*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], and Defendants’ Motion to Amend the Scheduling Order, [Docket No. 320].

For the reasons discussed below, the Court GRANTS in part and DENIES in part Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], the Court GRANTS in part and DENIES in part Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], and the Court GRANTS in part and DENIES in part Defendants’ Motion to Amend the Scheduling Order, [Docket No. 320].

I. RELEVANT FACTS

For a more complete account of the facts that give rise to the present case and its procedural history, see this Court's prior Orders. [Docket Nos. 161, 173, 194, 248, 286].

On July 31, 2015, Plaintiffs entered into a Product Development and Marketing Agreement with Arctic Cat Sales Inc.[1] (the “Agreement”). (Agreement [Docket No. 236-1], at 2–23). Under the terms of the Agreement, Plaintiffs were to design and develop various side-by-side vehicles, identified in the Agreement as “Special Royalty Vehicles.” (See, Id. ¶ 2). In exchange, Arctic Cat Sales Inc. was to pay royalties to Plaintiffs on any Special Royalty Vehicles that it manufactured and sold. (See, Id. ¶ 3). In early 2017, Textron Specialized Vehicles Inc. (“TSV”)[2] acquired Arctic Cat Inc., and in July 2018, an Addendum to the Agreement was executed by TSV and Plaintiffs. (See, e.g., Romano Decl. [Docket No. 236] ¶¶ 22; Addendum [Docket No. 255-3]). The Parties have had a contentious relationship which culminated in Plaintiffs and Defendants each initiating lawsuits on March 19, 2020, in different courts. (See, e.g., Order [Docket No. 161], at 10). Those lawsuits were eventually consolidated and transferred to this Court as the present case. (See, e.g., Order [Docket No. 161], at 10–11).

On September 1, 2020, Plaintiffs filed their Second Amended Complaint. [Docket No. 164]. In the Second Amended Complaint, Plaintiffs assert claims against Defendants for: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) fraud—intentional misrepresentation; (4) fraud—negligent misrepresentation; and (5) fraud—concealment. (Id.).

The Parties have already engaged in a considerable amount of discovery and motion practice.

On January 26, 2021, Plaintiffs served their Supplemental Responses to Defendants’ First Set of Requests for Production of Documents. (See, Exs. 8–10 [Docket No. 299-1], at 55–1627).

*2 On January 28, 2021, Defendants deposed Robby Gordon (“Gordon”). (Ex. 5 [Docket No. 299-1], at 25–44).

On February 1, 2021, Defendants served their Second Demand for Inspection, which was addressed to “Plaintiffs and their Attorneys” and stated:

(Ex. 1 [Docket No. 299-1], at 1–3). Defendants’ Second Demand for Inspection seeks to inspect Speed UTV's “Baja Vehicles.” (Id.). Speed UTV, LLC is a non-party entity that “is currently developing a line of power motorsports vehicles which Defendants have identified as ‘Baja Vehicles.’ ” (Gordon Decl. [Docket No. 307] ¶ 2). “The vehicles listed on the Speed UTV, LLC website for preorder have not yet been built,” but “Speed UTV, LLC is in possession of pre-production prototypes of two Speed UTV vehicles which are used for testing, design and evaluation work.” (Id. ¶ 4). Gordon and Todd Romano (“Romano”) together own Speed UTV, LLC. (Romano Dep. [Docket No. 299-1], at 51–53).

On February 12, 2021, Plaintiffs served on TSV their Notice of Deposition of Person Most Qualified of Textron Specialized Vehicles Inc., which noticed a 30(b)(6) deposition for March 15, 2021. (Ex. 6 [Docket No. 293-6]). The Notice included 35 topics of examination, as well as, 9 Requests for Production of Documents. (Id.). TSV objected to the Notice. (See, e.g., Ex. 7 [Docket No. 293-7]).

On March 15, 2021, Plaintiffs served on TSV their Amended Notice of Deposition of Person Most Qualified of Textron Specialized Vehicles Inc., which noticed a 30(b)(6) deposition for March 26, 2021, and included 35 topics of examination. (Ex. 9 [Docket No. 293-9]). The 35 topics in the Amended Notice were essentially the same as those in the original Notice, but Plaintiffs included additional language regarding some of the information sought by particular requests. (Id.). Plaintiffs have also amended the definition of the terms “you,” “your,” or “yours” to include TSV's subsidiaries such as Arctic Cat Sales Inc. (Id.). The Amended Notice did not include any Requests for Production of Documents. (See, Id.). TSV objected to the Amended Notice. (See, e.g., Ex. F [Docket No. 303-6]).

Also on March 15, 2021, Speed RMG Partners, LLC (“Speed RMG”) served its Responses to Defendants’ Third Set of Requests for Production of Documents. (Ex. 18 [Docket No. 299-2], at 28–928). And Gordon served his Supplemental Further Responses to Defendants’ Second Set of Interrogatories. (Ex. 20 [Docket No. 299-1], at 1048–67).

*3 On March 19, 2021, Defendants deposed Hani Sayed (“Sayed”). (Ex. 12 [Docket No. 299-1], at 1703–64). During that deposition, Defendants questioned Sayed on statements he made in paragraph 12 of his declaration filed in opposition to Defendants’ motion to disqualify counsel,[3] as well as, about a statement he made in an August 19, 2016, email.[4] (Ex. 12 [Docket No. 299-1], at 1712–14, 1724). Plaintiffs’ counsel and/or Sayed claimed that the information sought by Defendants was protected by attorney-client privilege and/or work product, and Sayed refused to answer Defendants’ questions. (Id.).

On April 16, 2021, Plaintiffs served on TSV their Second Amended Notice of Deposition of Person Most Qualified of Textron Specialized Vehicles Inc. (the “Second Amended Notice”). (Ex. 10 [Docket No. 293-10]). The Second Amended Notice notices a 30(b)(6) deposition for April 30, 2021, and it includes 50 topics of examination. (Id.). The Second Amended Notice does not include any Requests for Production of Documents. (See, Id.).

On April 21, 2021, Speed RMG served its Amended Responses to Defendants’ Third Set of Requests for Production of Documents. (Ex. I [Docket No. 306-9]).

II. DEFENDANTS’ MOTION FOR PROTECTIVE ORDER TO LIMIT THE DEPOSITION OF TEXTRON SPECIALIZED VEHICLES’ 30(B)(6) WITNESS [Docket No. 289]

On April 21, 2021, Defendants filed their Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness. [Docket No. 289].[5] Defendants seek an Order of this Court “requiring [Plaintiffs] to narrow, with reasonable particularity, the areas of inquiry,” as well as, “limiting the length of the 30(b)(6) deposition of TSV's corporate representative to 3.5 hours.” (Mem. in Supp. [Docket No. 291], at 10, 48).

A. Standard of Review

*4 Federal Rule of Civil Procedure 30(b)(6) states:

Rule 26(b)(1) states:

Rule 26(b)(2)(C) further states:

The party moving for a protective order “bears the burden of demonstrating the necessity of a protective order.” Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013). “District Courts have broad discretion to decide discovery motions and to limit discovery.” Bison Advisors LLC v. Kessler, No. 14-cv-3121 (DSD/SER), 2015 WL 4509158, *2 (D. Minn. July 24, 2015) (citing Pavlik v. Cargill, Inc., 9 F.3d 710, 714 (8th Cir. 1993). However, “discovery may not be had on matters irrelevant to the subject matter involved in the pending action.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999). The required threshold showing of relevance “is met if the information sought is ‘relevant to the subject matter involved in the pending action.’ ” Orduno v. Pietrzak, No. 14-cv-1393 (ADM/JSM), 2016 WL 5853723, *3 (D. Minn. Oct. 5, 2016) (quoting Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 579 (D. Minn. 1999)).

B. Analysis

Defendants have objected to each of the fifty 30(b)(6) topics in the Second Amended Notice. (See, Mem. in Supp. [Docket No. 291]). Defendants objections contain the following three overarching assertions: (1) a 30(b)(6) deposition would be duplicative of prior depositions because fact witnesses have already been questioned about many of the noticed topics; (2) Plaintiffs seek testimony from TSV on behalf of its subsidiaries Arctic Cat Inc. and Arctic Cat Sales Inc.; and (3) the topics are not stated with reasonable particularity, contain vague terms or subject matters, are overbroad, and/or are not relevant or proportional to the present case. (See, Id.).

*5 Defendants repeatedly contend that the noticed 30(b)(6) deposition topics will be duplicative of testimony that Plaintiffs have already obtained, or could have obtained, from prior depositions of fact witnesses. (See, Mem. in Supp. [Docket No. 291]). As such, Defendants argue that this Court should issue a protective order limiting the scope of the noticed 30(b)(6) topics, as well as, limiting the duration of the 30(b)(6) deposition to 3.5 hours. (See, e.g., Id. at 48).

Bison Advisors LLC, 2015 WL 4509158, at *2 (citations omitted).

