I. PROCEDURAL HISTORY

*1 Plaintiff Fortech S.R.L., filed this suit on July 18, 2022. (ECF No. 1). Defendant Motor Consultants of America filed an answer to the complaint and filed a counterclaim on November 14, 2022. (ECF No. 13). Plaintiff filed its first motion to compel discovery. (ECF No. 20). The motion was unopposed, as Defendant did not respond, and was therefore granted on May 16, 2023. (ECF No. 21).

On October 30, 2023, Plaintiff filed the instant motion to compel discovery related to the Court's Order on its first motion to compel. (ECF No. 44). Plaintiff argues that Defendant still has not provided complete responses to requests for documents. Defendant responded, and, in turn, Plaintiff filed a reply to its response. (ECF Nos. 46, 47).

This case was referred to the undersigned for all pretrial matters. (ECF No. 16).

II. BACKGROUND

Fortech S.R.L. (“Fortech”) is a software development company that entered into a Framework Agreement with Motor Consultants of America, Inc. (“MCA”) wherein the parties would set out separate collaboration proposals to work together on various software projects. (ECF No. 1, PageID.2). Fortech formed a specific collaboration proposal to grant MCA a license to use Fortech's software which required collaborative work between Fortech and MCA. (Id. at PageID.2-3). The two companies would communicate often, MCA would give feedback to Fortech, Fortech would send monthly invoices to MCA, and MCA would pay Fortech 14 days after each monthly invoice. (Id.). MCA would have a chance to dispute any portion of the invoices 10 days after their receipt, failure of which was deemed a waiver of any dispute, and, in the event of a breach, both parties could terminate with thirty days' notice and an opportunity to cure. (Id. at PageID.4).

MCA failed to pay invoices from May to August 2021. (Id.). In July 2021, MCA stated it would alter some tasks which were Fortech's responsibility and move them in-house. (Id. at PageID.5). Fortech brings claims of breach of contract, unjust enrichment, conversion, and declaratory judgment affirming that the license it provided to MCA was revoked because of MCA's failure to pay, arguing it completed its role under the bargain and provided quality work. (Id. at PageID.6-9). Defendant, in turn, argues Fortech's work did not meet the standards agreed upon, and MCA had to “repeatedly correct Fortech's work.” (ECF No. 46, PageID.839).

In the first motion to compel, Fortech showed that MCA produced no documents in response to the requests for production, MCA failed to answer interrogatories, and MCA's objections to document production and interrogatories were frivolous and improper. (ECF No. 21).

In this motion, Plaintiff claims Defendant's answers to discovery requests have consistently been insufficient and delayed, leading Plaintiff to file its first motion to compel. (ECF No. 44, PageID.743). The answers Defendant provided in response “remained deficient, as was the production.” (Id. at PageID.743). Plaintiff requests access to “the software programs used for managing the project,” which would allow it to “go behind and see what changes had been made when, by whom, which Specifications governed that document, and the logical sequence of information flow current as of that date.” (Id. at PageID.746). Plaintiff claims that the produced code did not provide the “ability to ascertain what version of the Specifications ... and thus no ability to determine whether that Code complied with the Specifications.” (Id. at PageID.747). It argues this information is necessary to “prove that the Code it provided complied with the then current Project specifications and industry standards.” (Id.).

*2 Defendant argues providing the software would “effectively hand Fortech (a software developer ... who could benefit from the proprietary work product) with the keys to a system that is now beyond the scope of what Fortech promised to develop.” (ECF No. 46, PageID.841). MCA claims the code Fortech provided was completely replaced by “the significant work MCA undertook to fix, and finish the work that Fortech agreed to perform,” and therefore the code requested did not exist, as MCA had completely rewritten it. (Id. at PageID.849). It thus states the code requested would not help determine whether the code complied with the specifications because it was replaced entirely.

III. ANALYSIS

A. Governing Standards

Plaintiffs bring a second motion to compel discovery pursuant to Federal Rules of Civil Procedure 26, 33, 34, and 37. (ECF No. 29, PageID.734). Parties may obtain discovery related to any nonprivileged matter 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. Id. “Although a [party] should not be denied access to information necessary to establish her claim, neither may a [party] be permitted to ‘go fishing,’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.” Superior Prod. P'ship v. Gordon Auto Body Parts Co., 784 F.3d 311, 320-21 (6th Cir. 2015) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)). A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. Fed. R. Civ. P. 37. “[B]efore filing a motion to compel, the moving party must, ‘in good faith,’ attempt to confer with the ‘party failing to’ provide discovery materials ‘in an effort to’ resolve the dispute ‘without court action.’ ” Ryan v. Nagy, 2022 WL 21988830, at *2 (E.D. Mich. Oct. 11, 2022) (citing Fed. R. Civ. P. 37). “A ‘certification’ of these efforts must be included in the motion to compel.” Id.

The “burden ... rests with the party objecting to the motion to compel to show in what respects the discovery requests are improper.” Strategic Mktg. & Rsch. Team, Inc. v. Auto Data Sols., Inc., No.2:15-CV-12695, 2017 WL 1196361, at *2 (E.D. Mich. Mar 31, 2017).

B. Analysis

Plaintiff requests that the Court compel Defendant to:

A. Supplement its written discovery responses;

B. Provide Plaintiff with full access to the Specifications, Software, and Testing Environment upon which MCA relied to claim that the provided code failed to comply with the parties' agreed Specifications;

C. Allow Plaintiff to evaluate changes made to the agreed Specifications and to the Code after termination of the parties' agreement, in light of Defendant's claim for damages incurred to “deconstruct, fix, and rewrite” the Code;

D. Provide documentation related to Defendant's customers or others who reviewed, purchased, or utilized Plaintiff's software or any derivative thereof; and

E. Require Defendant to pay Plaintiff's reasonable expenses incurred in connection with this Motion.

ECF No. 44, PageID.730-731.

Plaintiff contends this information is necessary to “prove that the [software] it provided compiled with the then current Project specifications and industry standards.” (Id. at PageID.747).

*3 Defendant claims Plaintiff never requested full access to the software and by requesting full access it is improperly exceeding the scope of its original discovery requests. (ECF No. 46, PageID.843). It also claims Plaintiff failed to meet and confer with MCA about the software and the individuals who had access to the software before filing the motion to compel. (Id. at PageID.833). Defendant also offers alternatives to turning over what it considers its proprietary work product, and claims there are no paying customers to its product, making Plaintiff's request improper harassment. (Id. at PageID.833-51).

i. Full Access to Software

“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). “[E]ither party may compel the other to disgorge whatever facts he has in his possession.” Id. Discovery is limited when it is “unreasonably cumulative or duplicative ... [it] can be obtained from some other source that is more convenient, less burdensome, or less expensive” or the information is privileged. Fed. R. Civ. P. 26(b).

Fortech has successfully shown the source code, both before and after contract termination, is relevant to Defendant's claim that it had to “deconstruct, fix and rewrite [the] Code,” (ECF No. 44, PageID.752), and to determine the validity of the claim “that the provided code failed to comply with the parties' agreed Specifications.” (Id. PageID.757). Given that these claims are essential to the litigation, Fortech should be granted access to the software. As Plaintiff shows, in Inovision Software Sols., Inc. v. Autis Ingenieros, S.L.U., 2021 WL 1422777 (E.D. Mich. Apr. 14, 2021), the court granted a request to disclose the entire software and source code in the possession of the defendant when it was necessary to determine whether the plaintiff had an intellectual property interest in the code and when the claim for unjust enrichment required it.

Defendant argues that Plaintiff failed to request full access to the software in its written discovery. (ECF No. 46, PageID.842). But this is not the case. As Defendant cites, Plaintiff requested “any and all documents that related in any manner to the Project, including software, which incorporates any aspect of the work product provided by Fortech during the Project” in Request for Production No. 17. (ECF No. 44, PageID.753) (emphasis added). In Request No. 4, Plaintiff sought “any and all documents that constitute or reference communications by and between MCA and Fortech relative to the Project.” (ECF No. 20-2, PageID.202). Request No. 25 sought “[a]ny documents that constitute or reference entries in any project management software program or electronic project communication tools.” (Id. at PageID.205). In light of the broad scope of these requests, and the broad construction a court has when it comes to discovery requests, complete access of software is reasonable. See also Gumm v. AK Steel Corp., 2023 WL 1081261, at *1 (E.D. Mich. Jan. 27, 2023) (though plaintiff “requested additional information not included in any of the previously submitted discovery requests,” the court found “good cause” to extend discovery and required defendant to provide responsive documents).

Defendant suggested alternative options to Plaintiff so that it can still engage in “reasonable discovery ... without going to the extreme, and irreversible, lengths of producing MCA's entire code.” (ECF No. 46, PageID.850). One such option is having the parties select a neutral third party to expertly review the code and issue an opinion about whether the code remained a part of MCA's product, but Plaintiff rejected this. (Id.). Defendant states “if this Court is inclined to order production of MCA's code at any point ... it has the authority to restrict the production ... to avoid the possibility of it being exploited.” (ECF No. 46, PageID.851). It did not, however, specifically request a limitation, nor did it move for a protective order. It cites Innovision to support its point that a court can limit production of sensitive material. There, the Court ordered production of source code with an attorneys' eyes only restriction. Defendant does not, however, appear to seek an attorneys' eyes only designation here. Had it, the request would likely be denied because “[t]he party moving for a restrictive attorneys' eyes only designation must detail the alleged harm it is likely to suffer absent the requested protection ‘with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’ ” Xoran Holdings, LLC v. Luick, 2019 WL 13029920 (E.D. Mich. May 19, 2019) (where Xoran's detailed explanation of how the files contained internal notes and analysis about the company's marketing efforts, activities, and strategies, as well as an explanation of how the documents were regarded as confidential in the industry was sufficient to grant an attorneys' eyes only designation) (citing Nemir v. Mitsubishi Motors, Corp., 381 F.3d 540, 550 (6th Cir. 2004)).

*4 The motion to compel on the issue of access to the software code is granted. Defendant must provide access to the code within 14 days of this order.

ii. Request for Identification of Customers

Plaintiff seeks to have Defendant disgorge its profits for wrongfully using its code to create the end product. To achieve this, Plaintiff requested the identification of any “actual or potential client, end-user or investor regarding the [p]roject.” (ECF No. 44, PageID.754). Defendant's assertion that there are no customers for the product is not persuasive. As Plaintiff states, MCA admitted to deconstructing, fixing, and rewriting the code for customers. (Id. at PageID.756). Yet MCA refuses to provide the identities of these customers and claims there are no customers. (ECF No. 46, PageID.847). MCA defends its response by saying it “has not received any money and has no paying customers for the product.” (Id.). Fortech's interrogatory, however, does not request information about paying customers, but rather any “customers or others who reviewed, purchased, or utilized Fortech's code or any derivative thereof.” (ECF No. 44, PageID.754). Interrogatory No. 8 requests “the identity of ‘any client, end-user, investor or other person or entity” to whom the Fortech work product was provided. (Id. at PageID.756). Neither one of these requests are limited solely to customers, but extend to any person who was given access to the code. Given that MCA argues it had to “deconstruct, fix, and rewrite Fortech's code” and provide “a demo to non-parties at various times throughout Fortech's work to get feedback,” it is evident there were persons who accessed the code. (ECF No. 44-6, PageID.822-823). Defendant's argument is not well taken. Defendant must supplement responses to these interrogatories within 14 days of this Order.

iii. Meet and Confer

MCA next argues Fortech failed to meet and confer before filing this motion, particularly on the issue of customers and identification of individuals who had access to the code. (ECF No. 46, PageID.851-853).

The movant must “in good faith [confer] or [attempt] to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1); see also Local Rule 7.1(a). This requirement need not be strictly complied with so long as it is clear the parties meaningfully conferred about the issue. Suri v. Equifax Informational Servs., LLC, 2022 WL 146038 (E.D. Mich. May 9, 2022).

Attached to Plaintiff's motion are a series of emails between itself and Defendant. (ECF No. 44). Exhibit C is a request from Plaintiff where it asks for documents mentioned in Requests for Production Nos. 1, 4, 10, 13, 15-19, 22, and 25. (ECF No. 44-4, PageID.802-803). It also requests supplemental responses to particular interrogatories. (Id.). Plaintiff specifically asks for an opportunity to “ ‘meet and confer’ in an attempt to narrow the issues.” (Id. at PageID.803-804). Another email is attached referencing the above-mentioned email describing the “ ‘meet and confer’ this morning,” implying that the parties met to discuss the requests and interrogatories. (ECF No. 44-5, PageID.806-807). Another email is attached in which Plaintiff threatens to file a motion. (Id. at PageID.808). Three more emails are attached in this vein. (ECF No. 44-5). Thus, Plaintiffs attempted, in good faith, to meet and confer. See DTE Elec. Co. v. Toshiba Am. Energy Sys. Corp., 2023 WL 440907, at *3 (E.D. Mich. July 7, 2023) (meet and confer requirement satisfied when parties showed emails about the dispute, a statement from plaintiffs that they may file this motion if agreement is not reached, and the parties made their positions known); Suri, 2022 WL 146038 (emails discussing plaintiff's desire for additional testimony, the telephone conference between the parties,' notification of filing the motion, and statements of plaintiff's questions was sufficient for the meet and confer requirement).

*5 Though Defendant claims “Fortech wholly failed to meet and confer on any issue of identification” of “customers,” Plaintiff's first email specifically requests “the identity of MCA's customer.” (ECF Nos. 46, 44-4).

It is not as if the moving party communicated no dissatisfaction with discovery responses and blindsided the opponent with a motion to compel. The parties were in frequent contact about their disputes. Plaintiff's communications satisfy the requirement to meet and confer.

iv. Payment of Expenses

Plaintiff seeks an award of expenses incurred in bringing the motion. An award is required unless the Defendant's responses or objections were substantially justified. Fed. R. Civ. P. 37(A)(5)(A). Because Defendant did not establish that its failure to provide the requested information was substantially justified, it shall pay Fortech's expenses incurred in making its motion to compel, including costs and attorney fees.[1] Fed. R. Civ. P. 37(a)(5)(A); Youn v. Track, Inc., 324 F.3d 409, 421 (6th Cir. 2003). The parties are directed to confer on reasonable costs. If no agreement is reached, Plaintiff must file a bill of costs with argument in support of the request, and Defendant must respond. A bill of costs must be filed, if at all, within 21 days of this Order.

The motion to compel is GRANTED.

IT IS SO ORDERED.

The parties here may object to and seek review of this Order, but are required to file any objections within 14 days of service as provided for in Federal Rule of Civil Procedure 72(a) and Local Rule 72.1(d). A party may not assign as error any defect in this Order to which timely objection was not made. Fed. R. Civ. P. 72(a). Any objections are required to specify the part of the Order to which the party objects and state the basis of the objection. When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in effect unless it is stayed by the magistrate judge or a district judge. E.D. Mich. Local Rule 72.2.