*1 Defendants’ motion to compel [198] is granted. Plaintiffs must produce documents and information responsive to Defendants’ Request Nos. 44-45, 57-59, and 67 and supplement their responses to Defendants’ Interrogatory Nos. 7, 8 and 12 based on information currently available by June 15, 2022. Plaintiffs’ motion to compel sales-related discovery [210] is granted. Defendants are ordered to produce documents and information responsive to Plaintiffs’ Request for Production Nos. 36-41 and 43-45 by June 15, 2022. Defendants’ and Plaintiffs’ request for an award of reasonable expenses, including attorneys’ fees, in connection with the motions are denied.

This is a patent infringement case involving a system for displaying and dispensing soup cans in retail stores. Both parties have moved the Court pursuant to Federal Rule of Civil Procedure 37(a) and Local Rule 37.2 to compel production. For the following reasons, the motions are granted. The Court will consider each motion in turn.

“Parties 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[.]” Fed. R. Civ. P. 26(b)(1). Under Rule 37, a party may move for an order compelling disclosure if a party fails to answer or submits an “evasive or incomplete disclosure[.]” Fed. R. Civ. P. 37(a)(4). “Requests for discovery are relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. The burden rests upon the objecting party to show why a particular discovery request is improper.” U.S. Equal Emp. Opportunity Comm'n v. Dolgencorp, LLC, No. 13-CV-04307, 2014 WL 3734361, at * 1 (N.D. Ill. July 29, 2014) (cleaned up). The standard for discovery under Rule 26 is “widely recognized as one that is necessarily broad in its scope in order to allow the parties essentially equal access to the operative facts.” Scott v. Edinburg, 101 F. Supp. 2d 1017, 1021 (N.D. Ill. 2000). The Court has broad discretion to determine the scope of discovery, and “[i]f relevance is in doubt, courts should err on the side of permissive discovery.” Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 577 (N.D. Ill. 2004).

Defendants move to compel Plaintiffs to produce documents and information regarding (1) third-party communications concerning the relevant patents and the accused products, (2) the factual bases for Plaintiffs’ damages and injunctive relief, and (3) any third-party's financial interest in this action and the relevant patents. Defendants contend that Plaintiffs have either failed to provide meaningful responses or have outright refused to provide responsive documents and information. Plaintiffs state that they have complied with Defendants’ requests to the extent that they are relevant to the issues in this case, and that discovery is still ongoing. The Court agrees with Defendants and grants the motion.

Plaintiffs state that they have not refused to respond to the cited requests for production, have agreed to produce responsive documents, and that there is “nothing to compel.” Dkt. 207 at 3, 7 (“review for responsive documents is ongoing and, if such documents exist, Gamon will produce them.”). However, Defendants allege that Plaintiffs have only agreed to produce a narrow subset of their requested materials. Dkt. 209 at 4. The Court holds that Defendants’ requests are not unworkable, and that Plaintiffs have not shown how further disclosure would be unduly burdensome. Belcastro v. United Airlines, Inc., No. 17 C 1682, 2019 WL 1651709, at *4 (N.D. Ill. Apr. 17, 2019), objections overruled, No. 17-CV-01682, 2020 WL 1248343 (N.D. Ill. Mar. 15, 2020) (such an objection “must adequately demonstrate the nature and extent of the claimed burden by making a specific showing as to how disclosure of the requested documents and information would be particularly burdensome.”) (internal quotations and citation omitted). For example, Defendants’ request No. 67 seeks third-party communications concerning the relevant patents and the accused products, which are relevant to this action. Plaintiffs need not produce communications irrelevant to the issues in this case, but that is no basis to wholly withhold certain categories of information. The same is true of Defendants’ Request Nos. 44 and 45, which seek information regarding Plaintiffs’ business operations. Plaintiffs must respond in full to these and Defendants’ other requests.

*2 Regarding Interrogatory Nos. 7 and 8, which seek the bases for Plaintiffs’ claim for damages and injunctive relief, Plaintiffs argue that (1) Plaintiffs have made their damages theory clear already, and discovery is ongoing, and (2) Defendants’ requests prematurely seek legal reasoning, theories, and opinion. In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., Civ. No. 09-MD-2118-SLR, 2013 WL 12291705, at * 1 (D. Del. Oct. 22, 2013). But Plaintiffs must respond to these requests now, to the extent Plaintiffs are presently able, because (1) the requested information may clarify the issues and (2) this case is approaching the end of fact discovery. Edward Lowe Indus., Inc. v. Oil-Dri Corp. of Am., No. 94 C 7568, 1995 WL 399712, at *3 (N.D. Ill. July 7, 1995). This discovery may be supplemented with expert opinion later, but that does not absolve Plaintiffs of the present duty to respond. Pers. Audio, LLC v. Google LLC, No. CV 17-1751-CFC-CJB, 2018 WL 4502002, at *2 (D. Del. Sept. 20, 2018) (finding that Google is not yet entitled to “an actual final calculation of damages” but is entitled to certain “damages-related information at this stage of the case[,]” including “(1) certain information about PA's damages contentions; (2) factual information; and (3) identification of documents currently known to PA.”). Further, Plaintiffs’ arguments regarding Defendants’ lack of production of sales and financial information are not persuasive, given that this Order below grants Plaintiffs’ motion to compel that material. See Dkt. 207 at 5 (arguing that Plaintiffs’ responses are limited because Defendants have “refused to produce critical sales information”).

Finally, Defendants seek discovery concerning any third party's financial interest in this action, including relevant litigation funding or contingency fee agreements. Plaintiffs have refused such production on relevancy grounds and propose in their response that the Court conduct an in camera review to confirm the irrelevance of the documents. Fulton v. Foley, No. 17-CV-8696, 2019 WL 6609298, at *2 (N.D. Ill. Dec. 5, 2019) (“As a general matter, courts across the country that have addressed the issue have held that litigation funding information is generally irrelevant to proving the claims and defenses in a case.”). In addition, Plaintiffs argue that the work product doctrine protects their communications with litigation funders. Odyssey Wireless, Inc. v. Samsung Elecs. Co., Ltd, No. 315CV01735HRBB, 2016 WL 7665898, at *5 (S.D. Cal. Sept. 20, 2016) (“Although there is a dearth of case law regarding the applicability of the work-product doctrine to litigation funding documents, the district courts that have addressed this issue have found this protection applicable.”). The Court declines to conduct in camera review and instead orders that Plaintiffs respond to the production requests. First, Defendants assert that they “seek the information ... because it is at least relevant to [Plaintiffs’] standing, and more critically, to the value of the Patents-in-Suit, where there are no licenses under the Patents-in-Suit to third parties, and thus seemingly no established policies concerning Plaintiffs’ licensing practices.” Dkt. 199 at 17. And “courts have been more receptive to allowing such discovery in patent infringement cases, given patent cases’ unique standing requirements and the potential for funding agreements to shed light on patents’ value.” Pres. Techs. LLC v. MindGeek USA, Inc., No. 217CV08906DOCJPR, 2020 WL 10965161, at *6 (C.D. Cal. Dec. 18, 2020). The Court holds that such information is discoverable here. Impact Engine, Inc. v. Google LLC, No. 19-cv-1301-CAB-DEB, 2020 U.S. Dist. LEXIS 145636, at *4-5 (S.D. Cal. Aug. 12, 2020). To the extent that Plaintiffs assert that documents should be withheld as privileged or attorney work product, Plaintiffs shall produce a privilege log in accordance with the Federal Rules of Civil Procedure by the end of fact discovery, allowing Defendants to assess the claims. Fed. R. Civ. P. 26(b)(5).

Plaintiffs move to compel production of documents and information responsive to Plaintiffs’ Requests for Production Nos. 36-41 and 43-45. Plaintiffs assert that information regarding the sales volume of soup cans and related information is relevant to their patent claims involving soup displays and dispensers. Defendants argue that the requested production regarding soup sales is irrelevant to any viable damages theory that Plaintiffs may propose. Defendants further argue that they do not, and cannot, track or calculate certain data requested by Plaintiffs. Accordingly, say Defendants, production of this irrelevant and over-broad material would prejudice Defendants, and the motion should be denied. The Court agrees with Plaintiffs and orders Defendants to produce the material by June 15, 2022.

*3 Defendants argue that Plaintiffs have failed to establish how information regarding the sales of all soup products could viably factor into damages, and characterize Plaintiffs’ discovery efforts as an unfettered “fishing expedition.” Eternity Mart, Inc. v. Nature's Sources, LLC, No. 19-CV-02436, 2019 WL 6052366, at *3 (N.D. Ill. Nov. 15, 2019). The Court, however, is convinced that such information may be relevant to damages in this case. See Dkt. 211 at 6-7 (arguing that volume of cans displayed and sold goes to profitability and success of the product, and is an indicator of the value of the patents); Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221, 1238 (Fed. Cir. 2011) (“either the infringer's or the patentee's profit expectation may be considered in the overall reasonable royalty analysis”); Trans-World Mfg. Corp. v. Al Nyman & Sons, Inc., 750 F.2d 1552, 1568 (Fed. Cir. 1984) (“the extent of the profits from such [non-patented] sales could be relevant in determining the amount of a reasonable royalty. If, for example, sales were increased because of the infringing use of the displays, that fact could affect the amount of royalties a potential licensee would be willing to pay.”). Defendants need not produce information that they do not, or cannot, track or possess. Riversource Life Ins. Co. v. Amy Plumbing, Heating & Cooling, Inc., No. 12 C 1388, 2013 WL 1110922, at *1 (N.D. Ill. Mar. 15, 2013). Defendants may later contest Plaintiffs’ damages theory on the merits, but the Court holds that at the discovery stage Defendants must produce information related to the above requests, including soup sales generally. Via Vadis, LLC v. Blizzard Ent., Inc., No. 1:14-CV-00810-LY, 2021 WL 3081310, at *5 (W.D. Tex. July 21, 2021) (finding that “for purposes of discovery, Plaintiffs have made a sufficient preliminary showing of relevance under Georgia-Pacific Factor 6” and that the information is discoverable because it “may be relevant to Plaintiffs’ damages theory”).

For the foregoing reasons, the parties’ motions to compel are granted. The parties must produce the relevant material by June 15, 2022.

IT IS SO ORDERED.

ENTER: