*1 In this breach of contract case, Defendant National Union Fire Insurance Company of Pittsburgh, Pa. (National Union) moves to compel the following information: (1) documents and communications Plaintiff Cargill, Inc. (Cargill) has withheld or seeks to claw back on the basis of attorney-client privilege and the work product doctrine; (2) a list of all files Cargill provided to its expert, GreerWalker, in May 2021; and (3) supplemental responses to Requests for Admission (RFA) 7 and 8. Dkt. No. 152. National Union also moves to modify the scheduling order to take two additional fact depositions and reopen one deposition. Id. Cargill opposes the motion, arguing: (1) all withheld or clawed back documents contain protected work product or attorney-client communications; (2) National Union has received all responsive documents Cargill provided to GreerWalker in May 2021; and (3) Cargill has sufficiently answered National Union's RFAs. Dkt. No. 160. Cargill also argues National Union lacks good cause to take additional depositions. Id. For the reasons set forth below, National Union's motion is granted in part and denied in part.

I. Background

From 2009 to 2016 a small group of Cargill's employees and one of its suppliers, WDS, defrauded Cargill out of millions of dollars by inflating the price Cargill paid for packaging for case-ready meats. The fraudsters pocketed the money Cargill paid in excess of the real price for the packaging. There is no dispute that this fraud occurred; the perpetrators were convicted of their crimes. Cargill overpaid for packaging by $44.7 million. It submitted a proof of loss to National Union under its commercial crime policy. Cargill claims the total amount it overpaid in packaging costs is the amount of its loss. However, National Union asserts that some portion of the inflated costs was recouped by Cargill and passed on to its customers in the form of higher case-ready meat prices. Cargill counters that this pass-through theory is flawed because case-ready meat prices are established by a market for case-ready meats and thus Cargill had no ability to pass the fraudulently elevated packaging costs to its customers. National Union disagrees.

Between 2016 and 2020, National Union investigated Cargill's losses under the commercial crime policy. To determine whether losses were passed on to Cargill's customers, National Union requested historical information about Cargill's profitability, margins, costs, and pricing for case-ready meat products. Dkt. No. 50 at 3. According to National Union, Cargill “repeatedly denied that it tracked or could provide the information” and even represented that the information was not stored on its systems. Dkt. Nos. 154 at 3, 155-1. As a result, National Union only recognized a loss of $17,757,310, restricted to losses from Walmart products that Cargill priced “transparently,” allowing Walmart to see and negotiate the higher packaging costs. Dkt. No. 124 at 14-15. After Cargill's net recoveries and the policy's deductible, National Union found Cargill's covered loss as $4,057,310. Id.

*2 In response, Cargill retained expert accounting firm GreerWalker LLP to flesh out its claim for coverage. Cargill allegedly tasked GreerWalker with two projects: (1) drafting an insurance report detailing its losses from Walmart sales, which Cargill believed exceeded $17,757,310, and (2) evaluating its losses from non-Walmart customers. Dkt. No. 160 at 15-18. GreerWalker fulfilled its first task on November 12, 2020 by publishing a report determining Cargill's Walmart losses as $29.7 million. Dkt. No. 155-5. GreerWalker allegedly abandoned the project regarding non-Walmart product pricing for lack of the necessary data. Dkt. No. 160 at 16-18. In the insurance report, GreerWalker explained that it “access[ed] Cargill's historical database files” to obtain the data it needed to determine Cargill's loss. Dkt. No. 155-5. Because National Union could not reconcile GreerWalker's loss calculation with the data Cargill had provided it maintained its initial coverage position. Dkt. No. 155-6 at 3.

To clarify the discrepancy, Cargill allegedly retained GreerWalker in the spring of 2021 for the same two purposes. Dkt. No. 160 at 18-20. Cargill found two unreviewed folders containing 2,823 Walmart-related documents “outside normal document retention protocols” and provided them to GreerWalker. Dkt. Nos. 155-7, 160 at 25. GreerWalker again abandoned its customer specific investigation of non-Walmart packaging prices for lack of the necessary data, but issued a new report, in June 2021, determining Cargill's total losses on the Walmart account as $26,012,792. Dkt. No. 155-8. This report also added $809,684 of “net overcharges” on non-Walmart products, assuming that packaging constituted a flat percentage of the total cost. Id. Still unable to reconcile GreerWalker's conclusions with the data, National Union affirmed its intention to cover only $4,057,310. Dkt. No. 155-11. On November 24, 2021, Cargill sued National Union seeking a declaratory judgment that National Union must pay Cargill its policy's limit, $25 million, for the loss. Dkt. No. 1.

