NAV CONSULTING, INC., Plaintiff, v. ABHISHEK KUMAWAT, SUDRANIA FUND SERVICES, CORP., Defendants Case No. 22 C 3624 United States District Court, N.D. Illinois, Eastern Division Filed: March 26, 2024 Weisman, M. David, United States Magistrate Judge ORDER *1 This case is before the Court on defendants’ motions to issue additional interrogatories and to expedite the answers to those interrogatories [ECF 224] and to compel plaintiff to provide Rule 26(a) disclosures and for sanctions [ECF 230]. For the reasons provided below, both motions are granted in part and denied in part. Additional Interrogatories Federal Rule of Civil Procedure 33 limits to twenty-five the number of interrogatories a party may serve on another. However, a Court may give a party leave to serve additional interrogatories if doing so is consistent with Rule 26(b)(1) and (2). Id. Defendants have already issued twenty-five interrogatories but say they need to issue more because plaintiff has not disclosed its damages computation or identified the documents it contends defendant Kumawat took from it. In its June 30, 2023 Rule 26(a)(1) disclosures regarding damages, plaintiff said: As a result of Defendants’ actions, Plaintiff has and will continue to suffer irreparable harm, for which monetary damages alone are insufficient. As a result, total potential damages are practically impossible to calculate at this time. As discovery continues, Plaintiff will supplement this Response as necessary with additional information related to damages. (ECF 224-5 at 5.) Subsequently, on February 21, 2024, plaintiff amended its disclosures and said this: As a result of Defendants’ actions, Plaintiff has and will continue to suffer irreparable harm, for which monetary damages alone are insufficient. As a result, total potential damages are practically impossible to calculate at this time. As part of its damages, Plaintiff is assessing the disgorgement of profits related to Defendants’ acts. As of the date of these amended initial disclosures, Plaintiff is awaiting the production of a complete, comprehensive, and up-to-date list of Formidium clients pursuant to the Court's December 12, 2023 Opinion and Order. Plaintiff cannot assess this component of its damages calculations until such comprehensive list has been produced. As discovery continues, Plaintiff will supplement this Response as necessary with additional information related to damages. (ECF 224-6 at 11.) Defendants also asked plaintiff to identify the documents it contends defendant Kumawat took with him when he left the company. Plaintiff said the interrogatory was premature, and that plaintiff would supplement its answer “as discovery proceeds.” (ECF 224-3 at 7.) In February 2024, plaintiff supplemented its answer as follows: “Plaintiff states it has not identified, to date, any physical Documents belonging to Plaintiff that Defendant Kumawat took with him upon departing NAV Consulting, Inc. Plaintiff reserves its right to supplement its answer to this Interrogatory as additional information becomes available.” (ECF 224-7 at 7-8) (emphasis added). In short, though plaintiff filed this suit in July 2022, as of February 2024, it had not identified the non-physical documents, if any, it claims defendant Kumawat took or disclosed its damages calculations to defendants. Defendants are entitled to know both. Thus, the Court will allow defendants to serve proposed interrogatories: (1) proposed interrogatories 5 and 6, which ask plaintiff to identify each business relationship it claims defendants harmed and to describe the injury plaintiff sustained and the facts in support; (2) proposed interrogatories 7 and 8, which ask plaintiff to identify the potential business relationships that plaintiff contends defendants harmed, describe the injury plaintiff claims to have sustained, and the factual basis for the damages plaintiff claims; and (3) proposed interrogatories 9 and 10, which ask plaintiff to identify each lost sale or source of revenue, its value, and the witnesses and documents supporting plaintiff's claims and provide a full computation of each category of monetary relief plaintiff seeks. (See 224-1 & 2.) *2 Defendants cannot, however, serve the remaining proposed interrogatories. (See id. proposed interrogatories 1-3, asking plaintiff to identify each trade secret it contends defendants misappropriated, describe how each was developed, and set forth the facts supporting its claim; proposed interrogatory 4, which asks plaintiff to identify each contractual breach and incident of tortious interference defendants caused and the facts and witnesses supporting their claims; proposed interrogatories 11 and 12, which ask plaintiff to identify every source of ESI that may contain relevant documents and every source of ESI possessed by plaintiff's witnesses.) While these interrogatories seek information relevant to the case, defendants have not shown that plaintiff thwarted their previous efforts to obtain it. Absent such a showing, there is no reason to allow defendants to serve these interrogatories. In sum, the Court grants in part and denies in part defendants’ motion to issue additional interrogatories and to expedite the answers [ECF 224] and orders plaintiff to answer proposed interrogatories 5-10, in full, no later than April 12, 2024. Rule 26(a) Disclosures & Sanctions [ECF 230] In relevant part, Federal Rule of Civil Procedure 26(a)(1) states: [A] party must, without awaiting a discovery request, provide to the other parties: .... (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; [and] (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered. In its disclosures, plaintiff identified the following documents: “1. Defendant Kumawat's employment agreements with NAV; 2. Defendant Kumawat's personnel file with NAV; 3. NAV's employee handbook; 4. Non-privileged email communications regarding Defendant Kumawat's job duties; and 5. Screenshots of Defendant Kumawat's unauthorized access of NAV's systems.” (ECF 224-5 at 5.) In its amended disclosures, plaintiff added one more category of documents—“6. Any items produced or exchanged by either Party throughout the course of this litigation.” (ECF 224-6 at 10-11.) Moreover, as discussed above, plaintiff said in both its disclosures and amended disclosures that it was unable to calculate its damages. Plaintiff says it complied with its document disclosure obligations because it produced to defendants any documents it did not specifically identify in its disclosures, a procedure contemplated by Rule 26(a)(1). Defendants say that cannot be true given the paucity of plaintiff's production. Unfortunately, the Court cannot resolve this dispute on the record before it. However, the Court cautions both parties that they cannot use in this litigation any document they did not specifically identify or produce in their 26(a)(1) disclosures. Plaintiff also says it complied with its damages disclosure obligations because it identified categories of damages it seeks—diminution of trade secret, proprietary, and confidential information, harm to client relationships, goodwill, and reputation, and loss of its competitive advantage as damages—in its verified complaint. (ECF 248 at 6.) But Rule 26(a)(1) requires plaintiff to disclose “a computation of damages of each category of damages” it claims along with the documents supporting the computations, not just categories of damages. Fed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added). Plaintiff claims it cannot calculate its damages because those calculations depend on information from defendants that has been produced only recently, or not at all. Even if that is true, an issue the Court does not decide, plaintiff had to have made some kind of damages calculation before it filed suit to determine whether its claims were both viable and worth pursuing. See Got Docs, LLC v. Kingsbridge Holdings, LLC, 657 F. Supp. 3d 1034, 1043 (N.D. Ill. 2023) (“To establish a violation of the DTSA or ITSA, Plaintiffs must prove that (1) a trade secret existed; (2) it was misappropriated through improper acquisition, disclosure, or use; and (3) the misappropriation damaged the trade secret's owner.”) (quotation, citations and footnote omitted). *3 Plaintiff's failure to timely provide computations as required by Rule 26 (and to timely supplement such computations) not only violates its obligations under the Rule, but also thwarts the edict of Federal Rule of Civil Procedure 1, which requires that Federal Rules of Civil Procedure to be employed “to secure the just, speedy, and inexpensive determination of every action and proceeding.” To that end, the Court must consider the amount of damages at issue in guiding the litigation process. See, e.g., Fed. R. Civ. P. 26(b)(1) (requiring the Court to consider “the amount in controversy” in assessing the “proportional needs” of discovery in a matter). Based on the current disclosures, the plaintiff suggests that “total potential damages are practically impossible to calculate at this time.” If two years into robust litigation this assertion remains true, another reasonable conclusion might be that damages are illusory or speculative at best. In similar cases, the Court has found this type of response to be a recipe for continued litigation costs not justified under Rule 1 or legally defensible under Rule 26. Accordingly, plaintiffs must produce the damages calculations it has made to date, and the documents supporting them, no later than April 12, 2024. The Court declines, however, to issue any kind of sanction. Though plaintiff has not complied with its disclosure obligations, discovery remains open, depositions have not been completed, and as discussed above, the Court is allowing defendants to serve additional damages interrogatories. Thus, there is no prejudice to defendants at this point. Accordingly, the Court denies defendants’ request for sanctions. SO ORDERED. ENTERED: March 26, 2024