*1 On December 12, 2018, plaintiffs DDK Hotels, LLC, DDK/WE Hospitality Partners, LLC, and DDK/WE Hotels Management, LLC (collectively, the “Plaintiff Entities” or “DDK”), commenced this action in New York State Supreme Court, Kings County, against Williams-Sonoma, Inc. and Williams-Sonoma Stores, Inc. (collectively, “defendants” or “Williams-Sonoma”), alleging breach of contract, breach of the implied covenant of good faith and fair dealing, aiding and abetting breaches of fiduciary duty, and breach of fiduciary duty. (See ECF No. 1 ¶¶ 1, 76-101). The action was removed to this Court on January 11, 2019. (ECF No. 1). On February 8, 2019, plaintiffs filed an Amended Complaint adding a claim for unjust enrichment (see ECF No. 10 ¶¶ 138-42), and on March 13, 2020, plaintiffs filed a Supplemental Complaint adding an additional breach of contract claim. (ECF No. 63).

Currently pending before this Court are defendants’ motions to: 1) compel the production of documents relating to Frank Anderson (“Mr. Anderson”) and his relationship to DDK, his role in the JV Company, and his relationship with DDK's managers, Kim Phoebus (“Ms. Phoebus”) and/or David Bowd (“Mr. Bowd”); 2) rule on certain objections of attorney work product that were raised during Mr. Anderson's deposition and require Mr. Anderson to complete his deposition; 3) require plaintiffs to designate another Rule 30(b)(6) witness to testify about Noticed Topic No. 15, which seeks to inquire as to “the access to, review of, and/or collection” of former DDK principal David Wasserman's (“Mr. Wasserman”) email account and emails; 4) provide updated affidavits from Ms. Phoebus and Mr. Bowd relating to their income/compensation; and 5) provide updated responses for outstanding discovery requests. (Defs.’ Mot.[1]).

For the reasons set forth below, defendants’ discovery motion is granted in part and denied in part.

A. Deposition of Frank Anderson

Discovery in this matter has been ongoing since early 2019, with numerous discovery disputes filed with this Court. The latest dispute stems from the deposition of Frank Anderson, who had been described by Ms. Phoebus in her deposition as “an advisor.” (Defs.’ Mot. at 2).

According to defendants, prior to Ms. Phoebus's May 23, 2022 deposition, Mr. Anderson's involvement with plaintiffs had not been mentioned during other depositions and only a dozen or so documents out of approximately 100,000 produced by plaintiffs raised Mr. Anderson's name. (Id., n.1) Moreover, there was no privilege log provided by plaintiffs identifying any documents or communications with Mr. Anderson that were being withheld on grounds of privilege. (Id.)

Defendants deposed Mr. Anderson on August 4, 2022, after some initial difficulty in serving subpoenas on him. (Id. at 2) According to his deposition, it became clear that Mr. Anderson played an important role in a number of events that have been the focus of defendants’ discovery to date, including his role as “principle [sic] actor” in the rejection of Provenance Hotel's offer to buy out the interests of Ms. Phoebus and Mr. Bowd in the West Elm Hotels joint venture, and his role in providing “strategic business advice” to Ms. Phoebus and Mr. Bowd pertaining to the joint venture, how to remove Mr. Wasserman from the joint venture, and when to seek legal counsel. (Id. at 2-3). Defendants also learned that Mr. Anderson received copies of Mr. Wasserman's email communications, without Mr. Wasserman's knowledge or consent, along with other confidential contracts, documents and communications relating to the West Elm Hotels joint venture – all of which were documents and other communications that Mr. Anderson as a third party was not authorized to receive. (Id.)

*2 Defendants contend that based on Mr. Anderson's testimony, “it became abundantly clear that Plaintiffs strategically and intentionally withheld information and documents ... in an attempt to hide Mr. Anderson's level of involvement in critical matters relevant to the claims and defenses in this action.” (Id. at 3). Moreover, during the deposition, Mr. Anderson, who was not represented by counsel and is not an attorney, adopted the instructions of plaintiffs’ counsel not to answer certain questions based on an assertion of work product; Mr. Anderson confirmed that he would not discuss certain topics unless ordered by the court. (Id.)

