*1 The defendant Counties have moved the court to compel plaintiff Clark Floyd Landfill, LLC to answer interrogatories and to produce documents in response to certain document requests. The court held a hearing on that motion (and a separate motion concerning discovery directed to two affiliates of the plaintiff) on December 21, 2018.

As more fully explained below, the court GRANTS IN PART AND DENIES IN PART the Counties’ motion to compel (Dkt. 119).

The court first describes the nature of the claims and defenses in this litigation, then sets forth the guiding discovery principles, and finally rules on each of the categories of interrogatories and document requests at issue.

The following description of the claims and other matters is taken from the parties’ pleadings and other filings. These are not findings by the court but provide context to the discovery disputes.

This case concerns a county landfill that has been in operation since about 1971 and is owned by the defendant counties of Clark and Floyd (the “Counties”). The Counties contracted with plaintiff Clark Floyd Landfill, LLC (“Landfill LLC”) for it to maintain and operate the landfill. Their original contract, effective January 1, 2004, was supplemented by agreements entered in December 2006, July 2011, and January 2013. Various disputes between the contracting parties led to this litigation filed by Landfill LLC in January 2018, after the parties were not able to resolve their disputes in mediation.

Landfill LLC seeks a declaratory judgment about the parties’ rights and obligations under their contracts and alleges that the Counties breached those contracts. It contends that (a) it is not obligated to pay for all capital improvements at the landfill; (b) a Landfill Improvement Fund (“LIF”) referenced by the contracts applies only to capital improvements for horizontal expansion of the landfill and Landfill LLC has satisfied its obligations for contributing to the LIF; (c) all capital improvements for vertically expanding the landfill's capacity must be funded through certain government bonds and Landfill LLC has no other responsibility for vertical expansion costs; (d) the Counties have failed to pay it for certain construction work at the landfill, for property acquisition costs, and for other services; and (e) the Counties have failed to perform other duties under the contracts that have caused or will cause losses to Landfill LLC.

The Counties filed a counterclaim sounding in contract and tort. The court has now granted Landfill LLC's motion to dismiss the Counties’ tort theories, but its order allows the Counties to pursue the factual predicates of their tort theories as part of their breach of contract claim. The Counties allege that Landfill LLC has breached the contracts by, among other things, failing to (a) pay for certain capital improvements, (b) make required contributions to the LIF, and (c) undertake and pay for certain environmental compliance and reporting tasks. Their contract theory also includes allegations that Landfill LLC cheated the Counties out of revenue owed under the contracts through self-dealing conducted with and through Landfill LLC's affiliated entities, including Eco-Tech, LLC and its majority member, Eco-Tech Environmental Services, LLC. The Counties allege that money has been and is being improperly funneled away from the landfill's operations and into the coffers of affiliated entities—in essence, that Landfill LLC uses the landfill operations to subsidize affiliated businesses. The Counties allege the scheme is accomplished primarily through Landfill LLC's charging of below-market rates to its affiliates for waste disposal at the landfill and perhaps through other affiliate-to-affiliate financial transactions. Landfill LLC and its largest customer, Eco-Tech LLC, are essentially controlled or managed by one person—Robert Lee. Mr. Robert Lee also manages these entities other affiliate companies.

*2 The stakes in this case are enormous. The money at stake is potentially in excess of $10 million. In addition, the viability of continued operations of the landfill is affected by resolution of the claims.[1] At issue is whether the landfill is unable to comply with environmental regulations and must be closed, as well as the financial, environmental, and societal repercussions of closure for the Counties, their residents, and surrounding communities.

Rule 26 permits the discovery of nonprivileged matter “that is relevant” to a party's claim or defense and “proportional” to the needs of a case, considering the importance of the issues at stake, the importance of the discovery in resolving those issues, the amount in controversy, and the weighing of burdens and benefits. See Rule 26(b)(1).

Landfill LLC's arguments in opposition to the Counties’ motion to compel are not based on burdensomeness or expense in a traditional sense. It has not claimed that gathering responsive documents is especially difficult or that there are unusual electronic retrieval problems. Instead, it argues primarily that the Counties are seeking types of information that they really do not need to prosecute their claims or to defend against Landfill LLC's claims. In making these “insufficient relevance” arguments, Landfill LLC gives an unduly narrow reading of the scope of this case, and almost wholly ignores the Counties’ counterclaims.

