CHAMPIONX, LLC, f/k/a WINDROCK, INC., Plaintiff, v. RESONANCE SYSTEMS, INC., et al., Defendants No. 3:21-CV-288-TAV-JEM United States District Court, E.D. Tennessee, Northern Division Filed January 12, 2024 Counsel Bradley E. Trammell, Baker, Donelson, Bearman Caldwell and Berkowitz, PC, Memphis, TN, Christopher J. Barrett, Pro Hac Vice, Jeremy D. Ray, Kenneth A. Weber, Baker Donelson, Nashville, TN, for Plaintiff. Cheryl G. Rice, John L. Wood, Rameen J. Nasrollahi, Egerton, McAfee, Armistead & Davis, PC, Knoxville, TN, for Defendants Resonance Systems, Inc., Josh Kelley, Viper Monitoring and Analysis, LP, Viper Machinery Monitoring Corporation, Edward Flanagan, Paul Beam, Steve McNair. McCook, Jill E., United States Magistrate Judge MEMORANDUM AND ORDER *1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02. Pursuant to the Court's Order [Doc. 213], on December 20, 2023, the parties contacted Chambers with a bullet point list of their outstanding discovery disputes [See also Doc. 26 pp. 3–4]. The parties appeared before the Court on January 10, 2024, for an informal discovery dispute conference [See Doc. 220].[1] Attorneys Christopher Barrett and Kenneth Weber appeared on behalf of Plaintiff. Attorneys Cheryl Rice and John Wood appeared on behalf of Defendants Resonance Systems, Inc. (“RSI”), Josh Kelley (“Kelley”), Viper Monitoring and Analysis, LP (“Viper LP”), Viper Machinery Monitoring Corporation (“Viper Corp.”), Edward Flanagan (“Flanagan”), Paul Beam (“Beam”), and Steve McNair (“McNair”).[2] I. PLAINTIFF'S REQUEST FOR PRODUCTION NO. 78 Plaintiff served upon Defendant RSI Request for Production (“RFP”) No. 78, which seeks documents and electronic communications containing certain search terms. The parties filed briefs relating to their respective positions, and they disagree whether a request for production can be composed solely of search terms [See Docs. 217 and 219]. Defendant RSI also objects to RFP No. 78 because several of the search terms are duplicative of Plaintiff's previous discovery requests [Doc. 219 pp. 7–9]. Whether a request for production can be composed solely of search terms appears to be an unsettled issue, compare Phillips v. Boilermaker-Blacksmith Nat'l Pension Tr., No. 19-2402-DDC-KGG, 2020 WL 5642341, at *3–4 (D. Kan. Sept. 22, 2020) (denying a motion to compel relating to a request for production that contained only search terms), with Burke v. Ability Ins. Co., 291 F.R.D. 343, 356 (D.S.D. 2013) (granting a motion to compel relating to a request for production that contained only search terms), and the parties have cited no guidance on this issue from the Sixth Circuit.[3] But the Court does not need to resolve this issue here because through the progression of the parties' dispute, Plaintiff has demonstrated the relevance of each term set forth in RFP No. 78 [See Doc. 217 pp. 5–7]. The Court ORDERS Defendant to search for each of the terms set forth in RFP No. 78 and produce the documents that are responsive to the descriptions set forth in Plaintiff's position statement [See Doc. 217 pp. 5–7]. To the extent that searching for any term set forth in RFP No. 78 would be duplicative of a search in response to a previous discovery request from Plaintiff, Defendant RSI shall identify the previous discovery request and the particular term, which if searched for would produce duplicative responses. To the extent that a search for any term generates a voluminous number of results, the parties SHALL meet and confer to determine additional search parameters. II. DEFENDANT RSI'S RULE 30(B)(6) DEPOSITION *2 Plaintiff seeks to depose Defendant RSI. The parties dispute the length of Defendant RSI's deposition and the temporal scope of Topic Nos. 1, 4, 5, 12, and 22 in the Rule 30(b)(6) notice. Length. Plaintiff seeks a fourteen-hour deposition, and Defendant RSI argues that seven hours is more appropriate. Rule 30 of the Federal Rules of Civil Procedure states that “a deposition is limited to one day of 7 hours.” Fed. R. Civ. P. 30(d)(1). But the Court “must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent.” Id. A party seeking more than the maximum amount of time must show good cause. Reed v. United States, No. 3:18-CV-201, 2021 WL 6254452, at *1 (E.D. Tenn. Sept. 7, 2021). The Court finds that Plaintiff has established good cause to depose Defendant RSI's corporate designee for fourteen (14) hours.