*1 This matter is before the Court on Defendants’ Motion to Compel. (ECF # 39). For the following reasons, the Court grants in part Defendants’ Motion.

On July 24, 2023, the parties agreed to submit their dispute to mediation which is presently set for September 26, 2023, before Magistrate Judge Jennifer Dowdell Armstrong. In order to prepare for a meaningful mediation the Court adopted the following limited discovery plan proposed by the parties in anticipation of the mediation.

On August 9, 2023, the Court granted via email the parties request to have until 5:00 pm EST Monday, August 14, 2023, to file simultaneous briefs of no more than five pages for motions to compel. The Court also granted the parties’ proposal to file responses of no more than three pages by 5:00 pm EST Thursday August 17, 2023. The parties via email requested a brief extension of one day until 5:00 pm EST Friday August 18, 2023 to file their responses which the Court granted. Responses were to be filed no later than 5:00 pm EST Friday August 18, 2023. The parties attempted to resolve their disputes but were unsuccessful, resulting in Defendants filing their Motion to Compel on August 14, 2023.

Plaintiff brought the action for Breach of the Enterprise License and Master Services Agreement (“MSA”) alleging that Defendants improperly revoked Plaintiff's administrator rights to Fountayn's software and unilaterally changed the price charged for academic trials. Plaintiff further seeks a declaratory judgment that it is not in breach of the MSA. Plaintiff also has pending a Motion for Temporary Restraining Order and Preliminary Injunction to prohibit Defendant from cutting off access to its software. Per agreement of the parties, access was restored and the Motion held in abeyance until mediation is complete.

Defendants filed their Amended Answer and Counterclaim alleging Breach of the MSA for failure to pay amounts due, failure to provide documentation, misuse of the software license, breach of the Keio Statement of Work, Declaratory Judgment and Unjust Enrichment.

In their discovery requests, Defendants seek documents related to the claims and defenses in the case, including: clinical studies utilizing Fountayn's software and identification of clients ClinCloud alleges it has lost due to the suspension of ClinCloud's software access. While Defendants have offered to limit the size and scope of these requests, ClinCloud has refused to produce any documents, alleging Defendants’ requests are overbroad and/or irrelevant.

*2 According to Defendants, ClinCloud has refused to produce any documents related to Request No. 2, which seeks “All documents and communications referring or relating to Fountayn and/or its products or services from July 1, 2022 to the present, including communications to or from JMDC, Inc. (“JMDC”) or NTT Ltd.” Defendants have agreed to narrow the scope to those documents relating to the specific claims and defenses in this suit.

Defendants also ask the Court to compel Plaintiff to produce documents in response to Defendants Request No. 3, which seeks statements of work, protocols and all documents constituting the necessary and sufficient documentation to support the appropriate classification of each Clinical Trial and the contracts with its clients related to those clinical trials. Defendants request these documents for 35 different trials/studies. Defendants allege these documents are directly related to the Breach of Contract claims asserted by both parties because a central dispute is Plaintiff's alleged misclassification of for-profit studies as academic. The information requested will show who sponsored the trials, the purpose of the trials and the amount Plaintiff was paid for the trials

Defendants seek at Request No. 4 the contracts Plaintiff entered into in the above studies and the amounts it was paid.

Finally, Defendants contend Plaintiff has refused to provide documents regarding customers it purportedly lost due to Defendants’ suspension of Plaintiff's software access. As this goes directly to Plaintiff's TRO Motion and overall damages, Defendants must have this information if mediation is to be successful.

Plaintiff opposes Defendants’ Motion to Compel, contending that Defendants’ Requests are overbroad, particularly since the Court directed the parties to engage in “limited” discovery for purposes of mediation and to issue “targeted” discovery requests with no subparts. Here, Plaintiff alleges Defendants’ Requests seek subparts (the 35 studies) in violation of the Court's Order. Plaintiff believes Defendants’ requests exceed “the needs of the case.” For example, Request No.2 would require Plaintiff to search all records that even mention Fountayn and then have to sift through the results to determine if it relates to the claims and defenses in the case. This, according to Plaintiff, presents a classic example of an ambiguous and overbroad discovery request.

Regarding Requests No 3 and 4, Plaintiff asserts that the MSA does not permit Defendants access to confidential third party information. Such information was not mandated to be produced under the MSA and for the eight years of the parties’ relationship such documents were never exchanged. In fact, Defendants’ CEO, recognizing the difficulty in such production, in March 2023 requested that Plaintiff produce only the hearing sheets for trials and studies.

Plaintiff alleges Defendants rely on the faulty premise that Plaintiff charges its academia customers the same rate whether or not a study/trial is sponsored by a pharmaceutical company, in order to obtain the protocols. This premise is not only flawed but presumes Fountayn possesses the sponsorship information. Furthermore, the MSA does not define ‘academic” or “for profit” study or trial. Rather, it relies on the common meaning understood by those in the industry.

Plaintiff also argues that the protocols are subject to confidentiality restrictions between Plaintiff and its third-party clients. Plaintiff reached out to a few of its clients to request authorization to disclose the protocols but was refused by all those contacted. Defendants argue a protective order would address any customer concerns over improper disclosure and in fact, the parties have submitted a Stipulated Protective Order which the Court signed.

*3 Lastly, Plaintiff alleges information on lost customers is premature and not relevant to the subject of the mediation.

Having considered the arguments and being cognizant that the discovery to be produced is limited discovery for purposes of mediation, some restraint on the amount and scope of discovery is necessary. This does not mean the Requests would not be appropriate when full discovery is permitted should the case not resolve at mediation.

Request No. 2 is overly broad as opposed to being a limited and targeted discovery request. The Request seeks “All documents and communications referring or relating to Fountayn and/or its products or services from July 1, 2022 to the present, including communications to or from JMDC, Inc or NTT Ltd.” While Defendants subsequently “narrowed” the Request to “relating to claims or defenses in this case” this does not meet the narrow and targeted request ordered by the Court. Therefore, the Court denies Defendants’ Motion to Compel responses to Request No. 2.

Requests No. 3 and 4 target Defendants’ claims in this case that Plaintiff is misclassifying studies, so some information is needed by Defendants to gauge the scope of damages, if any. However, seeking all documents needed to support the classification of 35 studies is again overbroad at the mediation stage. Therefore, the Court finds that a randomly selected (by Defendants) representative sample of studies/trials identified in their Requests, not to exceed seven, (this equals 20 percent of the studies involved which provides a meaningful sample size from which to extrapolate study wide conduct and damages), will provide Defendants the information it needs at the mediation stage. Also, the Stipulated Protective Order should alleviate Plaintiff's concerns over the disclosure of confidential third party information as it contains “Attorneys Eyes Only” designations.

The Court orders Plaintiff to provide the discovery sought in Request 6 and Interrogatory No. 3 as it relates directly to damages and the purpose of the TRO - i.e.- Plaintiff's immediate danger of losing customers if Defendants did not restore access to their software.

IT IS SO ORDERED.