GUARDIAN OF GEORGIA, INC., d.b.a. ACKERMAN SECURITY SYSTEMS Plaintiff, v. BOLD TECHNOLOGIES LTD., d.b.a. BOLD GROUP Defendant Case No. 1:21-cv-1232 United States District Court, N.D. Ohio, Eastern Division Filed: July 26, 2022 Parker, Thomas M., United States Magistrate Judge ORDER *1 This matter has been referred to the undersigned magistrate judge for a decision on the parties’ cross-motions to compel. Non-Doc. Order dated 5/31/2022. The court held a telephone status conference with the parties, at which it provided guidance on the disputed discovery requests and ordered them to supplement their discovery responses accordingly. Docket Entry dated 6/01/2022. However, the parties were unable to resolve all their discovery issues and requested court intervention. ECF Doc. 42. With leave of court, the parties filed supplemental briefs addressing the remaining points of disagreement. Non-Doc. Order dated 7/05/2022; ECF Doc. 43; ECF Doc. 44. The motions are now ripe for consideration. For the reasons discussed below, plaintiff's motion to compel (ECF Doc. 34) is DENIED and defendant's motion to compel (ECF Doc. 35) is DENIED IN PART and GRANTED IN PART. I. Factual Background[1] Plaintiff, Guardian of Georgia, Inc., which does business as Ackerman Security Systems (“Ackerman”), provides commercial and residential security alarm system monitoring and related services. ECF Doc. 1 at 1. Ackerman administered its customer invoicing and billing through an internal financial and accounting software known as “DICE.” ECF Doc. 1 at 3. In Spring 2017, however, Ackerman decided to upgrade DICE, settling on the “Sedona Office Enterprise Application Suite” (“Sedona”) offered by Perennial Software, Inc. (“Perennial”). Id. On April 18, 2018, Ackerman and Perennial entered into four contracts: (i) two software license agreements (ECF Doc. 1-1; ECF Doc. 1-3); (ii) a software support agreement (ECF Doc. 1-2); and (iii) a professional services agreement (ECF Doc. 1-4). ECF Doc. 1 at 3–4. Under the terms of the software support and professional services agreements, Ackerman agreed to use Perennial's training services for the implementation and set-up of Sedona, as well as for the process of converting its existing customer database to a format usable by Sedona. ECF Doc. 1-2 at 2; ECF Doc. 1-4 at 2. Perennial agreed to provide project management services during the implementation of Sedona, including an assigned project manager to lead the implementation and coordinate with Ackerman's representative. ECF Doc. 1-2 at 2; ECF Doc. 1-4 at 2. Perennial also agreed, upon proper notice, to “fix any defects” in Sedona, which Perennial stated it would do with its “best efforts” but with no guarantee that any error attributable to Sedona would be corrected. ECF Doc. 1-2 at 2. Before Perennial performed any work on the contracts, it merged with defendant, Bold Technologies Ltd., which does business as Bold Group (“Bold”). ECF Doc. 1 at 1, 4. In August 2019, Bold started the process of converting Ackerman from DICE to Sedona. ECF Doc. 1 at 4. Alleged errors in the conversion process conversion resulted in customer dissatisfaction and, ultimately, the claimed loss of thousands of customers. ECF Doc. 1 at 5. These alleged errors included: (i) accounts reflecting inaccurate pending balances; (ii) clients being unable to log onto their accounts; (iii) clients being unable to pay their bill online; (iv) payments being improperly withdrawn from client back accounts; (v) incorrect invoice disbursement; (vi) incorrect billings for services received; and (vii) clients being unable to resolve payments with outstanding false or outdated charges. ECF Doc. 1 at 5–9. *2 The alleged issues during the software conversion process resulted in Ackerman's claimed losses: (i) losing 20 Ackerman employees who quit in frustration from the amount of associated customer service calls; (ii) being forced to pay extra wages and incentives to curb staffing shortages; (iii) incurring costs to retain third-party consultants; (iv) reimbursing customers’ bank fees and issuing credits/refunds; (v) losing 2,000 customers in excess of normal attrition rates; and (vi) having 45,000 customers impacted by the errors. ECF Doc. 1 at 9–11. II. Relevant Procedural History On June 22, 2021, Ackerman filed a complaint against Bold, asserting claims of breach of contract, negligence, and unjust enrichment. ECF Doc. 1. Relevant to its breach of contract claim, Ackerman alleged that Bold breached the terms of the software support and professional services agreement by failing to provide support, training, data conversion, implementation, and project management services with competence, skill, and diligence consistent with industry standards. ECF Doc. 1 at 15–16. As damages, Ackerman sought to recover for: (i) monetary incentives to maintain minimum employee staffing levels; (ii) payment to third-party consultants to triage and troubleshoot; (iii) bank fees reimbursed to customers; (iv) credits/refunds issued to customers; (v) $64,000 in lost recurring monthly revenue (“RMR”); (vi) lost enterprise value; and (vii) reasonable costs, expenses, and legal fees. ECF Doc. 1 at 16, 19. In explaining its damages calculation, Ackerman stated that RMR was a commonly used metric in the security alarm industry, which represented the revenue derived from an individual customer during a one-month period. ECF Doc. 1 at 10. Ackerman determined that between October 2019 and March 2020 it had 140,000 customer accounts, with an RMR value of $4.5 million. ECF Doc. 1 at 11. One-third of those accounts (45,000) – those whose billing cycle was active at the time of the alleged errors – were affected by at least one of Bold's errors. Id. Ackerman alleged that the impacted and unimpacted accounts suffered different attrition rates. Ackerman asserted that the security alarm industry as a whole experienced an estimated 11.7% gross attrition rate in 2020. ECF Doc. 1 at 12. For the six months preceding the software conversion (April–September 2019), Ackerman specifically had an 11.1% gross attrition rate. ECF Doc. 1 at 11. During the relevant period, October 2019–March 2020, Ackerman experienced an 11.4% gross attrition rate in the unimpacted accounts and a 19.6% gross attrition rate in the impacted accounts. ECF Doc. 1 at 11–12. In April 2020, the month after Ackerman had addressed the software conversion issues, the attrition rates went down to 11.4% (unimpacted) and 11.2% (impacted). ECF Doc. 1 at 12. Based on the acute disparity between the attrition rates for impacted and unimpacted accounts during the relevant period, Ackerman believed that Bold's errors caused Ackerman to lose 2,000 customer accounts that it would not have lost otherwise. ECF Doc. 1 at 10–11. Ackerman alleged that in the security alarm industry, enterprise value is represented as a multiple of RMR. ECF Doc. 1 at 13. Ackerman alleged