*1 Plaintiffs Jacobson Warehouse Company, Inc. (n/k/a GXO Logistics Warehouse Company, Inc.), Jacobson Logistics Company L.C., and XPO Logistics Supply Chain, Inc. (n/k/a GXO Logistics Supply Chain, Inc.)—transportation and logistics companies operating under the ultimate parent company XPO Logistics, Inc. (collectively, “XPO” or “Plaintiffs”)—seek a protective order with respect to Request No. 7 of the Seventh Request for Production served by Defendant Prestige Brands, Inc. (“Prestige”).[1] XPO asserts the request is “burdensome, belated and disproportionate” to the needs of the case. ECF No. 149 at 2. Prestige submitted a preliminary response to XPO's letter on April 19, 2022, ECF No. 150; based on the Court's instructions at the May 24, 2022 status conference, Prestige submitted additional letter briefing on this subject on May 27, 2022, in which Prestige made clear that it is willing to significantly limit the scope of its request.[2] ECF No. 166. XPO submitted a second letter in further support of its request for a protective order on June 3, 2022. ECF No. 172. On June 8, 2022 the Court held a status conference and oral argument on this matter.

For the reasons that follow, XPO's request for a protective order is DENIED.

In this contract dispute, Prestige has brought counterclaims against XPO claiming damages arising from errors in shipments that XPO allegedly picked, packed, and shipped to Prestige's customers. ECF No. 166 at 2. In connection with its counterclaims, Prestige compiled a set of documents that it described as “shipping documents—bills of lading, proofs of delivery, delivery receipts, and other contemporaneous documents confirming or reflecting shipments by XPO to Prestige's retail customers.” Id. at 1. According to Prestige, many of these documents were accessible by both XPO and Prestige in the normal course of business, and many were received from XPO prior to the onset of this litigation. Id. at 2-3; see also 06/08/2022 Conf. Tr., ECF No. 177 at 7:25-8:9 (counsel for Prestige explaining the documents “came from XPO's files in large part”).

Earlier in this litigation, Prestige sought to have XPO authenticate Prestige's compilation of shipping documents through voluminous requests for admission (“RFAs”). See ECF Nos. 82, 84. The Court granted XPO's request for a protective order with respect to those RFAs insofar as certain RFAs sought admissions “as to the content and interpretation—rather than genuineness—of documents.” ECF No. 163 at 19-20 (quoting BAT LLC v. TD Bank, N.A., No. 15-cv-5839 (RRM) (CLP), 2018 WL 3626428, at *5-6 (E.D.N.Y. July 30, 2018)). But before the Court ruled on XPO's request for a protective order against the RFAs, Prestige issued Request No. 7. ECF No. 166 at 1. The purpose of this request was to collect the documents that were subjects of the RFAs—and Prestige's counterclaims—directly from XPO. See id. at 1-2.

*2 During the June 8, 2022 conference, the Court addressed the possibility of a stipulation that would obviate the need for a document production, and spent a substantial amount of time at the conference exploring the potential framework of a stipulation as a possible resolution.[3] See, e.g., 06/08/2022 Conf. Tr., ECF No. 177 at 3:3-4:3, 10:2-13, 12:7-13:2, 16:8-15. The Court instructed the parties to meet and confer to attempt to reach an agreement on a stipulation, but these negotiations did not result in an agreement. ECF No. 180 at 1. The Court now turns to XPO's request for a protective order.

Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevance must be “ ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party's claim or defense.” State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14-cv-9792 (WHP) (JCF), 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)), aff'd, 2016 WL 4530890 (S.D.N.Y. Mar. 24, 2016). The Court has “broad discretion in determining relevance for discovery purposes.” Michael Kors, L.L.C. v. Su Yan Ye, No. 18-cv-2684 (KHP), 2019 WL 1517552, at *2 (S.D.N.Y. Apr. 8, 2019).

