*1 Defendants move to compel additional document production, information regarding document searches and spoliation, and additional in camera review. Plaintiffs object that the requests are untimely and not proportionate to the needs of the case. For the following reasons, Defendants' motion is granted in part.

Defendants' motion requests relief in eleven categories: (1) production of all documents related to the use, non-use, and changing use of the RBK Mark, the RBK maintenance program of 2011-12, and the 2012 Renewal of the '802 RBK Registration; (2) production of all documents related to the '802 RBK Registration renewal in 2016, including the collection of specimens, verification of RBK use in commerce, and filing of the renewal; (3) production of all documents related to use, non-use, and changing use of the RBK Mark from the European-based adidas and Reebok Board Members during the years 2007-2012, as well as any repositories containing Board documents or minutes; (4) production of adidas' agreements executed after January 31, 2017 with third parties relating to the resolution of disputes involving its Three Stripe or Badge of Sport Marks and any similar agreements entered into by Reebok involving its asserted Marks; (5) production of all documents related to Plaintiffs' knowledge of and investigations into TRB, the RBX Mark, and the RBX brand; (6) disclosure of all facts related to Plaintiffs' knowledge of TRB, the RBX Mark, and the RBX brand; (7) issuance of a privilege waiver sanction for all of the documents that Plaintiffs failed to produce on or before January 31, 2017; (8) for any custodians whose documents cannot be searched because they were destroyed, disclosure of the dates and details of such destruction to comply with the Court's Order, ECF No. 290, and expanding the scope of Plaintiffs' disclosure obligation under that Order to begin on the first date that Plaintiffs claim work product protection over documents related to TRB or RBX; (9) identification of all details of adidas BV witnesses Maya Rodal and Sara Talbot's self-directed searches, including who specifically conducted the searches, how the searches were conducted, the specific repositories searched, the dates of the searches, the search terms and parameters used, and whether the witnesses employed any discretion in determining responsiveness of a document; (10) identification of the dates litigation holds were issued for all witnesses whose documents were or will be searched by Plaintiffs; and (11) disclosure of the search terms that Plaintiffs used in order to produce responsive documents. The Court first addresses Defendants' timeliness objection and then addresses each motion and Defendants' objection based on proportionality.

1. Timeliness

Plaintiffs first argue that Defendants' motion is untimely. Plaintiffs assert that Defendants have not been diligent in pursuing discovery. Plaintiffs argue that instead of identifying deficiencies in Plaintiffs' production, requesting that Plaintiffs cure deficiencies, filing motions to compel, or otherwise diligently pursuing discovery, Defendants instead put “all their eggs” in the strategic basket of their motion for sanctions hoping to get this case dismissed. Plaintiffs contend that now that the Court has denied that motion, Defendants should not be allowed to obtain additional seek discovery at this late date. Plaintiffs also note that the Court previously denied Plaintiffs' motion to compel as untimely and that Defendants' motion suffers from the same deficiency.

*2 The situation is not the same between Defendants' motion and Plaintiffs' earlier motion to compel. Plaintiffs had expressly represented that they had only one discrete discovery issue and then filed unrelated motions to compel. Defendants have consistently represented that much of Plaintiffs discovery is inadequate. Moreover, Defendants contend that several of its current requests arose out of the additional discovery that the Court permitted in late 2018. Plaintiffs' timeliness objection as to the entire motion is overruled, although as discussed below, some aspects of Plaintiffs' motion are untimely.

2. Motion 1—2012 RBK Renewal Documents

Defendants request production of documents related to the use, non-use, and changing use of the RBK Mark, the RBK maintenance program in 2011-12, and the 2012 RBK renewal. Defendants argue that these documents are relevant because Plaintiffs only produced the documents for which the Court ordered privileged was waived, but refused to search additional custodians for relevant documents, while at the same time Plaintiffs argue that the crime-fraud exception requires the intent of senior executives for whom Defendants refuse to search documents. This justification, however, only applies to the 2012 maintenance program and RBK renewal, and does not apply to all use, non-use, and changing use of the RBK Mark. The Court agrees that its Opinion and Order finding that the crime-fraud exception applies provided new information based on which Defendants can now seek to compel production of documents relating to the 2012 stickering program and trademark renewal. The production of such documents is also not unduly burdensome or disproportionate. Plaintiffs' request for all documents related to the use, non-use, or changing use of the RBK Mark, however, is burdensome and is a topic for which Plaintiffs could have earlier moved to compel. This motion, therefore, is granted in part. The Court orders Plaintiffs to produce all documents related to the RBK maintenance program (including the stickering program) of 2011-12 and the 2012 Renewal of the '802 RBK Registration.

3. Motion 2—2016 RBK Renewal Documents

Defendants request production of documents relating to the 2016 '802 RBK registration renewal. In its Opinion and Order finding that the crime-fraud exception applied to the 2012 renewal, the Court declined to make any finding regarding the 2016 renewal. This is new information from which Defendants became aware of the importance of these documents and their potential application to the crime-fraud exception. Accordingly, this motion by Defendants is granted.

4. Motion 3—Board Documents

Defendants request production of documents related to the use, non-use, and changing use of the RBK Mark from the European-based entities and from Reebok Board members during the years 2007-2012, in addition to any repositories containing Board documents or minutes. The Court previously ordered that the European entities needed to produce relevant documents. The Court also noted in denying certain sanctions requested by Defendants relating to the European entities' purported discovery failures that the Court would consider a motion to compel relating to such alleged failures. Plaintiffs only response to this motion is that they have searched a subset of Board members' documents that they believe would have the most responsive documents, those members did not have many responsive documents, and thus it is unlikely that the requested searches will result in any responsive documents. The Court has repeatedly ordered Plaintiffs to search the documents of Board members and European entities. Plaintiffs may not unilaterally choose a subset of Board members to search and disregard the Court's Orders. This motion is granted.

5. Motion 4—adidas Settlement Agreements

*3 Defendants withdraw this motion.

6. Motions 5 & 6—Plaintiffs' Knowledge of TRB and RBX Mark and Related Facts

Defendants move to compel production of documents and disclosure of facts related to Plaintiffs knowledge of and investigations into TRB, the RBX Mark, and the RBX brand. This includes documents relating to retail store visits and watch notices, documents from Thomson (the watch notice service provider), which purportedly contain metadata providing information about what watch notices were accessed by Plaintiffs, and facts relating to what searches were conducted of what custodians and what documents were destroyed and when. Defendants also request a supplemental in camera review of several documents, arguing that Plaintiffs are refusing to show the most relevant documents to Rule 30(b)(6) witnesses to prepare them for deposition because they are privileged and would then be subject to production, but then the witnesses are not properly prepared and are giving inadequate responses to questions.

Plaintiffs respond that they have searched for more information on watch notices and have produced all relevant documents. They argue that the request for the Thomson information is untimely. They further argue that counsel has reviewed the privileged documents and attested that Plaintiffs' witnesses' responses are accurate.

The Court has reviewed in camera some documents and previously expressed concern regarding the testimony relating to watch notices. In the re-opened discovery, the witnesses mostly did not have information regarding what happened to the earliest watch notices because the relevant person is no longer with the company. Accordingly, the Court grants Defendants' request relating to the Thomson documents. The Court also grants Defendants' motion regarding store sweeps and site visits. Plaintiffs only searched for such information that specifically mentioned TRB, RBX, or Rugged Bear. Defendants, however, can argue that Plaintiffs “should have known” about the RBX Mark and thus if there are a significant volume of store visits in locations carrying the brand, even if they do not mention TRB, RBX, or Rugged Bear, that information is relevant to Defendants' laches defense. The remaining portions of Defendants' motion are denied at this time, although Defendants have leave to renew their request for an in camera review of documents if Defendants believe the Thomson documents support such a request.

7. Motion 7—Privilege Waiver Sanction

Defendants move for a privilege waiver sanction for all documents that Plaintiffs failed to produce before January 31, 2017. This motion is denied.

8. Motion 8—Document Destruction Disclosures

Defendants request that Plaintiffs be compelled to disclose the dates and details of the destruction of documents for any custodian for whom documents have been destroyed. Defendants assert that Plaintiffs have offered vague statements regarding whether a custodian's documents are actually available or destroyed and given the history in this case, more definitive statements are necessary. The Court previously ordered that “Plaintiffs must inform Defendants whether the files of any former employees (within the designated categories) have been destroyed since the commencement of this action and, if so, Plaintiffs must further disclose the relevant dates, extent, and reasons for any such destruction of documents.” ECF 290 at 3. To the extent Plaintiffs have not complied with that order, they are hereby compelled to do so. Additionally, the Court expands the beginning date of that order from the commencement of this action to when Plaintiffs reasonably believed litigation was likely (and are thus claiming work product protection of documents) and extends it to current employees, if any of their documents were destroyed. Accordingly, this motion is granted.

9. Motion 9—Maya Rodal and Sara Talbot Searches

*4 Defendants request information regarding how Ms. Rodal and Ms. Talbot's documents were searched. Defendants assert that Plaintiffs have provided “shifting narratives” on how these documents were searched. Defendants argue that these are two critical witnesses regarding Defendants laches defense and thus the propriety of their document review and production is critical. Plaintiffs respond that this is an untimely interrogatory that is intended to perpetuate a never-ending cycle of discovery. Defendants' motion is denied, without prejudice to renew if the Thomson documents or any future in camera review provide an additional basis.

10. Motion 10—Litigation Holds

Defendants request that Plaintiffs provide when litigation holds were issued for each document custodian. This request is denied.

11. Motion 11—Search Terms

Defendants assert that in a September 2018 re-opened Rule 36(b) deposition, a witness testified that documents were gathered using “targeted search strings.” Defendants move to compel Plaintiffs to disclose those search strings. Given the history of discovery problems in this case, this motion is granted.

12. Former Employees

Several relevant custodians for documents required to be produced under this Order are former employees. Defendants have a general document destruction policy that electronic data of employees is destroyed 30 days after departure. For these custodians, Defendants must confirm that the documents of former employees were, in fact, destroyed and are not reasonably accessible. Defendants cannot merely assume that the general policy was applied to each custodian. Defendants must then confirm the destruction in accordance with the Court's order on Motion 8 above.

Defendants' motion to compel (ECF 410) is GRANTED IN PART and DENIED IN PART, as set forth in this Order. Attorney's fees are not awarded at this time.

IT IS SO ORDERED.