in a way preferred by plaintiffs, the evidence shows that are means for plaintiffs to manage these TIFF documents and convert them into text searchable documents. See Shannon Aff., Ex. A (Hartwig Dep.) at pp. 58-59. As such, this Court finds that Domino’s production of documents complies with the language of Rule 34 as being information being produced in a “reasonably usable” format. In essence, plaintiffs have asked this Court to force Domino’s to create a manageable document database free of charge. This Court will not require Domino’s to do this. If plaintiffs want the documents produced to them in searchable text files, then they, like Domino’s, may retain their own firm to perform this conversion or obtain their own software to manipulate the documents.
As for plaintiffs’ request for metadata in their supplemental memorandum, plaintiffs only state that they are entitled to metadata because Domino’s has this information in its possession. See Pls.’ Supp. Mem. at pp. 21-23. Plaintiffs’ expert, Robi, represented that metadata can provide information about the date and time a document was last saved, the last ten authors, saved location, last accessed date, author, original file name, and date of printing. See First Robi Aff. at p. 4. This Court has no doubt that metadata may provide this information. However, there is a general presumption against the production of metadata, with the exception that it should be produced when the producing party is aware or should be reasonably aware that particular metadata is relevant to the issues in dispute. See Williams, 230 F.R.D. at 652; see also Wyeth, 2006 WL 3091331 at *2 (finding that emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata especially when no particularized need for the metadata was made by the requesting party). Here, plaintiffs do not set forth why such information is relevant to the issues in this case. The Court will not require Domino’s to produce the metadata from tens of thousands of documents without some explanation as to their relevancy. As such, plaintiffs’ request for the production of metadata is denied.
11. Access to Information on Domino’s Shared Drive
According to plaintiffs, “[a]ccess to information on Domino’s ‘shared drive’ is also necessary to the plaintiffs’ case.” See Pls.’ Supp. Mem. at p. 25. Domino’s objects to any attempt by plaintiffs to access its shared computer drive.
As a general proposition, “[e]lectronic documents are no less subject to disclosure than paper records.” Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002) (string citation omitted). “As long as the data is accessible, it must be produced.” Zubulake, 217 F.R.D. at 322. Further, “it is a well accepted proposition that deleted computer files, whether they be e-mails or otherwise, are discoverable.” Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002) (citations omitted). However, courts have generally resisted litigants’ requests for access to their opponent’s computer or other electronic devices to search for evidence. See Powers v. Thomas M. Cooley Law School, No. 5:05-CV-117, 2006 WL 2711512 at *4 (W.D. Mich. Sept. 21, 2006). While Rule 34(a) requires a responding party to search its records to produce responsive data, the required, “ ‘Rule 34(a) does not give the requesting party the right to conduct the actual search.’ ” Id. (quoting In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003)); see also Advante Intern. Corp. v. Mintel Learning Technology, No. C 05-01022 JW (RS), 2006 WL 1806151 at *1 (N.D. Cal. June 29, 2006) (holding that the mere fact that a case involves electronic data does not change the basic concepts or rules of the discovery process; also noting that basic accusations of incomplete document production, inconsistencies, or even perjury and destruction of evidence, would no more entitle a party to look at its opponent’s computer as would permitting a party to rummage through its opponent’s filing cabinets and desks). Absent some showing of improper conduct by a requesting party, other than a bald claim of failure to produce data, a requesting party will not be allowed to examine its opponent’s computers. See Powers, 2006 WL 2711512 at *4; see also Advante Intern. Corp, 2006 WL 1806151 at *1 (finding that notwithstanding the breadth of accusations a requesting party asserted, it failed to present specific, concrete evidence of concealment or destruction of evidence sufficient to conclude that an examination of its opponent’s computer was warranted).
*20 The advisory committee’s notes to the recently amended Rule 34, further supports Domino’s opposition to plaintiffs’ request that be permitted to rummage through Domino’s computers:
Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.
Fed. R. Civ .P. 34 advisory committee’s note, subd. (a) (2006 Amendments).
Plaintiffs have not established that they cannot obtain the necessary electronic discovery through Rule 34(a)(1), which allows for the production of relevant documents and avoids the burden of having another party come and search an opposing party’s computers for documents. In addition, plaintiffs have not made an adequate showing that Domino’s has withheld any documents so as to justify examination of its computers by plaintiffs. As such, plaintiffs’ motion to compel as it relates to their request for access to information on Domino’s shared drives is denied.
12. Domino’s Discovery Production Process
According to plaintiffs, Domino’s failed to implement the most basic infrastructure necessary to do a search for information responsive to their discovery requests. See Pls.’ Supp. Mem. at p. 10. Plaintiffs pointed to the following fifteen categories of alleged inadequacies: (1) Domino’s inside Counsel, Joel Graziani, Esq., communicated to Mathew Maguire, the head of Domino’s PULSE project, that he was to be the primary source of information that would be coming out about PULSE; (2) Maguire only initially spent 15 minutes with Graziani regarding the search for documents and was only told to get PULSE-related documents, without being provided with plaintiffs’ requests for production of documents; (3) the only instructions Maguire received were from Graziani alone; (4) even after being told that he was to be the primary source of information about PULSE, Maguire only viewed it as his mission to go to his employees within the Information Services (“IS”) Division and tell them orally to search for documents; (5) the only company-wide instruction as to the search for documents was a one-page memorandum from Graziani; (6) Maguire only orally instructed his subordinates to make documents available to Graziani, without explaining what “available” meant, and gave them no guidance as to the types of documents which should be made available or searched; (7) when a few of Maguire’s employees asked for clarification, he only provided them with a few examples and never provide them with plaintiffs’ requests for production of documents; (8) Maguire only instructed his employees to place documents they located on the shared drive; (9) Maguire never inquired of the other division heads or their employees regarding their search for documents; (10) after employees placed documents on the shared drive, Maguire did not look at the number and substance of these documents; instead he gave full access to Graziani to see everything within days of plaintiffs’ document requests having been served; (11) although each employee has his own “personal drive”, there was no planned or systematic search of the files on these drives; (12) no log was kept by Maguire as to what documents IS employees made available; (13) Maguire had no idea as to what search Graziani conducted on the shared drive; (14) Maguire left it up to Graziani to follow up with Maguire’s IS employees after Maguire only made one visit to most of their offices; and (15) the only hard copies that Maguire saw Graziani take from the IS Division were those he carried in his two arms. See Pls.’ Supp. Mem. at pp. 12-13.
*21 It appears that plaintiffs are attempting to focus this Court’s attention on specific alleged inadequacies in Domino’s production process, as opposed to whether Domino’s provided them with the requested discovery in this case. One of plaintiffs’ general claims was that while Maguire was designated to spearhead the search for PULSE documents, he was not properly prepared by Graziani to find documents, nor was he given the requests for production of documents in order to perform the search. Maguire testified that he became aware of this suit in the beginning of November 2005, when Graziani communicated to him that PULSE-related documents needed to be preserved. See Gray Supp. Aff., Ex. A (Maguire Dep.) at p. 12. Maguire also testified that his meeting with Graziani lasted approximately 15 to 30 minutes, and that they discussed who were the most knowledgeable individuals within the IS Division who had worked with PULSE beginning in 2000. Id. at pp. 12, 16. In his Affidavit, Maguire stated he and Graziani toured the IS Division and had conversations with key members who were working or had worked with PULSE. See Maguire Aff., 19.
As a preliminary matter, this Court finds that Maguire’s testimony does not support plaintiffs’ claim that he was the person designated by Graziani to conduct the search for documents throughout Domino’s entire organization:
Q. I just want to know at the moment in time Mr. Graziani leaves your office after he comes down, you now have an understanding of what you are to do, what your role is in this process. Tell me what your understanding was at that time then.
A. Okay. My understanding at that time was to -- as I told him who the key team members were, that I would go talk to them and request that they preserve all documentation that they have, as well as to gather it together so that -- and to make it available for Graziani.
Q. Do you know if -- was there anybody else that you came to understand was also in charge of collecting documents and reporting to Mr. Graziani?
A. I believe there were other team members in other divisions that had a similar role that would have been to gather those documents. Joe Devereaux would be one, in regards to -- that I’m aware of for franchise documents.
A. That would be the one that I -- could think of. I don’t know all the ones that were actually talked with specifically. I know that there -- there was other team members that were asked to do the same thing.
