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 October 19, 2023 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. Now before the Court is Defendants' Motion to Reopen Rule 30(b)(6) Deposition of Windrock, Inc. Corporate Designee Mary Chapman and for Sanctions [Doc. 96]. Plaintiff has responded in opposition to this motion [Doc. 123], and Defendants have replied [Doc. 106].[1] The motion is ripe for adjudication.[2] For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the motion [Doc. 96]. I. BACKGROUND On December 21, 2022, Defendants took the deposition of Plaintiff's Rule 30(b)(6) witness, Mary Chapman (“Chapman”) [Doc. 96 p. 1]. Plaintiff designated Chapman as its representative to testify on Topic Nos. 3, 4, 5, 10, 16, 17, 19, 21–29, 33 (except emails), 35 (except emails), and 36 (except emails) in the Fourth Amended Rule 30(b)(6) Notice (“Amended Notice”) [Id. at 2; Doc. 97-2]. In the beginning of Chapman's deposition, Cheryl Rice, defense counsel asked what Chapman brought with her, and Chapman responded, “These are my preparation notes [(“Outline”)] that I put together for the topics that I'm responsible for” [Doc. 99-1 p. 13].[3] Chapman testified that she “worked with counsel” to prepare the Outline [Id.]. Chapman also brought a large notebook (“Binder”) and stated it contained “supporting documentation for the topics that I'm responsible for and exhibits” [Id.]. When Attorney Rice asked whether the Binder contained material that had been produced in discovery, Chapman stated that she “would have to rely on counsel to answer that” [Id. at 14]. Attorney Rice asked Plaintiff's counsel, Kenneth Weber, who responded that Attorney Rice could “look at the binder” [Id.]. Attorney Weber stated that Plaintiff was not claiming any privilege with respect to the Outline or Binder, both of which would be exhibits to the deposition [Id.]. The parties went off the record and afterwards, Attorney Rice stated: I will note for the record that counsel has not brought copies of that for me, so I am not looking at that as you are looking at that. I would ask for a copy of that to be made, and I understand counsel is declining to make a copy. *2 [Id. at 15]. Attorney Weber responded that he had a copy of the Outline for Attorney Rice [Id. at 14–15]. The parties also agreed to make the Binder an exhibit to the deposition [Id. at 15]. The parties do not dispute that Attorney Rice was able to view the Binder throughout the deposition. Over two hours into Chapman's deposition, the parties contacted the Court given Defendants' request “to adjourn and delay completion of the [d]eposition so [they] could obtain a copy of the Binder to review and digest the information in the [Outline] and Binder before continuing to question Ms. Chapman as [Plaintiff's] designee” [Doc. 97 p. 11]. During the telephone hearing, Defendants argued that the contents in the Binder were inconsistent with Plaintiff's discovery responses, which Chapman had verified as complete and accurate [Doc. 64 pp. 1–2]. Due to the inconsistency, Defendants requested that the Court suspend the deposition so counsel could have time to review the Outline and the Binder [Id. at 2]. Plaintiff denied that Chapman's Outline was inconsistent with its discovery responses and explained that the interrogatories Defendants referenced were different in scope than the topics for which Chapman prepared to testify [Id.]. But even so, Plaintiff contended that this is a normal part of discovery, and it has a duty to supplement responses as discovery progresses [Id.]. The Court ordered the parties to resume and complete Chapman's deposition on the topics for which she was designated to testify but directed Plaintiff to provide Defendants a copy of the Binder [Id.]. The Court noted that following the conclusion of Chapman's deposition, Defendants may file a motion to re-open Chapman's Rule 30(b)(6) deposition, upon review of the Outline, Binder, and deposition transcript, to the extent appropriate [Id.].[4] On May 3, 2023, Defendants filed their motion, claiming that their efforts at deposing Chapman were delayed, impeded, and frustrated by Plaintiff and its counsel [Doc. 96].[5] They request that the Court reopen the Rule 30(b)(6) deposition arguing that Chapman was unprepared, unresponsive, and that “she relied unduly” on the Binder and Outline, which they did not have prior to the deposition [Id. at 3]. Defendants claim that their counsel could not process the contents of the Binder given its volume and that the Outline “contained information that was not provided in either [Plaintiff's] verified interrogatory answers or Ms. Chapman's prior testimony as the verifying witness” [Doc. 97 pp. 8, 11]. According to Defendants, Chapman was also unprepared to testify on Topic Nos. 4, 6, 22, 26, 29, and 36. Defendants further seek sanctions, claiming that “[t]he [d]eposition was delayed, impeded, and the purpose of [it] was frustrated by the conduct of [Plaintiff] and its counsel” [Id. at 24]. *3 Plaintiff responds that there is no authority that prevents Chapman from relying on an Outline or Binder during the deposition [Doc. 123]. Plaintiff argues that most of the documents contained in the Binder were produced during discovery. With respect to Defendants' allegations that the Outline is inconsistent with the discovery responses, Plaintiff responds that the deposition topics are different in scope than the interrogatories. Plaintiff contends that Chapman was reasonably prepared for the Rule 30(b)(6) deposition and that the accusations against Plaintiff's counsel are false. Defendants do not dispute that Chapman may refer to either the Outline or Binder during the deposition but state that Plaintiff did not produce it prior to the deposition [Doc. 106]. According to Defendants, some of the documents in the Binder were not Bates-stamped, which shows that they were not produced in discovery. With respect to the Outline, Defendants state that it improperly supplemented Plaintiff's interrogatory answers. Defendants maintain that Chapman was unprepared to testify as to certain matters and that Plaintiff's counsel's conduct during the deposition is inexcusable. II. ANALYSIS The Court finds that neither Plaintiff, nor its counsel, impeded, frustrated, or delayed Defendants' efforts at taking the Rule 30(b)(6) deposition. The Court therefore declines to award sanctions on this basis. The Court, however, finds that Chapman was not prepared on certain topics and that Defendants may re-open the Rule 30(b)(6) deposition as explained below. The Court also finds that Defendants should be awarded their costs with re-taking the Rule 30(b)(6) deposition. A. Production of the Outline and Binder Prior to the Deposition Defendants do not object to Chapman's use of the Outline or Binder during the deposition [See Doc. 106 p. 2].[6] Relying on Rule 612 of the Federal Rules of Evidence, Defendants object because they were not provided copies of either prior to the deposition. Rule 612 provides that “when a witness uses a writing to refresh memory[ ] ... while testifying ... an adverse party is entitled to have the writing produced at the hearing, to inspect it, [and] to cross-examine the witness about it.” Fed. R. Evid. 612(a)–(b). If a witness reviews documents before testifying, the Court may order the production of those documents “in the interest of justice.” Fed. R. Evid. 612(a)(2). This Rule “applies to deposition testimony.” Antero Res. Corp. v. Tejas Tubular Prod., Inc., 516 F. Supp. 3d 752, 753 (S.D. Ohio 2021) (citations omitted). The parties' dispute is about when Plaintiff was required to produce the Outline and the Binder. Plaintiff provided Defendants a copy of the Outline at the beginning of Chapman's deposition upon Attorney Rice's request. While Attorney Rice was able to view the Binder during the deposition, Plaintiff provided Attorney Rice her own copy of it approximately two hours into her deposition following the Court's oral order to do so. Neither party has cited cases that address when a party must produce to the opposing party documents that a witness uses to refresh her recollection.[7] But the Rule states when the documents must be provided: “at the hearing.” Fed. R. Evid. 612(b). “Rule 612 is an evidentiary and not a discovery rule[,]” and in determining whether the opposing party should produce documents that a witness used to refresh her recollection, courts must “consider whether the witness used the document at issue for ‘testimonial’ purposes.” Antero Res. Corp., 516 F. Supp. 3d at 753 (citation omitted). In other words, the production of documents is not automatic, and courts must determine whether a witness (1) used the document to refresh her memory; and (2) whether it was used for the purpose of testifying. K & S Assocs., Inc. v. Am. Ass'n of Physicists in Med., No. 3:09-1108, 2012 WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012) (citation omitted). While it appears Chapman relied on her Outline and the Binder to refresh her memory, to the extent she used them for testimonial purposes, Plaintiff disclosed and produced these items during the deposition. *4 Defendants also claim that by not producing the Binder prior to the deposition, Plaintiff impeded, delayed, and frustrated their opportunity to take a fair examination of Chapman under Rule 30(d)(2) of the Federal Rules of Civil Procedure. Defendants assert that the Binder “consisted of 564 pages and fifty-two (52) sections containing various documents in whole or part” [Doc. 97 p. 11]. But Plaintiff represents that “[a] quick inspection would have revealed that most if not all documents in the [B]inder were Bates numbered—clear proof that they had been produced in discovery” [Doc. 123 p. 4]. Defendants have cited only a few examples of documents without Bates-Numbers [Doc. 106 p. 3 (citing Doc. 97-5)].[8] They claim that they had “to choose between devoting time scheduled for conducting the Chapman Rule 30(b)(6) [d]eposition to instead comb through the hundreds of pages of the witness's copy of the Binder” [Id.]. At the beginning of the deposition, however, Plaintiff provided defense counsel the “Table of Contents” for the Binder [Doc. 99-1 p. 16; Doc. 97-5]. And upon review of the transcript, there does not appear to be any instance where Defendants were impeded, delayed, or frustrated with the taking of the deposition because they did not receive the Binder beforehand. B. Supplementing Discovery Prior to the Deposition Defendants state that the Outline contained information that was not included in Plaintiff's answers to Defendants' interrogatories. Given that they did not have this information, Defendants claim that they “were unable to prepare questions related to this information or consider examination of the witness over documents that might be relevant to that new information” [Doc. 97 p. 13]. Defendants contend that Plaintiff failed to supplement its discovery responses in a timely manner or at least provide a copy of the Outline prior to the deposition. In support of their position, Defendants cite to Plaintiff's responses to Interrogatory Nos. 4 and 11. Comparing the interrogatories with the topics, Plaintiff claims, will show “[t]he fallacy of Defendants' argument” [Doc. 123 p. 8]. Plaintiff states that Interrogatory No. 4 is different in scope than the questions directed to Chapman. Plaintiff acknowledges that the Outline included new information about its damages but states that its “damages are dynamic and developing over time due to Defendants' ongoing competition with Plaintiff” [Id. at 9]. Plaintiff argues that it is under no duty to supplement prior to the deposition. Under Rule 26(e), the parties have a continuing obligation to supplement their discovery responses “in a timely manner.” Fed. R. Civ. P. 26(e). Rule 26(e) does not define “in a timely manner” and the phrase “necessarily depend[s] on the facts and circumstances of each case.” EEOC v. Dolgencorp, LLC, 196 F. Supp. 3d 783, 795 (E.D. Tenn. 2016) (citation omitted), aff'd, 899 F.3d 428 (6th Cir. 2018). “Parties should supplement disclosures and responses ‘periodically in a fashion that will allow [the opposing party] to conduct meaningful discovery and avoid undue delay in the progress of [the] case.’ ” Id. (quoting U.S. ex rel. Fry v. Guidant Corp., No. 3:03–0842, 2009 WL 3103836, at *4 (M.D. Tenn. Sept. 24, 2009)). Interrogatory No. 4 asks Plaintiff to “[i]dentify all information and/or material you claim is a trade secret, proprietary and/or confidential and which you allege that Defendants have misappropriated in your Complaint filed in this matter” [Doc. 97-6 p. 3]. Plaintiff's answer to Interrogatory No. 4 identifies its source code and its [c]onfidential customer information including, without limitation, knowledge of the Windrock product(s) each customer has used/is using, the quantity of Windrock products purchased and utilized by each customer, the types of assets each customer uses, the manner in which each customer monitors their assets (including what readings the customer takes), the relative amount of revenue attributable to each customer, as well as knowledge of the specific changes customers have previously requested to Windrock's products, in addition to the identity of Windrock's customers and appropriate customer contacts. *5 [Id.]. Chapman verified this response [Id. at 4]. Topic No. 4 requests “[t]he customer information Plaintiff claims is Trade Secret, how that information has been created, compiled, maintained, and used, including but not limited to the measures that Plaintiff took and takes to protect the Trade Secret(s) at all times since 2007 and the value derived from such information being secret” [Doc. 97-2 p. 5]. And “Trade Secrets” is defined to “include ‘the trade secrets referenced in Plaintiff's Complaint, Plaintiff's Initial Disclosures and/or Plaintiff's answers to Interrogatories” [Id. at 4]. According to Defendants, the Outline “adds at least fourteen (14) types of additional claimed trade secrets that are not mentioned in [Plaintiff's] Interrogatory No. 4” [Doc. 97 p. 13]. Upon review, Interrogatory No. 4 seeks identification of Plaintiff's trade secrets, which Plaintiff provided in general terms as its source code and its confidential consumer information. Topic 4 seeks more information about the confidential consumer information that Plaintiff identified in Interrogatory No. 4. While the Outline contained more confidential consumer information that was not identified in Interrogatory No. 4, Defendants do not sufficiently explain why this new information impeded, frustrated, or delayed their efforts in deposing Chapman. Plaintiff is under a duty to supplement information “not otherwise been made known[,]” Fed. R. Civ. 26(e), but the timeliness of providing supplemental discovery depends on the “facts and circumstances of each case,” Dolgencorp, LLC, 196 F. Supp. 3d at 795 (citation omitted). When Chapman presented the new information, the matter was stayed [see Doc. 58], and the discovery deadline was later reset to June 28, 2023 [see Doc. 70]. Cf. Dolgencorp, LLC, 196 F. Supp. 3d at 795 (“Courts are likely to determine that a party violated Rule 26(e) when the party supplemented disclosures or responses after the discovery deadline in the case.” (citations omitted)). Defendants' objection is, therefore, not well taken. Defendants also rely on Plaintiff's response to Interrogatory No. 11, which requests that it “set forth each element of damages you claim in this action, the total amount claimed, and describe how you calculated those damages” [Doc. 97 p. 13 (citing Doc. 99-3 p. 3)]. Chapman's Outline “contain[ed] additional damages from Allied-TF Hudgins and Kinder Morgan that were not mentioned in response to Interrogatory No. 11 and that Plaintiff did not supplement [Id. at 14]. Plaintiff acknowledges that Chapman provided additional damages during the deposition but explains that its “damages are developing over time” and that “[n]othing prevented Defendants' counsel from asking Ms. Chapman about these new, narrow categories of information” [Doc. 123 p. 9]. Plaintiff states that it was not required to supplement Interrogatory No. 11 prior to the deposition, and Rule 26(e) does not require supplementation “if the new information is disclosed elsewhere” [Id.]. The Court has reviewed the transcript and finds that Defendants were able to conduct meaningful discovery on these damages [See Doc. 99-1 p. 155]. Defendants have also not shown that their efforts to depose Chapman were impeded, delayed, or frustrated on this basis. Defendants claim that Plaintiff had a duty to supplement, and Defendants suggest that Plaintiff knew of these damages “all along” [Doc. 106 p. 4]. Plaintiff counters that “damages are dynamic and developing over time due to Defendants' ongoing competition with Plaintiff” [Doc. 123 p. 9]. Upon review of the transcript, it appears that Chapman learned of the additional customers while preparing for Plaintiff's deposition. Specifically, Chapman testified that in “trying to do [her] due diligence to get information to this deposition[,]” she discovered that Plaintiff had lost business from Allied TF Hudgins and Kinder Morgan [Id. at 151]. See Fed. R. Civ. P. 26(e) (stating that a party has a duty to supplement when it learns that the discovery “response is incomplete or inaccurate”). C. Conduct of Plaintiff's Counsel *6 Depositions, including corporate depositions, “proceed as they would at trial[.]” FedEx Corp. v. United States, No. 08-2423 MA/P, 2011 WL 2023297, at *5 (W.D. Tenn. Mar. 28, 2011) (quoting Fed. R. Civ. P. 30(c)(1)) (alteration in original). Rule 30(c)(2) provides for the manner of objections, which “must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30(c)(2). Generic objections to the form of the question are deemed waived. Fletcher v. Honeywell Int'l, Inc., No. 3:16-CV-302, 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017) (“To the extent that counsel made a generic objection to ‘form,’ but failed to specify the basis for the objection, the Court also considers those objections to be waived.” (citations omitted)); see also Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014) (“[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection. Simply stating “objection to form” does not necessarily preserve the objection.”). Defendants claim that Chapman's testimony was insufficient due to Attorney Weber's coaching and speaking objections. They seek sanctions pursuant to Rule 30(d)(2), 28 U.S.C. § 1927, and Rule 37(d), and they note that sanctions can be imposed if objections during the deposition are in bad faith. Plaintiff denies that its counsel used coaching or improper speaking objections. Instead, Plaintiff states that defense counsel's questions “exceeded any rational interpretation of the topics for which she was designated, ... tried to lock in Ms. Chapman's testimony on matters for which she could not have knowledge due to Defendants' Attorneys' Eyes Only or Source Code designations, or ... explored inherently legal matters on which Plaintiff has a right to rely on counsel for advice” [Doc. 123 p. 16]. Plaintiff acknowledges that there were a “few instances of alignment between Mr. Weber's objections and Ms. Chapman's testimony,” but Plaintiff explains that “Ms. Chapman was not molding her testimony to counsel's objections, but rather simply agreeing that she had trouble answering the questions” [Id.]. The Court has reviewed the transcript of Chapman's deposition and the five video clips that Defendants manually filed. The Court does not find that Attorney Weber coached Chapman, made objections in bad faith, or impeded, frustrated, or delayed the deposition in a manner to warrant sanctions. Attorney Weber, however, did make some speaking objections [see, e.g., Doc. 97 p. 17], and he should avoid doing so in the future. Pogue v. Nw. Mut. Life Ins. Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at *11 (W.D. Ky. July 18, 2017) (“It is the attorney's job to make an objection and then stop talking.”). Even so, when reading the transcript as a whole, the Court finds that Attorney Weber did not misuse his objections or coach Chapman in such a way that impeded the deposition. Lipian v. Univ. of Mich., No. 18-13321, 2020 WL 3402013, at *10 (E.D. Mich. June 19, 2020) (“But improper speaking objections to suggest responses or otherwise coach a witness do not necessarily warrant sanctions, or even an order to reconvene the deposition or to permit other additional discovery. Courts assess whether the inappropriate interjections and other improper obstruction actually impeded deposing counsel's questioning or the witness' testimony.” (citations omitted)); Pogue, 2017 WL 3044763, at *11 (“Moreover, in the context of this case as a whole and in the context of the Rule 30(b)(6) deposition in particular, it is understandable, even expected that [defense] counsel provided more detail than usual when objecting in the course of deposition[,]” explaining that the “case had endured an unusual number of discovery disputes”). *7 Defendants contend that Attorney Weber objected to the “form” on forty-seven questions, but upon review of the transcript, Attorney Weber's objections to the form did not impede, frustrate, or delay the deposition. See Webster v. Target Corp., No. 22-11293, 2023 WL 2652780, at *2 (E.D. Mich. Mar. 27, 2023) (“When defense objected (and there were many objections), for example on the basis of “form,” the objections were short with few words, not taking up an inordinate amount of time. In other words, on review of the transcript, the objections did not seriously interfere with counsel's ability to question [the witness]; the objections were not a reason why Plaintiff did not complete the deposition.”).[9] Notwithstanding the above, the Court reminds the parties that objections to the form of the question are not proper objections, and that “[c]ounsel's statements when making objections should be succinct, stating the basis of the objection and nothing more” [Doc. 3]. D. Chapman's Alleged Unpreparedness The deposition of a corporate representative is governed by Rule 30(b)(6), which provides in relevant part: The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. Fed. R. Civ. P. 30(b)(5); Adkisson v. Jacobs Eng'g Grp., Inc., No. 3:13-CV-505-TAV-HBG, 2021 WL 1685955, at *4 (E.D. Tenn. Feb. 3, 2021). This rule “imposes burdens on both the discovering party and the designating party.” QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012). The party seeking a Rule 30(b)(6) deposition “must describe the matters to be explored in the deposition with ‘reasonable particularity’ sufficient to enable the responding corporation or business entity to produce a representative witness who can testify to the entity's knowledge on the topics so identified.” Alvey v. State Farm Fire & Cas. Co., No. 517CV00023TBRLLK, 2018 WL 826379, at *3 (W.D. Ky. Feb. 9, 2018) (citation omitted). “The test for reasonable particularity is whether the request places upon ‘reasonable notice of what is called for and what is not.’ ” Id. at *7 (quoting St. Paul Reinsurance Co. v. Comm. Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000)). With respect to the responding organization, “it is obligated to produce a witness or witnesses knowledgeable about the subjects described in the notice and to prepare the witness or witnesses to testify not simply to their own knowledge, but the knowledge of the corporation.” Schnatter v. 247 Grp., LLC, 343 F.R.D. 325, 331 (W.D. Ky. 2022) (citation omitted). “Absolute perfection is not required of a 30(b)(6) witness[,]” and “[t]he mere fact that a designee could not answer every question on a certain topic does not necessarily mean that the corporation failed to comply with its obligation.” QBE Ins. Corp., 277 F.R.D. at 691 (citation omitted). *8 The party claiming that a corporate representative was unprepared “must make at least an initial showing—with record citations—suggesting that the designee's preparation was inadequate.” Wicker v. Lawless, 278 F. Supp. 3d 989, 1000 (S.D. Ohio 2017) (citation omitted). In determining whether a witness was unprepared, the Court must compare the noticed topics to the deposition testimony. Id. (citation omitted). Defendants claim that Chapman was not prepared on Topic Nos. 4, 6, 22, 26, 29, and 36. In addition to defending Chapman's responses to each topic, Plaintiff asserts three general objections to Defendants' arguments. First, Plaintiff states that Defendants cannot establish that “each question that Ms. Chapman had trouble answering fell within a reasonable interpretation of the 30(b)(6) deposition topic to which the question applied” [Doc. 123 p. 10]. Second, Plaintiff argues that the standard is reasonableness, not perfection, which means that Defendants “must show that responsive information was either known or reasonably available to Plaintiff” [Id.]. Third, Plaintiff states that “there are substantial categories of information that could satisfy the [Rule's] requirements in theory, but which are unavailable to Ms. Chapman” because Defendants have designated information as Attorneys' Eyes Only (“AEO”) or Source Code [Id. at 11]. 1. Topic No. 4 Topic No. 4 seeks “[t]he customer information Plaintiff claims is Trade Secret, how that information has been created, compiled, maintained, and used, including but not limited to the measures that Plaintiff took and takes to protect the Trade Secret(s) at all times since 2007 and the value derived from such information being secret” [Doc. 97-2 p. 5]. Defendants claim that Chapman was unprepared to testify on Plaintiff's “practices for limiting access to confidential files (including customer information) on its company servers and certain platforms used companywide” and “what confidential information that an employee has access to once that employee logs into her company computer or certain platforms used companywide” [Doc. 97 p. 15 (citations omitted)]. The Court has reviewed Defendants' citations to Chapman's transcript and does not find that she was unprepared on Topic No. 4, except with respect to the one inquiry noted below. Chapman identified the specific databases (e.g., SalesForce, Syteline, and PARTS) where Plaintiff currently keeps its customer information [Doc. 99-1 pp. 31 and 43], and she testified that some of the information stored in these databases were not considered trade secrets [Id. at 56–57]. Her inability to specifically testify whether PARTS also contained information that is not considered trade secrets does not mean she was unprepared on this topic. QBE Ins. Corp., 277 F.R.D. at 691 (noting that “[t]he mere fact that a designee could not answer every question on a certain topic does not necessary mean that the corporation failed to comply with its obligation”). Defendants cite to Chapman's inability to testify about an employees' access once they log on to their computers via a username and password [Doc. 99-1 p. 81]. Chapman testified that she is not in IT, but she explains her level of access [Id.]. While this testimony was based on her personal knowledge, she later clarifies that an employee has to have a username and password to access certain databases where alleged trade secrets are stored, an employee's job requirements determine the level of access, and that Plaintiff keeps a record of the employees who have access to certain systems [Id. at 108]. *9 Defendants also state that Chapman was unprepared to testify about “whether any Windrock policy exists governing which Windrock employees should have access to this confidential information” [Doc. 97 p. 15]. Defense counsel inquired, “Is there a policy or a document that sets forth the procedures for granting access to these systems where this non-public customer trade secret information is maintained?” [Doc. 99-1 p. 62]. Chapman responds, “I would not know. I do not know” [Id.]. The Court finds that this inquiry is within the scope of this topic and finds that Chapman was not prepared to address it. Defendants also state that Chapman was not prepared to testify about the details on Dover Corporation's Code of Business Code and Ethics [Doc. 97 p. 15]. This issue arose when defense counsel asked about Plaintiff's written policy or written procedures within the company regarding how trade secret information is handled [Doc. 99-1 pp. 66–67]. Chapman referenced the Dover Corporation Code of Business Conduct and Ethics [Id. at 66]. This policy referenced another policy, “Dover's data security acceptable use policy” [Id. at 67]. Chapman was not sure if employees had to sign the acceptable use policy each year [see id.], and she did not know who created it [see id. at 75–76], or how it was maintained [see id. at 76]. But the Court finds these inquiries not reasonably within the scope of Topic No. 4 which is limited to “customer information ... and how that information has been created, compiled, maintained and used” [Doc. 97 p. 15]. While Topic No. 4 seeks the measures that Plaintiff took to protect its customer information, Chapman responded by citing to the Dover Corporation Code of Business Conduct Ethics. With the exception of being unprepared to testify about “whether any Windrock policy exists governing which Windrock employees should have access to this confidential information,” the Court finds that Defendants have not established that Chapman was unprepared with respect to Topic No. 4. 2. Topic No. 6. This topic seeks “Plaintiff's business practices related to handling of its trade secrets, including but not limited to Plaintiff's policies, procedures, and practices with regard to access to and use of trade secrets at all times since 2007” [Doc. 97-2 p. 5]. Defendants claim that Chapman was unprepared to testify on “(1) how Windrock keeps track of which of its employees have access to confidential information, (2) how Windrock tracks which of its employees have executed confidentiality agreements, (3) when Windrock began using platforms on which Windrock stores the customer information that Windrock claims is a trade secret, (4) Windrock's practices on digitally backing up its confidential customer information, (5) whether Windrock marks its confidential documents as such, and (6) whether Windrock had ever shared trade secrets with third parties (or its own employees) without entering into a confidentiality agreement” [Doc. 97 pp. 17–18 (citations omitted)]. With respect to the first line of inquiry, the Court has addressed it in the discussion of Topic No. 4. Defendants also asked Chapman how Plaintiff tracks which employees have signed confidentiality agreements and non-disclosure agreements, and Chapman responded that the human resource department keeps track of that information [Doc. 99-1 p. 124]. Chapman was not aware of how long the human resource department has been keeping track of that information, and the Court finds this question is within the reasonable scope of the Notice. Defendants also inquired about different platforms Plaintiff uses to store its trade secret information, and while she was able to provide certain information with respect to Salesforce, she did not have information for another platform Plaintiff previously used [Id. at 115]. With respect to the last inquiry, Chapman testified that Plaintiff requires employees to sign a confidentiality agreement, but she did not know whether every employee had actually signed such an agreement [Doc. 99-1 pp. 117–18]. Similarly, she testified that Plaintiff requires its contractors to sign a confidentiality agreement or non-disclosure agreement before Plaintiff provides them with trade secret information, but she did not know whether Plaintiff “ever allow[ed] a contractor to have access to trade secrets or trade secret level customer information without signing some form of agreement” [Doc. 99-1 p. 120]. But this level of specificity in a Rule 30(b)(6) deposition is not required. Pogue, 2017 WL 3044763, at *8 (explaining that “the inability of a designee to answer every question on a particular topic does not necessarily mean that the corporation has failed to comply with its obligations under the Rule” (citation omitted)). Finally, Plaintiff's practices of digitally backing up confidential information or marking documents as confidential are not within the reasonable scope of Topic No. 6. *10 Other than the one inquiry noted above, the Court finds Defendants have not established that Chapman was unprepared on Topic No. 6. 3. Topic No. 22 This topic seeks “Plaintiff's damages for which recovery is sought in this action” [Doc. 97-2 p. 7]. Defendants argue that Chapman was not able to testify as to the number of customers that Plaintiff has lost to Defendant Resonance Systems, Inc. (“RSI”) and the number of analyzers that it has in the marketplace. Defendants state that they put Plaintiff “on notice that Ms. Chapman would need to be prepared to testify on the factual bases supporting [its] claim for damages, much of which are based on alleged lost profits associated with customers that Windrock claims it has lost to RSI” [Doc. 97 p. 20]. The cited portions of Chapman's testimony, however, do not support Defendants' position that she was unaware of the number of customers Plaintiff lost to RSI [See Doc. 99-1 pp. 158–59]. Even so, Plaintiff represents that Defendant RSI has designated its customers as “Attorneys' Eyes Only” [Doc. 123 p. 14], meaning that Chapman does not have access to Defendant RSI's customers. See Unique Sports Prod., Inc. v. Wilson Sporting Goods Co., 512 F. Supp. 2d 1318, 1328 (N.D. Ga. 2007) (denying the defendant's request for a second corporate deposition, explaining that “[t]o the extent that [the corporate representative] was not able to fully testify to plaintiff's alleged damages, that appears to be the result of a confidentiality agreement between the parties, requiring disclosure of certain information on an ‘Attorney's Eyes Only’ basis”). The number of analyzers that Plaintiff has in the marketplace today is not within the reasonable scope of this topic. The Court finds Defendants have not established that Chapman was unprepared on Topic No. 22. 4. Topic No. 26 This topic seeks “[a]ll facts and circumstances supporting, in whole or in part, the allegations contained in your Complaint” [Doc. 97-2 p. 7]. In support of its position that Chapman was unprepared, Defendants rely on the following exchange: Q. Okay. Is it Windrock's claim that the defendants have breached a contract? MR. WEBER: Objection to the form. A. That is where I'm relying on counsel. Q. Okay. Do you have any information about the factual basis underlying count 3 of the Complaint? MR. WEBER: Objection to the form. A. No, ma'am. Q. If you can turn to page 20 of Exhibit 6, count 6, breach of retention against defendant Kelley only. A. Yes, ma'am. Q. Are you aware that Windrock claims Mr. Kelley breached his retention agreement? A. I am aware of that. I have no facts, yes. Q. Okay. With regard to count 7, which begins at the bottom of the page, breach of the NDA against defendant Kelley only? A. Yes. Q. Are you aware of that claim? A. Yes. Q. Do you know what facts that claim is based on? A. No. I'm relying on counsel. MR. WEBER: Objection to the form. Q. Do you know as you sit here today what damage Windrock has suffered as a result of the claimed breach of the NDA? MR. WEBER: Objection to the form. A. No, I do not know. I'm relying on counsel on this. Q. Do you know as you sit here today what damage Windrock has suffered as a result of the breach of the retention agreement? *11 MR. WEBER: Objection to the form. A. No, I do not. Q. Let's take a break. [Doc. 97 pp. 20–21 (citation omitted)]. Following the break, the parties resumed: Q. Can you tell me what facts is Windrock aware of that support this allegation in paragraph 41? MR. WEBER: Objection to the form. A. I'm relying on engineering. Q. Okay. Thank you. If you'll turn to paragraph 42 then and read that. It starts right below. A. Okay. Q. What facts do you have to support the allegations in