*1 In this trade secret case, Plaintiff Ecolab, Inc. moves to compel Defendant IBA, Inc. to produce additional documents, supplement its interrogatory responses, and facilitate the production of documents in the possession of IBA's manufacturers. Dkt. No. 171. Ecolab asserts that “non-covered” products are properly at issue pursuant to its breach of contract and trade secret misappropriation claims. Dkt. No. 173. IBA responds that these products that are outside the scope of discovery. As to documents in its manufacturers’ possession, IBA argues that Ecolab has not demonstrated that IBA has the “practical ability” to produce them. Dkt. No. 186. For the reasons discussed below, Ecolab's motion to compel is granted in part and denied in part and its request for fees is denied.

I. Factual Background

Ecolab and IBA are corporations providing, among other things, products and services to the dairy industry. Between 2002 and 2019, Ecolab[1] and IBA had a business relationship under a License Agreement (the Agreement). Dkt. No. 61 at 3-7. When the parties formed the Agreement, Ecolab possessed intellectual property related to “products intended for use in the prevention of mastitis in dairy cattle,” known as acidified sodium chlorite teat dip products (ASC products). Dkt. No. 61-1 at 1 ¶ A. Under the Agreement, Ecolab authorized IBA to “make, have made, use, sell, and import” its ASC products (Covered Products) using its patent and trademark rights, “trade secrets, technical reports, and proprietary data.” Id. §§ 1.5-2.1. The Agreement forbade IBA from manufacturing or marketing other ASC products (Non-Covered Products) and required IBA to alert Ecolab of its intention to market such products one year in advance of doing so. Id. § 2.5(b). The Agreement also included a confidentiality provision preventing either party from using the other's confidential information for any commercial purpose. Id. § 7.1(b). If the parties terminated the Agreement, IBA would have six months to “sell or dispose of any inventory of Product.” Id. § 5.4. The confidentiality provision, inventory provision, and other provisions in the Agreement were specifically identified in the Agreement as surviving post-termination, but the notice and non-compete provisions were not. Id. § 5.6.

The Agreement authorized IBA to contract with third parties to manufacture the Covered Products on its behalf. Id. § 2.5. IBA entered into oral manufacturing agreements with Custom Chemical Formulators Inc. (Custom Chemical) and Webco Chemical Corporation (Webco). Dkt. No. 174-8 at 4. IBA, Webco, and Custom Chemical are separate corporate entities with separate finances, business logistics, ownership, employees, and executives. Dkt. Nos. 186 at 21, 187 ¶¶ 7-13.

*2 Ecolab and IBA amended and readopted the Agreement four times between 2002 and 2019. Dkt. Nos. 61-2, 61-3, 61-4. The Fourth Amended License Agreement terminated on May 31, 2019 and the parties could not reach an agreement to formally amend or extend the contract's term. Dkt. No. 61 ¶ 27. The parties continued to do business until January 6, 2022; however, they dispute the terms under which they performed that business. Ecolab alleges the parties formed an implied-in-fact contract that maintained all the terms of the previous agreements, including the notice and non-compete provisions. Dkt. No. 173 at 2-3. IBA claims the parties were only bound by the terms the Agreement specified as surviving past termination and any additional terms established in post-termination communications. Dkt. Nos. 186 at 13 n.10, 213 at 16-18. Either way, IBA continued to have Covered Products made by Webco and Custom Chemical until at least January 6, 2022, when Ecolab demanded IBA “cease and desist” its activities after learning that IBA was marketing its own Non-Covered Products, which Ecolab claims violated the alleged implied-in-fact contract. Dkt. No. 50-10.

