I. INTRODUCTION

*1 This matter is before the Court on four resisted motions: (1) Plaintiffs’ Motion for Protective Order regarding three subpoenas duces tecum, originally filed as a Motion for a Status Conference (ECF 138); (2) Defendant Stein’s Motion to Compel further responses by Plaintiffs to Defendant Stein’s Fourth Set of Requests for Production, including a Request for Expenses (ECF 141); (3) Plaintiffs’ Motion for Protective Order regarding the deposition of Plaintiffs’ counsel, Steve Wandro (ECF 153); and (4) Plaintiffs’ Motion for Protective Order regarding the deposition of G2’s Rule 30(b)(6) Representative. (ECF 157). Third-Party Defendant White Zuckerman also filed a Motion to Compel (ECF 140), but has since withdrawn its Motion. (ECF 147). At a Status Conference on February 7, 2020 (ECF 152), Defendant Stein indicated that he would submit a Motion for Protective Order regarding the date, time, and location of his own deposition; no Motion was filed by the February 14, 2020 deadline, and parties represented that the issue has been resolved.

II. BACKGROUND AND PROCEDURAL HISTORY[1]

On January 20, 2020, Plaintiffs moved for a Status Conference to discuss with the Court three subpoenas duces tecum that Defendant Stein served on Wandro & Associates, PC (attorneys for Plaintiffs), Hartung Schroeder Law Firm, and Aaron & Gianna, PLC (both attorneys for Plaintiffs in the Underlying Litigation). (ECF 138). The subpoenas duces tecum commanded the subject entities to respond by producing documents that have been requested of Plaintiffs in Defendant Stein’s Fourth Set of Requests for Production (“RFPs”). The Court informed parties that Plaintiffs’ motion would be treated as a Motion for Protective Order, under Fed. R. Civ. P. 26(c), and scheduled a Status Conference to formulate a plan to address the issues raised relating to the subpoenas duces tecum, and the scope of privileges claimed, so that discovery could be completed by April 15, 2020. (ECF 139).

On January 22, 2020, Defendant Stein moved to compel Plaintiffs to produce documents in response to his Fourth Set of RFPs, which were identical to the items requested of each of Golden’s UL counsel’s law firms by the three subpoenas duces tecum. Defendant Stein argued that he needed documents from the law firms in the Underlying Litigation because Plaintiffs have not produced sufficient documents related to the Underlying Litigation in the instant litigation, and he believed that more unprivileged documents and communications existed.

On January 27, 2020, the Court held a Status Conference. The subpoenas duces tecum were discussed. (See Hr’g Minutes, ECF 144). The Court granted Plaintiffs’ Motion for Protective Order, to the extent that the law firms subject to the subpoenas duces tecum were not required to respond until the Court rules on the scope and necessity of this discovery. Id. The Court ordered that all of the parties to the instant action should respond to outstanding discovery Motions by February 5, 2020, and continue the meet-and-confer process to resolve or narrow their disputes. On January 28, 2020, White Zuckerman withdrew its Motion to Compel. (ECF 147).

*2 Plaintiffs resisted Defendant Stein’s Motion to Compel on February 5, 2020, and state that they produced more than 500 additional documents and communications[2] regarding the settlement of the Underlying Litigation. (ECF 149; see also Status Report, ECF 161 at 2). They argued that any other communications with counsel for Defendants in the Underlying Litigation (“UL Defendants”) regarding settlement of the Underlying Litigation were protected by “joint defense privilege,” a subset of the work product and attorney-client privileges. Id. Plaintiffs argued that following settlement of the Underlying Litigation, Plaintiffs’ counsel and counsel for UL Defendants began working toward a “common cause,” discussing arrangements for deposit of settlement funds, including protection for, or resolution of, Mr. Stein’s claim for an attorney’s lien. Plaintiffs assert that because Mr. Stein claimed that both Plaintiffs and UL Defendant Clear Advantage were attempting to avoid his attorney’s lien, and because he insisted that the funds be paid directly to him, Plaintiffs had to work together with the UL Defendants to get the Court’s approval for their Settlement while respecting the attorney’s lien by depositing the encumbered funds in a neutral location. This involved numerous communications between Golden’s counsel, including Mr. Wandro, and counsel for UL Defendants regarding this deposit. Plaintiffs state that the discussions with counsel for UL Defendants related only to the mechanics of getting the settlement funds paid and deposited, not a strategy to make the funds inaccessible to Mr. Stein. (ECF 149 at 10–11; ECF 153 at 2). Plaintiffs also indicated that by agreement of counsel, they had produced all of the relevant and unprivileged information required, and that no further non-privileged material was available.