[4] The Court has reviewed the notice to Defendant RSI, and several of the topics seek information that is technical and complex. In contesting Plaintiff's request for fourteen hours, Defendant RSI asserts that Plaintiff has already deposed its four principals. “The testimony of a Rule 30(b)(6) witness[, however,] is different from that of a ‘mere corporate employee’ because it represents the knowledge of the corporation, not the individual.” Schnatter v. 247 Grp., LLC, 343 F.R.D. 325, 330 (W.D. Ky. 2022) (quoting White v. Wal-Mart Stores E., L.P., No. 5:18-CV-00034-TRB-LLK, 2018 WL 5083891, at *5 (W.D. Ky. Oct. 18, 2018)). Defendant RSI also asserts that Plaintiff is taking the deposition of Defendant Viper LP, which is owned by Defendant RSI and has no employees. Even so, Defendant RSI and Defendant Viper LP are different entities. The Court therefore GRANTS Plaintiff's request to depose Defendant RSI for fourteen (14) hours. Topic Nos. 1, 4, 5, 12, and 22. Defendant RSI seeks an order limiting the temporal scope of these topics.[5] Defendant RSI states that questions about events occurring before its existence—March 25, 2020—should be precluded. According to Defendant RSI, the purpose of the corporate deposition is not “to ask the corporation about an individual's knowledge who happens to be an employee or officer of the corporation” [Defendant RSI's Position Statement p. 3]. Defendant RSI asserts that Plaintiff had an opportunity to discover information before its existence by taking the testimony of its four officers/employees. *3 Plaintiff claims that the evidence shows that Defendant RSI has knowledge of preformation activities and that its “existence as a legal entity commenced in 2019, when the joint venture/general partnership that eventually became [Defendant] RSI was formed” [Plaintiff's Position Statement p. 3]. According to Plaintiff, preformation information is relevant and that “well settled law provides that a corporation is liable for the lawful acts of its promoters” [Id.]. Neither party has pointed the Court to any authority about whether a Rule 30(b)(6) witness may be asked about preformation activity. But Rule 30(b)(6) states that a corporate deponent “must testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). The Court is not in a position to determine what information Defendant RSI knows or what information is reasonably available to it. The Court therefore declines to strike these topics. To the extent it is able to do so, Defendant RSI SHALL respond to these topics during its deposition. III. PLAINTIFF'S DISCOVERY REQUESTS The parties reported an impasse on Plaintiff's RFP Nos. 61, 73, 76, and 81 to Defendant RSI. RFP Nos. 61 & 81. RFP No. 61 seeks “[a]ll meeting invitations, calendar appointments, emails, and text messages exchanged between Paul Beam, Ed Flanagan, Josh Kelley, and/or Steve McNair related to their meetings at Steven McNair's house or at any other physical or virtual location in 2018, 2019, and 2020.” RFP No. 81 seeks “Josh Kelley's Google calendar and Outlook calendar entries for all meetings in which Ed Flanagan, Paul Beam, and/or Steve McNair participated for the years 2018, 2019, and 2020.” At the hearing, Defendant RSI argued that these requests were overly broad and would require production of irrelevant information. Plaintiff generally acknowledged that it needed to re-word these requests. The Court agrees that RFP Nos. 61 and 81 are overly broad because they are not tailored to any subject matter. The Court therefore SUSTAINS Defendant RSI's objections to RFP Nos. 61 and 81. Plaintiff shall serve any re-worded requests within seven days of entry of this Order. RFP No. 73. This RFP seeks “[d]ocuments and electronic communications about avoiding the use of the name ‘Windrock’ in RSI's software, marketing materials, or communications with third parties.” During the hearing, Plaintiff alleged that Defendant RSI used the pseudonym “OEM” to avoid referencing “Windrock.” Given that Defendant RSI must search for the term “OEM,” see infra Section I., the Court finds this search will resolve the parties dispute about RFP No. 73 at this time.[6] RFP No. 76. This RFP seeks “[d]ocuments and electronic communications in which RSI employees discuss potential third party funding of the development of RSI software, including any such communications concerning or with Emprise.” The parties represented that Defendant RSI produced documents on January 9, 2024, in response to this RFP. The Court therefore finds the dispute about RFP No. 76 moot. IV. RE-DEPOSING ED FLANAGAN Plaintiff seeks to re-depose Defendant Flanagan for three hours because it received documents after it took his deposition. Plaintiff explained that on October 26, 2023, Defendant Flanagan made a supplemental production of eighteen emails and one attachment [See Doc. 215 pp. 2–3 (describing the contents of the emails and the attachment)]. In the interest of resolving this issue, Defendants have agreed to a second deposition of Defendant Flanagan, but they argue that thirty minutes is sufficient. *4 The Court finds that thirty minutes does not provide Plaintiff sufficient time to question Defendant Flanagan about the eighteen emails and an attachment. But in light of Plaintiff's acknowledgment at the hearing that the emails were short [see also Doc. 215 pp. 2–3], the Court declines Plaintiff's