During discovery National Union received spreadsheets it claims contain historical information about Cargill's profitability, margins, costs, and pricing, which information National Union had requested during its claim adjudication process. Dkt. No. 50 at 5. National Union alleges Cargill provided this information to GreerWalker but withheld it from National Union. Dkt. No. 154 at 8-14. GreerWalker is also an expert in this litigation and has issued an expert report allegedly incorporating this withheld information. Id. at 19-22. As a result, National Union has asserted a counterclaim alleging Cargill “misrepresented and concealed information material to National Union's adjudication of Cargill's insurance claim.” Dkt. No. 50 at 1.

II. Motion to Compel

National Union now seeks to discover all documents and data that were available to Cargill and provided to GreerWalker during the claim adjudication period. According to National Union, Cargill has concealed this information by improperly asserting attorney-client privilege and the work product doctrine, or by claiming documents are unresponsive. National Union moves to compel the allegedly privileged documents and identify all information provided to GreerWalker. Dkt. No. 154.

First, National Union challenges Cargill's assertion of privilege over: (1) 46 spreadsheets exchanged between and among Cargill and GreerWalker; (2) 13 email chains Cargill seeks to claw back; and (3) 184 entries on Cargill's privilege log (PLOG). According to National Union, these documents and email chains contain relevant and material factual data that is either not privileged or has been provided to a testifying expert, thereby waiving privilege. Cargill argues that all withheld or clawed back documents contain protected work product or attorney-client communications.

Second, National Union moves to compel Cargill to identify or produce all documents provided to GreerWalker in May 2021. Cargill allegedly produced 2,823 documents to GreerWalker but only provided 1,441 of them to National Union, claiming the rest are either substantively nonresponsive or outside the relevant date range. Dkt. No. 160 at 25-27. National Union argues it needs to identify all the documents to understand the data available to Cargill during the claim adjudication.

Dkt. No. 155-82. Cargill asserts that it has denied these RFAs and is not required to identify when and where it produced the documents in question. Dkt. No. 160 at 27-28. National Union challenges what is perceives as “qualified denials.” Dkt. No. 154 at 41.

National Union also seeks to modify the scheduling order to take two additional fact depositions and to reopen the deposition of Robb Fair, Cargill's Pricing Strategy Advisor. Dkt. No. 154 at 44. As it stands, each side may take eight fact depositions, but National Union argues its counterclaim and Cargill's recent productions warrant expanding the number to ten. Id. at 44-50. Cargill counters that National Union has already been allotted ten depositions between fact and expert depositions and that National Union has not shown good cause to acquire more. Dkt. No. 160 at 28-30.

As detailed below, National Union's motion is granted in part and denied in part.

I. The Allegedly Privileged Documents.

A. Legal Standard

Federal Rule of Civil Procedure 26 allows a party to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The attorney-client privilege protects communications between clients and their attorneys made for the purpose of obtaining legal advice. United States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984). “Because in-house counsel may play a dual role of legal advisor and business advisor, the privilege will apply only if the communication's primary purpose is to gain or provide legal advice.” Johnson v. Bd. of Pensions of the Evangelical Lutheran Church, No. 11-23, 2012 WL 5985600, at *4 (D. Minn. Sept. 5, 2012). Similarly, the work product doctrine shields documents prepared in anticipation of litigation, especially those that contain the “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).

*4 Rule 26 also protects a testifying expert's communications and work product, with certain exceptions. Fed. R. Civ. P. 26(b)(4)(C). Rule 26(b)(4)(C)(ii) requires a testifying expert to “identify facts or data ... the expert considered in forming the opinion to be expressed.” Id. “Facts or data” are “interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients ... not only those relied upon by the expert.” 2010 Amendment Committee Notes to Rule 26; see James River Ins. Co. v. Interlachen Propertyowners Ass'n, No. 14-cv-3434, 2015 WL 9946407, at *5 (D. Minn. Dec. 21, 2015), aff'd, 2016 WL 386032 (D. Minn. Feb. 1, 2016) (“The overwhelming weight of the caselaw is clear that an expert is required to provide the facts and data that the expert reviewed in preparing the opinion, regardless whether the expert actually relied on the facts and data in formulating the opinion.”). On the other hand, spreadsheets, graphs, and charts that the expert creates in drafting its final report are protected as expert work product. See Davita Healthcare Partners, Inc. v. United States, 128 Fed. Cl. 584, 591 (2016) (“Spreadsheets, graphs, presentations, and charts are protected under Rule 26(b)(4)(B), so long as the documents were prepared by the testifying expert to be included in draft expert reports.”). Any ambiguity is resolved in favor of the party seeking discovery. See Zuniga Escamilla v. SMS Holdings Corp., No. 09-2120, 2012 WL 13128109, at *8-9 (D. Minn. June 15, 2012) (citing cases).

