*1 Pursuant to 28 U.S.C. § 636(b) and the district judge's Order of Reference, Doc. 57, before the Court is Plaintiffs' Motion to Compel Discovery Responses to Plaintiffs' Second Set of Discovery. Doc. 53. Plaintiffs seek an order compelling Defendants to respond to Interrogatories Nos. 15-22 and to produce documents in response to Document Requests Nos. 39-47 of Plaintiffs' Second Set of Interrogatories and Document Requests. Doc. 55 at 2-11.[1] Defendants oppose the motion arguing, inter alia, that “Plaintiffs cannot meet their burden to show the requested discovery is relevant.” Doc. 58 at 16. Upon review and for the reasons that follow, the motion is GRANTED IN PART.

I. BACKGROUND

Plaintiffs Christina C. Seidner and Jared Mackrory, former employees of Kimberly Clark Corporation (“Kimberly-Clark”), filed this lawsuit individually and as representatives of a Class of Participants and Beneficiaries on behalf of the Kimberly Clark Corporation 401(k) and Profit Sharing Plan (the “Plan”) against Kimberly Clark and its Benefits Administration Committee for alleged breaches of fiduciary duty in administering the Plan under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. Doc. 1, passim.

In their Amended Complaint, the live pleading, Plaintiffs allege that Defendants,

Doc. 22 at 2.

More specifically, Plaintiffs allege that “[d]efined contribution plan fiduciaries of mega 401(k) plans hire service providers [generically referred to as “recordkeepers”], to deliver a retirement plan benefit to their employees.” Doc. 22 at 10. Plaintiffs further allege that these providers “have developed bundled service offerings that can meet all the needs of mega retirement plans, [and that] Fidelity, Hewitt, and Alight are such recordkeepers.” Doc. 22 at 10. “These recordkeepers deliver all the essential recordkeeping and related administrative (‘RKA’) services through standard bundled offerings of the same level and quality.” Doc. 22 at 11. Plaintiffs allege that “unlike a hypothetical prudent fiduciary, Defendants did not regularly and/or reasonably assess the Plan's RKA fees it paid to Fidelity, Hewitt, and Alight”; and “did not engage in any regular and/or reasonable examination and competitive comparison of the RKA fees it paid to Fidelity, Hewitt, and Alight, as compared to fees that other RKA providers would charge, and would have accepted, for the same level and quality of services.” Doc. 22 at 25. Plaintiffs contend that, as a result of Defendants' breaches of their fiduciary duties, they and the Plan participants suffered millions of dollars in monetary losses in the form of unreasonable and unnecessary fees. Doc. 22 at 30, 32.

*2 On August 17, 2023, Plaintiffs served Defendants with Plaintiffs' Second Set of Interrogatories and Document Requests. Doc. 55 at 2-11. Ultimately, Defendants objected to Document Requests Nos. 39-47 and Interrogatories Nos. 15-22. Doc. 55 at 15-22; Doc. 55 at 28-33. Unable to come to an agreement on these discovery requests, Plaintiffs filed the motion sub judice in October 2023.

II. LEGAL STANDARD

Unless otherwise limited by the Court,

FED. R. CIV. P. 26(b)(1). More simply, under Rule 26(b)(1), discoverable matter must be both 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. Relevance is interpreted broadly to include “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 352 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The party opposing discovery bears the burden of showing why the discovery sought is not relevant or is otherwise objectionable. Mir v. L-3 Commc'ns Integrated Sys., L.P., 319 F.R.D. 220, 224 (N.D. Tex. 2016).

When analyzing the proportionality of a party's discovery requests, courts consider: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to the information; (4) the parties' resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(1). A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

As to requests for production or inspection, a party may serve on any other party a request within the scope of Rule 26(b): “(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information ... or (B) any designated tangible things.” FED. R. CIV. P. 34(a). In response to a Rule 34(a) request, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). The party resisting discovery must show specifically why each disputed request for production is not relevant or is otherwise objectionable as overly broad or burdensome. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).

*3 As to interrogatories, Rule 33(a)(2) provides that “[a]n interrogatory may relate to any matter that may be inquired into under Rule 26(b).” FED. R. CIV. P. 33(a)(2). “Generally, an interrogatory may relate to any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Lopez v. Don Herring Ltd., 327 F.R.D. 567, 579 (N.D. Tex. 2018). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4). Finally, responses to interrogatories must be verified. FED. R. CIV. P. 33(b)(5).

