NICE GROUP USA, INC., Plaintiff, v. ROBERT MELENYZER, Defendant CIVIL NO. SA-15-CA-00787-DAE United States District Court, W.D. Texas, San Antonio Division Filed August 23, 2016 Counsel Cody D. Rockey, Dykema Gossett, PLLC, Ann Arbor, MI, Scott E. Yackey, Harness Dickey & Pierce, Frisco, TX, Victor C. Johnson, Dentons LLP, Dallas, TX, Zachary Hoard, Dykema Cox Smith, Dallas, TX, for Plaintiff. John C. Cave, Gunn, Lee & Cave, PC, San Antonio, TX, Jason Edwin McKinnie, McKinnie & Paul PLLC, San Antonio, TX, for Defendant. Primomo, John W., United States Magistrate Judge ORDER *1 Before the Court is defendant, Robert Melenyzer's Motion to Compel (docket nos. 73 and 75), to which plaintiff, Nice Group USA, Inc. (“Nice”) has responded (docket no. 74). Upon consideration of the motion, response and applicable law, defendant Melenyzer's motion is GRANTED in part and DENIED in part. BACKGROUND Nice filed this lawsuit in June of 2015 against Melenyzer, a former employee, to recover for misappropriation of trade secrets, unfair competition, and breach of fiduciary duty. After the case was removed to federal court, Melenyzer asserted his first amended answer, affirmative defenses, and first amended counterclaims, including copyright infringement, tortious interference and antitrust violations. (Docket no. 16). On January 28, 2016, Melenyzer served Nice with interrogatories and requests for production. Nice then sought and obtained a protective order “staying discovery related to defendant's antitrust counterclaims” until the Court ruled on Nice's motion to dismiss the claims asserted in Melenyzer's first amended counterclaim, including his antitrust claims. (Docket nos. 35 and 50). After Nice's motion for a protective order was granted, Melenyzer sought reconsideration, maintaining that the discovery requests, and in particular Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61 and 72, pertained to Melenyzer's non-antitrust claims rather than his antitrust claims which were the subject of Nice's motion to dismiss. (Docket no. 54). By order dated May 27, 2016, the undersigned granted Melenyzer's motion for reconsideration and modified the protective order to require Nice to answer the specified discovery requests at issue within fifteen (15) days. (Docket no. 67). On June 23, 2016, Melenyzer filed the present motion to compel, arguing that Nice has failed to comply with the Court's Order and continues to thwart discovery in this case. (Docket no. 73). Applicable Law Federal Rule of Civil Procedure 26, as amended, governs the scope of permissible discovery, providing that: Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. *2 FED.R.CIV.P. 26(b)(1). A party seeking discovery may move for an order compelling production against a party that has failed to answer an interrogatory or to produce documents requested pursuant to Federal Rules of Civil Procedure 33 and 34. See FED.R.CIV.P. 37(a)(3)(B)(iii)-(iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” FED.R.CIV.P. 37(a)(4). To prevail on a motion to compel or resist a motion for protective order, the party seeking discovery may well need to make its own showing of many or all of the proportionality factors set out in Rule 26(b)(1); however, a party resisting discovery still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address--insofar as that information is available to it--the factors enumerated in Rule 26(b)(1). Areizaga v. ADW Corp., 314 F.R.D. 428, 235 (N.D.Tex. April 4, 2016)(citing FED.R.CIV.P. 26(b)(1)). DISCUSSION Defendant Melenyzer seeks an order compelling Nice to fully and adequately produce documents to requests for production and respond to certain interrogatories. (Docket no. 73). Melenyzer contends that Nice has failed to comply with this Court's Order and has otherwise failed to properly object and respond to discovery. I. Failure to Comply with Court's Order Initially, Melenyzer contends that Nice has failed to comply with this Court's Order, dated May 27, 2016, which required Nice to answer discovery requests. In particular, Melenyzer complains that Nice was required to submit answers and responses to Melenyzer's Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61, and 72, but has failed to do so. Nice responds that in prematurely filing this motion, Melenyzer is wasting this Court's time and harassing Nice. It maintains that “Nice has already produced 3240 responsive documents, totaling 5861 pages, and is currently in the process of running extensive keyword searches on email servers in coordination with opposing counsel.” Further, Nice accuses defendant of engaging in “pure gamesmanship and needlessly increasing costs by continuing to file endless motions in this case.” In the same breath, Nice asserts that this Court's Order did not require actual document production but only “answers to the discovery requests at issue” which, Nice maintains, it has already provided. Nice admits that it “has not yet produced documents responsive to such requests” and