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 February 10, 2023 Lee, Susan K., United States Magistrate Judge ORDER *1 Before the Court is a motion to compel [Doc. 95] filed by Plaintiffs Ecolab Inc. and Nalco Company, LLC (“Plaintiffs”). The motion is accompanied by a supporting brief [Doc. 97], Defendant ChemTreat, Inc.'s Responses & Objections to Plaintiffs' Interrogatories[1] [Doc. 95-2], ChemTreat's Responses & Objections to Plaintiffs' First Set of Requests for Production [Doc. 95-3], and various letter and email communications concerning discovery issues [Doc. 95-4, Doc. 94-5, & Doc. 95-6]. ChemTreat filed a response in opposition [Doc. 107], and Plaintiffs filed a reply [Doc. 112]. Accordingly, this matter is now ripe.[2] The Court conducted a hearing on the motion on February 3, 2023.[3] *2 For the reasons set forth herein, the motion will be granted in part and denied in part. I. BACKGROUND The factual background, as alleged by Plaintiffs, is set forth in the Court's Memorandum Opinion regarding Defendants' motions to dismiss [Doc. 69]. For current purposes, it suffices to note that Plaintiffs allege Defendant Ridley, while an employee of a Plaintiff, secretly downloaded a significant number of company files that included confidential and trade secret information from Plaintiffs' cloud-based information storage system for his and ChemTreat's use, and then deleted the files from Plaintiffs' corporate cloud drive account. Ridley then allegedly resigned and began to work for ChemTreat, a direct competitor of Plaintiffs. Plaintiffs allege Ridley wrongfully uploaded the misappropriated information to devices issued to him by Plaintiffs, his own personal devices, and eventually to devices issued to him by ChemTreat. Plaintiffs allege their misappropriated information was used to solicit customers and to attempt to induce Plaintiffs' employees to quit and work for ChemTreat. Plaintiffs have asserted the following claims in their second amended complaint: (1) violation of the Defend Trade Secrets Act (against Ridley and ChemTreat), (2) violation of the Tennessee Uniform Trade Secrets Act (against Ridley and ChemTreat), (3) breach of contract (against Ridley), (4) breach of fiduciary duty of loyalty (against Ridley), (5) tortious interference with contractual relationships (against ChemTreat), (6) procurement of breach of contract (against ChemTreat), and (7) civil conspiracy (against Ridley and ChemTreat) [see Doc. 46; Doc. 69 at Page ID # 619-20]. Plaintiffs also asserted a claim for unfair competition against Ridley and ChemTreat, but that claim was dismissed [see Doc. 69 at Page ID # 634-35; Doc. 136 at Page ID # 1802 n.1]. In the instant motion, Plaintiffs contend ChemTreat's responses to one interrogatory and a number of requests for production (“RFP”) are grossly deficient. Plaintiffs group the disputed requests into the following categories: (1) information concerning Ridley's work on behalf of ChemTreat so that Plaintiffs can discern how their misappropriated information was used (interrogatory no. 1); (2) documents concerning ChemTreat's purported investigation into the misappropriation of Plaintiffs' information which ChemTreat has repeatedly argued absolves and immunizes it from liability, and documents concerning ChemTreat's spoliation of Ridley's work computer (RFP nos. 8, 35, & 37); (3) documents concerning Plaintiffs' misappropriated information that somehow found its way into ChemTreat's possession (RFP nos. 15, 16, & 17); (4) documents concerning ChemTreat's plans for Ridley (RFP no. 34); and (5) documents concerning ChemTreat's recruitment of employees other than Ridley and Tyler Bates (RFP nos. 12, 14, 46, 47, & 48). [Doc. 97 at Page ID # 1290, 1292, 1294, 1301, 1305, 1307]. For ease of reference, the Court will use the same grouping. Plaintiffs also generally contend ChemTreat's responses “are riddled with improper boilerplate objections,” and they argue the Court “should require ChemTreat to either withdraw their objection or supply a detailed, specific basis for said objections.” [Id. at Page ID # 1291-92]. Finally, Plaintiffs request an award of attorney's fees incurred in connection with the filing of the motion to compel [id. at Page ID # 1312]. II. STANDARDS *3 The Court starts with the overarching proposition that the Rules of Civil Procedure, including those governing discovery, “should be construed, administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” See Fed. R. Civ. P. 1. Rule 26(b)(1) provides: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is 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, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Further, the proponent of a motion to compel discovery bears the initial burden of demonstrating relevance. See Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010); Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309–10 (W.D. Tenn. 2008). Moreover, Rule 26(b) gives judges broad latitude in governing the scope and limits of discovery to accomplish the overarching purposes of the Federal Rules of Civil Procedure, including Rule 1. More specifically, Fed. R. Civ. P. 26(b)(2)(C) provides in relevant part: (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). III. ANALYSIS Before turning to the specific issues of the instant motion, and as addressed with the parties during the last conference regarding discovery issues, the parties should not expect discovery deadlines to be extended again. As a rule, discovery is to be confined to the discovery period set by the Court, which in this case was set with the parties' agreement during the scheduling conference and extended by the Court upon mutual request of the parties. In order to fairly and properly confine the discovery period so that it does not interfere with other aspects of the case, discovery-related motion practice must conclude before the end of the discovery period. Motions filed during the waning weeks of a more than yearlong discovery period are not timely as they cannot be briefed, considered, and ruled upon without, in effect, extending the discovery period. Doing so would disrupt the parties' and the Court's ability to address any dispositive motions and the trial. The parties are forewarned that the Court will not address eleventh-hour discovery-related motions that would have the effect of extending the discovery period. And while the parties are free to agree to conduct discovery after the discovery period expires, nothing about the discovery in this case thus far indicates that “mutual agreement” will be a viable option. Moreover, the Court will not address any discovery disputes that may arise with respect to any discovery conducted after the Court-sanctioned discovery period has expired. A. Interrogatory No. 1 – Information Concerning Ridley's Work for ChemTreat *4 Interrogatory no. 1 requests that ChemTreat “[i]dentify each client that Ridley performed work for and/or tried to secure business from during his employment [with] ChemTreat.” [Doc. 95-2 at Page ID # 1144]. The primary dispute regarding interrogatory no. 1 apparently concerns whether (1) Plaintiffs should be ordered to produce their own list of clients (or customers)[4] first, specifically those “implicated by Ridley's non-solicitation agreement or alleged trade secret misappropriation” [Doc. 107 at Page ID # 1364][5],—and only then will ChemTreat identify which of those clients Ridley solicited/performed work for as a ChemTreat employee; or (2) whether ChemTreat should be required to identify all of the clients Ridley “interacted with—even tangentially—during his employment at ChemTreat” [Doc. 95-2 at Page ID # 1144], regardless of the client's relationship to Plaintiffs or this lawsuit. Plaintiffs also argue “[i]t is possible that Ridley took Plaintiffs' documents and information for customers beyond those whom he actually serviced” while he worked for Plaintiffs, “and who might not necessarily be covered by his non-solicitation clause.” [Doc. 97 at Page ID # 1294]. Plaintiffs do not effectively address the problem that, as written, the interrogatory would require ChemTreat to divulge the identity of its clients who Ridley performed work for or solicited, even when the client and/or Ridley's work for the client has no bearing on Plaintiffs' clients or the allegations in this lawsuit. Plaintiffs do not even attempt to argue in their briefing that the identity of all of ChemTreat's clients who Ridley solicited or worked with would be relevant in this case. Rather, Plaintiffs explain they are still “trying to gather a complete picture of all information that Ridley misappropriated, a process that has been inhibited by Ridley's deletion of files from ChemTreat's system prior to his resignation, the failure of Ridley and ChemTreat to fully cooperate[ ] in discovery, and ChemTreat's forensic wiping and spoliation of the laptop that Ridley used throughout his employment at ChemTreat.” [Doc. 97 at Page ID # 1293-94]. Of course, ChemTreat disputes this characterization.