If a party fails to respond to a proper request for discovery, or if an evasive or incomplete response is made, the party requesting the discovery is entitled to file a motion to compel responses to interrogatories or production of documents after having made a good-faith effort to resolve the dispute by conferring first with the other party. FED. R. CIV. P. 37(a). But a court may decline to compel, and, at its option or on motion, “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden ..., including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” FED. R. CIV. P. 26(c)(1)(D). For purposes of Rule 37(a), “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).

III. ANALYSIS

The disputed discovery requests primarily involve the Plan's chosen default investments for the Plan or Qualified Default Investment Alternatives (QDIAs).[2] See Doc. 55 at 2-11. The document requests at issue are as follows:

Doc. 55 at 16-22.[3]

The Interrogatories at issue are as follows:

*5 Doc. 55 at 27-33.

In response to Interrogatories Nos. 15-22 and Document Requests Nos. 39-47, Defendants objected that the discovery requests at issue are “not targeted at eliciting relevant discovery,” as the requests “are not the subject of the parties' claims or defenses, which concern the fees charged and services provided to the Plan by its Recordkeepers.” See generally Doc. 55 at 12-24; Doc. 55 at 25-37. Defendants also objected that the discovery requests are “overly broad, unduly burdensome, [and] not proportional to the needs of the case” and that certain terms are “vague and ambiguous.” Doc. 55 at 12-24; Doc. 55 at 25-37.

A. Defendants' Objections Based on Relevance

In opposition to Plaintiffs' Motion to Compel, Defendants contend that “Plaintiffs cannot meet their burden to show the requested discovery is relevant.” Doc. 58 at 16. They argue that Plaintiffs “seek to compel far-reaching discovery on a wholly new and unpled theory concerning ‘fiduciary investment decisions’ ” and seek to “justify a new direction in discovery.” Doc. 58 at 5-6. According to Defendants, Plaintiffs are seeking to raise a disavowed managed account claim or “managed account theory.” Doc. 58 at 6, 15, 20.

Plaintiffs contend that “[n]ot only do Plaintiffs not bring any claims based on investment decisions, but [they] also do not seek to claim that the managed account services selected were unreasonable in a vacuum or compared to other managed account services, as Defendants repeatedly suggest through their brief.” Doc. 65 at 6. Plaintiffs maintain that “the discovery concerning the Plan's QDIA is relevant to Plaintiffs' excessive RKA fee claims because Plan QDIA information directly concerns the level of fees charged and services provided to the Plan by its recordkeepers.” Doc. 54 at 4. Plaintiffs assert that “the issue is whether Plan participants, like Plaintiffs, paid excessive RKA fees because the Plan fiduciaries engaged in an imprudent fiduciary process by failing to analyze and compare the excessively expensive managed account services for the Plan QDIA instead of considering any number of target date funds that almost all 401(k) plans utilize.” Doc. 65 at 7. Plaintiffs further contend that “one cannot understand the total recordkeeping and administration (RKA) fees paid by the Plan without considering the revenue generated by Aon Hewitt, and then by Fidelity, in setting up and maintaining for over a decade managed account services as the Plan QDIA.” Doc. 65 at 5.

In support, Plaintiffs have submitted under seal for Court review numerous Plan-related documents produced by Defendants, showing that Fidelity and Hewitt considered their managed account service fees to be part of Plan's RKA fees. See Doc. 70 at 1-15. In various documents, including the Fidelity Kimberly-Clark Plan Fee Spreadsheet, these managed accounts are referred to as “other administrative fees,” “annual administration fees,” and “administrative recordkeeping services and compensation.” Doc. 70 at 1-2; see also Doc. 70 at 3-13. In another document, Kimberly-Clark's Plan consultant makes a direct connection between the managed account service fees paid to Hewitt and the resulting high level of overall administrative fees paid by Kimberly-Clark to Hewitt for Plan services. See Doc. 70 at 14-1.[4]

*6 In the Amended Complaint, Plaintiffs allege the Plan participants paid elevated RKA fees to Hewitt and Fidelity. See Doc. 22 at 11-13, 16, 23-24-26, 30. The Court is persuaded by its review of the record, supra, that these fees could include administrative fees charged to Plan participants who are, or were, defaulted into the managed account services for the Plan QDIA during the Class Period. Such discovery is, therefore, relevant to Plaintiffs' ERISA claims for breach of fiduciary duty. Additionally, Defendants have failed to articulate why production of these documents is disproportionate to the needs of the case or how production would be unduly burdensome. See FED. R. CIV. P. 26(a)(1).