Here, Defendants expressly “recognize[ ] there is a difference between an individual's testimony and that of a corporate 30(b)(6) designee.” (Mem. in Supp. [Docket No. 291], at 13). But Defendants also contend that “a corporate deposition should be limited when testimony would be duplicative,” and that “[a]ny testimony of TSV's corporate representative will be highly duplicative of the testimony already provided.” (Id. at 13–14, 48). Thus, Defendants argue that the noticed 30(b)(6) deposition should be limited in scope and duration. (See, e.g., Id. at 48).

Defendants rely on Bison Advisors LLC in support of their present argument. (See, Id. at 13–14, 48). In Bison Advisors LLC, Judge David S. Doty affirmed Magistrate Judge Steven E. Rau's order limiting a 30(b)(6) deposition to 3.5 hours where “[t]he parties agree[d] that at least some of the testimony to be offered in the combined deposition would be duplicative of testimony offered by [the sole owner of the company which was the sole member of the plaintiff in that case] in his individual capacity” and “much of [that individual's] testimony was adopted as binding on [the plaintiff].” 2015 WL 4509158, at *2. Judge Doty noted, in contrast to the general provisions quoted above, “a separate deposition of a closely held corporation may not be appropriate where the testimony of the corporate representative would be identical to the testimony given in his or her individual capacity.” Id.

The present case is materially distinguishable from Bison Advisors LLC. Defendants do not assert that TSV is a closely held corporation. (See, Mem. in Supp. [Docket No. 291]). There has also been no agreement between the Parties that the 30(b)(6) testimony will be duplicative of that elicited during individual depositions. To the contrary, Plaintiffs contend that “the bulk of the fact witness testimony cited as cumulative in the Motion does not adequately respond to the corresponding topic of inquiry.” (Mem. in Opp'n [Docket No. 302], at 11–12). Moreover, although Defendants assert that “TSV offered to designate the testimony of Mr. Collins and Mr. Rhinesmith in response to certain topics,” the Parties have not agreed to a stipulation by which any prior individual testimony of Mr. Collins or Mr. Rhinesmith has been designated as binding on TSV. (See, e.g., Mem. in Supp. [Docket No. 291], at 13).

Defendants bear the burden of demonstrating a protective order is warranted. See, e.g., Shukh, 295 F.R.D. at 237. As already noted, a 30(b)(6) deposition is fundamentally different than an individual deposition. See, Bison Advisors LLC, 2015 WL 4509158, at *2; see also, Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (quoting Marker v. Union Fidelity Life Inc. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989)) (“[O]nce notified as to the reasonably particularized areas of inquiry, the ‘corporation then must not only produce such number of persons as will satisfy the request, but more importantly, prepare them so that they may give complete, knowledgeable and binding answers on behalf of the corporation.’ ”).

*6 In light of the fundamental difference between individual depositions and 30(b)(6) depositions and for the foregoing reasons, this Court finds that Defendants have not met their burden of establishing a protective order is warranted because the testimony would be duplicative. See, e.g., Bertrang v. Wis. Cent., Ltd., 301 F.R.D. 364, 368 (D. Minn. 2014) (rejecting the defendant's argument that information sought in a 30(b)(6) deposition was duplicative of testimony by individual witnesses because “Rule 30(b)(6) depositions have the effect of binding a corporation in a way that fact witnesses cannot”); cf., W. Va. Pipe Trades Health & Welfare Fund v. Medtronic Inc., No. 13-1686 (JRT/FLN), 2017 WL 9325026, at *7 n.6 (D. Minn. Oct. 12, 2017) (“The deposing party may question a Rule 30(b)(6) designee about a particular topic even if the topic is duplicative of other evidence because Rule 30(b)(6) testimony is ‘binding’ on the organization.”).

Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is DENIED to the extent that it seeks an Order of this Court limiting the scope and duration of the 30(b)(6) deposition because the testimony will be duplicative of that elicited during individual depositions. Pursuant to Federal Rule of Civil Procedure 30(d)(1), the noticed 30(b)(6) deposition of TSV's corporate representative shall be limited to one day of seven hours absent a further Order of this Court.

Defendants also argue that this Court should issue a protective order limiting the scope of the noticed 30(b)(6) deposition to prohibit Plaintiffs from eliciting binding testimony from TSV regarding the knowledge of its subsidiaries Arctic Cat Sales Inc. and Arctic Cat Inc. (See, e.g., Mem. in Supp. [Docket No. 291], at 8–10, 14–15).

Defendants contend that because the Second Amended Notice defines the terms “you,” “your,” and “yours” to include TSV's subsidiaries, it improperly “seeks to require testimony on behalf of two additional parties, Arctic Cat Sales Inc. and Arctic Cat Inc., turning the original deposition notice into three deposition notices.” (Id. at 14). Defendants further contend that “TSV cannot offer testimony on these topics, as Arctic Cat Sales Inc. and Arctic Cat Inc. are entirely separate entities and were not affiliated with TSV in any way during most of the activities which compromise the disputes at issue.” (Id.). In addition, Defendants assert that “several topics ask for TSV to testify regarding events that occurred before TSV acquired the Arctic Cat entities,” and Defendants contend that “TSV ... would have no knowledge or information regarding decisions or communications made during the pre-acquisition period and thus [those pre-acquisition events] are not proper topics for a Rule 30(b)(6) notice directed at TSV.” (Id. at 14–15) (emphasis in original).

In contrast, Plaintiffs assert that parent companies are often required to provide information that is in the possession of their subsidiaries, and “where a company fails to provide sufficient evidence why it would not have access to the basic information of its affiliate(s), that information is presumed to be known or reasonably available to the corporation.” (Mem. in Opp'n [Docket No. 302], at 12–14). Thus, Plaintiffs contend that this objection should be overruled because “Defendants provide absolutely no basis for finding that information in the possession of TSV's subsidiaries is not accessible to TSV.” (Id. at 14).[6]

*7 A designated Rule 30(b)(6) deponent “must testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). “The determination of whether information is known or reasonably available to a corporation requires a fact-specific analysis.” Townsend v. AutoZone Stores, LLC, No. 4:16-cv-04036, 2017 WL 2790553, at *2 (W.D. Ark June 27, 2017) (quoting Coryn Grp. II, LLC v. O.C. Seacrets, Inc., 265 F.R.D. 235, 239 (D. Md. 2010)).

In conducting that fact-specific analysis, some courts have looked to the Rule 34 “control” standard for guidance and found that a parent “must produce a witness prepared to testify with the knowledge of the subsidiaries and affiliates if the subsidiaries and affiliates are within its control.” Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., No. 01 CIV 3016(AGS)(HB), 2002 WL 1835439, at *2 (S.D.N.Y. Aug.8, 2002); see also, Sanofi-Aventis v. Sandoz, Inc., 272 F.R.D. 391, 395 (D.N.J. 2011) (“The availability of information in the possession of a related company turns on the facts of each case, in particular as they relate the ‘control’ standard of Rule 34(a).”).

However, “the standard applicable to Rule 30 differs from the standard used under Rule 34.” Townsend, 2017 WL 2790553, at *2; see also, In re Ski Train Fire of Nov. 11, 2000 Kaprun Austria, No. MDL 1428(SAS)THK, 2006 WL 1328259, at *9 (S.D.N.Y. May 16, 2006). And as such, courts have also held that a parent corporation is not obligated “to acquire all of the knowledge of the subsidiary on matters in which the parent was not involved, and to testify to those matters in a manner which binds the parent, a separate legal entity.” In re Ski Train, 2006 WL 1328259, at *9; see also, Coryn Grp II, LLC, 265 F.R.D. at 239 (citations omitted) (“[A] corporate designee need not acquire knowledge from an affiliate on matters in which the deposed corporation was entirely uninvolved, but may be required to designate witnesses prepared to discuss topics involving ‘related companies’ to the extent the corporation has knowledge of those topics.”).

TSV acquired the Arctic Cat Parties in March 2017. (Order [Docket No. 173], at 2). Following the acquisition, TSV was materially involved in the Parties’ relationship, and TSV exercised direct control over the Arctic Cat Parties in relation to Plaintiffs and the Agreement. Indeed, following the acquisition, the Vice President of TSV's Offroad Division, Mr. Collins, was “the primary decision-maker regarding the development of vehicles governed by the Agreement” and “managed and oversaw the implementation and execution of the terms of the Agreement.” (Collins Decl. [Docket No. 210] ¶ 5; see also, Second Am. Compl. [Docket No. 164] ¶ 72 (“John Collins ... is the individual who was identified to Speed Partners as the person in charge of the Arctic Cat side-by-side program.”)). Defendants have not provided any evidence or explanation as to why TSV would not have access to its subsidiaries’ knowledge following the acquisition. See, Townsend, 2017 WL 2790553, at *2 (quoting Coryn Grp. II, Inc., 265 F.R.D. at 239) (“Where a company fails to provide sufficient evidence why it would not have access to the basic information of its affiliate(s), that information is presumed to be known or reasonably available to the corporation.”).

*8 Accordingly, this Court finds that any post-acquisition knowledge possessed by the Arctic Cat Parties is reasonably available to TSV. See, Coryn Grp. II, 265 F.R.D. at *239 (finding the knowledge of affiliate entities was reasonably available to a corporate 30(b)(6) deponent where the entities operated as a unit, shared information, had officers in common, and “no convincing evidence ha[d] been provided to establish that the information sought [wa]s not reasonably available to [the corporate deponent]”); Sanofi-Aventis, 272 F.R.D. at 395–96 (finding that the knowledge of a sister corporation was reasonably available to a corporate 30(b)(6) deponent where the entities had a close relationship that went “beyond conventional business dealings” and the entities acted together in the at-issue transaction).

Prior to acquiring the Arctic Cat Parties in March 2017, however, TSV did not have any involvement whatsoever in the relationship between the Arctic Cat Parties and Plaintiffs or with the Agreement. Given TSV's utter lack of involvement in the pre-acquisition matters at issue in this case, the Arctic Cat Parties’ knowledge on those matters should have been, and has been, obtained through discovery directed to the Arctic Cat Parties themselves. Indeed, throughout this litigation, the Parties have consistently treated each Defendant and each Plaintiff as separate entities for discovery purposes. To that end, Plaintiffs have previously represented and argued to this Court that each Defendant “should respond on their own behalf” to discovery requests. (See, e.g., Plfs.’ Mem. [Docket No. 110], at 24). It is simply not reasonable to require TSV to obtain all of the Arctic Cat Parties’ knowledge on matters which predate the parent-subsidiary relationship between TSV and the Arctic Cat Parties in light of TSV's lack of involvement in those matters and the Parties’ prior approach to discovery in this case.

Accordingly, this Court finds that any pre-acquisition knowledge possessed by the Arctic Cat Parties is not reasonably available to TSV. See, Townsend, 2017 WL 2790553, at *4 (finding that the defendant was “not required to produce 30(b)(6) witnesses of its sister corporation ... to testify as to certain topics noticed for deposition” where “no evidence ha[d] been presented to establish that [the defendant] was involved in many of the transactions” related to those noticed topics); Ski Train, 2006 WL 1328259, at *9 (finding that a parent corporation's 30(b)(6) deponent was not required to obtain the knowledge of its subsidiary on matters in which the parent was not involved).

Nevertheless, TSV likely possesses its own relevant knowledge in reference to some, if not all, of the noticed 30(b)(6) topics that involve pre-acquisition matters. For example, TSV likely attained some knowledge of pre-acquisition matters through its due diligence and integration processes, as well as, in connection with its execution of the Addendum. To the extent that TSV itself has knowledge related to pre-acquisition matters, TSV must designate and prepare a 30(b)(6) deponent to give complete and binding answers representing TSV's own knowledge of the noticed 30(b)(6) topics. See, e.g., Honda Lease Trust v. Middlesex Mut. Assurance Co., No. 3:05CV1426 (RNC), 2008 WL 3285242, at *3 (D. Conn. Aug. 7, 2008) (“[T]he plaintiff need not produce as 30(b)(6) witnesses the employees of any related companies. However, to the extent that [the plaintiff] itself has knowledge of the topics in the deposition notice, it shall designate and prepare its witnesses for a 30(b)(6) deposition as set forth herein.”).

Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is GRANTED in part and DENIED in part to the extent that it seeks an Order of this Court limiting the scope of the noticed 30(b)(6) deposition and prohibiting Plaintiffs from eliciting binding testimony from TSV regarding the knowledge of its subsidiaries Arctic Cat Sales Inc. and Arctic Cat Inc. As set forth above, TSV shall designate and prepare a Rule 30(b)(6) deponent to testify about the combined knowledge of TSV and its subsidiaries, the Arctic Cat Parties, in reference to post-acquisition matters, and TSV shall designate and prepare a Rule 30(b)(6) deponent to testify about its own knowledge, but not that of its subsidiaries, in reference to pre-acquisition matters.

*9 Defendants further argue that each of the fifty 30(b)(6) topics in the Second Amended Notice are not stated with reasonable particularity, contain vague terms or subject matters, are overbroad, and/or are not relevant or proportional to the present case. (Mem. in Supp. [Docket No. 291]).

Topic Nos. 3–5, 10–12, 17–19, 24, 25, 33, and 34 vaguely seek to inquire into TSV's “past experiences and historical practices,” “internal risk management writings and historical risk management practices,” and/or “historical internal processes” related to several broad subject matters, such as launching powersports vehicles or developing powersports vehicles. (See, Ex. 10 [Docket No. 293-10], at 6–10, 12).

Rule 30(b)(6) permits “a party [to] name as the deponent a public or private corporation,” but requires the notice to describe “with reasonably particularity the matters for examination.” Arctic Cat, Inc. v. Bombardier Recreational Prod., Inc., No. 12-cv-2692 (JRT/LIB), 2014 WL 12610146, at *6 (D. Minn. May 23, 2014) (citing Fed. R. Civ. P. 30(b)(6)); see also, Prokosch, 193 F.R.D. at 638 (“[T]he requesting party must reasonably particularize the subjects of the intended inquiry so as to facilitate the responding party's selection of the most suitable deponent.”).

Courts have consistently found that parties’ Rule 30(b)(6) deposition notices lack reasonable particularity where the information sought would make it nearly impossible for a party to designate and fully prepare a corporate representative with knowledge regarding the topics as noticed. See, e.g., E3 Biofuels, LLC v. Biothane, LLC, No. 8:11CV44, 2013 WL 4400506, at *2–3 (D. Neb. Aug. 15, 2013) (finding several topics were not reasonably particular where “[i]t would be nearly impossible ... to designate and fully prepare a corporate representative with knowledge of th[e] topic[s] as noticed”); Zehner v. GE Homeland Prot., Inc., No. 4:08CV403, 2009 WL 233953, at *1 (E.D. Mo. Jan. 30, 2009) (finding that the plaintiff's deposition notice was not reasonably particular where it did not state a relevant time period).

Here, Plaintiffs have not satisfied the reasonable particularity requirement in reference to Topic Nos. 3–5, 10–12, 17–19, 24, 25, 33, and 34. Those topics seek to inquire into historical practices, experiences, and processes without temporal limitation. (See, Ex. 10 [Docket No. 293-10], at 6–10, 12). And those topics seek to make such inquiries regarding “powersports vehicles,” which Plaintiffs broadly define as “motorized vehicles used in connections with powersports, such as motorcycles, ATVs (i.e., all-terrain vehicles), snowmobiles and PWCs (i.e., personal watercrafts).” (Id. at 4–5). Thus, those topics as drafted include information related to an untold number of vehicles spanning the course of Defendants’ entire existence. Because of the tremendous amount of information that those topics encompass, it would be impossible for TSV to designate and fully prepare a 30(b)(6) deponent with knowledge regarding the topics as noticed.

Moreover, those topics are patently overbroad. The nearly limitless temporal and subject matter scope of those topics as drafted necessarily encompasses vast amounts of information that is plainly not relevant to the present case. See, Fed. R. Civ. P. 26(b)(1); see also, Miscellaneous Docket Matter No. 1, 197 F.3d at 925 (“[D]iscovery may not be had on matters irrelevant to the subject matter involved in the pending action.”).

*10 Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is GRANTED to the extent that it seeks a protective order in reference to Topic Nos. 3–5, 10–12, 17–19, 24, 25, 33, and 34.

Topic Nos. 37–41 seek information related to Defendants document retention policies, and efforts to preserve, locate, and produce documents in the present case. (See, Ex. 10 [Docket No. 293-10], at 13).

Defendants contend that “[i]nquiry into document retention policies is unrelated to the instant litigation and is an inappropriate topic for a 30(b)(6) deposition.” (Mem. in Supp. [Docket No. 291], at 43). Thus, Defendants further contend that Topic Nos. 37–41 “are inappropriate for a Rule 30(b)(6) deposition.” (Id. at 44).

Topic Nos. 37–41 seek to inquire into the process utilized by Defendants to preserve, locate, and produce documents in response to Plaintiffs’ prior discovery requests, therefore they seek discovery on discovery. “Where, as here, a party seeks discovery on discovery, that party must provide an adequate factual basis to justify the discovery, and the Court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Parimal v. Manitex Int'l, No. 3:19CV01910 (MPS), 2020 WL 6689395, at *2 (D. Conn. Nov. 13, 2020) (quoting Kay v. New York City Health & Hosps. Corp., No. 18CV12137 (JPO) (JLC), 2020 WL 283702, at *1 (D.D.N.Y. Jan. 21, 2020)); see also, Gross v. Chapman, No. 19 C 2743, 2020 WL 4336062, at *2 (N.D. Ill. July 28, 2020) (“While most courts acknowledge that ‘discovery about discovery’ can be appropriate under certain circumstances, those circumstances are limited to times when one party's discovery compliance has reasonably been drawn into question, [or] that there is ‘an adequate factual basis’ for an inquiry.”); Jensen v. BMW of N. Am., LLC, 328 F.R.D. 557, 566 (S.D. Cal. 2019) (quoting Ashcraft v. Experian Info. Sols., Inc., No. 16-cv-02978-JAD-NJK, 2018 WL 6171772, at *2 n.2 (D. Nev. Nov. 26, 2018)) (“Discovery into another party's discovery process is disfavored.”).

