*1 This matter is before the Court on Plaintiff's Motion for a Protective Order. (ECF No. 142). As discussed below, the motion is granted in part and denied in part.

I. BACKGROUND

A. The Pleadings

Plaintiff My Pillow, Inc., and Defendant LMP Worldwide, Inc., are competitors in the pillow business. My Pillow, a Minnesota corporation, uses the word mark “MYPILLOW” in selling its pillows, while LMP, a Michigan corporation, uses the design mark “[illegible text]” in its sales. (Am. Compl. ¶¶ 6–10, 12, 14, ECF No. 62). The parties settled a previous trademark dispute brought in the Eastern District of Michigan, with a “coexistence agreement” delineating their rights and obligations moving forward so as to not infringe on the other's brand. (Am. Compl. ¶¶ 15–21). My Pillow asserts LMP has since violated that settlement agreement, thereby creating new causes of action and reviving the previously settled disputes. (Am. Compl. ¶¶ 22–89).

In its answer, LMP brought various counterclaims against My Pillow for false and deceptive advertising. (Answer ¶¶ 34–117, ECF No. 78).[1] Among the numerous false and deceptive advertising practices, LMP challenges My Pillow's reference to Mike Lindell, its CEO, as a “sleep expert” where he has no expertise or qualifications. (Answer ¶¶ 59–72). LMP asserts My Pillow made false and misleading medical claims concerning its pillows and was then limited in its ability to make such claims following a settlement with California district attorneys, included an injunction that limited its ability to make medical claims. (Answer ¶¶ 72–110). My Pillow soon returned to making medical claims in connection with its pillows following a “clinical sleep study.” (Answer ¶¶ 72–110).

B. The Subpoenas

Sleep 4 Life and Qualmed were involved in coordinating the sleep study referenced in LMP's deceptive advertising counterclaims. Sleep 4 Life was founded days before the sleep study by Dr. Simcha Cohen. Cohen had no previous experience in conducting peer-reviewed scientific research and pitched the sleep study to My Pillow by stating he could “conclusively show that [My Pillow] actually enhances the symptoms of insomnia,” that his goal was to endorse My Pillow products for nursing homes, and he was interested in a financial collaboration promoting My Pillow. After receiving the study's raw data, it was sent to a third party for analysis but that analysis was rejected by Sleep 4 Life because it was “very dissatisfied with the results.” Sleep 4 Life then “learn[ed] the program” and did its own analysis despite no experience in conducting such an analysis. The article announcing the sleep study results was edited by My Pillow executives. My Pillow shared the sleep study with, at least, Wal-Mart and Bed Bath & Beyond.

LMP served subpoenas on Sleep 4 Life and Qualmed. Sleep 4 Life and Qualmed have responded to the subpoenas, including communications with the doctors involved in the study, evidence of the payments made to the doctors, documents exchanged with the doctors, edits to the article published regarding the study, documents pertaining to the sleep study's design and methodology, and the raw data collected from the sleep study. (Decl. of Laura Meyers, Ex. F, ECF No. 145).

*2 LMP also served subpoenas on the five doctors who worked the sleep study, seeking documents related to the sleep study, communications between the doctors and Qualmed or Sleep 4 Life, communications between the doctors and My Pillow, and sleep study data. There is evidence that some of the doctors communicated using their personal email accounts, rather than using their corporate email addresses.

LMP seeks to serve subpoenas on nine My Pillow retailers: Baber's, Inc.; Bed Bath & Beyond, Inc.; CVS Health Corporation; HOM Furniture, Inc.; Jo-Ann Stores, LLC; QVC, Inc.; Sleepy's, LLC; Telebrands, Corp.; and Walmart, Inc. LMP seeks communications with My Pillow relating to the offer or sale of My Pillow's pillows, advertising or promotional material the retailer received from My Pillow, communications with My Pillow that refer to medical benefits of My Pillow's pillow or LMP pillows, documents referring to Lindell as a “sleep expert,” and sales information.

My Pillow's seeks a protective order with respect to the subpoenas issued to the doctors and its retailer customers.

II. ANALYSIS

A. Legal Standard

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). Courts “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” caused by discovery requests. Fed. R. Civ. P. 26(c)(1). Moreover, courts must limit discovery otherwise allowed by the Rules where “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.” Fed. R. Civ. P. 26(b)(2)(C)(i).

B. Subpoenas to the Doctors

As noted above, LMP seeks discovery from the five doctors involved in the sleep study conducted by Sleep 4 Life and Qualmed.

First, My Pillow argues that the requests to the five doctors are cumulative of discovery already sought from My Pillow or Sleep 4 Life. The subpoenas to the doctors seek communications between the doctors and (1) Sleep 4 Life, (2) Qualmed, (3) My Pillow, and (4) Dr. Cohen. The subpoenas also seek evidence of payments made to the doctors, documents exchanged with the doctors, edits to the article published regarding the study, documents pertaining to the design and methodology of the study, and the raw study data. My Pillow asserts that it and Sleep 4 Life have produced this information, so seeking this information from the doctors is unnecessarily cumulative and duplicative. LMP points the Court to an email where two doctors, Dr. Majumder and Dr. Zahid, used private email addresses to communicate. (Decl. of Michael Palizzi, Exs. J, L, ECF No. 154). Both those emails included Dr. Cohen as a recipient via his Sleep 4 Life email address. (Palizzi Decl., Exs. J, L).

Second, My Pillow argues that any documents that might not be covered by My Pillow and Sleep 4 Life's discovery production, such as documents sent from doctor to doctor but not shared with My Pillow or Sleep 4 Life, would be irrelevant to My Pillow's false advertising claims. Essentially, My Pillow asserts that communications it did not know about could not have impacted My Pillow's public statements about the study. Thus, My Pillow asserts these subpoena requests are merely fishing expeditions. And third, My Pillow asserts that the subpoenas are burdensome. This argument relies on My Pillow's arguments that the discovery requests are cumulative and irrelevant, however.

*3 The Court agrees that the five doctors’ document production will be mostly cumulative to the production of My Pillow and Sleep 4 Life, but the Court is not convinced that this renders the subpoenas wholly invalid. As LMP has shown, the doctors used private email addresses rather than their corporate email addresses. It is not a far stretch that even Dr. Cohen used a private email address.[2] While any communications that the five doctors had with My Pillow or Sleep 4 Life should be available from My Pillow or Sleep 4 Life, it does not follow that all communications the five doctors had regarding the sleep study either with each other or with Dr. Cohen is necessarily captured by My Pillow or Sleep 4 Life's production given the use of private email addresses that are outside the control of My Pillow and Sleep 4 Life.

True, “[n]o rule requires the requesting party to seek discovery from only one party to any given conversation.” Deluxe Fin. Servs., LLC v. Shaw, 2017 WL 7369890, at *5 (D. Minn. Feb. 13, 2017). But there is no need for LMP to require the five doctors to produce cumulative discovery that has already been produced by My Pillow or Sleep 4 Life. Even the example provided by LMP of the doctors’ private email communications was provided by Sleep 4 Life because it was sent to Dr. Cohen's corporate email address. Thus, the Court enters a protective order as to Topics 4–5 (seeking communications between the doctors and Sleep 4 Life) and 8–9 (seeking communications between the doctors and My Pillow). In so precluding this discovery from the five doctors on these topics, the Court reminds My Pillow and Sleep 4 Life of its obligations to provide any communications with any of the five doctors, regardless of which email address the doctors used.

The Court is not convinced, however, that a protective order is warranted as to communications between the five doctors and Dr. Cohen (Topics 6–7). Given that the doctors appeared to use private email addresses, it is not improbable that Dr. Cohen also used a private email address. As such, the five doctors should produce any communications and agreements between themselves and Dr. Cohen. As LMP has argued, these communications may not fall under the direct custody or control of Sleep 4 Life or My Pillow. If these documents are not within Sleep 4 Life or My Pillow's possession, the discovery requests cannot be cumulative. These documents are relevant because they show the formulation of the sleep study that LMP asserts lacked scientific merit despite My Pillow's advertising touting the scientific proof it provided. The doctors and Dr. Cohen may have discussed methods of organizing the test to conform expected results to Sleep 4 Life's stated goals of developing a business relationship with My Pillow. Indeed, as asserted by LMP, Dr. Cohen himself undertook the data analysis of the sleep study to manufacture results favorable to My Pillow's desired medical claims.

Nor is the Court convinced that a protective order is warranted as to the other discovery requests aimed at the five doctors (Topics 1 (current CV), 2 (documents relating to the article describing the sleep study), 3 (documents relating to involvement with study), 10 (documents relating to the study of My Pillow products)). As LMP has argued, the article relating to the sleep study was altered by My Pillow. It is not farfetched for LMP to inquire as to the extent My Pillow adulterated the sleep study data in presenting it to others. It makes sense for LMP to get data and related information straight from the source: the doctors who performed the sleep study. This also includes communications among the five doctors, as these inter-doctor communications may include discussions on how to organize and conduct the study given the parameters of Dr. Cohen's requirements that the study show My Pillow's medical viability for marketing to nursing homes. As such, this information is all relevant to LMP's claims that the sleep study lacked scientific merit despite My Pillow's advertisements touting otherwise.

*4 Therefore, the Court grants in part and denies in part My Pillow's protective order with respect to the subpoenas issued to the five doctors. The five doctors need not respond to Topics 4, 5, 8, and 9 so long as My Pillow and Sleep 4 Life provide all responsive discovery. The five doctors must respond to Topics 1, 2, 3, 6, 7, and 10.

C. Subpoenas to the Retailers

As noted above, LMP seeks discovery from nine retailers of My Pillow's pillows. The retailer subpoenas have 11 topics: (1) agreements between the retailer and My Pillow; (2) My Pillow sales; (3) payments made to My Pillow; (4) communications with My Pillow related to the offer or sale of My Pillow pillows; (5) advertising and promotional materials and communications from My Pillow; (6) documents and communications from My Pillow referring to medical benefits of using My Pillow pillows; (7) communications or documents from My Pillow referring to Lindell as a sleep expert; (8) communications from My Pillow referring to LMP; (9) documents referring or relating to scientific studies purporting to support My Pillow's medical claims; (10) documents discussing the truth or falsity of My Pillow's medical claims; (11) documents comparing My Pillow pillows to other pillows. (Myers Decl., Ex. G). The subpoena to Wal-Mart includes one additional topic: documents relating to the source of the statement on Wal-Mart's website regarding the My Pillow sleep study. (Myers Decl. ¶ 19). As with the subpoenas to the five doctors, My Pillow argues that the subpoenas to the retailers seek information that is cumulative of information sought from My Pillow. And, as with the other subpoenas, My Pillow argues some requests are irrelevant, overbroad, and burdensome.

For Topics 1–3, My Pillow asserts LMP could have asked for these documents from My Pillow but did not do so. As to Topics 4–8, My Pillow asserts these are cumulative of requests made to My Pillow and it has already produced or is producing such documents. My Pillow anticipates this discovery will also be responsive to Topics 9–10. Furthermore, My Pillow argues that Topics 1, 3, 4, and 11 are irrelevant because it does not relate to My Pillow's alleged false advertising. My Pillow argues that Topics 5–9 are irrelevant because My Pillow's private communications with retailers do not affect My Pillow's public advertising to consumers. Finally, My Pillow argues that Topic 10, and Topic 9 to some extent, are irrelevant because the only unique responsive documents, that is documents that My Pillow could not produce, would be the retailers’ internal communications not shared with My Pillow concerning the medical or sleep benefits of My Pillow pillows and that such discussions could not affect My Pillow's advertising.

Topics 1–3 seek relevant information: agreements between My Pillow and the retailers; My Pillow sales by each retailer; and payments made by the retailer to My Pillow. This information is relevant to LMP's claims in calculating My Pillow's revenues due to alleged false advertising. My Pillow's chief contention is that LMP should have sought the information from it instead of the retailers. The Court agrees. Rather than seeking Topics 1–3 from the retailers, it orders My Pillow provide all responsive information thereto.

Topics 4–11 and the additional topic aimed at Wal-Mart seek relevant discovery in the form of My Pillow's communications with its intermediary vendors—the nine retailers—regarding alleged false advertising, including the sleep study, medical claims, and Lindell's expertise, or breaches of the coexistence agreement. At least some of those retailers—Wal-Mart and Bed Bath & Beyond—were provided the sleep study and Wal-Mart even advertised the sleep study on its website, (Palizzi Decl., Ex. N; ECF No. 134-4, at 3). My Pillow, through its topmost executive Lindell, was discussing with advertisers what could and could not be said based on the sleep study. (ECF No. 135). These topics seek relevant information.

*5 The Court is not persuaded by My Pillow's arguments that the law of this case precludes such discovery. My Pillow's rejected false advertising claim was based “solely on a statement made by an LMP employee to a wholesale customer in a private email.” My Pillow, Inc. v. LMP Worldwide, Inc., 331 F. Supp. 3d 920, 934 (D. Minn. Sept. 6, 2018). The statement was not sufficiently disseminated to constitute advertising or promotion. Id. Here, however, LMP is seeking out advertising that passed through these nine large retailers to consumers. These statements were sufficiently disseminated and should not be considered private communications like the single email underpinning My Pillow's rejected claim.

Nor is the Court is convinced this discovery would be duplicative of My Pillow's discovery efforts. Arguably, Topics 4–8 could be sought from My Pillow. But Rule 26(b)(2)(C)(i) refers to unreasonable duplicity or cumulativeness and discovery here is overshadowed by the unfortunate reality is that there is evidence My Pillow willingly made edits to the sleep study and other materials to suit their own needs. This is not a “cross-checking” of discovery, but instead permitting LMP to seek discovery from a more reliable source than My Pillow. See Abhe & Svoboda, Inc. v. Hedley, 2016 WL 11509914, at *4 (D. Minn. Mar. 15, 2016). As such, this discovery is not unreasonably duplicative or cumulative. Likewise, Topics 9–11 may capture information duplicative or cumulative of information produced by My Pillow, but it will also gather information that My Pillow has no access to, such as how its communications with the retailers affected the retailers’ decision to sell My Pillow's products, including what role the sleep study and other allegedly false advertisements played in that decision.

Therefore, the Court grants in part and denies in part My Pillow's protective order with respect to the forthcoming subpoenas issued to the nine retailers. LMP may serve subpoenas containing Topics 4, 5, 6, 7, 8, 9, 10, and 11, as well as the additional topic directed to Wal-Mart. My Pillow shall provide responsive information to Topics 1–3; those topics shall not be served on the retailers at this time.[3]

III. CONCLUSION

Another issue invites discussion. Part of My Pillow's arguments as to the nine retailer and five doctor subpoenas is that it will be unduly burdensome for it to challenge all the subpoenas in approximately nine separate jurisdictions. Because the Court has considered My Pillow's motion on these subpoenas,[4] it further orders that My Pillow is precluded from raising further challenges to these 14 subpoenas in separate jurisdictions. The Court enters this limitation: (1) to ensure the “just, speedy, and inexpensive determination” of this action, Fed. R. Civ. P. 1; (2) to continue its close management of discovery in this matter, Fed. R. Civ. P. 26(c)(1); and (3) to ensure that discovery in this matter is not subjected to a patchwork of inconsistent decisions.

*6 Based on all the files, record, and proceedings herein, and for the reasons stated above, Plaintiff's Motion for a Protective Order, (ECF No. 142), is GRANTED IN PART and DENIED IN PART as stated herein.