No waiver of privilege is necessary to compel production of factual information, even if that information is included in an otherwise privileged communication or document. See Kobluk v. Univ. of Minnesota, 574 N.W.2d 436, 443-44 (Minn. 1998). Facts are not privileged and are discoverable if relevant to a party's claim and proportional to the needs of the case. See Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981); Marvin Lumber Co. v. PPG Indus., Inc., 168 F.R.D. 641, 645-46 (D. Minn. 1996) (“[C]onsistent with the well-settled principles of privilege, each is entitled to the facts underlying each others’ investigations but are not entitled to a party's communications with its attorney.”).

B. The Spreadsheets

National Union seeks to access 46 spreadsheets exchanged between and among GreerWalker and Cargill that Cargill asserts are privileged. These spreadsheets can be grouped into three categories: (1) spreadsheets Cargill sent GreerWalker when preparing its insurance reports, some of which Cargill inadvertently produced in discovery; (2) spreadsheets GreerWalker sent to Cargill or GreerWalker employees; and (3) spreadsheets Cargill attorneys and employees exchanged. As discussed below, the spreadsheets provided to GreerWalker are discoverable, the spreadsheets created by GreerWalker are privileged, and the spreadsheets exchanged between Cargill employees and attorneys are subject to in camera review.

National Union challenges 23 spreadsheets[2] that Cargill provided to GreerWalker between October 2020 and June 2021, 14[3] of which Cargill inadvertently produced to National Union and now seeks to claw back. Cargill alleges it retained GreerWalker for two purposes: (1) to draft insurance reports detailing Cargill's losses from Walmart sales to push back on National Union's coverage position, and (2) to evaluate Cargill's losses from non-Walmart customers in anticipation of litigation. Dkt. No. 160 at 16-20. GreerWalker published insurance reports in November 2020 and June 2021 but allegedly abandoned the evaluation of Cargill's non-Walmart losses for lack of necessary data. Id. Cargill asserts that the tasks were separate and any information provided to GreerWalker in support of the second task is protected work product unrelated to the development of GreerWalker's expert report. National Union counters that GreerWalker's tasks were interrelated and the spreadsheets contain facts and data GreerWalker reviewed while preparing reports it later incorporated into its expert report,[4] making them relevant and discoverable.

*5 National Union is entitled to all facts and data that GreerWalker considered for either task. For one, Cargill has not provided sufficient evidence to support its contention that GreerWalker had two distinct objectives. The non-Walmart customer spreadsheets are peppered with references to Walmart, belying the claim that GreerWalker analyzed the customers separately. Dkt. No. 162-9; see, e.g., Dkt. Nos. 155-19, 155-20. Even assuming GreerWalker had two distinct assignments, a consultant's later role as a testifying expert applies the disclosure requirement “to everything ‘except materials generated or considered uniquely in the expert's role as consultant.’ ” Zuniga Escamilla, 2012 WL 13128109, at *8-9 (citing cases). The spreadsheets were evaluated by GreerWalker at the same time it was drafting its insurance reports, and any ambiguity is resolved in favor of the party seeking discovery. See id. Moreover, these spreadsheets contain factual information that is not entitled to work product protection. The spreadsheets contain facts and raw data regarding meat packaging and pricing, not “attorney mental impressions, opinions, and strategies.” See James River Ins. Co., 2015 WL 9946407, at *7. Even if assembled by an attorney, this data is factual and discoverable. See Damgaard v. Avera Health, No. 13-2192, 2015 WL 4993701, at *5 (D. Minn. June 18, 2015), aff'd sub nom. Damgaard v. Health, 2015 WL 12828181 (D. Minn. July 20, 2015) (finding charts assembled by attorneys “squarely within the exception of Rule 26(b)(4)(C)”). These spreadsheets are not entitled to work product protection because they contain facts and data provided to GreerWalker when it formed its expert opinion. National Union is entitled to them.

National Union also seeks to compel 12 spreadsheets[5] GreerWalker prepared when drafting its insurance reports. “Rule 26(a)(2)(B) requires the disclosure of the facts and data considered by the expert in formulating an opinion, but ‘not any further analyses of those facts and data.’ ” In re Nat'l Hockey League Players’ Concussion Inj. Litig., No. MDL142551, 2017 WL 684444, at *2 (D. Minn. Feb. 21, 2017) (quoting Davita Healthcare Partners, Inc., 128 Fed. Cl. at 592). “Spreadsheets, graphs, presentations, and charts are protected under Rule 26(b)(4)(B), so long as the documents were prepared by the testifying expert to be included in draft expert reports.” Davita Healthcare Partners, Inc., 128 Fed. Cl. at 591.

National Union is entitled to the raw data underlying GreerWalker's reports but not the spreadsheets GreerWalker prepared in the process of drafting its reports. Raw data relevant to this lawsuit would not come from GreerWalker but would be provided to GreerWalker from Cargill. Spreadsheets sent from GreerWalker to Cargill, and especially spreadsheets sent between GreerWalker employees, contain protected work product and are not discoverable.

Finally, National Union challenges the privilege designation for 11 spreadsheets exchanged between and among Cargill attorneys and employees. Of these, eight spreadsheets[6] are titled “WDS-[insert customer]” and were sent by Operations Management Associate Barrett Moore to Pricing Strategy Advisor Robb Fair on April 19, 2021.[7] The remaining 3 spreadsheets[8] were sent from Cargill's outside-counsel to Cargill's in-house counsel in the fall of 2020 and have file names indicating they contain product and sales data and analysis. All 11 spreadsheets appear relevant, as they reference products and clients at issue in this litigation and were sent during the time period at issue. However, the scope and organization of their contents may reveal the “conclusions, opinions, or legal theories of a party's attorney or other representative,” which would entitle them to work product protection. Fed. R. Civ. P. 26(b)(3)(B). The Court therefore orders Cargill to produce these spreadsheets for in camera review to determine their appropriate disposition.

C. The Emails

*6 National Union also seeks to access 13 email chains Cargill attempts to claw back as privileged.[9] The Court evaluates these documents in three categories, based on type of privilege: (1) expert work product; (2) attorney work product; and (3) attorney-client privilege. For the reasons laid out below, only two of the 13 email chains may be clawed back.

Cargill seeks to claw back seven email chains[10] pursuant to the expert work product doctrine, which protects communications between a party's attorney and an expert witness to shield the “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). To the extent communications identify “facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed” or “assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed,” they are not privileged. Fed. R. Civ. P. 26(b)(4)(C)(ii)-(iii). National Union argues the emails with GreerWalker reveal only facts and data.

In five of the seven email chains, GreerWalker exchanges data with Cargill or asks for clarification about the availability of data. Emails sending or receiving data clearly identify facts or data GreerWalker considered in forming its opinion. See Dkt. No. 155-52 (GreerWalker sending a ShareFile link containing pricing data); Dkt. No. 155-53 (Cargill sending GreerWalker a chart with sales dates per customer). Emails discussing the availability of data identify GreerWalker's assumptions when forming its opinion. See Dkt. Nos. 155-51 (Cargill informing GreerWalker that reference numbers prior to 2012 were not available), 155-53 (Cargill informing GreerWalker that it had received all the data Cargill can access), 155-56 (GreerWalker confirming there was no packaging pricing data for certain plants prior to 2016), 155-59 (GreerWalker confirming that volume data was available). These emails are not privileged and cannot be clawed back.

The two remaining emails advise GreerWalker how to approach the data Cargill has provided. Dkt. Nos. 155-54 (Cargill informing GreerWalker that it can help to “marry up” certain information), 155-62 (Cargill describing how GreerWalker could approach the data). These emails evaluate, rather than identify, the facts and data available to GreerWalker and contain the “mental impressions, conclusions, opinions, or legal theories” of a party's attorney or representative. Fed. R. Civ. P. 26(b)(3)(B). Cargill may claw back these email chains.

Cargill seeks to claw back four other email chains as attorney work product. Dkt. Nos. 155-58, 155-64, 155-65, 155-67. Communications that contain an “attorney's mental impressions, trial strategy, [or] legal theories in preparing a case for trial” may be entitled to work product protection. Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 406 (Minn. 1986); Fed. R. Civ. P. 26(b)(3). However, facts are never privileged, even if enclosed in otherwise privileged communications. See Kobluk, 574 N.W.2d at 443-44.

*7 The first email chain discusses the availability of certain data and the burden of obtaining and reviewing such data. Dkt. No. 155-58. The attorneys do not evaluate the data or discuss how they plan to use it. The thread reveals no mental impression, trial strategy, or legal theory and cannot be clawed back.

In the second email chain, Cargill attempts to claw back the following statement: “Mark, FYI. We went ahead and submitted our Walmart-related losses to AIG. We are still working on the non-Walmart numbers, but right now they are not looking so good. Will keep you posted.” Dkt. No. 155-64. National Union argues this email contains non-privileged, factual information that is relevant to its counterclaim. Dkt. No. 154 at 31-32. Cargill contends the email contains a privileged legal assessment. Dkt. No. 160 at 23-24. Both are correct, in part. The statement “We are still working on the non-Walmart numbers” is factual and non-privileged, but the following evaluation, “right now they are not looking so good,” is a privileged mental impression. As such, the latter statement may be clawed back and redacted, but the former may not.

The third and fourth email chains discuss Cargill's intention to “dig into” or “push back on” AIG's calculations. Dkt. Nos. 155-65 (“you mentioned that you had dug into the AIG numbers”), 155-67 (“we may have some ideas on how to push back on the AIG calculations”). These conversations suggest that Cargill's attorneys have a potential legal theory regarding AIG's calculations, but they do not independently disclose that legal theory. These emails may not be clawed back on work product grounds.

Finally, Cargill seeks to claw back two email chains between Cargill's attorneys and Cargill's insurance division on attorney-client privilege grounds. Dkt. Nos. 155-63, 155-66. The attorney-client privilege protects communications made for the purpose of obtaining legal advice; “[a] communication is not privileged simply because it is made by or to a person who happens to be a lawyer.” Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977). The privilege will only apply if the communication's primary purpose is to obtain or provide legal, rather than business, advice. See Johnson, 2012 WL 5985600, at *4.

These email chains, which have already received one round of redactions, disclose, at most, business advice. In both email chains, Cargill's counsel provides a status update on the WDS litigation to Cargill's insurance manager and asks her advice about requesting an extension to file an insurance claim. Dkt. Nos. 155-63, 155-66. The status update contains only factual information, which is not privileged. Moreover, the extension advice is requested from the insurance manager, not the attorney, underscoring that the communication involves business advice. The primary purpose of the communications is not to seek or disclose legal advice; therefore, these email chains are not privileged and may not be clawed back. See Johnson, 2012 WL 5985600, at *4.

Cargill may claw back communications that reveal legal advice or an attorney's mental impression, trial strategy, or legal theory. Only 3 of the 13 email chains do so. See Dkt. Nos. 155-54, 155-62, 155-64.

D. Documents Listed on The Privilege Log

*8 Finally, National Union challenges 183 email chains and one presentation on Cargill's PLOG and moves to compel production or in camera review of the files. National Union argues that Cargill has overused the privilege designation to hide bad facts and conceal communications related to the insurance investigation, not this litigation. Dkt. No. 154 at 33-39. Cargill counters that these entries contain only privileged work product or communications “seeking, providing, or transmitting” legal advice. Dkt. No. 160 at 12, 21. Cargill also argues that National Union's challenge is insufficiently particularized. Id. at 9-12. Without reviewing the documents, the Court cannot determine with certainty whether these entries are, in fact, privileged. However, the sampling the Court has viewed casts sufficient doubt on the accuracy of the PLOG that in camera review of the contested items is necessary to resolve the dispute.

Eleven[11] of the challenged entries on the PLOG have Bates labels that match email chains Cargill seeks to claw back, discussed above.[12] Of those eleven documents, the Court has ordered Cargill to produce all or part of nine as improperly withheld on the basis of privilege. Contrary to Cargill's argument that these documents contain protected work product or attorney-client communications, the Court finds they either include unprivileged factual information or data provided to and considered by an expert. This inaccurate application of privilege, consistent with National Union's concerns, warrants in camera review of the other 173 entries.[13] See Brown Bear v. Cuna Mut. Grp., 266 F.R.D. 310, 317 (D.S.D. 2009) (“To assess the presence of either the attorney-client privilege or the work product privilege, the court may order documents to be submitted for in camera review.”).

The Court disagrees with Cargill's claim that National Union's challenge is insufficiently particularized. Unlike the cases Cargill cites in which the moving party fails to identify the specific documents in question, Nw. Airlines, Inc. v. Phillips, No. 07-4803, 2009 WL 10687806, at *4 (D. Minn. Jan. 16, 2009); Ass'n of Equip. Manufacturers v. Burgum, 427 F. Supp. 3d 1082, 1104 (D.N.D. 2019), National Union has provided a copy of Cargill's PLOG and highlighted the contested documents. See Dkt. No. 244. National Union also categorizes the challenged documents and illustrates specific examples. See Dkt. No. 154 at 33-39. A detailed description of 184 PLOG challenges is unnecessary and would only expand the “thousand-page discovery filing” that Cargill already criticizes. See Dkt. No. 160 at 4.

Cargill asserts privilege over many documents and communications, but not all of its privilege designations are proper. Cargill may claw back the emails and spreadsheets the Court has determined are privileged but must produce to National Union the facts and data disclosed to GreerWalker, and produce to the Court the spreadsheets exchanged among Cargill attorneys and employees, as well as the contested items on the PLOG, for in camera review.

II. Documents Provided to GreerWalker in May 2021

National Union also moves to compel Cargill to identify all documents produced to GreerWalker in May 2021, including those Cargill argues are nonresponsive. Dkt. No. 154 at 39-40. Cargill claims it discovered and produced to GreerWalker two unreviewed folders containing 2,823 Walmart-related documents. Dkt. No. 160 at 25. According to Cargill, 1,441 files were responsive and have been produced to National Union, 852 were substantively nonresponsive, and 530 were outside the relevant date range. Id. at 25-27; Dkt. No. 155-44. National Union argues that all the documents respond to its counterclaim, enabling it to identify the information available to Cargill and provided to GreerWalker during the claim adjudication. Dkt. No. 154 at 39-40. Cargill counters that the non-responsive documents were not used by GreerWalker in preparing its report, so National Union is not entitled to them. Dkt. No. 160 at 26.

*9 National Union is entitled to the document list. As mentioned earlier, “an expert is required to provide the facts and data that the expert reviewed in preparing the opinion, regardless whether the expert actually relied on the facts and data in formulating the opinion.” James River Ins. Co., 2015 WL 9946407, at *5. Cargill claims the nonresponsive documents “were not used” by GreerWalker but provides no basis for its assertion. Dkt. No. 160 at 26. While GreerWalker may not have relied on all 2,823 files in preparing its report, it appears to have reviewed all the documents to determine which were relevant. These documents are also directly responsive to National Union's Request for Production 5, which seeks, “any documents provided to GreerWalker as part of any investigation, review, or analysis of any kind related to the WDS overcharges or the impact of such overcharges on Cargill.” Dkt. No. 155-12 at 10. Cargill concedes that it provided these documents to GreerWalker “to further develop its position as to the volume of products sold to Walmart.” Dkt. No. 160 at 25. Cargill does not claim the documents are privileged, only that they are not relevant; however, the materials an expert considers in forming its opinion are certainly relevant to the expert's testimony. See James River Ins. Co., 2015 WL 9946407, at *5 (citation omitted). Therefore, Cargill must identify all 2,823 documents for National Union.

III. Requests for Admission 7 and 8

National Union also seeks to compel Cargill to supplement its responses to RFAs 7 and 8. Dkt. No. 154 at 41. Federal Rule of Civil Procedure 36(a) allows a party to ask another party to admit the truth of any factual or legal matter within the proper scope of discovery. Fed. R. Civ. P. 36(a)(1). The responding party may admit the request, specifically deny it, or state why it can neither admit nor deny. Fed. R. Civ. P. 36(a)(4). If the responding party does not sufficiently respond, the requesting party may “move to determine the sufficiency of an answer or objection.” Fed. R. Civ. P. 36(a)(6). Requests for admission are intended to “expedite trial by eliminating the necessity of proving undisputed and peripheral issues.” Lakehead Pipe Line Co. v. Am. Home Assur. Co., 177 F.R.D. 454, 458 (D. Minn. 1997) (quoting Kosta v. Connolly, 709 F. Supp. 592, 594 (E.D. Pa. 1989)). However, RFAs are not a discovery device and cannot be used to require a party to provide the factual basis for its denials, even if that denial appears contrary to the evidence. Id.; see Roe v. Bishop of Charleston, No. 2:21-cv-00020, 2021 WL 4272595, at *4 (D.S.C. Sept. 20, 2021) (“Plaintiff's mere dissatisfaction with the response does not render it improper.”); United States v. Operation Rescue Nat., 111 F. Supp. 2d 948, 968 (S.D. Ohio 1999) (“[T]he ability to move to determine the sufficiency of answers and objections does not entitle one to request that a court determine the accuracy of a denial.”).

National Union argues that Cargill refuses to admit it failed to provide or inform National Union that it could provide “core categories of spreadsheets and documents” concerning historical pricing data during the claim adjudication period. Dkt. No. 154 at 41. According to National Union, Cargill has already admitted to the Court that it failed to provide these documents, so it cannot now deny these requests for admission. Dkt. No. 154 at 41-44. Alternatively, if Cargill maintains its denial, National Union argues, it must clarify which documents it provided and when. Id. Cargill counters that it has “unequivocally denied” RFAs 7 and 8. Dkt. Nos. 155-82, 160 at 27-28. It qualifies these denials but maintains that it denies both RFAs. See Dkt. No. 160 at 27-28. Moreover, Cargill argues that an RFA is not the appropriate avenue by which to identify when and where it provided the relevant documents. Dkt. No. 160 at 28. The Court agrees.

Whether and when Cargill provided this “core” pricing data is the critical question underlying National Union's counterclaim. These requests for admission do not seek “undisputed and peripheral issues.” Lakehead Pipe Line Co., 177 F.R.D. at 458. Cargill has denied the RFAs, and even if it qualifies the basis for its denials, such qualification is permissible under Rule 36. See Fed. R. Civ. P. 36(a)(4) (“[W]hen good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.”). National Union may believe Cargill's denials are contrary to the evidence, but such a belief does not make Cargill's responses improper. National Union's request is denied.

IV. Depositions

*10 Finally, National Union seeks to modify the scheduling order to take two additional fact depositions and to reopen the deposition of Robb Fair. Dkt. No. 154 at 44-50. Pursuant to Federal Rule of Civil Procedure 16(b)(4), the Court may modify the scheduling order for good cause. “The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements.” E.E.O.C. v. Prod. Fabricators Inc., 285 F.R.D. 418, 420 (D. Minn. 2012) (citations omitted). When a party seeks more depositions than allotted in the scheduling order, it “must make a particularized showing of why the discovery is necessary.” Tealeh v. Postmaster Gen. Louis DeJoy, 2023 WL 3091883, at *2 (D. Minn. Apr. 26, 2023) (citations omitted). The discovery of new and helpful information does not necessarily establish good cause. See Land O’ Lakes, Inc. v. Emps. Mut. Liab. Ins. Co. of Wisconsin, 846 F. Supp. 2d 1007, 1017 (D. Minn. 2012), aff'd sub nom. Land O’ Lakes, Inc. v. Emps. Ins. Co. of Wausau, 728 F.3d 822 (8th Cir. 2013).

National Union has not demonstrated good cause to modify the scheduling order. The initial scheduling order allotted each side seven fact depositions. See Dkt. No. 28. At the hearing on its motion to add a counterclaim in March 2023, National Union represented that it had reserved two depositions in anticipation of issues like the counterclaim arising. Dkt. No. 107 at 5:15-17. In October 2023, after engaging in discovery, National Union requested three more fact depositions, and the Parties agreed to one additional fact deposition per side, bringing the number to eight. See Dkt. Nos. 155-90, 155-91. After that agreement, Cargill produced over 2,000 documents, allegedly including key communications involving Robb Fair, who National Union deposed in February 2023. Dkt. No. 154 at 49-5; see Dkt. No. 155-70. National Union renewed its request for additional fact depositions, but Cargill refused. See Dkt. No. 155-70. National Union argues that additional depositions are necessary because it agreed to seven depositions in the scheduling order before discovering the facts informing its counterclaim, and Cargill produced “key” documents after discovery closed, about which it has not questioned witnesses. Dkt. No. 154 at 44-47.

