*1 Before the Court is plaintiff's motion to compel discovery responses. (Docket nos. 85,102). Defendant responded. (Docket no. 90). Upon consideration of the briefs and evidence presented, the Court concludes the motion to compel shall be GRANTED in part and DENIED in part.

Factual Background

This case arises from a contractual agreement between the parties in which Steves & Sons agreed to purchase residential doors under the Signamark brand name from Trinity Glass. In turn, under a separate agreement with Home Depot, Steves & Sons was to sell the Signamark doors purchased from Trinity Glass to Home Depot. Steves & Sons contends that in 2005, Home Depot agreed to allow Trinity Glass to supply its own doors to Home Depot on the condition that Trinity Glass “ ‘buy-back’ inventory from [Steves & Sons] and reimburse [Steves & Sons] for the cost of display units which [Trinity Glass] was to ‘take over’.” Docket no. 49, p.2. This lawsuit arises from disagreement regarding Trinity Glass' contractual obligation with Steves & Sons to pay rebates on its purchases and Trinity Glass' failure to reimburse Steves & Sons for the cost of purchased inventory and the retail displays under Trinity Glass' agreement with Home Depot. Steves & Sons asserts causes of action of breach of contract and fraud. Docket no. 49, pp. 2-6.

During the discovery phase of this litigation, Steves & Sons served upon Trinity Glass requests for production of documents and other discovery documents. Several of these discovery requests are still pending and remain unsettled. Steves & Sons' instant motion to compel seeks to resolve these pending discovery requests.

Standard of Review

“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense....” FED. R. CIV. P. 26(b)(1). Within the scope of Rule 26(b), a party may request production or inspection of any electronic information stored in any medium. FED. R. CIV. P. 34(a)(1)(A). Upon a showing of good cause, the party may obtain a court order to discover any matter relevant to the subject matter involved in the action. FED. R. CIV. P. 26(b)(1). “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. “Courts construe discovery rules liberally to serve the purposes of discovery: providing the parties with information essential to the proper litigation of all relevant facts, eliminating surprise, and promoting settlement.” Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 132 (E.D.Tex. 2003).

The party resisting discovery bears the burden of establishing lack of relevance, specifically by demonstrating the requested discovery either does not come within the broad scope of relevance under Rule 26(b)(1) or is of such marginal relevance the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Secs. and Exch. Comm'n v. Brady, 238 F.R.D. 429, 435 (N.D. Tex. 2006). The rules of broad discovery available under Rule 26 apply also to document requests under Rule 34. See Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D.Kan. 2003).

DISCUSSION

1. Responses to Discovery Requests

A. Electronic Communications

*2 In this motion, Steves & Sons seeks to compel Trinity Glass to respond to its third request for production of documents, specifically Requests 1-4 and 6-30. Steves & Sons states these requests seek “electronic communications, e-mails, hard copies and computer files from Kim Bray, Ki Ham, Johnny Ham, Johnny Horton, Jim Wilson and Jim Aelick and the company's version of documents produced by Steves & Sons” pertinent to the parties' dealings regarding the Signamark Door program. Plaintiff's motion to compel, docket no. 85, pp. 1-2. All of these production requests sought any electronic files contained in these employees' computers or contained in Trinity Glass' and its affiliates' computer servers. Docket no. 85, exh. A. In response to the discovery requests, Trinity Glass stated it already produced everything in its possession responsive to these requests, the electronic files on the computers did not exist, or the computer servers did not exist. Id.

In this motion to compel, Steves & Sons cites to its deposition of Trinity Glass' National Account Manager, George Nonemaker, to show Steves & Sons failed to fully comply with the requests for production of documents and similar documents requested in the deposition duces tecum. Trinity Glass responds to Steves & Sons' motion to compel, stating it produced everything in its possession responsive to these specific discovery requests. Trinity Glass opposes Steves & Sons' characterization of Nonemaker's deposition testimony and states Nonemaker testified he produced everything in his possession.

In his deposition, Nonemaker stated he had not seen the duces tecum requests for his deposition and his attorney did not request that he bring any of the noticed items in the duces tecum. Docket no. 85, exh. C, pp. 10,26. Nonemaker testified he worked from home on a company computer during the relevant period and engaged in email discussions within Trinity Glass and with employees of Home Depot regarding the factual matters forming the basis of this action. Id. at pp. 10-11, 25-26. While he stated he most likely threw out his handwritten notes concerning Trinity Glass' negotiations and dealings with Home Depot, there would have been emails to his supervisors Kim Bray, Ki Ham, and Johnny Ham concerning the same matter. Id. at pp. 10-12, 25-26, 61, 63-64, 142-143. Steves & Sons asserts in this motion to compel that Trinity Glass failed to produce any electronic documents from Nonemaker's computer pertaining to any of these referenced email communications either within Trinity Glass or with Home Depot.

Nonemaker's deposition testimony shows Trinity Glass has not been completely diligent in participating in and responding to discovery, particularly the production of electronic communications between Nonemaker and Kim Bray, Johnny Ham and Ki Ham. Nonemaker's testimony also shows Trinity Glass' attorney acted with blatant disregard of the noticed deposition duces tecum. Trinity Glass objected only to item #6 of the duces tecum, yet counsel made no effort to see that Nonemaker brought the remaining documents to his deposition. See defendant's response, docket no. 90, exh. P. Aside from its continued assertion that it possesses none of the requested discovery, Trinity provides no affidavit or other document to refute Nonemaker's admissions. Instead, Trinity Glass excuses Nonemaker's testimony as taken out of context and incomplete and blames Steves & Sons for its misrepresentations of Nonemaker's testimony. However, this Court finds upon examination of the deposition testimony that Nonemaker did admit he did not produce all of the requested documentation of his emails and computer files, and his testimony did show Trinity Glass' attorney failed to show him the deposition duces tecum. This testimony is sufficient to show Trinity Glass failed to fully respond to the discovery requests, at least, as they pertain to e-mails received from and sent by George Nonemaker and failed to adequately respond to the deposition duces tecum. Although it pertains only to Nonemaker, this testimony also raises doubt regarding Trinity Glass' diligence and candor in responding to other requested discovery.

*3 Trinity Glass' response does not show, nor does Trinity Glass allege, the requested information is privileged or is not relevant to an asserted claim or defense, the only basis to exclude this requested discovery. As the party resisting discovery, Trinity Glass bears the burden of establishing lack of relevance to preclude disclosure. Further, because Steves & Sons presents unrefuted evidence that Trinity Glass failed to fully respond to, at least, a portion of the requested discovery, the Court finds Steves & Sons' motion to compel these named discovery responses shall be GRANTED.

Based upon Trinity Glass' continued failure to act in good faith to produce the requested discovery, Steves & Sons requests that this Court order forensic mirror imaging of Trinity Glass' computers and the computers of the named parties to ensure complete retrieval of the requested discovery. The Court finds this request meritorious. See Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 640-642 (S.D.Ind. 2000); Triton Energy Ltd. Secs. Litig., No. 5:98CV256, 2002 WL 32114464 at *5-*6 (E.D.Tex. 2002)(unpublished). However, the Court recognizes this procedure could be invasive to Trinity Glass' business, could potentially expose proprietary information, or could result in accidental disruption of files. Therefore, before going through the necessary protocol to engage in forensic mirror imaging, the Court concludes Trinity Glass shall have one, final opportunity to completely satisfy Steves & Sons' third request for production of documents and duces tecum of Mr. Nonemaker's deposition. Trinity Glass may not assert any objection to any request and may not assert the requested documents have already been produced. Further, with regard to requests 16-23, the Court finds Trinity Glass' assertion “no server exists” to be inadequate. If such statement is true, Trinity Glass must still produce the requested electronic communications from any computer or from its saved or stored electronic files. Trinity Glass must produce items 1-4 and 6-30 required in Steves & Sons' third request for production of documents and all items listed in Nonemaker's duces tecum, to Steves & Sons' satisfaction, on or before May 5, 2008. If Trinity Glass fails to produce the requested discovery to Steves & Sons' satisfaction on or before this date, the Court shall order forensic mirror imaging to take place on or before May 19, 2008, utilizing the protocol described in Simon Property Group. Following review of the items, Steves & Sons shall determine whether further deposition testimony from Nonemaker is required. If so, Steves & Sons shall file a proper motion with the Court explaining the need for such deposition.

B. Organizational Documents

By Order dated May 30, 2007, this Court granted Steves & Sons' motion to compel production of documentation pertaining to Trinity Glass' net worth in 2002-2006 and information concerning its organization structure and names of shareholders. Docket no. 38, pp. 5-7. In this motion to compel, Steves & Sons requests another order compelling production of this same information. Steves & Sons' attorney since informed the Court these requests have been satisfied except for the production of income tax returns or other comparable documentation of Trinity Glass' net worth; however, Steves & Sons does seek sanction against Trinity Glass for failing to timely comply with this Court's Order dated May 30, 2007 with regard to all of these requests. Therefore, the Court will only address the matters regarding production of net-worth discovery and sanctions.

*4 In this motion to compel, Steves & Sons states Trinity Glass produced balance sheets for the requested years, but redacted all number figures except the total figures for Assets, Liabilities and Equity.[1] Steves & Sons presents no objection to the produced balance sheets other than they are incomplete and not timely submitted. Review of the submitted balance sheets reveals the redacted versions are sufficient for Steves & Sons to discern Trinity Glass' net worth for the pertinent years. However, given the difficulty encountered in retrieving these documents, the Court finds a verification of their accuracy and truthfulness to be appropriate. Steves & Sons' motion to compel full production of Trinity Glass' balance sheets for the pertinent years is DENIED; however, Trinity Glass will need to provide appropriate verification of the veracity of the information contained within the balance sheets.

Review of the case history and evidence presented reveals Trinity Glass did not submit documents to satisfy this Court's Order dated May 30, 2007 until February 2008. Docket no. 66, exh. F, I; docket no. 85, exhs. E,F,G. This evidence also reveals Steves & Sons acted diligently during this time to seek its compliance. Id. Trinity Glass offers no reasonable explanation why it took nine months to comply with a Court order that it supply simple information regarding organization structure, names of shareholders, and certification of net worth. The Court finds Trinity Glass' compliance with this Court's order dated May 30, 2007 to be untimely and contrary to and in disrespect of this Court's directive. Trinity Glass' continued disregard of its responsibility to act in good faith, to participate in and cooperate in discovery, and to facilitate the efficient progression of this litigation is disturbing. For this reason, the Court finds monetary sanctions for this conduct appropriate. See FED. R. CIV. P. 37(b)(2)(A),(C); Wachtel v. Health Net, Inc., 239 F.R.D. 81, 100-102 (D.N.J. 2006).

Steves & Sons' motion to compel production of documents pertaining to Trinity Glass' net worth is GRANTED in part and DENIED in part. On or before April 18, 2008, Trinity Glass must provide to Steves & Sons an affidavit from the party responsible for compiling the balance sheets attesting to the veracity and accuracy of the submitted documents. The Court finds monetary sanctions in the amount of $500 appropriate for Trinity Glass' failure to timely comply with this Court's order dated May 30, 2007.

C. Initial Disclosures

Steves & Sons complains Trinity Glass has failed to accurately list all persons with knowledge of the relevant facts pursuant to Federal Rule of Civil Procedure 26(a). Steves & Sons states it has learned from Trinity Glass' discovery responses that Trinity Glass' initial disclosure in this regard is insufficient. Steves & Sons requests the Court order Trinity Glass to amend its initial disclosures “to list all persons with knowledge of relevant facts.” Trinity Glass responds that Federal Rule 26(a) requires only that it list all persons “likely to have discoverable information”, and, to the extent it failed to do so, the error is immaterial.

Federal Rule of Civil Procedure 26 requires a party to provide all other parties, prior to discovery, the name and identifying information of “each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses....” FED. R. CIV. P. 26(a)(1)(A)(i). The purpose of this designation is to inform any opposing party of all persons it intends to use at trial to present evidence and to facilitate smooth and effective discovery. See e.g., Bridges v. Enter. Prods. Co., Inc., No. 3:05-cv-786-WHB-LRA, 2008 WL 723971 at *5 (S.D.Miss. 2008); Morris v. Zerlin, NO. 07-02787, 2007 WL 3231546 at *3-4 (E.D.La. 2007); Hertz v. Luzenac America, Inc., No. CIVA04CV1961LTBCBS, 2006 WL 994431 at *5-*6 (D.Colo. 2006). As precursor to discovery, the initial disclosures should provide to all parties “information essential to the proper litigation of all relevant facts....” Hertz, 2006 WL 994431 at *5. These disclosure requirements should “be applied with common sense in light of the principles of Rule 1, keeping in mind the salutary purposes that the rule is intended to accomplish. The litigants should not indulge in gamesmanship with respect to the disclosure obligations.” ADVISORY COMMITTEE NOTES TO 1993 AMENDMENTS TO FED. R. CIV. P. 26(a). Further, “[t]he rules of discovery ... do not permit parties to withhold material simply because the opponent could discover it on his or her own.” Abrahamsen v. Trans-State Express, Inc., 92 F.3d 425, 428 (6th Cir. 1996).

