*1 This matter is before the Court on Plaintiffs’ Motion to Compel and for Fees [Doc. No. 93] and Defendant's Motion for Protective Order [Doc. No. 101]. For the reasons that follow, Plaintiffs’ motion is granted in part and denied in part and Defendant's motion is granted in part and denied in part.

As characterized by Plaintiff Central States, Southeast and Southwest Areas Pension Fund (the “Fund”), this “is an ERISA action brought by a multi-employer fund seeking an audit and payment of unpaid contributions, including contributions revealed to be owed by the audit.” (Pls.’ Memo. at 1.) Significant discovery has taken place, and the Fund has audited hundreds of thousands of Defendant Miracle Supply Company, Inc.’s financial records. However, despite the extensive audit, the parties have reached an impasse on a myriad of discovery issues. The instant motions encompass Plaintiffs’ Second Set of Requests for Production of Documents, Plaintiffs’ First Set of Interrogatories, and Plaintiffs’ First Set of Requests for Admission, along with two non-party subpoenas issued by Plaintiffs and the Rule 30(b)(6) deposition notice propounded by Plaintiffs. As a preliminary matter, the Court rejects Defendant's contention that the Fund did not sufficiently engage in the meet-and-confer process required under Local Rule 37.2. Accordingly, the Court will proceed to the merits of the Fund's and Defendant's respective motions.

Federal Rule of Civil Procedure 26 provides 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, 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); see also Fed. R. Civ. P. 34; Fed. R. Civ. P. 37(a)(3)(B). “The party requesting discovery bears the initial burden of establishing its relevancy.” Eternity Mart, Inc. v. Nature's Sources, LLC, No. 19-cv-02436, 2019 U.S. Dist. LEXIS 198880, at *4 (N.D. Ill. Nov. 15, 2019) (citations omitted); see also Art Akiane LLC v. Art & SoulWorks, LLC, No. 19 C 2952, 2020 WL 6509228, at *3 (N.D. Ill. Nov. 5, 2020) (collecting cases). If the requesting party meets its burden, “the party opposing discovery has the burden of proving that the requested discovery should be disallowed.” Sols. Team v. Oak St. Health, MSO, LLC, No. 17 CV 1879, 2021 U.S. Dist. LEXIS 132847, at *7 (N.D. Ill. July 16, 2021) (citation omitted). For “good cause,” the Court may issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). A protective order may, inter alia, “forbid[ ] inquiry into certain matters, or limit[ ] the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(D).

I. PLAINTIFFS’ MOTION TO COMPEL

A. Plaintiffs’ Requests for Production

*2 The Fund moves to compel with respect to Plaintiffs’ Requests for Production Nos. 1, 3, 4, 5, 6, 7, and 8 from Plaintiffs’ Second Set of Requests for Production of Documents. Request for Production No. 1 asks Defendant to produce cash disbursement journals for the period of March 6, 2011 through December 29, 2018. The Fund maintains that cash disbursement journals “that detail[ ] the amounts paid to Vendors is necessary to enable the Fund to identify Vendors that received significant payments for further investigation.” (Pls.’ Reply at 8.) The Court finds that Request for Production No. 1 seeks relevant information, as the Court has previously found that vendor-related documents are relevant in an ERISA audit such as this one. [Doc. No. 68 at 3.] Defendant has objected to Request for Production No. 1 on, inter alia, the grounds that “Defendant has previously produced all invoices and records in its control and custody to effectuate the audit conducted by Plaintiffs.” [Doc. No. 94-3 at 4.] Similarly, in its response brief, Defendant represents to the Court that it has already produced “every financial record in its control and custody dating back to 2012.” (Def.’s Resp. at 2 n.1.) So, Defendant in effect implies that cash disbursement journals would have already been produced to the extent they exist. But, Defendant does not explicitly say so. In keeping with its finding of relevance, the Court orders Defendant to produce cash disbursement journals – to the extent they exist and have not yet been produced – within 30 days of this Order.

The Fund contends that its review of Defendant's vendor invoices has revealed that Defendant owes $95,480.60 in contributions which are “due based on work performed by two individuals/entities” – namely, Geary's Delivery Service (“Geary's”) and Common Cents Courier (“CCC”) – “who performed work covered by the collective bargaining agreements.” (Pls.’ Memo. at 1, 6.) Requests for Production Nos. 5 and 6 seek documents relating to those two vendors, including documents that refer to the type or location of the work they performed. The Court finds that the requested documents are relevant to the Fund's assertions that Defendant violated the work preservation clause contained in the pertinent collective bargaining agreements (which prohibits the assignment of covered work to individuals/entities who were not in the bargaining unit) and further violated the adverse selection rule contained in the Fund's Trust Agreement (which prohibits an employer from shifting work to subcontractors to reduce the employer's duty to contribute).

Defendant argues, in sum, that information pertaining to the work preservation clause and adverse selection rule (and Geary's and CCC) falls outside the scope of Count II of Plaintiffs’ Second Amended Complaint, which, Defendant contends, only seeks “untimely contributions for ... nine identified employees.” (Def.’s Resp. at 3.) The Court rejects that argument. In Count II, the Fund seeks “all unpaid contributions owed to the Fund” and alleges that Defendant “has breached the provisions of ERISA, the collective bargaining agreements, the Participation Agreements and the Trust Agreement by failing to pay all the contributions and interest owed to the Fund.” (SAC ¶ 39.)[1] Additionally, Defendant has objected to Requests for Production Nos. 5 and 6 on, inter alia, the grounds that the requests are “duplicative and seek[ ] documents previously produced to Plaintiffs during the audit.” [Doc. No. 94-3 at 5-6.] But, again, Defendant does not explicitly state whether documents responsive to these requests exist but have not been produced. In keeping with its finding of relevance, the Court orders Defendant to produce documents responsive to Requests for Production Nos. 5 and 6 – to the extent such documents exist and have not yet been produced – within 30 days of this Order.

Requests for Production Nos. 3 and 4 seek documents relating to Defendant's “review and/or analysis” of the Fund's Preliminary Audit Adjustments. Defendant has objected to these requests on, inter alia, the grounds that they “invade[ ] the attorney-client privilege and/or attorney work product doctrine.” [Doc. No. 94-3 at 5.] The Court sustains Defendant's objections in that regard. However, as requested by the Fund, Defendant must provide a privilege log for documents it withholds on grounds of privilege.

*3 Finally, the Fund moves to compel with respect to Requests for Production Nos. 7 and 8, which seek documents identified in Defendant's interrogatory answers and documents pertaining to Defendant's affirmative defenses. In response to both requests, Defendant has stated that “it is currently unaware of any documents responsive to [the requests] that have not been previously produced.” [Doc. No. 94-3 at 7.] The Court accepts Defendant's statements that it has no additional documents to produce vis-à-vis Requests for Production Nos. 7 and 8. Accordingly, the Fund's motion to compel as to those requests is denied.

B. Plaintiffs’ Interrogatories

The Fund moves to compel with respect to Plaintiffs’ Interrogatories Nos. 5, 6, 7, 8, 9, 11, 12, 13, 14, and 15. Interrogatories Nos. 5 and 6 ask Defendant to extensively detail the ways in which it may dispute the Fund's Preliminary Audit Adjustments. However, the Court agrees with Defendant that requiring Defendant to provide extensive narrative answers to these interrogatories would be disproportionate to the needs of the case, as Defendant would be “placed in a position to either confirm or deny the accuracy of each detail of Plaintiff's 9 year audit.” (Def.’s Resp. at 2 n.2.) Further, the Fund provides no authority to support its broad assertion that at this juncture it “has a right to know ... exactly why the Fund's calculations are contested ... to enable the Fund to prepare for trial or summary judgment.” (Pls.’ Reply at 9.)

Interrogatories Nos. 7, 8, and 9 ask Defendant to, inter alia, “describe the type of work performed” by Geary's, CCC, and a relatively short list of other entities. [Doc. No. 94-3 at 5-7.] As with its analysis of Requests for Production Nos. 5 and 6 set forth above, the Court finds that the type of work performed by Defendant's vendors is relevant to the Fund's theories concerning the work preservation clause and the adverse selection rule. While Defendant has objected to these interrogatories as “outside the scope of Plaintiffs’ Second Amended Complaint,” the Court has rejected that assertion above. Accordingly, the Court orders Defendant to respond to Interrogatories Nos. 7, 8, and 9 by fulsomely “describ[ing] the type of work performed” by the pertinent entities. However, the Court sustains Defendant's objections to the remaining portions of these interrogatories, which reach into the realm of legal conclusions. Defendant is to provide its supplemental answers to Interrogatories Nos. 7, 8, and 9 within 30 days of this Order.

Interrogatories Nos. 12, 13, and 14 ask Defendant to explain its affirmative defenses of waiver, estoppel, and laches. The Court agrees with the Fund that, consistent with Rule 8(a)(2), Defendant is obligated to provide a short and plain explanation of its affirmative defenses (though the Court disagrees with the Fund that Defendant need go into any significant depth). Accordingly, Defendant shall provide short and plain answers to Interrogatories Nos. 12, 13, and 14 within 30 days of this Order. However, the Court agrees with Defendant that Interrogatory No. 11 (calling for a description of Defendant's non-admissions) and Interrogatory No. 15 (calling for a description of defense counsel's document investigation) are objectionable as, inter alia, violative of the attorney-client privilege and/or the attorney work product doctrine. Accordingly, the Fund's motion to compel as to the latter interrogatories is denied.

As a final matter, as the Fund points out, Defendant has not provided its interrogatory answers under oath, as required by Rule 33(b)(3). Defendant states that it “will be happy to provide” the required attestation. (Def.’s Resp. at 14.) Defendant is directed to do so within 30 days of this Order. Defendant shall also provide the required attestation with respect to the supplemental interrogatory answers called for herein.

C. Plaintiffs’ Requests for Admission

*4 The Fund moves to compel with respect to Plaintiffs’ Requests for Admission Nos. 1, 2, 3, 4, 8, 9, 10, 11, and 12. Requests for Admission Nos. 1, 2, 3, and 4 ask Defendant to admit that it and certain local unions “were parties to a collective bargaining agreement pursuant to which Miracle Supply was required to make contributions to the Pension Fund on behalf of certain of its covered employees.” [Doc. No. 94-3 at 1-3.] In response to Requests for Admission Nos. 2, 3, and 4, Defendant has admitted that it and the local unions “were parties to collective bargaining agreements that contained an article setting forth participation in the Pension Fund.” [Id.] The Court finds that Defendant's answers in that regard are sufficient. However, Defendant has not provided a similar admission in response to Request for Admission No. 1. [See Doc. No. 94-3 at 1; Doc. No. 94-6 at 1.] Defendant is ordered to substantively respond to Request for Admission No. 1 within 30 days of this Order.

Requests for Admission Nos. 8, 9, and 10 ask Defendant to admit that figures and/or whole columns contained in the Fund's “Breakdown of Contributions Outstanding” spreadsheet are accurate. The Court sustains Defendant's objections that these requests “in essence, require[ ] Defendant to conduct an independent third-party audit to confirm or dispute the accuracy of the information set forth in [the spreadsheet].” [Doc. No. 94-3 at 4-5]. Again, the Fund has not provided authority supporting the proposition that Defendant is required at this juncture to separately confirm the accuracy of the Fund's audit.

Finally, Requests for Admission Nos. 11 and 12 ask Defendant to admit that work performed by Geary's and CCC vis-à-vis Miracle Supply involved the driving of trucks. While Defendant has objected to these requests as calling for legal conclusions, the Court takes the requests to be framed in the colloquial sense, and believes it is reasonable for the Fund to ask whether Geary's and CCC drove trucks pursuant to the business relationships between the entities and Defendant. The Court finds unbelievable Defendant's supplemental response that it is “without sufficient information” to know whether Geary's and/or CCC used trucks. [Doc. No. 94-6 at 3.] Accordingly, the Court orders Defendant to provide plain responses to Requests for Admission Nos. 11 and 12 within 30 days of this Order.

D. Plaintiffs’ Request for Attorneys’ Fees

Finally, the Fund moves for sanctions and seeks an order requiring Defendant to pay the attorneys’ fees and costs incurred by the Fund in bringing its instant motion. In keeping with the holdings reached herein, the Court finds that the Fund's request for fees fails because Defendant was substantially justified in opposing many of Plaintiffs’ discovery requests. See Fed. R. Civ. P. 37(a)(5)(A)(ii). Accordingly, the Fund's request for costs and attorney's fees is denied.

II. DEFENDANT'S MOTION FOR PROTECTIVE ORDER

A. Third-Party Subpoenas

The Fund has issued non-party subpoenas to CCC and Geary's – two entities discussed above – requesting that the companies produce documents relating to their working relationship with Defendant and any agreements they have with Defendant. [Doc. No. 101-1 at 4; Doc. No. 101-2 at 4.] Defendant principally contends that the subpoenas are objectionable because they are outside the scope of Count II of Plaintiffs’ Second Amended Complaint and therefore outside the scope of permissible discovery. The Court rejects that argument, as it has already found above that the Fund's theories under the work preservation clause and adverse selection rule (which relate to work that may have been performed by CCC and Geary's) fall within the scope of Count II. Defendant further argues that the subpoenas are unreasonably cumulative, but the Court agrees with the Fund that the documents possessed by CCC and Geary's may be different than the documents possessed by Defendant. Finally, though Defendant objects to the subpoenas as untimely, the deadline for discovery is being extended as part of this Order. Ultimately, the Court finds Defendant's arguments against the subpoenas unavailing and therefore denies the portion of Defendant's motion for protective order concerning the subpoenas.

B. Rule 30(b)(6) Deposition Notice

*5 Defendant next takes issue with the topics set forth in the Rule 30(b)(6) deposition notice propounded by Plaintiffs. Topic 3 concerns work performed by CCC and Geary's, and, again, Defendant contends that this topic concerns “unpled” matters that are outside the scope of Count II. However, again, the Court rejects that argument. Accordingly, as Topic 3 is an appropriate line of inquiry, Defendant's motion as it pertains to that topic is denied.

Topic 4 seeks testimony concerning Defendant's affirmative defenses “and all legal and factual bases for those defenses.” [Doc. No. 101-3 at 2.] Above, the Court has determined that Defendant is obligated to provide a short and plain statement of its affirmative defenses. However, in relation to Defendant's motion for a protective order, the Court finds that in seeking testimony concerning the legal bases of Defendant's affirmative defenses, Topic 4 improperly attempts to reach into the realm of information protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. The Court also finds that Topic 6 – which asks for testimony concerning Defendant's search for documents – is improper for the same reasons. Accordingly, Defendant's motion is granted as to Topics 4 and 6 and Defendant's corporate representative need not testify as to those subjects.

Topic 5 seeks Defendant's “position concerning its liability for the contributions and/or interest reflected in” the Fund's “Breakdown of Contributions Outstanding” spreadsheet. [Id.] Defendant contends that Topic 5 encompasses “work-product that is unprepared by Miracle Supply and for which it cannot have an opinion.” (Def.’s Mot. ¶ 7(c).) Above, the Court has determined that Defendant is not obligated to independently verify all results of the Fund's audit. Consistent with that finding, the Court holds that Defendant's corporate representative need not testify as to the accuracy of all the figures set forth in the Fund's spreadsheet. However, the Court holds that Defendant's corporate representative must be prepared to testify in general terms as to Defendant's position that it has timely contributed all amounts due.

C. Defendant's Request for Sanctions

Finally, Defendant requests that the Fund be sanctioned under 28 U.S.C. § 1927 for allegedly engaging in unreasonable and vexatious discovery behavior. As an initial matter, the Court finds Defendant's request unavailing as the Court has found herein that the Fund is entitled to much of the discovery it seeks. Moreover, Defendant's request for sanctions – made for the first time in its reply brief – must be denied. See Darif v. Holder, 739 F.3d 329, 336-37 (7th Cir. 2014) (“arguments raised for the first time in a reply brief are waived”) (citations omitted); AEL Fin., LLC v. Tessier, No. 06 C 6875, 2007 U.S. Dist. LEXIS 17801, at *15 (N.D. Ill. Mar. 12, 2007) (“The request is also improper since AEL seeks such relief in only a cursory manner and the first time that AEL does so is in its reply brief, thus depriving Tessier of the opportunity to weigh in on the issue.”) (citations omitted).

For the foregoing reasons, Plaintiffs’ Motion to Compel and for Fees [Doc. No. 93] is granted in part and denied in part as specified herein. Further, Defendant's Motion for Protective Order [Doc. No. 101] is granted in part and denied in part as specified herein. Per the parties’ request, the deadline for the completion of discovery is extended an additional 30 days from the date of this Order.

*6 SO ORDERED.