*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 Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint to Seek Punitive Damages, [Docket No. 233], and Plaintiffs’ Motion to Compel, [Docket No. 242].

For the reasons discussed below, the Court DENIES Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint to Seek Punitive Damages, [Docket No. 233], and the Court GRANTS in part and DENIES in part Plaintiffs’ Motion to Compel, [Docket No. 242].

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].

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 December 9, 2020, Plaintiffs served their Third Set of Requests for Production of Documents on Defendants. (Nichols. Decl. [Docket No. 245] ¶ 2). On December 14, 2020, Plaintiffs served their Fourth Set of Requests for Production on Textron Inc. and TSV. (Id. ¶ 3). On January 8, 2021, Defendants responded to Plaintiffs’ Third Set of Requests for Production of Documents, and on January 13, 2021, Textron Inc. and TSV responded to Plaintiffs’ Fourth Set of Requests for Production of Documents. (Id. ¶¶ 4–5; see also, Ex. 7 [Docket No. 245-7]; Ex. 8 [Docket No. 245-8]; Ex. 9 [Docket No. 245-9]; Ex. 10 [Docket No. 245-10]; Ex. 11 [Docket No. 245-11]; Ex. 12 [Docket No. 245-12]).

*2 On February 3, 2021, Plaintiffs sent Defendants a deficiency letter outlining several purported deficiencies in their Responses to Plaintiffs Third and Fourth Sets of Requests for Production of Documents. (Ex. 14 [Docket No. 245-14]). Following subsequent telephone and email communications, Textron Inc. and TSV served their first Supplemental Responses to Plaintiffs’ Fourth Set of Requests for Production of Documents on February 23, 2021. (See, Nichols Decl. [Docket No. 245] ¶¶ 8–14; see also, Ex. 19 [Docket No. 245-19]; Ex. 20 [Docket No. 245-20]).

On February 28, 2021, Plaintiffs sent Defendants a second deficiency letter outlining several purported deficiencies in their Responses to Plaintiffs’ Third Set of discovery requests, as well as, in Textron Inc. and TSV's Supplemental Responses to Plaintiffs’ Fourth Set of Requests for Production of Documents. (Ex. 21 [Docket No. 245-21]). On March 5, 2021, TSV served its Supplemental Responses to Plaintiffs’ Third Set of Requests for Production of Documents. (Nichols Decl. [Docket No. 245] ¶ 17; see also, Ex. 24 [Docket No. 245-24]). Also on March 5, 2021, Textron Inc. and TSV served their second Supplemental Responses to Plaintiffs’ Fourth Set of Requests for Production of Documents. (Nichols Decl. [Docket No. 245] ¶ 16; see also, Ex. 22 [Docket No. 245-22]; Ex. 23 [Docket No. 245-23]).

II. PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE SECOND AMENDED COMPLAINT TO SEEK PUNITIVE DAMAGES [Docket No. 233]

On March 9, 2021, Plaintiffs filed their Motion for Leave to Amend the Second Amended Complaint to Seek Punitive Damages. [Docket No. 233]. Plaintiffs seek an Order of this Court granting leave to amend their operative Second Amended Complaint to seek punitive damages against all Defendants. (Id.).

At the core of the present case are Defendants’ alleged breaches of the Agreement. (See, Second Am. Compl. [Docket No. 164]). Indeed, Plaintiffs have expressly acknowledged as much. (See, Mem. in Supp. [Docket No. 235], at 6) (“At the core of this case lies [Defendants’] intentional misconduct and breaches related to a Product Development and Marketing Agreement dated July 31, 2015 ....”). Nevertheless, Plaintiffs contend that their fraudulent misrepresentation and concealment claims are independent torts that may support a punitive damages award. (See, Id. at 22–23).

The Parties argue at length whether Minn. Stat. § 549.191 applies to the present motion, and if so, whether Plaintiffs’ allegations demonstrate that Defendants acted with deliberate indifference. (See, Mem. in Supp. [Docket No. 235]; Mem. in Opp'n [Docket No. 254]). However, before reaching those arguments, there is a threshold matter that this Court must first address.

“Under Minnesota law, extra-contractual damages cannot be recovered for a breach of contract unless the breach is accompanied by an independent tort.” Lunde v. Cincinnati Ins. Co., No. 18-cv-238 (JNE/HB), 2018 1972475, at *2 (D. Minn. Apr. 26, 2018); see also, Wild v. Rarig, 234 N.W.2d 775, 789 (Minn. 1975). “Minnesota courts have repeatedly refused to expand contract claims into tort claims.” Fette v. Columbia Ca. Co., No. C0-93-242, 1993 WL 377091, at *2 (Minn. Ct. App. Sept. 28, 1993). “Thus, even a malicious or bad-faith motive in breaching a contract does not convert a contract action into a tort action sufficient to support an award of emotional distress damages or other extra-contractual damages, such as punitive damages.” Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 561 (Minn. 1996) (citation omitted); see also, Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC, 868 N.W.2d 689, 697 (Minn. Ct. App. 2015) (quoting McNeill & Assocs., Inc. v. ITT Life Ins. Corp., 446 N.W.2d 181, 185 (Minn. Ct. App. 1989)) (“A bad-faith breach of contract does not become a tort.”).

*3 Therefore, the threshold question presently before this Court is whether Plaintiffs’ fraud claims are sufficiently distinct from Plaintiffs’ breach of contract claim so as to constitute “independent” torts. “If a tort claim is based on a breach of duty that ‘is indistinguishable from the breach of contract,’ the tort claim will fail, but if ‘a relationship would exist which would give rise to the legal duty without enforcement of the contract promise itself,’ the tort claim is viable.” Arctic Cat, Inc. v. Polaris Indus. Inc., No. 13-3579 (JRT/FLN), 13-3595 (JRT/FLN), 2014 WL 5325361, at *20 (D. Minn. Oct. 20, 2014) (quoting Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 308 (Minn. Ct. App. 1992)). However, “[a]n independent tort may accompany a breach of contract when the defendant has a legal duty to the plaintiff arising separately from any duty imposed in the contract.” Toyota-Lift of Minn., Inc., 868 N.W.2d at 696. “In other words, ‘[a] fraud claim independent of the contract is actionable, but it must be based upon a misrepresentation that was outside of or collateral to the contract.’ ” Arctic Cat, Inc., 2014 WL 5325361, at *20 (alteration in original) (quoting AKA Distrib. Co. v. Whirlpool Corp., 137 F.3d 1083, 1086 (8th Cir. 1998)).

“The test is whether a relationship would exist which would give rise to the legal duty without enforcement of the contract promise itself.” Hanks, 493 N.W.2d at 308. “According to this test, the existence of a contract is ignored when determining whether alleged misconduct is actionable in tort.” Id. (quoting Dvarak v. Pluswood Wis., Inc. 358 N.W.2d 544, 545 (Wis. Ct. App. 1984)). “The accompanying independent tort must be willful,” and “it must support the extra-contractual damages in its own right as a tort.” Lickteig, 556 N.W.2d at 561. “Moreover, ‘[t]o recover under theories of both contract and tort, a plaintiff must prove separate damages for fraud and for breach.’ ” Best Buy Stores, L.P. v. Developers Diversified Realty Corp., No. 05-2310 (DSD/JJG), 2007 WL 4191717, at *5 (D. Minn. Nov. 21, 2007) (alteration in original) (quoting Hanks, 493 N.W.2d at 308). “When the gravamen of the complaint is the breach of contract, the plaintiff may not recover tort damages.” McNeill & Assocs., Inc., 446 N.W.2d at 185.

Here, Plaintiffs allege that Defendants made several pre-contract, as well as, post-contract fraudulent misrepresentations. (See, e.g., Second Am. Compl. [Docket No. 164] ¶ 121). Plaintiffs also allege that Defendants fraudulently concealed several facts from Plaintiffs. (See, e.g., Id. ¶ 135). However, Plaintiffs’ fraud claims are inextricably intertwined with Plaintiffs’ breach of contract claim.

None of Plaintiffs’ fraud claims are actionable if the Agreement was not breached. In fact, each of the alleged misrepresentations and concealed facts directly relate to the scope of the Agreement, Plaintiffs’ intention to perform obligations allegedly owed under the Agreement, and/or Plaintiffs’ ability to perform obligations allegedly owed under the Agreement. Plaintiffs are simply repackaging their breach of contract claim as fraud. In essence, Plaintiffs merely allege that Defendants falsely represented to Plaintiffs that they would perform their obligations owed under the Agreement, and Defendants falsely concealed that they would not perform their obligations.

Plaintiffs assert that Arctic Cat personnel made various false representations that purportedly induced Plaintiffs to enter into the Agreement. (See, e.g., Mem. in Supp. [Docket No. 235], at 7–8). Those allegedly false representations, however, were not collateral to the contract. To the contrary, those representations were subsumed into the Agreement as express or implied obligations. Thus, they are not “independent” torts. See, Arctic Cat, Inc., 2014 WL 5325361, at *21; see also, GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1088 (6th Cir. 1998) (noting that for a fraud claim to be independent of a breach of contract claim, “the defendant must have fraudulently induced the plaintiff to enter into the agreement, and that inducement must be a promise other than merely pledging to perform the terms of the contract”).

