*1 Before the Court are the parties' August 11, 2020 Joint Motion for Determination of Discovery Dispute, in which defendants moved to compel further responses to certain written discovery requests (the “Motion to Compel” or “Mot.”). Doc. No. 30. The Court held discovery conferences with the parties regarding these matters on August 17, 2020 and August 24, 2020. At the Court's request, the parties lodged the discovery under dispute directly with this Court's chambers on August 18, 2020. See Doc. No. 32. Having considered the moving papers, the arguments of counsel, and the discovery at issue, and for the reasons that follow, the Court GRANTS the Motion to Compel.

Plaintiff Gopher Media, LLC (“plaintiff” or “Gopher Media”) is a digital marketing and social media services company. Doc. No. 1 (“Complaint”) at 4. Defendants Phillip Spain (“Spain”) and Steven Marinkovich (“Marinkovich”) are former employees of Gopher Media. Id. at 5, 8. Spain and Marinkovich were terminated on June 20, 2019 and June 21, 2019, respectively, allegedly for their poor work performance, including that they frequently missed work and work-related events. Id. at 5-9. Thereafter, defendants went to work for Gopher Media's competitor, Adit. Id. at 12. Plaintiff alleges that both Spain and Marinkovich misappropriated Gopher Media's trade secrets, including client lists, event lists, sales strategies, and sales scripts, which they then used to their new employer's benefit. Id. at 6, 8, 11-12. Plaintiff also alleges that defendants solicited Gopher Media's customers and persuaded some of Gopher Media's key employees to joint Adit. Id. at 11-12.

Defendants have denied the allegations and asserted that all or some of plaintiff's claims are barred by the defenses of unclean hands, equitable estoppel, plaintiff's own acts, omissions, or misconduct, comparative fault and failure to mitigate (among others). See Doc. 7 at 21-23 (Second, Fifth, Seventh, Eighth, Eleventh, Twelfth, Sixteenth, and Seventeenth Defenses).

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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). The scope of relevance under these rules “is commonly recognized as one that is necessarily broad ... in order ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Cancino Castellar v. McAleenan, No. 3:17-CV-491-BAS-AHG, 2020 WL 1332485, at *5 (S.D. Cal. Mar. 23, 2020) (citation omitted); see also V5 Techs. v. Switch, Ltd., 334 F.R.D. 297, 301 (D. Nev. 2019) (“Relevance for the purposes of discovery is defined broadly.”). The broad scope of discovery under the Federal Rules underscores that “[t]he purpose of discovery is to ascertain facts in dispute, clarify the issues, and avoid surprise at trial.” Medford v. Metro. Life Ins. Co., 244 F. Supp. 2d 1120, 1123 (D. Nev. 2003).

*2 If a party fails to answer a written discovery request, or provides an incomplete response, the party seeking discovery may move for an order compelling disclosure. Fed. R. Civ. P. 37(a)(3) & (4). The party seeking discovery must establish that the discovery is relevant, while “the party opposing discovery bears the burden of showing that discovery should not be allowed, and of clarifying, explaining, and supporting its objections with competent evidence.” Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 281 (N.D. Cal. 2015). “ ‘District courts have wide latitude in controlling discovery[.]’ ” U.S. Fid. and Guar. Co. v. Lee Inv. LLC, 641 F.3d 1126, 1136 n. 10 (9th Cir. 2011) (citation omitted).

A. Defendants' Requests for Production, Sets One and Two

1. Summary of the Dispute

Defendants served plaintiff with a first set of requests for the production of documents (“RFPs” or “document requests”) on March 27, 2020 and a second set on April 15, 2020. Mot. at 14. Plaintiff served amended responses and objections to both sets of RFPs on August 4, 2020.[1] The parties also represent that in response to these RFPs, plaintiff produced 139,311 documents, the majority of which are single-page PDFs. Id. Defendants complain that the documents plaintiff produced are not organized, such that it is impossible to tell which documents correspond to which document request. Id. In fact, defendants state, many of the documents produced are not relevant to the action at all, and to the extent the documents are responsive to defendants' document requests they are buried among thousands of other nonresponsive documents. Id. Defendants further complain that plaintiff designated all 139,311 documents “For Counsel Only” pursuant to the protective order in place in the action, even though many of the documents do not contain sensitive information. Id. at 15; see also Doc. No. 17 (“Protective Order”).

Plaintiff responds by stating that defendants propounded overbroad discovery requests and cannot complain that the responses were correspondingly broad. Id. at 15, 16. Plaintiff also states the documents are responsive to defendants' document requests because defendant requested employment-related documents. Id. at 15-16. Regarding the manner of production, plaintiff's counsel explained during the conferences that the “bulk” of the 139,311 documents produced to date represent a collection of Slack messages[2] that were initially produced to plaintiff as a data file and were not Bates-numbered. However, defendants reported they could not open the file and at defendants' request, plaintiff produced the messages as single-page images instead, and Bates numbered them. Finally, plaintiff states it designated the entire production as “For Counsel Only” because the documents relate to clients, business strategies, and other types of business information that defendants have (allegedly) misappropriated and may do so again if allowed access to the documents. Mot. at 17.

2. Analysis

Incorporation by Reference of 139,311 Documents. Defendants do not object to any specific RFP responses but rather to plaintiff's generic reference to “documents already produced in this case” in response to their RFPs, which range in topic from employment and confidentiality agreements between plaintiffs and defendants, plaintiff's billing and other business practices, clients and employees alleged to have been improperly solicited by defendants, and plaintiff's alleged damages, lost profits and goodwill impairment, among others. Having reviewed plaintiff's amended responses, the Court finds defendants' objection to plaintiff's generic incorporation by reference of 139,311 documents produced in response to each document request well-taken.

*3 As an example, plaintiff alleges in the Complaint that:

Complaint at 8. Accordingly, among Marinkovich's first document requests were four distinct requests for documents substantiating these allegations (RFP Nos. 1, 2, 3 and 4). Plaintiff's response to all four requests was identical. In addition to stating objections that the requested documents were irrelevant, privileged, and contained counsel's work product, plaintiff responded that “Plaintiff will produce all relevant, non-privileged documents that are responsive to this Request to the extent that they have not already been produced in this case. See documents already produced in this case.” Plaintiff also stated that “there may be other documents responsive to this request” that “Defendant [sic] is unaware of at this time” or were not within plaintiff's possession, custody or control or that were possibly destroyed, such that plaintiff “is unable to produce or identify such documents.” See Plaintiff's Amended Responses to Marinkovich's RFPs, Set One; Plaintiff's Amended Responses to Spain's RFPs, Set One. Plaintiff responded in similar fashion to all of defendants' document requests. Id.

The Court finds plaintiff's responses wholly inadequate. The Federal Rules do not permit a party to “ ‘hide the ball’ during discovery when requests have been made.” Acosta v. Austin Elec. Svcs. LLC, 325 F.R.D. 325, 329 (D. Ariz. 2018). Rule 34 governs the production of documents and prohibits parties from “producing a mass of undifferentiated documents for the responding party to inspect.” City of Colton v. Am. Promotional Events, Inc., 277 F.R.D. 578, 584-85 (C.D. Cal. 2011) (further noting that Rule 34 is designed to “prevent attempts to hide a needle in a haystack”) (citation omitted). Yet, that is exactly what plaintiff has done here, by incorporating by reference 139,311 documents in response to each of defendants' document requests. Plaintiff, therefore, will be required to amend its discovery responses to identify which documents are responsive to which document requests.[4] Fed. R. Civ. P. 34(b)(2)(E). Moreover, if the production to date is in fact the sum of responsive documents within plaintiff's possession, plaintiff must so state. See F.D.I.C. v. Appleton, No. CV 11-476-JAK PLAX, 2012 WL 10245383, at *4 (C.D. Cal. Nov. 29, 2012) (noting that it is the producing party's “duty to represent that all [responsive] documents have been produced”). Plaintiff is reminded of its “duty under Rule 34 to conduct a diligent search and reasonable inquiry in effort to obtain responsive documents.” See Price v. Synapse Group, Inc., No. 16CV1524-BAS(BLM), 2018 WL 9517276, at *9 (S.D. Cal. Sept. 12, 2018) (collecting cases) (citation omitted).

