*1 This Report and Recommendation addresses disputes Plaintiff Kemps LLC (“Kemps”) has with Defendant IPL USA, Inc. (“IPL”) on written discovery.[1] For reasons set forth below, the undersigned recommends that the Court order IPL to:

The undersigned recommends that the Court order IPL to provide the additional information not later than 10 days after this Report and Recommendation becomes final.

The undersigned recommends that the Court deny all other requests by Kemps to compel IPL to provide additional information in response to written discovery.

The parties have fourteen days from the date of filing of this Report and Recommendation in which to file objections.

Kemps, a maker of frozen dairy-food products, sued IPL, a manufacturer of injection-molded plastic products. Kemps seeks recovery for (1) breach of express warranty (UCC Art. 2-313); (2) breach of implied warranty of merchantability (UCC Art. 2-314); (3) breach of implied warranty of fitness for a particular purpose (UCC Art. 2-315); (4) breach of indemnity agreement; and (5) breach of written terms and conditions for sale. (Doc. 55). Kemps' claims arise out of its allegations that IPL provided clear plastic containers containing a latent durability defect. IPL denies the claims and counterclaims for breach of contract for nonpayment of some of the containers. (Doc. 60).

Following unsuccessful efforts to resolve their differences, the parties submitted motion-to-compel briefing on written discovery disputes. As relevant here, Kemps complains that IPL improperly objected to certain interrogatories as beyond Rule 33(a)(1)'s numerical limit. (Kemps Initial Submission, p. 4).[2] Kemps asks the Court to overrule IPL's objections and compel complete responses to: (1) certain requests related to the containers' design and development (i.e., Interrogatory Nos. 6, 7, 10, 14, 17, and 18, and Requests for Production Nos. 17, 23, and 42); (2) certain requests related to the containers' manufacture (i.e., Interrogatory Nos. 4 and 5 and Requests for Production Nos. 10, 16, 21, and 22); and (3) certain requests related to express warranty, damages, witnesses, defenses, and spoliation (i.e., Requests for Production Nos. 26, 41, and 43, and Interrogatory Nos. 19, 22 and 15). In addition, Kemps contends that IPL inadequately verified its answers to Kemps' Fifth Set of Interrogatories and to other interrogatories.

*2 A party “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.” Fed. R. Civ. P. 26(b)(1); Haukereid v. National R.R. Passenger Corp., 816 F.3d 527, 534 (8th Cir. 2016).[3] On a motion to compel, the party seeking discovery must make a threshold showing of relevance. Fair v. Communications Unlimited, Inc., Case No. 4:17 CV 2391 RWS, 2018 WL 2238177 at *2 (E.D. Mo. May 16, 2018); Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). After this threshold showing, “the party opposing a motion to compel has the burden of showing its objections are valid by providing specific explanations or factual support as to how each discovery request is improper.” Jo Ann Howard & Associates, P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014). See also Superior Communications v. Earhugger, 257 F.R.D. 215, 217 (C.D. Cal. 2009) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”).

A. Kemps' motion to compel

Kemps has moved to compel responses to Interrogatory Nos. 18, 19, and 22. As a preliminary issue, Kemps argues that IPL improperly objected to these interrogatories as beyond Rule 33(a)(1)'s limit.

The burden falls on IPL to support its objections. Jo Ann Howard & Associates, P.C., 303 F.R.D. at 542. Both parties cite case law and other authority for how Rule 33(a)(1)'s limit applies to subparts. (E.g., Kemps Br., p. 4, citing Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 664-65 (D. Kan. 2004); Trevino v. ACB Am., Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006); 8B Fed. Prac. & Proc. Civ. § 2168.1 (3d. ed.); IPL Resp., p. 2, citing 8A Fed. Prac. & Proc. Civ. § 2168.1 (2d. ed.); Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191, 196 (E.D. Tex. 2016); Kemps' Reply, p. 1-2).

Neither party applies these standards to show how the sum of subparts in Kemps' interrogatories falls above or below the limit. A review of Kemps' interrogatories suggests it employed a good-faith effort to stay within the limit. The undersigned also notes that IPL has already provided substantive answers to the interrogatories “subject to” its numerical limit and other objections. IPL states it “is not withholding information” based on any of the objections to Interrogatory No. 18. (IPL Resp., p. 11-12). It does not state whether it is withholding information based on this objection to Interrogatory Nos. 19 or 22. Because IPL's briefing does not sufficiently explain why Kemps' interrogatories contain more than 25 discrete subparts, the undersigned recommends that the Court overrule this objection and direct IPL to supplement its responses consistent with rulings on other objections that are addressed below.