Defendants complain that in the prior depositions of Ms. Phoebus and Mr. Bowd, neither mentioned Mr. Anderson and their testimony not only minimized his involvement in the events underlying this litigation but directly contradicted Mr. Anderson's testimony in certain respects, including whether Ms. Phoebus or Mr. Bowd hired Mr. Anderson personally, whether there was a formal arrangement between them when Ms. Phoebus had forwarded Mr. Anderson an email on September 11, 2018 (the one email that Ms. Phoebus testified to sending Mr. Anderson), and whether Ms. Phoebus or Mr. Bowd exchanged a significant number of emails or had correspondence with Mr. Anderson relating to DDK business. (Id. at 6). Defendants seek an Order requiring plaintiffs to provide documents relating to Mr. Anderson that should have been provided when defendants’ document requests were served “over three years ago.” (Id. at 3). Among other things, defendants seek documents that Mr. Anderson testified he had received from Ms. Phoebus and Mr. Bowd, including, but not limited to, confidential communications with Bashar Wali of Provenance Hotels, Mr. Wasserman's emails, confidential agreements relating to the joint venture, including management agreements, technical service agreements, and licensing agreements, none of which was provided by plaintiffs in response to defendants’ discovery requests. (Id. at 4). Defendants contend that documents relating to Mr. Anderson should have been produced in response to defendants’ Requests for Production Nos. 7, 8, 9, 10, 12, 18, 20, 23, 35, and 36. (Id. at 4-6).

Defendants also contend that plaintiffs’ counsel raised improper and invalid assertions regarding attorney work product that effectively prevented Mr. Anderson from providing testimony in certain critical areas. (Id. at 7). According to defendants, counsel took the position that once Mr. Anderson made the suggestion to Ms. Phoebus and Mr. Bowd that they should speak to an attorney regarding the joint venture, all subsequent conversations with Mr. Anderson were covered by work product protections because any such conversations involved things being discussed with counsel, even though Mr. Anderson was not engaged with or directed by counsel. (Id.) Defendants contend that the instructions and objections on these grounds were an improper invocation of the work product doctrine and Mr. Anderson should be required to sit for another session of his deposition and directed to answer these questions that he refused to answer before. (Id. at 7-8).[2]

*3 Defendants further note that plaintiffs’ counsel objected to certain questions posed to Mr. Anderson, claiming that he was a “non-testifying expert.” (Id. at 8). However, Mr. Anderson made it clear that while he was “vetted” as a potential expert, he was never hired by plaintiffs or their counsel as an expert in connection with this litigation. (Id. at 8).

In response, plaintiffs contend that Mr. Anderson did not play a “major and material role” in the joint venture project, having only been involved during a less than three-month period from July 2018 through September 2018. (Pls.’ Resp.[3] at 1-2). Plaintiffs allege that Mr. Anderson was retained by Ms. Phoebus and Mr. Bowd to perform a valuation assessment in connection with the potential sale of their interests in DDK to Provenance Hotels. (Id. at 2). However, as Mr. Anderson testified, he never determined the value of their interests and did not generate a report. (Id.) Instead, he testified that within weeks of beginning the analysis, he advised Ms. Phoebus and Mr. Bowd to retain counsel because he anticipated “a legal process.” (Id.) Among other things, he told Ms. Phoebus and Mr. Bowd that the Provenance offer was unrealistic and that Messrs. Bellos, Wali and Wasserman had violated their fiduciary duties. (Id.) In August 2018, DDK's counsel Christina Hassan[4] was introduced to Mr. Anderson, and thereafter, plaintiffs claim that Mr. Anderson was involved in conversations with Ms. Phoebus, Mr. Bowd and Ms. Hassan. (Id.)

Plaintiffs argue that the plain language of Rule 26 makes it clear that the work product privilege “protects the mental impressions of counsel and the party, as well as agents for counsel and parties.” (Id. at 6 (citing cases)). Plaintiffs contend that Mr. Anderson was communicating with counsel after the parties anticipated litigation and it is irrelevant whether he was retained by counsel or engaged by the client. (Id.)

