*1 On September 20, 2022, Defendants CTM Biomedical, LLC (“CTM”), CTM Medical, Inc. (“CTM Medical”), Bryan Banman, Pablo Seoane (collectively, the “CTM Defendants” or “Defendants”), and Nathan Boulais[1] filed a motion to compel further discovery from Plaintiffs Skye Orthobiologics, LLC (“Skye”) and Human Regenerative Technologies, LLC (“HRT”). (“MTC,” Dkt. No. 179). The parties submitted a Joint Stipulation in connection with the MTC pursuant to Local Rule 37-2, (“Jt. Stip.,” Dkt. No. 179-1), supported by the declarations of Robert J. Fluskey, Jr. (“Fluskey Decl.,” Dkt. No. 179-2), and Ryan D. Saba (“Saba Decl.,” Dkt. No. 179-22), and attached exhibits.[2] On the same date, Defendants filed an Application to File Documents Under Seal, (“Under Seal Appl.,” Dkt. No. 181), supported by the sealed declaration of Robert J. Fluskey, Jr., (Dkt. No. 182), to which were attached unredacted versions of the redacted publicly-filed documents Defendants wish to file under seal.[3] (Dkt. No. 182-1).

The Court summarily denied Defendants' MTC on October 4, 2022 because it was filed late in the discovery period and the noticed hearing date of October 11 would have rendered it impossible for the Court to rule on the motion and for the parties to comply with any production order before the close of fact discovery on October 12, 2022. (Dkt. No. 196). However, the denial was without prejudice to renewing the motion if the District Judge amended the scheduling order to permit further discovery. (Id. at 5). The parties filed a joint stipulation to amend the scheduling order on October 6, 2022, (Dkt. No. 197), which the District Judge granted on October 13, 2022. (Dkt. No. 199). The fact discovery cut-off is now November 15, 2022. (Id. at 4). The Court deemed the MTC and related documents to have been resubmitted on October 17, 2022. (Dkt. No. 200).

*2 The Court concludes that Defendants' MTC is capable of resolution without a hearing. See L.R. 7-15. For the reasons stated below, the MTC is GRANTED IN PART and DENIED IN PART. Plaintiffs shall serve supplemental written discovery responses and documents as required by this Order no later than fourteen days from the date of this Order. Defendants' Application to File Documents Under Seal is GRANTED, except to the extent that this Order cites a statement for which under seal treatment was requested.

This matter arises from the alleged appropriation of Plaintiffs' trade secrets by Bryan Banman, one of Plaintiffs' former executives, and Banman's creation of a new business, CTM Biomedical, LLC (“CTM”), which competes in the same business space as Plaintiffs. According to the operative Fourth Amended Complaint, CTM Medical is the “sole Member of Defendant CTM.” (“4AC,” Dkt. No. 130 & Fluskey Decl., Exh. 1, ¶ 8). Banman is the President and only officer of both CTM and CTM Medical, which Plaintiffs claim are alter egos of one another. (Id. ¶¶ 8, 18-20, 58). Plaintiffs allege that Banman and others conspired to violate RICO by misappropriating Plaintiffs' customer lists, customer order history, specific customer pricing/discount rates, pricing lists, sales materials, and billing guidelines to help form CTM and interfere with Plaintiffs' legitimate business interests. (¶ 146).

Banman is sued for violations of RICO (¶¶ 162-181), Conspiracy to Violate RICO (¶¶ 182-187), Misappropriation of Trade Secrets (¶¶ 188-202), Breach of Contract (¶¶ 203-216), Conversion (¶¶ 217-224), Tortious Interference with Contract (¶¶ 233-239), Tortious Interference with Prospective Economic Advantage (¶¶ 240-249), Breach of Fiduciary Duty (¶¶ 250-260), and Breach of Duty of Loyalty (¶¶ 261-267). Seoane is sued for violations of RICO, Conspiracy to Violate RICO, Misappropriation of Trade Secrets, and Tortious Interference with Prospective Economic Advantage. Boulais is sued for violations of RICO and Conspiracy to Violate RICO. CTM and CTM Medical are sued for violations of Misappropriation of Trade Secrets, Conversion, Tortious Interference with Contract, and Tortious Interference with Prospective Economic Advantage. (See id.).

