*1 Plaintiff FastTrac Transportation, LLC, filed two motions—one to compel defendant Pedigree Technologies, LLC, to produce certain documents and another seeking leave to file an amended complaint. (Doc. 35; Doc. 39). Though seeking different forms of relief, the two motions are based on a common assertion—that Pedigree's manner of responding to FastTrac's discovery requests made both motions necessary. Pedigree opposes both motions.

A recent order described relevant factual and procedural background:

*2 (Doc. 38, pp. 1-3) (citations omitted).

During the January 19 conference, the court authorized FastTrac to file a motion concerning a dispute about Pedigree's obligation to produce its source code for the web-based platform that is the subject of the parties’ contract. A February 1, 2023 order denied FastTrac's request to extend certain deadlines but stated that matter might be reconsidered after a decision on FastTrac's motion to compel. Id.

Though the deadline for seeking to amend a pleading has passed, FastTrac filed a motion to amend the complaint on February 2, 2023. FastTrac contends it should be allowed to file an amended complaint reasserting fraud and fraudulent misrepresentation claims because it did not have evidence needed to amend its complaint until it received Pedigree's discovery responses. Pedigree responds that FastTrac “had all the information necessary to colorably plead [its] fraud claim even before submitting the original complaint.” (Doc. 45, p. 1).

FastTrac's motion to compel is governed by Federal Rule of Civil Procedure 26. Under Rule 26(b)(1), parties are entitled to discover any nonprivileged matter that is relevant to any party's claims or defenses and proportional to the needs of the case. Factors to be considered in determining proportionality include the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Resolution of FastTrac's motion requires analysis of several questions: whether FastTrac's requests are reasonably interpreted to include a request for production of the source code, whether the source code is relevant to FastTrac's claims, and—if the court concludes the source code is otherwise within the scope of discovery allowed under Rule 26(b)(1)—whether the burden of production of the source code would outweigh its likely benefit. As the moving party, FastTrac has the burden to establish its requests come within the scope of Rule 26(b)(1). Rychner v. Cont'l Resources, Inc., No. 1:19-cv-71, 2021 WL 2211110, at *2 (D.N.D. June 1, 2021) (stating the proponent must make a threshold showing of relevance); InCompass IT, Inc. v. Dell Inc., Civ. No. 11-0629, 2012 WL 13027072, at *3 (D. Minn. June 29, 2012) (stating the moving party has the burden to show why the non-moving party must be compelled to respond to discovery).

1. Scope of FastTrac's Discovery Requests

FastTrac contends its discovery requests, through a broad definition of “document” together with its multiple requests for software embedded in Pedigree's system, encompassed a request for Pedigree's source code. Pedigree argues FastTrac did not properly request the source code, the source code is highly confidential, and FastTrac has not articulated either relevance of or need for the source code.

FastTrac acknowledges its discovery requests did not specifically include the words “source code.” FastTrac instead argues Pedigree's source code was implicitly requested in Requests for Production of Documents that included requests for copies of (1) the “user documentation” and “specifications” for the Pedigree System, as referenced in Section 1.6 of the Master Agreement; (2) the product specifications for the hardware components of the Pedigree System as provided by Pedigree's hardware manufacturer(s); (3) all documents and communications establishing or showing that the Pedigree System provided to FastTrac was in “good working order” as referenced in the Contract; (4) all documents and communications relating to any data collected by Pedigree via the Pedigree System used by FastTrac; (5) all documents and communications relating to the telematics black boxes in the Pedigree System provided to FastTrac; (6) all documents and communications relating to the connection status of the Wi-Fi and Bluetooth components of the Pedigree System provided to FastTrac, including all “connection status” “reports”; (7) all documents and communications relating to the automation of FastTrac's logbooks via the Pedigree System provided to FastTrac; (8) all documents and communications relating to the change of FastTrac's drivers’ “driving” and/or “duty” “status” in the Pedigree System provided to FastTrac; (9) all documents and communications relating to issues, defects, and/or malfunctions in the compatibility of the Pedigree System provided to FastTrac with third-party devices; (10) all documents and communications relating to the “software changes” made to the Pedigree System provided to FastTrac to resolve the “flickering issue” encountered by FastTrac with the Pedigree System; (11) all documents and communications relating to an “ELD data diagnostic event” and/or “data inconsistency” generated by the Pedigree System provided to FastTrac; (12) all documents and communications relating to a “Solid Red” malfunction light triggered on the Pedigree System provided to FastTrac; (13) all documents and communications relating to any “malfunction and data diagnostic event” with the Pedigree System provided to FastTrac, including “power data diagnostic,” “power compliance malfunction,” “engine synchronization data diagnostic,” “engine synchronization data diagnostic,” “engine synchronization compliance malfunction,” “other data diagnostic (for positioning compliance),” “positioning compliance malfunction,” “timing compliance malfunction,” “missing required data elements data diagnostic,” “data recording compliance malfunction,” “unidentified driving records data diagnostic,” “data transfer compliance malfunction,” and “data transfer data diagnostic”; and (14) all the “dash cam data delivered through the CameraView Solution” in the Pedigree System provided to FastTrac. (Doc. 36-1, pp. 10, 16-18).