A. Based on conversations with the legal department that was -- I was responsible for the information services area to gather, and that the other areas would be addressed directly.
See Gray Supp. Aff., Ex. A (Maguire Dep.) at pp. 17-18. In other words, Maguire’s testimony was that he was asked to lead the search in the IS Division, while other individuals were asked to perform the search for their respective divisions, and then report directly to the legal department. Thus, Maguire was not obligated to speak with other departments regarding discovery, let alone to make sure that other divisions were following the mandate for the search of documents that came from the legal department.
Further, while plaintiffs would have this Court find Domino’s production inadequate because Maguire did not spend enough time talking to Graziani about the search and preservation of documents, this Court will not make such a finding. Who is to say that a half-hour meeting is no better than a one-hour meeting? The mandate to Maguire was clear: preserve all PULSE-related documents in the IS Division. There is nothing in the record to suggest that more time spent by Maguire and Graziani would have led to a more adequate production. Further, this Court finds plaintiffs’ complaint that Graziani failed to provide Maguire with a copy of their request for production of documents in November of 2005 incredible considering that plaintiffs’ first request for production was not served until February 16, 2006. See Pls.’ Sanctions Mem., Ex. A (Plaintiffs’ First Set of Requests for Production of Documents); see also Gray Supp. Aff., Ex. A (Maguire Dep.) at pp. 12, 22-23.
*22 The next category of complaints by plaintiffs pertain to Maguire’s alleged failure to instruct his subordinates in the IS Division on how to proceed with their search for documents. This Court rejects this assertion. Maguire testified that on the same date he initially spoke with Graziani, he spoke with the PULSE team leaders individually in the IS Division and told them that litigation had been filed, and that they needed to preserve and gather PULSE documents regardless of content, location or source. Maguire further instructed them to make these documents available to the legal department. See Gray Supp. Aff., Ex. A, (Maguire Dep.) at p. 23. Maguire testified that he subsequently sent an e-mail drafted by the legal department in his name that essentially reiterated these instructions. Id. at pp. 24-25. Thus, contrary to plaintiffs’ assertion, Maguire instructed relevant IS employees orally and in writing to obtain all PULSE-related documents regardless of content, location or source, and to place the documents on the shared drive or to provide the data, in whatever form, directly to the legal department. Further, to the extent that plaintiffs also asserted that employees were only instructed to place the documents on the shared drive, they do not explain why this is relevant to their argument that Domino’s production scheme was flawed.
In addition, this Court rejects plaintiffs’ argument that Domino’s discovery process was flawed because when employees asked for clarification from Maguire on what to search, he never gave them a copy of plaintiffs’ document requests. First, it must be noted that IS employees were not confused as to the initial search criteria of obtaining all PULSE-related documents. Instead, employees who had a large amount of PULSE information sought guidance on how to narrow the search criteria because of the volume. Id. at pp. 26-27. In response to these inquiries, Maguire provided the employees with such examples as: the selection processes for PULSE; the vendor selections for the next POS system software; costs associated with the proposals that Domino’s had received from vendors; the selection criteria used for the new POS system; all franchise input received on the selection of PULSE; the development of PULSE; presentations that were made; and relevant communications sent out to franchisees. Id. at pp. 25-26. This Court notes that these specific examples encompassed most of the plaintiffs’ first set of requests for production of documents. Second, McGuire could not have given his employees copies of plaintiffs’ first set of requests for production of documents as they were served three months after Domino’s employees were directed to preserve and gather relevant documents. See Maguire Aff., 24; see also Pls.’ Sanctions Mem., Ex. A (Plaintiffs’ First Set of Requests for Production of Documents). Finally, Maguire represented that once discovery requests were received from plaintiffs in February of 2006, Domino’s engaged in additional searches to make sure that the requested documents had been gathered. See Maguire Aff., 24.
Another category of criticisms by plaintiffs pertained to the alleged failure by Maguire to determine the number and substance of the documents produced by employees on the shared drive, along with giving access to Graziani to the shared drive without knowing what searches Graziani made on the shared drive. This Court does not understand why Maguire’s knowledge as to the number and substance of the documents produced by employees from his division or other divisions has any bearing on with the adequacy of Domino’s production documents, especially in light of the fact that someone from the legal department, who had set forth the parameters of the search, was reviewing the documents placed on the shared drive. While plaintiffs have claimed that Graziani was, in large part, the person responsible for obfuscating the discovery process, this Court has seen no evidence to support this claim. As for Maguire’s lack of knowledge regarding Graziani’s search of the shared drive, while this fact may be relevant to the adequacy of Maguire’s preparation as one of Domino’s Rule 30(b)(6) designees,
it does not bear on the propriety of Domino’s discovery process.
*23 Plaintiffs also took issue with Domino’s alleged failure to conduct a planned or systematic search of employees’ personal drives. See Pls.’ Supp. Mem at p. 12 (citing Maguire Dep. at pp. 68-70). An examination of the pages from the deposition transcript cited by plaintiffs showed that employees have a personal drive, however, there was no testimony that these drives were not searched. See Shannon Aff., Ex. C (Maguire Dep.) at p. 68. Regardless, Maguire testified that he instructed his employees to “gather all PULSE-related documents, regardless of location, ...” See Gray Supp. Aff., Ex. A (Maguire Dep.) at p. 24 (emphasis added). Further, Maguire stated in his Affidavit that, ‘[e]mployees computers were searched.” See Maguire Aff., 26. As such, based on this record, this Court cannot find that Domino’s failed to conduct a proper search of its employees’ personal computer drives for relevant documents.
As to the fact that Maguire did not keep a log as to what documents IS employees made available to Graziani, (see Shannon Aff., Ex. C (Maguire Dep.) at p. 72), plaintiffs have not provided this Court with any legal authority to establish that a corporate litigant is required to keep a log of documents produced to its legal department for production to an opposing party. In addition, plaintiffs have not adequately demonstrated to this Court that because Maguire failed to keep a log of documents provided to Graziani, Domino’s failed to meet their discovery obligations of producing relevant discovery to plaintiffs, especially given the instruction to employees to produce all PULSE-related documents from all sources and locations. This Court cannot find that Domino’s acted improperly by failing to keep a log.
Finally, plaintiffs argued that Domino’s discovery process was flawed because Maguire only observed Graziani take and arm-full of hard copy documents from the IS Division. Plaintiffs’ logic is faulty. If the volume of documents was the test for determining whether a production process was adequate, then plaintiffs should agree (which they do not), that Domino’s production of 75,000-plus pages of documents in this case establishes that its infrastructure for conducting discovery was more than adequate. Whether Domino’s produced one arm-load, or one truckload, of documents is not the test. The relevant inquiry is whether Domino’s produced the documents responsive to plaintiffs’ various document requests.
In sum, plaintiffs have not provided sufficient evidence to support their claim that Domino’s search process was inadequate or that they did not receive meaningful discovery from Domino’s.
2. Deposition of David Brandon
*25 Domino’s has also asked this Court for an order precluding the deposition of its Chairman and CEO, David Brandon. Domino’s requested this order on the grounds that the time needed for a deposition would be burdensome and disruptive to Domino’s business. In addition, Domino’s claims that Brandon lacks unique knowledge about the facts in this case, including the rights and obligations of parties under the franchise agreements, and unlike other individuals plaintiffs could have deposed, is involved at the highest level of decision-making regarding the PULSE System.
On March 29, 2006, plaintiffs noticed the depositions of Brandon and many of Domino’s current and former top officers including James Stansik, Executive Vice President of Franchising; Christopher McGlothlin, the current Chief Information Officer; Timothy Monteith, Domino’s former Chief Information Officer; Harry Silverman, the former Chief Financial Officer; and Matthew Maguire, the head of Domino’s PULSE project. See Wittrock Aff., Ex. R (Notice of Deposition); see also Def.’s Protect. Mem. at p. 28. Domino’s agreed to make every individual available for deposition, save for Brandon. Id., Ex. T (May 2, 2006 e-mail from Wittrock to Blumenthal). Given the burden to Domino’s to have its Chairman and CEO testify, it is Domino’s position that plaintiffs should have first deposed those individuals with more knowledge as to the issues relevant to this case.
Under Rule 26(b)(1), a court can preclude discovery, including depositions, when the “discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(i). While there is no rule precluding the depositions of top corporate executives, “courts frequently restrict efforts to depose senior executives where the party seeking the deposition can obtain the same information through a less intrusive means, or where the party has not established that the executive has some unique knowledge pertinent to the issues in the case.” Cardenas v. Prudential Insurance Co. of America, No. Civ.99-1421 (JRT/FLN), 2003 WL 21293757 at *1 (D. Minn. May 16, 2003) (citations omitted). This is because “[w]hen the discovery to be obtained is through the deposition of a senior executive, a court must remain mindful that ‘permitting unfettered discovery of corporate executives would threaten disruption of their business and could serve as a potent tool for harassment in litigation.’ ” Wertheim Schroder & Co., Inc. v. Avon Prod., Inc., No. 91 Civ. 2287, 1995 WL 6259 at *2 (S.D.N.Y. Jan. 9, 1995) (quoting Consolidated Rail Corp. v. Primary Indus. Corp., No. 92 Civ. 4927, 1993 WL 364471 at *1 (S.D.N.Y. Sept. 10, 1993)) (citations omitted). To that end, the depositions of high-level executives “will not be allowed where the information could be had through interrogatories, deposition of a designated spokesperson, or deposition testimony of other persons.” Baine v. General Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991) (citing Community Federal Sav. & Loan Ass’n v. FHLBB, 96 F.R.D. 619, 621-22 (D.D.C. 1983)).
Plaintiffs argued that Brandon has unique knowledge of the PULSE System, and therefore, his high-ranking status in the company should not prevent his deposition. In support of this proposition, plaintiffs’ referenced an article in a franchisee newsletter entitled, “Dave answers the question ... Why Domino’s Pulse?” See Plaintiffs’ Memorandum in Opposition to Domino’s Motion for a Protective Order (“Pls.’ Opp. Protect. Mem.”) at p. 3. According to plaintiffs, the article contains detailed analysis and makes several claims regarding several unidentified aspects of PULSE. Id. Plaintiffs did not provide this Court with a copy of this article. Given plaintiffs’ failure to provide this Court with a copy of this article, it has no ability to assess whether Brandon has unique knowledge regarding the PULSE System merely because his name is on the article.
*26 Plaintiffs also cited to two memoranda from Brandon to franchisees that have the subject line “Significant Changes Regarding Dominos’ Pulse” and “Domino’s Pulse”, and an e-mail from Maguire to Brandon pertaining to a summary of a weekly PULSE advisory board meeting. Id. The November 14, 2005 “Significant Changes Regarding Dominos’ Pulse” memorandum communicated the following relevant items regarding the PULSE System:
• Although PULSE experienced some operational problems in the past, Brandon believed that positive changes had been made in the implementation and leadership of the project.
• Matt Maguire would assume the role of PULSE project supervisor and that he and Siogent, as Leadership Team Sponsor for the PULSE project, would be contacting the franchisees to fix current problems with PULSE.
• Brandon would stay “very close to this project”.
• The search for a Chief Information Officer was still ongoing.
See Pl.’s Opp. Protect. Mem., Ex. A.
The January 10, 2006 “Domino’s Pulse” memorandum provided the following information regarding the PULSE System to franchisees:
• It was important to have a standardized, easy to use, and internet friendly point of sales system.
• Brandon still believed in the importance of the PULSE System, but recognized a necessary change to the time line for the installation of the system throughout all domestic stores.
• Brandon has had an ongoing dialogue regarding PULSE with Stansik, the Executive Vice President of Franchising, for the past four years.
• Brandon had become more personally involved in the challenges involving the failure to install PULSE System at the rate desired and that he had enlisted the help of Soignet to do an analysis of what was going right and wrong.
• The project had lacked a clear leader and that the PULSE team had not been structured properly.
• Although the project was back on track, Brandon through his conversations with Stansik, Soignet, and Danny Malamis (franchisee representative regarding the installation of PULSE), concluded that an extension was needed to the deadline for all franchisees to install the PULSE System in their stores from February 2007 to June 2008.
See Pls.’ Opp. Protect. Mem., Ex. B.
The September 23, 2005 e-mail from Maguire to Brandon set forth a summary of various concerns raised at the Franchise Advisory Board and stating they should get together to discuss these problems. See Pls.’ Opp. Protect. Mem., Ex. C.
Domino’s counsel asserted during the June 5, 2006 hearing that the two memos were system-wide pronouncements signed by Brandon as the CEO of the company designed to bring special attention to them or to show that they were the official word of the company. 6/5/2006 Tr. 23. Counsel also represented that Brandon did not draft these memoranda, but rather other people in the company provided him with the information and the memoranda merely came out in his name. Id. However, Domino’s has not provided the Court with any evidence of these assertions.
There is no question that the two memoranda and one e-mail demonstrate is that Brandon has relevant knowledge regarding the PULSE System. However, they do not demonstrate is that Brandon has unique knowledge about the PULSE System. Nor is there anything in these documents to suggest that Brandon has unique knowledge about the issues in this case, including the rights and obligations of parties under the franchise agreements. Further, while Brandon stated that he would stay “very close to this project”, the memoranda demonstrated that Maguire, Soignet, Stansik, and Malamis were the source of much of his information regarding the PULSE project. See Pls.’ Opp. Protect. Mem.. Ex. A, B. Further, the e-mail from Maguire to Brandon sets forth information provided by Maguire to Brandon on what had occurred at a meeting regarding PULSE. To the extent that Maguire and Brandon were going to meet regarding the issues raised in the meeting does not mean that the information desired by plaintiffs cannot be garnered from Maguire, as opposed to having to depose Brandon. In sum, this Court finds that these memoranda and e-mail do not show that Brandon has unique knowledge regarding the PULSE System or the issues presented by this litigation that cannot be obtained by plaintiffs through Maguire, Soignet, Stansik and Malamis.
*27 Plaintiffs also pointed to the following e-mail dated April 1, 2006 from Brandon to Stansik as evidence of Brandon’s unique knowledge:
Re: our wonderful franchisees who have chosen to sue us....
Are all of their stores Image 2000 compliant? I would like a report on their OER history.... and where we are on the timing of their franchise agreements.
I would like to notice them that we will not be renewing as soon as we are able.
See Shannon Aff., Exs. H-J. According to plaintiffs, Brandon, through this e-mail “had made it very clear and in no uncertain terms that he has personal knowledge of this lawsuit as well as providing specific direction and evidence of Domino’s plan to retaliate against the franchisees for exercising their rights and agreement and bringing this lawsuit.” See Pls.’ Supp. Mem. at p. 28. The Court rejects plaintiffs’ contention that they entitled to depose Brandon based on this e-mail. Personal knowledge of the present lawsuit is not the same as unique knowledge regarding the facts underlying this case. Further, any alleged retaliation spearheaded by Brandon against franchisees who have brought law suits against Domino’s is not relevant to this case, as plaintiffs have asserted no claims or requests for relief in their Amended Complaint regarding Domino’s alleged intent to retaliate against them.
For all these reasons, this Court will not allow plaintiffs to depose the Domino’s Chairman and CEO when they have not established that these other employees do not posses the same information regarding the PULSE project as Brandon. As such, the Court will grant Domino’s motion for protective order precluding the deposition of Brandon.
1. Failure by Plaintiffs to Comply with this Court’s April 21, 2006 Order
Domino’s argued that plaintiffs should be sanctioned for not complying with this Court’s April 21, 2006 Order. In that Order, plaintiffs were instructed to provide amended responses to Domino’s First Set of Interrogatories Nos. 1, 3, 6, and 7 and to Document Request No. 4 from Domino’s First Set of Requests for Production of Documents. See April 21, 2006 Order [Docket No. 49]. As of June 12, 2006, the date Domino’s brought the present motion, plaintiffs had failed to provide their amended responses. See Second Affidavit of Quentin R. Wittrock (“Second Wittrock Aff.”), 2. In their opposition, plaintiffs represented that they had served amended discovery responses with their June 19, 2006 opposition memorandum, and asserted that Domino’s was not prejudiced by the time it had to wait for these responses. See Plaintiffs’ Memorandum in Opposition to Motion to Compel by Domino’s Pizza, LLC under Fed. R. Civ. P. 37.01 (a) and (b) (“Pls.’ Rule 37 Opp. Mem.”) at p. 8. Plaintiffs did not provide the Court with a copy of their amended responses, however, Domino’s has incorporated a verbatim recitation of plaintiffs’ responses in its reply memorandum. Domino’s still challenges the amended responses provided by plaintiffs on the grounds they were unverified, late, and non-compliant with this Court’s April 21, 2006 Order. See Reply Memorandum in Support of Defendant’s Motion under Fed. R. Civ. P. 37 (A) and (B) (“Def.’s Rule 37 Reply Mem.”) at p. 2.
