Summary:The Court found that ESI was important and ordered Heartland to produce all ESI that is relevant to the claims and defenses in this case. Shepherd was also ordered to produce all non-privileged documents responsive to Subpoena Request No. 7, if any, or affirmatively state that no such documents exist. Heartland was also ordered to supplement its Answers if it discovers that they are incomplete or incorrect. Shepherd was also ordered to amend his Answer to disclose responsive oral communications, if any, that are not identified in the referenced documents.
Court:United States District Court, D. Minnesota
Date decided:
Judge:Brisbois, Leo I.
Marco Technologies, LLC, Plaintiff, v. Keith Midkiff, et al., Defendants Court File No. 19-cv-2323 (PJS/LIB) United States District Court, D. Minnesota Filed December 07, 2020 Counsel Dean A. LeDoux, Dion Farganis, Neil S. Goldsmith, Lathrop GPM LLP, Minneapolis, MN, for Plaintiff. John Pavelko, Lukas Boehning, Pamela Abbate-Dattilo, Fredrikson & Byron, PA, Minneapolis, MN, for Keith Midkiff, Dan Urzendowski, Heartland Business Systems, LLC. Brisbois, Leo I., United States Magistrate Judge ORDER *1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Plaintiff's Second Motion to Compel Discovery. [Docket No. 212]. For the reasons discussed below, the Court GRANTS in part and DENIES in part Plaintiff's Second Motion to Compel Discovery. [Docket No. 212]. I. BACKGROUND AND RELEVANT FACTS For a more complete account of the facts that give rise to the present case and its procedural history, see this Court's prior Orders. [Docket Nos. 76, 278]. On October 4, 2019, Plaintiff served its first set of Interrogatories and Requests for Production of Documents on Midkiff and Urzendowski. (Farganis Decl. [Docket No. 81] ¶ 26). On October 8, 2019, Plaintiff served a subpoena for production on Heartland Business Systems, LLC (“Heartland”) as a then non-party to this case. (Id. ¶ 4). On November 4, 2019, Heartland responded to Plaintiff's subpoena requests. (Id. ¶ 5). On November 15, 2019, Midkiff and Urzendowski responded to Plaintiff's first set of Interrogatories and Requests for Production. (Id. ¶ 27; see also, Ex. J [Docket No. 81-10]). Based on this discovery, on December 31, 2019, Plaintiff moved to amend its original Complaint to add Heartland as a named Defendant. (Mot. for Leave to Am. Compl. and Add Def. [Docket No. 32]). On February 24, 2020, the Court granted in part and denied in part Plaintiff's motion to amend. (Order [Docket No. 51]). On February 26, 2020, Plaintiff filed its Amended Complaint which adds Heartland as a Defendant and asserts six claims against Defendants Midkiff, Urzendowski, and Heartland. (First Am. Compl. [Docket No. 54]). Counts I and II allege Breach of Contract against Midkiff and Urzendowski, respectively. (Id. ¶¶ 49–58). Counts III and IV allege Breaches of Fiduciary Duty of Loyalty against Midkiff and Urzendowski, respectively. (Id. ¶¶ 59–68). And Counts V and VI allege Tortious Interference with Contract against Urzendowski and Heartland, respectively. (Id. ¶¶ 69–80).[1] On March 11, 2020, Plaintiff served its First Set of Interrogatories and its First Set of Requests for Production of Documents on Heartland. (Farganis Decl. [Docket No. 81] ¶ 6). On April 24, 2020, after Plaintiff had agreed to extend the deadline for Heartland to respond, Heartland served its Responses to Plaintiff's First Set of Interrogatories and Plaintiff's First Set of Requests for Production of Documents. (Id. ¶¶ 7–8; see also, Ex. A [Docket No. 81-1]; Ex. B [Docket No. 81-2]). On May 7, 2020, Midkiff served his Amended Answers to Plaintiff's first set of Interrogatories, and Urzendowski served his Amended Answers to Plaintiff's first set of Interrogatories, as well as, his Amended Responses to Plaintiff's first set of Requests for Production of Documents. (Id. ¶ 40; see also, Ex. Q [Docket No. 81-17]). *2 On June 17, 2020, Heartland served its Amended Answers to Plaintiff's First Set of Interrogatories, and Heartland supplemented its production by providing an additional two pages of documents. (Farganis Decl. [Docket No. 215] ¶ 9; see also, Ex. I [Docket No. 81-9]). On July 2, 2020, Plaintiff served its Second Set of Interrogatories and Requests for Production of Documents on Heartland. (Farganis Decl. [Docket No. 215] ¶ 10; see also, Ex. 3 [Docket No. 215-1], at 46–54). On July 16, 2020, July 23, 2020, and July 28, 2020, Defendants supplemented their document production. (Farganis Decl. [Docket No. 215] ¶ 11). On July 27, 2020, Plaintiff conducted a deposition of Urzendowski via video-conference. (Ex. 14 [Docket No. 216]). On July 31, 2020, Plaintiff served its Third set of Interrogatories and Requests for Production of Documents on Heartland. (Farganis Decl. [Docket No. 215] ¶ 12; see also, Ex. 4 [Docket No. 215-1], at 56–64). On August 3, 2020, Heartland served its Answers to Plaintiff's Second Set of Interrogatories and its Responses to Plaintiff's Second Set of Requests for Production of Documents. (Farganis Decl. [Docket No. 215] ¶ 13; see also, Ex. 5 [Docket No. 215-1], at 66–76). On August 11, 2020, Plaintiff served Chad Shepherd, a non-party, with a subpoena to produce documents (the “Subpoena”). (Id. ¶ 32; see also, Ex. 16 [Docket No. 215-2], at 5–10). On August 24, 2020, Defendants served objections on behalf of Shepherd to some of the Subpoena, and Shepherd produced some documents in response to the Subpoena. (Farganis Decl. [Docket No. 215] ¶ 34; see also, Ex. 17 [Docket No. 215-2], at 12–19). On August 14, 2020, Plaintiff sent Defendants a deficiency letter outlining several purported deficiencies with their various discovery responses. (Ex. 6 [Docket No. 215-1], at 78–83). On August 19, 2020, Defendants responded, and stated that they would produce “the initial communications Heartland had with the at-issue customers,” and on August 24, 2020, Plaintiff replied that Defendant's response was insufficient because it did not address all of the issues raised in Plaintiff's August 14, 2020, deficiency letter. (Exs. 7–8 [Docket No. 215-1], at 85–89). On August 26, 2020, Defendants supplemented their document production by producing the initial communications that Heartland had with the at-issue customers. (Farganis Decl. [Docket No. 215] ¶ 17; see also, Ex. 9 [Docket No. 215-1], at 91). On August 31, 2020, Heartland served its Answers to Plaintiff's Third Set of Interrogatories and its Responses to Plaintiff's Third Set of Requests for Production of Documents. (Farganis Decl. [Docket No. 215] ¶ 20; see also, Ex. 10 [Docket No. 215-1], at 93–105). On September 1, 2020, the Parties met and conferred regarding Shepherd's production of documents in response to the Plaintiff's Subpoena. (Farganis Decl. [Docket No. 215] ¶ 37). Also on September 1, 2020, as well as, September 2, 2020, Plaintiff sent Defendants deficiency letters that reiterated the purported deficiencies that were addressed in the August 14, 2020, deficiency letter and outlined purported deficiencies in Defendants’ August 26, 2020, supplemental production, as well as, Heartland's August 31, 2020, discovery responses. (Exs. 11, 12 [Docket No. 215-1], at 107–12). On September 10, 2020, the Parties met and conferred regarding their ongoing discovery disputes. (Farganis Decl. [Docket No. 215] ¶ 24). *3 On September 30, 2020, Plaintiff filed the present second motion to compel. (Plf.’s Second Mot. to Compel Disc. [Docket No. 212]).[2] On October 7, 2020, Heartland served its Amended Answers to Plaintiff's Third Set of Interrogatories. (Ex. A [Docket No. 277-1]). II. PLAINTIFF'S SECOND MOTION TO COMPEL DISCOVERY [Docket No. 212] By its present second motion to compel, (Plf.’s Second Mot. to Compel Disc. [Docket No. 212]), the Plaintiff seeks an Order of this Court “compelling Defendants to fully and adequately respond to [Plaintiff's] written discovery requests, and an order compelling nonparty Chad Shepherd to comply with a Rule 45 subpoena for documents.” (Id.). Specifically, Plaintiff requests that Heartland be compelled to amend and supplement its Answers to Interrogatory Nos. 4, 8, 21, 23, 25 and its Responses to Request for Production of Documents Nos. 7, 28, 29, and 31. (See, Mem. in Supp. [Docket No. 214]). Plaintiff requests that Urzendowski be compelled to amend and supplement his Answers to Interrogatory Nos. 5, 9, 12, and 13 and his Response to Request for Production of Documents No. 19. (See, Id.). Plaintiff requests that Midkiff be compelled to amend and supplement his Answers to Interrogatory Nos. 12 and 13 and his Response to Request for Production of Documents No. 19. (See, Id.). And Plaintiff requests that non-party Shepherd be compelled to supplement his production of documents in response to Request Nos. 1, 2, 3, 4, 5, 6, and 7 of the Subpoena. (See, Id.). In addition, Plaintiff “requests that the Court permit [Plaintiff] to conduct a follow-up deposition of Urzendowski to obtain his testimony about the documents related to the communications with the at-issue customers that were produced just after his deposition.” (Mem. in Supp. [Docket No. 214], at 12) (emphasis in original).[3] A. Standard of Review Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Courts construe Rule 26(b)(1) broadly. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). However, the scope of discovery is intended to focus on the actual claims or defenses that are at issue in the litigation. See e.g., Sierrapine v. Refiner Prods. Mfg., Inc., 275 F.R.D. 604, 609 (E.D. Cal. 2011). As such, the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380. *4 In addition, “even if relevant, discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.” Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)). “The party resisting production bears the burden of establishing lack of relevancy or undue burden.” St. Paul Reinsurance Co. v. Com. Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000) (citations omitted). “On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). Federal Rule of Civil Procedure 37(a)(3) provides for various motions to compel disclosure or compel discovery depending on the failure of the other party. Specifically, the Court may compel a discovery response if “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv). Likewise, “[p]ursuant to a subpoena, a non-party can be compelled to produce evidence regarding any matter relevant to the claim or defense of any party, unless a privilege applies.” Keefe v. City of Minneapolis, No. 09-cv-2941 (DSD/SER), 2012 WL 7766299, at *3 (D. Minn. May 25, 2012) (emphasis added) (citing Fed. R. Civ. P. 26(b)(1) (defining scope of discovery); Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.”)). However, to preclude fishing expeditions in discovery, courts require the party seeking discovery to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380. This threshold showing “is met if the information sought is ‘relevant to the subject matter involved in the pending action.’ ” Orduno v. Pietrzak, No. 14-cv-1393 (ADM/JSM), 2016 WL 5853723, *3 (D. Minn. Oct. 5, 2016) (quoting Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 579 (D. Minn. 1999)). B. Analysis Plaintiff requests that Heartland be compelled to amend and supplement its Answers to Interrogatory Nos. 4, 8, 21, 23, 25 and its Responses to Request for Production of Documents Nos. 7, 28, 29, and 31. (Mem. in Supp. [Docket No. 214]). Plaintiff requests that Urzendowski be compelled to amend and supplement his Answers to Interrogatory Nos. 5, 9, 12, and 13 and his Response to Request for Production of Documents No. 19. (Id.). Plaintiff requests that Midkiff be compelled to amend and supplement his Answers to Interrogatory Nos. 12 and 13 and his Response to Request for Production of Documents No. 19. (Id.). Plaintiff requests that non-party Shepherd be compelled to supplement his production of documents in response to Request Nos. 1, 2, 3, 4, 5, 6, and 7 of the Subpoena. (Id.). And, Plaintiff requests leave to conduct a limited second, follow-up deposition of Urzendowski. (Id.).[4] i. Heartland's Answer to Interrogatory No. 21 *5 INTERROGATORY NO. 21 [to Heartland]: Describe in detail all initial contacts, communications, or interactions by anyone at Heartland with any customer with whom Midkiff or Urzendowski had any contact while an employee of Marco, including, but not limited to, Catholic Archdiocese of Omaha, Crawford County Memorial Hospital, First State Bank, Greater Regional Medical Center, Great West Casualty Company, Hillcrest Health Systems, James Skinner Baking Company, Leo A. Daly Company, Lindsay Corporation, Memorial Health Care Systems Midwest Laboratories, OrthoNebraska, Phelps Memorial Health Center, Physicians Laboratory Services, Pinnacle Bank, Team Software, Transwood, and McGrath North Mullin & Kratz, and describe the circumstances leading to Heartland's initial sale of any products or services to any of those customers. ANSWER: Heartland objects to this Interrogatory as unduly burdensome, overbroad, and needlessly duplicative of prior discovery because Plaintiff has already inquired into this topic during the deposition of Heartland, along with the depositions of Shephard, Midkiff, and Urzendowski. Subject to and without waiving the above objections and the General Objections, Heartland states that initial contacts, communications, or interactions between Heartland and the customers identified in Interrogatory No. 21, along with the circumstances leading to Heartland's initial sale of products or services to these customers, may be ascertained by examining, auditing, compiling, abstracting, or summarizing Heartland's business records. Therefore, Heartland invokes its option to produce business records under Fed. R. Civ. P. 33(d) and directs Plaintiff to KMDU001030-KMDU001399. AMENDED ANSWER: In addition to the objections and answer above, Heartland states for the following customers: • The Archdiocese: The Archdiocese requested Shepherd continue to work with them after he left Marco. The Archdiocese did not trust the Marco engineer assigned to an active project and asked Shepherd to supervise his work. Shepherd has a dual CCIE qualification, the highest attainable qualification issued by Cisco, which Marco's existing engineers do not have. • Lindsay: Lindsay reached out to Shepherd via text and stated, “Hey sir congrats on the new job can you get me Keith's or Dan's email address as I have a project that u quoted for me at Marco and now we want HBS to quote it and meet with the project leader to discuss.” Stenger followed up via email to Urzendowski and Shepherd stating: “So I had two projects I had started with Marco before you moved to Greener pasture.” Lindsay left Marco because the “one person... on this entire planet that knows [their] network better than anybody [is] Chad Shepherd.” Lindsay stated that “there was no way we were going to stay at Marco.” • Leo A. Daly: Leo A. Daly reached out to Urzendowski via LinkedIn once he heard Urzendowski had left Marco. Leo A. Daly said to Urzendowski, “Congrats on the new role! Reach out to me when you get settled in.” After that contact, Urzendowski reached out to Leo A. Daly and Leo A. Daly requested a meeting. Urzendowski organized a meeting with Leo A. Daly and Ben Turner. Following that meeting, Leo A. Daly requested that Heartland perform work for them. • OrthoNebraska: OrthoNebraska reached out to Urzendowski and asked for an introduction to Heartland. This ultimately led to a list of projects OrthoNebraska wanted Urzendowski to handle. After dealing with extensive billing issues with Marco, OrthoNebraska stressed: “I have no issue moving our O365 subscription. In fact I am happy to do it. I do not want to spend any more time on the phone with Marco billing.” Midkiff's main contact at OrthoNebraksa reported to Midkiff and Urzendowski that due to all the billing problems with Marco, he was “one more wrong invoice away from maybe not being employed.” *6 • JSB: JSB reached out to Urzendowski for an introduction to Heartland and Urzendowski stated, “Thanks for reaching out. Pick where you want to meet and I'll be there.” Urzendowski and JSB met, and then JSB terminated its relationship with Marco mid-project, wanting Heartland to complete it. • Pinnacle: Pinnacle reached out to Urzendowski on July 24, 2019, after seeing on LinkedIn that Urzendowski had moved on. Pinnacle stated, “Congrats on the new job, lets get together sometime soon to catch up!” While Marco introduced a new engineer to Pinnacle, he “just wasn't a quite right fit, and it was a little—too little, too late type of thing.” On August 19, 2019, Pinnacle informed Marco leadership that “[w]e have been asking for more than one engineer for quite some time and we continue to have projects that stall and other underlying problems that do not get resolved. Because of this, we have decided that we will no longer be doing business with Marco.” (See MARCO0005040.) • Phelps: Phelps reached out to Shepherd via text message on August 22, 2019—before he even started at Heartland—and told him to “reach out when you get [a new email]. Would like to schedule ASR code upgrades in the near future... what's the name of your new company?” Through this reach out, Phelps became a customer with Heartland. (See KMUD0001029, KMDU0001083, KMDU0001089.) • Crawford County: Randy Gray of Crawford reached out to Urzendowski shortly after Urzendowski started working at Heartland to inquire about a golf outing that Marco was sponsoring. Urzendowski was Gray's contact for the golf outing while he worked at Marco. Marco had yet to tell Gray that Urzendowski was not longer working at Marco and involved with the golf outing. Urzendowski told Gray to reach out to Midkiff and Dustin Bonn for information on the golf outing. Gray kept in touch with Urzendowski and Crawford eventually became a customer of Heartland. • Greater Regional: This account is managed by Heartland's Des Moines, Iowa office. Cisco contacted Heartland after Greater Regional complained to Cisco about Marco's inability to service the customer. Urzendowski and Midkiff have not been involved in communications with this customer. • Hillcrest Health Systems: Kevin Mulhearn of Hillcrest contacted Midkiff in early 2020. Hillcrest has not done any business with Heartland. • Team Software: Urzendowski's brother is the Chief Operating Officer for Team Software. Urzendowski's brother instructed him to talk to Phil Tomek. Urzendowski and Tomek have been friends for more than fifteen years. Team Software eventually became a customer of Heartland. (Ex. A [Docket No. 277-1], at 2–5). Interrogatory No. 21 seeks a description of all initial contacts, communications, or interactions by anyone at Heartland with any customer with whom Midkiff or Urzendowski had any contact while employed by Plaintiff, as well as, a description of the circumstances leading to Heartland's initial sale of any products or services to any of those customers. Initially, Heartland purported to invoke Federal Rule of Civil Procedure 33(d), and it listed responsive documents by bates number. However, after Plaintiff filed the present motion, Heartland amended its Answer to include narrative descriptions of initial contacts with several at-issue customers. *7 Heartland purportedly represents that it has produced documents reflecting initial communications with at-issue customers. (See, e.g., Pavelko Decl. [Docket No. 277] ¶ 6). Nonetheless, it is not evident to the Court from Heartland's Answer and Amended Answer to Interrogatory No. 21, nor from its submissions in response to the present motion, whether or not there are in fact any other oral communications with at-issue customers during the relevant time period that have not yet been identified and disclosed or whether Heartland is taking the position that all responsive oral communications have now been identified and there is nothing left to be disclosed. The threshold inquiry with regard to discovery issues is whether the moving party seeks discoverable material. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 635 (D. Minn. 2000) (citing Shelton v. Am. Motors, 805 F.2d 1323, 1326 (8th Cir. 1986)). Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discoverable material is limited to that which is relevant to the parties’ claims or defenses. See, e.g., Mallak v. Aitkin Cty., No. 13-cv-2119 (DWF/LIB), 2016 WL 8607391, at *6 (D. Minn. June 30, 2016), aff'd, 2016 WL 8607392 (D. Minn. Sept. 29, 2016) (citing Sierrapine v. Refiner Prods. Mfg., Inc., 275 F.R.D. 604, 609 (E.D. Cal. 2011)). And the party seeking discovery is required to make a threshold showing of relevance before production of information is required. Hofer, 981 F.2d at 380. Here, this Court finds that Heartland's initial contacts with at-issue customers from January 1, 2019, to the present[5] are generally relevant to identify how Plaintiff's customers with whom Midkiff and Urzendowski worked while employed by Plaintiff became Heartland Customers. Accordingly, Heartland must either amend its Answers to Interrogatory No. 21 to identify any additional initial contacts, oral communications, or interactions that Heartland has had from January 1, 2019, to the present with at-issue customers and describe the circumstances leading to Heartland's initial sale of products or services to such customers to the extent that such information was neither identified in the documents that were provided pursuant to Rule 33(d) nor in Heartland's prior narrative answers, or Heartland must amend its Answers to affirmatively state that all such information has been provided.[6] *8 Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED to the extent that it seeks an Order of this Court compelling Heartland to amend its Answers to Interrogatory No. 21 as described above. ii. Urzendowski's Answers to Interrogatory Nos. 5 and 9 Immediately following its argument regarding Heartland's Answers to Interrogatory No. 21, Plaintiff states that it “also requests that the Court order Defendants to amend their answers to any other interrogatories seeking information about ... Urzendowski[’s] ... initial communications with at-issue customers (including but not necessarily limited to Urzendowski Interrogatory Nos. 5 and 9) ....” (Mem. in Supp. [Docket No. 214], at 11–12). However, Plaintiff does not provide any meaningful statement of why Urzendowski's Answers to Interrogatory Nos. 5 and 9 are deficient.[7] Accordingly, this Court finds that Plaintiff's conclusory request regarding Urzendowski's Answers to Interrogatory Nos. 5 and 9 fails to comply with Local Rule 37.1. Pursuant to Local Rule 37.1, motions presenting a discovery dispute must include: “a specification of the disclosure or discovery in dispute;” “the text (which may appear in an exhibit to which the motion or memorandum refers) of any interrogatory, request, question, or notice in dispute, together with each answer, response, or objection to any such interrogatory, request, question, or notice;” and “a concise statement of why the disclosure, answer, response, production, or objection is insufficient, evasive, incomplete, or otherwise improper.” Local Rule 37.1 is intentionally designed to assist the Court in effectively and efficiently addressing discovery disputes by requiring the parties to specifically identify the precise nature and parameters of the subject dispute. In relation to Urzendowski's Answers to Interrogatory Nos. 5 and 9, Plaintiff fails to include the aforementioned requirements of Local Rule 37.1. Indeed, Plaintiff only generally contends that other answers to interrogatories seeking information about Defendant's initial communications with at-issue customers, including Urzendowski's Answers to Interrogatory Nos. 5 and 9, should be amended. (Mem. in Supp. [Docket No. 214], at 11–12). Plaintiff does not make any specific challenges to Urzendowski's Answers to Interrogatory No. 5 or 9. (See, Id.). In ruling on Plaintiff's first motion to compel, this Court has already informed Plaintiff that this generalized type of motion practice is in violation of Local Rule 37.1, and it is entirely unhelpful to the Court. (See, Order [Docket No. 278], at 34–35). Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Urzendowski to amend his Answers to Interrogatory Nos. 5 and 9. iii. Second Deposition of Urzendowski Plaintiff seeks leave of this Court “to conduct a [second] follow-up deposition of Urzendowski to obtain his testimony about the documents related to communications with the at-issue customers that were produced just after his [first] deposition.” (Mem. in Supp. [Docket No. 214], at 12) (emphasis in original). *9 On July 27, 2020, Plaintiff deposed Urzendowski for 7 hours. (Mem. in Opp'n [Docket No. 276], at 5; Ex. 14 [Docket No. 216], at 2). On August 26, 2020, Defendants produced some documents reflecting initial communications with at-issue customers. (See, Farganis Decl. [Docket No. 215] ¶ 17; Pavelko Decl. [Docket No. 277] ¶ 6; Exs. 7, 9 [Docket No. 215-1], at 86, 91). Plaintiff now requests leave to conduct a second deposition of Urzendowski to obtain his testimony regarding those documents. (Mem. in Supp. [Docket No. 214], at 12). Rule 30 places a specific time limit on oral depositions: “Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). Nonetheless, “[t]he court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Id. Where a deponent has already been deposed and the parties have not stipulated to the deposition, a party must obtain leave of the Court to conduct a second deposition. Fed. R. Civ. P. 30(a)(2)(A)(ii). “Trial courts have ‘broad discretion to decide discovery motions.’ ” Escamilla v. SMS Holdings Corp., No. 09-cv-2120 (ADM/JSM), 2011 WL 5025254, at *6, (D. Minn. Oct. 21, 2011) (quoting Pavlik v. Cargil, Inc., 9 F.3d 710, 714 (8th Cir. 1993)). “The ‘availability of a second deposition is left to the discretion of the trial court.’ ” Id. at *6 (quoting Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987)). Here, Plaintiff already deposed Urzendowski. During that first deposition, Plaintiff inquired into whether Heartland was conducting business with each of the at-issue customers, but Plaintiff chose not to inquire into the specifics of how initial contact was made between Heartland and many of the at-issue customers. (See, Ex. 14 [Docket No. 216]). Moreover, Plaintiff has not identified any specific information contained in the subsequently produced documents that it has a need to question Urzendowski about, Plaintiff merely contends generically that it seeks Urzendowski's “testimony about the documents related to communications with the at-issue customers.” (Mem. in Supp. [Docket No. 214], at 12). Likewise, Plaintiff has not identified any particular communication which was revealed or suggested by the documents that Plaintiff contends justifies a second deposition. Accordingly, this Court finds that, on the present record, a second deposition of Urzendowski is not warranted. Plaintiff made a strategic decision about what to ask and what not to ask Urzendowski during his deposition. Although Plaintiff could have inquired further into the initial contacts with at-issue customers during the July 27, 2020, deposition, Plaintiff made the strategic decision not to do so. See, e.g., E.E.O.C. v. Prod. Fabricators, Inc., 285 F.R.D. 418, 422–23 (D. Minn. 2012) (alterations in original) (quoting Arugu v. City of Plantation, No. 09-61618-CIV, 2010 WL 2609394, at *4 (S.D. Fla. June 27, 2010)) (“[T]he Court cannot find good cause allowing it to grant the Motion to Re-Depose based upon [a party]’s choice not (or even his neglect) to ask questions he could have asked at the ... deposition.”). Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks leave to conduct a second deposition of Urzendowski. iv. Midkiff and Urzendowski's Answers to Interrogatory Nos. 12 and 13, and Heartland's Answers to Interrogatory Nos. 4 and 8. *10 INTERROGATORY NO. 12 [to Midkiff]: Describe in detail any communications between you and Heartland regarding possible employment with Heartland and/or the terms of any possible employment. ANSWER: See Objections and Answer to Interrogatories No. 1 and 16. INTERROGATORY NO. 13 [to Midkiff]: Describe in detail all communications between you and Dan Urzendowski since March 21, 2017 regarding possible employment with any company, entity, or business other than Marco or recruiting Marco customers or employees to cease or limit their relationships with Marco. ANSWER: Midkiff objects to this Interrogatory because it is overbroad, unduly burdensome, not proportional, and seeks information that is irrelevant to the claims and defenses in this case. Subject to and without waiving these objections and the General Objections, Midkiff invokes his right under Fed. R. Civ. P. 33 to substitute access to documents for an answer because the burden of deriving the answer to this Interrogatory will be substantially the same for either party. Midkiff further states that during his employment at Marco he would tell Urzendowski when recruiters or other companies would reach out to recruit Midkiff to join a different company. Midkiff also told Urzendowski that he was seriously considering leaving Marco to go work for Nutanix, after Midkiff had learned that Nutanix had job openings and was looking to hire. Midkiff also informed Urzendowski that he had applied to Heartland and Urzendowski directed Midkiff to Ben Turner if Midkiff had inquiries about Heartland. Midkiff had drinks with Urzendowski and Ben Turner in Omaha when Midkiff was employed at Marco. The conversation was social in nature. (Ex. Q [Docket No. 81-17], at 10–11). INTERROGATORY NO. 12 [to Urzendowski]: Describe in detail any communications between you and Heartland regarding possible employment with Heartland and/or the terms of any possible employment. ANSWER: See Objections and Answer to Interrogatory No. 1. AMENDED ANSWER: Urzendowski objects to this Interrogatory because it is vague, ambiguous, not proportional, overbroad, unduly burdensome, and seeks information that is irrelevant to the claims and defenses in this case. Subject to and without waiving these Objections and the General Objections, pursuant to Fed. R. Civ. P. 33(d), Urzendowski directs Marco to KMDU000217-221, KMDU000223, KMDU000230-291, KMDU000314, KMDU000317-318, KMDU000322, KMDU000324-325, KMDU000339, KMDU343-345, KMDU000359-371, KMDU000389-390, KMDU000395-405, KMDU000412-415, KMDU000416-420, KMDU000469-508. INTERROGATORY NO. 13 [to Urzendowski]: Describe in detail all communications between you and Keith Midkiff since March 21, 2017 regarding possible employment with any company, entity, or business other than Marco or recruiting Marco customers or employees to cease or limit their relationships with Marco. ANSWER: Urzendowski objects to this Interrogatory because it is overbroad, unduly burdensome, not proportional, and seeks information that is irrelevant to the claims and defenses in this case. Subject to and without waiving these objections and the General Objections, Urzendowski invokes his right under Fed. R. Civ. P. 33 to substitute access to documents for an answer because the burden of deriving the answer to this Interrogatory will be substantially the same for either party. Urzendowski further states that he and Midkiff are friends and have had conversations since March 21, 2017 in which Midkiff expressed his displeasure with Marco's ability to service his long-time clients. Midkiff had told Urzendowski that he was interviewing for other jobs during his employment at Marco. Urzendowski also told Midkiff that he was leaving Marco to go work for Heartland. Urzendowski also states that he has had conversations with Midkiff about servicing the customers with whom they had pre-existing relationships before working at Marco. Midkiff informed Urzendowski that he had also applied to Heartland, and Urzendowski directed Midkiff to talk with other Heartland employees about his interest in joining Heartland. Urzendowski also had drinks with Midkiff and Ben Turner in Omaha when Midkiff was employed at Marco. The conversation was social in nature. *11 AMENDED ANSWER: In addition to the above Answer, Urzendowski states that on or about the day he resigned, Urzendowski had lunch with Midkiff and Chad Shepherd in Lincoln at which Urzendowski told Shepherd and Midkiff that he was leaving Marco to go work for Heartland. Midkiff told Urzendowski that he had heard previously heard of Heartland. There was no discussion about Midkiff or Shepherd joining Heartland. Urzendowski further states that he informed his manager at Marco, Eric Casteel and Todd Erne about Midkiff's displeasure with Marco. During his employment, Urzendowski made his new manager, Matt Kanaskie, aware that Keith was looking to leave. (Id. at 26–28). INTERROGATORY NO. 4 [to Heartland]: Identify and describe in detail any effort by you to recruit Urzendowski, Midkiff, and Shepherd, including the dates and the contents of any communications that were made to or from Urzendowski, Midkiff, and Shepherd concerning their recruitment, and list the role and names of all persons who were involved in any aspect of any of their recruitments. ANSWER: Heartland objects to this Interrogatory to the extent it seeks information related to Shepherd because such information is irrelevant to the claims and defenses in this case. Heartland further objects to this Interrogatory because it is overbroad, unduly burdensome, not proportional, vague, ambiguous, and seeks information that is irrelevant to the claims and defenses in this case. Subject to this Objection and the General Objections, pursuant to Fed. R. Civ. P. 33(d), Heartland states that Marco may ascertain the Answers to this Interrogatory at Heartland000020-23, Heartland000057, Heartland000262-68, Heartland000374-75, Heartland000401-411, Heartland000940-948, Heartland001086-90, and Heartland001100-08, KMDU000001-5, KMDU000014, KMDU000020, KMDU000025-48, KMDU000058-67, KMDU000084, KMDU000086, KMDU000092, and KMDU000130-133, KMDU000140-42, KMDU000154, KMDU000158-180, KMDU000181-191, KMDU000210-212, KMDU000425-KMDU000496, KMDU217-KMDU000291, KMDU000314-KMDU000508, KMDU000579-KMDU000581, and KMDU000545-KMDU000661. (Ex. I [Docket No. 81-9], at 7–8). INTERROGATORY NO. 8 [to Heartland]: Identify and describe in detail any discussions, conversations, or communications between or among any Heartland employees relating to the employment of Midkiff, Urzendowski, or Shepherd, including but not limited to any employment or restrictive covenant agreement between Marco and Midkiff, Marco and Urzendowski, or Marco and Shepherd. ANSWER: Heartland objects to this Interrogatory to the extent it seeks information that is privileged. Heartland further objects to this Interrogatory to the extent it seeks information related to Shepherd because such information is irrelevant to the claims and defenses in this case. Heartland further objects to this Interrogatory because it is overbroad, unduly burdensome, not proportional, vague, ambiguous, and seeks information that is irrelevant to the claims and defenses in this case. Subject to and without waiving these Objections and the General Objections, pursuant to Fed. R. Civ. P. 33(d), Heartland states that Marco may ascertain the Answers to this Interrogatory at KMDU000215-KMDU000625. (Id. at 10). Urzendowski's Answer to Interrogatory No. 13 and Heartland's Answers to Interrogatory Nos. 4 and 8 were already at issue in Plaintiff's first motion to compel.[8] In reference to Urzendowski's Answer to Interrogatory No. 13, Plaintiff sought, in its first motion to compel, an Order compelling Urzendowski to amend his Answer to provide the bates numbers of any responsive documents. (Order [Docket No. 278], at 36). Urzendowski's Answer to Interrogatory No. 13 purported to invoke Rule 33(d) in addition to providing a narrative response, but despite the purported invocation of Rule 33(d), Urzendowski did not specifically identify any of the documents from which his Answer could be derived. (Id. at 37). Therefore, this Court granted Plaintiff's first motion to compel in reference to that Interrogatory and Ordered Urzendowski to “specifically identify every document that contains his Answer to Interrogatory No. 13.” (Id.). *12 In reference to Heartland's Answers to Interrogatory Nos. 4 and 8, Plaintiff sought, in its first motion to compel, an Order compelling Heartland to Amend its Answers to provide more specificity in reference to Heartland's invocation of Rule 33(d) and to address any oral communications. (Id. at 27–29). After recognizing that “Plaintiff has limited Interrogatory No. 8 in scope to seek only information regarding ‘communications between or among Heartland employees regarding Midkiff, Urzendowski, or Shepherd's recruitment and/or their restrictive covenants or employment agreements,”[9] this Court found that the information sought by these interrogatories as limited is relevant, except that information related to the recruitment of Shepherd is only relevant insofar as that recruitment involved efforts by Urzendowski.[10] (Id. at 27). This Court further found that Heartland had sufficiently satisfied the requirements of Rule 33(d), but that the documents likely did not reflect all responsive oral communications. (Id. at 28–29). Therefore, this Court Ordered Heartland to identify oral communications, if any, that are not identified in the documents Heartland refers to in its Answers regarding the recruitment of Midkiff and/or Urzendowski. (Id. at 29). This Court further Ordered Heartland to identify oral communications, if any, that are not identified in the documents Heartland refers to in its Answers regarding the recruitment of Shepherd by Heartland if those recruitment efforts involved Urzendowski. (Id.). However, this Court specified that Heartland was not required to identify communications regarding the recruitment of Shepherd by Heartland if such efforts did not involve Urzendowski, and Heartland was not required to identify communications regarding Shepherd's employment agreement or non-compete agreement with Heartland. (Id.). Here, in regard to Interrogatory Nos. 12 and 13 to Midkiff and Urzendowski and Interrogatory Nos. 4 and 8 to Heartland, Plaintiff again seeks information related to the recruitment of Midkiff, Urzendowski, and/or Shepherd. Consistent with this Court's prior Order, [Docket No. 278], the Court finds as a threshold matter that the information requested by these interrogatories is relevant to the extent that it pertains to the recruitment of Midkiff and Urzendowski. However, information related to the recruitment of Shepherd is only relevant insofar as that recruitment involved efforts by Urzendowski. In its present second motion to compel, Plaintiff argues that the deposition testimony “of Midkiff, Urzendowski, and other Heartland representatives revealed deficiencies in these [prior] answers and responses.” (Mem. in Supp. [Docket No. 214], at 16). Specifically, Plaintiff now argues that those Answers are deficient because they: (1) do not disclose that Urzendowski provided an oral “short lists of names” of potential candidates for the positions filled by Midkiff and Shepherd; (2) are vague and evasive in reference to a “meet and greet” that took place in Nebraska as part of Heartland's recruitment of Midkiff; and (3) do not disclose that Urzendowski participated in a telephonic interview of Midkiff. (Id. at 16–17). *13 Each of Plaintiff's present arguments relates to oral communications that were not disclosed in Defendants’ interrogatory answers. It is apparent in light of the deposition testimony that Defendant's prior written discovery responses are deficient as they do not disclose responsive oral communications.[11] (See, e.g., Ex. D [Docket No. 133], at 49–54; Ex. F [Docket No. 135], at 33; Ex. 47 [Docket No. 253], at 13–14). To the extent that the deposition testimony is responsive to Interrogatory Nos. 12 and 13 to Midkiff and Urzendowski, they must amend their Interrogatory Answers to incorporate the responsive information. Midkiff and Urzendowski shall further amend their Answers to Interrogatory Nos. 12 and 13 to disclose supplemental responsive information, if any, not included in the deposition testimony, or Midkiff and Urzendowski must affirmatively state that no such further supplemental information exists.[12] In addition, Midkiff's Answer to Interrogatory No. 13 provides a narrative response, but also purports to “invoke[ ] his right under Fed. R. Civ. P. 33 to substitute access to documents for an answer because the burden of deriving the answer to this Interrogatory will be substantially the same for either party.” (Ex. Q [Docket No. 81-17], at 10–11). Despite his purported invocation of Rule 33(d), however, Midkiff does not specifically identify any documents from which his Answer can be derived. Accordingly, to the extent that he relies on documents for his answers here, Midkiff must specifically identify every document that he contends are his Answer to Interrogatory No. 13. See, Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., No. 9–cv–1091 (JNE/JSM), 2012 WL 12894846, *10 (D. Minn. May 11, 2012) (citation omitted) (“ ‘To answer an interrogatory, a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived.’ ”); see also, Pulsecard, Inc. v. Discover Card Servs., 168 F.R.D. 295, 305 (D. Kan. 1996) (“[Parties] may not simply refer generically to past or future production of documents. They must identify in their answers to the interrogatories specifically which documents contain the answer. Otherwise they must completely answer the interrogatories without referring to the documents.”). *14 Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED to the extent that it seeks an Order of this Court compelling Midkiff and Urzendowski to amend their Answers to Interrogatory Nos. 12 and 13 as described above. As noted above, this Court already Ordered Heartland to amend its Answers to Interrogatory Nos. 4 and 8, as were limited previously, to identify relevant, responsive oral communications, if any, that are not identified in the documents Heartland refers to in its Answers. (Order [Docket No. 278], at 29). Accordingly, Plaintiff's present, redundant arguments related to oral communications that were not disclosed in Heartland's Answers to Interrogatory Nos. 4 and 8 are moot. Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED as moot to the extent that it seeks an Order of this Court compelling Heartland to amend it Answers to Interrogatory Nos. 4 and 8.[13] v. Midkiff and Urzendowski's Responses to Request for Production of Documents No. 19, and Heartland's Responses to Request for Production of Documents No. 7. Immediately following its argument regarding Midkiff and Urzendowski's Answers to Interrogatory Nos. 12 and 13 and Heartland's Answers to Interrogatory Nos. 4 and 8, Plaintiff specifically states that it “further requests that the Court Order Midkiff to amend his response to Request No. 19, Urzendowski to Amend his response to Request No. 19, and Heartland to amend its response to Request No. 7 to the extent that additional documents response [sic] to these requests exist.” (Mem. in Supp. [Docket No. 214], at 17). However, once again, Plaintiff does not provide any meaningful statement of why Defendants’ responses to those requests are deficient. (See, Id.). Accordingly, this Court finds that Plaintiff's catchall, conclusory request fails to comply with Local Rule 37.1 because Plaintiff has not provided “a concise statement of why the disclosure, answer, response, production, or objection is insufficient, evasive, incomplete, or otherwise improper.” Indeed, Plaintiff has not specifically asserted that Midkiff and Urzendowski's Responses to Request for Production of Documents No. 19 or Heartland's Response to Request for Production of Documents No. 7 are deficient in any way. Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Midkiff and Urzendowski to amend their Responses to Request for Production of Documents No. 19 and Heartland to amend its Response to Request for Production of Documents No. 7. vi. Heartland's Answer to Interrogatory No. 25 and Response to Request for Production of Documents No. 29 INTERROGATORY NO. 25: Identify all in-progress, but not yet submitted, proposals, for any customer with whom Midkiff or Urzendowski had any contact while an employee of Marco, including, but not limited to, Catholic Archdiocese of Omaha, Crawford County Memorial Hospital, First State Bank, Greater Regional Medical Center, Great West Casualty Company, Hillcrest Health Systems, James Skinner Baking Company, Leo A. Daly Company, Lindsay Corporation, Memorial Health Care Systems, Midwest Laboratories, OrthoNebraska, Phelps Memorial Health Center, Physicians Laboratory Services, Pinnacle Bank, Team Software, Transwood, and McGrath North Mullin & Kratz, or any other potential sale discussed with any of those customers but not yet awarded or closed. *15 ANSWER: Heartland objects to this Interrogatory because the phrases “in-progress,” “not yet submitted,” “potential sale,” and “not yet awarded or closed” are vague and ambiguous. Heartland further objects to this Interrogatory as overbroad an unduly burdensome. (Ex. A [Docket No. 277-1], at 8). REQUEST NO. 29: Produce all documents reflecting or referring to any in-progress, but not yet submitted, proposals, for any customer with whom Midkiff or Urzendowski had any contact while an employee of Marco, including, but not limited to, Catholic Archdiocese of Omaha, Crawford County Memorial Hospital, First State Bank, Greater Regional Medical Center, Great West Casualty Company, Hillcrest Health Systems, James Skinner Baking Company, Leo A. Daly Company, Lindsay Corporation, Memorial Health Care Systems, Midwest Laboratories, OrthoNebraska, Phelps Memorial Health Center, Physicians Laboratory Services, Pinnacle Bank, Team Software, Transwood, and McGrath North Mullin & Kratz, or any other potential sale discussed with any of those customers but not yet awarded or closed. RESPONSE: Heartland objects to this Request because the phrases “in-progress,” “not yet submitted,” “potential sale,” and “not yet awarded or closed” are vague and ambiguous. Heartland further objects to this Request as unduly burdensome, overbroad and as seeking documents that are not relevant to the case. Subject to and without waiving the above objections and the General Objections, Heartland states that it will not produce documents responsive to this Request. (Ex. 10 [Docket No. 215-1], at 102–03). Interrogatory No. 25 and Request for Production of Documents No. 29 seek information related to in-progress, but not yet completed, proposals or sales that Heartland submitted to at-issue customers. In reference to Plaintiff's first motion to compel, this Court found that bids or proposals that Heartland has submitted, from January 1, 2019, to the present, to Plaintiff's customers with whom Midkiff and/or Urzendowski had worked while employed by Plaintiff were relevant, but not those related to customers with whom Shepherd, but not Midkiff or Urzendowski had worked. (Order [Docket No. 278], at 14–15). This Court Ordered Heartland to produce documents related to such bids or proposals that were responsive to Request for Production of Documents No. 12 for those customers with whom Midkiff and/or Urzendowski worked. (Id.). This Court also Ordered Heartland to amend its Answer to Interrogatory No. 13 to identify any such bids and proposals. (Id. at 25). Here, Defendants now argue that any still “in-progress” proposals or sales are not relevant. (Mem. in Opp'n [Docket No. 276], at 7). Specifically, Defendants assert that “[u]nder Minnesota law, the damages for a breach of a non-compete agreement should be limited to those damages sustained during the duration of the agreement,” and Defendants contend that because Midkiff and Urzendowski's non-compete agreements recently expired, “any [still] ‘in-progress’ proposals are irrelevant to the claims and defenses in this case.”[14] (Id.). The Court disagrees. *16 “[P]ost-agreement damages are consequential damages.” Porous Media Corp. v. Midland Brake Inc., 220 F.3d 954, 961 (8th Cir. 2000) (applying Minnesota Law); see also, Luminara Worldwide, LLC v. Liown Elec. Co. Ltd., No. 14-cv-03103 (SRN/FLN), 2017 WL 1064887, at *5 (D. Minn. Feb. 27, 2017) (finding post-agreement lost profits were consequential damages). Consequential damages “do not arise directly according to the usual course of things from the breach of the contract itself, but are rather those which are the consequence of special circumstances known to or reasonably supposed to have been contemplated by the parties when the contract was made.” Despatch Oven Co. v. Rauenhorst, 40 N.W.2d 73, 79 (Minn. 1949); see also, Christoff v. Paul Revere Life Ins. Co., No. 17-CV-3515 (JRT/TNL), 2020 WL 42833, at *4 (D. Minn. Jan. 3, 2020) (citations and quotations omitted) (“[C]onsequential damages are the natural, but not the necessary, result of a breach and are recoverable only if they were within the contemplation of the parties at the time of contracting or were so likely to result from the breach that they can reasonably be said to have been foreseen at the time of contracting.”). “Under Minnesota law, consequential damages suffered due to a breach, can be recovered so long as the party breaching the contract had reason to know of the potential losses.” Porous Media Corp., 220 F.2d at 961; see also, St. Jude Med. S.C., Inc. v. Biosemse Webster, Inc., 994 F. Supp. 2d 1033, 1046 (D. Minn. Feb. 3, 2014) (“Minnesota courts have never prohibited the recovery of consequential damages, including lost profits, for a breach of contract claim as long as the losses can be proven,” however, “Minnesota courts have routinely required consequential damages to be reasonably foreseeable by the contracting parties at the time of breach”). “In order to recover consequential