*3 Further, FastTrac cites the following definition of “document” included in its discovery requests:

Id. at 7.

FastTrac cited three cases in support of its assertion that it was not required to use the specific words “source code” for Pedigree to be required to produce its source code. (Doc. 36, p. 3). Though all three cases involve production of source code, none deals with discovery requests that did not specifically include the word “source code.” In HLRIP Holdings, Inc. v. Rutherford County, Tennessee, a patent case, some source code had been produced, but the parties disputed whether there was an obligation to produce additional source code as it existed prior to the disputed patent's priority date. Requests for production included one specifically requesting “all versions of all source code” for products or systems that embodied the patent at issue. No. 2:19-cv-00714, 2021 WL 6498866, at *3 (M.D. Tenn. Feb. 5, 2021). In that context, the court ordered production of the additional source code. FastTrac cites another patent case in which the court ordered disclosure of source code, though restricting access to the source code to attorneys directly involved in the litigation. MVS Studio Inc. v. Bingo Bean, LLC, No. CV-07675, 2011 WL 10538669, at *2 (C.D. Cal. June 24, 2011). The third cited case, Inovision Software Solutions, Inc. v. Autis Ingenieros, S.L.U., involved agreements for development of software. The plaintiff moved to compel disclosure of “the intellectual property associated with the products that were developed” under certain purchase orders, which included the “attendant software,” including the source code and access codes. No. 19-12580, 2021 WL 1422777, at *1 (E.D. Mich. April 14, 2021). The court concluded the information requested was relevant and ordered it produced subject to a protective order's “attorneys’ eyes only” designation. Together, the three cases can be read to establish that, if source code is properly requested and relevant, a court can order its production. The court next considers whether FastTrac has met those standards.

*4 Pedigree argues none of FastTrac's discovery requests can reasonably be interpreted to include a request for production of Pedigree's source code. Requests for production of documents are governed by Federal Rule of Civil Procedure 34, which requires that a request “describe with reasonable particularity each item or category of items” to be produced. Fed. R. Civ. P. 34(b)(1). Pedigree cites cases interpreting the “reasonable particularity” requirement to mean a request must apprise a “person of ordinary intelligence” of the documents being requested. (Doc. 42, pp. 5-6).

Pedigree points to several of FastTrac's requests seeking only information about hardware or hardware specifications and another request seeking dash camera data for FastTrac's trucks. The court agrees none of those requests describes source code with reasonable particularity. As to FastTrac's remaining assertions of requests encompassing source code, Pedigree contends:

Id. at 6-7. Further, Pedigree argues the contention that FastTrac requested the source code in the “cryptic manner” it now advances lacks credibility in light of FastTrac's assertion that the source code is “highly relevant as it is the definitive, and the sole means of ascertaining how the Pedigree System actually performs its functions.” (Doc. 36, p. 3).

Of the fourteen requests for production FastTrac identifies as encompassing requests for Pedigree's source code, only one includes the word “software”—a request for documents and communications relating to “software changes” made to the system Pedigree provided to FastTrac to resolve a “flickering issue.” The court cannot find that request, or any of the other thirteen requests FastTrac cites, to encompass the entirety of Pedigree's source code as it evolved over the course of the parties’ business relationship.

