Prysmian Cables & Systems USA, LLC Plaintiff, v. Stephen J. Szymanski and Sterlite Technologies, Inc. Defendants Civil Action No. 3:21-cv-01641-JMC United States District Court, D. South Carolina, Columbia Division, COLUMBIA DIVISION Filed June 10, 2022 ORDER AND OPINION *1 Plaintiff Prysmian Cables & Systems USA, LLC (“Prysmian”) filed this action seeking a preliminary and permanent injunction ordering Defendants Stephen J. Szymanski (“Szymanski”) and Sterlite Technologies, Inc. (“Sterlite,” or collectively “Defendants”) to comply with a noncompetition agreement. (ECF No. 1.) In a previous Order, the court granted in part and denied in part Prysmian's Motion for Preliminary Injunction, enjoining Defendants from possessing, disclosing, or otherwise using Prysmian's trade secrets or other confidential business information, and ordering Defendants to preserve and return physical and electronic devices, files, documents and information belonging to Prysmian. (ECF No. 56 at 35.) Before the court is Prysmian's Motion to Compel (ECF No. 59), where Prysmian argues that Defendants’ responses to various requests for production throughout discovery have been inadequate, incomplete, or presented with improper annotations. (Id. at 1.) Prysmian asserts that many of the fundamental documents in the case, such as Sterlite and Szymanski's admitted communications with Prysmian customers and employees and Szymanski's employment documentation, have not been produced. (Id.) Contending that its attempts to communicate with Defendants’ counsel regarding the discovery responses have been unsuccessful thus far, Prysmian claims it has been rendered substantially unable to fully develop its claims. (Id. at 5.) Prysmian therefore seeks an award of attorney's fees in addition to the court's order compelling production. (Id. at 5-6.) In response, Defendants insist they have either produced all responsive documents in their possession, or that they do not have any responsive documents to the relevant requests. (ECF No. 63 at 1-4.) The court held a hearing on the claims presented in this Motion on June 1, 2022, where Plaintiff emphasized the difficulty of obtaining discovery responses from both Defendants, alleging its attempts to obtain documents and other evidence in this case have been stonewalled or otherwise stalled throughout the pretrial phase. In support, Plaintiff cited several admissions from Szymanski's deposition in which he admitted to certain communications between himself and Prysmian customers and employees. (See, e.g., ECF No. 59 at 9 (discussing Szymanski's admitted communications with Prysmian employees and customers) (citing Szymanski Dep. at 61:3-16 (communications with Prysmian employee Chris Isetts related to leaving Prysmian), 65:15-19 (communication with Prysmian employee Tamitha Brown regarding “manufacture”); 18:24–20:17 (communications with Prysmian customers), 118:4-15 (communications with executives at Power & Tel), 142:12–145:5 (communications with USTC, Videotron, and Bandwidth IG), 146:7–148:12 (communications with Comstar and customers who “are not core to Prysmian's business”); 150:9–151:20 (communications with smaller Prysmian customers like Genuine Cable), 192:1–193:7 (communications with Power & Tel)).) To date, no such communications have been produced by either Defendant. Prysmian further alleges that Defendants’ failure to produce any communications or documentation of sales to Prysmian customers which took place under Szymanski's management—and which Szymanski openly acknowledged in his deposition and testimony during the Preliminary Injunction hearing—implies that Defendants are intentionally withholding this information from discovery. Documents arising from the “months’ long employment negotiations” between Defendants are similarly missing from production. (ECF No. 59 at 13.) For example, neither Sterlite nor Szymanski have produced certain emails and other communications from Sterlite's internal email servers or Szymanski's personal email address through which Szymanski communicated with Sterlite executives prior to accepting Sterlite's offer of employment. (Id.) Defendants rejected these accusations, stating they have produced all responsive documents, communications, and other responsive evidence in their possession. Considering Defendants’ alleged lack of cooperation and failure to participate in discovery, and admissions from Szymanski's trial and deposition testimony, Plaintiff requested that the court appoint an independent third-party e-Discovery vendor and/or forensic examiner (“Third Party”) to access and search through Defendants’ computers, email accounts, and internal systems to collect evidence which is relevant to the parties’ claims and defenses in this case. *2 The court has considered these arguments and concludes that the appointment of a Third Party is appropriate under these circumstances. For the following reasons, the court GRANTS IN PART and DENIES IN PART, without prejudice, Prysmian's Motion to Compel (ECF No. 59) and orders the parties to coordinate with the Third Party to produce relevant discovery in accordance with the terms of this Order. At this stage, the parties shall share the Third Party's costs equally, with leave to revisit at a later point. Prysmian's concurrent request for attorney's fees is hereby denied without prejudice. I. LEGAL STANDARD A. Discovery Generally Under the Federal Rules of Civil Procedure, parties are entitled to discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense .... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). “For purposes of discovery, then, information is relevant, and thus discoverable, if it ‘bears on, or ... reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.’ ” Amick v. Ohio Power Co., No. 2:13-cv-06593, 2014 WL 468891, at *1 (S.D. W. Va. Feb. 5, 2014) (citing Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 199 (N.D. W. Va. 2000)). “Relevancy is not limited by the exact issues identified in the pleadings, the merits of the case, or the admissibility of discovered information.’ ” Id. (citing Kidwiler, 192 F.R.D. at 199). “Rather, the general subject matter of the litigation governs the scope of relevant information for discovery purposes.” Id. In the context of discovery, therefore, relevant information is broadly defined. Id. B. Motions to Compel If a party fails to make a disclosure required by Rule 26, “any other party may move to compel disclosure and for appropriate sanction” after it has “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a). Specifically, a party “may move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). “[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.” Oppenheimer v. Episcopal Communicators, Inc., No. 1:19-CV-00282-MR, 2020 WL 4732238, at *2 (W.D.N.C. Aug. 14, 2020); see Basf Plant Sci., LP v. Commonwealth Sci. & Indus. Rsch. Org., No. 2:17-cv-503, 2019 WL 8108060, at *2 (E.D. Va. July 3, 2019) (citation omitted). “Thus, once the moving party has made ‘a prima facie showing of discoverability,’ the resisting party has the burden of showing either: (1) that the discovery sought is not relevant within the meaning of Rule 26(b)(1); or (2) that the discovery sought ‘is of such marginal relevance that the potential harm ... would outweigh the ordinary presumption of broad discovery.’ ” Gilmore v. Jones, No. 3:18-cv-00017, 2021 WL 68684, at *3-4 (W.D. Va. Jan. 8, 2021) (quoting Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016)). *3 The court has broad discretion in deciding to grant or deny a motion to compel. See, e.g., Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (“This Court affords a district court substantial discretion in managing discovery and reviews the denial or granting of a motion to compel discovery for abuse of discretion.”) (internal citation omitted); Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988); LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery is addressed to the sound discretion of the district court.”); Mach. Sols., Inc. v. Doosan Infracore Am. Corp., No. 3:15-cv-03447-JMC, 2018 WL 573158, at *2 (D.S.C. Jan. 26, 2018). II. DISCUSSION A. Appointment of e-Discovery Expert At the outset, the court notes that many of the individual requests for production put forth by Prysmian are overbroad because they do not effectively narrow the scope of discovery beyond the time period of January 1, 2020, to the present. (ECF No. 59-1 at 5.) While Prysmian indicated a willingness to narrow the scope of some requests during the hearing, it is clear that multiple attempts to meet and confer between the parties have thus far been unsuccessful. At this stage, substantial disagreement remains as to the nature and scope of these requests and whether the documents sought even exist or are discoverable at all. Under these circumstances, the court orders the parties to engage a Third Party to access Defendants’ internal computer systems and email accounts, craft search terms and protocols, and produce all non-privileged documentation responsive to the requests appropriately narrowed and listed below. These discoverable documents will largely cover Szymanski's employment negotiations and subsequent hiring by Sterlite, along with evidence of Defendants’ improper solicitation of Prysmian customers and employees or wrongful use of trade secrets or confidential business information. Before the Third Party commences his work, however, the parties shall meet at a mutually convenient time and place to exchange lists of customers since January 1, 2020, from which they shall identify any common customers between Sterlite and Prysmian.[1] For the purposes of discovery, this Common Customer List will guide the Third Party in seeking documents related to Prysmian's non-solicitation of customers claim. Of course, as new information is revealed through discovery, it may become necessary to add or remove customers from this List. Prysmian shall also provide to Defendants a similar list of employees whom Prysmian claims Defendants improperly solicited (“Common Employee List”). The Third Party shall begin its investigation by searching for documents and communications related to the employees and customers on these lists, as set forth below. The production shall include the following non-privileged[2] documents, communications, and information, dated since January 1, 2020: Documents belonging to, referring to, or referencing non-public Prysmian information, such as trade secrets and confidential business information in the possession, custody, or control of Defendants; All documents concerning the recruitment and hiring of Szymanski, including but not limited to any communications concerning or directed to Szymanski with respect to his initial hiring at Sterlite, including communications at the hiring stage, such as negotiations, offer letters, job descriptions, hiring paperwork, agreements with Szymanski, descriptions of Szymanski's compensation agreements, performance goals and expectations, and calendar events, and the contents of Szymanski's personnel file related to his initial hire and compensation plans; All documents or communication concerning Sterlite's recruitment, attempts to recruit, hire and/or attempts to hire of current or former Prysmian employees since January 1, 2020, a list of whom will be provided to the Third Party by Prysmian; All documents, including but not limited to text messages, emails, and social media messages, referring or relating to any Common Customers, a list of whom will be provided to the Third Party by the parties, and all communications, including but not limited to text messages, emails, and social media messages, referring or relating to any Common Customer on this List; All documents referring or relating to any sales to Common Customers made directly or indirectly by Szymanski or through any Sterlite employee; All documents and communications referring or relating to any Common Customers with whom Szymanski has initiated communications on behalf of Sterlite; All documents reflecting each sale that Sterlite has made since January 1, 2020 to a Common Customer, including the customer, the amount of sale, the net profit for the sale, and the goods or services sold; All documents referring or relating to any former employees of Prysmian hired by Sterlite, as identified in the Common Employee List, including but not limited to, job descriptions, offer letters, job negotiations, salary information, and employment contracts; All documentation referring to Defendants’ business strategy regarding the construction of the competing loose tube plant in Kershaw County referencing Prysmian or containing confidential business information held by Prysmian; All documentation reflecting or related to prospective customers, who are current customers of Prysmian, a list of whom will be provided to the Third Party by Prysmian, and whom Sterlite is currently pursuing or has pursued since January 1, 2020; All calendars, daytimers, organizers, electronic calendars, diaries, notes, or other documents referring or relating to Szymanski's schedule from January 1, 2020, to the present; and All documents, including but not limited to text messages, emails, and social media messages, referring or relating to any contact or communications Szymanski has had with any current or former employee of Prysmian, a list of whom will be provided by Prysmian, from January 1, 2020, to the present regarding matters related to Prysmian or Sterlite's business. B. Sanctions At this time, the parties shall be equally responsible for the fees associated with the Third Party. After review of the information produced and upon motion to the court, either party may seek attorneys’ fees and costs related to this production of documents. The parties may revisit the document requests made, but not granted pursuant to this Order, after the initial production has been reviewed. III. CONCLUSION *5 For these reasons, the court GRANTS IN PART and DENIES IN PART, without prejudice, Prysmian's Motion to Compel (ECF No. 59) and orders the parties to coordinate with the Third Party to produce relevant discovery in accordance with the terms of this Order. At this stage, the parties shall share the Third Party's costs equally, with leave to revisit at a later point. Prysmian's concurrent request for attorney's fees is hereby denied without prejudice. Such production shall begin not later than thirty (30) days from the date of this order and to be continually supplemented thereafter. IT IS SO ORDERED. Footnotes [1] To the extent Prysmian seeks discovery related to Prysmian customers who were not successfully solicited by Defendants, Prysmian will provide another list of its customers since January 1, 2020, to Defendants and the Third Party. [2] To the extent that Defendants intend to withhold certain documents as privileged, they must comply with the requirements of Fed. R. Civ. P. 26(b)(5) and timely submit a privilege log to opposing counsel.