*1 Pursuant to 28 U.S.C. § 636(b) and the district judge's Order of Reference, Doc. 66, before the Court for determination are Plaintiff's Motion to Compel Against Defendant SouthernCarlson, Inc., Doc. 58, Plaintiff's Motion to Compel Against Defendants Daniel McSpadden, Ronald Nelson, and Phil Schroeder, Doc. 60, and Defendants' Motion for Stay, Protective Order, and Motion to Quash, Doc. 68. For the reasons detailed herein, Plaintiff's motions are GRANTED IN PART and Defendants' motion is GRANTED.

I. PROCEDURAL HISTORY

Plaintiff is primarily engaged in the business of marketing, selling, and distributing supplies and equipment and related services for professional contractors. Doc. 1 at 5. For a time, Plaintiff employed Defendants Nelson, McSpadden, and Schroeder (the “Individual Defendants”), but they ultimately decided to work for one of Plaintiff's competitors, Defendant SouthernCarlson, Inc. (“SCI” and, collectively “Defendants”). Doc. 1 at 8-9. Plaintiff alleges that Defendants thereby harmed its business, so it asserts claims under the federal Defend Trade Secrets Act and the Texas Uniform Trade Secret Act, as well as for civil conspiracy, unfair competition, tortious interference with prospective business relations, breach of fiduciary duty, and the like. Doc. 1 at 21-35. Plaintiff sought a temporary restraining order and preliminary and permanent injunctions to prevent Defendants from utilizing its “confidential, proprietary, and trade secret information for any purpose.” Doc. 1 at 36-37; Doc. 5.

Following expedited briefing, the district judge denied the emergency motion, finding that Plaintiff had failed to demonstrate an immediate threat of irreparable injury. Doc. 23. The Court further stated that it would consider Plaintiff's application for a preliminary injunction on the papers and directed the parties to confer regarding an expedited discovery schedule, including “staged filing of evidence, identification of and limitations on the number of affiants/declarants, and briefing.” Doc. 23 at 2. On receipt of the parties' scheduling proposal, the district judge entered a Scheduling Order for Expedited Discovery and Preliminary Injunction Briefing (the “Scheduling Order”), directing expedited discovery to commence immediately and establishing briefing deadlines. Doc. 34 at 1-2. Discovery was limited to ten interrogatories and ten requests for production (“RFPs”) per party, four third-party subpoenas per party, and four depositions per party. Doc. 34 at 2-3.

Additionally, the Court ordered the parties to confer about a forensic review protocol and, if no agreement was reached, present their respective proposals. Doc. 34 at 3. Subsequently, the Court partially granted Plaintiff's Motion for Entry of a Forensic Protocol Order and separately entered a Stipulated Order Regarding Protocol for Forensic Inspections of Individual Defendants' Devices and Accounts. Doc. 51; Doc. 52. To date, no other scheduling order has been entered.

II. APPLICABLE LAW

The Federal Rules of Civil Procedure specify the scope of discovery in all civil cases. Unless otherwise limited by the court,

FED. R. CIV. P. 26(b)(1). More simply, under Rule 26(b)(1), discoverable matter must be relevant and proportional to the needs of the case. Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017). “To be relevant under Rule 26(b)(1), a document or information need not, by itself, prove or disprove a claim or defense or have strong probative force or value.” Id. at 280.

The party seeking to resist discovery bears the burden of demonstrating how the requested discovery is overly broad and unduly burdensome by submitting affidavits or other evidence revealing the nature of the burden. Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005); see also S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A party asserting undue burden typically must present an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.”). “Failing to do so, as a general matter, makes such an unsupported objection nothing more than unsustainable boilerplate.” Heller v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014).

A party seeking discovery may move for an order compelling production or answers from another party when the latter has failed to answer interrogatories or produce documents. See FED. R. CIV. P. 37(a)(3)(B)(iii)-(iv). For purposes of a motion to compel, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4).

Whether responding to an interrogatory or request for production, any ground not stated in a timely objection is waived unless the court, for good cause, decides otherwise. Lopez v. Don Herring Ltd., 327 F.R.D. 567, 582 (N.D. Tex. 2018). Further, “[s]erving unsupported and boilerplate or stock objections does not preserve or accomplish anything other than waiver and subjecting the responding party to sanctions.” Id. at 581 (internal quotation marks omitted) (quoting Heller, 303 F.R.D. at 477). Finally, in responding to a motion to compel, the objecting party must “urge and argue in support of its objection to an interrogatory or request, and, if it does not, it waives the objection.” Id. at 583 (citing Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016)).

