ECOLAB, INC., et al., Plaintiffs, v. ANTHONY RIDLEY, et al., Defendants Case No. 1:22-cv-050-TRM-SKL United States District Court, E.D. Tennessee, Southern Division Filed March 06, 2023 Lee, Susan K., United States Magistrate Judge ORDER *1 Before the Court is a motion to compel discovery [Doc. 135], filed by Plaintiffs Ecolab, Inc. (“Ecolab”), and Nalco Company, LLC (“Nalco,” and collectively, “Plaintiffs”).[1] The motion is accompanied by a supporting brief [Doc. 136] and a number of exhibits. Ridley filed a response in opposition [Doc. 155], and Plaintiffs filed a reply [Doc. 163]. This matter is now ripe. Neither party requested a hearing, and the Court finds a hearing is not necessary. For the reasons stated below, Plaintiffs' motion to compel [Doc. 135] will be granted in part and denied in part. I. BACKGROUND As the Court has previously explained, the parties' behavior during the discovery phase of this case, in spite of claims of good faith conferral, has taxed the Court's finite resources. Accordingly, the Court dispenses with certain formalities in addressing the instant motion to compel. The Court's prior Opinions and Orders set forth the factual background as alleged by Plaintiffs [Doc. 69], the tortured history of the discovery phase of this case [Doc. 137 and Doc. 158], and the applicable legal standards [Doc. 137]. The Court presumes familiarity with all such prior Opinions and Orders. In the instant motion, Plaintiffs request the Court “order Ridley to fully respond to Plaintiffs' Interrogatory Nos. 1, 6 (as revised), 7, 11, and 12 and Request for Production No[s]. 10, 12 and 15.” [Doc. 135 at Page ID # 1728]. Plaintiffs further request an award of attorney fees. They contend that “[a]fter a meet and confer process that spanned three plus months, there remain several deficient interrogatory answers and responses to requests for production including inappropriate objections.” [Doc. 136 at Page ID # 1802]. Ridley contends Plaintiffs did not respond to his “email making specific proposals for resolution of each issue with every interrogatory for which Plaintiffs have requested relief in their Motion.” [Doc. 155 at Page ID # 2261]. He requests the Court “deny all relief requested in Plaintiffs' Motion and grant [him] an award of his reasonably incurred attorneys' fees for being forced to respond to an otherwise unnecessary motion.” [Id.]. II. ANALYSIS Plaintiffs contend Ridley used improper boilerplate objections “over and over” in his responses to the discovery requests at issue [Doc. 136 at Page ID # 1804]. The Court declines to address Ridley's alleged boilerplate responses in a blanket manner. To the extent Plaintiffs address any particular boilerplate objection in the context of a specific discovery request, the Court will address it below. The parties are fully aware the Court “strongly condemns the practice of asserting boilerplate objections to every discovery request.” Neale v. Coloplast Corp., No. 1:18-cv-00274-TRM-SKL, 2020 WL 6948361, at *2 (E.D. Tenn. Nov. 2, 2020) (citation omitted). They continue to assert such objections at their own peril. a. Interrogatories 1. Interrogatory No. 1 *2 In interrogatory no. 1, Plaintiffs ask Ridley to: Identify each Ecolab client that You, or someone on Your behalf, contacted since Your employment commenced with ChemTreat, including the identity of the specific Ecolab client, the date and time of the contact(s); the person(s) contacted at the Ecolab client; the form of the contact or Communication; and identify all meetings that anyone at ChemTreat has had with each identified Ecolab client since You commenced Your employment with ChemTreat. [Doc. 135-1 at Page ID # 1732]. On February 10, 2023, the Court ordered Plaintiffs to produce to ChemTreat two lists: (1) clients who Ridley performed work for or solicited as part of his employment with Plaintiffs during the last 12 months of his employment with Plaintiffs, and (2) clients that Plaintiffs contend Ridley misappropriated confidential, non-public, proprietary, or trade secret information about from Plaintiffs [Doc. 137 at Page ID # 1826-27]. The Court further ordered ChemTreat to review those lists and to then identify all clients on the lists that Ridley performed work for or solicited on behalf of ChemTreat at any time since the Fall of 2020, and ending on the last day of Ridley's employment with ChemTreat [id.]. By this time, the lists should have been exchanged. Plaintiffs contend “Ridley may have additional information concerning his contacts with Ecolab clients that ChemTreat cannot readily locate through an email search or other document search.” [Doc. 163 at Page ID # 2560]. This point is well-taken. Moreover, Ridley is a separate defendant from ChemTreat and Plaintiffs are entitled to serve him with discovery requests, even if they are similar to requests served on ChemTreat. Accordingly, Ridley is ORDERED to review the lists referenced above, and identify any clients from Plaintiffs' lists that ChemTreat failed to identify in their own discovery responses; that is, any clients Ridley performed work for or solicited on behalf of ChemTreat during the time period referenced above, that ChemTreat has not already identified. Ridley is ORDERED to provide the information requested in interrogatory no. 1 as to each such client identified by ChemTreat and identified by Ridley. If Ridley is not already in possession of Plaintiffs' lists and ChemTreat's lists, Plaintiffs shall provide such lists to Ridley within 24 HOURS of entry of this Order. Ridley's supplemental response to interrogatory no. 1 is due within SEVEN DAYS[2] of entry of this Order. 2. Interrogatory No. 6 (as revised) In interrogatory no. 6, as revised by Plaintiffs during the meet and confer process, Plaintiffs ask Ridley to: Identify each employee of ChemTreat, Nalco or Ecolab with whom you had any communication with concerning Your potential employment with ChemTreat, including the identity of all such individuals who contacted You regarding Your potential employment at ChemTreat, who were involved in Your interview(s), and who communicated with You about joining ChemTreat. *3 [Doc. 136 at Page ID # 1807]. Plaintiffs assert the identity of all such individuals is relevant to their breach of contract claim(s) against Ridley and “in order to evaluate whether Ridley was talking with ChemTreat while he was downloading Plaintiffs' confidential information.” [Doc. 136 at Page ID # 1807]. In their reply, they further assert they are “entitled to discovery potential witnesses to Ridley and ChemTreat's unlawful behavior” and that “the communications at issue here would provide that information.” [Doc. 163 at Page ID # 2561]. Ridley points out that Plaintiffs do not allege Ridley breached his contract with Plaintiffs simply by leaving Plaintiffs' employ to work for ChemTreat. Ridley offered to respond to interrogatory no. 6 only as to current or former Ecolab or Nalco employees. Plaintiffs have asserted claims against ChemTreat for inducing and procuring Ridley to breach his employment contract, and conspiracy claims against both Defendants. Ridley is correct that he may have had some non-breaching, completely innocent communications with individuals at ChemTreat regarding his potential employment. But Ridley's proposed narrowing would exclude any individuals with whom Ridley communicated in a way that directly bears on Plaintiffs' claims. Accordingly, Ridley is ORDERED to provide the information sought by interrogatory no. 6 as revised by Plaintiffs (the version quoted above). Ridley's supplemental response is due within SEVEN DAYS of entry of this Order. 3. Interrogatory No. 7 In interrogatory no. 7, Plaintiffs ask Ridley to: Identify each Ecolab employee with whom You had any Communications concerning said employee's potential employment with ChemTreat, either before or after Your employment with Ecolab terminated. For each individual identified, please describe the date, time and mode of the Communication(s); the content of each Communication; and whether there is a written or digital record of such communication. [Doc. 135-1 at Page ID # 1737]. Ridley asserts that his employment agreement only prohibited him from soliciting certain Ecolab employees: those that Ridley “managed, or supervised, or had material contact with on Ecolab's behalf during the last twelve months of Ridley's employment with Ecolab.” [Doc. 155 at Page ID # 2268]. He denies that he solicited any such Ecolab employees, and he contends the identity of any other Ecolab employees he may have solicited is irrelevant. The Court agrees with Plaintiffs that Ridley's response effectively amounts to a denial that he breached his employment agreement by soliciting Ecolab employees. The Court has no insight into the number of Ecolab employees who Ridley “had material contact with” during his last year of employment. “Managed,” and “supervised,” are terms with more readily ascertainable definitions, but “had material contact with” would appear to encompass a broad category of employees which the parties have not defined. Accordingly, Ridley is ORDERED to provide the information sought by interrogatory no. 7 as to any Ecolab employee with whom Ridley had Communications (as defined in the interrogatory) concerning the employee's potential employment with ChemTreat, at any time during Ridley's last twelve months of employment with Plaintiffs and the twelve month period commencing immediately after his employment with Plaintiffs ended. Ridley's supplemental response is due within SEVEN DAYS of entry of this Order. 