Here, Plaintiffs contend that “because of the spoliation issues presented in this action, such topics of inquiry are plainly relevant.” (See, Mem. in Opp'n [Docket No. 302], at 31–33). Specifically, Plaintiffs assert that Defendants did not put in place a litigation hold until 2019. (Id. at 31; see also, Nichols Decl. [Docket No. 303] ¶ 17). Plaintiffs further assert that consequently, shortly after the departures of Mr. Metz, Mr. Crocker, and Mr. Anderson in 2017 and 2018, Defendants deleted “emails and files, and wiped their laptops clean to be reissued.” (Mem. in Opp'n [Docket No. 302], at 31–32; see also, Nichols Decl. [Docket No. 303] ¶ 17).

“The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.” E*Trade Secs. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005). “If destruction of relevant information occurs before any litigation has begun, in order to justify sanctions, the requesting party must show that the destruction was the result of bad faith.” Escamilla v. SMS Holdings Corp., No. 09-2120 (ADM/JSM), 2011 WL 13243580, at *29 (D. Minn. June 28, 2011).

*11 In the present case, Plaintiffs sent Defendants a Notice of Breach and Request for Mediation in February 2019, thereby putting Defendants on notice that the litigation was imminent. (Order [Docket No. 161], at 9). Thus, Defendants’ duty to preserve evidence relevant to the present litigation began in February 2019. See, e.g., E*Trade, 230 F.3d at 589.[7] The purported destruction of files on Mr. Metz, Mr. Crocker, and Mr. Anderson's laptops occurred before Defendants’ duty was triggered, and nothing in the record presently before the Court indicates that the files were deleted in bad faith. Rather, Plaintiffs indicate that the files were deleted to facilitate the re-issuance of Mr. Metz, Mr. Crocker, and Mr. Anderson's employee laptops following the termination of their employment. (See, Mem. in Opp'n [Docket No. 302], at 31–32; Nichols Decl. [Docket No. 303] ¶ 17). Accordingly, this Court finds that no spoliation issues have been presented in the current record so as to justify the requested discovery on discovery.

In the absence of any bona fide spoliation issue, this Court finds that Topic Nos. 37–41 are not relevant to the actual claims and defenses at issue in the present case. See, e.g., W. Va. Pipe Trades Health & Welfare Fund v. Medtronic Inc., No. 13-1686 (JRT/FLN), 2015 WL 12778845, at *3 (D. Minn. June 12, 2015) (finding topics that “s[ought] to discover [the defendant's] document retention and discovery practices” were “not reasonably calculated to lead to the discovery of admissible evidence”). Moreover, to the extent that those topics would uncover any relevant information, the Court finds that the relevancy would be greatly outweighed by the burden on TSV to prepare a 30(b)(6) deponent to provide the requested information. Due to the lack of relevance, any inquiry into Topic Nos. 37–41 would be a waste of resources and inconsistent with Rule 1 of the Federal Rules of Civil Procedure.

Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is GRANTED to the extent that it seeks a protective order in reference to Topic Nos. 37–41.

Topic Nos. 42–50 seek information related to TSV's acquisition of the Arctic Cat Parties. (See, Ex. 10 [Docket No. 293-10], at 14–15). Specifically, those topics seek to inquire into TSV's “due diligence” prior to acquiring Arctic Cat, as well as, TSV's efforts to “improve or turnaround” Arctic Cat's financial performance, clear Arctic Cat's inventory, and integrate Arctic Cat's offroad or dirt business following the acquisition. (Id.).

*12 Defendants contend that the information sought by those noticed topics are not relevant to the present litigation. (Mem. in Supp. [Docket No. 291], at 44–47). Defendants further contend that Plaintiffs’ inquiry into due diligence topics is not supported by any evidence, and the minimal relevancy, if any, is outweighed by the burden of complying with Plaintiffs’ overbroad requests. (Id. at 46).

The threshold inquiry with regard to discovery issues is whether the moving party seeks discoverable material. Prokosch, 193 F.R.D. at 635 (citing Shelton v. Am. Motors, 805 F.2d 1323, 1326 (8th Cir. 1986)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discoverable material is limited to that which is relevant to the parties’ claims or defenses. See, e.g., Mallak v. Aitkin Cnty., No. 13-cv-2119 (DWF/LIB), 2016 WL 8607391, at *6 (D. Minn. June 30, 2016), aff'd, 2016 WL 8607392 (D. Minn. Sept. 29, 2016) (citing Sierrapine, 275 F.R.D. at 609). And the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).

In this Court's prior April 15, 2021, Order, [Docket No. 286], the Court has already addressed the scope of discovery in relation to TSV's acquisition of Arctic Cat. In that prior Order, this Court found that documents related to “due diligence” conducted prior to the acquisition or the transition of ownership following the acquisition which are not related to Plaintiffs or the Agreement are not relevant to the claims of defenses in this case. (Id. at 23–24). Accordingly, the Court found that Defendants were not required to produce due diligence and transition documents which are not related to Plaintiffs’ or the Agreement. (Id. at 24). However, this Court did order Defendants to produce due diligence and transition documents, if any, that are related to Plaintiffs or the Agreement. (Id.).

Here, Topic Nos. 42–50 seek similar information to the requests addressed in this Court's prior April 15, 2021, Order. Plaintiffs’ arguments in support of the present motion are also nearly identical to those raised previously. (Compare, Mem. in Supp. [Docket No. 302], at 34–35; with, Plf.’s Mem. [Docket No. 244], at 16–17) (both contending the information sought is “relevant to, among other things, show (1) whether Defendants knew of the alleged lack of any ‘business case’ for the vehicles in 2017 at the time of Textron's acquisition, years prior to Mr. Collins’ communication, and/or (2) whether Textron Inc. failed to evaluate this aspect of Arctic Cat's business prior to its acquisition.”).

Although some of the at-issue topics seek to narrow the areas of inquiry from Arctic Cat as a whole to “Arctic Cat's off-road or dirt” division, they remain overbroad. Topic Nos. 42–50 simply represent a second attempt by Plaintiffs to get information related to TSV's acquisition of the Arctic Cat Parties which this Court has previously determined is not relevant.

Accordingly, consistent with the prior April 15, 2021, Order, this Court finds that Plaintiffs have not made a threshold showing that Topic Nos. 42–50 are relevant to the claims or defenses in this case to the extent that the information sought does not relate to Plaintiffs or the Agreement. However, this Court also finds that Topic Nos. 42–50 are indeed relevant to the extent that the information sought relates to Plaintiffs or the Agreement. In addition, the Court further finds that Topic Nos. 42-50 are relevant to the extent that the information sought relates to similar side-by-side vehicles, if any, within Arctic Cat's off-road or dirt division which are not subject to the Agreement because due diligence, integration, and financial improvement efforts regarding those vehicles, if any, would necessarily implicate Special Royalty Vehicles subject to the Agreement.

*13 Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is GRANTED in part and DENIED in part to the extent that it seeks a protective order in reference to Topic Nos. 42–50. TSV must prepare a 30(b)(6) deponent to discuss Topic Nos. 42–50 to the extent those topics relate to Plaintiffs, Special Royalty Vehicles, similar side-by-side vehicles within the Arctic Cat/TSV dirt division, or the Agreement.[8]

Topic Nos. 1, 2, 6–9, 13–16, 20–23, 26–32, 35, and 36 seek information related to the launch, acceptance of dealer orders, cancellation of dealer orders, development, production, and sale of specific Special Royalty Vehicles contemplated under the Agreement and/or Addendum, as well as, representations made by Defendants that are related to the allegations in the Complaint. (See, Ex. 10 [Docket No. 293-10], at 6–13).

The Court has carefully reviewed the Parties arguments in relation to each of those topics and the topics themselves as drafted, and the Court concludes that each of those topics is stated with reasonable particularity, is sufficiently narrow in scope, seeks relevant information, and is proportional to the present case. The mere fact that some of those topics may require the review of a large volume of information does not mean they are per se lacking in the reasonable particularity required of 30(b)(6) topics. See, e.g., MasterMine Software, Inc. v. Microsoft Corp., No. 13-cv-PJS/TNL), 2015 WL 12778717, at *6 (D. Minn. Aug. 5, 2015) (“While preparing to testify fully on Deposition Topic No. 6 may have involved reviewing a large volume of information, that does not mean that the topic was not described with reasonable particularity.”).[9]

*14 Therefore, Defendants’ Motion for Protective Order to Limit the Deposition of Textron Specialized Vehicles’ 30(b)(6) Witness, [Docket No. 289], is DENIED to the extent that it seeks a protective order in reference to Topic Nos. 1, 2, 6–9, 13–16, 20–23, 26–32, 35, and 36.

III. DEFENDANTS’ MOTION TO COMPEL DISCOVERY RESPONSES [Docket No. 295]

On April 21, 2021, Defendants filed their Motion to Compel Discovery Responses. [Docket No. 295].[10] Defendants seek an Order of this Court compelling Plaintiffs to: (1) make Baja Vehicles available for inspection; (2) supplement their Responses to Set I Request for Production of Documents Nos. 2, 52, 53, and 54; (3) produce attorney Hani Sayed for a supplemental deposition; (4) produce Robby Gordon's diary; (5) amend Speed RMG Partners, LLC's Responses to Set III Request for Production Nos. 2, 3, 5–7, 11–16, 20–23, and 34; and (6) amend Robby Gordon's Supplemental Answers to Corrected Interrogatory Nos. 5 and 10. (Id.).[11]

A. Standard of Review

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Courts construe Rule 26(b)(1) broadly. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). However, the scope of discovery is intended to focus on the actual claims or defenses that are at issue in the litigation. See e.g., Sierrapine v. Refiner Prods. Mfg., Inc., 275 F.R.D. 604, 609 (E.D. Cal. 2011). Parties are not entitled to discovery for the purpose of developing new claims or defenses that are not already identified in the pleadings. See, e.g., Leisman v. Archway Med., Inc., No. 4:14CV1222 RLW, 2015 WL 4994084, at *2 (E.D. Mo. Aug. 19, 2015). As such, the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380.

*15 In addition, “even if relevant, discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)). “The party resisting production bears the burden of establishing lack of relevancy or undue burden.” St. Paul Reinsurance Co. v. Com. Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (citations omitted).

“On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). Federal Rule of Civil Procedure 37(a)(3) provides for various motions to compel disclosure or compel discovery depending on the failure of the other party. Specifically, the Court may compel a discovery response if “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv).

B. Analysis

Defendants seek an Order of this Court compelling Plaintiffs to make Speed UTV's “Baja Vehicles” available for inspection. (Mem. in Supp. [Docket No. 297], at 2–11).

As already noted, the threshold inquiry with regard to discovery issues is whether the moving party seeks discoverable material. Prokosch, 193 F.R.D. at 635 (citing Shelton v. Am. Motors, 805 F.2d 1323, 1326 (8th Cir. 1986)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discoverable material is limited to that which is relevant to the parties’ claims or defenses. See, e.g., Mallak, 2016 WL 8607391, at *6 (citing Sierrapine, 275 F.R.D. at 609). And the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380.

The Baja Vehicles that Defendants seek to inspect are being developed and offered for sale by Speed UTV, LLC, which is a non-party entity owned by Plaintiffs Gordon and Romano. (Romano Dep. [Docket No. 299-1], at 51–53; Gordon Decl. [Docket No. 307] ¶ 2). Defendants argue that an inspection of the Baja Vehicles is relevant to the present case for two reasons.

First, Defendants argue that the requested inspection is relevant because “a critical dispute in this case relates to the ownership of intellectual property which was developed and incorporated into vehicles developed under the agreement.” (Mem. in Supp. [Docket No. 297], at 6). In support of that argument, Defendants assert that they “allege that they own intellectual property relating to the Product and Marketing Agreement,” and “[a] visual inspection of the [Baja] vehicles is necessary to verify whether [Plaintiffs] are using patented designs that belong to [Defendants] in the Baja Vehicles.” (Id. at 7).

Defendants’ argument relies on claims asserted in their First Amended Complaint which was filed in the Central District of California in Defendants’ preemptively filed case. (Id. at 6–7) (citing First Am. Compl., Arctic Cat Inc. et al. v. Speed RMG Partners, LLC, et al., 19-cv-7435 (FMO/GJS) (C.D. Cal. Oct. 24, 2019)).[12] Defendants’ First Amended Complaint from the prior sister case is not the operative pleading in this case. Plaintiffs’ Second Amended Complaint, [Docket No. 164], is the operative pleading in this case. On March 19, 2021, Defendants answered Plaintiffs’ Second Amended Complaint. (Answer [Docket No. 260]). Defendants’ do not assert any counterclaims in their Answer. (See, Id.). Thus, Defendants have no operative claims in the present case.

*16 The Baja Vehicles are not relevant to any claims asserted in the operative Second Amended Complaint. (See, Second Am. Compl. [Docket No. 164]). To the extent that, as Defendants contend, the ownership of intellectual property under the terms of the Agreement is relevant to the present case, that relevancy does not extend beyond the scope of the Agreement. In short, this is a breach of contract case, it is not a patent infringement case. (See, Id.).

Parties are not entitled to discovery for the purpose of developing new claims or defenses that are not already identified in the pleadings. See, e.g., Leisman, 2015 WL 4994084, at *2. Defendants have not asserted any patent infringement claims in the present case. (See, Answer [Docket No. 260]). Therefore, this Court finds that Defendants have not made a threshold showing that an inspection of the Baja Vehicles would be relevant to any claims actually asserted in this case. See, e.g., Hofer, 981 F.2d at 380.

Second, Defendants argue that the requested inspection is relevant to their mitigation of damages defense. (Mem. in Supp. [Docket No. 297], at 8). Specifically, Defendants assert that Plaintiffs claim they were deprived of royalties, and Defendants contend that if Plaintiffs “are now using designs they claim [Defendants] could have used, such evidence is relevant to, among other things, [Plaintiffs’] duty to mitigate damages.” (Id.). Defendants do not specify what design elements might be incorporated in the Baja Vehicles, nor do Defendants explain how those designs would mitigate the alleged deprivation of royalties to Plaintiffs. (See, Id.).

Speed UTV, LLC is not a party in this case. Plaintiffs represent that the Baja Vehicles “are fundamentally different” than the Wildcat XX, the only Special Royalty Vehicle produced pursuant to the Agreement, because they “includ[e] high performance turbo charged or forced induction engines, three speed sequential transmissions, substantially longer wheelbases, wider track widths, longer suspension and wheel travel, and numerous [other differences].” (See, Mem. in Supp. [Docket No. 305], at 12–13; Gordon Decl. [Docket No. 307] ¶ 2). Plaintiffs also represent that the Baja Vehicles “listed on the Speed UTV, LLC website for preorder have not yet been built,” but “Speed UTV, LLC is in possession of pre-production prototypes of two Speed UTV vehicles which are used for testing, design and evaluation work.” (Gordon Decl. [Docket No. 307] ¶ 4). And the Agreement's five-year effective period previously terminated on July 31, 2020. (See, Ex. C [Docket No. 306] ¶ 1).

Defendants have not provided this Court with any explanation whatsoever as to how Plaintiffs could possibly mitigate their damages to the alleged breach of contract by incorporating certain unspecified design elements into the Baja Vehicles that could have potentially been used in Special Royalty Vehicles had Defendants produced them. As such, any purported relevance of the Baja Vehicles is entirely speculative, and that “speculativeness outweighs any conceivable benefit of production.” See, Wesman v. United Parcel Serv., Inc., No. 08-457 (DSD/SRN), 2009 WL 10678175, at *5 (D. Minn. Mar. 18, 2009). Even assuming that design elements which could have been used in Special Royalty Vehicles have been incorporated into Baja Vehicles, the incorporation of those design elements by a non-party entity into the prototypes of materially different vehicles which, after the termination of the Agreement, have yet to be produced in their final form is simply not relevant to Plaintiffs’ alleged damages or Defendants’ mitigation of damages defense in this case. See, Marco Techs., LLC v. Midkiff, 19-cv-2323 (PJS/LIB), 2021 WL 62471, at *2 (D. Minn. Jan. 7, 2021) (“Magistrate judges necessarily must reach legal conclusions in deciding what is or is not ‘relevant’ to a claim or defense.”).

*17 Therefore, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is DENIED to the extent that it seeks an Order of this Court compelling Plaintiffs to make Speed UTV's “Baja Vehicles” available for inspection.

Defendants seek an Order of this Court compelling Plaintiffs to supplement their Responses to Set I Request for Production of Documents Nos. 2, 52, 53, and 54. (Mem. in Supp. [Docket No. 297], at 11–18). Those Requests are as follows:

(Ex. 8 [Docket No. 299-1], at 60).

(Id. at 144, 151, 159).[13]

Defendants assert that Plaintiffs production in response to those requests is insufficient because “[a] review of the documents identified reveals that none of the documents produced reference whether [Plaintiffs] performed any investigation or due diligence leading up to the consummation of the Agreement.” (Mem. in Supp. [Docket No. 297], at 11–18). Defendants contend that the “due diligence” documents are relevant to Plaintiffs’ fraud claims because an essential element of those claims is reasonable reliance, and those documents are relevant to whether Plaintiffs relied on Defendants’ representations and whether that reliance was reasonable. (Id.).

In the present motion to compel, however, Defendants now attempt rewrite their discovery requests to include documents that were not originally requested. As drafted, Request Nos. 2 and 52–54 do not request “due diligence” documents relating to any purported investigation conducted by Plaintiffs prior to executing the Agreement. (See, Ex. 8 [Docket No. 299-1], at 60, 144, 151, 159).

Request No. 2 seeks “documents relating to the negotiations of the terms of the Agreement and Addendum.” (Ex. 8 [Docket No. 299-1], at 60). Any purported “due diligence” investigation would necessarily be extraneous to the Parties’ negotiation of the terms of the Agreement and Addendum. In addition, the paragraphs of the Complaint referenced by Request No. 2 relate to meetings between Plaintiffs and the Arctic Cat Parties to discuss a possible relationship and various representations made by the Arctic Cat Parties during negotiations. (First Am. Compl. [Docket No. 29] ¶¶ 30–34, 49, 51).[14] They do not refer to any purported investigation. (See, Id.). Accordingly, the “due diligence” documents that Defendants now seek cannot by any reasonable interpretation be construed as included in Defendants request for documents related to the Parties’ negotiations. Because the “due diligence” documents, if any, were not originally sought by Request No. 2 as drafted, Plaintiffs are not obligated to produce them in response to that request.

*18 Request Nos. 52–54 each seek documents “that support” Plaintiffs’ fraud claims. (Id. at 144, 151, 159). As such, those Requests plainly seek the documents on which Plaintiffs rely to establish their fraud claims. Defendants now seek documents related to their defense to those claims that Plaintiffs did not reasonably rely on Defendants’ allegedly false representations. (See, Mem. in Supp. [Docket No. 297], at 11–18). Although “due diligence” documents may indeed be relevant to Defendants’ defenses, they are not documents “that support” Plaintiff's fraud claims. Because the “due diligence” documents, if any, were not originally sought by Request Nos. 52–54 as drafted, Plaintiffs are not obligated to produce them in response to those requests.

Therefore, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is DENIED to the extent that it seeks an Order of this Court compelling Plaintiffs to supplement their Responses to Set I Request for Production of Documents Nos. 2, 52, 53, and 54.

Defendants seek an Order of this Court compelling Plaintiffs to produce attorney Hani Sayed for a supplemental deposition. (Mem. in Supp. [Docket No. 297], at 18–24).

On June 29, 2020, Defendants’ filed their Motion to Disqualify Steven A. Nichols and Rutan & Tucker, LLP from Representation of Plaintiffs. [Docket No. 106]. In opposition to that Motion, Plaintiffs filed the Declaration of Hani Sayed. [Docket No. 135]. Sayed had previously represented Gordon in filing patent applications. (See, Order [Docket No. 161], at 2–6). In their motion to disqualify, Defendants argued that the entire Rutan & Tucker firm should be disqualified due to a conflict of interest because Sayed had represented Arctic Cat in filing patent applications since Arctic Cat anticipated the patents would later be assigned to Arctic Cat pursuant to the terms of the Agreement. (Id. at 14–19). On August 21, 2020, this Court denied Defendants’ motion to disqualify counsel, finding in part that no attorney-client relationship existed between Defendants and Rutan & Tucker. (Id.).

On March 19, 2021, Defendants deposed Sayed. (See, Ex. 12 [Docket No. 299-1], at 1703–64). During that deposition, Defendants questioned Sayed on statements that he made in paragraph 12 of his declaration filed in opposition to Defendants’ motion to disqualify counsel. Specifically, Defendants asked Sayed to explain: (1) what prior breaches he was referring to by stating, “[s]ubsequent to my August 2016 communications, and in light of Arctic Cat's prior breaches of the agreement ...;” (2) what concerns Sayed was referring to and where Sayed got the information he referenced by stating, “[c]oncerns arose that Arctic Cat did not intend to perform its obligations to produce model year 2017 under the agreement ...;” (3) what gave Sayed the appearance he referenced by stating, “[i]t also appeared that Arctic Cat planned to deny the novelty of Gordon's designs in order to avoid the obligation to pay royalties after the expiration of the agreement.” (Id. at 1712–14). Defendants also questioned Sayed about a statement he made in an August 19, 2016, email. Specifically, Defendants asked Sayed to explain from whom he received the confirmation that he referenced by stating that he “received confirmation that we should have the executed assignments shortly.” (Id. at 1724). Plaintiffs’ counsel and/or Sayed claimed that the information sought by Defendants was protected by attorney-client privilege, and Sayed refused to answer Defendants’ questions. (Id.).

In the present motion, Defendants contend that attorney-client privilege does not protect disclosure of the underlying facts that they sought in questioning Sayed. (Mem. in Supp. [Docket No. 297], at 22–23). Defendants also contend that Plaintiffs implicitly waived any privilege by affirmatively interjecting Sayed's knowledge into this case in opposition to Defendants’ motion to disqualify. (Id. at 23–24).

*19 Plaintiffs contend that the information Defendants seek is protected by attorney-client privilege, Sayed's declaration did not waive privilege, and the information sought is not relevant. (Mem. in Opp'n [Docket No. 305], at 20–24).[15]

As a threshold matter, this Court finds that the information sought by Defendants in deposing Sayed is clearly relevant to Plaintiffs’ breach of contract claim, as well as, Defendants defenses to that claim. Nevertheless, even if the information sought by Defendants is relevant, that information is not discoverable if it is protected by attorney-client privilege. See, e.g., Fed. R. Civ. P. 26(b)(1) (emphasis added) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant ....”).

“Attorney-client privilege is a ‘long established rule that confidential communications between an attorney and his client are absolutely privileged from disclosure against the will of the client.’ ” Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 527 (D. Minn. 2002) aff'd, No. 99-cv-1894 (PAM/JGL), 2002 WL 1303025 (D. Minn. June 6, 2002) (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir. 1977)). Under both Minnesota and federal law, it is well-established that the party asserting the attorney-client privilege bears the burden of establishing it. United States v. Williams, 720 F.3d 674, 686 (8th Cir. 2013); Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985); Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (SRN/SER), 2014 WL 1309095, at *6 (D. Minn. Apr. 1, 2014) (citing Minnesota state courts for the same assertion).

“The well-settled rule is that the privilege only protects the disclosure of communications, not the disclosure of underlying facts.” Afremov v. Sulloway & Hollis, PLLC, No. 09-3678 (PJS/JSM), 2011 WL 13199231, at *14 (D. Minn. June 21, 2011) (citing Upjohn Co. v. United States, 449 U.S. 383, 385–86 (1981)); accord, Ewald, 2014 WL 1309095, at *6. In addition, “[a] party can waive attorney-client privilege when ‘the client relies on [privileged] communications during legal proceedings.’ ” Willis Elec. Co., Ltd. v. Polygroup Trading Ltd., No. 15-cv-3443 (WMW/KMM), 2020 WL 1934425, at *1 (D. Minn. Apr. 22, 2020) (quoting Milwaukee Elec. Tool Corp. v. Chevron N. Am. Inc., No. 14-cv-1289-JPS, 2017 WL 2929522, at *1 (E.D. Wis. July 10, 2017)). “Waiver occurs when a party takes an affirmative act that places privileged information at issue, but attempts to deny the opposing party access to the information by asserting the privilege.” Id.

Here, Defendants largely seek the facts underlying the assertions made by Sayed. For example, Defendants’ inquiry into what prior breaches Sayed referred to in paragraph 12 of his declaration plainly seeks the factual basis for his assertion, hence it does not implicate attorney-client privilege. See, e.g., Afremov, 2011 WL 13199231, at *14. More importantly, to the extent that any of Defendants questions do implicate attorney-client privilege, Plaintiffs waived that privilege by relying on Sayed's assertions in opposition to Defendants’ prior motion to disqualify. Plaintiffs may not offer Sayed's assertions in furtherance of their case, then later claim privilege to prevent Defendants from challenging those assertions. See, Minn. Specialty Crops, Inc. v. Minn. Wild Hockey Club, L.P., 210 F.R.D. 673, 675 (D. Minn. 2002) (“Fairness dictates that a party may not use attorney-client privilege as both a sword and a shield ....””); see also, Willis Electric Co., 2020 WL 1934425, at *2–3 (finding that the plaintiff waived attorney-client privilege regarding certain communications by previously relying on a declaration that represented that the substance of those communications supported the plaintiff's position).

*20 Therefore, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is GRANTED to the extent that it seeks an Order of this Court compelling Plaintiffs to produce attorney Hani Sayed for a supplemental deposition. Within twenty-one (21) days of this Order Plaintiffs shall produce Hani Sayed for a limited supplemental deposition. The supplemental deposition of Hani Sayed shall be limited in scope to the following four topics: Sayed's representations, in paragraph 12 of his declaration filed in opposition to Defendants’ motion to disqualify counsel, regarding: (1) “Arctic Cat's prior breaches,” (2) “concerns ... that Arctic Cat did not intend to perform its obligations to produce model year 2017 vehicles under the Agreement,” and (3) the “appear[ance] that Arctic Cat planned to deny the novelty of Gordon's designs,” and Sayed's representation in the August 19, 2016, email that (4) he “received confirmation that we should have the executed assignments shortly.” That supplemental deposition of Hani Sayed shall further be limited to 2.5 hours, and if Plaintiffs so desire, the supplemental deposition shall occur via video conference.

Defendants seek an Order of this Court compelling Plaintiffs to produce Gordon's diary, which Defendants contend is responsive to Set III Request for Production of Documents No. 1 and Set I Request for Production of Documents Nos. 1–33, 28, and 49–55. (Mem. in Supp. [Docket No. 297], at 24–31).

On January 28, 2021, Defendants deposed Gordon. (Ex. 5 [Docket No. 299-1], at 25–44). During that deposition, Gordon stated, “I got a hell of a timeline,” and he explained that the timeline was based on Defendants mistakes, promises, commitments, and failures. (Id. at 39–40). The following exchange then occurred:

(Id. at 40–42).

By his own deposition testimony, Gordon unambiguously established that he kept a “diary” in the form of private emails that he sent to himself on an ongoing basis, which contained a timeline of the Parties’ relationship. Furthermore, the only logical inference to be drawn from Gordon's deposition testimony is that he consulted the timeline in his “diary” in preparation for his deposition, thereby bolstering his credibility. Accordingly, Gordon's deposition testimony indicates that his “diary” existed on or around January 28, 2021.

Nevertheless, Plaintiffs now represent that “Gordon does not have a written diary.” (Mem. in Opp'n [Docket No. 305], at 24; accord, Gordon Decl. [Docket No. 307] ¶ 6). Plaintiffs also now represent that Gordon did not refer to any “written diary of contemporaneous events,” but rather “the litigation timeline prepared by [Gordon's] counsel” which “includes entries from numerous sources, including various email, text messages, and other records, as well as the recollections of witnesses including the recollections of Mr. Gordon.” (See, Mem. in Opp'n [Docket No. 305], at 24–26). However, Plaintiffs’ current position regarding the existence of a “diary” is belied by Gordon's clear statements to the contrary during his deposition which established the existence of a private, internal email that Gordon referred to as his “diary.” (See, Ex. 5 [Docket No. 299-1], at 40–42). For example, Gordon clearly stated: “I got a diary. It's my own diary” and “It's my diary. It's just a diary.” Similarly, Plaintiffs’ current position regarding a litigation timeline prepared by counsel is belied by Gordon's clear statements that the “diary” was a private, internal email that he sent to himself, “not to anybody else, nobodies copied.” (See, Id.).

*21 Gordon's diary containing a timeline of the Parties relationship is certainly relevant to the claims and defenses in this case. Defendants’ Request for Production of Documents Nos. 1–33 to Gordon seek documents relating to various allegations in Plaintiff's Complaint. (See, Ex. 10 [Docket No. 299-1], at 1107–47). The timeline in Gordon's “diary” which he described as being based on Defendants’ mistakes, promises, commitments, and failures is clearly included in the documents sought by many, if not all, of those requests. Yet, Plaintiffs have not produced Gordon's “diary.” Plaintiffs must produce the “diary” which Gordon's deposition testimony established existed in the form of private emails that he sent to himself on an ongoing basis.

Accordingly, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is GRANTED to the extent that it seeks an Order of this Court compelling Plaintiffs to produce Gordon's “diary.”

Defendants seek an Order of this Court compelling Speed RMG to amend its Responses to Set III Request for Production of Documents Nos. 2, 3, 5–7, 11–16, 20–23, and 34. Defendants argue that Speed RMG's Responses to those Requests “are document dumps that do not comply with the requirements of Federal Rule of Civil Procedure 34” or this Court's prior Order, [Docket No. 194], which required Plaintiffs to specify by bates number responsive documents. (Mem. in Supp. [Docket No. 297], at 31–33). Specifically, Defendants assert that each of the at-issue Responses contain approximately two pages of bates numbers and also incorporate Exhibits A and B which are attached to the Responses, and Defendants represent that “Exhibit A is a list of hundreds of CAD drawings” and “Exhibit B appears to be an index of all documents produced by [Plaintiffs].” (Id. at 32) (emphasis in original).

However, on April 21, 2021, Plaintiffs served Speed RMG's Amended Responses to Defendants’ Set III Requests for Production of Documents. (Ex. I [Docket No. 306-9]). In its Amended Responses, Speed RMG omitted the reference to Exhibit B in every at-issue Response, and Speed RMG omitted the reference to Exhibit A in every at-issue Responses except its Responses to Request Nos. 6, 11, 12, and 14. (See, Id.). Therefore, Plaintiffs contend that this request is now moot.

In reference to Request Nos. 2, 3, 5, 7, 13, 16, 20–23, and 34, Speed RMG has corrected the only deficiencies specifically identified by Defendants in the present motion. Thus, the present motion is moot in relation to those Requests.

In reference to Request No. 15, Speed RMG represents that it has conducted a diligent search, and it does not possess any responsive documents. (Ex. 18 [Docket No. 299-2], at 78–79). This Court cannot order the production of documents that do not exist. See, e.g., Farmers Ins. Exch. v. West, No. 11-2297 (PAM/JJK), 2012 WL 12894845, at *5 (D. Minn. Sept. 21, 2012); Struzyk v. Prudential Ins. Co. of Am., No. 99-1736 (JRT/FLN), 2003 WL 21302966, at *2 (D. Minn. May 16, 2003).[16]

Therefore, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is DENIED to the extent that it seeks an Order of this Court compelling Speed RMG to amend its Responses to Set III Request for Production of Documents Nos. 2, 3, 5, 7, 13, 15, 16, 20–23, and 34.

*22 In reference to Request Nos. 6, 11, 12, and 14, Speed RMG's Responses continue to generically reference Exhibit A. (Ex. I [Docket No. 306–9]). Speed RMG's generic reference to Exhibit A is improper. In this Court's prior January 5, 2021, Order, the Court has already found that “Plaintiffs’ must specifically respond to each Request for Production of Documents, and Plaintiffs must reference by bates number which documents respond to which specific Request for Production of Documents.” (Order [Docket No. 194], at 15).

Therefore, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is GRANTED to the extent that it seeks an Order of this Court compelling Speed RMG to amend its Responses to Set III Request for Production of Documents Nos. 6, 11, 12, and 14. Speed RMG must omit the reference to Exhibit A from its Responses to those Requests, and it must specifically list by bates number every document that is responsive to each particular Request.

Defendants seek an Order of this Court compelling Gordon to amend his Supplemental Answers to Corrected Interrogatory Nos. 5 and 10. (Mem. in Supp. [Docket No. 297], at 33–39).[17]

ORIGINAL INTERROGATORY NO. 3

Identify all other manufacturers, dealers, or any entity to whom YOU claim YOU could have sold any “Special Royalty Vehicle” as defined by the July 2015 Agreement, including identification of all communications, documents by Bate number, or agreements with any other such entity by YOU between July 2015 and the present, and detail the specific amount of money you claim you lost due to the claimed “lost opportunity,” setting forth the method used to calculate your claimed loss.

CORRECTED INTERROGATORY NO. 5

Identify all other manufacturers, dealers, or any entity to whom YOU claim YOU could have sold any “Special Royalty Vehicle” as defined by the July 2015 Agreement.

ORIGINAL RESPONSE TO INTERROGATORY NO. 3

Responding Party objects to the timing of this request on the basis of unavailability of lead counsel due to a death in his family. Responding Party anticipates that lead counsel will be available and responding Party will be in a position to more fully respond within the next two weeks, if appropriate. Responding party objects to the numbering of this interrogatory because Defendants have previously served a first set of interrogatories to Responding Party, containing 19 interrogatories. Accordingly, this interrogatory should be numbered Interrogatory No. 22 (not including discrete subparts). Responding Party further objects to this interrogatory as compound and therefore constituting several discrete subparts, in violation of Rule 33(a) of the Federal Rules of Civil Procedure. In particular, the request constitutes at least two discrete subparts and is therefore counted as two separate interrogatories. Responding Party objects to this interrogatory as exceeding the permissible number of interrogatories pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, the parties’ agreement, and the Court's scheduling orders in this case. Counting all previously propounded interrogatories and subparts, Defendants have already propounded 25 interrogatories to Responding Party. Responding Party therefore will not provide a substantive response to this interrogatory. Responding Party further objects to this interrogatory to the extent it calls for the disclosure of privileged information. Responding Party objects to the interrogatory as being vague and ambiguous because it uses the phrase “could have sold.” Responding Party is unable to understand what a “patent application design” is and thus may not be able to provide a substantive response to this interrogatory without clarification of the phrase. Responding Party objects to this interrogatory to the extent it seeks information that will be the subject of expert reports, which are not yet due. Responding Party also objects that this interrogatory is unduly burdensome and harassing because it is duplicative of the interrogatories already served in this case, and for which Responding Party has already provided detailed responses.

FURTHER RESPONSE PER THE COURT'S JANUARY 5, 2021, ORDER TO CORRECTED INTERROGATORY NO. 5

*23 Only one vehicle was manufactured and sold to consumers -the Robby Gordon designed naturally aspirated 64 inch Wildcat XX 2 seater, which vehicle was not contemplated and identified in the Agreement. Regardless, that vehicle was in fact sold at the wholesale level by Defendants to Defendants’ worldwide network of premium powersports dealerships for the purpose of making retail sales to consumers. Had any Special Royalty Vehicles “as defined by the July 2015 Agreement” been produced, they also could have been sold at wholesale by Defendants to Defendants’ network of premium powersports dealerships worldwide. Discovery and depositions remain ongoing, and Responding Party incorporates its prior interrogatory responses and reserves the right to amend this response.

SUPPLEMENTAL FURTHER RESPONSE TO CORRECTED INTERROGATORY NO. 5

Subject to all previously stated objections, Responding Party further responds as follows: Responding Party claims that it could have sold Special Royalty Vehicles that embody any of Plaintiffs’ novel designs to any one or more of the millions of side-by-side dealers, manufacturers and consumers around the world. Discovery and depositions remain ongoing, and Responding Party incorporates its prior interrogatory responses and reserves the right to amend this response.

(Ex. 20 [Docket No. 299-2], at 1057–59).

Defendants argue that Gordon's response is deficient because it does not identify any specific opportunities that Gordon claims to have lost, and Defendants contend that “Gordon should be compelled to amend his answer to [Corrected] Interrogatory No. 5 to clearly identify any specific opportunities he claims he lost and the amount of resulting damages, or to make clear that he is not pursuing that claim.” (Mem. in Supp. [Docket No. 297], at 35). Plaintiffs contend that Gordon has sufficiently responded to Corrected Interrogatory No. 5 as drafted. (Mem. in Opp'n [Docket No. 305], at 27–28).

In the Second Amended Complaint, Plaintiffs allege that they relied on Defendants’ representations by “forgoing other opportunities” and “foregoing their contractual right to take designs to other manufacturers.” (Second Am. Compl. [Docket No. 164] ¶¶ 62, 84, 87, 124, 131, 139). Corrected Interrogatory No. 5 seeks the identities of manufacturers, dealers, and any entity to whom Plaintiffs contend they could have sold Special Royalty Vehicles. (Ex. 20 [Docket No. 299-2], at 1057). The only reasonable interpretation of Corrected Interrogatory No. 5 is that, although poorly worded, it seeks information regarding specific opportunities, if any, that Plaintiffs claim to have forewent. Plaintiffs allege they forewent opportunities due to Defendants’ representations, and Defendants are entitled to discovery on that allegation. Therefore, Gordon must identify the specific opportunities, if any, that Plaintiffs claim to have forwent.

However, Defendants also contend that Gordon must identify the amount of damages resulting from any specific opportunities that Plaintiffs claim to have forwent. Corrected Interrogatory No. 5 as drafted does not request any information regarding damages. Thus, Plaintiffs are not obligated to provide such information in response to that interrogatory.

Accordingly, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is GRANTED in part and DENIED in part to the extent that it seeks an Order of this Court compelling Gordon to amend his Supplemental Answers to Corrected Interrogatory No. 5.

ORIGINAL INTERROGATORY NO. 10

Identify all designs or design concepts (whether a patent exists or not) that are incorporated into the Wildcat XX model vehicles that have been sold to a Dealer or the consumer, which are also being used by YOU in any other vehicle that has been designed, is in the design stages, and/or has been offered for the placement of Sales Orders by any Speed entity or entity in which YOU, Speed RMG Partners, LLC, or Todd Romano have an ownership interest, and identify the specific patent, design or design concept used, the vehicle make and model, and whether you obtained permission from Arctic Cat or TSV to use such designs in another model vehicle, identifying all such documents by date and Bates number that support this claimed permission.

CORRECTED INTERROGATORY NO. 10

*24 Identify all designs or design concepts (whether a patent exists or not) that are incorporated into the Wildcat XX model vehicles that have been sold to a Dealer or the consumer, which are also being used by YOU in any other vehicle that has been designed, is in the design stages, and/or has been offered for the placement of Sales Orders by any Speed entity or entity in which YOU, Speed RMG Partners, LLC, or Todd Romano have an ownership interest.

(Id. at 1059–60). In response to Corrected Interrogatory No. 10, Gordon provides a “list of general vehicle component designs and systems,” which includes such basic components as “clutch covers,” “center console components,” “decals,” “engines,” and “wheels and tires.” (See, Id. at 1060–64).

Defendants argue that Gordon's response is deficient because he did not “identify with specificity the ‘novel’ ideas that Robby Gordon claims he provided [Defendants] that he is now using in vehicles manufactured by Speed UTV in competition with [Defendants].” (Mem. in Supp. [Docket No. 297], at 38). Plaintiffs contend that Gordon has sufficiently responded to Corrected Interrogatory No. 10 because as drafted it broadly seeks the “identification of all ‘designs’ both present in (1) a Wildcat XX vehicle, and (2) any other vehicle designed, in the design stages, or offered for placement of sales orders by any ‘Speed Entity.’ ” (Mem. in Opp'n [Docket No. 305], at 29).

Defendants here again attempt rewrite their discovery request. As drafted, Corrected Interrogatory No. 10 seeks the identity of “all designs or design concepts (whether a patent exists or not),” without limitation to “novel” designs. As such, that interrogatory is patently overbroad as drafted. Moreover, even if Defendants had limited the information sought by Interrogatory No. 10 to only “novel” designs or design concepts, that interrogatory would still be overbroad and seek irrelevant information. As explained above, the Baja Vehicles are not relevant to any claims or defenses actually asserted in this case, and Defendants are not entitled to discovery for the purpose of developing new claims or defenses. See, e.g., Leisman, 2015 WL 4994084, at *2.

Accordingly, Defendants’ Motion to Compel Discovery Responses, [Docket No. 295], is DENIED to the extent that it seeks an Order of this Court compelling Gordon to amend his Supplemental Answers to Corrected Interrogatory No. 10.

IV. DEFENDANTS’ MOTION TO AMEND THE SCHEDULING ORDER [Docket No. 320]

On May 14, 2021, Defendants filed their Motion to Amend the Scheduling Order. [Docket No. 320]. Defendants seek an Order of this Court “amend[ing] the Third Amended Pretrial Scheduling Order to extent the date by which dispositive motions must be filed ... to a date 30 days after all discovery has been competed and the Court has ruled on the pending Objections.” (Id.). Plaintiffs oppose the motion. (Mem. in Opp'n [Docket No. 329]).

A. Standard of Review

Rule 16(b) governs the Court's modification of pretrial scheduling orders and provides that “[e]xcept in categories of actions exempted by local rule, the” designated judge “must issue a scheduling order” which “must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b). Pursuant to Federal Rule of Civil Procedure 16(b)(4) and Local Rule 16.3(b), a party who moves to modify a scheduling order must demonstrate good cause to do so.

“The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008) (citing Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006); Fed. R. Civ. P. 16(b), advisory committee note (1983 Amendment) (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.”)). “The ‘good cause’ standard requires a demonstration that the existing schedule cannot reasonably be met despite the diligence of the party seeking the extension.” Burris v. Versa Prods., Inc., No. 7-cv-3938 (JRT/JJK), 2009 WL 3164783, at *4 (D. Minn. Sept. 29, 2009). “While the prejudice to the nonmovant resulting from modification of the scheduling order may also be a relevant factor, generally, [a court] will not consider prejudice if the movant has not been diligent in meeting the scheduling order's deadlines.” Id. (citing Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)).

*25 Determining whether or not good cause through due diligence has been shown falls within the Court's broad discretion. See, Portz v. St. Cloud State Univ., No. 16-cv-1115 (JRT/LIB), 2017 WL 3332220, at *3 (D. Minn. Aug. 4, 2017).

B. Analysis

The Court finds that Defendants have demonstrated good cause to amend the operative Third Amended Pretrial Scheduling Order and to extend the dispositive motion deadline. Good cause has been demonstrated because discovery is still ongoing in this matter and the record is still in flux. In light of the discovery disputes addressed above, this Court finds that Defendants could not reasonably comply with deadline for dispositive motions set in the operative Third Amended Pretrial Scheduling Order, [Docket No. 231], with any amount of diligence. The Court further finds that the prejudice to Plaintiffs, if any, in amending the operative Third Amended Pretrial Scheduling Order will be minimal. Nevertheless, Defendants’ proposed amendment, without a fixed deadline for dispositive motions, is not practicable.

Therefore, Defendants’ Motion to Amend the Scheduling Order, [Docket No. 320], is GRANTED in part and DENIED in part. All dispositive motions shall be filed by the moving party on or before August 15, 2021, this case shall be ready for trial on December 15, 2021, or 30 days after the Court renders its Order on any dispositive motion (whichever is later), and this Court will issue a Fourth Amended Pretrial Scheduling Order extending such further deadlines as the Court in its discretion deems necessary.[18]

V. CONCLUSION

For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: