SHADRACH ENNIS, NICOLAAS VANLEEUWEN, and TERRANCE JESCLARD, individually and on behalf of all others similarly situated, Plaintiffs, v. ALDER PROTECTION HOLDINGS, LLC, a Delaware limited liability company; ADAM SCHANZ, an individual; ADAM CHRISTIAN, an individual; KYLE DEMORDAUNT, an individual; DANE MCCARTNEY, an individual; and DOES I–X, Defendants Case No. 2:19-cv-00512 United States District Court, D. Utah Filed February 08, 2021 Counsel Victoria Finlinson, Shaunda L. McNeill, Keith M. Woodwell, Matthew A. Steward, Clyde Snow & Sessions, Salt Lake City, UT, for Plaintiffs. Nathan L. Jepson, J. Ryan Mitchell, Andrew V. Collins, Mitchell Barlow & Mansfield PC, Salt Lake City, UT, for Defendants. Waddoups, Clark, United States District Judge ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL DISCOVERY RESPONSES *1 Before the court is Plaintiffs’ Short-Form Discovery Motion to Compel Discovery Responses, (ECF No. 77.) As explained below, the court GRANTS the Motion in part and DENIES in part. The court reserves ruling on several objections and instructs Defendants to file, on or before February 19, 2021, a submission with the court that addresses how they have complied with Fed. R. Civ. P. 26(b)(5)(A). Relevant Background On March 2, 2020, Plaintiffs filed their Amended Collective/Class Action Complaint against Defendants. (ECF No. 41.) On March 30, 2020, Defendants filed a Motion to Dismiss that Complaint. (ECF No. 50.) Relevant here, Defendants argued that “all of the Amended Complaint's class and collective class action claims should be dismissed because each Plaintiff waived the right to pursue class or collective claims against Alder and its officers” when they signed their respective 2017 Divisional Sales Manager Agreements. (See ECF No. 50 at 7.) On June 26, 2020, Plaintiffs filed a Motion to Amend Scheduling Order Deadlines, representing that “[t]he parties ... stipulate to the modifications of pending deadlines ....” (ECF No. 64 at 2 (bold added).) On June 29, 2020, based on Plaintiffs’ representation that the parties had stipulated to the Motion, Judge Pead entered the Amended Scheduling Order. (ECF No. 65.) On July 1, 2020, Plaintiffs filed a Notice of Error, informing the court that they had mistakenly indicated that the Motion was stipulated to when it was not. (ECF No. 66.) On July 1, 2020, Defendants filed an Opposition to the Motion to Amend Scheduling Order Deadlines. Defendants argued that “[i]t would be unduly burdensome to require Defendants to respond to discovery requests encompassing matters pertaining to class and collective action claims that Plaintiffs waived.” (ECF No. 67 at 3.) Plaintiffs filed their reply on July 8, 2020. Plaintiffs argued that by taking “the position that no scheduling order should be entered at all until their Motion to Dismiss is decided,” Defendants were effectively requesting “an across-the-board stay of discovery,” and argued that a stay was not warranted. (See ECF No. 69 at 2.) On July 31, 2020, the court entered an order granting Plaintiffs’ Motion in part, (ECF No. 71 at 3.) In that Order, the court noted that “Defendants [had] argued that ‘because of the pending potentially dispositive motion, the Court should not enter an amended scheduling order or permit discovery proceed until after the Motion to Dismiss is decided and the Court has determined whether any of Plaintiffs’ claims survive.’ ” (ECF No. 71 at 2 (citation omitted).) The court reasoned that “Defendants, by asking the court to not ‘permit discovery to proceed,’ are in essence, asking for a stay of discovery.” (ECF No. 71 at 2.) The rejected Defendants’ arguments, finding that Defendants had failed to meet their burden of demonstrating that a stay of discovery was warranted. (See ECF No. 71 at 3.) The court instructed the parties to meet and confer and submit an agreed upon schedule. (ECF No. 71 at 3.) *2 On August 17, 2020, the court entered the parties’ stipulated amended scheduling order, setting April 6, 2021 as the last day of fact discovery. (ECF No. 73 at 2.) On November 6, 2020, the court heard argument on Defendants’ Motion to Dismiss. On November 24, 2020, Plaintiffs filed their Short-Form Discovery Motion to Compel Discovery Responses. (ECF No. 77.) Plaintiffs moved “to compel Defendants to provide adequate responses to Interrogatories 2- 4 and RFPs 1-3 and 5-21.” (ECF No. 77 at 2.) Plaintiffs argued that “Defendants have withheld responsive information and documents based on groundless, boilerplate objections and based on the unfounded assumption that the class and collective action claims will not proceed.” (ECF No. 77 at 2.) Plaintiffs also “request[ed] an award of attorney fees incurred in meeting and conferring and compelling the requested discovery.” (ECF No. 77 at 3.) On December 2, 2020, Defendants filed the Opposition to Plaintiffs’ short-form Motion. Defendants argued that “Plaintiffs’ motion should be denied because it seeks to compel responses to requests that relate to claims that they have expressly waived in writing.” (ECF No. 78 at 1.) Defendants also argued that “Plaintiffs incorrectly suggest the Court has already determined that class discovery is permissible at this stage. Although the Court ordered the parties to confer and submit an amended case management schedule, the Court's order said nothing about the scope of permissible discovery.” (ECF No. 78 at 3.) Defendants also “ask[ed] the Court to deny Plaintiffs’ Motion and to award Defendants’ reasonable expenses incurred in opposing the Motion, including attorney fees.” (ECF No. 78 at 3.) On February 5, 2021, the court entered an order denying Defendants’ Motion to Dismiss Plaintiffs’ class and collective action claims. Analysis The court discusses (I) discovery directly related to Plaintiffs’ class claims, (II) discovery not directly related to Plaintiffs’ class claims, and (III) the parties’ requests for attorney's fees. I. Discovery Directly Related to Class Claims Plaintiffs argue that the Interrogatory 4 and RFPs 2–3, 5–7, 11–17 and 20 “seek class-wide information and documents.” (ECF No. 77 at 3.) The court agrees that these requests are related to Plaintiffs’ class claims. As discussed above, the court rejected Defendants’ argument that discovery should be stayed. Moreover, the court has entered an Order denying Defendants’ Motion to Dismiss Plaintiffs’ class and collective action claims. The court OVERRULES Defendants’ objections that they may withhold this discovery simply because it relates to Plaintiffs’ class claims. But Defendants have objected on another basis as well. More specifically, Defendants have objected to RFP Nos. 12–16 on the basis that those requests seek the production of privileged documents or communications. (See ECF No. 77-1 at 15–19.) Defendants do not identify the specific privileges they claim or any particularized facts from which the court can determine whether Defendants have a legitimate basis to assert the privilege. Federal Rule of Civil Procedure 26 provides that “[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged ... the party must” “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Based on the record before the court, Defendants did not describe the nature of the privileged documents or communications. If the required detail has been provided by the Defendants to the Plaintiffs by a privilege log or otherwise, it has not been provided to the court and the court cannot determine without additional facts whether the objection is well-taken. *3 On or before Friday, February 19, 2021, Plaintiffs must file a submission with the court that explains whether and how they have complied with Fed. R. Civ. P. 26(b)(5)(A). Because the court cannot determine at this time whether Defendants have complied with Fed. R. Civ. P. 26(b)(5)(A), the court defers ruling on Defendants’ objections until Defendants fully respond to Plaintiffs’ requests for discovery related to their class claims. The court orders, however, Defendants to respond fully to Interrogatory No. 4 and RFPs 2–3, 5–7, 11, 17, and 20. II. Discovery Not Directly Related to Class Claims Plaintiffs argue that “Defendants’ discovery objections are generic, lack specificity, and fail to indicate whether documents have been withheld.” (ECF No. 77 at 2.) Plaintiffs argue that “[a] responding party must ‘show specifically how each request is not relevant,’ ‘is overly broad, burdensome or oppressive,’ and must ‘attempt to articulate the particular harm that would accrue if the responding party were required to respond.’ ” (ECF No. 77 at 2–3 (quoting Smash Tech., LLC v. Smash Sols., LLC, 335 F.R.D. 438, 447 (D. Utah 2020)). Defendants argue that Plaintiffs’ reliance on Smash Tech is misplaced because “Defendants’ objections are detailed, specific, and substantive.” (ECF No. 78 at 2–3.) The court addresses the Defendants’ objections below. Plaintiffs have moved to compel Defendants to respond more fully to (A) Interrogatories 2–3 and (B) RFP 1, 8–10, 18–19, and 21. A. Interrogatories 2–3 1. Interrogatory No. 2 Plaintiffs requested that Defendants: Identify and describe in detail Alder's policies and practices for retaining and/or destroying emails, accounting records, and other company documents, including such factors as the length of time certain categories of documents are retained, when and how they are destroyed, whether backups or archives are maintained and for how long, and whether this policy has changed during the past six (6) years. Indicate whether there is a written policy regarding the same. (ECF No. 77-1 at 6.) Defendants answered: Defendants object that this Interrogatory is Vague and Ambiguous, Overbroad, and Unduly Burdensome in requesting a description “in detail.” Subject to and without waiving the foregoing objections, Defendants respond as follows: Alder generally retains company documents. Its company email system automatically purges emails after a specified period of time. Alder has implemented a litigation hold in connection with this lawsuit. (ECF No. 77-1 at 6.) Federal Rule of Civil Procedure 33(b)(4) provides that “[t]he grounds for objecting to an interrogatory must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). “[T]o meet the specificity requirement[ ] of” Rule 33, an “objecting party must explain how each objection applies to each specific discovery request.” Smash Tech, 335 F.R.D. at 447. “[T]he objector must state whether responsive materials were withheld and link each specific objection to what was withheld.” Id. When ... an objecting party makes no attempt to ‘show specifically how each interrogatory ... is not relevant or how each question is overly broad, burdensome or oppressive,’ and no attempt to ‘articulate the particular harm that would accrue if the responding party were required to respond to the proponent's discovery requests,’ but relies, instead, on ‘the mere statement that the interrogatory ... was overly broad, burdensome, oppressive and irrelevant,’ the response ‘is not adequate to voice a successful objection’; instead, the response is an unacceptable ‘boilerplate’ objection. *4 Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 186–87 (N.D. Iowa 2017) (citation omitted). In their Answer to Interrogatory No. 2, Defendants did not explain how the Interrogatory was unduly burdensome, overbroad, or vague and ambiguous. Nor did Defendants attempt articulate the particular harm that would accrue if they were required to respond to Plaintiffs’ discovery request. Nor did Defendants indicate whether a written policy related to Alder's policies for retaining/destroying emails existed. Defendants’ objection to Interrogatory No. 2 fails to satisfy the specificity requirement of Rule 33. The court OVERRULES Defendants’ objection to Interrogatory No. 2. 2. Interrogatory No. 3 Plaintiffs requested that Defendants: “[i]dentify and describe in detail all steps that Defendants or their agents have taken in connection with potential buyer(s) for Alder's accounts and concerning the negotiation of a purchase price for the accounts.” (ECF No. 77-1 at 6.) Defendants answered: Defendants object that this Interrogatory is Vague and Ambiguous, Overbroad, Unduly Burdensome, Irrelevant, and Privileged in requesting a description “in detail” and in requesting “all” steps taken to sell “accounts” during an undefined time period. Defendants further object that this request is Overbroad, Unduly Burdensome, and Irrelevant because it seeks information about the potential sale of accounts that were not generated by Plaintiffs. Defendants also object that this Interrogatory seeks information that, while irrelevant the Plaintiffs’ claims, is nevertheless highly confidential and trade secret. (ECF No. 77-1 at 6 (emphasis added).) Federal Rule of Civil Procedure 26 provides that “[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged ... the party must “expressly make the claim” and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Based on the record before the court, Defendants did not describe the nature of the privileged documents or communications. To the extent Defendants continue to withhold information responsive to Interrogatory No. 3 based on privilege, Defendants must comply with Rule 26(b)(5).[1] The court defers ruling on Defendants’ objection to Interrogatory No. 3 at this time. The court OVERRULES all objections not related to privilege. B. RFP 1, 8–10, 18–19, and 21. 1. Request for Production No. 1 Plaintiffs requested that Defendants: “Please produce an organization chart identifying Alder and all of its subsidiaries, parent companies, and other affiliates, including their relationship to one another.” (ECF No. 77-1 at 7.) Defendants responded: “Defendants object that this Request is Irrelevant, Overbroad, and Unduly Burdensome because the identities and relationships of Alder's subsidiaries, parent companies, and other affiliates are not relevant to the claims and defenses at issue in this case.” (ECF No. 77-1 at 7.) *5 Federal Rule of Civil Procedure 34 provides that “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B) (emphasis added). Rule 34 also provides that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). “[T]o meet the specificity requirement[ ] of” Rule 34, an “objecting party must explain how each objection applies to each specific discovery request.” Smash Tech, 335 F.R.D. at 447. Defendants’ boilerplate and conclusory objection to RFP No. 1 fails to satisfy the specificity requirement of Rule 34. And Defendants failed state whether responsive materials were being withheld based on their objection. The court OVERRULES Defendants’ objection to RFP No. 1. 2. Request for Production No. 8 Plaintiffs requested that Defendants: “Please produce all versions of Alder's Sales Rules in effect at any time during or after July 1, 2013.” (ECF No. 77-1 at 12.) Defendants responded “Defendants object that this Request is Overbroad, Unduly Burdensome, and Irrelevant in seeking documents beyond the statutes of limitations applicable to Plaintiffs’ claims. Defendants further object that Alder's sales rules are Irrelevant to the claims and defenses at issue in the case.” (ECF No. 77-1 at 12.) Defendants’ boilerplate and conclusory objection to RFP No. 8 fails to satisfy the specificity requirement of Rule 34. Further, Defendants’ objection assumes that they will prevail on their affirmative statute of limitations defense. That is not a valid objection for relevant discovery. And Defendants failed state whether responsive materials were being withheld based on their objection. The court OVERRULES Defendants’ objection to RFP No. 8. 3. Request for Production No. 9 Plaintiffs requested that Defendants: “Please produce all Radix content from July 1, 2013 to the present that concerns sales representative recruitment, compensation, loans/debts, expenses, codes of conduct, and duties.” (ECF No. 77-1 at 12.) Apart from boilerplate objections, Defendants objected on the basis that the request relates to class claims and on the basis that it seems information beyond the statutes of limitations applicable to Plaintiffs’ claims. (See ECF No. 77-1 at 12–13.) As discussed above, discovery related to Plaintiffs’ class claims will proceed. And as noted immediately above, Defendants’ argument related to their statute of limitations affirmative defense presupposes that they will prevail on that defense and is therefore not a valid objection. The court OVERRULES Defendants’ objection to RFP No. 9. 4. Request for Production No. 10 Plaintiffs requested that Defendants: “Please produce all policies and other communications and documents since July 1, 2013 concerning the requirements for account generation that sales representatives must meet in order to receive weekly advances and in order for the weekly advances to become bonuses.” (ECF No. 77-1 at 13.) Defendants responded: Defendants object that this Request is Overbroad, Irrelevant, Unduly Burdensome, and Not Proportional because it seeks information that is unrelated to Plaintiffs’ individual claims. Each Plaintiff expressly waived his ability to participate in class or collective action proceedings against Alder, and Defendants have moved to dismiss Plaintiffs’ class and collective action claims on that basis. It is unduly burdensome and not proportional to request that Defendants undertake the significant effort of compiling and producing the broad range of documents sought in this Request that are only potentially relevant to class and collective action claims that Plaintiffs expressly waived. The undue burden, overbreadth, and non-proportionality of this Request is exacerbated by the fact that the requested documents consist of Alder's internal business records containing proprietary, competitively sensitive, and confidential information that Alder has compiled at considerable expense over years of hard work. Moreover, this case has not been certified as a class action—and, thus, there has been no definition of the scope of any class—so it is unduly burdensome and not proportional to request broad, class-related discovery at this stage of the litigation. This Request is also Overbroad, Unduly Burdensome, and Not Proportional because it seeks irrelevant information beyond the statutes of limitations *6 (ECF No. 77-1 at 13–14 (emphasis added).) To the extent Defendants are claiming privilege over materials responsive to RFP No. 10, they must comply with Rule 26(b)(5).[2] The court OVERRULES all objections not based on privilege. To the extent the requested information meets the requirements, it may be produced pursuant to the standard protective order. 5. Request for Production No. 18 Plaintiffs requested that Defendants: “Please produce completed authorization forms for the release of social media content and email content (that are compliant with the Stored Communications Act) for each social media and email provider with whom any Defendant has maintained a social media account or email account in the previous six (6) years.” (ECF No. 77-1 at 20.) Defendants responded: Defendants object that this request is Overly Broad, Irrelevant, Unduly Burdensome, and Not Proportional in requesting authorization forms for the release of Defendants’ social media and email content regardless of whether such content is related to the Plaintiffs’ individual claims in this case. Each Plaintiff expressly waived his ability to participate in class or collective action proceedings against Alder, and Defendants have moved to dismiss Plaintiffs’ class and collective action claims on that basis. It is irrelevant, overbroad, and not proportional for Plaintiffs to seek wholesale discovery of Defendants’ social media and email content for such an extensive period of time even if that content has no relationship to the three named Plaintiffs or their individual claims against Defendants. This Request is an unvarnished attempt to obtain Defendants’ unrelated, irrelevant—but highly personal, proprietary, and confidential—electronic communications. Plaintiffs are not entitled to discover every one of the individual Defendants’ private electronic communications (which doubtless include personal, non-business communications with spouses, children, family members, and friends), nor are they entitled to every single email sent or received through an Alder company email account. Discovery is proper only when it is relevant and proportional to the claims and defenses in a case, and this untethered Request is neither. (ECF No. 77-1 at 21.) Defendants’ objection satisfies Rule 34’s specificity requirement. The court SUSTAINS Defendant's objection. Plaintiffs, however, may submit a more specific request that focuses on information related to the claims in this case, excluding personal information of the Defendants. 6. Request for Production No. 19 Plaintiffs requested that Defendants: “Please produce copies of all advertising, marketing, and recruiting materials used by Defendants since July 1, 2013, including but not limited to brochures, posters, billboard content, recruiting communications, online advertisement content, and video and audio recordings.” (ECF No. 77-1 at 21.) Defendants objected: Defendants object that this Request is Overly Broad, Irrelevant, Unduly Burdensome, and Not Proportional because it seeks the production of documents beyond the statutes of limitations applicable to Plaintiffs’ claims. Defendants further object that the requested materials are irrelevant and not proportional because each Plaintiff entered into an integrated written agreement setting forth the terms of his relationship with Alder, so any advertising, marketing, or recruiting materials are irrelevant. Additionally, all of Alder's advertising, marketing, and recruiting materials were not presented to, or seen by, the individual Plaintiffs. *7 (ECF No. 77-1 at 21–22.) Defendants’ argument that the requested materials are irrelevant assumes that Plaintiffs’ written agreements with Alder will not be rescinded. In their operative Complaint, Plaintiffs “seek rescission of the Notes and” Confessions of Judgment. (ACC ¶ 174, ECF No. 41 at 40 seek rescission of the Notes and COJs ....”) And Plaintiffs bring an unjust enrichment claim. (See ACC ¶ 208, ECF No. 41 at 47.) Plaintiffs’ unjust enrichment claim is pleaded in the alternative to their breach of contract claim. Plaintiffs can only prevail on their unjust enrichment claim if their compensation agreements are rescinded. Because Plaintiffs bring their unjust enrichment claim, the possibility exists that their compensation agreements will be rescinded. Because the agreements between Alder and the Plaintiffs may be rescinded, recruiting materials are relevant to Plaintiffs’ fraud claims. Defendants objection to RFP No. 19 is OVERRULED. 7. Request for Production No. 21 Plaintiffs requested that Defendants: “Please produce all documents Defendants will rely upon to demonstrate that Plaintiffs are within the outside sales exception to the FLSA.” (ECF No. 77-1 at 23.) Defendants responded that they had produced some documents and were continuing to supplement their response. (ECF No. 77-1 at 23.) The court SUSTAINS Defendants’ Objection. The court will bar Defendants from attempting to rely on documents to demonstrate that Plaintiffs are within the outside sales exception to the FLSA that are not produced to Plaintiffs. III. Attorney's Fees As discussed above, both parties move for attorney's fees under Rule 37(a)(5)(A). “Rule 37(a) deals with ‘Motions for an Order Compelling Disclosure or Discovery.’ ” Entrata, Inc. v. Yardi Sys., Inc., No. 2:15-CV-00102, 2018 WL 5470454, at *7 (D. Utah Oct. 29, 2018) (citation omitted). Rule 37(a)(5)(C) provides that “[i]f the motion is granted in part and denied in part, the court may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added). In contrast, Rule 37(a)(5)(B) provides that “[i]f the motion is granted—if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). The court has sustained some of Defendants’ objections. But, as discussed above, Defendants have withheld discovery on the basis of an unidentified privilege. Because the court awaits Defendants’ response regarding whether they complied with Fed. R. Civ. P. 26(b)(5)(A), the court cannot fully resolve the pending motion. The court defers to determine attorney's fees until Defendants have submitted their response. Order I. The court orders Defendants to respond fully to Interrogatory No. 4 and RFP Nos. 2–3, 5–7, 11, 17, and 20. *8 II. The court orders Defendants to respond fully to Interrogatory No. 2 and RFP Nos. 1, 8, 9, and 19. III. Defendants have claimed an unidentified privilege as a basis for their objections to Interrogatory No. 3, RFP Nos. 12–16, and possibly RFP No. 10. a. On or before February 19, 2021, Defendants shall file a submission that addresses how they have complied with Fed. R. Civ. P. 26(b)(5)(A). DATED this 5th day of February 2021. Footnotes [1] On or before Friday, February 19, 2021, Plaintiffs must file a submission with the court that explains whether they have complied with Fed. R. Civ. P. 26(b)(5)(A). [2] If Defendants are claiming privilege as a basis for their objection to RFP No. 10, on or before Friday, February 19, 2021, Plaintiffs must file a submission with the court that explains whether they have complied with Fed. R. Civ. P. 26(b)(5)(A).