At a Hearing and Status Conference on February 7, 2020, the Court and counsel discussed the pending discovery motions: Defendant Stein’s Motion to Compel (ECF 141) and Plaintiffs’ Motion for Protective Order regarding the subpoenas duces tecum. (ECF 138). The scheduling of depositions was also discussed, and the Court ordered parties to confer regarding the scope of the proposed depositions. (See Hr’g Minutes, ECF 150). Defendant indicated that he would file a Motion for Protective Order regarding the date, time, and location of his deposition. Id. The Court ordered that Defendant Stein’s Motion for Protective Order be filed by February 14, 2020 (ECF 152); no Motion was filed.

On February 11, 2020, Plaintiffs filed a Motion for Protective Order preventing the deposition of Plaintiffs’ counsel, Steve Wandro (ECF 153); Defendant Stein resisted. (ECF 159). On February 12, 2020, Defendant Stein filed a Reply (ECF 155) in support of his Motion to Compel responses to his Fourth Set of RFPs from Plaintiffs. (ECF 141).

On February 20, 2020, Defendant Stein served a Rule 30(b)(6) Notice to Plaintiffs’ counsel requesting the deposition of a G2 Marketing representative, separate from the deposition of Glenn Golden, as a Plaintiff to this action, and a party in the Underlying Litigation. (See ECF 157 at Ex. 2, 3). On February 21, 2020, Plaintiffs filed a third Motion for Protective Order, requesting that the Court preclude the Rule 30(b)(6) deposition of G2 Marketing, as it would be duplicative of the Glenn Golden deposition. Id. Defendant Stein replied. (ECF 160).

The Court held a Hearing and Status Conference on February 24, 2020, and discussed the four outstanding discovery motions: Plaintiffs’ three Motions for Protective Order (ECF 138, 153, 157) and Defendant Stein’s Motion to Compel Plaintiffs’ responses to his Fourth Set of RFPs. (ECF 141; see also Hr’g Minutes, ECF 162). The Court reserved ruling on the Motions, which are now fully submitted.

III. APPLICABLE LEGAL STANDARDS

Litigation should provide the just, speedy, and inexpensive resolution of the parties’ issues. Fed. R. Civ. P. 1. Parties are required to provide information in Initial Disclosures so that additional discovery requests are relevant and proportional to the issues, considering the parties’ relative access to the information. Fed. R. Civ. P. 26(b)(1); see Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168 (N.D. Iowa, March 13, 2017). In their Initial Disclosures, the parties are required to provide identification of all people and copies of documents that are likely to have discoverable information that the disclosing party may use to support claims or defenses relevant to its case; additionally, the parties are to provide a computation of each category of damages, supported by documents or evidentiary material. See Fed. R. Civ. P. 26(a)(1)(3).

*3 Upon objection to the production of electronically stored information, the responding party must show that it is not reasonably accessible because of the undue burden or cost. Fed. R. Civ. P. 26(b)(2)(B). In determining the scope and limits of discovery, if the Court determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, without need for a motion, it must limit the frequency or extent of discovery. Fed. R. Civ. P. 26(b)(2)(C)(i) (emphasis added). Discovery may proceed in any sequence; discovery by one party does not require any other party to delay its discovery. Fed. R. Civ. P. 26(d).

Rule 34 provides that a party may serve Requests for Production of items in the responding party’s possession, custody or control, including electronically stored information. Fed. R. Civ. P. 34(a)(1). For each item or category, the response must either state that the request will be permitted, or state with specificity its grounds for objection. Fed. R. Civ. P. 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld in the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C).

If a party fails to produce documents or respond to a Request for Documents under Rule 34, the requesting party may move for an order compelling disclosure. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Parties may obtain discovery regarding any nonprivileged matter relevant to its claim or defense. Fed. R. Civ. P. 26(b)(1). The party asserting the privilege bears the burden of providing the factual basis for application of the privilege claimed. Khoday v. Symantec Corp., No. 11-180 (JRT/TNL), 2013 WL 12140484 (D. Minn. Sept. 24, 2013).

Pursuant to Fed. R. Civ. P. 26(c), the Court may issue a Protective Order to protect a party or person from “annoyance, embarrassment, oppression, or undue burden or expense.” This includes forbidding, specifying the terms, prescribing the method for, or limiting the scope of discovery. Id. Fed. R. Civ. P. 26(c)(A)–(D).

IV. DISCUSSION

A. Defendant Stein’s Motion to Compel

Pursuant to Fed. R. Civ. P. 37, Defendant Stein moves to compel further responses from Plaintiffs related to various communications between counsel for Plaintiffs and UL Defendants, counsel for Plaintiffs and counsel for White Zuckerman, and communications between Plaintiffs and any other person. (ECF 141). Specifically, Defendant Stein requests further responses to the following RFPs:

(ECF 141-1 at 10–12) (emphasis added). Defendant Stein defined the “relevant period” as July 1, 2018, to the present. (ECF 141-1 at 7). He did not request further responses to RFP No. 7, which requested “all non-privileged drafts of the settlement agreement in the Underlying Litigation,” or RFP No. 8, which requested “all documents and communications relating to the damages [Plaintiffs] claim in [their] Complaint.” (ECF 141-1 at 11).