III. ANALYSIS

In the course of conducting expedited discovery, Plaintiff served SCI with nine interrogatories and ten RFPs. Doc. 59 at 4-11. In the present motion, Plaintiff notes that SCI refused to respond to seven of the interrogatories and has produced only 200 documents. Doc. 58 at 7. The Court addresses each category of discovery sought below and, purposes of this order, adopts Plaintiff's revised definitions in the discovery requests of the terms (1) White Cap (to include Ram Tool), (2) Former White Cap Employees, (3) White Cap Information, and (4) Communications. See Doc. 59 at 44-46.

This interrogatory requests that SCI identify all payments it has “provided, promised to provide, or offered to provide to Individual Defendants, including but not limited to, wages, compensation, bonuses, commissions, attorneys' fees, expense reimbursements” and the like. Doc. 59 at 9. SCI responded by identifying the basic compensation/commission structures of the Individual Defendants and provided their offer letters, but otherwise objected to the request based on relevance. Doc. 59 at 25.

*3 Plaintiff argues that payments by SCI aside from base salary and commissions, such as payment of the Individual Defendants' attorneys' fees and expenses, would “indicate SCI's awareness it is harming White Cap's business through these hires.” Doc. 58 at 13. SCI counters that Plaintiff's implicit suggestion that “retaining an attorney serves as an indicia of guilt has no merit,” and the forthcoming preliminary injunction proceeding bears no relation to the source of funds for the Individual Defendants' attorney fees. Having considered the record, applicable law, and the parties' briefs, the Court finds SCI's position to be better taken. Accordingly, Plaintiff's motion is DENIED as to Interrogatory 2.

These interrogatories read as follows:

Doc. 59 at 10-11. SCI argues that Plaintiff is essentially requesting a production of documents in narrative form, in view of the lengthy response that would be required to describe SCI's conversations with its own employees, essentially violating the ten-limit RFP permitted under the Scheduling Order. Doc. 73 at 9-10.

Upon consideration, the Court agrees. One of the principal functions of interrogatories is to clarify the contentions of the parties. McCullough Tool Co. v. Pan Geo Atlas Corp., No. 67-H-408, 1969 WL 9564, at *4 (S.D. Tex. Jan. 23, 1969). Their purpose “is not only to ascertain facts but also to ‘determine what the adverse party contends they are, and what purpose they will serve, so that the issues may be narrowed, the trial simplified, and time and expense conserved.’ ” Semcon IP Inc. v. MediaTek Inc., No. 2:16-CV-00437-JRG-RSP, 2018 WL 4501871, at *4 (E.D. Tex. Feb. 28, 2018) (quoting Baim & Blank, Inc. v. Philco Distrib., Inc., 25 F.R.D. 86, 87 (E.D.N.Y. 1957)); see also Stonybrook Tenants Ass'n, Inc. v. Alpert, 29 F.R.D. 165, 167 (D. Conn. 1961) (noting that interrogatories allow a party to ascertain facts and procure evidence or secure information as to where pertinent evidence exists and can be obtained).

Nevertheless, an interrogatory requesting a detailed description of the contents of documents and statements is equivalent to a request for the documents themselves, which must be made under Rule 34, not Rule 33. Stovall v. Gulf & S. Am. S. S. Co., 30 F.R.D. 152, 154 (S.D. Tex. 1961) (citing Alltmont v. United States, 177 F.2d 971 (3rd Cir. 1949)); see also 8B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2177 (3d ed. 2010) (“The party may be required to state his or her recollection of an oral conversation, although in general such details are better inquired into in a deposition of the person with a recollection of the events.”).

*4 Here, Interrogatories 3, 6, and 7 essentially request a narrative form of information that is more appropriate for depositions, RFPs; therefore, an order compelling response is not warranted. See Meltzer/Austin Rest. Corp. v. Benihana Nat. Corp., No. A-11-CV-542-LY, 2013 WL 2607589, at *3 (W.D. Tex. June 10, 2013) (declining to require a party “to provide an exhaustive list of every individual and the substance of those communications [which] could amount to several pages of text.”). Plaintiff's motion is thus DENIED to this extent.

These interrogatories request that SCI identify (1) “every actual, former, or prospective customer of White Cap” that SCI has communicated with since January 2023 regardless of whether such communications involved the Individual Defendants, other former employees, or “others within SCI”; (2) every such customer that did not previously transact business with SCI but has begun doing so since June 2023; and (3) “all projects and/or sales” for those customers and the resulting revenues. Doc. 59 at 26-27, 29. SCI objected that, inter alia, the interrogatories were overbroad and irrelevant to the preliminary injunction proceeding and, in any event, it cannot identify all of Plaintiff's customers absent a list. Doc. 59 at 29. SCI raised similar objections in its responses to RFPs 2, 4, and 10. Doc. 59 at 36-37, 40.

While it may not be possible to conclusively identify every actual or former—much less prospective—customer of Plaintiff's, SCI is nevertheless required to respond to the extent it is able to do so based on the knowledge it does have. See Samsung Elecs. Am., Inc., 325 F.R.D. at 590 (stating that a party served with written discovery must “fully answer each ... document request to the full extent that it is not objectionable and affirmatively explain what portion of ... [a] document request is objectionable and why, affirmatively explain what portion of the ... document request is not objectionable and the subject of the answer or response, and affirmatively explain whether any responsive information or documents have been withheld.”) (quoting Heller, 303 F.R.D. at 485). Nevertheless, the Court limits these requests to communications involving only the Individual Defendants and Plaintiff's former employees, since including “others within SCI” is not sufficiently tailored to the purposes of the preliminary injunction proceeding. Plaintiff's motion is GRANTED IN PART with respect to these interrogatories and RFPs.

This interrogatory requests that SCI “[i]dentify all documents and communications related to White Cap Information derived from White Cap documents or information in SCI's possession, custody, or control” and “describe in detail how SCI used this document or information.” Doc. 59 at 28-29. SCI responded to this interrogatory by asserting it was an attempt to circumvent the ten-RFP limit as Plaintiff expected SCI to respond by producing business records in lieu of a narrative answer. Doc. 59 at 29. SCI did not, however, raise this argument in its response to Plaintiff's motion and it is thus waived. See Lopez, 327 F.R.D. at 583 (providing that a party must, in response to a motion to compel, “urge and argue in support of its objection to an interrogatory or request, and, if it does not, it waives the objection.”) (citation omitted).

In response to Plaintiff's motion, SCI instead argues the interrogatory is premature in light of the forthcoming forensic analysis of the Individual Defendants' devices (which appears to have been largely completed).[1] Doc. 73 at 14-14; see Doc. 74 at 6. Because SCI did not raise this objection in its discovery response, however, it too is waived. See Lopez, 327 F.R.D. at 582 (stating that any ground not raised in a timely objection is waived unless the court, for good cause, decides otherwise). Plaintiff's motion is GRANTED as to Interrogatory 8.

*5 This RFP requests “[a] copy of each Individual Defendant's day planner or calendar whether hard copy or kept in electronic form ... since January 1, 2023 in SCI's possession, custody, or control.” Doc. 59 at 35. SCI objects that it has produced all responsive documents that post-date the Individual Defendants' employment but will not produce their personal calendars prior to their hiring. Doc. 73 at 17. While Plaintiff maintains SCI can obtain the calendars directly from the Individual Defendants, the Court will not order it do so when Plaintiff could have simply propounded the discovery directly to the Individual Defendants. Plaintiff's motion is thus DENIED in this regard.

RFP 3 requests “documents and communications related to White Cap Information or documents or derived from White Cap Information or documents.” Doc. 59 at 18. RFP 6 requests that SCI produce any electronic devices for inspection which contain or contained White Cap Information. Doc. 59 at 19. SCI (1) objects to the extent this request could require it to provide documents in the Individual Defendants' possession, (2) contends it is aware of no responsive documents or electronic devices in its possession, and (3) notes that forensic examination of the Individual Defendants' devices has taken place which renders these RFPs duplicative. Doc. 59 at 36, 38; Doc. 73 at 19-21. Under these circumstances outlined by SCI, Plaintiff's motion is DENIED with respect to RFPs 3 and 6.

This RFP requests documents evidencing all payments “SCI has provided, promised to provide, or offered to provide to any current or former White Cap employee including but not limited to, wages, compensation, sales, discounts, or subscriptions.” Doc. 59 at 38. Plaintiff represents that while SCI has produced the Individual Defendants' offer letters, it has not provided such evidence as it relates to Plaintiff's other current or former employees. Doc. 58 at 24. In that Plaintiff has narrowed the definition of “current or Former White Cap Employee,” the motion is GRANTED as to RFP 7.

RFP 8 asks SCI to produce all documents evidencing communications between SCI and Plaintiff's current or former employees about employment with SCI or resigning from Plaintiff's employ. Doc. 59 at 39. Aside from its prior definition-based objection, SCI responded with unsubstantiated overbreadth, undue burden, and vagueness objections and stated that it might have additional responsive documents. Doc. 59 at 39. SCI's objections are insufficient because it has not submitted affidavits or other evidence revealing the nature of the burden. See Merrill, 227 F.R.D. at 477. Moreover, the Court finds this RFP seeks discovery that is relevant and proportional to the needs of the case. Samsung Elecs. Am., Inc., 325 F.R.D. at 590. Plaintiff's motion is thus GRANTED to this extent.

This RFP seeks documents referenced in SCI's answers to Plaintiff's expedited interrogatories. Doc. 59 at 39. SCI objected that this request imposes an unreasonable burden, and it has yet to determine whether it is in possession of documents responsive to this request. Doc. 59 at 39-40. Once again, this unsupported boilerplate objection is insufficient. See Merrill, 227 F.R.D. at 477. The Court further finds RFP 9 seeks relevant, proportional discovery. Samsung Elecs. Am., Inc., 325 F.R.D. at 590. Plaintiff's motion is thus GRANTED to this extent.

*6 This interrogatory seeks the identity of Plaintiff's actual or prospective customers with whom the Individual Defendants interacted during their last 12 months of employment who are now doing business with SCI. The Individual Defendants raised boilerplate objections based on overbreadth, vagueness, relevance and the like. See Doc. 61 at 64. As Plaintiff correctly observes, these objections are insufficient because they did not submit affidavits or other evidence revealing the nature of the burden. Doc. 60 at 12-13; Merrill, 227 F.R.D. at 477. Moreover, this request seeks relevant, proportional information which the Individual Defendants are required to produce to the best of their ability. Samsung Elecs. Am., Inc., 325 F.R.D. at 590. Accordingly, Plaintiff's motion is GRANTED as to Interrogatory 2.

This request seeks the identity and content of communications the Individual Defendants had with Plaintiff's current or former employees regarding the Individual Defendants' plan to go work for SCI. Doc. 72 at 8. The Individual Defendants represent that they have responded to the best of their ability by providing the names of the employees they communicated with about their general dissatisfaction with Plaintiff and interest in going to work for SCI and included dates to the extent they could remember. Doc. 71 at 10; see Doc. 72 at 8-9. To the extent this request also seeks communications which “referenced SCI at any point,” it is overbroad. Plaintiff's motion is DENIED as to Interrogatory 4.

Interrogatory 5 asks the Individual Defendants to identify any of Plaintiff's documents which they duplicated, copied, saved, forwarded, emailed, removed, or deleted. Doc. 61 at 76. The Individual Defendants assert that they regularly took such actions in the course of their employment with Plaintiff and a forensic search of their devices will reveal the existence of any such documents. See Doc. 61 at 77. Upon consideration, the Court finds the forensic examinations of the devices to be the more efficient method of discovery rather than requiring the Individual Defendants to try to recall such minutiae. Stovall, 30 F.R.D. at 154. Plaintiff's motion is DENIED as to Interrogatory 5.

This request asks the Individual Defendants to identify their job duties for SCI, including title, the date of their employment offers and acceptances, who interviewed them, their managers and reports, and “current, former or prospective customers with whom you have worked with and/or solicited while employed at SCI.” Doc. 72 at 10. Upon review of the Individual Defendants' responses, the Court finds they are sufficient at this stage of discovery. See, e.g., Doc. 72 at 10, 27. To the extent Plaintiff seeks the identity of all of the Individual Defendants' SCI customers, this interrogatory is overbroad. Accordingly, Plaintiff's motion is DENIED as to Interrogatory 6.

This interrogatory requests that the Individual Defendants identify all communications about their work for SCI, resignation from Plaintiff's employ, and hiring by SCI, including the dates and methods of the communications, the purpose and content thereof, and documents related thereto. Doc. 72 at 28. Upon review of the Individual Defendants' responses, the Court finds they are sufficient at this stage of discovery. See, e.g., Doc. 72 at 11, 28. To the extent Plaintiff requests that they identify “all communications about your work for SCI,” this interrogatory is overbroad. Accordingly, Plaintiff's motion is DENIED as to Interrogatory 7.

RFP 3 requests seeks communications between the Individual Defendants and Plaintiff's actual, former or prospective customers, from January 2023 to the present, with whom they or any of Plaintiff's former employees interacted during their last year of employment. Doc. 61 at 114. The Individual Defendants objected largely on relevance grounds, asserting their contact with such customers prior to working for SCI was part of their job responsibilities and the communications memorialized in writing on Plaintiff's network are already available to it. See Doc. 61 at 114-15. The Court agrees.

*7 The Individual Defendants further objected to identifying any customers they have contacted while at SCI on the grounds that they have no restrictive covenants and have not used any of Plaintiff's proprietary information to conduct or solicit business on SCI's behalf. Doc. 61 at 115. Despite the absence of restrictive covenants, however, whether they have used Plaintiff's trade secrets is the subject of this litigation and Plaintiff is not required to take the Individual Defendants at their word. Plaintiff's motion is GRANTED IN PART as to RFP 3.

This request seeks documentation of transactions between SCI and any customers that transacted business with Plaintiff during the last year of each Individual Defendants' employment. See Doc. 61 at 117. The Individual Defendants objected, asserting (1) they could not know the identity of all such customers, (2) Plaintiff is already in possession of some of the requested documents, and (3) the material sought is irrelevant because they did not have restrictive covenants with Plaintiff. See Doc. 61 at 117-18.

Again, while the Individual Defendants may not be able to identify all such customers, they are nevertheless required to respond to the extent they can do so based on the knowledge they do have. See Samsung Elecs. Am., Inc., 325 F.R.D. at 590. The fact that they may not have been subject to restrictive covenants is beside the point in a case alleging claims which include trade secret theft, tortious interference, and breach of fiduciary duty. Plaintiff's motion is GRANTED as to RFP 9.

Pursuant to Federal Rule of Civil Procedure 37(a)(5), Plaintiff seeks sanctions against Defendants in the form of attorneys' fees and costs incurred in having to prepare its motions to compel. Doc. 58 at 28; Doc. 60 at 21-22. Only SCI responded to Plaintiff's argument, asserting that Plaintiff was unwilling to meaningfully compromise on the scope of discovery, and its own position was substantially justified. Doc. 73 at 24-25.

If a motion to compel is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(C). Given that Plaintiff only partially prevailed, the Court finds that an apportioned award of fees and costs is appropriate. To that end, the parties are DIRECTED to confer in an effort to reach agreement about the amount of fees owed in connection with the issues discussed herein. If the parties are unable to reach agreement within 21 days of the date of this order, Plaintiff may submit a motion for attorneys' fees with appropriate supporting documentation.

Defendants assert that, even though only expedited discovery is permitted under the Scheduling Order, Plaintiff has served (1) 70 non-expedited interrogatories; (2) 106 non-expedited RFPs; (3) 96 non-expedited requests for admissions; and (4) 684 requests for documents via 49 subpoenas. Doc. 81 at 1. Defendants argue that discovery cannot proceed in an orderly and expeditious fashion if Plaintiff is permitted to pursue voluminous ordinary discovery simultaneously with the limited expedited discovery the Court has authorized. Doc. 68 at 9-10. Moreover, permitting Plaintiff to engage in such would render moot the limitations the district judge imposed on expedited discovery in connection with the injunction proceeding. Doc. 68 at 10. Defendants request that the Court stay general discovery until Plaintiff's motion for a preliminary injunction is resolved. Doc. 68 at 22. Alternatively, Defendants request that the Court quash several third-party subpoenas Plaintiff issued to its previous employees who now work for SCI. Doc. 68 at 22.

*8 Plaintiff maintains that regular discovery opened when the parties held their Rule 26 conference in October 2023. Doc. 78 at 9, 13. In support, Plaintiff points to language in the Court's order partially granting its request for entry of a forensic protocol order, which provides that “expedited discovery is in addition to, and shall not impact the scope of, discovery available to any party under applicable rules ... Nothing in this Order should be construed as affecting later phases of discovery.” Doc. 78 at 13.

Context matters though. The relevant provision states:

Doc. 51 at 5-6 (emphasis added). The wording of the Order makes clear that only expedited discovery is currently underway. The fact that the parties held a scheduling conference pursuant to Rule 26 does not “open” general discovery absent an additional or amended scheduling order. Cf. FED. R. CIV. P. 16(b) and FED. R. CIV. P. 26(f). Defendants are thus entitled to a stay of general discovery until the district judge orders otherwise.

IV. CONCLUSION

For the reasons set forth above, Plaintiff's Motion to Compel Against Defendant SouthernCarlson, Inc., Doc. 58, and Plaintiff's Motion to Compel Against Defendants Daniel McSpadden, Ronald Nelson, and Phil Schroeder, Doc. 60, are GRANTED IN PART. Defendants' Motion for Stay, Protective Order, and Motion to Quash, Doc. 68, is GRANTED.

SO ORDERED on January 31, 2024.