damages in the form of lost profits under Minnesota law, a plaintiff must prove with reasonable certainty that it is entitled to such damages.” Porous Media Corp., 220 F.3d at 961. Specifically, “to recover consequential damages the non-breaching party must show that (1) the damages were the natural result of the breach; (2) the damages were actually contemplated or reasonably foreseeable by the parties at the time of contracting; and (3) the damages are monetary in nature and capable of definite calculation.” Christoff, 2020 WL 42833, at *4. Here, Plaintiff alleged its damages arise from any profits that it lost when its customers left as a direct result of Midkiff and Urzendowski's alleged breach of their non-compete agreements. (See, Am. Compl. [Docket No. 54]). Plaintiff expressly seeks consequential damages for each breach of contract claim and each breach of fiduciary duty of loyalty claim. (Id. ¶¶ 52, 57, 63, 68). Any lost profits Plaintiff incurred after the expiration of Midkiff and Urzendowski's non-compete agreements are potential consequential damages, which allegedly arise from the asserted prior breaches of Midkiff and Urzendowski's non-compete agreements. See, Porous Media Corp., 220 F.3d at 961; Luminara Worldwide, LLC, 2017 WL 1064887, at *5. As consequential damages, Plaintiff's post-agreement lost profits may be recoverable under Minnesota Law provided they were the natural result of the breach, actually contemplated or reasonably foreseeable, and can be proven with reasonable certainty. See, Christoff, 2020 WL 42833, at *4; see also, St. Jude Med. S.C., Inc., 994 F. Supp. 2d at 1047 (finding that consequential damages arising out of the breach of an employment contract were potentially recoverable). The terms of Midkiff and Urzendowski's non-compete agreements with Plaintiff do not preclude the recovery of the consequential damages. (See, Exs. 1, 2 [Docket No. 54-1], 1–12). Indeed, both non-compete agreements expressly state: “Employee understands and agrees that the Company may seek and recover monetary damages for any breach or threatened breach, including actual damages, consequential damages and a request for punitive damages.” (Id. at 5, 11). Moreover, both non-compete agreements also contain extension clauses that purport to extend the non-compete agreement's effective period in the event of a breach. (Id.). *17 The question of whether Plaintiff will ultimately be entitled to post-agreement consequential damages is not presently before this Court. Rather, the sole question now before this Court is whether information related to such damages is relevant to the claims and/or defenses at issue and therefore discoverable. Plaintiff's Amended Complaint expressly seeks consequential damages, the terms of the non-compete agreements do not preclude consequential damages, and post-agreement consequential damages may ultimately be recoverable under Minnesota Law. As such, this Court finds that information related to in-progress, but not yet completed, proposals or sales, if any, that Heartland submitted to Plaintiff's customers with whom Midkiff and/or Urzendowski worked while employed by Plaintiff and with whom Heartland made initial contact, before the expiration of Midkiff and Urzendowski's non-compete agreements, is relevant to Plaintiff's damages. However, this Court finds that information related to still in-progress, but not yet completed, proposals or sales, if any, that Heartland submitted to Plaintiff's customers with whom Midkiff and/or Urzendowski worked while employed by Plaintiff and with whom Heartland first made initial contact, after the expiration of Midkiff and Urzendowski's non-compete agreements, is not relevant to Plaintiff's damages. Consequential damages must be the natural result of a breach. See, e.g., Christoff, 2020 WL 42833, at *4. The alleged breaches of Midkiff and Urzendowski's non-compete agreements occurred when they solicited Plaintiff's customers during the non-compete agreements effective period. Hence, where contact with Plaintiff's customers was initiated after the expiration of Midkiff and Urzendowski's non-compete agreements, there can be no breach of their non-compete agreements to support a claim for consequential damages.[15] Accordingly, Heartland must amend its Answer to Interrogatory No. 25 to identify still in-progress, but not yet completed, proposals or sales, if any, for Plaintiff's customers with whom Midkiff and/or Urzendowski worked while employed by Plaintiff and with whom Heartland made initial contact before the expiration of Midkiff and Urzendowski's non-compete agreements, or Heartland must affirmatively state that no such information exists. Likewise, in reference to Request for Production of Documents No. 29, Heartland must either produce all documents reflecting or referring to still in-progress, but not yet completed proposals or sales, if any, for Plaintiff's customers with whom Midkiff or Urzendowski worked while employed by Plaintiff and with whom Heartland made initial contact before the expiration of Midkiff and Urzendowski's non-compete agreements, or Heartland must affirmatively state that no such documents exist.[16] *18 However, Heartland is not required to identify or produce documents related to still in-progress, but not yet completed, proposals or sales, if any, for Plaintiff's customers with whom Midkiff or Urzendowski worked while employed by Plaintiff, but with whom Heartland made the initial contact therefore after the expiration of Midkiff and Urzendowski's non-compete agreements. Accordingly, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED to the extent that it seeks an Order of this Court compelling Heartland to amend its Answer to Interrogatory No. 25 and to supplement its Response to Request for Production of Documents No. 29 as described above. vii. Heartland's Answer to Interrogatory No. 23 and Response to Request for Production No. 28 INTERROGATORY NO. 23: Describe all completed and ongoing efforts of Heartland to forecast, estimate, or project future business or revenues for Heartland's Nebraska office or operations, whether on a customer-by-customer basis or otherwise, including the results of those projections related to possible future sales to any customer with whom Midkiff or Urzendowski had any contact while an employee of Marco, including, but not necessarily limited to, Catholic Archdiocese of Omaha, Crawford County Memorial Hospital, First State Bank, Greater Regional Medical Center, Great West Casualty Company, Hillcrest Health Systems, James Skinner Baking Company, Leo A. Daly Company, Lindsay Corporation, Memorial Health Care Systems, Midwest Laboratories, OrthoNebraska, Phelps Memorial Health Center, Physicians Laboratory Services, Pinnacle Bank, Team Software, Transwood, and McGrath North Mullin & Kratz. ANSWER: Heartland objects to this Interrogatory because the phrase “possible future sales” is vague and ambiguous. Subject to the above objections and the General Objections, Heartland states that it is in the process of forecasting business and revenue for all customers serviced by Heartland's Nebraska office for the fiscal year 2021 as part of its annual budget cycle. This annual budget cycle began in August 2020 and will be finalized in October 2021. AMENDED ANSWER: The budget cycle will be finalized in October 2020. In addition to the objections and answer above, Heartland also states that its primary revenue is from project work, using hardware and expertise of its service engineers. Heartland plans based on targets for project work by region and based on assumptions provided by Cisco and from sales consultants in the field looking at the opportunities they see. Heartland has not focused on long-term contracted managed services in Nebraska, and therefore does not have any managed services contract business in Nebraska spanning multiple years. (Ex. A [Docket No. 277-1], at 6–7). REQUEST NO. 28: Produce all documents reflecting or referring to any forecasts, estimates, or projections of future business or revenues for Heartland's Nebraska office or operations, whether on a customer-by-customer basis or otherwise, including, but not limited to, any customer with whom Midkiff or Urzendowski had any contact while an employee of Marco, including, but not limited to, Catholic Archdiocese of Omaha, Crawford County Memorial Hospital, First State Bank, Greater Regional Medical Center, Great West Casualty Company, Hillcrest Health Systems, James Skinner Baking Company, Leo A. Daly Company, Lindsay Corporation, Memorial Health Care Systems, Midwest Laboratories, OrthoNebraska, Phelps Memorial Health Center, Physicians Laboratory Services, Pinnacle Bank, Team Software, Transwood, and McGrath North Mullin & Kratz. *19 RESPONSE: Heartland objects to this Request because the phrases “forecasts, estimates, or projects of future business or revenues” are vague and ambiguous. Heartland further objects to the Request as irrelevant to the extent it seeks financial information of all Heartland's Nebraska customers and not just the customers at-issue in this case. Subject to and without waiving the above objections and the General Objections, Heartland states that, to the extent it understands the Request, it will produce relevant documents responsive to this Request, if any exist. (Ex. 10 [Docket No. 215-1], at 103–04). Interrogatory No. 23 and Request for Production of Documents No. 28 seek information related to Heartland's future revenue forecasts, estimates, or projections. After Plaintiff filed the present second motion to compel, Heartland amended its Answer to Interrogatory No. 23 to provide additional information. Moreover, at the Motion Hearing, Plaintiff stated that it would further narrow the information sought by Interrogatory No. 23 and Request for Production of Documents No. 28 to only seek revenue forecasts related to at-issue customers. (October 29, 2020, Motion Hearing, Digital Record at 11:09). Heartland previously represented that “no documents exist[ed] and there is no more information to provide,” but that Heartland would produce requested revenue forecasts at least through the expiration of Midkiff and Urzendowski's non-compete agreements once its budget cycle was completed. (Mem. in Opp'n [Docket No. 276], at 8; Pavelko Decl. [Docket No. 277] ¶¶ 2, 5). On the present record, it is not clear whether any revenue forecasts at all have yet been produced. Moreover, as already noted, it is improper for Heartland to self-limit its production of all responsive revenue forecasts for at-issue customers only up to the expiration of Midkiff and Urzendowski's non-compete agreements. As a threshold matter, this Court finds that the information sought by Interrogatory No. 23 and Request for Production of Documents No. 28, as now limited, is relevant to Plaintiff's claim for damages. For the reasons explained above, such information is relevant beyond the expiration of Midkiff and Urzendowski's non-compete agreements provided the resulting sales or revenue forecasts arose from initial contact between Heartland and Plaintiff's at-issue customers occurred before the expiration of the Midkiff and Urzendowski non-compete agreements. Accordingly, Heartland must amend its Answer to Interrogatory No. 23 to describe all completed and still ongoing Heartland forecasts, estimates, or projections of future business or revenues for at-issue customers, or to affirmatively state that no additional information exists. In reference to Request for Production of Documents No. 28, subject to the same narrowing of scope as the Court discussed above, Plaintiff must produce documents reflecting or referring to any forecasts, estimates, or projections of future business or revenues for at-issue customers, or amend its Response to affirmatively state that no such documents exist. Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED to the extent that it seeks an Order of this Court compelling Heartland to amend its Answer to Interrogatory No. 23 and to supplement its Response to Request for Production of Documents No. 28 as described above. viii. Heartland's Response to Request for Production No. 31 *20 REQUEST NO. 31: Produce all documents that you have relied upon and/or will rely upon at trial, in refuting or attempting to refute Marco's damages calculations in this lawsuit or any part thereof. RESPONSE: Heartland objects to this Request to the extent it attempts to impose a burden on Heartland that is beyond the scope of the Federal Rules of Civil Procedure. Heartland further objects to this Request because it seeks documents that are already in the possession of Plaintiff. Heartland further objects to this Request as overbroad, unduly burdensome, and irrelevant to any claim or defenses. Subject to and without waiving the above objections and the General Objections, Heartland states that it will produce relevant documents responsive to this Request, if any exist. (Ex. 10 [Docket No. 215-1], at 105). Request for Production of Documents No. 31 seeks documents that Heartland has relied upon and/or will rely at trial in attempting to refute Plaintiff's damages calculations. In the present motion, Plaintiff seeks an Order compelling Heartland to identify by bates number any documents that are responsive to Request for Production of Documents No. 31. (Mem. in Supp. [Docket No. 214], at 21). However, Heartland argues that although it “is not withholding any documents responsive to this request,” requiring it “to identify documents it will rely upon at trial violates the work-product doctrine and seeks the mental impressions of Heartland's attorneys.” (Mem. in Opp'n [Docket No. 276], at 9–10). The Court agrees. “The work product privilege is designed to promote the operation of the adversary system by ensuring that a party cannot obtain materials that his opponent has prepared in anticipation of litigation.” Pittman v. Frazier, 129 F.3d 983, 988 (8th Cir. 1997). “Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories.” Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). “[O]pinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances ....” Id. By requesting the specific bates numbers of all documents responsive to Request for Production of Documents No. 31 which Defendants’ counsel will seek to use at trial, Plaintiff is clearly seeking to discover the mental impressions, conclusions, opinions or legal theories of Heartland's counsel. Heartland is not required to specify which documents it intends to rely on at trial because such information “is patently work-product.” See, e.g., Mead Corp. v. Riverwood Nat. Res. Corp., 145 F.R.D. 512, 521 (D. Minn. 1992) (sustaining objections based upon the work-product doctrine where discovery requests sought the disclosure of documents that the defendant intended to rely on at trial). Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Heartland to amend its Response to Request for Production of Documents No. 31. ix. Shepherd's Response to the Subpoena The Subpoena that Plaintiff served upon non-party Shepherd on August 11, 2020, contains 7 document requests. (Ex. 16 [Docket No. 215-2], at 5–10). In the present motion, Plaintiff moves to compel Shepherd to produce documents responsive to each of the 7 requests. (See, Mem. in Supp. [Docket No. 214], at 22–28). 1. Request Nos. 1 and 2 *21 REQUEST NO. 1: Produce any and all communications between you and Dan Urzendowski prior to September 1, 2019 that relate or refer to Heartland Business Systems. OBJECTION: Shepherd objects to this Request because the phrase “relate ... to Heartland Business Systems” is vague and ambiguous. Shepherd further objects to this Request as overbroad, unduly burdensome, and irrelevant because it seeks all communications for an unlimited timeframe. Shepherd further objects to this Request because it seeks communications that are outside Shepherd's possession, custody, or control and are actually in Plaintiff's possession custody, or control. Subject to and without waiving the above objections or the General Objections, Shepherd states that he will produce text messages between Shepherd and Urzendowski prior to September 1, 2019 that relate or refer to Heartland Business Systems, if any exist. REQUEST NO. 2: Produce any and all communications between you and Keith Midkiff prior to September 1, 2019 that relate or refer to Heartland Business Systems. OBJECTION: Shepherd objects to this Request because the phrase “relate ... to Heartland Business Systems” is vague and ambiguous. Shepherd further objects to this Request as overbroad, unduly burdensome, and irrelevant because it seeks communications for an unlimited timeframe and with an unlimited scope. Shepherd further objects to this Request because it seeks communications that are outside Shepherd's possession, custody, or control and are actually in Plaintiff's possession custody, or control. Subject to and without waiving the above objections or the General Objections, Defendants state that Shepherd will produce text messages between Shepherd and Midkiff prior to September 1, 2019 that relate or refer to Heartland Business Systems, if any exist. (Ex. 17 [Docket No. 215-2], at 14–15). Subpoena Request Nos. 1 and 2 seek the production of communications between Shepherd and Midkiff or Urzendowski prior to September 1, 2019, that relate or refer to Heartland Business Systems. Defendants represent that Shepherd has produced all responsive communications from his personal devices. (Mem. in Opp'n [Docket No. 276], at 12). However, Defendants contend that Shepherd cannot produce emails from his Heartland email account because he does not have possession, custody, or control of his Heartland email account.[17] (Id. at 11–14). Plaintiff contends that Shepherd's possession, custody, and control objection is improper, and seeks an Order of this Court “compelling Shepherd to produce any emails he exchanged with Midkiff or Urzendowski related to Heartland prior to September 1, 2019.” (Mem. in Supp. [Docket No. 214], at 24). *22 “[C]ontrol is defined as “the legal right, authority, or ability to obtain upon demand documents in the possession of another.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000). However, “ ‘control’ does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.” Id.; accord, In re Hallmark Cap, Corp., 534 F. Supp. 2d 981, 982 (D. Minn. 2008); see also, FCA Constr. Co., LLC v. Singles Roofing Co., Inc., No. 09-3700 ADM/AJB, 2011 WL 13228121, at *3 (D. Minn. Aug. 2, 2011) (“The party to whom the discovery is directed need not have legal ownership or actual physical possession, but rather a ‘practical ability’ to obtain the documents.”). Here, if nothing else, Shepherd clearly has the practical ability to obtain emails contained in his Heartland email account. Therefore, this Court finds that Shepherd has “control” over emails in his Heartland email account. “[S]ubpoenas issued under Rule 45 are subject to the same ‘constraints that apply to all of the other methods of formal discovery.’ ” Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 236 (D. Minn. 2013) (quoting Marvin Lumber & Cedar Co. v. PPG Indus. Inc., 177 F.R.D. 443, 443 (D. Minn. 1997)). Thus, even where a subpoena seeks relevant documents, a court “ ‘must limit the frequency or extent of discovery otherwise allowed’ by the Rules if ‘the discovery sought is unreasonably cumulative or duplicative’ or ‘the burden or expense of the proposed discovery outweighs its likely benefit.’ ” Id. (quoting Fed. R. Civ. P. 26(b)(2)(C)). “No rule requires the requesting party to seek discovery from only one party to any given conversation.” Deluxe Fin. Servs., LLC v. Shaw, No. 16-cv-3065 (JRT/HB), 2017 WL 7369890, at *4 (D. Minn. Feb. 13, 2017). Nonetheless, “concern for the burden on non-parties carries ‘special weight in evaluating the balance of competing needs.’ ” Id. at *4 (quoting Misc. Docket Matter No. 1 v. Misc. Docket Matter No. 2, 197 F. 3d 922, 927 (8th Cir. 1999)). “Therefore, it may be appropriate to prohibit a party from obtaining discovery from a non-party if that same discovery is available from another party to the litigation.” Gen. Parts Distrib., LLC v. Perry, No. 12-mc-93 (SRN/SER), 2013 WL 3223374, at *4 (D. Minn. June 25, 2013); see also, Deluxe Fin. Servs, LLC, 2017 WL 7369890, at *5. (“Among other considerations, the Court can consider whether and to what extent the discovery sought can be more easily obtained from another source, in this instance, from the parties themselves.”). In reference to Plaintiff's first motion to compel, this Court already found that “information related to the recruitment of Shepherd is only relevant insofar as that recruitment involved efforts by Urzendowski.” (Order [Docket No. 278], at 27). The Court further found that documents related to communications that Shepherd has had regarding efforts by Heartland to provide services to Plaintiff's customers are only relevant to the extent that they relate to efforts by Midkiff or Urzendowski to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019. (Id. at 13–14). Shepherd informed Plaintiff that he was resigning and going to work for Heartland in August 2019, and he appears to have started his position with Heartland later that month. (See, e.g., Am. Compl. [Docket No. 54] ¶ 34; Ex. C [Docket No. 277-3], at 2). Plaintiff alleges that Urzendowski recruited Shepherd in violation of Urzendowski's non-solicitation agreement with Plaintiff. (See, e.g., Am. Compl. [Docket No. 54] ¶ 56). Accordingly, the Court finds that communications between Shepherd and Urzendowski prior to September 1, 2019, that relate or refer to Heartland are generally relevant to Plaintiff's allegations that Urzendowski recruited Shepherd to work at Heartland. Communications between Shepherd and Urzendowski prior to September 1, 2019, that relate or refer to Heartland may also be relevant to efforts by Midkiff or Urzendowski to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019. *23 Plaintiff does not allege that Midkiff was involved in the recruitment of Shepherd to work at Heartland. (See, Am. Compl. [Docket No. 54]). Therefore, this Court finds that Shepherd's communications with Midkiff are only relevant to the extent that they relate to efforts to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019,[18] or to efforts by Urzendowski to recruit Shepherd to Heartland. Defendants represent that Shepherd has already produced all responsive documents in his possession, custody, and control. (See, Mem. in Opp'n [Docket No. 276], at 11–14). However, Defendants’ representation is based on the erroneous belief that Shepherd does not have possession, custody, or control over emails in his Heartland email account. (See, Id.). Further, because the Subpoena is directed at Shepherd, he must respond to the request and cannot rely on Defendants’ representations. Still, the Court notes that to the extent they are relevant, Plaintiff has already requested the production of Shepherd's company account emails from Heartland.[19] (See, e.g., Exs. 1, 10 [Docket No. 215-1], at 18–19, 24, 102). Moreover, to the extent that those emails relate to efforts by Midkiff or Urzendowski to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019, this Court has already Ordered Heartland to produce Shepherd's emails. (Order [Docket No. 278], at 14). This Court reaffirms its prior Order, [Docket No. 278], and finds that it would be unreasonably cumulative to require Shepherd to produce responsive documents that have already been produced by one or more of the named Defendants. See, Shukh, 295 F.R.D. at 236; see also, Abhe & Svoboda, Inc. v. Hedley, No. 15-1952 (WMW/BRT), 2016 WL 115099014, at *4 & n.7 (D. Minn. Mar. 15, 2016) (finding that a third party was not required to produce documents that had already been produced by a party). Nonetheless, it is not clear on the present record whether and to what extent Defendants have actually produced all documents that are responsive to Subpoena Request Nos. 1 and 2. Accordingly, to the extent that such documents have not already been produced by the named Defendants, Shepherd must either produce all communications between Shepherd and Urzendowski prior to September 1, 2019, that relate or refer to Heartland, all communications between Shepherd and Midkiff that relate to efforts to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019, or to efforts by Urzendowski to recruit Shepherd to Heartland. Alternatively, Shepherd must affirmatively state on his own behalf as the recipient of the Subpoena that all such documents have been provided. Shepherd is not required to produce duplicative documents that have already been produced by Defendants.