II. The Pleadings

On February 23, 2022, Ecolab sued IBA for breach of the Agreement, trade secret misappropriation, trademark infringement, and unfair competition. Dkt. No. 1. Specifically, Ecolab alleged that IBA breached the contract by marketing and selling Non-Covered Products after May 31, 2019 during the “implied-in-fact extension of the License Agreement” and failing to notify Ecolab of its intent to market such products one year in advance. Id. ¶¶ 33-39. In the alternative, Ecolab alleged that IBA misappropriated its trade secrets, committed trademark infringement, and engaged in unfair competition by continuing to use Ecolab's confidential information to have Covered Products made after the Agreement terminated on May 31, 2019. Id. ¶¶ 43-65.

On March 9, 2022, Ecolab alleges, it discovered IBA had continued to manufacture Covered Products after being told to “cease and desist” its activities two months earlier. Dkt. Nos. 49 at 3-4, 50-10. Ecolab moved to amend its Complaint to extend the time period to which its trade secret misappropriation, trademark infringement, and unfair competition claims applied.[2] Dkt. Nos. 49 at 6-7. Ecolab alleged those claims were no longer “in the alternative” after January 6, 2022 because IBA continued to use Ecolab's confidential information to have Covered Products made after the clear termination of the parties’ relationship. Id. at 4. According to Ecolab, its proposed amendment did not “add any new claims,” and “cover[ed] the same set of Ecolab products” that the original Complaint covered. Id. at 7. IBA opposed the amendment, arguing any sales after January 6, 2022 were of its remaining inventory of Covered Products, in accordance with the Agreement's inventory provision. Dkt. No. 54 at 6-7, 61-1 § 5.4. The Court granted Ecolab's motion to amend. Dkt. No. 60.

Ecolab's First Amended Complaint reiterated its claims against IBA for marketing and selling Non-Covered Products during the “implied-in-fact extension of the License Agreement” and failing to notify Ecolab one year in advance of its intent to market such products, or, in the alternative, for using Ecolab's confidential information to have “Covered Products made after the termination of the License Agreement” on May 31, 2019. Dkt. No. 61 ¶¶ 40-49. The Amended Complaint added a claim that IBA misappropriated Ecolab's trade secrets when it “continued to make or have made products incorporating the Ecolab Trade Secrets after the January 6, 2022 termination of the License Agreement.” Id. ¶ 69.

III. Motion to Compel

During the course of discovery Ecolab alleges that IBA has engaged in delay tactics, refused to provide documents, and given deficient responses to Interrogatories. Dkt. No. 173 at 2-4. Particularly, Ecolab alleges IBA has refused to provide three categories of discovery: (1) requests related to IBA's Non-Covered Products, (2) documents in the possession, custody, or control of Webco and Custom Chemical; and (3) supplementation of responses required under the rules. Id. Ecolab moves to compel IBA to produce the withheld information. Dkt. No. 171.

*3 First, Ecolab moves to compel IBA to produce documents and information related to the development, manufacturing, marketing, and sale of its Non-Covered Products.[3] Dkt. Nos. 173 at 17-24, 147-8 (Interrogatories 2-6), 174-9 (Requests for Production 2, 4-6, 9, 11-12). Ecolab argues this information is relevant to its breach of contract and trade secret misappropriation claims. Dkt. No. 173 at 19. IBA has identified four Non-Covered Products it marketed after January 6, 2022 and provided the first date of sale for each, but has refused to provide any development or manufacturing information, arguing it is competitively sensitive and outside the scope of claims pleaded in the Amended Complaint. Dkt. Nos. 174-8 at 4-5, 186 at 6-19.

Second, Ecolab moves to compel IBA to produce documents possessed by Webco and Custom Chemical because, it alleges, IBA has the “practical ability” to obtain them. Dkt. No. 173 at 24-28. Specifically, Ecolab asks IBA to produce manufacturing data and dates for Covered and Non-Covered Products. Dkt. Nos. 174-8 (Interrogatory 9), 174-9 (Requests for Production 4, 10). IBA asserts it has provided all discoverable information in its possession, custody, or control. Dkt. No. 174-9 at 5. IBA also asserts it previously requested records on Ecolab's behalf from Webco and Custom Chemical, to which both Webco and Custom Chemical demurred.[4] Dkt. No. 186 at 23-24.

Third, Ecolab moves to compel IBA to supplement its responses to miscellaneous Interrogatories and Requests for Production it claims are deficient, delayed, or improperly withheld. Ecolab seeks to compel IBA to narratively describe contracts, licenses, agreements, and communications involving teat dip products to which IBA only responded with documents. Dkt. Nos. 173 at 28-29, 30-31, 174-8 at 4-5 (Interrogatories 5-6). Ecolab also seeks immediate production of information IBA promised to produce but had not provided as of October 26, 2023.[5] Dkt. Nos. 173 at 39-41, 174-8 at 3 (Interrogatory 1), 174-9 at 3-7 (Requests for Production 3, 7, 8, 14-15). Finally, Ecolab seeks to compel production of documents related to the formation of the Agreement, arguably relevant to Ecolab's breach of contract claim; IBA's company-wide financial reports, arguably relevant to IBA's compliance with the Agreement; and unlicensed sales after the Agreement's termination; arguably relevant to damages resulting from IBA's alleged misappropriation. Dkt. Nos. 173 at 35-36, 174-9 at 3, 6 (Requests for Production 1, 13).

Ecolab's motion to compel is granted in part and denied in part. The scope of this case is limited to sales by IBA of Ecolab's Covered Products and IBA's marketing and sale of its Non-Covered Products. The development and manufacturing of IBA's Non-Covered Products is not relevant to the claims pleaded in the Amended Complaint and therefore exceeds the scope of permissible discovery. Further, IBA is not obligated to obtain third-party discovery on Ecolab's behalf because Ecolab has not established that IBA has the “practical ability” to do so. Finally, IBA must supplement its responses to Interrogatories and Requests for Production as outlined below.

I. Scope of Discovery – General

*4 Federal Rule of Civil Procedure 26(b)(1) entitles parties to obtain discovery regarding nonprivileged matters that are both relevant to a party's claim or defense and proportional to the needs of the case. Id. In determining whether a discovery request is relevant and proportional, a court considers the importance of discovery in resolving the issues and the burden or expense of the discovery request relative to its likely benefit. Id. “[T]he scope of discovery is intended to focus on the actual claims or defenses that are at issue in the litigation.” Inline Packaging, LLC v. Graphic Packaging Int'l, Inc., No. 15-CV-3183, 2016 WL 7042117, at *4 (D. Minn. July 25, 2016) (emphasis supplied). If the proposed discovery exceeds the scope permitted by Rule 26(b)(1), the Court may impose limitations. Fed. R. Civ. P. 26(b)(2)(C). If a party resists discovery, the requesting party “may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The moving party has the burden of making a “threshold showing of relevance ... before parties are required to open wide the doors of discovery,” to limit “fishing expeditions.” Hofer v. Mack Trucks, Inc., 981 F.2d. 377, 380 (8th Cir. 1992).

II. Covered Versus Non-Covered Products

Ecolab moves to compel discovery regarding the development, manufacturing, marketing, and sale of IBA's Non-Covered Products to establish that IBA breached the one-year notice and non-compete provisions in Agreement and misappropriated Ecolab's trade secret formulas. Dkt. No. 173 at 3. IBA responds that discovery into the marketing and sale of its Non-Covered Products is relevant to the breach of contract claim but all other information is unrelated to the claims pleaded in the Amended Complaint and therefore beyond the scope of permissible discovery. Dkt. No. 186 at 13. The Court agrees. Ecolab is entitled to limited discovery regarding the marketing and sale of IBA's Non-Covered Products but not to discovery regarding the development or manufacturing of such products.

A. Breach of Contract

Ecolab argues that discovery into IBA's Non-Covered Products is relevant to its claim that IBA violated the one-year notice and non-compete provisions of the implied-in-fact contract. Dkt. No. 173 at 3. This is true. But as IBA accurately notes the Amended Complaint's breach claim as pleaded only challenges IBA's marketing and selling of Non-Covered Products, not its manufacturing or developing of them. Dkt. Nos. 61 ¶¶ 36-53, 186 at 13, 213 at 15-17. The Court does not need to reach the merits of Ecolab's implied-in-fact contract theory to determine the proper scope of discovery because (1) development and manufacturing of IBA's Non-Covered Products exceeds the scope of Ecolab's breach-of-contract claim, and (2) IBA concedes that marketing and sale data is relevant.

Ecolab alleges IBA breached the Agreement's non-compete provision by “marketing” and “selling or offering to sell Non-Covered Products during the implied-in-fact extension of the License Agreement,” and the notice provision by failing to “advise Ecolab of IBA's intention to market a Non-covered Product one year in advance of IBA marketing such a product.” Dkt. No. 61 ¶¶ 40-44 (emphasis added). Accepting arguendo that the Agreement extended as an implied-in-fact contract after May 31, 2019, Ecolab only needs to establish that IBA marketed or sold such products before January 6, 2022 or failed to notify Ecolab of its intent to do so to prevail on its breach of contract claim. Ecolab's breach of contract claim in its Amended Complaint makes no mention of IBA's manufacture or development of Non-Covered Products. See id. ¶¶ 36-53. Because discovery is limited to the “actual claims or defenses that are issue in the litigation,” Inline Packaging, LLC, 2016 WL 7042117, at *4, the information regarding the manufacture and development of the Non-Covered Products is not discoverable. See Fed. R. Civ. P. 26(b)(1).

*5 Ecolab is entitled to additional discovery regarding the marketing and sale of IBA's Non-Covered Products between May 31, 2019 and January 6, 2022, however.[6] IBA concedes that this information is relevant and has provided its Non-Covered Product names and their first date of sale. Dkt. No 186 at 13 (“All that is relevant is (1) what, if any, implied-in-fact contract existed when IBA sold its own independently developed products, (2) when those products were marketed, and (3) whether IBA provided, or even needed to provide, a year's notice.”). However, IBA has not provided sufficient discovery regarding whether IBA marketed Non-Covered Products before January 6, 2022, when those Non-Covered Products were marketed and sold prior to January 6, 2022, and whether IBA notified Ecolab a year prior to marketing such products. IBA is required to supplement its responses to the following Ecolab discovery requests to include this information regarding Non-Covered Products:

B. Misappropriation of Trade Secrets

Ecolab is not entitled to any discovery related to IBA's Non-Covered Products to support its misappropriation claim. In its brief on this issue, Ecolab spends considerable time detailing its theory that IBA must have misappropriated Ecolab's trade secret information to develop Non-Covered Products in enough time to sell them by January 26, 2022, twenty days after the parties’ business relationship terminated. Dkt. No. 204 at 13-18. Irrespective of the temporal proximity of the two events, however, Ecolab's Amended Complaint only pleads misappropriation relative to Covered Products.

In its original Complaint, Ecolab alleged, “To the extent the term of the License Agreement was not extended as an implied in fact contract through January 6, 2022, IBA's continued use of the Ecolab Trade Secrets to make and have made the Covered Products after termination [on May 31, 2019] was not authorized and ... constituted misappropriation.” Dkt. No. 1 ¶ 57 (emphasis added). After learning that IBA allegedly continued to manufacture Covered Products after January 6, 2022, Ecolab moved to amend its Complaint to “expand[ ] the temporal scope of Ecolab's claims that are already a part of the case.” Dkt. No. 49 at 6. Ecolab proposed the following addition to its Amended Complaint: “Defendants continued to make or have made products incorporating the Ecolab Trade Secrets after the January 6, 2022 termination of the License Agreement.” Dkt. No. 61 ¶ 69. At the time, Ecolab represented to IBA and this Court that the proposed amendments did not “add any new claims,” and “cover[ed] the same set of Ecolab products” the original Complaint covered. Dkt. No. 49 at 7. Ecolab now argues that its use of the term “products” in its Amended Complaint incorporates IBA's Non-Covered Products. Dkt. No. 204 at 6.[7] Ecolab is mistaken.

*6 As originally pleaded, Ecolab's misappropriation claim related only to Covered Products. Though the section Ecolab added to the Complaint uses “products,” instead of specifying “Covered” or “Non-Covered” products, Ecolab's representation to the Court confines this reference to Covered Products. Ecolab assured the Court that its Amended Complaint “cover[ed] the same set of Ecolab products” and “d[id] not add any new claims,” but “merely expand[ed] the temporal scope of [its] claims that are already a part of the case.” Id. at 6. This Court ruled on Ecolab's motion to amend in reliance on those assertions. Dkt. No. 60. At the time of amendment, Ecolab's misappropriation claim concerned only the Covered Products. Ecolab assured the Court its amendment only expanded the temporal reach of its already-pleaded claims. Ecolab is judicially estopped from now claiming its ambiguous reference to “products” intended to allege IBA misappropriated Ecolab's trade secrets by developing and manufacturing Non-Covered Products too. See United States v. Hamed, 976 F.3d 825, 828-29 (8th Cir. 2020) (“ ‘[J]udicial estoppel protects the integrity of the judicial process’ by preventing a party from taking a position in a legal proceeding that is inconsistent with one it took earlier, ‘simply because [its] interests have changed.’ ”).

Further, no other portion of the misappropriation section in the original or Amended Complaint refers to IBA's Non-Covered Products. Discovery is meant to develop matters that are both relevant to a party's claim or defense and proportional to the needs of the case, not provide an opportunity for fishing expeditions. Fed. R. Civ. P. 26(b)(1); see Hofer, 981 F.2d. at 380. As pleaded, Ecolab's Amended Complaint fails to connect IBA's Non-Covered Products to its misappropriation claim, especially given Ecolab's express assertions when moving to amend. Therefore, all discovery requests regarding IBA's Non-Covered Products in relation to misappropriation are denied.

III. Third-Party Discovery

Ecolab moves to compel IBA to obtain and produce documents from Webco and Custom Chemical related to the manufacturing of Covered and Non-Covered Products. Dkt. Nos. 171, 173 at 24-28. Ecolab argues these documents are functionally in IBA's “possession, custody, or control,” pursuant to Federal Rule of Civil Procedure 34(a)(1), because IBA has the “practical ability” to retrieve them from the manufacturers. Dkt. No. 173 at 26. IBA counters that Ecolab has not sufficiently demonstrated that IBA has any more “practical ability” than Ecolab to acquire the documents. Dkt. No. 186 at 19-24. Because Ecolab has not established that IBA has the practical ability to obtain the requested information, the Court denies its request.

Rule 34(a)(1) allows a party to request documents and other data in the responding party's “possession, custody, or control.” “[C]ontrol is defined as ‘the legal right, authority, or ability to obtain upon demand documents in the possession of another.’ ” In re Hallmark Cap. Corp., 534 F.Supp.2d 981, 982 (D. Minn. 2008) (quoting Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000)). Parties may have “control” over documents in the possession of non-parties if they have the “practical ability” to obtain them. See, e.g., Afremov v. Sulloway & Hollis, P.L.LC., No. 09-03678, 2011 WL 13199154, at *2 (D. Minn. Dec. 2, 2011). Determining whether a party has sufficient control over documents in the possession of a non-party requires a highly fact specific inquiry. In re Hallmark Cap. Corp., 534 F.Supp.2d at 982. Courts focus on the “mutuality” of the responding party's relationship with non-party, specifically, (1) “whether the party is apt to request and obtain [the information at issue from the non-party] in the normal course of business”; (2) “whether the prior history of the case demonstrates cooperation by the non-party; including the production of documents and other assistance in conducting discovery”; and (3) whether “the non-party has a financial interest in the outcome of the litigation.” In re Pork Antitrust Litig., No. 18-CV-1776, 2022 WL 972401, at *4 (D. Minn. Mar. 31, 2022) (citing Afremov, 2011 WL 13199154, at *2). The party seeking discovery has the burden of providing facts sufficient to establish that the responding party has the “practical ability” to obtain the information at issue from the non-party. Id.

*7 Ecolab has not established that IBA has the practical ability to obtain manufacturing information from Webco and Custom Chemical. Ecolab has not demonstrated: (1) that IBA has requested and received the information at issue from the manufacturers in the normal course of business; (2) that Webco and Custom Chemical have cooperated in producing discovery to IBA earlier in the case; or (3) that Webco or Custom Chemical have a financial interest in the outcome of the litigation. See In re Pork Antitrust Litig., 2022 WL 972401, at *4. In fact, Ecolab acknowledges that when IBA requested documents as a courtesy to Ecolab Webco declined to provide any responsive documents and Custom Chemical decided to deal directly with Ecolab's counsel. Dkt. No. 173 at 26. In addition, Ecolab has already subpoenaed the information it seeks but has yet to pursue enforcement of those subpoenas. Dkt. Nos. 174-20, 174-21. The three corporations are owned and operated by three different families in three separate locations, share no employees or executives, and maintain separate finances and business logistics. See Dkt. No. 187 ¶¶ 7-13; Webco, http://webcochemical.com/ (last visited Mar. 11, 2024); IBA, https://ibadairy.com/about/ (last visited Mar. 11, 2024); Custom Chemical Formulators Inc., https://www.customchem.com/about/ (last visited Mar. 11, 2024). Ecolab's argument that IBA has “possession, custody, or control” over Webco and Custom Chemical's documents arises solely from parties’ contractual relationship and is insufficient. Accordingly, this aspect of Ecolab's motion is denied in its entirety.[8]

IV. Supplemental Responses

Ecolab also moves to compel IBA to supplement its responses to three categories of discovery requests: (1) deficient Interrogatories; (2) delayed Interrogatory and Request for Production responses; and (3) withheld Requests for Production. To the extent Ecolab seeks information relevant and proportional to the issues in the case that has yet to be provided, the Court grants the requests.

A. Deficient Interrogatories

IBA is compelled to supplement its responses to Interrogatories Ecolab claims are deficient. Ecolab seeks to compel IBA to describe its contracts, licenses, agreements, and communications regarding teat dip products. Dkt. No. 173 at 28-29, 30-31, 174-8 at 4-5 (Interrogatories 5-6). IBA concedes this information is relevant to Ecolab's breach of contract claim and has provided responsive documents. Dkt. Nos. 174-8 at 3-5; see Dkt. No. 212 at 40:8-13, 41:14-24. However, Ecolab contends IBA's documents fail to encompass oral agreements and communications and moves to compel Ecolab to provide narrative descriptions of such oral interactions. Dkt. No. 173 at 28-29, 30-31. Pursuant to Federal Rule of Civil Procedure 33(d), IBA does not need to produce narrative descriptions of contracts or communications that have been reduced to writing. However, the Court orders IBA must provide the requested information concerning oral contracts and communications. If Ecolab seeks further detail regarding these communications it may inquire in depositions.

B. Delayed Requests

IBA must provide responses to discovery requests it has delayed in producing. Ecolab seeks responses to an Interrogatory and numerous Requests for Production that IBA concedes are relevant but, as of the hearing on this motion, had yet to produce. Dkt. Nos. 173 at 39-41, 174-8 at 3 (Interrogatory 1), 174-9 at 3-7 (Requests for Production 3, 7, 8, 14-15). IBA promised to supplement its Interrogatory response on June 19, 2023 but had not done so by the date this motion was filed, October 26, 2023. Dkt. No. 174-19. At the hearing on this motion IBA promised to produce responsive, non-privileged documents. Dkt. No. 173 at 39-41. Accordingly, the Court ordered IBA to produce a “substantial production” of documents by December 7, 2023. Dkt. No. 212 at 69:4-7. If these requests remain outstanding, however, the Court orders IBA to respond no later than March 25, 2024.

C. Improperly Withheld Requests for Production

Finally, IBA must respond to Requests for Production seeking relevant documents that are not duplicative of other discovery requests. First, Ecolab seeks to compel additional documents related to the negotiation and circumstances of formation of the Agreement, specifically communications exchanged between the parties. Dkt. No. 174-9 at 3 (Request for Production 1). IBA has provided some responsive documents but raises a general objection that the request is overbroad, burdensome, and seeks documents already in Ecolab's possession. Id. Ecolab counters that this information goes directly to the parties’ intent while contracting, relevant to its claim of breach. Dkt. No. 173 at 36-37. “A requested party may not refuse to respond to a requesting party's discovery request on the ground that the requested information is in the possession of the requesting party.” Cup O’ Dirt LLC v. Badlands Airtime, LLC, No. 4:19-CV-04031-, 2021 WL 680173, at *19 (D.S.D. Feb. 22, 2021) (quoting Davidson v. Goord, 215 F.R.D. 73, 77 (W.D.N.Y. 2003)). Further, the core of Ecolab's breach of contract claim centers on the Agreement, its iterations, and the parties’ intentions in forming it. As such, communications between the parties regarding the Agreement's formation and amendments are relevant and must be produced.

*8 Second, Ecolab seeks to compel IBA's quarterly and annual financial reports from 2002 to the present, which it argues are relevant to IBA's compliance with the Agreement's licensing fee provision, unlicensed sales after the Agreement's termination, and damages calculations to offset IBA's unjust enrichment from misappropriating Ecolab's trade secrets. Dkt. No. 173 at 35-36; 174-9 at 6 (Request for Production 13). IBA opposes this request as “a stark example of discovery overreach.” Dkt. No. 186 at 32. The Court agrees this request is overbroad and duplicative. The Court orders IBA to produce invoice-level data for all sales of teat dip products, which will allow Ecolab to uncover “unlicensed” sales and calculate IBA's unjust enrichment from selling Covered Products, between 2019 to 2022. See supra Section II(A)(2) (Interrogatory 3, Request for Production 9). The Court further orders IBA to produce quarterly and annual financial reports for the period 2019 to 2022. Twenty-two years of company-wide financial statements, however, are unnecessary to provide Ecolab the information it seeks and disproportionate to the needs of the case. See Fed. R. Civ. P. 26(b)(1).

V. Fees

Ecolab asks the Court to award it reasonable expenses incurred in bringing the motion to compel against IBA, including its attorneys’ fees. Dkt. No. 173 at 40-41. If a motion to compel is granted in part and denied in part, the Court has discretion to apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C). This Court has granted in part and denied in part Ecolab's motion to compel and, in its discretion, declines to award Ecolab expenses incurred in bringing the motion because IBA was not substantially unjustified in opposing Ecolab's discovery requests.

The scope of this case is limited to Ecolab's Covered Products and the marketing and sale of IBA's Non-Covered Products. The development and manufacturing of IBA's Non-Covered Products is not relevant to any claims pleaded in the Amended Complaint and exceeds the scope of permissible discovery. Further, IBA is not obligated to obtain third-party discovery because Ecolab has not established that IBA has the “practical ability” to do so. However, IBA must supplement its responses to Interrogatories and Requests for Production that seek information relevant and proportional to the issues in the case as described above.

IT IS HEREBY ORDERED: