*1 This matter is before the Court on Plaintiff's Motion to Compel and For Rule 37 Sanctions [Doc. No. 82] and Defendant's Motion for a Protective Order Barring Deposition of Adam Newsome [Doc. No. 90]. For the reasons that follow, Plaintiff's motion is granted in part, denied in part, and entered and continued with respect to the sanctions request. Defendant's motion is denied.

Plaintiff's complaint alleges violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. § 14/1 et seq., on behalf of a purported class. Plaintiff asserts that Defendant violated BIPA through its use of biometric timeclocks. The Court will not recite the entire procedural history of the case. As pertinent here, after the stay of the case was lifted on February 16, 2022, Defendant provided written responses and objections to Plaintiff's Requests for Production on March 16, 2022. On March 30, 2022, following a prior motion to compel filed by Plaintiff, the Court ordered Defendant to fully respond to all of Plaintiff's written discovery requests by April 6, 2022. [Doc. No. 66 at 5-6.] Defendant missed that deadline and then filed a motion seeking clarification of whether the Court's directive included electronically stored information. The Court answered that question in the affirmative and ordered Defendant to fully comply with all outstanding discovery requests by April 22, 2022. [Doc. No. 69.] Defendant thereafter made a supplemental production of documents by that deadline. The parties then engaged in numerous e-mail exchanges regarding discovery issues between April 27, 2022 and May 3, 2022. The parties held an hour-long meet-and-confer on May 6, 2022, during which the parties worked out at least some discovery issues and Defendant agreed to produce additional documents by May 13, 2022. Defendant did not produce any additional documents by that date and Plaintiff filed his instant motion to compel on May 16, 2022. On the same date, Plaintiff noticed the deposition of Adam Newsome, Lazer Spot's CEO.

Plaintiff now seeks an order compelling Defendant to produce documents responsive to Plaintiff's Requests for Production Nos. 10, 14, 15, and 23; produce all responsive electronically stored information; and produce Mr. Newsome for deposition. Plaintiff also seeks sanctions. On the flipside, Defendant moves for a protective order barring Mr. Newsome's deposition. The Court will address the disputes discovery issues below in turn.

I. PLAINTIFF'S MOTION TO COMPEL

A. Local Rule 37.2

As an initial matter, Defendant argues that Plaintiff's motion to compel should be denied because Plaintiff failed to adequately meet and confer as required by Local Rule 37.2. The Court rejects that contention. As set forth above, the record reveals that the parties exchanged numerous e-mails on the disputed discovery issues and engaged in an hour-long meet and confer. Plaintiff justifiably filed his instant motion after Defendant again missed one of its self-imposed deadlines for producing additional documents. Though Defendant apparently thinks the discovery conferrals should have continued indefinitely, “Local Rule 37.2 was not meant to provide for an endless stream of discussions between counsel on discovery disputes.” Cage v. Harper, No. 17-CV-7621, 2020 WL 1248685, at *21 (N.D. Ill. Mar. 16, 2020). The Court finds that the key requirements of good faith discussions and communications were met here. See id. Accordingly, the Court will move on to the merits of Plaintiff's motion to compel.

B. Request for Production No. 10

*2 Plaintiff's Request for Production No. 10 asks Defendant to produce: “Documents Identifying the total number of Proposed Class Members within the Relevant Time Period.” [Doc. No. 82-3 at 6.] As stated in Defendant's response brief, since Plaintiff filed his instant motion to compel, Defendant has now “provided Plaintiff with a June 7, 2022 declaration regarding class size and produced records identifying the Lazer Spot employees (by position ID number only) who used an ADP In-Touch time-clock in Illinois.” (Def.’s Resp. at 8.) The Court finds that Defendant's submission in that regard sufficiently supplies Plaintiff with the information he seeks via Request for Production No. 10. Furthermore, in his reply, Plaintiff does not contend that he needs more information to determine the total number of class members. Accordingly, Plaintiff's motion to compel as to Request for Production No. 10 is denied as moot.

C. Request for Production No. 23

Plaintiff's Request for Production No. 23 asks Defendant to produce: “All Documents reflecting any and all reservation of rights regarding actual or potential denial of coverage for any claim related to this case issued to Defendant by any entity that may be liable to satisfy all or part of any judgment that may be entered in this case.” [Doc. No. 82-3 at 9.] Despite raising objections to this request, Defendant has now “provided Plaintiff with a copy of the reservation of rights letter issued by Lazer Spot's insurer.” (Def.’s Resp. at 13.) In his reply, Plaintiff does not contend that Defendant's production in that regard is deficient. Accordingly, Plaintiff's motion to compel as to Request for Production No. 23 is denied as moot.