Additionally, the court notes FastTrac offers no explanation as to why it did not specifically reference source code in any of its discovery requests or why it did not contact Pedigree—or the court—about its concerns over source code production until the period for completion of fact discovery had almost ended.

2. Relevance of Source Code to Remaining Claims

In Pedigree's view, even if the court were to find FastTrac had requested the source code, the motion should be denied because the source code is neither relevant to any of FastTrac's remaining claims nor necessary to FastTrac's case. FastTrac, on the other hand, views the source code as being “at the heart of this business dispute.” (Doc. 36, p. 4).

As Pedigree asserts, courts have established a higher burden to obtain discovery of trade secret information, where a moving party is required to demonstrate both the relevance of the requested information and how the information is necessary to the action. (See Doc. 42, p. 4). That burden-shifting framework arises from Rule 26(c)(1)(G), which provides a court may enter a protective order requiring that a trade secret “not be revealed or be revealed only in a specified way.” In light of that rule, the Eighth Circuit has described a framework for reconciling the competing interests involved in trade secret discovery disputes. First, the party opposing discovery must show the information is a trade secret and its disclosure would be harmful to the party's interest. If the opposing party makes the requisite showing, the burden shifts to the party seeking discovery to show that the “information is relevant to the subject matter of the lawsuit and is necessary to prepare the case for trial.” In re Remington Arms Co., Inc., 952 F.2d 1029, 1032 (8th Cir. 1991); Chairez v. AW Distributing, Inc., No. 20-CV-1473, 2023 WL 2071375, at *4 (D. Minn. Feb. 17, 2023). FastTrac does not contest Pedigree's characterization of the source code as trade secret information and does not argue there would be no harm to Pedigree's interests if the source code were disclosed. The burden is therefore on FastTrac to show relevance of the source code to its claims and necessity of the source code to prove its claims.

*5 Pedigree contends the remaining claims are limited to whether it complied with the parties’ Master Agreement and nothing in the Master Agreement addresses how the Pedigree software would function. Additionally, Pedigree posits FastTrac has not identified how the source code is relevant to any failure to comply with the Master Agreement. (Doc. 42, p. 10).

In denying Pedigree's motion to dismiss FastTrac's breach of contract claim, the district judge wrote:

(Doc. 15, p. 5).

In its reply brief, FastTrac points to a declaration Pedigree filed with its responsive brief, in which a Pedigree officer stated Pedigree “would not exist” without its source code. FastTrac asserts the declaration proves “it is the Pedigree software and its represented capabilities that are at the core of the contract between FastTrac and Pedigree.” (Doc. 44, p. 2). But to prove its breach of contract claim, FastTrac must prove the dash cameras did not comply with the parties’ agreement, and FastTrac has identified no portion of the agreement that concerns Pedigree's source code. Nor has FastTrac explained how the source code would show the dash cameras did not function in a manner that met contract requirements. If, in fact, the dash cameras did not perform as agreed, the deficient performance might have resulted from problems with the source code. But FastTrac must prove how—not why—the dash cameras did not meet requirements of the agreement. FastTrac has not suggested the source code would assist it in establishing deficient performance of the dash cameras. Apart from the breach of contract claim, the only remaining claim is one of express warranty, and that claim includes a one-year warranty covering only hardware. Id. at 8-10. FastTrac has not suggested how the source code might be relevant to the hardware warranty claim or necessary to proof of that claim. FastTrac has not met its burden under Remington Arms.

3. Burden of Producing Source Code

Even if FastTrac's discovery requests were interpreted to include Pedigree's source code, and even if FastTrac established the source code is relevant and necessary to its remaining claims, the court would need to consider the Rule 26 factors to determine whether the requested discovery is proportional to the needs of the case.

In support of its opposition to the motion to compel, Pedigree filed a declaration of Joshua DeCock, Pedigree's Vice President of Product Management, who oversees development and maintenance of software for the Pedigree system at issue in this litigation. DeCock described the software as a “closely guarded trade secret” without which Pedigree would not exist. (Doc. 43, pp. 1-2). He states there were dozens of changes in the source code during the relevant time period. DeCock's declaration asserts extensive precautions would be required to safeguard Pedigree's source code during a third party's review for legal purposes, including purchase of “a special locked down standalone computer with no internet capability and no external USB port” onto which Pedigree would upload its source code, with a Pedigree representative present when FastTrac's expert accessed and reviewed the source code. Id. at 3. The declaration estimates the process of arranging for and allowing FastTrac's expert to review the source code would cost Pedigree $8,000 to $20,000. Id. at 4.

*6 With its reply, FastTrac filed a declaration of Mahdi Eslamimehr, a software engineer FastTrac has retained as a consultant in this litigation. Eslamimehr's declaration describes a process he would use to examine the Pedigree source code, where the source code would be “cloned” from Pedigree's proprietary repository and transmitted to Eslamimehr for analysis via an encrypted file, he would use his company's secure dedicated code review room to conduct the review, and the clone of the Pedigree source code would be “thoroughly wiped out with special tools from [his] analysis machine” at the conclusion of the litigation. (Doc. 44-1, pp. 5-6). Eslamimehr states he would analyze the source code on a machine used specifically for that purpose, using “curated tools which objectively analyze many different metrics from the software development process.” Id. at 6. Eslamimehr describes DeCock's use of a “clean room computer” as typical only for patent review and unnecessary for review of source code in contract disputes. Id.

FastTrac discounts DeCock's declaration as providing only an estimate of time that would be required to produce the source code in a secure manner and points to the declaration including no evidence DeCock is qualified or experienced in the process of source code review. (Doc. 44, p. 4). But DeCock's declaration describes him as responsible for overseeing development and maintenance of Pedigree's source code and describes tasks a software developer would perform in preparing the source code for review by a third party. (Doc. 43). The court considers DeCock sufficiently qualified to address the matters addressed in his declaration.

FastTrac does not dispute that the source code is trade secret information and that it would need to be protected from unauthorized disclosure if Pedigree were required to produce it. While FastTrac's consultant asserts a less-complex process could be used for review of the source code, he does not estimate time or cost that would be involved in using that process to review the Pedigree source code.

If production of the source code were to be ordered, the court would give considerable weight to the parameters Pedigree describes for third party review and might require that FastTrac bear the cost of implementing that review. But since FastTrac's requests for production of documents cannot be fairly interpreted to include a request for Pedigree's source code and since FastTrac has not sufficiently shown relevance or necessity of the source code to any of its remaining claims, its production would not be proportionate to the needs of the case, and the court will not order production of the source code.

The court then turns to FastTrac's motion for leave to amend its complaint after the deadline for such motions—a deadline to which the parties had stipulated and which the court had adopted. FastTrac argues the after-deadline motion should be considered because it is based on evidence in internal documents that Pedigree produced in December 2022, after the deadline for filing motions to amend pleadings had passed. FastTrac argues it acted diligently because it served discovery requests within the time allowed by the scheduling order and filed its motion to amend only four months after the deadline for motions to amend pleadings. In Pedigree's view, FastTrac could have moved to amend the complaint without the documents produced in December 2022, FastTrac has not shown diligence in conducting discovery, and Pedigree would be prejudiced if the amendment were allowed.

1. Good Cause to Amend Scheduling Order

Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be modified only for good cause and with the consent of the court. To establish good cause for modification, a moving party generally must show its diligence in attempting to meet the established deadlines. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008). “Where there has been ‘no change in the law, no newly discovered facts, or any other changed circumstance ... after the scheduling deadline for amending pleadings,’ then we may conclude that the moving party has failed to show good cause.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Under Sherman, and other Eighth Circuit case law, it is generally only after a moving party establishes good cause that a court considers issues of prejudice—or lack thereof—to other parties.

*7 In dismissing Fast Trac's claims of fraud and fraudulent misrepresentation, the presiding district judge found the complaint did not meet the heightened pleading standard required for those claims, describing the complaint as “silent as to the who, when, and where” of the statements alleged to have been fraudulent. (Doc. 15, p. 16). As FastTrac now stresses, the fraud and fraudulent misrepresentation claims were dismissed without prejudice. Id.

FastTrac asserts it did not learn of facts sufficient to satisfy the deficiencies described when the fraud claims were dismissed until Pedigree's December 2022 document production. In support of its motion, FastTrac filed various internal email communications in which Pedigree employees discussed responses to problems FastTrac had encountered with the Pedigree system. (Docs. 41-1 to -3). FastTrac argues it was not until its review of those internal communications in Pedigree's document production that “the true story was for the first time set before FastTrac, [and] it was clear that Pedigree had defrauded FastTrac from the first sales meeting to the date FastTrac finally had to abandon the Pedigree System.” (Doc. 41, pp. 1-2). In FastTrac's view, it had not had sufficient information to meet the heightened standard required for pleading fraud prior to receipt of those communications.

