*1 Plaintiff Mladen Miljas moves to compel the production of documents and information from Defendants Greg Cohen and Greg Cohen Promotions, LLC. Defendants argue they have satisfied their obligations under the Federal Rules of Civil Procedure, and thus that the motion to compel should be denied. The Court agrees with each side to some degree (but not entirely) and therefore GRANTS IN PART and DENIES IN PART Plaintiff's Motion to Compel.

I. BACKGROUND.

Plaintiff is a Canadian National who began his professional boxing career in 2016. (ECF 42 ¶ 14.) He represented himself for the first part of his career but was allegedly approached by Defendant Cohen Promotions, a boxing promoter, after Plaintiff won the heavyweight title in Canada. (Id. ¶¶ 17, 20-22.) In June 2018, the parties entered into a promotional agreement. (Id. ¶ 23.) However, the relationship quickly deteriorated because Defendants allegedly booked fights with opponents who were not up to Plaintiff's caliber. (Id. ¶¶ 24-42.) Defendants also allegedly canceled scheduled fights unexpectedly and sometimes ignored Plaintiff's communications. (Id.) Plaintiff terminated the agreement in June 2020 based on Defendants' alleged breaches. (Id. ¶ 75.) This suit followed.

The Court dismissed two of Plaintiff's original claims and granted his request for a preliminary injunction for reasons set forth in an Order dated April 30, 2021. (ECF 39.) Plaintiff's Amended Complaint contains six counts: breach of contract; tortious interference with an existing contract; fraudulent inducement; violation of the Ali Act; declaratory relief; and permanent injunction. (ECF 42.) Defendants brought counterclaims.

Plaintiff asks the Court to compel Defendants to supplement what he contends are inadequate answers to interrogatories and requests for production. Defendants have, in some instances, already supplemented their original responses, but Plaintiff contends that more supplementation is necessary. The Court must also decide whether, and to what extent, Defendants must disclose information about other lawsuits and produce tax returns.

II. LEGAL ANALYSIS

A. Legal Standards and Principles.

The Court has broad discretion to resolve discovery disputes. Haviland v. Cath. Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1043 (S.D. Iowa 2010). Fed. R. Civ. P. 26 authorizes discovery of “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). Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence.” Fed. R. Civ. P. 401. Discovery is meant to be used as “a[n] investigatory tool ... to help litigants gain an understanding of the key persons, relationships, and evidence in a case.” Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 926 (8th Cir. 2014).

To determine whether information is discoverable, courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Courts may limit discoverable evidence if the requested information is unreasonably cumulative, not relevant to a claim or defense in the case, or cheaper or easier to obtain from some other source. Id. 26(b)(2)(C). The party objecting to discovery carries the burden of proof. St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). A Court may order a party to supplement discovery responses if it finds they are deficient. Fed. R. Civ. P. 26(e)(1)(B).

B. Rulings on Plaintiff's Motion to Compel as it Relates to Interrogatories.

*2 The Court rules as follows with respect to Defendant Cohen's interrogatory responses:

(1) Plaintiff's Motion to Compel is GRANTED as to Interrogatory Nos. 7 and 10. Defendant Cohen shall provide additional detail regarding the expenses he incurred because of Plaintiff's alleged breaches of contract.

(2) Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART as to Interrogatory No. 8. This Interrogatory seeks to understand the factual basis for Defendants' denials of more than a dozen allegations in Plaintiff's Amended Complaint. By the time of the hearing on Plaintiff's Motion to Compel, the dispute surrounding Interrogatory No. 8 was narrowed to Defendant Cohen's denials to the following paragraphs of the Amended Complaint: ¶¶ 20, 21, 22, 24, 30, 44, 47, and 55. The Court rules as follows:

(3) Plaintiff's Motion to Compel is DENIED as to Interrogatory No. 19. Defendant Cohen's answer to Interrogatory No. 19 is sufficient, and no further supplementation will be required.

*3 (4) Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART as to Interrogatory No. 25. Defendant Cohen must supplement his response to Interrogatory No. 25 to state that Defendant Cohen has not been a party in any other criminal proceeding besides the one listed case.[1] Defendant Cohen further must supplement his response to Interrogatory No. 25 to identify the full case name, full case number, and venue for any other civil litigation to which he has been a party since January 1, 2012, and which relates to the professional boxing industry. Defendant Cohen is not, for now, required to identify the “claims made in the litigation” or the “outcome of such litigation” in light of the Court's concerns that extensive discovery into other civil cases not involving Plaintiff is not proportional to the needs of the case.

C. Rulings on Plaintiff's Motion to Compel as it Relates to Requests for Production.

Plaintiff's Motion to Compel is GRANTED IN PART with respect to Requests for Production 18, 19, 21, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 49, 50, and 57 as to emails. Defendants' counsel is required to work in good faith with Plaintiff's counsel to: (a) agree on search terms; and (b) perform searches using those search terms on Defendants' computer network(s) or (if no fully-integrated network exists) on computers used and possessed by appropriate custodians.[2]

Plaintiff's Motion to Compel is GRANTED IN PART with respect to Requests for Production 18, 19, 21, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 49, 50, and 57 as to SMS text messages, Facebook Messenger messages, WhatsApp messages, and other similar types of electronic communications. Defendants' counsel shall promptly engage an e-discovery vendor (at Defendants' expense) to take a forensic image of Defendant Cohen's cell phone. Defendants' counsel will then work in good faith with Plaintiff's counsel to develop a protocol for searching the forensic image for responsive communications and producing those communications. It is the Court's expectation that Defendants will err on the side of over-production of electronic communications from the cell phone.[3] The communications shall be produced in their native format whenever possible.

