After hearing oral argument on the motions on Wednesday, August 12, 2020, the Court took these matters under advisement. Having considered the record, the oral and written arguments of counsel, and the applicable law, IT IS ORDERED that Plaintiffs’ motion to compel (ECF No. 54) is DENIED, Plaintiffs’ second motion to compel (ECF No 60) is DEFERRED, and Defendant's motion for second supplemental protective order (ECF No. 61) is DEFERRED as follows.

I. BACKGROUND

This case arises from an intra-family dispute between the two daughters of now-deceased Edmond Tonti, a real estate developer who owned (through various entities) apartment complexes in Louisiana and Colorado. Plaintiff Tonti Management Co., Inc. (“TMCI”) and APMT, LLC (“APMT”) are Louisiana entities through which Mr. Tonti developed and managed his properties. ECF No. 1, ¶¶ 12–14. Non-party Suzanne Tonti is the current manager of APMT and President of TMCI. Id. ¶¶ 13–14. Plaintiffs allege that, until recently, Defendant Michele Tonti was an employee, officer, and director of TMCI. Id. ¶ 4.

Plaintiffs TMCI and APMT have used the name “Tonti” in connection with the real estate business for decades (R. Doc. 1, ¶¶ 16), and in 1996, TMCI acquired the domain name Tonti.com. Id. ¶¶ 17–19. They contend that Defendant Tonti improperly caused TMCI's domain name to be transferred from TMCI to Defendant Soggy Doggie, LLC (“Soggy Doggie”), and she redirected web traffic from Tonti.com to a domain name that she recently registered (Wedgewoodlodge.com). Id. ¶¶ 24, 27. Plaintiffs filed suit alleging violations of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), invoking the court's federal question jurisdiction under 15 U.S.C. § 1221 and 28 U.S.C. § 1331, with supplemental jurisdiction under 28 U.S.C. § 1367 supporting Plaintiffs’ pendent state law breach of fiduciary duty claim. Id. ¶ 9. The Complaint does not invoke the court's diversity jurisdiction. Id.

*2 The current discovery disputes (as well as the prior discovery disputes) relate to a subpoena duces tecum that Plaintiffs served upon third-party IT services provider SeaGrizzly, L.L.C., which sought information held on behalf of its customer, Plaintiff TMCI. ECF No. 14-4. Defendant Tonti filed a motion for protective order, arguing that the responsive information “would likely contain privileged emails, including communications between Michele and attorneys representing Michele personally and representing ECT CO.” ECF No. 14, at 2. Magistrate Judge Wilkinson granted in part and denied in part that motion, directing the parties to submit a stipulated order setting forth an appropriate protocol to enable Ms. Tonti's counsel to review the subpoenaed materials, to release the non-privileged information, and to log all items subject to privilege. ECF No. 21; see also ECF Nos. 25, 27.

After that process, Plaintiffs filed a motion seeking certain documents identified on Defendant's privilege log, disputing Defendant's invocation of privilege over documents falling into certain specified categories, including attorney-client privilege invoked over communications in which no attorney is involved. ECF No. 30, at 2, 10-11; ECF No. 33, at 6, 24-25; ECF No. 37, at 12-13. By Order and Reasons dated June 25, 2020, this Court granted in part and denied in part Plaintiffs’ motion, holding, among other things, that federal privilege law governs. ECF No. 42. Citing Santa Fe Int'l,[1] the Court concluded that the shared business interest between Defendant Michele Tonti and her cousin Annette was insufficient to extend the attorney-client privilege to their communications under the federal “common legal interest” doctrine and that Annette could not be characterized as Defendant's “agent” for purposes of legal communications. Accordingly, the Court concluded that Defendant Tonti waived the attorney-client privilege over the documents at issue by sharing them with her cousin Annette.

Plaintiffs had also issued a First Set of Interrogatories and Requests for Production to Defendant, which Defendant answered on June 15, 2020. ECF No. 54-2. In their current Motion to Compel, Plaintiffs argue that Defendant has interposed boilerplate and generalized objections, failed to provide full and complete responses, and failed to produce responsive material or indicate clearly what documents were not being produced. ECF 54-1, at 5-12; ECF No. 76. In response, Defendant argues that discovery is premature because (1) the parties have not held the Rule 26(f) conference and neither the court nor the parties have altered the requirements of Rule 26(d), and (2) the court has not yet resolved her pending Rule 12 motions. Defendant also argues that Plaintiffs’ requests for production of documents (i.e., pre-May 2, 2019 emails) are overbroad insofar as they seek “any and all” emails and demand production of items that are not relevant to any claim or defense in this case or proportional to the needs of this case, particularly given that Mr. Tonti died on May 18, 2019, which is two weeks after the start-date for the emails produced by SeaGrizzly in response to the Subpoena Duces Tecum. ECF No. 62.

