In general,

Fed. R. Civ. P. 26(b)(1). Information need not be admissible to be discoverable. Id. When it comes to discovery, an incomplete response is no response at all. See Fed. R. Civ. P. 37(a)(4). Thus, when a party who has propounded a discovery request receives an evasive or incomplete response, and no valid objection has been made to prevent the discovery, the party may move to compel a better response. Fed. R. Civ. P. 37(a)(1). If the court grants that motion, it must award attorney's fees to the moving party absent an applicable exception. Fed. R. Civ. P. 37(a)(5)(A). If the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C).

The City moves to compel better responses to several requests for production contained in its First Request for Production and Second Request for Production, respectively, from Caravels. See ECF No. 47 at 2. This Order addresses each request and objection below.

In its first request in this set, the City requested “Any and all test data in Caravels' possession concerning the subject transformer.” ECF No. 47-1 at 4. Caravels objected that this request would include tests performed in anticipation of litigation and thus protected by work product privilege, but that other test results would be produced. ECF No. 47-2 at 4. Caravels also explained that, to the extent its experts would rely on privileged test results in their reports, it would disclose those results at the appropriate time. Id. Caravels also provided a privilege log. ECF No. 47-3.

The City contends the objections and privilege log are too general and vague to permit a reader to ascertain what has not been produced and why. The privilege log documents numerous emails that refer to test results and either forward such results or comment upon them, but it appears to list only one actual test report. See ECF No. 47-3 at 36 (listing a test report on January 27, 2020, described as “Tests for Caravels by consultant”). Moreover, Caravels' privilege log does not reflect that any test data have been withheld—emails discussing those data and reports based upon them, yes, but not the data or reports themselves. See generally ECF No. 47-3.

*2 As far as the original privilege log is concerned, Caravels has turned over to the City all the raw data of every test ever conducted on the transformer at issue, whether conducted in anticipation of litigation or not. Perhaps Caravels has done this, but its objection implies test data have been, in part, withheld pursuant to a claim of privilege. If any test data exist which Caravels has declined to produce because it claims they are privileged, those data are not reflected on its original privilege log, and Caravels must either supplement is responses or its privilege log. If no other test data exist beyond those previously provided, Caravels need do neither. In its response to the City's motion, Caravels states further test records and data (which may be redundant to those already produced) “will be produced.” ECF No. 53 at 20. The City's motion is GRANTED IN PART as to this request to the extent Caravels must either supplement its response to the City's request to include all test data, supplement that same response to include the representation that all responsive and discoverable information has been produced, or update its privilege log to reflect it is withholding the results of certain tests (and specifying those tests whose results are being withheld).[1] As to the remainder of this request, the City's motion is DENIED IN PART.

The City's ninth request for production sought “[a]ny and all electronic communication by and between Caravels' agents and/or employees concerning or discussing changes in designs, plans, specification, or manufacturing of the transformer.” ECF No. 47-1 at 5. Caravels responded that any responsive documents could be found in the emails it was producing, but qualified this by stating it did not believe “there were such changes that would have resulted in responsive communications.” ECF No. 47-2 at 7. In its response to the City's motion, Caravels argues it was continuing to supplement its disclosure of emails when the City filed the instant motion. ECF No. 53 at 18. Caravels asks for the deadline to supplement its initial disclosures to be extended until July 14, 2020. Id.

Caravels' response speaks with two voices. In part, it contends all responsive documents have already been produced, if any exist; and in part, it seeks time to produce additional responsive documents. It appears Caravels' counsel may have learned of the existence of additional responsive documents after Caravels served its response to the City's request and thus sought to supplement its prior disclosures—an explanation that would resolve the apparent contradiction. To the extent Caravels is aware of additional, newly discovered responsive and discoverable information, it must supplement its prior disclosures and/or responses. Fed. R. Civ. P. 26(e)(1)(A).

The heart of Caravels' response is that it contends no changes in design, manufacture, et cetera were actually made. The City's request is not so limited. The City seeks all communications “concerning or discussing” such changes, including suggested changes that were ultimately rejected. The City's motion is DENIED as to this item without prejudice to renew it if Caravels' supplemental disclosures do not put the matter to rest. But let this Court be clear: pursuant to Rule 26(e)(1)(A), Caravels must produce any responsive and properly discoverable communications even if the changes discussed or referenced therein where not actually made. if Caravels does not follow through on its obligation to supplement its disclosures, the City may renew its motion to compel Caravels to do so. Caravels' motion for an extension of time until July 14, 2020, is GRANTED.[2]

*3 The City's thirteenth request for production seeks “[a]ny and all electronic communications between Caravels' agents and/or employees and vendors or suppliers of” a disjunctive list of materials “used in the fabrication of the subject transformer.” ECF No. 47-1 at 6. Caravels objects that this request is overbroad and unduly burdensome because it is not limited in time nor scope. ECF No. 47-2 at 9.

This Court agrees the City's request could be narrowed, but notes that Caravels' objection does not “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). As a result, as far as this Court can tell, Caravels objects only to part of the request—i.e., to the extent it seeks communications that have nothing to do with the materials actually used in the transformer at issue in this case—but has not produced any communications that are responsive to the part of the City's request it does not object to. This, too, is improper. See id. (“An objection to part of a request must specify the part and permit inspection of the rest.”).

Caravels need not produce general pricing, ordering, and delivery communications with the relevant entities. Caravels must, however, produce communications with the vendors in question that reference or discuss the specific products from those vendors used in production of the transformer at issue in this litigation. This is in addition to the specific individual items used in its construction and supplied by those vendors. To illustrate the distinction, an iPhone is a specific product, and the undersigned's individual iPhone is an individual item. In terms of this case, Lignostone is (apparently) a type of product, while an individual piece of Lignostone (such as a specific piece used in the construction of the transformer at issue in this litigation) is an individual item. Put another way, model numbers typically designate products and serial numbers typically designate items within a product class. Caravels' production in response to this request must produce communication about both the specific items and the products supplied by those vendors. Given that the City seeks only electronic communications, it should be simple for Caravels to identify such communications—Caravels certainly has not argued otherwise—and the City's request leaves the City with the burden of sorting through to weed out those communications it does not want. With the request thus narrowed to terms that are proportionate to the needs of the case, the City's motion is GRANTED IN PART AND DENIED IN PART as to this item.

In the fourteenth request within its first set of requests for production, the City seeks all electronic communications between Caravels' agents and/or employees and the agents and/or employees of Weidmann, one of Caravels' materials suppliers, “concerning or discussing materials used in fabricating the subject transformer.” ECF No. 47-1 at 6. Caravels made no objection and responded that no such documents exist, but also stated that if any such documents were discovered to exist they would be produced. ECF No. 47-2 at 10.

Put simply, the City does not believe Caravels' response. Caravels has filed a separate lawsuit against Weidmann in the United States District Court for the Western District of Virginia, apparently concerning the failure of similar (but not identical) components made from a different material used to fabricate a different transformer. See, e.g., ECF No. 53 at 17; ECF No. 53-7 (affidavit of Neeraj Baxi). The City believes the filings in that lawsuit contain information pertinent to its claims in this lawsuit; namely, the handling of materials used in fabricating the transformer to avoid damage. See ECF No. 47 at 6 (quoting Caravels' complaint against Weidmann). Caravels contends no responsive communications exist from the Virginia case because none of the materials used to fabricate the City's transformer are at issue there.

*4 The issue is simpler than the parties make it. Caravels has taken the position—under oath via Mr. Baxi, and under the strictures of Rules 11 and 26(g)(1)—that none of the communications in the Virginia case are responsive to the City's fourteenth request for production because that case does not concern the specific materials used to fabricate the transformer at issue in this case. This is all the City's request sought. The City may believe the communications to and from Weidmann referenced in the Virginia case are relevant to this case because the materials involved are similar, but the City did not seek their production on that basis. If the communications did not concern or discuss the specific materials (whether products or items) used to fabricate the transformer at issue in this case, they are not responsive to the City's request. In civil discovery, one does not get what one does not ask for. The City's motion is DENIED as to this issue.

In its twenty-sixth request, the City seeks “[a]ny and all electronic communications between Caravels' agents and/or employees and Keith Kibler that concern or relate to the subject transformer.” ECF No. 47-1 at 7. Caravels responded that it was producing “[a]ny non-privileged responsive documents” and directed the City to its productions in response to the City's nineteenth and twenty-second requests (which sought all communications concerning the transformer by two of Caravels' employees). ECF No. 47-2 at 17. Caravels also incorporated its “privilege/work product objections” from those responses into its response to this request. Id. Those objections extend to “privileged communications with counsel, or communications generated in anticipation of litigation or trial preparation material protected by the work product doctrine.” Id. at 12; see also id. at 14 (same).

The parties agree Mr. Kibler is a third-party sales broker or representative. See ECF No. 47 at 23 and ECF No. 53 at 22. Based on Caravels' response to the City's motion, it seems only one email is at issue; namely, an email Mr. Kibler authored on November 13, 2019, “containing his observations of the failed pre-suit settlement meeting.” ECF No. 53 at 22. Caravels contends it is “unclear” whether the City's motion “seeks to compel any further emails with Mr. Kibler.” Id. at 24. Caravels further objects—in its response to the City's motion—“to further supplementing” its disclosures with additional communications by or to Mr. Kibler “that may not relate to the claims or defenses in this case.” ECF No. 53 at 24.

To begin, it is abundantly clear the City seeks production of more than a single email. Nothing is ambiguous about the phrase “any and all electronic communications,” and Caravels states that other communications than that single email have been withheld. Several November 13 emails involving Mr. Kibler are listed in Caravels' privilege log. ECF No. 47-3 at 18 (listing email containing “Observations on recent meeting with GRU”); id. at 21 (listing two others, describing each as “Reflections on recent meeting with GRU”); id. at 32 (listing two, described respectively as “Responding to summary of meeting with GRU” and “Providing observations of meeting with GRU”).[3] The privilege log does not reflect any emails involving Mr. Kibler on any other date. Caravels implies other communications exist that have been withheld, see ECF No. 53 at 24, but they are not listed in the privilege log. The City plainly seeks those additional communications not reflected in the privilege log.

The communications with Mr. Kibler are plainly discoverable to the extent additional communications between its employees and/or agents and Mr. Kibler that concern or relate to the design, manufacture, testing, or delivery of subject transformer exist within Caravels' possession or control and are not otherwise protected from disclosure. Furthermore, a witness's contractual connections to or employment by a party to a lawsuit is relevant to show bias or interest. See Thurber Corp. v. Fairchild Motor Corp., 269 F.2d 841, 845 (5th Cir. 1959).[4] To the extent there are “contracting communications for [Mr. Kibler's] services,” ECF No. 53 at 24, and the like, those are also responsive to the City's request. “[C]ommunications regarding the project before Caravels was awarded the contract,” id., are also responsive to the request, and would not have been made in anticipation of this litigation.

*5 This leaves the issue of whether the emails with Mr. Kibler are protected by an applicable privilege. Mr. Kibler is not counsel for Caravels, so the only relevant portion of Caravels' objection concerns the work product doctrine. In general, a party cannot discover “documents ... that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Work product comes in two types: fact and opinion. Raymond James Fin. Servs., Inc. v. Arijos, 2020 WL 1492993, at *2 (S.D. Fla. Mar. 27, 2020). Each receives a different degree of protection. Fact work product concerns, obviously enough, facts, including the results of factual investigations and incident reports. Id.; see also Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 691 (S.D. Fla. 2011) (holding email sent from scout troop leader to “inform the Council” of an incident was protected work product). Opinion work product, meanwhile, “reflects an attorney's mental impressions, conclusions, opinions, or legal theories.” Cox v. Administrator, U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994). Opinion work product is virtually undiscoverable outside “very rare and extraordinary circumstances.” Id. (quoting In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977)). Fact work product, meanwhile, is subject to the more permissive “substantial need” exception of Rule 26(b)(3)(A)(ii). Raymond James, 2020 WL 1492993, at *2–*3.

Based on the contents of the privilege log, it is unclear whether the emails in question constitute fact or opinion work product. The “observations” and “reflections” in question could be anything from substantive matters that show the mental processes of Caravels and its representatives to idle comments such as “Wow, this meeting could have been an email.” This Court cannot evaluate the privilege claim nor the motion to compel with the limited information it has available. This Court must, therefore, DEFER ruling on this item until it has completed an in camera review of the emails in question. To accomplish this, Caravels must furnish true and correct copies of the November 13 emails to this Court on or before Friday, July 17, 2020. This Court will thereafter instruct the Clerk to file those documents under seal, such that no one other than this Court will have the ability to view those documents until this Court has completed its review.

Caravels now states it has nothing else responsive to the City's twenty-seventh and twenty-eighth requests. ECF No. 53 at 19. The City infers from the existence of records from prior dates that, if construction continued past January 2019, records must exist, but Caravels states production of the transformer in question ceased in January 2019, with all subsequent activity being testing or repair. Id. The City need not necessarily be satisfied with this answer, but unless the City can show by something more than inference that additional records exist, this Court must conclude the motion is due to be DENIED as to this item.

The City's second set of requests for production begins where its first set began, but casts a different net. The first request in this set seeks “[a]ll ‘test data and reports’ for the subject transformer identified in Caravels' Rule 26(a)(1) Initial Disclosures, including all backup data, studies and notes for said tests and reports.” ECF No. 47-7 at 4.[5] In its response to the City's motion, Caravels argues it believed its Rule 26 disclosures included everything Rule 26 required, and notes it later supplemented the response to the City's request. ECF No. 53 at 20; see also ECF No. 53-19 (Caravels's supplemental response to the City's second set of requests for production). Caravels appears to have provided some or all the responsive information in that supplement. See id. at 2–3. The City lists several categories of information from Caravels' amended privilege log that it contends are responsive to this request and should be produced. ECF No. 47 at 14. Many of those classes do not, however, appear self-evidently to be “test data and reports ... including backup data, studies and notes for said test results and reports” but are instead “schematics, design sheets, [and drawings]” that are mentioned in the same documents as test results. Id. It is not obvious that the documents the City claims were withheld are responsive to the City's request, though it is also unclear from the language of Caravels' supplement whether Caravels ultimately produced those documents. The City's motion is therefore DENIED as to this item, without prejudice to be renewed if responsive documents were indeed not produced either in an original response, disclosure, or supplementation.

*6 In its second and third requests, the City seeks all design documents (request #3) and all manufacturing documents identified in Caravels' Rule 26(a)(1) disclosures. ECF No. 47-7 at 5. Caravels responded that it “believe[d]” it had produced all responsive documents, and added cryptically, “[s]ee also documents to be produced.” ECF No. 47-8 at 6. Caravels' supplemental response identifies specific documents that are being produced as part of the supplementation. ECF No. 53-19 at 3–4. Neither Caravels' original nor its supplemental response assert any objection or claim of privilege concerning these documents. In fact, they also do not state that any responsive documents are being withheld. Because Caravels did not object to the request, the only inference is that, as far as Caravels knows, all responsive documents have now been produced. See Fed. R. Civ. P. 34(b)(2)(C) (requiring a party objecting to a request for production to affirmatively state whether any materials are being withheld and to produce any materials responsive to unobjectionable parts of the request).

Caravels has a continuing obligation to supplement its disclosures to the extent it discovers new information, and this Court sees no need at this juncture to baldly order the parties to follow the Federal Rules of Civil Procedure absent a showing of a circumstance justifying such an extraordinary step. Caravels did not object to the City's request and did not assert a claim of privilege, and so must provide the responsive documents; but the request appears to do nothing more than seek re-production of Caravels' Rule 26 materials based on the speculation that more might exist. If Caravels has not produced any of the “design documents” or “manufacturing documents” identified in its Rule 26 initial disclosure have not yet been produced, the City's motion is GRANTED IN PART as to those documents and DENIED IN PART as to any that have already been produced. The City implies that some documents were withheld pursuant to a claim of privilege, but—as noted above—Caravels neither raises nor briefs that issue. If this Court has ordered production of a document pursuant to either of these requests that Caravels believes is subject to a valid claim of privilege, Caravels may move for reconsideration of this Order so this Court may address claims of privilege with the benefit of appropriate briefing.[6]

In its twenty-first request, the City seeks “[a]ll electronic communication[s] between Caravels' agents and/or employees between January 1, 2018[,] and the present.” ECF No. 47-7 at 6. This is different from the City's original request for production of communications with Weidmann because it is not limited to those “concerning or discussing materials used in fabricating the subject transformer.” ECF No. 47-1 at 6. It seeks all communications with Weidmann, but only for a two-and-a-half year period. Caravels objects that this request is overbroad because it includes documents not relevant to this case and is moreover unduly burdensome. ECF No. 47-8 at 13–14. In its twenty-second request, the City seeks “all documents exchanged between Caravels and Weidmann” for the same period. ECF No. 47-7 at 6. Caravels lodges the same objection. ECF No. 47-8 at 14. Caravels' supplemental response to the City's second set of requests for production does not affect these items.

As explained above, Weidmann supplies a variety of materials to Caravels for use in the manufacturing process. It appears a non-negligible amount of the communications and documents responsive to the City's request would not be relevant to the instant case. Relevance is an element of discoverability. See Fed. R. Civ. P. 26(b)(1). The City's motion makes clear that Caravels' lawsuit against Weidmann is at the heart of its requests. The City interprets that lawsuit as an admission that something, somewhere, went wrong in the production of the transformer, possibly involving materials supplied by Weidmann. The City contends that Caravels' lawsuit against Weidmann involves “the same” materials as those used to produce the transformer at issue in this case, and Caravels contends the materials are different. But—perhaps because the City does not believe Caravels will be forthcoming with documents and/or communications in response to a narrow request, and wants to leave no stone unturned—the City chose to request all documents and communications between Caravels and Weidmann. The City appears to believe that the materials in the transformers at issue in this case and Caravels' case against Weidmann are similar enough that, if something goes wrong with one, reasonable minds could expect the same fault to appear in the other. Whether the City's belief is correct is a factual dispute not appropriate for resolution in this Order; but the City is entitled to investigate its theory of the case to the extent the information necessary to that investigation is discoverable.

*7 With this in mind, the factors this Court must consider pursuant to Rule 26(b)(1) indicate the request is proper in part but should also be limited in part. Nothing before this Court indicates the City has independent access to those communications, and it appears some communications and documents do exist that are relevant to the claims and defenses in this case and responsive to the request. It appears discovery of those relevant communications and documents would be of some importance in resolving the issues in this case, perhaps even of significant importance—though this Court can only speculate as to the full weight they might carry, because their contents are not reflected in the record. That said, producing all documents and communications between Weidmann and Caravels would inevitably require a foray into areas for which the City has made no showing of relevance, and would also cause Caravels to entail at least some undue cost.

In consideration of the Rule 26(b)(1) factors, this Court concludes the City's motion is due to be GRANTED IN PART AND DENIED IN PART as to this item. It is GRANTED IN PART to the extent the City seeks communications and documents exchanged between Caravels and Weidmann concerning or discussing materials used in the manufacture of the transformer at issue in this case, not limited to the actual items made from those materials and installed in the transformer at issue here, from January 1, 2018, until the date the City served its second request for production. The motion is likewise GRANTED IN PART to the extent the City seeks communications or documents exchanged between Caravels and Weidmann during that period that concern or discuss the materials used in the manufacture of the transformer at issue in Caravels' lawsuit against Weidmann in the United States District Court for the Western District of Virginia. The City's motion is DENIED IN PART as to this item to the extent it would require production of communications or documents that pertain only to pricing, delivery schedules, and other such ancillary matters, but do not concern or discuss the design, manufacture, installation, storage, testing, safe handling, et cetera of the materials in question. The City's motion is otherwise DENIED IN PART as to this item to the extent it is not granted by this Order.

The City's twenty-third request seeks production of “[a]ll documents and things containing or reflecting communications between Caravels and Keith Kibler, relating to the subject transformer.” ECF No. 47-7 at 6. In response, Caravels incorporated by reference its objection to the City's earlier request, added relevance and undue-burden objections, and cryptically directed the City to “[s]ee emails previously produced by the parties.” ECF No. 47-8 at 14–15. Caravels' supplemental response does not affect this item.

This Court must DEFER IN PART ruling on this item for the same reasons it must defer ruling on the City's earlier request for communications involving Mr. Kibler. It is unclear whether there are communications between Caravels and Mr. Kibler concerning the subject transformer that are not covered by the assertion of privilege, but Caravels' response to the City's motion suggests some may exist. See ECF No. 53 at 24; see also ECF No. 47-9 (Caravels' amended privilege log, listing only emails from November 13, 2019, as being exchanged with Mr. Kibler). To the extent other communications exist between Mr. Kibler and Caravels concerning the subject transformer do exist, they are not reflected in either privilege log and are thus only subject to Caravels' relevance and undue-burden objections.

This Court overrules the relevance objection. Communications between a party and a witness about the specific product out of which the litigation arises are plainly relevant. This Court overrules the undue-burden objection in part. The City's request is overbroad in that it seeks production of “things containing or reflecting” such communications, which presumably includes items such as the physical email servers where such communications are stored, as well as any mobile phone or device that has downloaded a copy of them. This is far out of proportion to the needs of the case. Caravels need only produce a true and correct copy of the communications themselves. The City's motion is thus GRANTED IN PART, DENIED IN PART, AND DEFERRED IN PART as to this item.

*8 The City also moves for an award of attorney's fees. ECF No. 47 at 25. Because this Court has concluded the City's motion to compel must be granted in part and denied in part, this Court has discretion to award attorney's fees and to apportion them appropriately. See Fed. R. Civ. P. 37(a)(5)(C).

This Court concludes an award of attorney's fees would not serve the ends of justice in this case. Although the City's motion was in part meritorious, it also lacked merit in roughly equal measure. This Court has been required to limit the City's requests at several points in this Order, with the result being a sort of hybrid of an order compelling discovery and a protective order.

One exception is Caravels' claim of privilege concerning communications with Mr. Kibler. This Court has yet to rule on that issue, and a determination of attorney's fees as to it is therefore unripe.

The City's motion for attorney's fees is therefore DENIED IN PART except as to its motion to compel production of communications between Caravels and Mr. Kibler over which Caravels asserts claims of privilege. To the extent the City moves for attorney's fees for that portion of its motion to compel, the motion for attorney's fees is DEFERRED IN PART.

The discovery motion practice in this case makes clear to this Court that the relationship between the parties (and perhaps their respective counsels) is not what might be wished. The City is suspicious that more responsive information exists than Caravels has produced, and Caravels believes the City is refusing to listen to reason. The motions and responses at issue in this order supposedly address discovery requests and objections, but they devote considerable energy to the parties' history of increasingly unproductive communications concerning these matters.

The requirement to confer with opposing counsel is not an invitation to talk past one another, and sharp discovery practice of the kind exhibited in this case does little but drive up costs and monopolize this Court's limited resources. Filings that needlessly escalate suspicious accusations of misrepresentation or overreaction solve nothing. As the Ninth Circuit once ruled in another acrimonious case, “The parties are advised to chill.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).

Accordingly,

IT IS ORDERED:

SO ORDERED on July 9, 2020.

Caravels' Supplemental Response to the City's Second Set of Requests for Production, ECF No. 53-19, and Amended Privilege Log, ECF No. 47-8, may have already corrected this issue by supplementing the disclosures as required. The parties' filings do not make clear whether this is so, particularly as the instant motion postdates the supplementation. Because the first request in the City's second set seeks a narrower set of documents (i.e., those identified in Caravels' Rule 26 Initial Disclosures), it is not clear that Caravels' supplemental response to that request moots the City's motion with respect to this request.

It is unclear whether Caravels also moves for an extension of time regarding expert disclosures. See ECF No. 53 at 9. If it does wish an extension, Caravels should file an appropriate motion in this Court.

Caravels explains that four of these are really one email, logged several times because it had multiple recipients. ECF No. 53 at 7 n.3. For purposes of this motion, this Court considers each of those logged communications as a separate email.

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), the United States Court of Appeals for the Eleventh Circuit held all decisions of the United States Court of Appeals for the Fifth Circuit issued before the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit.

The City's first request in its first set of requests for production sought all test data, without being limited to the data identified in Caravels' Rule 26 disclosures.

In the event such a dispute should arise, this Order in no way forecloses the City from arguing that any such claim or objection was waived.