As to Interrogatory No. 1, this Court ordered that:
Plaintiffs shall each answer Interrogatory No. 1 individually, stating their own particular knowledge with respect to the information sought by the interrogatory.
*29 See April 21, 2006 Order. Interrogatory No. 1 and the amended answer are follows:
Interrogatory No.1: Please state the dates of any meeting or correspondence regarding Domino’s PULSE, an d for each such meeting or correspondence, identify all persons involved and describe the content of the meeting or correspondence.
Answer to Interrogatory No. 1: Plaintiffs object to this interrogatory as unduly broad and overly burdensome, and to the extent a response would invoke the attorney client privilege.
Subject to and without waiving these objections, Kevin Bores attended DFA meetings in Orlando in 2003, in San Diego in 2004 and Las Vegas in 2005 and 2006 where PULSE was discussed.
Subject to and without waiving these objections, Jennifer Huber attended DFA meetings in Orlando in 2003 and Las Vegas in 2005 and 2006 where PULSE was discussed.
Subject to and without waiving these objections, Christopher McCormick attended DFA meetings in Orlando in 2003 and Las Vegas in 2005 and 2006 where PULSE was discussed.
See Defs.’ Rule 37 Reply at p. 2.
While plaintiffs identified the franchise meetings they attended that dealt with PULSE, they have failed to identify the contents of the meetings. Stating that PULSE was discussed at the meetings does not comply with this Court’s Order, given that Interrogatory No. 1 asked for the content of the meetings that dealt with PULSE. Further, plaintiffs failed to state whether or not they had any correspondence in their possession where PULSE was discussed and failed to describe the content of such correspondence. As such, this Court finds that plaintiffs have failed to fully comply with this Court’s April 21, 2006 Order as it relates to Interrogatory No. 1.
With regards to Interrogatory No. 3, this Court ordered that:
As to Interrogatory No. 3, plaintiffs shall identify all documents responsive to this Interrogatory or shall produce all documents responsive to this interrogatory. If such documents have already been produced, then plaintiffs shall identify the documents responsive to this Interrogatory by bates number or other identifying information.
See April 21, 2006 Order. Interrogatory No. 3 and the amended answer were as follows:
Interrogatory No. 3: Identify all persons who have analyzed the value, specifications for, capabilities, features, benefits, or drawbacks of Domino’s PULSE or any component of it, and identify any documents relating to such analysis.
Answer to Interrogatory No. 3: Plaintiffs object to this interrogatory as unduly broad and overly burdensome, and to the extent a response would invoke the attorney client privilege. Subject to and without waiving these objections, Mike Chiodo, Andrew Buonos, Paul Matisse, Pat McNeil and Ronald Warsaski have analyzed Domino’s PULSE system. Plaintiffs have produced analyses by Ronald Warsaski and Pat McNeil.
See Defs.’ Rule 37 Reply at p. 3.
Plaintiffs’ counsel represented at the hearing that the only analyses in existence were those prepared by Ronald Warsaski and Pat McNeil, as identified in plaintiffs’ Answer to Interrogatory No. 3. See 6/26/06 Tr. 37-38. Domino’s did not dispute plaintiffs’ assertions that they received the analyses from Ronald Warsaski and Pat McNeil. This Court finds that plaintiffs have identified those individuals who have analyzed PULSE and have produced the analyses to Domino’s. As such, this Court finds that plaintiffs did not violate this Court’s Order as it relates to Interrogatory No. 3.
*30 With regards to Interrogatory No. 6, this Court ordered that:
As to Interrogatory No. 6, plaintiffs shall respond to this interrogatory. In addition, in lieu of a further deposition of Jennifer Huber, plaintiffs shall also state all attorneys fees paid or incurred to date, that they are claiming are owed by Domino’s as damages in this case.
Interrogatory No. 6 and the amended answer were as follows:
Interrogatory No. 6: Who is paying plaintiffs’ legal costs in this action?
Answer to Interrogatory No. 6: Plaintiffs are the only persons responsible for payment of their legal costs in this action.
See Def.’s Rule 37 Reply at p. 3-4.
During the hearing, plaintiffs’ counsel represented that he interpreted the Court’s Order as only requiring plaintiffs to identify who was “responsible” for legal costs and not who paid for the legal costs. See 6/26/06 Tr. 39-40.
In its Memorandum accompanying the April 21, 2006 Order the Court stated the following:
As such, discovery of the amount of attorneys fees and costs that plaintiffs are claiming as damages and who is responsible for payment of these fees and costs are reasonably calculated to lead to the discovery of admissible evidence regarding claims made in this case. Further, this information is not privileged. Therefore, plaintiffs shall provide to Domino’s the amount of attorneys fees and costs that plaintiffs have incurred or paid to date, and shall identify who is responsible for payment of these fees and costs.
April 21, 2006 Order [Docket No. 49] at pp. 4-5 (emphasis added).
It appears that based on this portion of the Memorandum, plaintiffs’ counsel concluded that it did not require plaintiffs to produce to Domino’s the list of individuals who have paid plaintiffs’ attorney’s fees and costs; rather their response could be limited to those individuals who had the legal obligation to pay attorney’s fees. This Court recognizes that its memorandum could lead to this conclusion, notwithstanding that its Order, required plaintiffs to answer Interrogatory No. 6, which asked, “[w]ho is paying plaintiffs’ legal costs in this action?” In light of this inconsistency, this Court finds that plaintiffs did not violate the April 21, 2006 Order. However, plaintiffs shall identify who is paying or has paid their legal costs in the present action, regardless of who is responsible legally to pay these monies.
In addition, Domino’s counsel stated that they had not received any information from plaintiffs regarding the amount of fees incurred by them in this case. See 6/26/06 Tr. 50. This Court had ordered plaintiffs to set forth all attorney’s fees that have been paid or incurred in lieu of requiring the additional deposition of plaintiff Jennifer Huber. Id. at 39. Plaintiffs’ counsel, Goldstein, represented that he believed that plaintiffs had provided Domino’s with the amount of attorney’s fees incurred and that his co-counsel, Pahl, could provide details as to the production. Id. at 40. Pahl represented that he provided his co-counsel on this case, Blumenthal, with a list of the fees incurred by his firm on this case and that he was “hard pressed to believe he would not give that to [Domino’s].” Id. at 54. Regardless who delegated what to whom, the point is that plaintiffs have failed to produce the required information regarding the attorney’s fees paid or incurred by them. Therefore, this Court finds that plaintiffs have failed to comply with this Court’s April 21, 2006 Order as it relates this part of Interrogatory No. 6.
*31 Further, this Court ordered plaintiffs to answer Interrogatory No. 7:
As to Interrogatory No. 7, as agreed at the telephonic conference, plaintiffs shall answer this interrogatory.
See April 21, 2006 Order [Docket No. 49]. Interrogatory No. 7 and plaintiffs’ amended answer were as follows:
Interrogatory No. 7: Describe all refurbishments, capital expenditures, and/or other improvements to the equipment or facilities of each of the stores operated by the plaintiffs’ business since January 1, 1995, and for each such item set forth the date of the expenditure and the dollar amount spent.
Answer to Interrogatory No. 7: Plaintiffs object to this interrogatory as unduly broad and overly burdensome, and to the extent a response would invoke the attorney client privilege. Subject to and without waiving these objections, each Plaintiff respectfully refers to the documents previously produced in response to this Interrogatory, and specifically incorporates the information listed thereon into this Answer.
See Def.’s Rule 37 Reply at p. 4.
Plaintiffs’ counsel, Goldstein, represented at the hearing that it was his understanding that his co-counsel, Blumenthal, had prepared a chart as to refurbishments and had given it to Domino’s counsel, and described some documents that plaintiffs had produced. 6/26/06 Tr. 41. However, as plaintiffs had not placed bates numbers on documents, they could not describe them to Domino’s or the Court by bates ranges. Domino’s counsel denied receiving a chart regarding refurbishments. Id., Tr. 49. In response to this assertion, plaintiffs’ counsel then stated:
MR. PAHL: It is the memorandum by plaintiffs in opposition to this motion to compel under Rule 37(a) and (b). And it is pointed out in a footnote that there was actually a chart of refurbishments presented to Mr. McCormick during his deposition as Exhibit 59 to which Mr. Wittrock asked, and what is this exhibit. And the answer was a chart of refurbishments. To which Mr. Wittrock said, prepared by you? To which Mr. McCormick said with the assistance of my CPA.
THE COURT: Before you get to that, are you saying -- is this the document, then, that you are saying is responsive to my order, Exhibit 59?
MR. PAHL: I am simply saying that I know that a chart of refurbishments has been provided to the plaintiffs [sic] for Mr. McCormick. And to what extent each of the individual other plaintiffs provided that, I cannot tell you because I have not been in control of the document production. But I think it’s a mistake to say we’ve never produced a chart of refurbishments. And I do agree that Mr. Blumenthal had been largely in charge of that document production.
Id. at 52-53.
Based on the testimony and evidence before the Court, it appears that the only possible chart that has been produced to Domino’s that describes refurbishments, as requested by Interrogatory No. 7, is for plaintiff McCormick. It concerns this Court that plaintiffs assumed that because they had produced a document to Domino’s containing responsive information during a deposition, they had no further obligation to provide relevant information in response to an outstanding interrogatory and this Court’s Order. Further, what is clear is that this “chart” contains no information responsive to Interrogatory No. 7 as it relates to plaintiffs Bores or Huber. For all these reasons, this Court finds that plaintiffs have not complied with this Court’s April 21, 2006 Order with regards to Interrogatory No. 7.
*32 Finally, this Court ordered plaintiffs to provide documents responsive to Document Request No. 4 as follows:
As to Document Request No. 4, as ordered at the telephonic conference, plaintiffs shall identify for Domino’s those documents that they have produced that are responsive to this document request, and from whom (which plaintiff) the documents were obtained. In addition, plaintiffs shall inform Domino’s which pages comprise a single document, and which pages were attached to other pages (so that Domino’s can understand which pages of a document were attachments to a document).
See April 21, 2006 Order [Docket No. 49].
According to Domino’s plaintiffs did not provide any amended response to Document Request No. 4. See Def.’s Rule 37 Reply at p. 4. In response, plaintiffs’ counsel, Goldstein, stated during the June 26, 2006 hearing:
I understand he said that, Judge. Again, all I can tell the Court, I did not do that personally. I can tell the Court that we, in good faith, attempted to comply with the Court’s Order.
My understanding is that my crew did specifically address all the issue [sic] in the Court’s order. If there is one missing, I’m not telling the Court that I had firsthand knowledge that it was not done and I’m not telling the Court that I am not taking responsibility for it. I am telling the Court that there was nothing intentional ....
6/26/06 Tr. 43. Even if plaintiffs’ counsel claims he did not intentionally fail to comply with this Court’s Order, this does not excuse him or his clients from the mandates of this Court’s Order.
This Court finds that plaintiffs ignored this Court’s April 21, 2006 Order until Domino’s brought its motion and then, after amending its responses to the discovery which was the subject of the Order, still failed to comply with a substantial portion of the Order. Further, plaintiffs failed to provide verified answers to discovery as required by Rule 33(b)(2) of the Federal Rules of Civil Procedure. As such, sanctions against plaintiffs and its counsel are appropriate.
Domino’s has requested as sanctions that this Court dismiss or strike claims attacking Domino’s PULSE System, any claim for attorney’s fees, and any claim the PULSE System is a “refurbishment” under the franchise agreements. See Def.’s Rule 37 Mem. at p. 5. Federal Rule of Civil Procedure 37(b)(2) allows the Court to consider numerous sanctions for failing to comply with an order compelling discovery, including dismissal of an action, where there is “(1) an order compelling discovery; (2) a willful violation of that order; and (3) prejudice to the other party.” Everyday Learning Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001) (emphasis added) (quoting Keefer v. Provident Life & Accident Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000)).
In this case, this Court’s April 21, 2006 Order explicitly required plaintiffs to provide full responses to certain discovery. Plaintiffs only attempted to comply with this Court’s Order when Domino’s brought the present motion for sanctions, which was almost two months after this Court had issued its discovery order. The amended responses for the most part did not provide the requested information. While plaintiffs’ counsel represented that he and his team tried their best to comply with this Court’s Order, their actions prove otherwise. As such, this Court finds that plaintiffs willfully failed to comply with the April 21, 2006 Order. Finally, this Court finds that plaintiffs’ failure to abide by this Court’s Order has resulted in prejudice to Domino’s in the form of having to expend money and resources to ensure plaintiffs’ compliance with a discovery order. Further, plaintiffs’ failure to follow this Court’s discovery Order has impeded Domino’s ability to defend its interests.
*33 In light of the Court’s findings that there was an order compelling discovery, a willful violation of that order, and prejudice to Domino’s, sanctions under Fed. R. Civ. P. 36(b)(2) are warranted. However, before dismissing part of case under Rule 37(b)(2), fairness requires that a court consider whether a sanction less extreme than dismissal is available or appropriate. Keefer, 238 F.3d at 941 (citation omitted); see also Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992). The court is not obligated to impose the least onerous sanction available, but may exercise its discretion to choose the most appropriate sanction under the circumstances. Keefer, 238 F.3d at 941 (citation omitted). “There is a strong policy in favor of deciding a case on its merits, and against depriving a party of his day in court.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999) (citation omitted).
This Court finds that the following sanctions are appropriate. First, this Court will require each plaintiff to provide (1) complete, and (2) verified answers to Interrogatories Nos. 1, 6, 7, and require each plaintiff to produce all documents responsive to Document Request No. 4. Plaintiffs shall serve the amended responses on Domino’s on or before February 12, 2007. If plaintiffs fail to comply with this Order by this date, then the Court will entertain an application for additional sanctions by Domino’s including, but not limited to, dismissal of claims from plaintiffs’ case, striking of plaintiffs’ pleadings, negative evidentiary inferences against plaintiffs, and additional monetary sanctions.
Second, plaintiffs and their counsel shall compensate Domino’s for the attorney’s fees and costs incurred by it in bringing this motion and attending the hearing. By February 12, 2007, Domino’s counsel shall provide this Court with an affidavit listing the reasonable costs associated in bringing this motion and attending the hearing. Finally, plaintiffs’ counsel shall pay the amount of $1000 to the Clerk of Court by February 12, 2007, for counsel’s role in plaintiffs’ failure to comply with this Court’s Order. See Lee v. L.B. Sales, Inc., 177 F.3d. 714, 719 (8th Cir. 1999). Here, the monetary sanctions imposed on by the Court are intended not only to reimburse Domino’s for expenditures they incurred as a result of the conduct of plaintiffs and their counsel, but to penalize plaintiffs’ counsel for their failure to comply with an order as officers of the Court. In addition, the sanction against plaintiffs’ counsel is imposed to deter counsel from engaging in similar misconduct in the future. See Universal Cooperatives, Inc. v. Tribal Co-Op. Marketing Dev. Fed. of India, Ltd., 45 F.3d 1194, 1198 (8th Cir. 1995) (quoting National Hockey League, 427 U.S. at 643). This Court will require that the payment to the Clerk of Court accompany a certification from plaintiffs and their counsel that counsel has not required plaintiffs to pay the amount of the $1000 sanction imposed.
2. Deposition Objections in Violation of this Court’s April 21, 2006 Order
Domino’s claimed that plaintiffs violated this Court’s April 21, 2006 Order by engaging in speaking objections. See Def.’s Rule 37 Mem. at pp. 5-6. In addition, Domino’s asserted that plaintiffs’ counsel continued to engage in the practice of instructing deponents, McCormick and Bores, not to answer questions during their depositions based on relevancy grounds without immediately seeking a protective order. Id. at p. 7. With regard to the objections during the depositions of McCormick and Bores, plaintiffs argued that they were proper and the result of defects in opposing counsel’s questions and that most of them were in general format—i.e., objection, form, foundation. See Pls.’ Rule 37 Opp. Mem. at p. 7. As to the instruction not to answer certain questions, plaintiffs asserted that Domino’s was attempting to violate this Court’s April 21, 2006 Order by continuing to seek information beyond who was responsible for paying plaintiffs’ attorney’s fees and the amount of those fees. Id.
*34 The relevant portion of this Court’s April 21, 2006 Order dealing with objections during depositions was as follows:
Finally, with respect to defendant’s request that it be able to depose Huber again because of plaintiffs’ counsels many speaking objections, while this Court agrees that plaintiffs’ counsel did engage in numerous speaking objections, this conduct did not render the deposition a useless exercise and Domino’s was able to get substantive answers to the questions put to Huber. Thus, the Court does not find that Domino’s should have another day of deposition with Huber. However, having reached that conclusion, the Court wants to make it clear that it found the reading of Huber’s deposition to be a most frustrating and painful exercise because of the conduct of counsel for both parties. As the Court reviewed the transcript, it was struck by the fact that the persons who did the most talking—making long speeches about the propriety of various objections—were the attorneys and not to Huber. As to the conduct of defendant’s counsel, counsel should be aware that this Court does not look kindly on speaking objections or on instructions to a witness not to answer based on relevancy.
As a general rule, objections are supposed to limited to the form of the question, and the examination is to proceed subject to the objection. See Fed. R. Civ. P. 30(c).
In this regard, the Federal Rules are explicit about the stating of objections: “Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.” Fed. R. Civ. P. 30(d)(1). Further, instructions not to answer are to be used for only limited purposes – e.g. to preserve a privilege, to enforce a limitation enforced by this Court, or to present a motion for a protective order under Rule 30(d)(4). Id.
What occurred in Huber’s deposition was the opposite of what is contemplated by the Rules. Plaintiffs’ counsel, instead of making concise objections on grounds “that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer”, instead made lengthy objections, which if not designed to suggest to Huber how to respond, did end up suggesting to her how to respond. See 1993 Advisory Committee Notes to Fed. R. Civ. P. 30. In the future, counsel is reminded that if he seeks to make an objection, it must be stated in a concise fashion (e.g. “objection, question calls for speculation”; “objection, lack of foundation”; “objection, question is confusing”; “objection, assumes facts not in evidence”) and avoid engaging in a speech or colloquy that amounts to coaching the witness on what is the problem with the question or how he or she should answer it. Further, if counsel is going to insist on instructing a witness not to answer a question or line of questioning based on reasons other than to preserve a privilege or to enforce a limitation enforced by this Court, then counsel should be immediately present a motion to this Court seeking a protective order pursuant to Rule 30(d)(4).
*35 See April 21, 2006 Order [Docket No. 49] at pp. 6-7.
This Court’s Order clearly warned counsel for both sides to not engage in improper speaking objections and to immediately present a motion for a protective order if there was going to be an instruction to a witness not to answer a question based on any grounds other than privilege. The question before the Court is whether plaintiffs’ counsel engaged in prohibited conduct during the depositions of McCormick and Bores. This Court has reviewed the transcripts from the depositions of McCormick and Bores (attached as exhibits H and I to the Affidavit of Quentin R. Wittrock in Support of defendant’s Motion for a Protective Order), including the seven instances Domino’s alleged to be speaking objections by plaintiffs’ counsel. See Def.’s Rule 37 Mem. at p. 6 (citing and Wittrock Aff., Ex. H at pp. 19, 90, 91, 131; Ex. I at pp. 52, 85, 199). This Court did find several instances of speaking objections by plaintiffs’ counsel during the two depositions referenced by Domino’s. See, e.g Wittrock Aff., Ex. H at pp. 19, 26, 76, 91, 107, 131; Ex. I at pp. 57, 61-62, 64, 71 85, 199, 286. While these objections did not ultimately affect Domino’s ability to obtain substantive responses to its questions of Bores and McCormick, the fact is, plaintiffs’ counsel violated this Court’s Order and his conduct cannot be condoned. The imposition of sanctions is warranted. The payment of the amount of $1,000 to the Clerk of Court, addressed in Section II.C.1 of this Order, supra, shall include the sanction for counsel’s conduct.
This Court also finds that plaintiffs’ attorney improperly instructed his clients not to answer based on relevancy. In particular, during the deposition of Bores, the following exchange occurred:
Q: You have any idea if anyone has contributed to DFCDF?
MR. GOLDSTEIN: That’s a violation of this Court’s Order, so I would instruct you not to answer.
MR. WITTROCK: What court order are you referring to, Mr. Goldstein?
MR. GOLDSTEIN: Mr. Wittrock, please come on, we’re trying to get out of here by 4:30.
Wittrock Aff., Ex. H at p. 34. Similarly, plaintiffs’ counsel instructed McCormick not to answer questions regarding contributions to the DFCDF:
BY MR. WITTROCK: Q. How many contributors have their been to the DFCDF so far?
MR. GOLDSTEIN: I’ll instruct you not to answer.
BY MR. WITTROCK: Q. Have any point of sale vendors supported the DFCDF?
MR. GOLDSTEIN: I’ll instruct you not to answer.
BY MR. WITTROCK: Q. What is the total amount of contributions to date to the DFCDF?
MR. GOLDSTEIN: I’ll instruct you not to answer.
BY MR. WITTROCK: Q. Has anyone supported the DFCDF other than the Domino’s Pizza franchisees?
MR. GOLDSTEIN: I’ll instruct you not to answer.
Wittrock Aff., Ex. I at p. 201.
This Court’s April 21, 2006 Order did not preclude Domino’s from asking for information regarding who has paid for plaintiffs’ attorney’s fees in this case. To the contrary, as stated previously, this Court held that that “[a]s to Interrogatory No. 6, plaintiffs shall respond to this interrogatory, which asked, “[w]ho is paying plaintiffs’ legal costs in this action? See April 21, 2006 Order at p. 2. Since plaintiffs’ are asserting a claim for attorney’s fees in this case, finding out what portions of the fees plaintiffs have paid versus what others have paid is relevant to the issue of the amount of an award for attorney’s fees to which plaintiffs may be entitled. As such, this Court will allow Domino’s to redepose Bores and McCormick for the purposes of learning who has contributed monetarily to plaintiffs’ prosecution of this case and in what amounts. However, as this Court has determined that there was confusion created by this Court’s April 21, 2006 Order and its Memorandum as to what information plaintiffs were to provide to Domino’s regarding the payment of their attorney’s fees (see Section II.C.1, supra), this Court will not impose further sanctions upon plaintiffs’ counsel for his instructions not to answer.
4. Domino’s Motion to Compel under Fed. R. Civ. P. 37(a)
*37 On May 5, 2006, Domino’s served its Second Set of Interrogatories and Requests for Production of Documents on plaintiffs. See Def.’s Rule 37 Mem. at p. 9. Domino’s asserted that plaintiffs failed to serve responses to discovery by the June 5, 2006 deadline; instead plaintiffs asked for an extension of one day, which was denied by Domino’s. Id. On June 9, 2006, Domino’s counsel notified plaintiffs’ counsel of deficiencies in plaintiffs’ responses to the second set of discovery and asked opposing counsel to meet and confer so as to avoid a motion to compel. See Second Wittrock Aff., 5. According to Domino’s counsel, plaintiffs never agreed to meet and confer with regards to the second set of discovery, nor have they issued amended responses to Domino’s discovery requests. Id. The only explanation offered by plaintiffs in response to Domino’s motion to compel as it relates to Domino’s Second Set of Interrogatories and Requests for Production of Documents is as follows:
With regard to issue raised by Domino’s with regard to Plaintiffs’ most recent discovery responses, although Domino’s has not attempted to confer with plaintiffs to resolve the issues raised, Plaintiffs will amend their responses in the coming days to address the alleged deficiencies.
See Pls.’ Rule 37 Opp. Mem. at p. 9. There is no evidence before the Court to suggest that plaintiffs ever served amended responses to defendant’s Second Set of Interrogatories and Requests for Production of Documents.
Although plaintiffs claim in their memorandum of law that Domino’s did not meet and confer with them prior to bringing its motion to compel, Domino’s counsel certified in his Affidavit, as required in Local Rule 37.1, that an attempt to meet and confer was made to no avail. Further, this Court notes that plaintiffs did not dispute Domino’s claim that they had served their discovery responses to Domino’s second set of written discovery after the time allowed by the Federal Rules of Civil Procedure, nor did they set forth in their brief or during the June 26, 2006 hearing why they were late in producing responses to discovery. Finally, plaintiffs did not refute defendant’s assertion (see Def.’s Rule 37 Mem. at p. 10) that their answers to interrogatories were unverified.