justifies its lack of production on its assertion that “the Court's Order provided no deadline on when to actually produce the documents.” (Docket no. 74, pg. 2). Nice's contentions here evidence the very gamesmanship it accuses Melenyzer of engaging in and seriously undermine Nice's credibility. Nice originally filed its motion for protective order in March of 2016, seeking a stay of “all discovery related to Defendant and Counter-Plaintiff Robert Melenyzer's claims under Sections 1 and 2 of the Sherman Act until the Court rules on Nice's motion to dismiss.” (Docket no. 35). In its proposed order, Nice specified that it was seeking, as relief, “that discovery with respect to Defendant's antitrust claims, including Interrogatory Nos. 9-10, 16-17 and Request For Production Nos. 50-62, 64-65, 67-68, and 72, [be] STAYED until after the Court rules upon Plaintiff's motion to dismiss.” (Id., exh. 2)(emphasis added). *3 After Nice's motion was granted (docket no. 50), Melenyzer filed a motion for reconsideration “to the extent [the Order dated May 27, 2016] granted the protective order for Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61, and 72 (hereinafter Non-Antitrust Requests),” maintaining that the “Non-Antitrust Requests,” referred to above, pertained to “causes of action other than antitrust and should not be subject to the protective order.” (Docket no. 54)(emphasis added). Melenyzer's motion for reconsideration specifically requested that plaintiff be ordered to “submit its answers and responses to Melenyzer's Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61, and 72.” (Docket no. 54, exh. 1)(emphasis added). The Court granted the motion, stating the following: Melenyzer has filed a motion for reconsideration, asserting that some of the discovery requests, Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61, and 72, do not pertain to his antitrust claims but to his non-antitrust claims. In its response (docket no. 60), Nice simply argues that the issue has already been determined; it does not dispute that the discovery requests are unrelated to Melenyzer's antitrust causes of action. Melenyzer's motion for reconsideration is GRANTED. The protective order is modified to require Nice to answer the above-noted discovery requests within 15 days. (Docket no. 67)(emphasis added). Clearly, at all times in question, Nice, Melenyzer and this Court were referring to “Interrogatory Nos. 16 and 17 and Requests for Production Nos. 50-52, 60-61, and 72,” the Non-Antitrust Requests. Consequently, Nice's construction that the Court's language specifying that “[t]he protective order is modified to require Nice to answer the above-noted discovery requests” was limited to the interrogatories and did not include the Requests for Production is completely ludicrous. Moreover, Nice's admission that it “has not yet produced documents responsive to such requests” because “the Court's Order provided no deadline on when to actually produce the documents” is unavailing and further, demonstrates that Nice was aware of its obligation to produce documents but deliberately chose not to do so. FED.R.CIV.P. 34(b)(2). Accordingly, Melenyzer's motion to compel is GRANTED as to Requests for Production Nos. 50-52, 60-61, and 72. Further, Nice's failure to produce all documents responsive to Requests for Production Nos. 50-52, 60-61, and 72, on or before June 13, 2016, after being ordered to do so, warrants sanctions pursuant to FED.R.CIV.P. 37(b)(2)(A). IT IS ORDERED that Nice produce all documents responsive to Requests for Production Nos. 50-52, 60-61, and 72, within ten (10) days from the date of this Order to avoid further sanctions as to these Requests. With respect to Interrogatory Nos. 16 and 17, which the Court also ordered Nice to respond to by June 13, 2016, Nice states it has complied with the Court's Order. Melenyzer disputes this maintaining that Nice qualified its responses, effectively resulting in a failure to respond due to the evasiveness of the responses. FED.R.CIV.P. 37(a)(4). 1. Interrogatory No. 16 Interrogatory No. 16 requested that Nice “[i]dentify all Vendors [Nice has] had communications with concerning Melenyzer since March 2012 and describe the substance of those communications.” Nice's supplemental response follows: Subject to and without waiving the foregoing objections, Nice answers as follows: Upon information and belief, the vendors Nice has had communications with concerning Melenyzer since March 2012 are: Nappco Fasteners, Core Components, EVS Metal, and Lonestar Tooling. The substance of the communications with these vendors generally concerned the vendors' actual or planned relationship, if any, with Melenyzer. *4 Melenyzer objects to the qualifying language in Nice's supplemental response that “upon information and belief” the “substance” of the communications “generally concerned” the vendors' actual or planned relationship with Melenyzer and argues that Nice should have conducted a reasonable inquiry to formulate an adequate response. Nice responds that Rule 33 does not require a corporate party to respond to discovery based on personal knowledge and, therefore, Nice properly based its response on “information and belief.” Nice misconstrues Rule 33's requirement in this regard. Rule 33 provides that interrogatories must be answered by the party to whom they are directed or “if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.” FED.R.CIV.P. 33(b)(1) (emphasis added). Rule 33(b)(1) has been interpreted to require the representative to respond based on “all information available to the corporation's officers, directors, employees and attorneys.” Chapman & Cole v. Itel Container Int'l B.V., 116 F.R.D. 550, 558 (S.D.Tex. 1987)(citing Gen. Dynamics Corp. v. Selb Mfrs. Co., 481 F.2d 1204, 1210–11 (8th Cir. 1973)); see also Johns v. United States, No. CIV.A. 96-1058, 1997 WL 732423, at *2 (E.D.La. Nov. 21, 1997)(“[a] corporate agent's answers are sufficient if the individual consults with other officials in the organization to acquire the information sought by the opposing party”). The cases relied upon by Nice do not stand for the proposition that a corporate representative has no obligation to conduct a reasonable inquiry and need only respond based on “information and belief.” See Brown v. White's Ferry, Inc., 280 F.R.D. 238, 243 (D.Md. 2012)(citing Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1482 (D.C.Cir. 1995)(emphasizing that “Federal Rule of Civil Procedure 33 expressly permits a representative of a corporate party to verify the corporation's answers without personal knowledge of every response by ‘furnish[ing] such information as is available to the party’ ”)). Instead, these cases demonstrate that while a corporate representative is not required to have personal knowledge of information contained in answers submitted on behalf of a corporation, the corporate representative, in furnishing the information available to the party, must still make some effort to consult with other officials in the organization to acquire the information sought by the opposing party and further, cannot withhold information that it has which is based on personal knowledge. Johns, 1997 WL 732423, at *2; see also Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 132 (E.D.Tex. 2003)(“Courts construe discovery rules liberally to serve the purposes of discovery: providing the parties with information essential to the proper litigation of all relevant facts, eliminating surprise, and promoting settlement.”). Here, Nice asserts that “[t]he substance of the communications with these vendors generally concerned the vendors' actual or planned relationship, if any, with Melenyzer,” indicating Nice is privy to information responsive to Interrogatory No. 16 that it failed to fully disclose. Consequently, Nice's supplemental response, which fails to describe the substance of the communication, is incomplete at best and evasive at worst; in either case, it amounts to a failure to respond. FED.R.CIV.P. 37(a)(4). Accordingly, defendant's motion to compel a complete response to Interrogatory No. 16 is GRANTED. Further, Nice's failure to completely respond to this Interrogatory on or before June 13, 2016, after being ordered to do so, warrants sanctions pursuant to FED.R.CIV.P. 37(b)(2)(A). *5 IT IS ORDERED that Nice provide a complete response to Interrogatory No. 16 within ten (10) days from the date of this Order to avoid further sanctions. 2. Interrogatory No. 17 Interrogatory No. 17 requested that Nice “[i]dentify all Distributors [Nice has] had communications with concerning Melenyzer since March 2012 and describe the substance of those communications.” Nice's supplemental response follows: Subject to and without waiving the foregoing objections, Nice answers as follows: Upon information and belief, no representative of Nice has communicated with any distributor about Melenyzer since March 2012. To the extent information responsive to this interrogatory is available to Nice's officers, directors, employees and attorneys, it must be disclosed. Johns, 1997 WL 732423, at *2; see also Ferko, 218 F.R.D. at 132. However, unlike Nice's supplemental response to Interrogatory No. 16, it is unclear from Nice's supplemental response to Interrogatory No. 17 whether Nice is in possession of additional information but failed to disclose it. Accordingly, Melenyzer's motion is GRANTED to the extent Nice and/or its officers, directors, employees and attorneys have additional information responsive to this Interrogatory that Nice failed to disclose and DENIED in all other respects. IT IS ORDERED that Nice provide a complete response to Interrogatory No. 17 within ten (10) days from the date of this Order to avoid further sanctions. Should Nice stand by its response “that no representative of Nice has communicated with any distributor about Melenyzer since March 2012” and it is later determined that Nice, by and through its officers, directors, employees and attorneys, knew about