SmartLinx Solutions, Plaintiff, v. Vitzeslav Zeif, Defendant Civil Action No. 2:21-cv-711-BHH United States District Court, D. South Carolina, Charleston Division Filed December 15, 2022 Baker, Mary G., United States Magistrate Judge ORDER *1 This matter is before the undersigned United States Magistrate Judge upon Defendant's Motion to Compel (Dkt. No. 53). By the Order of the Honorable Bruce Howe Hendricks, this motion was referred to the undersigned. (Dkt. No. 60.) For the reasons set forth below, the Motion is granted in part, denied in part, and certain portions are held in abeyance. FACTUAL BACKGROUND Plaintiff SmartLinx Solutions LLC (“SmartLinx”) provides workforce management and scheduling solutions in the long-term care and nursing marketplace. (Am. Compl. ¶ 4, Dkt. No. 24.) SmartLinx distinguishes itself from other workforce management and placement companies through its scheduling products and software—Time and Attendance (“TA”) and Schedule Optimizer (“SO”), with the latest scheduling version including a feature called “Ideal Schedule.” (Id. ¶ 11.) Over the last twenty (20) years, SmartLinx has expended millions of dollars in research, development, and implementation of the scheduling software technology, including TA and SO. (Id. ¶ 12.) This scheduling technology is SmartLinx's competitive edge in the marketplace and generates more than half of SmartLinx's annual revenue. (Id. ¶ 13.) The scheduling software technology, and particularly the recently implemented and trademarked Ideal Schedule feature, was designed to support unique and complex scheduling needs of the long-term care and nursing industry. (Id. ¶ 14.) The technology provides SmartLinx a comprehensive plan of a facility's scheduling needs based on certain criteria, which SmartLinx contends is unrivaled in the industry and affords the company a competitive advantage. (Id.) During the year preceding the filing of the Amended Complaint, SmartLinx worked with other staffing agencies to roll out a new program that integrates the scheduling needs of nursing facilities with the supply of nurse staffing agencies through one interface provided by SmartLinx. (Id. ¶ 19.) Defendant Vitzeslav Zeif (“Zeif”) was directly involved in the development of this program. (Id.) SmartLinx hired Zeif in 2008 as Project Manager. (Id.) Zeif's role with SmartLinx evolved over the course of thirteen years, from Service/Support to Product Management. (Id.) Throughout his employment with the company, SmartLinx issued Zeif, among other things: (1) a Samsung Galaxy Note 9; (2) an iPad; and (3) a Dell and Lenovo laptop (“SmartLinx Electronic Devices”) for use in connection with his employment responsibilities. (Id. ¶ 20.) During his tenure, Zeif worked hand in hand with SmartLinx's development team in developing and enhancing the SmartLinx scheduling software application and had direct access to the source code underlying the software. (Id. ¶ 21.) SmartLinx's source code is the unique and most fundamental component in the development of its scheduling software application, including the customization of software installations and development of critical features to the scheduling software application, such as Ideal Schedule. (Id. ¶ 22.) SmartLinx describes the source code as the “DNA” of SmartLinx's scheduling technology. (Id.) SmartLinx's source code is not accessible to anyone outside of the company and, within the company, it is only accessible on a confidential and secured basis to those involved with its development. (Id. ¶ 23.) *2 Zeif had substantial exposure to SmartLinx's confidential and proprietary information and management-level proprietary data (“Proprietary Information”). (Id. ¶ 28.) As such, SmartLinx required Zeif to sign a document titled, “Non-Disclosure and NonCompete Agreement” (“NDA”). (Id., Ex. A.) Zeif signed the NDA on April 10, 2009, and the form was acknowledged the same day by Georgia Haug on behalf of SmartLinx. (Id.) In September 2009, Zeif was promoted from Project Manager to the position of Director of Support and Implementation. (Id. ¶ 29.) The NDA states that the signatory “will maintain appropriate personal and equipment security precautions in order to protect and maintain the confidential nature of all such materials.” (Id. ¶ 31.) It further states that signatory “specifically acknowledge[s] the proprietary and confidential status of all customer lists customer data, requirements and development documentation, and source or object code supplied in the course of my job execution.” (Id.) The NDA also provides: “I also commit that for a period of two (2) years beyond the conclusion of my work with SmartLinx Solutions, LLC, I will not be employed either as an employee, contractor or consultant with any entity that is directly competitive with SmartLinx Solutions, LLC.” (Id. ¶ 32.) Zeif received and was subject to the terms and conditions of the policies contained in the SmartLinx Employee Handbook, including its Code of Conduct, Corrective Action and Personal Property & Workplace Searches policies. (Id. ¶ 33; Ex. B.) Among other things, the Employee Handbook requires that “[e]mployees ... exercise good judgment, good faith and loyalty to the Company in everyday performance,” and that employees are required to “[a]dhere to the terms of the SmartLinx Solutions, LLC ‘Non-Disclosure and Non-Compete Agreement’ signed upon hire and maintained in their personnel file.” (Id. ¶ 34.) SmartLinx produces and maintains trade secrets and confidential information that have independent economic value. (Id. ¶ 75.) SmartLinx has taken and continues to take appropriate steps to maintain the confidentiality of its trade secrets and confidential and proprietary information. (Id. ¶ 75.) The source code for its scheduling software is maintained in the SmartLinx GitHub repository that only employees in SmartLinx's Information Technology department with an authorized UserID and Password can access in its native electronic form. (Id. ¶ 75(a).) The company's practice and procedure is to remove access upon an employee's separation of employment from SmartLinx. (Id.) SmartLinx requires all employees to sign agreements that protect its confidential and proprietary information, including the NDA, in an effort to ensure that its trade secrets and other proprietary information are not improperly used or disclosed. (Id. ¶ 75(b).) On February 12, 2021, Zeig informed Jim Pirraglia, SmartLinx Vice