PETER WACHTELL, an individual, Plaintiff, v. CAPITAL ONE FINANCIAL CORP., a Delaware corporation; and CAPITAL ONE SERVICES, INC., a Delaware corporation, Defendants Case No. CV 03-267-S-MHW United States District Court, D. Idaho Filed May 09, 2006 Williams, Mikel H., United States Magistrate Judge ORDER *1 Currently pending before the Court for its consideration are thirteen discovery motions. The Court heard oral argument on the motions on February 21, 2006, and having reviewed all of the submissions, makes its rulings as follows. I. Introduction. By way of background, before Wachtell became involved with Capital One, he was a co-founder and co-owner of American Direct Credit, LLC, which employed approximately 200 people in Boise, Idaho. Wachtell and his business partners agreed to sell this business to Capital One in 1999, and Wachtell agreed to become a Capital One employee to ensure a smooth transition of his company into the Defendants' structure. As a Capital One employee, Wachtell was to be paid an annual salary of $1.00. Starting in 2000, Wachtell asserts that Capital One and he agreed that he should take on the duties of exploring new business ventures that Capital One could pursue. In 2001, Wachtell asserts that a business idea was developed, labeled “Project Street,” and that a partnership was developed between Wachtell and Capital One for the Project Street venture. A “Letter of Understanding” agreement was entered into between Wachtell and Capital One which included a provision for how profits, losses, and expenses were to be split. Wachtell alleges that he devoted time, space, and resources to the development and implementation of Project Street. On February 21, 2003, the Defendants terminated their relationship with Wachtell due to an alleged “conflict of interest” and Capital One allegedly informed Wachtell that it would no longer pursue the partnership or the marketing opportunities developed in Project Street. Wachtell has alleged that the Defendants breached the partnership agreement and further that the Defendants have continued to pursue the marketing opportunities that were the subject of the agreement. II. Motions relative to discovery sought from Plaintiff and non-parties (re: docket nos. 166, 179, 190, 191, and 198). The Court will take up these five motions as a group. The motions have a common objective in that the Defendants are seeking information about Wachtell's involvement in other business entities in order to dispel the notion that Wachtell devoted full time work to Capital One on the Project Street matter. Capital One suspects that Wachtell spent more time taking care of other business matters rather than devoting himself to Project Street. A. Defendants' motion to compel Wachtell and three non-party witnesses (re: docket # 166). Defendants move to compel Wachtell to further respond to their discovery requests on the grounds that he has allegedly failed to produce documents, has withheld documents, and has provided incomplete responses to requests for production and three sets of interrogatories. Further, Defendants have moved to compel production of documents from non-party witnesses Steve Hardesty, Sherri Randall, and Richter Stuart Todeschi, PA (“Richter”). Steve Hardesty is one of Wachtell's business attorneys at Hawley Troxell; Sherri Randall is a CPA in Eagle, Idaho; and Richter is a CPA firm in Boise. In response to these subpoenas, this group filed motions to modify the subpoenas, to quash, and for a protective order (docket nos. 190, 191, and 198). *2 In his initial response to the Defendants' discovery requests, Wachtell objected to many of the requests as being over broad, burdensome, having been previously produced, or being privileged in nature. In response to the motion, Wachtell explains that he provided 13,000 pages of documents in the form of initial disclosures in June, 2003, and he has supplemented his responses. As for the subpoenas submitted to the non-party witnesses, Wachtell states that the Defendants seek information about 45 other business entities in 75 requests. Wachtell states that although he provided the business organization formation documents for all of the entities, none of them are relevant to this litigation. He further argues that it would be burdensome to comb through the materials that exist to pull out the information that would be responsive to the Defendants' requests because his two local accountants possess 275 boxes of information relative to other business organizations he is involved in, and his business lawyers possess 160 boxes of information, for a total of 435 boxes. He maintains that much of what is contained in the boxes is protected from being produced by privilege. Defendants argue that their motion to compel is necessary to test Wachtell's veracity and trustworthiness by delving into areas about his education, his success as an entrepreneur before he came to Capital One, and his possession of multiple foreign passports. The Defendants assert that, in particular, Wachtell is using his accountants to hide business documents because he has them maintain documents that are not usually maintained by a CPA. Also, they argue that Wachtell's blanket assertion of privilege is improper because factual materials would not be covered by the privilege and can be divulged. Defendants also raise several other issues. First, they want Wachtell to provide factual evidence of his damage claims, which he has so far failed to do, and they want this information before they depose him again. Second, Defendants assert that Wachtell has only provided partial tax returns for the years 1999, 2000, 2001, 2002, and 2003. Therefore, they request an order compelling Wachtell to produce the entire returns so that they may verify that all relevant documents reflecting his business activities were produced. Third, Defendants assert that Wachtell has refused to provide them with information about his expert(s). And, finally, Defendants want attorneys fees. B. Basis for relief requested against non-party Prehn (re: docket no. 179). Defendants seek information about Wachtell's outside business activities from Wachtell's main business partner, Toby Prehn, for the purpose of verifying whether Wachtell really spent all his time working on Project Street during the time he was “employed” by or partnered with Capital One. Defendants assert that Prehn is much more than a disinterested third-party witness, that he in fact has a financial interest in this case, and is a “silent” Plaintiff. The subpoena served on Prehn includes 32 separate request seeking, among other things: 1) all documents relating to any business activity of any entity (45 of which are identified by name) with which Wachtell has been affiliated with for the past eight (8) years; 2) all documents relating to any partnerships or businesses that Wachtell has been involved in since May, 1999; and 3) all documents relating to any litigation that Wachtell or any of his affiliated entities were involved with in the past eight (8) years. C. Bases for relief requested against and by non-parties Hardesty, Randall, and Richter (re: docket nos. 190, 191, and 198). Non-party witness Hardesty was the recipient of a subpoena containing 34 requests for documents spanning an 8-year time period, relating to 45 entities. He states that his firm has 166 boxes relating to transactional work performed on behalf of Wachtell and Wachtell's business partner Prehn. Hardesty argues that the requests infringe upon the attorney-client privilege and the attorney-work product privilege, in addition to being unduly burdensome. Hardesty requests the entry of a protective order which would provide that he only be required to produce non-privileged documents regarding Project Street in response to the subpoena, and that the subpoena be quashed in all other respects. *3 Non-party witness Randall also received a subpoena containing requests for documents spanning an 8-year time period, relating to 45 business entities. She possess 250 boxes of accounting documents that would relate to the requests in the subpoena. Randall states that the vast majority of the accounting documents she possess are irrelevant to this case, are unrelated to Project Street, and would involve matters that would be subject to claims of privilege by Wachtell and others. Non-party witness Richter states the same objections as Randall. The Richter firm has 25 boxes of documents. Defendants argue that if Wachtell's lawyers and accountants have amassed 435 boxes of records pertaining to business activities, then there might be records in there to disprove Wachtell's assertions that he was working for Capital One on Project Street full time for four years. (It should be noted that all three non-party witnesses were identified in Wachtell's initial disclosures as “person[s] likely to have discoverable information.”) D. Applicable discovery rules. Fed. R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, ....” Further it provides that the court may order the production of relevant evidence which “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(2)(iii) further provides that limitations can be placed on discovery where “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, ....” E. Analysis as to motion to compel against Wachtell. In this instance, the Court does not find that delving into more than 45 other business entities that Wachtell has been involved in at one time or another is likely to lead to relevant evidence, let alone lead to the discovery of admissible evidence. There is no evidence in the record that Wachtell was required to work for Capital One on Project Street “full time” to the exclusion of all other private business activities. From the time Wachtell started working with Capital One in 1999, until the time the relationship was severed in 2003, he was never paid a salary or compensated more than $1.00 per year. At first, he worked for Capital One as an employee to ensure the smooth transition and assimilation of his former company into the Capital One structure. Later, when Wachtell entered into a partnership arrangement with Capital One for the development of Project Street, he was only going to be compensated based on the development of a profitable product, or he was going to pay for a portion of losses, in accordance with the terms of the agreement. Regardless, it would be nonsensical for Capital One to expect that any businessman would work with them for four years, and perform product development for two or more of those years, for essentially zero compensation, to the total exclusion of any other business activities where that businessman might generate some income. There is no indication in the Letter of Understanding between Wachtell and Capital One that Wachtell was to work on Project Street to the exclusion of all other private business activities. In addition, if the evidence as to other business entities that Wachtell is or was involved in had some small relevance to this case, then the burden on the non-party witnesses to produce that evidence still outweighs any benefit there would be as far as it leading to relevant or admissible evidence for trial purposes. Therefore, this aspect of Defendants' motion will be denied. Unless and until Wachtell places at issue his other business activities or entities, e.g. that he suffered damages to his other businesses or business activities as a result of his termination from Capital One, then there is no reason to explore this area. *4 As to the issue of Wachtell's tax returns, Wachtell's counsel represented at the hearing on this matter that complete copies of Wachtell's personal tax returns have been produced. The Court will accept Mr. Dillman's representation as true on the ground that he is an officer of the Court. The Court will deny that aspect of the Defendants' motion which seeks copies of tax returns from Wachtell's other business entities. As to the issue of documents that Wachtell has said he would provide, either in response to discovery requests or at deposition, but has not yet followed up on, the Court will grant this aspect of the Defendants' motion. Wachtell is directed to go through his deposition testimony and all of his responses to Defendants' discovery requests, and create a list that specifically identifies every documents that he said he would provide to the Defendants relative to Project Street and has not yet provided. For any documents that have not already been provided, this will be indicated on the list next to that document entry and those documents shall be produced within thirty (30) days of the date of this Order. Defendants' request for attorneys fees is denied. F. Analysis of motion to compel as to non-party Prehn. This motion is essentially duplicative of the motion to compel that the Defendants brought against Wachtell (docket # 166). The Court already ruled that the Defendants were not entitled to obtain the discovery about Wachtell's other business affairs from Wachtell. It would be inconsistent for the Court to allow the Defendants to obtain the same information from Wachtell's business partner, and therefore, this aspect of the Defendants' motion is denied. To the extent that the Defendants seek documents relative to Project Street, and to the extent that the requests they have propounded to Prehn are not duplicative of the requests propounded to Wachtell, the Court will grant that aspect of the Defendants' motion as to documents that Prehn has not already provided. As did Wachtell, Prehn has said he would provide, either in response to discovery requests or at deposition, certain documents related to Project Street, but may not have followed up on providing everything. Prehn is therefore also directed to go through his deposition testimony and all of his responses to Defendants' discovery requests and create a list of every document that he said he would provide to the Defendants relative to Project Street and has not yet provided. For any documents that have not already been provided, those documents shall be so identified on the list and they shall be produced within thirty (30) days of the date of this Order. If any of the documents requested from Prehn are duplicative of the documents that were requested from Wachtell, Prehn may note that on the list and will not be responsible for providing another copy of the same documents. G. Analysis of motions to compel, quash or to modify as to non-parties Hardesty, Randall, and Richter. Consistent with the rulings already stated and for the same reasons, the non-parties' motions will be granted in part and denied in part. The motions are granted to the extent that the non-party witnesses do not have to comply with those portions of the subpoenas which seek information relative to any other business entities or dealings that Wachtell was involved in aside from Project Street. However, the motions are denied to the extent that the non-party witnesses will need to produce any non-privileged documents in their possession regarding Wachtell's involvement with Project Street that the non-party witnesses might have prepared and/or maintained. *5 In order for this discovery to proceed in an orderly fashion and to be the least burdensome as possible on the non-party witnesses Hardesty, Randall, and Richter, the Court will require defense counsel to come to Boise to meet in person to confer with Wachtell's counsel and the attorneys for the non-party witnesses. The purpose of the meeting will be for defense counsel to identify more specifically what documents the Defendants want to discover from these particular non-party witnesses, i.e. what documents the Defendants believe the non-party witnesses possess relative to Project Street that the witnesses should produce. Counsel for the Plaintiff and the non-party witnesses will attempt to become familiar with the types of documents generally that the non-party witnesses possess beforehand in order to facilitate this meeting. The non-party witnesses will then review their files to find the requested Project Street-related documents. All responsive, relevant documents will then be submitted to Wachtell's counsel to coordinate the production of documents. For any documents that would be responsive to the Defendants' request but for which the non-party witness believes a privileged should be claimed, they must also submit copies of those documents to Wachtell's counsel, who will then create a privilege log to submit to the Defendants along with copies of all other non-privileged documents located by the non-party witnesses. Counsel shall work together to complete these tasks within thirty (30) days from the date of this Order. III. Motions to quash subpoenas (re: docket nos. 240, 260, 262, 263, and 265). Wachtell and various non-parties seeks to quash 26 subpoenas which were served on the non-parties for production of documents and business records. The movants contend that the documents were served on or after the discovery cut-off date and a majority were issued from the District of Columbia, a jurisdiction in which only one of the subpoenaed non-party witnesses resides. In Plaintiff's motion, emphasis is also placed on the argument that the subpoenas are overbroad, unduly burdensome, and intrusive into Wachtell's financial affairs and activities and have nothing to do with any legitimate issues in this action. As to the timeliness issue, the Court will first note that on October 6, 2005, an Amended Scheduling Order was entered, pursuant to the parties' stipulation. That Order provided that: 1.A. Factual discovery in this matter shall be completed on or before December 15, 2005. (Docket # 158, emphasis in original.) It is evident that the Order did not state that discovery could be “commenced” on December 15, rather it was to be “completed” by that date. Any request to extend the discovery cut-off date to allow additional discovery beyond that date would have to be presented to the Court by motion. No motion was filed by either party requesting an extension of the stipulated discovery deadline. Defendants' subpoenas were therefore untimely. See: See Gavenda v. Orleans County, 182 F.R.D. 17, 20 (W.D.N.Y. 1997) (document request served two days before discovery cut-off held untimely); Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999) (Rule 45 subpoenas are subject to the time constraints that apply to all other methods of formal discovery and subject to the same discovery cut-off date); and Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir. 2003) (because Rule 34 allows a party 30 days to respond to requests for production, requests must be served at least 30 days prior to the discovery cut-off). The next question is whether the subpoenas directed to non-parties for production of documents under Fed. R. Civ. P. 45 is part of the overall discovery process. The Court has always been of the view that obtaining business records and other documents by the issuance of a subpoena constitutes a discovery method within the meaning of the Federal Rules, and as expressly provided for under Fed. R. Civ. P. 26(a)(5) (specifically referencing Fed. R. Civ. P. 45(a)(1)(C)). This is in accordance with the majority view of courts that have addressed this issue. See, e.g., Dreyer v. GACS, Inc., 204 F.R.D. 120, 122 (N.D. Ind. 2001) (most courts hold that a subpoena seeking documents from a third-party under Rule 45(a)(1)(C) is a discovery device and therefore subject to a scheduling order's general discovery deadline). *6 The Court concludes that the 26 subpoenas set forth at Exhibit 5 to the Affidavit of Kirk D. Dillman (docket # 240-4) were discovery devices of the type contemplated within the Federal Rules but were not timely under the Court's Amended Scheduling Order because compliance with the subpoenas would have occurred almost a month after discovery closed. However, this is not the only defect in regard to the subpoenas issued by the Defendants. As provided in Fed. R. Civ. P. 45(b)(1), prior notice of any commanded production of documents and things before trial shall be served on each party in the manner prescribed in Rule 5(b). The purpose of the rule is to allow parties notice of discovery efforts being undertaken by the opposing side. This is of particular importance in this case because the subpoenas were issued for the purpose of obtaining information from non-party witnesses intimately associated with Wachtell on a professional level, i.e., Wachtell's tax lawyers, accountants, and other professionals regarding his “outside” business activities. This is clearly the type of notice Wachtell was entitled to receive because he has a stakeholder's interest in the discovery of this information. However, no notice was provided and the Defendants violated this express provision of the Federal Rules. However, probably the most egregious violation of Rule 45 was the manner in which Defendants issued the majority of the subpoenas. Rule 45(a)(2)(C)directs that “a subpoena for production or inspection” must issue from the court “for the district where the production or inspection is to be made.” Rule 45(b)(2) also imposes territorial limits upon the area in which a subpoena may be served, directing that: [A] subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the ... production, or inspection specified in the subpoena or at any place within the state where a state statute or rule of court permits service of a subpoena issued by a court of general jurisdiction sitting in the place of the ... production, or inspection in the subpoena. The basis for the territorial limitation on service of a subpoena for the production of documents is that it protects non-witness from incurring the expenses of having to litigate the validity of a subpoena in some distant jurisdiction, and it also give authority to the district court under whose auspices the subpoena was issued to compel discovery and issue sanctions for non-compliance. See Natural Gas Pipeline Co. Of Am. v. Energy Gathering Ltd., 2 F.3d 1397, 1406 (5th Cir. 1993) (federal court sitting in one district cannot issue a subpoena duces tecum to a non-party for production of documents located in another district); McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) (subpoena issued out of New York rather than federal court in Tennessee, where production and inspection was to be made, was invalid); Echostar Communs. Corp., v. News Corp. Ltd., 180 F.R.D. 391, 397 (D.Colo. 1998)(subpoenas issued from the District of Colorado were invalid insofar as they sought production of discovery in Georgia and New Jersey from non-parties). During oral argument in this case, the Court questioned Defendants' counsel about what legal authority they relied upon in support of their position, using as an example a subpoena issued out of a district court in Florida and served on a non-party in Alaska, requiring production of documents in Florida. Counsel responded that a recent case from the Third Circuit clearly supported their position, citing Hay Group, Inc., v. E.B.S. Acquisition Corp., 360 F.3d 404 (3rd Cir. 2004), a decision authored by now Supreme Court Justice Alito. If this case stood for the proposition being advanced by Defendants, it would run contrary to this Court's long time understanding of the purpose and intent of Rule 45(a)(2)(C), and the Court deferred ruling until it could carefully study the decision. Having now reviewed that decision, the Court finds that Defendants did not accurately report the underlying basis for that decision. *7 The case arose out of an appeal from the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, Pennsylvania. An arbitration proceeding had been commenced in Philadelphia against a former employee that the Hay Group believed had violated a non-solicitation clause in a separation agreement. After leaving Hay Group, the employee worked for PriceWaterhouseCooper (“PWC”) until it sold the division where the employee worked to E.B.S. To gain information for the arbitration proceedings, Hay Group served subpoenas on E.B.S. at its Pittsburgh office and on PWC at its Philadelphia office. Some of PWC's documents were physically located outside of the territorial jurisdiction of the United States District Court for the Eastern District of Pennsylvania. On appeal, PWC only, argued that it could not be required to go outside of the territorial jurisdiction of the Philadelphia district court to retrieve documents so that they could be produced within the territorial jurisdiction of the court. The Third Circuit, citing the Notes to the 1991 Amendment to Rule 45, found that it was clear that the person subject to the subpoenas could be required to produce the material in that person's control, whether or not the materials were located within the district or within the territory within which the subpoena could be served. The Third Circuit also quoted with approval 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 2456 at 31 (1995 & 2003 Supp) (“Even records kept beyond the territorial jurisdiction of the district court issuing the subpoena may be covered if they are controlled by someone subject to the court's jurisdiction.”). The whole point, apparently missed by the Defendants' in reading this case, is that the subpoenaed party, PWC, was within the territorial jurisdiction of the United States District Court for the Eastern District of Pennsylvania at the time the subpoenas were served on PWC at its office in Philadelphia. The only issue was whether PWC could be required to go outside of that court's territorial jurisdiction to obtain and produce the records they admittedly had control over. The answer was obviously yes. The location of the issuing courts and the location of the subpoenaed parties when they were served in this case bears no similarity to what occurred in the Hay Group case. At least 18 of the 26 subpoenas issued by the Defendants were issued under the auspices of the District Court for the District of Columbia, seeking documents from non-parties located in Idaho, California, Nevada, Arkansas, New Jersey, Illinois and Virginia. The efforts of the Defendants to try and persuade this Court that the Third Circuit had somehow fashioned a new rule providing for nationwide service of subpoenas, from Florida to Alaska, under Rule 45 is completely unavailing. If the Defendants' represented analysis and application of Rule 45 were accurate, it would turn the spirit and purpose of Rule 45(a)(2)(C) and (b)(2)on its head. The next matter to address is whether the non-parties are entitled to sanctions for the subpoenas that were served by the Defendants. Rule 45(c)(1) requires, “a party or an attorney responsible for issuance and service of a subpoena to take reasonable steps to avoid imposing undue burden and expense on a person subject to that subpoena.” The rule also requires the Court to enforce this duty and to impose sanctions when an attorney or party breaches this duty. See also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2463 (1995). As noted by Wright & Miller, along with the expanded power of the attorney to issue subpoenas, the liability of the attorney for misusing Rule 45 has also been expanded. It requires those issuing and serving a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person subject to a subpoena. *8 Based on the foregoing, the Court concludes that: 1) the untimely subpoenas shall be quashed; and 2) sanctions against the Defendants are required under Rule 45(c)(1). Counsel representing the 26 entities subpoenaed on or after the discovery cut-off date, and whose subpoenas were improperly issued out the United States District Court for the District of Columbia, shall, within 15 days of the date of this Order, submit their requests for attorney fees and costs. Defendants shall have 15 days in which to make any objection as to the reasonableness of the requested fees and costs. IV. Defendants' motion to continue depositions (re: docket no. 217). Defendants move for an order compelling Wachtell and Prehn to resubmit to deposition. Prehn and Wachtell have so far been deposed for two days each by defense counsel. Defendants assert that they were “improperly instructed and coached not to answer” certain questions seeking factual information regarding Wachtell's claims and questions on issues “for which Wachtell long ago voluntarily waived attorney-client privilege.” Defendants had also previously mentioned that they wanted to further depose Prehn and Wachtell once they received the documents from the 26 subpoenas that they served. A. Witness “coaching” and objections. The Court has reviewed the deposition transcripts in full of Wachtell's and Prehn's testimony that were submitted by Plaintiff's counsel (docket # 288), which were of assistance to the Court in providing the “big picture” of what occurred. This aspect of the motion is directed more at Prehn than it is at Wachtell because it appears that there were more instances in the transcript where counsel asserted objections during Prehn's testimony regarding Prehn's personal knowledge. For example (from Prehn's deposition): Q: It says in paragraph 19 [of the complaint] that the damages resulting, from the litany that I read, exceeds $36 million. Do you see that? A: Yes. Q: Do you have any knowledge indicating what that $36 million reflects? Obj: To the extent that you're asking him to interpret a complaint, you are. If your testimony is derived from communications with counsel, instruct you not to answer. A: It is probably part of the discussion I've had with our lawyers on this subject. Q: Have you ever heard that anyone valued any internal savings of any kind at $36 million? A: Yes. Q: Who? A: Well, I think Kenneth Xu corrected the math in an analysis that had been done by Toby Shum and to a lesser degree Frank Rotman. When he corrected the math it showed $36 million a year of savings for Capital One employing the Project Street intellectual property.[1] Another exchange from the Prehn deposition went as follows: Q: Do you believe that Mr. Wachtell has an ownership interest in any intellectual property developed by Project Street? A: Yes. Q: And what is every fact that supports that belief? Obj: Objection to the extent it calls for privileged attorney-client communications. A: Well, I guess the facts supporting that would be witnesses that I've heard, my conversations with Mr. Wachtell, various documents that I've seen. But I don't have a photographic memory for what those facts and documents would be. Q: What conversations have you had with Mr. Wachtell that help frame the basis of your belief that he has an ownership interest in intellectual property developed by Project Street? A: Conversations I had about the partnership with Capital One.[2] While it is true that counsel for Prehn asserted objections during Prehn's testimony a number of times, and often having to do with divulging information involving attorney-client privilege, but Prehn's counsel did not prevent Prehn from answering. While the Defendants cite a number of examples from the deposition transcripts of what they assert is improper conduct by the Plaintiff's counsel, the Defendants fail to present the complete line of questions and answers in their briefs. It is further difficult to discern, at least from reading the transcripts, how the stated objections resulted in “coaching” the witness. *9 For the purposes of Defendants' motion to further depose Wachtell and Prehn on the ground that counsel “coached” or improperly directed the witnesses not to answer, a reading of the transcript does not bear this out. Both Prehn and Wachtell were allowed to answer the questions posed to them after their counsel placed objections on the record. They appear to have testified to the best of their recollections about their first hand knowledge of what occurred with Project Street. Therefore, the Court finds that Plaintiff's counsel did not obstruct the depositions of Prehn or Wachtell by improper coaching, and that further depositions of either witness on this basis will be denied. B. Waiver of privilege subject matter. The Defendants also argue that counsel for Wachtell improperly objected and instructed Wachtell not to answer questions on issues that Wachtell had “long ago voluntarily waived attorney-client privilege.” The specific subject matter of the deposition questioning arose out of an e-mail that Wachtell sent to a Capital One employee, John Hedden, on February 4, 2003. In the e-mail, Wachtell reiterates his understanding of the legal advice that had been given to him by his attorney, Steve Hardesty, about the Letter of Understanding entered into between Wachtell and Capital One to undertake Project Street and the issue of conflict of interest. At Wachtell's deposition, defense counsel began a line of questioning about that e-mail. One of the questions asked by defense counsel was “Is this a summary of what you were being told by Mr. Hardesty?,” which Plaintiff's counsel objected to to the extent that the answer called for attorney-client communications. Defense counsel argued that the privileged had been waived because of the e-mail, but Plaintiff's counsel's position was that the questions that were being asked were for information that was broader than that and not limited to the information contained in the e-mail. The e-mail that Wachtell wrote to the Capital One employee was a reiteration of Wachtell's counsel's conclusions, as Wachtell understood them to be. Wachtell did not actually reveal the underlying communications that he had with Hardesty and, in that respect, the privilege was not waived. The Court finds that just because Wachtell revealed his legal position, as he understood it, he did not waive the attorney-client privilege as to all legal advice or the communications that he received from Hardesty on those issues. If that were true, then every time an attorney sent a demand letter to an opposing party or counsel, then privilege would be waived, which is certainly not the case. Accordingly, this aspect of the Defendants' motion is also denied. C. Other business entities. The Court previously ruled that the 26 subpoenas served on the non-party witnesses seeking information about Wachtell's other business dealings or entities were quashed. Therefore, it follows that the Court will also disallow the Defendants from taking further deposition testimony from Prehn or Wachtell on that subject. Accordingly, this aspect of the Defendants' motion is denied. D. Trial testimony. While the Court has denied the Defendants' motion to require either Wachtell or Prehn to submit to further deposition, at the same time, at trial, if either Wachtell or Prehn tries to testify about new areas that they declined to testify about during deposition based on counsel's instruction, the Court will not allow that testimony to be heard. V. Defendants' motion for issuance of preservation order, etc. (re: docket no. 239). Defendants move for the issuance of a preservation order and an order appointing a neutral computer forensics expert mutually agreeable to both parties to assist in the preservation and retrieval of electronic evidence from Wachtell's and Prehn's computers and computer storage media. Defendants assert that Plaintiff and his business partner Prehn have failed to preserve evidence and may have and may continue to destroy evidence critical to the Defendants' defenses and counterclaims. *10 After a discussion was held on the record at the hearing, Plaintiff's and Defendants' counsel indicated that they are willing to stipulate to a preservation of electronic evidence order. The electronic evidence to be produced by Wachtell and Prehn shall be limited to information related to Wachtell's employment with Capital One and Project Street for the years 1999 through February, 2003. The Defendants have agreed to bear all costs associated with the production of this information, which shall occur as follows: A. Defendants are to draft a preservation of electronic evidence order and present it to Plaintiff's counsel for review and stipulation. B. The order shall include a search protocol designed by an IT professional under which Wachtell's and Prehn's computers (e.g. personal computers and laptops), and personal electronic devices (e.g. Blackberries, etc.), will be searched for information by Plaintiff's counsel or their designee. C. The data that the Court is ordering Wachtell and Prehn to produce is: 1. A copy of all data, documents, etc. that Wachtell retained from the Capital One laptop following his termination, which has since been copied to a computer in the possession of Plaintiff's counsel, and which has not already been produced. 2. A copy of all data, documents, etc. pertaining to Capital One and/or Wachtell's employment or partnership with Capital One. 3. A copy of all data, documents, etc. pertaining to Project Street. D. Plaintiff's counsel shall have the opportunity to review all materials before they are produced to cull out privileged documents. For any documents not produced on the basis of privilege, Plaintiff's counsel shall create a privilege log to submit to Defendants with the documents. E. After production is complete, Plaintiff's counsel may submit an affidavit of the costs associated with producing this information to defense counsel for payment. VI. Plaintiff's motion to compel (re: docket no. 182). Plaintiff seeks an order requiring the defendants to produce: 1) complete and unredacted copies of all Quarterly Business Reviews (“QBR”) prepared by Capital One for its various lines of business since 1999, and the United Kingdom equivalent of the QBRs; 2) documents or a 30(b)(6) witness to explain the nature of the relationship between Capital One Services, Inc. and Capital One Financial Corporation; and 3) documents relating to Capital One's contract with Trilegiant and any communications relating to the services to be provided under that contract. A. Quarterly Business Reports. Plaintiff made previous discovery requests seeking information on “bad rate models” from Capital One. Plaintiff's position is that Project Street provided significant lift to Capital One's net present value and according to some testimony and documentary evidence, this lift was reflected in the QBRs. The Defendants deny that this was or is the case and therefore argue that they should not have to produce the QBRs. Under Fed. R. Civ. P. 26(b)(1), a party may obtain discovery regarding any matter that is relevant to a claim and/or that could lead to the further discovery of admissible evidence. The Defendants are not claiming that the QBRs are privileged material. The Defendants might be arguing that the QBRs are irrelevant, but the Plaintiffs do not have to take the Defendants' word for it in view of the possible significance of the documents based on independent testimony and documentary evidence that Plaintiff believes he has. Accordingly, the Court will grant this aspect of the Plaintiff's motion and the Defendants shall produce all QBRs, including the United Kingdom equivalents, for all quarters from December 31, 2001, through December 31, 2004. B. Corporate documents. *11 At the hearing, the defense counsel stated on the record that the relationship that exists between the two defendant entities is that Capital One Services, Inc. is a subsidiary of Capital One Financial Corporation. Plaintiff's counsel agreed to withdraw this aspect of his motion as long as it was agreed that either or both Defendants would pay the judgment if Plaintiff obtains one. C. Trilegiant contract. Plaintiff asserts that the Defendants currently have a contract with a company named Trilegiant to administer its rewards program. One of Trilegiant's functions is to provide “cleansed transaction data.” Wachtell believes that the manner in which the data is provided and then utilized by Capital One “borrows upon the insights and knowledge developed by the partnership or falls within the scope of its patent applications.” He therefore seeks to obtain a copy of the contract between Trilegiant and Capital One as well as “the specifications for the services to be performed thereunder.” The Defendants have stated that no Project Street information was provided to Trilegiant and that Capital One has no knowledge as to how Trilegiant compiles the data that it provides, stating “Trilegiant's intellectual property is thus a black box to Capital One.” As stated at the hearing, the Court will grant the Plaintiff's request to have Defendants provide a copy of the contract that was entered into between Capital One and Trilegiant as long as it does not contain any trade secrets and/or, if so, those portions could be redacted. The Court will deny the remainder of the Plaintiff's request, as to “the specifications for the services to be performed thereunder.” at this time. Plaintiff's counsel should wait and review the contract, then if it is not clear from the contract what services Trilegiant performs, counsel are directed to try to work something out either with the Defendants or with Trilegiant to obtain additional information. ORDER Based on the foregoing, the Court being otherwise fully advised in the premises, IT IS HEREBY ORDERED that: 1) Defendants' motion to compel discovery from Wachtell, non-party Hardesty, non-party Randall, and non-party Richter, et al. (docket # 166), filed December 6, 2005, is GRANTED IN PART and DENIED IN PART as discussed above, and: A. Plaintiff is directed to go through his deposition testimony and all of his responses to the Defendants' discovery requests for the purpose of creating a list of all documents that he said he would provide to the Defendants relative to Project Street and has not yet provided. B. For any documents that have not already been provided, those documents shall be so identified on the list, and Wachtell shall produce them, with a copy of the list, to the Defendants within thirty (30) days of the date of this Order. 2) Defendants' [second] motion to compel non-party Prehn to respond to discovery (docket # 179), filed December 12, 2005, is GRANTED IN PART and DENIED IN PART as follows: A. The motion is DENIED to the extent that subpoena issued to non-party witness Prehn relative to other business entities is quashed. B. However, to the extent that the Defendants seek documents relative to Project Street, and to the extent that the requests they have propounded to Prehn are not duplicative of the requests propounded to Wachtell, the Court will GRANT that aspect of the Defendants' motion as to documents that Prehn has not already provided. *12 C. Prehn is directed to go through his deposition testimony and all responses to Defendants' discovery requests for the purpose of creating a list of all documents that he said he would provide to the Defendants relative to Project Street and has not yet provided. D. For any documents that have not already been provided, those documents shall be so identified on the list and they shall be produced, with a copy of the list, within thirty (30) days of the date of this Order. E. If any of the documents requested from Prehn are duplicative of the documents that were requested from Wachtell, Prehn may note that on the list and will not be responsible for providing another copy of the same documents. 3) Plaintiff's motion to compel production of documents from Defendants (docket # 182), filed December 15, 2005, is GRANTED IN PART and DENIED IN PART as follows: A. The motion is granted to the extent that Defendants must provide copies of its QBRs, and the United Kingdom equivalents, for the quarters December 31, 2001, through December 31, 2004. B. Plaintiff withdrew his request for copies of certain Capital One corporate documents. C. The motion is granted to the extent that Defendants shall provide a copy of the contract that was entered into between Capital One and Trilegiant, as long as it does not contain any trade secrets and/or, if so, those portions could be redacted. D. The Court will deny the remainder of the Plaintiff's motion at this time. E. Defendants shall provide the items listed here within thirty (30) days of the date of this Order. 4) Non-party Hardesty's motion to quash and for protective order (docket # 190), filed December 27, 2005, is GRANTED IN PART and DENIED IN PART (see ¶ 7, supra). 5) Plaintiff's motion to quash and to modify subpoenas submitted to non-parties Hardesty, Randall, and Richter (docket # 191), filed December 27, 2005, is GRANTED IN PART and DENIED IN PART (see ¶ 7, supra). 6) Non-parties' Randall's and Richter's motion to modify subpoenas (docket # 198), filed December 28, 2005, is GRANTED IN PART and DENIED IN PART (see ¶ 7, supra). 7) As to the subpoenas directed to the non-party witnesses Hardesty, Randall, and Richter, and re: docket nos. 190, 191, and 198, the Court additionally directs the following: A) The motions are GRANTED to the extent that the non-party witnesses do not have to comply with those portions of the subpoenas which seek information relative to any other business entities or dealings that Wachtell was involved in aside from Project Street. B) The motions are DENIED to the extent that the non-party witnesses will need to produce any non-privileged documents in their possession regarding Wachtell's involvement with Project Street that the non-party witnesses might possess. C) In order for this discovery to proceed in an orderly fashion and to be the least burdensome as possible on the non-party witnesses, the Court will require defense counsel to come to Boise to meet in person to confer with Wachtell's counsel and attorneys for the non-party witnesses. D) This aspect of discovery will then be coordinated through Wachtell's counsel in the manner described in Section II.G. above, including the preparation of a privilege log, if necessary. E) Counsel shall work together to complete these tasks within thirty (30) days from the date of this Order. *13 8) Defendants' [third] motion to compel Plaintiff & Prehn to resubmit to deposition (docket # 217), filed January 3, 2006, is DENIED. 9) Defendants' motion for issuance of preservation order and for appointment of expert (docket # 239), filed January 18, 2006, is GRANTED, and: A. Defendants are to draft a preservation of electronic evidence order and present it to Plaintiff's counsel for review and stipulation. B. The order shall include a search protocol designed by an IT professional under which Wachtell's and Prehn's computers (e.g. personal computers and laptops), and personal electronic devices (e.g. Blackberries, etc.), will be searched for information by Plaintiff's counsel or their designee. C. The data that the Court is ordering Wachtell and Prehn to produce is: 1. A copy of all data, documents, etc., that Wachtell retained from the Capital One laptop following his termination, which has since been copied to a computer in the possession of Plaintiff's counsel, and which has not already been produced. 2. A copy of all data, documents, etc. pertaining to Capital One and/or Wachtell's employment or partnership with Capital One. 3. A copy of all data, documents, etc. pertaining to Project Street. D. Plaintiff's counsel shall have the opportunity to review all materials before they are produced to cull out privileged documents. For any documents not produced on the basis of privilege, Plaintiff's counsel shall create a privilege log to submit to Defendants with the documents. E. After production is complete, Plaintiff's counsel may submit an affidavit of the costs associated with producing this information to defense counsel for payment. 10) Plaintiff's motion to quash 26 untimely and over broad subpoenas (docket # 240), filed January 18, 2006, is GRANTED. 11) Non-party Thornton Byron's motion to quash subpoenas and joinder in related motions (docket # 260), filed January 31, 2006, is GRANTED. 12) Non-party Hennigan's motion to quash over broad and untimely subpoenas and for sanctions (docket # 262), filed January 31, 2006, is GRANTED. 13) Non-Party Givens Pursley's motion to quash subpoenas and for sanctions (docket # 263), filed January 31, 2006, is GRANTED. 14) Non-Parties' Aviation Finance Group, et al's., motion to quash and/or to modify subpoenas (docket # 265), filed January 31, 2006, is GRANTED. 15) The Court finds that imposing sanctions against the Defendants is warranted under Rule 45(c)(1). Accordingly, counsel representing the 26 entities subpoenaed on or after the discovery cut-off date, and whose subpoenas were improperly issued out the United States District Court for the District of Columbia, shall, within 15 days of the date of this Order, submit their requests for attorney fees and costs. Defendants shall have 15 days in which to make any objection as to the reasonableness of the requested fees and costs. IT IS SO ORDERED. DATED: May 8, 2006 [1] Prehn deposition, December 12, 2005, pages 175-76 9(emphasis added). [2] Prehn deposition, December 12, 2005, page 324-25 (emphasis added).