Glenn Graff, et al., Plaintiffs, v. Haverhill North Coke Company, et al., Defendants Case No. 1:09-cv-670 United States District Court, S.D. Ohio, Western Division Signed August 08, 2011 Counsel Dennis David Altman, Amy Jo Leonard, Amy Marie Hartford, Justin Derek Newman, Robin Burgess, D. David Altman Co. LPA, Cincinnati, OH, Lawrence R. Altman, North Oaks, MN, for Plaintiffs. Louis E. Tosi, Cheri Ann Budzynski, Shumaker, Loop & Kendrick, LLP, Toledo, OH, Eric L. Klein, Nessa Horewitch Coppinger, Mark A. Turco, Beveridge & Diamond, PC, Washington, DC, Gary J. Smith, Beveridge & Diamond, P.C., San Francisco, CA, Hana V. Vizcarra, Robert Brager, Sarah Albert, Beveridge & Diamond, P.C., Baltimore, MD, Michael A. Snyder, Shumaker Loop & Kendrick LLP, Columbus, OH, for Defendants. Litkovitz, Karen L., United States Magistrate Judge ORDER *1 Plaintiffs bring this action under the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., and state law seeking civil penalties, injunctive relief, and damages. This matter is before the Court on plaintiffs' motion to compel discovery (Doc. 91), defendants' memorandum in opposition (Doc. 104), and plaintiffs' reply memorandum (Doc. 112); and on defendants' motion for protective order (Doc. 80), plaintiffs' memorandum in opposition (Doc. 89), defendants' reply memorandum (Doc. 98), plaintiffs' surreply to defendants' reply memorandum (Doc. 110), defendants' motion for leave to file a sur-surreply brief (Doc. 117), and plaintiffs' memorandum in opposition to defendants' motion for leave to file a sur-surreply brief. (Doc. 120). For good cause shown, defendants' motion for leave to file a sur-surreply brief is GRANTED. I. PLAINTIFFS' MOTION TO COMPEL DISCOVERY IS GRANTED IN PART AND DENIED IN PART. Plaintiffs seek an order compelling defendants to: (1) provide the underlying facts found in purportedly privileged/protected documents; (2) provide a privilege log that is sufficiently detailed to allow plaintiffs and the Court to assess the basis upon which each document is being withheld; (3) produce unredacted copies of documents that defendants have redacted in violation of Rule 34 and discovery case law interpreting Rule 34; (4) provide an index of defendants' previously produced documents that identifies by bates number the documents that correspond to each particular document request; (5) provide all documents, made available after the filing of this Motion, as maintained in the usual course of business or labeled to respond to each corresponding document request; (6) search all sources of paper documents and electronically stored information that are within the defendants' possession, custody, or control, including the files of consultants and defendants' employees and officers; (7) run electronic searches, using plaintiffs' electronic search terms (for the document requests served in June 2010), of all sources of electronically-stored information within defendants' possession, custody, or control; and (8) provide complete, direct, and sworn answers to certain of plaintiffs' still-unanswered interrogatories. (Doc. 91). Plaintiffs also seek their fees and costs associated with the motion. Id. Defendants assert they have complied with their discovery obligations in this case and that plaintiffs' arguments are without merit. Defendants contend that their privilege log is proper and that the redaction of irrelevant and confidential information from the documents they produced was appropriate. Defendants also argue that they produced documents responsive to plaintiffs' discovery requests in a reasonable and timely manner and as they were kept in the ordinary course of business. Defendants further assert that they are under no obligation to search all of the files of their own consultants for responsive documents, and that plaintiffs' requests for additional searches of electronically stored information are overly broad, irrelevant, or duplicative of searches already performed by defendants. Finally, defendants contend that they fully responded to the particular document and interrogatory requests plaintiffs now claim are deficient. *2 For the reasons that follow, the Court grants in part and denies in part plaintiffs' motion to compel discovery. A. PRIVILEGE LOG Plaintiffs assert that defendants have failed to provide a privilege log that complies with the Federal Civil Rules, the Local Rules, and case law from this District. In their motion to compel, plaintiffs identify eight specific deficiencies related to defendants' privilege log (Doc. 91, Exh. 5) and request the Court to hold that the documents listed in the log are not entitled to protection under the attorney-client privilege or work product doctrine. In the alternative, plaintiffs request an order compelling defendants to provide all underlying factual information forthwith (by redacting any legitimately protected portions of documents) and to provide a privilege log that meets the necessary requirements to enable plaintiffs to file a motion to compel that is informed by an adequate privilege log. Two days before plaintiffs filed their motion to compel, defendants produced an updated privilege log which addresses in some respects the deficiencies in the initial privilege log identified by plaintiffs. (Doc. 104, Appendix 5). Nevertheless, plaintiffs assert the updated privilege log continues to suffer from many of the deficiencies previously identified. Defendants assert that their privilege log includes precisely what plaintiffs demanded in their request for production of documents: (a) the title or nature of the document; (b) the type of document; (c) the author of the document; (d) the date of the document; (e) the recipient(s) of the document; (f) the names appearing on any circulation or sign-off list on the document; (g) the basis on which the privilege is claimed; and (h) a summary statement of the content of the document. (See Doc. 104, Appendix 4). Defendants assert that each of plaintiffs' requirements were met and that plaintiffs through their motion are making new demands regarding the privilege log, many of which were not communicated to defendants prior to the filing of the motion and which could have been readily addressed by defendants had plaintiffs done so with specific questions. (Doc. 104, Budzynski Aff., ¶ 21). In determining the adequacy of defendants' updated privilege log, the Court first examines the Federal and Local Rules governing claims of attorney-client privilege or work product protection. Federal Rule 26(b)(5)(A) provides that a party withholding information that is otherwise discoverable “by claiming that the information is privileged or subject to protection as trial preparation material” must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed––and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5)(A). The Local Rules of this Court provide: Any privilege log shall cross reference the specific request to which each assertion of privilege pertains. A privilege log shall list documents withheld in chronological order, beginning with the oldest document for which a privilege is claimed. *3 S.D. Ohio Civ. R. 26.1(b). In addressing the adequacy of a privilege log in Cooey v. Strickland, 269 F.R.D. 643 (S.D. Ohio 2010), Judge Frost of this Court noted that “[c]ourts require the following to be included in privilege logs:” 1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.; 2. The date upon which the document was prepared; 3. The date of the document (if different from # 2); 4. The identity of the person(s) who prepared the document; 5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;” 6. The purpose of preparing the document, including an evidentiary showing, based on competent evidence, “supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;” a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, “that the documents do not contain or incorporate non-privileged underlying facts;” 7. The number of pages of the document; 8. The party's basis “for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and 9. Any other pertinent information necessary to establish the elements of each asserted privilege.” Id. at 649 (quoting In re Universal Service Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 673 (D. Kan. 2005)) (in turn quoting Hill v. McHenry, No. 99-2026-CM, 2002 WL 598331, at *8 (D. Kan. Apr. 10, 2002)).[1] The specific items included in any privilege log must allow the Court and the party seeking the documents to readily determine whether the documents are genuinely protected from disclosure by the attorney-client privilege or work product doctrine. This means that defendants' privilege log should contain sufficient detail to enable the Court to assess whether each element of the asserted privilege or protection is satisfied. Cooey, 269 F.R.D. at 649 (citations omitted). For purposes of the attorney-client privilege, the log should disclose information establishing the elements of the attorney-client privilege: *4 (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived. Reed v. Baxter, 134 F.3d 351, 355-56 (6th Cir. 1998) (citations omitted). For the work product protection, the privilege log should contain sufficient information to convey that such documents were prepared by or for an attorney in anticipation of litigation. In re Professionals Direct Ins. Co., 578 F.3d 432, 438-39 (6th Cir. 2009). Plaintiffs' reply memorandum clarifies what they view as the remaining short-comings of defendants' updated privilege log: (1) the log fails to identify the role of the individuals named in the log; (2) the log fails to identify a recipient or author for hundreds of documents; (3) the log fails to show that the documents listed do not contain or incorporate non-privileged underlying facts which are discoverable; (4) the log fails to identify the request or interrogatory to which each document is responsive; and (5) with regard to numerous documents, the log fails to identify the types of documents being withheld (memorandum, email, or attachment), the purpose for preparing documents (e.g., anticipation of litigation or to provide legal advice), and the number of pages of each document (whether through bates stamp identification or otherwise). After consideration of the parties' briefs and arguments, the Court determines that defendants' privilege log is deficient in several respects. However, the Court declines to grant plaintiffs' request to hold that such documents are not privileged or protected and must be produced. Instead, the Court will order defendants to produce an adequate privilege log to account for the following deficiencies: 1. The log must identify the roles of the individuals named in the log (i.e., client, attorney, other third person) and the type of document (email, report, memorandum, letter, etc.) to enable the Court and plaintiffs to assess whether the documents qualify for protection under the attorney-client privilege or as work product. The log in its present form does not enable the Court or plaintiffs to determine whether the documents listed are protected by the attorney-client privilege or as work product. For example, on page 4 of the log, the entry dated October 27, 2006 identifies a document as protected by the attorney-client privilege. The entry lists individuals whose roles are not apparent, i.e., whether such individuals are attorneys, clients, or third persons. The listed description of “Haverhill outstanding issues” in no way identifies what this documents consists of (email, report, memorandum, letter, etc.), the purpose of the document, or the subject of the communication within the document to indicate that the document relates to seeking or giving legal advice. Other entries show similar deficiencies. See, e.g., log p. 1, entries dated December 14, 15, 19, 21, 2005 (Description: “Haverhill, Ohio”); log p. 2, entry May 31, 2006 (Description: “Attorney Client Privilege”). Likewise, there are several entries for documents claiming work product privilege in which the individuals are not identified by role. See, e.g., numerous documents at pages 5 and 6 of the log. Without an identification of the roles of the individuals associated with documents for which defendants claim work product privilege, the Court is unable to discern whether such documents were prepared by or for an attorney in anticipation of litigation or in the course of adversarial litigation. 2. The log must identify the author and recipient for privileged/protected documents and for documents defendants identify as attachments to emails. *5 Defendants assert that documents not listing the name of a sender and recipient are simply attachments to emails, some of which are not privileged and were previously produced to plaintiffs. Defendants state these attachments were listed along with the emails in the privilege log to accurately reflect the nature of the withheld document, and the “sender and recipient” of these documents are the same as the sender and recipient of the email that precedes them on the log. Defendants' April 6, 2011 letter to plaintiffs which accompanied the updated privilege log further explained that the log was color coded by “families of documents” (such as emails with attachments) for ease of identification. The Court's review of the log reveals many entries that omit a sender and recipient that do not appear to be attachments to emails, do not appear to correspond to the preceding entry, and are not color coded in connection with a family of documents. See, e.g., log p.1, entry dated “2006/00/00” (Description: “Sun Coke Company Push Observation Forms–Privileged and Confidential–Prepared at the Request of Legal Counsel”); log p. 2, entry dated May 30, 2006 (Description: “Attorney Client Privilege AQ1 HES Audit Finding”); log p. 4, entry dated Oct. 27, 2006 (Description: “Applicability of Acid Rain Rules to Heat Recovery Coke Making Technology”). In the absence of the identification of the sender and recipient, the log in its present form does not enable the Court to determine the purpose of the communication, whether or not it sought and/or conveyed legal advice or was prepared by or at the request of counsel in anticipation of litigation, and whether the individuals involved in the communication are a client, attorney, or third person. 