paragraph 42? MR. WEBER: Objection to the form. A. I will rely on engineering on that one. Q. Okay. Paragraph 50 at the bottom of page eight? A. Okay. Q. What facts is Windrock aware of that support the allegations of paragraph 50? MR. WEBER: Objection to the form. A. Engineering has worked with counsel on this. Q. Okay. Thank you. If you can turn over to the next page, page ten, and look at paragraph 60 and read that for me, please. A. Okay. Q. What facts is Windrock aware of to support this allegation? A. I'm not privy to all the facts, so I do not know. Q. Okay. A. I'm relying on counsel. Q. Are you privy to any of the facts that Windrock is relying on in support of paragraph 60? MR. WEBER: Objection to the form. A. The facts, no I am not. [Doc. 97 p. 22 (citation omitted)]. Plaintiff responds that the cited portions show that its counsel did not coach Chapman and that Defendants cannot “use a Rule 30(b)(6) deposition to lock a non-lawyer witness into limiting the facts on which Plaintiff can rely to support an entire count in the Amended Complaint [Doc. 123 p. 14 (citation omitted)]. Plaintiff adds that Chapman cannot be aware of all the facts given Defendants' AEO designations in this case, but it does not sufficiently explain why she is not privy to the facts underlying the Complaint. After reviewing the cited portions above, in which Chapman relied upon counsel and testified that she did not have knowledge of facts underlying the allegations in the Complaint, the Court finds that Defendants have established that Chapman was not prepared to testify on Topic No. 26.[10] 5. Topic No. 29 This topic seeks “[a]ll facts, circumstances, and documents concerning the transfer of Plaintiff's Trade Secrets in Plaintiff's previous sales of its business relating to the sale from Dover EnergyAutomation to Apergy Corporation and the sale/merger between Apergy Corporation and ChampionX Corporation” [Doc. 97-2 p. 7]. Defendants state that “Chapman admitted that she did not review prior to the [d]eposition—and had never seen—a stock purchase agreement produced in the litigation by Windrock ... that identified intellectual property owned by Windrock at the time it was acquired by Dover Corporation or by Apergy Corporation” and that “Chapman admitted that she was not aware of whether Windrock identified any trade secrets at the time it was sold to Dover or to Apergy” [Doc. 97 p. 23]. Plaintiff claims “[t]he issue here is that Defendants do not like Ms. Chapman's testimony” and that “[i]f the Court were to reopen this deposition, Ms. Chapman's testimony will be the same no matter what she reads and how much more she prepares” [Doc. 123 p. 15]. According to Plaintiff, “The stock purchase agreement in question does not refer to Plaintiff's trade secrets” [Id.]. *12 This topic relates to documents concerning the transfer of Plaintiff's trade secrets. Based on Plaintiff's representation that “[t]he stock purchase agreement in question does not refer to Plaintiff's trade secrets[,]” Chapman's failure to review it does not render her unprepared on this topic. Chapman further testified that she was not aware of any trade secrets that were retained or transferred because Windrock “did not identify trade secrets” [Doc. 99-1 p. 188]. The Court finds that Defendants have not established that Chapman was unprepared to testify on Topic No. 29. 6. Topic No. 36 This topic seeks information about Plaintiff's “storage, retention and destruction policies and procedures relative to all documents and electronically stored information (i) produced by Plaintiff in this litigation and/or (ii) requested by either [RSI] or Joshua Kelley but not [emails]” [Doc. 97-2 p. 8]. Defendants claim that Chapman “admitted that she did not speak with the employee most knowledgeable about Plaintiff's file storage, retention, and destruction policies” [Doc. 97 p. 23]. But Chapman testified that she prepared on this topic by discussing it with inside counsel [Doc. 99-1 pp. 192–93]. Cf. QBE Ins. Corp., 277 F.R.D. at 688 (“The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition.”). Defendants also claim Chapman did not provide any “substantive testimony whatsoever” with respect to this topic [Doc. 97 p. 3]. Upon review of the transcript, Defendants asked whether Plaintiff “maintain[ed] any documents in secured file cabinets today[,]” and Chapman responded, “Not to my knowledge” [Doc. 99-1 p. 194]. Based on this response, it appears Chapman was not prepared to answer in her corporate capacity and instead answered it in her personal capacity. The Court therefore finds she was unprepared as to this inquiry. Defendants' inquiry about whether Plaintiff made differentiations between official documents and unofficial documents [see id.] is not within the scope of Topic No. 36. The Court finds that Defendants have not established Chapman was unprepared on Topic No. 36, except with the one inquiry above. E. Sanctions Defendants seek to reopen the Rule 30(b)(6) deposition, and they request sanctions, “including but not limited to an award of Defendants' reasonable expenses incurred in bringing this [m]otion including attorney's fees” [Doc. 96 p. 3]. The Court has noted several areas where Defendants established that Chapman was not prepared to testify. “[P]roducing an unprepared Rule 30(b)(6) witness is tantamount to a failure to appear, which may warrant sanctions under Fed. R. Civ. P. 37(d).” Wicker, 278 F. Supp. 3d at 1000 (citation omitted). “Rule 37(d) provides for a variety of sanctions[,]” including “imposition of costs[.]” Id. (quoting QBE Ins. Corp., 277 F.R.D. at 690). If a Rule 30(b)(6) witness is unprepared, courts may order that the deposition be reopened. In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-3785, 2022 WL 3582366, at *5 (S.D. Ohio Aug. 19, 2022). The Court grants Defendants' request to open the Rule 30(b) deposition so that Defendants can ask the witness (1) the inquiry under Topic No. 4 (i.e., whether there is a policy or a document that sets forth the procedures for granting access to these systems where this non-public customer trade secret information is maintained); (2) the inquiry under Topic No. 6 (i.e., how long has the human resources department kept track of the employees who have signed confidentiality and non-disclosure agreements); (3) questions within the reasonable scope of Topic No. 26; and (4) the inquiry under Topic No. 36 (i.e., whether Plaintiff currently keeps documents in a secured cabinet). In light of the limited nature of the deposition, the Court will limit it to 1.5 hours. The Court further awards Defendants' their attorney's fees for re-taking this deposition. See Fed. R. Civ. P. 37(d)(3). The Court declines to award sanctions for the filing of the motion given that Defendants obtained limited relief. See id. (stating that the court may decline to award fees if “other circumstances make an award of expenses unjust”). III. CONCLUSION *13 For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Reopen Rule 30(b)(6) Deposition of Windrock, Inc. Corporate Designee Mary Chapman and for Sanctions [Doc. 96]. IT IS SO ORDERED. Footnotes [1] The Court required the parties to refile their documents in light of issues with sealing [Doc. 91]. When the parties refiled their briefs, they filed them out of order [See Docs. 106 and 123]. [2] On June 13, 2023, the Court entered a Memorandum Opinion and Order allowing the parties to amend their pleadings [Doc. 142]. In light of the new parties and claims, the Court ordered the parties to discuss Defendants' motion to determine if they could reach a resolution [Id. at 24–25]. The parties filed a joint status report on July 7, 2023, noting that they had not reached an agreement on Defendants' motion [Doc. 161]. Following several telephonic conferences with the Court [Docs. 163 and 181], the undersigned held the motion in abeyance pending the parties' meet and confers and Defendants' issuance of an amended Rule 30(b)(6) notice. On September 14, 2023, the parties reported that they had reached an impasse on the motion [Doc. 190]. [3] Defendants filed the transcript of Chapman's deposition [Doc. 99-1] and a copy of the Outline [Doc. 99-2], both of which are sealed [Doc. 100]. The Court has discussed portions of the sealed transcript herein but has been mindful to avoid discussing alleged trade secret information. [4] Plaintiff states that the Court has already ruled on Defendants' objections that it was “improper for Ms. Chapman to reference her outline and binder during the deposition” [Doc. 123 p. 2 (citation omitted)]. Defendants clarify in their reply brief that they do not object to Chapman relying on the Outline and Binder [Doc. 106 p. 2]. [5] In support of their arguments, Defendants manually filed a flash drive that contains video clips from the deposition, which the Court has reviewed. [6] Defendants state in their opening brief that the Court should re-open the deposition, “because Ms. Chapman relied heavily upon [the Outline and Binder] and testified from them” [Doc. 97 p. 8]. They later point out that Chapman “worked with counsel” to prepare the Outline [Id. at 10 (citation omitted)]. But in their reply brief, they clarify that they do not object to her relying on the Binder or the Outline [Doc. 106 p. 2]. The Court therefore does not address this issue. [7] The cases Defendants rely on are not directly on point given that Plaintiff is not claiming work product with respect to the Outline or Binder, and Chapman did not refuse to disclose any of the document that she relied on. See Antero Res. Corp., 516 F. Supp. 3d at 753 (addressing whether the defendants were entitled to the documents that the Rule 30(b)(6) witness relied on during the deposition in light of the plaintiff's claim of work product); J&R Passmore, LLC v. Rice Drilling D, LLC, No. 2:18-CV-01587, 2023 WL 2633671, at *4 (S.D. Ohio Mar. 24, 2023) (affirming the magistrate judge's order that compelled the plaintiff to produce the documents that its corporate designee reviewed before testifying to refresh her recollection, despite the plaintiff's claim of work product); United States v. Life Care Ctrs. of Am., Inc., No. 1:08-CV-251, 2015 WL 10987030, at *4 (E.D. Tenn. Apr. 29, 2015) (addressing whether the government was required to provide the defendant with the interview summaries that were referenced in the government employee's deposition in light of the government's work-product claim); Vita-Mix Corp. v. Basic Holdings, Inc., No. 1:06 CV 2622, 2008 WL 495781, at *3 (N.D. Ohio Feb. 22, 2008) (compelling the defendant to produce or identify the documents that its corporate designee reviewed prior to his deposition to refresh his recollection after the witness refused to identify what documents he used to prepare his testimony). [8] Defendants claim that they have “been unable to locate multiple documents contained within the Binder—including some which bear Bates numbers—within the documents Plaintiff had produced to Defendants in discovery” [Doc. 106 p. 3]. But they fail to sufficiently explain how this impeded, delayed, or frustrated their examination of Chapman. [9] Defendants' reliance on FedEx Corp., 2011 WL 2023297, at *7–11 (imposing sanctions when counsel instructed the witness not to answer certain questions, repeatedly made unduly suggestive objections, and told the witness to answer only if the witness understood the question), and Davis Electronics Co. v. Springer Cap., LLC, No. 320CV00038CRSCHL, 2022 WL 904609, at *15 (W.D. Ky. Mar. 28, 2022) (finding that “[i]n combination with his improper instructions to [the witness] not to answer questions, his suggestive and argumentative objections impeded and frustrated the fair examination of [the witness]”), is not persuasive. Defendants have not cited any examples of Attorney Weber directly and inappropriately instructing Chapman not to answer a question, and when reviewing the entirety of the transcript, his objections were not unduly suggestive. [10] The Court has already determined that Topic No.