4. Interrogatory No. 11 *4 In interrogatory no. 11, Plaintiffs ask Ridley to: Identify every ChemTreat employee with whom you had Communications regarding Ecolab employee(s) any time between June 1, 2021 and the present. For each individual identified, please describe the date, time, and mode of the Communication(s); the Ecolab employee(s) that were the subject of the Communication(s); the content of each Communication; and whether there is a written or digital record of each such Communication. [Doc. 135-1 at Page ID # 1742]. Unlike interrogatory nos. 6 and 7, interrogatory no. 11 is not limited to communications about potential employment with ChemTreat. Rather, it seeks the identity of any ChemTreat employee that Ridley communicated with concerning any Ecolab employee, on any topic at all. The Court agrees with Ridley this is overbroad. Ridley states that he “produced emails with Tyler Bates and with ChemTreat employees regarding Tyler Bates,” as he agrees these emails are responsive to the interrogatory and within the scope of Federal Rule of Civil Procedure 26(b)(1) [Doc. 155 at Page ID # 2270]. Ridley also offered to respond to interrogatory no. 11 if Plaintiffs agreed to limit it to “communications with ChemTreat employees regarding specific Ecolab employees that Ecolab has evidence to establish that Ridley recruited or solicited in violation of his Agreement with Ecolab.” [Doc. 135-6 at Page ID # 1790]. Taking the lead from Ridley's proposal but broadening it to account for Rule 26(b) standards, the Court finds the proper limitation is to communications with ChemTreat employees regarding any specific Ecolab employees identified in response to interrogatory no. 7. Accordingly, Ridley is ORDERED to provide the information sought by interrogatory no. 11 as to any individual identified in response to interrogatory no. 7. Ridley's supplemental response to interrogatory no. 11 is due within SEVEN DAYS of entry of this Order. 5. Interrogatory No. 12 In interrogatory no. 12, Plaintiffs ask Ridley to: Identify every customer or client that You have serviced or interacted with in any way since becoming employed by ChemTreat or accepting employment with ChemTreat. For each customer/account, state the name of the entity, the name of the client contact person with whom you interacted and that person's contact information, the date(s) on which You contacted or serviced the customer/client, and date(s) on which you interacted with the client and the manner of the interaction (phone call, email, in-person meeting, virtual meeting, etc.). [Doc. 135-1 at Page ID # 1743]. As discussed above regarding interrogatory no. 1, Plaintiffs should be in possession of the list of relevant clients by now. To the extent Ridley has not provided the information sought in interrogatory no. 12 for those clients, he is ORDERED to do so within SEVEN DAYS of entry of this Order. Plaintiffs have not shown they are entitled to know the identity of ChemTreat clients Ridley “interacted with in any way,” or any other ChemTreat clients beyond those on the final list discussed in connection with interrogatory no. 1. *5 Plaintiffs do not address the Court's prior Order wherein the Court found Plaintiffs' similar (if not identical) interrogatory served on ChemTreat was overbroad [Doc. 137 at Page ID # 1823-26]. As with that interrogatory, the Court finds Plaintiffs have not demonstrated that the identity of every single ChemTreat client that Ridley interacted with, solicited, or performed work for is discoverable. Indeed, Plaintiffs have not shown they are entitled to discovery the identity of any ChemTreat clients beyond those that have been and/or will be identified in connection with interrogatory no. 1, above. b. Requests for Production 1. RFP no. 10 In revised RFP no. 10, Plaintiffs request the following from Ridley: All Documents (only excluding calls made to or received from close family members, specifically wife, children, parents, grandparents, aunts, uncles), including call logs, that would evidence any and all calls made or received by your personal cell phone(s) between April 1, 2021 and the date your employment with ChemTreat ended. [Doc. 136 at Page ID # 1813]. Plaintiffs argue they “seek information concerning Ridley's communications during the brief period when he had accepted employment with ChemTreat and worked for ChemTreat.” [Doc. 136 at Page ID # 1813]. They contend “documents demonstrating Ridley's phone activity during this period will assist [them] in proving Ridley's misappropriation by identifying individuals he spoke to during that critical time period.” [Id.]. They contend the request is narrowly tailored because it covers only a “very short time period and excludes those calls from family members.” [Id.]. The Court agrees with Ridley this request is overbroad, even as revised to exclude documents related to phone calls from family members. Ridley states he offered to search his call logs if Plaintiffs identified “relevant individuals and the individuals' numbers related to Plaintiffs' claims.” [Doc. 155 at Page ID # 2273]. Accordingly, Plaintiffs may provide to Ridley a list of the names of not more than ten such relevant individuals, provided they do so within FIVE DAYS of entry of this Order. Plaintiffs may identify the ten individuals by name, by phone number, or both. Within TEN DAYS of entry of this Order, Ridley is ORDERED to provide the documents responsive to RFP no. 10, if any, as to the individuals Plaintiffs identify. 2. RFP no. 12 In RFP no. 12, Plaintiffs request the following from Ridley: All Communications ... sent or received while you were employed by Ecolab between You and any ChemTreat employee. [Doc. 135-2 at Page ID # 1757]. Plaintiffs acknowledge Ridley “has produced emails and correspondence related to his recruitment at ChemTreat, but he has failed to produce all communications.” [Doc. 136 at Page ID # 1814]. Plaintiffs contend the request is “narrowly tailed, limited in time and is appropriate” because it is limited to the time when Ridley was employed at Ecolab, and because “Plaintiffs seek information concerning the circumstances of Ridley's hiring at ChemTreat and his misappropriation and proprietary information along with trade secrets.” [Id.]. The Court agrees RFP no. 12 seeks relevant, discoverable information. Ridley is ORDERED to provide all responsive documents to RFP no. 12, limited to communications made within the past five years. Ridley is ORDERED to provide all non-privileged, responsive documents within SEVEN DAYS of entry of this Order. 3. RFP no. 15 In RFP no. 15, Plaintiffs request the following from Ridley: All Communications ... sent to or received from July 1, 2021 to the present, between You and any individual that was an employee, agent or representative of Ecolab at the time of the Communication. *6 [Doc. 135-2 at Page ID # 1758-59]. Plaintiffs' position is that documents evidencing these such communications “are relevant to show the extent of Ridley's breach of his non-solicitation agreement,” and to the extent such communications “show that Ridley, while employed by or acting on [behalf] of ChemTreat, encouraged Ecolab employees to breach their contractual obligations owed to Plaintiffs, such communications are relevant to Plaintiffs['] tortious interference and procurement of breach of contract claims against ChemTreat.” [Doc. 163 at Page ID # 2565]. Ridley objects that RFP no. 15 would require him “to produce personal communications after his employment with ChemTreat ended completely unrelated to Plaintiffs' allegations.” [Doc. 155 at Page ID # 2275]. He contends that he “worked for Plaintiffs for nearly twenty-two (22) years and his communications with coworkers that are not related to recruitment or trade secrets or Ecolab documents or the claims in this lawsuit are simply not relevant to this action and fall outside the scope of discovery.” [Id. at Page ID # 2276]. The Court finds RFP no. 15 is overbroad as written. Because Plaintiffs contend they seek the documents in RFP no. 15 to support their claims for Ridley's alleged breach of the solicitation clause of his employment agreement and their claims for tortious interferences and procurement of breach of contract claims against ChemTreat, the Court finds its reasoning regarding interrogatory no. 7 applies in the context of RFP no. 15. Ridley is ORDERED to produce all non-privileged Communications with the Ecolab employees identified in connection with interrogatory no. 7, to the extent such Communications pertain to the Ecolab employees' potential employment with ChemTreat and were made sometime during Ridley's last months of employment with Plaintiffs or the twelve month period immediately following. Such documents shall be produced within SEVEN DAYS of entry of this Order. c. Sanctions Plaintiffs have not shown Ridley acted in bad faith or that his position on the instant motion to compel was without any reasonable support. The Court therefore concludes, in its discretion, that an award of attorney fees is not justified and DENIES Plaintiffs' request regarding same. The Court concludes Ridley likewise has not made a proper showing to justify an award of attorney fees in his favor, and the Court DENIES his request as well. See Fed. R. Civ. P. 37(a)(5)(C); see also Robinson v. Mathis, No. 2:20-cv-02435-SHL-atc, 2021 WL 6804133, at *9 (W.D. Tenn. Sept. 14, 2021) (holding that courts have “greater discretion in deciding whether to award fees and costs under Rule 37(a)(5)(C)” if a motion is granted in part and denied in part than “under subsection (a)(5)(A)” if the motion is granted in its entirety; and, denying partially successful moving party's request for attorney fees where they did not show non-moving party “acted in bad faith”). III. CONCLUSION For the reasons stated above and to the extent set forth herein, Plaintiffs' motion to compel [Doc. 135] is GRANTED IN PART AND DENIED IN PART. *7 As to any supplemental Rule 34 production ordered herein, Ridley is ORDERED to fully comply with Federal Rule of Civil Procedure 34, including stating any objection with specificity, and, as to any objection, “state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). SO ORDERED. Footnotes [1] The defendants are ChemTreat and Anthony Ridley (“Ridley,” and collectively, “Defendants”). [2] The Court's deadlines should be interpreted consistent with Federal Rule of Civil Procedure 6.