Before addressing the individual interrogatories and document requests at issue, the court first addresses many of Landfill LLC's general objections to providing information or producing documents.

I. General Objections

In the main, the general objections are overruled.

A. “Excessive” Interrogatories

Landfill LLC objected to all interrogatories beginning with Interrogatory 9 on the ground that Nos. 1-8 are really 25 separate interrogatories, the limit under Rule 33(a)(1). That objection is overruled, for three reasons. First, only an interrogatory with “discrete” subparts constitutes more than one interrogatory, and the Counties’ interrogatories do not unreasonably combine discrete subparts. Second, there are four defendants, and each arguably was entitled to ask 25 interrogatories even though their defense and prosecution of claims appear common. Third, if it had been necessary for the court to allow the Counties to ask more interrogatories than that presumptively allowed under Rule 33(a)(1), the court would have granted that permission given the breadth of the claims and the monetary stakes.

B. Pendency of Motion to Dismiss

The pendency of Landfill LLC's motion to dismiss the Counties’ tort claims was never an appropriate objection because Landfill LLC never moved for a protective order to stay or limit discovery because of its pending motion. Moreover, the motion to dismiss now has been decided, and though the court granted Landfill LLC's motion to dismiss the Counties’ tort theories, the court's order allows the Counties to pursue the factual predicates of their tort theories as part of their breach of contract claim. The objection that Landfill LLC's motion to dismiss limits the field of appropriate discovery is overruled.

C. Pre-January 1, 2013 Objection

*3 Landfill LLC's general objection to providing information or producing documents that pre-date January 1, 2013, is overruled. That objection is based on Landfill LLC's merits-based litigation position that the Counties released the plaintiff from claims before that date, and thus any earlier-dated information is not relevant. The Counties strongly disagree with the plaintiff's legal theory, and the record before the court does not allow it to resolve this legal issue in favor of the plaintiff. Even if Landfill LLC were correct (which the court does not find), that would not make information and materials pre-dating January 1, 2013, irrelevant to a later time period. Events from the past often shed light on what came later.

D. Contention Interrogatories

Contention interrogatories are not inappropriate. They can be premature at the outset of a case where a plaintiff (or defendant) reasonably needs discovery from the other side or from non-parties or needs more time for internal investigation before it can meaningfully flesh out its claims (or defenses). But that scenario is not this case, at least as to plaintiff Landfill LLC, which filed a detailed complaint for declaratory judgment. There is no indication that Landfill LLC needed more time for investigation or lacked access to material sources of information before it could meaningfully explain the bases for assertions in its complaint and identify the witnesses and documentation supportive of those assertions. Moreover, there has now been a substantial period for discovery. Landfill LLC's objection that it should not be required to answer contention interrogatories is overruled.

E. Information and Documents Others Might Possess

The court overrules Landfill LLC's objection to providing information and documents that it believes some other person or entity, including the Counties, should possess. Landfill LLC cannot refuse to provide information and documents in its custody, possession, or control solely because it believes that some other person or entity also has the same information and documents—at least not without a strong showing that it is unduly burdensome for Landfill LLC to search for and provide the information and documents. Moreover, Landfill LLC cannot reasonably know whether certain information and documents it has are in the possession of other persons or entities and accessible by the Counties. In addition, the Counties have made a persuasive showing that even for information the Counties may at one time have possessed, because of changes in government actors over time, they cannot be sure that information and documents to which they do have access are complete. The Counties have not asked Landfill LLC to gather information and documents over which it does not have reasonable access to and control, and the court overrules its objections to producing information/documents “that would be in the possession of a third party” and information/documents it believes the Counties should possess or control.

F. Remaining General Objections

The remaining general objections fit two broad categories. First, Landfill LLC objects to producing information or documents subject to attorney-client privilege or work product protection. Privilege objections, if made in good faith, are appropriate. Otherwise discoverable documents should be included on a privilege log, and it is the court's understanding that Landfill LLC has now provided an appropriate privilege log.[2]

Second, Landfill LLC objects in general objections 2, 4, and 5 to producing information or documents outside the scope of Rule 26(b)(1), that is, discovery that is not “relevant” or “proportional” to the needs of the case. This sort of objection cannot be resolved on a general basis. It must be raised in the context of a specific discovery request.

