*1 Among the multiple matters pending before the Court are: (i) the motion to compel filed by Defendant James Hardie Building Products, Inc. (“James Hardie”) (Docket No. 354) and response in opposition filed by Plaintiff Louisiana-Pacific Corporation (“LP”) (Docket No. 365); (ii) the motion to compel (Docket No. 358) and accompanying memorandum (Docket No. 359) filed by LP, to which Defendant filed a response in opposition (Docket No. 369); and, (iii) the additional disputed discovery requests and responses described in the parties' joint discovery dispute statement (Docket No. 370). As addressed in more detail below, the parties resolved the issues in James Hardie's motion to compel (Docket No. 354) and no further action is required. LP's motion to compel was also resolved by agreement of the parties, including after discussion with the Court as discussed below, and the Clerk is therefore directed to TERMINATE that motion (Docket No. 358) as well.

A discovery conference and hearing was held on January 25, 2019 on the pending matters. Counsel appearing were: Samuel Miller and Grace Van Dyke James for LP and Rocklan King and Tara Swafford for James Hardie. This order supplements the findings and conclusions made by the Court at the January 25 hearing.

As a preliminary matter, and as remarked by the Court at the January 25 hearing, the discovery disputes in this case are out of control. The Court has repeatedly implored the parties to cooperate in discovery in this case. The Court's efforts to implement and impose procedures to facilitate efficient and economical resolutions of discovery disputes cannot be said to have accomplished their intended purpose as there has been an inordinate expenditure of the parties' resources and of judicial resources on discovery disputes in this case. The parties are again put on notice that the Court intends to use all available means of addressing unwarranted discovery disputes, including sanctions permitted under Rule 16(f) and 37(b)(2) and 28 U.S.C. § 1927. See e.g. Universal Health Group v. Allstate Ins. Co., 703 F.3d 953, 955 (6th Cir. 2013) (recognizing that magistrate judge's approach to deadline with discovery disputes was sensible and salutary).

As also discussed at the January 25 hearing, LP subsequently filed a motion (Docket No. 371) for the Court to reconsider its earlier Order of January 18, 2019 (Docket No. 367), to which James Hardie filed a response in opposition (Docket No. 377). LP also filed a motion for review of the January 18 Order (Docket No. 374).[1] Objections to a magistrate judge's order on a non-dispositive matter, which, under the Court's local procedures are raised by a motion for review (see Local Rule 72.01), are essentially a request for the district judge to reconsider the magistrate judge's determination. See Ellison v. Clarksville Montgomery County School System, 2018 WL 3241391, at *1 (M.D. Tenn. July 3, 2018) (citing Massey v. City of Ferndale, 7 F.3d 508, 509 (6th Cir. 1993)). The Court is unable to find a case that discusses the propriety of a magistrate judge ruling on a motion to reconsider when the moving party has also sought reconsideration by the district judge. Common sense, if not statutory construction, dictates that the magistrate judge should yield to the district judge's reconsideration. LP's motion for reconsideration (Docket No. 371) is therefore DENIED without prejudice to the issues raised in Plaintiff's motion for review. Nevertheless, for the benefit of Judge McCalla in his motion for review, the Court takes the opportunity to address the issues raised by LP in its motion.

*2 Contrary to LP's characterization, the Court did not create some new “confidence test” in applying Rule 26 when it allowed LP the opportunity start with a sampling search of ESI of 35 James Hardie salespeople, with the specific individuals to be selected by LP and the cost to be borne by LP, at least initially.[2] See Order, Docket No. 367 at 4-5. Rather, based on all the circumstances of the discovery dispute including the proportionality considerations of Rule 26(b)(1), the Court acted within its discretion in specifying conditions for the discovery under Rule 26(b)(2)(B) and shifting the cost of discovery under Rule 26(c)(1)(B). The Court did so in part based on the lack of any dispute by LP that James Hardie has already produced extensive discovery, including relating to the No Wood is Good campaign statements that are the center of LP's claims of false and deceptive advertising by James Hardie. What LP seeks now is “similar false statements” as those in the NWIG campaign. Docket No. 371 at 3. LP failed to demonstrate the relevancy of this discovery, other than for some cumulative purpose, a purpose that LP neither directly or adequately demonstrated is important to resolving the issues in this case. LP also failed to demonstrate that its claimed need for this cumulative (and potentially duplicative) discovery outweighs the estimated $1 million cost of retrieval by James Hardie.