*4 Confidentiality Designations. The Court also finds that plaintiff's indiscriminate designation of the totality of its document production as “For Counsel Only” was abusive and improper. The operative Protective Order, which was stipulated by the parties and entered by the Court, provides that “[a]ny party may designate information as ‘CONFIDENTIAL - FOR COUNSEL ONLY’ only if, in the good faith belief of such party and its counsel, the information is among that considered to be most sensitive by the party....” Doc. No. 17 at 4 (emphasis added). Plaintiff's only explanation for its mass designation of its entire document production is that the documents in question are Slack messages and Slack was the platform on which plaintiff's employees communicated about clients. The fact that Slack was the preferred method by which plaintiff's employees communicated, however, says nothing about whether the communications contain trade secrets. Indeed, plaintiff has not persuaded the Court that Slack messages are any different from emails, memoranda, handwritten notes, or any other mode of intraoffice communication. Plaintiff has failed to demonstrate it had a good faith basis for designating any, let alone all, of the 139,311 documents in its production “For Counsel Only.” See Youngevity Int'l Corp. v. Smith, No. 16-cv-00704-BTM (JLB) 2017 WL 6541106, at *11 (S.D. Cal. Dec. 21, 2017) (finding no good faith basis for designation of entire document production as attorneys' eyes only).

Plaintiff is correct that the Protective Order provides a mechanism for objecting to a party's confidentiality designations. Doc. No. 17 at 7. However, the “burden to determine confidentiality...properly falls on the party seeking protection.” Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (SK), 2019 WL 1552293, at *2 (N.D. Cal. Apr. 9, 2019) (finding party's “wholesale designation of deposition transcripts as confidential” was improper). Indeed, this is the procedure to which the parties agreed. See Doc. No. 14 (joint motion for entry of stipulated protective order). By designating its entire document production as “for counsel only,” plaintiff has improperly attempted to shift the burden of reviewing the documents and identifying plaintiff's confidential information to defendants. Plaintiff must review and re-designate the 139,311 documents produced to date, applying the “for counsel only” designation only where appropriate. The Court further finds that plaintiff's over-designation of documents en masse has needlessly delayed discovery in this matter. Therefore, plaintiff must produce appropriately-designated documents to defendants on an expedited basis. Plaintiff is cautioned that further over-designation of documents will not be tolerated and may result in sanctions.

B. Defendants' Interrogatories

1. Summary of the Dispute

On March 27, 2020, each of the defendants served plaintiff with contention interrogatories, seeking information regarding (among other topics) the specific clients defendants are alleged to have solicited from Gopher Media, and other business, profits and goodwill plaintiff allegedly lost as a result of defendants' purported misappropriation of its trade secrets. Mot. at 7, 19. Plaintiff served amended responses on August 4, 2020. In its responses, plaintiff attached and referred to a 20-page list of “hundreds” of clients. Id. Defendants state they cannot discern from this list which clients defendants are accused of having solicited. Id. Defendants also complain that plaintiff has not responded to interrogatories regarding the specific work and work-related events Spain and Marinkovich missed and other details regarding their termination, and plaintiff's purchase of domains in the names of the defendants. Id. at 19-20. At issue are plaintiff's responses to Marinkovich's Interrogatories Nos. 1, 2, 5, 6, 7, 8, 13, 15, 20 and 24, and Spain's Interrogatories Nos. 1, 2, 5, 6, 7, 8, 14, 16, 21 and 22.[5] Id. at 19-20.

*5 Regarding the list of clients, plaintiff claims that it explained the list's content and meaning to defendants during meet and confer sessions, and that it represents “a list of clients that Plaintiff believes were inappropriately contacted and taken from Plaintiff by Defendants and/or as a result of the acts of Defendants.” Id. at 20. Plaintiff also states that it has not yet been able to conduct a forensic exam of defendants' devices and that the results of this exam are necessary for it to be able to respond to defendants' interrogatories. Id. at 20-21. Regarding defendants' termination, plaintiff asserts its responses are adequate. Id. at 21. Plaintiff does not address its responses to interrogatories concerning plaintiff's purchase of the domain names “stevenmarinkovich.com” or “phillipspain.com.”

2. Analysis

Marinkovich's Interrogatories 1, 2, and 5; Spain's Interrogatories Nos. 1, 2 and 5. In response to defendants' request for information regarding the specific clients plaintiff alleges defendants solicited or attempted to solicit away from Gopher Media, plaintiff refers defendants to a 21-page list of client names. For each of the hundreds of clients on the list, the following information is provided: Account Name, Website, Created Date, and Opportunity Owner. There is no explanation in the interrogatory responses or the client list what this information means or how it is responsive to the interrogatories.

A central allegation of plaintiff's Complaint is that defendants “have and continue to solicit plaintiff's clients in violation of the law and their contractual obligations,” and that as a result, “[p]laintiff has lost clients, profits, business [and] goodwill.” Complaint at 12. Defendants are entitled to know the basis of these allegations. Yet, plaintiff's interrogatory responses fail to identify any specific client that plaintiff lost or to otherwise substantiate these allegations. Furthermore, plaintiff fails to delineate in the responses or the attached client list which clients were “contacted,” which were “solicited,” and which were “lost,” as called for in the responses. Plaintiff stated during conference that every client on the list left Gopher Media in the month following defendants' termination, and thus their position is that all the clients identified on the list were wrongly solicited by defendants. But, the universe of clients who left in approximately June and July of 2019 and the clients who left because of defendants' alleged wrongdoing are “two very different things,” and without more, plaintiff's incorporation by reference of a list of hundreds of clients “is evasive of what is actually being sought in the interrogator[ies].” V5 Techs., 334 F.R.D. at 305; see also Lawman v. City and Cty. of San Francisco, 159 F.Supp.3d 1138, 1141 (N.D. Cal. 2016) (finding interrogatory response that incorporated documents by reference did not put requesting party on notice of responding party's contention). Plaintiff must amend its responses to Marinkovich's Interrogatories 1, 2, and 5 and Spain's Interrogatories Nos. 1, 2 and 5, to state which clients on the client list are alleged to have been improperly contacted, solicited, or lost to plaintiff due to the conduct of defendants, as called for in the interrogatories. Plaintiff has the right – indeed, the obligation – to supplement those responses with later-acquired evidence, such as information collected from a forensic examination of defendants' electronic devices. Fed. R. Civ. P. 26(e)(1). However, plaintiff cannot delay responding to these interrogatories based on information currently known to it.