Referring to Rule 26(b)(4)(D), plaintiffs also raise a different argument that does not implicate the work product doctrine – namely, that Mr. Anderson was a “non-testifying expert” whose opinions cannot be determined by “interrogatories or deposition” absent a showing of “exceptional circumstances.” (Id. at 6-7 (quoting Fed. R. Civ. P. 26(b)(4)(D))). See also Chiquita Int'l Ltd. v. M/V Bolero Reefer, No. 93 CV 0167, 1994 WL 177785, at *1 (S.D.N.Y. May 6, 1994). However, plaintiffs seem to concede that when a non-testifying expert has factual information, he may be deposed about that but not about any opinions he may hold. (Pls.’ Resp. at 7 (citing Higher One, Inc. v. TouchNet Info. Sys., Inc., 298 F.R.D. 82, 87 (W.D.N.Y. 2014))).

Plaintiffs assert that during Mr. Anderson's deposition, “there were a total of five questions that implicated [his] role as a non-testifying expert,” and that he answered three out of five. (Id. at 3). The questions that he refused to answer included whether in his discussions with DDK and counsel, there was discussion about whether to make a counteroffer to Provenance; and a question about the substance of discussions that he had with DDK and counsel relating to the review of the Wasserman emails. (Id. at 4-5). According to plaintiffs, he answered the other questions, even over the objection of counsel. (Id.) Thus, plaintiffs argue that Mr. Anderson should not be forced to sit for his deposition again. (Id. at 5).

*4 As for defendants’ claim that plaintiffs had failed to disclose documents relating to Mr. Anderson, plaintiffs assert that they have not withheld a single document and that every email to and from Mr. Anderson have been produced. (Id. at 5-6).

Defendants dispute that Mr. Anderson was ever a non-testifying litigation expert based on Mr. Anderson's own testimony and the documents that have been produced. (Defs.’ Reply Ltr.[5] at 2). Specifically, defendants note that Mr. Anderson testified that he was not a non-testifying litigation expert, and that he was retained, not by DDK, with whom he had no agreement to act as a non-testifying expert, but by Ms. Phoebus and Mr. Bowd in their individual capacities to provide personal business consulting services for them as individuals. (Id. (citing pages in Anderson's testimony)). When asked to confirm that there was “no signed agreement of [him] being a non-testifying expert” and that his consulting services were rather “engaged by Phoebus or Bowd,” Anderson testified that was “correct.” (Id. at 3 (citing pages in Anderson testimony)). He also testified that he “was not representing DDK .... I was specifically not representing DDK.” (Id. (citing pages in Anderson testimony)). Defendants contend that counsel “concocted” this argument about Mr. Anderson being a non-testifying expert “on the fly” during the deposition. (Id. at 2).

The scope of discovery is set forth in Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b)(1) states that “[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 ....” Fed. R. Civ. P. 26(b)(1). Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.’ ” Vaigasi v. Solow Mgmt. Corp., No. 11 CV 5088, 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016) (quoting Fed. R. Evid. 401). “Only if a matter is relevant and potentially discoverable must a court then consider whether additional Rule 26 limitations on discovery apply.” During v. City of New York, No. 05 CV 6992, 2006 WL 2192843, at *5 (S.D.N.Y. Aug. 1, 2006).

A party may withhold discovery on the basis of attorney work product privilege; in invoking this protection, “[t]he party claiming work product protection has the burden of establishing that it applies.” Pilkington North America, Inc. v. Mitsui Sumitomo Insurance Co. of Am., 341 F.R.D. 10, 13 (S.D.N.Y. 2022) (citing In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 384 (2d Cir. 2003)). The party resisting disclosure carries “ ‘the heavy burden of establishing its applicability,’ ” Chevron Corp. v. Salazar, 275 F.R.D. 437, 444 (S.D.N.Y. 2011) (quoting In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007)).

“While state law governs the question of attorney-client privilege in a diversity action, federal law governs the applicability of the work product doctrine.” Egiazaryan v. Zalmayev, 290 F.R.D. 421, 435 (S.D.N.Y. 2013); see also Danza v. Costco Wholesale Corp., No. 11 CV 4306, 2012 WL 832289, at *1 (E.D.N.Y. Mar. 12, 2012) (citing cases); Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. 163, 173 (S.D.N.Y. 2008) (citing Weber v. Paduano, No. 02 CV 3392, 2003 WL 161340, at *3 (S.D.N.Y. Jan. 22, 2003)). The work product doctrine is codified in part in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides the general rule that material prepared by or at the request of an attorney in anticipation of litigation is not subject to discovery. See Fed. R. Civ. P. 26(b)(3); In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d at 383; A Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 146 (2d Cir.) (quoting Hickman v. Taylor, 328 U.S. 495, 510-11 (1947)), cert. denied, 513 U.S. 1015 (1994).

*5 To invoke the work product doctrine pursuant to Rule 26(b)(3), the party withholding discovery must show that the withheld material is: 1) a document or tangible thing; 2) that was prepared in anticipation of litigation; and 3) was prepared by or for a party, or by his representative. Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. at 173 (holding that the work product protection was inapplicable because the withholding party had not shown that it “actually anticipated litigation at the time of the creation of the documents”); OneBeacon Ins. Co. v. Forman Int'l, Ltd., No. 04 CV 2271, 2006 WL 3771010 at *4 (S.D.N.Y. Dec. 15, 2006) (finding that to invoke the work product protection, “a party ‘must show that the documents were prepared principally or exclusively to assist in anticipated or ongoing litigation’ ” (quoting United States v. Construction Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996))). The protection is not available for documents “ ‘that would have been created in essentially the same form irrespective of litigation.’ ” Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. at 173 (quoting United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) and noting that the withholding party had not shown that the documents at issue were prepared “because of the prospect” of litigation).

Even where a document or tangible thing is eligible for work-product protection pursuant to Rule 26(b)(3) because it was prepared in anticipation of litigation, a party may nevertheless obtain discovery of work product if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii) (emphasis added); see also United States v. Adlman, 134 F.3d at 1202-03. The standard for overcoming the work product protection is often a fact-specific inquiry, as “[d]ifferent kinds of attorney work product command different levels of protection.” S.E.C. v. NIR Grp., LLC, 283 F.R.D. 127, 135 (E.D.N.Y. 2012). Generally, the party seeking the discovery in question must show a substantial need for its production, but “[e]ven a showing of substantial need may not justify production of work product that will inevitably reveal the attorney's mental processes as he prepares for litigation, though such work product may set forth or relate directly to third-party statements.” Id. (citing Hickman v. Taylor, 329 U.S. at 513 and Upjohn Co. v. United States, 449 U.S. 383, 401 (1981)).

As an initial matter, there is no claim here that conversations among Ms. Phoebus, Mr. Bowd, their counsel and Mr. Anderson are protected by attorney-client privilege. Instead, plaintiffs rely on the concept of work product to argue that Mr. Anderson should not be forced to testify about these conversations. However, plaintiffs have failed to carry “the heavy burden of establishing [work product] applicability,” Chevron Corp. v. Salazar, 275 F.R.D. at 444, and have failed to show that Rule 26(b)(3) even applies to this dispute. First, plaintiffs assert that they have not withheld a single document or email to and from Mr. Anderson (Pls.’ Resp. at 5-6), and therefore there are no materials or documents prepared by or at the request of an attorney in anticipation of litigation that are subject to discovery. See Fed. R. Civ. P. 26(b)(3). While plaintiffs may be correct in noting that any documents prepared by Mr. Anderson at the behest of plaintiffs or plaintiffs’ counsel about litigation strategy would be protected by the work product doctrine under the assumption that Mr. Anderson was a “representative” or “agent” of the plaintiffs, here, plaintiffs are attempting to prevent Mr. Anderson from testifying.

The Rule governing work product could not be clearer; it relates to documents, including written or recorded witness statements:

*6 F.R.C.P. 26(b)(3)(A). In the absence of any written documents or tangible evidence, this Rule does not apply to prevent a witness from testifying.

However, the Court's inquiry does not end there “ ‘because the work product doctrine as articulated in Hickman ... is broader than Rule 26(b)(3).’ ” Anilao v. Spota, No. 10 CV 32, 2015 WL 5793667, at *11 (E.D.N.Y. Sept. 30, 2015) (quoting Abdell v. City of New York, No. 05 CV 8453, 2006 WL 2664313, at *3 (S.D.N.Y. Sept. 14, 2006)); see also Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252 F.R.D. at 173 (mentioning how courts have recognized that Rule 26(b)(3)’s inapplicability does not preclude granting protection under the common-law work product doctrine); cf. Hickman v. Taylor, 328 U.S. at 511 (stating that a lawyer's “work is reflected ... in interviews, statements, memoranda, ... mental impressions, personal beliefs, and countless other tangible and intangible ways”); Wilson v. City of New York, No. 06 CV 229, 2009 WL 10705937, at *3 (E.D.N.Y. Jan. 20, 2009) (noting that “courts have been careful to protect the mental impressions and thought processes of attorneys even though they remained intangible because they had not been reduced to writing”). Thus, “[w]here, as here, the work-product privilege is asserted to protect the disclosure of intangible discovery, such as deposition testimony, courts look to the common law doctrine outlined in Hickman and its progeny in deciding whether to compel disclosure.” Anilao v. Spota, 2015 WL 5793667, at *11; see also United States Info. Sys. v. Ibew Local Union No. 3, No. 00 CV 4763, 2002 U.S. Dist. LEXIS 19363, at *17-18 (S.D.N.Y. Oct. 10, 2002) (holding that under the common law work product doctrine as articulated in Hickman, intangible work product also containing an attorney's analysis made in anticipation of litigation is immune from discovery). Otherwise, “the protection of Rule 26(b)(3) could itself be thwarted if instead of obtaining work product documents ..., the adversary could simply obtain the same information by [deposition].” United States Info. Sys. v. Ibew Local Union No. 3, 2002 U.S. Dist. LEXIS 19363, at *19.

According to defendants, Mr. Anderson refused to provide testimony relating to advice or consultation that he provided, arguing that the advice was protected by the work product doctrine even though he is not a lawyer. (Defs.’ Reply Ltr. at 6). Defendants cite three areas in which Mr. Anderson declined to testify:

(Id. (citing pages of Anderson testimony); see also Pl.’s Resp. at 3-4).

Specifically, although Mr. Anderson answered “yes” to the question of whether he provided an assessment or opinion on the Provenance offer, he refused to testify as to what his actual opinion was. (See Anderson Tr.[6] at 130). Mr. Anderson also refused to answer whether there was any discussion about providing a counteroffer. (Id. at 156). With respect to questions about Mr. Wasserman's emails, Mr. Anderson stated that he was uncomfortable elaborating on the substance of discussions had with Ms. Phoebus or Mr. Bowd regarding Mr. Wasserman's emails because those discussions would have been in the presence of counsel. (Id. at 192-93). Again, although Mr. Anderson answered “yes” to the question of whether he provided them with advice on what to do with Mr. Wasserman's emails, he would not divulge the advice he provided. (Id. at 194).

*7 Plaintiffs argue, and Mr. Anderson testified, that DDK's counsel, Ms. Hassan,[7] was involved during the discussions of the Provenance offer and Mr. Wasserman's emails and that the discussions were had in anticipation of litigation. (See Anderson Tr. at 126, 129, 192-93; Pl.’s Resp. at 2). Given counsel's presence at the discussions and plaintiffs’ assertion that the discussions were had in anticipation of litigation, plaintiffs contend that the work product doctrine applies. See United States Info. Sys. V. Ibew Local Union No. 3, 2002 U.S. Dist. LEXIS 19363, at *17 (holding that communications at meetings between plaintiff's counsel and [another individual] “that reflect the thought processes of counsel are within the scope of the work product doctrine”).

However, the protection extends only to testimony that may reveal the attorney's legal theories, strategies, or mental impressions, i.e., anything that counsel stated, or asked Mr. Anderson, during those discussions, as they could relate to counsel's thoughts about potential litigation. Anilao v. Spota, 2015 WL 5793667, at *13 (concluding that some questions asked during deposition, such as whether an attorney was “concern[ed]” or whether he “agree[d],” fell within the ambit of opinion work product). On the other hand, some of the questions that Mr. Anderson refused to answer, such as his own assessment or opinion on the Provenance offer, or whether he gave advice about providing a counteroffer to Provenance, seek factual or opinion testimony from the witness, rather than the attorney's mental impressions, and are therefore not protected by the work product doctrine. See id., at *12 (granting motion to compel and requiring deponent to answer certain questions that “seek factual information, [and] not legal theories, strategies, or mental impressions”). Thus, plaintiffs’ reliance on the work product doctrine to prevent Mr. Anderson's testimony regarding the advice and opinions that he gave is misplaced.

Plaintiffs seek to prevent further inquiry of Mr. Anderson on these topics, arguing that he is a non-testifying litigation expert witness. (Pls.’ Resp. at 6-7).

Rule 26(b)(4)(D) deals with non-testifying litigation expert witnesses, defined as an “expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.” Fed. R. Civ. P. 26(b)(4)(D). Among other things, courts look to whether the witness was hired for their expertise for purposes of litigation or whether they are just a witness who has an area of expertise but was not specially retained for litigation. See Caruso v. Bon Secours Charity Health Sys., 703 F. Appx. 31, 33 (2d Cir. 2017) (holding that “the more relevant distinction is between an expert who happened to have personal involvement with the events giving rise to litigation and an expert whose only involvement consists of aiding the already-initiated litigation”); accord Downey v. Bob's Discount Furn. Holdings, Inc., 633 F.3d 1, 6-7 (1st Cir. 2011) (comparing the distinction between percipient witnesses who happen to be experts and those retained to provide expert testimony to the difference between treating physicians and experts and holding that “where ... the expert is part of the ongoing sequence of events and arrives at his causation opinion during treatment, his opinion testimony is not that of a retained or specially employed expert”).

*8 Here, plaintiffs concede that Mr. Anderson was originally retained by Ms. Phoebus and Mr. Bowd to conduct a valuation of their personal business interests in connection with the potential sale of DDK to Provenance Hotels. Since neither Ms. Phoebus nor Mr. Bowd are named personally in this action, it is unclear in what context Mr. Anderson could be considered a non-testifying witness. Indeed, Mr. Anderson specifically denied that he was ever retained as a non-testifying expert by any of the DDK entities, the named plaintiffs in the case, and testified instead that he was engaged for consulting services by Ms. Phoebus or Mr. Bowd and/or entities related to the two individuals. (Defs.’ Reply Ltr. at 2-3). Moreover, the information that defendants seek to probe is based on facts and information Mr. Anderson gleaned during the course of his work for Ms. Phoebus and Mr. Bowd, including inter alia any analysis he conducted in valuing their interests in the joint venture, the rejection of the proposed buy-out, and the decision as to how to deal with Mr. Wasserman. Defendants are not seeking Mr. Anderson's current opinions but only factual information regarding discussions he had with Ms. Phoebus and Mr. Bowd. Given that Mr. Anderson cannot be considered a non-testifying witness under any interpretation of the Rule or relevant case authority, the Court directs Mr. Anderson to appear for a second day of deposition and further orders him to respond to the questions posed by defendants’ counsel that were previously objected to as implicating “work product,” with the exception of any questions that would reveal what counsel stated during those discussions. Defendants’ counsel is to tailor their questions to avoid protected information. See Weist v. E.I. DuPont De Nemours & Co., 2011 U.S. Dist. LEXIS 34701, at *10-11 (granting motion to compel deposition of defendant's retired corporate counsel where court was “confident that plaintiffs’ counsel can tailor his questions to avoid privileged information and that [deponent] can distinguish non-privileged facts from privileged communications and work product”).

Defendants contend that contrary to plaintiffs’ claim that all documents relating to Mr. Anderson have been provided, Mr. Anderson testified about specific categories of documents and communications that plaintiffs should have collected but which have not been produced. (Defs.’ Reply Ltr. at 7-8). Among other documents that Mr. Anderson testified about are the Consulting Services Agreement he entered into with Ms. Phoebus and Mr. Bowd; his invoices and fees; and communications forwarded to Mr. Anderson from Ms. Phoebus and Mr. Bowd relating to the collection of Mr. Wasserman's emails, discussion about Provenance Hotels, and documents relating to the joint venture. (Id. at 8 (citing pages in the Anderson deposition)). Even if plaintiffs’ counsel has produced all of the documents in plaintiffs’ possession, the failure to produce these documents identified by Mr. Anderson raises issues of spoliation.

Given Mr. Anderson's testimony, plaintiffs are Ordered to provide an Affidavit from someone with knowledge and access to plaintiffs’ documents that these documents identified by Mr. Anderson have either been previously produced or no longer exist.[8]

B. Designation Of A New 30(b)(6) Witness

Defendants also move to compel plaintiffs to designate a Rule 30(b)(6) witness who has been properly prepared to testify regarding Noticed Topic 15, which seeks information relating to “ ‘[t]he access to, review of, and/or collection of [former DDK principal David] Wasserman's email account and emails in 2018 by any of the Plaintiff Entities, Phoebus, Bowd or their agents.’ ” (Defs.’ Mot. at 12 (quoting Topic 15)). According to defendants, when questioned on this topic, Ms. Phoebus was unable to provide informed answers and indicated that Mr. Bowd was the individual with knowledge and capable of accessing the relevant email accounts. (Id., n.9). Plaintiffs’ counsel proposed that rather than have Mr. Bowd sit for another deposition, defendants should provide a list of questions and he would answer in the form of an affidavit. (Id. at 12). Thereafter, according to defendants, plaintiffs’ counsel indicated that they would not necessarily provide an affidavit and that the questions would be limited to those asked of Ms. Phoebus. (Id.) Defendants note that they should be given the opportunity to not only re-ask questions but to ask follow-up questions based on the witness’ responses, which they were unable to do because Ms. Phoebus did not have the informed answers. (Id. at 13). They also wish to ask questions about the testimony of Mr. Anderson, who testified that he was aware that Ms. Phoebus and Mr. Bowd were reviewing Mr. Wasserman's emails. (Id. n.10). Thus, they seek to depose Mr. Bowd on this Topic 15.

Plaintiffs object to the request to depose Mr. Bowd as a 30(b)(6) witness, arguing that that it is DDK, and not defendants, who have the right to select the appropriate 30(b)(6) designee. (Pls.’ Resp. at 9 (citing cases)). Plaintiffs contend that Ms. Phoebus, the 30(b)(6) designee, testified for almost ten hours and that defendants have failed to identify a single question that she was unable to answer that she should have been prepared to answer. (Id.) In addition, DDK provided responses to interrogatories on this topic, which responses were prepared by both Ms. Phoebus and Mr. Bowd. (Id.) Plaintiffs contend that Ms. Phoebus provided the same testimony on this issue as would have been provided by Mr. Bowd and plaintiffs’ counsel agreed to provide assurances that any testimony given by Ms. Phoebus was accurate. (Id. at 10). Moreover, to the extent that defendants have identified four topics on which they claim Ms. Phoebus was unprepared, plaintiffs contend that the defendants have not identified any specific questions that she could not provide answers to. (Id. at 10-11).

*9 Defendants argue that Ms. Phoebus was unable to testify about (1) why Mr. Bowd was designated as the person capable of processing the email accounts, (2) what that process was, or (3) the identity of the individual who set up the email access. (Defs.’ Reply Ltr. at 10-11, n.9). With respect to question (1), Ms. Phoebus testified that Mr. Bowd was selected because he was probably better at IT, and Mr. Bowd subsequently submitted an affidavit stating that Ms. Phoebus “may be correct.” (May 17, 2022 Tr. at 233; ECF No. 114, Ex. 4). With respect to question (2), plaintiffs argue that such information was provided not only through Ms. Phoebus's testimony, but also through a subsequent interrogatory. (Pls.’ Resp. at 10 (citing ECF No. 114, Ex. 4, Ex. A)).

Having reviewed the deposition transcript and subsequent interrogatory, the Court finds that plaintiffs have sufficiently responded to those two topics. Defendants have provided no further justification or explanation as to why, even if Ms. Phoebus was a deficient witness, the supplemental interrogatory was insufficient. Finally, defendants’ assertion regarding question (3), the identity of the individual who set up the access, is moot because Ms. Phoebus confirmed the individual's name by the second day of her deposition. (Pl.’s Resp. at 11). Accordingly, the Court denies defendants’ request to compel plaintiffs to designate a new Rule 30(b)(6) witness regarding Topic 15. However, to the extent that defendants wish to ask any follow-up questions regarding Mr. Anderson's testimony, they are to provide plaintiffs with a list of questions from Mr. Anderson's testimony, insofar as they relate to Topic 15, and DDK is to designate and prepare a witness to answer them.

C. Updated Affidavits from Phoebus and Bowd Regarding Income

Defendants note that in the status conference held on July 14, 2022, the Court directed plaintiffs to provide an updated affidavit from Ms. Phoebus on her compensation/income from employers and an affidavit from Mr. Bowd relating to his compensation/income from other hotel ventures. (Defs.’ Mot. at 13). During the July 26, 2022 meet-and-confer, defendants informed plaintiffs’ counsel that they had learned about Mr. Bowd's management contract with Casa Blake, a non-Salt Hotels branded property in Mexico, and thus requested additional information regarding that management contract. (Id.) In an email dated August 1, 2022, defendants reiterated their request for information relating to that contract, which they assert Mr. Bowd could not have entered into if the joint venture had not been dissolved. (Id.) Defendants argue that information about this management contract, as well as the information sought in the updated affidavits, goes directly to defendants’ Interrogatory No. 9, and Requests for Production of documents Nos. 20, 23, and 24, seeking documents supporting plaintiffs’ calculation of damages. (Id. at 13-14). Defendants contend that plaintiffs have not only failed to provide the information requested in the August 1 email, but no affidavits have been provided by Ms. Phoebus or Mr. Bowd. (Id. at 14).

In their response to defendants’ motion, plaintiffs’ counsel concede that they were unable to provide the affidavits of Ms. Phoebus and Mr. Bowd before the defendants’ letter motion to compel was filed; however, they have since provided both affidavits. (Pls.’ Resp. at 11). Since defendants have not disputed this representation in their Reply letter of September 29, 2022, the Court concludes that this issue is moot and no further Order is required.

D. Updated Responses to Outstanding Discovery Requests

Defendants’ final motion is based on a directive from this Court during a status conference held on July 14, 2022, ordering the parties to meet and confer regarding the remaining discovery disputes between the parties. (Defs.’ Mot. at 14). Specifically, defendants had complained about plaintiffs’ responses to certain requests for production of documents, requests for admission, and interrogatories. (Id.) After a meet-and-confer on July 26, 2022, plaintiffs indicated that they would look for additional documents and review their responses, but as of the date of defendants’ letter in August, no supplementation had been provided. (Id.)

*10 In their response, plaintiffs contend that they have answered all of the outstanding requests for discovery. (Pls.’ Resp. at 11). They further confirm that they have produced all documents and responded to all interrogatories and requests for admission. (Id. at 12).

Defendants, however, do not agree. (Defs.’ Reply Ltr. at 12). Specifically, defendants complain that plaintiffs have not produced any communications between the two principals, Ms. Phoebus and Mr. Bowd, discussing the termination of the Detroit agreements. (Id.) Defendants again note that to the extent that there are no such documents, plaintiffs should be required to identify any documents that previously existed and why they no longer exist. (Id.)

In addition, defendants have asked for additional information relating to Mr. Bowd's management contract and compensation from Casa Blake, as follow up after receiving Mr. Bowd's Affidavit, to which plaintiffs have not responded. (Id.) Specifically, defendants sought clarification from plaintiffs regarding “distributions” mentioned in Mr. Bowd's affidavit from Salt Hotels. Defendants note that information related to Casa Blake would be responsive to Defendants’ discovery requests, including Requests for Production Nos. 20, 23, 24, and Interrogatory No. 9. (Id. at 12, n.12).

Accordingly, plaintiffs are Ordered to provide an Affidavit from a person with knowledge stating that there are no communications between Ms. Phoebus and Mr. Bowd discussing the Detroit agreements and if not, stating whether such documents existed, and why they no longer exist. Defendants are also Ordered to provide responses to defendants’ request listed above with respect to Mr. Bowd's relationship with Casa Blake.

In light of the foregoing, the Court grants in part and denies in part defendants’ motion to compel.

The Clerk is directed to send copies of this Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.