*4 After entering the Agreement, Plaintiffs assert that Defendants continued to make false representations related to their intent to produce vehicles as obligated under Agreement, and Defendants made false representations indicating that their resources “were being fully devoted to the Special Royalty Vehicles under the Agreement.” (Id. at 11–18). Stated differently, Plaintiffs simply assert that Defendants represented after entering the Agreement that they intended to produce vehicles (as expressly obligated under the Agreement), and that they would allocate their resources as necessary to accomplish that production (as implicitly obligated under the Agreement). (See, Id.; see also, Second Am. Compl. [Docket No. 164] ¶¶ 77–78 (alleging that the “competition” between “the secret Zeus vehicle” and the Wildcat XX was “inconsistent with [Defendants’] express and implied obligations under the Agreement”)). Those assertions are indistinguishable from Plaintiffs’ breach of contract allegations. As such, they too are not “independent” torts. See, Arctic Cat, Inc., 2014 WL 5325361, at *21 (finding a fraud claim was not independent of a breach of contract claim where the alleged misrepresentation was identical to the duty of performance under the contract); MAS Prods., Inc. v. MAS Acquisition, Inc., No. A11-1254, 2012 WL 612318, at *8 (Minn. Ct. App. Feb. 27, 2012) (finding misrepresentation claims were not independent of breach of contract claims where “the alleged misrepresentations [we]re part of the agreement”).

Regarding Plaintiffs’ fraudulent concealment claims, Plaintiffs allege that Defendants concealed various facts related to their intention and ability to perform their obligations under the Agreement. (See, e.g., Second Am. Compl. [Docket No. 164] ¶ 135). However, Defendants’ duty to disclose those facts, if any, was derived solely from their obligations under the Agreement. Therefore, Plaintiffs’ fraudulent concealment claims are also not “independent” torts. See, Arctic Cat, Inc., 2014 WL 5325361, at *20; see also, Marvin Lumber and Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 887 (8th Cir. 2000) (“[A]n independent fraudulent concealment claim will not lie where the fraudulent concealment relates to a promisor's duties under the contract.”).

Moreover, the damages Plaintiffs seek for their fraudulent misrepresentation and concealment claims are identical to the damages Plaintiffs seek for their breach of contract claim. Although Plaintiffs vaguely and generically assert that Defendants’ misrepresentations deprived Plaintiffs of their right to take designs to other manufacturers, Plaintiffs have not pointed to any specific opportunity that they forewent. (See, Mem. in Supp. [Docket No. 235]; Second Am. Compl. [Docket No. 235]). In addition, this purported deprivation is itself an intrinsic symptom of the alleged breach of contract. “Because ‘there is no claim of injury that the law would protect if there were no contract,’ the fraud and contract claims are not independent of one another.” RG Golf Warehouse, Inc. v. Golf Warehouse, Inc., No. 19-cv-0585 (WMW/DTS), 2019 WL 4016169, at *4 (D. Minn. Aug. 26, 2019) (quotation omitted); see also, Best Buy Stores, L.P., 2007 WL 4191717, at *5 (finding no independent tort for fraud where it had not been shown that the “alleged fraudulent conduct caused damages separate from the alleged breach of contract”).

In sum, the Agreement forms the foundation of the present case. The Parties negotiated the terms of the Agreement at arm's length, and there would be no relationship between the Parties but for the Agreement. Plaintiffs’ fraud claims are not “independent” torts. Rather, they are inextricably intertwined with Plaintiffs’ breach of contract claim. At most, Plaintiffs’ fraud allegations and present arguments merely indicate that Defendants may have maliciously breached the Agreement in bad faith. “[T]hat malicious motive may be important in determining whether a material breach has occurred, but it is immaterial in so far as damages for contract breach are concerned.” Wild, 234 N.W.2d at 790. “A malicious or bad-faith motive in breaching a contract does not convert a contract action into a tort action.” Id.; accord, Lickteig, 556 N.W.2d at 561. Because the gravamen of Plaintiffs’ Second Amended Complaint is the alleged breach of the Agreement by Defendants, Plaintiffs purported fraud claims cannot support punitive damages as a matter of law. See, e.g., McNeill & Assocs., Inc., 446 N.W.2d at 185.[3]

*5 Accordingly, Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint to Seek Punitive Damages, [Docket No. 233], is DENIED.

III. PLAINTIFFS’ MOTION TO COMPEL [Docket No. 242]

On March 9, 2021, Plaintiffs filed their present Motion to Compel. [Docket No. 242]. Plaintiffs seek an Order of this Court compelling: (1) all Defendants to produce documents responsive to Plaintiffs’ Third Set Request for Production of Documents Nos. 34–39; (2) Textron, Inc. to produce documents responsive Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–58; (3) TSV to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–52; and (4) all Defendants to amend their responses to those at-issue Requests to comply with Federal Rule of Civil Procedure 34.[4] (Id.). In addition, Plaintiffs seek an Order of this Court deeming all objections contained in Textron Inc.’s Supplemental Responses to Fourth Set Request Nos. 41–58 and Textron Specialized Vehicles Supplemental Responses to Fourth Set Request Nos. 41–52 waived. (Id.).

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). 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.

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).

*6 “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 “a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv).

B. Analysis

Plaintiffs seek an Order of this Court overruling Defendants’ boilerplate objections and ordering that the Responses to Third Set Request for Production of Documents Nos. 34–39 to all Defendants, Fourth Set Request for Production of Documents Nos. 40–52 to TSV, and Fourth Set Request for Production of Documents Nos. 40–46 and 50–58 to Textron Inc. “be amended, boilerplate objections removed, and the requested documents produced.” (Mem. in Supp. [Docket No. 244], at 24–26).

The Court notes that in their Responses to several of the discovery requests now at issue, Defendants include objections which are mere boilerplate objections. “Routine, ‘[b]oilerplate objections, without more specific explanations for any refusal to provide information, are not consistent with the Federal Rules of Civil Procedure.’ ” In re: RFC & ResCap Liquidating Trust Litig., No. 13-cv-3451 (SRN/JJK/HB), 2015 WL 12778780, at *6 (D. Minn. June 8, 2015) (citation omitted); see also, Fed. R. Civ. P. 34(b)(2)(B)–(C); Farmers Ins. Exchange v. West, No. 11-cv-2297 (PAM/JJK), 2012 WL 12894845, at *10 (D. Minn. Sept. 21, 2012); St. Paul Reinsurance Co., Ltd., 198 F.R.D. at 511–12.

Therefore, Defendants’ boilerplate objections are ineffective, and reliance on those boilerplate objections would not be appropriate. However, Defendants do not rely on their boilerplate objections, but they continue to substantively respond to a particular request or provide a specific objection to that request. Accordingly, to the extent that Defendants have raised a merely boilerplate objection in any Response and failed to raise any specific argument in support of that objection in the motion practice surrounding the present motion, this Court will not address those boilerplate objections.

This Court will consider Defendants’ challenges to specific discovery requests based on the substantive responses, or lack thereof, that Defendants have provided without regard to any boilerplate objections. See, Dilena v. Ballistic Recovery Sys., Inc., No. 09-157 (JMR/RLE), 2010 WL 11537423, at *2 (D. Minn. Jan. 19, 2010) (denying motion to compel insofar as it broadly argued that discovery responses contained boilerplate objections but reviewing the at-issue discovery requests and responses individually); Wohlers v. Farm Bureau Mut. Ind. Co., No. 07-3891 (PJS/RLE), 2008 WL 11349814, at *2 (D. Minn. June 30, 2008) (denying request to compel the defendant to withdraw boilerplate objections and fully answer discovery requests).

Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is DENIED to the extent that it seeks an Order of this Court overruling Defendants’ boilerplate objections and compelling Defendants to amend their at-issue Responses to remove any such boilerplate objections.

Plaintiffs seek an Order of this Court deeming all objections contained in Textron Inc.’s Supplemental Responses to Fourth Set Request Nos. 41–58 and TSV's Supplemental Responses to Fourth Set Request Nos. 41–52 waived. (Mot. to Compel [Docket No. 242]). Specifically, Plaintiffs argue that because Textron Inc. and TSV's original Responses to those at-issue Requests merely referred Plaintiffs to Textron Inc. and TSV's original Responses to Request No. 40 without independently asserting any objections, Textron Inc. and TSV did not originally assert any objections to those at-issue Requests. Thus, according to Plaintiffs, any objections asserted by Textron Inc. and TSV in their supplemental Responses to those at-issue Requests were untimely and should be deemed waived. (Mem. in Supp. [Docket No. 244], at 21–23). However, Plaintiffs’ argument is inherently flawed.

*7 “Rule 34 does not provide for automatic waiver of untimely objections, but courts routinely apply Rule 33(b)(4)’s waiver provision to all discovery mechanisms.” U.S. Bank Nat'l Assoc. v. Equity Bank, No. 12-2023 (PAM/JJG), 2014 WL 12601036, at *4 (D. Minn. May 7, 2014). “Under Rule 33(b)(4), untimely objections are waived unless a court excuses the failure for good cause shown.” U.S. Bank Nat'l Assoc., 2014 WL 12601036, at *4. Accordingly, “courts in this District have adopted a rule that such a waiver is implied into Rule 34 for late objections unless the Court excuses the failure for good cause shown.” Klein v. Affiliated Grp., Inc., 18-cv-949 DWF/ECW, 2019 WL 1307884, at *5 (D. Minn. Mar. 22, 2019).

In the present case, however, automatic waiver is not appropriate because neither Textron Inc.’s objections to Request Nos. 41–58 nor TSV's objections to Request Nos. 41–52 were untimely.[5] To the contrary, Textron Inc. and TSV's original Responses to those at-issue Requests referred Plaintiffs to their original Responses to Request No. 40 which contained, albeit poorly drafted, proportionality, relevancy, and scope of discovery objections. Those objections contained in Textron Inc. and TSV's original Response to Request No. 40 were incorporated by reference into their Responses to the at-issue Requests. Those objections which were incorporated by reference into the at-issue Responses are analogous with the objections Textron Inc. and TSV subsequently included into their first and second Supplemental Responses to the at-issue Requests. (See, Ex. 22 [Docket No. 245-22]; Ex. 23 [Docket No. 245-23]).

Accordingly, this Court finds that Textron Inc. and TSV's objections asserted in their first and second Supplemental Responses to the at-issue Requests were not untimely. Because neither Textron Inc. nor TSV's objections were untimely, automatic waiver is not appropriate. See, e.g., Edeh v. Equifax Info. Servs., LLC, No. 11-2671 (SRN/JSM), 2013 WL 1749912, at *16 (D. Minn. Apr. 23, 2013), aff'd, 291 F.R.D. 330 (D. Minn. 2013) (finding objections were not waived where responses to discovery requests were not untimely).

Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is DENIED to the extent that it seeks an Order of this Court deeming all objections contained in Textron Inc.’s Supplemental Responses to Fourth Set Request Nos. 41–58 and Textron Specialized Vehicles Supplemental Responses to Fourth Set Request Nos. 41–52 waived.

Third Set Request for Production of Documents Nos. 34–39 to all Defendants seek documents related to a purported design defect with the Wildcat XX. Specifically, those Requests each seek documents related to the “Rear CV Axle Halfshaft.” (See, Ex. 7 [Docket No. 245-7]; Ex. 8 [Docket No. 245-8]; Ex. 9 [Docket No. 245-9]; Ex. 24 [Docket No. 245-24]).

*8 Plaintiffs seek an Order of this Court compelling all Defendants to produce documents responsive to Plaintiffs’ Third Set Requests for Production of Documents Nos. 34–39, as well as, compelling all Defendants to amend their responses to those at-issue Requests to comply with Federal Rule of Civil Procedure 34. (Mot. to Compel [Docket No. 242]). However, Defendants assert that they have “answered these requests and provided all responsive documents in their possession” and “there is nothing left to produce.” (Mem. in Opp'n [Docket No. 249], at 40).

The Court notes that it cannot order the production of evidence that does 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). Nevertheless, the Court will address the sufficiency of each of Defendants’ at-issue Responses.

The Court first addresses the sufficiency of the Responses provided by Textron Inc. In each at-issue Response, Textron Inc. clearly states that “it does not have possession of any documents that would be responsive.” (Ex. 9 [Docket No. 245-9]). In an apparent excess of caution, Textron Inc. then explains that “[t]o the extent such documents exist, such documents would be in the possession of Textron Specialized Vehicles,” and Textron Inc. refers Plaintiffs to several “documents previously produced through other parties.” (Id.). Although Textron Inc.’s purported explanation and reference to documents produced by other Parties is unnecessary, that unnecessary verbiage does not render Textron Inc.’s Responses ambiguous. Nor does it alter the fact that Textron Inc.’s Responses are sufficient on their own. In Response to Request for Production of Documents Nos. 37–39, Textron Inc. has clearly indicated that it does not possess any responsive documents.[6]

Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is DENIED to the extent that it seeks an Order of this Court compelling Textron Inc. to produce responsive documents and amend its Responses to Third Set Request for Production of Documents Nos. 34–39.

The Court next addresses the sufficiency of the Responses provided by TSV. In reference to Request for Production of Document Nos. 36–39, each of TSV's Supplemental Responses directs Plaintiffs to “see” a list of bates-numbered documents, and TSV indicates that “[t]here are no other documents that are responsive to this Request.” (Ex. 24 [Docket No. 245-24], at 5–6). Notably, TSV's Supplemental Responses to Request Nos. 36–39 omit any objections contained in TSV's original Responses, and TSV's Supplemental Responses reference each bates-numbered document that was referenced in TSV's original Responses. As such, TSV's Supplemental Responses to Request Nos. 36–39 are not ambiguous. TSV has clearly indicated that the list of bates-numbered documents is inclusive, and no additional documents exist.[7]

*9 Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is DENIED to the extent that it seeks an Order of this Court compelling TSV to produce responsive documents and amend its Supplemental Responses to Third Set Request for Production of Documents Nos. 36–39.

In reference to Request for Production of Document Nos. 34–35, each of TSV's Supplemental Responses directs Plaintiffs to “see also” a list of bates-numbered documents, which contains some of the bates-numbered documents referenced in TSV's original Responses, omits some of the bates-numbered documents referenced in TSV's original Responses, and adds bates-numbered documents not referenced in TSV's original Responses. (Ex. 24 [Docket No. 245-24], at 3–5). In contrast to TSV's Supplemental Responses to Request Nos. 36–39, TSV's Supplemental Responses to Request Nos. 34–35 do not indicate whether any additional responsive documents exist. (See, Id.).

As already noted, Defendants represent in opposition to the present motion that they have produced all responsive documents in their possession, and this Court cannot order the production of evidence that does not exist. See, e.g., Farmers Ins. Exch., 2012 WL 12894845, at *5; Struzyk, 2003 WL 21302966, at *2. However, it is not evident from TSV's Responses and Supplemental Responses to Request Nos. 34–35 that all responsive documents have been produced and no responsive documents have been withheld. Moreover, TSV's use of “see also” in its Supplemental Responses coupled with the partially overlapping list of bates-numbered documents renders TSV's Responses and Supplemental Responses ambiguous as to exactly which documents are responsive to each Request. In this Court's prior January 5, 2020, Order, this Court ordered Plaintiffs to “reference by bates number which documents respond to which specific Requests for Production of Documents.” (January 5, 2020, Order [Docket No. 194], at 13–16). The Court finds that Rule 34 requires such a reference here as well. (See, Id.); see also, Hodges v. Pfizer, Inc., No. 14-cv-4855 (ADM/TNL), 2015 WL 13804602, at *14 (D. Minn. Dec. 17, 2015) (ordering the producing party to identify responsive documents by bates number); Remote Techs., Inc. v. Data Int'l Co., Ltd., No. 10-1678 (MJD/JSM), 2012 WL 13028154, at *12 (D. Minn. July 31, 2012) (same).

Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is GRANTED in part and DENIED in part to the extent that it seeks an Order of this Court compelling TSV to produce responsive documents and amend its Supplemental Responses to Third Set Request for Production of Documents Nos. 34–35. TSV must amend its Supplemental Responses to Request Nos. 34–35 to clearly state that no responsive documents have been withheld and to specifically reference by bates number every document that is responsive to each Request.

Lastly, the Court addresses the sufficiency of the Responses provided by Arctic Cat Inc. and Arctic Cat Sales Inc. In each at-issue Response, the Arctic Cat Parties refer Plaintiffs to a list of bates-numbered “documents previously produced,” as well as, a list of bates-numbered documents “produced herewith.” (Ex. 7 [Docket No. 245-7]; Ex. 8 [Docket No. 245-8]). Neither Arctic Cat Inc. nor Arctic Cat Sales Inc. have supplemented their original Responses. Still, the Arctic Cat Parties’ Responses to Request Nos. 34–39 are insufficient for the same reasons as TSV's Responses and Supplemental Responses to Request Nos. 34–35 are insufficient.

*10 Although the Defendants represent in opposition to the present motion that they have produced all responsive documents in their possession and this Court cannot order the production of evidence that does not exist, it is not evident from the Arctic Cat Parties’ Responses to Request Nos. 34–39 that all responsive documents have been produced and no responsive documents have been withheld. Moreover, it is not clear from the Arctic Cat Parties’ Responses whether the provided lists of bates-numbered documents include all responsive documents.

Therefore, Plaintiffs’ Motion to Compel, [Docket No. 242], is GRANTED part and DENIED in part to the extent that it seeks an Order of this Court compelling Arctic Cat Inc. and Arctic Cat Sales Inc. to produce responsive documents and amend their Responses to Third Set Request for Production of Documents Nos. 34–39. Arctic Cat Inc. and Arctic Cat Sales Inc. must amend their Responses to Request Nos. 34–39 to clearly state that no responsive documents have been withheld and to specifically reference by bates number every document that is responsive to each Request.

Fourth Set Request for Production of Documents Nos. 40–54 to Textron Inc. and Fourth Set Request for Production of Documents Nos. 40–52 to TSV seek documents purportedly related to Plaintiffs’ alter ego theory of liability against Textron Inc. (See, Ex. 22 [Docket No. 245-22], at 3–15; Ex. 23 [Docket No. 245-23]).

Plaintiffs seek an Order of this Court compelling Textron Inc. to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–54 and compelling TSV to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–52, as well as, compelling Textron Inc. and TSV to amend their Supplemental Responses to those at-issue Requests to comply with Federal Rule of Civil Procedure 34. (Mot. to Compel [Docket No. 242]).

However, Request Nos. 40–54 to Textron Inc. and Request Nos. 40–52 to TSV are patently overbroad. As drafted, those Requests seek vast amounts of corporate documents and communications that have no relevance whatsoever to the actual issues in this case. As already noted, the present case centers around Defendants’ alleged breaches of the Agreement. (See, e.g., Second Am. Compl. [Docket No. 164]). Nevertheless, Plaintiffs’ argue that they are entitled to nearly unbridled discovery into Textron and TSV's corporate documents and communications simply because Plaintiffs have generically alleged that TSV is the alter ego of Textron Inc. (See, Mem. in Supp. [Docket No. 244], at 8–15). Specifically, Plaintiffs contend that those at-issue Requests are relevant to Plaintiffs’ ability “to pursue liability against Textron based on alter ego and joint venture theories, which will entail an analysis of evidence corresponding to the Victoria Elevator factors.” (See, e.g., Id. at 9).

“Under Minnesota law, ‘there is a ‘presumption of separateness’ between a parent and subsidiary corporation.’ ” N. Cent. EMS Corp. v. Bound Tree Med., LLC, No. 15-2793 (JRT/LIB), 2016 WL 544472, at *4 (D. Minn. Feb. 10, 2016) (quoting Bank of Montreal v. Avalon Cap. Grp., Inc., No. 10-591, 2012 WL 1110691, at *9 (D. Minn. Apr. 3, 2012)). “However, ‘[a] court may pierce the corporate veil to hold a party liable for the acts of a corporate entity if the entity is used for a fraudulent purpose or the party is the alter ego of the entity.’ ” Id. (quoting Bank of Montreal, 2012 WL 1110691, at *9).

*11 Determining whether the corporate veil should be pierced requires the application of a two-prong test. See, Victoria Elevator Co. v. Meridian Grain Co., 283 N.W.2d 509, 512 (Minn. 1979). The first prong requires courts to consider whether a number of factors have been demonstrated in order to determine whether the corporation functioned as a mere instrumentality of the individuals sought to be held personally liable, such as:

Victoria Elevator, 283 N.W.2d at 512. Under the second prong, which is reached if the first prong is satisfied, a court analyzes whether piercing the corporate veil is necessary to avoid “an element of injustice or fundamental unfairness.” Id.

The Court begins its analysis by noting that Plaintiffs have provided little-to-no evidence in support of their bare, conclusory alter ego allegations. Plaintiffs merely contend generically that the information sought by the at-issue Requests is relevant to several of the factors analyzed in the first prong of the alter ego test.[8] (See, Mem. in Supp. [Docket No. 244], at 8–15). Moreover, Plaintiffs have not provided any evidence that TSV is insolvent or would be unable to pay any potential judgment in this case. Nor have Plaintiffs provided any other evidence that piercing the corporate veil is necessary to avoid an element of injustice or fundamental unfairness. In applying Rule 26(b), magistrate judges can consider substantive law to determine the scope of discovery. 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.”). Therefore, in determining the relevancy and weighing the burden of Plaintiffs’ at-issue Requests, this Court considers the fact that Plaintiffs have provided minimal evidence, if any, indicating that piercing the corporate veil is appropriate in this case.

With that in mind, this Court further notes that the at-issue Requests, as drafted, seek a multitude of documents that are in no way related to the Agreement and are plainly not relevant to any actual issues in this case—including piercing the corporate veil. To the extent that some limited portion of the documents sought by those Requests may be marginally relevant to the actual issues in this case, those requests also seek large amounts of discovery that is plainly not relevant. See, e.g., McGinnis v. Soo Line R.R. Co., No. 12-795 (DSD/JJK), 2013 WL 1748710, at *2 (D. Minn. Apr. 23, 2013) (citing WWP, Inc. v. Wounded Warriors Fam. Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011)) (“Even if a request for production seeks relevant information, however, it may nonetheless be denied if it is overbroad.”).

*12 While this Court makes no decision regarding the ultimate viability of Plaintiffs’ alter ego claim against Textron Inc., the utter lack of evidence provided by Plaintiffs’ in support of that claim demonstrates that the at-issue Requests are patently overbroad and not proportional to the needs of this case. By contrast, the burden on Defendants in complying with Plaintiffs’ overbroad Requests would be great.

A party opposing discovery may prevent discovery by showing that the discovery request creates an undue burden. See, e.g., Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D. Neb. 2001); St. Paul Reinsurance Co., 198 F.R.D. at 511; Inline Packaging, LLC v. Graphic Packaging Int'l, Inc., No. 15-cv-3183 (ADM/LIB), 2016 WL 7042117, at *8 (D. Minn. July 25, 2016). “The standard is whether the burden or expense is ‘undue’ and whether the ‘hardship is unreasonable in the light of the benefits to be secured from the discovery.’ ” Wagner, 208 F.R.D. at 610 (quoting Wright, Miller, & Marcus, Federal Practice Procedure § 2214, p. 435 (1994)); Inline Packaging, 2016 WL 7042117, at *8. A party claiming requests are unduly burdensome cannot rely on mere conclusory allegations; rather, it must provide some evidence regarding the time or expense required to respond to said discovery requests. See, e.g., Horizon Holdings, LLC v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).

Here, Defendants have asserted that they would incur substantial costs in locating and producing responsive documents, and Defendants have provided evidence in support of that assertion. (See, Mem. in Opp'n [Docket No. 249], at 15–19, 30–33; Savoca Decl. [Docket No. 251]). Thus, this Court finds that the minimal benefit, if any, to Plaintiffs of the information sought by the at-issue Requests is greatly outweighed burden on Defendants in complying with those Requests.

In sum, this Court concludes that Request Nos. 40–54 to Textron Inc. and Request Nos. 40–52 to TSV are patently overbroad, not proportional to the needs of this case, and unduly burdensome. Therefore, Defendants Textron Inc. and TSV are not required to respond to those requests.[9]

Accordingly, Plaintiffs’ Motion to Compel, [Docket No. 242], is DENIED to the extent that it seeks an Order of this Court compelling Textron Inc. to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–54 and compelling TSV to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 40–52, as well as, compelling Textron Inc. and TSV to amend their Supplemental Responses to those at-issue Requests to comply with Federal Rule of Civil Procedure 34.

Fourth Set Request for Production of Documents Nos. 55–58 to Textron Inc. seek documents related to the due diligence file for the acquisition of Arctic Cat Inc., agreements memorializing that acquisition, and documents related to the transition of ownership following that acquisition. (Ex. 22 [Docket No. 245-22], at 14–16).

Plaintiffs seek an Order of this Court compelling Textron Inc. to produce documents responsive to Plaintiffs’ Fourth Set Request for Production of Documents Nos. 55–58, as well as, compelling Textron Inc. to amend its Supplemental Responses to those at-issue Requests to comply with Federal Rule of Civil Procedure 34. (Mot. to Compel [Docket No. 242]). Plaintiffs contend that the documents sought by Request Nos. 55–58 are “relevant to establish Textron's knowledge of the agreement between Plaintiffs and Arctic Cat and its investigation of the corresponding aspect of Arctic Cat's business.” (Mem. in Supp. [Docket No. 244], at 15). Regarding that investigation, Plaintiffs contend that the documents sought are relevant to whether Textron Inc. knew there was a “lack of any ‘business case’ ” for additional Special Royalty Vehicles at the time of the acquisition or “whether Textron Inc. failed to evaluate this aspect of Arctic Cat's business prior to its acquisition.” (Id. at 17).

*13 The threshold inquiry with regard to discovery issues is whether the moving party seeks discoverable material. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 635 (D. Minn. 2000) (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, 981 F.2d at 380.

Here, Defendants have voluntarily agreed to provide responsive materials which are related to Plaintiffs or the Agreement. (Mem. in Opp'n [Docket No. 249], at 39). However, Defendants contend that Request Nos. 55–58 to Textron Inc. are overbroad because they seek additional documents which are not related to Plaintiffs or the Agreement. (Id. at 38–39). Plaintiffs’ proffered assertions regarding relevancy are only applicable to those responsive documents which are related to Plaintiffs or the Agreement. (See, Mem. in Supp. [Docket No. 244], at 15). Therefore, this Court finds that Plaintiffs have not made a threshold showing that responsive documents which are unrelated to Plaintiffs or the Agreement are relevant to any claims or defenses in this case. Defendants are not required to produce responsive documents which are not related to Plaintiffs or the Agreement. See, e.g., Hofer, 981 F.2d at 380.

Accordingly, Plaintiffs’ Motion to Compel, [Docket No. 242], is GRANTED part and DENIED in part to the extent that it seeks an Order of this Court compelling Textron Inc. to produce responsive documents and amend its Supplemental Responses to Fourth Set Request for Production of Documents Nos. 55–58. Textron Inc. must produce documents, if any, which are responsive to Request Nos. 55–58 and are related to Plaintiffs or the Agreement, and Textron Inc. must amend its Supplemental Responses to Request Nos. 55–58 to clearly state whether any such documents have been withheld and to specifically reference by bates number every such document that is responsive to each Request.[10]

IV. CONCLUSION

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