Plaintiffs filed the Fourth Amended Complaint on February 3, 2022. (Dkt. No. 130). Defendants do not specify when they served the majority of the discovery requests at issue, but do state that they served their First Set of Requests for Admission on Skye on August 5, 2022, and a subpoena for production of documents on Matt Chormann on August 2, 2022. (Fluskey Decl., ¶¶ 13 & 15). Defendants attach copies of Plaintiffs' responses to the disputed discovery to Fluskey's Declaration as Exhibits 5, 6, 7, 8, 9, 10 and 11. The parties met and conferred on July 5, 2022 (Fluskey Decl., Exh. 14); September 2, 2022 (id., Exh. 15); and September 10, 2022. (Id., Exh. 19). Plaintiffs state that they do not dispute Defendants' summary of the procedural history concerning the discovery at issue in this MTC. (Jt. Stip. at 9).

The Court incorporates by reference its discussion of the scope of permissible discovery pursuant to Federal Rule of Civil Procedure 26(b)(1) set forth in its Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel Further Production of Documents and Interrogatory Responses from Defendant Nathan Boulais, issued on October 4, 2022 and docketed at Dkt. No. 195, pages 4-6.

A. Requests For Admission

*3 Federal Rule of Civil Procedure 36(a) provides:

Fed. R. Civ. P. 36(a)(1). One primary purpose of requests for admission is to narrow the issues for trial by identifying and eliminating those matters on which the parties agree. Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245 (9th Cir. 1981) (“The purpose of Rule 36(a) is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial.”); Fed. R. Civ. P. 36 advisory committee notes (1970 Amendment) (“Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.”).

Because requests for admission clarify not only those issues upon which the parties agree but also those which are “genuinely contested,” where issues in dispute “are requested to be admitted, a denial is a perfectly reasonable response.” United Coal Companies v. Powell Const. Co., 839 F.2d 958, 967 (3rd Cir. 1988). The Rule specifically provides:

Fed. R. Civ. P. 36(a)(4). In lieu of an answer admitting or denying a request for admission, a party may serve objections. Fed. R. Civ. P. 36(a)(5). Federal Rule 36(a)(6) provides that “[t]he requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served.” FRCP 36(a)(6).

(Jt. Stip. at 10-11). Defendants state that the three RFAs quoted verbatim in the MTC are by way of example only, and are copied only once for the purpose of avoiding “unnecessary repetition,” as Defendants propounded numerous RFAs seeking the same three admissions concerning other customers, doctors and sales representatives. (Jt. Stip. at 10 & n. 2). As such, although Defendants do not specifically state that they are putting the entire First Set of Requests for Admission served on Skye at issue, or identify the RFAs for which they are seeking further responses by number, the Court construes the MTC to challenge all of Plaintiffs' responses to RFA Nos. 1-186, i.e., the entire First Set of Requests for Admission.

Defendants note that Skye specifically identified in its interrogatory responses the customers, doctors and sales representatives with whom it contends CTM tortiously interfered. (Jt. Stip. at 11-12). According to Defendants, these RFAs simply ask Skye to confirm whether it had written agreements with these third parties and whether the agreements were produced. (Id. at 10). Defendants maintain that because Skye identified these customers, doctors and sales representatives, it is entitled to know whether Skye ever entered into written contracts with them. (Id. at 12).

Plaintiffs contend that the MTC is moot to the extent that Defendants are seeking supplemental RFA responses because Skye has “agreed to supplement its responses to CTM's Request for Admissions.” (Id. at 14). Plaintiffs state that they will “notify this Court in a supplemental filing once the supplemental responses have been delivered to CTM. (Id. at 10). However, as of the date of this Order, Plaintiffs have not notified the Court that Skye has served supplemental responses.

Skye's written objections to the RFAs were patently improper and an abuse of the discovery process. Whether Skye entered into written agreements with the persons and entities that Skye itself identified as the targets of its tortious interference claims is indisputably relevant to the claims and defenses in this action. Furthermore, Skye's contention that the phrase “to execute a written agreement” is somehow “vague, ambiguous and unintelligible” is simply spurious. See Seva Resorts, Inc. v. Hodel, 876 F.2d 1394, 1398 (9th Cir. 1989) (“The legal definition of the term ‘execute’ is: ‘To perform all necessary formalities, as to make and sign a contract.’ ”) (quoting Black's Law Dictionary 509 (5th ed. 1979)); see also McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....”) (internal quotation marks omitted); King-Hardy v. Bloomfield Board of Education, 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity).

*5 This is the type of discovery dispute that should never have arisen, but when it did, the parties should have been able to resolve their differences among themselves without Court intervention. Because Skye has belatedly agreed to supplement its responses, it does not appear that a Court Order is strictly necessary to compel service of amended answers to the RFAs. However, it does appear that an Order is required to set a deadline for service of the amended answers. Accordingly, Defendants' motion to compel further responses to Requests for Admission 1-186 is GRANTED. Skye shall serve amended answers, without objections, to the RFAs by the deadline set forth in the conclusion of this Order.

B. Requests For Production Of Documents And Things

The Court incorporates by reference its discussion of the requirements for responding to Requests for Production under Federal Rule of Civil Procedure 34 and the prohibition on boilerplate objections set forth in its Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel Further Production of Documents and Interrogatory Responses from Defendant Nathan Boulais, issued on October 4, 2022 and docketed at Dkt. No. 195, pages 11-12.

(Jt. Stip. at 14-15).

Defendants reject Skye's assertion in its written objections that it has produced the documents sought by this RFP. (Id. at 15). According to Defendants, while Skye has produced “scattered” Sales Commission Reports for limited time periods, it “has not produced documents sufficient to show the total amount of commissions paid to each sales representative with which Skye alleges the CTM Defendants interfered.” (Id.). Defendants argue that because Skye alleges that it suffered lost sales and lost profits due to CTM's purported recruitment of its independent sales representatives, Defendants are entitled to learn the amount paid in commissions so that they can calculate the gross profit margin earned on sales generated by the at-issue sales representatives. (Id. at 16). The information would not be burdensome to produce as Skye was required to provide Form 1099s to each representative. (Id.).

*6 Plaintiffs argue that they have already produced documents showing the total amount of sales by the representatives at issue, and their agreements with the sales representatives, which outline the actual payment of commissions. (Id.). Plaintiffs contend that the information that Defendants are actually seeking by this RFP is the “actual payment of commissions to former Skye representative when they sold [any] Skye products,” even when those sales are not at issue in the litigation. (Id.). Plaintiffs further note that CTM has not produced its commissions paid to sales representatives and contend that if Plaintiffs are required to produce such information, Defendants should be required to do the same. (Id. at 17).

As a preliminary matter, it is axiomatic that an opposition to a motion to compel is an improper vehicle for requesting an order that the moving party itself be compelled to produce additional discovery. That is so particularly in this instance, where Plaintiffs' “whataboutism” production request does not afford Defendants an opportunity to respond. Furthermore, Plaintiffs' written objections to RFP No. 237 are boilerplate and do not clearly state whether any documents are being withheld on the basis of the objections, as required by Rule 34(b)(2)(C).

Even if Plaintiffs are correct and Defendants are seeking the overall commissions paid to the specified entities and individuals, Plaintiffs have failed to articulate the harm that such disclosures would cause. Furthermore, the information that Defendants seek is readily available in the form of 1099s and should not be burdensome to produce. Plaintiffs' proposal that Defendants can calculate commissions by applying the formula in each sales representative's agreement to the total amount of sales is not satisfactory because doing those calculations would result in a figure that Plaintiffs might have paid in commissions, but would not necessarily reveal the actual amount paid. To the extent that Plaintiffs are arguing that the total amount of commissions paid is not relevant or is over-inclusive, they are free to argue whether the documents are admissible at trial before the District Judge at the appropriate time. To the extent that Plaintiffs are contending that the disclosure of total commissions paid would require production of confidential or proprietary information, the Protective Order in place will adequately limit when and how the information can be used. Accordingly, the MTC with respect to RFP No. 237 is GRANTED. Plaintiffs are ORDERED to produce documents sufficient to show the total commissions paid to the identified individuals and entities by the date provided in the conclusion of this Order.