As an initial matter, Domino’s has asked for an order from this Court finding that plaintiffs have waived the objections set forth in their responses to Domino’s Second Set of Interrogatories and Requests for Production of Documents on the grounds that plaintiffs failed to serve timely responses. Federal Rule of Civil Procedure 33 requires that party “serve a copy of the answers and objections if any, within 30 days after the service of the interrogatories.” Fed. R. Civ. P. 33(b)(3). The same is true with responses to requests for production of documents. See Fed. R. Civ. P. 34(b). Federal Rules of Civil Procedure 33(b)(4) specifies the sanction for failure to make objections to interrogatories in a timely manner: “[a]ny ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.” See also Pham v. Hartford Fire Insurance Co., 193 F.R.D. 659, 661 (D. Colo. 2000) (citations omitted). Further, objections not made within 30 days of a document request are untimely and therefore waived.” Microsoft Corp. v. Multi-Tech Systems, Inc., No. Civ. 00-1412 (ADM/RLE), 2002 WL 273146 at *1 (D. Minn. Feb. 26, 2002) (citing Fed. R. Civ. P. 34(b); Mackey v. IBP, Inc., 167 F.R.D. 186, 206 (D. Kan. 1996)).
Here, plaintiffs failed to state in their memorandum of law or at the hearing why their responses to Domino’s requests for discovery were late. Consequently, based on the record before the Court, there is no basis to conclude that there was “good cause” for plaintiffs’ failure to object in a timely manner. “Discovery deadlines are intended to ensure the efficient progress of a lawsuit and counsel are expected to comply with them.” Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999). Because plaintiffs failed to make timely objections to Domino’s Second Set of Interrogatories and Requests for Production of Documents in accordance with the Federal Rules of Civil Procedure, all of their objections, except for objections based on the attorney-client privilege and work product doctrine, are waived.
See Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 657 n. 16 (D. Md. 1997) (finding the waiver of the attorney-client privilege to be too draconian of a sanction); see also E.E.O.C. v. Safeway Store, Inc., No. C-00-3155 THE(EMC), 2002 WL 31947153 at *2 (N.D. Cal. Sept. 16, 2002) (“Finding that a party has waived its right to assert a privilege objection due to it conduct (or lack of conduct) is a harsh sanction utilized where that party has unjustifiably delayed discovery.”).
*38 As plaintiffs never amended their responses to Domino’s second set of written discovery, the Court will now proceed to determine the adequacy of plaintiffs’ answers to Domino’s Second Set of Interrogatories and Requests for Production of Documents, which Domino’s claims are deficient.
4. The Adequacy of Hartwig’s Rule 30(b)(6) Testimony
Plaintiffs argued that Steven Hartwig, from K&B Copy Group, the person proffered by Domino’s as a Rule 30(b)(6) deponent on their document production, was inappropriate as he spent very little time dealing with production in this case and obtained his knowledge from two individuals that worked on the account. See Pls.’ Supp. Mem. at p. 3. In addition, plaintiffs claimed that Hartwig was unable to answer questions related to topics 9, 10a-c, 11a-b, f-h, and 12a-k set forth in this Court’s July 12, 2006 Order [Docket No. 161], regarding the adequacy of Domino’s document production in this case. These were the topics that Hartwig, as the Domino’s designee, was to provide to plaintiffs. See Shannon Aff., Ex. A (Hartwig Dep.) at p. 4.
*43 Corporations “ ‘have a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.’ ” Prokosch, 193 F.R.D. at 638 (quoting Starlight Intern, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999)). Rule 30(b)(6) deponents are required to provide testimony as to the knowledge of the corporation, and not the first-hand knowledge of the deponent. See United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996); see also Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md. 2000) (citing SEC v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992) (finding that Rule 30(b)(6) designees need not have firsthand knowledge of the issues in question, but are required to be adequately prepared to answer questions on the designated topics).
During the Rule 30(b)(6) deposition, Hartwig testified that his role in connection with Domino’s production of documents in this case was to oversee the project on a “global basis”. See Shannon Aff., Ex. A (Hartwig Dep.) at pp. 6, 33. He further testified that Kyle Neitzel, also with K&B Copy Group, had the more day-to-day contact with the client’s litigation support manager, Leanne Olson at Gray Plant and Mooty. Id. at pp. 6-7. According to Hartwig, he worked less than 5 percent on the document production at issue, with the remainder of the time being spent by Neitzel. Id. at pp. 8, 51-52.
Hartwig testified that it was his duty in the Rule 30(b)(6) deposition to provide information about why K&B Copy Group processed and produced documents to Gray Plant and Mooty in the manner that it did. Id. at p. 4. To that end, he spoke two or three times with Olson on what the deposition entailed and regarding her interactions with Neitzel, and he also spoke with Neitzel twice regarding the deposition. Id. at pp. 8-9, 50-51. Hartwig attempted to testify regarding what he and Neitzel discussed in preparation for his deposition, but plaintiffs’ counsel withdrew the question:
Q. And what do you recall that Kyle told you about this case.
A. Well, I recall that he -- if I could just maybe go through this in order.
Q. Why don’t we -- I know you want to answer it that way, so I’ll pull back on the question.
Id. at p. 52.
This Court finds that Domino’s did not act improperly by designating Hartwig as the Rule 30(b)(6) witness. When evaluating whether a Rule 30b)(6) deponent has been properly designated by a corporation, the question is not be whether the corporation designated the individual who had the most personal knowledge regarding the topics of the Rule 30(b)(6) notice, but rather whether the deponent was prepared to “testify as to matters known or reasonably available to the corporation” regarding the topics set forth by the Rule 30(b)(6) notice. See Fed. R. Civ. P. 30(b)(6). Domino’s did just that. Hartwig is the presently the Director for Imaging for K&B Copy Group and has 18 years of litigation document management experience. See Hartwig Aff., 1-2. He oversaw the project and was familiar with how electronic documents are generally produced in litigation. See Shannon Aff., Ex. A (Hartwig Dep.) at p. 6, 33, 57-58. Although Hartwig did not do the majority of the “legwork” with regards to the production in this case, he testified that he was shown the topics for the deposition and spoke to individuals who had knowledge of the production to prepare for the deposition. Plaintiffs did not establish that Hartwig was not an appropriate person to testify regarding the topics in their Rule 30(b)(6) Notice.
*44 Plaintiffs also claim that Hartwig was unable to provide answers to the following Rule 30(b)(6) deposition topics:
9. As to any document management company, litigation support firm, ediscovery firm, electronic discovery firm, trial preparation firm, or similar company used for this litigation, identify and testify regarding:
b. Capabilities to assist Domino’s in their document production,
c. What directions were provided to the firm, and
d. Whether the directions were in writing;
e. What specific instructions, if any, were provided with respect to the documents production.
10. Identify and testify regarding the process of providing e-mails to the firm described in No. 9 above, including but not limited to:
a. Whether e-mails were provided to the firm;
b. How the e-mails were transmitted or provided to the firm and in what format;
c. Whether there was a mix of original electronic mails and printed discovery provided at the same time;
11. Identify, describe, and testify regarding the process of providing documents other than e-mails to the firm described in No. 9 above, including but not limited to:
a. How the documents were transmitted or provided to the firm and in what format;
b. Whether there was a mix of original electronic documents and printed discovery provided at the same time;
f. What types of files were provided;
g. The process for delivering the documents;
12. Describe and testify regarding the firm or firms described in No. 9 above and Domino’s, regarding:
a. What rate or rates were charged by the firm;
b. Whether the rate was negotiated as a “flat fee” or “per page” basis;
c. Whether the rate would have been greater for different services, such as having pages “OCRed;”
d. Whether a specific request was made to convert files to a specific format, such as .tiff format or .jpg format;
e. Whether the firm specified that a “default” format would be used if none was selected;
f. What formats were offered by the firm;
g. The decision to produce the files in .tiff format;
h. Whether the parties discussed whether to “OCR” the files;
i. Any discussion regarding the orientation or positioning of the documents;
j. Any discussions regarding data being removed during the conversion to .tiff format;
k. Whether any discussion was made with regard to the searchability of the documents produced and the substance of such discussion;
See July 12, 2006 Order [Docket No. 161].
According to plaintiffs, the following exchange shows that Hartwig was not prepared to answer questions pertaining to Topic No. 9:
Q. –but were those job instructions given to you, did you fill them out?
A. I -- I believe Kyle did. I’ll be able to know once they arrive.
See Shannon Aff., Ex. A (Hartwig Dep.) at p. 34.
Q. Do you have an electronic folder that would be somewhat similar? “Gray Plant Mooty—Domino’s Document Production”?
A. We do have an electronic folder that may contain some of the job instructions, if they are provided to us electronically.
Q. For example, Ms. Olsen’s follow e-mail follow-up instructions?
A. That could be in there, and maybe not.
*45 Id. at p. 16.
Topic No. 9 does not require that the Rule 30(b)(6) deponent be prepared to answer information regarding who filled out job instructions or whether electronic folders containing the job instructions received by K&B Copy Group existed. Instead, Topic No. 9 was meant to elicit information regarding those instructions that Domino’s provided to K&B Copy Group with regards to the production of documents to plaintiffs. In this regard, Hartwig testified as follows regarding the instructions K&B Copy Group received from Domino’s:
Q. And what did Kyle tell you he was instructed to do?
A. We had -- the bulk of the project was the conversion of electronic files to TIF; and our instructions were to provide Gray Plant and Ms. Olson with TIF images extracted text, when available, and metadata, along with the appropriate image load file.
A. There’s one other thing.
A. There was a -- there was a discussion about producing certain documents color for color. And it was an instruction developed around that. I believe it was limited to Word docs, PDFs, and PowerPoint files.
Q. Well, tell me specifically, what do you know took place in terms of the instructions given by Leanne Olson, or anybody else from Gray Plant and Mooty, in this case, in this document production?
Q. What do you know occurred?
A. Well -- I know that we were instructed to take hard copy, we were instructed to take electronic files, and provide image files, text files when possible, searchable text files, and data files.
Q. And did you talk to Kyle about any instructions he received to orient the documents in a particular manner?
Q. And what did he tell you?
A. He told me that it was his instruction to use our standard or default setting for particularly processing spreadsheets. Spreadsheets are the native format that causes the most issues.
A. Correct. With respect to orientation.
Q. And the default format for orientation for excel is eight and a half by 11?
A. Eight and a half by 11, printed in landscape orientated portrait. That is our -- our standard.
Q. And he told you that that was the -- the default mechanism was to be used in this instance?
Q. And was that the instruction that he had been given by someone at Gray Plant?
Id. at pp. 12-13, 32-33, 46-47.
Based on this testimony, this Court finds that Hartwig was able to testify regarding the instructions K&B Copy Group received from Domino’s and that Hartwig properly answered the questions put to him by plaintiffs as to Topic No. 9.
*46 With regards to Topics No. 10, plaintiffs directed this Court to the following testimony:
Q. Did you receive all of the e-mail files at the same time, in one delivery of CD ROM, or whatever was the source of the media?
A. I don’t’ know the answer to that.
See Shannon Aff., Ex. A (Hartwig Dep.) at p. 36.
Topic No. 10 dealt with information regarding the process of providing e-mails to K&B Copy Group, including whether they were provided, how the e-mails were transmitted, in what format the e-mails were transmitted, and whether there was a mix of original electronic mails and printed discovery provided at the same time. However, Topic No. 10 did not require Hartwig to testify as to the timeframe of Domino’s production of e-mails to K&B Copy Group for processing.
Finally, as it related to the alleged deficiency of Hartwig’s testimony regarding Topic No. 11, plaintiffs focused on the following testimony:
Q. Let’s talk about the hard copy. What items were provided in hard copy format?
A. I have no recollection of what those -- of what those were.
Q. Would Kyle be a better person to have asked that question of?
A. He -- may -- he may know the answer to that; but may I explain why? Typically, if we are given a box or a folder of paper in any quantity, we are not necessarily looking at it for the content and what the meaning of that paper is. One box may look to same as us as another box. And our job is simply to make an image of it and provide it back. So I personally picked up and delivered some of the hard copy, handled it myself and brought it back to the shop. So I saw it, and I touched it but I have no recollection of what the content of that paper was.
Id. at pp. 17-18 (emphasis added).
Based on this exchange, Hartwig believed that he was being asked to provide information on the content of the documents provided to him by Domino’s. There was no further attempt to clarify the question by plaintiffs’ counsel. The content of the documents provided by Domino’s was not a topic covered by Topic No. 11 of this Court’s Order. In addition, it would be absurd to require Hartwig to be familiar with the contents of thousands of documents when he was presented to testify regarding the process of production and not its contents.
In summary, plaintiffs have not provided this Court with an adequate basis to find that Hartwig was not an adequate Rule 30(b)(6) deponent on the issues set forth in Topics 9, 10a-c, 11a-b, f-h, and 12a-k of this Court’s July 12, 2006 Order. As such, any request by plaintiffs for sanctions or further relief in this regard is denied.
a. Discovery Conducted Outside of IS Division
*47 Plaintiffs claimed that Maguire had no knowledge regarding whether any search for documents was conducted in nine out of ten of Domino’s divisions, had no knowledge of whether employees from other divisions outside of IS were directed by Graziani to search for discovery, and failed to speak with the heads of these departments or employees to determine whether a proper search had been conducted. See Pls.’ Supp. Mem. at pp. 9-10 (citing Shannon Aff., Ex. C (Maguire Dep.) at pp. 32-33, 88, 99). Plaintiffs point to pages 32-33 of Maguire’s deposition as proof of Maguire’s inability to testify as to how employees in other divisions were directed by Graziani to search for discovery. However, Maguire testified that other division leaders were notified by the legal division to gather and preserve all PULSE-related documents for production. See Shannon Aff., Ex. C, Maguire Dep. at pp. 32-36.
Plaintiffs also referenced page 88 of Maguire’s deposition as evidence of his lack of first-hand knowledge on how employees in other divisions were directed to search for discovery or the extent to which employees in other divisions were directed by Graziani to search for discovery. See Pls.’ Supp. Mem. at p. 9. The relevant exchange between plaintiffs’ counsel and Maguire was as follows:
Q. Were you present with Mr. Graziani when he met with any of the other division heads to tell them that they needed to gather documents for this case?
Q. Did Mr. Graziani -- did any of those --, well, let me strike that. Do you know what instructions those other individuals were given in terms of gathering documents?
A. Based on my conversations with Mr. Graziani, the direction was the same across the entire organization, which was to gather and preserve all Pulse related documentation with no restrictions being put on any particular content, and to search all areas, office furniture. There was no restrictions on gathering the information.
See Shannon Aff., Ex. C (Maguire Dep.) at pp. 88-89.
As stated previously, Rule 30(b)(6) designees are not required to have first-hand knowledge of the issues in question, but are required to be adequately prepared to answer questions on the designated topics for the corporation. As such, this Court finds no improper conduct by Domino’s to the extent that Maguire lacked first-hand knowledge regarding Graziani’s meetings with the other division heads about the documents to be gathered for this case. Further, based on his testimony as Domino’s Rule 30(b)(6) deponent, this Court finds that Maguire adequately testified regarding Graziani’s instructions to members of other departments to search for documents.
As to plaintiffs’ contention that Maguire was unable to testify regarding how or when any discovery was conducted in other departments, plaintiffs referenced this testimony from Maguire:
Q. Did you speak with the other department heads before your deposition today to determine whether they had conducted a full search in their departments?
A. I did not do that, but I did do it with the IS team members.
Q. So you would have no information, for instance, that you’d be able to give me in the build a brand department as to how many offices were searched, would you?
A. The conversation I had with Mr. Graziani was that he had talked to the other team members outside the IS department about the documents that they had made available or gathered.
See Shannon Aff., Ex. C, (Maguire Dep.) at pp. 99-100.
While Maguire testified that he did not speak with the heads of other departments before his deposition as to what search they conducted, he did testify that Graziani had talked to the other team members outside the IS department about the documents that they were to gather. However, for some reason, plaintiffs did not to follow up his answer by asking what Graziani told him regarding the searches performed by other divisions. Thus, this Court cannot find that Maguire was unprepared to answer questions regarding the search conducted by departments outside of IS.