II. Interrogatories

*4 Every single interrogatory is at issue on the motion to compel. Landfill LLC did not meaningfully answer even one of them. That approach to discovery is unacceptable, particularly for a plaintiff represented by sophisticated counsel in a case where millions of dollars and the continued viability of a county landfill are at stake. The court will address each interrogatory or groups of them, where grouping is appropriate.

Interrogatories 1-2, 7-8, and 11-15. These interrogatories seek information about specific allegations that Landfill LLC made in its complaint, including damages. The information is relevant and proportional to the needs to the case, and it is not objectionable that the interrogatories seek Landfill LLC's contentions, including opinions or the application of law to fact. See Rule 33(a)(2). Landfill LLC must provide complete answers to these interrogatories, including the identification of potential witnesses and categories of documents. The Counties’ motion to compel as to these interrogatories is GRANTED.

Interrogatory 3. This interrogatory seeks the identification of every person involved in negotiating the Franchise Agreement or any amendment to it, that person's role, and “all documents that evidence, refer to or relate to such person's involvement.” In response, Landfill LLC identified Robert Lee as having “primary responsibility” for negotiating the Franchise Agreement (and its amendments) on behalf of Landfill LLC and identified an employee of JTL (an engineering firm used by either or both of Landfill LLC and the Counties) but provided no other information.

The court agrees with the Counties that Landfill LLC's answer is deficient. Landfill LLC must identify those persons (i) other than Robert Lee who participated in negotiations and provide an explanation of that person's role and (ii) conduct an appropriate electronic search[3] for documents related to negotiations and produce the responsive documents. Those tasks will satisfy Landfill LLC's obligations in answering Interrogatory 3.

Interrogatories 4 and 5. These interrogatories seek the identification of every communication with any representative of the Defendants or persons or entities listed in Landfill LLC's initial disclosures relating to the Franchise Agreement or any amendment thereto, the Landfill Improvement Fund, or capital improvements at the landfill[4] and the identification of all documents that refer, relate to, or evidence such communication. While the court overrules Landfill LLC's objection to answering these interrogatories on the ground that the Counties already should have this information, the court will not require Landfill LLC to list every communication in responding to them. It must instead conduct an appropriate electronic search[5] for the requested documents and produce the responsive documents. In addition, if Landfill LLC is relying on any oral communications not reflected in produced documents and affecting its declaratory judgment claims, those oral communications must be described by (i) approximate date, (ii) participants, and (iii) a general description of the communication. The completion of these tasks (the electronic search and the information about oral communications) satisfies Landfill LLC's obligations with respect to Interrogatories 4 and 5.

*5 Interrogatory 6. This interrogatory seeks a list of Landfill LLC affiliates that are involved or interact with the landfill or its customers or vendors, a description of those affiliates’ ownership and management, and the identity of all agreements, financial transactions, and other arrangements between and among Landfill LLC and each affiliate. It is the court's understanding that Landfill LLC has identified the affiliates that have any interaction or involvement with the landfill and has identified the affiliates’ ownership and management. Landfill LLC has objected to providing information disclosing all agreements, financial transactions, and other arrangements between and among Landfill LLC and each affiliate, but this information is central to the Counties’ “self-dealing” breach of contract claim. The court therefore GRANTS the Counties’ motion to compel as to Interrogatory 6.

Interrogatory 9. This interrogatory asks Landfill LLC to identify the steps it has taken to mitigate damages it claims to have incurred because of the Counties’ alleged contract breaches. It also seeks an identification of witnesses and documents as to the matters constituting mitigation. Landfill LLC's answer provides insufficient information to identify even the bases of a mitigation theory. The court finds that proportional discovery regarding mitigation requires Landfill LLC to identify the events or matters that constitute mitigation, the general time frame those events occurred, the principal persons involved in those events, and the general categories of documents reflecting mitigation efforts or events. The completion of these tasks satisfies Landfill LLC's obligations with respect to Interrogatory 9. The court does not require Landfill LLC to separately list every document.

Interrogatory 10. This interrogatory seeks information about the acquisition of the “Nunn Property”—the identity of all persons involved in or with knowledge about the acquisition, a description of that person's role, and the identity of documents related to the person's involvement. Because Landfill LLC's complaint alleges that the Counties owe it about $850,000 for expenses that it allegedly incurred to purchase that property for landfill use, the Counties are entitled to information that will reasonably permit them to defend against the claim. Landfill LLC must therefore (i) identify the persons who had any involvement with the acquisition and the nature of that involvement, (ii) produce any closing documents within its possession, custody, or control reflecting the acquisition, and (iii) conduct an appropriate search for paper and electronic documents related to that acquisition and produce the responsive documents. The completion of these tasks will satisfy Landfill LLC's obligations in answering Interrogatory 10.

Interrogatory 16. This interrogatory seeks information about goods, materials, or services (hereafter, “work”) for which Landfill LLC seeks compensation or reimbursement from the Counties—the identity of all persons or entities involved in providing the work, a description of that person's or entity's role, and the identity of documents related to that person's involvement. The Counties are entitled to information that will reasonably permit them to defend against Landfill LLC's claims that the Counties owe Landfill LLC for this work. Landfill LLC must therefore (i) identify the categories of work for which it is seeking compensation or reimbursement and (ii) identify the persons or entities involved in each category of work. Because the Counties separately propounded numerous document requests with respect to all work for which Landfill LLC is seeking compensation or reimbursement (see, e.g., RFPs 24-27, 29, 36-39, and 60), the court will not require Landfill LLC to separately list every document evidencing a person or entity's involvement in the work. Landfill LLC's identification of the work and the persons/entities involved with each category of work will satisfy Landfill LLC's obligations in answering Interrogatory 16.

*6 Interrogatory 17. This interrogatory seeks information about all financial transactions of any kind involving Landfill LLC and its affiliates in any way related to the operation or utilization of the landfill (whether waste hauling, waste management, waste disposal, administrative or management fees or charges, transportation, maintenance, or other goods or services). The interrogatory targets the Counties’ “self-dealing” breach of contract theory, and they are entitled to information that will permit them to understand the nature of financial transactions between Landfill LLC and its affiliates and the amounts of money or other consideration paid to or received by Landfill LLC vis-à-vis its affiliates in the financial transactions. The court requires Landfill LLC to (1) describe for each affiliate the nature of all goods and services it provides (or has provided) or receives (or has received) from each affiliate and the time frame over which the exchange of those goods and services occurred, (2) identify any written contracts or agreements that govern (or have governed) the provision and receipt of those goods or services, and (3) for any types of transactions not governed by a written contract or agreement, identify the person(s) involved in setting the term(s) of such transactions. With respect to documents, the court requires Landfill LLC to list the type(s) of documents that evidence (i) the exchange of such goods and services and the (ii) price or consideration paid in connection with the exchange.

The completion of these tasks with satisfy at this point Landfill LLC's obligations in responding to Interrogatory 17.

III. Document Requests

The Counties’ motion to compel raises issues with respect to all requests for production except RFPs 6, 8, 9, 11, 13, 17-23, 28, 30-42, 44, 46-48, 59, and 60-63.

Requests for Production 1-4. These requests seek all documents identifying the persons or entities disposing of any materials at the landfill, the types and amounts of materials disposed of, and all payments to Landfill LLC for transportation or disposal of waste or for any other goods and services related to the landfill. The Counties have limited their requests for “all” such documents to those sufficient to show what each landfill customer was charged, what each hauling customer was charged, and the bases for such charges.

As limited, the requested documents go to the heart of the Counties’ breach of contract claims, which allege that Landfill LLC understated or otherwise manipulated revenues, having the effect of reducing the amounts payable to the Counties under the parties’ contract. Because of the importance of the information to issues central to this case and because Landfill LLC has not demonstrated that the information is too burdensome to provide, the court GRANTS the motion to compel as to RFPs 1-4 and requires Landfill LLC to produce documents sufficient to show what each customer of the landfill was charged, what each hauling customer was charged, and the bases upon which those charges were determined.

Requests for Production 5 and 7. RFP 5 seeks contracts or agreements between any customer of the landfill and Landfill LLC or any Affiliated Entity. RFP 7 seeks documents relating or referring to actual or proposed Gate Rate charges for the landfill, including actual or proposed discounts. These requests, like RFPs 1-4, are designed to allow the Counties to determine the bases upon which charges to landfill customers were determined, and the court therefore GRANTS the motion to compel as to RFPs 5 and 7.

Request for Production 10. This request seeks all documents related to recycling operations conducted at the landfill, including documents reflecting revenues from recycling operations. The Counties contend that this request relates to their counterclaim because they wish to determine whether they have been paid their proper share of revenue from landfill operations. Their motion to compel does not assert that recycling operations are a source of under-reported revenues, and the court does not know whether transactions between Landfill LLC and its affiliates encompass recycling operations. If they do, then information regarding recycling is encompassed by other discovery requests. As a standalone request, however, the court DENIES the Counties’ motion to compel as to RFP 10.

Request for Production 12. This request seeks all documents related to revenue or proceeds received by Landfill LLC or any affiliated entity from any operations or activities conducted at the landfill. The Counties assert that this request is relevant to whether they have been properly paid their share of revenue from landfill operations, but the production of all documents related to every dollar from all operations or activities at the landfill is not proportional discovery in this case. The Counties’ principal theory for challenging a shortfall in their share of revenue is based on the alleged improper diversion of revenue through affiliate transactions with Landfill LLC and/or with customers of the landfill. Documents related to those transactions are encompassed by other requests for which the court has ordered production. Treating RFP 12 as a standalone request, the court DENIES the Counties’ motion to compel.

*7 Requests for Production 24-27, 29, 36, 37, 38, 39, and 60. These requests seek documents regarding work or projects for which Landfill LLC seeks compensation or reimbursement from the Counties or otherwise alleges the Counties’ responsibility to fund, including documents evidencing costs and expenses (actual and estimated), design, and operation. The work or projects include the Nunn Property, gas collection and flare systems, leachate collection, and environmental reporting obligations. Because these requests are material to the Counties’ defense of Landfill LLC's own claims and Landfill LLC has not demonstrated that it is too burdensome to produce these documents, the court GRANTS the Counties’ motion to compel as to RFPs 24-27, 29, 36-39, and 60.

Requests for Production 32 and 33. Requests 32 and 33 seek all communications referring or relating to any claims in this lawsuit, including any such communications made in the context of a state court case, Ooley, brought by neighboring landowners against Landfill LLC because of conditions at the Landfill—for which Landfill LLC has blamed the Counties or an engineering firm as non-parties at fault in Ooley. It is the court's understanding that the parties agreed to search terms and custodians to permit Landfill LLC to identify communications sufficiently related to the claims in this lawsuit, and that Landfill LLC produced non-privileged documents uncovered by the searches. That protocol sufficiently responds to these requests, and Landfill LLC is not required to do more to answer the “catch-all” requests embodied by RFPs 32 and 33.

Requests for Production 14, 30, and 60. This request seeks communications with engineers relating or referring to the landfill, documents that relate to actual or potential contracts with engineering firms relating to the landfill, and documents that relate to work performed by engineering firm Cornerstone Engineering. For RFP 14, the Counties offered to limit the request to those communications with engineers that include certain terms designed to uncover documents related to the costs, expenses, and work for which Landfill LLC seeks compensation or reimbursement from the Counties. As so limited, the court finds that the request is sufficiently proportional to the needs of this case and therefore GRANTS the motion to compel as to RFP 14. The court also determines that RFPs 30 and 63 must be limited to the areas of work for which Landfill LLC seeks compensation or reimbursement from the Counties and, so limited, GRANTS the motion to compel as to RFPs 30 and 60.

Request for Production 34. This request seeks 10 years of financial documents for Landfill LLC and each affiliated entity involved in any way with the landfill, including as a customer or transporter of waste to or from the landfill. The requested financial documents are tax returns (federal and state), audited and unaudited financial statements, income statements, and balance sheets. The Counties are seeking 10 years’ worth of information because the statute of limitation for contract breach is 10 years. Landfill LLC has asserted numerous objections to RFP 34, including that (i) financial information for its affiliates is not within its control and is not relevant to the claims and defenses in this case, (ii) Landfill LLC and the affiliated entities, as pass-through limited liability companies, do not file tax returns, and (iii) Landfill LLC is not obligated by the parties’ Franchise Agreement to provide the requested financial information.