[20] See, Fair v. Commc'ns Unlimited Inc., 4:17 CV 2391 RWS, 2019 WL 227928, at *2 (E.D. Mo. Jan. 16, 2019) (denying motion to quash subpoena where the information sought from the non-party had already been requested, but not been produced, from a party that was in possession of the same information); Marchionda v. Embassy Suites Franchise, LLC, No. 4:15-cv-00479-JEG-SBJ, 2018 WL 8458792, at *5–7 (S.D. Iowa July 10, 2018) (finding that third parties were not required to provide information that had already been obtained from the parties but were required to produce information that had not yet been obtained). *24 Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED in part and DENIED in part to the extent that it seeks an Order of this Court compelling Shepherd to produce emails in response to Subpoena Request Nos. 1 and 2. 2. Request No. 3 REQUEST NO. 3: Produce any and all communications between you and any Heartland Business Systems employee or representative prior to September 1, 2019. OBJECTION: Shepherd objects to this Request as overbroad, unduly burdensome, and seeking irrelevant communications because it seeks communications unlimited in timeframe and subject-matter. Shepherd further objects to this Request because it seeks communications that are outside Shepherd's possession, custody, or control. Subject to and without waiving the above objections or the General Objections, Shepherd states that he will not documents responsive to this request. (Ex. 17 [Docket No. 215-2], at 15). Subpoena Request No. 3 seeks the production of all communications between Shepherd and any Heartland employee prior to September 1, 2019. Shepherd is not a party to this case, and Shepherd did not have a non-compete agreement with Plaintiff. As noted above, this Court has already found that “information related to the recruitment of Shepherd is only relevant insofar as that recruitment involved efforts by Urzendowski” and that “documents related to communications that Shepherd has had [regarding efforts by Heartland to provide services to Plaintiff's customers] are only relevant to the extent that they relate to efforts by Midkiff or Urzendowski to provide Heartland services to Plaintiff's customers and former customers with whom Plaintiff had a business relationship prior to June 28, 2019.” (Order [Docket No. 278], at 13–14, 27). Accordingly, Subpoena Request No. 3 is defectively overbroad in that it requests all communications between Shepherd and Heartland employees regardless of whether those communications involved or were related to Midkiff and/or Urzendowski. Although some limited portion of the discovery sought by Subpoena Request No. 3 may be relevant, Subpoena Request No. 3 seeks large amounts of discovery that is plainly not relevant. As such, the Court finds that Shepherd is not required to produce any materials in response to Subpoena Request No. 3. See, e.g., McGinnis v. Soo Line R.R. Co., No. 12-795 (DSD/JJK), 2013 WL 1748710, at *2 (D. Minn. Apr. 23, 2013) (citing WWP, Inc. v. Wounded Warriors Fam. Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011)) (“Even if a request for production seeks relevant information, however, it may nonetheless be denied if it is overbroad.”). Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Shepherd to produce documents in response to Subpoena Request No. 3. 3. Request Nos. 4 and 5 REQUEST NO. 4: Produce any and all communications between you and any person that relate or refer to your recruitment, application, or hiring at Heartland Business Systems. OBJECTION: Shepherd objects to this Request as overbroad, unduly burdensome, and seeking irrelevant communications because (1) it seeks communications with “any person” and not Midkiff and Urzendowski, and (2) Shepherd did not have restrictive covenants in his employment agreement with Marco and therefore his recruitment, application, and hiring at Heartland is largely irrelevant. Shepherd further objects to this Request as duplicative of prior requests and previous discovery, namely Plaintiff's deposition of Chad Shepherd. Shepherd further objects to this Request because it seeks communications that are outside Shepherd's possession, custody, or control. Subject to and without waiving the above objections or the General Objections, Shepherd states that Plaintiff is already in possession of Shepherd's application to Heartland, Heartland's offer to Shepherd, Shepherd's acceptance, and all communications between Urzendowski and/or Midkiff with Shepherd related to Shepherd's recruitment, application, and hiring at Heartland. Shepherd further states that it will produce relevant communications responsive to this Request, if any exist. *25 REQUEST NO. 5: Produce any and all documents that relate or refer to your recruitment, application, or hiring at Heartland Business Systems. OBJECTION: Shepherd objects to this Request as overbroad, unduly burdensome, and seeking irrelevant documents because (1) it seeks all documents and not documents sent by Midkiff and Urzendowski, and (2) Shepherd did not have restrictive covenants in his employment agreement with Marco and therefore his 6recruitment, application, and hiring at Heartland is only relevant to the extent he was recruited by Midkiff or Urzendowksi. Shepherd further objects to this Request as duplicative of prior requests and previous discovery, namely Plaintiff's deposition of Chad Shepherd. Shepherd further objects to this Request because it seeks documents that are outside Shepherd's possession, custody, or control. Subject to and without waiving the above objections or the General Objections, Shepherd states that Plaintiff is already in possession of Shepherd's application to Heartland, Heartland's offer to Shepherd, Shepherd's acceptance, and all communications between Urzendowski and/or Midkiff with Shepherd related to Shepherd's recruitment, application, and hiring at Heartland. Shepherd will not produce any additional documents responsive to this Request. (Ex. 17 [Docket No. 215-2], at 15–17). Subpoena Request Nos. 4 and 5 seek the production of communications and documents that refer or relate to Shepherd's recruitment, application, or hiring at Heartland. In reference to Request No. 4, this Court finds that the Request is here too overbroad in that it seeks all communications between Shepherd and any person that relate or refer to Shepherd's recruitment, application, or hiring at Heartland Business Systems. As already noted, Shepherd did not have a non-compete agreement with Plaintiff and information related to the recruitment of Shepherd is only relevant insofar as that recruitment involved efforts by Urzendowski. (See, Order [Docket No. 278], at 13–14). Thus, Shepherd is not required to produce any materials in response to the overly broad Subpoena Request No. 4.[21] See, e.g., McGinnis v. Soo Line R.R. Co., No. 12-795 (DSD/JJK), 2013 WL 1748710, at *2. In reference to Request No. 5, this Court notes that it recognized in its prior Order that “Heartland has already voluntarily provided Shepherd's offer letter, employment offer, and application for employment,” and that “Shepherd's offer letter contains his job description.” (Order [Docket No. 278], at 31). This Court also recognized in its prior Order that “Shepherd is an engineer, not a salesperson like Midkiff and Urzendowski,” and this Court found that “[t]he mere fact that he may have worked with Midkiff and Urzendowski while employed by Plaintiff, and may now work with Midkiff and Urzendowski while employed by Heartland, does not render Shepherd's own employment documents with Heartland relevant to the claims against Midkiff, Urzendowski, and Heartland in the present case.” (Id. at 32–33). Moreover, this Court found that “the enforceability of Midkiff and Urzendowski's own non-compete agreements with Plaintiff do not hinge in any way on whether Heartland required Shepherd to sign a non-compete agreement when he joined Heartland.” (Id. at 33). Therefore, this Court concluded in its prior Order that Plaintiff had not made a threshold showing that Shepherd's employment documents, specifically his non-compete agreement with Heartland and commission or bonus documentation, are relevant to the claims or defenses in this case. (Id.). *26 Here, Plaintiff does not now provide any specific explanation as to how Shepherd's employment documents with Heartland are relevant to the present case beyond generally stating that Shepherd is “the third member of Midkiff and Urzendowski's sales team.” (See, Mem. in Supp. [Docket No. 214], at 7, 21–22, 24–25).[22] Shepherd is not a party to this case, and Shepherd did not have a non-compete agreement with Plaintiff. Accordingly, this Court finds that Plaintiff has again not made a threshold showing that his Heartland employment documents sought by Subpoena Request No. 5 are relevant to the claims or defenses in this case. See, Hofer, 981 F.2d at 380. Hence, Shepherd is not required to produce any materials in response to Subpoena Request No. 5. Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Shepherd to produce documents in response to Subpoena Request Nos. 4 and 5. REQUEST NO. 6: Produce any and all communications, from June 28, 2019 to the present, between you and any customer with whom you worked at Marco. OBJECTION: Shepherd objects to this Request as overbroad, unduly burdensome, and seeking irrelevant communications because (1) it seeks communications unlimited in time frame, (2) it has no subject matter, and (3) Shepherd did not have restrictive covenants in his employment agreement with Marco and therefore his communications with Marco customers are irrelevant. Shepherd further objects to this Request as duplicative of prior Requests and previous discovery, namely Plaintiff's deposition of Chad Shepherd. Shepherd further objects to this Request because it seeks documents that are outside Shepherd's possession, custody, or control. Subject to and without waiving the above objections or the General Objections, Shepherd will produce relevant initial communications in his possession, custody, or control between Shepherd and the at-issue customers that demonstrate how a relationship between Heartland and these customers began, if any exist. (Ex. 17 [Docket No. 215-2], at 17–18). Subpoena Request No. 6 seeks all communications, from June 28, 2019, to the present, between Shepherd and any customer with whom he worked while employed by Plaintiff. Plaintiff argues only generically that the information sought by Request No. 6 is relevant “because [Shepherd] is part of Midkiff and Urzendowski's sales team” and “[i]mproper communications between Heartland and those customers are not immunized by the fact that they may have come from Shepherd rather than from Midkiff and Urzendowski.” (Mem. in Supp. [Docket No. 214], at 26–27). However, “Shepherd is not a Party to this case, and Shepherd did not have a non-compete agreement with Plaintiff. Any solicitation efforts by Shepherd, if acting alone, are not actionable in this case.” (Order [Docket No. 278], at 32) (citation omitted). *27 The mere fact that Shepherd may have worked with Midkiff and Urzendowski while employed by Plaintiff, and may now on occasion work with Midkiff and Urzendowski while employed by Heartland, does not render every one of Shepherd's communications with any customers with whom he worked while employed by Plaintiff “improper.” Nor does it render every such communications relevant. Accordingly, Subpoena Request No. 6 is overbroad in that it requests all communications Shepherd has had with any customer with whom he worked while employed by Plaintiff regardless of whether those communications are in any way related to Midkiff and/or Urzendowski. Although some limited portion of the discovery sought by Subpoena Request No. 6 may be relevant, Subpoena Request No. 6 seeks large amounts of discovery that is plainly not relevant. As such, the Court finds that Shepherd is not required to produce any materials in response to the patently overbroad Subpoena Request No. 6. See, e.g., McGinnis, 2013 WL 1748710, at *2. Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is DENIED to the extent that it seeks an Order of this Court compelling Shepherd to produce documents in response to Subpoena Request No. 6. REQUEST NO. 7: Produce any and all communications between you and any person that relate or refer to the lawsuit captioned Marco Technologies, LLC v. Keith Midkiff, Dan Urzendowski, and Heartland Business Systems, LLC (19-CV-2323). OBJECTION: Shepherd objects to this Request to the extent it seeks documents that are protected by the attorney-client privilege and/or work product doctrine. Shepherd further objects to this Request because it is overbroad, unduly burdensome, not proportional, vague, ambiguous, and seeks documents that are irrelevant to the claims and defenses in this case because Shepherd is not a defendant in the above-captioned lawsuit. Subject to and without waiving the above objections or the General Objections, Shepherd states it will not produce documents responsive to this Request. (Ex. 17 [Docket No. 215-2], at 18). Subpoena Request No. 7 seeks all communications that Shepherd has had with any person that relate or refer in any way to the present case. Defendants represent that despite objecting to this Request, “Shepherd has produced all non-privileged communications responsive to this Request.” (Mem. in Opp'n [Docket No. 276], at 19; Pavelko Decl. [Docket No. 277] ¶ 4). The Court cannot order the production of evidence that does not exist. See, e.g., Farmers Ins. Exch. v. West, No. 11-2297 (PAM/JJK), 2012 WL 12894845, at *5 (D. Minn. Sept. 21, 2012); Struzyk v. Prudential Ins. Co. of Am., No. 99-1736 (JRT/FLN), 2003 WL 21302966, at *2 (D. Minn. May 16, 2003). However, because the Subpoena is directed at Shepherd, he must respond to the request and cannot rely on Defendants’ representations. This Court finds that Shepherd's specific communications regarding the present entitled case itself are clearly relevant. As such, Shepherd's Response to Subpoena Request No. 7, which states that he will not produce any responsive documents, is plainly deficient. Accordingly, Shepherd must produce all non-privileged documents responsive to Subpoena Request No. 7, if any, or Shepherd must affirmatively state that no such documents exist. Further, if Shepherd is withholding any documents on the basis of attorney-client privilege or work-product doctrine, he must produce a detailed privilege log describing the withheld documents. See, e.g., Bigham v. R & S Heating, No. 14-1357 (DWF), 2020 WL 6743481, at *4 (D. Minn. Nov. 17, 2020) (quoting Fed. R. Civ. P. 26(b)(5)(A)(ii)) (“When a party withholds information pursuant to either the attorney-client privilege or the work-product doctrine, it must produce a privilege log that ‘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.’ ”). *28 Therefore, Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED to the extent that it seeks an Order of this Court compelling Shepherd to produce documents in response to Subpoena Request No. 7 as described above. III. CONCLUSION For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Plaintiff's Second Motion to Compel Discovery, [Docket No. 212], is GRANTED in part and DENIED in part, as set forth above. Defendants and non-party, Chad Shepherd shall Amend their responses and supplement their production, as set forth above, within fourteen (14) days of this Order. Footnotes [1] The Court notes that Plaintiff's First Amended Complaint does not assert a claim for Tortious Interference with Prospective Economic Advantage against any Defendant. [Docket No. 54]. [2] Plaintiff filed a previous motion to compel discovery on June 22, 2020, [Docket No. 79], which was Granted in part and Denied in part by the undersigned on October 8, 2020. [Docket No. 278]. [3] Plaintiff also requests that this Court award the expenses, including attorneys’ fees, that Plaintiff has incurred in bringing the present motion. (Plf.’s Second Mot. to Compel Disc. [Docket No. 212]). The Court DENIES Plaintiff's request for attorneys’ fees and expenses. [4] This Court notes that Plaintiff could have raised several of his present requests in his first motion to compel. Indeed, some of the same discovery requests that were at issue in Plaintiff's first motion to compel are again at issue in the present motion, and Plaintiff now asserts new arguments for why they are deficient. The circumstances surrounding many, if not all, of those overlapping discovery requests did not materially change between the filing of Plaintiff's first and second motions to compel. As such, Plaintiff's present requests which could have been, but were not, raised in Plaintiff's first motion to compel could be denied as untimely due to Plaintiff's lack of diligence, despite technically being compliant with the Amended Pretrial Scheduling Order, [Docket No. 72]. See, e.g., Stai v. Deshane, No. 14-cv-4152 (RHK/LIB), 2016 WL 11031224, at *4–5 (D. Minn. Jan. 22, 2016) (collecting cases). Nevertheless, in the interest of concluding discovery without the need for further extensions, the Court will address each of Plaintiff's present requests on the merits. [5] In reference to Plaintiff's first motion to compel, this Court temporally limited the production of bids and proposals submitted by Heartland to customers of Plaintiff with whom Midkiff and/or Urzendowski worked while employed by Plaintiff to those bids and proposals that were submitted from January 1, 2019, to the present. (Order [Docket No. 278], at 25 & n.10). Noting that Plaintiff's Amended Complaint does not allege that Urzendowski discussed employment opportunities with Heartland prior to April 2019, and noting that Plaintiff had not asserted any argument as to how bids and proposals, if any, would be relevant prior to January 1, 2019, this Court found that Plaintiff had not made a threshold showing that bids and proposals, if any, which pedate January 1, 2019, are relevant to this case. (Id.). Similarly, Plaintiff has not asserted any argument here as to how initial contacts, if any, that predate January 1, 2019, are relevant to any claims or defenses in this case. (See, Mem. in Supp. [Docket No. 214], at 10–12). Thus, this Court finds that Plaintiff has not made a threshold showing that initial contacts with at-issue customers that predate January 1, 2019, if any, are relevant to any claims or defenses in this case. See, Hofer, 981 F.2d at 380. [6] Should Heartland represent that all such information has been provided, it necessarily does so at its own peril should it ultimately become clear that the circumstances are otherwise. Lumber v. PPG Indus., Inc., 168 F.R.D. 641, 643 n.1 (D. Minn. 1996) (“In our view, the failure to produce evidence, without just cause, which is relevant within the context of Rule 26, Federal Rules of Civil Procedure, bears a close relationship to the ‘spoliation of evidence,’ and should be sanctioned accordingly.”). [7] To the extent that Plaintiff's request seeks an order compelling Defendants to amend any other additional interrogatories beyond Urzendowski's Answers to Interrogatory Nos. 5 and 9, Plaintiff does not even identify for the Court which particular interrogatories it generically contends are deficient. (See, Id.). [8] See gen., fn 4, supra. [9] The Court notes that Plaintiff fails to mention in the context of its present second motion to compel that it has already narrowed the scope of Interrogatory No. 8. (See, Mem. in Supp. [Docket No. 214]). [10] This Court noted that efforts by Midkiff were not relevant because Plaintiff's Amended Complaint does not allege that Midkiff was involved in Heartland's recruitment of Shepherd, and Shepherd did not have a non-compete agreement of his own with Plaintiff. (Id. at 27 n.11). [11] In reference to the meet and greet, Plaintiff contends that “both Urzendowski and Turner testified at their depositions about a ‘meet and greet’ over drinks in Nebraska that was part of Midkiff's recruitment to Heartland,” but Heartland and Urzendowski's interrogatory answers “are vague and evasive on this point.” (Mem. in Supp. [Docket No. 214], at 16). Nevertheless, Midkiff and Urzendowski's Answers to Interrogatory No. 13 both provide descriptions of this event, and Midkiff's Answer to Interrogatory No. 12 refers to his Answer to Interrogatory No. 16 which also provides a description of this event. (See, Ex. Q [Docket No. 81-17], at 10–13, 27–28). After receiving Midkiff and Urzendowski's interrogatory answers, Plaintiff further inquired into this event during the depositions of Midkiff, Urzendowski, and Turner. (See, e.g., Ex. D [Docket No. 133], at 53–54; Ex. E [Docket No. 134], at 46–47; Ex. F [Docket No. 135], at 33). Accordingly, the Court finds that Midkiff's Answers to Interrogatory Nos. 12 and 13, as well as, Urzendowski's Answer to Interrogatory No. 13 are sufficient with regards to the meet and greet, and Midkiff and Urzendowski are not required to further amend those Interrogatory Answers simply to incorporate the deposition testimony regarding the meet and greet. [12] This Court notes that Urzendowski's Answer to Interrogatory No. 12 purports to invoke Rule 33(d) and provides bates numbers. However, Urzendowski must amend his Answer to disclose responsive oral communications, if any, that are not identified in the referenced documents or affirmatively state that no such further responsive information exists. [13] However, the Court notes that Heartland is not relieved from complying with this Court's prior Order, and Heartland does have a continuing obligation pursuant to Federal Rule of Civil Procedure 26(e) to supplement its Answers if it discovers that they are incomplete or incorrect. [14] Defendants rely heavily on Porous Media Corp. v. Midland Brake Inc., 220 F.3d 954 (8th Cir. 2000), in support of their argument. In Porous, the court reversed an award of post-agreement damages after finding that consequential damages for post-agreement lost profits were not contemplated by the parties. Id. at 962. However, the factual circumstances in Porous, which involved a requirements contract, are distinguishable from the present case. More importantly, Porous does not preclude the possibility of an award of damages beyond the termination of a non-compete agreement. (See, Id. at 961–62). [15] Although Midkiff and Urzendowski's non-compete agreements each contain a clause purporting to extend the non-compete agreements’ effective period in the event of a breach, the only reasonable way to interpret the extension clause is as seeking to extend the non-compete agreement's effective period only in relation to those customers with whom a breach had already occurred, otherwise the restraint period would be for an indefinite amount of time. See, Bennett v. Storz Broad. Co., 134 N.W.2d 892, 899 (Minn. 1965) (“Restrictions which are broader than necessary to protect the employers legitimate interest are generally held to be invalid ....”); Snyder's Drug Stores, Inc. v. Sheehy Props., Inc., 266 N.W.2d 882, 885 (“[P]ublic policy dictates that restrictive covenants, being restraints of trade be strictly construed.”). [16] See Gen., fn 13, supra. [17] Plaintiff has not disputed that Defendants have standing to oppose the Subpoena. (See, Mem. in Supp. [Docket No. 214]). Nevertheless, out of an abundance of caution, this Court finds that Heartland has standing to challenge the Subpoena because it is Heartland business information, its company emails, that is being sought from Shepherd. See, e.g., Colonial Funding Network, Inc. v. Genuine Builders, Inc., 326 F.R.D. 206, 212 (D.S.D. 2018) (noting that a party has standing to challenge a non-party subpoena where the party “has a personal right or privilege in the subpoena”). [18] As Midkiff is directly involved in such communications, they are inherently relevant to Midkiff's efforts to provide Heartland services to Plaintiff's customers with whom Plaintiff had a business relationship prior to June 28, 2019. [19] Plaintiff has also already requested relevant communications from Midkiff and Urzendowski. (See, e.g., Ex. J [Docket No. 81-10], at 17–18, 20–21; Ex. Q [Docket No. 81-17], at 37–42). [20] The burden on Shepherd of ascertaining which documents have already been produced by Defendants will likely not be excessive because Shepherd is represented in the present motion by the same counsel as Defendants, and counsel can certainly aid to facilitate the production or responses. [21] Notably, Defendants represent that “Shepherd has produced all communications responsive to Request No. 4.” (Mem. in Opp'n [Docket No. 18]). [22] Indeed, the only argument raised by Plaintiff for compelling Shepherd to respond to Subpoena Request Nos. 4 and 5 is that it was improper for Shepherd to withhold responsive documents, that were the subject of Plaintiff's first motion to compel, pending the resolution of that Motion. (Id. at 24–25). But the Court once again notes that Shepherd is not a party to this action, he was not subject to any discovery request personally that was the subject of the first motion to compel, and until the service of the Subpoena now at issue, he had no putative duty of his own to respond to any discovery served between the named parties in this case.