National Union has not made a particularized showing that additional depositions are necessary.[14] When bringing its counterclaim, National Union asserted that it reserved two of its seven depositions for such issues that could be uncovered in discovery. Later compromise between the Parties extended the number to eight, indicating that National Union had the opportunity to dedicate at least three depositions to its counterclaim. Moreover, production of new and helpful documents is not sufficient to establish good cause. See Land O’ Lakes, Inc., 846 F. Supp. 2d at 1017. “In every case ... evidence that one side or the other finds helpful might come to light after the close of discovery ... [but a]t some point, the record must hold still, and a court must be able to decide the case based on the record before it.” Id. National Union may not take additional fact depositions. However, because National Union took Robb Fair's deposition before bringing its counterclaim and because many of the late-produced documents involve him, National Union may reopen his deposition on topics limited to documents produced after October 2023.

*11 For the reasons set forth above, IT IS HEREBY ORDERED:

National Union's motion does not expressly limit this request to RFAs 7 and 8, but Cargill represents that the Parties only conferred about RFAs 7 and 8 before the motion was filed and National Union only substantively addressed these two RFAs. See Dkt. Nos. 154 at 41-44, 160 at 27 n.12.

Dkt. No. 244 at Nos. 1029, 1059, 1116, 1120, 1122, 1124-25, 1238, 1429, 1433, 1441, 1492, 1532-33, 1538-42, 1552, 1554, 1556, 1564.

National Union's Motion to Compel challenged 24 spreadsheets that Cargill sought to claw back. See Dkt. No. 155-16. However, since filing the motion, the Parties have compromised on nine spreadsheets and only 15 remain in dispute. See Dkt. No. 242. The Court addresses 14 here and one in Section I.B.2 below.

See Dkt. No. 155-49 at 2 (“My aforementioned and previously issued expert reports, including the listings and descriptions of primary source documents contained therein, are incorporated by reference in this report.”).

Dkt. No. 244 at Nos. 1142, 1173, 1193, 1365, 1371, 1391, 1577, 1603, 1644, 1656, 1756, 1758.

Dkt. No. 244 at Nos. 2099-2105, 2107.

These spreadsheets have filenames identical to eight spreadsheets Robb Fair sent to GreerWalker four days earlier, which the Court has ordered Cargill to produce, though they may have been altered during that time. Compare Dkt. No. 244 at 2099-2105, 2107 with Dkt. No. 242 at 32-39.

Dkt. No. 244 at Nos. 1033, 1177, 1195.

National Union's Motion to Compel identified 17 email chains. See Dkt. No. 155-16. However, the Parties have compromised on four email chains and only 13 remain in dispute. See Dkt. No. 242.

Dkt. Nos. 155-51, 155-52, 155-53, 155-54, 155-56, 155-59, 155-62.

Cargill seeks to claw back 13 email chains, but only 11 appear on the PLOG.

Dkt. No. 244 at Nos. 105, 130, 1067, 1221, 1388, 1402, 1445, 1496, 1550, 1593, 1610.

Dkt. No. 244 at Nos. 87, 89-90, 92-97, 126-27, 129, 131, 574, 714, 716-17, 989, 992, 1002-03, 1017, 1019-21, 1023-24, 1026, 1028, 1031-32, 1058, 1066, 1111, 1168-70, 1172, 1174-76, 1192, 1194, 1196-98, 1223, 1226-1235, 1237, 1262, 1265, 1296, 1298, 1370, 1390, 1394-95, 1399, 1406-07, 1430, 1440, 1442-44, 1450-1253, 1455-1460, 1473, 1477-79, 1486, 1491, 1506-11, 1537, 1543-1549, 1551, 1553, 1555, 1571, 1574-76, 1590, 1592, 1594-1602, 1604-05, 1608, 1613-14, 1624-26, 1629, 1639-1643, 1645, 1655, 1657-1659, 1673, 1675-78, 1968, 2062, 2065-67, 2070, 2072-74, 2076-80, 2082, 2084-88, 2095, 2098, 2110-14.

Cargill argues that the Court should deny additional depositions because National Union has already received the default ten allocated by the Federal Rules, combining both fact and expert depositions. Dkt. No. 160 at 29-30. The Eighth Circuit has not decided whether expert depositions count against Rule 30's presumptive ten deposition limit. See C.C. through Ginnever v. Suzuki Mfg. of Am. Corp., No. 4:16CV01271, 2018 WL 837689, at *2 (E.D. Mo. Feb. 13, 2018) (“There is not clear case law on whether expert depositions are included in the ten deposition limit in the FRCP.”). The Court need not decide this question to resolve the issue here.