communications responsive to Interrogatory No. 17 and failed to disclose it within ten days from the date of this Order, the Court will not hesitate to impose sanctions. II. Failure to Object and Properly Respond to Discovery 1.Nice's Generic and Boiler Plate Objections Initially Melenyzer complains that many of plaintiff's objections consist of boiler plate language and lack specificity. In particular, defendant states that Nice objected to fifty-five Requests for Production and seven Interrogatories using the following, or similar, language:[1] Nice objects to this Request on the grounds that it is overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and is irrelevant to the claims in this lawsuit. Nice also objects to this Request on the grounds that it is outside the scope permitted by FED.R.CIV.P. 26(b)(1) because it is not proportional to the needs of the case. (Docket no. 73, exh. A: RFP Nos. 1-13, 18, 20-30, 32-35, 47-68 and 71; exh. B: Interrogatories Nos. 8-11, 13 and 16-17). Additionally, defendant complains that Nice objected to forty-seven Requests for Production and seven Interrogatories on the grounds that the request “improperly [sought] the production of confidential and proprietary business information.” Defendant further contends that Nice's objections to interrogatories requiring it to “marshal all of its evidence” should be overruled and that any objections to the RFPs that failed to state whether Nice was withholding documents pursuant to its objection should be overruled as well. *6 Nice maintains its responses “were not simply rote objections to every request, but were specific to each request.” Additionally, Nice injects that defendant himself has engaged in similar “boiler plate” objections and has merely filed this motion to harass Nice. Finally, Nice maintains that defendant “declined to discuss keywords—which necessarily delayed production of documents” and that Nice “is currently in the process of running extensive keyword searching on email servers in coordination with opposing counsel.” A review of Nice's responses reflects that Nice's objections are, in many instances, boiler plate. For example, Nice objects to defendant's Request for Production No. 1 which requests that Nice “[p]roduce Melenyzer's entire personnel file including but not limited to, dates of employment, promotions, demotions, disciplinary actions, evaluations, performance reviews, complaints, reviews, and termination.” Similarly, Request for Production No. 2 requested that Nice “[p]roduce all employee handbooks in force during Melenyzer's employment with [Nice].” Defendant also requested the job posting created after Melenyzer's termination. Nice objected to these Requests on the grounds that they were “overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and ... irrelevant to the claims in this lawsuit. Nice also objected on the grounds that they were outside the scope permitted by FED.R.CIV.P. 26(b)(1) because it was not proportional to the needs of the case. Subject to and without waiving the foregoing objections, Nice agreed to produce, in response to RFP Nos. 1 and 2, “to the extent they exist, non-privileged documents responsive to [these] Request[s].” However, defendant's personnel file and the employee handbook are relevant to Nice's breach of fiduciary claims. Further, the information sought does not appear to be overbroad or unduly burdensome as Nice complains. Additionally, as the party resisting discovery, Nice has the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address the factors enumerated in Rule 26(b)(1). Areizaga, 314 F.R.D. at 235. Nice fails to cite a single factor enumerated in Rule 26(b)(1). Further, Nice's objections are deficient on several counts. Rule 34, governing the production of documents, provides that: For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. FED.R.CIV.P. 34(b)(2). Here, Nice fails to state “with specificity the grounds for objecting to the request, including the reasons.” FED.R.CIV.P. 34(b)(2). Nice also fails to specify when the production will be completed. Id. Further, Nice fails to state whether any responsive documents are, in fact, being withheld. Id. Nice has had over six months to respond to these requests and should be able to identify any documents or information it is withholding on the basis that the information is privileged or subject to protection as trial-preparation material in accordance with FED.R.CIV.P. 26(b)(5)(A). *7 While the Court finds defendant's arguments have some merit, it will afford Nice the opportunity to supplement its responses to its Requests for Production and Interrogatories. However, only documents or information withheld on the basis that the information is privileged or subject to protection as trial-preparation material in accordance with FED.R.CIV.P. 26(b)(5)(A) may be withheld. Nice must produce all other documents within ten (10) days and strictly comply with FED.R.CIV.P. 26(b)(5)(A) and FED.R.CIV.P. 34(b)(2) with respect to specific documents or information it seeks to withhold. Documents not falling under the scope of FED.R.CIV.P. 26(b)(5)(A) should not be withheld for any other reason, including that the information includes confidential and proprietary business information which is protected by the Confidentiality and Protective Order.[2] (Docket no. 31, pg. 3). Further, to the extent documents or information responsive to any of defendant's Requests for Production or Interrogatories do not exist, do not exist in a producible file format or are reflected in numerous documents already produced[3], Nice must state as much. Accordingly, defendant's motion to compel interrogatories and requests for production based on defendant's argument that the objections consist of boiler plate language and/or are otherwise invalid is GRANTED in part and DENIED in part. 1.Verification Melenyzer next complains that Nice failed to sign the interrogatory responses as required by FED.R.CIV.P. 33(b)(2)(C). In response, Nice states that because it “served its corporate verifications for each of its Interrogatory Responses on June 29, 2016,” defendant's motion to compel such verifications is moot. (Docket no. 74, pg. 3). However, FED.R.CIV.P. 37(a)(5)(A) provides that if the disclosure or discovery is provided after the motion to compel is filed, “the court must, after giving an opportunity to be heard, require the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees”). Thus, while defendant's motion to compel Nice to verify its interrogatories may now be moot, defendant's entitlement to costs in bringing this motion is not. Defendant's motion to compel verifications is MOOT. 2.Rule 33(d) Defendant argues that Nice “improperly relies on Rule 33(d) in answering Interrogatory Nos. 1-7, 11-15, 18, and 20. Rule 33(d) provides the following: If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. *8 FED.R.CIV.P. 33(d). Defendant complains that Nice's response to Interrogatory No. 1, which requested that Nice “identify all items of Confidential and/or Trade Secret Information [Nice] contend[s] Melenyzer misappropriated, used, or disclosed,” “references some documents by name and Bate label but there is no indication as to whether this identification is complete.” Further, defendant complains that the remaining interrogatories, Nos. 2-7, 11-15, 18 and 20, fail to disclose or identify any Bates labeled documents. Defendant requests that Nice be ordered to identify all documents it relies on by name or Bates label in its responses to Interrogatory Nos. 1-7, 11-15, 18 and 20. Nice fails to address this complaint in its response, stating only that “[t]o the extent additional documents are identified,” “Nice will identify ... documents by Bates label in supplemental responses.” This is insufficient. Nice must also identify documents it has previously produced by Bates label. Defendant's motion to compel Nice to identify all documents it relies on by name or Bates label in its responses to Interrogatory Nos. 1-7, 11-15, 18 and 20 is GRANTED. IT IS ORDERED that Nice identify all documents it relies on by name or Bates label in its responses to Interrogatory Nos. 1-7, 11-15, 18 and 20 within ten (10) days from the date of this Order. III. Nice's Claim Regarding Misappropriation of Trade Secrets Defendant maintains that Nice's most recent supplemental response to Interrogatory No. 1, which requests Nice to “[i]dentify, all items of Confidential and/or Trade Secret Information [Nice] contend[s] Melenyzer misappropriated, used, or disclosed,” “continues to utilize generic descriptions of trade secrets such as vendors not to use, negative knowhow regarding R&D, marketing information, business method and technique of assembling products, and improvements, changes, and eliminations to Nice's parts.” Further, defendant argues that Interrogatory No. 5, which requests Nice to describe in detail “each item of Confidential and/or Trade Secret Information identified in response to Interrogatory No. 1,” fails to match the trade secrets identified in response to Interrogatory No. 1. Additionally, defendant maintains that Nice's production related to RFP Nos. 21, 22, 38 and 63, also pertaining to Nice's claim that defendant misappropriated trade secrets, is likewise incomplete. Defendant responds that it has produced all responsive documents but argues “it is impossible for Nice to apprehend all trade secret materials defendant misappropriated because defendant deleted all files—including his emails—from his Nice-provided work laptop prior to his termination.” Nice's responses should be supplemented to state whether Nice has produced all documents in response to RFP Nos. 21, 22, 38 and 63 and all information responsive to Interrogatory Nos. 1 and 5. Further, Nice must supplement Interrogatory No. 1 to specifically identify the exact trade secret misappropriated. Also, to the extent Nice identifies items of confidential and/or trade secret information it claims Melenyzer misappropriated in response to Interrogatory No. 1, Nice should supplement Interrogatory No. 5 to explain how Melenyzer misappropriated each such item. Accordingly, defendant's motion to compel is GRANTED. Further, although Nice claims this motion was filed prematurely, that it has been working to locate and produce documents, and that it has now produced all documents and information responsive to Interrogatory Nos. 1 and 5 and RFP Nos. 21, 22, 38 and 63, Nice waited until this motion was filed to provide the discovery. Nice's responses, including its supplemental responses filed after the Court issued its Order on May 27, 2016, demonstrate that the filing of this motion was necessary. To the extent Nice produced documents after this motion was filed, defendant is entitled to costs in filing this motion. FED.R.CIV.P. 37(a)(5)(A). IV. Creation, Ownership, Disclosure and Confidentiality of the Trade Secret *9 Defendant seeks discovery concerning the creation, ownership, disclosure and confidentiality of Nice's alleged trade secrets. He argues that Nice has failed to produce any emails, contracts, non-disclosure agreements, and/or copyright assignments related to the creation of these drawings responsive to RFP Nos. 25-29, 32-34, 47-49, and 63 and Interrogatory Nos. 2 and 4. Nice maintains defendant's complaint will likely be resolved following the completion of the keyword search presently being run by Nice “or involve complaints about documents that do not exist or involve documents Nice cannot obtain due to the ransomware virus,” including documents pertaining to Nice's creation, ownership, disclosure and confidentiality of its trade secrets. This is insufficient given that defendant served Nice with discovery in January of 2016. While the Court finds defendant's arguments have some merit, it will afford Nice the opportunity to supplement its response to its Requests for Production and Interrogatories. Nice must state whether it has documents and information responsive as to each request and interrogatory, and further, must either produce the documents and respond to the interrogatories within ten (10) days from the date of this Order, or state the specific reason it cannot as to each document withheld. Accordingly, defendant's motion is GRANTED in part and DENIED in part as to information pertaining to the creation, ownership, disclosure and confidentiality of the trade secrets. Only documents or information withheld on the basis that the information is privileged or subject to protection as trial-preparation material in accordance with FED.R.CIV.P. 26(b)(5)(A) may be withheld at this point. Nice must produce all other documents within ten (10) days and strictly comply with FED.R.CIV.P. 26(b)(5)(A) and FED.R.CIV.P. 34(b)(2) with respect to specific documents or information it seeks to withhold. Documents not falling within the scope of FED.R.CIV.P. 26(b)(5)(A) should not be withheld for any other reason, including that the information includes confidential and proprietary business information which is protected by the Confidentiality and Protective Order. (Docket no. 31, pg. 3). V. Production Concerning Internal Communications and Documents Regarding Melenyzer Defendant next argues that although Nice indicated it would produce, in response to RFP No. 6, communication pertaining to Melenyzer's demotion or change in job title from Vice-President of Purchasing, it has failed to do so. Additionally, defendant argues Nice has failed to produce any communications or documents, in response to RFP Nos. 6, 21-22, 24-25, 29, 30, 32 and 47-49, related to Melenyzer's alleged destruction, deletion and/or removal of Nice's alleged trade secrets. Here too, Nice maintains defendant's complaint will likely be resolved following the completion of the keyword search presently being run by Nice “or involve complaints about documents that do not exist or involve documents Nice cannot obtain due to the ransomware virus,” including documents pertaining to internal communications. Accordingly, defendant's motion is GRANTED in part and DENIED in part as to information pertaining to the internal communications and documents regarding Melenyzer. Nice must supplement its responses to its Requests for Production and Interrogatories within ten (10) days and indicate whether it has produced all responsive documents. Only documents or information withheld on the basis that the information is privileged or subject to protection as trial-preparation material in accordance with FED.R.CIV.P. 26(b)(5)(A) may be withheld at this point subject to the requirements of FED.R.CIV.P. 26(b)(5)(A) and FED.R.CIV.P. 34(b)(2). *10 Nice must produce all other documents and information within ten (10) days. Documents not falling under the scope of FED.R.CIV.P. 26(b)(5)(A) should not be withheld for any other reason, including that the information includes confidential and proprietary business information which is protected by the Confidentiality and Protective Order. (Docket no. 31, pg. 3). VI. Pre-Suit