Interrogatory No. 6 requests information about changes to the containers' design for certain time frames beginning with “Product inception through August 5, 2016” and continuing “to [the] present.” (Kemps Br., p. 5-6). IPL objected that “product inception” was ambiguous and limited its answer to changes made from the date of first sale and ending with April 2017. Kemps argues the answer should include information from when the product was conceived and developed (before the first sale) and after April 2017 continuing to present, including when sold to other customers. (Id. at 6).[4]

*3 The undersigned agrees that the term “product inception” is not vague in the context of Interrogatory No. 6, which references research and development of the product.[5] Therefore, IPL should be directed to supplement its response with information about design changes, if any, from initial research and development of the product to the first sale.

The undersigned disagrees that IPL should be directed to provide information about design changes after April 2017. Kemps' briefing does not make a specific argument that post-sale changes are relevant to its claims. Kemps' claims focus on the adequacy of the product that IPL delivered to Kemps before April 2017 and how that product may have matched warranties or representations that IPL made to Kemps before April 2017. Because Kemps did not make a threshold relevancy showing for post April 2017 information, and because changes IPL may have made after the disputed sales, including changes made for other customers, are not obviously relevant, the undersigned recommends that the Court deny Kemps' request for the post April 2017 time period. See also Fed. R. Evid. 407 (subsequent remedial measures not admissible to prove culpable conduct or defect in a product or its design).

Kemps argues that IPL did not adequately respond to Interrogatory No. 7, which asks IPL to identify distinctions between “SealPack” and “FreezePack Round” containers. IPL withdrew its objections. (IPL Resp., p. 5). IPL's answer states that the two terms “both refer to the Round Containers,” which is defined elsewhere. IPL's brief states there is no difference between the two other than naming/marketing conventions. Kemps questions the veracity of the statement, citing information on IPL's website. IPL's answer could have been stated more simply. But that is not grounds to compel IPL to supplement the unqualified answer given.

Kemps complains that IPL answered Interrogatory No. 10 by producing business records under circumstances not permitted by Rule 33(d). (Kemps Br., p. 7-8). Interrogatory No. 10 asks IPL to “Describe in detail each ‘improvement to the design’ of the container molded by IPL USA for Safeway and described in ILP USA's Sean Farrington's March 16, 2017, email communications to Karen Juntunen at Kemps (previously been produced to you as PLF_00_000017).”

IPL responds that it investigated and ascertained that Mr. Farrington was “referring to modifications [of the containers] from the prototype stage to final production.” (Kemps Br. Ex. H, p. 10). IPL then produced all documents identifying the activities involved from going from the prototype stage to final production. (IPL Resp., p. 5-6). IPL states that Mr. Farrington “is a Senior Business Development Manager; he is not an engineer” who cannot speak to every activity in the design and development of the product, but to the extent Kemps was seeking all of the design and development information, it produced complete records. IPL's response refers Kemps to Bates ranges identified as the “files associated with the development of the pint with Safeway,” the “Sabra project files,” the “Sabra production files,” and “Sabra chronological 2D drawings from prototype to production.” The “Sabra project files” comprise more than 35,000 pages. The other sets of documents number between 33 and 781 pages. (Kemps Br. Ex. H, p. 10).

*4 Kemps argues that it is not feasible for it to glean the requested information from the numerous records produced and that IPL has more familiarity with these specialized business records.

Under Rule 33(d), if “the answer to an interrogatory may be determined by examining, auditing, compiling, ... or summarizing a party's business records” and “if the burden of deriving or ascertaining the answer will be substantially the same for either party,” the responding party may answer by “specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.”

Brighton Crossing Condominium Assoc. v. American Family Mutual Ins. Co., Case No. 15-00887-CV-W-FJG, 2016 WL 4618897 at * 1-2 (W.D. Mo. Sept. 6, 2016) (quoting Handi-Craft Co. v. Action Trading, S.A., No. 4:02 CV 1731-LMB, 2004 WL 6043510, at *5-6 (E.D. Mo. May 21, 2004)).