Landfill LLC's own claims for damages and the Counties’ breach of contract counterclaims make relevant aspects of Landfill LLC's and the affiliates’ financial conditions that could be expected to be reflected or tested by information usually contained in a company's financial statements, income statements, and balance sheets. In addition, the reliability or consistency of information contained on periodic financial statements, income statements, and balance sheets may be gauged by reviewing annual tax returns. And while limited liability companies may not file returns, they do provide company-level information on schedules provided to their members for their use in filing returns. The court finds that RFP 34 seeks relevant and proportional information that should be readily available and therefore GRANTS the Counties’ motion to compel as to RFP 34, except that (1) for tax returns, only the annual federal tax company-level information schedules must be produced and (2) only semi-annual financial statements, income statements, and balance sheets must be produced.

*8 Requests for Production 35 and 63. Request 35 seeks all documents related to Bond issues described in Landfill LLC's complaint, and Request 63 seeks all documents related to work performed by the financial advisor for the issuance of the Bonds. The Bonds are relevant to Landfill LLC's theory that their issuance affected—perhaps eliminated—Landfill LLC's obligations under the Franchise Agreement (and amendments) to contribute to the costs of capital projects via the Landfill Improvement Fund. The court determines that because the Bonds are principally (and perhaps only) relevant to their effect, if any, on the parties’ respective obligations vis-à-vis the Landfill Improvement Fund, proportional discovery does not require the search for and production of every document related to the Bonds, including all communications about the Bonds, and all work performed by the financial advisor to the Bonds’ issuance.

It is the court's understanding that in response to RFP 33 (which sought all documents relating to any communications with third parties related to any allegations in this case), the parties agreed to search terms and custodians to permit Landfill LLC to identify communications sufficiently related to the claims in this lawsuit, and that Landfill LLC produced non-privileged documents uncovered by the searches. The court determines that that protocol sufficiently responds to the requests for documents related to the Bonds because any documents relevant to the Bonds’ interpretation or interaction vis-à-vis the Landfill Improvement Fund or Franchise Agreement generally should be contained in the Bonds themselves (which the Counties apparently have) or communications produced in response to RFP 33. As standalone requests, the court DENIES the Counties’ motion to compel as to RFPs 35 and 63.

Requests for Production 15 and 16. These requests seek documents related to the Landfill Improvement Fund payments (whether actual, estimated, or otherwise projected) and Host Fee payments (whether actual, estimated, or otherwise projected) under the parties’ contract, including communications and internal documents relating to actual, estimated, or otherwise projected Landfill Improvement Fund and Host Fee payments. These payments are at the heart of this litigation and according to the Counties, it is not clear from Landfill LLC's production whether all responsive documents have been produced. Because RFPs 15 and 16 seek information central to the claims in this case and because Landfill LLC has not demonstrated that it is too burdensome to produce the non-privileged documents responsive to these requests, the court GRANTS the Counties’ motion to compel as to RFPs 15 and 16.

Requests for Production 43. Request 43 seeks all documents relating or referring to the negotiation of the parties’ original Franchise Agreement and all supplements and amendments. Because the interpretation and construction of the Franchise Agreement and its amendments are at issue and because Landfill LLC has not demonstrated that it is too burdensome to produce non-privileged responsive documents, the court GRANTS the Counties’ motion to compel as to RFP 43. Landfill LLC must conduct an electronic search, using terms and custodians reasonably agreed by the parties, and must identify any paper files reasonably likely to contain documents connected with the parties’ negotiations of their contracts.[6]

Requests for Production 50, 51, 52, and 53. Request 50 seeks communications with county officials related to the parties’ agreements or the landfill. Requests 52 and 53 seek documents relating to any meetings of the defendant county councils or boards of commissioners that concern the landfill or the parties’ contracts. Request 51 is similar and asks for documents relating to any action taken or proposed to be taken by the county boards of commissioners that concern the landfill or the parties’ contracts. The Counties have made a persuasive showing that because of the passage of time and changes to the persons serving on commissions or county councils or as other county officials, they are unable to identify the persons on their side of the contracts who were involved in negotiations, and the documents within their current possession, custody, or control may not provide them a reasonably complete view of contract negotiations or actions or proposed actions taken (or proposed to be taken) by the Counties over the course of the parties’ contractual relationship. The Counties thus reasonably asked their contracting partner, which has been controlled by the same person(s) over this same period, to search and produce its documents regarding these matters. The court GRANTS the Counties’ motion to compel as to RFPs 50, 51, 52, and 53, requires Landfill LLC to identify the persons with whom it negotiated the agreement(s) and communicated regarding the landfill and its operations, and to conduct appropriate searches of paper and electronic files in response to these requests. The court notes that the Counties agreed to limit the terms for electronic searches to “Landfill,” “Franchise,” “Agreement,” or “Bonds.”

