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 24, 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 Plaintiffs’ Second Motion to Compel [Doc. 195].[1] The motion is accompanied by a supporting brief [Doc. 196] and a number of exhibits. ChemTreat filed a response in opposition [Doc. 211], and Plaintiffs filed a reply [Doc. 217]. 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’ Second Motion to Compel [Doc. 195] will be GRANTED IN PART AND DENIED IN PART. I. BACKGROUND The Court's prior Opinions and Orders set forth the factual background as alleged by Plaintiffs, the history of certain aspects of the discovery phase of this case, and applicable legal standards [Doc. 69, Doc. 137, Doc. 158, Doc. 192, and Doc. 212]. The Court presumes familiarity with all such prior Opinions and Orders. In the instant motion, Plaintiffs take issue with ChemTreat's supplemental responses to certain of Plaintiffs’ discovery requests, which were ordered by the Court on February 10, 2023 [Doc. 137]. Plaintiffs now ask the Court to order ChemTreat to “supplement its responses to the Plaintiff's First Set of Interrogatories and to supplement its responses, produce responsive documents, and produce a privilege log responsive to Plaintiffs’ First Request for Production of Documents” within seven days [Doc. 195 at Page ID # 3145]. Plaintiffs also seek an award for attorney's fees incurred in connection with the motion. The Court will address the issues in the order addressed by Plaintiffs in their brief. II. ANALYSIS a. Interrogatories and Requests for Production (“RFP”) Calling for “Confidential Information” In the February 10 Order, the Court addressed Plaintiffs’ RFP no. 15 which sought communications concerning Ecolab trade secrets and “Confidential Information.”[2] The Court found ChemTreat interpreted Confidential Information too narrowly, and ordered ChemTreat to provide a supplemental response/production including “documents/communications that comprise/contain/concern information which (1) meets commonly understood definitions of ‘proprietary information,’ ‘non-public information,’ or ‘trade secrets,’ and (2) bears indicia that it originated from or belongs to Ecolab.” [Doc. 137 at Page ID # 1846]. Plaintiffs complain ChemTreat produced only three additional documents beyond their initial production. They point to ChemTreat's repeated statement that its supplemental production was based on a “reasonable, proportional search,” and argue ChemTreat “failed to explain what it did for this allegedly ‘reasonable’ and proportional’ search.” [Doc. 196 at Page ID # 3152]. If ChemTreat refers to the search performed by its expert James Vaughn, Plaintiffs contend the search was deficient because Vaughn “failed to search laptop computers and stand-alone devices for key custodians, other than Ridley,” “failed to use simple search terms like ‘Nalco’ and ‘Ecolab’ for these custodians,” and “limited its search to the specific documents names in the DLP report, clearly violating the Court's February 10 Order.” [Doc. 196 at Page ID # 3159]. Plaintiffs further contend ChemTreat's search was deficient because it failed to explain how it “considered the metadata,” a phrase ChemTreat uses in a number of its supplemental discovery responses [Id.]. *2 In response, ChemTreat points to language in its February 13, 2023, ESI report [Doc. 143], which was ordered by the Court [Doc. 133], stating: “Identified below are the custodians and ESI repositories that ChemTreat has searched in connection with discovery in this case, including to identify and produce documents responsive to Plaintiffs’ discovery requests.” [Doc. 143 at Page ID # 1939 (emphasis added)]. ChemTreat contends Plaintiffs could have just referred to this ESI report or simply asked ChemTreat what it meant by “reasonable and proportional search,” and “considered the metadata.” Neither party makes any effort to identify the differences between Vaughn's searches and the searches described in the ESI report, the significance of any differences, or the timing of any searches vis-a-vie the filing of the ESI report. In reply, Plaintiffs continue to attack ChemTreat's search efforts based on its apparently mistaken belief that ChemTreat's searches are limited to Vaughn's searches. Plaintiffs do not address the searches as described in the ESI report at all, despite ChemTreat directing their attention to the ESI report in its response to the motion to compel. Instead, Plaintiffs cite their expert's report which addresses alleged deficiencies in Vaughn's searches [see Doc. 217 at Page ID # 3782].[3] Thus, Plaintiffs have been aware of the ESI sources ChemTreat searched for more than six weeks and have either not properly conferred with ChemTreat about the scope of ChemTreat's searches or brought the topic to the Court's attention until now, on the eve of the close of discovery, or both. Their “smoking gun” evidence appears to come from the CrowdStrike log, which Plaintiffs have had in their possession since December 30, 2022, a fact they also do not address at all in their reply. Plaintiffs also claim ChemTreat misrepresented the number of Plaintiffs’ documents that Ridley accessed while working for ChemTreat: In its discovery responses, “ChemTreat claimed that it had only located a single document that qualified as Ecolab Confidential Information.” [Doc. 196 at Page ID # 3151]. Then, “[i]n a shocking development, Mr. Vaughn's report disclosed that Ridley attached two USB drives to his ChemTreat computer in August 2021 and January 2022 and accessed seven Ecolab confidential files. This is the first time that ChemTreat disclosed this.” [Id. at Page ID # 3153]. ChemTreat responds that its prior statements regarding the “single document” accessed by Ridley referred only to whether Ridley accessed “Confidential Information” stored on “ChemTreat's systems” [Doc. 211 at Page ID # 3607]. The “single document” was in fact stored on Ridley's ChemTreat email account, while the seven documents referenced in Vaughn's report were accessed from USB drives inserted into Ridley's ChemTreat laptop, and therefore they were not stored on “ChemTreat's systems.” ChemTreat also claims there is no evidence the seven documents contain “Confidential Information.” *3 In reply, Plaintiffs cite to ChemTreat's “now withdrawn Counterclaim,” but the quoted language continues to refer only to “ChemTreat systems to which Ridley had access.” [Doc. 217 at Page ID # 3782-83]. Plaintiffs do not otherwise address ChemTreat's explanation/rebuttal to Plaintiffs’ accusations of misrepresentations pertaining to the “single document.” Regarding other issues raised in Plaintiff's opening brief, ChemTreat explains its supplemental discovery responses did not include the “business plan” Plaintiffs discuss in their opening brief because they had previously produced it [Doc. 211 at Page ID # 3610 n.10]. Further, ChemTreat states it searched metadata for “Nalco” and “Ecolab,” and that it did search other custodians’ email accounts. Plaintiffs do not address these points in their reply, and so the Court declines to address them further herein. Accordingly, the Court finds Plaintiffs have failed to show any deficiencies relating to ChemTreat's supplemental responses to the discovery responses addressed in this section of Plaintiffs’ brief. Plaintiffs’ Second Motion to Compel [Doc. 195] is therefore DENIED to the extent it pertains to “Interrogatories and Requests for Production Calling for ‘Confidential Information’ ” [Doc. 196 at Page ID # 3158], and related issues. b. RFP Calling for “Communications” Plaintiffs argue ChemTreat “continues to limit its responses based on its own self-serving definitions of ‘Documents’ and ‘Communications.’ ” [Doc. 196 at Page ID # 3160]. Plaintiffs’ argument in this regard concerns ChemTreat's failure to produce text messages. In the February 10 Order, the Court addressed text messages as follows: ChemTreat initially objected to a number of the RFP at issue ... to the extent such RFP seek text messages. As far as the Court can tell, Plaintiffs did not address these issues in their briefing on the motion to compel. For clarity's sake, the Court notes nothing in this Order should be construed as requiring ChemTreat to search its employees’ personal social media accounts or personal messaging apps for ESI that in not in its possession, custody or control. Further, nothing in this Order should be construed as requiring ChemTreat to search all of its employees’ personal text messages. [Doc. 137 at Page ID # 1851]. Plaintiffs now seek “text and other messages or communications” sent from iPhones issued by ChemTreat to its employees, including Ridley [Doc. 217 at Page ID # 3784]. Plaintiffs argue “ChemTreat unquestionably has possession, custody, or control over all data on a custodian's company iPhone,” and that “[i]t is beyond dispute that there are text messages relevant to the claims and issues in dispute in this litigation.” [Doc. 196 at Page ID # 3161]. As the Court has explained, due to the excessive, belated discovery motion practice the parties have engaged in, the Court will not consider previously unpresented or inadequately presented argument about another parties’ discovery responses/production when the response/production has already been the subject of a motion addressed by the Court [Doc. 201]. The Court finds this particular issue falls squarely within the category of previously addressed discovery issues and will not address it further herein. Plaintiffs could have easily brought this issue to the Court's attention in its extensive filings on the previous motion to compel addressing text messages. Moreover, the instant motion did not become ripe until Plaintiff's reply was filed after the close of business on April 19, even though the already extended discovery period expires April 27, 2023. *4 Accordingly, Plaintiffs’ Second Motion to Compel [Doc. 195] is DENIED to the extent it seeks further production of text messages and/or searching of text message repositories. c. RFP Objected to Based on Privilege In this section of their brief, Plaintiffs “move this Court to order ChemTreat to specifically identify the basis for any privilege asserted as the reason to withhold documents, including if the asserted basis is a joint defense or common interest privilege, to give Plaintiffs the opportunity to properly assess the privilege and whether documents were improperly withheld.” [Doc. 196 at Page ID # 3162]. Plaintiffs ask the Court to “require that ChemTreat provide this specificity in connection with its responses to RFP Nos. 1, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, 21, 28, 30, 31, 32, 34, 42, 43.” [Id.]. Plaintiffs assert “ChemTreat cannot hide behind these ‘other applicable privileges,’ without specifically identifying the privilege relied on, and it must produce redacted documents where the entire communication is not privileged.” [Id.]. In its response, ChemTreat cites to the parties’ ESI protocol and argues that it “exempts the parties from logging privileged documents created on or after February 9, 2022.” [Doc. 211 at Page ID # 3611]. ChemTreat asserts that it has “redacted the privileged portion, and produced the remainder, of all documents pre-dating February 9, 2022, that were previously being withheld pursuant to a claim of privilege.” [Id.]. As such, ChemTreat argues, “[t]here is nothing left for ChemTreat to log under the terms of the parties’ agreed order on the subject, and Plaintiffs’ motion offers no explanation as to why more should be required.” [Id.]. In reply, Plaintiffs correctly point out that the ESI protocol only exempts “communications involving counsel” from the privilege log [Doc. 91 at Page ID # 1077]. ChemTreat's response does not specify that the only items not logged are specifically “communications involving counsel.” Accordingly, Plaintiffs’ Second Motion to Compel [Doc. 195] is GRANTED IN PART AND DENIED IN PART as to “Requests for Production Objected to Based on Privilege.” [Doc. 196 at Page ID # 3161]. Within THREE DAYS of entry of this Order, ChemTreat SHALL specify whether all withheld, non-logged documents are “communications involving counsel,” and for any withheld documents that are not “communications involving counsel,” ChemTreat SHALL provide an appropriate privilege log. The motion is DENIED as to privilege-related issues in all other respects. d. Specific Discovery Requests at Issue Plaintiffs assert ChemTreat “failed to properly respond” to interrogatory no. 5 and RFP nos. 22, 23, 27, 29, and 44. In its response, ChemTreat states it “does not have any documents regarding relevant customers, as defined by the Court, to produce in response to RFPs 22, 23, 27, 29, and 44.” As for interrogatory no. 5, ChemTreat cites to the deposition testimony of Peter Mumpower and to several documents identified by Bates numbers [see Doc. 211 at Page ID # 3616]. Plaintiffs do not address these specific discovery requests in their reply. Accordingly, it appears ChemTreat addressed Plaintiffs’ concerns. The motion to compel is therefore DENIED AS MOOT in this regard. e. Sanctions *5 Consistent with the authority cited in the Court's prior discovery-related orders, neither side is entitled to any other relief or sanctions based on the record before the Court. 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 [Doc. 195], Plaintiffs’ Second Motion to Compel is GRANTED IN PART AND DENIED IN PART. SO ORDERED. Footnotes [1] The plaintiffs in this case are Ecolab, Inc., and Nalco Company, LLC (“Ecolab,” “Nalco,” and collectively, “Plaintiffs”). The defendants in this case are Anthony Ridley and ChemTreat Inc. (“Ridley,” “ChemTreat,” and collectively, “Defendants”). [2] The February 10 Order addressed Confidential Information in the context of RFP no. 15, but ChemTreat agreed to apply the Court-ordered definition and provide a supplemental response/production for all of Plaintiffs’ discovery requests that contained the phrase [Doc. 211 at Page ID # 3608]. [3] In their motion, Plaintiffs argue: “If ... Mr. Vaughn's report describes the ‘reasonable and proportional search,’ ChemTreat should be required to state this subject to Rule 26(g) and/or part of a sworn verification (if part of an interrogatory response).” [Doc. 196 at Page ID # 3159]. ChemTreat clarified in its response that Vaughn's report does not describe the “reasonable and proportional response,” and Plaintiffs do not address this request again in their reply. To the extent Plaintiffs are still seeking such a certification, the Court declines to require ChemTreat to provide one under the circumstances.