*1 Came on this day to be considered:

On December 15, 2015, the undersigned set the referred motions for a hearing to occur on December 22, 2015.[6] On December 22, 2015, the scheduled hearing occurred.

Plaintiff Nvision Biomedical Technologies, LLC (“Nvision”) filed its “live” complaint under seal on September 9, 2015.[7] The complaint names Jalex Medical, LLC (“Jalex”) as defendant, and alleges five causes of action: (1) fraud, (2) breach of contract, (3) tortious interference with prospective business relationship, (4) misappropriation of trade secrets and intellectual property, and (5) unfair competition.[8] On September 24, 2014, Jalex filed its “live” pleading, a counterclaim also alleging breach of contract as a cause of action.[9] On September 29, 2015, Jalex filed its first amended answer.[10] On October 14, 2015, Nvision filed its answer to Jalex's counterclaim.[11] On September 9, 2015, the District Judge entered a confidentiality and protective order (“CPO”).[12]

On November 25, 2015, Jalex filed a motion to preserve designated status.[13] On December 2, 2015, Nvision filed its response in opposition.[14] On November 30, 2015, Nvision filed a motion to overrule objections and compel discovery responses.[15] On December 3, 2015, Jalex filed its response in opposition, contingent to its motion to strike Nvision's motion.[16]

A. Scope of Discovery

*2 Rule 26 of the Federal Rules of Civil Procedure generally addresses the methods and scope of permissible civil discovery, specifying that certain types of information must be initially disclosed without a discovery request and providing for the discovery of additional matters through such methods as written interrogatories, requests for production of documents, and depositions. With respect to the scope of discovery, Rule 26(b)(1) states:

Discovery must not be “unreasonably cumulative or duplicative.”[18] The Court, even on its own motion, “must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule” when

Parties may obtain additional discovery through written interrogatories, requests for production of documents and other items, depositions, and requests for admission. Rule 33 of the Federal Rules of Civil Procedure provides that a party may serve upon any other party written interrogatories to discover any information relevant under Rule 26(b).[20] Interrogatories are not to exceed twenty-five (25) in number including discrete subparts, unless leave of court is first obtained.[21] Rule 34 of the Federal Rules of Civil Procedure permits discovery of documents in the “possession, custody, or control” of the party upon whom the request is served.[22] A party may depose any person, but there is a presumptive limit of ten (10) depositions by plaintiffs, defendants, or third-party defendants, and a presumptive time limit of one day of seven hours for any deposition by oral examination.[23] Requests for admission allow a party to serve on a party “a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.”[24]

B. Compelling Discovery

Rule 37(a) of the Federal Rules of Civil Procedure provides that, “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery” but the motion “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”[25] An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[26]

*3 The Fifth Circuit requires a party who objects to discovery to specifically show how each request for production is burdensome or irrelevant.[27] A producing party may request a protective order for good cause to narrow the scope of discovery or limit the dissemination of privileged or confidential information to protect the party from “annoyance, embarrassment, oppression, or undue burden or expense.”[28] As a general rule, the producing party must show “good cause” for the issuance of any protective order, with the standard of proof varying with the type of information and protective order sought.[29] Courts have identified several factors the producing party may need to address to show good cause, including:

A producing party must support its claim of good cause through specific facts, not conclusory allegations.[31]

The district court's ruling on a motion to compel will be reviewed only for abuse of discretion.[32] The party seeking review may need to prove prejudice to demonstrate an abuse of discretion.[33]

C. Attorney Client and Work Product Privilege

Rule 501 of the Federal Rules of Evidence provides, in sum, that except as otherwise required by the Constitution or an Act of Congress or in Supreme Court rules, the privilege of a witness shall be governed by “the principles of common law as they may be interpreted by the courts of the United States in the light of reason and experience.”[34] In federal question cases, federal common law privilege applies, as that privilege is interpreted by “reason and experience.”

The attorney-client privilege generally protects all communications between lawyers and clients regarding matters within the scope of the representation. The privilege is said to belong to the client who may assert or waive it.[35] The term “communications” is broad enough to include not only discussions or conversations between lawyers and clients, but also correspondence between lawyers and clients, documents generated during the course of the legal relationship, and other information.