For these reasons, Defendants' overarching objection that Document Requests Nos. 39-47 and Interrogatories Nos. 15-22 concerning QDIAs are an attempt by Plaintiffs to engage in far-reaching discovery on an unpled claim and are not relevant to the claims or defenses in this matter is OVERRULED.

B. Defendants' Boilerplate Objections

At the outset, to resist discovery, Defendants advance numerous boilerplate objections that are not accompanied by an adequate explanation. They object to Document Requests Nos. 39-47 as “overly broad, unduly burdensome, [and] not proportional to the needs of this case.” See, e.g., Doc. 55 at 16. Defendants similarly object to Interrogatories Nos. 15-22 as “overly broad, unduly burdensome, [and] not proportional to the needs of this case.” See, e.g., Doc. 55 at 29. Defendants merely state the grounds of overbreadth and undue burden without explaining what portions of the discovery requests are overbroad or why producing responsive documents would require excessive expense.

In addition, Defendants' objections do not explain how the materials or responses that each request seeks are not proportional to the needs of the case. See Lopez, 327 F.R.D. at 585 (explaining that the burden is placed “on the party resisting discovery to – in order to successfully resist a motion to compel – specifically object and show that the requested discovery ... fails the required proportionality calculation or is otherwise objectionable”).

“The party resisting discovery must show specifically how each discovery request is ... objectionable.” Samsung, 321 F.R.D. at 283 (citation omitted). “A party resisting discovery must show how the requested discovery is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.” Id. (citing 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). For these reasons, Defendants' boilerplate objections that the discovery requests are overly broad, unduly burdensome, and not proportional to the needs of this case are OVERRULED.

C. Defendants' Objections Based on Vagueness and Ambiguity

Defendants also object to certain words in Documents Requests 39-47, contending they are “vague and ambiguous,” including the defined terms “Communication,” “Document,” “Service Provider,” “Describe,” “Describe in Detail,” and “Identify,” and the undefined terms “QDIA Notices,” “managed accounts,” “target date funds,” “research, review, analysis, or consideration,” “associated documents and materials,” “utilized by,” and “any other competitive process.” Doc. 55 at 14-22. Defendants raise similar objections to many of the same terms and others in Interrogatories Nos. 15-22. Doc. 55 at 27-33.

*7 A “party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity”; “must explain the specific and particular way in which a request is vague”; “should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories”; “[i]f necessary to clarify its answers, ... may include any reasonable definition of the term or phrase at issue”; and, “[should] attempt to obtain clarification [by conferring with the requesting party] prior to objecting on this ground.” Heller, 303 F.R.D. at 483, 491-92 (cleaned up).

Here, Defendants have done none of that. Further, the definitions of “Communication,” “Document,” “Service Provider,” “Describe,” “Describe in Detail,” and “Identify,” and the meaning of the various words and phrases to which Defendants' object, are not “so vague or ambiguous as to be incapable of reasonable interpretation and to prohibit [Defendants'] responses.” Id. at 492. Accordingly, Defendants' objections are OVERRULED.

D. Defendants' Specific Objections

Defendants have asserted particularized objection to certain requests and, in response to the Motion to Compel, argued in support of some objections as to certain requests. See Doc. 58 at 23-24. The Court now turns to these specific objections and Defendants' argument in support.

Request No. 39: Any and all documents that relate to Qualified Default Investment Alternatives (QDIAs), including but not limited to QDIA Notices for the Plan during the Class Period.

Defendants object that the request is overbroad, arguing that “Plaintiffs offer no support for their contention that they need ‘all’ documents relating to QDIAs.” Doc. 58 at 23. Defendants assert that requests for “all” documents on a subject without any attempt to reasonably limit them to the proper scope of discovery are “inherently overbroad” and should be denied. Doc. 58 at 23 (citation omitted).