*4 Defendant Stein argues that Plaintiffs have “stonewalled document production and prevented his deposition for over a year,” requiring him to serve his Fourth Set of RFPs. (ECF 141). He also requests fees and costs. Id. Plaintiffs resist Defendant Stein’s Motion, objecting to his requests as duplicative, cumulative, and burdensome because: (1) Plaintiffs already provided Mr. Stein with the requested, unprivileged documents; (2) post-settlement communications relating to the settlement, covering the time after Mr. Stein was released as counsel for Plaintiffs in the Underlying Litigation, are covered by a joint defense privilege; and (3) providing a Privilege Log as requested by Defendant Stein would be overly burdensome due to counsel’s continuing communications with Plaintiffs and Mr. Luginbill, who is counsel to UL Defendant Clear Advantage Marketing and counsel to White Zuckerman (Third-Party Defendant in the instant case). (ECF 149).

1. Communications between Golden and UL Defendants during the Relevant Period

Defendant Stein moves to compel the production of all communications between Golden and UL Defendants concerning the settlement of the Underlying Litigation. Plaintiffs note that in response to Defendant Stein’s original RFPs, after discussions with counsel, they produced draft settlement agreements and five transmittal emails between counsel for Golden and UL Defendants. Plaintiffs recently produced approximately 500 additional documents on February 5, 2020, in response to Defendant Stein’s Fourth Set of RFPs, which are the RFPs at issue in Defendant Stein’s Motion to Compel. (ECF 149). Plaintiffs insist that these documents are the extent of the non-privileged items that can be produced in response to Defendant Stein’s request. Defendant Stein suspects that there are more documents to be produced, due to the “dramatic” difference between the Mediation Agreement in September 2018 and the resulting Settlement Agreement in June 2019, the number of attorneys and parties involved, other litigation in Bankruptcy Court, and in court filings related to his attorney’s lien in the Underlying Litigation.

Defendant Stein’s RFP Nos. 1 and 2 request “All [documents and communications] relating to the settlement of the Underlying Litigation during the relevant period,” including any emails or letters from or to opposing counsel, opposing parties, or where Golden is copied (emphasis added). In response, Plaintiffs directed Mr. Stein to Bates-numbered[4] documents and communications that were already produced, and claimed attorney-client privilege as to certain Bates-numbered documents. (See ECF 141-1; ECF 138-5 at 3).

RFP Nos. 3 and 4 request “All [documents and communications] relating to the settlement agreement in the Underlying Litigation during the relevant period,” including drafts circulated with opposing counsel or parties, and all emails or letters from or to opposing counsel, opposing parties, or where Golden is copied (emphasis added). In response, Plaintiffs directed Mr. Stein to the previous responses and additional Bates-numbered “emails.” (ECF 141-1; ECF 138-5 at 3).

RFP Nos. 5 and 6 request “All communications between defendants in the Underlying Litigation (or their counsel) and [Plaintiffs] during the relevant period,” both related and unrelated to the settlement of the Underlying Litigation (emphasis added). In response to RFP No. 5, Plaintiffs directed Mr. Stein to see its other RFP responses regarding settlement-related communications in the Underlying Litigation. In response to RFP No. 6, Plaintiffs indicated that there are no other communications beyond those that were previously produced. (ECF 141-1; ECF 138-5 at 4).

*5 Plaintiffs’ objections that production of the requested documents would be duplicative, cumulative, and burdensome are OVERRULED. Defendant Stein has stated that he is seeking from Plaintiffs non-privileged documents that have not otherwise been produced.

As to Plaintiffs’ claims of privilege: “An objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). Plaintiffs shall compile a Privilege Log detailing what communications are withheld on this basis by March 10, 2020.

2. Plaintiffs’ Claim of Joint Defense Privilege

Defendant Stein requests three categories of documents in his Fourth Set of RFPs: (1) settlement communications between Golden or Plaintiffs’ counsel and UL Defendants or their counsel in the Underlying Litigation; (2) communications between Golden or Plaintiffs’ counsel and third parties regarding Mr. Stein; and (3) communications between Golden or Plaintiffs’ counsel and White Zuckerman concerning Mr. Stein. (ECF 141-1). Plaintiffs and their counsel have responded, indicating either that there are no such communications to third parties or White Zuckerman about Mr. Stein, or that any communications with UL Defendants or their counsel occurred post-settlement of the Underlying Litigation, and are privileged.