3. The log must cross reference the request or interrogatory to which each document is responsive. The Local Rules require as much, see S.D. Ohio Civ. R. 26.1(b), and neither plaintiffs nor the Court should have to speculate on which document corresponds to the appropriate request or interrogatory. 4. The log must specify in the “Description” sufficient information showing the purpose of the document to adequately convey that the document was prepared in anticipation of litigation or in the course of adversarial litigation or to provide legal advice; the log must also identify the documents by bates stamp number. The log, in its present form, does not contain a sufficient description of the purpose of the document or its content to enable the Court or plaintiffs to discern the underlying basis for the privilege or protection claimed by defendants. For example, on page 14 of the log, entries dated May 15, 2009 include descriptions of Title 40 of the Code of Federal Regulations and claim attorney-client privilege. There is no other description indicating how such documents provide legal advice or are otherwise entitled to protection under the attorney-client privilege. Likewise, the last line on page 15 of the log lists “HNCC HRSG Maintenance” as a document entitled to attorney-client privilege. This description in no way conveys that a communication was made relating to legal advice sought from an attorney. The log must contain a summary of the contents of the document from which it may be determined whether the attorney-client privilege applies to the document at issue or that the document was prepared in anticipation of litigation or in the course of adversarial litigation. Cooey, 269 F.R.D. at 649 (“The privilege log must be detailed enough to prove that the communications in question were in fact confidential communications relating to legal advice.”).[2] *6 The log must also identify the bates stamp number of the documents included in the log. Given the number of documents listed on defendants' privilege log, identification of the documents by bates stamp number will enable the documents to be readily identified in the case of a dispute between the parties.[3] 5. The privilege log must identify documents that contain or incorporate non-privileged underlying facts which are discoverable. Neither the attorney-client privilege nor the work product protection applies to prevent the disclosure of underlying facts, regardless of who obtained those facts. Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981) (“The [attorney-client] privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”).[4] See Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 628-631 (N.D. Okla. 2009) (and numerous cases cited therein); Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 121 (D.N.J. 2002). See also Fresenius Medical Care Holdings, Inc. v. Roxane Laboratories, Inc., No. 2:05-cv-889, 2007 WL 543929, at *3 (S.D. Ohio Feb. 16, 2007) (to the extent documents contain strictly factual information, as opposed to legal conclusions or opinions, “that factual information cannot be immunized from discovery simply by incorporating it into a document which is entitled to work-product protection”). Defendants' privilege log must include whether the documents identified as protected under the attorney-client privilege or by the work product doctrine contain or incorporate non-privileged underlying facts. For the documents so identified, the parties shall meet and confer on a mutually agreeable discovery method for disclosure of such underlying facts to plaintiffs. Defendants need not “create” a list of all the underlying facts in all of its privileged documents, but to the extent the documents listed on the privilege log contain underlying facts that are not privileged and are otherwise discoverable, plaintiffs are entitled to discover these facts. Given the number of documents listed on defendants' privilege log and the parties' familiarity with the nature of the documents, the Court believes the parties are in the best position to determine the most efficient and expedient way to disclose the discoverable underlying facts contained or incorporated in the documents (e.g., by redaction and production of the documents as was done with the pre-August 2008 Graff log, or through deposition testimony). In the event the parties are unable agree on a method of disclosure for any particular document, they are directed to arrange a telephone conference with the undersigned magistrate judge to resolve any issues. 6. Documents relating to environmental services advice *7 With regard to plaintiffs' claim that defendants withheld documents relating to environmental services advice, the Court's order requiring defendants to submit an updated privilege log that identifies the roles and/or titles of the authors and recipients listed in the log will enable plaintiffs to identify any other communications that may have been withheld from environmental consultants other than URS. B. REDACTED DOCUMENTS Plaintiffs also request the Court to order production of non-redacted versions of all documents that defendants redacted on the grounds of relevancy and confidentiality. (Doc. 91 at 13). Plaintiffs contend that documents may not be redacted on the basis of relevancy as unilaterally determined by defendants and that defendants' justification for redacting confidential financial information is not valid in light of the protective order in place in this case. Defendants argue that redactions based on relevancy were made for only two categories: information related to SunCoke's four other facilities (which are not at issue in this case) and information related solely to “irrelevant” safety issues. Defendants also contend that the redacted financial documents were produced to plaintiffs at a time when there was no protective order in place protecting the confidentiality of such documents and that defendants chose to redact and produce these documents to plaintiffs at that time rather than wait on the issuance of a protective order, which itself was the subject of dispute among the parties. Defendants state that no redactions of financial information have been made since the entry of a protective order in this case. The undersigned finds persuasive the decision of the Court in Beverage Distributors, Inc. v. Miller Brewing Co., No. 2:08–827, 2010 WL 1727640 (S.D. Ohio Apr. 28, 2010), on the issue of redaction of documents for reasons other than privilege or confidentiality. In Beverage Distributors, the Court was faced with circumstances similar to the instant case in that portions of a large number of documents produced in response to the plaintiffs' discovery requests were redacted by the defendants as irrelevant and not noted on any type of log listing the redacted documents. After reviewing the case law on both sides of the issue, the Court noted three common themes: (1) that redaction of otherwise discoverable documents is the exception rather than the rule; (2) that ordinarily, the fact that the producing party is not harmed by producing irrelevant information or by producing sensitive information which is subject to a protective order restricting its dissemination and use renders redaction both unnecessary and potentially disruptive to the orderly resolution of the case; and (3) that the Court should not be burdened with an in camera inspection of redacted documents merely to confirm the relevance or irrelevance of redacted information, but only when necessary to protect privileged material whose production might waive the privilege. Beverage Distributors, 2010 WL 1727640, at *4. The undersigned also notes that Rule 34, Fed. R. Civ. P., governs the production of “documents” and not portions of documents deemed relevant and responsive to a discovery request. See ArcelorMittal Cleveland Inc. v. Jewell Coke Co., L.P., No. 1:10-cv-362, 2010 WL 5230862, at *2 (N.D. Ohio Dec. 16, 2010); Orion Power Midwest, L.P. v. America Coal Sales Co., No. 2:05-cv-555, 2008 WL 4462301, at *2 (W.D. Pa. Sept. 30, 2008). Implicit in the text of the rule is a right to inspect the entire document as parties are required to “produce documents as they are kept in the usual course of business.” Fed. R. Civ. P. 34(b)(2)(E)(ii). *8 In this case, unlike the cases cited by defendants where the number of redacted documents appeared to be relatively small and the contents readily apparent,[5] it is undisputed that defendants have redacted hundreds of pages of documents. In addition to the large number of paper documents containing redactions, plaintiffs assert in the absence of any log listing the redacted documents, plaintiffs are unable to discern the number of electronic documents that may have been redacted as there is no way to identify redacted documents through an electronic search. (Doc. 91, Exh. 2, Lutz Decl. ¶8). While defendants contend that redactions were made for only three discrete categories, the Court's review of the examples submitted by the parties shows that the reason for the redaction is not readily apparent in the absence of a comparison of the redacted document with the unredacted version. Requiring the Court to engage in an in camera inspection of the large number of redacted documents in this case would be unnecessarily burdensome and time-consuming, especially where there is no legitimate reason for defendants to redact information from documents they deem irrelevant given the protective order in this case to protect the dissemination of sensitive information. In addition, plaintiffs have persuasively shown that the some of the redacted information in the documents at issue, even if not deemed relevant, is likely to lead to admissible evidence. With the exception of the pre-protective order redaction of confidential financial information by defendants, which the Court finds appropriate, the redaction of documents by defendants on the basis of relevance is improper. Plaintiffs' motion to compel production of the redacted documents in unredacted format is GRANTED, including the pre-protective order redacted financial information to which defendants had previously agreed to produce in unredacted format. See Doc. 112, Exhs. 3, 4. C. PRODUCTION OF DOCUMENTS Plaintiffs assert that defendants have failed to produce documents and electronically stored information (ESI) in the forms specified by Rule 34, Fed. R. Civ. P. Plaintiffs contend that the various waves of production of hardcopy documents and ESI lack any organizational structure to enable plaintiffs to identify and make use of such documents. Defendants respond that they produced the documents as they were kept in the ordinary course of business or in an electronically searchable form that makes the documents readily identifiable and usable. Rule 34 requires the party who produces documents for inspection to produce them “as they are kept in the usual course of business or ... organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i). The Rule does not explain what it means to produce documents in the “usual course of business.” As explained by one court, a party may choose to produce documents as they are kept in the ordinary course of business in several ways: The most obvious means of complying with the requirement of Rule 34(b) to produce documents as they are kept in the usual course of business is to permit the requesting party to inspect the documents where they are maintained, and in the manner in which they are organized by the producing party. It logically follows that when production occurs by means other than permitting the demanding party access to the original records as they are organized and maintained by the responding party, such as by instead choosing to copy the documents and produce the duplicates, they must be organized in such a way that the system utilized by the producing party is replicated; in other words, the documents should be produced, organized and labeled and, if appropriate, indexed just as they are maintained by the producing party. Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 (N.D.N.Y. 2008) (internal footnote omitted) (citing Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 540-41 (D. Kan. 2006)). The “usual course of business” provision of Rule 34 was intended to prevent the “dumping of massive quantities of documents, with no indexing or readily apparent organization, in response to a document request from an adversary” and “to prevent parties from ‘deliberately ... mix[ing] critical documents with others in the hope of obscuring significance.’ ” Pass & Seymour, 255 F.R.D. at 334 (internal citations omitted). Underlying the “usual course of business” method of production is the assumption “that production of records as kept in the usual course of business ordinarily will make their significance pellucid.” CooperVision Inc. v. Ciba Vision Corp., No. 2:06CV149, 2007 WL 2264848, at *4 (E.D. Tex. Aug. 6, 2007). *9 The party claiming that documents were produced in the ordinary course of business bears the burden of showing that the documents were so kept. See Synventive Molding Solutions, Inc. v. Husky Injection Molding Systems, Inc., 262 F.R.D. 365, 370 (D. Vt. 2009); Consolidated Rail Corp. v. Grand Trunk Western R.R. Co., No. 1:09-cv-10179, 2009 WL 5151745, at *3 (E.D. Mich. Dec. 18, 2009) (citation omitted); see also S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 409 (S.D.N.Y. 2009); Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D. Kan. 2005). “To carry this burden, a party must do more than merely represent to the court and the requesting party that the documents have been produced as they are maintained.” Pass & Seymour, 255 F.R.D. at 334. The party producing the documents must provide information about how documents are organized in the party's ordinary course of business by revealing “where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files.” Consolidated Rail Corp., No. 1:09-cv-10179, 2009 WL 5151745, at *3 (citation omitted); see also Pass & Seymour, 255 F.R.D. at 334; Cardenas, 230 F.R.D. at 618. 