One of the final areas of dispute between the parties involves Plaintiff's request for Defendants' tax returns for tax years 2018 through 2021. Plaintiff argues the tax returns are relevant to whether (and in what amount) Defendants suffered damages and may show that Defendants had a relationship with a non-party manager that is prohibited by federal statute. Defendants respond that tax returns would not be probative because their damages are either: (a) in the form of out-of-pocket expenses, which are better demonstrated through receipts and other records Defendants have promised to produce; or (b) future damages that would not appear on a tax return and result from Plaintiff's decision to terminate his contract with Defendants just when he was becoming profitable. Further, Defendants have already denied any relationship with the non-party manager in their answers to interrogatories and say the tax returns would not show a relationship between the two.

*4 Courts in the Eight Circuit generally apply a two-prong test to determine whether tax returns are discoverable. See PSK, L.L.C. v. Hicklin, No. C09-0105, 2010 WL 2710507, at *1-3 (N.D. Iowa July 8, 2010). First, the party seeking the tax return must show “the tax return is relevant to the subject matter in dispute.” Id. (quoting Terwilliger v. York Int'l Corp., 176 F.R.D. 214, 216-17 (W.D. Va. 1997)). Second, the party must show “a compelling need exists for the return, because the information sought is not obtainable from other sources.” Id. “[G]reat caution should be exercised in ordering the disclosure of tax returns.” Terwilliger, 176 F.R.D. at 216. “As a general rule, courts do not favor compelling production of tax returns.” Hicklin, 2010 WL 2710507, at *3.

The Court concludes Plaintiff has not established a “compelling need” for disclosure of Defendants' tax returns. Defendants are already obligated to supplement their discovery responses to provide receipts and other details for the hard damages they claim to have suffered. Those supplemental records should show Defendants' alleged out-of-pocket damages with far more specificity than a tax return would; should Defendants fail to provide many supplemental records, this likely would doom or limit their ability to prove past damages. Moreover, the Court accepts Defendants at their word that their remaining damages are future damages that, by definition, would not appear at a tax return. Finally, the Court finds that the question of whether Defendants had a relationship with the non-party manager is “obtainable from other sources” and has already been addressed in Defendants' interrogatory responses. See Fed. R. Civ. P. 26(b)(2)(C). The Court therefore DENIES Plaintiff's Motion to Compel as it relates to tax returns.

D. Ruling on Plaintiff's Request for Fees.

Fed. R. Civ. P. 37(a)(5)(C) states when a motion to compel is granted in part and denied in part, the Court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” The possibility of fee-shifting exists “to deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.” See Fed. R. Civ. P. 37(a)(4) Advisory Committee Notes (1970). The Court has “wide latitude” regarding the apportionment of fees. Black v. Pilot Travel Centers, LLC, No. CIV. 09-4170-KES, 2011 WL 3421595, at *2 (D.S.D. Aug. 4, 2011). “When the court overrules most of the objections to a motion to compel and those objections were not substantially justified, then sanctions in the form of expenses and fees are appropriate.” Id.

The Court is not convinced Plaintiff should receive fees in connection with his Motion. While Defendants' discovery responses were admittedly untimely and determined herein to be deficient in many respects, the Court also has denied Plaintiff's Motion to Compel in substantial part. Moreover, one of the biggest areas of disagreement revolved around an interrogatory (No. 8) that had dozens of subparts, each of which could be considered a separate interrogatory—notwithstanding the limit of 25 interrogatories set forth in Fed. R. Civ. P. 33. The interests of justice do not support an award of fees in these circumstances, and thus the Court DENIES Plaintiff's Motion to Compel insofar as it seeks fees.

The Court may reconsider, however, if Defendants fail to act in good faith in connection with ongoing searches for emails, text messages, and other electronic communications or if the results of those searches demonstrate that Defendants have substantially failed to satisfy their discovery obligations.

III. SCHEDULING.

*5 By no later than December 22, 2021, the Parties shall file a status report with the Court indicating their progress in complying with this Order.

Pending further developments in the Parties' ongoing discovery efforts, Plaintiff's Expert Disclosures shall be due on or before January 10, 2022. Defendants' Expert Disclosures shall be due on or before February 9, 2022. Plaintiff's Rebuttal Expert Disclosures shall be due on or before March 2, 2022. The discovery deadline shall remain March 28, 2022. The dispositive motion deadline shall remain April 1, 2022.

IT IS SO ORDERED.

This assumes, of course, that Defendant Cohen has not been a defendant in any other criminal case, which is what Defendants' counsel reported during the hearing on Plaintiff's Motion to Compel. If it turns out Defendant Cohen has been a defendant in other criminal cases, the supplemental response must say so and identify the other case(s).

The Court prefers for the searches to be conducted on Defendants' entire network(s). If, however, Defendants have no integrated network and instead have employees or agents with their own, non-network computers, the Court expects Plaintiff's counsel and Defendants' counsel to work together in good faith to identify the specific custodians whose computers should be searched using the agreed-upon search terms.

The Court has not ruled out the possibility of ordering a copy of the entire forensic image to be produced to Plaintiff's counsel. For now, however, the Court will give Defendants the opportunity to make a production based on searches and unilateral review.