*1 This matter is before the Court on Defendant's Motion to Compel [Doc. No. 126], Defendant's Motion to Modify the Scheduling Order [Doc. No. 148], Plaintiff's Motion to Compel [Doc. No. 132] and Plaintiff's Motion for a Protective Order [Doc. No. 138]. The Court held a hearing on the motions at issue on April 4, 2018. The Court ruled from the bench on some parts of the motions [Doc. No. 167], and took the remainder under advisement. This written order addresses all remaining issues from the motions.

I. Background

In late spring of 2014, Upsher-Smith fell victim to a fraudulent phishing scheme in which the perpetrators tricked an employee of the company into making roughly $50 million in illegal transfers to bank accounts located in China and Slovakia. (Compl. ¶¶ 11-55 [Doc. No. 1-1].) To carry out the scheme, the culprit or culprits posed as the CEO of Upsher-Smith and sent an email to Christine Hopper, an accounts payable coordinator at the company, which misled her into believing that Upsher-Smith was in the process of acquiring a different company and that the deal would be executed in the coming days. (Compl. ¶ 21.) The email specifically directed Hopper to help facilitate the company's acquisition and advised her that an attorney named David Madison would contact her soon with instructions. (Id.) Following that email and on multiple separate occasions thereafter, Hopper received instructions from “David Madison” to transfer large sums of money, which she dutifully obeyed in the belief that the transfers were validly authorized by the CEO of the company. (Compl. ¶¶ 24-58.)

Only on June 17, 2014, did the company first become aware it was duped by the fraudulent scheme, after discovering that Hopper had acted at the direction of an imposter. (Compl. ¶ 60.) Immediately after discovering the fraud, the company contacted its bank handling foreign exchange trades—Fifth Third Bank in Cincinnati, Ohio—and instructed it to halt the foreign currency wires and recoup the sums that were improperly transferred. (Compl. ¶ 63.) Fifth Third was able to recover nearly $13 million of the improper FX trades. Unfortunately, Fifth Third was not able to recover the nearly $40 million in remaining funds that had already been fraudulently transferred to foreign bank accounts. (Compl. ¶¶ 66-67.)

Through this lawsuit, Upsher-Smith seeks redress from Fifth Third for facilitating the fraudulent transactions. Upsher-Smith alleges, among other things, that Fifth Third breached the contract it had with Upsher-Smith, breached the implied covenant of good faith and fair dealing, and breached its obligations under U.C.C. § 4A-202 to conduct business in a commercially reasonable manner.

II. Motions to Compel

After the close of fact discovery, Upsher-Smith and Fifth Third both filed motions to compel. Fifth Third's motion seeks to compel Upsher-Smith to produce documents relating to claims for recovery under insurance policies or from victims’ funds for the losses resulting from the fraudulent FX trades, and information about who or what entity owns the right to the claims asserted in this lawsuit. (Mot. Compel [Doc. No. 126].) Upsher-Smith's motion seeks to compel the production of all policies, procedures, processes, guidelines, and/or other documents incorporated or referenced in the bank's anti-money laundering policy or wire transfer policy. In addition, Upsher-Smith seeks documents relating to employee training on those policies and any documents recounting instances of non-compliance with those policies.

A. Standard of Review

*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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The December 2015 amendments to Rule 26(b)(1) “[r]estor[ed] the proportionality calculation to Rule 26(b)(1),” but did “not change the existing responsibilities of the court and the parties to consider proportionality.” Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment. The Advisory Committee went on to remind the Court and the parties of their “collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id. The Advisory Committee additionally noted the following:

Id.

Rule 34 of the Federal Rules of Civil Procedure was also amended in 2015 to reinforce the requirement that a party objecting to a request for production of documents do so with specificity. Rule 34(b)(2)(B) states that “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(C) takes it further: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” But lest there be any doubt about what is expected of the party responding to a Rule 34 request, the Advisory Committee notes nail it down:

Fed. R. Civ. P. 34(b) advisory committee's note to 2015 amendment. This expectation was reiterated in the Court's Pretrial Scheduling Order. [Doc. No. 54 at 4.]

In the wake of these amendments, a number of courts have held that the widespread practice of stating “general objections” at the beginning of a response to a set of Rule 34 requests and either incorporating those objections by reference or simply reiterating them at the beginning of each individual request, fails to meet the requirements of Rule 34(b)(2), and may even result in waiver of the objections. See, e.g., Arctic Cat v. Polaris Indus. Inc., No. 13-cv-3579 (JRT/FLN), 2015 WL 12830409, at *3 (D. Minn. June 2, 2015) (noting that objections to document requests “must be stated with specificity or else be waived”); Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 185-186 (N.D. Iowa 2017) (noting that generalized objections may be waived because they are “tantamount to not making any objection at all.”); Orchestratehr, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016) (general objections to requests for production are invalid); Sobol v. Imprimis Pharm., No. CV 16-14339, 2017 WL 5035837, at *4 (E.D. Mich. Oct. 26, 2017) (“general objections violate[ ] the specificity requirements of Rule 34”); Travelers Indem. Co. of Connecticut v. Coll. 60 Minute Cleaners, Inc., No. 1:15-cv-147 (RLY/MJD), 2016 WL 10520837, at *2 (S.D. Ind. Mar. 29, 2016) (“general objections ... run the risk of [being] summarily denied”); Carl v. Edwards, No. 16-cv-3863 (ADS/AKT), 2017 WL 4271443, at *8 (E.D.N.Y. Sept. 25, 2017) (“conclusory objections ... are insufficient to exclude discovery of the requested information”); Keycorp v. Holland, No. 3:16-CV-1948-D, 2016 WL 6277813, at *12 (N.D. Tex. Oct. 26, 2016) (“general, boilerplate objection[s] ... are improper.”); Fischer v. Forrest, No. 14CIV1304PAEAJP, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017) (“general objections should rarely be used after December 1, 2015 unless each such objection applies to each document request”).

*3 Finally, even where a request seeks information that is otherwise within the scope of what is discoverable under Rule 26(b)(1), a party may refuse to disclose information that is subject to a valid claim of privilege or other immunity from discovery. Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002). In that event, the withholding party “bears the burden to provide a factual basis for its assertions;” this burden is met “when the party produces ‘a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit.’ ” Triple Five of Minnesota, Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002) (quoting Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 565 (8th Cir.1997)).

B. Fifth Third Bank's Motion to Compel

Fifth Third's motion seeks to compel the production of the following categories of documents:

(Def.’s Mem. Supp. Mot. Compel at 14 [Doc. No. 127].) At the hearing, the Court granted Fifth Third's motion in part as to the fourth category, ordering Upsher-Smith to produce documents sufficient to show whether the right to recover on its claims was transferred to another entity or person as a result of the May 2017 sale of Upsher-Smith Laboratories to Sawai Pharmaceutical. (April 4, 2018, Hr'g Min. [Doc. No. 167].) The Court denied Fifth Third's motion without prejudice insofar as it sought to compel production of other documents or communications between Upsher-Smith and Sawai Pharmaceutical, and the Court stated it would not require Upsher-Smith to present a witness for a Rule 30(b)(6) deposition on the topic of the ownership of the claims. (Id.)

The following discussion addresses the other three categories of documents sought by Fifth Third's motion, namely, whether Upsher-Smith must produce documents pertaining to communications with and claims for recovery from its insurer or any victim's fund for the losses sustained as a result of the fraudulent phishing scheme. Fifth Third argues that all three categories are encompassed within one or more of the following requests made in Fifth Third's First Request for Production of Documents, which was served on February 16, 2017:

(Kerbaugh Decl., Ex. B at 4-24 [Doc. No. 143-2].)

Upsher-Smith responded on March 21, 2017. (Walton Decl., Ex. A [Doc. No. 128].) It led off with fifteen “general objections,” including lack of relevance, overbreadth, ambiguity, burdensomeness, confidentiality, and privilege. (Id. at 4-7.) Those objections were for the most part parroted in similarly general terms in the response to each of the requests at issue here.[1] Nevertheless, after setting forth its potpourri of conclusory objections, Upsher-Smith went on in response to each of the disputed requests to promise that “subject to and without waiving its objections, Upsher will produce relevant, non-privilege, non-protected documents.” (See, e.g, id. at 8.)

Contrary to Rule 34(b)(2), these responses did not provide specifics about the objections, or state whether or how Upsher-Smith intended to limit its production in light of any of those objections. Upsher-Smith maintains in its response to this motion that it was justified in refusing to produce documents sought by these requests on both relevance and privilege grounds. (Pl.’s Mem. Opp'n Mot. Compel at 1 [Doc. No. 155].) But nothing in the responses served on March 21, 2017, indicated that Upsher-Smith was of the mind that documents pertaining to its communications with or claims for recovery from insurance or victims’ funds were entirely irrelevant and that it did not intend to produce any at all.[2]

*5 Against this backdrop, it would be well within the Court's discretion to find that Upsher-Smith's objections on any grounds other than privilege to the documents sought by Fifth Third's motion, at least as to Requests Nos. 7, 8, 24, and 25,[3] have been waived in their entirety. Polaris Indus. Inc., 2015 WL 12830409, at *3; Liguria Foods, Inc., 320 F.R.D. at 185-86; Orchestratehr, Inc. 178 F. Supp. 3d at 507; Sobol, 2017 WL 5035837, at *4; Travelers Indem. Co., 2016 WL 10520837, at *2; Carl, 2017 WL 4271443, at *8; Keycorp, 2016 WL 6277813, at *12; Fischer, 2017 WL 773694, at *3. The Court will not go so far in this case, for several reasons. First, Fifth Third's own responses to Upsher-Smith's requests for production were not a model of Rule 34 compliance; they also contained fifteen general objections at the outset and were littered with vague and non-specific objections to Upsher-Smith's requests. (Kerbaugh Decl. Ex. D [Doc. No. 143-4].) Second, when presented in Upsher-Smith's responses with these generalized and uninformative objections, Fifth Third also had a responsibility to engage proactively with Upsher-Smith to seek clarity about its position and intentions. Put simply, neither party has covered itself with glory in this exchange.

Insofar as Upsher-Smith urges the Court to deny Fifth Third's motion in its entirety because Fifth Third waited too long to seek redress, the Court rejects that argument in the circumstances presented here. The Court might well have been receptive to that position if Upsher-Smith's responses had fairly “alert[ed] [Fifth Third] to the fact that documents ha[d] been withheld and thereby facilitate[d] an informed discussion of the objection,” see Rule 34(b)(2)(C) advisory committee's note to 2015 amendment. That was not the case here.

Accordingly, the Court now turns to the merits of Upsher-Smith's objections that the documents sought by this motion are irrelevant and privileged.

Upsher-Smith does not dispute that it made and collected on a claim under its crime insurance policy for some of its losses resulting from the phishing scheme. Fifth Third points out that to do so, Upsher-Smith necessarily must have communicated to its insurer facts relating to the loss, including how it had fallen victim to the fraudulent phishing scheme. Fifth Third argues there is a high probability that such communications with the insurer contained specific details regarding how the fraud was carried out, which employees played a role, and how and why Upsher-Smith failed to uncover the fraud sooner. In addition, Fifth Third reasons that these communications were likely made shortly after the loss occurred, when those involved had fresh memories of what happened. Access to that information would allow Fifth Third to corroborate or contrast other, later accounts of what transpired, particularly given that the case against Fifth Third was first brought nearly two years after the fraud took place. Therefore, Fifth Third argues that documents and communications between Upsher-Smith and its insurer are directly relevant to the claims and defenses at issue in the lawsuit and the Court should order that they be produced.

Upsher-Smith contends Fifth Third has not demonstrated how communications between it and its insurer are relevant. At best, Upsher-Smith argues, Fifth Third can only speculate that those communications contain admissions of fault relevant to the claims at issue. Furthermore, Upsher-Smith argues, insurance-related documents and communications are not relevant even for the limited purpose of measuring damages, because Fifth Third is precluded from offsetting insurance payments against any damages awarded by operation of Minnesota's collateral source rule.

*6 The Court disagrees and finds that documents that contain or reflect communications between Upsher-Smith and its insurer about the facts, circumstances, and events that underlie this lawsuit – including the fraudulent phishing scheme and the knowledge and actions of Upsher-Smith's employees – are plainly relevant to this action. Whether or not those communications contain “admissions of fault” is beside the point. The Court finds any policy under which Upsher-Smith made its claim is relevant as well, as it would help clarify the context in which those communications were made.[4]

On the other hand, the Court is not persuaded of the relevance of other information relating to Upsher-Smith's insurance claim, such as whether or on what basis the insurer accepted or contested coverage, or information pertaining to the settlement between Upsher-Smith and its insurer, including the amount paid on the claim (except to the extent such documents also contain descriptions or accounts of how the fraud was perpetrated). Simply put, Upsher-Smith's or its insurer's views about the scope of coverage under the crime insurance policy do not relate to any claim or defense in this case.

Furthermore, the amount recovered by Upsher-Smith under the crime insurance policy has no bearing on the computation of damages. Under Minnesota law, the “collateral source rule provides in general that compensation received from a third party will not diminish recovery against a wrongdoer.” Hubbard Broad., Inc. v. Loescher, 291 N.W.2d 216, 222 (Minn. 1980). Although Minnesota courts “have been leery of invoking the collateral source rule in contract cases” because “contractual damages are compensatory” and “the collateral source rule is punitive,” Hubbard Broad., Inc. v. Loescher, 291 N.W.2d 216, 222 (Minn. 1980), the collateral source doctrine does apply to claims sounding in contract, particularly when “the award would not provide overcompensation to the defendant.” Hubbard Broad., 291 N.W.2d at 223. By statute, a limited exception to the collateral source rule allows damages in personal injury cases to be offset by related payments made from collateral sources such as insurers. Minn. Stat. § 548.251. However, this statutory exception applies only to personal injury cases, Duluth Steam Co-op. Ass'n v. Ringsred, 519 N.W.2d 215, 217 (Minn. Ct. App. 1994), and “because the collateral source statute abrogates the common law, [the court] construe[s] the statute narrowly.” Graff v. Robert M. Swendra Agency, Inc., 800 N.W.2d 112, 120 (Minn. 2011).

Fifth Third has cited no legal or contractual basis suggesting to the Court that it would be entitled to an offset for any compensation Upsher-Smith may have received under its crime insurance policy. Upsher-Smith's claims against Fifth Third sound in contract, and consequently are not covered by the limited statutory exception to the collateral source rule allowing personal injury damages to be offset by related payments from insurers. In addition, Upsher-Smith would not be overcompensated if it were to prevail against Fifth Third because the insurer has a subrogation interest in any recovery Upsher-Smith may realize in this lawsuit. Therefore, documents and communications pertaining to payments Upsher-Smith received from its insurer do not relate to any claims or defenses in this case, and they have no bearing on the calculation of damages, because Fifth Third may not offset insurance payments against amounts for which it may be found liable in the lawsuit. Accordingly, the Court will uphold Upsher-Smith's objection to the relevance of documents and communications relating to its insurance claim that do not contain descriptions or accounts of the facts underlying this case, or comprise the policy under which the claim was made.[5]

*7 The Court turns next to Upsher-Smith's contention that even if such documents and communications with its insurer about the facts underlying the case are relevant, they are immune from discovery. In its November 2, 2017 privilege log, Upsher-Smith stated that communications with its insurer were being withheld on the basis of the work-product doctrine, self-critical analysis privilege, and/or common-interest attorney-client privilege. (Def.’s Ex. B at 28-71 [Doc. No. 128].) Fifth Third argues the entries in the privilege log are thin on details and do not sufficiently describe the nature of the documents, communications or tangible things withheld to allow it to assess claims of privilege. See Fed. R. Civ. P. 26(b)(5). Fifth Third additionally argues that Upsher-Smith's invocation of the work-product doctrine, self-critical analysis privilege, and common-interest attorney-client privilege is legally and factually unsupported.

The Court agrees that Upsher-Smith has failed to demonstrate that its communications with its insurer are entitled to protection under a privilege of self-critical analysis. First, Upsher-Smith has pointed to no precedent under Minnesota law or in the Eighth Circuit establishing a privilege of self-critical analysis, nor has it provided a factual basis for the claim that any particular communication would be entitled to such protection even if the privilege existed. As Fifth Third points out, the Eighth Circuit has not recognized an independent self-critical analysis privilege. See Capellupo v. FMC Corp., No. CIV. 4-85-1239, 1988 WL 41398, at *4 (D. Minn. May 3, 1988) (referencing In In Re Burlington Northern, Inc., 679 F.2d 762 (8th Cir.1982)). Accordingly, the Court rejects the privilege of self-critical analysis as a basis for withholding the requested communications from production.

On the other hand, the circumstances do raise the possibility that some of Upsher-Smith's communications with its insurer may fall within the scope of the attorney-client privilege or work-product doctrine under the common-interest doctrine, due to the insurer's subrogation interest in Upsher-Smith's claims against Fifth Third.[6] (Ex. W [Doc. No. 143-22].) The attorney-client privilege provides that “[c]onfidential communications between an attorney and his client are absolutely privileged from disclosure against the will of the client.” Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 601 (8th Cir. 1977). Ordinarily, if privileged information is voluntarily disclosed to another party, the attorney-client privilege is waived. PaineWebber Grp., Inc. v. Zinsmeyer Trusts P'ship, 187 F.3d 988, 992 (8th Cir. 1999). However, under certain circumstances, the common interest doctrine allows for the attorney-client privilege to remain intact when privileged information is shared with a third party. Shukh v. Seagate Tech., LLC, 872 F. Supp. 2d 851, 855 (D. Minn. 2012). More specifically, “the doctrine permits disclosure without waiver as long as the party claiming the exception demonstrates that the parties communicating: ‘(1) have a common legal, rather than commercial, interest; and (2) the disclosures are made in the course of formulating a common legal strategy.’ Id. (quoting Merck Eprova AG v. ProThera, Inc., 670 F. Supp. 2d 201, 211 (S.D.N.Y. 2009)). Here, Upsher-Smith argues its communications with its insurer are entitled to such protection because it has subrogated its interests in the claims to its insurer—meaning the insurer is legally entitled to all or part of the claims against Fifth Third to the extent needed to recoup payments made on its insurance policy. See Southern Ins. Co. v. CJG Enterprises, Inc., No. 315CV00131 (RGE/SBJ), 2017 WL 3449609, at *3 (S.D. Iowa May 11, 2017) (defining subrogation). Therefore, Upsher-Smith argues, its communications with its insurer are covered by attorney-client privilege because it and its insurer have a common legal interest in maximizing recovery from Fifth Third.

*8 The Court agrees that in the context of a subrogation agreement, it is conceivable and perhaps even likely that attorneys for Upsher-Smith shared privileged information with counsel for its insurer as part of a common effort to litigate claims against Fifth Third, and if so, the common interest doctrine could apply. Fifth Third concedes as much. (Def.’s Mot. Supp. Mot. Compel at 11-12 [Doc. No. 127].) However, even under this theory, Upsher-Smith's communications with its insurer would not automatically be entitled to protection. For the common-interest exception to apply, the mere existence of a common legal interest is not enough. First, the communications must be such that, except for the disclosure to the third party with whom a common legal interest is claimed, the attorney-client privilege or work-product doctrine would have applied. If the communications would not otherwise be privileged, the existence of a common legal interest would not make them so.

Second, the disclosures at issue must have been made “in the course of formulating a common legal strategy.” Shukh, 872 F. Supp. 2d at 855. The common-interest doctrine does not apply between parties that have divergent legal interests. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997). Here, Upsher-Smith's common legal interest with its insurer emerged, at the earliest, after the insurer agreed to pay out on the policy, because that is the point in time when the insurer's subrogation interest came into being. Upsher-Smith has pointed to nothing to suggest that its initial communications with its insurer were made to formulate a common legal strategy in pursuit of recovery against Fifth Third, particularly where Upsher-Smith and its insurer did not initially agree on the extent to which the insurer was obligated to pay on the policy.

Having concluded that attorney-client privilege or work product protection may be warranted for some communications between Upsher-Smith and its insurer, the question is whether that protection is warranted for any of the documents the Court has found to be relevant and otherwise discoverable. As to some, the answer to that question is apparent: the Court has already concluded that communications between Upsher-Smith and its insurer prior to the agreement to pay out on the claim would not be privileged or protected because there was not a common legal interest at that time. Therefore, Upsher-Smith must produce all documents and communications between it and its insurer, prior to the agreement to pay the claim, that contain descriptions or accounts of the facts underlying this case. Furthermore, the applicable insurance policy itself is clearly not privileged and must also be produced.

The record before the Court is not sufficient, however, to assess privilege as to any documents or communications between Upsher-Smith and its insurer that contain descriptions or accounts of the facts underlying this case that were generated after the date on which they reached agreement to pay the claim. Upsher-Smith must produce those documents – if any exist – unless, and only to the extent that, it has a good faith basis to assert they are protected by the attorney-client privilege or work product doctrine under a common interest theory.[7] In that case, Upsher-Smith must produce to Fifth Third an updated privilege log that provides as to each such document a detailed basis for the claim of privilege or protection, including the specific privilege or other protection claimed; the names of the individuals who prepared, sent, or received the document; which of those individuals, if any, are attorneys; the date of the document; and a description of the nature of the document that, without revealing the privileged or protected information itself, will enable Upsher-Smith to assess the claim of privilege or protection. See Fed. R. Civ. P. 26(b)(5)(A)(ii). The parties must then meet and confer in good faith to resolve any disputes; if any disputes cannot be thus resolved, the Court will consider conducting an in camera review.

*9 Fifth Third argues that for many of the same reasons, communications pertaining to its efforts to collect from a crime victims’ fund should also be produced. They point out that in order to collect from the crime victims’ fund, Upsher-Smith must have communicated with the governmental entity administering or overseeing that fund about the facts and circumstances of how it had become a victim of the fraud. Furthermore, Fifth Third argues the collateral source rule would not apply to preclude Fifth Third from offsetting any recovery from the victims’ fund against any award Upsher-Smith may obtain from Fifth Third. Thus, it contends, documents relating to any amounts recovered from the fund should also be produced. Lastly, Fifth Third asserts that Upsher-Smith improperly asserted attorney-client privilege with respect to its communications with the government regarding compensation from the victims’ fund because there is no basis to assert that Upsher-Smith and the government were operating under a common interest agreement.

Upsher-Smith offered no substantive argument in its briefing or at the hearing for why communications relating to its claim for compensation from the crime victims’ fund are not relevant. It made a cursory claim of attorney-client privilege in its privilege log, but in response to this motion it provided no explanation or evidentiary basis whatsoever for such a claim. Therefore, the Court will order Upsher-Smith to produce all documents reflecting communications with any entity relating to its claim for compensation from crime victims’ funds for losses incurred as a result of the fraudulent foreign exchange trades, as well as documents sufficient to show the amount of any such recovery.

C. Upsher-Smith's Motion to Compel

Upsher-Smith seeks to compel Fifth Third to comply with the Court's Order of November 17, 2017 [Doc. No. 113] and to respond more fully to Requests Nos. 1, 2, 3, and 4 of Upsher-Smith's January 12, 2018, request for production. (Pl.’s Mem. Supp. Mot. Compel at 6 [Doc. No. 134]; see also Doc. Requests, Ex. Q at 6-8 [Doc. No. 143-16].) Upsher-Smith also seeks to leave to depose Jeff Jones, Fifth Third's former compliance director, after the close of fact discovery. (Pl.’s Mem. Supp. Mot. Compel at 19.)

After Upsher-Smith filed the instant motion, Fifth Third produced hundreds of pages of additional documents and contends that, in so doing, it has mooted the motion to compel. At the hearing, the Court ordered Fifth Third to supplement its written responses to explain exactly what it had produced in response to the Court's prior order and Upsher-Smith's supplemental requests. It directed Upsher-Smith to review that supplemental disclosure and notify the Court whether any issues remained in dispute. (April 4, 2018, Mot. Hr'g Min.’s.) The Court took Upsher-Smith's motion for leave to take the deposition of Jeff Jones under advisement.

On April 10, 2018, Upsher-Smith informed the Court that the supplemental disclosures and accompanying explanation resolved most of its motion, but that an issue remained with respect to Request No. 1—Upsher-Smith asserts that Fifth Third has not produced procedures referenced in its anti-money laundering policy for its Capital Markets Group. (April 10, 2018 Letter [Doc. No. 170].) Therefore, what remains for the Court to decide is whether it should compel Fifth Third to produce procedures referenced in its anti-money laundering policy for its Capital Markets Group, and whether it should grant Upsher-Smith leave to depose Jeff Jones.

In its April 4, 2018, Order, the Court required Fifth Third to:

*10 (April 4, 2018, Mot. Hr'g Min.’s at 1-2.) Upsher-Smith's January 12, 2018, request for production specifically requested that Fifth Third produce the “line of business” procedures referenced in the anti-money laundering policy for the Capital Markets Group. (Ex. Q at 6-7.) However, Upsher-Smith claims Fifth Third has yet to produce any written procedures implementing the anti-money laundering policies for its Capital Markets Group. (April 10, 2018 Letter [Doc. No. 170].) Further, Upsher-Smith asserts it is impossible to tell from Fifth Third's supplemental response whether it believes it has already produced the procedures, whether it intends to produce the procedures in the future, or whether the procedures do not exist. (Id.)

Fifth Third responds that it has already produced the anti-money laundering procedures applicable to its Foreign Exchange Group, and that it has committed to conducting a reasonably diligent search for any such procedures adopted by other lines of business to which the Foreign Exchange Group belongs, including the Capital Markets and the Commercial Bank lines of business. (April 11, 2018 Letter [Doc. No. 174].) Further, it has agreed to complete that search and produce any such documents by April 27, 2018. (Id.)

In light of the parties’ letters, the Court grants Upsher-Smith's motion to compel in that Fifth Third shall, on or before April 27, 2018, complete its search for procedures implementing its anti-money laundering policy that are applicable to the Capital Markets and Commercial Bank lines of business and produce any documents it is able to locate to Upsher-Smith. The remainder of Upsher-Smith's motion to compel documents is denied as moot.

Upsher-Smith asserts that, beginning in October of 2017, it repeatedly sought to depose Jeff Jones, Fifth Third's former compliance director. Upsher-Smith was aware that Jones was no longer employed by Fifth Third, but it asserts that Fifth Third's counsel represented on multiple occasions that he would arrange the deposition and was undertaking to find acceptable dates. (Kerbaugh Decl., Ex. G-I, N, P [Doc. No. 143-7, -8, -9, -13, -15].) Then, on January 30, 2018, less than two weeks before the close of discovery, Fifth Third informed Upsher-Smith that it did not represent Jones, lacked the ability to control or produce him, and therefore would not produce him for deposition. (Kerbaugh Decl. ¶ 7 [Doc. No. 143].) Upsher-Smith contends it has a real need to take the deposition because Jones's testimony could shed light on Fifth Third's compliance policies, its employee training related to the policies, and the extent to which Fifth Third employees complied with the policies. On these facts, Upsher-Smith asks the Court to grant it leave to subpoena Jones for deposition even though the deadline for fact discovery has passed.