that in February 2021, it sold half of its customer accounts to ADT for $73 million and agreed to sell additional accounts in the future. Id. Ackerman alleged that, but for Bold's breaches, it would have had an additional 2,000 accounts with an RMR value of $64,000 that would have been included in the sale to ADT and which would have affected the initial consideration paid by ADT. Id. *3 Ackerman's complaint did not explain how it determined the RMR value of its accounts during the relevant period or the RMR value used in the sale to ADT. See generally ECF Doc. 1. Ackerman also did not allege: (i) how much it spent in monetary incentives; (ii) how much it paid to third-party consultants to fix Bold's errors; (iii) how much it spent in reimbursements; (iv) the cost of the credits/refunds that it issued; or (v) a total amount of damages claimed. See generally id. Instead, Ackerman alleged that the damages figures would be determined at trial. ECF Doc. 1 at 10, 13, 16, 19. On August 13, 2021, Bold filed its answer, in which it asserted a counterclaim against Ackerman for breach of contract. ECF Doc. 14. Bold alleged that Ackerman had breached its contracts with Bold by failing to pay Bold after October 2019 for its licensing and software support services. ECF Doc. 14 at 10–12. Bold also filed a motion to dismiss Ackerman's negligence and unjust enrichment claims. ECF Doc. 16. On November 2, 2021, the court issued a case management order, which set as the deadline for discovery April 15, 2022 and the deadline for pre-discovery disclosures October 27, 2021 and referred case for mediation. ECF Doc. 24. Mediation was scheduled to take place on April 7, 2022. ECF Doc. 25. On January 7, 2022, the court granted Bold's motion to dismiss. ECF Doc. 28. On January 31, 2022, the parties jointly moved to extend the expert-report deadlines, in part, because the parties had not produced significant amounts of paper discovery and discovery disputes began to arise. ECF Doc. 29. On February 8, 2022, the court granted the extensions, extending the expert-report deadlines to 60 days after the parties verified that they had “substantially completed” with document production. ECF Doc. 30. The mediation was also reset for June 1, 2022. Non-Doc. Order dated 2/18/2022. On February 22, 2022, the parties filed notices of a discovery dispute. ECF Doc. 31; ECF Doc. 32. On March 17, 2022, the court held a discovery dispute status conference, at which court authorized the parties to file motions to compel. ECF Doc. 33. On March 23, 2022, the parties filed cross-motions to compel discovery. ECF Doc. 34; ECF Doc. 35. Generally, Ackerman sought to compel Bold to respond to Interrogatory Nos. 6–8 and Requests for Production Nos. 15–16, all of which pertained to Bold's prior software conversions.[2] See ECF Doc. 34. Bold, in turn, sought to: (i) compel Ackerman to supplement its responses to Interrogatory Nos. 3–7, 10–11, 15, and 18 and Requests for Production Nos. 3–5, 7–8, 11, 16, and 18; and (ii) deem Requests for Admission Nos. 1–3 admitted. See ECF Doc. 35. On March 30, 2022, the parties filed opposition briefs to each other's motions to compel. ECF Doc. 36; ECF Doc. 37. On April 13, 2022, the parties moved for a second extension to the case management order, noting that no depositions had been taken yet. ECF Doc. 38. On April 15, 2022, the court granted the extension, extending the discovery deadline date until 60 days after the deadline for expert reports and the dispositive motion deadline until 45 days later. Non-Doc. Order entered 4/15/2022. On May 20, 2022, Bold moved to vacate the June 1, 2022 mediation due to a lack of discovery from Ackerman. ECF Doc. 39. Ackerman filed an opposition. ECF Doc. 40. And Bold filed a reply, noting that the primary obstacle to meaningful mediation was a lack of information on the total amount of damages sought by Ackerman. ECF Doc. 41. On May 31, 2022, the court granted Bold's motion to vacate and converted the June 1, 2022 mediation to a video status conference. Non-Doc. Orders entered 5/31/2022. *4 At the June 1, 2022 status conference, the court provided guidance to the parties on how a court might view the disputed discovery issues. Docket Entry dated 6/1/2022. Based on those discussions, the court ordered the parties to exchange supplemental discovery responses with an eye towards bringing discovery to the point at which meaningful mediation could take place. Id. The court further ordered the parties to submit a joint status report on the status of their discovery dispute resolution progress, indicating which discovery disputes were no longer at issue and which still required court intervention. Id. On July 1, 2022, the parties filed a joint status report. ECF Doc. 42. The parties assert that Ackerman submitted to Bold revised interrogatories and requests for production (Revised Interrogatories Nos. 6 and 8 and Revised Request for Production No. 15). ECF Doc. 42 at 2–3. Ackerman asserts that it is satisfied with Bold's response to Revised Interrogatory No. 6 but still requires court intervention with respect to Revised Interrogatory No. 8 and Revised Request for Production No. 15. ECF Doc. 42 at 16–19. The parties further indicate that they were able to resolve the dispute regarding Bold's requests for admission and Interrogatory No. 7 and that Bold no longer sought to compel Request for Production No. 18. ECF Doc. 42 at 7, 13. Bold, however, requests court intervention with the respect to the other 15 issues. ECF Doc. 42 at 4–12. Ackerman requested an opportunity to file supplemental briefing, which the court granted on July 5, 2022. Non-Doc. Order dated 7/5/2022. On July 15, 2022, both parties filed supplemental briefs. ECF Doc. 43; ECF Doc. 44. III. Governing Legal Standards If a party fails to adequately answer an interrogatory or respond to a request for production, the party seeking discovery may move the court for an order compelling an answer or production. Fed. R. Civ. P. 37(a)(3)(B). The moving party bears the initial burden of establishing that the information sought is discoverable: i.e., non-privileged, relevant, and proportional to the needs of the case or reasonably calculated to lead to the discovery of admissible evidence. White v. City of Cleveland, 417 F. Supp. 3d 896, 902 (N.D. Ohio 2019); Fed. R. Civ. P. 26(b)(1). If met, the burden shifts to the disclosing party to show that the information sought is irrelevant, disproportional to the needs to the case, or overly burdensome to produce. O'Malley v. NaphCare Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015); see also Doe v. Lorain Bd. of Educ., No. 1:21 CV 1641, 2022 U.S. Dist. LEXIS 81242, at *6 (N.D. Ohio May 3, 2022) (quoting Abraham v. Alpha Chi Omega, 271 F.R.D. 556, 559 (N.D. Tex. 2010)). IV. Ackerman's Motion to Compel Ackerman seeks to compel Bold to respond to Revised Interrogatory No. 8 and