D. Request for Production No. 14

Plaintiff's Request for Production No. 14 asks Defendant to produce: “Any and all Correspondence Related to BIPA, including, but not limited to, Defendant's compliance therewith, during the Relevant Time Period.” [Doc. No. 82-3 at 7.] Defendant has objected to this request as calling for a legal conclusion and documents held by third parties and on grounds of privilege, vagueness as to timeframe, and proportionality. [Id.] This Court previously ruled that Defendant had waived its objections by failing to timely respond to discovery. [Doc. No. 66 at 4.] At this juncture, irrespective of whether Defendant's objections were waived, and in light of the unquestionable relevance of the requested documents, the Court now overrules Defendant's objections to Request for Production No. 14, privilege excepted. Accordingly, within 14 days of this order, Defendant must produce all documents within its possession, custody, or control that are responsive to Request for Production No. 14, including any documents it previously withheld on the basis of its now-overruled objections. If Defendant determines that no additional responsive documents exist, it must provide Plaintiff with a memorialization to that effect.

As an additional issue, Defendant states in its response brief that though it is “willing to produce responsive documents to this request,” it wants to make sure that “by responding to Plaintiff's request, Lazer Spot [is] not admitting that the InTouch timeclocks at issue collected biometric information or were subject to BIPA.” (Def.’s Resp. at 10.) The Court will assuage Defendant's fear in that regard and now finds that Defendant will not waive any defenses by producing documents in response to Request for Production No. 14.

E. Request for Production No. 15

Plaintiff's Request for Production No. 15 asks Defendant to produce: “Any and all Correspondence by and between Defendant and/or any other third-party Related To any and all Biometric Device and/or users’ Biometric Identifiers or Biometric Information.” [Doc. No. 82-3 at 7.] Defendant has objected to this request as calling for documents held by third parties and on grounds of privilege, relevance, vagueness as to timeframe, and proportionality. [Id.] Again, irrespective of whether Defendant waived its objections, and in light of the unquestionable relevance of the requested documents, the Court now overrules Defendant's objections to Request for Production No. 15, privilege excepted. Accordingly, within 14 days of this order, Defendant must produce all documents within its possession, custody, or control that are responsive to Request for Production No. 15, including any documents it previously withheld on the basis of its now-overruled objections.

*3 It is possible that Defendant is not in possession of any additional responsive documents. In its response brief, Defendant states that it has by now produced “communications between Lazer Spot and ADP – who supplied the InTouch timeclocks at issue in this lawsuit,” including “communications regarding Lazer Spot's adoption and use of the InTouch timeclocks, technical specifications for the InTouch timeclocks and ADP's timekeeping products, and troubleshooting issues that arose during installation of the InTouch timeclocks.” (Def.’s Resp. at 11.) Defendant further states that it has “also produced communications with @ccess Wireless Data Solutions and Verizon pertaining to wireless connections for the InTouch timeclocks.” (Id. at 12.) In any event, if Defendant determines that no additional responsive documents exist, it must provide Plaintiff with a memorialization to that effect.

F. Electronically Stored Information

On April 13, 2022, the Court made clear to Defendant that its duty “to respond to outstanding discovery requests also included ESI.” [Doc. No. 70 at 1-2.] The Court further ordered Defendant to “fully comply with outstanding discovery requests by April 22, 2022.” [Id. at 3.] Despite this clarification and directive, on May 12, 2022, Defendant's lead counsel, Eric Samore, admitted in an e-mail to Plaintiff's counsel that he “was not involved in the ESI methodology and consequently not prepared to discuss with [sic] that topic” during the parties’ May 6, 2022 meet-and-confer. [Doc. No. 83-1 at 2.] The Court finds it extremely troubling that Defendant's lead counsel did not see it necessary to involve himself in Defendant's ESI search methodologies whatsoever even after the Court's April 13, 2022 order. That fact informs the Court's analysis of ESI issues herein.

Defendant states in its response brief that it has already produced “all free standing electronic documents that it could find with a reasonable search – including electronically stored documents in a folder.” (Def.’s Resp. at 3.) It is entirely unclear to the Court what that cryptic statement means exactly, and Defendant does not provide any further informative elaboration. In any event, it is apparent that Defendant's initial ESI searches (of “free standing” ESI “in a folder”) were insufficient. Defendant admits that at the parties’ May 6, 2022 meet-and-confer, Plaintiff's counsel raised a “concern that no emails had been produced after January 8, 2016” which “triggered further communications between defense counsel and Lazer Spot” and it “became evident that there had been a miscommunication between Lazer Spot and defense counsel regarding which custodians Lazer Spot had previously searched.” (Def.’s Sur-Reply at 2.) Defendant states that thereafter “in early June” Lazer Spot “decided to conduct additional searches with new custodians and additional search terms.” (Id.) Defendant has admitted that the additional searches uncovered “an ADP alert [e-mail] regarding the need to implement procedures to ensure compliance with the Illinois law,” a document Defendant has now produced to Plaintiff. (Def.’s Resp. at 11.) Plaintiff makes much of this e-mail in his reply brief, describing it as “the most important document produced by Defendant to date.” (Pl.’s Reply at 7.) However, Defendant is correct that the ADP e-mail is in the nature of a “blast e-mail” and, according to Defendant, the e-mail was received by a lay employee. In any event, the Court agrees with Defendant that the ultimate factual significance of the ADP e-mail is a question for another day. At this juncture, the Court believes the ADP e-mail is most significant to the extent it reveals the apparent shortcomings of Defendant's ESI searches to date.

In adjudicating ESI issues for purposes of Plaintiff's instant motion, the Court is hamstrung by the fact that Defendant has not provided any fulsome explanation of the ESI methodologies it has already employed. Given Defendant's lack of any real explanation in that regard, the Court is not now in a position to rule on the sufficiency of Defendant's ESI searches. Though it is not Plaintiff's fault, granting Plaintiff's request that Defendant be compelled to “produce all responsive ESI” would be meaningless since it remains unclear what ESI search efforts Defendant has already undertaken and whether it is holding back any documents. And, Defendant is correct that Plaintiff has not requested any ESI search methodologies in particular. The parties evidently failed to enter into any ESI protocols as part of the discovery planning process.

*4 Under the circumstances, the Court believes the best solution is to require the parties to meet and confer specifically on the topic of ESI in an effort to resolve any differences they may have. The parties are ordered to meet and confer concerning ESI within 14 days of this order. In conferring, Defendant shall fulsomely explain its ESI search methodologies. To the extent he intends to remain lead counsel for Defendant, Eric Samore is directed to inform himself of Defendant's search methodologies and to personally participate in the ESI conferrals with Plaintiff's counsel. Consistent with the rulings above, to the extent the parties’ conferrals lead Defendant to run additional ESI searches, Defendant shall promptly produce any newly-found documents responsive to Plaintiff's Requests for Production Nos. 14 and 15.

In providing this second chance to do what should have been done, the Court directs counsel to Rule 26(g)(1)(A) of the Federal Rules of Civil Procedure. That provision requires that an attorney responding to a discovery request certify by signature that, “after a reasonable inquiry,” the disclosure is to the best of the attorney's knowledge complete and correct. An attorney's duty of representation would necessarily extend to a working understanding of electronic discovery, or at the very least, the employment of an individual that has that understanding and could assist counsel in exercising the competent representation of his client. Given the record of production in this case, the Court will require an additional declaration or affidavit from defense counsel as to the efforts undertaken to determine whether responsive ESI discovery exists and the steps taken to determine its existence and ultimate production. In other words, the Court is ordering defense counsel to advise the Court on what diligence was undertaken in order to comply with ESI discovery requests. This declaration or affidavit shall be filed with the Court upon production of ESI discovery to the Plaintiff.

The Court cannot stress strongly enough that it expects the parties to vigorously work through any ESI disputes so as to obviate the need for further Court intervention.

G. Sanctions

As detailed in the Court's prior orders, Defendant's fulfillment of its discovery obligations has been wanting, to say the least. The Court expects Defendant's further discovery conduct to be consistent with its representation that it wants to work through discovery disputes and expects Defendant to fully abide by its discovery obligations going forward. The Court will await the submission of defense counsel's declaration or affidavit before ruling on Plaintiff's request for sanctions. Accordingly, Plaintiff's request for sanctions in entered and continued.

