*1 A telephonic discovery conference was held on January 18, 2019. Counsel participating were: Grace Van Dyke James, Nicholas Valenti and Samuel Miller for Plaintiff Louisiana-Pacific Corporation (“LP”); Rocky King and Tara Swafford for Defendant James Hardie Building Products, Inc. (“James Hardie”); and, Brian Boyd for Third Party Defendant The Kruse Brothers, Inc. (“Kruse”). From discussion during the discovery conference and the entire record, including the parties' filings, and for the following reasons, LP's motion to compel filed on December 11, 2018 (Docket No. 345) is GRANTED IN PART as provided herein.

The Court presumes familiarity with the facts and the procedural history of this case, and recites only those circumstances necessary for context. On December 11, 2019, LP filed a motion to compel (Docket No. 345), to which James Hardie filed a response in opposition (Docket No. 349), and LP filed a reply (Docket No. 352). The parties also filed a joint discovery dispute statement (Docket No. 345-3). As stated by the parties, this discovery dispute concerns LP's request that James Hardie search the electronically stored information (“ESI”) of its sales and marketing employees “for documents, communications, and other responsive information pertaining to LP's claims and James Hardie's counterclaims.” Docket No. 345-3 at 1.

Without identifying any particular disputed request for production, LP broadly asserts that James Hardie's “refusal to search its salespeople's ESI (including emails) impacts all of the requests for production.” Docket No. 346 at 2. James Hardie counters that producing this information would require searching the electronic data of its some 350 plus sales force for the agreed search terms, with a resulting cost of more than $1 million to search, store, review, and produce responsive information. James Hardie states that its prior search of ESI of just two salespeople resulted in approximately 55,000 responsive documents, of which some 1,500 were reviewed after running the search terms, and production of 457 documents. Docket No. 345-3 at 4. James Hardie further states that is in the process of reviewing another 4,000 documents from those two salespeople for discovery after the preliminary injunction hearing. Id. James Hardie relies on the affidavit of an internal manager as support for its proportionality arguments. Docket No. 349-1. James Hardie further asserts that the requested discovery search of its entire sales force is irrelevant, as demonstrated by LP's failure to offer at either preliminary injunction hearing any of the documents produced from the two salespeople searches.

Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the permissible scope of discovery:

*2 Fed. R. Civ. P. 26(b)(1). After making a good faith attempt to resolve a dispute, a party may file a motion to compel discovery under Rule 37 of the Federal Rules of Civil Procedure if it believes another party has failed to respond to discovery requests or that the party's responses are evasive or incomplete. Fed. R. Civ. P. 37(a). In ruling on discovery-related motions, a trial court has broad discretion in determining the scope of discovery. Lewis, 135 F.3d at 402; Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (“Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”).

Once an objection to the relevance of information sought in discovery is raised, “the party seeking discovery must demonstrate that the requests are relevant to the claims or defenses in the pending action.... If that party demonstrates relevancy, the party resisting discovery bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable under the Federal Rules.” Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008) (citations omitted). Nothing in the 2015 amendments to Rule 26 indicates that the allocation of burdens under the Rule has been altered. Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *4 n.1, 5-7 (S.D. Ohio Dec. 9, 2015); see also Mckinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603, at *4 (N.D. Tex. Jan. 8, 2016). Commentary generated during the rulemaking process confirms the position of these courts that the amended rule did not shift the burden of proving relevancy to the party resisting discovery or the burden of proving proportionality to the party seeking discovery. See Committee on Rules of Practice and Procedure to the Judicial Conference of the United States, Report to the Standing Committee, p. 8 (May 2, 2014), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CV05-2014.pdf (explaining that moving the proportionality factors to Rule 26(b)(1) was not intended to shift the burden of proving proportionality to the party seeking discovery and that “the change does not place a burden of proving proportionality on the party seeking discovery ... [and] does not support boilerplate refusals to provide discovery on the ground that it is not proportional[.]”). See also Fed. R. Civ. P 26, Advisory Committee Notes (2015) at 23 (“Restoring the proportionality calculation to Rule 26(b)(1) does not ... place on the party seeking discovery the burden of addressing all proportionality considerations.... Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.... If the parties continue to disagree, the discovery dispute could be brought before the court and the parties' responsibilities would remain as they have been since 1983. A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.”).

LP must therefore show the relevancy of specific discovery requests for which it seeks to compel responses. LP makes no such particularized arguments. Nor does LP identify any specific deficient discovery responses. Rather, LP asserts generally that James Hardie must search the ESI of its entire sales force, presumably in responding to every one of LP's more than 171 requests for production of documents. See Docket Nos. 345-1 and 345-2. General arguments of this nature have been appropriately rejected by other courts. See Guinn v. Mount Carmel Health Systems, 2010 WL 2927254, *5 (S.D. Ohio July 23, 2010) (motion to compel denied without prejudice to the refiling of a motion to compel specifically identifying the requests at issue and setting forth particularized arguments) (internal citations omitted). LP's broad contention that James Hardie's response to every single request for production requires an ESI search of the entire James Hardie sales force borders on a classic fishing expedition, which is enough to deny LP's motion to compel.

*3 Instead, during the January 18 discovery conference, the Court offered for LP to start with a sampling search of ESI of 35 James Hardie salespeople, with the specific individuals to be selected by LP and Kruse (subject to confidentiality provisions already in place) and the cost to be borne by LP, at least initially. The Court finds these conditions appropriate given the barest relevancy showing by LP. Particularly convincing to the Court is the fact that LP made no use of the information already produced by two James Hardie salespeople either in the preliminary injunction hearings or in explaining in its motion to compel the ways in which similar ESI from the rest of the James Hardie sales department bears on the issues in this case. With a minimal relevancy showing at best, proportionality, including the needs of the case, dictates that LP should bear the cost of the requested discovery.

Despite being assured during the discovery conference that the sample search would be with reservation of LP's right to seek additional discovery from the remainder of the James Hardie sales force (upon an appropriate showing) and to reallocate the cost of the sampling discovery based on discovered information, LP's counsel stated during the discovery conference that LP would not avail itself of this option.[1] Nevertheless, LP's motion to compel is granted on the stated conditions and limitations. If LP elects to proceed on these terms, LP's counsel must promptly notify James Hardie's counsel of its intention to move forward with the limited sampling, and make appropriate arrangements for running the search at LP's cost. If by January 25, 2019, LP's counsel has taken no further action to arrange for the sampling search, the Court will, for all other purposes in this case, treat LP's motion to compel as denied.

It is SO ORDERED.