President of Product, that he was resigning from his employment with SmartLinx and would be willing to give the Company six weeks’ notice of his departure. (Id. ¶ 38.) Then, on February 14, 2021, Zeif spoke with Marina Aslanyan, SmartLinx's Chief Executive Officer, and advised that he was resigning from the company with the intent to go to work for Respondent Intelycare, Inc. (“Intelycare”), which SmartLinx deems to be a direct competitor. (Id. ¶ 39.) Zeif stated that the job with Intelycare was an opportunity of a lifetime “too good to pass up” and that Intelycare wanted him “to come in and build a light version of a scheduling solution.” (Id. ¶ 40.) On the same day, Zeif was reminded of the restrictive covenant obligations in the NDA. (Id. ¶ 41.) SmartLinx contends that Zeif denied he had any agreement with the company imposing such obligations until he received a copy of the NDA from the company in the course of discussing his departure from employment. (Id.) SmartLinx avers that Intelycare directly competes with the company in the same market space—the nursing and long-term care industry—and provides its own scheduling software that currently has less functionality than the SmartLinx software. (Id. ¶ 44.) On March 2, 2020, as reported by Forbes, Intelycare announced the completion of their Series B funding round, totaling $45 million, with the goal to “disrupt nursing scheduling” through further development of its software solutions. (Id. ¶ 45.) SmartLinx contends Zeif was aware of Intelycare's intention to further develop software solutions in competition with those that he was intimately familiar with in his role at SmartLinx. (Id.) The referenced Forbes article reporting on Intelycare's business development stated that Intelycare's “software allows nursing facilities to instantly request staff and for clinicians to take control of their schedule, potentially picking up shifts in less than 72 hours, which gives flexibility to nurses booking shifts. An associated machine-learning algorithm also matches prices and people, and based on previous behaviour, [the cofounder of Intelycare stated] that it can predict staffing-gaps before they happen, which appears to be solving problems at scale.” (Id. ¶ 46; Ex. C.) SmartLinx asserts that its software and the Ideal Schedule feature already provide a majority of this functionality and the new program being rolled out with staffing agencies, discussed above, will further improve and optimize the nursing scheduling industry. (Id. ¶ 47.) SmartLinx avers that by hiring Zeif, Intelycare “will have” access to SmartLinx Proprietary Information, including its scheduling software source code, that will aid the development of Intelycare's competing scheduling software to “disrupt nursing scheduling” to the detriment of SmartLinx and its competitive advantage in this space. (Id. ¶ 51.) *3 SmartLinx alleges that in connection with his resignation from the company and anticipated employment with Intelycare, Zeif “engaged in a systematic and strategic raid of [SmartLinx's] most confidential business plans and proprietary information, in violation of the confidentiality provisions of the SmartLinx [NDA] that he signed, as well as in violation of the [Defend Trade Secrets Act], the [Computer Fraud and Abuse Act], and the [South Carolina Trade Secrets Act].” (Id. ¶ 50.) SmartLinx first learned of these alleged activities by performing an internal audit of its systems and information after Zeif advised of his intention to join Intelycare. (Id. ¶ 52.) SmartLinx avers that Zief breached the confidentiality provisions of the NDA by accessing the SmartLinx GitHub repository to download approximately 50,000 files containing SmartLinx Proprietary Information onto his Microsoft OneDrive cloud system and local C Drive. (Id. ¶ 53.) SmartLinx uses the OneDrive cloud system as its official cloud storage for sensitive proprietary information and the C Drive at issue was on Zeif's work computer provided by SmartLinx. (See id. Ex. J.) SmartLinx alleges that Zeif had no authorization or permission from the company to engage in this activity and none of the other SmartLinx developers engaged in the same or similar behavior. (Id. ¶ 54.) Rather, SmartLinx developers responsible for working on the SmartLinx Proprietary Information always accessed the source code through the GitHub repository without ever downloading these files to the OneDrive or local C Drive. (Id.) After being promoted to Director of Product Management in early 2020, Zeif was no longer responsible for coding and thus had no reason to access or work on SmartLinx Proprietary Information. (Id. ¶ 55.) SmartLinx expressly instructed Zeif to discontinue working on the source code; specifically, Mr. Pirraglia (SmartLinx Vice President of Product and Defendant's direct supervisor) and Ms. Aslanyan (SmartLinx CEO) had numerous conversations with Zeif from October 2020 through and including February 2021 in which they expressly instructed him not to work on the source code to ensure accountability of the development team. (Id. ¶ 56.) Zeif responded that he understood during those conversations and confirmed that he was no longer working on the source code. (Id.) SmartLinx alleges that in January 2021, after he began the interview process with Intelycare and less than a month prior to his resignation, Zeif again performed a mass download of computer files containing the SmartLinx Proprietary Information from the GitHub repository to his OneDrive and Local C Drive without the permission of SmartLinx. (Id. ¶ 57.) SmartLinx further alleges that Zeif's conduct of downloading SmartLinx Proprietary Information to his OneDrive and Local C Drive continued, including unauthorized downloads on the same days he gave verbal and written notice of his resignation, February 14, 2021 and February 24, 2021, respectively. (Id. ¶ 58.) The majority of the file downloads occurred during non-working hours on weekends and after Zeif gave notice of his resignation. (Id. ¶ 59.) Zeif has suggested, through his counsel and in an affidavit (Dkt. No. 11-1), that he downloaded the files for work purposes to correct or fix software “bugs.” SmartLinx alleges that its forensic audit of Zeif's work computer discredits this explanation. (See Kyprianou Decl., Dkt. No. 24-10.) SmartLinx contends the audit revealed that the downloaded files were not actually being modified by Zeif, but rather were being locally stored on Zeif's hard drive where he could access them independently. (Am. Compl. ¶ 60.) A comparison of Zeif's activities and other employees that accessed the GitHub repository during this time revealed that no other employee downloaded or copied the SmartLinx Proprietary Information in the same or similar manner. (Id.) During this time period, Zeif also used his SmartLinx issued work phone to communicate with Intelycare and to schedule his Zoom interviews with representatives of his prospective employer. (Id. ¶ 61.) Calendar entries obtained from Zeif's work phone reflect that from January 20, 2021 through February 8, 2021, Zeif engaged in multiple Zoom calls with varying levels of Intelycare senior management, including two meetings between Zeif and the Intelycare CEO. (Id. ¶ 62; Ex. E.) The process of interviewing Zeif for a position with Intelycare, which one of the Zoom meetings indicates is for a Product Director position, occurred over a sixteen (16) day period from January 20, 2021 to February 5, 2021, after which he was presented with an offer, with a follow up meeting on February 8, 2021. (Id. ¶ 63.) SmartLinx avers, upon information and belief, that Zeif received equity as part of the offer to join Intelycare. (Id. ¶ 64.) *4 On February 8, 2021, Zeif texted a fellow SmartLinx employee about his decision to leave SmartLinx, stating: “I'm gonna give them 6 weeks notice [sic] and moonlighting after.” (Id. ¶ 65.) SmartLinx contends this reflects Zeif's intent to act as a faithless servant against the interests of the company, and that this intent was manifested in mid to late February 2021 when Zeif accessed the GitHub repository to download thousands of files containing the SmartLinx Proprietary Information to his local devices. (Id. ¶ 66.) An audit of the internet searches performed by Zeif after giving notice of his resignation revealed two results that SmartLinx alleges are indicators of his intention to misappropriate SmartLinx source code. (Id. ¶ 67; Ex. F.) First, Zeif reviewed a software article entitled “Who Owns the Code?” which explains the issues associated with efforts of source code programmers to reuse code they had developed after moving to a new employer. (Id.) Second, Zeif conducted a search to determine how to use the remote desktop application to connect to a Windows 10 personal computer, which SmartLinx asserts would enable Zeif to remotely access SmartLinx systems from a separate, non-work computer. (Id.) In his affidavit, Zeif contests this explanation of the reasons for reviewing the referenced articles as baseless and provides innocent explanations for accessing those resources. (Zeif Aff. ¶¶ 20–21.) SmartLinx avers the audit of Zeif's devices also showed that, on February 13, 2021, after downloading files containing SmartLinx Proprietary Information onto his OneDrive cloud system and local C Drive, Zeif used a series of USB devices to connect to his SmartLinx devices, which USB devices were not disclosed or returned to SmartLinx when his employment ended. (Id. ¶ 68.) The audit further revealed that Zeif had access to a number of external devices and platforms in addition to USB devices, including a Google Gmail address, a Dropbox account, and Google Drive account linked to his SmartLinx devices. (Id.) On February 28, 2021, SmartLinx transmitted correspondence to Zeif, terminating him for cause and directing him to immediately discontinue utilizing all electronic devices provided to him by SmartLinx during the course of his employment. (Id. ¶ 76; Ex. G.) On the same day, SmartLinx sent a letter to Intelycare, advising the company of what SmartLinx viewed to be Zeif's illegal conduct and demanding that Intelycare cease and desist all efforts to employ Defendant. (Id. ¶ 77; Ex. H.) SmartLinx also demanded that Intelycare: (1) provide SmartLinx with a list of any SmartLinx Proprietary Information provided to Intelycare by Zeif; and (2) Intelycare return all SmartLinx Proprietary Information in its possession. (Id. ¶ 78; Ex. H.) On March 1, 2021, SmartLinx received correspondence from John E. North, Jr., Esq., counsel for Zeif (the “North Letter”). (Id. ¶ 81; Ex. I.) In the North Letter, Zeif denies misappropriating SmartLinx Proprietary Information, explaining that he spent a significant amount of time rectifying software “bugs.” (Id. ¶ 82; Ex. I.) Zeif further asserts that he did this work for years, primarily on weekends so as not to interfere with his primary responsibilities, for the purpose of assisting his team. (Id. ¶ 83.) SmartLinx avers that the forensic audit of Zeif's devices obtained after his termination contradicts the statement in the North Letter that he regularly worked weekends to fix the alleged bug problem. (Id. ¶ 85.) Rather, contends SmartLinx, the forensic data on the devices reveals that the bulk of this activity—downloading SmartLinx Proprietary Information from the GitHub repository to Defendant's local devices— occurred on three occasions: in April 2020, November 2020, with the majority of the activity in January and February 2021, after Defendant began to interview with Intelycare. (Id.; Ex. J.) SmartLinx further contends that the audit contradicts statements in the North Letter that Zeif would delete the source code files from his local devices after fixing the bug problem. (Id. ¶ 86.) Per SmartLinx's evaluation of the audit, Zeif neither modified the source code nor deleted it from his local devices. (Id.) Moreover, SmartLinx notes that its policies and procedures prohibited any such deletion of files and information from SmartLinx devices. (Id.) In sum, SmartLinx claims that Zeif's explanations for his activities with regard to the source code are not credible and are contradicted by SmartLinx's forensic analysis. *5 The Amended Complaint asserts claims under the Federal Defend Trade Secrets Act (“DTSA”), 18 U.S.C. §§ 1836, et seq. (Count One), Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 (Count Two), South Carolina Trade Secrets Act (“SCTSA”), S.C. Code § 39-8-20, et seq. (Count Three), Breach of Contract (Count Five), Misappropriation (Count Six), Conversion (Count Seven), and Breach of Fiduciary Duty and Duty of Loyalty (Count Eight).[1] (Am. Compl. ¶¶ 90–138.) On September 20, 2022, Zeif filed the instant Motion to Compel, seeking discovery responses from SmartLinx. (Dkt. No. 53.) SmartLinx filed a response in opposition on October 21, 2022 (Dkt. No. 71), to which Zeif replied on November 11, 2022. (Dkt. No. 84.) A hearing on this Motion to Compel has been noticed for January 4, 2022. (Dkt. No. 91.) The Court issues the below rulings in the meantime. APPLICABLE LAW Federal Rule of Civil Procedure 26 provides that, unless otherwise limited by court order, [p]arties may obtain discovery regarding any non-privileged 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 of expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Rather, information is relevant and discoverable if it relates to “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “The scope and conduct of discovery are within the sound discretion of the district court.” Columbus–Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995) (citing Erdmann v. Preferred Rsch., Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988)); see also U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (stating that district courts are afforded “substantial discretion ... in managing discovery”). If a party declines to comply with a discovery request, the serving party “may move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). An evasive or incomplete disclosure, answer, or response “must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4). District courts have “wide latitude in controlling discovery and [their] rulings will not be overturned absent a showing of clear abuse of discretion.” Ardrey v. United Parcel Serv., 798 F.2d 679, 683 (4th Cir. 1986); In re MI Windows & Doors, Inc. Prod. Liab. Litig., 2013 WL 268206, at *1 (D.S.C. Jan. 24, 2013). DISCUSSION On June 22, 2022, Zeif served an initial set of discovery requests upon SmartLinx, including Interrogatories and Requests for Production of Documents. (Dkt. No. 53 at 3.) Zeif's Motion to Compel seeks complete responses to these requests. More specifically, with respect to his Requests for Production, Zeif asserts the following specific issues: (1) no adequate privilege log; (2) no disclosure of facts and data relied upon by expert; (3) waiver of privilege for communications with third parties; (4) waiver of privilege for disclosure to non-management personnel; and (5) failure to produce responsive documents. (Id. at 4–15.) As for his Interrogatories, Zeif asserts in part that SmartLinx “provides no information from which Zeif can determine what evidence is being withheld and whether the answers are complete.” (Id. at 15–16.) *6 The Court considers these issues, below. A. Scope of Privilege Log Zeif first asserts that the privilege log produced by SmartLinx is flawed because it does not include any documents created after March 3, 2021, the date that litigation commenced between the parties. (Dkt. No. 84 at 1.) Zeif asserts that the objections and privileges claimed for the post-litigation period should therefore be deemed waived. (Id. at 1–5.) SmartLinx argues that the documents at issue are “indisputably privileged, and thus, no log is necessary.” (Dkt. No. 71 at 8.) SmartLinx further argues that to the extent its privilege log is deemed inadequate, it should have the opportunity to amend and update its privilege log. (Id. at 9.) Rule 26(b)(5)(A) provides as follows respecting the withholding of information considered privileged: Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Rule 26(b)(5)(A), Fed. R. Civ. P. A privilege log must contain “specific facts which, taken as true, establish the elements of the privilege for each document for which privilege is claimed. A privilege log meets this standard, even if not detailed, if it identified the nature of each document, the date of its transmission or creation, the author and recipients, the subject and the privilege asserted.” Clark v. Unum Life Ins. Co. of America, 799 F. Supp. 2d 527, 536 (D. Md. 2011), quoting N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011). A summary of the specific facts underlying the assertion of the privilege respecting each of the documents or category of documents withheld and an adequate explanation of why each document or category of documents are withheld as privileged are required. The Rule 26 Advisory Committee Notes, 1993 Amendments, state that “[t]o withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.” See also Herbalife Intern., Inc. v. St. Paul Fire and Marine Ins. Co., 2006 WL 2715164, at *4 (N.D.W. Va. Sept. 22, 2006). On August 17, 2022, Plaintiff's counsel stated in correspondence with defense counsel, In response to your concerns regarding the privilege log, SmartLinx agrees to produce a privilege log for all documents withheld from production on the basis of privilege. We agree with your suggestion for the parties to mutually exchange privilege logs on August 22, 2022. (Dkt. No. 55-6 at 2.) SmartLinx produced a privilege log to Zeif on August 22, 2022, and a corrected version on October 21, 2022. (Dkt. No. 53 at 6; 72-3.) SmartLinx's privilege log does not include any documents and communications that “are a part of SmartLinx's litigation file created throughout the course of this case and the State Court Action[2] ... due to SmartLinx's assertion that such documents are “prima facie protected by the attorney-client privilege.” (Dkt. No. 71 at 7.) *7 Relevant here, Judge Norton recently considered a party's argument that “a presumption of attorney-client privilege attaches to any communications between a client and his counsel after initiation of the lawsuit for which the client is being represented.” Oppenheimer v. Williams, No. 2:20-CV-4219-DCN, 2021 WL 5359283, at *4 (D.S.C. Nov. 17, 2021). He rejected this argument in Oppenheimer v. Williams, first noting that “[t]he Fourth Circuit does not appear to recognize such a presumption, but instead, explicitly stated that ‘it is the unquestioned rule that the mere relationship of attorney-client does not warrant a presumption of confidentiality.’ ” Id. (quoting United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984)). He continued, While the court, in its discretion and based on efficiency considerations, could have relieved Oppenheimer of his obligation to include in his privilege log those communications between him and his counsel dated after December 6, 2020, Oppenheimer did not request, and the court therefore did not grant, such relief. Instead, Oppenheimer took it upon himself to shirk his Rule 26(b)(5) obligations by first not providing defendants a privilege log at all and then providing them one that failed to describe the nature of the communications at issue. Id. Here, the Court finds the holding in Oppenheimer does not mandate providing a privilege log for post-litigation communications in every instance. Rather, Judge Norton recognized that “efficiency considerations” could result in the court relieving a party from any “obligation” to include post-litigation communications in a privilege log. Id. He denied such relief in Oppenheimer because of the party's “egregious” conduct during discovery, including a complete failure to identify the nature of the withheld communications. Id. at *1, 4. Such conduct is not at issue in this action. As noted above, SmartLinx maintains that any documents and communications that “are a part of SmartLinx's litigation file created throughout the course of this case and the State Court Action” are prima facie protected by the attorney-client privilege. (Dkt. No. 71 at 7.) The Court agrees that at the point litigation commenced between the parties, it can be assumed communications shifted to legal strategy and documents were created because of the pending litigation. Accordingly, for efficiency reasons, the Court will not require SmartLinx to produce a privilege log for the communications and documents created as part of its litigation file after March 3, 2021. In the future, however, the parties should come to an express understanding on this issue prior to involving the Court. See, e.g., Glynn v. EDO Corp., No. JFM-07-01660, 2010 WL 3294347, at *7 n.12 (D. Md. Aug. 20, 2010) (“The general practice in this Court is, as Glynn and TELG assert, to not require logging post-litigation documents over which the attorney-client privilege or work product doctrine has been asserted. Accordingly, it was appropriate for Glynn and TELG to omit material created after the litigation was instituted on June 21, 2007.”); see also Pennsylvania State University v. Keystone Alternatives LLC, 2021 WL 1737751, *3 (M.D. Pa. May 3, 2021) (recognizing that “[t]here is no requirement that a privilege log be created for privileged documents generated after the filing of the complaint”) (citing Grider v. Keystone Health Plan Central, Inc., 580 F.3d 119, 139 n.22 (3d Cir. 2009)); Prism Technologies, LLC v. Adobe Systems, Inc., 2011 WL 5523389, *2 (D. Neb. Nov. 14, 2011) (adopting other federal circuits’ approach to setting the commencement of litigation as the cut off for privilege long entries); U.S. v. Bouchard Transp., 2010 WL 1529248, *2 (E.D.N.Y. April 14, 2010) (“[P]rivilege logs are commonly limited to documents created before the date litigation was initiated. This is due to the fact that, in many situations, it can be assumed that all documents created after charges have been brought or a lawsuit has been filed and withheld on the grounds of privilege were created ‘because of’ that pending litigation.”); Ryan Inv. Corp. v. Pedregal de Cabo San Lucas, 2009 WL 5114077, *3 (N.D. Cal. Dec. 18, 2009) (denying plaintiff's motion to compel production for post-litigation counsel communications; holding “counsel's communications with the client and work product developed once the litigation commences are presumptively privileged and need not be included on any privilege log”); Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44, 51 (S.D.N.Y. 2009) (holding that commencement of litigation marks the point where parties’ communications shift from containing discoverable evidence to legal strategy. The court held it would “not require [the party] to record on its privilege log any attorney-client communications or work product documents created after the date [litigation commenced].”). *8 Based on the foregoing, the Court denies this portion of Zeif's Motion to Compel. B. Facts and data relied upon by SmartLinx expert Zeif seeks the facts and data reviewed by SmartLinx's forensic expert, Digital4NX, in making its analysis of the computer used by Zeif. According to Zeif, “SmartLinx's privilege log shows 30 communications and documents between SmartLinx and the person who conducted a forensic examination of the SmartLinx electronic devices used by Zeif at issue in this case.” (Dkt. No. 53 at 7.) Zeif asserts that Digital4NX has already provided its opinions in this case in the form of three separate affidavits (Dkt. Nos. 1-10; 13-2; 24-10) and that these communications are therefore exempt from privilege under Rule 26(b)(4)(C). (Id. at 7–8.) SmartLinx asserts the documents listed on its privilege log related to Digital4NX reflect attorney-work product and privileged attorney-expert communications that are not subject to disclosure. (Dkt. No. 71 at 10.) SmartLinx further argues that Zeif's request for the facts and data reviewed by Digital4NX in making its analysis of the computer used by Zeif is “premature” because the date for designating expert witnesses has not yet arrived. (Id. at 12.) However, SmartLinx states that after Zeif filed his Motion to Compel, SmartLinx produced to Zeif all of the non-privileged documents related to forensic work performed by employees of Digital4NX, and it produced to Zeif's expert mirror images of Zeif's laptop, which was examined by Digital4NX. (Id. at 13.) In 2010, the Supreme Court of the United States amended Rule 26 to more broadly extend protections to communications between a party's attorney and retained expert witnesses. Rule 26(b)(4)(C) provides protection to communications between a party's attorney and experts expected to testify at trial, regardless of the form of the communications, except to the extent that the communications: 1) relate to compensation for the expert's study or testimony; 2) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or 3) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Under Rule 26(b)(3)(A)(ii), an opposing party may only discover attorney-expert communications beyond the three specified categories if it can show “that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). The 2010 advisory committee notes to the Federal Rules of Civil Procedure make clear that Rule 26 protects from discovery “theories or mental impressions of counsel” or expert draft reports. See Fed. R. Civ. P. 26 advisory committee's note to 2010 amendments. Aside from expert draft reports and impressions of counsel, however, parties must disclose “any material considered by the expert, from whatever source, that contains factual ingredients.” Id. The words “considered by” in Rule 26 require parties to produce more than the information that its experts “relied on” in forming their opinions. Carroll Co. v. Sherwin-Williams Co., No. WMN-11-1700, 2012 WL 4846167, at *3 (D. Md. Oct. 10, 2012) (citing Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460, 463 (E.D. Pa. 2005). Rather, parties must produce “any information furnished to a testifying expert that such an expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if such information is ultimately rejected.” Id.; see also see also Clean Mgm't Env. Group, Inc. v. Grp. Inc., 2020 WL 4679351, *4 (June 12, 2020) (“[A] part of the purpose of expert discovery is to discover not just the information the expert used in reaching his conclusions, but also what information he ignored or failed to properly incorporate into his analysis.”) (quotation omitted); Wellin v. Farace, 2018 WL 7247056, *6 (D.S.C. Dec. 5, 2018) (“[E]xperts have been deemed to have considered materials even when they have testified, under oath, that they did not consider the materials in forming their opinions.”); CTB, Inc. v. Hog Slat, Inc., No. 7:14-cv-157-D, 2016 WL 1244998, at *15 (E.D.N.C. Mar. 23, 2016) (requiring disclosure of documents that the plaintiff's expert “considered and used for her survey and report,” including the “range of documents” plaintiff provided to its expert). *9 The Advisory Committee Notes further state, Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, inquiry about communications the expert had with anyone other than the party's counsel about the opinions expressed is unaffected by the rule. Counsel are also free to question expert witnesses about alterative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed. See Fed. R. Civ. P. 26 advisory committee's note to 2010 amendments. Upon review, SmartLinx's privilege log includes certain communications among Digital4NX employee, Rob Kleeger; SmartLinx counsel; SmartLinx CEO, Marina Aslanyan; and former SmartLinx employee, Orit Kendal. While Kendal is a former SmartLinx employee, Aslanyan avers Kendal was employed in a management level position at SmartLinx at the time of the communications at issue. (Dkt. No. 73 at 2.) Aslanyan further avers that Kendal possessed key information regarding Zeif that was necessary to be obtained for the investigation, prosecution, and defense of any claims in this matter. (Id.) Zeif appears to argue that because “the employees of SmartLinx were included in the communications and had direct contact with the experts,” any attorney-client privilege between the counsel and expert was waived. (Dkt. No. 53 at 8.) The attorney-client privilege affords confidential communications between lawyer and client complete protection from disclosure. See Trammel v. United States, 445 U.S. 40, 50 (1980); In re Grand Jury Subpoena, 204 F.3d 516, 519-20 (4th Cir. 2000). “In an action asserting a federally based cause of action, the attorney-client privilege is a matter of federal common law.” Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986) (citing Fed. R. Evid. 501). The Fourth Circuit has adopted the following test for determining the existence of attorney-client privilege: The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998). “The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.” Id. The attorney–client privilege applies with equal force when the client is a corporation or a related business entity. See Upjohn Co. v. United States, 449 U.S. 383, 389–90 (1981). To that end, it protects communications between a business's employees and its counsel when those communications “concern[ ] matters within the scope of the employees’ corporate duties” and are made “in order that the corporation could obtain legal advice” from its counsel. Id. at 394; see Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 376 (4th Cir. 2009) (“Where the client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication.” (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 253 (D.C. Cir. 1977))). This is true regardless of whether the attorney is outside counsel hired by the business or its own in-house counsel. Johnson v. Ford Motor Co., Nos. 3:13-cv-06529, 3:13-cv-14207, 3:13-cv-20976, 2015 WL 5193568, at *2 (S.D.W. Va. Sept. 3, 2015) (quoting Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 411 (D. Md. 2005)). The attorney-client privilege also protects communications between a company's employees relaying or seeking the lawyer's advice. See Rein, 553 F.3d at 377 (holding that intra-agency communications about information given to agency's counsel for litigation involving agency were privileged); Deel v. Bank of Am., N.A., 227 F.R.D. 456, 460 (W.D. Va. 2005) (“A corporation does not waive its privilege when non-lawyer employees send or receive communications because corporate communications which are shared with those having need to know of the communications are confidential for purposes of the attorney-client privilege.”); F.C. Cycles Int'l, Inc. v. Fila Sport, S.p.A., 184 F.R.D. 64, 71 (D. Md. 1998) (“The communications retain their privileged status if the information is relayed from a non-lawyer employee or officer to other employees or officers of the corporation on a need to know basis.”). *10 Based on the foregoing, the undersigned finds that because SmartLinx, the “client” at issue, is a corporation, Aslanyan and Kendal's inclusion on communications between counsel and Digital4NX does not negate attorney-client privilege. See, e.g., Parsons v. Columbia Gas Transmission, LLC, No. 2:19-CV-00649, 2021 WL 1894244, at *3 (S.D.W. Va. May 11, 2021) (“The email communications between CGT's employees, in-house counsel, and outside counsel and the title services that relay information related to the title abstracts and opinions provided to CGT and its outside counsel are shielded from disclosure by the attorney–client privilege.”). Accordingly, the only issue remaining is to determine the role of Digital4NX employee, Rob Kleeger, as it pertains to the communications in the privilege log. Kleeger is the only recipient with a Digital4NX email on the privilege log. Notably, Kleeger did not sign the affidavits in the record related to Digital4NX. Rather, those were signed by Tino Kyprianou, a computer forensics consultant and the Director of Digital Forensics & Electronic Discovery with Digital4NX. (Dkt. Nos. 1-10; 13-2; 24-10.) SmartLinx is ordered to provide a status report by December 28, 2022, clarifying Kleeger's role in his communications identified on the privilege log. If Kleeger is also considered an expert computer forensics consultant for SmartLinx, then any communications he had with SmartLinx counsel are privileged and do not need to be produced, aside from the exceptions identified in Rule 26(b)(4)(C). The Court holds its ruling on this portion of the Motion in Compel in abeyance, pending the status report from SmartLinx. C. Communications with Third Parties SmartLinx's privilege log lists three communications among individuals purporting to be counsel for both SmartLinx and Marlin Operations Group, Inc. (“Marlin”) and third parties. (Privilege Log Nos. 5, 40, 42.) Marlin is a private equity firm that holds investments in healthcare tech and other sectors, including SmartLinx. SmartLinx identifies the people involved in these communications as follows: Marina Aslanyan: SmartLinx CEO Az Virji: General Counsel for Marlin and “outside counsel” for SmartLinx Nick Lukens: Managing Director of Marlin and Chairman of Board of Directors of SmartLinx Laura Stoll, April Sun: outside counsel for Marlin and SmartLinx Orit Kendal: Head of People and Culture for SmartLinx (HR)—early 2019 to Sept 2021 Jim Pirraglia: Vice President of Produce for SmartLinx, supervised Zeif—June 2019 to Aug 2021[3] Rob Kleeger: personnel for Plaintiff's expert Digital4NX Along with its response in opposition to the Motion to Compel, SmartLinx has provided an affidavit from Aslanyan averring that: 1) Virji has served as General Counsel for Marlin and outside counsel for SmartLinx at all relevant times in this action and provides legal advice to SmartLinx about this proceeding; 2) Lukens makes and approves strategic decisions for SmartLinx and must be kept apprised of legal matters; and 3) Kendal and Pirraglia both possessed key information regarding Zeif that was necessary to be obtained for the investigation, prosecution, and defense of any claims in this action. (Dkt. No. 73.) As an initial matter, given the Court's analysis in section B, Kendal's inclusion on the communications here does not negate attorney-client privilege. See, e.g., Parsons, 2021 WL 1894244, at *3. Likewise, depending on his role at Digital4NX, Kleeger's involvement in these communications also may not negate attorney-client privilege. Further, if the communications involving Stoll, Sun, and Vriji only pertain to their role as outside counsel for SmartLinx, it is not inherently problematic that they also counsel Marlin in other matters. *11 Accordingly, the pressing issue here is in what capacity Lukens was involved in the communications identified in the privilege log. Notably, “[t]here is no established litmus test to assess the capacity in which communications were received where a recipient plays multiple roles in a transaction, with only one of those roles allowing for the receipt of privileged communications.” Argos Holdings Inc. v. Wilmington Tr. Nat'l Ass'n, No. 18CV5773(DLC), 2019 WL 1397150, at *5 (S.D.N.Y. Mar. 28, 2019) (conducting in camera review of communications between counsel and three individuals that are both partners to principal investor of plaintiffs and board members of plaintiffs’ “ultimate owner”; requiring evidence the communications were sent to the three individuals “in their capacity as directors of Argos GP”). SmartLinx is ordered to provide a status report by December 28, 2022, clarifying Lukens’ role in his communications identified on the privilege log. As an alternative basis for privilege, SmartLinx argues that Marlin and SmartLinx have a common interest such that any communications between the two entities are protected by the common interest doctrine. (Dkt. No. 71 at 17.) Currently, there is not enough information in the record to determine whether the common interest doctrine applies. SmartLinx is ordered to provide a status report by December 28, 2022, clarifying Marlin's involvement in SmartLinx and the percentage of Marlin that is invested in SmartLinx. Additionally, SmartLinx is ordered to provide the three communications at issue (Privilege Log Nos. 5, 40, 42) for in camera review. These communications are due by December 19, 2022. The Court holds in abeyance its ruling on the privileged nature of these three communications, pending the aforementioned status report from SmartLinx. Finally, the privilege log lists communications among SmartLinx counsel, Pirraglia and Kendal. As noted above, the record indicates Pirraglia and Kendal were management-level SmartLinx employees at the time of the communications and possessed key information regarding events at issue. Given the Court's analysis in section B, Kendal's and Pirraglia's communications with counsel may be protected under attorney-client privilege. See, e.g., Parsons, 2021 WL 1894244, at *3; Santrade, Ltd. v. Gen. Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993) (“Corporations may communicate privileged information at various levels without waiving the attorney-client privilege.”). Zeif's Motion to Compel is therefore denied as to this issue—the communications among SmartLinx counsel, Pirraglia and Kendal remain privileged. D. Requests for Production Zeif moves to compel responses to his Request for Production Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14 and 15. (Dkt. No. 53 at 14.) SmartLinx states that after Zeif filed his Motion to Compel, a Confidentiality Order was entered (Dkt. No. 54), and SmartLinx produced nearly 5,000 pages of confidential documents. (Dkt. No. 71 at 4.) According to SmartLinx, these documents “include all non-privileged, non-work product documents in SmartLinx's possession, custody or control that are responsive to Zeif's requests for production with the exception of documents relating to SmartLinx's calculation of damages.” (Id.) SmartLinx maintains that “discovery is ongoing and SmartLinx will supplement its response to Zeif's request for documents relating to calculation of damages as soon as it is able to do so. Calculating damages in a trade secret case regarding proprietary code is a complex analysis that should be addressed in expert discovery rather than fact discovery.” (Id. at 4–5.) In response, Zeif asserts that the produced documents are not in any way relevant to the following requests for categories of information identified in his Motion to Compel: SmartLinx damages; Facts concerning alleged unauthorized use by any person or entity of SmartLinx's proprietary information; Documents related to the forensics analysis of the SmartLinx electronic devices used by Zeif; The VSTS records which document that Zeif's downloads of source code were related to repairs to software bugs that Zeif then got permission to upload into the SmartLinx system; Guidelines concerning use of the GitHub software repository; Documents concerning SmartLinx's failure to pay withholding taxes and retirement benefits on Zeif's earned bonus for 2020; and Documents that would contradict the sworn statements of former SmartLinx employees concerning the manner of repairing software bugs. (Dkt. Nos. 53 at 13–14; 84 at 10.) Upon careful consideration, the Court grants Zeif's motion here to the extent SmartLinx is ordered to supplement its responses to the Requests for Production at issue with the page numbers of the documents responsive to each request number. Additionally, the undersigned orders SmartLinx to supplement its response to Zeif's request for documents relating to calculation of damages as soon as it is able to do so. The Amended Complaint identifies damages in only general terms (Dkt. No. 24 at 27), and it does not appear Zeif has any other basis to anticipate SmartLinx's alleged damages. This supplemental production is due by December 28, 2022. After SmartLinx provides Zeif its supplemental production as ordered herein, the parties are ordered to meet and confer and submit a joint status report prior to January 4, 2022, identifying any discovery requests still in dispute. The Court holds in abeyance its ruling on whether further production will be required from SmartLinx, beyond that identified above. E. Interrogatories Finally, Zeif moves to compel responses to his Interrogatories Nos. 2, 6, 7, 8, 10, 13 and 14. (Dkt. No. 53 at 15.) SmartLinx asserts that its objections to these interrogatories are appropriate and that it has provided responsive non-privileged information. (Dkt. No. 71 at 22–25.) Upon careful consideration, the Court grants Zeif's motion here to the extent SmartLinx is ordered to supplement its responses to the Interrogatories with the page numbers of the documents responsive to each interrogatory number at issue, where applicable. This supplemental response is due by December 28, 2022. After SmartLinx provides Zeif its supplemental responses as ordered herein, the parties are ordered to meet and confer and submit a joint status report prior to January 4, 2022, identifying any discovery requests still in dispute. The Court holds in abeyance its ruling on whether further responses will be required from SmartLinx, beyond that identified above. Relatedly, Zeif argues that SmartLinx has not properly verified its Interrogatory answer. (Dkt. No. 53 at 16.) Zeif does not provide any authority supporting this argument, however. SmartLinx submitted an affidavit from Aslanyan (SmartLinx CEO) with its supplemental interrogatory responses, averring, inter alia, that the answers “are true, correct, and complete to the best of [her] knowledge and belief.” (Dkt. No. 55-2 at 10.) The undersigned finds that Aslanyan's affidavit complies with the requirements of the Federal Rules of Civil Procedure and denies Zeif's Motion to Compel in this respect. See Rule 33(b), Fed. R. Civ. P. CONCLUSION *13 It is therefore ORDERED, for the foregoing reasons, that Zeif's Motion to Compel (Dkt. No. 53) is GRANTED IN PART AND DENIED IN PART. Specifically, the Court denies the Motion in that it will not compel SmartLinx to produce: (1) a privilege log for those communications and documents created as part of its litigation file after March 3, 2021; and (2) any communications or documents in its privilege log involving only SmartLinx counsel, Pirraglia and Kendal. The Court grants the Motion to the extent SmartLinx is compelled to supplement its responses to Zeif's Requests for Production and Interrogatories with the page numbers of the documents responsive to each discovery request at issue. SmartLinx must also supplement its responses to any discovery requests relating to the calculation of damages as soon as it is able to do so. This supplemental production is due by December 28, 2022, in addition to the parties’ ongoing duty to supplement. After SmartLinx provides Zeif its supplemental production as ordered herein, the parties are ordered to meet and confer and submit a joint status report prior to January 4, 2022, identifying any discovery requests still in dispute. The Court holds in abeyance its ruling on whether further responses to Zeif's discovery requests will be required from SmartLinx, pending review of the parties’ joint status report and arguments at the upcoming hearing. Additionally, the Court's rulings on certain portions of the Motion are held in abeyance, pending review of SmartLinx's status report and review of certain documents in camera. Specifically, whether SmartLinx will be compelled to produce any communications and documents identified in the privilege log involving Kleeger as well as the communications and documents identified in the privilege log as numbers 5, 40, and 42. As discussed above, SmartLinx is ordered to provide for in camera review the communications and documents identified in the privilege log as numbers 5, 40, and 42 by December 19, 2022. Additionally, SmartLinx is ordered to provide a status report by December 28, 2022, that clarifies: (1) Kleeger's role in his communications identified in the privilege log; (2) Lukens’ role in his communications identified in the privilege log; and (3) Marlin's involvement in SmartLinx and the percentage of Marlin that is invested in SmartLinx. AND IT IS SO ORDERED. Footnotes [1] The Amended Complaint omits a Count Four. [2] Prior to the filing of this lawsuit, on March 3, 2021, Zeif filed a lawsuit against SmartLinx in South Carolina state court seeking declaratory judgment that he had not breached his Non-Disclosure and Non-Compete Agreement with SmartLinx and alleging claims for defamation and tortious interference. (Dkt. No. 72 at 2.) SmartLinx refers to this as the “State Court Action.” (Id.) The State Court Action was dismissed on September 2, 2022. (Id.) [3] Pirraglia is not actually included in the three communications at issue. (Privilege Log Nos. 5, 40, 42.) However, he is included in other communications that are listed in the privilege log and contested by Zeif. For this reason, he is mentioned here.