1. Timing of production Plaintiffs initially take issue with the timing of the production of documents and ESI. Plaintiffs complain that defendants' production of documents and ESI in waves over a period of numerous months has prejudiced plaintiffs' ability to effectively review and use such documents. Defendants respond that because they produced over 141,000 pages of documents and spent thousands of hours obtaining, reviewing, and producing those documents, production of such documents over the time period utilized, instead of producing nothing for a six to eight month period, was reasonably responsive to the request. The Court agrees that given the voluminous documents at issue in this case, defendants' production of documents over a period of months was reasonable. 2. 8 DVDs of scanned paper documents Plaintiffs also take issue with the method of production of hardcopy documents and ESI. Plaintiffs assert that defendants produced 8 DVDs of scanned paper documents but there is no indication from which file the documents came or the custodian of such documents. Plaintiffs assert that the 8 DVDs also contain e-mails and attachments to emails, sometimes on separate DVDs rather than attached to one another, evidencing that the documents were not produced in the ordinary course of business. Defendants assert that production of hard copies in electronic form makes the documents more usable by plaintiffs because such electronic versions are word searchable. Defendants also assert that “stray” e-mail documents were simply documents printed out and stored in hardcopy files and did not necessarily include attachments if those attachments were not printed out at the same time as the e-mail and included in the file. While there is nothing inherently improper about the scanning of hardcopy documents for production in electronic form, there is no evidence before the Court showing that the documents contained in the 8 DVDs were produced as they were kept in the usual course of business. Defendants have not identified where the documents were maintained, the custodians of such documents, and whether the documents came from one single source or file or from multiple sources or files. Nor have defendants demonstrated that the documents provided on the 8 DVDs were organized or labeled in a way that corresponded to plaintiffs' discovery requests. The Court concludes that defendants have not met their burden under Rule 34 with respect to the production of these documents. See, e.g.,Mancini v. Insurance Corp. of New York, No. 07-cv-1750, 2009 WL 1765295, at *5 (S.D. Cal. June 18, 2009). *10 Therefore, with respect to the documents produced on the 8 DVDs, defendants are ORDERED to either: (1) provide an index of defendants' previously produced documents that identifies by bates number the documents that correspond to each particular document request; or (2) provide an index of the documents produced which identifies the custodian, location, and a general description of the filing system under which the documents were maintained in the usual course of business. 3. 5 DVDs of ESI Next, plaintiffs assert that defendants' production of 5 additional DVDs consisting of ESI are deficient because they fail to specify the source and custodian of such ESI, and contain unexplained gaps in the bates numbering of the documents produced. Defendants respond that the “unexplained gap” cited by plaintiffs was actually one that occurred with the scanned production of the 8 DVDs discussed above and occurred as a result of a bates labeling program malfunction that could have easily been explained to plaintiffs had they inquired. Defendants also state that the 5 DVDs of ESI were bates labeled with the designation HNCCE and were fully word searchable and reasonably usable. Defendants assert there is no obligation under the Rule to identify the source or custodian in order for ESI to be reasonably usable. In reply, plaintiffs clarify that the issue with the missing ESI concerns missing attachments to the electronic production of emails and that plaintiffs are unable to determine which attachments are associated with particular emails, a problem that defendants have acknowledged can be easily remedied through the Applied Discovery program utilized by defendants. (Doc. 112 at 14, n. 19). Electronically stored information may be produced in the form “in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The Court agrees that the production of ESI in the form of emails without the corresponding attachments thereto is not in a “reasonably usable form.” Defendants admit that their first production of ESI on August 16, 2010 did not utilize a function of the Applied Discovery program that ensured emails and associated attachments were kept together as “families.” (Doc. 104, Budzynski Aff. ¶ 4). While defendants state that subsequent productions corrected this problem, there is no indication that the initial August 2010 production resulting in “orphaned” attachments was ever corrected. Accordingly, defendants are ORDERED to correct this problem to ensure that the emails produced in the August 2010 ESI production contain the corresponding attachments. 4. Binder document production Plaintiffs state that 26,000 pages of documents (not on DVDs) produced in August 2010 are “bereft of context.” (Doc. 91 at 21). Plaintiffs state that while the pages “are purportedly organized by binders, some further by subfolder” the “documents in the ‘binders' do not correlate to the binder titles.” Id. As an example, plaintiffs point to a binder containing daily log sheets that also contains an email not relevant to the log sheets. Id. Plaintiffs state that while defendants provided an index for this production of documents in October 2010, the index contained only “labels and bates ranges” and “were not necessarily indicative of the contents of documents or groups.” (Doc. 91, Schwandner Decl. ¶¶ 8-9). Defendants' counsel avers that these hardcopy documents were generally kept in binders and produced to plaintiffs as they were kept in the ordinary course of business, with the binder labels included. (Doc. 104, Budzynski Aff. ¶ 5). Defendants aver that “stray” documents contained within such binders were included in the production because, in fact, the binders were produced in full as they were kept. Id. *11 The Court finds the production of these documents sufficient with one exception. Defendants' evidence shows that the documents produced were kept in binders and subfolders and defendants replicated this system through its production to plaintiffs. That certain binders may have contained “stray” documents that seemingly did not “fit” within a binder label is not evidence that the documents were not produced as ordinarily kept. The only issue not addressed by defendants' opposition brief is whether the custodians of such binders or subfolders were identified in connection with the production. To the extent the custodians of such documents were not identified, the document production is deficient and defendants are ORDERED to produce this information. 5. The Toledo confidential documents Plaintiffs state that defendants also produced 20,000 non-bates-stamped “confidential” paper documents at defense counsel's office in Toledo, Ohio in rows of redwell files lining a wall. (Doc. 91, Schwandner Decl. ¶¶ 11, 14, 15). Plaintiffs state these documents were not identified according to particular requests and were not produced in such a way to indicate where the documents originated, who possessed them, and whether they are complete. Id., ¶¶ 12, 14, 15. Plaintiffs state the redwell files were labeled indicating their contents, but there was no explanation as to how the files were grouped. Id., ¶ 13. Defendants respond that the hardcopy confidential documents from the Haverhill North Coke Company produced at counsel's office in Toledo were not removed from any files that contained non-confidential documents and were produced as they were kept. Counsel avers that “[t]hese documents consist of technical drawings and Operation and Maintenance Manuals. The technical drawings were kept in a drawing cabinet or in a filing cabinet separate from non-drawing documents. The Operation and Maintenance Manuals were kept in binders on a separate bookshelf.” (Doc. 104, Budzynski Aff., ¶ 6). Defendants state that these documents “were not initially bates labeled because of the shear number of documents and the uncertainty regarding whether Plaintiffs would want copies of all of these highly technical documents.” Id., ¶ 7. Defendants state they did not refuse to bates number the documents; the documents have not been bates numbered because the parties cannot agree who will pay for bates numbering and copying. Id. Plaintiffs' reply memorandum does not dispute defendants' representations as to the source and content of the Toledo documents. Defendants have made a sufficient showing that the documents were produced in the ordinary course of business. If plaintiffs wish to obtain bates stamped copies, they may request and pay for them. SeeCardenas, 230 F.R.D. at 620. Therefore, plaintiffs' motion to compel is DENIED as to these documents. 6. Consultant documents Plaintiffs seek an order compelling defendants to produce all responsive documents from defendants' environmental consultants. (Doc. 91 at 22-23). Defendants object and state they have no right to search all of their consultants' hardcopy document and computer files for responses to plaintiffs' 109 discovery requests. Defendants assert that plaintiffs' remedy under the civil rules is to subpoena the records of any non-party from whom they seek documents. Plaintiffs' reply brief clarifies that they are only seeking consultant documents that defendants “have the legal right or practical ability to obtain.” (Doc. 112 at 15). Rule 34(a)(1) provides that a party may discover documents and ESI that are “in the possession, custody or control” of the responding party. “[D]ocuments are deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis added).[6] *12 Plaintiffs' reply memorandum asserts that two consultant contracts show that defendants have the legal right to demand certain documents from their consultants. The first contract is a professional services agreement between defendant SunCoke and an environmental engineering firm. The contract states that all “deliverables” (including “drawings, diagrams, details, manuals, data [and] ... reports”) are the property of SunCoke. (Doc. 112 at 16, Exh. 10–filed under seal). Yet, the contract also makes clear that “deliverables” are those hardcopy documents and electronic information that have already been “delivered” to SunCoke by the engineering firm. (Doc. 112, Exh. 10, § 2). Therefore, defendants are already in possession of the “deliverables” and already under the obligation to produce the “deliverables” if such ESI or documents are relevant and non-privileged. Plaintiffs have not shown that any “deliverable” documents or ESI has not been produced by defendants such that defendants must seek the “deliverables” from the engineering firm. Nor have plaintiffs established that defendants have any legal control over any other engineering firm documents or ESI aside from “deliverables.” The second contract is between defendant SunCoke and URS, an environmental consulting firm. The contract provides that information (e.g., designs, drawings, data, etc.) provided by SunCoke to URS remains the “property” of SunCoke and must be kept confidential. (Doc. 112, Exh. 11). Plaintiffs argue that because SunCoke retains ownership of the documents or information, SunCoke has a legal right to demand such documents from URS. Plaintiffs also argue that defendants' general course of dealing with URS establishes that defendants can demand such documents from URS. Defendants, however, aver that while URS was initially agreeable to voluntarily producing some documents to defendants upon request, URS's counsel has now informed defendants that any further documents from URS must be obtained through a subpoena. (Doc. 104, Budzynski Aff., ¶ 29). Under the contract cited by plaintiffs, the URS documents over which SunCoke retains ownership or a property interest are limited to those documents initially in the possession of SunCoke which are then provided to URS. Therefore, the originals or copies of such documents are undoubtedly still in the possession of SunCoke and have already been subject to production under plaintiffs' document requests. The contract cited by plaintiffs does not establish that defendants have the legal right to demand any other documents or ESI from URS. Plaintiffs have not identified any particular documents or information not yet produced by defendants that is in the sole possession of URS. The Court is not persuaded that the documents in URS's files over which defendants have a property interest have not been produced. Plaintiffs are free to seek documents from the non-party consultants under Rule 45, Fed. R. Civ. P. Therefore, the Court DENIES the motion to compel in this regard. 7. Suncoke document production Plaintiff seek an order compelling defendants to “certify they have searched all of defendants' files” because “there appears to be a scarcity of documents from Defendant SunCoke's files, given SunCoke's environmental control over and involvement with the Facility.” (Doc. 91 at 24). Defendants assert that they have fully complied with plaintiffs' request for SunCoke documents in both their production of scanned documents in the initial production of the DVDs discussed above and in the production of additional hardcopy documents from SunCoke on May 4, 2011. (Doc. 104 at 29). Plaintiffs' reply memorandum asserts that the production is still deficient because the May 4, 2011 production included information from only two SunCoke employees and “it appears as though” defendants have not produced information from the hard files of other SunCoke employees identified in plaintiffs' Document Request No. 90, including Chris Sharp (SunCoke Environmental Manager), Edwin Queiroz (SunCoke Process Engineer), and Richard Justus (Plant Controller – Haverhill). The Court is without sufficient information to determine whether defendants have failed to search the hard files of all defendants' employees, including those identified in RFP No. 90, for responsive information. Plaintiffs do not state that they have reviewed all of the documents thus far produced and that none of the documents include those to or from the three named employees. Without any representation from plaintiffs as to the documents reviewed and the results of such review, the Court cannot say that defendants' production is deficient in this regard. Therefore, the Court DENIES the motion to compel in this regard. *13 Although the Court has no basis on which to conclude that defendants are withholding responsive documents or information, defendants nevertheless retain the duty to timely supplement their responses as appropriate pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. Should depositions or other discovery later reveal that defendants possess any other documents relevant to the Requests for Production of Documents, defendants may face the imposition of sanctions for failure to produce them. 8. ESI search terms Plaintiffs complain that defendants' search methodology and search terms used to identify responsive ESI to plaintiffs' document requests were deficient and failed to identify relevant ESI. Plaintiffs assert that the terms used in searching ESI should be tailored to the specific Requests for Production of Documents (RFPs). Defendants assert that the search terms they utilized to search for responsive ESI were tailored to the specific issues covered by the RFPs and oftentimes addressed more than one RFP. As to their “methodology,” defendants state they provided the search phrases to Applied Discovery who then ran those phrases for “hits” on the ESI defendants provided. Applied Discovery then provided those “hit” documents to defendants' counsel, who reviewed the documents for privilege, confidentiality, and responsiveness. Defendants state that defense counsel then produced to plaintiffs all responsive and nonprivileged documents. Defendants maintain that their search for responsive ESI is complete. Following the December 17, 2010 discovery conference in this matter, defendants produced the search terms and methodology to plaintiffs as directed by the Court. Thereafter, in accordance with the Court's directions to the parties to work together to reach an agreement on additional terms to run on the ESI discovery, plaintiffs proposed over 180 new search term phrases. Defendants objected to some of the terms as overly broad, irrelevant, and duplicative of previous searches and, in a compromise effort to resolve this issue, offered to run an additional 35 search term phrases proposed by plaintiffs. Unable to reach an agreement, plaintiffs filed the instant motion seeking an order compelling defendants to (1) run plaintiffs' electronic search terms on all sources of electronically-stored information in defendants' possession, custody, or control; and (2) produce defendants' electronic discovery search methodology. In their reply memorandum, plaintiffs have proposed a “compromise” limiting its search term phrase requests to the “additional 35 searches that Defendants have proposed, along with those set forth on Ex. 9 [an additional 84 search term phrases]” and agreeing to further narrow the search terms if the searches return too many hits. (Doc. 112 at 14, Exh. 9). The present dispute highlights the importance of cooperation among the parties in planning the conduction of electronic discovery before such discovery is undertaken by the responding party. Had the parties conferred on a methodology for searching terms they believed would identify relevant documents, the instant dispute may have been avoided. Now, however, defendants have produced over 141,000 pages of documents, including 94,100 pages of ESI to plaintiffs, and have spent thousands of hours reviewing and producing such information. The problem for this Court is how to determine whether the 94,000 plus pages of ESI so far produced contain or fail to contain the relevant information sought by plaintiffs. Plaintiffs' have not identified any relevant documents which are not included in the tens of thousands of pages of documents or ESI produced by defendants. The Court is not unmindful of the obvious response that a party cannot identify a document the party does not know the existence of. Nevertheless, as the party seeking a motion to compel, plaintiffs have the burden of persuading the Court that grounds exist to believe defendants are withholding relevant documents or ESI responsive to the requests at issue. Yet, without physically reviewing all of the ESI produced and comparing it to the universe of ESI in defendants' business, no decision can be made with any certainty. Although the discovery rules entitle plaintiffs to seek all material “reasonably calculated to lead to the discovery of admissible evidence,” their theoretical entitlement yields to practical considerations when “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). The burden of requiring defendants in this case to perform some 119 new electronic searches as requested by plaintiffs in their reply memorandum outweighs the likely benefit to plaintiffs at this juncture given the 94,000 plus pages of ESI so far produced. *14 Herein lies the compromise decision of the Court. The gist of plaintiffs' complaint about the ESI production is that “obvious” terms were omitted from the electronic searches that would have identified relevant documents. With regard to some of plaintiffs' proposed requests, the Court would agree. For example, RFP No. 3 seeks “documents relating to pollution control technology considered or evaluated or installed for each air contaminant source a the Facility.” (Doc. 112, Exh. 9). While defendants developed broad search terms to encompass “pollution control equipment” by including terms such as “spray dryer” or “baghouse” or “flue gas desulferization,” a review of defendants' search terms by this Court reveals that defendants' searches omitted the terms “considered” or “evaluated” as requested in RFP No. 3. Likewise, RFP No. 6 seeks documents relating to “ambient air monitoring plans,” but the term “ambient air” appears no where in defendants' search terms. On the other hand, as defendants contend, many of plaintiffs' proposed prototype search term phrases are so broad that a search of the proposed terms would likely retrieve documents or ESI already produced by defendants. In addition, many of plaintiffs' search term phrases are not limited to the pertinent information sought by the RFP and would necessarily “hit” on a large number of documents or ESI not relevant to this lawsuit. For example, RFP No. 96 seeks “documents relating to SunCoke Energy, Inc.'s participation in the management and operation of the Facility.” Plaintiffs' proposed search term phrase “SunCoke near10 (manag* or operat*)” omits any limitation to the Haverhill “Facility” as requested in the RFP and would likely produce “hits” on SunCoke's other four facilities not at issue in this lawsuit. Likewise, RFP No. 63 seeks “[a]ll photographs and videos taken of the Facility since 2002.” Plaintiffs' proposed search terms include 13 file name extensions (such as . jpg, .tif, and .drw) without any limitation. Plaintiffs' proposed search terms would likely retrieve a wide range of documents including every non-relevant photo and video in defendants' ESI, such as employees' personal pictures. In addition, some of plaintiffs' RFPs are themselves duplicative. Compare RFP No. 33 with RFP No. 68.[7] As explained above, it does appear that defendants' search term methodology omits some relevant terms that would identify ESI responsive to plaintiffs' Request for Production of Documents. Yet, because many of plaintiffs' proposed prototype search terms are obviously overbroad and would identify documents that have already been produced or without relevance to the claims or defenses in this case, the Court ORDERS plaintiffs to select and identify 50 prototype search term phrases and defendants to run a search on each of those 50 prototype search term phrases. Defendants' ESI search shall include searches of electronic sources such as smart phones of key employees, all available hard drives[8], and flash memory. The Court determines that defendants' explanation of the “methodology” used for ESI searches is sufficient and therefore DENIES the motion to compel in this regard. 9. Compliance with particular document requests *15 Plaintiffs assert that defendants have failed to respond or fully respond to particular document requests as set forth in Exhibit 14 to the motion to compel. (Doc. 91, Exh. 14). The parties have both presented charts, which include their respective arguments, addressing each of the RFPs at issue. The Court rules as follows. Request No. 3: All documents relating to pollution control technology considered or evaluated or installed for each air contaminant source at the Facility. Defendants state they have produced the PTI applications, Title V applications, and operating and maintenance manuals of their pollution control equipment “as part of the permitting process” and state these are the most relevant documents responsive to plaintiffs' request. (Doc. 104, Exh. 12). Plaintiffs seek documents that were not part of the permitting process and state such information is “relevant to Defendants' attempts to improve their environmental performance.” (Doc. 112, Exh. 13). The Court agrees that the post-permitting process documents sought by plaintiffs are relevant and defendants have not shown any undue burden in producing such documents. The motion to compel RFP No. 3 is GRANTED. Request No. 5: All documents relating to air contaminant sources at the Facility including point sources as well as sources of fugitive emissions. This includes documents relating to the size, location, identity and quantity of constituents that are or have been emitted from those sources, and the dates of installation, operation and/or withdrawal of those sources. In response to this RFP, defendants provided plaintiffs with their PTI applications, PTI, and Title V applications. Defendants state that these documents provide detailed information about an air contaminant source including: (1) the name of the emissions unit; (2) applicable emission limits and control requirements; (3) affected pollutants; (4) regulatory basis for control; (5) methods for determining compliance; (6) proposed certification schedule; (7) proposed approach for determining compliance; (8) proposed compliance reporting method; (9) proposed compliance monitoring method; (10) proposed compliance record-keeping method; (11) proposed compliance method; (12) initial installation date; (13) initial startup date; and (14) detailed information about the egress point (e.g., height, diameter, etc.). Defendants state they also provided plaintiffs with the internal emission monitoring data. Plaintiffs' reply memorandum states that defendants have not produced all “internal monitoring data” because plaintiffs are still missing ambient air monitoring data and complete TRI reports. Defendants are ORDERED to produce ambient air monitoring data and complete TRI reports to the extent such documents exist. Plaintiffs' motion as to RFP No. 5 is DENIED in all other respects. Request No. 9: All documents relating to the financial and corporate relationship which exists or has existed between Haverhill North Coke Company and its parent corporation, SunCoke Energy, Inc., including documents pertaining to the identities of each director, any officers, as well as information pertaining to each employee and company department that has served both companies. Defendants state they provided plaintiffs with: (1) corporate trees identifying the management structure of the two companies; (2) the articles of incorporation; and (3) the bylaws of the companies as these documents would provide the most meaningful description of the corporate relationship of the companies. Defendants state that a review of the corporate minutes for each company indicated that no information responsive to this request were in such corporate minutes and therefore such minutes were not produced. Plaintiffs' reply brief states that no documents relating to the financial relationship between the defendants has been provided and that such financial information is relevant to the potential liability of the parent company as liability may turn on SunCoke's involvement in the operation or control over HNCC. The Court agrees that documents showing the extent to which a parent company exerts financial control over a subsidiary and is involved in the decision-making and daily operations of the subsidiary are relevant to the potential liability of the parent company. Defendants have not represented that documents relating to the financial relationship between the defendant companies do not exist. Plaintiffs' motion to compel documents relating to the financial relationship is GRANTED. The motion as to RFP No. 9 is DENIED in all other respects. Request No. 10: All documents relating to communications between Haverhill North Coke Company and SunCoke Energy, Inc. relating to Facility environmental, health, safety, or operational issues. *16 Defendants state they provided plaintiffs with email correspondence between SunCoke employees and HNCC employees regarding environmental, health, safety, and operational issues at the facility that were relevant to this complaint. Defendants pulled email correspondence and other ESI documents from the individuals named in plaintiffs' discovery requests. Defendants reviewed these communications and produced responsive communications to plaintiffs. Defendants state that only a small subset of communications regarding irrelevant safety information was not included in the production. Defendants also assert that it would be unduly burdensome to identify every single communication between HNCC and SunCoke given the five-year time span that this lawsuit covers and the breadth of the RFP which encompasses the daily activities surrounding plant operations. Plaintiffs' reply states that defendants' response improperly limited the search for documents to the people listed in Request No. 90. The Court finds that defendants' production of the emails and ESI of the key employees in response to RFP No. 10 is sufficient. While it is possible that a search of every single email communication between all HNCC employees and all SunCoke employees could lead to the discovery of admissible evidence, the Court agrees with defendants that plaintiffs' request is overly broad and burdensome, and the likelihood of obtaining admissible evidence insufficient to outweigh that burden on defendants. Plaintiffs' motion to compel RFP No. 10 is DENIED. Request No. 12: All documents relating to Facility emission modeling and analyses, including those used by HNCC to attempt to demonstrate compliance with emission limits during the downtime of any CEMS or any malfunctions or breakdowns of any processes, operations, or pollution control equipment. Defendants state that they produced a wide range of emissions data such as ambient air monitoring data, stack tests, and CEMs data. Defendants state that at the April 21, 2011 discovery hearing before Judge Dlott, counsel agreed to produce any emission modeling and analyses not already produced, thereby mooting this issue. Plaintiffs' reply brief states that “air monitoring and stack test data is still missing” and the documents received from defendants as a result of the April 21 hearing “do not contain any emission modeling, but rather a smattering of emission factors used in calculations.” (Doc. 112, Exh. 13). Plaintiffs have failed to meet their burden of proof showing that defendants' production of documents in this regard is deficient. The Court is unable to conclude based on the information provided by the parties that defendants have not complied with RFP No. 12. Plaintiffs' motion to compel RFP No. 12 is DENIED.[9] Request No. 14: All documents relating to Facility environmental testing, environmental studies, environmental audits, compliance audits, environmental assessments, surface or subsurface or air investigations, whether performed by Defendants, or any contractor, consultant, certified professional, agent or any other person or entity, including any governmental agency. Defendants objected to this request on the grounds of privilege. Defendants produced one environmental audit for which the privilege was waived in another case. In addition, defendants state that routine air tests via CEMs testing, ambient air monitoring, and stack tests have already been produced, in addition to quench water analysis and occasional soil testing. *17 Plaintiffs' reply states that “air monitoring and stack test data are still missing” and that the environmental audit privilege is inapplicable. Plaintiffs have failed to meet their burden of proof showing that defendants' production of documents in response to RFP No. 14 is deficient. The Court is unable to conclude based on the information provided by the parties that defendants have not complied with RFP No. 14. Plaintiffs' motion to compel RFP No. 14 is DENIED. Request No. 16: All documents relating to any Facility investigation associated with a deviation identified in a Facility Permit deviation report, whether such investigation was performed by Defendants, or any contractor, consultant, certified professional, agent or any other person or entity, including any governmental agency. Defendants state they provided plaintiffs with: (1) quarterly deviation reports; (2) email correspondence regarding deviations; (3) spreadsheets kept by the facility that identify the date and time of any incident, the cause of the incident, and the corrective actions taken; and (4) consultant studies related to deviations for which it was determined that further investigation was necessary. See, e.g., HNCCE-00021492-21509 (Dump Condenser Report – Sizing Review of Dump Condenser, compiled by IEA (Oct. 7, 2008)). These documents and day-to-day communications would describe any investigations that defendants have conducted, whether or not the investigation was communicated to the Portsmouth Local Air Agency (PLAA). Plaintiffs' reply brief suggests that because defendants' employees conducted investigations of the deviations, there must be other reports “which do not appear to have been produced” which are responsive. (Doc. 112, Exh. 13). Plaintiffs' suggestion is speculative and insufficient to show that defendants have not complied with this request. Plaintiffs' motion to compel RFP No. 16 is DENIED. Request No. 21: All documents relating to Facility Semi-annual Compliance Certifications for the Nonrecovery Coke Oven MACT (as MACT is defined by Federal law and regulation) and all information underlying and supporting such certifications. Defendants state they provided plaintiffs with: (1) quarterly deviation reports and semiannual compliance certifications; (2) email correspondence regarding deviations (that would be identified in the deviation reports and compliance certifications); and (3) spreadsheets kept by the facility that identify the date and time of any incident, the cause of the incident, and the corrective actions taken. Defendants state that these documents provide information regarding what defendants are required to report in their compliance certifications and include documents that are not provided to PLAA. (Doc. 104, Exh. 12). Plaintiffs' reply brief asserts that this RFP also seeks the documents that support the data and conclusions in the certifications which defendants have not produced. Defendants have not represented that they produced the underlying data sought by the request, nor have they disputed the relevance of this information. Therefore, plaintiffs' motion to compel RFP No. 21 is GRANTED in this respect. Request No. 25: All documents relating to the observation by anyone of fire, smoke, visible emissions, or odors from the Facility. *18 Defendants state they provided plaintiffs with: (1) visible emissions records that defendants must maintain under their permit; (2) push reports where defendants must identify if door fires, if any, have occurred; (3) spreadsheets that identified incidences where fire, smoke, or visible emissions were observed; (4) email correspondence regarding incidences where fire, smoke, or visible emissions were observed; (5) email correspondence regarding odor complaints; and (6) HNCC's complaint file. Defendants assert that these are the documents that address observations of these occurrences at the facility, including documents not submitted to an Agency. Plaintiffs' reply memorandum takes issue only with respect to HNCC's “complaint file.” Plaintiffs state that the only log of complaints produced was in May 2011 and included complaints from 2005 and January 2006, but not in subsequent years. Because there appears to be a question on what “HNCC's complaint file” encompasses, defendants are ORDERED to clarify the documents contained within this file, whether any complaints subsequent to January 2006 were received by HNCC, and, if so, to produce such documents. Request No. 35: All documents relating to formal and/or informal complaints about the Facility from members of the public or any governmental entity, including complaints concerning actual or alleged Facility odors, emissions, deposits, particulates, waste, chemicals, pollution, noise, vibrations, lighting, or other environmental or health-related issues. This request also includes all documents relating to Defendants' response(s) or investigation(s) in response to complaints about the Facility. Defendants state they provided plaintiffs with the documents responsive to this request, including: (1) email correspondence regarding complaints; (2) complaints filed with PLAA; and (3) HNCC's complaint file. Defendants assert that the documents produced include both formal complaints to PLAA and informal complaints to the facility. Again, plaintiffs' reply memorandum takes issue only with HNCC's “complaint file.” Plaintiffs state that the only log of complaints produced was in May 2011 and included those from 2005 and January 2006, but not in subsequent years. Like the response to RFP No. 25, there is a question on what “HNCC's complaint file” encompasses. Defendants are ORDERED to clarify the documents contained within this file, whether any complaints subsequent to January 2006 were received by HNCC, and, if so, to produce such documents. Request Nos. 36 – 52: All documents relating to all deviations/malfunctions. Defendants state that contrary to plaintiffs' assertion in their motion to compel that defendants provided solely publicly available records, defendants produced: (1) quarterly deviation reports; (2) email correspondence regarding deviations and malfunctions (that would be identified in the deviation reports); and (3) spreadsheets kept by the facility that identify the date and time of any incident, the cause of the incident, and the corrective actions taken. Defendants assert that these documents provide extensive information regarding the deviation/malfunction at the time it occurred, the cause of the event, and the measures taken to remedy the event. Plaintiffs' reply suggests that because defendants' employees conducted investigations of the deviations, there must be other reports “which do not appear to have been produced” which are responsive. (Doc. 112, Exh. 13). Plaintiffs' suggestion is speculative and insufficient to show that defendants have not complied with RFP No. 36-52. Plaintiffs' motion to compel RFP No. 36-52 is DENIED. Request Nos. 57 and 58: All documents related to emission calculations and worksheets/ spreadsheets either submitted or not submitted to Ohio EPA, PLAA, or US EPA. *19 Defendants object to these requests on the grounds of relevance. They argue that plaintiffs are seeking emission calculations relating to the permitting process, which are merely estimates of expected emissions. The Facility's actual emissions are not found in these calculations, but found in the emissions data, which defendants state they have already produced. Plaintiffs state that in addition to seeking “calculations relating to the permitting process,” the requests seek all calculations whether or not they were part of that process. Plaintiffs argue that emissions calculations are relevant because those calculations determine the type and parameters of permits needed for the facility, reflect emission factors and other assumptions made regarding the facility's impact on the environment, and tend to have a bearing on actual emissions. The Court determines that the documents sought are relevant or reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs' motion to compel RFP No. 57 and No. 58 is GRANTED. Request No. 59: All documents that identify processes that use, generate, or create waste streams of HAPs. In response to this RFP, defendants state “the facility complies with the U.S. EPA's regulations for MACT and data regarding these emissions are on file with Ohio EPA.” Plaintiffs object to defendants' reference to public documents, while defendants contend it is proper to refer plaintiffs to responsive documents in the public record. Defendants also state they additionally provided a substantive response to plaintiffs stating that the facility does not “use” any of these pollutants, does not generate as a by-product, product, intermediate, or waste any of these pollutants and does not have waste streams from these pollutants as defendants understand these terms. Therefore, defendants did not list responsive documents about the use, generation, or production of a waste stream of the chemicals listed in the RFP. In reply, plaintiffs argue that it is inconsistent for defendants to refer plaintiffs to public documents which allegedly contain this information, and then deny the existence of any documents about the waste streams of the chemicals listed. “[P]arties generally may not compel another party to produce documents that are readily available to the requesting party through other means.” The Way Int'l v. Executive Risk Indem., Inc., No. 3:07-cv-294, 2009 WL 3157402, at *10 (S.D. Ohio Jan. 27, 2009) (citations omitted). “This approach is consistent with Fed. R. Civ. P. 33(d), which provides that ‘if the burden of deriving or ascertaining the answer [to a discovery request] will be substantially the same for either party,’ a responding party may answer by ‘specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.’ ” Id. Because the documents responsive to RFP No. 59 could be as easily obtained by the plaintiffs via the public record, defendants were not required to provide any further response to RFP No. 59. However, the Court agrees that defendants' response that there are no responsive documents is inconsistent with responding to this request by referring plaintiffs to publicly available documents. Accordingly, defendants are ORDERED to clarify their response to RFP No. 59. Request Nos. 60 and 61: All documents related to waste or waste constituents or waste streams generated at the Facility. *20 Plaintiffs claim that defendants failed to produce records in Response to RFP No. 60 and only a sample of their waste records in response to RFP No. 61. Plaintiffs also claim that defendants' written responses are inconsistent because defendants claim that “the facility...does not release waste or waste constituents” in response to RFP No. 60, but in response to RFP No. 61 defendants state “the only waste generated at the facility is fly ash.” Defendants contend that RFP No. 60 inquires about the “release of waste or waste constituents” and because defendants do not release waste or waste constituents they properly responded to this request by explaining that there are no responsive documents. Defendants state that RFP No. 61 inquires about the generation of waste streams and, in response, defendants explained that they do generate fly ash, which is transported to a landfill. With regard to documents responsive to RFP No. 61, primarily samples of waste records, defendants state that because these documents were voluminous, they asked plaintiffs for a more definite description in order to allow defendants to supplement. Defendants state that plaintiffs declined to do this and requested the production of “all” documents. In their reply brief, plaintiffs now state that because emissions that end up on their property are “waste” plaintiffs have a right to know about the constituents of these emissions. Plaintiffs have not used the terms “waste” and “emissions” interchangeably as they now assert in their reply brief. (See, e.g., RFP No. 90 and No. 91). Plaintiffs have not met their burden of showing that defendants' response is deficient. The motion to compel RFP No. 60 and No. 61 is DENIED. Request Nos. 72 – 89: Documents Related to Defendants' Affirmative Defenses. Defendants object to these document requests and assert that identifying every document by bates number that responds to these eighteen requests is overbroad and burdensome in accordance with the Magistrate Judge's ruling on Interrogatory No. 7. Defendants assert it would take thousands of hours to review all the documents produced to plaintiffs and identify which documents correspond to each of these document requests and the burden on defendants outweighs any benefit plaintiffs would gain by compelling defendants to do so. The Court disagrees. The Court's review of the eighteen affirmative defenses asserted in defendants' answer to the amended complaint indicates that nine of the affirmative defenses (First, Second, Fourth, Ninth, Tenth, Thirteenth, Fourteenth, Fifteenth, and Seventeenth) are legal defenses requiring no documents in support thereof. Three of the affirmative defenses (Sixth, Eighth, and Eighteenth) relate to defenses that do not rely on documents within defendants' possession, custody, or control. Only six of the affirmative defenses (Third, Fifth, Seventh, Eleventh, Twelfth, and Sixteenth) arguably rely on documents in defendants' possession, custody, or control. Several of those defenses reference defendants' adherence to regulatory compliance requirements, and the documents which support such defenses should be readily identifiable by defendants. Defendants have not met their burden of showing that the likely benefit to plaintiffs of obtaining these documents is outweighed by the expense and burden on defendants of producing such information. See Fed. R. Civ. P. 26(b)(2)(C)(iii). Plaintiffs' motion to compel RFP No. 72 – No. 89 is GRANTED. Request No. 90 and 91: All by-laws, articles of incorporation, and corporate minutes from HNCC and SunCoke Energy, Inc. that pertain to industrial chemicals, waste, emissions, air contaminants, air pollution, air pollution control, environmental issues, or management of environmental issues relating to the Facility. *21 Defendants state they provided plaintiffs with the articles of incorporation and have supplemented their response with the bylaws of the companies. Defendants assert that corporate minutes were not produced in response to these requests because a review of the corporate minutes for each company indicated that these minutes were not responsive as they did not include any reference to “industrial chemicals, waste, emissions, air contaminants, air pollution, air pollution control, environmental issue[s], or management of environmental issues.” (Doc. 104, Exh. 12). Plaintiffs' reply brief contends that it is “unlikely” that these issues would not have arisen at board meetings. (Doc. 112, Exh. 13). Plaintiffs have failed to meet their burden of proof showing that defendants' production of documents in this regard is deficient. Without more than plaintiffs' mere skepticism, the Court has no basis on which to conclude that defendants are withholding responsive documents or information. Plaintiffs' motion to compel further responses to RFP No. 90 and No. 91 is DENIED. Request Nos. 95 and 96: Documents related to SunCoke Energy, Inc.'s decisions or communications pertaining to Facility environmental, health, and safety issues and SunCoke's participation in the management and operation of the Facility. Defendants state they provided plaintiffs with communications with governmental Agencies, as well as email correspondences between SunCoke employees and HNCC employees regarding environmental, health, safety, and operational issues at the facility that were relevant to this complaint. Defendants state they pulled email correspondence and other ESI documents from the individuals named in plaintiffs' discovery requests. Defendants state they reviewed these communications and produced responsive communications to plaintiffs, and only a small subset of communications regarding irrelevant safety information was not included in the production. Defendants also assert that it would be unduly burdensome to identify every single communication between HNCC and SunCoke given the five-year time span that this lawsuit covers and the breadth of the RFP which encompasses the daily activities surrounding plant operations. Plaintiffs' reply states that defendants' response improperly limited the search for documents to the people listed in Request No. 90 and should have included as search of documents from “all” employees and management. The Court finds that defendants' production of the emails and ESI of the key employees in response to RFP No. 95 and No. 96 is sufficient. While it is possible that a search of every single email communication between all HNCC employees and all SunCoke employees could lead to the discovery of admissible evidence, the Court agrees with defendants that plaintiffs' request is overly broad and burdensome, and the likelihood of obtaining admissible evidence does not outweigh the burden on defendants of producing such information. Plaintiffs' motion to compel RFP No. 95 and No. 96 is DENIED. Request No. 97: All documents relating to commercial transactions between SunCoke Energy, Inc. and HNCC, including but not limited to, any loans, asset transfers, and sales. Defendants assert that they asked plaintiffs to narrow RFP No. 97 because, read literally, responding to the request as written could involve an array of documents not relevant to this case. Defendants state that plaintiffs declined to narrow the request or articulate why such documents are sufficiently relevant to require the burden on defendants to produce these documents. Plaintiffs contend that defendants have not explained why they cannot produce any of the documents or why it would cause an undue burden. Plaintiffs assert RFP No. 97 is limited to commercial transactions between the two companies and is sufficiently narrow as written. *22 Plaintiffs have not defined what the term “commercial transactions” encompasses aside from loans, asset transfers, and sales. The Court finds documents relating to any loans, asset transfers, and sales between HNCC and SunCoke are relevant and must be produced by defendants. To the extent plaintiffs are seeking documents in addition to those involving loans, asset transfers, and sales, they must specify the particular types of documents or information sought as “commercial information” and explain how they are relevant to their claims. Plaintiffs' motion to compel documents in response to RFP No. 97 is GRANTED to the extent plaintiffs seek documents relating to loans, asset transfers, and sales between HNCC and SunCoke. Request No. 100: All documents relating to any Facility investigations and corrective actions associated with a deviation of a Permit requirement identified in a Permit deviation report. Defendants state they provided plaintiffs with: (1) quarterly deviation reports; (2) email correspondence regarding deviations; (3) spreadsheets kept by the facility that identify the date and time of any incident, the cause of the incident, and the corrective actions taken; and (4) consultant studies related to deviations for which it was determined that further investigation was necessary. See, e.g., HNCCE-00021492-21509 (Dump Condenser Report – Sizing Review of Dump Condenser, compiled by IEA (Oct. 7, 2008)). Defendants assert that these documents and day-to-day communications would describe any investigations that defendants have conducted, whether or not the investigation was communicated to the PLAA. Plaintiffs assert that “[a]s stated in Opposition, as well as in interrogatory responses, Defendants' employees conduct investigations into the cause or causes of environmental deviations and malfunctions” and those reports are then reviewed by defendants' management. (Doc. 112, Exh. 13). Plaintiffs complain that defendants have not produced reports of defendants' employees who conducted investigations. Plaintiffs have not directed the Court to the specific portions of the “Opposition” or interrogatory responses which purportedly support their contention that additional reports have not been produced. The Court has no basis on which to conclude that defendants are withholding responsive documents or information or that defendants' response to RFP No. 100 is deficient. Plaintiffs' motion to compel RFP No. 100 is DENIED. Request No. 101: All documents relating to any of the Plaintiffs, including records relating to: (a) complaints about Facility emissions, odors, dust, and deposits; (b) Defendants' discussions with any Plaintiff; and (c) internal employee discussions about Plaintiffs prior to the filing of this lawsuit. Defendants state they provided plaintiffs with the Search Terms used in discovery and defendants specifically searched the plaintiffs' names: “Graff” and “Maddox.” Defendants state they produced documents responsive to this request. Plaintiffs assert that defendants' search for communications with the plaintiffs was clearly deficient, as evidenced by the lack of responsive documents actually produced. They also assert any electronic search would not locate hardcopy documents, and that complete complaint logs have not been produced by defendants. As with RFP No. 25, there appears to be a question on what “HNCC's complaint file” actually encompasses. Plaintiffs state that the only log of complaints produced was in May 2011 and included complaints from 2005 and January 2006, but not in subsequent years. Again, defendants are DIRECTED to clarify the documents contained within this file, whether any complaints subsequent to January 2006 were received by HNCC, and, if so, to produce such documents. *23 With respect to plaintiffs' remaining assertion that an electronic search would not locate hardcopy documents (i.e., those produced in the “Binder document production” and the “Toledo confidential documents), the Court has not found defendants' production of hardcopy documents to be deficient. Accordingly, the motion to compel is DENIED in this respect. Request No. 103: All deposition transcripts, sworn statements, affidavits or interrogatory responses, and document production and responses relating to the Facility, that are in the custody, control or possession of Defendants, including any of their past or present employees, and/or officers or counsel for Defendants, for the follow types of cases: Ohio Environmental Review Appeals Commission cases; Ohio state court cases relating to environmental issues; and Ohio federal court cases involving environmental issues (including City of Monroe v. Middletown Coke Company, Inc., Case No. 1:09-CV-00063-SJD, U.S. Southern District Court of Ohio, Western Division). Defendants objected to this request on the grounds of relevance. Defendants argue that the cases before the Environmental Appeals Commission and the cases that were before the Supreme Court of Ohio and the United States District Court are cases involving Ohio EPA's issuance of a permit-to-install to a sister-company of Haverhill, i.e., the Middletown Coke Company, that is currently under construction but has not become operational. Defendants assert that these cases involve citizens' challenges to whether the Ohio EPA was lawful in issuing a permit-to-install to the Middletown Coke Company. Defendants contend that because these cases involve a facility that is not even operational, the discovery associated with these cases is not relevant to the issues in this case. Defendants state there is one exception regarding relevancy. Under federal and state regulations, in order to obtain the permit, SunCoke had to certify that all facilities in the state were in compliance with applicable state and federal laws under the Clean Air Act. Defendants state that SunCoke conducted a review of its facilities, including Haverhill, and made a certification of compliance. Defendants state they produced documents associated with this certification at HNCC037934-038476. In reply, plaintiffs state that documents relating to the Middletown permitting and construction are relevant to this case because of the “unique” design of these two nonrecovery coke plants. Plaintiffs assert that any design modifications for the later Middletown plant may reflect corporate knowledge of what environmental control technologies worked and what technologies failed. The only justification for the requested documents advanced by plaintiffs is that “design modifications” for the Middletown plant “may reflect corporate knowledge” of the efficacy of environmental control technologies. Plaintiffs have failed to establish how corporate knowledge of technologies is relevant to the particular claims in this lawsuit, and the relevance of such information is not readily apparent to this Court. Plaintiff s have not met their burden on compelling responsive documents to RFP No. 103. Therefore, the motion to compel in this respect is DENIED. D. INTERROGATORY RESPONSES Plaintiffs' motion to compel asserts that defendants have failed to provide full responses to Interrogatory Nos. 5, 6, 7-10, 13, 14, 15, 22 and 23-25. (Doc. 91 at 29). Subsequent to the filing of the motion, Judge Dlott issued an Order on April 28, 2011, which resolved the disputes over Interrogatory Nos. 8-10, 13-15, and 22. (Doc. 96). Therefore, the only Interrogatories in dispute are those discussed below. 1. Interrogatory No. 5 *24 This interrogatory seeks information on the February 2009 stack collapse at defendants' Facility. Plaintiffs assert that in response to this interrogatory, defendants referenced documents created in 2009 that indicate there is other responsive information that has not been provided including the “Root Cause Analysis” study. Plaintiffs also argue that a 2009 document that predates the actual construction, repair and maintenance of the stack “cannot possibly provide the complete and current information about actions taken in response to the collapse.” (Doc. 91 at 30) (emphasis in the original). Also, plaintiffs state the interrogatory seeks “each” emission calculation and estimate and defendants' response referenced only certain “dispersion modeling” and other emissions estimates. Defendants assert the “Root Cause Analysis” study is privileged and appears on defendants' privilege log. Defendants state that the 2009 documents produced in response to the request for information regarding repairs set forth the “expected” repairs, and the expected repairs were the repairs that were actually performed. Finally, defendants assert the emission calculation information has already been addressed in the Court's April 28, 2011 Order. In reply, plaintiffs state they are entitled to the underlying facts from the Root Cause Analysis study if the document itself is privileged. Also, the April 28, 2011 Order directed defendants to investigate whether additional emissions modeling information was available and to supplement their response to the interrogatory, which plaintiffs state defendants have not done. As explained above in connection with the Court's ruling on defendants' privilege log, defendants must provide plaintiffs with the underlying facts contained within the Root Cause Analysis that are not privileged and otherwise discoverable in accordance with the Court's privilege log ruling above. Defendants are also ORDERED to advise plaintiffs whether additional emissions modeling information is available and to supplement their response to the interrogatory. 2. Interrogatory No. 6 This interrogatory sought information regarding the October 2009 FGD failure. In response, defendants provided a document containing a narrative explanation of the root cause of the FGD failure, which included the phrase, “the exact root cause of this malfunction is not currently completely understood....” Plaintiffs assert defendants “almost certainly” have a better understanding of the incident since this document was created, but have not supplemented the interrogatory. Defendants stand by their answer and assert this document contains an accurate statement of defendants' understanding of the FGD failure. In reply, plaintiffs state that the document indicates an engineering group was considering whether design modifications were needed which implies that an additional investigation was contemplated by defendants. (Doc. 112 at 18, citing HNCCE-00001307). The Court determines there is an objectively reasonable basis for questioning whether additional information is responsive to this request given the indication that design modifications were being considered. Defendants are ORDERED to supplement Interrogatory 6 with this information. 3. Interrogatory No. 7 The issues regarding Interrogatory No. 7 have been narrowed by plaintiffs' reply memorandum. Plaintiffs now assert defendants' response to this interrogatory is deficient because the deviation reports produced by defendants in response do not provide the emission release information related to Other FGD failures.[10] (Doc. 112 at 19). Plaintiffs assert that while the deviation reports sometimes include information on sulfur dioxide releases, the deviation reports do not include emission release information for other pollutants such as nitrogen oxides, lead, mercury, benzene or other chemicals emitted from the Facility. Plaintiffs state this emissions information is relevant to the impact that the Facility's emissions have on plaintiffs and their property. *25 To the extent the deviation reports provided by defendants in response to Interrogatory No. 7 do not address emissions other than sulfur dioxide, defendants are ORDERED to supplement their response to Interrogatory No. 7 with this information. 4. Interrogatory No. 23 Interrogatory No. 23 asks defendants to “[i]dentify all analyses by any Defendant of Facility management's role in and/or contribution to any Malfunction, Operational Failure, Permit Violation, or Deviation.” At the discovery conference before the undersigned magistrate judge, plaintiffs clarified that this interrogatory seeks information about the role of facility management in any malfunction, operation failure, permit violation or deviation. Plaintiffs were directed to clarify the level of management the question is designed to address so defendants could respond appropriately. (Doc. 40). Plaintiffs did so by letter of January 6, 2011, identifying that they sought information for HNCC's “General Manager, Manager, Instrumentation/Controls Supervisor, Maintenance Supervisor, and Shift Supervisor.” (Doc. 91, Exh. 17). Defendants argue that plaintiffs have “failed to narrow this interrogatory and instead sought to broaden its scope by adding non-management positions.... [D]efendants' ... offered to supplement this response if Plaintiffs properly narrow the scope of this request as they were ordered to do.” (Doc. 104 at 36). The Court determines there is nothing improper about plaintiffs' clarification of the personnel from whom they seek information about analyses or evaluations performed of the specified supervisory personnel in response to malfunctions, operation failures, permit violations or deviations at defendants' Facility. Plaintiffs' motion to compel responses in this regard is GRANTED. However, with respect to defendants' response to Interrogatory 23 relating to the management personnel at defendant SunCoke (as clarified by plaintiffs), the Court determines that defendants' answer is complete. Defendants state there has been no specific analyses of SunCoke's management roles in malfunctions and there are no responsive analyses for defendants to identify. Defendants state that in response to this part of the interrogatory, they explained the process used to analyze malfunctions and how information related thereto proceeds up the chain of command. In their reply brief, plaintiffs seek new information, i.e., the analyses of the role “human error” played in malfunctions or deviations as suggested by defendants' explanation of the process. The motion to compel is DENIED in this regard as defendants have fully responded to the question asked, not the question now posed by plaintiffs in their reply brief. 5. Interrogatory Nos. 24 and 25: Interrogatory Nos. 24 and 25 seek information relating to Standard Operating Procedures (“SOPs”) and changes made to SOPs. Interrogatory No. 24 states, “Identify all analyses by any Defendant of any role that standard operating procedures (SOPs) had in any Malfunction, Operational Failure, Permit Violation, or Deviation.” Interrogatory No. 25 states, “Identify all changes in the Facility's SOPs since 2005.” Defendants initially objected to these interrogatories on the basis of overbreadth. After a discovery conference with the undersigned magistrate judge and as indicated in the Court's December 22, 2010 Order, plaintiffs agreed to narrow and clarify the questions, and defendants agreed to identify SOPs by bates numbers and to produce all documents relating to SOP changes after the revised interrogatories were presented. (Doc. 40). *26 Defendants object to the “clarification” provided by plaintiffs, arguing that the revised request does not narrow but rather expands the information sought by plaintiffs. Defendants contend that because there are over 175 SOPs at issue, until plaintiffs narrow any requests by providing revised interrogatories defendants are not obligated to respond. Plaintiffs' reply brief makes it clear the information they are seeking: “[I]f SOPs led to malfunctions, or [permit] violations [or operational failures or deviations], and such event was evaluated or analyzed, Plaintiffs are ... seeking such analyses.” (Doc. 112 at 19). Likewise, plaintiffs' reply brief clarifies that plaintiffs seek changes to SOPs involving operating procedures deemed deficient or ineffective by defendants and therefore relevant to defendants' attempts to improve their environmental performance. (Doc. 112 at 20). Defendants have represented in their brief that they endeavor to determine the cause or causes of malfunctions and deviations. If defendants have determined that any SOPs caused malfunctions, permit violations, operational failures, or deviations, defendants are ORDERED to so state and to: (1) identify such SOPs by bates numbers if already produced, or (2) produce such SOP documents if not yet produced. If any of the SOPs so identified were then changed or amended, defendants are ORDERED to so state and to (1) identify the amended SOPs by bates numbers if already produced, or (2) produce the amended SOP documents if not yet produced. E. DEFENDANTS' MOTION FOR PROTECTIVE ORDER IS GRANTED. Rule 26 provides for the issuance of a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1)(A). In addition, Rule 26 requires the Court to limit the frequency and extent of discovery where the Court determines: (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 burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C). Defendants seek a protective order in regards to plaintiffs' Third Set of Requests for Production, which consists of an additional 24 requests for the production of documents over the 109 separate requests already made by plaintiffs. (Doc. 80).[11] Defendants assert that plaintiffs' newest set of document requests are overly broad and unduly burdensome and are duplicative of many requests previously made by plaintiffs. Defendants assert that instead of propounding focused and limited requests for additional discovery, plaintiffs' third set of document requests seek “[a]ny and all documents that discuss, reflect, refer, or relate to ...” a particular topic and are by their very nature unreasonably broad. Defendants contend that the cumulative effect of responding to such broad discovery requests would create an undue burden on defendants by virtue of having to search both hardcopy and electronic resources for documents that have anything whatsoever to do with the 24 topics in plaintiffs' newest production request.[12] *27 Plaintiffs assert that their third request for production of documents was generated after a review of certain electronic documents provided by defendants through January 2011 revealed the existence of “particular, highly probative documents and information” as well as “key documents” involving e-discovery, pollution sources, information on 42 U.S.C. § 7414 requests, and other specified documents they now seek in follow-up discovery. Plaintiffs argue that defendants have not shown they will suffer undue burden and expense if forced to comply with these discovery requests and that any burden is outweighed by the likely benefit of such production to plaintiffs. Plaintiffs contend the “targeted nature” of their additional document requests negates any assertion of overbreadth by defendants. The Court has carefully reviewed plaintiffs' Third Set of Requests for Production and the parties' briefs and finds that plaintiffs' request is premature in light of the Court's ruling above on plaintiffs' motion to compel. Much of the information sought by plaintiffs' new document requests is duplicative of the requests discussed above in connection with plaintiffs' motion to compel. Compare RFP No. 111 (seeking environmental audits of HNCC Facility) and RFP No. 125 (seeking “any air, water, soil, or soil testing or study(ies)” relating to the Facility) with RFP No. 14 (seeking documents relating to Facility environmental testing, environmental studies, environmental audits, compliance audits, environmental assessments, surface or subsurface or air investigations); RFP No. 121 (seeking documents of “any communication between or among any of Defendants' officials, employees, or representatives and any of the Plaintiffs”) with RFP No. 101 (seeking “documents relating to any of the Plaintiffs, including records relating to: (a) complaints about Facility emissions, odors, dust, and deposits; (b) Defendants' discussions with any Plaintiff; and (c) internal employee discussions about Plaintiffs prior to the filing of this lawsuit.”); RFP No. 115 (seeking documents that relate to reviews by SunCoke Energy's Health, Environmental, and Safety Personnel of any malfunction, operational failure, permit violation, and/or deviation at Facility) and RFP No. 116 (seeking documents that relate to the evaluation by SunCoke Energy's President and/or Vice President of any malfunction, operational failure, permit violation, and/or deviation at Facility) with Request Nos. 95 and 96 (documents related to SunCoke Energy, Inc.'s decisions or communications pertaining to Facility environmental, health, and safety issues and SunCoke's participation in the management and operation of the Facility). In fact, plaintiffs include many of the same arguments in response to defendants' motion for protective order as were included in their briefs on their motion for to compel, showing the overlap between the previous requests for production and the new requests. In addition, as with many of the discovery disputes addressed in connection with plaintiffs' motion to compel, plaintiffs' briefing on defendants' motion for protective order clarifies what they are actually seeking in response to their discovery requests. For example, plaintiffs assert that RFP No. 110 seeks “a very discrete category of documents,” to wit, “Defendants' responses to CAA Section 114 requests from the U.S. EPA Administrator.”[13] (Doc. 89 at 11). Plaintiffs state they served this request because “they had reason to believe that all Section 114 requests had not been previously provided.” (Doc. 89 at 11). Defendants' reply memorandum asserts that had plaintiffs actually sought only “Defendants' § 114 responses, or even the § 114 responses and requests, then Defendants could readily comply.” (Doc. 98 at 12). Instead, they requested all documents that “discuss, reflect, refer, or relate to 42 U.S.C. § 7414 responses” (Doc. 89, Exh. A), suggesting a much broader scope of discovery than set forth in plaintiffs' memorandum in opposition. *28 It is apparent to the Court that defendants are not adverse to providing additional documents and information to plaintiffs where the scope of the request is narrow and targeted and that plaintiffs are actually seeking what defendants are willing to voluntarily provide. As the parties' briefing now reflects a mutual understanding of the scope of this particular discovery request, the Court is confident that when issues such as this are clarified, the parties can cooperatively resolve such issues. Finally, the Court's ruling on plaintiffs' motion to compel will resolve many of the issues raised by plaintiffs' third set of document requests. For example, the Court's ruling on the ESI discovery issues above will allow plaintiffs to identify 50 prototype search term phrases they wish defendants to run. The resulting document production will undoubtedly address many of plaintiffs' requests for electronic documents sought in their Third Set of Requests for Production. See, e.g., RFP No. 107 (seeking electronic search of term “green oven”).[14] Because of the duplicative nature of many of plaintiffs' requests and the wording of the requests suggesting a broader scope than plaintiffs intended, the Court finds plaintiffs' Third Set of Requests for Production to be premature and, as a result, requiring defendants to respond to plaintiffs' new document requests at this juncture would be unduly burdensome and expensive. Given the Court's ruling on plaintiffs' motion to compel, once documents and ESI are produced in accordance with the Order, many of the documents and information sought by plaintiffs' third request for production will be produced, rendering a ruling on the particular document requests contained within plaintiffs' Third Request unnecessary. After documents are produced in accordance with the Court's ruling above, plaintiffs can then re-evaluate their need for specific and targeted documents (not every possible document that “relates” or “refers” to a particular topic). Defendants' motion for protective order is therefore GRANTED. F. PLAINTIFFS' REQUEST FOR FEES AND COSTS SHOULD BE DENIED. Plaintiffs also seek an award of fees and costs in connection with the motion to compel discovery. Pursuant to Rule 37(a)(4), the Court shall award attorney fees when a motion to compel discovery is granted unless certain exceptions apply: If the motion [to compel] is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(4)(A) (emphasis added). Rule 37 requires the Court to impose expenses against the unsuccessful party to the motion to compel unless the nondisclosing party's objection was “substantially justified” or “that other circumstances make an award of expenses unjust.” Id.; see Fed. R. Civ. P. 37(a) Advisory Committee Notes to 1970 Amendment (where “the dispute over discovery is genuine, though ultimately resolved one way or the other by the court ... the losing party is substantially justified in carrying the matter to court.”). A “motion is substantially justified if it raises an issue about which there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Doe v. Lexington-Fayette Urban County Govt., 407 F.3d 755, 766 (6th Cir. 2005) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). *29 The Court's discovery order in this case grants in part and denies in part plaintiffs' motion to compel. The Court concludes that an award of expenses to plaintiff under the circumstances relating to their motion would be unjust and recommends that plaintiffs' request for fees and costs be denied. Over the course of this litigation, including the many discovery conferences held by the undersigned magistrate judge, it has become apparent to this Court that many of the items of requested discovery involve legitimate and genuine disputes as to scope and relevance. The parties for the most part have attempted to resolve the issues extra-judicially, although not always. As pointed out in defendants' opposition, and in most instances not disputed by plaintiffs, certain document deficiencies were raised for the first time in the motion to compel.[15] In addition, after it became apparent to the Court following the discovery conferences that numerous disputed discovery issues could not be resolved without further briefing and consideration by the Court, the parties were directed by the Court to file motions to compel discovery. The Court also notes that the dispute over defendants' privilege log was caused, at least in part, by plaintiffs' specifications about what they wanted included in any privilege log. The Cooey decision was decided after plaintiffs propounded their document requests and defendants cannot be faulted for not relying on the specifics of Cooey in constructing their privilege log. Also, until plaintiffs filed their motion to compel, they had not identified as privilege log issues the lack of identification of the sender and recipient for some documents listed, the identity of the individuals listed on the log, and non-privileged communications with consultants. Had defendants been notified of such issues, the particular issues may have been resolved without the necessity of inclusion in the motion to compel. Additionally, plaintiffs complain about deficiencies in defendants' privilege log that they themselves were guilty of in producing their own privilege log. See, e.g., Doc. 104 at 11 (failing to list the recipients for four out of the ten documents in plaintiffs' privilege log). Finally, with respect to particular discovery requests, in many instances it was not entirely clear to the Court until the filing of plaintiffs' reply memorandum, and clarification by plaintiffs therein, what the actual issue was or what documents or discovery plaintiffs were actually seeking. Under the totality of the circumstances, the Court determines that an award of fees and costs to plaintiffs in this case would be unjust. It is therefore RECOMMENDED that plaintiffs' request for fees and costs in connection with their motion to compel be denied. IT IS THEREFORE ORDERED : 1. Defendants' motion for leave to file a sur-surreply brief is GRANTED. 2. Plaintiffs' motion to compel discovery is GRANTED in part and DENIED in part as set forth in the body of this Order. Where plaintiffs' motion has been granted or where defendants have been ordered to clarify or provide further information, defendants must comply within 30 days of the date of this Order. *30 3. Defendants' motion for protective order is GRANTED. IT IS THEREFORE RECOMMENDED: Plaintiffs' request for fees and costs in connection with their motion to compel be DENIED. Footnotes [1] Defendants contend the decision in Cooey is not binding on this Court because the parties in Cooey agreed that the privilege log would comply with the privilege log requirements adopted in the In re Universal Service Fund case and the Cooey Court merely held the parties to their agreement. (Doc. 104 at 8; Cooey, 268 F.R.D. at 648 (“Defendants agreed to supply the court with a privilege log according to the standards set forth in In re Universal Service Fund Tel. Billing Practices Litig., 232 F.R.D. 669 (D. Kan. 2005).”)). In contrast, plaintiffs argue that the privilege log requirements set forth in Cooey are mandatory and apply to defendants' privilege log in this case. (Doc. 112 at 2; Cooey, 268 F.R.D. at 649 (“Courts require the following to be included in privilege logs....”)). The Court need not reach the question of whether each element of Cooey is mandatory in this case because, in any event, as explained in detail below, defendants' amended privilege log is deficient and must be revised. [2] Defendants must make “ ‘at least a minimal showing that the communication contained legal matters,’ but that showing need not be ‘onerous and may be satisfied by as little as a statement in the privilege log explaining the nature of the legal issue for which advice was sought.’ ” Cooey, 269 F.R.D. at 649. [3] As illustrated by the instant Order, instead of identifying specific exemplar documents by bates number, the Court has had to reference the page number of the log, the date, and the description of the document in an attempt to accurately identify the document at issue. [4] As the Supreme Court explained: [T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney. Upjohn Co., 449 U.S. at 395-396 (internal citation omitted). [5] See Thompson v. Village of Mt. Pleasant, Ohio, No. 2:10-cv-93, 2011 WL 31106, at *1 (S.D. Ohio Jan. 4, 2011) (after in camera review by court, finding irrelevant 20 redacted pages of 55 page transcript); Ridenour v. Collins, 692 F. Supp.2d 827 (S.D. Ohio 2009) (involving redaction of plaintiff's own parole file). [6] While some courts have adopted a more expansive definition of “control,” finding that a party may be compelled to produce documents from a non-party where the party has the “practical ability” to obtain documents from a non-party, see, e.g., Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997), plaintiffs have cited no controlling legal authority from the Sixth Circuit establishing the right to obtain documents where a party has the “practical ability” to procure such documents. The case cited by plaintiffs, Halliburton Energy Services, Inc. v. M-I, LLC, No. 1:06-mc-01, 2006 WL 3085622 (S.D. Ohio Oct. 27, 2006), is factually distinguishable. Unlike the instant case where plaintiffs seek an order compelling defendants to produce documents from a non-party under Fed. R. Civ. P. 34, Halliburton involved a motion to compel a non-party to comply with a subpoena under Fed. R. Civ. P. 45 requesting the production of documents from the non-party's parent company. This case involves neither a Rule 45 subpoena to a non-party nor a parent-subsidiary relationship as in Halliburton. [7] RFP No. 33 requests: “All documents identifying Heat Recovery Steam Generator (HRSG) supervisors and other employees responsible for the daily operation of the FGD system for P901 or P902.” RFP No. 68 requests: “All documents identifying each current and past Heat Recovery Steam Generator (HRSG) supervisor and each other employee of Defendants who performed or performs duties relating to the daily operation of the Flue Gas Desulfurization (“FGD”) systems for P901 and/or P902.” [8] The Court does not grant plaintiffs' request for a search of the personal computers of defendants' employees. Such as request is overbroad and any likely benefit to plaintiffs is outweighed by the burden of compelling defendants to search the personal computers of all their employees. [9] The Court notes that defendants retain the duty to timely supplement their responses as appropriate pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. Should depositions or other discovery later reveal that defendants possess any other documents relevant to the RFPs, defendants may face imposition of sanctions for failure to produce them. [10] Interrogatory No. 7 states in relevant part: “Other than as identified in Interrogatory No. 6, identify the following: ... (e) each Other FGD Failure-related incident of ... (ii) emission release....” [11] Plaintiffs' Third Set of Requests for Production are misnumbered, starting with RFP No. 105. As the parties have done in their briefing, the Court will refer to the particular requests by the numbers used by plaintiffs in their Third Set of Requests for Production to avoid any further confusion. [12] To exemplify this, defendants assert the following: If Plaintiffs had simply said, for example, “produce your environmental audits” (#111) or “produce the § 114 requests and responses” (#110), then Defendants could comply without unreasonable burden. Whether ESI or in hardcopy format, such documents could be easily located. However, there is no hardcopy file of “all documents that discuss, reflect, refer, or relate to” environmental audits or § 114 responses, for example. Responding to the requests as worded (and to Plaintiffs' satisfaction), would literally require Defendants to search every hardcopy document in Defendants' possession for any reference of any kind to these topics. It would also require Defendants to run broad searches on its ESI and spend hundreds of hours reviewing “hit” documents to determine responsiveness and privilege. Producing discrete documents might take Defendants 2-3 hours. Producing all documents that discuss, reflect, refer, or relate to those same documents, on the other hand, might take 200-300 hours. (Doc. 98 at 8). [13] “The U.S. EPA has the authority under this section to issue requests to companies for information the EPA requires to develop regulations or determine compliance. These requests are typically referred to as § 114 requests, and the company's responses as § 114 responses.” (Doc. 98 at 12, n.12). [14] Plaintiffs argue that “[e]lectronically searching for documents using the term ‘green oven’ should not be burdensome” (Doc. 89 at 10) and defendants have already offered to run such a search. (Doc. 98 at 10-11). [15] Out of the 58 requests for documents raised by plaintiffs, defendants assert that 32 of those disputed requests were raised for the first time in the motion to compel.