TABLE OF CONTENTS

*1 1. Recommendation II. Report A. Trek's First Amended Complaint against ITR in Michigan B. ITR's Lawsuit Against Trek in Mississippi C. The Five Pending Discovery Motions D. Analysis 1. Trek's Motion to Compel, for sanctions, and for modification of the Scheduling Order (Dkt. 31) a. In response to Trek's Request Nos. 9, 10, 16, and 17, within 21 days, ITR should produce relevant documents from July 1, 2014 to present. b. Trek's request for sanctions should be denied Trek's request to modify the Scheduling Order should be granted c. Trek's motion for protective order (Dkt. 46) 2. Trek's motion for protective order should be granted as to the deposition of Cao and Request Nos. 65 – 70. b. Trek's Motion should be denied as to Request No. 71, and Trek should be ordered to produce documents within 21 days 3. Trek's Motion to Compel responses to its second set of discovery requests to ITR (Dkt. 48) a. ITR should be compelled to produce its sales and profit documents from July 1, 2014 to present, within 21 days, in response to Request Nos. 19, 26, and 27 b. ITR should be compelled to produce documents within 21 days related to Michigan and Western markets from July 1, 2014 to present, in response to Request Nos. 24 and 25 c. ITR should be compelled to produce the work (not personal) computers used by Clemens or Krummel from July 2014 to the present, within 14 days, to be imaged by a third-party vendor d. Trek's Request Nos. 21 and 22 for production of the “personal” computers of Clemens and Krummel should be denied. e. ITR should be compelled to produce firewall logs, internet usage logs, and web browsing histories, from July 2014 to the present, within 21 days 4. ITR's Motion to Compel and for Sanctions (Dkt. 36) a. ITR's Motion to Compel Trek to supplement its Rule 26 disclosures with a computation of damages should be denied. b. ITR's Motion to Compel responses to Interrogatory No. 1 and Request for Production No. 49, regarding damages, should be denied. c. ITR's Motion to Compel responses to Interrogatory Nos. 2, 3, 7-9, and 16, and Request for Production No. 50, regarding trade secrets, should be denied. d. ITR's Motion to Compel supplemental responses to Requests for Admissions should be granted in part. 1. Trek's responses to Requests for Admission Nos. 4, 17, 18, and 19 are inadequate, and should be amended within 14 days 2. Trek's responses to ITR's Requests for Admission Nos. 6, 16, 40, and 41 are adequate. 3. Trek's objections to Requests for Admission Nos. 38 and 39 are adequate. 5. ITR, Davis, and Marcum's, Joint Motion for Continuance regarding Expert Disclosures (Dkt. 47) should be denied as moot. III. Conclusion and Summary of Recommendation Page 5 6 6 6 7 8 8 9 14 14 16 17 20 21 21 24 25 29 30 31 32 34 35 36 37 39 40 42 42

I. Recommendation

For the reasons stated below, I recommend entry of an order that:

1. Plaintiff Trek, Inc.'s Motion to Compel Responses to its First Set of Discovery Requests, Specifically Requests for Production Nos. 9-10, 16-17, to Request Sanctions, and to Modify the Scheduling Order for Good Cause Shown (Dkt. 31) be GRANTED IN PART AND DENIED IN PART;

*2 2. Plaintiff Trek, Inc.'s Motion for Entry of a Protective Order Precluding Defendants From Seeking Any Discovery Related to ITR America, LLC's Lawsuit Pending in Mississippi, Civil Action No. 3:16-CV-703-WHB-JCG (S.D. Miss.), Including, Without Limitation, An Order Absolving Plaintiff Trek, Inc. From Having to Respond to Defendant ITR America, LLC's Third Set of Requests for Production of Documents and Precluding Defendants From Deposing Tu Cao (Dkt. 46) be GRANTED IN PART AND DENIED IN PART;

3. Plaintiff Trek, Inc.'s Motion to Compel Responses to Its Second Set of Discovery Requests and for Sanctions (Dkt. 48) be GRANTED IN PART AND DENIED IN PART;

4. Defendant ITR's America, LLC's Motion to Compel (Dkt. 36) be GRANTED IN PART AND DENIED IN PART; and

5. Defendants ITR America, LLC, Mark Davis, and James Marcum's Motion for Continuance (Dkt. 47) be DENIED WITHOUT PREJUDICE.

II. Report

A. Trek's First Amended Complaint against ITR in Michigan

In this case, Trek alleges that two of its former employees, Defendants Mark Davis and James Marcum, absconded with Trek's confidential, proprietary, and trade secret information, and went to work for ITR, its competitor. (Dkt. 5, First Amended Complaint). Trek also alleges that Davis and Marcum shared its trade secrets with ITR, and that ITR used the information to improperly compete against Trek. (Id.)

B. ITR's Lawsuit Against Trek in Mississippi

A month before this lawsuit was filed, ITR sued Trek and its employee, Tu Cao, in the U.S. District Court for the Southern District of Mississippi. ITR America, LLC v. Trek, Inc. and Tu Cao, Civil Action No. 3:16-cv-703-WHB-JCG (S.D. Miss.) (the “Mississippi Lawsuit”). ITR's allegations in the Mississippi Lawsuit are a mirror image of Trek's allegations in this case. ITR claims that Cao, its former employee, accepted a position with Trek and that before resigning from ITR, Cao allegedly took ITR's trade secrets, that Cao shared ITR's trade secrets with Trek, and that Trek allegedly used them. (Dkt. 46, p. 12).

Trek and Cao moved to dismiss the Mississippi Lawsuit pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(3) for improper venue, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. 46, p. 12). The day after Plaintiff filed its Motion for Protection Order (Dkt. 46), the court in the Mississippi Lawsuit issued an Opinion and Order denying the motion to dismiss, presumably allowing discovery in that action to proceed. (Dkt. 51-1).

C. The Five Pending Discovery Motions

On August 29,[1] the Court appointed me as Discovery Master under Fed. R. Civ. P. 53. (Dkt. 38). I held a telephone conference with the parties on September 25. They advised that they would complete the filing of their respective discovery-related motions and responses for my review, and they have done so.

Trek has filed three discovery motions: (1) on August 11, a Motion to Compel responses to its First Set of Discovery Requests, for sanctions, and to modify the Scheduling Order; (2) on September 25, a Motion for Protective Order to Preclude Discovery Related to ITR's pending lawsuit against Trek in Mississippi; and (3) on October 5, a Motion to Compel responses to its Second Set of Discovery Requests and for sanctions.

ITR has filed two discovery motions: (1) on August 23, a Motion to Compel responses to its first set of written discovery; and (2) on September 29, (along with Defendants Davis and Marcum) a joint motion for continuance regarding expert disclosures.

*3 As detailed below, all five discovery motions have been fully briefed. Below I review each motion and make a recommendation.

D. Analysis

1. Trek's Motion to Compel, for sanctions, and for modification of the Scheduling Order (Dkt. 31)

Trek filed its Motion to Compel responses to its “First Set of Discovery Requests, Specifically Requests for Production Nos. 9-10, 16-17, To Request Sanctions, and to Modify the Scheduling Order for Good Cause Shown” on August 17, (Dkt. 31). Defendants filed their joint Response in opposition on August 25 (Dkt. 37) and Trek filed its Reply on August 21 (Dkt. 45). For the reasons stated below, I recommend entry of an order granting the motion in part and denying the motion in part.

a. In response to Trek's Request Nos. 9, 10, 16, and 17, within 21 days, ITR should produce relevant documents from July 1, 2014 to present.

A party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). If a party fails to respond to discovery, including if that party's discovery response is evasive or incomplete, the requesting party may move for an order compelling discovery. Fed. R. Civ. P. 37(a)(1)-(4). The Court “may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(C) requires the Court to limit discovery if:

Fed. R. Civ. P. 26(b)(2)(C). Courts have discretion to decline to compel production that exceeds the bounds of fair discovery. See Carfagno v. Jackson Natl Life Ins Co, No. 5:99CV118, 2001 WL 34059032, at *2 (W.D. Mich. Feb. 13, 2001); Wilson v. Kautex, No. 07–60, 2008 WL 162645, at * 4 (N.D. Ind. Jan.14, 2008).

Trek contends that ITR failed to produce three categories of relevant documents in response to its First Requests for Production: (1) quotes to current and potential customers for the past five years (No. 9); (2) sales information for the past five years (Nos. 10 and 17); and (3) profit information for the past five years (No. 16). (Dkt. 31, p. 4-5).

Request to Produce No. 9 requested “quotes ITR has sent to current or prospective customers for the preceding five years through the present day” (Dkt. 31-4, p. 19); Request to Produce No. 10 requested “sales data for the preceding five years through present day” (Dkt. 31-4, p. 27); Request to Produce No. 16 requested “documents relating to ITR's profits in the preceding five years to the present” (Dkt. 31-4, p. 21); and, Request to Produce No. 17 requested Defendant ITR to provide documents related to its “sales to Brandt Tractor in the preceding five years.” (Dkt. 31-4, p. 29).

*4 ITR timely responded to each request, objecting that they are “not relevant to the claims or defenses of any party, and the scope of the request is not proportionate to the needs of this litigation. Additionally, the request is overly broad and not reasonably related to the time frame in question in this lawsuit.” (Dkt. 31-4, p. 19; Dkt. 37, p. 1).[2]

ITR's relevance objection is not supported in fact or law. ITR's quotes, sales data, and profits are relevant to the claims and defenses. Trek alleges that its protected business information, including pricing, quotes, and customer information, were improperly taken by Davis and Marcum and used by ITR. (Dkt. 5, First Amended Complaint). Trek is entitled to documents from ITR which may demonstrate that the information was improperly taken and used, specifically information related to pricing and customers. In addition, Trek is entitled to documents relating to ITR's profits, which may be relevant to both liability and Trek's calculation of damages.

But ITR's objection to Trek's requested five-year duration as “not proportionate to the needs of the litigation” has merit. (Dkt. 31-5, p. 19). “Although a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted to ‘go fishing’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).

ITR contends that the alleged wrongful conduct could only have occurred after June and July 2016, when Marcum and Davis left their employment at Trek. (Dkt. 37, p. 2). In reply, Trek expands this date range arguing there was “unauthorized access of Trek's network occur[ing] at least as early as 2015.” (Dkt. 41, p. 2). Neither party appears to allege wrongful conduct before 2015. Moreover, it seems reasonable that the production go back to July 1, 2014, both to ensure that all relevant information is included, and to provide evidence regarding sales and profits for one year before the alleged wrongdoing, which may act as a baseline year for the sake of comparison to subsequent years. To remedy the overbreadth of Trek's requests, ITR may limit its production in response to Request Nos. 9, 10, 16, and 17, to documents from July 1, 2014 to the present.

*5 ITR's final objection, that the requests are overly burdensome, is not supported. The party objecting to the discovery request must specifically demonstrate “the nature of the burden.” Chubb Integrated Sys. Ltd v. National Bank of Wash., 103 F.R.D. 52, 59-60 (D.D.C. 1984). “In making a decision regarding burdensomeness, a court should balance the burden of the party interrogated against the benefit to the discovering party of having the information.” Hoffman v. United Telecommunications, Inc., 117 F.R.D. 436, 438 (D. Kan.1987).

ITR submitted the declaration of its President, Brett Clemens, alleging oppression and undue burden on ITR due to it having to search for and produce an unreasonable volume of documents. Mr. Clemens declared that ITR sends out dozens and sometimes hundreds of quotes each day. (Dkt. 37-3). The fact that ITR's production could include hundreds or even thousands of documents does not demonstrate an undue burden. The caselaw weighs heavily against finding oppression or undue burden based solely on the “voluminous amount of material which must be provided.” Luey v. Sterling Drug, Inc., 240 F. Supp. 632, 634 (W.D. Mich. 1965). The mere fact that discovery requires work and may be time-consuming is not sufficient to establish undue burden. Fagan v. District of Columbia, 136 F.R.D. 5, 6 (D.D.C. 1991).

Mindful that this will indeed be a burden to ITR, these documents appear to be at the core of what's disputed in this case. Therefore, I recommend entry of an Order compelling ITR to produce its quotes, sales documents, and documents related to profits from July 1, 2014 to the present, in response to Plaintiff's Requests for Production Nos. 9, 10, 16, and 17, within 21 days.

b. Trek's request for sanctions should be denied.

Rule 37 requires sanctions to be awarded where the movant's motion is granted. Fed. R. Civ. P. 37(a)(5). Here, because it is recommended that Trek's motion be granted in limited scope, and taking into consideration ITR's justification in refusing to produce at least a portion of the documents requested, Trek's request for sanctions should be denied.

c. Trek's request to modify the Scheduling Order should be granted.

Rule 16(b) guides the district court's issuance and modification of pretrial scheduling orders, providing that “except in categories of actions exempted by local rule, the district judge ... Must issue a scheduling order,” which must limit the time to complete discovery. Fed. R. Civ.P. 16(b)(1), (3)(A). The schedule “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4).

“The primary measure of Rule 16's ‘good cause’ standard is the moving party's diligence in attempting to meet the case management order's requirements.” Andretti v. Borla Performance Industries, Inc., 426 F.3d 824, 830 (6th Cir. 2005) (quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (internal quotation marks and citation omitted)). Additionally, when analyzing whether the good cause standard has been satisfied under Rule 16(b)(4), “Courts may also consider other factors such as prejudice to the opposing party in determining whether the good cause standard has been met.” Fed. R. Civ. P. 16 cmt., Modification for good cause (1 Fed. R. Civ. P., Rules and Commentary Rule 16, updated Feb. 2016).

Trek's motion to modify the Scheduling Order contends that a modification is necessary due to the failure of ITR to produce its relevant documents, resulting in Trek's inability to depose fact witnesses, engage expert witnesses, and complete discovery. (Dkt. 31, p. 13). Trek's position is supported for the reasons analyzed above, principally the failure of ITR to produce sales, quote, and profit related documents.

*6 Based on the current discovery disputes, the parties will not likely be completed by the current cut-off of December 15. (Dkt. 27). But Trek's request to move all dates for a period of five months, does not yet appear necessary, especially in light of the litigation having already been ongoing for a year. Trek seeks five months, claiming that Defendants will continue their obstruction and delay in producing documents. I see this argument as accepting a premise of violation, so I don't accept it. Instead, I recommend entry of an Order extending the dates in the Scheduling Order (Dkt. 27) for three months, as follows:

All other dates, including the Final Pretrial Conference and Trial will remain. (Dkt. 27). If Trek's pessimistic prediction comes true, and Defendants obstruct or delay production, Trek may ask for another extension later, but not now.

2. Trek's motion for protective order (Dkt. 46)

On September 25, Trek filed a motion with a title so long that it merits its own block quote:

ITR filed its Response on October 9 (Dkt. 51) and Trek filed its Reply on October 16 (Dkt 54). The parties advise me that the matter has been fully briefed. For the reasons stated below, I recommend entry of an order granting the motion in part and denying the motion in part.

a. Trek's motion for protective order should be granted as to the deposition of Cao and Request Nos. 65 – 70.

Limits on discovery may be effected by a protective order. Fed. R. Civ. P. 26(c) expressly states that a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” The Rule “requires the district court to balance the interests at issue, and to compare the hardship on both parties if the motion [for a protective order] is either granted or denied.” State Farm Mut. Auto. Ins. Co. v. Hawkins, No. 08-10367, 2010 WL 2560494, at *1 (E.D. Mich. June 16, 2010) (citations and internal quotations omitted). Courts have broad discretion in fashioning protective orders, including that the discovery not be had. Id. (citing Fed. R. Civ. P. 26(c)(1)(A).)

Trek's motion for protective order seeks to preclude ITR from taking Cao's deposition in this litigation and from receiving responses to Request Nos. 65 – 70 of ITR's Third Set of Requests for Production of Documents, arguing the discovery is related only to the Mississippi Lawsuit. (Dkt. 46). To carry its burden to demonstrate good cause, Trek contends that Cao's deposition and the Defendants' requests for production are unrelated to this matter, and have been propounded to annoy, embarrass, and cause undue burden or expense. Fed. R. Civ. P. 26(c).

The law of the case supports Trek's argument of good cause. This Court's Opinion and Order Denying Defendants' Motion to Dismiss or Transfer held that this matter and the Mississippi Lawsuit involve “substantially different questions of fact.” (Dkt. 17, Opinion and Order Denying Defendants' Motion to Dismiss or Transfer, p. 291.) As the Sixth Circuit stated, “under the law of the case doctrine, findings made at one point in the litigation become law of the case for subsequent stages of that same litigation.” Rouse v. Daimler-Chrysler Corp., 300 F.3d 711, 715 (6th Cir. 2002). See In re Kenneth Allen Knight Trust, 303 F.3d 671, 677 (6th Cir. 2002) (issues decided at an early stage of litigation either explicitly or by necessary inference for the disposition constitutes the law of the case). Accordingly, because the law of the case holds that the two matters are not related, Trek has demonstrated good cause for a protective order.

*7 ITR's Third Set of Requests for Production of Documents, Requests No. 65-70, seek documents that are only relevant to the Mississippi Lawsuit. Request Nos. 65 and 66 ask for production of documents that “pertain to ITR” that were saved on personal computers of former ITR employees Cao and Virk. (Dkt. 46, p. 9). Request Nos. 67, 68, 69, and 70 ask for documents held by former ITR employees Cao and Virk, and communications between them and Mr. Depiano, that “pertain to ITR.” (Dkt. 46, p. 9). The documents and communications held by former ITR employees Cao and Depiano may prove whether ITR's trade secrets were stolen as alleged in the Mississippi Lawsuit, but the documents are not relevant to the subject matter of this litigation, which involves only whether Trek's trade secrets were allegedly stolen by Davis and Marcum.

Trek has demonstrated the good cause for a protective order to enter to prevent the deposition of Cao. His anticipated testimony appears to be relevant only to the Mississippi Lawsuit. In an attempt to overcome the law of the case, ITR alleges that Cao has relevant knowledge related to Trek's use of trade secret information, as he is now a Trek employee. (Dkt. 51, p. 3). This argument does not overcome the good cause presented by Trek. Any one of Trek's employees could provide this information, including a corporate representative. The information does not need to be provided by Cao, a named defendant in the Mississippi Lawsuit.[3] Avoiding duplicative discovery also serves the overarching interpretation that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

Because this Court has held that the two lawsuits should remain separate, the discovery should proceed separately, and should not be duplicative. Therefore, I recommend that the Court grant Trek's Motion for Entry of a Protective Order (Dkt. 46), precluding ITR from taking Cao's deposition and absolving Trek from answering Requests No. 65-70 of Defendants' Third Set of Requests for Production of Documents.

b. Trek's Motion should be denied as to Request No. 71, and Trek should be ordered to produce documents within 21 days.

ITR's Request No. 71 asks Trek to “[p]roduce all packing slips, invoices and sales quotes that Trek has sent to ITR from 2011 to the present.” (Dkt. 46, p. 10). Trek has moved for a protective order to enter precluding it from responding. (Dkt. 46, Trek's Motion). Trek's Motion lacks any argument as to why good cause exists for a protective order as to Request No. 71, stating only that it generally requests documents related to the Mississippi Lawsuit. (Dkt. 46, pp. 9-10).

ITR's Response argues that the documents may demonstrate that Trek disclosed its alleged trade secrets to ITR before they were allegedly stolen by Davis and Marcum. (Dkt. 51, p. 8). This inquiry may be relevant. A party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). Accordingly, I recommend that this Court order Trek to produce documents in response to Request No. 71 of Defendants Third Set of Requests for Production within 21 days.

3. Trek's Motion to Compel responses to its second set of discovery requests to ITR (Dkt. 48)

*8 On October 5, Trek filed its second motion to compel, requesting an order compelling Defendants to produce documents in response to Trek's Second Set of Discovery Requests, and for sanctions. (Dkt. 48). Defendants filed a Joint Response on October 19 (Dkt. 57). Trek filed its Reply on October 26 (Dkt. 61).

Trek's Second Set of Discovery includes 54 requests to admit, 18 interrogatories with numerous subparts, and 27 requests for production. (Dkt. 48-2). Trek's motion seeks only to compel ITR to produce documents and computers for imaging, in response to Request Nos. 19 and 21-27. The matter has been fully briefed. For the reasons stated below, I recommend that this Court grant the Motion in part and deny it in part.

a. ITR should be compelled to produce its sales and profit documents from July 1, 2014 to present, within 21 days, in response to Request Nos. 19, 26, and 27.

A party may obtain discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). If a party fails to respond to discovery, including if a response is evasive or incomplete, the requesting party may move for an order compelling discovery. Fed. R. Civ. P. 37(a)(1)-(4). The Court “may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1).

Trek's Request Nos. 19, 26, and 27 seek documents from ITR related to “quotes ITR presented to Brandt Tractor,” “sales information related to ITR's sales to Brandt Tractor,” and “profit information related to ITR's sales to Brandt Tractor”; each for the period “from 2011 to the present day.” (Dkt. 57-1, pp. 2 and 4). ITR provided a general objection that this set of discovery is “duplicative of [Trek's] first set of discovery requests” and therefore ITR will not restate its answers. (Dkt. 57-1, p. 1). ITR is correct that Trek previously asked in its first set of discovery for documents related to profits, quotes, and sales information, and those specifically related to ITR's business with Brandt Tractors. For example, Trek asked for quotes in Request No. 9, sales data in Request No. 10, profits in Request No. 16, and “sales to Brandt Tractor” in Request No. 17. (Dkt. 31-4, Trek's First Discovery, pp. 19, 27, 21, and 29). But because ITR failed to respond to Trek's initial set of discovery, ITR's attempts to relate back to the previous responses merely repeats their previous nonresponsiveness, which haven't grown more responsive with time.

For the same reasons that support the recommendation above that ITR be compelled to produce documents in response to Trek's First Set of Discovery, ITR should produce documents in response to Request Nos. 19, 26, and 27 in Trek's Second Set of Discovery.

ITR's objection to production of documents “since 2011,” as “not reasonably related to the time frame in question in this lawsuit” (Dkt. 57-1, p. 2) has merit, as do the durational objections above. For the reasons stated above, the production need only go back to July 1, 2014. To remedy the overbreadth of Trek's requests, ITR may limit its production in response to Request Nos. 19, 26, and 27 to documents from July 1, 2014 to the present.[4]

*9 The remaining boilerplate objections proffered by ITR should be rejected, because the responses don't say why the requests are objectionable. See Fed.R.Civ.P. 34(b)(2)(B) (the response must “state an objection to the request, including the reasons”); PML North Am. L.L.C. v. World Wide Personnel Servs. of Virginia, Inc., 2008 WL 1809133 at *1 (E.D.Mich. April 21, 2008) (boilerplate objections are equivalent to not making objections at all).

Accordingly, I recommend that this Court order ITR to produce documents within 21 days related to its sales and profits, in response to Request Nos. 19, 26, and 27, from July 1, 2014 to present.

b. ITR should be compelled to produce documents within 21 days related to Michigan and Western markets from July 1, 2014 to present, in response to Request Nos. 24 and 25.

Trek's Motion next seeks to compel ITR to produce “all sales information from 2011 to present” and “all profit information from 2011 to present” related to “Michigan and Western markets on Trek0014896-14915.” (Dkt. 48, p. 2). Having held above that ITR should be compelled to produce its sales and profit documents in response to Trek's First Set of Discovery, Request Nos. 10 and 16, ITR's documents should already include the “Michigan and Western markets” requested in the Second Set of Discovery, Request Nos. 24 and 25.

And, as articulated in more detail above, because neither party appears to allege wrongful conduct before 2015 it seems reasonable that the production only go back to July 1, 2014. Production from this time period should cure ITR's objection that the documents are “not proportional to the needs of this lawsuit” and the production is otherwise unduly burdensome. (Dkt. 57-1, p. 3). ITR may limit its production in response to Request Nos. 24 and 25 to documents from July 1, 2014 to the present.

c. ITR should be compelled to produce the work (not personal) computers used by Clemens or Krummel from July 2014 to the present, within 14 days, to be imaged by a third-party vendor.

Trek's Request Nos. 21 and 22 ask for production of the “personal and work computer[s], including their hard drives” of ITR's President Mr. Clemens and its IT professional Mr. Krummel, without limitation. (Dkt. 57-1, p. 2). ITR timely objected that the requests are “too broad,” “not proportional to the needs of this lawsuit,” and “limitless in time and unduly burdensome.” (Dkt. 57-1, p. 2).

The Sixth Circuit has explained that forensic imaging and production of opposing parties' computers should be used sparingly: “[C]ourts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantial in nature.” John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir.2008) (bracket and internal quotation marks omitted). The need for forensic imaging must outweigh the risk of improperly exposing private, personal information. Id.

Trek argues that the computers owned by ITR and used by Clemens and Krummel may contain relevant evidence. Trek provided evidence, including the declaration of its controller Jungbae Kim, that the two individuals may have assisted Defendants Marcum and Davis's alleged theft of Trek's trade secrets. (Dkt. 48, pp. 7-8; Dkt. 48, Ex. 5, Trek Declaration, Ex. 5 at ¶6; and Dkt. 61, p. 5). In situations where a party can show improper conduct on the part of the responding party, a forensic examination may be appropriate. Diepenhorst v. City of Battle Creek, No. 1:05–CV–734, 2006 WL 1851243, at *2 (W.D. Mich. June 30, 2006) (citing In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir.2003)).

*10 The alleged theft of trade secrets, combined with the evidence presented by Trek, demonstrates that there is a need for forensic imaging of ITR's computers used by Clemens and Krummel, for the harvesting and production of data responsive to Request Nos. 9, 10, 16, and 17 of Trek's First Set of Discovery and Request Nos. 19, 23, 24, 25, 26, and 27 of Trek's Second Set of Discovery. The computers to be produced and imaged are only those devices owned and/or controlled by ITR, not any owned personally by Clemens or Krummel.

To limit the risk for any disclosure of personal information, I recommend that the forensic imaging of any computer be conducted under the following guidelines:

*11 In an attempt to address ITR's objection that the computer imaging is “not proportional to the needs of this lawsuit” (Dkt. 57-1, p. 3) the costs associated with retaining the ESI vendor, to image the devices, for the ESI vendor to provide the documents to Trek, and for an electronic copy to be provided to ITR, will be borne by Trek.

Accordingly, ITR should be compelled to provide the computers that it owns or controls that were used by Clemens or Krummel from July 1, 2014 to the present, within 14 days. Documents located on the devices that are responsive to Request Nos. 9, 10, 16, and 17 of Trek's First Set of Discovery and Request Nos. 19, 23, 24, 25, 26, and 27 of Trek's Second Set of Discovery will be located and produced according to the above procedures. Trek may, at any time before receipt of the imaged files, withdraw its Request Nos. 21 and 22.

d. Trek's Request Nos. 21 and 22 for production of the “personal” computers of Clemens and Krummel should be denied.

Trek's Request Nos. 21 and 22 also ask for production of the “personal... computer[s], including their hard drives” of ITR's President Clemens and its IT professional Krummel, without limitation. (Dkt. 57-1, p. 2). As the Sixth Circuit explained in John B. v. Goetz, 531 F.3d 448, 460 (6th Cir.2008), the need for forensic imaging must outweigh the risk of improperly exposing private, personal information.

Here, there is no adequate showing that the “personal” computers should be produced that overcomes the risk of exposing personal information. Trek failed to present any legal authority for its position that the Court could compel the production of personal computers from employees of a party.[5] Accordingly, I recommend that Trek's Motion to Compel, as it relates to production of the personal computers of Clemens or Krummel, in response to Request Nos. 21 and 2, be denied.[6]

e. ITR should be compelled to produce firewall logs, internet usage logs, and web browsing histories, from July 2014 to the present, within 21 days.

Trek's Request No. 23 asks for ITR to produce its firewall logs, internet usage logs, and web browsing histories from January 2014 to the present. (Dkt. 57-1, p. 3). ITR timely responded with objections stating that the request is “too broad, and its scope extends to documents not relevant to the claims or defenses of any party and is not proportional to the needs of this lawsuit” and that it is “unduly burdensome.” (Dkt. 57-1, p. 3).

ITR's boilerplate objections do not expressly state the reason why the request is objectionable, as required by the court rule. See Fed.R.Civ.P. 34(b)(2)(B) (the response must “state an objection to the request, including the reasons”); PML North Am. L.L.C. v. World Wide Personnel Servs. of Virginia, Inc., 2008 WL 1809133 at *1 (E.D.Mich. April 21, 2008) (filing boilerplate objections is like filing no objections at all).

*12 ITR's attempt to expand its objections in its response to Trek's motion does not carry its burden to demonstrate that the discovery requests are not proportional or unduly burdensome. ITR contends that it “will suffer a great burden” and “have to collect this data from dozens of ITR employees' individual computers.” (Dkt 57, p. 17.) These arguments do not demonstrate an undue burden. The case law is heavily against finding oppression or undue burden based solely on the “voluminous amount of material which must be provided.” Luey v. Sterling Drug, Inc., 240 F. Supp. 632, 634 (W.D. Mich. 1965). It is well-settled that the mere fact that discovery requires work and may be time-consuming is not sufficient to establish undue burden. Fagan v. District of Columbia, 136F.R.D. 5, 6 (D.D.C. 1991); see also U.S v. Marsten Apartments, Inc., 1997 U.S. Dist. LEXIS 14262, *4-6 (E.D. Mich. 1997).

As stated above, the relevant time period is limited to July 1, 2014. Accordingly, ITR should be compelled to produce its firewall logs, internet usage logs, and web browsing histories, from July 1, 2014 to the present, in response to Request No. 23, within 21 days.

4. ITR's Motion to Compel and for Sanctions (Dkt. 36)

On August 23, ITR filed a Motion to Compel, seeking that “Trek [ ] provide proper and sufficient discovery responses and award sanctions for the conduct that necessitated the bringing of this motion.” (Dkt. 36). Trek filed its Response on September 8. (Dkt. 42). ITR filed its Reply on September 21 (Dkt. 45).

ITR's Motion to Compel contends that Plaintiff failed to produce facts and documents regarding two specific categories: (1) Trek's damages; and (2) identification of the “trade secret” information. The matter has been fully briefed. For the reasons stated below, I recommend entry of an order granting the motion in part and denying the motion in part.

a. ITR's Motion to Compel Trek to supplement its Rule 26 disclosures with a computation of damages should be denied.

The Court may compel discovery that is “relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). It is well established that courts have discretion to decline to compel production where the request in question exceeds the bounds of fair discovery. See Carfagno v. Jackson Natl Life Ins Co, No. 5:99CV118, 2001 WL 34059032, at *2 (W.D. Mich. Feb. 13, 2001); Wilson v. Kautex, No. 07–60, 2008 WL 162645, at * 4 (N.D. Ind. Jan.14, 2008).

ITR's Motion to Compel alleges that Trek failed to meet its Rule 26(a) obligation to provide a computation of damages. Rule 26(a)(1) deals with “initial disclosures” and provides that a party must, without awaiting a discovery request, disclose the identity of persons likely to have discoverable information; copies of relevant documents in the party's possession; a computation of damages; and any relevant insurance agreement. Rule 26(a)(2) governs “disclosure of expert testimony.”

In an attempt to meet its obligation to provide a calculation of its damages, Trek's Rule 26 disclosures provided specific categories of alleged damages. At this stage in the litigation, because (as outlined above) Trek lacks documents regarding ITR's sales and profits, the documents necessary to support such a calculation, it would inappropriate to compel Trek to provide a more detailed calculation of its damages.

Rule 26 protects ITR from any prejudice. Rule 26(a)(2) requires parties to disclose expert witnesses and to furnish an accompanying expert report. Rule 26(a)(3) requires additional disclosures once the case gets closer to trial, including expected witnesses and exhibits. And Rule 26(e) imposes a duty to supplement previous discovery. In light of the required disclosures, Trek's duty to supplement, and the time remaining before the July 2018 trial, Trek's answers providing categories of potential damages are sufficient. Trek will, however, have a duty to supplement after ITR produces the additional information.

b. ITR's Motion to Compel responses to Interrogatory No. 1 and Request for Production No. 49, regarding damages, should be denied.

*13 ITR's Motion to Compel next argues that Trek failed to provide a computation of damages in response to ITR's First Set of Interrogatories and Requests for Production of Documents, which sought damage information through Interrogatory No. 1 and Request to Produce No. 49. (Dkt. 36-3). On June 22 and July 12, Trek responded to ITR's discovery with categories of potential damages. (Dkt. 31-3, p. 4). Trek stated that it could not provide a more specific calculation because it has not had “an opportunity to analyze Defendants' financial information or take other discovery.” (Dkt. 31-3, p. 4). This argument is especially true here, because damages related to the theft of trade secrets are difficult to calculate and may require opinions of experts. See Avery Dennison Corp. v. Four Pillars Enter. Co. 45 Fed App'x 479, 485 (6th Cir. 2002).

ITR's refusal to produce documents regarding sale and profits, which is the subject of Trek's Motion to Compel discussed above, has prevented Trek from providing a specific calculation of damages. Therefore, ITR's Motion to Compel supplemental answers to Interrogatory No. 1 and Request for Production No. 49 should be denied without prejudice. There is “no reason to order plaintiffs to produce anything they do not yet have.” Contract Design Group, Inc. v. Wayne State Univ., No. 10-14702, 2012 WL 12930952, at *1 (E.D. Mich. Mar. 27, 2012). Trek is, however, reminded of its continuing duty to amend and supplement its Rule 26 disclosures and answers to discovery as the information becomes available.

c. ITR's Motion to Compel responses to Interrogatory Nos. 2, 3, 7-9, and 16, and Request for Production No. 50, regarding trade secrets, should be denied.

ITR's Interrogatory Nos. 2-3, 7-9, and 16 and Request for Production No. 50 seek information related to the alleged theft of trade secrets and how that information was used to unfairly compete. (Dkt. 36-3). On August 3, Trek provided objections and responses. (Dkt. 36-5).

ITR alleges that “Trek responded to each request for such information with a series of objections that the request is ‘premature' and/or that Trek cannot respond to this request without first having access to Defendants' financial information.” (Dkt. 36, p. 11). But Trek's answers to the allegedly offending interrogatories provided substantially more than the two objections. For example, in response to Interrogatory No. 2, Trek identified the pieces of information that contain its trade secrets by referring to paragraphs 13-17 of the First Amended Complaint and further directing ITR to review its responses to Requests for Production Nos. 32-33 and 50-52. (Dkt. 36-5, p. 5). In response to Interrogatory No. 9, requesting identification of trade secret information accessed by Defendants, Trek identified information on its EZQUOTE system, including sales information, financial information, purchasing data, inventory systems, unique reference numbering system, human resources data, and customer information. (Dkt. 36-5, pp. 15-16). Similar responses were provided by Trek for Interrogatory Nos. 3, 8, and 16.

Trek's answers are sufficient. ITR's Motion to Compel Responses to Interrogatory Nos. 2, 3, 7-9, and 16, and Request for Production No. 50, regarding trade secrets, should be denied. Trek is, however, once again reminded of its continuing duty to supplement as discovery proceeds.

d. ITR's Motion to Compel supplemental responses to Requests for Admissions should be granted in part.

ITR alleges in its Motion to Compel that Trek improperly objected and qualified its answers to Requests for Admission Nos. 4, 6, 16, 17, 18, 19, 40, and 41, in violation of Rule 36. (Dkt. 36, p. 13). ITR further alleges that Trek's relevance objection to Requests for Admission Nos. 38 and 39 are improper. (Dkt. 36, p. 14.)

*14 Under Rule 36, a party may serve a written request to admit the truth of matters relating to: “(A) facts, the application of law to fact, or opinions about either; and (B) the genuiness of any described documents.” Rule 36(a)(4) requires that “when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.” Fed. R. Civ. P. 36(a)(4).

Fed. R. Civ. P. 36(a)(6) allows a party to move to determine the sufficiency of an answer or objection to a request for admission. “On finding that an answer does not comply with this rule, the court may order that the matter is admitted or that an amended answer be served.” Fed. R. Civ. P. 36(a)(6).

1. Trek's responses to Requests for Admission Nos. 4, 17, 18, and 19 are inadequate, and should be amended within 14 days.

Trek's responses to ITR's Requests for Admission Nos. 4, 17, 18, and 19, avoid any meaningful response and are improperly evasive. For example, in response to Request No. 4, requesting whether Trek discloses its products' description to its customers and/or third parties, Trek provided the following:

Trek first qualifies the denial based on its insertion of “the entirety” as a qualifier to the description. Trek then qualifies the denial based on whether the information is provided with notice that it is a trade secret. And finally, Trek qualifies the denial based on speculation that it requires a legal conclusion related to whether a partial disclosure strips the information of trade secret protections. Nowhere does Trek actually admit or deny whether it discloses a products' description to customers or third parties, even if the response is properly qualified. (See e.g. Trek's Response to Request No. 6, with proper qualifications, discussed below). An admission or denial, even a qualified admission or denial, must be provided.

Request Nos. 17, 18, and 19 ask Trek to “admit that Trek does not identify within Trek's [inventory information database (No. 17), customer information database (No. 18), and EZQUOTE (No. 19) ] which, if any, information is a ‘trade secret.’ ” (Dkt. 36-5, pp. 11-12). In response, Trek provides denials of facts not requested, including that the databases themselves may be trade secrets, that public information contained in a database doesn't render it not a trade secret, that Trek takes steps to protect its databases, and that a limited disclosure doesn't strip the trade secret information of its protections. (Dkt. 36-5, p. 12). These facts were not requested. Trek's responses fail to admit or deny whether information in its databases is identified as a trade secret. Again, Trek must provide an admission or denial, and did not.

Having found that Trek's responses to Requests Nos. 4, 17, 18, and 19, including the objections and “presumptions” of facts that do not appear in the request, are improper, I recommend that this Court order Trek, per Rule 36, to amend its responses with admissions or denials within 14 days.

2. Trek's responses to ITR's Requests for Admission Nos. 6, 16, 40, and 41 are adequate.

*15 Trek's responses to ITR's Requests Nos. 6, 16, 40, and 41 contain objections and appropriate qualifications to the overly broad and speculative portions of the requests, followed by admissions or denials to each part that could be fairly responded to. See Phillips v. United Parcel Serv., Inc., 08-CV-13978, 2010 WL 746246, at *1 (E.D. Mich. March 2, 2010) (holding that answers to requests for admissions are “sufficiently answered with a denial and [a] properly qualified response to the speculative portion.”)

Request No. 6 asks Trek to “[a]dmit that Trek discloses its products' model specifications to its customers and/or third parties.” (Dkt. 36-4, p. 7). In response, following its objections, Trek provided that “[g]enerally product model specifications are not disclosed.” (Id.) The remainder of Trek's response appropriately qualified its answer due to the breadth and speculative nature.

Request No. 16 asks Trek to “[a]dmit that Trek did not have formal training concerning what information Trek considered to be a ‘trade secret.’ ” (Dkt. 36-4, p. 11). In response, following its objections, Trek provided that it “denies this request to the extent that it suggests Trek employees receive no training relating to the information Trek considers to be ‘trade secret’[.]” (Id.) The remainder of Trek's response appropriately qualified its answer due to the breadth and speculative nature. While there is a lot of qualification, Trek did answer: it denied.

Request Nos. 40 and 41 ask Trek to “[a]dmit that Trek employees sometimes are present in ITR's offices” and to “[a]dmit that Trek employees sometimes use the Wi-Fi available at ITR's offices.” (Dkt. 36-5, pp. 21-22). In response, following its appropriate objections to the unlimited scope and timeframe, Trek denies each request to the extent it suggests that the presence at the office or use of Wifi is “for legitimate business purposes on behalf of Trek.” (Dkt. 36-5, pp. 22-23). The qualification regarding the business purpose of Trek is appropriate under Rule 36.

Having found that Trek's qualified responses to Requests Nos. 6, 16, 40, and 41 are appropriate, ITR's Motion to Compel Trek to amend its responses should be denied.

3. Trek's objections to Requests for Admission Nos. 38 and 39 are adequate.

ITR's Request for Admission Nos. 38 and 39 ask Trek to admit information related to “competitors' part numbers.” Specifically, Request No. 38 asks Trek to admit that its “business systems contain competitors' part numbers” and Request No. 39 asks Trek to admit “that for some parts Trek sells, the EZQUOTE system can identify a part for a customer if that customer enters a competitor's part number[.]” (Dkt. 36-5, p. 20). In response, following objections regarding undefined terms used in each request, Trek objected that the requests are not relevant and “seek information pertaining to the allegations” in the Mississippi Lawsuit. (Dkt. 36-5, pp. 20-21).

Trek's objection is well placed. Trek's alleged theft of competitor's part numbers and whether they are in Trek's databases, while apparently relevant to the Mississippi Lawsuit, are not relevant to this lawsuit. For the same reasons articulated above in support of the Recommendation for an order granting Trek's Motion for Protective Order (Dkt. 46), Trek's objections in response to Requests No. 38 and 39 are adequate. See Dkt. 17, Opinion and Order Denying Defendants' Motion to Dismiss or Transfer, p. 291 (holding that this litigation and the Mississippi Lawsuit involve “substantially different questions of fact.”)

*16 ITR's Motion to Compel Trek to amend its responses to Request Nos. 38 and 39 should be denied.

5. ITR, Davis, and Marcum's, Joint Motion for Continuance regarding Expert Disclosures (Dkt. 47) should be denied as moot.

On September 29, 2017, Defendants ITR, Davis, and Marcum, filed a joint motion for continuance, requesting entry of an amended Scheduling Order delaying the date upon which Defendants are required to provide expert disclosures. (Dkt. 47). Plaintiff filed its response on October 12, providing that, consistent with its motion to modify the Scheduling Order (Dkt. 31), it also requires more time to provide its expert disclosures due to ITR's failure to answer discovery. (Dkt. 53).

Having recommended granting Trek's motion to amend the Scheduling Order due to ITR's failure to produce documents, and to provide a three-month extension of the current Scheduling Order (Dkt. 27), Defendants will receive the relief they request: a staggered date to provide expert disclosures after Trek provides its disclosures.

Because an Order granting Trek's motion to modify the Scheduling Order would render ITR's Motion moot, I recommend that it be denied.

III. Conclusion and Summary of Recommendation

For the reasons stated in this Report and Recommendation, I recommend entry of an order providing the following relief:

IT IS ORDERED that Trek's Motion to Compel (Dkt. 31) be GRANTED IN PART AND DENIED IN PART as follows:

IT IS FURTHER ORDERED that Trek's motion for protective order (Dkt. 46) be GRANTED IN PART AND DENIED IN PART as follows:

IT IS FURTHER ORDERED that Trek's Motion to Compel responses to its Second Set of Discovery Requests and for sanctions (Dkt. 48) be GRANTED IN PART AND DENIED IN PART as follows:

IT IS FURTHER ORDERED that ITR's Motion to Compel responses to its first set of written discovery (Dkt. 36) be GRANTED IN PART AND DENIED IN PART as follows:

IT IS FURTHER ORDERED that Defendants ITR, Davis, and Marcum's, joint motion for continuance regarding expert disclosures (Dkt. 47) is DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the parties' respective requests for sanctions (Dkt. 31; 36; and 48) are DENIED WITHOUT PREJUDICE.

IV. Notice Regarding Objection to Recommendation

Per Fed. R. Civ. P. 53(f)(2), the parties may object and seek review of this Recommendation within 21 days.

Respectfully submitted,

By:

Brooks Wilkins Sharkey & Turco PLLC

401 S. Old Woodward Ave., Suite 400

Birmingham, Michigan 48009

248-971-1712; sharkey@bwst-law.com

Discovery Master