That is not to say that discovery may be freely taken in all situations without limitation. “A party or any person from whom discovery is sought may move for a protective order,” which may be issued upon a showing of good cause “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1). “[T]he party seeking a protective order has the burden of showing that good cause exists for issuance of that order.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004). Additionally, the Court has broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

XPO maintains that Prestige's need for the documents sought in Request No. 7 is outweighed by the substantial burden of producing them. In support of their argument, Plaintiffs submitted an attorney affidavit containing estimates of the time and expense XPO would incur in making such a production. See ECF No. 172-1 (Declaration of Melissa A. Barahona). According to XPO, the documents Prestige seeks are stored in hard copy format in a warehouse, and to gather the responsive documents, XPO's vendors would need to search through 2,000 bankers boxes, out of which XPO estimates “1,000-1,500 might contain the requested” shipping documents. Id. ¶ 3. From there, XPO asserts that its counsel and vendors would have to scan and review between 2.5 and 3.75 million pages of material. Id. ¶¶ 4-5. XPO estimates the average rate of review per attorney at 500-1,000 documents every eight hours (assuming each document comprises 5-10 pages), and concludes that to respond in full to Request No. 7 would take at least six months and cost at least $479,740. Id. ¶¶ 5, 8. XPO argues that this burden outweighs Prestige's need for the documents, claiming “Prestige's sole basis for demanding these documents is for authentication purposes.” ECF No. 172 at 2.

*3 In response, Prestige maintains that it needs these documents from XPO to prove its counterclaims, which Prestige values at over $16 million. See ECF No. 84 at 1. According to Prestige, the shipping documents “evinc[e] XPO's disastrous track record of errors with orders that XPO picked, packed, and shipped.” ECF No. 166 at 2. Prestige further asserts that it previously sought related discovery through less burdensome means—i.e., through RFAs—but XPO “challenged the authenticity and reliability of the shipping documents that have been produced by Prestige.” See id. at 3. Prestige also contends that it cannot obtain this discovery from any other source—it must come directly from XPO, because that is the only way to prevent XPO from “deny[ing] the authenticity of the shipping documents” or “complain[ing] that they are somehow ‘cherry picked’ or ‘incomplete.’ ” Id.

On balance, the documents sought by Prestige via Request No. 7—as narrowed by Prestige to be limited to shipping documents relating to the specific orders for which Prestige is seeking damages, see ECF No. 166 at n.3—are relevant and proportional to the needs of the case in light of all of the factors to be considered pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure. XPO has failed to show good cause for a protective order, and Prestige's need for these documents outweighs the burden and expense of production the requested materials. See Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 303-06 (S.D.N.Y. 2012) (finding no undue burden where production would require several hundred hours of work in litigation where the information requested “is central to the [party's] claims” and “the financial stakes [ ] are high”).

With respect to the importance of the documents at issue, there can be no question that the documents are highly relevant and important to Prestige's counterclaims. XPO does not contest the significance of the documents—instead, XPO seeks to minimize the need for the production by insisting that Prestige's “sole basis” for seeking the documents is “for authentication purposes.” See ECF No. 172 at 2. This contention, however, ignores the reason that Prestige resorted to issuing Request No. 7 in the first place. XPO has strenuously objected to Prestige's use of the shipping documents Prestige has already collected, referring to them as “cherry picked,” “incomplete,” and “unreliable.” See ECF No. 166 at 3 (quoting ECF No. 106 at 3-4; 01/04/2022 Conf. Tr., ECF No. 125). Plaintiffs are, of course, permitted to assert appropriate objections throughout the discovery process. But XPO's position—objecting to Prestige's set of the shipping documents as “unreliable” while simultaneously seeking to block any production of XPO's own versions—is untenable. As Defendant points out, Plaintiffs cannot “have it both ways.” See id.

With respect to the burden of producing the documents, the Court recognizes that collecting, organizing, and producing the documents will be a burdensome and time-consuming endeavor.[4] That said, as discussed on the record during the June 8, 2022 conference, the degree of that burden as set forth in XPO's papers is probably overstated. For example, XPO has estimated that it would take “one attorney 500 days to review 2.5 million documents,” which is an intrinsic assumption in XPO's ultimate conclusion that “the scanning, review, and production would take a minimum of six months.” ECF No. 172-1 ¶¶ 5, 8. For one, this estimate does not take into account the limitation set forth in Prestige's letter briefing restricting its request to “shipping documents relating to the specific orders for which Prestige is seeking damages,” ECF No. 166 at n.3, which should significantly reduce XPO's burden. Additionally, XPO's estimates seem high given that each document almost certainly need only be reviewed for responsiveness, as they are not the type of documents likely to implicate any privilege concerns. At bottom, particularly in light of the amount in controversy in this action, the parties’ relative access to relevant information, the parties’ resources, and the importance of the requested discovery, the burden of producing these materials is outweighed by the likely benefit of the production to the fair resolution of the issues in this litigation.[5]

*4 The parties should be prepared to have a preliminary discussion at the July 22, 2022 conference about the impact of this decision on the remaining discovery schedule.

For the reasons set forth above, XPO's motion for a protective order, filed at ECF No. 149, is DENIED.