[6] *5 At the hearing, Plaintiffs argued interrogatory no. 1 was not overbroad essentially because Ridley was employed by ChemTreat for only seven months. Plaintiffs also suggested at the hearing that all ChemTreat clients or potential clients serviced or solicited by Ridley are discoverable because Plaintiffs are entitled to know how their alleged trade secrets were deployed. As addressed in further detail during the extensive hearing, neither of these explanations properly addresses the overbroad nature of interrogatory no. 1. The Court also finds ChemTreat construed interrogatory no. 1 too broadly when it stated that Plaintiffs were seeking the identity of every ChemTreat client Ridley interacted with, “even tangentially” [Doc. 107 at Page ID # 1362]. The interrogatory is specifically limited to ChemTreat clients Ridley performed work for or solicited. Moreover, any list of ChemTreat's clients could be produced for Attorney's Eyes Only pursuant to the parties' Agreed Protective Order, at least at this stage of the proceedings, diminishing concerns about releasing such confidential business information. See Polymeric Res. Corp. v. Pounds of Plastic, LLC, No. 3:20-CV-00013-GFVT-EBA, 2021 WL 7081114, at *4 (E.D. Ky. May 14, 2021) (“Plaintiff's need to maintain the confidentiality of its business information can be balanced against Defendant's need to discover the evidence by marking the list as ‘Attorneys' Eyes Only.’ Any customer information divulged would be protected pursuant to the parties' stipulated confidentiality order.”). In Patterson Dental Supply, Inc. v. Pace, No. 19-cv-1940, 2020 WL 10223625, at *24 (D. Minn. June 17, 2020), a case cited by ChemTreat, the court found that an interrogatory seeking the identification of every client the defendant employee “had any communication with” during her work for the defendant employer was overly broad because it sought such information “regardless of whether or not that communication referred to or mentioned Plaintiff's business or confidential information.” Unlike in this case, in Patterson, the plaintiff had already provided a list of over 300 entities and persons that the defendant employee worked with while employed by the plaintiff. Id. at *24-25. However, the court noted the list itself was expansive and it was not clear whether the identified entities and persons were ever actual clients of the plaintiff or if they remained clients when the defendant employee quit. Id. Similarly, here, a list of Plaintiffs' clients covered by Ridley's employment contract could include clients Ridley did not contact while working for ChemTreat. In Ikon Office Solutions, Inc. v. Konica Minolta Business Solutions, U.S.A., Inc., No. 3:08-CV-539-RLV-DCK, 2009 WL 4429156, at *4-5 (W.D.N.C. Nov. 25, 2009), also cited by ChemTreat, the court denied the plaintiff's motion to compel a defendant to produce “confidential information” about the defendant's customers, noting the plaintiff sought the information “regardless of whether those customers have anything to do with IKON or this lawsuit.” The court further held, however, that once the plaintiff responded to the defendant's interrogatories requesting identification of the trade secrets allegedly misappropriated, the plaintiff could then serve “more narrowly drawn discovery requests.” Id. at *6. The Court finds interrogatory no. 1 is overbroad as written. The Court acknowledges the possible conundrum the parties face given the deletion of certain ESI, which might have allowed Plaintiffs to serve, and ChemTreat to respond to, a more narrowly-tailored interrogatory. *6 The parties remain enmeshed in several significant, ongoing discovery disputes; and it appears that identifying the relevant clients should narrow these disputes in a meaningful way. In addition, in a recent telephonic status conference and again at the hearing on the instant motion, Plaintiffs appeared to take the position that the compilation of each one of their client files constitutes a trade secret that may have been misappropriated by Ridley. Plaintiffs reportedly disclosed ten exemplar client files (or at least electronic file paths thereto), which necessarily required Plaintiffs to identify those ten clients. Further, at the hearing, Plaintiffs indicated they were willing and able to compile a complete list of (1) their clients who Ridley solicited or performed work for as part of his employment with Plaintiffs and (2) their clients about whom Plaintiffs contend Ridley misappropriated confidential, non-public, proprietary, or trade secret information. Accordingly, the motion to compel is GRANTED IN PART AND DENIED IN PART as to interrogatory no. 1 as follows. In its discretion, and as addressed during the hearing, the Court ORDERS Plaintiffs to produce the following 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. ChemTreat is ORDERED to then identify all clients on Plaintiffs' 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. The parties may produce these lists as “Attorney's Eyes Only” under the Agreed Protective Order (for now) if its meets the applicable criteria for same under the Agreed Protective Order; however, they are ORDERED to confer as soon as possible so that they can identify individuals within their respective organizations who can assist with case preparation. Given that the need to involve certain party employees is a logistical issue common to cases of this nature, the Court should not be required to wade into the issue of how the ordered information may be revealed to a limited number of party employees in furtherance of case preparation. The Court is confident that with this guidance the parties should be able to cooperate to resolve any “Attorney's Eyes Only” issues as they arise without the need for further court intervention. B. RFP Nos. 8, 35, & 37 – Documents Concerning ChemTreat's Investigations RFP Nos. 8, 35, & 37 request the following: RFP No. 8 – Any and all Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning the wiping, reformatting, destruction, repurposing and/or failure to preserve any computer(s) or Device(s) used by Ridley. RFP No. 35 - All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning Your investigation, examination, analysis and/or inspection into whether Ridley accessed or used any Ecolab Documents during his employment at ChemTreat. RFP No. 37 – All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning Your investigation, examination, analysis, and/or inspection into whether any former Ecolab employee accessed or used any Ecolab Documents during his/her employment at ChemTreat. [Doc. 95-3 at Page ID # 1181-82, 1213-14, 1215-16 (emphasis added)]. First, regarding RFP no. 37, the Court notes ChemTreat objected in part because the RFP sought irrelevant information; that is, because Plaintiffs have “not alleged in this Lawsuit that anyone other than Ridley ‘accessed or used’ its Confidential Information.” [Id. at Page ID # 1216]. ChemTreat reiterated this argument in their response to Plaintiffs' motion: “[A]s ChemTreat's objection explains, Plaintiffs have ‘not alleged in this Lawsuit that anyone other than Ridley accessed or used’ Plaintiffs' protected information. RFP No. 37 therefore fails the threshold requirement of any discovery: that it be relevant to a claim or defense in the action.” [Doc. 107 at Page ID # 1368]. *7 While Plaintiffs did respond to this argument in a letter to ChemTreat [see Doc. 95-4 at Page ID # 1261], they do not address this argument in their motion to compel, opening brief, or reply brief, even though ChemTreat specifically raised it in its response [Doc. 107]. Accordingly, it appears Plaintiffs no longer defend RFP no. 37 on this basis, and they have waived any argument regarding its relevance. “[J]udges are not like pigs, hunting for truffles” buried in exhibits to briefs. Emerson v. Novartis Pharms. Corp., 446 F. App'x 733, 736 (6th Cir. 2011) (citation omitted).[7] The motion to compel will therefore denied as to RFP no. 37. In their discovery response to RFP no. 8, ChemTreat stated: ChemTreat incorporates by reference its objections to the defined terms “Documents” and “Communications” and construes those terms consistent with the objections set forth in full above. ChemTreat objects to this Request to the extent it seeks Documents protected by the attorney-client privilege, work product doctrine, or other applicable privileges. ChemTreat further objects to this Request as overbroad, unduly burdensome, and not proportional to the needs of the case to the extent it seeks text messages. ChemTreat further objects to this Request to the extent it seeks Documents that are not within ChemTreat's possession, custody, or control, such as LinkedIn and WhatsApp messages. Subject to and without waiving the objections set forth above, ChemTreat will produce non-privileged Documents responsive to this Request, to the extent such Documents exist and can be located through a reasonable, proportional search of ChemTreat's files. ChemTreat will produce Documents on a rolling basis after a protective order has been entered by the Court. [Doc. 95-3 at Page ID # 1182]. In their discovery response to RFP No. 35, ChemTreat stated: ChemTreat incorporates by reference its objections to the defined terms “Documents” and “Communications” and construes those terms consistent with the objections set forth in full above. ChemTreat objects to this Request because the term “Ecolab Documents” is vague and not defined by Plaintiffs, such that ChemTreat does not know how to differentiate that term from Plaintiffs' overbroad definition of “Confidential Information.” ChemTreat construes the term “Ecolab Documents” to mean “Confidential Information,” and construes that term consistent with the objections set forth in full above. ChemTreat further objects to this Request as overbroad, unduly burdensome, and not proportional to the needs of the case to the extent it seeks text messages. ChemTreat further objects to this Request to the extent it seeks Documents that are not within ChemTreat's possession, custody, or control, such as LinkedIn and WhatsApp messages. ChemTreat further objects to this Request to the extent it seeks Documents protected by the attorney-client privilege, work product doctrine, or any other applicable privileges. ChemTreat further objects to this Request because it seeks premature expert discovery and Communications with experts that are protected by Federal Rule of Civil Procedure 26. *8 [Id. at Page ID # 1213-14]. In their motion to compel, Plaintiffs first take issue with ChemTreat's reliance on attorney-client privilege and the work product doctrine. They argue “ChemTreat waived those privileges when it raised the results of its investigation to defend against Plaintiffs' claims.” [Doc. 97 at Page ID # 1297]. Stated another way, Plaintiffs argue: “By affirmatively placing its internal investigation at issue in the case, ChemTreat has put all aspects of its investigation fully into play and waived attorney-client privilege.” [Id. at Page ID # 1297-98]. ChemTreat is adamant it has not waived any attorney-client privilege or the protection of the work product doctrine. Among other things, they argue: “Outside of the Title VII context, courts take the opposite position and routinely find that merely referencing an internal investigation, or disclosing summaries of findings, does not waive the attorney-client privilege or work product protection over documents related to the investigation.” [Doc. 107 at Page ID # 1369]. As is well known, “[t]he attorney-client privilege protects from disclosure confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client.” In re Grand Jury Subpoena, 886 F.2d 135, 137 (6th Cir. 1989) (quotation marks and citation omitted). “Questions of privilege are to be determined by federal common law in federal question cases.” Reed v. Baxter, 134 F.3d 351, 356 (6th Cir. 1998) (citing Fed. R. Civ. P. 501).[8] The attorney-client privilege protects communications from disclosure under the following circumstances: 1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to the purpose, (4) made in confidence (5) by the client, (6) are at this instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection is waived. Id. at 355-56; see also Doe v. Hamilton Cnty. Bd. of Educ., No. 1:16-CV-373, 2018 WL 542971, at *2 (E.D. Tenn. Jan. 24, 2018). “The burden of establishing the attorney-client privilege rests with the person asserting it.” Reed, 134 F.3d at 356. “Because the assertion of the attorney-client privilege withholds information relevant to the fact finder, it is narrowly construed and applied only where necessary to achieve its purpose of protecting client communications essential to obtain legal advice.” Id. “It is now generally accepted that communications between an attorney and client of primarily a business nature are outside the scope of the privilege.” Glazer v. Chase Home Fin. LLC, No. 1:09-cv-1262, 2015 WL 12733394, at *4 (N.D. Ohio Aug. 5, 2015) (citations omitted). In addition, “ ‘[l]itigants cannot hide behind the privilege if they are relying on privileged communications to make their case’ or, more simply, cannot use the privilege as ‘a shield and a sword.’ ” In re United Shore Fin. Servs., No. 17-2290, 2018 WL 2283893, at *2 (6th Cir. Jan. 3, 2018) (quoting In re Lott, 424 F.3d 446, 452–53 (6th Cir. 2005)). “When a party reveals privileged communications or otherwise waives the protections of the attorney-client privilege, ‘that party waives the privilege as to all communications on the same subject matter.’ ” Mooney ex rel. Mooney v. Wallace, No. 04-1190, 2006 WL 8434638, at *8 (W.D. Tenn. July 12, 2006) (quoting United States v. Skeddle, 989 F. Supp. 905, 908 (N.D. Ohio 1997)). *9 The work product doctrine “is distinct from and broader than the attorney client privilege.” In re Columbia/HCA Healthcare Corp. Billing Pracs. Litig., 293 F.3d 289, 304 (6th Cir. 2002). Work product protection extends beyond confidential communications between the attorney and client to “any document prepared in anticipation of litigation by or for the attorney.” Id. The doctrine is codified in Federal Rule of Civil Procedure 26(b)(3)(A), which states in pertinent part that a party may not ordinarily discover—save for a showing of “undue hardship”—“documents or tangible things that are prepared in anticipation of litigation ... by or for another party or its representative.” As mentioned, the party asserting the attorney-client privilege ultimately bears the burden of establishing its existence. In re Columbia/HCA, 293 F.3d at 294. “Proving privilege has not been waived would require proving a negative and is generally not required of proponents. However, once grounds for waiver have been demonstrated, proponents bear the burden to counter those grounds.” Burkhead & Scott, Inc. v. City of Hopkinsville, No. 5:12-CV-198-GNS, 2014 WL 7335173, at *1 (W.D. Ky. Dec. 19, 2014) (citing Shumaker, Loop & Kendrick, LLP v. Zaremba, 403 B.R. 480, 485–86 (N.D. Ohio 2009)). Further, the Sixth Circuit has observed that “there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege.” Barnard v. Powell Valley Elec. Coop., No. 3:18-CV-537-CEA-DCP, 2021 WL 6275267, at *3 (E.D. Tenn. Mar. 5, 2021) (quoting In re Columbia/HCA, 293 F.3d at 306). ChemTreat's suggestion that it has not used the investigations as a “sword” and instead has “merely referenc[ed] an internal investigation, or disclos[ed] summaries of findings” [Doc. 107 at Page ID # 1369], is belied by the record.[9] For example, in support of their counterclaims for attorney fees pursuant to state and federal law, they assert: 3. Plaintiffs have filed a lawsuit alleging that ChemTreat conspired with Plaintiffs' former employee, Anthony Ridley, to misappropriate, use, and benefit from Plaintiffs' purported trade secrets and otherwise protectable confidential information. Plaintiffs allege that ChemTreat conspired with Ridley to misappropriate their trade secrets or otherwise protectable confidential information, and then terminated Ridley for participating in the alleged conspiracy. Plaintiffs' claims as to ChemTreat are illogical and find no basis in fact or law. Plaintiffs know (or should know) this. 4. Plaintiffs have nonetheless commenced and continued their lawsuit against ChemTreat in bad faith and with knowledge that they lack a good faith factual or legal basis for their claims against ChemTreat. 5. As Plaintiffs know, ChemTreat has express policies prohibiting its employees from retaining, using, or disclosing any confidential or trade secret information belonging to others, including prior employers. When Plaintiffs notified ChemTreat that they suspected Ridley had taken such information with him to his new job at ChemTreat, ChemTreat promptly and diligently investigated their allegations. 6. ChemTreat provided updates to Plaintiffs regarding the status of its ongoing investigation, engaging in extensive pre-suit communications with Plaintiffs to address their concerns and respond to their questions. ChemTreat voluntarily disclosed to Plaintiffs detailed information regarding the nature, scope, and, ultimately, the outcome of ChemTreat's investigation. .... 9. As ChemTreat ultimately informed Plaintiffs—and subsequently confirmed in sworn interrogatory responses—its investigation, which involved an outside forensic expert and included a thorough review of all ChemTreat systems to which Ridley had access, did not reveal any evidence that Ridley had used or disclosed any of Plaintiffs' alleged trade secret information in his work at ChemTreat. *10 10. The investigation identified only a single Nalco document (a 2015 response to a request for quotation that was not marked confidential and did not bear any indicia of trade secret status) that Ridley had sent from his personal email account to his ChemTreat email account. ChemTreat's investigation found no evidence that this document (“the 2015 Response”) was saved in ChemTreat's network or cloud storage or transmitted further (either to other ChemTreat employees or outside of the organization). ChemTreat promptly notified Plaintiffs of its discovery of the 2015 Response in Ridley's email account and requested instructions on whether to return or dispose of the 2015 Response. Plaintiffs never provided any such instructions. 