*1 Plaintiff Genesys Cloud Services, Inc. moves the court to compel defendant TalkDesk to supplement its responses to discovery requests on damages issues. Originally, Genesys also raised a second discovery dispute—the production of “certain CRM [customer relationship management] Data and Sales and bookings data” with respect to some customers appearing on Genesys's PureCloud List. The parties have now resolved that issue, see Dkt. 381, so the court addresses only the supplementation issue here.

Genesys argues that TalkDesk should be required to supplement its responses to Genesys Interrogatories 6 and 8 and Requests for Production (RFP) 15 and 18, requests Genesys served and to which TalkDesk responded in 2019 during a first phase of discovery focused on personal jurisdiction and preliminary injunction issues. Genesys has not specifically identified any of its other “first phase” discovery requests but asks the court to order, generally, that TalkDesk is required to review all its first phase discovery responses and provide additional or corrective information to the extent the earlier responses are now “incomplete or incorrect.”

For the reasons explained below, Genesys's motion is GRANTED in PART and DENIED in PART.

Genesys's request for relief has superficial appeal: Genesys insists that it is merely asking the court to order TalkDesk to do what is required of every litigant under Rule 26(e)(1)(a)—to supplement or correct a discovery response if “in some material respect the ... response is incomplete or incorrect, and [the] additional or corrective information has not otherwise been made known to the other [party] during the discovery process or in writing.” But on closer look, Genesys's discovery motion asks for more, seeking to compel TalkDesk to provide discovery beyond the scope to which the parties previously agreed—or never contested—was proportional to the needs of the case. At least, that is how TalkDesk has interpreted Genesys's discovery motion and the pre-motion attempts to resolve the matter. Genesys's briefing does not disavow that interpretation.

The court's resolution of the parties’ discovery dispute is—as always—guided by Rule 26 principles. Proportionality is key, and the court balances the factors addressed in Rule 26(b)(1), including the importance of the subject discovery in resolving outstanding issues and whether the burden of providing it outweighs its likely benefits. The court also considers, as provided by Rule 26(b)(2)(C), whether Genesys is seeking information that is unreasonably cumulative or that it already had an appropriate opportunity to obtain.

I. The Framework for the Court's Analysis

First, because proportionality is always a factor in determining the breadth of the parties’ discovery obligations, it is imperative for a party seeking to compel discovery to address specific discovery requests/responses and explain why the responding party must do more than it has already done consistent with the discovering party's legitimate case prosecution or defense needs. Genesys's motion provides this information for four discovery requests only, so the court will consider granting relief only as to those specific requests.

*2 Second, Genesys and TalkDesk strongly contest one another's views of their discovery history and their express or tacit agreements about the continued “life” of the first phase discovery requests after the preliminary injunction and jurisdiction issues were decided, and each can identify events that tend to corroborate its view. But the court does not deem it necessary to decide whether the parties agreed that the obligation ever to revisit the “first phase” preliminary injunction/personal jurisdiction discovery ended after the court had ruled on those two matters and the parties had entered a comprehensive merits/damages discovery phase that included formulation of discovery protocols, including with respect to electronically stored information. Rather, the court does not foreclose a Rule 26(e) supplementation duty merely because the responses were provided during the first discovery phase.[1]

Third, in resolving the extent to which TalkDesk must supplement responses to the four discovery requests, the court emphasizes that Rule 26(e) supplementation is not an opportunity for a discovering party to enlarge the scope of discovery that it earlier agreed was appropriate or to contest long after the fact (1) objections that had been timely interposed, (2) the level of detail provided in answers to interrogatories or document responses, or (3) the scope of agreed searches, including selection of search protocols such as custodians and search terms. Put another way, a party's discovery responses are unlikely to later become “materially” incomplete or incorrect within the meaning of Rule 26(e) when the discovering party had not earlier challenged objections or the scope of the prior responses.

Finally, the four discovery requests Genesys has identified (Interrogatories 6 and 8 and RFPs 15 and 18) relate to generally relevant subject matters: Genesys's potential damages from alleged use of its trade secrets even if, as TalkDesk contends, they also were pertinent to Genesys's substantive causes of action for customer non-solicitation or post-employment non-competition that have dropped from this case. Relevance is only the first step of inquiry, however; proportionality concerns and whether discovery is unreasonably cumulative or duplicative are also important. Based on these factors, the court rules as follows with respect to the four discovery requests.

II. TalkDesk's Obligation to Supplement Its Responses

A. Interrogatory 6

This interrogatory seeks identification of customers who once were Genesys customers and with whom TalkDesk has done business since September 1, 2018. When TalkDesk originally answered this interrogatory in May 2019, the information was fresh and TalkDesk apparently was tracking the previous telephony provider—whether Genesys or other competitors—for new accounts. Since then, TalkDesk has produced in discovery other information about customers it has serviced and for which Genesys was the previous provider. As part of the parties’ resolution of their dispute about TalkDesk's production of “certain CRM [customer relationship management] Data and Sales and bookings data” with respect to customers appearing on Genesys's PureCloud List, Genesys identified the specific customers for which it sought the existence of CRM data and sales and bookings information from TalkDesk. TalkDesk provided the responsive information for that agreed scope. According to TalkDesk, and not disputed by Genesys in its reply brief, Interrogatory 6 seeks information duplicative of that covered by the PureCloud List customer sales/bookings data production negotiated by the parties. The court finds that requiring TalkDesk to supplement Interrogatory 6 is disproportionate and unreasonably duplicative discovery at this stage.

B. Interrogatory 8

*3 Interrogatory 8 asks TalkDesk to “state the source and amounts of all revenue” generated by TalkDesk employees who were previously employed by Genesys. This information is relevant to the extent that Genesys may be able to tie a former employee's revenue for TalkDesk to a customer for which Genesys was the previous provider, thus allowing an inference that the employee may have used Genesys's trade secrets in obtaining the account. As TalkDesk has explained, however, the parties agreed in conjunction with the production of CRM data, sales, and booking data that that information was limited to certain specific customers from Genesys's PureCloud list. Thus, Genesys has been provided data that may allow it to identify customers for which the PureCloud information (which Genesys asserts is a trade secret) could have been used by TalkDesk employees to gain that business. Genesys has not explained why given that production and other damages-related information it has received, it has a reasonable need to track all TalkDesk revenue generated by any former Genesys employee. According to TalkDesk, and not disputed by Genesys, Genesys did not indicate in discovery responses or via its experts that it is pursuing a damages theory based on TalkDesk's revenue connected to all former Genesys employees. The court finds that requiring TalkDesk to supplement Interrogatory 8 is discovery disproportionate to the needs of this case at this stage.

C. RFPs 15 and 18

These RFPs seek information about accounts sold or solicited by the individual defendants (Strahan, Manno, and Hertel) on behalf of TalkDesk. RFP 15 asks for documents identifying such customers and RFP 18 more broadly seeks documents reflecting sales histories by these defendants for TalkDesk. In May 2019 when TalkDesk responded to these RFPs, it interposed numerous objections but produced a single-page document (TD 000090). The court determines that supplementation of these two RFPs is proportional discovery because the RFPs relate solely to the three individual defendants and TalkDesk previously limited the scope of the information it was willing to provide in response. Genesys never moved to compel TalkDesk to provide anything more in response to these two RFPs (though it may have sought additional information via other RFPs propounded during the second phase of discovery). TalkDesk is not required to provide a different type of data or type of documentation other than what it provided on TD 000090, but it must update the information. The updated data must be produced within 14 days of the entry of this order.

The court GRANTS in PART and DENIES in PART Genesys's motion (Dkt. 373) to compel the defendants to supplement their responses to discovery as provided above.

The court acknowledges and GRANTS Genesys's motion (Dkt. 381) to withdraw its request to compel the defendants to produce “CRM Data and Sales and bookings data.”

So ORDERED.

Distribution:

All ECF-registered counsel of record via email generated by the court's ECF system