Plaintiffs assert that communications between Plaintiffs’ counsel and UL Defendants are protected by “joint defense privilege,” a subset of the work product and attorney-client privileges. Plaintiffs claimed this privilege in more than one of the Motions presently before the Court, and the Court’s findings here shall apply to each Motion where this privilege is at issue.

At the Status Conference on February 24, 2020, Plaintiffs asserted that the only information that they are withholding from Defendant Stein are communications between Mr. Wandro and counsel for UL Defendants that occurred after the Underlying Litigation was settled. These communications, they argue, related only as to where funds that are subject to Mr. Stein’s attorney’s lien would be deposited. Plaintiffs assert that any communications among counsel to the UL Defendants—which did not include Mr. Stein, who was terminated by Golden on September 28, 2018 (see ECF 141), after the Settlement Agreement in the Underlying Litigation was reached—are protected by the “joint defense privilege” because the communications were related to their “common goal” to most efficiently determine how and where to deposit settlement funds, so as to be in compliance with orders in the Underlying Litigation or related cases. Defendant Stein argues that neither attorney-client nor work product privileges apply relating to communications after the settlement of the Underlying Litigation, and that Plaintiffs waived their privileges when they had discussions about the instant case (e.g., relating to whether or not Mr. Stein would continue to represent Golden); such discussions would be outside of any attorney-client protection due to a “joint defense” relationship with UL Defendants.

When two or more clients with a common interest, represented by separate lawyers, agree to exchange information concerning a matter, communications between such clients qualify as privileged. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997); see also Progressive Cas. Ins. Co. v. FDIC, 49 F. Supp.3d 545, 557 (N.D. Iowa 2014) (same) (citations omitted). When information is exchanged pursuant to a joint defense agreement, it is not made for the purpose of allowing unlimited publication and use, but rather for the limited purpose of assisting with their common cause. John Morrell And Co. v. Local Union 304A of United Food & Comm. Workers AFL, 913 F.2d 544, 555–56 (8th Cir. 1990) (discussing joint defense privilege). The privilege cannot be waived without the consent of all parties. Id. This is an exception to the general rule that the attorney-client privilege is waived when information is disclosed to a third party, so long as the parties: (1) have a common legal interest, and (2) the disclosure occurred in the course of formulating a common legal strategy. Khoday, 2013 WL 12140484, at *2.

*6 Plaintiffs had a common legal interest with the UL Defendants, due to the necessity of arranging for the deposit of settlement funds following the settlement of the Underlying Litigation, and due to Mr. Stein’s claim for an attorney’s lien against settlement proceeds. Mr. Stein asserted that both Plaintiffs and UL Defendant Clear Advantage were attempting to avoid his attorney’s lien. Plaintiffs then worked with the counsel for UL Defendants to get the Court’s approval for their Settlement amount, and the terms, which included depositing the encumbered funds in a neutral location, so that litigation relating to Mr. Stein’s attorney’s fees claims could continue. A written agreement between Plaintiffs’ counsel and counsel for UL Defendants is not necessary for this privilege to apply. The Court finds that the joint defense privilege applies to communications between Plaintiffs’ counsel and counsel for the UL Defendants between the time of settlement (September 2018) and when the funds were deposited with the Court’s Registry (October 2019), as Plaintiffs and UL Defendants were engaged in a common goal.

Plaintiffs have not provided a Privilege Log relating to the nature and types of communication which occurred during this period where they assert that a blanket “joint-defense” privilege protects all of their communications with counsel for UL Defendants between September 2018 and October 2019. It is the lack of clarity of their response and the scope of the privilege claimed that prompted Defendant Stein to file a Motion to Compel, and to issue the subpoenas duces tecum to Plaintiffs’ counsel in the Underlying Litigation. Plaintiffs argue that they should not have to produce a Privilege Log because it would be unduly burdensome, as communications with counsel for UL Defendant Clear Advantage (now Counsel for White Zuckerman) are ongoing, and would now be protected as work product in the instant litigation. Plaintiffs did not indicate the quantity or type of privileged information, whether it is ESI, and how time consuming a review of this material would be in order to state with certainty that every communication was protected by work product and attorney-client privileges. The Court finds that production of a Privilege Log is required in order to demonstrate that the claimed privilege is applicable, and to comply with Fed. R. Civ. P. 26(b)(5)(A) (stating that when a party withholds information otherwise discoverable by claiming that the information is privileged, the party must expressly make the claim and describe the nature of the documents and communications not disclosed). Plaintiffs need not disclose privileged communications in this log, but shall indicate the nature and type of the documents and communications that were not disclosed to Defendant Stein.

