Adam Karhu, on behalf of himself and all other similarly situated, Plaintiff, v. Vital Pharmaceuticals, Inc., d/b/a VPX Sports, Defendant CASE NO. 13-60768-CIV-COHN/SELTZER Signed February 04, 2014 Seltzer, Barry S., United States Magistrate Judge ORDER ON PLAINTIFF'S MOTIONS TO COMPEL *1 THIS CAUSE is before the Court on Plaintiff's Motion to Compel Defendant to Provide Better Responses to Plaintiff's First Set of Requests for Production of Documents and Electronically Stored Information (DE 43), with supporting Declaration of Plaintiff's counsel (DE 43-1),[1] and Plaintiff's Motion to Compel Defendant to Provide Better Responses to Plaintiff's First Set of Rule 26.1(G) Interrogatories (DE 46).[2] These matters were referred to the undersigned Magistrate Judge pursuant to U.S.C. § 636 and the Magistrate Rules of the Local Rules of the United States District Court for the Southern District of Florida. It is hereby ORDERED that both Plaintiff's Motions are GRANTED in part and DENIED in part as set forth below. I. BACKGROUND In January 2013, Plaintiff Adam Kahru purchased a bottle of VPX Meltdown Fat Incinerator (“Meltdown”) capsules, allegedly relying on the express representations made on the bottle, including that the product is a “fat burner.” Plaintiff alleges that the ingredients contained in Meltdown have always been ineffective and worthless and have never been clinically proven to be effective for fat loss. The Second Amended Complaint (DE 36) against Defendant Vital Pharmaceuticals, Inc., d/b/a VPX Sports (the seller and marketer of the product), asserts claims for violation of the Magnuson Moss Warranty Act, breach of express warranty, unjust enrichment, and violation of the consumer protection laws of the State of Florida and the State of New York. During the course of discovery, Plaintiff served on Defendant a First Set of Requests for Production of Documents and Electronically Stored Information (DE 43-3). Defendant responded thereto (DE 43-5) and, after the parties' counsel conferred, Defendant served a Supplemental Response (DE 43-8) and a second Supplemental Response (DE 43-15) to the Requests for Production. Additionally, Plaintiff served on Defendant a First Set of Rule 26.1(g) Interrogatories (DE 43-2). Defendant responded to the Interrogatories (DE 43-4), and thereafter served a Supplemental Response (DE 43-7) and a Second Supplemental Response (DE 43-19). Plaintiff now moves the Court to compel Defendant to provide better responses to both his Interrogatories and Requests for Production. Because Plaintiff's discovery motions contain common issues, the Court will address them together. II. GENERAL OBJECTIONS AND PRELIMINARY STATEMENT Plaintiff first moves the Court to strike Defendant's general objections and preliminary statements.[3] Defendant's original responses and its first supplemental responses to both the Interrogatories and the Requests for Production contain a “Preliminary Statement,” which reads as follows: These responses are made solely for the purpose of and in relation to this action. Each answer is given subject to all appropriate objections (including, but not limited to, objections concerning competence, relevance, materiality, proprietary, and admissibility) that would require the exclusion of any statement contained herein if the [discovery response] were asked of, or any statement contained here were made by, a witness present and testifying in court. *2 The following Responses are based on VPX's current knowledge and reasonable beliefs. VPX has not completed its investigation of the facts relating to this action and has not completed discovery. Therefore, the following [discovery responses] are given without prejudice to VPX's right to supplement, modify, alter, or amend its Responses based on further investigation, discovery, and analysis. Following the “Preliminary Statement” is a section headed “General Objections Applicable to All Categories,” which sets forth 15 “general” objections. The 16th “general objection” states that “[e]ach of the foregoing objections is incorporated herein by reference into each of the responses below. To the extent that a particular objection is mentioned in response to [a] specific Request, that objection is considered particularly relevant to that Request and is not to be considered as excluding other objections that may be applicable.” Defendant then responded to each of the individual discovery requests, “[su]bject to and without waiving any of the foregoing” general objections. Numerous courts have disapproved of the practice of asserting a general objection to the extent it may apply to particular requests for discovery. Such courts have deemed these types of objections waived or have declined to consider them as objections at all. See, e.g., Kelly v. FedEx Ground Package System, Inc., No. 3:10-cv-01265, 2011 WL 1584764, at *1 (S.D. W. Va. Apr. 26, 2011) (overruling general objections and noting that the “indiscriminate use of ‘General Objections' frustrates the purpose of discovery and fails to comply with the specificity requirements of Fed. R. Civ. P. 33(b)(4) and Fed. R. of Civ. P. 3(b)(2)(B) and (C)....”); Anderson v. United Parcel Service, No. 09-2526-KHV-DJW, 2010 WL 4822564, at *2 (D. Kan. Nov. 22, 2010) (“[G]iven that Plaintiff made no meaningful effort to demonstrate the application of any of her general objections to any particular interrogatory, the Court finds the Plaintiff's general objections to be of no consequence and overrules them.”); Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 538-39 (D. Kan. 2006) (deeming general objections as tantamount to no objection at all). As one district court has explained, such general objections “are considered mere ‘hypothetical or contingent possibilities,’ where the objecting party makes no meaningful effort to show the application of any such theoretical objection' to any request for discovery.” Johnson, 236 F.R.D. at 538 (internal quotation marks and citations omitted). *3 Defendant responds that in its second supplemental responses to Plaintiff's discovery requests it “removed all general objections and only objected where applicable, and/or noted what was thought to have been agreed upon during the meet and confer process, for purposes of narrowing the scope of each request.” Response at 2 (DE 47). The Court, therefore, finds that Defendant has abandoned its general objections and will not consider them. Defendant, however, did include in its second Supplemental Responses the same “Preliminary Statement” included in its original Responses and its first Supplemental Responses. With respect to the first paragraph of the “Preliminary Statement” (which indicates that Defendant's responses are given subject to certain objections), Defendant responds that “any mention of an objection in the Preliminary Statement is nothing more than an example of sampling to explain, but are not actually objections for any particular Request....” Like Plaintiff, the Court does not understand what Defendant means by “a sampling to explain.” Nonetheless, Defendant has represented that “the only objections applied to any particular request are those listed in response to the specific request.”[4] Yet, Defendant's objections to the individual discovery requests are also deficient. Defendant has asserted various objections, such as “overbroad” and “vague,” and then answered the discovery request “subject to and without waiving” its objections. Although this practice has become commonplace, courts in the Eleventh Circuit have found that “whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.” Tardif v. People for the Ethical Treatment of Animals, No. 2:09-cv-537-FtM-29SPC, 2011 WL 1627165, at *2 (M.D. Fla. Apr. 29, 2011); see also Chemoil Corp. v. MSA V, No. 2:12-cv-472-Ftm-99SPC, 2013 WL 944949, at *2 (M.D. Fla. Mar. 12, 2013); Pepperwood of Naples Condo. Ass'n v. Nationwide Mut. Fire Ins. Co., No. 2:10-cv-753-FtM-36SPC, 2011 WL 4382104, at *4-5 (M.D. Fla. Sept. 20, 2011); Mann v. Island Resorts Dev., Inc., No. 3:08cv297/RS/EMT, 2009 WL 6409113, at *3 (N.D. Fla. Feb. 21, 2009). As one court in this District has noted, such objections and answer “preserve [ ] nothing and serve[ ] only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.” Consumer Elecs. Ass'n v. Compras and Buys Magazine, Inc., No. 08-21085-Civ, 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008) (Simonton, M.J.). The Court, therefore, overrules Defendant's objections in each instance that Defendant has objected and then provided a substantive answer; it will consider only the substantive answer. III. TEMPORAL SCOPE Defendant limited its responses to Plaintiff's discovery requests to the period from 2007 – the year in which Meltdown capsules were first manufactured and sold – to the present. Plaintiff argues this temporal limitation is inappropriate, particularly to the requests for documents related to the development and testing of Meltdown, which would necessarily have been generated before Meltdown was first manufactured and sold. After reviewing Plaintiff's discovery requests, the Court finds that they are overbroad on their face as they are without any temporal limitation. The Court further finds that, in general, the time period “2007 to the present” is reasonable. All Plaintiff's claims arise from Defendant's alleged misrepresentations on which Plaintiff allegedly relied when he purchased the Meltdown product in 2013. And the putative class members consist of individuals who relied on the alleged misrepresentations when purchasing Meltdown no earlier than April 4, 2008.[5] Against this backdrop, the Court will review Plaintiff's specific discovery requests and determine the appropriate time frame for each. IV. PRODUCT SCOPE *4 In responding to Plaintiff's discovery requests, Defendant provided information and documents only as to Meltdown capsules. Plaintiff moves the Court to require Defendant to supplement its responses and produce documents pertaining to Meltdown beverages, contending that Defendant unilaterally and improperly limited the product scope.[6] Plaintiff argues that the information and documents sought are relevant because: (1) Meltdown capsules and drinks contain the same ingredients; (2) Defendant advertised Meltdown capsules and drinks in the same deceptive manner; (3) Defendant made the same express representations with respect to Meltdown capsules and drinks; (4) Defendant relies on a university study conducted with Meltdown drinks to support its efficacy claims as to Meltdown capsules; and (5) Defendant relies on a university study conducted with Meltdown capsules to support its efficacy claims as to Meltdown drinks. Defendant counters that discovery should be limited to Meltdown capsules because that is the only product that Plaintiff purchased and the only product on which the Complaint is based. It argues, therefore, that information and documents pertaining to Meltdown beverages are not relevant to the production, advertisement, and sale of the capsules. According to Defendant, “the Meltdown product line is a family of products that may have some of the same ingredients but they do not have the same formulas.” Response at 4 (DE 49) (emphasis in original). Defendant further argues that even were the ingredients in the capsules and beverages identical, the products “are sold in a different physical state (one is a liquid the other is a solid) which obviously means that they are different products mutually exclusive of each other.” Id. Defendant reasons that “[i]f you buy dry dog food from a company and sue over that purchase, you aren't entitled to that company's information and documentation concerning their wet food too.” Id. The Court is not persuaded by Defendant's arguments. First, Defendant ignores Plaintiff's contentions that the capsules and beverages are advertised in the same manner and that Defendant makes the same (alleged) misrepresentations as to both products. Defendant also ignores Plaintiff's contention that Defendant relies on university studies of one form of Meltdown to promote the other form. Moreover, even if the ingredients in the Meltdown capsules are not identical to those in the beverages, the products are similar. The Court, therefore, concludes that information and documents pertaining to Meltdown beverages are relevant or likely to lead to the discovery of admissible evidence with respect to at least some of Plaintiff's discovery requests. The Court will determine the appropriate product scope in ruling on the specific discovery requests. V. DEFERRAL TO EXPERT (REQUESTS FOR PRODUCTION ONLY) In response to Request Nos. 5-14 and 33-34, Defendant stated that it would produce documents responsive to those Requests; it then added that “VPX also defers to its expert on this matter.” According to Plaintiff, such deferral “appears to be an objection on the basis that the requests seek the premature disclosure of expert opinions and reports.” Motion at 12 (DE 43). Plaintiff states that these Requests are not seeking the disclosure of an expert opinion or report; rather, they are seeking the documentary support upon which Defendant originally relied in making its express representations. He argues that “[a]ny attempt by Defendant to not disclose otherwise discoverable information on the basis that it will later be produced during expert discovery is meritless.” Id. Defendant denies that it has refused to respond to any request by deferring to its expert; rather, it has produced all responsive documents in its possession, custody, and control that pertain to Meltdown capsules or the general company information. According to Defendant, it “simply noted that an Expert would also possess additional documentation responsive to particular requests, since Plaintiff defined ‘you’ to include VPX's agents, and an Expert would technically be an ‘agent’ for VPX.” Response at 4 (DE 47). The Court accepts Defendant's representations that no documents have been withheld on this basis. VI. SPECIFIC INTERROGATORIES *5 Plaintiff moves the Court to compel Defendant to provide better answers to 18 interrogatories (Interrogatory Nos. 2, 3, 5-9, 12-18, and 20-23). 1. Interrogatory Nos. 2 and 3. Interrogatory No. 2 asks Defendant to “provide the name, place of employment and job title of any person who has, claims to have or whom you believe may have knowledge or information pertaining to any fact alleged in the pleadings ... or any facts underlying the subject matter of this action.” And Interrogatory No. 3 asks Defendant to “state the specific nature and substance of the knowledge that you believe that person(s) identified in your response to Interrogatory No. 2 may have. In answer to Interrogatory No. 2, Defendant identifies only “Plaintiff and his counsel.” The Court does not find it plausible – and, therefore, rejects – Defendant's assertion that Plaintiff and counsel are the only individuals with knowledge touching on the facts alleged in the Complaint or the underlying subject matter of this action. The Court similarly rejects the implication that Defendant's owner, directors, officers, and/or employees are completely without such knowledge. Accordingly, within (7) days of the date of this Order, Defendant shall fully and completely answer Interrogatory Nos. 2 and 3. 2. Interrogatory Nos. 17 and 18. Interrogatory No. 17 asks Defendant to “identify the name and current address for each person or third party that was involved in the development, creation, advertising, marketing, and testing of Meltdown.” And for each individual or entity identified in Interrogatory No. 17, Interrogatory No. 18 asks Defendant “to describe in detail [the] educational background, professional qualifications, and knowledge and experience in the development and sale of supplements, including but not limited to Meltdown.” In its supplemental answers to both these Interrogatories, Defendant merely refers Plaintiff to its Rule 26 disclosures. The Court finds that Defendant's answers are not sufficient. See DIRECTV v. Puccinelli, 224 F.R.D. 677, 681-82 (D. Kan. 2004) (A party answering an interrogatory “may not merely refer [the requesting party] to other pleadings or its [Rule 26] disclosures hoping that [the requesting party] will be able to glean the requested information”); Cherenfant v. Nationwide Credit, Inc., NO. 03-60655-CIV, 2004 WL 5315899, at *1 (S.D. Fla. May 12, 2004) (finding answers to interrogatories that merely referenced Rule 26 initial disclosures to be improper). Federal Rule of Civil Procedure 33(b)(1) requires that a party answer each interrogatory under oath. Although not filed of record, it is doubtful that Defendant verified its Rule 26 initial disclosures.[7] And it is even more unlikely that Defendant's initial disclosures provide all the information sought by Interrogatory No. 18 (such the educational background, professional qualifications, and experience of the persons or third parties required to be identified in answer to Interrogatory No. 17).[8] More significantly, under Rule 26(a)(1)(A)(i), a disclosing party is only required to identify the individuals that it may use to support its own claims or defenses. The Court, therefore, will require Defendant to provide substantive answers to Interrogatory Nos. 17 and 18. The Court, however, finds that Interrogatory No. 18 is overly broad in that it requires information pertaining to all Defendant's “supplements.” These Interrogatories, therefore, are limited to Meltdown (in capsule and liquid form). The Court further finds that it would be unduly burdensome for Defendant to provide the “educational background, professional qualifications, and knowledge and experience” of the distributors and other third parties that sell Meltdown. Although Defendant is required to identify the third parties, it is need not provide such other information. *6 3. Interrogatory Nos. 20 and 21. Interrogatory No. 20 asks Defendant to identify the expert witnesses that it may use at trial, and Interrogatory No. 21 asks Defendant to state in detail the substance of such expert witnesses' opinions. Plaintiff responded that these Interrogatories were premature[9] and that it would “comply with the Court's scheduling order concerning expert discovery”; it added that it was willing to confer with Plaintiff's counsel to determine a schedule for the parties to exchange their expert disclosures. Plaintiff is entitled to the information sought by these Interrogatories. As the February 6, 2014 deadline for completing expert discovery is fast-approaching, Defendant should have already made its Rule 26 expert disclosures. If it has not yet done so, Defendant shall answer Interrogatory Nos. 20 and 21 within two (2) days of the date of this Order.[10] 4. Interrogatory No. 22. Interrogatory No. 22 asks Defendant to identify every document that it contends “supports its statement concerning Meltdown's safety and efficacy,” including certain paragraphs quoted in Plaintiff's Complaint. In its supplemental response, Defendant directs Plaintiff to its production index. Plaintiff argues that Defendant should be required to identify not only statements relating to Meltdown in capsule form, but also statements relating to (the safety and efficacy of) Meltdown beverages. The Court agrees. Accordingly, within seven (7) days of the date of this Order, Defendant shall identify all documents (that have not already been identified) that relate to Meltdown beverages' safety and efficacy. Defendant's answer is not limited in temporal scope. *7 5. Interrogatory No. 23. Interrogatory No. 23 asks Defendant to “state all facts supporting each and every denial or affirmative defense you raise and identify any records that support those facts and every person who has knowledge of those facts.” In its original response to Interrogatory No. 23, Defendant stated that the Interrogatory was premature as its Motion to Dismiss was pending and it had not yet filed an Answer or any Affirmative Defenses to the operative Complaint. But on September 3, 2013, Defendant did file its Answer and Affirmative Defenses (DE 36) to Plaintiff's Second Amended Complaint, denying the material allegations and asserting 23 separate affirmative defenses. Yet, two days later, in its supplemental answer to Interrogatory No. 23, Defendant merely directed Plaintiff to its production index and to its Rule 26(a) disclosures. The Court finds that Defendant's supplemental answer to Interrogatory No. 23 suffers from the same infirmity as its supplemental answers to Interrogatory Nos. 17 and 18 (above). Accordingly, within seven (7) days of the date of this Order, Defendant shall fully and completely answer Interrogatory No. 23. 6. Plaintiff's Motion with respect to Interrogatory Nos. 5-9 and 12-16 is DENIED. The Court concludes that Defendant's supplemental answers to these Interrogatories are sufficient. VII. SPECIFIC REQUESTS FOR PRODUCTION Plaintiff moves the Court to compel Defendant to produce documents responsive to 40 separate Requests for Production (Request Nos. 2-15, 17-24, 29-40, and 43-48). Defendant has submitted the affidavit (DE 47-1) of its counsel, Victoria Godwin, who attests that Defendant has produced all documents (from 2007 to the present) relating to Meltdown capsules that are responsive to Request Nos. 3-24, 32-35, 38, 40, 46, and 48. Attorney Godwin additionally attests that Defendant has no documents responsive to Request Nos. 36, 37, 39, and 45. As one district court has noted: “[O]f necessity, the Court must accept, at face value, a party's [or its attorney's] representation that it has fully produced all materials that are responsive to a specific discovery request.... [The court has] no means to test the veracity of such avowals, other than to appropriately sanction a recalcitrant party for failing to responsibly honor its discovery obligations.” Lumber v. PPG Industries, Inc., 168 F.R.D. 641, *643 (D. Minn.,1996). Additionally, “[u]nder ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production ....” Similarly, “[u]nder ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production....” Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 152 (S.D.N.Y.,1997) (internal quotation marks and citations omitted). To the extent that Defendant's counsel representation pertains to Meltdown capsules, the Court accepts that Defendant has no responsive documents to certain request and that it produced all responsive documents to other requests. As noted above, however, the Court has concluded that documents responsive to at least some of Plaintiff's Requests pertaining to Meltdown beverages may be likely to lead to the discovery of admissible evidence. The Court will identify such Requests below. 1. Request No. 2. Request No. 2 seeks “[a]ll documents concerning the development of Meltdown.” In its original response to this Request, Defendant stated, inter alia, that the formulation of Meltdown is a proprietary blend that constitutes confidential and trade secret information, and unless Plaintiff can show good cause for the release of said information, [Defendant] will not produce documents that detail the formulation of any of its products.” Defendant also indicated that it was willing to confer to narrow the scope of Request No. 2 and to ascertain the specific documents that Plaintiff is seeking. In its supplemental response, Defendant indicated that it would produce responsive documents, “as discussed and defined during the meet and confer process, as pertaining to Meltdown capsules from 2007 to the present.”[11] Plaintiff states that Defendant has not produced any documents responsive to this Request; specifically, Defendant has not produced any internal studies, research documents, or internal communication related to the development or testing of Meltdown. The Court concludes that the documents sought are relevant or are likely to lead to the discovery of admissible evidence. Accordingly, within seven (7) days, Defendant shall produce all documents responsive to Request No. 2 (not been previously produced) relating to the development of Meltdown capsules (but not Meltdown beverages) without any temporal limitation. To the extent that any documents produced contain trade secrets or confidential and proprietary information, such documents are protected by the Stipulated Protective Order Governing Disclosure of Confidential Information (DE 24) previously entered herein. *8 2. Request No. 3. Request No. 3 seeks “all documents that demonstrate you placed a litigation hold to preserve all evidence as a result of the instant action.” In its supplemental response, Defendant objected to this Request on the ground that its seeks documents protected by the attorney/client and work product privileges.[12] In addition, Defendant's counsel has attested that the legal department sent to Defendant's employees a “Litigation Hold Memo”; all employees were instructed “not to delete, destroy or discard any documentation that pertained to Meltdown and other potential aspects of this case.” Godwin Aff. ¶¶ 14, 15 (DE 47-1). Defendant's counsel has also attested that Defendant's IT department was instructed “to disable any automatic delete features that may be in place that could potentially delete a document subject to this litigation.” Id. at ¶ 16. In support of its Motion to Compel, Plaintiff does not challenge Defendant's assertion of privilege. Rather, he argues that “Defendant's supplemental response is not consistent with the privilege log it produced on July 22, 2013. Specifically, Defendant identifies five (5) pages of documents ... that are identified as “Litigation Hold Memos” dated April 26, 2013.” Motion at 14 (DE 43). Plaintiff does not further explain the alleged inconsistency. And in his Reply, Plaintiff argues that Defendant has not supplemented its discovery response to reflect Defendant's representation that its employees were instructed not to delete, destroy, or discard Meltdown documents. Request No. 3 asks Defendant to produce documents demonstrating that it placed a litigation hold, and in response thereto Defendant asserted its privilege objections; that is all that is required. The Court does not find that any supplementation is necessary. Accordingly, Plaintiff's Motion with respect to Request No. 3 is DENIED. 3. Request Nos. 4-14 and 32-34. Request No. 4 seeks [a]ll documents pertaining to any clinical studies, research, or information of any kind concerning the safety or efficacy of [M]eltdown and any of its ingredients.” Request Nos. 5-14 and 32-34 seek all documents that either support or contradict certain representations made by Defendant. In its supplemental responses to these Requests, Defendant stated that it would produce responsive documents pertaining to Meltdown capsules from 2007 to the present. And in her Affidavit, Defendant's counsel represented that Defendant has produced all documents responsive to these Requests relating to Meltdown capsules. The Court, however, concludes that documents responsive to these Requests pertaining to Meltdown beverages likely will lead to the discovery of admissible evidence. In its supplemental responses, Defendant stated that it would limit its production to documents generated from 2007 to the present. It is unclear from counsel's Affidavit, however, whether Defendant is still relying on this temporal limitation with respect to documents responsive to these Requests as counsel attests generally that Defendant “searched through all its documents despite year limitations....” Godwin Aff., ¶ 9 (DE 47-1). Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents responsive to Request Nos. 4-14 and 32-34 pertaining to both Meltdown capsules and Meltdown beverages, without any temporal limitation. 4. Request Nos. 15, 17-21, 38, 40, and 46. Defendant has represented that it has produced all responsive documents to these Requests. Although Defendant's production was limited to documents pertaining to Meltdown capsules, the Court will not require it to produce responsive documents pertaining to Meltdown beverages. Accordingly, Plaintiff's Motion with respect to Request Nos. 15, 17-21, 38, 40, and 46 is DENIED.[13] 5. Requests No. 22, 23, and 35. Request No. 22 seeks “[d]ocuments sufficient to show the content of all advertisement for Meltdown and the dates and placement of such advertisements.” Request No. 23 seeks “[d]ocuments sufficient to show all of [Defendant's] public statements concerning Meltdown.” And Request No. 35 seeks “[a]ll communications between Defendant and any consumer purchaser of Meltdown regarding a refund of the purchase price of Meltdown.” In response to the instant Motion, Defendant represents that it has produced all documents pertaining to Meltdown capsules responsive to Requests No. 22 and 23; it fails to address Request No. 35. The Court, however, concludes that documents responsive to these Requests pertaining to Meltdown beverages likely will lead to the discovery of admissible evidence. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents (not already produced) pertaining to both Meltdown capsules and Meltdown beverages from January 1, 2007, to the present that are responsive to Request Nos. 22, 23, and 35. *9 6. Request No. 24. Request No. 24 seeks Defendant's “corporate organizing documents, including but not limited to [its] certificate of incorporation, bylaws, operating agreements, dissolution agreements, and organization charts. In response to the instant Motion, Defendant represents that it has produced all documents relating to its “organizing documents” in its possession, custody, responsive to this Request. After conferring with Plaintiff's counsel as to the meaning of “operating agreements” and “dissolution agreements,” Defendant represents it has no such documents. Accordingly, Plaintiff's Motion with respect to Request No. 24 is DENIED. 7. Request Nos. 29 and 30. Request No. 29 seeks “[a]ll documents pertaining to communications by the FDA, FTC, or other government agencies concerning Meltdown, including but not limited to consumer warning letters, communications to consumers, testing of Meltdown, discovery of caffeine, discovery of any chemical banned by the FDA or any government agency, and advertising and marketing.” And Request No. 30 seeks “[a]ll documents pertaining to communications between Defendant and any consumer advocacy groups, including but not limited to the National Advertising Division of the Council of Better Business Bureaus [“NDA”], concerning Meltdown.” In its supplemental response, Defendant represented that it would produce documents responsive to Request No. 29 pertaining to Meltdown capsules. And in its supplemental response, Defendant objected to Request No. 30 as being vague and overly broad.[14] In its response to the instant Motion to Compel, Defendant additionally objects to both Request Nos. 29 and 30 on the ground that communications with government agencies (the FDA, the NAD, and the NARB) are deemed confidential pursuant to those agencies rules.[15] Defendant, however, failed to assert a confidentiality objection to either Request in his original response or its supplemental response. Defendant, therefore, has waived such objection. See S.D. Fla. L.R. 26.1(g)(3)(A) (“Any ground not stated in an objection [to an interrogatory or request for production] within the time provided by the Federal Rules of Civil Procedure, or any extensions thereof, shall be waived.”). Moreover, the confidentiality of the documents are protected by the parties' Stipulated Protective Order Governing Disclosure of Confidential Information (DE 24) previously entered herein. As a final matter, the Court concludes that documents pertaining to Meltdown beverages responsive to Request Nos. 29 and 30 would likely lead to the discovery of admissible evidence. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents (without temporal limitation) pertaining to both Meltdown capsules and Meltdown beverages (that have not already been produced) responsive to both Requests No. 29 and 30. 8. Request No. 31. Request No. 31 seeks “[a]ll documents pertaining to Meltdown's formula, including any changes.” In its supplemental response, Defendant stated that it would produce responsive documents pertaining to Meltdown capsules (from 2007 to the present) and an ingredient list.[16] Defendant further indicated that it would not produce the “actual formula with amounts of ingredients.” Plaintiff argues that Defendant's objection to disclosing ingredient amounts is meritless because the amounts are currently disclosed on Meltdown's packaging and on Defendant's website. Plaintiff further argues that its request for historical ingredient amounts that are not publicly available is relevant to its contention that Meltdown's ingredients have always been ineffective and worthless. According to Plaintiff, Defendant's ingredient list (produced by Defendant) reveals that Defendant has manufactured and sold 11 different versions of the product – the original and 10 changes, with each change being assigned a different formula number; 5 of the of the formula numbers share the same exact ingredients. Plaintiff, therefore, argues that he will be unable to understand and compare the changes unless Defendant discloses the historical ingredient amounts. In its response to the Motion to Compel, Defendant argues that no justification for production of Meltdown's actual formula exists because “the formula has nothing to do with the alleged advertising that the plaintiff is complaining about. The advertising discusses specific ingredients but does not list the quantities of those ingredients as having a specific effect.” Response at 4-5 (DE 47). Defendant explains that it does not represent that “because of ingredient X you will experience XYZ effect. [Defendant] stat[e]s ingredient X may have XYZ effect on you if consumed.” Id. at 5. The Court is not persuaded by Defendant's argument and finds that the Meltdown formula is relevant to Plaintiff's claims, particular as one of Defendant's alleged misrepresentations is that Meltdown consists of a “university proven” formula that “burns fat”. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents responsive to Request No. 31 (without any temporal limitation) with respect to only Meltdown capsules. *10 9. Request Nos. 36, 37, 39, and 45. Plaintiff's Motion with respect to these Requests is DENIED as moot; Defendant has represented that it possesses no responsive documents. 10. Request No. 43. Request No. 43 seeks “[a]ll documents relating to consumer complaints concerning Meltdown.” The Court finds that the Request is overbroad on its face as it is not limited to complaints relating to the subject matter of this action. in response to the instant Motion, Defendant has represented that it has produced consumer complaints relating to efficacy, advertising, and health. The Court agrees that this limitation is proper. But, Defendant has also limited its production of consumer complaints to Meltdown capsules. The Court, however, concludes that such consumer complaints relating to Meltdown beverages are likely to lead to the discovery of admissible evidence. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce copies of all consumer complaints (not already produced), relating to the efficacy, advertising, and health for both Meltdown capsules and Meltdown beverages, without any temporal limitation. 11. Request No. 44. Request No. 44 seeks “[a]ll documents relating to anyone challenging the veracity of any and all statements made in any of Defendant's advertising and marketing of Meltdown and health benefits, and capabilities of Meltdown.” In its response to the instant Motion, Defendant represents that it has produced all documents responsive to this Request pertaining to Meltdown capsules. The Court, however, concludes that such documents pertaining to Meltdown are likely to lead to the discovery of admissible evidence. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents (not already produced) responsive to Request No. 44 for both Meltdown capsules and Meltdown beverages, without any temporal limitation. 12. Request No. 47. Request No. 47 seeks “[a]ll documents concerning meetings, discussions, and communication, internal or external, pertaining to changes in Meltdown's formula.” In its original response, Defendant asserts, inter alia, the same objection to producing Meltdown, and in its supplemental response, Defendant states that it will produce responsive documents pertaining to Meltdown capsules from 2007 to the present. According to Plaintiff, as of the date of his Motion, Defendant had failed to produce any documents. In its response to Plaintiff's Motion, Defendant states that it has produced all “ingredient listings,” but “no formula information.” It is unclear from Defendant's response whether it has produced documents responsive to this Request other than its ingredient list. Request No. 47, however, seeks documents of meetings, discussions, and communications pertaining to changes in Meltdown's formula.” It does not appear that all responsive documents have been produced. Accordingly, within seven (7) days of the date of this Order, Defendant shall produce all documents responsive to Request No. 47 pertaining to only Meltdown capsules, without any temporal limitation. 13. To the extent that any Requests for Production have not been specifically addressed (above), Defendant's Motion as to those Requests is DENIED. VIII. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES *11 Plaintiff requests that the Court award him the reasonable expenses, including attorney's fees and costs, he incurred in bringing his Motions to Compel, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). That Rule, however, applies when a court grants a motion to compel. Here, the Court has granted Plaintiff's motions to compel in part only. Therefore, Federal Rule of Civil Procedure 37(a)(5)(C) applies. Rule 37(a)(5)(C) provides that where a motion to compel is granted in part and denied in part, the court “may ... apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added). After considering the matter, however, the Court declines to award either party its expenses, attorney's fees, or costs. DONE AND ORDERED in Fort Lauderdale, Florida, this 4th day of February 2014. Footnotes [1] Defendant has responded (DE 47) to this Motion, and Plaintiff has replied (DE 51) thereto. [2] Defendant has responded (DE 49) to this Motion, and Plaintiff has replied (DE 55) thereto. [3] The relief that Plaintiff seeks in both Motions is to “strike” certain matters in Defendant's responses to its discovery requests. Motions to strike are governed by Rule 12(f) of the Federal Rules of Civil Procedure. That Rule makes clear that motions to strike must be directed to a party's pleadings. See Fed. R. Civ. P. 12(f) (“Upon motion made by a party ..., the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”) (emphasis added); see also27A Fed. Proc., L.Ed. § 62:438 (1996 & Supp. 2004) (“A motion to strike is only appropriately addressed toward matters contained in the pleadings.”). Pleadings consist of only a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, and a third-party answer. Fed. R. Civ. P. 7. Discovery responses are not pleadings. The Court, therefore, will consider whether the matters challenged by Plaintiff should be overruled or waived and whether Defendant should be required to supplement its answers to Plaintiff's interrogatories and document requests and/or produce responsive documents; it will not strike the matters of which Plaintiff complains. [4] The second paragraph of the “Preliminary Statement” purports to reserve Defendant's right to supplement its discovery responses. Such a reservation, however, is unnecessary as Federal Rule of Civil Procedure 26(e) imposes on every party a duty to supplement discovery responses. [5] Plaintiff's Motion for Class Certification (DE 70) is pending before the District Judge. [6] Defendant states that it was under the impression that when counsel conferred, they had agreed to narrow the scope of the discovery requests to Meltdown capsules. On this issue, the only record evidence of which the Court is aware is a July 16, 2013 email (DE 43-6) in which Plaintiff's counsel confirmed to Defendant's counsel that Plaintiff had agreed to Defendant limiting the product scope to capsules (and to its temporal limitation) so that Defendant would supplement its discovery responses. But Plaintiff's counsel also informed Defendant's counsel that Plaintiff would be moving the Court to establish a broader scope. [7] Federal Rule of Civil Procedure 26(a)(4) requires that initial disclosures merely be “signed,” while Federal Rule of Civil Procedure 33(b)(3) requires a party to sign interrogatory answers “under oath.” Additionally, Federal Rule of Civil Procedure 26(g) permits an attorney to sign initial disclosures, while Federal Rule of Civil Procedure 33(b)(3) requires a party to sign substantive answers to interrogatories. [8] Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires that a party disclose only the name, last known address, and telephone number of individuals likely to have discoverable information and the subject of that information. [9] At the time Defendant responded to these Interrogatories (on June 28, 2013), the deadline for completing expert discovery was December 20, 2013. See Scheduling Order (DE 20). On September 4, 2013, the District Court extended the deadline for completing expert discovery to January 9, 2014 (DE 39). Defendant supplemented its Interrogatory answers on September 5, 2013, at which time Defendant continued to assert that the expert Interrogatories were premature. [10] The Court's Scheduling Orders provide only a date for completing expert discovery. They do not set specific dates for the exchange of expert disclosures, leaving it to the parties to make their expert disclosures in sufficient time to complete expert discovery (including deposing experts, if necessary) by the deadline. In their filings relating to the instant motion, each party proposed deadlines for expert disclosures. Those proposed deadlines, however, have passed. In November 2013, Defendant's counsel inquired when Plaintiff would make its expert disclosures and proposed dates for doing so. Plaintiff's counsel responded that it would make its expert disclosures pursuant to the time required by the Federal Rules of Civil Procedure. Rule 26(a)(2)(D) requires that absent a stipulation by the parties or a court order, the parties are to exchange expert disclosures at least 90 days before trial, with rebuttal expert reports to be provided within 30 days of the opposing party's expert disclosures. In conformity therewith, Plaintiff served on Defendant three expert reports. Because Plaintiff's expert reports were served only 2 days before the (then) January 9, 2013 deadline for completing expert discovery, Defendant moved the Court to permit it to serve its rebuttal expert disclosures by February 6, 2014 – 30 days after Plaintiff served its expert disclosures, as permitted under Rule 26(a)(2)(D)(ii). Defendant additionally requested that the Court extend all other deadlines by 90 days. On January 16, 2014, the District Court entered an Order (DE 103) extending the deadline for completing expert discovery to February 6, 2014; it declined to extend any other deadline, and it did not set a specific date for Defendant to serve its rebuttal expert reports. [11] In its response to the instant Motion to Compel, Defendant limited its argument with respect to Request No. 2 to the reasons that it should not be compelled to produce documents pertaining to its formula. The Court will address this argument when considering Request No. 31. [12] Defendant has provided to Plaintiff a privilege log identifying these documents. [13] The Court notes that at least some of the documents responsive to Request No. 17 (which seek, inter alia, agreements with third parties for the sale and marketing of Meltdown) were heavily redacted and are the subject of Plaintiff's (pending) Motion to Compel Production of Unredacted Documents (DE 75). [14] The Court finds that Request 30 is neither vague nor overly broad. Accordingly, those objections are overruled. [15] Defendant has not identified any specific agency rule governing confidentiality. [16] According to Plaintiff, this is a one-page document that lists Meltdown capsules ingredients (without amounts) since the product was first manufactured. The record does not reflect whether Defendant produced any document other than the ingredient list responsive to Request No. 31.