Fifth Third counters that Upsher-Smith has not demonstrated a need for Jones’ deposition because Jones retired from the bank five years ago, before the fraudulent transfers at issue in this case, and therefore likely has no knowledge of relevant facts. (Walton Decl. [Doc. No. 158].) It also argues that it never prevented Upsher-Smith from subpoenaing and deposing Jones on its own, and therefore should not be held accountable for Upsher-Smith's failure to arrange the deposition. Finally, Fifth Third argues that it offered to make its current compliance officer available for deposition in lieu of Jones after the discovery cut-off. Fifth Third asserts that Upsher-Smith accepted this offer but later backed out, although there are no emails or letters in the record that memorialize the offer, the acceptance, or the rescission. (Walton Decl. ¶ 14 [Doc. No. 158]; Def.’s Mem. Opp'n Mot. Compel at 5 [Doc. No. 157].) In any event, Fifth Third does not deny that it told Upsher-Smith it would assist in arranging the Jones deposition, or that the first time it clearly communicated to Upsher-Smith that it would not produce Jones for deposition was at the end of January. Furthermore, during the months that Fifth Third counsel was promising to look for available dates, it does not appear that counsel ever told Upsher-Smith that Jones did not have relevant information..

*11 The Court will grant the motion for leave to depose Jones after the close of fact discovery. Under the federal rules, a case management schedule “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4); see also LR 16.3(b). “The primary measure of good cause is the movant's diligence in attempting to meet the [scheduling] order's requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008). Here, over a roughly four month period beginning in October of 2017, Upsher-Smith sought Fifth Third's assistance in arranging for the deposition of Jeff Jones on no less than six occasions. (Pl.’s Ex. G [Doc. No. 143-7]; Pl.’s Ex. H [Doc. No. 143-8]; Pl.’s Ex. I [Doc. No. 143-9]; Pl.’s Ex. N [Doc. No. 143-13]; Pl.’s Ex. P [Doc. No. 143-15]; Pl.’s Ex. T [Doc. No. 143-19].) In response, Fifth Third indicated that it would assist Upsher-Smith in arranging the deposition. While it did not affirmatively instruct Upsher-Smith not to move forward with a subpoena, its representations of assistance certainly suggested a subpoena would not be needed. Fifth Third did not clearly tell Upsher-Smith it would not and could not produce Jones for deposition until it was too late for Upsher-Smith to take matters into its own hands. And although Fifth Third now argues in conclusory terms that Jones is “not likely” to have relevant information, there is no declaration to that effect, nor does Fifth Third demonstrate by declaration or otherwise that its current compliance officer has as much relevant information as Jones would.

On these facts, the Court is satisfied that Upsher-Smith was diligent in attempting to take the deposition before the discovery deadline had passed, and should be allowed to take it now. Upsher-Smith is instructed to move ahead promptly to subpoena Jones, and to use its best efforts to complete that deposition on or before May 18, 2018.

III. Upsher-Smith's Motion for Protective Order

Upsher-Smith moves for a protective order to prevent Fifth Third from conducting a Rule 30(b)(6) deposition it noticed about three weeks before the close of discovery. In particular, Upsher-Smith argues the Rule 30(b)(6) deposition was not timely sought, and the noticed topics are overly broad and seek information that is irrelevant and cumulative of discovery already produced. Fifth Third initially noticed ten topics for corporate designee depositions. (Pl.’s Ex. R [Doc. No. 143-17].) During the meet and confer process, however, Fifth Third narrowed the scope to the following five topics:

(Def.’s Ex. A ¶ 5 [Doc. No. 161].)

At the hearing, the Court ruled from the bench and granted in part Upsher-Smith's motion for a protective order with respect to Topic No. 2, which pertained to ownership of the claims raised in this lawsuit, although it required Upsher-Smith to produce documents on that subject. (April 4, 2018, Hr'g Min.) What remains for the Court to decide is whether the protective order should be granted with respect to the other four topics.

A. Standard of Review

Under Rule 30(b)(6), a party may name a corporation as a deponent to testify “about information known or reasonably available to the organization.” To do so, the party noticing the deposition must describe the matters for examination with reasonable particularity to allow the corporation to identify the appropriate person to testify. Prokosch v. Catalina Lighting, Inc. 193 F.R.D. 633, 638 (D. Minn. 2000). The corporation must then designate one or more persons to testify on its behalf and may set out the matters on which each person designated will testify. Id.

A party opposing a deposition may move the court for a protective order to prevent the deposition from occurring. See, e.g., Wipers Recycling, LLC, No. 08-cv-5019 (PJS/AJB), 2011 WL 13136272, at *11 (D. Minn. Mar. 21, 2011). For good cause shown, a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters. Fed. R. Civ. P. 26(c)(1)(A)-(D). The moving party bears the burden to establish good cause, Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 954 n. 5 (8th Cir. 1979), and “must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one.” Wendt v. Walden Univ., Inc., No. CIV. 4-95-467, 1996 WL 84668, at *1 (D. Minn. Jan. 16, 1996). In addition to considering the potential harm to the party seeking a protective order, courts also consider “the relative hardship to the non-moving party should the protective order be granted.” General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). Lack of relevance of the topics noticed for deposition may provide “good cause” for a protective order to prevent all or part of the deposition from occurring. Honeywell Int'l Inc. v. ICM Controls Corp., No. 11-CV-569 JNE/TNL, 2013 WL 6169671, at *11 (D. Minn. Nov. 22, 2013); see also Buehrle v. City of O'Fallon, Mo., No. 4:10CV00509 AGF, 2011 WL 529922, at *5 (E.D. Mo. Feb. 8, 2011). The court may also “limit the frequency or extent of discovery ... if it determines that ... the discovery sought is unreasonably cumulative or duplicative.” Fed. R. Civ. P. 26(b)(2)(C)(i). Thus, a protective order may be warranted to prevent a Rule 30(b)(6) deposition on topics that have already been explored and obtained through other discovery methods. Honeywell Int'l Inc., 2013 WL 6169671, at *13. Courts wield broad discretion when deciding when a protective order is appropriate and what protections may be required. May Coating Techs., Inc. v. Ill. Tool Works, 157 F.R.D. 55, 57 (D. Minn. 1994).

B. Discussion

*12 Upsher-Smith first argues that a protective order is warranted because Fifth Third's notice of deposition was untimely. A party seeking to take a deposition must give reasonable written notice. Fed. R. Civ. P. 30(b)(1). “The analysis in determining the reasonableness of notice is necessarily case-specific and fact-intensive.” Peterson v. Union Pac. R. Co., No. 06-CV-3084, 2007 WL 2701268, at *2 (C.D. Ill. Aug. 23, 2007). Here, Upsher-Smith argues the notice was untimely because it was served only 22 days before the date of the deposition, leaving inadequate time for preparation on the broad topics sought. Upsher-Smith further argues notice was not timely because Fifth Third delayed serving it with no apparent excuse. Discovery began in January of 2017, yet Fifth Third did not serve its Rule 30(b)(6) notice until a year later.[8]