Marinkovich's Interrogatories Nos. 6, 7, 8 and 20; Spain's Interrogatories Nos. 6, 7, 8 and 21. In response to defendants' interrogatories asking plaintiff to describe or quantify its financial and business losses, plaintiff referred defendants to the same client list. However, the client list is just that – a list of Gopher Media's clients. It does not contain any information whatsoever regarding the value of those client accounts, the value of any business lost from those accounts, for what period of time those entities were clients of Gopher Media, or whether they are former or current clients. Thus, plaintiff's reference to this document in response to defendants' interrogatories is not responsive. See Lawman, 159 F.Supp.3d at 1141 (finding interrogatory response incorporating documents that “d[id] not contain any facts” about the subject of the interrogatory were improper). Plaintiff also states in the responses that the precise amount of its “total damages” is unknown but is “at least $5 million.” See Plaintiff's Amended Responses to Marinkovich's Interrogatories Nos. 6, 7, 8, and 20; Plaintiff's Amended Responses to Spain's Interrogatories Nos. 6, 7, 8 and 21. This response simply repeats plaintiff's allegation that Gopher Media “has lost clients, profits, business, goodwill, and suffered other damages as result [sic] of the conduct of Defendants” and “has been damaged in amount [sic] of $5 million or more according to proof at time of trial.” Complaint at 12. Furthermore, only one interrogatory in each set seeks information about plaintiff's damages – Spain's Interrogatory No. 21 and Marinkovich's Interrogatory No. 20. Plaintiff's repetition of the identical response regarding “total damages” in response to interrogatories regarding goodwill, lost customers, and lost profits is nonresponsive and improper. See Agyeman v. Bohl, No. 1:99 CV 5913 WME PC, 2008 WL 4104313, at *2 (E.D. Cal. Sept. 3, 2008) (“Parties are prohibited from using discovery as a form of gamesmanship to avoid disclosures.”). Plaintiff must amend its responses to Marinkovich's Interrogatories Nos. 6, 7 and 8 and Spain's Interrogatories Nos. 6, 7 and 8. To the extent plaintiff lacks the knowledge to respond, plaintiff may so state. See Frias Holding Co. v. Greenberg Traurig, LLP, No. 2:11-cv-160-GMN-VCF, 2015 WL 4622591, at *2 (D. Nev. Aug. 3, 2015) (“If a person lacks knowledge, then that person must respond to the discovery request and state that he or she lacks knowledge.”). However, plaintiff is reminded of its ongoing obligation to supplement its discovery responses once responsive information is learned or discovered. Fed. R. Civ. P. 26(e)(1); see also Asia Vital Components Co., Ltd. v. Asetek Danmark A/S, 377 F.Supp.3d 990, 1004 (N.D. Cal. 2019) (noting party's obligation under Rule 26 to supplement or correct responses to contention interrogatories).

*6 Marinkovich's Interrogatories Nos. 13 and 15; Spain's Interrogatories Nos. 14 and 16. Defendants also sought information regarding specific work days, work events, or training courses Marinkovich and Spain allegedly missed. This information is directly relevant to plaintiff's allegations that defendants' frequent absences contributed to their termination from Gopher Media. See Complaint at 6-7. Nevertheless, plaintiff objected that the discovery was irrelevant and disproportional, and responded by simply repeating the allegations in the Complaint.

The Court finds plaintiff's responses inadequate, as they do not provide defendants the factual basis for the allegations made in the Complaint regarding defendants' purported unauthorized absences from work. See V5 Techs., 334 F.R.D. at 305 (responses to contention interrogatories should provide “notice of an opponent's litigation position and the basis for that position”). Nor is the Court persuaded that plaintiff cannot respond to these Interrogatories until it conducts a forensic examination of defendants' electronic devices or otherwise completes its “investigation.” Mot. at 20-21. Gopher Media was defendants' employer. Presumably, information regarding Gopher Media's basis for terminating defendants' employment is within Gopher Media's possession, custody and control. Plaintiff must amend its responses to Marinkovich's Interrogatories Nos. 13 and 15 and Spain's Interrogatories Nos. 14 and 16 to provide the specific information requested.

Marinkovich's Interrogatory No. 24; Spain's Interrogatory No. 22. Finally, defendants sought information regarding the reasons why plaintiff purchased the domain names phillipspain.com and stevenmarinkovich.com. Plaintiff objected that the interrogatory sought information that was entirely irrelevant to the case because defendants' conduct, not plaintiff's, is at issue in the case. Plaintiff generically responded that it “routinely purchases” domain names for business purposes. No information was provided regarding the purchase of the specific domain names identified in the interrogatory.

The Court finds plaintiff's objections as to the relevance of these interrogatories is misplaced. Under Rule 26, relevance is “construed broadly” and “[d]iscovery is not limited to the issues raised only in the pleadings but rather it is designed to define and clarify the issues.” Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993). Plaintiff alleges that defendants improperly solicited its clients, and the fact that the Complaint lacks detail about the manner or method of that solicitation does not render these interrogatories outside the scope of permissible discovery. Furthermore, defendants have specifically asserted that “after-acquired evidence of Plaintiff's misconduct” and plaintiff's “unclean hands” may bar some or all of plaintiff's claims. Doc. No. 7 at 21-22. Thus, contrary to plaintiff's assertion, Gopher Media's conduct is at is “at issue in this case.” Mot. at 23. Plaintiff must amend its responses to Marinkovich's Interrogatory No. 24 and Spain's Interrogatory No. 22.

C. Requests for Admission

1. Summary of the Dispute

Marinkovich and Spain also served plaintiff with Requests for Admission (“RFAs”). At issue in the Motion to Compel are Marinkovich's RFAs Nos. 8-10 and Spain's RFAs Nos. 4-10, which request that plaintiff admit to purchasing, registering, and communicating with clients from various domain names, including “phillipspain.com,” “stevenmarinkovich.com” and “alijhaver.com.”[6] Doc. 30 at 22. Plaintiff objected and refused to respond on the basis of relevance, but defendants point to plaintiff's assertion in unspecified interrogatory responses that defendants used certain websites to solicit plaintiff's clients. Id. Defendants believe that those websites were in fact purchased by plaintiff. Id. In response, plaintiff states that it is defendants' conduct, not plaintiff's, that is at issue in the case. Id. at 23. Plaintiff therefore maintains that information concerning plaintiff's purchase of domain names is irrelevant to the case. Id.

2. Analysis

*7 Plaintiff asserts that the RFAs impermissibly seek irrelevant information because “there is nothing in the Complaint” about defendants' use of specific websites to solicit clients. Mot. at 23. The Court disagrees. As noted, relevance is broad and not limited to the allegations in plaintiff's Complaint. Hampton, 147 F.R.D. at 229 (S.D. Cal. 1993). Accordingly, and considering not only plaintiff's allegations but also defendants' defenses, the Court finds that defendants' RFAs concerning plaintiff's purchase and use of domain names bearing defendants' names are well within Rule 26's broad scope. Plaintiff “has not provided responsive answers” to these RFAs but “merely stated the questions are not applicable.” Rogers v. Giurbino, 288 F.R.D. 469, 489 (S.D. Cal. 2012) (granting motion to compel). Therefore, Plaintiff must amend its responses to Marinkovich's RFAs Nos. 8, 9 and 10 and Spain's RFAs Nos. 4, 5, 6, 7, 8, 9 and 10.

D. Timing of Responses

Plaintiff states defendants “have dragged their feet with respect to discovery.” Mot. at 5. The Court disagrees. Plaintiff sought and received multiple extensions of time to respond to defendants' discovery, as a result of which plaintiff served its amended responses approximately four months after the discovery was served. See Mot. at 7-8. Plaintiff also joined defendants in petitioning the Court for more time to address the deficiencies in plaintiff's responses. See, e.g., Doc. Nos. 23, 25, and 28. As outlined above, defendants' (and the Court's) patience was met with inadequate and evasive responses, resulting in the need for motion practice. The Court finds the protracted course of plaintiff's responses to reasonable and relevant discovery requests has already prejudiced defendants in their ability to prepare their case. The Court will not penalize defendants further. Instead, to remedy some of the prejudice plaintiff's delay has caused and to deter further dilatory conduct, the Court will require plaintiff to serve its amended discovery responses on an expedited basis.

E. Costs and Expenses

Rule 37 provides that the Court “must” grant the party who prevails on a motion to compel its “reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5). If defendants wish to seek reimbursement for their expenses related to the Motion to Compel, they must submit a motion of no more than 5 pages on or before August 31, 2020. Such motion must be accompanied by a declaration from counsel supporting the request, which is to detail the costs incurred in bringing the motion. Plaintiff may submit an opposition to defendants' motion (if any) along with a supporting declaration by September 4, 2020. Plaintiff's opposition is not to exceed 5 pages. All counsel are advised that the Court will not accept briefs that do not comply with this Order.

For the reasons set forth above, the Court hereby GRANTS the Motion to Compel and ORDERS as follows:

IT IS SO ORDERED.