Defendants state that Skye has alleged that CTM interfered with Skye's contract and business relationship with Non-Party X. (Jt. Stip. at 17). Defendants further allege that Skye also prepared a draft document for Non-Party X to sign regarding Skye's relationship with Non-Party X, which Non-Party X is reviewing. (Id.). However, Defendants contend that Skye has not produced any of its communications with Non-Party X or the draft document itself, and complain that Skye has agreed to produce a copy of the document only in its final form, which Defendants claim is insufficient. (Id. at 18).

*7 Skye maintains that its negotiations with Non-Party X are “on-going.” (Id. at 18). Skye argues that while it will produce a final version of the document, it would be “fundamentally unfair” to require Skye to produce draft documents to a competitor during an active negotiation, which would allow CTM to take advantage of the facts in the disclosure in various ways. (Id.). Skye further states that Defendants are demanding that it produce certain types of documents that CTM has itself not produced. (Id. at 19). Skye also contends that draft documents with non-parties relating to future events are not responsive to any document requests. (Id.). Finally, Skye represents that it is not in possession of any other “relevant and non-privileged” communications concerning Non-Party X that it has not already produced. (Id.).

Skye contends that CTM interfered with its contractual and business relationship with Non-Party X. As such, Skye's communications with Non-Party X concerning the particulars of their relationship are highly relevant, as are documents revealing what Skye thinks its relationship with Non-Party X is or should be, as revealed in draft agreements memorializing that understanding. Plaintiffs have not explained why the Protective Order will not be sufficient to prevent unwarranted disclosure and use of the information requested, which may, if warranted, be designated for Attorney's Eyes Only. Accordingly, Plaintiffs are ORDERED to produce any communications, draft agreements and final agreements with Non-Party X relating to the claims and defenses in this case by the date provided in the conclusion of this Order.

Defendants state that Banman's Seventh Set of Document Requests to Skye sought, among other things, a “physical sample of each product that contains a trade secret, or that was manufactured or processed using a trade secret, which Plaintiffs claim was misappropriated by the Defendants.” (Jt. Stip. at 32) (citing Fluskey Decl., Exh. 8). Defendants admit that after Plaintiffs initially served improper boilerplate objections, Plaintiffs served amended responses in which they agreed to produce the samples requested by Banman. (Jt. Stip. at 32-33). According to Defendants, during the parties' September 10, 2022 meet and confer, Plaintiffs' counsel represented that the samples would be produced “this week,” meaning the week of September 12-16. (Id. at 33). However, Defendants state that Plaintiffs still have not done so, and request an order requiring the immediate production of sample products so that Defendants' experts can examine the products and prepare a defense. (Id.). Plaintiffs maintain that the issue is moot because they have already agreed to produce samples of products and represent that the samples “are expected to be delivered imminently.” (Id. at 33).

This is yet another discovery dispute the parties have brought to the Court that could and should have been resolved by the parties without Court intervention. Plaintiffs do not explain why they apparently did not honor their representation that samples would be delivered during the week of September 12. The Court reminds the parties that the Central District's Civility and Professionalism Guidelines expressly provide that lawyers' duties to other counsel require counsel practicing in this Court to “adhere to all express promises and to agreements with other counsel, whether oral or in writing, and [to] adhere in good faith to all agreements implied by the circumstances or local customs.” See http://www.cacd.uscourts.gov/attorneys/ admissions/civility-and-professionalism-guidelines#Communications%20with%20 Adversaries. It is unclear whether the samples have been delivered by the date of this Order. To the extent that they have not, Defendants' MTC is GRANTED. Plaintiffs are ORDERED to deliver a sample of each product at issue by the date set forth in the conclusion of this Order.

C. Instructions Not To Answer

*8 Defendants complain that counsel for Plaintiffs improperly instructed two witnesses, non-party Christopher Sharp and non-party Matt Chormann, not to answer questions regarding the identity of Skye sales representatives in specific markets. Sharp is the Managing Member and CEO of both Skye and HRT. (Dkt. No. 47-1 ¶ 1). Chormann is Skye's Senior Director of Business Development. (Fluskey Decl. ¶ 15). Sharp was deposed on September 7, 2022. (Id. ¶ 18 & Exh. 12). Chormann was deposed on September 8, 2022. (Id. ¶ 19 & Exh. 13).

The following two exchanges occurred during the deposition of Matt Chormann:

(Jt. Stip. at 21) (Fluskey Decl., Exh. 13 at 62:17-63:8)

(Jt. Stip. at 21-22) (quoting Fluskey Decl., Exh. 13 at 128:1 to 129:25). Defendants represent that the “same instructions not to answer were given during the deposition of Sharp when he was asked to identify the names of sales representatives or Veterans' Administration facilities.” (Jt. Stip. at 22-23).[6]

*9 Defendants contend that pursuant to Federal Rule of Civil Procedure 30, counsel may instruct a witness not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3) to terminate or limit a deposition being conducted in bad faith. (Id. at 23) (citing Hernandez v. Lynch, 2019 WL 6998774, at *3 (C.D. Cal. Jun. 18, 2019). According to Defendants, relevancy is not a ground for an instruction not to answer. (Jt. Stip. at 23). Defendants explain that under Ninth Circuit precedent, when questions during a deposition are objectionable, the questioning should continue, subject to the objection. (Id.) (citing, inter alia, BNSF Ry. Co. v. San Joaquin Valley R. Co., 2009 WL 3872043, at *2 (E.D. Cal. Nov. 17, 2009)). Defendants maintain that the information sought is relevant, and ask that the witnesses be compelled to return to answer the disputed questions at Plaintiffs' “cost and expense.” (Id. at 24).

Plaintiffs argue that the discovery at issue is outside the scope of this litigation because Defendants' questions were not limited to the identification of sales representatives whom Skye alleged interfered with Skye's contracts or prospective economic advantage, but rather broadly sought the names of all of Skye's representatives in a particular region, even if they had no connection to the matters at issue in this case. (Id.). Skye argues that such information is not proportional to the needs of this case, and the identity of these individuals “would give a competitor a significant list of new representatives to target and attempt to convert to work for CTM.” (Id.). Plaintiffs also state that the parties have had a reciprocal agreement throughout discovery in this case that Skye and CTM would “only be required to identify sales representatives ... and customers with which Skye claims the Defendants interfered.” (Id. at 25). Skye maintains that Defendants are now attempting to change the terms of the parties' agreement in order to obtain the names of sales representatives and customers who have nothing to do with this case, while denying Skye the same discovery. (Id.). Indeed, Skye claims that Defendants have specifically refused to provide such information concerning their sales representatives and customers. (Id. at 25-28). Furthermore, Chormann and Sharp are both third parties, and Sharp has already sat for three full-day sessions of depositions, and should not be required to appear again to provide information that has no relevance to the case and is outside the parties' discovery agreement. (Id. at 28). Plaintiffs once again state that if they are required to produce information about their sales representatives and customers with no bearing on the case, “then it is only fair that CTM should also be required to identify all of its sales representatives and customers in response to Skye's Request for Production of Documents Nos. 16 and 17.” (Id.).

Federal Rule of Civil Procedure 30(c)(2) authorizes parties to object during depositions and expressly limits the circumstances when an attorney may instruct a deponent not to answer:

*10 Fed. R. Civ. P. 30(c)(2). “Thus, attorneys representing a deponent or party may, of course, object to questions asked a witness, provided the objections are not disruptive of the proceedings. If none of the specified grounds for instructing a witness not to answer exists, the objection may be noted on the record, “but the examination still proceeds; the testimony is taken subject to any objection.” Carter v. Telecare Corp., 2019 WL 6703392, at *3 (C.D. Cal. Aug. 16, 2019) (internal citations omitted).

At the same time, however, “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

Defendants are correct that as a general rule, instructions not to answer on the basis of relevancy are improper. However, in this case, it appears that the parties had an agreement restricting discovery to only those persons and entities with whom or with which Plaintiffs maintained that Defendants had interfered. Defendants' counsel acknowledged and relied on that agreement in the parties' November 22, 2021 conference of counsel when he contended that CTM should be required to disclose only those sales representatives and customers with a previous relationship with Skye, stating:

(Jt. Stip. at 26).[8] In subsequent conferences of counsel, the parties repeatedly agreed to similar limitations on discovery. (See generally Jt. Stip. at 25-28 and exhibits cited therein).

*11 As previously noted in this Order, the Central District's Civility and Professionalism Guidelines applying to “Lawyer's Duties to Other Counsel” requires attorneys to adhere to their agreements with other counsel, “whether oral or in writing.” See http://www.cacd.uscourts.gov/attorneys/admissions/civility-and-professionalism-guidelines#Communicat.... It would be inappropriate for a party to argue in favor of and strictly follow a discovery limitation that the parties had discussed and agreed upon on numerous occasions, only to seek information beyond the scope of the parties' longstanding agreement in a deposition shortly before the discovery cut-off because relevancy is not a ground for instructing a witness not to answer. While the instructions not to answer may have been less than ideal, in the context of this case, Defendants' questions, as phrased, were equally, if not more, improper in light of the parties' agreements and practices. Defendants left Plaintiffs' counsel with little choice. Plaintiffs' only other practical alternative would have been to stop the deposition on the ground that the questions constituted harassment and seek a ruling from the Court. Instead, Plaintiffs' counsel allowed the deposition to proceed with a minimum of disruption to the proceedings. Confronted with only bad alternatives, Plaintiffs' counsel's instruction was arguably the least bad. Furthermore, Defendants have not shown how their ability to prepare a defense would be impaired at all if they are denied information about sales representatives or customers that had no involvement whatsoever with the issues in this case. Accordingly, Defendants' MTC to compel further deposition testimony from Chormann and Sharp is DENIED.

D. Subpoena Duces Tecum Served On Non-Party Matt Chormann

(Jt. Stip. at 29-30) (quoting Fluskey Decl., Exh. 11).

Defendants state that the day before his deposition on September 7, 2022, Chormann produced nineteen pages of documents consisting of communications with eight people. (Id. at 29). During the course of his deposition, Chormann admitted that he conducted the search for documents on his own, without the assistance of a vendor and outside the presence of counsel. (Id. at 30) (citing Fluskey Decl., Exh. 13 at 65:10-65:25). He searched only for text messages within the last twelve months, and specifically did not search for any text messages with Sharp, his boss, even though he had texted with Sharp about the case and subpoenas issued during the litigation. (Jt. Stip. at 31) (citing Fluskey Decl., Exh. 13 at 67:18-69:1; 237:20-246:9). Accordingly, Chormann did not produce text messages with Sharp from any period and did not produce any text messages with a colleague, Dave Grossman, even though he acknowledged that he may have exchanged relevant texts with Grossman. (Jt. Stip. at 31) (citing Fluskey Decl., Exh. 13 at 71:17-19). Defendants maintain that Chormann and his counsel should be compelled to do a “proper search for” documents responsive to the subpoena and produce them by a date certain. (Jt. Stip. at 31).

*12 Plaintiffs note that Chormann testified that he does not have and has never used Whatsapp, and as such, cannot be compelled to produce documents that do not exist. (Id. at 31-32). However, Plaintiffs have agreed, “out of an abundance of caution,” to search his iCloud account to determine if additional text messages exist. (Id. at 32). Plaintiffs note, however, that Defendant Pablo Seoane was unable to produce certain text messages and attachments and Defendants have refused to search his iCloud account for such text messages. (Id.). Accordingly, Plaintiffs maintain that if Chormann is required to search his iCloud account, then the order should require “ALL parties to search their iCloud accounts.” (Id.).

Chormann's unguided search for documents appears facially inadequate and should ideally have taken place with the assistance of counsel. Plaintiffs have agreed to conduct a more thorough, systematic search for responsive documents, which could have been avoided had the search been completed properly the first time. Accordingly, the MTC further responses to RFP Nos. 1-7 served on Chormann is GRANTED. Chormann is ORDERED to produce text messages responsive to the requests, regardless of where or how they are stored, by the date provided in the conclusion of this Order. Chormann shall also served amended written responses to the requests. To the extent that no further documents exist that are responsive to a request, the response shall affirmatively so state. Chormann shall also clarify whether he has ever used WhatsApp, as the statement that he does not “have or use” WhatsApp is potentially ambiguous. Plaintiffs' request for an Order requiring all parties to search their iCloud accounts is DENIED for the reasons stated elsewhere in this Order.

For the foregoing reasons, Defendants' MTC is GRANTED IN PART and DENIED IN PART. Plaintiffs are ORDERED to serve supplemental written discovery responses, documents and samples as required by this Order no later than fourteen days from the date of this Order.

IT IS SO ORDERED.