II. DEFENDANT'S MOTION FOR PROTECTIVE ORDER

As an initial matter, the Court pauses to note that though Plaintiff's motion to compel touches briefly on the topic of Adam Newsome's deposition, the Court will consider the propriety of Mr. Newsome's deposition under the rubric of Defendant's motion for a protective order. That is because a “plaintiff is generally entitled to depose fact witnesses who possess non-privileged information directly related to, or that may reasonably lead to, any matter bearing on his claim.” Brockway v. Veterans Admin. Healthcare Sys., No. 3:10-CV-719, 2011 WL 1459592, at *2 (D. Conn. Apr. 15, 2011). Furthermore, as elaborated upon below, a party resisting a duly noticed deposition generally has the “burden to demonstrate good cause for precluding the deposition.” Sauer v. Exelon Generation Co., LLC, 280 F.R.D. 404, 407 (N.D. Ill. 2012).

As stated above, Mr. Newsome is Lazer Spot's CEO. Plaintiff sent a notice for his deposition on May 16, 2022. Defendant has resisted producing Mr. Newsome. However, the record reflects that Mr. Newsome did involve himself in (and was enthusiastic about) the implementation of the biometric timeclocks at issue. Defendant's relatively small document production to date has included an e-mail chain from December 2015 that included Mr. Newsome. On December 10, 2015, Deanna Fausett, Lazer Spot's Assistant Controller, sent an e-mail to Mr. Newsome, along with other managers and executives, stating that “[u]ntil employees are pushed to use the new clocks they will not get on board with this.” [Doc. No. 93 at 4.] In a follow-up e-mail to other personnel, Ms. Fausett expressed her belief that “employees are hesitate [sic] to get on board and the management is not supporting it either.” [Id. at 3.] Upon being forwarded Ms. Fausett's e-mail, Mr. Newsome responded to the group: “Phil – what the fuck is their issue? They need to get on board and start a damn cheerleading section for ADP. Mike – you better get your outfit on too. I am tired of this kickback and non commitment.” [Id.]

*5 In resisting Mr. Newsome's deposition, Defendant argues, in sum, that an “apex” deposition is inappropriate here because Mr. Newsome “does not have unique personal knowledge regarding the matters in dispute” and his deposition “would be duplicative of at least three other depositions.” (Def.’s Mot. at 1.) Defendant's arguments tracks the pertinent standard, which holds that “courts may protect high-level executives from being deposed when any of four circumstances exist: (1) the official has no unique personal knowledge of the matter in dispute; (2) the information can be garnered from other witnesses or (3) other discovery methods; and (4) sitting for the deposition would impose a hardship in light of the officer's other duties.” Little v. JB Pritzker for Governor, No. 18 C 6954, 2020 WL 868528, at *1 (N.D. Ill. Feb. 21, 2020) (citations and internal quotations omitted). However, “[t]he party seeking protection from discovery bears the burden of presenting ‘a particular and specific demonstration of fact’ as to the need for that protection.” City of Rockford v. Mallinckrodt ARD, Inc., No. 17 CV 50107, 2020 WL 1675593, at *2 (N.D. Ill. Apr. 6, 2020) (citations omitted). Furthermore, “completely prohibiting a deposition is an extraordinary measure.” Nucap Indus. Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 WL 6059770, at *4 (N.D. Ill. Dec. 7, 2017) (citation omitted). Accordingly, “[a] strong showing is required before a party will be denied entirely the right to take a deposition.” City of Rockford, 2020 WL 1675593 at *2. With respect to the strong showing required, crucially, courts have specifically held that the burden of making a particular and specific demonstration of fact warranting a protective order barring an apex deposition “does not shift simply because a party seeks to prevent the deposition of an apex witness.” Id. (emphasis added). See also Dyson, Inc. v. Sharkninja Operating LLC, No. 1:14-CV-0779, 2016 WL 1613489, at *1 (N.D. Ill. Apr. 22, 2016) (“The burden under the apex principle is supplied by the general rule [that] a party that seeks to avoid discovery in general bears the burden of showing that good cause exists to prevent the discovery.”) (citation and internal quotations omitted).