Revised Request for Production No. 15, which seek discovery of prior software conversions in which Bold's customers experienced issues similar to those Ackerman experienced during the conversion from DICE to Sedona. ECF Doc. 42 at 16–19; ECF Doc. 43 at 3–5. Ackerman argues that Bold's prior software conversion are relevant to the extent there is any ambiguity in the contracts with Bold over the standard of performance applicable to Bold's software conversion work. ECF Doc. 34-1 at 4–6. Bold objects to the revised discovery requests as irrelevant and disproportionate to the needs of the case. Bold argues that its software conversions for other clients are irrelevant because the service is custom and unique to each customer, and because Ackerman has not developed its ambiguity argument, as it has yet to identify the contract provisions at issue. ECF Doc. 37 at 1–3. Alternatively, Bold argues that Ackerman's discovery requests are disproportionate to the needs of the case because they would generate collateral litigation over the degree to which Ackerman's alleged software conversion problems are similar to those of Bold's other clients. ECF Doc. 37 at 3–4; ECF Doc. 42 at 13–14. Bold further argues that producing responsive documents would be overly burdensome because: (i) the ticketing system Bold used to record client issues contained thousands of records and was incomplete, depending on the client's use of the system; (ii) the ticketing system did not record the underlying cause of any issue recorded; (iii) there were no search terms that would effectively narrow the scope of an email search; and (iv) addressing any of the aforementioned issues would require significant attorney time and would provide only an incomplete picture of Bold's other software conversions. ECF Doc. 42 at 14; ECF Doc. 44 at 5–6. *5 Ackerman replies that the issue of relevancy was settled at the status conference. ECF Doc. 43 at 4–5. Ackerman also argues that the scope of its request for production “likely” would not include the ticketing system records and that the burdens of e-discovery could be effectively managed by negotiated custodians and search terms. ECF Doc. 43 at 5. A. Disputed Discovery Requests Ackerman's disputed discovery requests state: [Revised Interrogatory No. 8]: Identify customers and/or accounts for whom [Bold] performed a DICE software conversion from 2017 to the present (“Bold Client”) where problems similar to those included in Ackerman's Complaint Para. 21 occurred specifically including: (a) improper configuration and/or errors related to back-end settings, account settings and/or configuration settings for the Sedona Software that resulted in errors in Bold Client customer billing/charges and/or payment/credit records (See Complaint Para. 21(a) and (g)); (b) improper configuration and/or errors for the Sedona Software resulting in Bold Client customers having difficulty in logging onto their accounts to make payments via Sedona Cloud (See Complaint Para. 21(b)); (c) problems with the functioning of the Sedona Software payment processing function (See Complaint Para. 21(b)); (d) improper configuration or activation of a “sandbox” data base (See Complaint Para. 21(c)); (e) improper configuration and/or errors for the Sedona Software that resulted in errors of Bold Client customer information contained in customer paper bills and envelopes (See Complaint Para. 21(d)); (f) improper configuration and/or errors related to back-end settings, account settings and/or configuration settings for the Sedona Software that resulted [in] improper multiple charges to Bold Client customers (See Complaint Para. 21(e)); (g) improper configuration and/or errors related to back-end settings, account settings and/or configuration settings related to “aging date” or otherwise for the Sedona Software that resulted in Bold Client customers incorrectly receiving delinquency notices (or the like) (See Complaint Para. 21(f)); (h) complaints from Bold Client/s that [Bold's] performance of a software conversion constituted a breach of contractual obligations or negligence of [Bold's] duties associated with the conversion. [Request for Production No. 15]: For each of the Bold Clients identified in Interrogatory No. 8 above, produce all non-privileged internal and external communications concerning, evidencing, or relating to the problems they experienced in the conversion from DICE to the Sedona Software. ECF Doc. 42-3 at 2-3. B. Analysis Initially, the court notes that its comments at the status conference were meant only as guidance to the parties. The court did not rule on any discovery issue addressed at the conference, and its comments are not binding on its consideration of the disputed discovery issues now before the court for disposition. See Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 443 (S.D. N.Y. 1995) (“Were comments during such conferences to be binding on the parties, it would have a chilling effect on discussion of potential areas of agreement contrary to the objectives of Fed. R. Civ. P. 1 and Fed. R. Civ. P. 408.”). Upon due consideration of the parties’ detailed submissions, the court finds that Ackerman has not met its initial burden to show that Bold's prior software conversions are discoverable. See White, 417 F. Supp. 3d at 902. Ackerman's only surviving claim against Bold is whether the manner in which Bold performed its software conversion services breached the terms of its contracts with Ackerman. The only contract term that directly addresses the standard of care owed by Bold describes its obligation to “use its best efforts to correct and fix the problem.” ECF Doc. 1-2 at 2. What constitutes “best efforts” is not defined. Without deciding the issue, the best-efforts provision in the software support agreement is arguably ambiguous. See First Nat'l Bank of Pa. v. Nader, 89 N.E.3d 274, 284 (Ohio Ct. App. 2017) (“Terms in a contract are ambiguous if their meanings cannot be determined from reading the entire contract, or if they are reasonably susceptible to multiple interpretations.”). If “best efforts” is ambiguous, Ackerman could present extrinsic evidence to ascertain its meaning. Id. *6 Ackerman could, as it ostensibly intends, present extrinsic evidence of standards and practices within a relevant industry to define the standard of care owed by Bold under the contract. See Sault Ste. Marie Tribe of Chippewa Indians v. Granholm, 475 F.3d 805, 815 (6th Cir. 2007). But that would require evidence of the conduct of others in the industry under similar circumstances. See McKee v. Miles Laboratories, Inc., 675 F. Supp. 1060, 1064 (E.D. Ky. 1987). Ackerman would not, therefore, be able to use Bold's own past practices with other clients to establish an industry standard. Ackerman argues that the service provided by Bold was converting software to Sedona; therefore, Bold's prior software conversions represent the industry of Sedona software conversions. ECF Doc. 34-1 at 5. None of the authorities cited by Ackerman supports that argument. See id. And although in some contexts an industry-of-one can exist, Ackerman has not met its burden of showing that discovery into Bold's prior software conversions would be relevant to the software conversion performed by Bold for Ackerman. Cf. Grant v. Cosec Int'l, Inc. (In re L. Bee Furniture Co.), 230 B.R. 185, 191 (Bankr. M.D Fla. 1999) (“Since the evidence confirms that there are no meaningful comparisons of Defendant's practices with other companies, the Court finds that the way it deals with its customers is the “industry standard.””). Ackerman has not rebutted Bold's argument that each software conversion is unique to each client. ECF Doc. 37 at 2. And discovery into whether Bold's software conversion from other clients’ accounting software would not necessarily correlate to a conversion from Ackerman's DICE software to Sedona. Cf. Colonial Bancgroup, Inc. v. PricewaterhouseCoopers LLP, No. 2:12-cv-957, 2015 U.S. Dist. LEXIS 191689, at *12-13 (M.D. Ala. Dec. 4, 2015) (concluding similarly in the context of audits performed on other clients). Moreover, discovery into Bold's software conversions for other clients would be disproportionate to the needs of the case. Six factors guide the proportionality analysis: (i) the importance of the issues at stake in the action; (ii) the amount in controversy; (iii) the parties’ relative access to relevant information; (iv) the parties’ resources; (v) the importance of the discovery in resolving the issues; and (vi) whether the burden or expense of the proposed discovery outweighs the potential benefit. Fed. R. Civ. P. 26(b)(1). It bears noting that the important issue at stake at this stage of the proceedings is what discovery is necessary for the parties to engage in a meaningful mediation. Ackerman has not argued that discovery into Bold's prior software conversions is necessary for it to engage in a meaningful mediation. And discovery into Bold's prior software conversions would invariably lead to collateral disputes regarding how comparable Bold's prior software conversions, the errors that arose therein, and Bold's response to those errors are to those of Bold's software conversion for Ackerman. Such collateral litigation would not bring the case any closer to mediation. See Fung-Schwartz v. Cerner Corp., No. 17-CV-0233, 2020 U.S. Dist. LEXIS 152202, at *24 (S.D. N.Y. Aug. 21, 2020). Ackerman's motion to compel is DENIED. V. Bold's Motion to Compel Bold seeks court intervention regarding Ackerman's responses to Interrogatory Nos. 3, 5–6, 10–11, 15, and 18 and Requests for Production Nos. 3–5, 7–8, 11, and 16. ECF Doc. 42 at 4–12. Because of the interrelated nature of many of the disputed discovery issues, they are discussed out of order. A. Interrogatory No. 15 *7 Interrogatory No. 15 asked Ackerman to state the basis for the use of a “35X” multiplier as the basis for its business valuation damages. ECF Doc. 35-4 at 7. Ackerman initially responded that it identified the 35X multiplier as “its best, good faith estimate of the industry standard valuation of customer accounts” at the time and noted that it sold accounts to ADT based on a 38X multiplier. Id. In its supplemental response, Ackerman stated that the 35X multiplier was its best estimate at the time for the multiple likely to be used in future sales. ECF Doc. 42-10 at 2. Ackerman also produced a redacted copy of the purchase agreement it entered into with ADT, stating: ... The “gross” multiple paid by ADT to Ackerman (as set forth in the defined terms on Exhibit A to the Purchase Agreement) was 37.8. ADT, however, was entitled to a post-closing credit for accounts cancelled or [which] no longer constituted qualified RMR as of the first anniversary of the applicable closing date. With respect to the accounts sold by Ackerman at the first such closing on February 5, 2021, which represented more than half of all of Ackerman's accounts, the credit to which ADT was entitled reduced the gross multiple of 37.8 to a “net” multiple of 33.8. This 33.8, when multiplied by the excess lost RMR that Ackerman suffered as a result of Bold's errors, represents the revised basis for Ackerman's damages calculations. Id. Bold argues that the ADT purchase agreement did not provide a basis for how the 33.8 multiplier was chosen. ECF Doc. 44 at 2. Bold argues that Ackerman must produce the documentation upon which the multiplier was determined, including: (i) documents reflecting its internal valuation documents; (ii) documents shared with ADT related to the valuation of the accounts; (iii) internal and external documents concerning representations about the accounts allegedly lost in the Sedona software conversion; and (iv) an unredacted copy of the ADT purchase agreement. ECF Doc. 44 at 2-3. Ackerman argues that its response to Interrogatory No. 15 adequately explained how it determined the 33.8 multiplier upon which it bases its business valuation damages. ECF Doc. 43 at 14. Ackerman argues that it also left unredacted the portions of the agreement relevant to payment and post-closing adjustments. Id. Ackerman also notes that the ADT purchase agreement contained a confidentiality provision that required Ackerman to consult with ADT regarding production, from which Ackerman has not heard back. Id. Bold's objection to Ackerman's revised response to Interrogatory No. 15 is sustained. Ackerman's basis for business valuation damages is the value of the 2,000 of the accounts allegedly lost as a result of Bold's breach of contract, which it determined based on the value Ackerman would have received had the 2,000 lost accounts been included in the sale to ADT. ECF Doc. 36 at 4. Ackerman reached that value by applying the net RMR multiplier utilized in its sale to ADT. ECF Doc. 42-10. Thus, Bold has met its burden to show that the information sought is relevant. See White, 417 F. Supp. 3d at 902. Ackerman has not met its burden to show that information regarding how it calculated the 35X (or the 33.8X) multiplier is otherwise not discoverable. See O'Malley, 311 F.R.D. at 463. Ackerman explained how it got to a net multiplier of 33.8X, but it has not attempted to explain how the RMR value for the accounts was initially calculated: the 37.8X multiplier from which the 33.8X multiplier was determined. Thus, Ackerman's response to Interrogatory No. 15 is incomplete. That brings us to what would constitute an appropriate response. Ackerman could provide another revised response fully explaining how it arrived at the 37.8X multiplier and then to the 33.8X multiplier. Or if the answer could be determined by examining business records, Ackerman could specify which of its records Bold would need to review to understand fully how it determined the 33.8X multiplier and provide Bold with a reasonable opportunity to examine those records. See Fed. R. Civ. P. 33(d). If the unredacted portions of the purchase agreement are among those Ackerman believes are necessary to understand how it arrived at the 33.8X multiplier, it must make the unredacted portions available for inspection. If not, Ackerman may object, and the parties may bring the matter to the court's attention for resolution. At this time, however, Ackerman has not met its burden of showing that “the information is indeed confidential ... and that its disclosure might be harmful.” Empire of Carolina, Inc. v. Mackle, 108 F.R.D. 323, 326 (S.D. Fla. 1985). *8 Bold's motion to compel is GRANTED IN PART as to Interrogatory No. 15. B. Requests for Production Nos. 7 and 8 Requests for Production Nos. 7 and 8 have to do with Ackerman's transaction with ADT. Request for Production No. 7 asked for: “Internal Documents and Communications relating to the past, present, or future sale of customer accounts to ADT, including but not limited to Document[s] and Communications exchanged among employees, board members, and shareholders.” ECF Doc. 42-10 at 2. Request for Production No. 8 asked for: “External Documents and Communications relating to the past, present, or future sale of customer accounts to ADT, including but not limited to Documents and Communications exchanged with ADT, bankers, advisers, or other agents.” Id. Ackerman objected to both requests as overbroad, overburdensome, and irrelevant and, subject to the objection, produced the redacted purchase agreement. Id. Bold's arguments concerning Requests for Production Nos. 7 and 8 are the same as those for Interrogatory No. 15. ECF Doc. 35-2 at 11–12; ECF Doc. 44 at 2–3. Ackerman's responses are likewise similar, except that Ackerman also argues that discovery into its internal and external communications would intrude into highly sensitive information and be extremely harassing to ADT. ECF Doc. 36 at 17–19; ECF Doc. 43 at 13–14. Ackerman's objections to Requests for Production Nos. 7 and 8 are sustained. The court agrees with Ackerman that Request for Production Nos. 7 and 8 are overbroad. What is relevant to the case is how Ackerman determined the value of the lost accounts and the multiplier it applied to determine its business valuation damages. The requests for production are not narrowly tailored to seek information related to either subject. Instead, they seek any and all information related to sale of accounts to ADT, including sales that are not the subject of Ackerman's complaint. Bold's motion to compel is DENIED with respect to Requests for Production Nos. 7 and 8. C. Interrogatory No. 3 Interrogatory No. 3 asked Ackerman to provide a computation of damages. ECF Doc. 35-4 at 3. In its revised response, Ackerman indicated that the “business report” it submitted to Bold as part of its initial disclosures provided sufficient information regarding its valuation of damages at this stage of the proceedings. ECF Doc. 42-12 at 2. Ackerman further responded that it revised its estimated enterprise value damages from $2.24 million (based on a 35X multiplier) to between $2.3 million and $2.7 million (based on a 33.8X multiplier). ECF Doc. 42-12 at 2; see ECF Doc. ECF Doc. 35-2 at 4. Ackerman asserted that it reached those figures by multiplying the RMR value of the lost customers from September 2019 through October 2020 by the 33.8X multiplier. ECF Doc. 42-12 at 2. Bold argues that the business report is insufficient to establish a computation of damages because: (i) the business report stated that it was an estimation of damages and provided no supporting materials for its conclusions; (ii) Ackerman indicated during a call on January 21, 2022 that some of the figures were not current; (iii) the business report did not reflect which third-party consultants performed work related to Bold's alleged errors; and (iv) the business report did not reflect how the employees who left were related to the alleged errors. ECF Doc. 35-2 at 4; ECF Doc. 42 at 4–5. *9 Ackerman responds that its main category of claimed damages is business valuation loss, the calculation of which Bold has not disputed. ECF Doc. 43 at 11–12. Ackerman argues that it has already provided documentation of its non-business valuation damages, which Bold could factor into any negotiated settlement discussions and afterwards pursue through third-party or expert discovery. ECF Doc. 43 at 12. A party who asserts a claim for damages is required to provide “a computation of each category of damages claimed ... and make available for inspection ... the documents or other evidentiary material ... on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” Fed. R. Civ. P. 26(a)(1)(A)(iii). The disclosing party must provide a computation of damages based on the information reasonably available to it at the time. Fed. R. Civ. P. 26(a)(1)(E). Bold's objection to Ackerman's revised response to Interrogatory No. 3 is sustained. As discussed above in connection with Interrogatory No. 15, Ackerman has not produced documents from which Bold can ascertain how Ackerman reached the 33.8X multiplier. Even when putting aside the other categories of damages claimed, Ackerman's response with respect to business valuation loss would, therefore, be incomplete. The court notes that the business report Ackerman submitted to establish damages is not deficient just because it was an estimate of damages claimed. See OHC Liquidation Trust v. Credit Suisse First Boston (In re Oakwood Homes Corp.), 340 B.R. 510, 541 (Bankr. D. Del. 2006). Ackerman was required only to identify the dollar figure claimed for each category of damages, explain how it reached that figure, and provide the documents upon which it relied. Thompson v. Jam. Hosp. Med. Ctr., No. 13 Civ. 1896, 2015 U.S. Dist. LEXIS 79960, at *8 (S.D. N.Y. June 19, 2015). There is no dispute that the business report provided the amounts for the categories of damages claimed. See ECF Doc. 36 at 2–3. Bold has already been provided the invoices upon which Ackerman reached its damages calculation. ECF Doc. 36 at 6. Bold has also been provided with a list of the employees alleged to have quit as a result of the alleged errors. ECF Doc. 42 at 12. Although Bold disputes the relationship between the invoices and the employees to specific errors alleged in the complaint, that dispute concerns whether Ackerman can establish causation between the errors and damages claimed. What Interrogatory No. 3 asked for was a computation of damages, which, at least with respect to the non-business valuation damages, Ackerman provided. Bold's motion to compel is GRANTED IN PART with respect to Interrogatory No. 3. D. Interrogatory No. 5 Interrogatory No. 5 asked Ackerman to identify customers who initially cancelled their accounts due to Bold's alleged errors but later returned as customers. ECF Doc. 