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, at Chattanooga Filed April 14, 2023 Counsel David J. Walton, Pro Hac Vice, Edward G. Winsman, Pro Hac Vice, Kathleen Marie Laubenstein, Pro Hac Vice, Fisher & Phillips LLP, Philadelphia, PA, Emmanuel L. Brown, Pro Hac Vice, Martin S. Chester, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, David Yoshimura, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, James Michael Honeycutt, Pro Hac Vice, Fisher & Phillips LLP, Charlotte, NC, Kacie Phillips Tawfic, Pro Hac Vice, Randall E. Kahnke, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, Pavneet Singh Uppal, Pro Hac Vice, Fisher & Phillips LLP, Phoenix, AZ, Sophie Honey Gotlieb, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Chicago, IL, Edward N. Boehm, Jr., Fisher & Phillips LLP, Atlanta, GA, J. Gregory Grisham, Fisher & Phillips, LLP, Memphis, TN, for Plaintiffs. Lee, Susan K., United States Magistrate Judge ORDER *1 Before the Court is a motion to compel production of “Agreed-Upon Documents” [Doc. 190], filed by Defendant ChemTreat, Inc. (“ChemTreat”).[1] The motion pertains to documents ChemTreat contends Plaintiffs previously agreed to produce in response to ChemTreat's first round of requests for production (“RFP”). The motion is accompanied by a supporting brief [Doc. 191] and a number of exhibits. Plaintiffs filed a response in opposition [Doc. 203], and ChemTreat filed a reply [Doc. 209]. This matter is now ripe. Neither party requested a hearing, and the Court finds a hearing is not necessary. For the reasons stated below, ChemTreat's motion to compel [Doc. 190] will be GRANTED IN PART AND DENIED IN PART. I. BACKGROUND The Court's prior Opinions and Orders set forth the factual background of this case as alleged by Plaintiffs, the history of certain aspects of the discovery phase, and applicable legal standards regarding discovery [Doc. 69, Doc. 137, Doc. 158, and Doc. 192]. The Court presumes familiarity with all such prior Opinions and Orders. The instant motion seeks to compel “agreed-upon documents” because, in their original responses to the RFP at issue, Plaintiffs agreed to produce documents once a protective order was entered. For some of the RFP, Plaintiffs specifically stated what documents they would produce (i.e., Ridley's personnel file, emails sent from ChemTreat email addresses to Ridley, etc.). For other RFP, Plaintiffs simply agreed to produce “non-privileged, relevant, responsive documents in their possession.” [See, e.g., Doc. 191 at Page ID # 2894]. Plaintiffs do not dispute, or even address, the significant delay in their document production even after the protective order was entered, and there is no need for the Court to discuss the timeline in detail. Most recently, on March 13, 2023, ChemTreat asked Plaintiffs to “(1) produce all outstanding responsive documents, (2) confirm that all responsive documents have been produced, or (3) confirm that no such documents exist.” [Doc. 191-6 at Page ID # 2954]. According to ChemTreat, Plaintiffs produced 18 documents four days later. ChemTreat asserts that during a conference call on March 21, Plaintiffs indicated that “no further substantial document productions were anticipated.” [Doc. 190 at Page ID # 2882].[2] The timeline is not clear after March 21, but it appears according to ChemTreat that Plaintiffs persisted in their refusal to disclose the status of their document production until they filed their response in opposition to the instant motion to compel on April 5. *2 In its reply, ChemTreat acknowledges “Plaintiffs finally responded as to the status of their productions” by stating that “they found no documents in their possession or control responsive to RFPs 8, 9, 72, 90, and 91” and that “their productions in response to the remainder of the RFPs are complete” [Doc. 209 at Page ID # 3541]. II. ANALYSIS. a. ChemTreat's Request for Sworn Certification and ESI Report As a preliminary matter, the Court finds ChemTreat's request for a sworn certification from Plaintiffs regarding the status of document production for the RFP at issue to be well-taken. Under the circumstances of this case, including Plaintiffs’ tardy and fragmented document production, the Court finds this relief entirely appropriate. See Montiel v. Vanderbilt Univ. Med. Ctr., No. 3:11-0399, 2012 WL 3067936, at *2 (M.D. Tenn. July 27, 2012) (requiring responding party to “confirm ... in writing that they have produced all responsive documents”); Gilmore v. Jones, No. 3:18-cv-00017, 2021 WL 1574140, at *2 (W.D. Va. Apr. 21, 2021) (requiring counsel for responding party to “either supplement Hoft's production or certify that Hoft's production in response to Plaintiff's First Set of Requests for Production is complete”). As mentioned, Plaintiffs clarified the status of production as to certain RFP in their response to the instant motion to compel. ChemTreat maintains the status of other RFP remains uncertain. Regardless, in the interests of clarity and finality, the Court will require a sworn certification that addresses all RFP addressed in the instant motion to compel. The Court declines, in its discretion, to require Plaintiffs to “file an ESI report, detailing the custodians and ESI sources searched and the nature of the searches conducted.” [Doc. 209 at Page ID # 3540]. As far as the Court can tell, ChemTreat raised the issue for the first time in its reply, such that the Court need not consider it. See Walter v. Auto-Owners Mutual Ins. Co., No. 3:15-CV-535-TAV-DCP, 2018 WL 3848400, at *2 (E.D. Tenn. Aug. 13, 2018) (finding that “[c]ourts generally do not consider issues raised for the first time in a reply brief” and citing cases). Furthermore, the Court finds the current record does not justify such relief at the tail end of discovery. The parties have long known there would be ESI production and related issues in this case [see Doc. 39], and they could have agreed to require such reports, or ChemTreat could have requested the Court order such a report months ago. The Court's decision to require ChemTreat to provide an ESI report, made months ago in an entirely different context and for completely different reasons, is irrelevant, and ChemTreat's reliance on that ESI report as a basis for requiring Plaintiffs to produce a similar report now is misplaced. Accordingly, the motion to compel [Doc. 190] is GRANTED IN PART AND DENIED IN PART as to these two issues. The motion is GRANTED in that Plaintiffs are ORDERED to produce a sworn certification which addresses each RFP addressed in the instant motion to compel. For each RFP, Plaintiffs SHALL attest they have produced all responsive, non-privileged documents within their custody, possession, or control, or that no responsive, non-privileged documents within their custody, possession, or control exist [Doc. 209 at Page ID # 3542]. Plaintiffs SHALL identify any such documents that once existed, but no longer are available, to the extent Plaintiffs are aware of such. The Court declines to require Plaintiffs to “identify the unsuccessful steps taken by Plaintiffs to locate and produce” any documents that once existed, but are no longer available [Doc. 191 at Page ID # 2909]. The Court further declines to require any particular phrasing in the sworn certification and this Order should not be interpreted as such. Plaintiffs are, however, ORDERED to be clear about the status of document production as to each RFP.[3] Plaintiffs are ORDERED to produce the sworn certification regarding each RFP to ChemTreat within FIVE DAYS of entry of this Order.[4] *3 The motion to compel [Doc. 190] is DENIED to the extent ChemTreat seeks an order requiring Plaintiffs to produce an “ESI report.” b. RFP Nos. 1-3, 7-9, 39-40, 43-44, 56-57, 66-68, and 89-91 RFP nos. 1-3, 7-9, 39-40, 56-57, 66-68, and 89-91 appear to no longer be at issue, except with regard to the timeliness of Plaintiffs’ production and the sworn certification ordered above. That is, Plaintiffs’ response identifies the documents they have already produced which they contend are responsive to these RFP or the response clarifies that no responsive documents exist. As far as the Court can tell, ChemTreat does not specifically address these RFP in its reply (other than with regard to timeliness). It therefore appears to the Court that the parties’ dispute is resolved as to these RFP, subject to the sworn certification requirement addressed above. There is no need for the Court to address these RFP. Accordingly, the motion to compel [Doc. 190] is GRANTED IN PART AND DENIED IN PART as to RFP nos. 1-3, 7-9, 39-40, 43-44, 56-57, 66-68, and 89-91. The motion is GRANTED as to ChemTreat's request for a sworn certification addressed above. The motion is DENIED as to these RFP in all other respects. c. RFP Nos. 20-22, and 27, Ridley's return of Ecolab-issued devices RFP Nos. 20-22 and 27, and Plaintiffs’ discovery responses, provide as follows: REQUEST FOR PRODUCTION NO. 20: All Documents relating to the current location of the “mobile drive” returned to You by Ridley and referenced in Your Second Amended Complaint. REQUEST FOR PRODUCTION NO. 21: All Documents relating to Ecolab's preservation of or failure to preserve the “mobile drive” referenced