So, here, it is Defendant's burden to demonstrate that Mr. Newsome's deposition is unwarranted based on the standard set forth above. The Court finds that Defendant has not met its burden. Rather than attempting to proactively meet its burden, Defendant's motion seeks to flip the burden onto Plaintiff. Indeed, Defendant asserts that “Plaintiff has not and cannot justify his request for a so-called ‘apex’ deposition of Lazer Spot's top executive.” (Def.’s Mot. at 1 (emphasis added); see also Def.’s Mot. at 7 (“Plaintiff has not pointed to any evidence that suggests Mr. Newsome has relevant information on [relevant] topics.”); Def.’s Mot. at 8 (“Plaintiff has not disclosed what information he seeks from Mr. Newsome, and how that information ties into the issues at hand.”).) The problem for Defendant is that, rather than having Plaintiff “justify” the deposition, it is Defendant's burden to show that Mr. Newsome lacks unique personal knowledge or that his testimony would be duplicative of other witnesses. Defendant has not offered any declarations along those lines, and instead only states in a conclusory fashion that “it is Ms. Fausett, rather than Mr. Newsome, [who] has the relevant first-hand knowledge of the roll out of the timeclocks in Illinois and is in a much better position to speak to the relevant issues.” (Id. at 9.) Defendant similarly states in blunt terms that “[w]itnesses other than Mr. Newsome are more competent to testify regarding Lazer Spot's implementation of the timeclocks generally and specifically, in Illinois.” (Def.’s Reply at 2.) Such conclusory assertions are insufficient to bar an apex deposition. See City of Rockford, 2020 WL 1675593 at *5 (“Yet, it is Express Scripts’ burden to demonstrate that good cause exists to justify entry of the requested protective order. Express Scripts has not filed affidavits from either executive denying knowledge of relevant facts. Instead, Express Scripts generally argues that they have no relevant knowledge.”).

As part of its burden-flipping approach, Defendant again puts the onus on Plaintiff and contends that “[t]he sole support Plaintiff has cited for [Mr. Newsome's deposition] is a single email exchange.” (Def.’s Mot. at 5.) In light of Defendant's well-documented discovery failings to date, Defendant's tactic of faulting Plaintiff for not citing additional documentary evidence at this juncture is disingenuous at best. The Court agrees with Plaintiff that Defendant's discovery conduct to date is a compelling reason Defendant has not met its burden to show the information Plaintiff seeks from Mr. Newsome is better pursued by Plaintiff through other means. And, ultimately, the Court concludes that Defendant has not met its burden of presenting a particular and specific demonstration of fact as to why Mr. Newsome's deposition should not go forward. See Coleman v. Illinois, No. 19 C 3789, 2020 WL 5752149, at *5 (N.D. Ill. Sept. 25, 2020) (“Defendants have not carried their burden of making a particular and specific factual showing that these depositions should not proceed.”).

*6 Finally, Defendant asserts that “at a minimum, Mr. Newsome's deposition is premature, and courts have recognized that it is logical to depose lower-level employees first.” (Def.’s Mot. at 2.) According to Defendant, “before seeking an apex deposition of Mr. Newsome, Plaintiff should be required to first determine whether any information they believe Mr. Newsome may be able to provide can be obtained through the deposition of lower-level employees, including Ms. Fausett.” (Id. at 10.) The Court rejects that argument, as it again attempts to put the burden on Plaintiff and does not explicate exactly how Ms. Fausett's deposition or any other employee's deposition would make Mr. Newsome's deposition unnecessary. Furthermore, it appears that Ms. Fausett's deposition is scheduled to proceed on July 21, 2022. Plaintiff states that “plain logistics dictate that the deposition of Newsome will not commence until after the July 21, 2022 deposition of Fausett.” (Pl.’s Resp. at 9.) Along those lines, the Court believes having Ms. Fausett's deposition occur first could result in a more efficient deposition of Mr. Newsome. As such, the Court thinks it wise for Ms. Fausett's deposition to proceed before Mr. Newsome's deposition. Furthermore, Plaintiff indicates that he “would agree to limit Newsome's deposition to four hours and complete it via video conference.” (Id. at 10 n.3.) The Court takes Plaintiff up on his suggestion and orders that Mr. Newsome's deposition be conducted remotely and limited to four hours in length.

For the foregoing reasons, Plaintiff's Motion to Compel and For Rule 37 Sanctions [Doc. No. 82] is granted in part, denied in part, and entered and continued as specified herein. Defendant must produce any outstanding documents responsive to Plaintiff's Requests for Production Nos. 14 and 15 within fourteen days of this order. The parties must meet and confer specifically regarding Defendant's electronically stored information within fourteen days of this order and must make substantial efforts to resolve any disputes without involving the Court. As stated above, Defense counsel must also submit to the Court a declaration or affidavit regarding their search for and production of ESI. Finally, Defendant's Motion for a Protective Order Barring Deposition of Adam Newsome [Doc. No. 90] is denied.

SO ORDERED.

ENTERED: