*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Plaintiffs' Motion for Protective Order [Doc. 123]. Defendant responded in opposition to the motion [Doc. 132], and Plaintiffs replied [Doc. 145]. The parties appeared before the undersigned on February 23, 2023, for a motion hearing.[1] Attorneys Donald Vowell and William Hickerson appeared on behalf of Plaintiffs. Attorneys Kristine Roberts and Robert Tom appeared on behalf of Defendant.[2] For the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion [Doc. 123].

I. ANALYSIS

The present dispute before the Court relates to Plaintiffs' request for entry of a protective order relating to Interrogatory Nos. 9 and 12 and Requests for Production of Documents (“RFPs”) Nos. 32 and 33 (collectively, “Discovery Requests”). In summary, the Discovery Requests seek information about what Plaintiffs did with the funds they withdrew from the accounts at the heart of this lawsuit [See Doc. 123 p. 3]. Specifically, they state as follows:

[Id. at 2–3].

Plaintiffs argue that the Discovery Requests seek irrelevant information that is not proportional to the needs of this case. With respect to their relevancy argument, Plaintiffs state that the “proper measures of damages in a contract to lend money are ‘the difference between the contract rate and the rate available at breach and any damages that were foreseeable at the time [ ] the contract was executed’ ” [Id. at 4] (quoting Capital Just. LLC v. Wachovia Bank N.A., 706 F. Supp. 2d 23, 32 (D.D.C. 2009)). To the extent Defendant asserts it needs this information for purposes of assessing mitigation, Plaintiffs argue that the contract breaker is not allowed to rely on the failure to mitigate. Furthermore, Plaintiffs contend that they have “already baked into [their] claim for damages” the amount of loss that could be avoided [Id. at 5]. They begin with the contract rate of interest of 6.5% and “then subtract the interest paid on substitute or like accounts for the same period” in order to account for the mitigation of damages [Id.]. Plaintiffs also contend that, to the extent Defendant seeks this information to defeat class certification, such discovery is also irrelevant because individual questions of damages do not defeat class certification. In a footnote in their reply brief, Plaintiffs object to the scope of the Discovery Requests [Doc. 145 pp. 1–2 n.1].

*2 Defendant responds that the motion should be denied [Doc. 132]. Defendant states that “Plaintiffs essentially seek to unilaterally limit the scope of discovery and use a motion for protective order to limit discovery on defenses which they deem invalid, but which have not been ruled upon by the Court” [Id. at 4]. Defendant argues that Plaintiffs should not be able to use a motion for a protective order to litigate the merits of the case. In any event, Defendant states that the Discovery Requests “seek targeted information directly relevant to the parties' claims and defenses” [Id. at 1]. Defendant submits that the Discovery Requests seek information related “to Plaintiffs' claimed damages and whether Plaintiffs have in fact been damaged” [Id. at 2]. Asserting that Tennessee law recognizes a mitigation defense in a breach of contract case, Defendant states that it has pleaded failure to mitigate in its Answer to the First Amended Complaint. In addition, Defendant states that the Discovery Requests seek information relevant to their defenses to class certification. To the extent Plaintiffs contend that damages questions are irrelevant to class certification, Defendant asserts that they are wrong.

Rule 26(c) of the Federal Rules of Civil Procedure governs a request for a protective order and provides, “The court may, for good cause, issue an order 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)(A). The Court finds Plaintiffs have not met the burden in this case. During the hearing in this matter, Plaintiffs explained that they have proposed an appropriate calculation to measure damages in this case given that there is little to no case law on the proper measurement when a bank violates an agreement to provide a guaranteed interest rate. Plaintiffs argued that Defendant has yet to set forth an appropriate measure of damages. Defendant countered that the parties disagree on the proper measure of damages, but in the context of this dispute, this argument is premature.

The Court agrees with Defendant. Defendant has asserted a failure to mitigate defense in its Answer to the First Amended Complaint [Doc. 92 p. 14]. Precluding it from seeking discovery on its defense results in a premature finding that mitigation is not applicable in these circumstances. Without sufficient briefing on how to calculate any alleged damages in this case, the Court finds a protective order preventing this discovery is not warranted. See Home Fed. Bank of Tennessee v. Home Fed. Bank Corp., No. 3:18-CV-379-JRG-DCP, 2019 WL 11670621, at *4 (E.D. Tenn. Sept. 18, 2019) (denying the defendant's motion for protective order that sought to prohibit discovery based on its “asserted, yet unproven, affirmative defense); Act for Health v. United Energy Workers Healthcare Corp., No. 515CV00195TBRLLK, 2018 WL 3454902, at *1 (W.D. Ky. Feb. 27, 2018) (explaining that the plaintiffs' objections to discovery based on their assertion that the defendant had not supported its allegations were “not a proper argument to avoid discovery” and that if the plaintiffs wanted “to challenge the sufficiency of [the defendant's] claims, a dispositive motion provides the proper procedure mechanism”); Clark Motor Co. v. Manufacturers & Traders Tr., Co., No. 4:07-CV-856, 2008 WL 2498252, at *1 (M.D. Pa. June 18, 2008) (“Objections to interrogatories may not be used as a vehicle for deciding the merits of a case.”); Gregory v. Gregory, No. 215CV0320WHWCLW, 2016 WL 6122456, at *8 (D.N.J. Oct. 18, 2016) (denying the plaintiffs' “request to withhold discovery on the basis of an unproven theory of preclusion, explaining that such a request is equivalent to asking the court to “rule on the merits of their [c]omplaint without a complete record or an appropriate motion”). For similar reasons, the Court finds that such discovery should proceed in light of Defendant's argument that class certification is not appropriate. Thus, given that the scope of discovery is broad, the parties dispute the appropriate measurement of damages, and Defendant has asserted a mitigation defense in its Answer and denied class certification is appropriate, the Court declines to enter a protective order. Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (explaining that the scope of discovery is broad) (citation omitted).

*3 The Court will now turn to the proper scope of the Discovery Requests. As written, the Discovery Requests appear to be overly broad. But, in their brief, Plaintiffs acknowledge that the Discovery Requests seek information regarding what they did with the funds in the subject accounts. At the motion hearing, Defendant explained the scope of the Discovery Requests. For instance, Defendant stated that Interrogatory No. 9 is limited to 2018 when Plaintiffs transferred funds out of their account and that Interrogatory No. 12 is limited to the accounts that Plaintiffs currently own and not every single investment account. With respect to the RFPs, Defendant state that it only seeks information relating to the accounts at issue.

The parties appear to agree to the scope of the Discovery Requests, and Defendant's explanation and the specific information it seeks seems reasonable in light of the allegations in this case. The Court, however, ORDERS the parties to meet and confer within ten days of this Memorandum and Order regarding the appropriate scope of these Discovery Requests. If the parties reach an impasse on the appropriate scope of the Discovery Request, they may contact Chambers.

II. CONCLUSION

Accordingly, for the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Protective Order [Doc. 123]. The Court declines to enter a protective order prohibiting the discovery at issue but orders the parties to meet and confer to determine the appropriate scope of the Discovery Requests

IT IS SO ORDERED.