35-4 at 3–4. Ackerman objected to the interrogatory as ambiguous, overbroad, irrelevant, and unduly burdensome. ECF Doc. 35-4 at 4. Ackerman otherwise responded that it was unable to determine which accounts specifically returned after initially cancelling due to Bold's alleged errors. Id. Ackerman did not supplement its response following the June 1, 2022 conference. However, it provided in response to another interrogatory a chart identifying which customers were impacted by Bold's alleged errors and which impacted customers cancelled their accounts from September 2019 to October 2020. ECF Doc. 42-7 at 2. *10 Bold states in its joint position statement that it is entitled to know whether customers who cancelled their accounts as a result of its alleged errors later returned to Ackerman and were in fact part of the ADT sale. ECF Doc. 42 at 6. Ackerman responds that Bold never requested a supplemental response to Interrogatory No. 5 in its June 8, 2022 letter, in which Bold identified the supplemental responses it required at this stage in the proceedings. ECF Doc. 43 at 8–9. Ackerman's objection to Interrogatory No. 5 is overruled. A disclosing party has an ongoing duty to timely supplement its responses to interrogatories “if the party learns that in some material respect the ... response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other part[y] during the discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1)(A). That Bold didn't specifically ask for Ackerman to supplement its response did not relieve Ackerman of its duty to supplement. Ackerman's other arguments for why it shouldn't be required to supplement its earlier responses and disclosures are unavailing. Ackerman's theory of business valuation damages is that the 2,000 lost accounts were not included in the sale to ADT. See ECF Doc. 36 at 18. If any of those 2,000 accounts returned to Ackerman in time to be included in the sale to ADT or were part of a later sale to ADT, it would be relevant to the propriety of its damage calculations. And the court is not convinced that identifying those accounts would be unduly burdensome, given that Ackerman has already identified the impacted accounts that were allegedly lost due to Bold's conduct. ECF Doc. 42-7 at 2. It should a fairly simple matter for Ackerman to determine whether any of the 2,000 accounts it already identified reinstated services and when. Bold's motion to compel is GRANTED with respect to Interrogatory No. 5. E. Interrogatory No. 6 Interrogatory No. 6 asked Ackerman to: “Describe in detail and State the Basis for Your analysis of which accounts were “Impacted,” ... including identifying the Impacted accounts and specifying by which alleged errors each account was impacted.” ECF Doc. 35-4 at 4. Ackerman responded, in relevant part, that it determined which accounts were impacted by noting which accounts experienced the alleged errors and that it would produce responsive documents on a rolling basis. Id. In its supplemental response, Ackerman stated: ... Impacted Customers who experienced the Sandbox Error were determined from double charges on merchant processor report/s [see ACKER0000005, ACKER0000006 and ACKER0000007]. Such erroneous charges caused by the Sandbox Error occurred on a date Ackerman would not otherwise have drafted accounts making the charges isolated on the merchant processor reports and identifiable. Impacted Customers who experienced errors other than the Sandbox Error reflected in the Impacted Customer Chart were almost entirely customers that were part of a billing cycle that contained errors and thus every customer part of that billing cycle was affected and easily identifiable. There were a couple hundred customers who experienced a variety of other errors that were determined via individual complains. *** ECF Doc. 42-7 at 2. Ackerman also produced documents related to customer communications and the Sedona software conversion, including a customer service incident database. ECF Doc. 42-6 at 2. Bold argues that Ackerman should be compelled to: (i) identify the source by which it determined that each customer was “impacted;” and (ii) supplement its production to include the individual complaints relied upon to reach the “couple hundred” figure. ECF Doc. 44 at 3. Ackerman responds that Bold is fighting over 200 out of approximately 50,000 impacted customers and that Ackerman has nevertheless identified the documents necessary to determine their particular errors. ECF Doc. 43 at 9–10. *11 Bold's objection to the manner of Ackerman's response of Interrogatory No. 6 is overruled. Ackerman has identified the specific customers who were affected by payments being withdrawn from their account and produced the documents by which it reached that determination. ECF Doc. 1 at 7; ECF Doc. 43 at 9. By producing the individual customer complaints, Ackerman adequately identified the errors that impacted 200 or so customers. Fed. R. Civ. P. 33(d). Although Ackerman has not identified what specific errors affected the customers listed in the impacted customer chart that did not fall into the “Sandbox” category exclusively, that was not the basis upon which it determined that those accounts were impacted. Ackerman's theory as to those accounts is correlation: (i) some of alleged errors occurred during a billing cycle that affected those accounts; (ii) therefore, those accounts were impacted by the alleged errors. Although Bold might have preferred greater specificity, Ackerman's answer is responsive to what Interrogatory No. 6 asked. If Ackerman later determines what specific errors affected those other accounts, it should supplement its answer to provide the basis for that determination. For now, Bold's motion to compel is DENIED as to Interrogatory No. 6. F. Request for Production Nos. 3 and 4 Request for Production No. 3 asked Ackerman to produce: “All Communications from customers to Ackerman regarding Ackerman's performance from August 2017 through [the] present.” ECF Doc. 35-4 at 8. Request for Production No. 4 asked Ackerman to produce: “All records of Your customer service incidents from August 2017 through [the] present.” ECF Doc. 35-4 at 9. Ackerman objected to both requests as ambiguous, vague, overbroad, unduly burdensome, and irrelevant. Id. In its supplemental response, Ackerman produced: (i) all documents it could find related to customer communications and the Sedona software conversion; and (ii) the customer service incident database from January 9, 2019 through April 22, 2022. ECF Doc. 42-6 at 2. Bold argues that Ackerman should produce customer service databases going back to August 2017 for Bold to determine whether there were any other causes that could have contributed to the increase in customer attrition rates. ECF Doc. 44 at 4. Ackerman responds that information going that far back is not temporally relevant to the complaint. ECF Doc. 43 at 12–13. Ackerman further argues that it does not have any more complaint database information to provide. ECF Doc. 43 at 13. Bold has not raised a substantive challenge to Ackerman's supplemental response to Request for Production No. 3. Thus, Bold's motion to compel is DENIED with respect to Request for Production No. 3. As for Request for Production No. 4., Ackerman argues that there is no database data prior to January 2019. See ECF Doc. 43 at 13. If so, the court cannot compel its production. Krieger v. Fadely, 199 F.R.D. 10, 13 (D. D.C. 2001). Thus, Bold's motion to compel is DENIED with respect to Request for Production No. 4. G. Interrogatory No. 18 and Request for Production No. 16 Interrogatory No. 18 asked Ackerman to: Identify all work performed by any third party consultants, including but not limited to Aspenroot, LLD and X-it Strategies Consulting, LLC, which You claim as damages, including specifying (a) the work performed, (b) the date on which the third party was instructed to perform the work, (c) the connection, if any, between the work and any alleged error by Bold Group, (d) the outcome of the work, (e) the date the work was completed, and (f) the total charged for the work by project. *12 ECF Doc. 35-4 at 7–8. Ackerman responded that it would produce responsive documents. ECF Doc. 35-4 at 8. Bold argued that the responsive documents did not “clearly articulate whether and how that work was related to the alleged mistakes by Bold Group and, if so, which alleged mistakes.” ECF Doc. 35-2 at 5. Ackerman did not supplement its response. ECF Doc. 42 at 8-9. Request for Production No. 16 asked Ackerman to produce: “Documents reflecting work by and Your payments to third party consultants, including but not limited to Aspenroot, LLC, and X-it Strategies Consulting, LLC, from August 2017 through [the] present.” ECF Doc. 35-4 at 12. Ackerman objected to the request as overbroad, unduly burdensome, and irrelevant. Id. Akerman also indicated it would produce responsive documents related to third-party consultant work on Sedona. Id. In its revised response to Request for Production No. 16, Ackerman produced several invoices, indicating it could not locate documents regarding the scope of work performed by the third-party consultants. ECF Doc. 42-11 at 2. Bold seeks an order requiring Ackerman to disclose the damages stemming from third-party consultants by line-item, specifying the connection between the charge and the alleged error. ECF Doc. 42 at 8–9. With respect to Request for Production 16, Bold seeks to compel production of invoices from September 2018 through 2020. ECF Doc. 42 at 12. Ackerman responds that it would be overly burdensome to comply with Interrogatory No. 18, given the amount of work that it would require and the participation of the third-party consultants and former Ackerman employees. ECF Doc. 43 at 11. Ackerman argues that line-item audits would be better suited to future depositions of the third-party consultants. Id. Ackerman further argues it has agreed not to pursue third-party consultant costs as damages at mediation. Id. And Ackerman argues that invoices outside the relevant period are irrelevant. ECF Doc. 43 at 15. Bold's concerns are well-taken. However, in light of Ackerman's position that it would not seek third-party consultant damages at mediation, an order to compel a response to Interrogatory No. 18 or a supplement to Request for Production No. 16 is not necessary at this stage of the proceedings. Thus, Bold's motion to compel is DENIED WITHOUT PREJUDICE as to Interrogatory No. 18 and Request for Production No. 16. Notwithstanding the court's ruling on Interrogatory No. 18, the information that Bold seeks would be discoverable. The cost of retaining third-party consultants to fix Bold's alleged errors is among the categories of damages which Ackerman seeks to obtain from Bold. ECF Doc. 1 at 16. Bold would not be required to pay for third-party consultant work unrelated to the alleged errors in the software conversion process. See Allied Erecting Dismantling Co. v. City of Youngstown, 783 N.E.2d 523, 535 (Ohio Ct. App. 2002). Ackerman would be required to provide any documents in its possession describing what work the third-party consultants performed, such as work-summary reports. If Ackerman lacks any information specifically describing the work performed by the third-party consultants and how it related to Bold's alleged conduct, then third-party discovery would become necessary. Likewise, the court notes that Ackerman's third-party consultant expenses predating the relevant period are discoverable. Although they fall outside of the period alleged in the complaint, Bold could argue that Ackerman's third-party consultant costs were unaffected by its alleged errors. That would be relevant to the amount of damages Ackerman could seek for third-party consultant costs. H. Interrogatory Nos. 10 and 11 *13 Interrogatory No. 10 asked Ackerman to: “Identify the Communication that constituted the first notice from Ackerman to Bold of each of the errors alleged in the Complaint.” ECF Doc. 35-4 at 5. Ackerman responded that because the errors overlapped or were interrelated, it could not pinpoint the first notice of each error. Id. Ackerman otherwise produced documents and emails. Id. In its supplemental response, Ackerman objected that the notice information was already known to Bold and that Bold was in a better position to know of its subjective notice of the alleged errors. ECF Doc. 42-9 at 2. Ackerman further responded that a review of the discovery produced in the case establishes that Bold knew: (i) by September 3, 2019 that Ackerman customers were having difficulty logging onto their accounts; (ii) by September 26, 2019, transactions made prior to September 26, 2019 had not been processed; (iii) by September 30, 2019, Ackerman customers were being double-billed for September 2019; (iv) by September 30, 2019 of invoice errors; and (v) by October 4, 2019, that software conversion issues generally threatened to “destroy” Ackerman. Id. Interrogatory No. 11 asked Ackerman to: “Identify the date on which each error alleged in the Complaint was corrected or resolved.” ECF Doc. 35-4 at 5. Ackerman responded that it was unable to identify specific dates in which certain errors ceased to be an issue. Id. It further responded that some errors were ongoing, such as log-in issues. ECF Doc. 35-4 at 5–6. In its supplemental response, Ackerman stated that Interrogatory No. 11 was irrelevant to the case and that it could not otherwise provide dates. ECF Doc. 42-9 at 2. Bold argues that the dates of notice and dates of resolution were critical to its defense that it acted reasonably and with best efforts once properly notified of the alleged errors. ECF Doc. 42 at 7. Bold argues that Ackerman has had months to identify the dates of notice but hasn't yet done so. Id. Thus, Bold seeks an order compelling Ackerman to identify dates or else be barred from presenting evidence of damages. Id. Ackerman maintains that it is still unable to identify specific dates. ECF Doc. 43 at 11. Ackerman's objections to Interrogatory Nos. 10 and 11 are overruled. The dates of notice and correction of the alleged errors in the software conversion process are relevant and material to the case. ECF Doc. 1-2 at 2; ECF Doc. 14 at 8. Although Ackerman contends that Bold knows what errors were communicated and when, Bold is entitled to know when Ackerman asserts the errors were conveyed and whether they were ever resolved. Ackerman can either provide Bold with the dates requested or provide Bold with the material from which such information can be ascertained if the burden would be the same for both parties. Fed. R. Civ. P. 33(d). If, after a good faith investigation, Ackerman is still unable to provide the relevant information, Ackerman must say so under oath and describe what efforts it took to obtain an answer. E.g., Bryant v. Armstrong, 285 F.R.D. 596, 613 (S.D. Cal. 2012); Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996). Bold's motion to compel is GRANTED IN PART as to Interrogatory Nos. 10 and 11. I. Request for Production No. 5 Request for Production No. 5 asked Ackerman to produce: “Records reflecting the number of Ackerman customers, including total customers, new customers added, and attrition rates on at least a monthly basis from August 2017 through the present.” ECF Doc. 35-4 at 9. Ackerman produced records from November 2018 through November 2021. ECF Doc. 36 at 14. In its supplemental response, Ackerman objected to production of documents beginning in August 2017 as overbroad and unduly burdensome. ECF Doc. 42-8 at 2. Ackerman further responded that it produced a document reflecting its attrition rates from November 2017 through March 2022 on a monthly, quarterly, semi-annual, and annual basis. Id. *14 Bold now seeks to compel production of attrition rate data from August 2017 through October 2017, arguing that the chosen start date for calculating attrition rates could significantly impact the data. ECF Doc. 44 at 4. Ackerman responds that its fiscal year ran from November 1 to October 31 of the following year, such that its response was sufficient. ECF Doc. 43 at 13. Ackerman's objection is overruled. Ackerman's theory of business valuation damages is premised on the loss of 2,000 customer accounts. Ackerman reached that figure by comparing its historic attrition rate with the actual attrition rate during the period in which Bold's alleged software conversion errors were present. ECF Doc. 1 at 11-12. Ackerman's calculation of its historic attrition rate is relevant to its theory of damages, including whether the historic attrition rate represented in the complaint is consistent with attrition rates going back to 2017. Although attrition rate data for August, September, and October 2017 might not be of definitive relevance to the way Ackerman calculated its attrition rates for fiscal year 2017-2018, the court finds that the information sought is discoverable. Bold's motion to compel is GRANTED with respect to Request for Production No. 5. J. Request for Production No. 11 Request for Production No. 11 asked Ackerman to produce: Documents and Communications related to employees whose job responsibilities included customer service (as described in Paragraphs 22 and 23 of the Complaint, but not limited to employees who resigned), including personnel files, performance reviews, attendance records, complaints, resignation letters, and communications regarding the employees’ performance and separation from Ackerman from August 2017 through present. ECF Doc. 35-4 at 10-11. Following the June 1, 2022 status conference, Bold requested that Ackerman specify which employees quit as result of Bold's alleged errors, including their names, reasons for quitting, how their reasons for resigning were communicated, and Ackerman's basis for causation. ECF Doc. 42-2 at 3. Bold stated that the documents Ackerman produced did not include notices of resignation and that it was not immediately apparent what connection those employees had to the software conversion, given that half did not work in customer service. Id. Ackerman did not further supplement its response to Request for Production No. 11. Bold argues that Ackerman has not produced: (i) historic information about customer service employees’ length of employment that could indicate whether the employee attrition rate was higher than normal; (ii) notices of resignation; and (iii) any connection between the employees’ departure and Bold's alleged conduct. ECF Doc. 42 at 12. Ackerman responds that requests into employee personnel files is overbroad and that notices of resignation are not available for all employees. ECF Doc. 43 at 15. Ackerman further responds that it would not seek damages related to the employees who quit at mediation. Id. In light of Ackerman's statement that it would not pursue damages related to the employees who allegedly quit because of Bold's alleged errors, Bold's motion to compel is DENIED WITHOUT PREJUDICE as to Request for Production No. 11. The court notes, however, that Ackerman claims damages for wages and incentives to curb staffing shortages caused by 20 employees who resigned due to an increase in customer service calls. ECF Doc. 1 at 16. Discovery into all of Ackerman's customer-service personnel records, as Request for Production No. 11 asks, is overbroad because, unlike Ackerman's business valuation damages, Ackerman's theory of damages related to lost employees is not based on a statistical comparison of historic attrition with actual attrition during a specified period. The court further notes that Bold's request for an explanation as to causation is beyond the scope of what Request for Production No. 11 asked. Notices of resignation or communications by the employees who quit as to the reasons that they quit, however, would be discoverable. VI. Conclusion *15 Ackerman's motion to compel (ECF Doc. 34) is DENIED. Bold's motion to compel (ECF Doc. 35) is DENIED IN PART as to: (i) Requests for Admission Nos. 1, 2, and 3; (ii) Interrogatory Nos. 6, 7, and 18; and (ii) Requests for Production Nos. 3, 4, 5, 7, 8, 16, and 18. Bold's motion to compel (ECF Doc. 35) is GRANTED IN PART as to: (i) Interrogatory Nos. 3, 5, 10, 11, and 15; and (ii) Requests for Production No. 5. The parties are further ORDERED to submit a joint status report within 14 days (by August 9, 2022) with proposed dates upon which to schedule a mediation. IT IS SO ORDERED. Footnotes [1] The factual background is drawn from plaintiff's complaint and is provided as context to the disputed discovery issues. [2] The parties’ respective positions will be discussed in more detail in the discussion section below.