“All-encompassing demands that do not allow a reasonable person to ascertain which documents are required do not meet the particularity standard of Rule 34(b)(1)(A).” Mahalingam v. Wells Fargo Bank, N.A., No. 3:22-CV-1076-L, 2023 WL 3575645, at *7 (N.D. Tex. May 19, 2023). For example, “broad and undirected requests for all documents which relate in any way to the complaint do not meet Rule 34(b)(1)(A)'s standard.” Id. (cleaned up). Similarly, a request for “all documents and records” that relate to “any of the issues,” while convenient, “fails to set forth with reasonable particularity the items or category of items sought for the responding party's identification and production of responsive documents.” Id. (cleaned up).

The Court has reviewed Document Request No. 39, as well as Plaintiffs' other requests that include the term “all,” and concludes that none of the requests fail Rule 34(b)(1)(A's) standard. Rather, the requests are “sufficiently definite and limited in scope [such] that [they] can be said to apprise a person of ordinary intelligence what documents are required[.]” Id. at *6. For these reasons, Defendants' objections are OVERRULED.

• Request No. 40: Any and all documents relating to or comprising research, review, analysis, or consideration of any kind that Defendants have undertaken regarding [QDIAs], including the basis for using managed accounts versus target date funds as QDIAs, and fee comparisons between managed accounts and target date funds as QDIAs.

• Request No. 44: Any and all documents that refer or relate to any of Defendants' negotiations with Recordkeepers regarding [QDIAs] for the Plan; and the quality, level, price, or caliber of QDIAs provided.

*8 Defendants object to these document requests as lacking limited temporal scope, contending that “Plaintiffs offer no justification for their request for all documents relating to negotiations about QDIAs without regard to the time period.” Doc. 58 at 23. The Court agrees. Plaintiffs are not entitled to documents from outside the relevant period, and these requests lacking temporal scope are overly broad, unduly burdensome, and not proportionate. See, e.g., Talley v. Spillar, No. A-16-CV-670, 2017 WL 9288622, at *4 (W.D. Tex. Mar. 31, 2017) (placing temporal limitation on requests). For these reasons, Defendants' objections are SUSTAINED. Rather than quash the subject requests, however, the Court modifies them thusly: Defendants are ORDERED to submit a supplemental response and produce documents responsive to Requests Nos. 40 and 44, limited in temporal scope to the alleged Class Period. This general limitation of the temporal scope is consistent with many of Plaintiffs' document requests and strikes the proper balance in light of the claims and defenses in this action. See Jolivet v. Compass Grp. USA, Inc., No. 3:19-CV-2096-B, 2021 WL 90110, at *8 (N.D. Tex. Jan. 11, 2021) (“[C]ourts maintain discretion to compel discovery covering different time periods based upon the discovery's relevance to each parties' claims and defenses.”).

• Request No. 45: Any and all documents regarding, relating and/or referring to communications with Plan participants, beneficiaries, or employees relating to [QDIAs] for the Plan during the Class Period.

Defendants object specifically to Document Request No. 45, contending that “Plaintiffs fail to explain how all ‘communications with Plan participants' relating to QDIAs are relevant to determining whether the fiduciaries used a prudent process in selecting the QDIA (much less to the prudence of any associated fees), nor have they limited the request to communications involving individuals who have fiduciary oversight or other monitoring responsibilities for the Plan.” Doc. 58 at 24. Given the nature of Plaintiffs' ERISA claims for breach of fiduciary duty, as discussed supra, Defendants' objection to Request No. 45 is SUSTAINED, as the Court finds that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance (as now amended) and is disproportionate to the needs of the case.

IV. AWARD OF EXPENSES

Finally, after considering all of the circumstances here and the Court's rulings above, the Court determines that, under FED. R. CIV. P. 37(a)(5)(C), the parties should bear their own expenses, including attorney's fees, in connection with the Motion to Compel.

V. CONCLUSION

For the reasons and to the extent explained above, Plaintiffs' Motion to Compel Discovery Responses to Plaintiffs' Second Set of Discovery is GRANTED IN PART as detailed herein. Defendants are ORDERED to, by December 29, 2023, (1) serve on Plaintiffs complete written responses to Document Requests Nos. 39-44 and 46-47, and produce all unproduced, non-privileged documents and electronically stored information responsive to these Document Requests (as modified herein) that are in Defendants' care, custody, or control, in compliance with Rule 34(b)'s requirements; and (2) respond to Interrogatories Nos. 15-22, in compliance with Rule 33(b)'s requirements.

SO ORDERED on December 13, 2023.