Investigation Defendant next argues that Nice refuses to produce documents responsive to RFP Nos. 14, 39 and 40-46 and 50-52 and further, refuses to respond to Interrogatory No. 8. Defendant contends it “is relevant to seek discovery on Nice's pre-litigation analysis of Melenyzer's products based on Melenyzer's allegation that Nice's lawsuit is objectively baseless and in violation of Rule 11.” Nice responds that Rule 11 discovery related to Nice's pre-suit investigation is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. In his reply, defendant notes that Nice has waived its relevance objection by not raising it sooner. It is well established that “control of discovery is committed to the sound discretion of the trial court...” Ravion Fairley v. Wal-Mart Stores, Inc., No. 15-462, 2016 WL 4418799, at *2 (E.D.La. Aug. 19, 2016)(quoting Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009)). While Nice may not have timely raised his relevance objection, the Court agrees that delving into this matter at this point is premature. The Court notes, however, that it previously Ordered Nice to produce documents responsive to RFP Nos. 50-52. That Order stands for reasons previously stated. Accordingly, defendant's motion to compel information related to Nice's pre-suit investigation is GRANTED in part to the extent this Court has already Ordered Nice to produce documents responsive to RFP Nos. 50-52 and DENIED in all other respects. VII. Documents Relating to Melenyzer's Copyright Infringement Causes of Action Melenyzer next contends that Nice has failed to produce, in response to RFP Nos. 47-49, “meaningful responsive discovery such as distribution, submission and/or transmission of the above drawings to its die casting company named Alumino Y Bronce de Saltillo S.A. DE C.V., marketing materials, instruction books, or other printed or electronic documents.” Nice maintains here too that defendant's complaint will likely be resolved following the completion of the keyword search presently being run by Nice “or involve complaints about documents that do not exist or involve documents Nice cannot obtain due to the ransomware virus” including documents pertaining to defendant's copyright infringement causes of action. Accordingly, defendant's motion is GRANTED in part and DENIED in part as to documents relating to Melenyzer's copyright infringement causes of action. Nice must supplement its responses within ten (10) days to reflect whether it has produced all documents and information responsive to defendant's Requests for Production and Interrogatories. Only documents or information withheld on the basis that the information is privileged or subject to protection as trial-preparation material in accordance with FED.R.CIV.P. 26(b)(5)(A) may be withheld at this point. Nice must produce all other documents within ten (10) days and strictly comply with FED.R.CIV.P. 26(b)(5)(A) and FED.R.CIV.P. 34(b)(2) with respect to specific documents or information it seeks to withhold. *11 Documents not falling within the scope of FED.R.CIV.P. 26(b)(5)(A) should not be withheld for any other reason, including that the information includes confidential and proprietary business information which is protected by the Confidentiality and Protective Order. (Docket no. 31, pg. 3). VIII. Damages Defendant requests that Nice be ordered to fully respond to Initial Disclosures concerning damages and produce documents responsive to 31 and 70. Request for Production No. 31 requests that Nice “[p]roduce all documents and communications concerning the value, if any, of the Confidential and/or Trade Secret Information.” Request for Production No. 70 requests that Nice “[p]roduce all documents and communications concerning the nature, calculation, and basis of any damages and injuries You claim in this matter.” Nice maintains defendant's complaint will likely be resolved following the completion of the keyword search presently being run by Nice “or involve complaints about documents that do not exist or involve documents Nice cannot obtain due to the ransomware virus,” including documents pertaining to the “damages Nice suffered as a result of defendant's acts.” Nice does not otherwise address its failure to provide initial disclosures relating to damages or to produce documents responsive to Request for Production Nos. 31 and 70. FED.R.CIV.P. 26(a)(1)(A)(iii) clearly requires a party, at or within fourteen days after the parties' Rule 26(f) conference, to provide a computation of each category of damages claimed. Id. Subsection (E) specifically states that “[a] party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.” FED.R.CIV.P. 26(a)(1)(E). The issue of damages is clearly relevant and must be disclosed. Accordingly, defendant's motion is GRANTED as to Rule 26 initial disclosures pertaining to damages and Request for Production Nos. 31 and 70. IT IS ORDERED that within ten (10) days from the date of this Order 1) Nice produce documents responsive to Request for Production Nos. 31 and 70, and 2) provide to defendant a computation of each category of damages claimed by Nice—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered. Any documents or information withheld on the basis that the information is privileged or subject to protection as trial-preparation material must satisfy the requirements of FED.R.CIV.P. 26(b)(5)(A). Documents not falling under this provision should not be withheld for any other reason, including that the information includes confidential and proprietary business information which is protected by the Confidentiality and Protective Order. (Docket no. 31, pg. 3). IX. Reasonable Attorneys' Fees and Costs Finally, defendant seeks reasonably attorneys' fees and costs in bringing this motion. Rule 37(a)(5) provides that if a motion is granted in part and denied in part, the court may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion. FED.R.CIV.P. 37(a)(5). Here, defendant's motion to compel was granted with respect to discovery requests addressed by the Court's May 27, 2016 Order and granted in part and denied in part as to defendant's remaining arguments. *12 Accordingly, the Court believes defendant is entitled to some of his costs in bringing this motion. Defendant should provide the Court with an affidavit setting out his reasonable costs within fourteen (14) days from the date of this Order. The parties may confer regarding the amount to be paid and if an agreement is reached, defendant may advise the Court accordingly. If an agreement cannot be reached, Nice should consider this Order notice of the Court's intent to award defendant reasonable expenses in bringing this motion. X. The Virus Nice has maintained that it cannot produce documents because they were lost as a result of a ransomware virus that infected Nice's computer system shortly before defendant was terminated in December of 2013. Rule 37 provides that: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. FED.R.CIV.P. 37(e). Nice alleges that Melenyzer was fired after engaging in a long series of acts constituting insubordination. Further, Nice states that prior to March of 2012, Melenyzer was employed as a VP of Purchasing and thereafter, as a Purchasing Manager, a move Melenyzer refers to as a “demotion”. Finally, Nice alleges that in July of 2012, Melenyzer filed an EEOC complaint alleging discriminatory acts. In light of these claims, should Nice be unable to provide documents because they have been “lost to this ransomware virus,” Nice should be prepared to address reasonable steps it took to preserve any information it claims was lost, as well as the steps it claims to have taken to restore or replace this information. FED.R.CIV.P. 37(e). XI. Miscellaneous This case was removed to federal in September of 2015. (Docket no. 1). Pursuant to the First Scheduling Order, discovery was due by July 15, 2016. (Docket no. 23). In April of 2016, the parties filed a joint motion seeking to extend the discovery deadline until September 2, 2016, which the Court granted. (Docket nos. 52 and 53). On June 13, 2016, the parties filed a second Joint Motion to Amend the Scheduling Order deadlines, seeking to extend discovery until October 14, 2016, which the Court also granted. (Docket nos. 71 and 72). This later deadline is fast approaching and the parties appear to have made little progress in exchanging information essential to the proper litigation of all relevant facts. The parties are advised that no further extensions will be granted barred extenuating circumstances. CONCLUSION For the foregoing reasons, Melenyzer's Motion to Compel is GRANTED in part and DENIED in part in accordance with this Order. (Docket no. 73). Rule 37 requires the payment of expenses incurred in bringing the motion as well as the imposition of sanctions for not obeying a discovery order. FED.R.CIV.P. 37 (a)(5) and (b)(2). Accordingly, the Court will resolve the issue of sanctions resulting from Nice's failure to comply with this Court's prior Order when the Court addresses the amount of reasonable fees and costs defendant should be awarded for having to file this motion. *13 It is so ORDERED. SIGNED this 23rd day of August 2016. Footnotes [1] Because the Court granted defendant's motion to compel as to Interrogatory Nos. 16 and 17, as well as RFP Nos. 50-52, 60-61 and 72, earlier in this Order, the Court need not address defendant's arguments further with respect to these discovery requests. [2] Nice's contention that this objection is moot because Nice has supplemented its response to indicate it will produce documents to the extent they exist and are non-privileged is unavailing. FED.R.CIV.P. 37(a)(5)(A). [3] To the extent Nice contends that documents or information are reflected in numerous documents already produced, Nice must supplement its responses to ensure compliance with Rule 33(d)(1) and (2), as well as to ensure that all documents produced are Bates labeled, making them readily identifiable to the parties and the Court.