request for three hours. Instead, the Court grants Plaintiff 1.5 hours to re-depose Defendant Flanagan. The deposition shall be limited to the documents in the October 26, 2023 production. V. DEFENDANT RSI'S DISCOVERY REQUESTS Defendant RSI seeks a date certain for Plaintiff to respond to Interrogatory No. 20 and RFP Nos. 83, 84, 91, 116, and 117. At the hearing, Plaintiff represented that it responded to these discovery requests on January 8, 2024. The Court therefore finds this issue moot. Defendant RSI also served Plaintiff with a Second Set of Request for Admissions (“Second RFA”). Plaintiff objected to each request set forth in the Second RFA on the basis that it had “already responded to 324 requests for admission served by Defendant RSI” [Plaintiff's Responses to Defendant RSI's Second Set of Admission (citation omitted)]. It therefore asserted that “the[ ] request for admission is unduly burdensome, disproportionate to the needs of the case, and a vexatious litigation tactic” [Id.]. And with respect to the requests that sought admission of a certain person's access to knowledge [see, e.g., Second RFA No. 1], Plaintiff also objected to the compound nature, which it contends is contrary to Rule 36(a)(2). At the hearing, Defendant RSI explained that they served the Second RFAs in light of Plaintiff's answers to the First RFAs. Plaintiff asserted that the Second RFAs were overly burdensome. Further, Plaintiff argued that Defendant RSI did not need this discovery, citing to Defendant RSI's motion for summary judgment. The Court has reviewed the Second RFAs. Many of the requests ask whether Plaintiff can “identify, confirm the existence of, or produce in discovery, a written agreement between [it]” and a certain employee that was effective prior to a date certain [See e.g., Second RFA No. 5]. Given the procedural posture of this case, it appears to the Court that these requests may be more appropriately addressed through a stipulation. As the United States Court of Appeals for the Sixth Circuit has explained, “Economy of the time of both litigants and courts is greatly favored, and no more useful device is found than the stipulation which agrees to the existence of material and relevant facts concerning which there is no dispute ....” Ins. Co. of N. Am. v. Nw. Nat. Ins. Co., 494 F.2d 1192, 1196 (6th Cir. 1974) (citing Rules 1 and 16 of the Federal Rules of Civil Procedure). The Court therefore ORDERS the parties to meet and confer to determine whether their disputes about these requests can be resolved by a stipulation. The parties SHALL submit a status report on their efforts within seven days of entry of this Order. With respect to the requests seeking information about a person's access to a variety of information [see, e.g., Second RFA No. 1], the Court finds that they are improper compound requests. See Fed. R. Civ. P. 36(a)(2) (“Each matter must be separately stated.”); see also Berkadia Real Est. Advisors LLC v. Wadlund, No. CV-22-00049-TUC-CKJ, 2023 WL 2072494, at *11 (D. Ariz. Feb. 17, 2023) (“Such improper compound questions require qualified answers of admit or deny, or denial of one part of the RFA and then the other.”). The Court SUSTAINS Plaintiff's objections to these requests. *5 IT IS SO ORDERED. Footnotes [1] The Court also heard argument on Plaintiff's Motion to Compel [Doc. 198]. The Court will enter a separate order adjudicating that motion. [2] Defendants Signet Monitoring and Analysis, Inc., and Ethan Clark did not attend this hearing, but it appears these parties have settled the claims against them [See Doc. 209]. [3] Plaintiff relies on Burus v. Wellpoint Co., Inc., 434 F. App'x 475, 478–79 (6th Cir. 2011). But in that case, the parties did not raise—and the Sixth Circuit Court of Appeals did not address—whether a request for production can be composed solely of search terms. See id. [4] While the Court makes its determination on the basis of good cause, it notes that some courts have held that, “[f]or purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.” Smith v. Smith, No. 19-10330, 2020 WL 1933820, at *6 (E.D. Mich. Apr. 22, 2020) (quoting Fed. R. Civ. P. 30, advisory committee's note to 2000 amendment). Defendant RSI indicated that it intends to designate two witnesses to testify about the topics. Under this line of authority, fourteen hours would be appropriate. [5] Defendant RSI raised other objections to these topics [See Defendant RSI's Responses and Objections to Plaintiff's Second Amended Notice of Rule 30(b)(6) Depositions pp. 1–4, 6–7, and 10–11]. At the hearing, however, it represented that the parties had resolved them. [6] At the hearing, Plaintiff stated that Defendant RSI may have used other pseudonyms to avoid referencing “Windrock.” Plaintiff, however, had not served Defendant RSI with any discovery requests seeking the identification of other pseudonyms.