The Court concludes that in the circumstances of this case, the Rule 30(b)(6) deposition was not untimely, although the far better practice would have been to serve it sooner. “In the District of Minnesota, there is no explicit guideline, or Local Rule, as to what constitutes reasonable notice.” FLOE Int'l, Inc. v. Newmans’ Mfg. Inc., No. CIV.04-5120 (DWF/RLE), 2005 WL 6218040, at *5 (D. Minn. Nov. 9, 2005). However, some courts have suggested that as little as ten business days is an appropriate benchmark for reasonable notice. Id.; In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 320, 2005 WL 2059327, at *6 (N.D. Ill. 2005); Nieman v. Grange Mut. Ins. Co., No. 11-CV-3404, 2012 WL 5471949, at *3 (C.D. Ill. Nov. 9, 2012). Here, the 22 days’ notice Fifth Third gave Upsher-Smith for the Rule 30(b)(6) deposition, while not generous, was not unreasonable. The Court acknowledges that Fifth Third's initial notice contained ten topics, many of which were broadly sweeping. (Pl.’s Ex. R at [Doc. No. 143-17].) However, during the meet and confer process, Fifth Third substantially narrowed its notice to five fairly specific topics. (Colvin Decl. ¶ 5 [Doc. No. 161].) Further, Fifth Third offered Upsher-Smith the opportunity to push the deposition to a later date if necessary. (Def.’s Ex. 1 at 5.) Finally, the Court has ordered Upsher-Smith to produce documents pertinent to several of the noticed topics. Accordingly, the Court will not quash the Rule 30(b)(6) notice outright on the ground that it was untimely.[9]

The Court turns next to whether a Rule 30(b)(6) deposition on any or all of the topics at issue in this motion would be relevant and proportional to the needs of this case.

*13 The Court found earlier in this Order that documents relating to Upsher-Smith's insurance claims that describe the facts underlying this case are relevant and should be produced. But the Court also found that other information relating to the insurance claim and the settlement thereof is not relevant. Thus, it is not the relationship with the insurer, per se, that is relevant, but the accounts and description of the facts underlying the claims in this case. The Court has also ordered that Upsher-Smith produce documents pertaining to its claims for recovery from any crime victims’ funds. The question presented here is whether it should be permitted to also take a deposition on these subjects.

Fifth Third has taken nine depositions of current and former Upsher-Smith employees in addition to extensive written discovery, so there is no question that it has had ample opportunity to explore the facts underlying this case. Therefore, the Court believes that a deposition on this topic would be cumulative of other discovery and not proportional to the needs of the case, particularly taking into account the factors of 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). Accordingly, the Court at this time grants the protective order with respect to Topic No. 1. However, the Court leaves open the possibility of revisiting the issue if Fifth Third can demonstrate that the facts set forth in the communications with the insurer or the crime victims’ funds are materially different from what Upsher-Smith has previously disclosed in discovery and that a deposition is necessary to explore the reason for those differences.

At least written discovery has taken place on the subject matter of Fifth Third's Topic No. 6 as well – the damages claimed by Upsher-Smith in this lawsuit. (See Kerbaugh Decl., Ex. C, Interrog. No. 9 [Doc. No. 143-3].) While the topic is broadly stated, it appears from Fifth Third's response to Upsher-Smith's motion that its principal interest is in exploring what amounts Upsher-Smith has been able to recover from other sources to defray its losses arising out of the fraudulent scheme, such as (but perhaps not limited to) insurance and crime victims’ funds. (Def.’s Mem. Opp'n Mot. Protective Order at 8 [Doc. No. 160].) (“Fifth Third should be permitted to ask Plaintiff's Rule 30(b)(6) witness questions about other recoveries Plaintiff has obtained from other sources relating to the underlying facts.”) Again, as to insurance recoveries, the Court has held that to be irrelevant, and so the Court grants the protective order insofar as Topic No. 6 seeks to inquire on that subject.

As to crime victims’ funds, the Court has ordered Upsher-Smith to produce documents sufficient to show all such recoveries. But there is no assurance the documents would answer all relevant questions on this topic, and parties are not restricted to a single discovery tool in gathering relevant information. In re Potash, No. 3-93-197, 1994 WL 1108312, at *13 (D. Minn. Dec. 5, 1994) (noting that all formal methods of discovery are available unless narrowed by court order). Accordingly, the Court finds Upsher-Smith has not sustained its burden of showing that a deposition on this topic, specifically focused on what recoveries Upsher-Smith has obtained from non-insurance sources, would be cumulative or unduly burdensome. Therefore, the Court denies Upsher-Smith's motion with respect to Topic No. 6. The Court directs the parties, however, to meet and confer about whether there would be a more efficient but still satisfactory means for Fifth Third to obtain the information sought, such as by declaration or sworn interrogatory response.

*14 Upsher-Smith objects to Topic No. 7 on the grounds that the notes taken by attorney Anders Folk during the FBI interview of Christine Hopper constitute a privileged attorney-client communications and attorney work product, and therefore cannot be the subject of a deposition. A protective order may be appropriate to prohibit a party seeking discovery via deposition on topics covered by attorney-client privilege or the work product doctrine. Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129, at *6 (W.D. Mo. Mar. 28, 2011). The burden, however, is on the party claiming the privilege to demonstrate that it applies to the information the party wants to withhold. Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985); Kobluk v. Univ. of Minnesota, 574 N.W.2d 436, 440 (Minn. 1998).

Here, Upsher-Smith offered no factual foundation, in the form of a declaration from Folk or otherwise, to substantiate its position that either protection applies to Folk's notes on the Hopper FBI interview. Its argument on attorney-client privilege did nothing more than cite the Minnesota statute that codifies the privilege: “An attorney cannot, without the consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty ...” Minn. Stat. § 595.02, subd. 1(b). Unquestionably, Folk is an attorney. But the notes were not of his own interview with Ms. Hopper, but of an interview conducted by a third party, the FBI. There is no declaration to support the claim that the notes contained “any communication made by the client to the attorney” or that they contained “the attorney's advice given thereon.” Accordingly, the Court overrules Upsher-Smith's objection that the notes are covered by the attorney-client privilege.

Upsher-Smith's argument on attorney work product was somewhat lengthier, but the factual foundation was just as sparce. Documents prepared in anticipation of litigation or in preparation for trial are not discoverable under the qualified privilege for attorney work product. Diversified Indus., Inc., 572 F.2d at 601; Fed. R. Civ. P. 26(b)(3). Upsher-Smith asserts in its memorandum that Folk took notes and made observations regarding Hopper's testimony, that the notes reflect Folk's mental impressions of the interview, and potentially highlight important facts about Hopper's interview which might be relevant to the company's legal strategy. Yet it submitted no declaration from Folk (or anyone else) attesting to that description. But Upsher-Smith's argument suffers from an even more fundamental deficiency: nothing on the record before this Court shows that he attended the interview and prepared the notes because of the prospect of litigation. Diversified Indus., Inc., 572 F.2d at 604; see also 8 Wright & Miller, Federal Practice and Procedure: Civil 3d § 2024 at 500-02. Instead, Upsher-Smith offers only the ipse dixit argument that “Folk was serving as counsel for the purpose of conducting an investigation into the fraud,” and therefore his notes of an FBI interview with his client's employee are “prototypical, protected work product.”

In Diversified, the Eighth Circuit found that a report prepared by a law firm was not entitled to protection on the basis of the work product doctrine where the party had not demonstrated that the work was done in preparation for any trial or in anticipation of litigation. The court came to that conclusion notwithstanding that the report “contained the mental impressions, conclusions and opinions of those who wrote it, including their interpretations of what the interviews with individuals revealed,” and notwithstanding that “all parties concerned must have been aware that the conduct of employees of Diversified in years past might ultimately result in litigation of some sort in the future.” Diversified Indus., Inc., 572 F.2d at 604. The Court concluded the law firm's investigation

Id. at 604.

Here, even if one assumes for the sake of argument that Upsher-Smith anticipated litigation from the moment it learned of the fraud, it has submitted no evidence of what, if any, role Folk had with regard to the company's preparation for litigation and whether his notes of the Hopper interview were prepared in that connection. As the Diversified case shows, anticipation of litigation alone is not sufficient; there must be also be a showing that the allegedly protected document was actually prepared because of it. It was Upsher-Smith's burden to make that showing in support of its motion for a protective order, and it failed to do so. Accordingly, the Court denies the motion for protective order as to Topic No. 7. As it did with Topic No. 6, however, the Court directs the parties to meet and confer about whether there would be a more efficient and potentially less intrusive means for Fifth Third to obtain the information sought, such as by production of the notes themselves.

Finally, Upsher-Smith argues that Topic No. 8, which seeks information on the “status and result of any investigation into the crimes underlying the lawsuit,” is also duplicative of other discovery to which Upsher-Smith has already responded. (See Kerbaugh Decl., Ex. B, Request Nos. 7 and 8 [Doc. No. 143-2].) Fifth Third does not respond to that argument. Indeed, it does not directly address Topic No. 8 at all other than to include it in its narrowed list of topics. (Def.’s Mem. Opp'n Mot. Protective Order at 3.) The only discussion in Fifth Third's memorandum that pertains in any way to the criminal investigation relates to its interest in finding out what former Upsher-Smith employee Christine Hopper told FBI authorities when they interviewed her about the fraudulently obtained currency transfers. (Id. at 2-3 (listing four “critical issues relating to otherwise basic topics”); Id. at 14-17 (discussing the need for the notes taken by Upsher-Smith counsel during the Hopper FBI interview).) The Court has addressed that topic in the preceding discussion. Perhaps Fifth Third had something else in mind with this topic, but in the absence of any explanation about what that is, and why the discovery already taken has not been adequate to address it insofar as it is relevant to the claims and defenses in this case, the Court will grant Upsher-Smith's motion for a protective order as to this topic.

IV. Motion for an Extension of Time

At the hearing, the Court suspended the April 16, 2018, deadline to file dispositive motions. (April 4, 2018, Hr'g Min.) Fifth Third now moves for a modification of the scheduling order to allow the parties sufficient time to conduct expert depositions prior to the filing of Daubert motions, and suggests that an early June deadline would be appropriate. Fifth Third notes that a total of five experts have been disclosed, three from Upsher-Smith and two from Fifth Third. Despite its best efforts, Fifth Third claims it has not been able to obtain deposition dates for Upsher-Smith's experts even though it asked for them in January, and that the current deadline is therefore unworkable. (Ex. F at 106 [Doc. No. 128].) Upsher-Smith argues that good cause exists for a two month modification of the schedule because it is not practical for the parties to prepare for, schedule, and depose five expert witnesses in shorter period of time. The Court agrees additional time is required, particularly because under Local Rule 7.1(c)(6), motions to exclude experts under Federal Rule of Evidence 702 and Daubert must be filed by the deadline for dispositive motions. That being said, the parties can and should be able to substantially prepare their dispositive motions, including Daubert motions, based on the fact discovery and written expert disclosures. Thus, there should be little left to do to finalize the motions shortly after expert depositions have been completed. Accordingly, the Court will extend the deadline to file dispositive motions to June 1, 2018, and expects the parties to work together quickly and cooperatively to schedule all expert depositions in view of that deadline.

V. Upsher-Smith's Request for Attorneys’ Fees

*16 Upsher-Smith requests that it be awarded attorney's fees and expenses incurred in bringing its motion to compel and responding to Fifth Third's motion to compel. If the court grants a motion to compel, it must “require the party or deponent whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion,” unless (1) the movant filed the motion before attempting in good faith to obtain the information from the resisting party, (2) the opposing party was substantially justified in resisting disclosure, or (3) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). Conversely, if the court denies a motion to compel, it must “require the movant ... to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion,” unless “the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). If the court grants in part and denies in part a motion to compel, the court may ... apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Thus, “Rule 37 limits the discretion of a court to order sanctions with the requirement of Rule 37(b)(2) that the sanction be ‘just’ and relate to the claim at issue in the order to provide discovery.” Sierra Petroleum Co. v. Beaudry Oil & Serv., Inc., No. 08-6466 ADM/SER, 2011 WL 13199285, at *7 (D. Minn. Mar. 7, 2011).

Upsher-Smith raises several arguments in support of its motion for sanctions. First, it alleges that sanctions are warranted because Fifth Third's motion improperly cited proposals that Upsher-Smith had made during the meet and confer process in an effort to reach a “global” resolution of the parties’ cross-discovery disputes. Upsher-Smith contends those proposals were offers of compromise under Federal Rule of Evidence 408, and that it was a “violation” of Rule 408 for Fifth Third to bring them to the attention of the Court in its moving papers.[10] For this reason alone, Upsher-Smith argues that the Court should sanction Fifth Third and require it to reimburse Upsher-Smith's costs in connection with the parties’ motions to compel.

The Court disagrees. Rule 408 is a rule governing the admissibility of evidence at a hearing or trial, and primarily speaks to whether an offer of compromise may be admitted to prove the validity of a claim or defense. It does not impose an obligation of confidentiality. It does not even prohibit a party from offering such evidence or a Court from admitting it, depending on the purpose for which it is introduced.[11] The Court is aware of no precedent suggesting that it has any application whatsoever to discovery disputes. Indeed, as matter of policy, the Court would be loath to endorse such an approach, as the robustness of the meet and confer process, the good faith of the parties’ efforts to work out a compromise before coming to Court, and the ideas considered and rejected or not considered at all may be highly relevant to the Court's management of the discovery process and its determination of the motion. Furthermore, Fifth Third did not misrepresent the parties’ discussions or argue that Upsher-Smith was somehow bound by the “gives” of its compromise proposal when the parties failed to reach a global resolution that included the “takes” as well. The Court is, in any event, quite capable of understanding the context of the meet and confer process, including that a party may be willing to undertake an added burden or give up some additional scope on relevance in exchange for the quid pro quo of a global resolution without conceding those would be appropriate rulings if made à la carte.

*17 Accordingly, Upsher-Smith's attempt to characterize its proposed compromise of the discovery disputes as “subject to Rule 408” was equivalent to “calling a tail a leg,” and in any event did not preclude Fifth Third from fairly characterizing the parties’ attempts to resolve the disputes it its motion papers. Fifth Third's conduct in doing so was neither a “violation” nor a sanctionable offense.

Second, Upsher-Smith argues that Fifth Third should be required to pay Upsher-Smith's costs for the latter's motion to compel because Fifth Third failed to comply with this Court's previous order to produce “documents sufficient to show the policies, procedures, processes, and controls applicable to wire transfers involving foreign currency that were in effect for 2013-2014, the period during which the transactions at issue in this litigation took place.” (Nov. 17, 2017, Min. Entry [Doc. No. 113].) In response to that order, Fifth Third produced its Wire Policy and its Anti-Money Laundering (AML) Policy. Upsher-Smith concluded that the documents produced were general in nature and that each referenced and incorporated numerous other policies, procedures, and guidelines, which Fifth Third had not produced. According to Upsher-Smith, these related policies and guidelines were necessary to meaningfully understand the overall policy at Fifth Third and how it was supposed to be implemented within the Foreign Exchange Group. As such, Upsher-Smith argues they fell squarely within the ambit of the Court's order to produce documents “sufficient to show the policies, procedures, processes, and controls applicable to wire transfers involving foreign currency” during the relevant time frame, as required by the Court's order. But for this failure, Upsher-Smith contends, its subsequent motion to compel would not have been necessary.

While this is a closer question, the Court does not find the present circumstances warrant an award of costs to Upsher-Smith. Fifth Third was less diligent than it should have been in searching for and producing documents in response to the Court's November order and Upsher-Smith's subsequent requests. At the same time, the circumstances suggest there may have been some difference of opinion regarding the scope of the November order, and some degree of “talking past each other” in counsel's exchanges on the subject and in connection with the completeness of Fifth Third's response to the supplemental requests. Furthermore, the Court has ruled in part in favor of and against each party on their respective motions. “Where, as here, the parties have vigorously debated the merits of the disputed discovery requests in a competing motion to compel and motion for protective order and the Court both compels and limits discovery ... the only fair outcome is that the parties bear their own fees and costs.” Korbel v. Extendicare Health Servs., Inc., No. 13-CV-2640 (SRN/SER), 2015 WL 13651194, at *10 (D. Minn. Jan. 22, 2015).

Therefore, the Court denies Upsher-Smith's request for fees and expenses in connection with these motions.

Accordingly, based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

For example, Upsher-Smith's response to Request No. 7 begins, “Upsher objects to this Request to the extent that it seeks information that is, or documents that are, protected by attorney-client privilege, the work product doctrine, the self-critical analysis or investigatory privilege, or other applicable privileges or immunities. Upsher objects to this Request to the extent that it is unduly burdensome, overly broad, oppressive and/or unlikely to lead to the discovery of admissible evidence. Upsher objects to this Request to the extent that it is vague, ambiguous, overly broad and not identified with reasonable particularity. Upsher objects to this Request to the extent that it seeks information that is, or documents that are, not within its possession, custody or control. Upsher objects to this Request to the extent that it seeks information that is, or documents that are, unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient, less burdensome or less expensive. Upsher objects to this Request to the extent that it seeks confidential or proprietary information.” (Walton Decl., Ex. A at 4-30.) Upsher-Smith's interposed nearly identical objections to Requests Nos. 1, 8, 24, and 25.

It is not clear to the Court when that position was plainly articulated, although the specifics of Upsher-Smith's position that it viewed communications with its insurer and the victims’ fund as privileged were not provided to Fifth Third until November 2, 2017, when Upsher-Smith first produced a privilege log.

Request No. 1 is so broadly framed that it is no more compliant with Rule 34 than is the response. Requests for documents must be stated with “reasonable particularity,” Fed. R. Civ. P. 34(b)(1)(A). The Court's Pretrial Scheduling Order also admonishes the parties that “requests must be tailored and specific to the issues, and general requests for ‘all relevant documents’ do not meet these criteria.” [Doc. No. 54 at 4.] Since the other four requests are more focused and cover the categories of documents sought by this motion, the Court denies Fifth Third's motion insofar as it seeks to rely on Request No. 1.

Upsher-Smith additionally argues that the motion to compel should be denied on the ground that producing insurance-related documents would be unduly burdensome because it would force Upsher-Smith to violate its confidentiality agreement with its insurer, and because the attorneys involved in pursuing Upsher-Smith's insurance claim have both retired. However, Upsher-Smith did nothing to support, describe or quantify those burdens, nor are the burdens self-evident. Therefore the Court gives no weight to this objection.

Upsher-Smith is reminded that if it withholds such additional information as irrelevant now, it should not expect to be able to rely on it later if it decides that information would have been helpful to contest the admissibility of, or explain or put into context, its communications with its insurer about the facts underlying the loss.

The excerpt from the insurance contract supplied by Upsher-Smith provides that “[t]he insured must transfer to the Company all of the Insured's rights of recovery against any person or organization for any loss the insured sustained and for which the company has paid or settled. The insured must also do everything necessary to secure those rights and do nothing after loss to impair them.” (Ex. W at 3.)

That the insurance company may view a document as confidential, whether by contract or otherwise, is not a basis for withholding the document; Upsher-Smith cannot in one breath claim a common legal interest with the insurer in pursuing recovery from Fifth Third and in the next claim its hands are tied with regard to production of documents the Court has found to be relevant and discoverable because it owes the insurer a duty of confidentiality. Any such duty can be met by producing the documents in accordance with the Protective Order already entered in this case.

Upsher-Smith posits that the real motivation underlying the belated notice was that Fifth Third did not participate in good faith in the parties’ unsuccessful private mediation in January 2018, and then inappropriately based its notice on information and insight gained through the mediation. The Court expects and assumes that both parties and their counsel participated in good faith in the mediation. But, as the Court was not involved in it, the Court cannot and will not speculate about a link between the mediation and the timing of Fifth Third's Rule 30(b)(6) notice beyond the natural possibility that it chose to defer the expense of preparing for and taking a Rule 30(b)(6) deposition until after the mediation in the hope of avoiding that expense altogether.

Nevertheless, in considering whether to grant a protective order as to any particular topic, the Court can and will take into account how long the case has been pending, what discovery has already been conducted and the extent to which it already addressed the topic, what opportunities there were to conduct the discovery earlier, and whether the incremental value of the additional discovery sought warrants further disruption of the Court's scheduling order in this case.

In January 2018, after Upsher-Smith objected to Fifth Third's notice of Rule 30(b)(6) deposition, the parties engaged in discussions regarding the potential resolution of all outstanding discovery disputes on a global basis. Counsel for Upsher-Smith stated in an email conveying its proposal that “we consider our communication on these issues to be 408—meaning that whatever each of us has offered to do is inadmissible.” (Kerbaugh Decl., Ex. A [Doc. No. 156-1].) Upsher-Smith contends this made clear that the discussions were to be treated as confidential, inadmissible, Rule 408 settlement communications.). Subsequently, Fifth Third submitted the email exchange in support of its Motion to Compel. (Def.’s Ex.’s I-L at 112-130 [Doc. No. 128].)

By contrast, Local Rule 16.5(d) establishes strict obligations of non-disclosure on participants in a mediation. While the parties did participate in a mediation in November 2017, Upsher-Smith does not argue, not does it appear, that the proposals for resolution of the discovery disputes were made during the course of that mediation.