Most courts hold that a party producing ESI must comply with both Section (E)(i) and Section (E)(ii), but there are other views. Compare Ronaldson v. Nat'l Assoc. of Home Builders, Case No. 19-01034 CKK/DAR, 2020 WL 3259226 at *8 (D.D.C. June 3, 2020) (citing cases and agreeing with view that both Section (E)(i) and Section (E)(ii) apply to ESI) with Landry v. Swire Oilfield Services, L.L.C., 323 F.R.D. 360, 388-390 (D.N.M. 2018) (discussing Duke Law Professor John Rabiej's analysis that Section (E)(ii) applies exclusively to ESI). It is not necessary for the Court to decide this issue, because IPL clarified that it is solely requesting that Kemps supply Bates numbers for production of non-ESI documents, which all agree are governed by Section (E)(i). (See IPL Reply, p. 3-4).

We turn then to Kemps' obligations under Section (E)(i). Section (E)(i) provides parties with the option to “produce documents as they are kept in the usual course of business” or “label them to correspond to the categories in the request.” “This provision was added [in 1980] because of a concern that litigants were deliberately mixing critical documents with masses of other documents to hide their existence or obscure their significance.” Fifth Third Bank v. KC II Insure Services, LLC, Case No. 11-CV-2101 CM/DJW, 2011 WL 5920949 at *4 (D. Kan. Nov. 28, 2011). A party who chooses the ordinary course of business option “bears the burden of showing that the documents were in fact produced in that manner.” Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D. Kan. 2005). See also Fifth Third Bank, 2011 WL 5920949 at *4.

Here, Kemps has neither asserted nor shown that it produced non-ESI documents as it kept them in the ordinary course of business. As such, it failed to show it qualified for an ordinary-course-of-business production option. See id. Therefore, the undersigned recommends that the Court grant IPL's request to compel Kemps to organize by identifying by Bates number any non-ESI documents that correspond to IPL's requests.

Rule 34(b)(2)(C) requires a party to state whether any responsive materials are being withheld based on an objection. In December 2020, the undersigned advised Kemps that it must comply with this requirement. IPL argues that Kemps has not adequately done so. (IPL Br., p. 5-7). Kemps has offered some clarifications in its brief. (Kemps Resp., p. 5-7). IPL remains unsatisfied. (IPL Reply, p. 4-5).

*4 Rule 34(b)(2)(C)'s requirement is relatively clear and straightforward in most contexts. When parties raise numerous objections and qualify their responses as both parties have done in this case, the requirement can become more difficult to apply. Having spent time seeking to understand the parties' respective positions on this subject, the undersigned has concluded that the issue cannot be effectively or meaningfully analyzed across Kemps' discovery responses collectively. It appears that Kemps has attempted to comply with the requirement, but the context of the request and the objection are important to the analysis of whether Kemps has actually complied. Therefore, the undersigned recommends that the Court rule on this issue as necessary in the context of individual discovery requests that IPL has individually addressed in its motion to compel.

In several instances, Kemps argues that IPL is seeking to renegotiate and add ESI search terms by moving to compel Kemps to produce additional documents in response to certain requests. In an initial joint letter to the Special Master dated October 5, 2020, the parties stated that they “have agreed to an ESI protocol for the production of emails.” (Revised Joint Letter dated October 5, 2020, p. 1). The undersigned concluded from that submission and other communications with the parties that the ESI protocol was intended to cover the waterfront of potentially relevant ESI that was collected pursuant to that protocol, with both sides presenting and offering search terms to be run against their own and the other party's ESI. However, the undersigned does not believe that either party intended to permit the ESI protocol to become a means for not producing relevant information. Put another way, if one party is aware of a “smoking gun” document that was not captured by the ESI collection and search terms used, the party could not hide behind the limits of the ESI protocol collection or its search terms to avoid producing that document. On the other hand, the undersigned believes that both parties reasonably believed that the ESI search terms agreed to and ultimately ordered to be run are likely to have netted all relevant information from the ESI collected and searched pursuant to the ESI protocol.

If Kemps or IPL becomes aware that the ESI protocol did not in fact net important information within their own files, both Kemps and IPL have an obligation under Rule 26(e)(1) to supplement their production. Likewise, if Kemps or IPL becomes aware that there is a strong possibility that the ESI protocol did not net important information and it would be relatively easy for Kemps or IPL to assess whether important information was in fact overlooked by the collection or search, neither party may simply bury their head in the sand. Both parties continue to have an obligation to reasonably search for and disclose relevant information in response to specific discovery requests. Generally, it falls on the party in possession of information to determine what type of search is reasonable under the circumstances, keeping in mind that the search should be designed to find the information being sought or requested.

B. Requests for Production

IPL argues that Kemps did not fully respond to six requests that IPL characterizes as seeking quality assurance or quality control manuals or handbooks, standard operating procedures, instructional or training documents, audits, and root cause analyses pertaining to Kemps' storage, freezing, palletizing, shipping, handling, and distribution of Kemps' ice cream and frozen yogurt products. IPL contends that the requests seek relevant information that is important to Kemps' ability to prove causation and to IPL's defenses. (IPL Br., p. 7-8). According to IPL, a focal point in the lawsuit is why Kemps received increased reports of broken containers in 2017. IPL's theory is that Kemps mishandled containers. IPL emphasizes the significance of two video clips that, in IPL's view, show Kemps' employees mishandling or throwing certain products during the process of palletizing them. (IPL Br., p. 3-4). The undersigned has reviewed the video clips, which were Exhibits F and H to IPL's briefing. Exhibit F is a short clip showing two factory workers in blue suits, mittens, and helmets placing or dropping Kemps' Old Fashioned Vanilla ice cream containers in one layer on a pallet, and one worker tossing more ice cream containers onto a second layer or level of the same types of containers. Some of the tossed containers bounce and fall onto their sides. The containers shown in Exhibit F appear similar to the 1.5-quart container shown below.[3] Exhibit H is a short video clip showing two similar factory workers tossing Kemps Family Size ice cream containers onto a third layer or level of a stack of similar containers. The containers shown in Exhibit H appear similar to the 1-gallon size container shown below.[4] IPL states that all of Kemps' ice cream products go through the same process that ends in blast freezing and palletizing. (IPL Reply, p. 11). Kemps has not disputed this point.

*5 Beyond these videos, IPL states that it obtained information in discovery that Kemps had problems of breakage with other product lines, including after the products at issue were switched to more durable opaque containers. (IPL Br., p. 4).

Kemps argues there is no legal foundation for a defense that Kemps (not IPL) caused the breakages by handling the containers in a manner other than how Kemps intended to handle them. (Kemps Resp., p. 7-9). IPL disputes these points and emphasizes that Kemps must prove causation to prevail on its claims—if Kemps' own procedures, processes, or employees' lack of adherence to the same caused the breakages, then IPL is not liable to Kemps. (IPL Reply, p. 5-6).

In a supplemental January 20, 2021 letter, IPL stated that Kemps produced SQF audits that, in IPL's view, confirm that Kemps has substantial documentation responsive to IPL's request for quality processes, practices, and standard operating procedures. IPL argues that it would lose the opportunity to question Kemps' quality assurance personnel without these documents.

The undersigned agrees with IPL that causation is an element of Kemps' UCC claims under §§ 2-313, 2-314, and 2-315.[5] The case Kemps cites—Peterson v. Bendix Home Systems, Inc., 318 N.W.2d 50, 52-53 (Minn. 1982)—itself states that a warranty claim under the UCC requires proof, among other things, of “a causal link between the breach and the alleged harm” and that a claim for breach of an implied warranty of merchantability requires proof “the alleged harm was caused by the product's defect.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W3d 112, 122 & 130 (Mo. banc 2010) holds that a buyer pursuing an express warranty claim under Missouri's UCC statute must prove that the nonconformity injured the buyer and that a buyer pursuing a claim for breach of the implied warranty of fitness for a particular purpose or for breach of the implied warranty of merchantability must prove the buyer was injured by the defective nature of the goods. Missouri's Approved Jury Instructions similarly recognize that a plaintiff must prove a direct causal relationship between an alleged warranty breach or defect to recover under the UCC. See MAI 25.03 (Implied Warranty of Fitness for a Particular Purpose Under UCC); 25.07 (Breach of Express Warranty Under UCC); 25.08 (Breach of Implied Warranty of Merchantability Under UCC).

IPL is entitled to seek reasonable and proportionate discovery into causation-related evidence. If a jury were to find that the container breakages were caused by rougher handling than the industry standard or handling that did not conform to Kemps' own policies, then IPL would not be liable to Kemps on the UCC claims under the authorities above.[6]

*6 The undersigned recommends that the Court order Kemps to produce additional documents in response to RFP Nos. 17, 33, 66, 78, 85 and 91, narrowed in time frame and scope. Specifically, with regard to RFP No. 17, Kemps should be directed to produce non-privileged documents setting forth Kemps' processes for storage, packaging, freezing, palletization, shipping, and distribution of the round containers. With regard to RFP No. 33, Kemps should be directed to produce non-privileged documents relating to the instructional materials, booklets, pamphlets, manuals, warnings, memoranda, specifications, product materials, brochures, and videotapes or audiotapes evidencing training Kemps' employees received relating to the storing, filling, palletizing, freezing or shipping of the round containers. With regard to RFP No. 66, Kemps should be directed to produce policies, procedures, instructions, handbooks, or other similar documents from January 1, 2014 through April 2017, that would govern how the Yo2 or SweetMe products should be handled, stacked, stored, and/or transported.[7]

With regard to RFP No. 78, Kemps should be directed to produce manuals, protocols, procedures and training manuals from January 1, 2014 through April 2017 relating to the handling and palletization of the Yo2 or SweetMe products. With regard to RFP No. 85, Kemps should be directed to produce responsive flow charts, process documents, procedures, policies, quality control or quality assurance documents from January 1, 2014 through April 2017 that would govern or apply to the case wrapping, hardening, palletization, frozen storage and distribution phases of Kemps' manufacturing processes for the Yo2 or SweetMe products. With regard to RFP No. 91, Kemps should be directed to produce design, manufacturing, or process failure modes and effects analyses in which Kemps considered or concluded that problems in its case wrapping, hardening, palletization, frozen storage or distribution phases of Kemps' manufacturing process from January 1, 2014 through April 2017 caused damage or breakage to containers for Kemps' frozen products that are manufactured using the same or similar processes as the Yo2 or SweetMe products.

IPL seeks to compel Kemps to provide additional documents relating to evaluation, testing, analyses, validation, and ultimate approval or sign-off of products, including the subject containers. IPL argues that Kemps, not IPL, determined whether the pint containers were suitable for its purposes using its “Specification Program” that requires suppliers to have certain specifications, which Kemps reviews and determines if acceptable. (IPL Br., p. 8-10).

Kemps argues that it already produced documents of its actual testing of the round containers, and that its intended methods of testing are not relevant to whether the containers failed to conform to IPL's express or limited warranties. Kemps states that in the spirit of compromise, it agreed to search for and produce manuals and protocols that would have related to the containers. Kemps also maintains that any material unrelated to the round containers falls outside the scope of discovery. (Kemps Reply, p. 9-10).

IPL disputes that Kemps produced information about its “testing,” stating that no one on the IPL litigation team has been able to find such documents as of the date of briefing. IPL notes that Kemps has a quality department, has a “policy” as to the number of drop tests required, performs “in-house testing,” performed significant testing on the containers at issue, and has reproduced several emails relating to this subject (shown on pages 8 and 9 of its reply brief). IPL argues that if Kemps confirmed suitability through its internal testing and validation, it is less likely Kemps relied on any representation made by IPL. (IPL Reply, p. 6-10).

*7 The undersigned agrees that information about Kemps' testing and specification program is relevant and discoverable. An element of a claim for breach of the implied warranty of fitness for a particular purpose under the UCC is whether the plaintiff reasonably relied on the defendant's judgment that the product was fit for the use for which it was purchased. Plasco, Inc. v. Free-Flow Packaging Corp., 547 F.2d 86, 90-91 (8th Cir. 1977); MAI 25.03. An element of an express warranty claim under the UCC is whether the defendant's representation amounting to a warranty was a material factor inducing plaintiff's decision to purchase the goods. Renaissance Leasing, LLC, 322 S.W.3d at 122; MAI 25.07. A plaintiff that did not reasonably rely on the defendant's judgment (and for example, instead relied on its own testing or superior knowledge of its own needs, as in Plasco, supra) cannot recover on a claim for breach of the implied warranty of fitness for a particular purpose. A plaintiff that did not consider the defendant's representation a material factor or inducement for its purchase does not meet all elements needed to prevail on a claim for breach of an express warranty.

Because the requested information is relevant to Kemps' claims, the undersigned recommends that the Court order Kemps to produce additional documents in response to RFP Nos. 50-52, and Third RFP Nos. 76-77, 79, 92, 94-95, and 99, narrowed by time frame and scope. With regard to RFP No. 50, Kemps should produce its policies, guidelines, instructions or handbooks used by Kemps' Purchasing Manager, Procurement Department, or similar department from January 1, 2014 through April 2017 relating to evaluation, testing, analyses, validation, and ultimate approval or sign-off of the subject containers. With regard to RFP No. 51, Kemps should produce its policies, guidelines, instructions or handbooks regarding purchase order placement with suppliers and/or vendors from January 1, 2014 through April 2017 relating to evaluation, testing, analyses, validation, and ultimate approval or sign-off of the subject containers. With regard to RFP No. 52, Kemps should produce any internal checklists that it completed to ensure corporate policy was followed related to the placement of purchase orders with IPL for the containers from January 1, 2014 through April 2017.

With regard to RFP No. 76, Kemps should produce any quality control or quality assurance manuals, protocols, or procedures Kemps used from January 1, 2014 through April 2017 to evaluate, validate, test or approve new packaging or modifications to existing packaging for Kemps' frozen products that would include the Yo2 or SweetMe products. With regard to RFP No. 77, Kemps should produce testing protocols or procedures Kemps utilized from January 1, 2014 through April 2017 to evaluate, validate, test, or approve new packaging or modifications to existing packaging for frozen products that would include the Yo2 or SweetMe products. With regard to RFP No. 79, Kemps should produce quality control or quality assurance protocols or procedures that describe the “plant trials” as referenced, limited to such protocols or procedures from January 1, 2014 through April 2017 that could apply to the Yo2 or SweetMe products. With regard to RFP Nos. 92, 94 and 95, Kemps should produce the requested documents listed in each subpart of each RFP insofar as they could apply to the Yo2 or SweetMe products from January 1, 2014 through April 2017. With regard to RFP No. 99, Kemps should produce documents evidencing the “additional trials” performed on the containers at issue, the results of such additional trials, and manuals or protocols that govern those additional trials that were in effect as of the time that Kemps performed them on the containers at issue.

IPL seeks to compel Kemps to produce documents related to breakages for other ice cream and frozen yogurt products that Kemps' employees referenced in documents already produced to IPL. In one email, a Kemps employee noted that Kemps had experienced the “same issue [of breakage as the IPL containers] with our Frozen Yogurt shop container with a Braskem resin....” (IPL Br. Ex. C, p. 16). In another email, there is a reference to the Kemps executive team demanding quick corrective action to deal with the problems of complaints with packaging. (Id., p. 18). IPL argues that different manufacturing processes cannot explain the breakages and that if Kemps was experiencing breakages over multiple product lines, it is likely that Kemps' internal processes are to blame. (IPL Br., p. 10-11). Kemps argues the only relevant facts in this case relate to the containers, not other products. Kemps further argues that producing the materials requested would be a burden wholly disproportionate to the needs of this case. (Kemps Resp., p. 10-11). IPL argues that the requested information relates to causation, an element of Kemps' warranty claims that Kemps fails to acknowledge.

*8 IPL states in its brief that it is seeking the information requested in RFP Nos. 86, 88 and 89 because of its relationship to causation, i.e., as potential evidence that Kemps' manufacturing or palletization processes were flawed and caused breakages across a variety of packaging. The undersigned therefore recommends that Kemps be compelled to produce some documents in response to these RFPs, but that the Court limit production to documents that tie to the relevancy theory IPL has articulated.[8] Therefore, the undersigned recommends that in response to RFP No. 86, Kemps should produce documents in response to subparts a, b, c, d, e, and g; not “all documents,” but non-privileged documents sufficient to show the requested information, if any exist. With regard to RFP No. 88, the undersigned recommends that Kemps be compelled to produce documents in response to subparts a, b, c, d, e, and g, which mirror those in RFP No. 86, again limited to non-privileged documents sufficient to show the requested information, if any exist. With regard to RFP No. 89, IPL seeks information about “all complaints or reports of chipping, fracturing or damage to Kemps' frozen yogurt and ice cream containers.” The undersigned agrees that, as written, this request is not proportional to the needs of the case. Therefore, the undersigned recommends that the Court limit Kemps' production to documents reflecting complaints or reports of chipping, fracturing or damage to Kemps' frozen yogurt and ice cream containers from January 1, 2014 through April 2017 that Kemps or a third party, such as an independent consultant or reviewer, concluded were caused by or may have been caused by problems in Kemps' manufacturing process.

RFP No. 82 seeks documents relating to a revised packaging system that Kemps implemented sometime after April 2017. Kemps now packs units into a tray and shrink wraps them before freezing them. IPL argues the requested documents may show whether the revised packaging system reduced the occurrence of breakage and, if so, show that Kemps' old system contributed to the breakages as issue. (IPL Br., p. 11-12). Kemps argues the information requested is irrelevant. Kemps states that it changed its packaging system to account for IPL's overly brittle containers.

The undersigned recommends that the Court deny IPL's request for this information. This request seeks evidence of subsequent remedial measures that Kemps took after it experienced breakages with the SweetMe and Yo2 products. Actions taken after the containers were sold to Kemps are not directly relevant to any of Kemps' UCC claims, and IPL has not articulated why the evidence would be admissible notwithstanding Fed. R. Evid. 407.

RFP No. 100 seeks documents that discuss, enact, or explain the rationale behind Kemps' specification program discussed in subpart 2 above. RFP No. 101 seeks documentation that identifies “food safety and regulatory requirements” associated with the containers. (IPL Br., p. 12). Kemps responded to both requests that it would not conduct a search and stated that it is not withholding documents known to be responsive to the request. (IPL Br. Ex. C, p. 29-31). Kemps argues that the document's focus is on raw food ingredients, which do not bear on the existence or breach of IPL's container warranties (express and implied). Kemps further states that a quick read of the documentation referred to in RFP No. 101 lists the “specifications and essential food safety regulatory requirements” that the request seems to seek (Kemps Resp., p. 12-13). IPL disagrees that the specification program merely details “food safety requirements” as the program addresses not only raw materials but also the “critical aspects of ... product manufacture and distribution[.]” The document further pertains to “all suppliers.” IPL states that Kemps sent the specification program to IPL as part of its “new vendor packet.” IPL further argues that Kemps' “Supplier & Co Co-Manufacturer” program (also in new vendor packet) states:

PLF_01_001378, 1394 (emphasis added). IPL argues that these documents indicate that Kemps has a quality audit process and requirements that apply to suppliers of packaging and finished goods. (IPL Reply, p. 12-13).

With both of these requests, the parties appear to be talking past each other to some degree. IPL reads the quoted Kemps documents (not unreasonably) to suggest that Kemps has a specification program that applies to all Kemps' vendors, including to IPL for the containers it supplied to Kemps. Kemps, on the other hand, contends that the specification program is focused on raw ingredients for food safety. Yet Kemps refused to search for documents or state that none exist. Because Kemps provided IPL with information about the specification program as part of establishing a vendor-vendee relationship with IPL and because IPL's reading of the quoted document is not unreasonable, the undersigned recommends that the Court require Kemps to produce documents in response to RFP Nos. 100 and 101, limited in time frame and to information that may bear on the issues in this case. Specifically, with regard to RFP No. 100, the undersigned recommends that Kemps should produce policies, procedures, processes or protocols that discuss, describe, implement, enact, explain or provide the rationale for Kemps' specification program insofar as that program relates to product containers or packaging that could include the containers at issue, during the time period from January 1, 2014 through April 2017. With regard to RFP No. 101, Kemps should produce the food safety and regulatory requirements identified by Kemps that relate to the containers at issue. If Kemps concludes it has no responsive documents after conducting a reasonable search, it should so state, clearly and unambiguously.

After Kemps discontinued using the IPL containers, it used substitute containers that had opaque instead of clear resin. In RFP Nos. 87, 102 and 103, IPL requests that Kemps produce documents relating to Kemps' analyses, evaluation, and testing of the opaque containers, including pre-launch documents. RFP Nos. 102 and 103 request drop testing, evaluations, and analyses of the opaque containers. (IPL Br., p. 12-13) Kemps argues that these requests seek irrelevant information because whether Kemps considered other options before purchasing the clear containers from IPL has nothing to do with whether IPL's containers were suitable or merchantable or conformed to their express warranties. (Kemps Resp., p. 13). IPL's reply brief does not respond to this argument.

The undersigned agrees with Kemps that these requests do not obviously seek relevant information and concludes that they are not proportional to the needs of the case. Therefore, the undersigned recommends that the Court deny IPL's request to compel Kemps to respond to RFP Nos. 87, 102 and 103.

*10 IPL seeks to compel Kemps to produce documents in response to RFP Nos. 6, 15 and 81. RFP No. 6 seeks “any communications by and between you and any individual or entity relating to this lawsuit or to the issues in this lawsuit” except attorney-client privileged documents. (IPL Br. Ex. A, p. 5). RFP No. 15 seeks “all documents you purport (sic) support your allegations in the Amended Complaint that you recalled products incorporating the Round Containers.” (IPL Br. Ex. A, p. 10). RFP No. 81 seeks “all documents sent to or received from FDA relating to Kemps' recall of the ice cream and frozen yogurt products.”

The undersigned concludes that RFP No. 6 is not proportional to the needs of the case.[9] RFP No. 6 is incredibly broad and not tied to a particular topic or time frame. IPL has served some 115 requests for production on Kemps. IPL's 100+ other requests for production cover the waterfront of proportional documents requests; RFP No. 6 is at best cumulative or duplicative.

RFP No. 15 is difficult to understand given the phrasing. Kemps states that it “has produced many documents proving that it indeed recalled the Containers.” (Kemps Resp., p. 14). IPL argues that Kemps should identify those documents. The undersigned agrees that Kemps should be required to identify the documents responsive to this request that it has already produced. It is within the Court's discretion to require Kemps to go beyond Rule 34(b)(2)(E)'s default rules for producing information in the ordinary course of business or as permitted by Section (E)(ii). Rule 34(b)(2)(E) states that its procedures apply “[u]nless otherwise stipulated or ordered by the court....” A departure from the default rules is warranted here because Kemps should be able to identify this subset of documents it produced that show it recalled the containers. The undersigned does not recommend that the Court go farther and order Kemps to produce every document that might tend to show it recalled the products. The fact that Kemps recalled the products is undisputed. Both parties agree that the recall occurred. There will not be a fact issue or credibility contest on this subject. Thus, broad discovery into the simple fact of the product recall is not proportional to the needs of the case.

With regard to RFP No. 81, Kemps agreed to produce all responsive documents relating to the SweetMe and Yo2 products packaged in the disputed containers and states that such documents will be in its ESI production. (Kemps Resp., p. 14-15). IPL argues that Kemps must also produce any responsive documents outside ESI. (IPL Reply, p. 14).

The undersigned recommends that Kemps be required to produce all documents responsive to RFP No. 81 relating to the SweetMe and Yo2 products packaged in the disputed containers. If unique documents responsive to this request exist outside of Kemps' ESI production, Kemps must produce those documents. If the ESI production includes the entire set of documents, Kemps need not produce duplicative information that also exists outside of ESI.

Third RFP No. 80 requests audits of Kemps' Rochester facility, including any audits performed to evaluate SQF (Safe Quality Food Institute) certifications or other audits performed to evaluate manufacturing, packaging, hardening, blast freezing, handling, palletization, storage, distribution or transportation of Kemps' ice cream or frozen yogurt products. (IPL Br. Ex. C, p. 8). Kemps first objected to this request then told IPL that it would search for and produce any SQF audit material related to the packaging and handling of the products at issue, if any exist. (Kemps Resp., p. 15). IPL argues that Kemps' narrowing of this request is improper. IPL argues that any aspect of Kemps' manufacturing process is potentially relevant and discoverable. (IPL Reply, p. 14-15). IPL advised the Special Master by correspondence dated January 20, 2021, that Kemps produced the SQF audits responsive to this request. However, Kemps has not produced the internal audits requested in RFP No. 80.

*11 The undersigned recommends that the Court order Kemps to provide additional information in response to RFP No. 80, limited in time and scope. Specifically, Kemps should produce information about any other audits of the facility from January 1, 2014 through April 2017 in which an evaluation of packaging, handling, or palletization of Kemps' ice cream or frozen yogurt products that are manufactured in the same or similar manner as the SweetMe or Yo2 products identified a failure in Kemps' packaging, handling, or palletization process, if any such documents exist.

RFP No. 96 requests the entire “QSM” (Quality Systems Manual) referenced on a certain page of Kemps' production. RFP No. 97 requests all versions of this same QSM. (IPL Br. Ex. C, p. 25-26). Kemps produced QSM Section 13-10 but objected to producing other sections or versions of the QSM, stating they are not limited to the SweetMe and Yo2 products at issue. (IPL Br. Ex. C, p. 25-26). IPL's brief argues that the QSM may contain the entire quality assurance protocols and documentation that IPL has been seeking relative to palletization, product validation, and other discussed subjects. (IPL Br., p. 15). Kemps stated in its response brief that it will review the entire QSM and produce any other components that are relevant to the claims and defenses in this case. (Kemps Resp., p. 15-16). In reply, IPL suggests that Kemps should prepare and produce an index or that the Special Master should review the manual in camera to further evaluate these issues. (IPL Reply, p. 15-16).

The undersigned recommends that the Court deny IPL's request that Kemps prepare an index of the QSM or involve the Special Master in an in camera review at this point. The undersigned does recommend that the Court order Kemps to provide any portions of the QSM that contain quality assurance protocols and or other documentation relative to palletization, product validation, or other subjects into which the undersigned has recommended that the Court permit discovery. Kemps stated that it will voluntarily produce this information, but the production was not complete at the time of briefing.

RFP Nos. 104-111 seek discovery into Kemps' damages. In response to each request, Kemps objected on various grounds, including overbreadth, and stated that it would not conduct a search in response. (IPL Br. Ex. C, p. 32-38). Kemps points to its supplemental response to Interrogatory No. 16, which states the amount of damages Kemps is claiming and identifies Bates numbers of documents “supporting the above damages.” (Kemps Resp. Ex. Q, p. 2-3). Kemps states that it is still working to confirm whether there are any additional documents related to its lost profits. (Kemps Resp., p. 16). IPL argues that Kemps has not produced any documentation to support its claim for attorney fees and that the additional categories of documents requested in RFP Nos. 104-111 were requested after evaluating Kemps' response to Interrogatory No. 16, which does not cover all information IPL reasonably needs. (IPL Reply, p. 16).

IPL has a right to seek discovery into Kemps' damages, including its claim for attorney fees. However, some portions of RFP Nos. 104-111 are premature or too broad.

With regard to RFP No. 104, there is no question that IPL may obtain discovery into Kemps' claims for attorney fees. It is well established that the attorney-client privilege does not attach to fee arrangements between client and counsel and logistics of payment. United States v. DNRB, Inc., 257 F. Supp.3d 1033, 1038 (W.D. Mo. 2017). Discovery is permitted to allow an opposing party to conduct a reasonableness analysis of the petitioning party's claim for attorneys' fees. Arctic Cat Inc. v. Polaris Industries Inc., Case No. 16-cv-0009/0010 (WMW/HB), 2017 WL 6187325 at *2 (D. Minn. May 15, 2017). However, the party seeking attorneys' fees may shield privileged information from discovery. Billing records that reveal a client's motive in seeking representation, litigation strategy, or the specific nature of the services performed are privileged, whereas entries that do not reveal communications between counsel and clients generally are not. Id.

*12 The undersigned finds the analysis in Starr Indem. & Liability Co. v. Continental Cement Co., L.L.C., Case No. 4:11CV809 JAR, 2012 WL 6012904 at *5 (E.D. Mo. Dec. 3, 2012), instructive. Starr discussed the permissible scope of discovery into attorney billing information yet denied a motion to compel attorney fee information as premature until the underlying claim on which the fees were being sought survived a dispositive motion. The undersigned recommends that the Court follow a similar procedure in this case. Kemps' attorney fee claim is not ripe. Kemps is still accruing attorney fees to prosecute its claims, and its counsel has much more work to perform before discovery closes, dispositive motions are briefed and ruled on, and potentially to present the claims at trial. The undersigned also has concerns that revealing to IPL at this time specific information about which attorneys have been working on Kemps' claims, how long they have been working, and on what days they have been working, may unnecessarily disclose trial strategy or other work product to an adversary. Therefore, the undersigned recommends that the Court deny IPL's request to compel Kemps to respond to RFP No. 104 at this time. IPL may renew the issue at a later date. Ultimately, Kemps should provide billing and expense information consistent with the authorities above, redacting billing entries and other details as necessary to protect privileged information.

RFP No. 105 includes 14 subcategories seeking information pertaining to Kemps' alleged lost profit damages of approximately $615,857.61. The undersigned recommends that the Court compel Kemps to produce the business records or other non-privileged documents (1) on which Kemps relied to calculate its expected sales margin on the finished product incorporating the containers, (2) that are sufficient to show its actual sales margin on finished product incorporating the containers, (3) that are sufficient to show its profits and net revenue on the finished product incorporating the containers, (4) that are sufficient to show the quantity, disposition, and monetary value of the unsellable finished product in Kemps' inventory, (5) that are sufficient to show Kemps' historical sales of the SweetMe or Yo2 products from January 1, 2014 through April 2017, (6) profit and loss statements for the products at issue, and (7) that demonstrate how Kemps calculated its alleged lost profit damages of $615,857.61.

RFP No. 106 includes three subcategories seeking information pertaining to Kemps' claimed damages of $916,142.36 for unsellable finished product in Kemps' inventory. The undersigned recommends that the Court compel Kemps to produce business records or other non-privileged documents (1) that are sufficient to show the identity, lot numbers and quantity information of the product, (2) that are sufficient to show the disposition of the product, and (3) that demonstrate how Kemps calculated its alleged damages of $916,142.36.

The undersigned recommends the Court compel Kemps to respond to RFP No. 107. RFP No. 107 seeks identifying information and chain of custody logs for the unusable containers and unsellable finished product referenced in Kemps' damage calculations. Kemps should produce this information. If it lacks such documents, it should produce documents sufficient to show the timing, nature and method of disposition of the containers and finished product.

RFP No. 108 seeks information about Kemps' damages of $710,395.15 for refunds and charges paid to Kemps' buyers for recalled products. In response to this request, the undersigned recommends that Kemps be compelled to produce the underlying documents on which Kemps relied to calculate these damages and its business records that reflect such refunds and charges to customers. The undersigned recommends that the Court deny IPL's motion to compel a response to RFP No. 108 to the extent it seeks “all communications” between Kemps and its customers relating to refunds and charges. That part of the request is not proportional to the needs of the case in light of IPL's other, more targeted requests.

RFP No. 109 seeks information about Kemps' damages of $38,056.92 for charges incurred for disposal of unsellable products. The undersigned recommends that Kemps be compelled to produce invoices for costs associated with the disposal and documents sufficient to show the dates of the disposal.

*13 RFP No. 110 seeks information about Kemps' damages of $73,618.18 for costs to develop replacement packaging for the containers. The undersigned recommends that Kemps be compelled to produce documents sufficient to show the scope of work and actual work performed to develop the replacement packaging and payments made for the same.

RFP No. 111 seeks an exemplar of the replacement packaging referenced above. The undersigned does not believe this request is proportionate to the needs of the case and therefore recommends that the Court deny IPL's request to compel Kemps to produce it.

In its September 30, 2020 Order, the Court stated it “will allocate the Special Master's fee between the parties after considering the nature of the controversy, the parties' means, and the extent to which any party is more responsible than the other for the necessity to refer this matter to the master.” (Doc. 108, citing FED. R. CIV. P. 53(g)(3)). The Court directed the Special Master “to include in her report a summary on any findings to this effect.”

With respect to the discovery issues addressed in this Report and Recommendation, the undersigned finds that the parties have relatively equal means and neither party is significantly more responsible than the other for the necessity of referring these disputes to the Special Master. Both parties contributed to the need for referring the disputes to the Special Master. The Special Master made recommendations that the Court decide some issues consistent IPL's positions, some issues consistent with Kemps' positions, and some issues in a manner that is not clearly consistent with either party's position.

For the foregoing reasons, the undersigned recommends that the Court order Kemps to: