ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO REQUIRE PLAINTIFF TO OBTAIN INFORMATION FROM ITS BUSINESS PARTNERS

*1 THIS MATTER is before the Court on Defendants’ Motion to Require Plaintiff to Obtain Information From Its Business Partners, filed on May 17, 2019. Doc. 29. Plaintiff failed to respond to the Motion, which constitutes consent to grant the Motion and consent that briefing is complete under Local Rule 7.1(b). The Court, having reviewed Defendants’ brief and the relevant law, and heard argument from the parties on June 28, 2019, FINDS that Defendants’ Motion is well taken in part, and thus it will be GRANTED in part and DENIED in part.

Background

Plaintiff OsteoStrong Franchising, LLC (“OsteoStrong”), is a global franchise that offers services to promote healthy joints, strong bones and muscles, and better balance flexibility through a proprietary system and methodology. Doc. 1 ¶ 11. Each OsteoStrong location is independently owned and operated. Id. Regional developers purchase the rights to license franchisees in specific locations, and in New Mexico, the regional developers are Sean and Charla Simpson (“the Simpsons”). Id.; Doc. 29 at 2. At the hearing on this matter, Plaintiff's counsel, Mr. Steele, explained that the Simpsons are Plaintiff's agents and franchisees. Doc. 51 (Clerk's Minutes).

On January 11, 2016, Defendants Nixon and Richter signed a Non-Disclosure Agreement with the Simpsons and OS New Mexico Co. LLC, DBA OsteoStrong, and the parties pursued negotiations for Defendants to become franchisees. Doc. 1 ¶ 15; Doc. 29 at 2. Defendants contend that “OsteoStrong abruptly changed core aspects of the proposed contract,” and when Defendants balked at the changes, OsteoStrong refused to finalize the contract. Doc. 29 at 2. Instead of becoming a franchisee, Defendants opened their own private business, which they argue is based on “equipment purchased on the open market” in reliance on Defendant Nixon's “own extensive business knowledge.” Id. The Simpsons threatened litigation against Defendants in New Mexico State Court, arguing that Defendants engaged in illegal competition in violation of trade secrets.[1] See id. at 2-3. Defendants then sued the Simpsons for unfair trade practices, and the Simpsons counter-sued Defendants. Doc. 51.

Defendants and the Simpsons settled the state court litigation through mediation, and during those proceedings, Defendants and the Simpsons agreed to a confidentiality agreement based on the Simpsons’ position that information in that case involved confidential trade secrets.[2] The state court issued a protective order in that case, and the parties here agree that Defendants are currently unable to disclose the documents from the state court litigation without risk of being sued by the Simpsons and/or in violation of the state court's protective order. See Doc. 51.

*2 Defendants’ Rule 26 initial disclosures in this case were due May 3, 2019. Doc. 21. By that date, Defendants’ counsel identified all relevant documents subject to disclosure and determined they all “had previously been disclosed and Bates-numbered in the State Court Litigation.” Doc. 29 at 4. Defendants’ counsel also determined that four depositions and all discovery responses from the state court litigation were relevant and subject to Rule 26(a) initial disclosure obligations. Before making their required Rule 26 initial disclosures in this case, Defendants communicated with the Simpsons’ prior counsel, Mr. David C. Kramer, to confirm that the Simpsons would not take issue with disclosure of documents or transcripts from the state court litigation to the Simpsons’ franchisor, OsteoStrong, who is now Plaintiff in this case. Doc. 29-2 at 3. Although Mr. Kramer acknowledged that franchisor/Plaintiff OsteoStrong could already have some of the information or documents subject to the state court confidentiality agreement and/or protective order, which Defendants now sought to include in their Rule 26 initial disclosures in this case, the Simpsons’ prior counsel firmly urged Defendants not to disclose “any of the documents or testimony that had been marked as confidential or which were indicated to be confidential (testimony) in the state court case, including discovery answers and responses.” Doc. 29-2 at 1. Moreover, Mr. Kramer opined that “pretty much anything related to the business, operations, finances or financing would be confidential.” Id. If Defendants’ initial disclosures in this Court included anything arguably confidential from the state court litigation, the Simpsons also threatened to seek “an order to show cause for a willful violation of the protective order and fees to have to do so.” Doc. 29-2 at 1.[3] See Docs. 29-1, 29-2; Doc. 51.

The current discovery dispute concerns the documents that are protected by the state court protective order and the Defendants’ confidentiality agreement with the Simpsons. During the discovery hearing, Plaintiff's counsel said its agents, the Simpsons, would not authorize the disclosure of the documents from the state court litigation in this case. Doc. 51. It is unclear whether franchisor OsteoStrong already has the documents from the state court litigation in its possession (but was resistant to disclosing them), or whether it would need to obtain them from its agent, the Simpsons, or from the state court by intervening in that proceeding.[4]

Defendants are perplexed by the Simpsons’ refusal to provide information from the state court litigation to their business partner and franchisor, Plaintiff OsteoStrong, particularly because the Simpsons asserted a “joint defense agreement” with OsteoStrong in the state court litigation. Doc. 29 at 3. Neither the settlement agreement, the protective order nor the joint defense agreement is part of the record before this Court. However, Defendants’ current motion contains reference to section 4 of the state court settlement agreement, which bars the Defendants here from disclosing “any confidential company or financial information” shared by the Simpsons in the state court litigation. See Doc. 29-2 at 2.[5]

Defendants filed the current motion, claiming to be caught between a rock and a hard place, namely, “do they fail to comply with their discovery obligations in the present litigation by failing to provide those documents they believe to be relevant to this litigation,” or “do they provide that information and expose themselves to yet another lawsuit[6] ...?” Doc. 29 at 5. In addition to pointing out the close business/agency relationship between franchisor OsteoStrong and regional developers the Simpsons, Defendants asked this Court to order OsteoStrong to subpoena the documents that Defendants seek to produce under Rule 26(a) because of the close familial relationships between Plaintiff OsteoStrong and the Simpsons, including: (1) regional developer Charla Simpson's sister (whose name is undisclosed) is married to the CEO and founder of Plaintiff OsteoStrong, Kyle Zagrodzky (i.e., Charla Simpson's brother-in-law is Plaintiff's CEO/founder); and (2) Plaintiff OsteoStrong's legal counsel, Matt Zagrodzky, is the brother of Kyle Zagrodzky (i.e., Charla Simpson's brother-in-law's brother is general counsel for Plaintiff OsteoStrong).[7] After Defendants filed this motion, and before the June 28, 2019 hearing (without any notice to the Court), OsteoStrong served a Rule 45 subpoena for these records to the Simpsons on June 9, 2019, and on June 24, 2019, the Simpsons filed their Motion to Quash that subpoena, which is awaiting briefing. During the recent discovery hearing, the Court asked the parties if Defendants’ motion was, therefore, moot, and Defendants said no because, since Defendants filed this motion, Plaintiff has also served discovery requests to Defendants asking for the same documents. Doc. 51. Therefore, for the reasons set forth herein, the Court will order Plaintiff to obtain the records, but it will not limit its mode of doing so to a Rule 45 subpoena.

Analysis

A. Meet and Confer Requirements Regarding Defendants’ Motion to Require Plaintiff's To File a Rule 45 Subpoena

*3 As a preliminary matter, the Court notes the passing reference Defendants made regarding compliance with Local Rule 7.1, wherein they state, “Counsel for Plaintiff has been contacted but has not offered a position with regard to this Motion, which is therefore presumed to be opposed.” Doc. 29. Rule 7.1 requires parties filing a motion “to determine whether a motion is opposed, and a motion that omits recitation of a good-faith request for concurrence may be summarily denied.” D.N.M.LR-CIV 7.1(a).[8] The duty to confer requires more than setting forth conflicting positions in written correspondence, and “to confer” means more than making a demand for compliance; it means “to hold a conference; compare views; consult together.” Hoelzel v. First Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003) (concluding an attorney's single email, stating that plaintiff intended to file a motion to compel based on defendant's refusal to respond to discovery requests, was insufficient to satisfy the requirements that parties make reasonably good-faith efforts to confer to resolve the disputed matter); see also Zuniga v. Bernalillo Cty., No. CV 11-877 RHS-ACT, 2013 WL 12333609, at *2 (D.N.M. Jan. 10, 2013) (finding parties did not satisfy meet and confer requirement under Rule 37 where the motions “merely state ‘[b]ased on the ... impasse arising from the Fed. R. Civ. P. 37 meet and confer process, the motion is deemed opposed’ ”) (emphasis in original); Naviant Mktg. Sols., Inc. v. Larry Tucker, Inc., 339 F.3d 180, 186-87 (3d Cir. 2003) (discussing insufficient “token” efforts to confer); LaFleur v. Teen Help, 342 F.3d 1145, 1152 (10th Cir. 2003) (finding sufficient conference efforts where attorneys met in person and defense counsel subsequently sent written clarification of the discovery he was requesting); Payless Shoesource Worldwide, Inc. v. Target, Corp., 237 F.R.D. 666, 670-71 (D. Kan. 2006) (certificate of compliance should describe efforts to resolve the dispute, which means more than faxing or mailing a letter to the opposing party).[9]

The mandatory good faith effort in a meet and confer conference also fulfills the delay and expense cost saving provisions of the Civil Justice Reform Act (“CJRA”), 28 U.S.C. § 471, et. seq. See Farris v. Roberts, No. CV 12-221 MV/LFG, 2013 WL 12164704, at *1–2 (D.N.M. May 3, 2013) (“The duty-to-confer requirement is not simply a technical hoop through which a litigant must jump. Rather, the duty to confer is intended to reduce litigation costs and expedite the ultimate disposition of litigation by having counsel, in good faith, attempt to resolve discovery disputes before they ripen into a formal motion.”); see also Zuniga v. Bernalillo Cty., No. Civ. 11-877 RHS-ACT, 2013 WL 3328692, at *2 (D.N.M. Mar. 21, 2013) (plaintiffs could have produced a privilege log in lieu of the motion to compel). The CJRA and the subsequent amendments to the Federal Rules of Civil Procedure in 1993 and 2000 evince an intent to simplify and expedite the litigation process and thereby reduce the delay and costs of litigation. Id. Failing to meet and confer in good faith before filing a motion not only adds to the expense and delay in the litigation process, it also consumes valuable judicial resources.