*9 Request for Production 49. This request seeks documents related to a pending IDEM enforcement action. There exists an “IDEM virtual file cabinet” that apparently is as easily accessible to the Counties as it is to Landfill LLC. The Counties have not demonstrated that those documents provide an incomplete picture about IDEM's enforcement action as pertains to the claims in this case. The court DENIES the Counties’ motion to compel as to RFP 49.

Requests for Production 54-59. These requests concern the leachate management and disposal problem at the landfill. Landfill LLC's complaint seeks compensation from the Counties for work performed at the landfill related to increased leachate collection, and Landfill LLC apparently has entered into negotiations or contracts with other entities related to leachate collection, storage, and/or disposal. Proportional discovery related to leachate collection, storage, and/or disposal is that which permits the Counties to understand the scope of the leachate work that has been done or proposed to be done, its costs or projected costs, and the identity of the contractor(s) which have been consulted or hired with respect to performing the work. The Counties are not otherwise entitled to every document about leachate collection, storage, and/or disposal at the landfill over the last 10 years. The parties are directed to agree on search terms (and custodians) that reasonably allow Landfill LLC to identify documents within the above scope and to produce them. Those efforts, and production of non-privileged documents identified through such a search, satisfy Landfill LLC's obligations as to RFPs 54-59.

Request for Production 64. This request seeks documents underlying Landfill LLC's claims for damages against the Counties. Its production of a settlement demand is not a sufficient response. The Counties are entitled to understand the nature of all damages Landfill LLC claims, the calculation of those damages, and the documents that support those calculations. The Counties’ motion to compel as to RFP 64 is therefore GRANTED.

Requests for Production 65, 66, and 67. These requests seek documents that reflect (i) agreements between Landfill LLC and its Affiliated Entities, (ii) financial transactions or transfers between Landfill LLC and its Affiliated Entities, and (iii) any other distributions or compensations between Landfill LLC and its Affiliated Entities. It is the court's understanding that Landfill LLC has produced its accounting ledgers that show the amounts of financial transfers/transactions/distributions/compensation between Landfill LLC and its Affiliated Entities. The ledgers do not make clear for every such event its purpose or whether the matter is rooted in underlying documents (including formal contracts), some oral instruction from Landfill LLC principals or others, some long-standing understanding between or among person(s) controlling Landfill LLC and its Affiliates, or if it has some other basis. Based on their counterclaims, the Counties are entitled to a reasonably complete picture of the financial arrangements between Landfill LLC and its Affiliates and the way in which they may have affected landfill revenue. The court therefore GRANTS the Counties’ motion to compel as to RFPs 65-67.

Request for Production 69. This request seeks production of all documents identified by Landfill LLC in its answers to the Counties’ interrogatories. There does not appear to be any document identifiable in response to any interrogatory that has not also been requested by the Counties’ RFPs. Because of the breadth of documents that Landfill LLC has produced and is required to produce under this order, the court will not require Landfill LLC to indicate which documents are tied to interrogatories without a strong showing by the Counties that such an identification is reasonably necessary for their defense of Landfill LLC's claims or prosecution of their own claims. At this time, the Counties’ motion to compel as to RFP 69 is DENIED.

*10 The Counties’ motion to compel (Dkt. 119) is GRANTED IN PART AND DENIED IN PART as provided in this order. Landfill LLC is ORDERED to supplement its responses to discovery in accordance with the court's rulings within 21 days. With respect to documents, the court requires (1) Landfill LLC to confirm that it has made available for inspection and copying any “paper” files responsive to the requests or produce the paper files that were not made available for inspection and (2) the parties to confer and agree on appropriate search terms, custodians, and electronic sources for searching and producing electronically-stored information that may not have been previously searched because of Landfill LLC's continued objections to production.[7] The court expects the parties to act cooperatively and professionally.

At this time, the court exercises its discretion to decline to award fees in connection with the motion to compel, even though Landfill LLC's discovery behavior lacked diligence and was inappropriately obstreperous. The court expects that behavior to change with its compliance with this order and in providing supplemental discovery responses and production. Absent forthright compliance, the court will be willing to revisit this issue.

So ORDERED.