One of the allegations in FastTrac's proposed amended complaint is that Pedigree falsely represented its system would use “plug and play” connections to FastTrac's trucks, rather than requiring that the dash cameras be hard wired into the trucks. Concerning that matter, FastTrac filed an email exchange among Pedigree employees dated June 24, 2019—approximately one month after the parties entered into their agreement—that included the following:

Nicole Miller to Joshua DeCock

(Doc. 41-2, pp. 2-4) (formatting altered).

Another allegation of FastTrac's proposed amended complaint is that the Pedigree system did not record and store video footage when a FastTrac truck was involved in an accident. FastTrac filed copies of the following November 5, 2020 email exchange between two Pedigree employees concerning that issue:

(Doc. 41-1, p. 3) (formatting altered). That exchange is part of an earlier email chain captioned “Recap of Pedigree/FastTrac discussion.” Earlier parts of the email chain had apparently been sent to FastTrac personnel, without the internal Pedigree communications quoted above. (Doc. 45-5, pp. 2-4). A December 7, 2019 internal email exchange included the following concerning accident video footage:

(Doc. 41-3, pp. 2-3) (formatting altered). An additional email concerning accident video—the original date of which is not clear—appears to have been addressed to DeCock and forwarded from Miller to Shue on August 19, 2021:

Id. at 2 (formatting altered).

FastTrac describes the December 2022 document production as revealing “game-changing” facts, analysis of which was delayed by Pedigree having produced the documents in a haphazard fashion. Though Pedigree faults FastTrac for not propounding written discovery sooner, FastTrac points to having served discovery prior to the deadline for doing so.

*9 Pedigree argues its document production did not provide any facts that were not available to FastTrac earlier and that the manner in which it produced the documents complied with Federal Rule of Civil Procedure 34. In Pedigree's view, the facts necessary to adequately plead fraud were within FastTrac's control prior to initiation of the litigation since FastTrac employees had been involved in communications with Pedigree employees during the relevant times. FastTrac states some of its employees who had been involved in those communications are no longer with FastTrac, and Pedigree responds that FastTrac has not shown it diligently attempted to contact those former employees. Pedigree points to its employees who were involved in the email communications having been identified in its initial disclosures and argues FastTrac could have initiated discovery soon after the order dismissing the fraud claims was issued. Pedigree also points to FastTrac not having filed the motion to amend until February 2, 2023, four months after the applicable deadline and about six weeks after FastTrac received Pedigree's document production.

FastTrac acknowledges Rule 16(b)(4)’s good cause inquiry focuses on a movant's diligence in attempting to meet requirements of a scheduling order but argues Eighth Circuit precedent “does not go so far as to state that diligence is required for the district court to find good cause.” (Doc. 41, p. 5) (quoting Portz v. St. Cloud State Univ., Civ. No. 16-1115, 2017 WL 3332220, at *2 (D. Minn. Aug. 4, 2017)). In Portz, reversing a magistrate judge's denial of a motion to amend, the district judge wrote:

2017 WL 3332220, at *3-4.

Indeed, whether to allow amendment of a scheduling order is a fact-specific decision which involves considerable exercise of the court's discretion. Kmak v. Am. Century Cos., Inc., 873 F. 3d 1030, 1034-35 (8th Cir. 2017). Good cause has been found when new evidence emerged during the course of discovery. But a party does not meet the good cause standard under Rule 16(b) if the relevant information on which it seeks to base an amended pleading was available to it earlier in the litigation. IBEW Local 98 Pension Fund v. Best Buy Co., Inc., 326 F.R.D. 513, 522 (D. Minn. 2018).

*10 FastTrac cites a number of cases in which a court found good cause under Rule 16(b)(4). Review of those cases confirms the need to consider specific facts of each case. In Shank v. Carleton College, the plaintiff filed a motion to amend a complaint to add a claim for punitive damages more than a year after the applicable deadline, and the magistrate judge found good cause because the law regarding amending to add punitive damage claims was in flux in the district and the scheduling order was somewhat unclear as to the motion deadline. 329 F.R.D. 610, 614-15 (D. Minn. 2019). Pick v. City of Remsen involved a former city employee's allegations of libel, slander, wrongful termination, and other claims. Five months after the deadline for motions to amend pleadings, the plaintiff moved to amend his complaint for the fourth time. The court granted the motion in part, allowing only an amendment adding a defamation claim based on email communications that had recently been disclosed. As to other requested amendments, the court found the plaintiff had not shown that, despite diligence, he could not reasonably have filed the motion “long ago.” 298 F.R.D. 408, 413 (N.D. Iowa 2014). In Doeling v. Bryniarski, the plaintiff moved to amend a complaint more than eight months after the established deadline, and the court found good cause for the late filing based on newly discovered evidence that could not have been obtained earlier through the exercise of reasonable diligence. No. 10-1047, 2011 WL 13234817, at *7 (D. Minn. Apr. 25, 2011). A magistrate judge found good cause under Rule 16(b)(4) in Silva v. Metropolitan Life Insurance Co. but denied the motion to amend after concluding the proposed amendment would be futile. The Eighth Circuit agreed with the good cause finding based on additional evidence the plaintiff had received but reversed the magistrate judge's conclusion regarding futility. 762 F.3d 711, 719-25 (8th Cir. 2014).

Pedigree, of course, cites a number of cases in which a court declined to find good cause under Rule 16(b)(4), including several of this court's decisions. In Kinetic Leasing, Inc. v. Nelson, this court denied a motion to amend after the deadline had passed. No. 3:16-cv-99, 2017 WL 2985536, at *9 (D.N.D. Apr. 14, 2017). The facts of that case, however, are quite different from those of this case. Kinetic involved a defendant seeking to amend a pleading to assert a statute of limitations defense. But the affirmative defense was based on a clause in an agreement the defendant itself had drafted, so there was no question the information had been available to the defendant prior to initiation of the litigation.

Pedigree also cites this court's order in Weather Modification LLC v. Brackin where good cause was lacking because the plaintiffs had had possession of almost all documents relevant to a proposed amended complaint prior to initiation of the litigation and because plaintiffs had not requested to extend their deadline to move to amend the complaint even though the parties had agreed on extension of various other deadlines. 340 F.R.D. 316, 324-25 (D.N.D. 2021).

In Dyrdahl v. Matthys, a medical malpractice case, the plaintiff moved to add an informed consent claim after the deadline for motions to amend the pleadings. The plaintiff asserted they had not had enough information to plead the claim until after taking the deposition of the defendant physician, and the defendant countered that sufficient grounds existed earlier because the plaintiff had been present during the informed consent discussion with the physician. This court declined to find lack of diligence, stating, “[T]o conclude here, as defendants urge, that [the patient] had sufficient grounds to assert the claim by virtue of his presence during [the physician's] discussion of informed consent would require a finding that [the patient] knew the options for the surgery at the time of that discussion.” No. 3:18-cv-124, 2019 WL 10894117, at*5 (D.N.D. July 30, 2019).

The plaintiffs in Hartis v. Chicago Title Ins. Co. moved to amend their complaint to add a claim for punitive damages more than two years after the deadline and argued they had not asserted the claim earlier because they viewed a punitive damages claim as cause for the court to deny class certification. The court denied the motion, noting the plaintiffs had waited more than six months after a decision denying class certification to file the motion. 694 F.3d 935, 948-49 (8th Cir. 2012).

The court declined to find good cause in Target Corp. v. LCH Pavement Consultants, LLC where the plaintiff had made “no argument as to good cause whatsoever.” 960 F. Supp. 2d 999, 1007 (D. Minn. 2013). Pedigree cites various other cases standing for the principle that if a party was aware of facts underpinning a motion to amend prior to the scheduling order's deadline, leave to amend after the deadline is improper. See, e.g., Wallace v. AlliedBarton Sec. Servs., LLC, 309 F.R.D. 49, 51-52 (D.D.C. 2015); Lincoln Savings Bank v. Open Solutions, Inc., 956 F. Supp. 2d 1032, 1041 (N.D. Iowa 2013); Ruiz v. Univ. of Tex. M.D. Anderson Cancer Ctr., 291 F.R.D. 170, 172 (S.D. Tex. 2013). Similarly, courts have often found good cause lacking if a party failed to seek evidence necessary to determine whether amendment of a pleading might be in order. Husky Ventures, Inc. v. B55 Invs., Ltd. 911 F.3d 1000, 1021 (10th Cir. 2018); EEOC v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012); S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1242 (11th Cir. 2009); In re Milk Products Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir. 1999).

*11 This case presents a close question. FastTrac could have avoided this controversy by requesting a later deadline to file motions to amend its complaint, serving discovery sooner, and analyzing the documents it received sooner. As noted in the February 1, 2023 order, FastTrac's decisions to serve discovery requests on the last day it was allowed to do so and to raise its concerns about Pedigree's responses only on the eve of the discovery motion deadline lead the court to question its diligence. (Doc. 38, p. 5). But this court views the documents Pedigree produced in December 2022 as including important facts not available to FastTrac earlier—that some Pedigree employees apparently knew reasons for the problems FastTrac reported with the Pedigree system were attributable to deficiencies in the system, and that some Pedigree employees believed FastTrac's “deal breaker” desire for a plug and play system could be provided while other Pedigree employees apparently knew that could not be done.

As did the court in Portz, this court considers Rule 1’s mandate that the Rules of Civil Procedure be construed and administered to secure a just, speedy, and inexpensive determination of every action. A just determination encompasses deciding a case on its merits. Markham v. Holt, 269 F.2d 940, 943 (5th Cir. 1966); Lane v. U.S. Dep't of Agric., No. A2-98-43, 1998 WL 1780655, at *1 (D.N.D. June 2, 1998). Additionally, though FastTrac agreed to the proposed deadlines, the court notes the deadlines set in the scheduling order gave very little time for motions to amend the pleadings and less time for discovery than is typical.[1] Considering all the factors discussed herein, the court finds good cause to amend the scheduling order to consider FastTrac's motion to amend the complaint.

2. Application of Rule 15

Having found good cause under Rule 16(b)(4), the court then considers the standards for amendment of pleadings of Federal Rule of Civil Procedure 15. Under Rule 15, the court is to “freely give leave [to amend] when justice so requires.” A motion for leave to amend is generally granted, in the absence of the movant's undue delay, the movant's bad faith, futility, or unfair prejudice to an opposing party. Hillesheim v. Myron's Cards & Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018). Pedigree does not assert futility or bad faith, and the court finds neither of those factors applicable.

Pedigree does, however, allege undue prejudice would result if the amendment were allowed. Pedigree asserts that it focused its discovery efforts on the contract and express warranty claims since FastTrac's fraud claims had been dismissed. Therefore, it argues, if the amendment is allowed, additional written discovery and additional depositions would be necessary to prepare its defense, extension of the deadline for dispositive motions would be necessary, and trial might have to be continued. The court recognizes that limited additional discovery may be necessary and that allowing even limited additional discovery will likely lead to extension of the dispositive motion deadline and continuation of the trial date. But the prejudice to Pedigree that may result from the delays is outweighed by the court's preference for determination of the action on its merits.

The court concludes FastTrac's discovery requests cannot be reasonably interpreted to have included a request for Pedigree's source code and even if the discovery requests were interpreted that way, FastTrac has not shown the source code is relevant to its claims or necessary to the action. Further, FastTrac has not shown production of the source code would meet proportionality standards of Rule 26. FastTrac's motion to compel discovery, (Doc. 35), is therefore DENIED.

*12 In this court's opinion, Pedigree's December 2022 document production included important facts not previously available to FastTrac and the court therefore finds good cause to allow amendment of the scheduling order pursuant to Rule 16(b)(4), and GRANTS FastTrac's motion, (Doc. 39), to file its proposed amended complaint. FastTrac is directed to promptly file its proposed amended complaint.

The parties are directed to confer within ten days of the date of this order regarding an amended schedule for limited discovery and for motion deadlines. Within that time, the parties are directed to submit their proposal to the court at ndd_J-Senechal@ndd.uscourts.gov. Additional discovery will be limited to FastTrac's claims of fraud and fraudulent misrepresentation. The court does not view the limited additional discovery as including production of Pedigree's source code.

IT IS SO ORDERED.