In this regard, Defendants’ counsel failed to comply with both the letter and the spirit of the Local and Federal Rules of Civil Procedure. Had the parties engaged in a proper meet and confer, at least some of the issues raised in the Motion could likely have been resolved.[10] Even during the hearing on Defendants’ motion, counsel could not recall whether he ever asked Plaintiff's counsel if he had access to the documents at issue. Doc. 51. Although the Court is inclined to deny Defendants’ Motion for failure to comply with the meet and confer requirements as set forth herein, the Court will address the Motion on the merits, as Defendants’ efforts to communicate and cooperate with Plaintiff in this case have been frustrating and difficult and include a recent order of sanctions against Plaintiff for its counsel's behavior. Id. The Court cautions both parties that any future failures to comply fully with the Federal Rules of Civil Procedure, the Local Rules, or the Orders of this Court may result in summary denial of any discovery motions submitted by either side, as well as a recommendation that sanctions be entered against the offending party or parties.

B. Rule 26 Initial Disclosures

*4 Rule 26(a)(1), in relevant part, requires a party to provide initial disclosures “without awaiting a discovery request” of “a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added).[11] Defendants must also disclose “the name, and if known, the address and telephone number 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 scope of discovery permits disclosure of “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). The federal rules set forth steps that parties must take if they seek to withhold privileged or protected information from disclosure or wish to prevent the disclosure of information sought to protect themselves from “annoyance, embarrassment, oppression or undue burden or expense.” Fed. R. Civ. P. 26(b)(5)-(c) (emphasis supplied). Where parties object to discovery issues, Rule 37 exists to encourage resolution through meeting and conferring, and after exhausting those efforts, to file a motion to compel or other discovery motion.

Here, the federal rules provide a mechanism by which Defendants can meet their initial discovery obligations by “claiming that the information is privileged or subject to protection, as trial-preparation material,” and describing the nature of the documents, communications, or tangible things not produced or disclosed, and provide enough helpful information to enable an opposing party, and subsequently the court if necessary, to make a determination about the privileged or protected nature of the communications in issue. Fed. R. Civ. P. 26(b)(5)(A). Based on counsels’ representations at the discovery hearing, both parties appear fully aware of the documents subject to protection in this case. The Court will, therefore, hold Defendants’ initial disclosure obligations in abeyance until Plaintiff has complied with the terms of this Order.

Based upon counsels’ statements at the discovery hearing, Plaintiff's access to its agent's/franchisee's records is patent, and seemingly attainable in an expedient, affordable manner. Moreover, during the hearing, Plaintiff's counsel agreed to take the steps necessary to obtain the records and seek the requisite protective measures that its business partners and agents, the Simpsons, deem lawful and necessary. Indeed, the party seeking protection bears the burden of establishing that records are entitled to such privacy. See Landry v. Swire Oilfield Serv., 323 F.R.D. 360, 383 (D.N.M. 2018). Having Defendants seek and protect records that they vehemently deny deserve protection would be misplaced.

While Defendants may be bound by an agreement and/or order that currently prevents disclosure, they should be free to make those disclosures once Plaintiff resolves the apparent conflict with its franchisees/agents, the Simpsons.[12] Because the state court entered the protective order, it retains jurisdiction to modify and/or enforce it, and this Court may not disregard it. See In re Commercial Financial Services, Inc., 247 B.R. 828, 844 (N.D. Okla. 2000) (finding that a protective order that concerns preservation of confidentiality endures beyond the closing of a case) (citation omitted); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (the court that entered the protective order retains the power to modify it). The state court judge who issued the protective order is the one who needs to balance “the need for discovery against the need for confidentiality.” See Fish v. Koback, 320 F.R.D. 566, 576-77 & n.57 (D. Kan. 2017) (balancing confidentiality of documents subject to a protective order with a party's desire to seal the same, while noting the purpose of a protective order is to facilitate, not hinder, discovery).

*5 Plaintiff's counsel agreed to take the steps necessary to resolve the purported protection that covers the records Defendants would otherwise produce as part of its initial disclosure obligations. Whether Plaintiff intervenes in the state court action, reaches a disclosure agreement with its agent/franchisee, seeks a valid protective order or in-camera review in this Court or resolves the production dispute in another lawful manner, this Court orders Plaintiff to properly disclose within thirty days the discovery that both parties have deemed as relevant in this case.[13] Within fourteen days of Plaintiff's disclosure of those records, Defendants shall make their initial disclosures consistent with Rule 26(a)(1). If any issues of protection or confidentiality remain, Defendants should notify the Court consistent with the parameters set forth in Rule 26(b)(5).[14]

IT IS THEREFORE ORDERED that Defendants’ Motion to Require Plaintiff to Obtain Information from its Business Partners (Doc. 29) is GRANTED in part and DENIED in part. The Motion is GRANTED with respect to Plaintiff's obligation to obtain the documents protected in state court, and it is DENIED with respect to the limited mode Defendants identified for obtaining those records. Plaintiff shall take necessary steps to resolve the confidentiality or protective order issues that its agents/franchisees, the Simpsons, appear to assert in this case as it concerns documents relevant to this federal proceeding. Plaintiff shall produce the documents to Defendants or file a status report with this Court regarding any lawful limitations upon its ability to do so, no later than August 5, 2019. Defendants shall produce their initial disclosures to Plaintiff by August 19, 2019. If any issues of protection concerning the documents remain, Defendants shall notify Plaintiff and the Court in full compliance with Rule 26(b)(5)(A).

IT IS SO ORDERED.

Footnotes

[1]

In this case, OsteoStrong claims that Defendants used confidential information and trade secrets to launch their private business in violation of several statutes and in breach of contract. Doc. 1 ¶¶ 22-53.

[2]

Defendants contend trade secrets are not involved, as they claim the alleged “trade secrets” are readily available on the open market. See Doc. 29 at 2; Doc. 21 at 3 (Joint Status Report and Provisional Discovery Plan). Defendants said they agreed to the protective order in state court simply because it was less costly than fighting it. Doc. 51.

[3]

Contrary to the position the Simpsons expressed through their prior counsel, their Motion to Quash OsteoStrong's subpoena states that “these documents are public record and/or in the possession of [Defendants]. Thus, these documents can be easily obtained by [Defendants].” Doc. 46 at 2 (emphasis supplied).

[4]

The Court notes Plaintiff's ability to explore Rule 24 permissive intervention procedures. See N.M.R.A. Rule 1-204(B) (July 1, 1995) (Permissive Intervention); cf. United Nuclear Corp., 905 F.2d at 1427 (noting that a federal court collateral litigant seeking permissive intervention solely to gain access to discovery subject to a protective order, is not required to show a particularly strong nexus of fact or law between the two suits).

[5]

As part of the settlement negotiations in the state court litigation, the Simpsons entered into an “Agreement to Not Cooperate” with any effort by any third party, including OsteoStrong, “to sue or pursue claims against” Defendants. Doc. 29-2 at 2. The Simpsons are not barred “from testifying truthfully under oath if compelled to do so in a legal proceeding via summons, subpoena, or other legal process.” See id.

[6]

Plaintiff OsteoStrong first filed suit against Defendants in United States District Court for the Southern District of Texas, which is currently the subject of Defendants’ pending Rule 41(d) Motion for Costs and Fees, and for Stay of Proceedings. Doc. 12.

[7]

Matt Zagrodsky is also a partner at Mr. Steele's law firm (i.e., the outside counsel in this case).

[8]

See also Fed. R. Civ. P. 37(a)(1) (discovery motions “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action”).

[9]

Defendants Exhibit contains the following statement that Defendants’ counsel made to the Simpsons’ counsel: “By separate email I'm going to loop in OsteoStrong's current counsel.” It is unclear whether Defendants did so.

[10]

The Court faults Plaintiff's failure to respond to the Motion in any manner as equally egregious as Defendants’ cursory statement regarding efforts to meet and confer.

[11]

For discovery purposes, a party “controls” documents which it has the right, authority or ability to obtain upon demand. Lumpkin v. Clark, No. 07-cv-02015-MSK-KMT, 2008 WL 2441986, at *9 (D. Colo. 2008); see also Rodriguez v. IBP, 243 F.3d 1221, 1230 (10th Cir. 2001) (court entitled to order defendant to sign release for social security disability records or get the records himself and produce them as discovery in the civil case).

[12]

The Court is mindful of the tenuous position the non-party Simpsons appear to have taken, whereby they apparently asserted a joint defense agreement privilege with Plaintiff regarding documents in the state court litigation, and yet now seek to preclude disclosure of some, if not all of those documents to the same party, now the Plaintiff here. However, this Court is unable to determine the limits or permissible ability to produce those records that would be imposed upon Defendants here without the joint defense agreement, confidentiality agreement or protective order in the record. The Court recognizes that Plaintiff may rightly possess some, if not all, of the documents subject to the protective order and confidentiality order in the state court litigation given the business and familial relationships that purportedly exist between Plaintiff and the Simpsons.

[13]

Defendants have generally identified this material as “All of those documents [that] had previously been disclosed and Bates-numbered in the State Court Litigation[,]” “four depositions” taken in that case, as well as “discovery responses by both parties” in that proceeding. See Doc. 29 at 4. Should there be any question as to what specific documents subject to the state court protective order are to be disclosed, the Court instructs the parties to meet and confer to arrive at an understanding.

[14]

Assuming the state court needs to modify its protective order, a protective order in this case, if warranted, could obviate the need for a motion to compel in this case. See Sanchez v. Matta, 229 F.R.D. 649, 656-67 (D.N.M. 2004).

Osteostrong Franchising v. Richter

Citation: 2019 WL 11585220 (D.N.M. 2019)

Summary: The Court granted Defendants' Motion to Require Plaintiff to Obtain Information from its Business Partners in part, ordering Plaintiff to take necessary steps to resolve the confidentiality or protective order issues that its agents/franchisees, the Simpsons, appear to assert. The Court also ordered the parties to take steps to resolve any issues of confidentiality or protection that may be associated with the ESI.

Court: United States District Court, D. New Mexico

Date decided: July 3, 2019

Judge: Robbenhaar, John F.

OSTEOSTRONG FRANCHISING, LLC, Plaintiff, v. ROLAND RICHTER, SHEILA NIXON, JDAP, INC. AND DANCING BONES, LLC, Defendants Civ. No. 18-1184 WJ/JFR United States District Court, D. New Mexico Filed July 03, 2019 Counsel Howard L. Steele, Jr., Steele Law Group, PLLC, Houston, TX, William R. Keleher, Smidt, Reist & Keleher, PC, Albuquerque, NM, for Plaintiff. Jiadai Lin, Samuel C. Wolf, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth PA, Santa Fe, NM, for Defendants. Robbenhaar, John F., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO REQUIRE PLAINTIFF TO OBTAIN INFORMATION FROM ITS BUSINESS PARTNERS *1 THIS MATTER is before the Court on Defendants’ Motion to Require Plaintiff to Obtain Information From Its Business Partners, filed on May 17, 2019. Doc. 29. Plaintiff failed to respond to the Motion, which constitutes consent to grant the Motion and consent that briefing is complete under Local Rule 7.1(b). The Court, having reviewed Defendants’ brief and the relevant law, and heard argument from the parties on June 28, 2019, FINDS that Defendants’ Motion is well taken in part, and thus it will be GRANTED in part and DENIED in part. Background Plaintiff OsteoStrong Franchising, LLC (“OsteoStrong”), is a global franchise that offers services to promote healthy joints, strong bones and muscles, and better balance flexibility through a proprietary system and methodology. Doc. 1 ¶ 11. Each OsteoStrong location is independently owned and operated. Id. Regional developers purchase the rights to license franchisees in specific locations, and in New Mexico, the regional developers are Sean and Charla Simpson (“the Simpsons”). Id.; Doc. 29 at 2. At the hearing on this matter, Plaintiff's counsel, Mr. Steele, explained that the Simpsons are Plaintiff's agents and franchisees. Doc. 51 (Clerk's Minutes). On January 11, 2016, Defendants Nixon and Richter signed a Non-Disclosure Agreement with the Simpsons and OS New Mexico Co. LLC, DBA OsteoStrong, and the parties pursued negotiations for Defendants to become franchisees. Doc. 1 ¶ 15; Doc. 29 at 2. Defendants contend that “OsteoStrong abruptly changed core aspects of the proposed contract,” and when Defendants balked at the changes, OsteoStrong refused to finalize the contract. Doc. 29 at 2. Instead of becoming a franchisee, Defendants opened their own private business, which they argue is based on “equipment purchased on the open market” in reliance on Defendant Nixon's “own extensive business knowledge.” Id. The Simpsons threatened litigation against Defendants in New Mexico State Court, arguing that Defendants engaged in illegal competition in violation of trade secrets.[1] See id. at 2-3. Defendants then sued the Simpsons for unfair trade practices, and the Simpsons counter-sued Defendants. Doc. 51. Defendants and the Simpsons settled the state court litigation through mediation, and during those proceedings, Defendants and the Simpsons agreed to a confidentiality agreement based on the Simpsons’ position that information in that case involved confidential trade secrets.[2] The state court issued a protective order in that case, and the parties here agree that Defendants are currently unable to disclose the documents from the state court litigation without risk of being sued by the Simpsons and/or in violation of the state court's protective order. See Doc. 51. *2 Defendants’ Rule 26 initial disclosures in this case were due May 3, 2019. Doc. 21. By that date, Defendants’ counsel identified all relevant documents subject to disclosure and determined they all “had previously been disclosed and Bates-numbered in the State Court Litigation.” Doc. 29 at 4. Defendants’ counsel also determined that four depositions and all discovery responses from the state court litigation were relevant and subject to Rule 26(a) initial disclosure obligations. Before making their required Rule 26 initial disclosures in this case, Defendants communicated with the Simpsons’ prior counsel, Mr. David C. Kramer, to confirm that the Simpsons would not take issue with disclosure of documents or transcripts from the state court litigation to the Simpsons’ franchisor, OsteoStrong, who is now Plaintiff in this case. Doc. 29-2 at 3. Although Mr. Kramer acknowledged that franchisor/Plaintiff OsteoStrong could already have some of the information or documents subject to the state court confidentiality agreement and/or protective order, which Defendants now sought to include in their Rule 26 initial disclosures in this case, the Simpsons’ prior counsel firmly urged Defendants not to disclose “any of the documents or testimony that had been marked as confidential or which were indicated to be confidential (testimony) in the state court case, including discovery answers and responses.” Doc. 29-2 at 1. Moreover, Mr. Kramer opined that “pretty much anything related to the business, operations, finances or financing would be confidential.” Id. If Defendants’ initial disclosures in this Court included anything arguably confidential from the state court litigation, the Simpsons also threatened to seek “an order to show cause for a willful violation of the protective order and fees to have to do so.” Doc. 29-2 at 1.[3] See Docs. 29-1, 29-2; Doc. 51. The current discovery dispute concerns the documents that are protected by the state court protective order and the Defendants’ confidentiality agreement with the Simpsons. During the discovery hearing, Plaintiff's counsel said its agents, the Simpsons, would not authorize the disclosure of the documents from the state court litigation in this case. Doc. 51. It is unclear whether franchisor OsteoStrong already has the documents from the state court litigation in its possession (but was resistant to disclosing them), or whether it would need to obtain them from its agent, the Simpsons, or from the state court by intervening in that proceeding.[4] Defendants are perplexed by the Simpsons’ refusal to provide information from the state court litigation to their business partner and franchisor, Plaintiff OsteoStrong, particularly because the Simpsons asserted a “joint defense agreement” with OsteoStrong in the state court litigation. Doc. 29 at 3. Neither the settlement agreement, the protective order nor the joint defense agreement is part of the record before this Court. However, Defendants’ current motion contains reference to section 4 of the state court settlement agreement, which bars the Defendants here from disclosing “any confidential company or financial information” shared by the Simpsons in the state court litigation. See Doc. 29-2 at 2.[5] Defendants filed the current motion, claiming to be caught between a rock and a hard place, namely, “do they fail to comply with their discovery obligations in the present litigation by failing to provide those documents they believe to be relevant to this litigation,” or “do they provide that information and expose themselves to yet another lawsuit[6] ...?” Doc. 29 at 5. In addition to pointing out the close business/agency relationship between franchisor OsteoStrong and regional developers the Simpsons, Defendants asked this Court to order OsteoStrong to subpoena the documents that Defendants seek to produce under Rule 26(a) because of the close familial relationships between Plaintiff OsteoStrong and the Simpsons, including: (1) regional developer Charla Simpson's sister (whose name is undisclosed) is married to the CEO and founder of Plaintiff OsteoStrong, Kyle Zagrodzky (i.e., Charla Simpson's brother-in-law is Plaintiff's CEO/founder); and (2) Plaintiff OsteoStrong's legal counsel, Matt Zagrodzky, is the brother of Kyle Zagrodzky (i.e., Charla Simpson's brother-in-law's brother is general counsel for Plaintiff OsteoStrong).[7] After Defendants filed this motion, and before the June 28, 2019 hearing (without any notice to the Court), OsteoStrong served a Rule 45 subpoena for these records to the Simpsons on June 9, 2019, and on June 24, 2019, the Simpsons filed their Motion to Quash that subpoena, which is awaiting briefing. During the recent discovery hearing, the Court asked the parties if Defendants’ motion was, therefore, moot, and Defendants said no because, since Defendants filed this motion, Plaintiff has also served discovery requests to Defendants asking for the same documents. Doc. 51. Therefore, for the reasons set forth herein, the Court will order Plaintiff to obtain the records, but it will not limit its mode of doing so to a Rule 45 subpoena. Analysis A. Meet and Confer Requirements Regarding Defendants’ Motion to Require Plaintiff's To File a Rule 45 Subpoena *3 As a preliminary matter, the Court notes the passing reference Defendants made regarding compliance with Local Rule 7.1, wherein they state, “Counsel for Plaintiff has been contacted but has not offered a position with regard to this Motion, which is therefore presumed to be opposed.” Doc. 29. Rule 7.1 requires parties filing a motion “to determine whether a motion is opposed, and a motion that omits recitation of a good-faith request for concurrence may be summarily denied.” D.N.M.LR-CIV 7.1(a).[8] The duty to confer requires more than setting forth conflicting positions in written correspondence, and “to confer” means more than making a demand for compliance; it means “to hold a conference; compare views; consult together.” Hoelzel v. First Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003) (concluding an attorney's single email, stating that plaintiff intended to file a motion to compel based on defendant's refusal to respond to discovery requests, was insufficient to satisfy the requirements that parties make reasonably good-faith efforts to confer to resolve the disputed matter); see also Zuniga v. Bernalillo Cty., No. CV 11-877 RHS-ACT, 2013 WL 12333609, at *2 (D.N.M. Jan. 10, 2013) (finding parties did not satisfy meet and confer requirement under Rule 37 where the motions “merely state ‘[b]ased on the ... impasse arising from the Fed. R. Civ. P. 37 meet and confer process, the motion is deemed opposed’ ”) (emphasis in original); Naviant Mktg. Sols., Inc. v. Larry Tucker, Inc., 339 F.3d 180, 186-87 (3d Cir. 2003) (discussing insufficient “token” efforts to confer); LaFleur v. Teen Help, 342 F.3d 1145, 1152 (10th Cir. 2003) (finding sufficient conference efforts where attorneys met in person and defense counsel subsequently sent written clarification of the discovery he was requesting); Payless Shoesource Worldwide, Inc. v. Target, Corp., 237 F.R.D. 666, 670-71 (D. Kan. 2006) (certificate of compliance should describe efforts to resolve the dispute, which means more than faxing or mailing a letter to the opposing party).[9] The mandatory good faith effort in a meet and confer conference also fulfills the delay and expense cost saving provisions of the Civil Justice Reform Act (“CJRA”), 28 U.S.C. § 471, et. seq. See Farris v. Roberts, No. CV 12-221 MV/LFG, 2013 WL 12164704, at *1–2 (D.N.M. May 3, 2013) (“The duty-to-confer requirement is not simply a technical hoop through which a litigant must jump. Rather, the duty to confer is intended to reduce litigation costs and expedite the ultimate disposition of litigation by having counsel, in good faith, attempt to resolve discovery disputes before they ripen into a formal motion.”); see also Zuniga v. Bernalillo Cty., No. Civ. 11-877 RHS-ACT, 2013 WL 3328692, at *2 (D.N.M. Mar. 21, 2013) (plaintiffs could have produced a privilege log in lieu of the motion to compel). The CJRA and the subsequent amendments to the Federal Rules of Civil Procedure in 1993 and 2000 evince an intent to simplify and expedite the litigation process and thereby reduce the delay and costs of litigation. Id. Failing to meet and confer in good faith before filing a motion not only adds to the expense and delay in the litigation process, it also consumes valuable judicial resources. In this regard, Defendants’ counsel failed to comply with both the letter and the spirit of the Local and Federal Rules of Civil Procedure. Had the parties engaged in a proper meet and confer, at least some of the issues raised in the Motion could likely have been resolved.[10] Even during the hearing on Defendants’ motion, counsel could not recall whether he ever asked Plaintiff's counsel if he had access to the documents at issue. Doc. 51. Although the Court is inclined to deny Defendants’ Motion for failure to comply with the meet and confer requirements as set forth herein, the Court will address the Motion on the merits, as Defendants’ efforts to communicate and cooperate with Plaintiff in this case have been frustrating and difficult and include a recent order of sanctions against Plaintiff for its counsel's behavior. Id. The Court cautions both parties that any future failures to comply fully with the Federal Rules of Civil Procedure, the Local Rules, or the Orders of this Court may result in summary denial of any discovery motions submitted by either side, as well as a recommendation that sanctions be entered against the offending party or parties. B. Rule 26 Initial Disclosures *4 Rule 26(a)(1), in relevant part, requires a party to provide initial disclosures “without awaiting a discovery request” of “a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added).[11] Defendants must also disclose “the name, and if known, the address and telephone number 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 scope of discovery permits disclosure of “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). The federal rules set forth steps that parties must take if they seek to withhold privileged or protected information from disclosure or wish to prevent the disclosure of information sought to protect themselves from “annoyance, embarrassment, oppression or undue burden or expense.” Fed. R. Civ. P. 26(b)(5)-(c) (emphasis supplied). Where parties object to discovery issues, Rule 37 exists to encourage resolution through meeting and conferring, and after exhausting those efforts, to file a motion to compel or other discovery motion. Here, the federal rules provide a mechanism by which Defendants can meet their initial discovery obligations by “claiming that the information is privileged or subject to protection, as trial-preparation material,” and describing the nature of the documents, communications, or tangible things not produced or disclosed, and provide enough helpful information to enable an opposing party, and subsequently the court if necessary, to make a determination about the privileged or protected nature of the communications in issue. Fed. R. Civ. P. 26(b)(5)(A). Based on counsels’ representations at the discovery hearing, both parties appear fully aware of the documents subject to protection in this case. The Court will, therefore, hold Defendants’ initial disclosure obligations in abeyance until Plaintiff has complied with the terms of this Order. Based upon counsels’ statements at the discovery hearing, Plaintiff's access to its agent's/franchisee's records is patent, and seemingly attainable in an expedient, affordable manner. Moreover, during the hearing, Plaintiff's counsel agreed to take the steps necessary to obtain the records and seek the requisite protective measures that its business partners and agents, the Simpsons, deem lawful and necessary. Indeed, the party seeking protection bears the burden of establishing that records are entitled to such privacy. See Landry v. Swire Oilfield Serv., 323 F.R.D. 360, 383 (D.N.M. 2018). Having Defendants seek and protect records that they vehemently deny deserve protection would be misplaced. While Defendants may be bound by an agreement and/or order that currently prevents disclosure, they should be free to make those disclosures once Plaintiff resolves the apparent conflict with its franchisees/agents, the Simpsons.[12] Because the state court entered the protective order, it retains jurisdiction to modify and/or enforce it, and this Court may not disregard it. See In re Commercial Financial Services, Inc., 247 B.R. 828, 844 (N.D. Okla. 2000) (finding that a protective order that concerns preservation of confidentiality endures beyond the closing of a case) (citation omitted); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (the court that entered the protective order retains the power to modify it). The state court judge who issued the protective order is the one who needs to balance “the need for discovery against the need for confidentiality.” See Fish v. Koback, 320 F.R.D. 566, 576-77 & n.57 (D. Kan. 2017) (balancing confidentiality of documents subject to a protective order with a party's desire to seal the same, while noting the purpose of a protective order is to facilitate, not hinder, discovery). *5 Plaintiff's counsel agreed to take the steps necessary to resolve the purported protection that covers the records Defendants would otherwise produce as part of its initial disclosure obligations. Whether Plaintiff intervenes in the state court action, reaches a disclosure agreement with its agent/franchisee, seeks a valid protective order or in-camera review in this Court or resolves the production dispute in another lawful manner, this Court orders Plaintiff to properly disclose within thirty days the discovery that both parties have deemed as relevant in this case.[13] Within fourteen days of Plaintiff's disclosure of those records, Defendants shall make their initial disclosures consistent with Rule 26(a)(1). If any issues of protection or confidentiality remain, Defendants should notify the Court consistent with the parameters set forth in Rule 26(b)(5).[14] IT IS THEREFORE ORDERED that Defendants’ Motion to Require Plaintiff to Obtain Information from its Business Partners (Doc. 29) is GRANTED in part and DENIED in part. The Motion is GRANTED with respect to Plaintiff's obligation to obtain the documents protected in state court, and it is DENIED with respect to the limited mode Defendants identified for obtaining those records. Plaintiff shall take necessary steps to resolve the confidentiality or protective order issues that its agents/franchisees, the Simpsons, appear to assert in this case as it concerns documents relevant to this federal proceeding. Plaintiff shall produce the documents to Defendants or file a status report with this Court regarding any lawful limitations upon its ability to do so, no later than August 5, 2019. Defendants shall produce their initial disclosures to Plaintiff by August 19, 2019. If any issues of protection concerning the documents remain, Defendants shall notify Plaintiff and the Court in full compliance with Rule 26(b)(5)(A). IT IS SO ORDERED. Footnotes [1] In this case, OsteoStrong claims that Defendants used confidential information and trade secrets to launch their private business in violation of several statutes and in breach of contract. Doc. 1 ¶¶ 22-53. [2] Defendants contend trade secrets are not involved, as they claim the alleged “trade secrets” are readily available on the open market. See Doc. 29 at 2; Doc. 21 at 3 (Joint Status Report and Provisional Discovery Plan). Defendants said they agreed to the protective order in state court simply because it was less costly than fighting it. Doc. 51. [3] Contrary to the position the Simpsons expressed through their prior counsel, their Motion to Quash OsteoStrong's subpoena states that “these documents are public record and/or in the possession of [Defendants]. Thus, these documents can be easily obtained by [Defendants].” Doc. 46 at 2 (emphasis supplied). [4] The Court notes Plaintiff's ability to explore Rule 24 permissive intervention procedures. See N.M.R.A. Rule 1-204(B) (July 1, 1995) (Permissive Intervention); cf. United Nuclear Corp., 905 F.2d at 1427 (noting that a federal court collateral litigant seeking permissive intervention solely to gain access to discovery subject to a protective order, is not required to show a particularly strong nexus of fact or law between the two suits). [5] As part of the settlement negotiations in the state court litigation, the Simpsons entered into an “Agreement to Not Cooperate” with any effort by any third party, including OsteoStrong, “to sue or pursue claims against” Defendants. Doc. 29-2 at 2. The Simpsons are not barred “from testifying truthfully under oath if compelled to do so in a legal proceeding via summons, subpoena, or other legal process.” See id. [6] Plaintiff OsteoStrong first filed suit against Defendants in United States District Court for the Southern District of Texas, which is currently the subject of Defendants’ pending Rule 41(d) Motion for Costs and Fees, and for Stay of Proceedings. Doc. 12. [7] Matt Zagrodsky is also a partner at Mr. Steele's law firm (i.e., the outside counsel in this case). [8] See also Fed. R. Civ. P. 37(a)(1) (discovery motions “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action”). [9] Defendants Exhibit contains the following statement that Defendants’ counsel made to the Simpsons’ counsel: “By separate email I'm going to loop in OsteoStrong's current counsel.” It is unclear whether Defendants did so. [10] The Court faults Plaintiff's failure to respond to the Motion in any manner as equally egregious as Defendants’ cursory statement regarding efforts to meet and confer. [11] For discovery purposes, a party “controls” documents which it has the right, authority or ability to obtain upon demand. Lumpkin v. Clark, No. 07-cv-02015-MSK-KMT, 2008 WL 2441986, at *9 (D. Colo. 2008); see also Rodriguez v. IBP, 243 F.3d 1221, 1230 (10th Cir. 2001) (court entitled to order defendant to sign release for social security disability records or get the records himself and produce them as discovery in the civil case). [12] The Court is mindful of the tenuous position the non-party Simpsons appear to have taken, whereby they apparently asserted a joint defense agreement privilege with Plaintiff regarding documents in the state court litigation, and yet now seek to preclude disclosure of some, if not all of those documents to the same party, now the Plaintiff here. However, this Court is unable to determine the limits or permissible ability to produce those records that would be imposed upon Defendants here without the joint defense agreement, confidentiality agreement or protective order in the record. The Court recognizes that Plaintiff may rightly possess some, if not all, of the documents subject to the protective order and confidentiality order in the state court litigation given the business and familial relationships that purportedly exist between Plaintiff and the Simpsons. [13] Defendants have generally identified this material as “All of those documents [that] had previously been disclosed and Bates-numbered in the State Court Litigation[,]” “four depositions” taken in that case, as well as “discovery responses by both parties” in that proceeding. See Doc. 29 at 4. Should there be any question as to what specific documents subject to the state court protective order are to be disclosed, the Court instructs the parties to meet and confer to arrive at an understanding. [14] Assuming the state court needs to modify its protective order, a protective order in this case, if warranted, could obviate the need for a motion to compel in this case. See Sanchez v. Matta, 229 F.R.D. 649, 656-67 (D.N.M. 2004).