11. ChemTreat provided a copy of the 2015 Response to Plaintiffs in March 2022. Plaintiffs thus knew or should have known as of March 2022 that the 2015 Response could not satisfy the statutory requirements for trade secret misappropriation under either state or federal law. Indeed, although Plaintiffs initially insisted the 2015 Response was “confidential” and had an “inherent confidential nature,” Plaintiffs were unable to support those claims, resulting in the 2015 Response being filed on the public docket in this action. Doc. 68-1. 12. ChemTreat concluded that Ridley's transmission of the 2015 Response from his personal email account to his business email account violated the Certification of Compliance of Obligations to Prior Employers that ChemTreat required Ridley to sign as a condition of his employment. .... 15. Despite ChemTreat's cooperation with Plaintiffs, its candid explanation of the facts as understood by ChemTreat during the course of its ongoing investigation, the extensive information ChemTreat provided to Plaintiffs without any obligation to do so, and its prompt actions to address Plaintiffs' concerns—all of which provided concrete evidence supporting ChemTreat's repeated statements to Plaintiffs that Plaintiffs' allegations against ChemTreat lacked a good faith basis in fact and law—in April 2022, Plaintiffs sued ChemTreat for misappropriation of trade secrets under the Defend Trade Secrets Act (“DTSA”) and, in June 2022, for misappropriation of trade secrets under the Tennessee Uniform Trade Secrets Act (“TUTSA”). .... 17. Rather than facts, Plaintiffs' DTSA and TUTSA claims against ChemTreat rely on spurious accusations that ChemTreat wiped a laptop that Ridley used while employed by ChemTreat to conceal evidence of wrongdoing by ChemTreat. Plaintiffs know or should know those accusations lack any good faith basis. 18. At Plaintiffs' request, ChemTreat recalled the laptop Ridley was using while employed by ChemTreat so that the laptop could be forensically imaged. As ChemTreat voluntarily disclosed to Plaintiffs in March 2022, when that laptop was received at ChemTreat's offices, an administrative assistant mistakenly routed the laptop to the IT department rather than the legal department per its shipping label. As a result of this inadvertent error, Ridley's laptop was placed with laptops designated for reformatting and redeployment and was subsequently cleaned and redeployed. *11 19. When ChemTreat discovered the administrative assistant's error, it took prompt and diligent steps to recall the laptop from its redeployment and used an outside forensic expert to examine the laptop to determine what data could be recovered. Although ChemTreat had no obligation to disclose this information to Plaintiffs, it voluntarily did so in March 2022. ChemTreat further informed Plaintiffs at that time that it had logs from its digital loss prevention software (“CrowdStrike logs”) that replicated much of the data that would have been available from a forensic image of the laptop used by Ridley. ChemTreat subsequently confirmed this course of events, and provided further detail regarding it, under oath. 20. Plaintiffs thus had and have no good faith basis to believe that ChemTreat deliberately spoliated the laptop used by Ridley or that the inadvertent cleaning and reformatting of that laptop constitutes anything other than an unfortunate but innocent mistake. .... 38. On information and belief, Plaintiffs commenced and have continued their DTSA and TUTSA claims against ChemTreat based on a bad faith motive to harass ChemTreat and its employees, and to chill the willingness of Plaintiffs' current or former employees to accept employment with ChemTreat. [Doc. 78 at Page ID # 871-76, 880].[10] In arguing that it has not waived attorney-client privilege/work product protection, ChemTreat relies principally on In re Fluor Intercontinental, Inc., 803 F. App'x 697 (4th Cir. 2020). The case is nonbinding and, in any event, distinguishable. In that case, a government contractor conducted an internal investigation into an employee's potential conflict of interest with a third party to whom the contractor intended to award a contract. The contractor's legal department supervised the investigation. Based on its findings, it terminated the employee and “sent a summary of its findings to the government” pursuant to applicable regulations which required it to do so. The summary included the following statements: *12 (1) Anderson had a financial interest in and appears to have inappropriately assisted [a] Fluor supplier and potential subcontractor; (2) Fluor considers this a violation of its conflict of interest policy and Code of Business Conduct and Ethics; (3) Anderson used his position as the [Afghanistan] project manager to pursue Relyant concrete contracts with the German military, and Mr. Anderson used his position as the [Afghanistan] project manager to obtain and improperly disclose nonpublic information to Relyant; and (4) Fluor estimates there may have been a financial impact to the Government because Mr. Anderson's labor was charged to the contract task order while he engaged in improper conduct. Id. at Page ID # 698-99 (internal quotation marks and citation omitted). The district court concluded the contractor had waived attorney-client privilege, and the United States Court of Appeals for the Fourth Circuit reversed, finding “there is no evidence to suggest that the four statements in Fluor's disclosure quoted privileged communications or summarized them in substance and format.” Id. at 702. Rather, the court continued, “the statements do no more than describe Fluor's general conclusions about the propriety of Anderson's conduct,” and the “most that can be inferred from this record is that Fluor's statements were based on the advice of its counsel.” Id. The court also noted that compelling disclosure “has potentially far-reaching consequences for companies subject [to the same disclosure-related regulations applicable to government contractors].” Id. at 703. ChemTreat's own characterization of the information it claims to have voluntarily disclosed to Plaintiffs, which allegedly supports, at least in part, its counterclaims and its motion to dismiss, shows ChemTreat has done more than just describe general conclusions about Ridley's conduct and ChemTreat's investigations. ChemTreat asserts, for example, that it “provided updates to Plaintiffs regarding the status of its ongoing investigation,” engaged “in extensive pre-suit communications with Plaintiffs to address their concerns and respond to their questions,” and “voluntarily disclosed to Plaintiffs detailed information regarding the nature, scope, and, ultimately, the outcome of ChemTreat's investigation.” [Doc. 78 at Page ID # 872. ¶ 6]. Cf. In re Vecco Instruments, Inc. Secs. Litig., No. 05 MD 1695(CM) (GAY), 2007 WL 210110, at *2 (S.D.N.Y. Jan. 25, 2007) (cited in ChemTreat's brief; holding “the disclosures cited by plaintiff merely summarized the findings and conclusions of the internal investigation and did not quote, paraphrase or reference any of the specific documents at issue in support of its conclusions. Said limited disclosure does not constitute waiver of the work product privilege.” (emphasis added) (citation omitted)). ChemTreat also cites Robinson v. Morgan Stanley, No. 06 C 5158, 2010 WL 1050288 (N.D. Ill. Mar. 17, 2010). In that case, the defendants “included a summary of their investigation as an exhibit to one of their filings in this case.” Id. at *4. ChemTreat focuses on the following finding of the court: [T]his was nothing more than the disclosure of the fact that defendants conducted an investigation overseen by counsel and that counsel's conclusion was that Ms. Robinson's charges were unfounded. It was an “opaque” reference to attorney involvement that didn't reveal the substance of the underlying communications or analysis and thus does not constitute a waiver. Id. (citations omitted). However, the court went on to address the plaintiff's argument that the defendants “waived whatever privilege they might have had by putting the human resources investigation at issue.” Id. at *5. The court found “a waiver would depend on whether the defendants make an affirmative use of the [disputed] memo in their case.” Id. In this case, as discussed above, the Court finds ChemTreat has made affirmative use of its investigation to support, at least, its counterclaims. *13 In Leibovic v. United Shore Financial Services, LLC, a case no party cites that was upheld on interlocutory review by the United States Court of Appeals for the Sixth Circuit, the district court considered whether the attorney-client privilege had been waived as to documents related to an internal investigation conducted by one of the defendants (United Shore). No. 15-12639, 2017 WL 3704376, at *4 (E.D. Mich. Aug. 28, 2017). In response to an interrogatory about its investigation, United Shore “indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation.” Id. at *3. However, United Shore “withheld a significant amount of documents related to [the] investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation.” Id. Another defendant, XMS, sought production of the documents, arguing that United Shore “is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted,” and as such, United Shore “was using the results of the investigation offensively, which waived the privilege.” Id. United Shore argued, similar to ChemTreat's argument on the motion to compel, that “it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation.” Id. The district court rejected United Shore's argument and held: United Shore fails to explain why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged. Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation. Id. (internal quotation marks and citation omitted). On interlocutory review, the Sixth Circuit affirmed, reasoning as follows: The district court correctly concluded that the attorney-client privilege can be implicitly waived. Litigants cannot hide behind the privilege if they are relying on privileged communications to make their case or, more simply, cannot use the privilege as “a shield and a sword.” Thus, the privilege may be implicitly waived when defendant asserts a claim that in fairness requires examination of the protected communications. Here, United Shore cited XMS's action or lack of action as an affirmative defense. And it commissioned an investigation that concluded that XMS was at fault. Thus, it attempted to prove a defense by disclosing or describing the attorney-client communications. Once waived, the privilege is waived with respect to all communications involving the same subject matter. The district court did not clearly err in compelling disclosure of the privileged documents. United Shore does not assert, nor could it, that this is a novel issue. Most district court rulings on attorney-client privilege involve the routine application of settled legal principals. That is the case here, where both this court and other courts have considered the implicit waiver of the privilege under similar circumstances. In re United Shore Fin, Servs., LLC, No. 17-2290, 2018 WL 2283893, at *2 (6th Cir. Jan. 3, 2018) (emphasis added) (internal quotation marks, citations, and brackets omitted). After careful consideration of this important issue, the Court finds Plaintiffs have sufficiently demonstrated grounds for waiver of the attorney-client privilege and/or the work productive doctrine, and ChemTreat has not countered those grounds. See Burkhead & Scott, Inc., 2014 WL 7335173, at *1. As for the extent of the waiver, the Court finds it covers the investigation into the deletion of information from Ridley's laptop as well as the investigation into whether Ridley used any of Plaintiffs' confidential information while he was working for ChemTreat. The Court is unpersuaded by ChemTreat's argument that the investigation into the laptop information erasure is so wholly separate that it should not be considered part and parcel of its overall investigation, when, as part of its counterclaim, ChemTreat emphasized that the deletion of information from the laptop was inadvertent. The Court is likewise not persuaded by ChemTreat's argument that, because it responded to an interrogatory regarding the investigation into the deletion of information from Ridley's laptop, it is not required to respond to a request for production on the same topic. *14 Finally, ChemTreat also argued RFP no. 35 “seeks premature expert discovery and Communications with experts that are protected by Federal Rule of Civil Procedure 26.” [Doc. 95-3 at Page ID # 1214]. It stated it “will provide expert discovery in accordance with Rule 26 at the appropriate time.” [Id.]. ChemTreat is correct that the deadline for expert disclosures (on issues for which a party has the burden of proof) has been extended to February 17, 2023 [Doc. 99]. But February 17 is less than one month away, and the record does not indicate whether the requested information actually comes within the scope of required disclosures for testifying experts. Plaintiffs do not appear to object to the argument that ChemTreat may delay production of documents responsive to RFP no. 35 to the extent such documents are actually part of ChemTreat's expert disclosures [see Doc. 97 at Page ID # 1300 (“the use of an expert was merely one part of ChemTreat's internal investigation,” and “there should be no question that Plaintiffs are entitled to all documents concerning ChemTreat's investigation ... that are unrelated to [ChemTreat's expert]”)]. Accordingly, the motion to compel is GRANTED IN PART AND DENIED IN PART as to RFP nos. 8, 35, and 37. The motion is GRANTED as to RFP nos. 8 and 35, except that, to the extent ChemTreat acknowledges the requested documents about the investigations will be included in its expert disclosures, it is permitted to delay production until the deadlines previously set by the Court for such disclosures. The motion is DENIED as to RFP no. 37. C. RFP Nos. 15, 16, & 17 – Documents Concerning Plaintiffs' Information RFP Nos. 15, 16, and 17 request the following: RFP No. 15 - Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) comprising, containing, or otherwise concerning Ecolab trade secrets, Confidential Information, proprietary information, and/or non-public business information. RFP No. 16 - All Ecolab Documents that Ridley accessed, stored, copied, or printed using any Device, computer system or network, email system or network, cloud based account, or database to which Ridley was given access by ChemTreat. RFP No. 17 - All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning any Ecolab Document(s) that Ridley accessed, stored, copied, or printed during his employment with ChemTreat. [Doc. 95-3 at Page ID # 1190-1194 (emphasis added)]. Plaintiffs contend the parties' dispute with respect to these RFP “centers on ChemTreat's efforts to respond to the Requests not as they were written, but as ChemTreat wishes they were written.” [Doc. 97 at Page ID # 1303]. Plaintiffs refer to ChemTreat's objection to Plaintiffs' use of the terms “trade secrets,” “proprietary information,” “non-public business information,” and “Ecolab Documents,” which Plaintiffs apparently did not define, and ChemTreat's objection to Plaintiffs' definition of “Confidential Information.” Instead of using Plaintiffs' definition of Confidential Information and/or the ordinary meaning of the other terms, ChemTreat noted it would consider each of these terms as meaning: *15 information contained in a Document that (1) bears indicia that it originated from or belongs to Ecolab, (2) does not appear to have been shared or designed to be shared with one or more third parties or made publicly available at any time, and (3) was allegedly possessed by Ridley at the time he stopped working at Ecolab (as set forth in Ecolab's Second Amended Complaint). [See Doc. 95-3 at Page ID # 1174, 1190-93]. ChemTreat contends its definition is appropriate because it “properly embraces [the] precise statutory requirements” for information to constitute a “trade secret” under the DTSA and the TUTSA [Doc. 107 at Page ID # 1372]. This limitation is proper, ChemTreat contends, because Plaintiffs have asserted only trade secret claims against it, such that any Ecolab documents that do not constitute trade secrets are not relevant. ChemTreat also argues that producing documents that do not meet its own definition of Confidential Information “would be burdensome and violate Rule 26's proportionality requirement,” because such a production would include documents “that are neither confidential to Ecolab nor Ecolab's protectable trade secrets, such as publicly available information and competitive analyses conducted by ChemTreat based on that publicly available information.” [Id. at page ID # 1374-75]. The Court has searched the various filings related to the motion to compel and was not able to find where Plaintiffs defined “Confidential Information” or “Ecolab Documents.” So far as the Court can tell, the discovery requests themselves were not filed; rather, Plaintiffs filed ChemTreat's responses, which is sufficient to comply with applicable local rules, but leaves the Court without any definitions that may have been provided in connection with the discovery requests. As such, the Court is unable to determine whether Plaintiffs' definitions call for the production of irrelevant information or are otherwise overbroad. Equally unhelpful, ChemTreat provided no proof supporting its broad claims of burdensomeness and disproportionality [see Doc. 107]. As to any alleged “burdensomeness,” the party resisting discovery, ChemTreat undoubtedly bears the burden “to demonstrate with specificity that a discovery request is unduly burdensome or that the discovery sought is not discoverable under the Federal Rules.” Brothers Trading Co., Inc. v. Goodman Factors, No. 1:14-cv-975, 2016 WL 9781140, at *1 (S.D. Ohio Mar. 2, 2016) (collecting cases; further holding Rule 26 “does not place a burden of proving proportionality on the party seeking discovery”); see also Home Fed. Bank of Tenn. v. Home Fed. Bank Corp., No. 3:18-CV-379-JRG-DCP, 2019 WL 11670621, at *2 (E.D. Tenn. Sept. 18, 2019) (“A responding party must show specifically how each discovery request is burdensome and oppressive by submitting affidavits or offering evidence revealing the nature of the burden. The mere statement by a party that an interrogatory or request for production is overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection.” (citation omitted)). Moreover, ChemTreat's argument regarding Plaintiffs' abandoned/dismissed claims is not persuasive. In their motion to compel, Plaintiffs cite to paragraphs of their second amended complaint that allege Ridley violated his employment contract by transferring and uploading Ecolab's documents to his ChemTreat devices, which may not require that the transferred documents themselves constitute trade secrets. While these claims may not be directed against ChemTreat, they remain part of the litigation. *16 Plaintiffs also point out that the definition of “Confidential Information” in Ridley's employment contract—which Plaintiffs allege Ridley breached with ChemTreat's encouragement and consent—includes within its scope information that does not necessarily meet ChemTreat's proposed definition of “Confidential Information.” [See Doc. 46 at Page ID # 393, ¶ 33 (excluding “Trade Secrets” from definition of “Confidential Information”)]; see also Neale v. Coloplast Corp., No. 1:18-cv-00274-TRM-SKL, 2020 WL 6948361, at *2 (E.D. Tenn. Nov. 2, 2020) (“Relevance ‘has been construed broadly to encompass any matter that bears on ... any issue that is or may be in the case.’ ” (quoting Oppenheimer Fund, Inc. v. Sanders, 347 U.S. 340, 351 (1978))). The Court finds Plaintiffs appropriately seek production of documents beyond those that fall within the scope of the second element ChemTreat's proposed definition, as such documents are generally discoverable in light of Plaintiffs' claims against ChemTreat, Defendant Ridley, or both. Relatedly, and to address ChemTreat's largely unsupported proportionality argument, the Court finds the other terms that Plaintiffs use to describe responsive documents in RFP no. 15— “proprietary information,” “non-public information,” and “trade secrets”—set appropriate limits on the types of communications/documents Plaintiffs should be permitted to discover as to RFP nos. 15, 16, and 17. These terms have sufficiently ordinary and accepted meanings in the context of discovery, and the parties should be able to reach an agreement on appropriate search terms. Plaintiffs also take issue with the first element in ChemTreat's proposed definition, arguing: “ChemTreat's arbitrary requirement that, in order to be protected, a document must ‘bear[ ] indicia that it originated from or belongs to Ecolab’ infers that said documents must contain a physical marking connecting it to Plaintiffs. Under this definition, ChemTreat could withhold from production documents that, while not specifically bearing Plaintiffs' logo or other marking, were clearly misappropriated from Plaintiffs based on other obvious contextual clues. [Doc. 97 at Page ID # 1304]. In its response, ChemTreat clarifies that it “intended to apply the dictionary definition of ‘indicia’ as ‘signs’ or ‘indications’—i.e., not simply the use of ‘Plaintiffs' logo,’ but also other circumstances (in Plaintiffs' parlance, ‘contextual clues’) suggesting that a document originated from or belonged to Plaintiffs.” [Doc. 107 at Page ID # 1372 n.16]. In their reply, Plaintiffs continue to object to any requirement of “physical indicia,” emphasizing that such a test could be subjectively administered by ChemTreat. In light of ChemTreat's clarification, the Court finds the “indicia” limitation reasonable and appropriate. Plaintiffs do not adequately explain why they would be entitled to information that does not reasonably indicate it originated from or belonged to Plaintiffs before it came into ChemTreat's possession. Plaintiffs also object to the third element in ChemTreat's definition—information allegedly possessed by Ridley at the time he stopped working at Ecolab. Plaintiffs raised this issue in the for the first time in their reply brief, so it need not be considered. 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).[11] Nevertheless, the Court agrees with Plaintiffs that this element of ChemTreat's test is unduly restrictive in light of the allegations in the second amended complaint. *17 Accordingly, the motion to compel is GRANTED IN PART AND DENIED IN PART as to RFP nos. 15, 16, and 17. The motion is GRANTED to the extent RFP nos. 15, 16, and 17 seek 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. The motion is DENIED as to RFP nos. 15, 16, and 17 in all other respects. D. RFP No. 34 – Documents Concerning ChemTreat's plans for Ridley In RFP no. 34, Plaintiffs request: “All Documents and Communications concerning business plans, growth plans, marketing plans or similar documents relating to Ridley's employment at ChemTreat.” [Doc. 95-3 at Page ID # 1212]. In their brief, Plaintiffs indicate they later narrowed RFP no. 34 to include only such documents “that either were prepared by Ridley or specifically mention Ridley.” [Doc. 97 at Page ID # 1306]. In its response, ChemTreat objects to RFP no. 34 only on the basis that it seeks information that is not relevant. It argues that the only “business plans”[12] that are relevant and discoverable are those that “relate in some way to customers Plaintiffs contend are covered by Ridley's agreement with Plaintiffs or customers implicated by the purported trade secrets Ridley allegedly misappropriated.” [Doc. 107 at Page ID # 1376]. Thus, ChemTreat argues, “internal business plans related to Ridley have no relevance to the parties' claims or defenses,” unless the plans relate to such customers [id.]. By way of example, they assert “a business plan that simply identified the number of employees ChemTreat intended to allocate to a particular region or territory—even if referencing or prepared by Ridley—has no relevance to whether ChemTreat induced Ridley to misappropriate Plaintiffs' alleged trade secrets, or to solicit customers covered by his restrictive covenant.” [Id. at Page ID # 1375-76]. Plaintiffs reply that ChemTreat's proposal “necessarily excludes highly relevant documents from production.” [Doc. 112 at Page ID # 1416]. They then offer their own example, arguing that if ChemTreat “outlined a plan for Ridley to use some of Plaintiffs' misappropriated information to solicit a customer that he had not serviced while working [for] Plaintiffs, documents setting forth those plans are still relevant.” [Id.]. On one hand, RFP no. 34 is overbroad as written and as limited to documents authored by or referencing Ridley. Plaintiffs have not shown that all such documents and communications are relevant to the parties' claims, counterclaims, and defenses, even when those claims are broadly construed. See, e.g., Trek, Inc. v. ITR Am., LLC, No. 2:16-cv-13767, 2017 WL 11533311, at *4 (E.D. Mich. Nov. 9, 2017) (“Trek alleges that its protected business information, including pricing, quotes, and customer information, were improperly taken by Davis and Marcum and used by ITR. Trek is entitled to documents from ITR which may demonstrate that the information was improperly taken and used, specifically information related to pricing and customers. In addition, Trek is entitled to documents relating to ITR's profits, which may be relevant to both liability and Trek's calculation of damages.”). On the other hand, ChemTreat's proposed limitation ignores that Plaintiffs' allegations go beyond trade secrets and the non-solicitation clause in Ridley's employment contract. *18 On balance, the Court finds the appropriate resolution is to limit production to documents/communications prepared by or referencing Ridley that are related to any clients identified in connection with the Court's resolution of interrogatory no 1. Accordingly, the motion to compel [Doc. 95] is GRANTED IN PART AND DENIED IN PART as to RFP no. 34. The motion is GRANTED to the extent RFP no. 34 seeks documents/communications prepared by or referencing Ridley that are related to any clients identified in connection with the Court's resolution of interrogatory no. 1. The motion is DENIED as to RFP no. 34 in all other respects. E. RFP Nos. 12, 14, 46, 47, & 48 – Documents Concerning ChemTreat's Recruitment of Employees Other than Ridley and Tyler Bates RFP nos. 12, 14, 46, 47, and 48 request the following: RFP No. 12 – All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning efforts by ChemTreat or anyone acting on behalf of ChemTreat to recruit other employees from Ecolab at any time on or after January 1, 2020. RFP No. 14 - All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) between You and any current or former employee of Ecolab concerning potential employment with ChemTreat. This Request covers any responsive Communication which You sent, received, and/or were copied on. RFP No. 46 - All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning efforts by ChemTreat or anyone acting on behalf of ChemTreat to recruit Ed Swenson, including all Communications with Mr. Swenson about potential employment at ChemTreat. RFP No. 47 - All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning efforts by ChemTreat or anyone acting on behalf of ChemTreat to recruit Aaron Beranek, including all Communications with Mr. Beranek about potential employment at ChemTreat. RFP No. 48 – All Documents and Communications (including emails, text messages, in-app private messages and chats in software applications with chat functions such as Microsoft Teams, WhatsApp or LinkedIn, and voicemails) concerning efforts by ChemTreat or anyone acting on behalf of ChemTreat to recruit Corey DeMarco, including all Communications with Mr. DeMarco about potential employment at ChemTreat. [Doc. 95-3 at Page ID # 1186-87, 1189-90, 1224-1227 (emphasis added)]. ChemTreat initially responded to these RFP by offering to produce non-privileged documents concerning Ridley's communications with Tyler Bates, a former employee of Plaintiffs who Ridley allegedly recruited to work for ChemTreat. It asserted that any alleged efforts to recruit any other employees were not relevant because unsuccessful attempts to recruit Plaintiffs' employees were not actionable. Rather, both Tennessee and federal law include a breach of the underlying contract as an element of any tortious interference with contractual relationship claim [see, e.g., Doc. 95-3 at Page ID # 1187, 1225]. *19 Plaintiffs, of course, agree the Tyler Bates documents are discoverable, but they emphasize that ChemTreat should be required to produce documents concerning recruiting of other former employees of Plaintiffs as well. They point to the following allegations in their second amended complaint: 118. Upon information and belief, Defendants engaged in activities to solicit and hire Nalco/Ecolab's employees and steal Nalco/Ecolab's customers and business.” .... 232. .... ChemTreat has also intentionally and without justification interfered with Nalco/Ecolab's contractual relationship with other employees who are subject to similar covenants and restrictions by hiring away such employees from Nalco/Ecolab and inducing, aiding and abetting them to violate their own employment agreements.” [Doc. 97 at Page ID # 1309; Doc. 46 at Page ID # 409, 434]. Nowhere in the second amended complaint do Plaintiffs identify the “other employees” who allegedly violated their own employment agreements at ChemTreat's behest. ChemTreat does not address the paragraphs from the second amended complaint quoted directly above in its response. Instead, it reiterates its argument that “an underlying breach of contract is an essential element of any contractual interference claim under Tennessee law,” and the “only former employee as to whom Plaintiffs have alleged a breach of contract is Ridley.” [Doc. 107 at Page ID # 1376]. It also points out that the individuals identified in RFP nos. 46, 47, and 48 all relate to individuals who appear to still work for Plaintiffs. It argues, “if Plaintiffs truly believed” that these individuals breached any contractual obligation, Plaintiffs “presumably would not still employ those three individuals.” [Id. at Page ID # 1377 n.19]. In reply, Plaintiffs do not dispute that they still employ the three individuals identified in RFP nos. 46, 47, and 48, and they do not contend these individuals breached their employment agreements. They argue information regarding the solicitation of the individuals is nevertheless discoverable because it “will support the allegations of the Second Amended Complaint ... and help establish a larger pattern evidencing ChemTreat's efforts to misappropriate Plaintiffs' confidential and trade secret information through its recruitment of Plaintiffs' employees.” [Doc. 112 at Page ID # 1418]. Based on the parties' arguments, the Court finds Plaintiffs have not established the relevance of all the requested documents concerning the three individuals who remain employed by Plaintiffs, although they are entitled to some such documents. Plaintiffs have sufficiently established the relevance of information regarding some former employees, even if Plaintiffs have not specifically alleged breach of contract claims against such former employees. However, the Court will require Plaintiffs to first identify by name any such former employees who meet certain parameters set forth below. Accordingly, the motion to compel is GRANTED IN PART AND DENIED IN PART as to RFP nos. 12, 14, 46, 47, and 48. The motion is GRANTED as to RFP nos. 12 and 14, but only to the extent the requested documents/communications are with or concern persons, identified by name by Plaintiffs, who had employment contracts with Plaintiffs and were recruited by ChemTreat during the time period that Ridley was recruited (Fall of 2020) and/or employed by ChemTreat. The motion is DENIED as to RFP nos. 12 and 14 in all other respects. The motion is GRANTED as to RFP Nos. 46, 47, and 48, but only to the extent the requested documents/communications are with or concern the persons named in RFP Nos. 46, 47, and 48 during the time Ridley was recruited or employed by ChemTreat. The motion is DENIED as to RFP Nos. 46, 47, and 48 in all other respects. F. Other Remaining Issues *20 ChemTreat initially objected to a number of the RFP at issue to the extent such RFP “seek[ ] Documents that are not within ChemTreat's possession, custody, or control, such as LinkedIn and WhatsApp messages,” and 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. With respect to ChemTreat's alleged use of boilerplate objections, this Court “strongly condemns the practice of asserting boilerplate objections to every discovery request.” Neale, 2020 WL 6948361, at *2 (citation omitted); Knox Trailers, Inc. v. Clark, No. 3:20-cv-137-TRM-DCP, 2022 WL 831431, at *5 (E.D. Tenn. Mar. 18, 2022). “Discovery is not a game of semantics.” Neale, 2020 WL 6948361, at *4. However, the Court also will not consider passing and general complaints about “boilerplate” objections in the context of addressing a motion to compel or other discovery dispute where the parties have addressed the issues truly in dispute in extensive briefing. While ChemTreat appears to argue the sufficiency of is Rule 34(b)(2)(C) compliance in its Supplemental Brief, allegedly because the topic was disingenuously raised by Plaintiffs in its reply or Notice, that issue was not addressed in the motion to compel as to any specific discovery response; and, thus, it will not be considered further in this Order. See Walter, 20128 WL 3848400, at *2 (finding that “[c]ourts generally do not consider issues raised for the first time in a reply brief” and citing cases); see also Estate of Barnwell v. Grigsby, 801 F. App'x 354, 372 (6th Cir. 2020) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). Of course, in responding to discovery, all parties must fully comply with Rule 34, including the requirement of Rule 34(b)(2)(C), that Rule 34 discovery responses “state whether any responsive materials are being withheld” on the basis of a particular objection. As noted in comments to Rule 34(b)(2)(C): [A]n objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.” Fed. R. Civ. P. 34(b)(2)(C) advisory committee's note to 2015 amendment; see also Hayse v. City of Melvindale, No. 17-13294, 2018 WL 1176493, at *6-7 (E.D. Mich. Apr. 10, 2018) (defendants violated Rule 34(b)(2)(C) where they relied on boilerplate objections and “repeatedly stated that, subject to their objections, they would or may provide some discovery” without providing any further information). Finally, Plaintiffs have not shown ChemTreat acted in bad faith or that its position on the 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. 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”). IV. CONCLUSION *21 For the reasons stated herein, and to the extent set forth above, Plaintiffs' motion to compel [Doc. 95] is GRANTED IN PART AND DENIED IN PART. If they have not already done so, Plaintiffs are ORDERED to produce their information noted above in connection with interrogatory no. 1 within THREE DAYS of the entry of this Order. ChemTreat is ORDERED to produce its information noted above in connection with interrogatory no. 1 within SEVEN DAYS. For the additional Rule 34 responses and productions ordered herein, with the exception of RFP nos. 12, 14, and 34, ChemTreat SHALL provide same within TEN DAYS of entry of this Order. Regarding RFP nos. 12 and 14, Plaintiffs are ORDERED to identify by name the former employees who meet the requirements of this Order as set forth above within THREE DAYS of entry of this Order. ChemTreat SHALL provide all documents responsive to RFP nos. 12 and 14 regarding the so identified former employees within SEVEN DAYS thereafter. Regarding RFP no. 34, ChemTreat SHALL provide all responsive documents within SEVEN DAYS. As, and to the extent, required by the Federal Rules of Civil Procedure, all parties remain responsible for supplementing discovery responses as discovery progresses. SO ORDERED. Footnotes [1] Defendants in this case are ChemTreat (“ChemTreat”) and Anthony Ridley (“Ridley” and sometimes collectively, “Defendants”). The instant motion to compel concerns only ChemTreat's discovery responses. [2] On January 26, 2023, Plaintiffs filed what they termed a “Notice of Completion of Post-Motion Meet and Confer Process Regarding Plaintiffs' Motion to Compel Discovery,” which stated the parties were unable to resolve any of the discovery disputes addressed in the motion to compel [Doc. 119 (“Notice”)]. The Notice also included further argument/disparagement of ChemTreat's discovery responses and conferral efforts. Apparently not to be outdone, after business hours on January 27, ChemTreat filed what it purports to be its “LR7.1D Brief on Plaintiffs' Motion to Compel” [Doc. 120 (“Supplemental Brief”)]. The Supplemental Brief claims “Plaintiffs have made misrepresentations to the Court about ChemTreat's positions” in Plaintiffs' reply and Notice, mostly concerning an argument regarding “boilerplate” objections and searches for information [Doc. 120 at Page ID # 1520]. Eastern District of Tennessee Local Rule 7.1(d) provides that “a party may file a supplemental brief of no more than 5 pages to call to the Court's attention developments occurring after a party's final brief is filed.” A court “does not have to accept every filing submitted by a party.” Ross Brovins & Oehmke, P.C. v. Lexis Nexis Grp., 463 F.3d 478, 488 (6th Cir. 2006). However, supplemental briefs may be permitted “in the interests of justice when the proposed submission contains new authority or evidence that was not available to the movant in the exercise of reasonable diligence when the original briefs were filed.” Valassis Commc'ns, Inc. v. News Corp., No. 13-14654, 2015 WL13050049, at *1 (E.D. Mich. Dec. 23, 2015) (internal quotation marks and citations omitted). A supplemental brief may not raise arguments for the first time which could have been raised in earlier briefs or are outside of the scope of the issue to be addressed. 4th Leaf, LLC v. City of Grayson, 425 F. Supp. 3d 810, 826 (E.D. Ky. 2019). The Court does not consider either the Notice or the Supplemental Brief to be a proper use of Local Rule 7.1(d) and the parties should refrain from any further filings of this nature without first seeking Court permission. The Court concludes it is unnecessary to spend its resources to further address the accusations and counteraccusations contained in the Notice and Supplemental Brief. [3] At the hearing, Plaintiffs entered two exhibits into the record without objection. The parties must comply with the Court's instructions regarding presenting evidence at hearings in the future [see, e.g., Doc. 121 n.1]. No testimony or other evidence was offered regarding either exhibit, although there was argument as to both exhibits. It appears that the proffer of these documents as evidence was for the main purpose of illustrating Plaintiffs' argument concerning the types and extent of electronically stored information (“ESI”) that they contend Ridley misappropriated and deleted from their cloud-based storage system (Plaintiffs' Ex. 1), and to provide an example of a communication between ChemTreat and Ridley while Ridley was still employed by Plaintiffs that was very recently produced by ChemTreat in discovery (Plaintiffs' Ex. 2). Neither document is sealed. [4] The Court uses the term “client” instead of “customer” in its analysis of interrogatory no. 1 to track the language used in the interrogatory. The parties appear to use the terms interchangeably, and the Court refers to “customers” in other sections of this Order, often for the sake of readability, likewise without drawing any distinction between the two terms. [5] ChemTreat also characterizes the relevant client list as being Plaintiffs' “customers within the scope of Ridley's non-solicitation clause or customers about whom Plaintiffs contend Ridley misappropriated trade secret information.” [Doc. 107 at Page ID # 1363]. [6] Both sides continue to make claims about the other's spoliation of ESI. As neither side has filed a motion to address alleged spoliation yet, nothing in this Order should be construed as addressing issues or claims of spoliation. Similarly, this Order does not address whether particular allegedly misappropriated or spoliated ESI actually constitutes trade secrets or other protected information sufficient to support a claim or counterclaim. [7] Moreover, the attached letters do not suffice for argument on a motion or come within the Court's requirements for motions. See E.D. Tenn. L.R. 5.1 & 7.1. The Court does not consider letters, emails, or other communications attached to briefs as motion argument unless the attachments are specifically incorporated into the briefs, meet all applicable rules for said briefs, and are counted in the applicable page limitations for the briefs. The parties may, of course, support specific factual allegations with record citations to identified portions of attachments. [8] Plaintiffs have also asserted state law claims, and Plaintiffs cite to at least one Tennessee Court of Appeals decision, but neither party advocates for the application of state law on privilege in the context of the motion to compel, nor do they argue whether there are any significant differences the Court should consider. [9] As a preliminary matter, the Court will assume, without deciding, that an attorney-client privilege or work product protection is properly claimed by ChemTreat as to the investigations. Generally, Rule 26(b)(5) requires a party asserting privilege when withholding otherwise discoverable information to provide a privilege log. See, e.g., SPX Corp. v. Bartec USA, LLC, 247 F.R.D. 516, 527 (E.D. Mich. 2008). Although it appears that no privilege log has been produced concerning the investigations (or other discovery by either party), Plaintiffs seemingly do not contest the application of attorney-client privilege or work product protection to the investigations; instead, they focus on the issue of waiver. [10] While Plaintiffs do not specifically cite to ChemTreat's counterclaims in their motion to compel, they do argue ChemTreat put the investigation “fully into play and waived attorney-client privilege,” when ChemTreat “affirmatively plac[ed] its internal investigation at issue in the case.” [Doc. 97 at Page ID # 1297-98]. Accordingly, it is proper to consider the counterclaims. In addition, ChemTreat included emails in support of its motion to dismiss which contain such statements as: “The document we shared with you was the only Nalco/Ecolab document located during the forensic review of ChemTreat's systems.” [Doc. 52-3 at Page ID # 508-09]; “An independent forensic examiner has since examined the laptop, but was unable to recover files from the period of Mr. Ridley's use of the device. While ChemTreat thus does not have an image of Mr. Ridley's original laptop, it does have CrowdStrike logs, which we understand provide much of the information that would have been recovered from a forensic image of Mr. Ridley's ChemTreat-issued laptop.” [Id. at Page ID # 509]; and “We have not seen evidence that Mr. Ridley deleted Nalco or Ecolab information from ChemTreat systems.” [Id.]. [11] If Plaintiffs raised this issue in their October 2022 letter to ChemTreat [Doc. 95-4], they do not provide a citation, and the RFP are not numbered in that document. Moreover, as discussed above, the attached letters do not suffice for argument on a motion or come within the Court's requirements for motions. See E.D. Tenn. L.R. 5.1 & 7.1; see also supra note 5; Emerson, 446 F. App'x at 736 (“judges are not like pigs, hunting for truffles”). [12] The Court construes ChemTreat's use of the term “business plan” in this section of its brief to refer to all of the types of “plans” listed in RFP no. 34 (“business plans, growth plans, marketing plans or similar documents”).