A party challenging another's invocation of Rule 33(d) in a motion to compel “must make a prima facie showing that the use of Rule 33(d) is somehow inadequate, whether because the information is not fully contained in the documents or because it is too difficult to extract.” Sadofsky v. Fiesta Prods., LLC, 252 F.R.D. 143, 148 (E.D. N.Y. 2008), quoting Moore's Federal Practice § 33.105.

Here, Kemps has made a prima facie showing that IPL's use of Rule 33(d) was not appropriate. Given IPL's statement that Mr. Farrington was referring to modifications between the “prototype stage” and “final production” versions of the containers, IPL's response does not comply with Rule 33(d) because the Bates references are insufficiently specific.[6] To answer Interrogatory No. 10, IPL must either provide a narrative response identifying modifications or differences between the prototype and production versions consistent with Rule 33(b)(3), or direct Kemps to specific records from which those modifications can be readily determined, i.e., by supplying Bates references that show specific drawings, descriptions, or specifications for the protype and then Bates references that show specific drawings, descriptions, or specifications for the production version from which the differences between the two versions can be ascertained, consistent with Rule 33(d). This result also serves Rule 1's overarching directives to courts to construe and administer the Rules of Civil Procedure to “secure the just, speedy, and inexpensive determination of every action and proceeding.”

*5 Kemps contends that IPL's response to Interrogatory No. 14 is inadequate. Interrogatory No. 14 requests IPL to “Describe in detail all testing performed by You or at Your request on Your SealPack round, clear, one-pint containers and lids from that product line's inception through August 2016 for the purpose of quality assurance, trouble-shooting, or product research and development” with further direction on the type of durability testing the answer should include. (Kemps Br., p. 9).

As part of its response, IPL directed Kemps to 781 pages of records and to its 3 1/2-page second supplemental answer to Interrogatory No. 2, which includes chronological narrative information about testing of the product and references to specific Bates numbers within the larger set for additional information. (IPL Resp., p. 7-11).

Kemps contends that IPL's incorporation of its response to Interrogatory No. 2 does not fully answer Interrogatory No. 14, IPL should have provided even more details, and that some of the referenced documents contain references to terms of art with which Kemps is not familiar, such as “PIM Line.”

IPL argues that its reference to the 781 pages of documents was more than sufficient as a complete answer under Rule 33(d) and that the narrative answer was not required.

The undersigned disagrees that IPL could have answered Interrogatory No. 14 with a single reference to 781 pages of records. On the other hand, the information IPL has supplied via the incorporated supplemental response to Interrogatory No. 2 appears to be a good-faith response to Interrogatory No. 14. To the extent IPL's response is incomplete and omits information about durability-related testing it performed on the containers, IPL should be directed to supplement its answer with information commensurate with the level of detail provided in its supplemental response to Interrogatory No. 2. To the extent Kemps seeks more granular details than the type of information IPL already included in its supplemental response, Kemps can explore those details in a deposition.

Interrogatory No. 17 asked IPL to “describe in detail the purpose and function of the ‘impact modifier’ described in IPL_000240.” (Kemps Br., p. 10). IPL responded that its purpose and function is “to improve impact performance of a material.” (IPL Resp., p. 11).

Kemps argues that IPL did not give a sufficiently complete answer. A complete answer, in its view, would include a variety of other details identified on page 10 of its brief. (Kemps Br., p. 10). IPL states its answer is complete for the question as stated. (IPL Resp., p. 11).

While the undersigned agrees that IPL's response is succinct and on the edge for compliance, she also agrees that Kemps did not include in Interrogatory No. 17 a request for the specific details it argues that IPL's response should have contained. In fact, Interrogatory No. 17 is unlike other interrogatories in which Kemps explicitly described and requested certain details that Kemps wished the answer to cover.

Because Kemps is now asking the Court to compel IPL to provide details that Interrogatory No. 17 did not request, the undersigned recommends that the Court deny Kemps' request that IPL supplement its response to Interrogatory No. 17.

Interrogatory No. 18 is a lengthy interrogatory that asks IPL about the analysis it conducted for manufacturing and distribution markets of the round plastic containers, including market research. (Kemps Br., p, 10).

*6 IPL withdrew its objections and provided a substantive answer to the effect that containers were developed for one specific customer, Safeway, and that no formal market research occurred. (IPL Resp., p. 11-12). IPL's response also refers Kemps to 781 pages of documents IPL describes as “files associated with the development of the pint with Safeway....” (Kemps Br. Ex. I, p. 3).

Kemps complains that the answer does not provide all information requested in that it identifies the market, but does not describe each study, research, or analysis that IPL performed, collected, or considered regarding the Safeway market. Kemps also complains that IPL's Rule 33(d) business records reference is not permissible because it is unable to find the information responsive to this interrogatory in the 781 pages of documents.

The undersigned agrees that IPL's reference to 781 pages of documents does not comply with Rule 33(d). If the referenced Bates range contains specific studies, research, or analysis of Safeway's market, IPL must refer Kemps to the Bates numbers for that information, not all 781 pages. Alternatively, IPL may provide a narrative explanation that covers the requested details. As it stands, the narrative answer with an undifferentiated reference to 781 pages of materials does not suffice.

Kemps complains that IPL qualified its response to Request for Production No. 17 by responding subject to its understanding but not disclosing its understanding. (Kemps Br., p. 12). IPL withdrew this objection, stated it understood the request to cover the time period it provided clear round containers to Kemps that ended in 2017, and confirmed that it did not have any responsive documents, other than emails, which are subject to the parties' ESI protocol. (IPL Resp., p. 12). In reply, Kemps argues that IPL should also produce documents for the time period ending August 17, 2019. (Kemps Reply, p. 9).

The only disputed issue at this point for Request for Production No. 17 is Kemps' contention that IPL's response should cover the time period from 2017 through August 17, 2019. As noted above in subpart 2.a., Kemps has not provided an argument why changes IPL made to the containers after the sale to Kemps are relevant to its claims. The undersigned therefore recommends that the Court decline Kemps' request to compel IPL to produce documents identifying reasons for changes that were made during this period.

Request for Production No. 23 seeks certain documents relating to problems or concerns IPL identified with the resin it used to mold the containers. IPL objected that the request was vague and ambiguous. Kemps disputes the objection and complains that IPL qualified its response to Request for Production No. 23 by again responding subject to its understanding but not disclosing its understanding. (Kemps Br., p. 12). IPL responded that it understood the request to potentially cover that the resin might be unsuitable for use in the containers in any way, but states that it did not withhold any documents based on its objections. (IPL Resp., p. 12).

The undersigned recommends that the Court overrule IPL's vagueness objection. The request is not impermissibly vague. If IPL has documents responsive to the request, it must produce them or confirm that it has none.

*7 Request for Production No. 42 asks IPL to produce “[n]on-privileged documents sufficient to identify each occasion when IPL USA considered, discussed, examined, or expressed a like position that would have the result of removing its IML product from the market.” (Kemps Br., p. 13). IPL objects that the question is overly broad and unduly burdensome, arguing that it would require IPL to question every employee about what they considered and search every employee's email. IPL further states that it did not withhold documents subject to its objection. (IPL Resp., p. 12). Kemps continues to argue that IPL needs only to provide sufficient information to identify the requested occasions. (Kemps Reply, p. 10).

The undersigned recommends that the Court overrule IPL's overbreadth/burdensomeness objection because it is based on an incorrect analysis of the type of search required to respond to the request. Discovery requires a reasonable search. This generally requires a responding party to inquire of persons and search in places where documents or information responsive to the request are reasonably likely to be found.

Kemps' Request for Production No. 42 asks for documents reflecting occasions in which “IPL USA” considered, discussed or expressed a certain position. Therefore, not every employee of IPL needs to be questioned if only a limited set of employees or officers would have had meaningful input on the topic or would have been involved in the type of meeting where IPL as a company could have consider this possibility. Because IPL's search for responsive documents should be tailored to employees or officers of IPL who would have meaningful input or decision-making authority for the company on this subject, IPL did not sufficiently support the overbreadth/burdensome objection it asserted.

Interrogatory No. 4 asks IPL to describe “in detail” the process by which IPL manufactured the containers, with direction as to details the answer should cover. Kemps complains that IPL improperly objected to part of the interrogatory as vague and ambiguous and qualified its response by responding subject to its understanding but not disclosing its understanding. Kemps further argues that IPL's supplemental response does not “separately and fully” answer the interrogatory. (Kemps Br., p. 13-14). IPL responds that it provided specific and detailed supplemental responses that contained substantial detail about its manufacturing process. (IPL Resp., p. 12-15). Kemps' reply states IPL's description is expressly “general” and the “want of detail is consistent throughout [IPL's] response.” (Kemps Reply, p. 10-11). The only details Kemps specifically identifies as being lacking relate to “how the Containers are handled when packaged into boxes, what size of boxes they use, or how many containers it stacks into a box.” (Kemps Reply, p. 11).

The undersigned recommends that the Court decline Kemps' request to compel IPL to provide more information in response to Interrogatory No. 4. IPL has provided a relatively detailed supplemental response. That response appears to be good faith effort to answer Interrogatory No. 4 as stated. The details Kemps contends are missing regarding handling of the containers during packaging, box size, or number of containers stacked into a box were not specifically requested. Nor do these details clearly fall into the overarching topic of Interrogatory No. 4, which asks how IPL “manufactured” the containers.

Interrogatory No. 5 is the same as Interrogatory No. 4 but applies to the sample containers. (Kemps Br., p. 14-15). IPL agreed to withdraw its objection to Interrogatory No. 5, with the exception of relevance, which it stated it wished to maintain for trial. (IPL Br., p. 16). IPL stated the sample containers were manufactured using the same process as the subject containers and referred Kemps to IPL's response to Interrogatory No. 4. (IPL Resp., p. 15-16). Kemps' only argument is that IPL's response to Interrogatory No. 5 is deficient for the same reasons that IPL's response to Interrogatory No. 4 is deficient. (Kemps Reply, p. 11).

*8 Because the undersigned did not find IPL's response to Interrogatory No. 4 deficient, the undersigned recommends that the Court decline Kemps' request to compel IPL to supplement its response to Interrogatory No. 5.

Request for Production No. 10 requests documents created by IPL comparing the materials used to manufacture the sample containers with the containers at issue. Request for Production No. 16 seeks documents identifying the date any material identified in Requests 12-15 changed for the containers. (Kemps Br., p. 15-17). IPL initially asserted objections to both, but then produced certain technical data sheets, withdrew all objections except to the extent the request asked for information post April 2017, and clarified that it did not have any responsive documents because the materials for the type sets of containers were the same. (IPL Resp., p. 16-17).

At this point, Kemps appears to be arguing that IPL must be compelled to produce documents that IPL categorically states that it does not possess or documents dating from the post April 2017 time frame for which Kemps has not offered any relevancy argument. The undersigned therefore recommends that the Court deny Kemps' request to require IPL to further respond.

Request for Production No. 21 seeks documents sufficient to identify each supplier of the resin used by IPL to mold the containers and the containers molded by IPL for Safeway. Request for Production No. 22 seeks documents identifying technical specifications of each resin used by IPL to mold the containers and the containers molded for Safeway. (Kemps Br., p. 17-18). In response, IPL produced a document showing the supplier was Equistar Chemicals, LP and technical data sheets for the resin and certificates of analysis for multiple resin shipments. (IPL Resp., p. 18). IPL states categorically that there was no difference in the materials used to manufacture the two containers. (IPL Resp., 18-19). IPL further states it did not withhold documents based on its objections and has provided a complete response. (IPL Resp., p. 18).

Kemps argues in reply that IPL's production is deficient for both requests because it did not produce materials sufficient to identify the resin used in the Safeway containers during the research and development stage of the Safeway containers. (Kemps Reply, p. 14).

The undersigned recommends that the Court deny Kemps' request to require IPL to further respond. Neither request explicitly asks for the supplier of resin used during the design and development stage for the Safeway containers. Moreover, there is no indication that IPL used a different supplier during that stage and no clear argument from Kemps why discovery into the resin supplier for the research and development stage of the Safeway containers is relevant and proportional to the needs of this case.

Request for Production No. 26 asks IPL to produce documents “sufficient to identify all model or sample Containers IPL provided or sold Kemps between August 1, 2015, and August 1, 2017.” IPL objected that the request was vague and ambiguous and produced technical data sheets, certificates of analysis for the resin used to mold the containers and stated that it did not have any containers given to Kemps. (Kemps Br., p. 19). IPL responded that it is maintaining its vagueness objection but notes that in a second supplemental response that it discarded the containers produced for Kemps in December 2018. (IPL Resp., p. 19). Kemps argues that it requested documents identifying each sample or model container IPL provided to Kemps, including any IPL accounting identifying by type and quantity those samples or models. In Kemps' view, the technical data sheets IPL produced do not respond to the request. (Kemps Reply, p. 14-15).

*9 The undersigned agrees with Kemps that this request is not vague or ambiguous and recommends that the Court overrule the objection. If IPL has other responsive documents that would identify the model or sample containers identified in the request, including type and quantity, it should be directed to produce them. If it does not have any additional documents, it should so state. Generally, one would expect manufacturer's business records to include information about the type and quantity of products sold.

Request for Production No. 43 requests documents sufficient to identify occasions IPL contends it excluded, waived, or otherwise limited any warranty made or issued by IPL or implied by law in connection with the sample containers or the containers. (Kemps Br., p. 19-20). IPL withdrew its overbreath/burdensomeness objections and produced a document and referred Kemps to documents in Kemps' production. (IPL Resp., p. 19-20). IPL maintained its objection to the form of the request, noting that the request pre-supposes the existence of warranties and IPL did not agree that some or all of the warranties Kemps alleges apply or are enforceable. (Kemps Br. Ex. B, p. 7). IPL does state that it is not withholding any documents based on this objection. (IPL Resp., p. 19). In reply, Kemps notes that IPL produced one document and argues that IPL should be compelled to produce all other responsive documents. (Kemps Reply, p. 15).

The undersigned agrees that IPL must fully respond to this request. As the briefing stands, IPL is maintaining only one objection based on a legitimate point that the request assumes a fact that IPL disagrees with, i.e., whether any warranties were formed as a matter of law. Notwithstanding that objection, IPL has produced documents and states it is not withholding documents based on this objection. Accordingly, there does not appear to be an actual dispute because IPL has provided the documents it contends are responsive. If IPL's representation is accurate, then there are no further documents to produce. But if IPL has further responsive documents, it should produce them to Kemps.

Interrogatory No. 19 requests IPL to identify all individuals who were responsible for, developed, engineered, tested, assisted with, reviewed for approval, or approved the recipe used to make the containers. (Kemps. Br., p. 20). IPL objected as overly burdensome and not proportional to the needs of the case to the extent it sought information about “every person” involved in the subject. (Kemps. Br. Ex. G, p. 4). IPL referred Kemps to the 781 pages of documents described as the “files associated with the development of the pint with Safeway.” (Id.). Kemps argues that IPL's reference to the same group of 781 pages of documents is insufficient. (Kemps Br., p. 20-21). IPL stated that Kemps failed to refer to IPL's supplemental answer to Interrogatory No. 2, which identifies specific individuals associated with the developmental and testing processes. IPL further contends that its reference to the Bates range is permissible under Rule 33(d). (IPL Resp., p. 20). In reply, Kemps argues that it really is seeking only “the key persons providing input on and approving the recipe.” (Kemps Reply, p. 15).

The undersigned agrees that Interrogatory No. 19 was not proportional to the needs of the case to the extent it requested IPL to identify “all individuals” who tested, or assisted with, the recipe. Kemps' narrowing of the request to identification of “the key persons providing input on and approving the recipe” is proportional to the needs of the case. IPL should be directed to list those individuals. IPL's reference to 781 pages of documents does not suffice to meet its obligation. The invocation of Rule 33(d) is inappropriate.

*10 Interrogatory No. 22 requests IPL to identify by name and position “each person who had the authority to make or was in a position to make an express warranty on IPL's behalf with respect to the Containers (Round Containers).” (Kemps Br. Ex. G, p. 6). IPL objected on the grounds that the request calls for information protected by the attorney-client privilege or work-product doctrine, that it was overly broad and unduly burdensome and not proportional to the needs of the case. IPL further stated that it was not in a position to respond without further information from Kemps or a reference to a specific statement by a specific person because while certain employees may have authority to make statements about certain aspects of the containers, the authority depended on the nature of the statement and person making it. (Id. p. 6-7). IPL requested that Kemps clarify or refer to a specific statement by a specific IPL employee so that it could answer. (Id., p. 7; IPL Resp., p. 20-21). In its briefing, IPL contends that the interrogatory improperly calls for a legal conclusion and states that it is maintaining its objections. (IPL Resp., p. 20). Kemps disagrees that the request calls for legal conclusions and contends that it is entitled to know the factual basis for IPL's affirmative defenses. (Kemps Reply, p. 16). In paragraph 5 of its defenses to the Second Amended Complaint, IPL states that if any of IPL's agents or servants made any express warranties, Kemps could not enforce any express warranties with respect to the product if the statements of the agents or servants of IPL were made without authority, express or implied. (Kemps Reply, p. 16).

“An interrogatory may relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). An “interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete....” Id.

Here the undersigned agrees that requiring IPL to answer this interrogatory at the present time, without more context from Kemps, is not proportional to the needs of this case. Kemps is claiming as the plaintiff that IPL created certain express warranties, and Kemps has the burden to prove both that one or more warranties were made and that IPL's product did not conform to such warranties. IPL has asserted a conditional affirmative defense that if its agents created certain warranties, Kemps cannot enforce the warranties if the agents lacked authority, express or implied. Only those express warranties that Kemps contends were actually made and breached have relevance to this case. If IPL agents made other warranties, but Kemps does not contend those warranties were breached, it is irrelevant whether the IPL agents who made those warranties had authority from IPL to do so. (For example, if an agent made a warranty that the containers would be clear, it is not proportional to the needs of the case to force IPL to state in response to Interrogatory No. 22 whether the agent had authority to warrant that the containers would be clear, because no party has disputed that the containers were in fact clear; clearness of the containers is not at issue.)

Accordingly, the undersigned recommends that the Court deny Kemps' request to compel IPL to further answer Interrogatory No. 22 at this time. Because IPL has already offered in its response to “attempt to answer further” if Kemps would specify or clarify the nature of the alleged statement constituting a warranty and identify the person making it, the undersigned recommends that the denial be without prejudice to Kemps seeking to compel a further response by IPL if Kemps provides IPL with more specific information identifying the alleged warranty and the alleged maker, and IPL thereafter fails to seasonably provide a supplemental response as to whether said person possessed authority from IPL to make the warranty.

Interrogatory No. 15 requests information pertaining to inaccessibility of electronic mail of Bill Gislason, who was the senior manager of business development at IPL until he left on November 30, 2016. Kemps asked IPL to identify when the email became inaccessible, why it became inaccessible, IPL's investigation that led it to discover the email was inaccessible, protocols in place at the time, and who at IPL is knowledgeable about such issues. (Kemps Br. Ex. C, p. 4-5). IPL objected that the Interrogatory did not seek information relevant to the claims and defenses of any party and because it sought information protected by the attorney-client privilege or work-product doctrine. Notwithstanding these objections, IPL stated in response that Mr. Gislason left IPL on November 30, 2016, at a time when IPL had no policy regarding retention of former employees' emails, and that on information and belief, his emails would have been purged 90 to 180 days after his last date of employment. (Id. p. 5).

*11 Kemps seeks to compel IPL to provide a complete response, emphasizing that Mr. Gislason was a key person at IPL during the sale of the containers and that IPL was on notice of Kemps' claim as early as February 2017 and certainly by April 2017 when it received a formal claim letter. (Kemps Br., p. 22). IPL argues that the information is irrelevant and collateral, noting that at the time Mr. Gislason left, Kemps had not even received reports of breakage of the containers. (IPL Resp. p. 21). IPL further notes that many of Mr. Gislason's emails and other documents have already been produced and more will be provided in its ESI production. (IPL Resp., p. 21). Kemps argues that preservation of evidence issues do not arise as independent lawsuits or claims; they arise during a lawsuit when one party learns that the other has destroyed evidence. In reply, Kemps emphasizes that the express and implied warranties it alleges were formed before November 30, 2016 and that Mr. Gislason was instrumental in establishing that vendor-vendee relationship. (Kemps Reply, p. 17-18).

“Spoliation is the intentional destruction of evidence....” E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005) (internal quotations omitted). It can also arise from “the failure to properly preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). “To establish spoliation, the moving party must show that the adverse party destroyed potential evidence, that the evidence was discoverable, and that the loss of evidence prejudiced the moving party.” Nekich v. Wisconsin Central Ltd, Civl. No. 16-2399 (JNE/DTS), 2017 WL 11454634 at *3 (D. Minn. Sept. 12, 2017) (internal quotations omitted).

While the undersigned need not, and does not, decide the issue of whether the destruction of Mr. Gislason's emails following his employment could constitute spoilation, the undersigned does note that Kemps has not made a strong showing that spoliation has occurred. The record at this time suggests that Mr. Gislason left IPL's employment when no potential litigation was on the horizon and that his emails became inaccessible in the normal course following his employment separation. In addition, not all emails are inaccessible, and some are being produced. Kemps has not argued at this time that any important emails are missing.

Essentially Kemps is seeking “discovery on discovery” through Interrogatory No. 15. Discovery on discovery can be warranted in some circumstances but is the exception and not the rule. See, e.g., Freedman v. Weatherford Intern. Ltd., No. 12 Civ. 2121 (LAK)(JCF), 2014 WL 3767034 *3 (S.D.N.Y. July 25, 2014). Discovery requests seeking information about steps to maintain, search for, and preserve documents in a party's custody and control have been denied as improper discovery on discovery that does not seek information relevant to the parties' claims or defenses. E.g., West Virginia Pipe Trades Health & Welfare Fund v. Medtronic, inc., Civ. No. 13-1686 (JRT/FLN), 2015 WL 12778845 at *2-*3 (D. Minn. June 12, 2015). In light of these authorities, the undersigned recommends that the Court deny Kemps' request to compel a further response to Interrogatory No. 15 at this time. If factual circumstances change as discovery uncovers additional information, the Court can revisit this issue at a later date.

Kemps argues that IPL's verification to Kemps' Fifth Set of Interrogatories signed by Mr. Marcoux, Chief Legal Officer & Secretary of Defendant IPL USA, Inc., does not satisfy the requirements of Rule 33(b)(3) because it contains “a purported verification that is plainly not signed under oath and does not attest to the answers' truthfulness.” (Kemps Br., p. 22). Kemps makes the same complaint about other interrogatory responses verified by Mr. Marcoux. (Kemps Br., p. 22-23).

Rule 33(b)(3) requires that “each interrogatory must, to the extent is it not objected to, be answered separately and fully in writing under oath.” The oath requirement “serves the critical purpose of ensuring that the responding party attests to the truth of the responses.” Chris v. Fareri, No. 3:10CV1926(RNC), 2011 WL 13228490, at *1 (D. Conn. Dec. 13, 2011). “However, Rule 33 does not prescribe any particular form of verification.” Richard v. Dignean, 332 F.R.D 450, 457 (W.D.N.Y. 2019) (internal quotations omitted). Answers may be sworn to before a notary public or by providing a declaration pursuant to 28 U.S.C. § 1746, which permits an unsworn statement that specifically states that it is given under penalty of perjury and attesting to the truth of the statement. Id.

*12 Rule 33(b)(1)(B) permits a corporation to answer an interrogatory by “any officer or agent, who must furnish the information available to the party.” The agent does not need personal knowledge of the response. Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1481 (D.C. Cir. 1995). The representative “must have a basis for signing the responses and for thereby stating on behalf of the corporation that the responses are accurate.” Id. But the representative “may accomplish this through whatever internal process the corporation has chosen, including discussions with counsel.” Id.

Numerous courts have held that an attorney may verify an interrogatory response for a corporation. See, e.g., Gluck v. Ansett Australia, Ltd., 204 F.R.D. 217, 221 (D.D.C. 2001); Fernandes v. United Fruit Co., 50 F.R.D. 82, 85-86 (D. Md. 1970).

The undersigned has reviewed the disputed verifications by Mr. Marcoux. Each includes a statement that he is authorized to verify the responses; a statement that “the foregoing Answers are true and correct”; and a statement that “under penalty of perjury of the laws of the State of Missouri that the foregoing is true and correct.” The verification is sufficient under the authorities cited above.

B. Other findings

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 with Kemps' positions, some issues consistent with IPL's 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 IPL to:

The undersigned recommends that the Court order IPL to provide the additional information not later than 10 days after this Report and Recommendation becomes final.

The undersigned recommends that the Court deny all other requests by Kemps to compel IPL to provide additional information in response to written discovery.

I hereby certify that on February 11, 2021, the foregoing was filed electronically with the Clerk of Court and served on all parties of record via the CM/ECF system.