The so-called “confidence test” with which LP takes issue was a discussion between the Court and counsel to confirm whether LP acknowledged the risk that the Court might exercise its discretion to reallocate discovery costs. See January 25 Hearing Transcript (Docket No. 404) at pp. 76-82.[3] LP simply continued to reiterate its position that the Court is without authority to take such action. The Court once again states its finding that LP's request for this cumulative and duplicative discovery is little more than a fishing expedition intended to drive up the costs of this litigation. See Order, Docket No. 367 at 4-5. Nevertheless, the Court was willing to give LP the benefit of the doubt that the lake was stocked with easy catches, with LP paying for the cost of the bait and tackle. If LP's fishing spree yielded the kind of strikes that LP maintained it would, the Court was willing to reallocate the cost to James Hardie. LP has consistently declined that opportunity. The Court will leave any other evaluation of the propriety of its application of Rule 26, including James Hardie's request for fees, to Judge McCalla.

From the parties' filings and information presented at the discovery hearing, and for the reasons stated herein, the Court rules on Plaintiff's motion and orders as discussed below.

As discussed at the January 25 hearing, the issues raised in James Hardie's motion to compel (Docket No. 354) have been resolved either by agreement or by James Hardie's withdrawal, all of which are addressed and memorialized in the parties' agreed order entered separately. See Docket No. 386.

There are six disputed discovery matters remaining before the Court for resolution. All other matters were resolved by agreement of the parties, by withdrawal of the moving party, or by the Court's earlier orders. Three of the remaining disputed matters are described in LP's motion to compel and are directed at James Hardie's responses to LP's requests for production numbers 160, 165, and 158. See Docket No. 359 at 4. In these requests, and in the motion to compel, LP seeks to require James Hardie to produce “(1) documents showing the composition of its fiber cement siding so that LP can determine the precise amount of wood materials in Hardie's fiber cement siding; (2) documents showing the species of tree form which Hardie obtains its cellulose fiber and the type of cellulose fiber used in its fiber cement siding; and (3) documents relating to inquiries or confusion by customers and potential customers as to whether Hardie fiber cement siding contains cellulose fiber and/or wood.” Docket No. 358 (Motion to Compel) at 1. James Hardie contends that the produced documents sufficiently identify the composition of its fiber-cement siding, that it has no obligation to disclose the formula for its product, particularly to a direct competitor, and that LP's request is another attempt to require James Hardie to search the ESI of its entire salesforce, a request that has already been denied by the Court. See Docket No. 369 at 1-2.

*3 Regarding RFP 160, after discussion with the Court, the parties reached an agreement in resolution of this dispute based on an agreed-upon redrafted request, to which James Hardie agreed to produce responsive documents by February 15, 2019.[4] Regarding RFP 165, James Hardie produced responsive documents as stated in the objection, which the parties agreed resolved any disputed issues.

Regarding RFP 158, LP continues to assert that James Hardie is required to search ESI of its entire 350+ sales force, this time for responsive documents “relating to inquiries or confusion as to whether Hardie fiber cement siding contains cellulose fiber and/or wood”. Docket No. 359 at 5. James Hardie objects to this request on a variety of grounds, including: that it has no temporal limitation and therefore imposes a disproportional burden on production on James Hardie to search for potentially responsive documents; that because the request is unlimited in scope, it would require James Hardie to search every communication received to assess responsiveness and is, for that additional reason, disproportionate to the needs of this litigation; and, that the request is vague and confusing in its use of the words “wood” and “confusion.” Id.

The Court previously addressed the scope of discovery (see Order at Docket No. 367) and only briefly recites the applicable authority again here. Rule 26 provides that “[p]arties may obtain discovery regarding nonprivileged matters 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). A trial court has broad discretion to determine the proper scope of discovery. In re Ohio Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016). Although a party should not be denied access to information necessary to prove their contentions, neither should they be “permitted to go fishing and a trial court retains discretion to determine that a discovery request is too broad and oppressive.” Id. (internal citation omitted). “A court must balance the “right to discovery with the need to prevent fishing expeditions.” Id. at 236-37 (internal quotation marks and citation omitted).

The Court agrees that the request is impermissibly vague and overly broad and therefore sustained James Hardie's objection. Given the lack of any temporal limitations and the general search description for responsive documents relating to “confusion,” James Hardie would have to search every customer communication it has ever received and then attempt to discern whether that communication exhibits some confusion on the customer's part. That ambiguity alone warrants that LP's motion to compel be denied. Moreover, although James Hardie has already sufficiently demonstrated the disproportionality of searching 350+ salespeople's ESI, the Court need not resort to extrinsic evidence to resolve this dispute. Courts must also use common sense in evaluating discovery requests. To expect a party to search every customer communication since the beginning of time to assess whether any of those customers might have been confused in some way about the difference between cellulose fiber and wood would require a scope of inquiry, review, and perspicacity that is beyond any measure of common sense. The Court finds the request to be outside the scope of reasonable discovery, including discovery proportional to the needs of this case.

*4 Nevertheless, at the January 25 hearing, following discussion with counsel and the Court, James Hardie agreed to run a search of its website inquiry feature or info@jameshardie.com email account for “cellulose fiber” from April 8, 2018 forward.[5] The Court further instructed that, if the database does not contain responses to inquiries, then James Hardie must also run a search of that account for the same time period for “wood,” as well. The responses were required to be produced on a rolling basis and fully by no later than March 1, 2019.[6]

The additional three matters before the Court for resolution on January 25 are described in the parties' joint discovery dispute statement as follows:

1. (Request Nos. 101, 102, 103, 113, 115, 129, 130, 131, and 132) Whether Hardie must search for and produce all communications concerning the allegedly false and deceptive images and representations at issue in this lawsuit, even if such communications were made outside of the context of the No Wood Is Good Campaign (e.g. use of the woodpecker image or buckled siding image in other materials, or statements made by salespeople regarding woodpeckers, termites, or buckling)?

2. (Request No. 164) Whether Hardie must produce documents sufficient to identify the sources of the cellulose fiber used in Hardie fiber cement siding?

3. (Request No. 169) Whether Hardie must produce documents sufficient to identify the general process by which the cellulose fiber in Hardie fiber cement siding is obtained? Docket No. 370 at 2. Counsel notified the Court that the second and third contested issues regarding Request for Production Nos. 164 and 169 were no longer in dispute. Request No. 164 was resolved by agreement of the parties. LP's contest of James Hardie's response to Request No. 169 was withdrawn, with LP's counsel stating its intention to make further inquiries during depositions.

That leaves for resolution by the Court only LP's various requests for communications concerning the allegedly false and deceptive images and representations at issue in this lawsuit, even if such communications were made outside of the context of the No Wood Is Good Campaign (e.g. use of the woodpecker image or buckled siding image in other materials, or statements made by salespeople regarding woodpeckers, termites, or buckling). For many of the same reasons as stated above, and as discussed during the January 25 hearing, the Court finds the requests at issue to be cumulative, duplicative, and overly broad. If, as LP's counsel suggested at the January 25 hearing, the requested communications are relevant to and necessary for its damages calculations, there are much narrower and more pointed ways of asking for that information. But, neither James Hardie nor the Court is obligated to rewrite LP's discovery requests to more directly request the desired information. James Hardie's objections to the identified requests for production are sustained.

*5 It is SO ORDERED.