In their Second Motion to Compel, Plaintiffs seek production of approximately 300 documents containing communications between Defendant Tonti and her counsel that were previously marked as privileged and not included in Plaintiffs’ earlier challenge to the invocation of privilege over the specified categories of documents. ECF No. 30. Based on this Court's June 25, 2020, ruling on that motion, however, Plaintiffs now demand production of 297 additional documents on the basis that Defendant's inclusion of her cousin Annette on emails with counsel waived the attorney-client privilege. ECF No. 60-1, at 2-3. Defendant opposes that Motion and filed a Motion for Second Supplemental Protective Order regarding same. ECF Nos. 61 & 63.

*3 Plaintiffs’ Second Motion to Compel and Defendant's Motion for Protective Order implicate the same issues and many of the arguments overlap. Defendant claims that Plaintiffs are judicially estopped from arguing that Michele and Annette lack a common legal interest based on later statements in their state court filings, the documents sought are irrelevant to this proceeding, and the subject documents are, for the most part, only relevant to the state court proceeding where they are privileged. ECF No. 63, at 7-10. In addition, Defendant re-argues the scope of the federal common legal interest privilege previously addressed in this Court's June 25, 2020 Order, arguing that the Fifth Circuit should expand the doctrine to include parties with a common business interest even though they are not co-parties or potential co-parties to the same litigation. ECF No. 63, at 11-19. In response, Plaintiffs argue that Defendant's relevance objection has been waived, Defendant fails to establish the requirements for judicial estoppel, this Court is bound to apply Fifth Circuit precedent as it exists, and the “law of the case” doctrine precludes Defendant's effort to re-litigate the “common legal interest” issue.

II. LAW AND ANALYSIS

A. Plaintiffs’ First Motion to Compel

No federal or local rule, statute, or binding case law applicable in this case automatically stays discovery pending a ruling on a motion to dismiss.[2] Nor is a stay of discovery permitted merely because defendant believes it will prevail on its motion to dismiss: “[H]ad the Federal Rules contemplated that a motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect.”[3] Indeed, a stay while dispositive motions are pending is the exception rather than the rule.[4]

As a matter of federal procedure, a request to stay discovery is considered a motion for protective order under Fed. R. Civ. P. 26(c)(1)(A), (B), which requires good cause based on a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ ”[5] Defendant has not filed a Motion to Stay Discovery in this case nor has she requested a stay and shown good cause in her Motion for Second Supplemental Protective Order. Absent a stay, discovery must proceed.

Rule 26(d)(1) precludes a party from seeking discovery until the parties have conferred as required by Rule 26(f), except when the case is exempt from initial disclosures, when otherwise authorized by the rules, by stipulation, or by court order. A stipulation is an agreement between counsel respecting a matter before the court. Rule 29 authorizes stipulations related to discovery, but the Fifth Circuit has interpreted this rule to require a written stipulation.[6] At oral argument, Plaintiffs’ counsel confirmed that there is no written stipulation relating to waiver of the Rule 26(f) conference.

*4 The requirement for a Rule 26(f) conference is not a mere technicality.[7] If a party serves an early Rule 34 request, that request is considered served on the date of the Rule 26(f) conference. Fed. R. Civ. P. 26(d)(2)(B). Without evidence of the date of the Rule 26(f) conference or a written stipulation regarding early Rule 34 production, Plaintiffs’ requests are premature. The requests for production are considered properly served as of the date of the Rule 26(f) conference, however, and the response period begins to run on that date. Fed. R. Civ. P. 26(d)(2)(B). Accordingly, at this point, Defendant's deadline to respond to Plaintiffs’ discovery requests has not yet expired.

Given the prematurity of Plaintiffs’ discovery requests, this Court will not address the sufficiency of Defendant's responses at this time. The Court does note, however, that general objections are insufficient and will be stricken.[8] Any objection must clearly state how the information sought is not relevant to any claim or defense in this matter or how the request is overbroad, burdensome or oppressive.[9] Objections interposed without also clearly indicating whether any document or information is being withheld are improper.[10] All responses must clearly state whether any responsive materials are being withheld and the specific basis for objecting and not producing same.[11] Ambiguous responses, objections that lack the required specificity, and gamesmanship will not be tolerated.