*5 Review of the case history reveals Trinity Glass filed its initial disclosures on April 12, 2007. Docket no. 17. In this filing, Trinity Glass listed two of its employees, Kim Bray and George Nonemaker, as having knowledge of facts relevant to the matters at issue in this litigation. Trinity Glass supplemented this initial disclosure on February 8, 2008, with its list of witnesses it intended to call at trial. Included in this list were only two other Trinity Glass employees. At the time of this supplementation, the discovery deadline had passed. See docket no. 13. Trinity Glass admits in its response it supplemented its response only after Steves & Sons sought to depose two key employees with knowledge of the facts forming the basis of the claims. Docket no. 90, p. 6.

Given the complexity of this litigation, the Court finds Trinity Glass' initial disclosures consisting of two employees to be blatantly inadequate. The supplemental disclosures, filed after the discovery deadline, to include its full list of witnesses did not remedy this gross inadequacy. In addition, the supplement was not done in the spirit of cooperation or facilitation of this litigation, but only because Steves & Sons wished to depose the named employees.

Based upon Trinity Glass' response to this request for supplementation and its conduct in failing to act in good faith to provide adequate and informative initial disclosures, the Court finds Trinity Glass has engaged in carelessness and gamesmanship as it pertains to its obligation and responsibility under Federal Rule 26(a). The Court finds Trinity Glass' attorney's cavalier attitude of “no harm-no foul” to run counter to the purpose and intent of Federal Rule 26 and his responsibilities to his client and opposing counsel. For these reasons, Steves & Sons' motion to compel supplementation of initial disclosures is GRANTED. Trinity Glass shall amend its initial disclosures on or before April 18, 2008, not only for its own protection, but because it has failed to satisfy its responsibility under Rule 26(a). Any insufficiency of any disclosure required by Rule 26 in this amendment shall result in the preclusion of any omitted person or witness from testifying at trial.

D. Trinity Glass' Version of Documents

Steves & Sons' attorney informed the Court that Trinity Glass has since produced its own form of the documents requested under this heading, and therefore, its request is now moot. However, the documents recently submitted by Trinity Glass under this heading are now the subject of another filing on March 20, 2008, “Plaintiff's Amended Objections to Authenticity.” Docket no. 110. Therefore, the Court will not address the matters raised within this motion to compel.

2. Response to George Nonemaker Subpoena Duces Tecum

Under this corresponding heading in the motion to compel, Steves & Sons moves to compel responses to the duces tecum for George Nonemaker's deposition. Steves & Sons complains Nonemaker failed to produce any documents requested in the duces tecum at his deposition or thereafter. This Court previously addressed all arguments with regard to this request in Part 1.A., the discussion regarding Responses to Discovery Requests.

3. Answer to Deposition Question

Steves & Sons seeks to compel George Nonemaker to answer a deposition question his attorney instructed him not to answer at that time. In response to this motion to compel, Trinity Glass states, “[p]laintiff does not bother to explain in its motion how this information has any bearing on the claims in this lawsuit.” Trinity Glass also contends the information is proprietary, and therefore, protected from discovery.

During a deposition examination, an objection to any form of the examination

FED. R. CIV. P. 30(c)(2).

In the deposition, Steves & Sons' attorney questioned Nonemaker regarding his knowledge of Home Depot's profit margin on the doors sold to it directly by Trinity Glass. Docket no. 85, exh. C, p. 143. Trinity Glass' attorney then engaged in an argumentative attack upon opposing counsel, demanding she explain the relevance of the question. Id. at pp. 143-144. Trinity Glass' attorney finally entered the following objection for the record, “[d]on't answer any of that information, because right now there is no relevance.” Docket no. 85, exh. C, p. 144. This attorney then, again, engaged in unnecessary and unprofessional argument demanding opposing counsel state the relevance of the question. Id. at pp. 144-146.

Pursuant to Federal Rule 30(c)(2), counsel's instruction to his client to refrain from answering the presented question was improper. The only objection entered on the deposition record was the requested information was irrelevant. This is not adequate basis to instruct a deponent not to answer a presented question. FED. R. CIV. P. 30(c)(2). If counsel objects to the relevance of a question, the testimony must still be taken subject to the objection. Id. Further, in this motion to compel, it is Trinity Glass' burden, as the party opposing discovery, to show the lack of relevance of the requested information. Trinity Glass has failed to carry this burden, as it presents no argument on this point.

Instead, Trinity Glass contends the information is protected from discovery as proprietary. In the deposition, Trinity Glass' counsel alluded to this objection, stating, “I'm not going to let him answer for profit margins and things that are proprietary and irrelevant to the case.” Docket no. 85, exh. C, p. 144. However, the fact that information is proprietary is also inadequate basis to instruct a deponent to refrain from answering. It can only be assumed counsel wished to assert the information is protected by a trade-secret privilege. However, because counsel objected only on the basis of relevance and did not assert this specific privilege, his instruction was inappropriate.

To the extent Trinity Glass now intends to assert, in response to the motion to compel, the information is privileged as a trade secret, he also fails to satisfy his burden to preclude disclosure. To protect this information under a trade secret privilege, Trinity Glass must establish the information as a trade secret and then demonstrate the harmfulness of the disclosure. Heat & Control, Inc. v. Hester Indus., 785 F.2d 1017, 1025 (Fed. Cir. 1986); Exxon Chemical Patents, Inc. v. Lubrizol Corp., 131 F.R.D. 668, 671 (S.D. Tex. 1990). If it meets these requirements, the burden shifts to Steves & Sons to establish the relevance and necessity of disclosing the trade secrets. See Heat & Control, Inc., 785 F.2d at 1025; Exxon Chemical Patents, Inc., 131 F.R.D. at 671. Trinity Glass argues only “[t]he information sought is proprietary because it concerns highly sensitive and confidential information regarding pricing.” With this single argument, Trinity Glass fails to meet its burden to protect this information under the trade secret privilege.

*7 For these reasons, Steves & Sons' motion to compel Nonemaker to answer this question is GRANTED. However, the Court finds a written answer, rather than re-convening for an oral deposition, to be adequate response at this time. Counsel may also present any follow-up questions related to this one in written form, limited to five questions. Trinity Glass is ordered to answer all submitted questions unless a valid privilege applies.

The Court finds Trinity Glass' counsel's argumentative diatribe during Nonemaker's deposition to be not only unprofessional, but also sanctionable under Federal Rule 30, which gives a court discretion to “impose an appropriate sanction...on a person who impedes, delays, or frustrates the fair examination of the deponent.” FED. R. CIV. P. 30(d)(2). In this deposition, Trinity Glass's counsel's conduct did impede, delay and frustrate the fair examination of Nonemaker. For this reason, Trinity Glass' attorney shall pay to Steves & Sons $1,000 in monetary sanctions.

As shown by the inordinate amount of discovery motions filed in this case, the Court finds the parties have developed an unfortunate habit of petty bickering and lack of cooperation. The Court hereby admonishes both parties and their attorneys that it expects them to act in good faith to conclude discovery and to comply with their obligation and responsibility to facilitate this litigation to its prompt conclusion. The parties and their attorneys are advised to work with one another in managing the remainder of discovery and this litigation in a professional and timely manner. The parties and their attorneys are instructed that cooperation and compliance are far greater advocacy tools in reaching this goal than are artful stratagem and automatic opposition. Therefore, this Court will not tolerate any efforts to stall or complicate discovery. Any action perceived by this Court to be unreasonable opposition to discovery efforts will be grounds for further sanction, monetary or otherwise.

Trinity Glass and Trinity Glass' counsel shall submit to Steves & Sons the assessed monetary sanctions on or before April 18, 2008 (Trinity Glass: $500; Trinity Glass' attorney: $1,000). Further, Trinity Glass shall submit to Steves & Sons on or before April 18, 2008 all fees and costs associated with the filing of this instant motion to compel, including reasonable attorney fees.

It is so ORDERED.