in Your Second Amended Complaint. REQUEST FOR PRODUCTION NO. 22: All Documents relating to Ridley's return of the “mobile drive” referenced in Your Second Amended Complaint. RESPONSE [to RFP nos. 20, 21, and 22]: Objection. Plaintiffs object to this request as overly broad, unduly burdensome, and not relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, and the importance of the discovery in resolving the issues to the extent it seeks “[a]ll Documents” in any way related to the current location of the device [or “the preservation of the device” for RFP no. 21, or “the return of the device” for RFP no. 22], regardless of the relevance to the claims at issue in this matter. Plaintiffs further object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce non-privileged, relevant, responsive documents in their possession to the extent they exist. REQUEST FOR PRODUCTION NO. 27: All Documents relating to the return of any laptop or computer issued to Ridley by You. RESPONSE: Objection. Plaintiffs object to this request as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence to the extent it seeks “[a]ll Documents” in any way related to the return of the devices, regardless of the relevance to the claims at issue in this matter. Plaintiffs further object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce non-privileged, relevant, responsive documents in their possession. *4 [Doc. 191-1 at Page ID # 2920-2922]. Plaintiffs argue: “Subject to certain objections (which ChemTreat does not challenge in their Motion), Plaintiffs agreed to, and did, produce documents from their systems” responsive to these RFP [Doc. 203 at Page ID # 3369]. Specifically regarding RFP No. 27, Plaintiffs state “the system notes that were produced by Plaintiffs ... as well as the amended interrogatory responses served by Plaintiffs on March 3, 2023, make clear all information known to Plaintiffs about the return of that device.” [Id.]. ChemTreat acknowledges Plaintiffs produced “a handful of documents responsive to RFPs 20-22 and 27,” but it argues “there are clear gaps in their production that suggest they have not fully complied with their agreement to produce responsive documents.” [Doc. 191 at Page ID # 2894]. In its reply, ChemTreat emphasizes that Insight, one of Plaintiffs’ vendors, produced an email exchange between Insight and one of Plaintiffs’ employees (pursuant to ChemTreat's subpoena). Plaintiffs had not previously produced the email exchange, which ChemTreat contends is responsive to these RFP. According to ChemTreat, Plaintiffs’ failure to produce the email exchange raises “serious questions regarding the reasonableness” of Plaintiffs’ search for documents responsive to these RFP [Doc. 209 at Page ID # 3543]. Now that Plaintiffs “are admittedly aware of the communications” from Insight, ChemTreat argues, “Plaintiffs are obligated to search for and produce them.” [Id.]. ChemTreat is already in possession of the email exchange [see Doc. 209-1], and so it not necessary to order Plaintiffs to produce it. To the extent there are other responsive, non-privileged documents within Plaintiffs’ possession, custody, or control—like similar email exchanges—Plaintiffs are required to produce them. The Court has no greater insight into the nature or existence of any such documents than the parties do. The Court is not persuaded that the existence of the email exchange—which ChemTreat did not mention in its motion or opening brief—reveals some gaping inadequacy with Plaintiffs’ search efforts requiring further Court intervention. In case this is not already obvious to counsel and the parties, the sworn certification regarding each RFP ordered above must be made in good faith, must comply with the parties’ agreed ESI Protocol [Doc. 91], any other relevant agreements, and all applicable Federal Rules of Civil Procedure including Rule 11, and generally speaking must be based on reasonable and appropriate search efforts. Accordingly, the motion to compel [Doc. 190] is GRANTED IN PART AND DENIED IN PART as to RFP nos. 20-22 and 27. The motion is GRANTED in that Plaintiffs are ORDERED to produce all responsive, non-privileged documents as well as the sworn certification addressed above within FIVE DAYS of entry of this Order. The motion is DENIED to the extent ChemTreat requests an additional copy of the Insight email exchange. d. RFP No. 45, Plaintiffs’ controls over their electronic data RFP no. 45 and Plaintiffs’ discovery response provide as follows: *5 REQUEST FOR PRODUCTION NO. 45: All Documents relating to Your allegation that Ridley was a “key employee[ ] who ha[d] a need to access the confidential and trade secret information” You allege he misappropriated. RESPONSE: Objection. Plaintiffs object to this request to the extent it seeks production of documents containing confidential information in the absence of the entry of a Protective Order. Plaintiffs further object to this Request as overly broad and unduly burdensome to the extent it is not limited in time and seeks “[a]ll Documents” relating to this allegation. Without waiving these objections, Plaintiffs will produce a copy of Ridley's job description and employment agreements file upon entry of a Protective Order. [Doc. 191-1 at Page ID # 2926-27 (emphasis added)]. Plaintiffs state they will provide ChemTreat with “job descriptions for the last two positions held by Ridley when he was employed by Plaintiffs.” [Doc. 203 at Page ID # 3371]. Plaintiffs’ failure to do so appears to be ChemTreat's only complaint regarding RFP no. 45. Accordingly, the motion to compel [Doc. 190] is GRANTED as to RFP no. 45. Plaintiffs are ORDERED to produce the two relevant job descriptions as well as the sworn certification discussed above within FIVE DAYS of entry of this Order. e. RFP Nos. 48-53, Plaintiffs’ efforts to protect their alleged trade secrets Plaintiffs’ discovery response to each of these RFP are identical. The RFP and response provide as follows: REQUEST FOR PRODUCTION NO. 48: Documents sufficient to show the procedures or protocols governing the use of the systems, devices, or software Ecolab uses to monitor, control, limit, minimize or otherwise stop the misappropriation of its confidential information, trade secrets, or confidential documents. REQUEST FOR PRODUCTION NO. 49: Documents sufficient to show all employees or categories of employees monitored by the systems, devices, or software Ecolab uses to monitor, control, limit, minimize or otherwise stop the misappropriation of its confidential information, trade secrets, or confidential documents. REQUEST FOR PRODUCTION NO. 50: Documents sufficient to show the schedule or frequency with which Ecolab monitored the inflow or outflow of its confidential data, information, documents, or trade secrets. REQUEST FOR PRODUCTION NO. 51: Documents sufficient to show how often Ecolab reviewed any reports generated as a result of its monitoring of the inflow or outflow of its confidential data, information, documents, or trade secrets. REQUEST FOR PRODUCTION NO. 52: Documents sufficient to show all steps that You took to maintain the confidentiality of the Allegedly Misappropriated Documents. REQUEST FOR PRODUCTION NO. 53: Documents sufficient to show all steps Ecolab takes to protect against or monitor the extraction, downloading, or taking of any documents contained on its OneDrive system. RESPONSE: Objection. Plaintiffs object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs further object to this Request as overly broad and unduly burdensome to the extent it is not limited in time. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce relevant policies as well as Ridley's agreements with Plaintiffs. *6 [Doc. 191-1 at Page ID # 2928-30 (emphasis added)]. ChemTreat acknowledges Plaintiffs produced “a handful of documents” [Doc. 191 at Page ID # 2899]. ChemTreat primarily complains that the documents Plaintiffs produced “expressly identify (in a section titled ‘References’) other policies and procedures on the same subjects that Plaintiffs still have not produced.” [Id.]. In response, Plaintiffs list a number of documents they have produced which they contend are “relevant policies.” [Doc. 203 at Page ID # 3371]. Plaintiffs do not affirmatively represent that there are no other relevant policies responsive to these RFP. They make the obvious point that simply a policy's reference to another policy “does not make the other policy de facto responsive to the RFPs at issue.” [Id.]. They criticize ChemTreat for failing to identify “specific policies that ChemTreat contends are relevant and have not been produce[d].” [Id.]. In reply, ChemTreat identifies one such cross-referenced policy that Plaintiffs have not produced, titled, “DLP-Data Loss Prevention.” [Doc. 209 at Page ID # 3544]. ChemTreat contends the “DLP-Data Loss Prevention” policy “is incontestably relevant,” as the DLP report itself is “at the heart of Plaintiffs’ allegations.” [Doc. 209 at Page ID # 3544]. The parties do not provide any further details about this document. However, the Court understands the DLP report is relevant to Plaintiffs’ claims in this litigation, and policies pertaining to data loss prevention appear to be responsive to at least some of RFP nos. 48-53. The Court will require Plaintiffs to produce the “DLP-Data Loss Prevention” policy referenced above, and any other cross-referenced policies responsive to these RFP. Accordingly, the motion to compel is GRANTED as to RFP nos. 48-53. Plaintiffs are ORDERED to produce the referenced “DLP-Data Loss Prevention” policy document, any other policy documents responsive to RFP nos. 48-53, and the sworn certification discussed above within FIVE DAYS of entry of this Order. f. RFP No. 72, ChemTreat's alleged obstruction This RFP and Plaintiffs’ discovery response provide as follows: REQUEST FOR PRODUCTION NO. 72: All Documents relating to Your allegation that “ChemTreat refused and/or failed to order and direct Ridley ... to return Nalco/Ecolab's trade secret, confidential and proprietary information.” RESPONSE: Objection. Plaintiffs object to this Request to the extent that it calls for documents already in the possession of ChemTreat. Without waiving this objection, Plaintiffs will produce responsive correspondence between ChemTreat's counsel and Plaintiffs’ counsel. By way of further response, Plaintiffs expect to receive responsive documents from ChemTreat in discovery. [Doc. 191-1 at Page ID # 2936]. In their response to the instant motion to compel, Plaintiffs state that the “only responsive documents that Plaintiffs identified in their own possession were communications between ChemTreat's counsel and Plaintiffs’ counsel.” [Doc. 203 at Page ID # 3373]. Plaintiffs did not produce these communications because “ChemTreat is necessarily in possession of all such communications.” [Id.]. In reply, ChemTreat asserts that all such communications in its possession “contradict the ‘obstruction’ that Plaintiffs allege[.]” [Doc. 209 at Page ID # 3544]. *7 Contrary to ChemTreat's suggestion, RFP no. 72 is not limited to documents that support Plaintiffs’ contentions. Regardless, Plaintiffs offered to “formally produce” the communications between ChemTreat's counsel and Plaintiffs’ counsel, and the Court will require them to do so or to otherwise identify the documents, including the communications between counsel, that are responsive to these RFP, or to state that no other such documents exist. Accordingly, the motion to compel is GRANTED as to RFP no. 72. Plaintiffs are ORDERED to produce or identify the referenced communications and the sworn certification addressed above within FIVE DAYS of entry of this Order. g. RFP Nos. 75-77, the scope of Ridley's restrictive covenant RFP nos. 75-77 seek “documents related to the scope of Ridley's restrictive covenant with Plaintiffs.” [Doc. 191 at Page ID # 2903]. Plaintiffs’ discovery response to these three RFP is identical. The RFP and Plaintiffs’ discovery response provide as follows: REQUEST FOR PRODUCTION NO. 75: Documents sufficient to show the customers or clients You contend Ridley “did business” with, as that term is used in Ridley's employment agreement with Ecolab attached as Exhibit A to the Second Amended Complaint, during the last twelve months of his employment by Ecolab. REQUEST FOR PRODUCTION NO. 76: Documents sufficient to show the customers or clients “whose account[s] w[ere] supervised by” Ridley, as that term is used in Ridley's employment agreement with Ecolab attached as Exhibit A to the Second Amended Complaint, during the last twelve months of his employment by Ecolab. REQUEST FOR PRODUCTION NO. 77: Documents sufficient to show the customers or clients “whose account[s] w[ere] ... assigned to” Ridley, as that term is used in Ridley's employment agreement with Ecolab attached as Exhibit A to the Second Amended Complaint, during the last twelve months of his employment by Ecolab. RESPONSE: Objection. Plaintiffs object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents. [Doc. 191-1 at Page ID # 2937-38 (emphasis added)]. Plaintiffs cite to their production of “fact packs” and a February 15, 2023, letter sent by counsel for Plaintiffs to counsel for ChemTreat which contains “a list of clients who Ridley performed work for or solicited as part of his employment with Plaintiffs” and which covers Ecolab and Nalco clients [Doc. 203 at Page ID # 3374]. ChemTreat points out the fact packs address only Nalco customers, not Ecolab customers, and the client list in the February 2023 letter includes customers Ridley “solicited,” when the RFP seek a narrower class of customers based on terms defined in Ridley's employment agreement. Furthermore, ChemTreat argues, the letter is “not a document produced from Plaintiffs’ records and files,” but rather was composed by counsel, presumably in reliance on documents from Plaintiffs’ records and files which Plaintiffs have not produced despite their obvious relevance to RFP nos. 75-77 [Doc. 209 at Page ID # 3545]. The Court agrees with ChemTreat that the documents Plaintiffs cite do not satisfy Plaintiffs’ obligation with regard to these RFP. The motion to compel [Doc. 190] is therefore GRANTED as to RFP nos. 75-77. Plaintiffs are ORDERED to produce to ChemTreat all non-privileged documents responsive to RFP nos. 75-77, along with the certification addressed above, within FIVE DAYS of entry of this Order. h. RFP Nos. 78-82, harm or damages alleged suffered by Plaintiffs *8 RFP nos. 78-82 and Plaintiffs’ discovery responses provide as follows: REQUEST FOR PRODUCTION NO. 78: All Documents relating to any damages You allege You have suffered as a result of the actions of Ridley or ChemTreat. RESPONSE: Objection. Plaintiffs object to this Request as overly broad and unduly burdensome to the extent it seeks “[a]ll Documents” relating in any way to its damages. Plaintiffs also object to this Request to the extent that it calls for documents already in the possession of ChemTreat. Plaintiffs further object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs also object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents. REQUEST FOR PRODUCTION NO. 79: All Documents relating to any Customer(s) You allegedly lost as a result of the actions of Ridley or ChemTreat. RESPONSE: Objection. Plaintiffs object to this Request as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence to the extent it seeks “[a]ll Documents” relating in any way to customers lost as a result of the Defendants’ misconduct, without any time limitation and regardless of relevance to the claims at issue in this case. Plaintiffs also object to this Request to the extent that it calls for documents already in the possession of ChemTreat. Plaintiffs further object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs also object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents. REQUEST FOR PRODUCTION NO. 80: All Documents relating to any harm, including to Your goodwill, that You allege You suffered as a result of the actions of Ridley or ChemTreat. RESPONSE: Objection. Plaintiffs object to this Request as overly broad and unduly burdensome to the extent it seeks “[a]ll Documents” relating in any way to harm cause by the Defendants’ misconduct, without any time limitation and regardless of relevance to the claims at issue in this case. Plaintiffs also object to this Request to the extent that it calls for documents already in the possession of ChemTreat. Plaintiffs further object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs also object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents. *9 REQUEST FOR PRODUCTION NO. 81: All Documents relating to any effort You made to mitigate any damages You contend You suffered as a result of the actions of Ridley or ChemTreat. RESPONSE: Objection. Plaintiffs object to this Request as overly broad and unduly burdensome to the extent it seeks “[a]ll Documents” relating in any way to Plaintiffs’ efforts to mitigate their damages, without any time limitation and regardless of relevance to the claims at issue in this case. Plaintiffs further object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs also object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents to the extent they exist. REQUEST FOR PRODUCTION NO. 82: For any Customers for which You contend You lost business as a result of actions by ChemTreat or Ridley, all Documents relating to the following: (a) the revenues You received or expected to receive from those Customers; (b) the reason(s) or rationale(s) for those Customers’ decision to reduce, end, or not engage in business with Ecolab; (c) all existing or potential contracts with those Customers that You contend were affected by actions by ChemTreat or Ridley; and (d) any Communications with those Customers. RESPONSE: Objection. Plaintiffs object to this Request as overly broad and unduly burdensome to the extent it seeks “[a]ll Documents” relating in any way to several topics concerning customers lost as a result of the Defendants’ misconduct, without any time limitation and regardless of relevance to the claims at issue in this case. Plaintiffs also object to this Request to the extent that it calls for documents already in the possession of ChemTreat. Plaintiffs further object to this Request to the extent it seeks production of documents containing confidential, proprietary, and/or trade secret information in the absence of the entry of a Protective Order. Plaintiffs also object to this Request to the extent it seeks documents that are protected from disclosure by the attorney-client privilege and/or the work-product doctrine. Without waiving these objections, and upon entry of a Protective Order, Plaintiffs will produce responsive, relevant, non-privileged documents. [Doc. 191-1 at Page ID # 2938-41]. In their response, Plaintiffs cite to their production of the expert report of Dana Trexler which “outlines Plaintiffs’ damages,” plus “all documents reviewed and/or relied on by Ms. Trexler,” and the “fact packs” referenced above [Doc. 203 at Page ID # 3374]. In its reply, ChemTreat argues that Plaintiffs “cannot seriously contend either that the ‘fact packs’ or their expert report are responsive to all of the RFPs above or that they are all of the documents (and not a cherry-picked handful) responsive to those RFPs.” [Doc. 209 at Page ID # 3547]. Specifically, ChemTreat contends the fact packs “do not include, among other things, any information about allegedly lost goodwill sought in RFP 80, any evidence of mitigation of damages requested in RFP 81, or the ‘contracts’ or ‘communications’ called for by RFP 82.” [Id.]. *10 The Court cannot ignore the obvious overbreadth of these RFP. ChemTreat does not address why, for example, it is entitled to all documents relating in any way to a lost customer, without limitation by date, author, or subject matter beyond simply “relating” to the customer, or how Plaintiffs should go about identifying any “potential contracts” allegedly affected by Defendants’ alleged actions. However, Plaintiffs agreed to produce “responsive, relevant, non-privileged documents” in response to the RFP as written. The motion to compel [Doc. 190] is GRANTED IN PART AND DENIED IN PART as to RFP nos. 78-82. ChemTreat is entitled to more than what Plaintiffs have produced thus far, but ChemTreat needs to narrow these RFP. The Court lacks sufficient information to order any specific production, however. Ever optimistic, the Court hereby ORDERS the parties to meet and confer in good faith to attempt to resolve the dispute concerning these RFP. The good faith conferral SHALL take place within TWO DAYS of entry of this Order, and responsive documents SHALL be produced, along with the certification addressed above, within FIVE DAYS of entry of this Order. i. Sanctions The Court finds Plaintiffs unreasonably delayed production of responsive documents regarding some RFP addressed in the instant motion to compel and obscured the status of production for other RFP, thereby making an already difficult discovery phase worse. As discussed above, the Court finds the record justifies requiring Plaintiffs to produce a sworn certification regarding each of the RFP identified in ChemTreat's motion [Doc. 190]. Nevertheless, as also discussed above, the Court finds the current record does not justify requiring Plaintiffs to produce an ESI report at this late stage of discovery. The Court is aware ChemTreat purports to “reserve its right” to seek other sanctions against Plaintiffs. As no actual request for other sanctions has been made, the Court declines to address the topic further. III. CONCLUSION For the reasons stated and to the extent set forth above, ChemTreat's motion to compel [Doc. 190] is GRANTED IN PART AND DENIED IN PART. SO ORDERED. Footnotes [1] The defendants in this case are ChemTreat and Anthony Ridley (“Ridley,” and collectively, “Defendants”). The plaintiffs are Ecolab, Inc., and Nalco Company, LLC (“Ecolab,” “Nalco,” and collectively, “Plaintiffs”). [2] ChemTreat states that as of the date the motion was filed (March 22), Plaintiffs had produced “less than 250 documents (some of which are duplicates).” [Doc. 191 at Page ID # 2889 (emphasis added)]. In Plaintiffs’ response, filed April 5, Plaintiffs state: “To date, Plaintiffs have produced over three thousand pages in discovery[.]” [Doc. 203 at Page ID # 3367 (emphasis added)]. It is not clear whether the “pages” Plaintiffs produced comprise only 250 “documents,” or whether Plaintiffs produced documents after ChemTreat filed the motion to compel. [3] For example, Plaintiffs state they “have produced documents responsive to RFP Nos. 56 and 57.” [Doc. 203 at Page ID # 3372]. The sworn certification ordered herein should indicate whether Plaintiffs “have produced all documents responsive” to any given RFP addressed in the motion to compel. [4] Nothing about this Order should be interpreted as affecting any party's obligation to supplement their discovery responses in accordance with applicable rules and the Court's Orders.