B. Second Motion to Compel/Motion for Second Supplemental Protective Order

While a party may not have standing to file a Motion to Quash a third party subpoena on the basis of relevance, a party does have standing to seek a protective order pursuant to Rule 26(c) to limit the scope of discovery, even if the party does not have standing pursuant to Rule 45(d).[12] Further, a Rule 26(c) request for a protective order is not subject to the same time limitations as a Motion to Quash under Rule 45.[13]

The failure to object to discovery does generally results in a waiver; however, a showing of good cause will preclude a finding of waiver.[14] In this case, given the related nature of this federal proceeding with the state court litigation and the parties’ conduct in proceeding with the third party discovery from SeaGrizzly in a consolidated fashion for use in both this federal case and the state court cases, the Court finds that Defendant was justified in seeking resolution of the privilege issues without also addressing the relevance of the documents vis-à-vis the federal proceeding versus the state proceedings at that time. Further, the court retains discretion to decline to compel discovery responses when the request exceeds the bounds of fair discovery, even if a timely objection has not been made.[15] Accordingly, Defendant Tonti has not waived her objection to relevance. This Court will consider Defendant's relevance objections with regard to the SeaGrizzly documents as it relates to the claims in this federal case.

*5 Although Defendant did not waive the relevance objection, her argument based on the doctrine of judicial estoppel fails. Judicial estoppel is an equitable doctrine that requires a showing that “(1) a party's later position is ‘clearly inconsistent’ with its prior position, (2) the party successfully persuaded a court to accept its prior position, and (3) the party ‘would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ”[16] None of these factors is present here. Whether a case has enough overlapping facts and evidence for purposes of transfer between court divisions does not entail consideration of the same issues relevant to determine whether parties share a “common legal interest” for purposes of extending the attorney-client privilege under Fifth Circuit precedent. Accordingly, nothing that Plaintiffs said after this Court's earlier ruling could form the basis of judicial estoppel to somehow require the Court to now reconsider its earlier ruling.

That said, Plaintiffs are mistaken in citing “the law of the case” doctrine to support their position that this Court should not revisit its earlier June 25, 2020, ruling The law of the case doctrine is inapplicable here. That doctrine generally “precludes reexamination of issues of law or fact decided on appeal, either by the district court on remand or by the appellate court itself on a subsequent appeal.”[17] There is no appellate decision at issue in this matter, and thus, the law of the case doctrine has no application.

What Plaintiffs essentially argue is that reconsideration of this Court's June 25 decision is improper. Although the Federal Rules of Civil Procedure do not provide specifically for motions for reconsideration,[18] the Fifth Circuit has consistently recognized that parties may challenge a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b).[19] Rules 59 and 60, however, apply only to final judgments, which is not the case here.[20] When a party seeks to revise an order that adjudicates fewer than all the claims among all of the parties, Federal Rule of Civil Procedure 54(b) controls.

As the Fifth Circuit stated just last week: “Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.”[21] However, motions to reconsider are not for “rehashing, evidence, legal theories, or arguments that could have been offered or raised before the [court's decision].”[22] Likewise, motions to reconsider should not be used to re-litigate prior matters that were simply “resolved to the movant's dissatisfaction.”[23]

*6 The general practice in this district is to evaluate Rule 54(b) motions to reconsider under the same standards as Rule 59(e) motions to alter or amend a final judgment.[24] To prevail on a motion under Rule 59(e) or 54(b), the movant must clearly establish at least one of four factors:

As Judge Ashe recently explained, “Rule 54(b)’s approach to the interlocutory presentation of new arguments as the case evolves can be more flexible, reflecting ‘the inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.’ ”[26] The district court must exercise this broad discretion sparingly, however, to forestall the perpetual reexamination of orders and the resulting burdens and delays.[27]

Defendant has not established any of the justifications for reconsideration. Accordingly, the Court agrees with Plaintiffs that reconsideration of its earlier decision to apply federal privilege law, including the federal common legal interest doctrine, is improper. That does not mean, however, that all 297 documents must be produced. Relevance must be evaluated because it is not appropriate to require production of documents in this case when those documents have no relevance to any claim or defense in this federal proceeding and relate solely to the claims in the state court proceedings where the documents may be protected from discovery by privilege under Louisiana law. Accordingly, the Court will review the documents on a document-by-document basis and assess relevance to this case before determining whether a document must be produced.

In connection with the Court's review of the documents, the parties are instructed to provide supplemental briefing on the bad faith element of the federal cybersquatting claim so that the court may determine precisely what relevance each document may or may not have to Plaintiffs’ federal claim. Plaintiffs must file their supplemental brief by August 21, 2020, Defendant must file her supplemental brief by August 31. If the Court desires further argument as to the relevance of any of the 297 documents, oral argument will be held on September 9, 2020.

C. Rule 37 Request for Fees and Costs

*7 Plaintiffs request that the Court order Defendants to pay fees and costs incurred in filing these Motions to Compel. Rule 37(a)(5) provides:

Given the issues involved in this dispute, the Court finds that each party was substantially justified in their positions. Accordingly, the Court declines to award either side fees and costs incurred in connection with these motions.

D. CONCLUSION

Accordingly, for the foregoing reasons, after hearing the oral argument of counsel, considering the parties’ Memoranda, and reviewing the binders of documents submitted for in camera inspection, based on the applicable law,

IT IS ORDERED that Plaintiffs’ motion to compel (ECF No. 54) is DENIED, Plaintiffs’ second motion to compel (ECF No 60) is DEFERRED, and Defendant's motion for second supplemental protective order (ECF No. 61) is DEFERRED.

IT IS FURTHER ORDERED that Plaintiffs file a supplemental brief addressing the bad faith element of their federal cybersquatting claim by August 21, 2020, and Defendant file a supplemental brief on that issue by August 31, 2020. Oral argument, if needed, will be held on September 9, 2020.

IT IS FURTHER ORDERED that the parties hold their Rule 26(f) conference on or before August 21, 2020.

New Orleans, Louisiana, this 13th day of August, 2020.

In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001).

See, e.g., Escareno ex rel. A.E. v. Lundbeck, LLC, No. 3:14-CV-257-B, 2014 WL 1976867, at *2 (N.D. Tex. May 15, 2014) (“motion to dismiss does not automatically stay discovery ... until the motion is resolved.”) (citing Glazer's Wholesale Drug Co. v. Klein Foods, Inc., No. 3:08-cv-774-L, 2008 WL 2930482, at *1 (N.D. Tex. July 23, 2008)).

Valenzuela v. Crest-Mex Corp., No. 3:16-cv-1129-D, 2017 WL 2778104, at *5 (N.D. Tex. June 26, 2017).

Notariano v. Tangipahoa Parish School Board, 2018 WL 3844882 (E.D. La. Aug. 13, 2018); Griffin v. American Zurich Ins. Co, 2015 WL 11019132, at *2 (staying discovery while a motion to dismiss is pending “is the exception rather than the rule.”).

In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y. 1994) (“Good cause must be established and not merely alleged.”). Thus, “[t]he Court does have discretion to stay discovery ‘for good cause shown.’ ” Escareno, 2014 WL 1976867, at *1 (quoting Fed. R. Civ. P. 26(c)(1)) (citing Landry v. Air Line Pilots Ass'n, 901 F.2d 404, 436 (5th Cir. 1990)). Given the court's “broad discretion to manage the conduct of discovery, ... [n]o categorical rule is appropriate; rather each case should be considered based on its unique facts and context.” Sai v. Dep't of Homeland Sec., 99 F. Supp. 3d 50, 58 (D.D.C. 2015) (quotation and citations omitted).

See In re Carney, 258 F.3d 415, 419 (5th Cir. 2001); see also Riley v. Walgreen Co., 233 F.R.D. 496, 500 (S.D. Tex. 2005) (citing Fed. R. Civ. P. 29) (Rule 29 stipulation “need not take any particular form, so long as they are in writing.”); Pescia v. Auburn Ford-Lincoln Mercury Inc., 177 F.R.D. 509, 510 (M.D. Ala. 1997) (refusing to enforce oral agreement regarding deposition in the absence of written stipulation).

See, e.g., Chevron v. Pueler, 2003 WL 139164 (E.D. La. Jan. 15, 2003) (Barbier, J.) and Collier v. Shell, 2015 WL 13048735 (E.D. La. March 16, 2015) (Roby, J.).

See Chevron Midstream Pipelines LLC v. Settoon Towing LLC, 2015 WL 269051 *3 (E.D. La. Jan. 20, 2015).

Id. (noting that an objection is boilerplate and insufficient “when it merely states the legal grounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the objecting party would be harmed if it were forced to respond.”) (citation omitted);

Id. at *4.

Id.

Singleton v. Cannizzaro, No. 17-10721, 2020 WL 375600, at *5 (E.D. La. Jan. 23, 2020) (citing Bounds v. Capital Area Family Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016)).

Compare Fed. R. Civ. P. 26 (c) to Fed. R. Civ. P. 45(d)(3)(A); Commerce and Indus. Ins. Co. v. Grinell Corp., 2001 WL 96377 * 4, n. 5 (noting that the express language of Rule 26 does not set limits within which a motion for protective order must be made, but there is an implicit requirement that the motion be timely or seasonable); LaFleur v. Leglue, 2017 WL 2960541 *12 (M.D. La. July 11, 2017) (noting that “[a]s a general matter, a motion for protective order is timely if filed before the date set for the discovery at issue.”)

See, e.g., Solorzano v. Shell Chem Co., 254 F.3d 1082 (5th Cir. 2001) (rejecting argument that magistrate abused her discretion in allowing party to respond to interrogatories with objections after that party had failed to respond or raise any objections within the required 30-day period); see also Nugent v. Scott Fetzer Co., No. 19-14759, 2020 WL 1322268, at *5 (E.D. La. Mar. 20, 2020) (“the failure to act timely will not bar consideration of objections in unusual circumstances and for good cause shown.”) (citations omitted); Seals v. Shell Oil Co., No. 12-1983, 2013 WL 12439172, at *3 (E.D. La. June 21, 2013) (failure to respond to discovery requests operates as a “waiver of its objections, unless the court excuses that failure for good cause.”) (citing Enron Corp. Savings Plan v. Hewitt Associates, L.L.C., 258 F.R.D. 149, 153 (S.D. Tex. 2009)).

Superior Diving Co. v. Watts, No. 05-197, 2011 WL 1235195, at *2 (E.D. La. Mar. 30, 2011) (citations omitted).

Organic Seed Growers & Trade Ass'n v. Monsanto Co., 718 F.3d 1350, 1358–59 (Fed. Cir. 2013) (quoting New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001)).

Env't Texas Citizen Lobby, Inc. v. ExxonMobil Corp., No. 17-20545, 2020 WL 4345337, at *3 (5th Cir. July 29, 2020), as revised (Aug. 3, 2020) (emphasis added) (citing Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir. 1985)); see also Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 1978) (“an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.”); Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19 (5th Cir. 1974) (“The duty of a lower court to follow what has been decided at an earlier stage of the case comprehends things decided by necessary implication as well as those decided explicitly.”).

Cressionnie v. Hample, 184 F. App'x 366, 369 (5th Cir. 2006); Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 (5th Cir. 2004).

S. Snow Mfg. Co., Inc. v. Snowizard Holdings, Inc., 921 F. Supp. 2d 548, 563-64 (E.D. La. 2013); Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994).

Snowizard, 921 F. Supp. 2d at 563-564.

Six Dimensions, Inc. v. Perficient, Inc., No. 19-20505, 2020 WL 4557640, at *6 (5th Cir. Aug. 7, 2020) (citing Austin, 864 F.3d at 336 (quotation marks omitted)).

Templet v. Hydrochem, Inc. 367 F.3d 473, 479 (5th. Cir. 2004); see also Snowizard, 921 F.Supp.2d at 565.

See Voisin v. Tetra Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).

Reyes v. Julia Place Condominiums Homeowners Ass'n, Inc., No. 12-2043, 2016 WL 4272493, at *3 (E.D. La. Aug. 15, 2016); Snowizard, 921 F. Supp. 2d at 565.

Snowizard, 921 F. Supp. 2d at 565; Schiller, 342 F.3d at 567; Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).

Katherine Muslow et al. v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College et al., No. CV 19-11793, 2020 WL 4471160, at *5 (E.D. La. Aug. 4, 2020) (citing Austin v. Kroger Tex., L.P., 864 F.3d 326, 337 (5th Cir. 2017) (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)) (internal citations and quotations omitted)).

See Calpecto 1981 v. Marshall Expl., Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993) (“if the district court was required to reconsider [an interlocutory order] simply because [the losing party] belatedly came forward with evidence not submitted prior to the ruling[,] ... the cycle of reconsideration would be never-ending”); Domain Protection, LLC v. Sea Wasp, LLC, 2019 WL 3933614, at *5 (E.D. Tex. Aug. 20, 2019) (court may use its discretion to prevent parties from raising new arguments for the first time) (citation omitted); 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478.1 (3d ed. 2019).