*4 The work product privilege is intended to balance the need for “[m]utual knowledge of all the relevant facts gathered by both parties” to ensure proper litigation with a lawyer's need to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”[36] Work product includes “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs,” and other work done by the lawyer in preparation of her client's litigation.[37] Unlike the attorney-client privilege, the work product privilege belongs to the lawyers and the client, and either may assert it.[38] The privilege is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides that work product is discoverable only if the party seeking discovery “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”[39]

Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a party resisting discovery to notify opponents that it is withholding information subject to the claim of privilege or work product.[40] Rule 26(b)(5) does not attempt to define, for all cases, precisely what information must be provided when a party asserts a claim of privilege or work product protection.[41] But, Rule 26(b) does provide a party can withhold only the information sought to be protected and must serve a response that provides information sufficient to allow the requesting party to evaluate the applicability of the claimed privilege for each item or, if applicable, each group of items withheld.[42] More specifically, the party withholding information under a claim of privilege generally must serve a “privilege log” for the withheld information which, “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”[43] On the one hand, cursory descriptions are not sufficient to support a claim of privilege,[44] but, on the other hand, recording details about the information withheld may be unduly burdensome when, for example, voluminous documents are claimed to be protected that might be reported in categories or classifications and requiring too many details to be set out in the log effectively could force a breach the privilege. The level of detail required to identify the information being withheld on a claim of privilege without breaching the privilege is likely a matter that can only be determined on a case-by-case basis. It has been held that, when practicable, the privilege log should generally include a document number (“Bates number”), author or source, recipient, persons receiving copies, date, document title, document type, number of pages, and any other relevant nonprivileged information.[45] A party must seek a protective order if compiling the information for a privilege log would impose an unreasonable burden,[46] after conferring in an attempt to fashion a way of proceeding satisfactory to all concerned parties.

*5 The proponent of the attorney-client privilege bears the burden of showing the applicability of the privilege to the particular information in question.[47] If a party withholds information on a claim of privilege without notice to the other parties, sanctions can be imposed[48] and the privilege or protection may be waived.[49] Similarly, if privileged documents are not listed in a privilege log or are misrepresented as cumulative or duplicative, the privilege may be waived.[50]

A. Defendant's Motion to Preserve Designated Status of Classified Information

1. summary of arguments

Jalex asks the Court enter an order maintaining the “Attorney's Eyes Only” (“AEO”) designation of certain documents produced to Nvision.[51] Jalex states that it responded to Nvision's written discovery requests on August 24, 2015, and September 4, 2015.[52] Among other documents, Jalex provided

Jalex asserts that Nvision's counsel “urged that in his opinion the designation of AEO on a portion of Jalex's extensive document production to Nvision was not warranted; he asked that Jalex ‘retract or otherwise justify the AEO designations’ to ... a total of more than 2,600 pages of documents.”[54]

For purposes of its arguments, Jalex states the AEO designation has been applied to three categories of documents, and further applies a “core deliverables” or “non-core deliverables” label to each category. Although the briefing on the referred matter suggests the parties are familiar with the labels, “core” and “non-core” deliverables, Jalex's motion does not define them. (Jalex did explain the labels at the December 22 hearing.) The three categories include:

Jalex's arguments in support of the AEO designation do not differentiate between the three categories of documents, but Jalex does acknowledge that “[p]rovided the Core Deliverables are not made available to Nvision, the Non–Core Deliverables could be downgraded from an AEO designation to a Confidential designation.”[56]

*6 In support of its request to uphold its AEO designation, Jalex argues that removing the AEO designation would provide Nvision information collected by Jalex pursuant to its contract(s) with Nvision even though Nvision has not paid the money owed under the contract. More specifically, Jalex asserts that “ ‘Nvision has alleged in its current complaint ... that Jalex breached the [Development Services Agreement (“DSA”) ] ‘by failing and refusing to deliver to Nvision all work product generated by Jalex or the subcontractors ... and by refusing to assign and transfer the rights to any intellectual property to Nvision.’ ”[57] Jalex's counterclaim alleges that “Nvision is in arrears in payments due and owing, totaling $237,321.35 both under the DSA and under a series of subsequent agreements dealing with the Products and with other items and services.”[58] Jalex argues that “until such arrearages are paid, the terms of the DSA—like the terms of the other subsequent agreements—expressly allow Jalex to retain possession and control of any Product IP and Deliverables.”[59]

In response, Nvision argues that an AEO designation is not appropriate for three main reasons. First, the contents of documents at issue are not “unknown” to Nvision and, therefore, do not meet the requirements of the AEO designation as provided in the CPO.[60] “The materials were generated under the direction and instruction of Nvision for Nvision. ... Because Nvision was involved in the development of the so-called “Core Deliverables” and “Non–Core Deliverables,” the AEO designations do not apply.”[61] Second, Nvision argues that “simply marking the materials as ‘Classified’ or ‘Confidential’ prevents Nvision from using those materials for any other purpose,” as the CPO limits the use of classified information provided by any party “solely for the purpose of preparation, trial, and appeals of this litigation and for no other purpose.”[62] Third, Nvision argues Nvision personnel have a

Nvision asks the Court allow Nvision's counsel to disclose the materials to Nvision's personnel as “classified information,” that is, “without restriction except that such materials be used only for this litigation and no other purpose.”[64]

2. analysis

The Court begins its analysis with consideration of the terms of the CPO.[65] The CPO approved by the District Judge on September 9, 2015, sets out and discusses four main designations for information: (1) nonclassified information, (2) classified information, (3) for counsel or attorneys only, and (4) ultrasensitive information.[66] The CPO states that “classified information” includes but is not limited to, “trade secrets, confidential or proprietary financial information, operational data [ ].”[67] The CPO limits the use of “Classified Information” “solely for the purpose of preparation, trial, and appeal of this litigation and for no other purpose, and shall not be disclosed except in accordance with the terms hereof.”[68] The CPO additionally states that documents as “for counsel or attorneys only” if they contain

*7 After careful consideration, the Court concludes that Jalex's motion to preserve designated status should be DENIED with respect to all three categories of documents at issue, regardless of whether they are classified as core or non-core deliverables, and the documents are designated as “classified” under the CPO, not AEO. In the context of the parties’ contractual relationship, the Court agrees with Nvision that the documents at issue are “known” to Nvision within the meaning of the CPO and therefore, are not correctly classified as AEO. Jalex appears to concede all the documents at issue relate to the parties’ contracts that both parties have directly placed in issue through the claims in Nvision's first amended and supplemental complaint and Jalex's counterclaim. Jalex has not rebutted Nvision's proffer that Nvision “was involved in the development” of all the documents at issue because the documents were generated essentially at the request of Nvision when Jalex agreed to perform contractual work for Nvision.

B. Plaintiff's Sealed Motion to Overrule Objections and Compel Discovery Responses

1. summary of Nvision's arguments

On July 22, 2015, Nvision served its first set of written discovery on Jalex.[70] Nvision's objections with regard to Jalex's responses are organized into eight sections, briefly addressed below.

Nvision asks the Court to overrule and strike Jalex's “preliminary statement” and “general objections,” and order that Jalex make full answers to Nvision's discovery.[71] Nvision argues that “general objections have long been disfavored by federal courts and are invalid.”[72]

Nvision asks the Court order Jalex's parent company, Thogus, and affiliate[73] company RP+M, provide answers to Nvision's discovery.[74] Nvision asserts that Jalex has refused to provide discovery requests on behalf of Thogus and RP+M.[75]

Nvision asks the Court to “strike Jalex's superfluous objections, or alternatively overrule Jalex's objections that limit Jalex's responses and order that Jalex fully respond to these document requests.”[76] Nvision argues that Jalex refuses to withdraw its objections to Nvision's requests for production 1, 2, 3, 5, 9, and 11–20, even though Jalex is not withholding documents responsive to these requests.[77] Nvision asserts that

Nvision asks the Court to overrule Jalex's objections to requests for production 4, 15–20, and order that Jalex produce documents responsive to this request.[79] The requests for production and Jalex's responses at issue are as follows:

First, Nvision argues that “Jalex avoids disclosing the work it is doing with the vendors in its own name or on behalf of its affiliated companies, such as Thogus and RP+M.”[95] Second, Nvision asserts, in sum, that these document requests are relevant to Nvision's improper competition and tortious activity claims.[96]

Nvision asks the Court to overrule Jalex's objections to interrogatories 1–3,[97] and order that Jalex supplement its responses.[98] The interrogatories and Jalex's responses at issue are as follows:

Nvision argues that Jalex did not provide complete answers to the interrogatories. Nvision asserts “JALEX omits answering when JALEX started adding the markups, the types of invoices to which markups are applied, how JALEX determines the amount of markup, or when JALEX adds the markups” in its response to interrogatory 1.[108] In its response to interrogatory 2, Nvision argues “JALEX does not address its policy of adding markups to vendor charges at all and only benignly references the proposals (which JALEX characterizes as ‘Agreement’ or ‘Contract’) that addresses ‘actual costs.’ ”[109] Nvision asserts “JALEX's invoices to Nvision do not regularly identify the vendors, the services being provided by the vendors, the quantity of the products provided by the vendors, [or] when the products or services were renders or delivered” in response to interrogatory 3.[110]

Nvision asks the Court to order Jalex to provide full and complete answers under oath to interrogatories 5 and 6.[111] The interrogatories and Jalex's rseponses at issue are as follows:

Nvision asserts that Jalex has refused “to answer the inquiries concerning JALEX's product development program as irrelevant [ ] and affirmatively den[ies] its existence under the cover of [AEO].”[115] Nvision argues these interrogatories are directly relevant to Nvision's claims, and do not invade third-party confidences.[116]

Nvision asks the Court to order Jalex to produce documents in the size and manner the documents are maintained in the ordinary course of business.[117] Nvision asserts that the materials provided in Jalex's document production are out of “chronological sequence” and have been reduced in size.[118] Nvision also states that emails have been separated from email attachments and responses to the emails.[119]

Nvision asks the Court order Jalex to produce the file of Kelmar Global, a private investigator hired by Jalex.[120] Nvision asserts that Jalex previously produced a report from the investigator which “summarizes the public investigator tailing and photographs of Thomas Zink.”[121] Nvision has requested the entirety of the investigator's file, but Jalex has refused to deliver the remainder of the file.[122]

Nvision challenges Jalex's AEO designation to documents JALEX000630–JALEX000755 and JM–009005 through JM–011512 and asks that the designation be disallowed by the Court.[123]

2. summary of Jalex's arguments

On December 3, 2015, Jalex filed its response to Nvision's motion.[124] The response is not organized to correspond to Nvision's motion and does not appear to present responsive arguments to each challenge raised by Nvision. In sum, Jalex's response presents four main arguments. First, Jalex argues that Nvision itself filed general objections.[125] Second, Jalex states, quoting Nvision, that “JALEX is not developing, planning or producing any form of its own implantable spinal device, whether similar or dissimilar to any such device prepare for or marketed by Nvision.”[126] Jalex also states that “there are no ‘policies or practices’ regarding Jalex's use of Nvision's information or materials in the development of any product developed for or on behalf of Nvision.”[127] Third, in response to Jalex's objection that its document production is “scrambled,” Jalex argues that Nvision has not specified the form in which electronically store information is to be produced, as required by FED. R. CIV. P. 34(b)(1)(c),[128] and Jalex is attempting to format and collate Thomas Zink and Melissa Sprang's e-mails, which is expected to be complete in the near future.[129] Fourth, Jalex argues that its investigator's file is protected from disclosure under FED. RULE CIV. P. 26(b)(3)(A) as material prepared in anticipation of litigation or for trial.[130]

3. analysis

*13 The Court has reviewed the submissions of the parties, in addition to hearing argument from the parties during the December 22, 2015 hearing. With respect to Nvision's request to overrule and strike Jalex's “preliminary statement” and “general objections,” the request is DENIED. The record does not show that Jalex withheld any information because of objections, but provided responses subject to the objections. Only limited matters have been referred to the undersigned. Nvision has not demonstrated rulings on admissibility are required at this time. The District Judge will rule on admissibility of the documents at the time they are offered in evidence; Nvision has not explained why an earlier ruling is required.

With respect to Nvision's request that Jalex's parent company, Thogus, and affiliate company RP+M, provide answers to Nvision's discovery, the request is DENIED. Federal Rule of Civil Procedure 34(a)(1) requires that a responding party produce responsive documents that are within their “possession, custody or control.” Documents are deemed to be within the “possession, custody or control” of a responding party if that party either has “actual possession, custody or control” of the documents or if that party “has the legal right to obtain the documents on demand or has the practical ability to obtain the documents from a non-party to the action.”[131] “Rule 34 is broadly construed and documents within a party's control are subject to discovery, even if owned by a nonparty.”[132] The burden, however, is on the party seeking discovery to make a showing that the other party has control over the documents sought.[133] Typically, what must be shown to establish control over documents in the possession of a non-party is that there is “a relationship, either because of some affiliation, employment or statute, such that a party is able to command release of certain documents by the non-party person or entity in actual possession.”[134] To the extent Jalex has possession, custody, or control of non-privileged responsive documents that are documents of Thogus or RP+M, it must produce them and Jalex was understood to agree it would do so at the December 22 hearing. Otherwise, Nvision's motion on this ground is denied.

With respect to Nvision's request the Court “strike Jalex's superfluous objections, or alternatively overrule Jalex's objections that limit Jalex's responses and order that Jalex fully respond to these document requests,” the request is DENIED. As previously stated, the record does not show that Jalex withheld any information because of objections, but has provided responses subject to the objections. Nvision has not demonstrated rulings on admissibility are required at this time, as discussed above.

With respect to RFP 4, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part, and Jalex must produce non-privileged responsive documents relating to Jalex's work for Nvision.

With respect to RFP 15, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part, and Jalex must produce non-privileged responsive documents relating to any policies (not practices) regarding the use of Jalex's customer information or materials in the development of Jalex's new products.

*14 With respect to RFP 16, Nvision's motion is GRANTED in part, Jalex's objections are sustained in part, and Jalex must produce non-privileged responsive documents relating to Jalex's compensation of Nvision for Jalex's use of Nvision's customer information or materials.

With respect to RFP 17, Nvision's motion is GRANTED in part, and Jalex's objections are overruled in part and Jalex must provide non-privileged responsive documents but limited to work Jalex performed for or on behalf of Nvision.

With respect to RFPs 18, 19, and 20, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part and Jalex must provide non-privileged responsive documents relating to Jalex's work for Nvision, and Jalex's services rendered to and on behalf of Nvision, and for Jalex's work relating to interbody fusion devices, cervical plates, pedicle screws, and structurally encoded implant devices (regardless of for whom the work is performed).

With respect to ROGs 1 and 2, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part, and Jalex must supplement its answers to provide non-privileged information regarding policies (not practices) limited to its work for Nvision.

With respect to ROG 3, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part, and Jalex must supplement its answer to provide any further available nonprivileged responsive information.

With respect to ROGs 5 and 6, Nvision's motion is GRANTED in part, Jalex's objections are overruled in part, and Jalex must supplement its answers to provide further nonprivileged information about Jalex's work relating to interbody fusion devices, cervical plates, pedicle screws, and structurally encoded implant devices.

With respect to Nvision's request Jalex produce documents in the size and manner the documents are maintained in the ordinary course of business, the request is DENIED. Jalex has agreed to provide the production in a more accessible format.

With respect to Nvision's request Jalex produce the file of Jalex's investigator, the request is DENIED. The attorney work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3) and protects not only materials prepared by a party, but also materials prepared by a representative of a party, including attorneys, consultants, agents, or investigators.[135] Nvision has not provided argument or authority to show the investigator's file in question is not properly considered to be work product or that Nvision “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”[136] Nevertheless, Jalex, as the party withholding information under a claim of privilege, must serve a “privilege log” for the withheld information within 21 days of the date of this order.

With respect to Nvision's request that Jalex's AEO designation to documents JALEX000630–JALEX000755 and JM–009005–JM–011512 be disallowed by the Court, the request is DENIED. Nvision has not show that the documents are not included among those at issue in Jalex's motion to preserve designated status of confidential information.

C. Defendant's Sealed Motion to Strike Nvision's Motion to Overrule

1. summary of arguments

*15 Jalex asks the Court to strike Nvision's motion to overrule objections and compel discovery responses.[137] Jalex argues that the motion exceeds the ten page limit for dispositive motions set forth in Local Rule CV–7(d)(3) and the scheduling order.[138] In the alternative, Jalex asks the Court for leave to file and extension of time to file a response that is the same length as Nvision's.[139]

2. analysis

The Court denies Jalex's motion to strike. Nvision's response is only thirteen pages in excess of the presumptive page limitation and both sides have been afforded an opportunity to present further argument at the December 22, 2015 hearing. Therefore, the motion is DENIED.

For the reasons stated in the hearing record and as summarized in this order,

IT IS ORDERED that defendant's motion to preserve designated status of classified information, filed November 25, 2015,[140] is DENIED.

IT IS ALSO ORDERED that plaintiff's sealed motion to overrule objections and compel discovery responses, filed November 30, 2015,[141] is GRANTED in part and DENIED in part. To the extent that this order, as addressed at the December 22 hearing, calls for Jalex to supplement its document production or amend interrogatory answers or serve a privilege log, it must do so within 21 days of the date of the order.

IT IS FURTHER ORDERED that defendant's sealed motion to strike Nvision's motion to overrule, filed December 3, 2015,[142] is DENIED.

IT IS ALSO ORDERED that the limited matters referred to the undersigned addressed with this order[143] are RETURNED to the District Judge.

Rule 72 (a) of the Federal Rules of Civil Procedure provides that a party may file and serve any objection to an order entered by a magistrate judge on a nondispositive matter within 14 days after being served with a copy of the order. The district judge must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.