By March 10, 2020, Plaintiffs shall produce a Privilege Log of all withheld communications. If there are no non-privileged communications in response to Defendant Stein’s Fourth Set of RFPs, Plaintiffs shall clearly indicate, so that this item of discovery can be closed. Defendant Stein shall file any objection or Motion regarding the contents of Plaintiffs’ Privilege Log by March 30, 2020.

The Court finds that beyond what Plaintiffs have provided, as supplemented by any production following the Privilege Log, the balance of Defendant Stein’s RFP Nos. 1–6 are not proportional to the needs of this case, and do not need to be produced. Fed. R. Civ. P. 26(b)(1). Plaintiffs assert that they produced all non-privileged items, which is enough to satisfy the Rule 26(b) discovery standard; Plaintiffs cannot produce what they do not have. Defendant Stein’s Motion to Compel additional responses as to RFP Nos. 1–6 is DENIED. Defendant Stein shall file any objection or Motion regarding the contents of Plaintiffs’ Privilege Log by March 30, 2020.

3. Communications between Golden and Any Person about Mr. Stein

In RFP No. 9, Defendant Stein seeks “All communications between [Plaintiffs] and any person relating to Jonathan Stein during the relevant period,” including all emails or letters from or to opposing counsel, opposing parties, and where Golden is copied (emphasis added). Plaintiffs object to production of communications between Golden and counsel in this case or the Underlying Litigation, based upon work product and attorney-client privileges; they state that they have already produced all non-privileged communications, or that none exist. (ECF 141-1; ECF 138-5 at 4).

*7 Defendant Stein’s Motion to Compel a response to RFP No. 9 is DENIED. Plaintiffs have stated that there are no communications from Golden to any other person relating to Mr. Stein during the relevant period. Plaintiffs continue to assert that they have produced all non-privileged information, and only had discussions with UL Defendants regarding the Underlying Litigation. Defendant Stein’s RFP No. 9 that requests copies to Plaintiffs on any correspondence or information from their counsel is overbroad, and not proportional to the needs of this case. Fed. R. Civ. P. 26(b)(1). As explained above, Plaintiffs’ objection to producing material protected by the attorney-client privilege and work product privileges is SUSTAINED, subject to Defendant Stein’s review of the Privilege Log. By March 10, 2020, Plaintiffs shall provide a Privilege Log identifying material withheld in response to RFP No. 9 due to a claim of privilege. By March 30, 2020, Defendant Stein shall file any Motion to Compel as to material in the Privilege Log for RFP No. 9.

4. Communications between Golden and White Zuckerman about Mr. Stein

In RFP No. 10, Defendant Stein requests “All communications between [Plaintiffs] and White Zuckerman relating to Jonathan Stein at any time” (emphasis added). Defendant Stein argues that this information is relevant because the quantity, cost, and quality of White Zuckerman’s work could be discussed in such communications, and that this issue is relevant to Plaintiffs’ claims of malpractice or excessive billing. He states that because he assumes that Golden’s conversations with White Zuckerman were limited, this request is not burdensome. Plaintiffs objected on the basis of relevance and work product privilege, stating that there was no communication by Plaintiffs with any White Zuckerman representative or attorney. (ECF 138-5 at 5). However, Plaintiffs’ counsel later stated at the February 24, 2020, Status Conference that they did communicate with White Zuckerman’s attorney regarding the Underlying Litigation, but assert that those communications are protected by a joint defense privilege.

Plaintiffs’ objection as to relevance is OVERRULED. Conversations between Plaintiffs and counsel for White Zuckerman regarding White Zuckerman’s role as an expert in the Underlying Litigation may be relevant to the instant case. However, those conversations took place during the time-frame that Mr. Stein was counsel for Plaintiffs; it is not clear as to what additional communications are in question. To the extent that Plaintiffs had communications with White Zuckerman as to deposit of the settlement funds, or finalizing the settlement agreement of the Underlying Litigation, Defendant Stein’s Motion to Compel as to RFP No. 10 is DENIED. Based upon the information available, Plaintiffs’ work product objection is SUSTAINED. By March 10, 2020, Plaintiffs shall provide a Privilege Log identifying material in response to RFP No. 10 withheld due to a claim of privilege. By March 30, 2020, Defendant Stein shall file any Motion to Compel relating to material identified in this Privilege Log.

5. Sanctions—Costs and Fees

Defendant Stein moves for costs and fees pursuant to Rule 37. If a Motion to Compel is granted, the Court must require the party whose conduct necessitated the motion to pay the movant’s reasonable expenses incurred in making the motion. Fed. R. Civ. P. 37(a)(5)(A). The Court finds that the Plaintiffs’ objections to Defendant Stein’s RFPs required assessment by the Court on the issues of privileges and scope of discovery; Plaintiffs have not failed or refused to answer discovery requests without imposing appropriate objections. Defendant Stein’s Motion for Costs and Fees of the Motion to Compel (ECF 141) is DENIED.

B. Plaintiffs’ Motion for Protective Order: Subpoenas Duces Tecum

On or about January 17, 2020, Defendant Stein served subpoenas duces tecum on Wandro & Associates, PC (attorneys for Plaintiffs), Hartung Schroeder Law Firm, and Aaron & Gianna, PLC (both attorneys for Plaintiffs in the Underlying Litigation). (ECF 138). The three identical subpoenas duces tecum commanded the law firms to respond by producing documents identified in Defendant Stein’s Fourth Set of RFPs to Plaintiffs, discussed above.

*8 Defendant Stein asserts that these subpoenas duces tecum are necessary to ensure that he has received all relevant and discoverable information from Plaintiffs. Plaintiffs object to the subpoenas duces tecum as unduly burdensome and irrelevant, as Plaintiffs already provided all available non-privileged documents and communications in response to identical RFPs that Defendant Stein served on Plaintiffs. Plaintiffs request, on behalf of their law firms, that these subpoenas be quashed, to the extent that they seek information subject to the attorney-client or work product privileges in this case or the Underlying Litigation. At the hearing on February 24, 2020, Defendant Stein indicated that in addition to the subpoenas duces tecum, he intends to depose a representative of each of the three subpoenaed firms as to the amount and substance of their bills for legal fees and expenses relating to the Underlying Litigation.

Based upon the Court’s findings above, the Court GRANTS Plaintiffs’ Motion for Protective Order to modify these subpoenas by limiting the responses to that non-privileged information Plaintiffs will, or have, produced in response to Defendant Stein’s RFPs (ECF 138), as discussed above. The subpoenas duces tecum are identical to the RFPs that Plaintiffs already responded to; any additional discovery requesting that the same information be produced from another source is duplicative and cumulative, as well as burdensome to Plaintiffs and their counsel. Pursuant to Fed. R. Civ. P. 26(b)(1), the Court finds that Defendant Stein’s request for materials via subpoenas duces tecum to law firms that currently or have represented Plaintiffs is not proportional to the needs of this case.

C. Plaintiffs’ Motion for Protective Order: Deposition of Steve Wandro

Defendant Stein noticed the deposition of one of Plaintiffs’ current attorneys, Steven Wandro, and served him with a subpoena to appear and testify. Plaintiffs request a Protective Order precluding Mr. Wandro’s deposition. (ECF 153). Plaintiffs argue that Mr. Wandro does not have any information that is unique or unknown to co-counsel in the Underlying Litigation; he participated in a very limited capacity in that action after the Settlement Agreement was entered, and advised only on the issue of depositing funds encumbered by Mr. Stein’s attorney’s lien.

Defendant Stein believes that Mr. Wandro has “percipient” information on the issues in this action, because: Mr. Wandro and his firm were attorneys of record in the Underlying Litigation from January 2019 to December 2019; Mr. Wandro advised Plaintiffs before the Underlying Litigation was dismissed on December 4, 2019; and Mr. Wandro is counsel in this action. Thus, Defendant Stein argues, Mr. Wandro should be subject to a deposition so that he may discover: (1) the amount of fees paid to Mr. Wandro and his firm in the Underlying Litigation; and (2) Mr. Wandro’s involvement with opposing counsel in Underlying Litigation from the time of mediation in September 2018 through finalization of the settlement and dismissal of that action.

Fed. R. Civ. P. 30(a)(1) provides that a party may depose any person. However, the Eighth Circuit discourages the practice of forcing opposing counsel to testify as a witness, as it disrupts the adversarial system, lowers the standards of the profession, and adds to the costs of litigation. See Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). A party seeking to depose opposing counsel must satisfy three elements, including that:

Id.

The Eighth Circuit revisited the Shelton test in Pamida v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) (internal citations omitted). The Court found that a party may depose an opposing counsel without satisfying the Shelton test if it “seeks relevant information uniquely known by [the] attorneys about prior terminated litigation, the substance of which is central to the pending case.” Pamida, 281 F.3d at 730. Pamida does not apply unless the information sought is “peculiarly within counsel’s knowledge,” and counsel has waived privilege. Smith-Bunge v. Wisconsin Central, Ltd., 946 F.3d 420, 423 (8th Cir. 2019). A party cannot depose opposing counsel to explore its suspicions about whether counsel truthfully or fully responded to discovery requests. Shelton, 805 F.2d at 1327–1328 (the Court rejected Plaintiff’s request for deposition of counsel to determine if Defendant had fully and truthfully complied with his Document Requests and Interrogatories); see also Smith-Bunge, 946 F.3d at 423 (“[A] party cannot depose opposing counsel to explore suspicions about [the truthfulness of] opposing witnesses.”).

*9 The Court finds that Defendant Stein failed to satisfy the tests in Smith-Bunge, Pamida or Shelton. He is merely fishing, and stated that it is his intention to explore his suspicions about the truthfulness of Plaintiffs’ witnesses. Defendant Stein argues that due to the size of his claim, which he estimates to exceed $1.2 million, this “large and complex lawsuit demands discovery from all sources.” (Stein Resistance to Plaintiffs’ Mot. for Protective Order re: Wandro Deposition, ECF 160 at 3). The Court finds otherwise. Mr. Wandro does not have information about the Underlying Litigation that is unique or known only to him. At the hearing on February 24, 2020, Defendant Stein argued that only Mr. Wandro can provide: (1) the amount of fees that were paid to him in the Underlying Litigation, and (2) the conversations he had with UL Defendants after Mr. Stein was no longer counsel of record. As to the amount of fees, Plaintiffs can answer that factual question, with appropriate protection for information subject to attorney-client or work product privileges. Defendant Stein is attempting to use information as to the amount of attorneys fees paid in the Underlying Litigation to refute Plaintiffs’ claims that Mr. Stein’s fees were excessive. But Mr. Wandro and his firm did not represent Plaintiffs in the Underlying Litigation until after it was settled. The Court finds that information from Mr. Wandro or his firm as to the amount of their fees in the Underlying Litigation is not relevant, nor is the request to depose Mr. Wandro on this topic proportional to the issue in the Complaint, namely, whether the fees charged by Mr. Stein in the Underlying Litigation were excessive. To the extent relevant, the information sought by Mr. Stein as to amounts paid to Mr. Wandro and his firm in the Underlying Litigation is discoverable from Plaintiffs. One of the topics identified in the Fed. R. Civ. P. 30(b)(6) Notice for the deposition of a Representative of G2 is “Payments you [Golden] made to Wandro for work in the Underlying Litigation.” As to the communications between Mr. Wandro and UL Defendants after settlement, they are protected by joint defense work product privilege, as discussed above, regarding communications surrounding the deposit of funds post-Settlement Agreement of the Underlying Litigation. Mr. Stein will be able to develop this topic through depositions of Golden or G2 Marketing’s representative to determine the fees paid by Golden during the Underlying Litigation.

To justify deposing opposing counsel, Defendant Stein must meet all three prongs of the Shelton test; he has failed to do so. He also does not meet the unique circumstances of Pamida or Smith-Bunge, because in addition to the fact that the information sought from Mr. Wandro is not relevant, it is not crucial to the preparation of his case or peculiarly within Mr. Wandro’s knowledge.

Defendant Stein asserted that he needs to depose Mr. Wandro to discover the contents of an hour-long conversation that Mr. Stein had with Mr. Wandro. Because Mr. Stein was a party to this conversation, Mr. Wandro’s perception or memory of this conversation is not necessary; Mr. Stein is merely attempting to explore his suspicions about whether parties or witnesses who may be called at trial are truthful, or to ensure the truthfulness of Plaintiffs’ Discovery Responses. Deposing opposing counsel is not required to verify discovery or other testimony.

D. Plaintiffs’ Motion for Protective Order: Rule 30(b)(6) Deposition of G2 Marketing

On February 20, 2020, Defendant Stein noticed the Rule 30(b)(6) deposition of a corporate representative for Plaintiff G2 Marketing, to be taken in Des Moines, Iowa on April 3, 2020. Plaintiffs move for a Protective Order precluding this deposition, asserting that Mr. Golden is the only individual who is able to serve as a corporate representative for G2 Marketing and that this Rule 30(b)(6) deposition would be duplicative and unnecessary, as Mr. Golden is already scheduled to be deposed by Defendant Stein on March 10, 2020. (ECF 157). Plaintiffs further assert that the fifty-three enumerated items included in the Rule 30(b)(6) Notice of Deposition do not require testimony that is unique to Plaintiff G2 Marketing, but could instead be covered as part of Mr. Golden’s deposition. Plaintiffs argue that since Mr. Golden will serve as the corporate representative for G2 Marketing at the Rule 30(b)(6) deposition, Mr. Stein should be required to cover those topics immediately following Mr. Golden’s deposition, rather than incurring additional expense and delay by taking the Rule 30(b)(6) deposition one month later.

Fed. R. Civ. P. 30(b)(6), provides that, in response to a notice or subpoena, a corporation must designate one or more person who consent to testify on its behalf. “The persons designated must testify about information known or reasonably available to the corporation.” Fed. R. Civ. P. 30(b)(6). The organization has a duty to prepare the designated deponent(s) so “they can answer fully, completely, and unevasively, the questions posed ....” West Liberty Foods, L.L.C. v. Perdue Farms, Inc., 4:10-cv-00264-RP-RAW, 2011 WL 13233174, at *1 (S.D. Iowa Sept. 30, 2011) (citing Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006)). This requires preparation to a greater degree than that of a deposition given in an individual capacity. Leazenby Construction v. City of Council Bluffs, No. 1:10-cv-00028-CRW-RAW, 2012 WL 12914696, at *1 (S.D. Iowa. Mar. 22, 2012).

*10 The basic purpose of a 30(b)(6) deposition is to allow a corporation to choose an individual to “testify on its” behalf; this testimony binds the corporation. See New Jersey v. Sprint Corp., No. 03–2071–JWL, 2010 WL 610671, at *2 (D. Kan. Feb. 19, 2010); see also Estate of Thompson v. Kawasaki Industries, Ltd., 291 F.R.D. 297, 304 (S.D. Iowa 2013) (finding that a 30(b)(6) deposition binds a corporation). A party is entitled to get answers from the corporation itself, even if the topics proposed or the substance of the answers are similar to completed discovery. Sprint, 2010 WL 610671, at *2 (the court rejected the argument that a 30(b)(6) deposition should be quashed because it is duplicative of discovery already obtained by parties by other means); see also Leazenby, No. 1:10-cv-00028-CRW-RAW, at *2 (denying Motion to Quash, noting that several other cases involving sole owners, small, or closely held companies have allowed a Rule 30(b)(6) deposition after an individual deposition (or vice versa)).

Because Mr. Golden has not yet been deposed, it is difficult for the Court to determine whether a Rule 30(b)(6) deposition would be duplicative of information given in a deposition in his individual capacity, or otherwise burdensome. But even if the information overlaps, a Rule 30(b)(6) deposition is qualitatively different than a deposition given in an individual capacity. It requires a greater amount of preparation and binding on the corporation in a way that an individual’s testimony might not be.

Plaintiffs’ Motion for Protective Order is DENIED, insofar as Plaintiffs request that Defendant Stein’s Rule 30(b)(6) Notice to G2 Marketing be quashed. (ECF 157). The Court notes Plaintiffs’ concern regarding the costs of this additional deposition. Pursuant to Fed. R. Civ. P. 26(c)(1)(C), to avoid harassment or undue burden, the Rule 30(b)(6) deposition of G2 Marketing shall take place upon written questions pursuant to Fed. R. Civ. P. 31. Mr. Golden’s deposition in his individual capacity remains scheduled for March 10, 2020. See Leazenby, No. 1:10-cv-00028-CRW-RAW, at *2 (limiting a corporate representative’s second deposition to avoid harassment). Counsel shall continue the meet-and-confer process to resolve or narrow this dispute, and to avoid unnecessary duplication of time. Plaintiffs’ Motion for a Protective Order is DENIED in part and GRANTED in part.

V. SCHEDULE

Plaintiffs and Defendant Stein requested modification to the Discovery Schedule in their Status Reports submitted to the Court for the February 24, 2020, Hearing and Status Conference. (ECF 158, 161). The Court modifies the following deadlines:

No further extensions will be granted. At this time, there is no Status Conference scheduled; the parties may file a Joint Motion requesting a Status Conference if one is needed. The Court will set a Settlement Conference in June 2020. Counsel shall continue to meet-and-confer to determine what dates work best for the parties.

The Final Pretrial Conference remains set for 10:00 a.m. on October 6, 2020, before the Honorable Celeste F. Bremer at the U.S. Courthouse in Des Moines, Iowa. Trial in this matter is scheduled to begin at 9:00 a.m. on October 19, 2020, before Chief Judge John A. Jarvey at the U.S. Courthouse in Des Moines, Iowa.

VI. CONCLUSION

Pursuant to Fed. R. Civ. P. 26(b), the Court limits discovery to non-privileged matters, relevant to claims or defenses, that are proportional to the needs of the case.

Plaintiffs’ Motion for a Protective Order (ECF 138) related to the subpoenas duces tecum is GRANTED.

Defendant Stein’s Motion to Compel (ECF 141) is GRANTED in part, and DENIED in part. By March 10, 2020, Plaintiffs shall provide a Privilege Log identifying their communications withheld in response to Defendant Stein’s RFPs, due to a claim of privilege. By March 30, 2020, Defendant Stein may file a Motion to Compel if he believes any material withheld is not privileged.

*11 Plaintiffs’ Motion for a Protective Order (ECF 153) precluding the deposition of Steve Wandro is GRANTED.

Plaintiffs’ Motion for a Protective Order (ECF 157) precluding the Rule 30(b)(6) Deposition of G2 Marketing is DENIED in part, and GRANTED in part. This Rule 30(b)(6) deposition shall take place by written questions, pursuant to Fed. R. Civ. P. 31.

IT IS SO ORDERED.

Dated this 4th day of March, 2020.