American Municipal Power, Inc. v. Voith Hydro, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AMERICAN MUNICIPAL

POWER, INC.

Plaintiff,

Case No. 2:17-cv-708

vs. Chief Judge Algenon L. Marbley

Chief Magistrate Judge Elizabeth P. Deavers

VOITH HYDRO, INC.,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of Re-Filed American Municipal Power,

Inc.’s Motion to Compel (ECF No. 59), Defendant’s Memorandum in Opposition to Plaintiff’s

Motion to Compel (ECF No. 62), American Municipal Power, Inc.’s Reply Memorandum (ECF

No. 63), American Municipal Power, Inc.’s Supplemental Memorandum (ECF No. 76), and

Defendant Voith’s Amended Response to Plaintiff AMP’s Supplement (D.E. 76) (ECF No. 80).1

For the reasons that follow, the Motion to Compel is GRANTED IN PART AND DENIED IN

PART.

1 Defendant Voith Hydro, Inc. (“Voith”) initially filed a response with an accompanying motion

to file an exhibit under seal. (ECF Nos. 77, 78.) After the Court denied without prejudice, the

motion to seal, Voith decided not to re-submit a motion to seal and instead filed the Amended

Response, which simply removes the portion that refers to the exhibit originally sought to be

sealed; the Amended Response therefore adds no new arguments or information. (ECF No. 80 at

1 n.1.)

I.

A. Factual Background

1. The Hydro Projects

Plaintiff American Municipal Power, Inc. f/k/a American Municipal Power-Ohio, Inc.

(“AMP”) is a nonprofit that, among other things, serves as a wholesale power supplier for

member municipal power systems. (Complaint, ECF No. 1, at ¶¶ 1, 6.) AMP purchases,

generates, and distributes electrical power for AMP members (political subdivisions of various

states) serving customers in several states, including Ohio, Kentucky, and West Virginia. (Id. at

¶ 6.) AMP contracted for four hydroelectric power plants to be designed and built at existing

locks and dams along the Ohio River at the Cannelton Locks and Dam near Hawesville,

Kentucky (“Cannelton”); the Smithland Locks and Dam near Smithland, Kentucky

(“Smithland”); the Captain Anthony Meldahl Locks and Dam near Foster, Kentucky

(“Meldahl”); and the Willow Island Locks and Dam near New Martinsville, West Virginia

(“Willow Island”) (collectively, the “Projects”). (Id. at ¶ 7.) The Projects are run-of-the-river

hydroelectric generating facilities with an intake approach channel, a reinforced concrete

powerhouse and a tailrace channel. (Id. at ¶ 8.) The Projects divert water from existing dams

through horizontal bulb-type turbine and generating units to generate electrical power. (Id.)

AMP describes the machinery and one particular component on each of the eleven

turbines (commonly referred to as a “discharge ring”) as follows: 2

In its simplest form, a run-of-the-river hydroelectric project unit funnels

river water through a channel near the river bed and past a propeller-like group of

blades called a “runner.” As these runner blades spin, the generator to which they

are attached creates energy. The AMP projects contain 11 Units, including two

units at Willow Island and three units each at Cannelton, Smithland, and Meldahl

with runners enclosed within discharge rings at each plant.

2 Voith does not dispute AMP’s summary of this machinery.

Each end of a unit’s channel is constructed of formed concrete or steel liners

encased in concrete. At the middle of the channel, however, is a steel tube-like

structure that directly surrounds the runner, and is suspended in midair within the

power plant building structure known as the “powerhouse.” This water-filled steel

tube-like structure is known as the discharge ring.

Despite some variation along its approximate 11-foot length, the diameter

of the discharge ring is approximately 26 feet on AMP’s hydroelectric plants. The

space between the runner blades and the inner surface of the discharge ring is very

small to increase the efficiency of the turbine.

(ECF No. 59 at 3-4.)

AMP included the following representation of one of the discharge rings situated among

other bulb turbine components:

“SS

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CP AM pe rth ee rf, D Discharge Ring

we a a Ee A rai A 7

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be

(Id. at 4.)

2. The Contracts

AMP selected Voith to provide the major powerhouse equipment, including the hydraulic

bulb-type turbines, governing systems and generators (the “Voith Equipment’) associated with

the Hydro Projects. (Ud. at § 13.) AMP and Voith executed four individual agreements, one

relating to each of the Projects, for Design, Fabrication & Supply of Turbine and Generator

Equipment (collectively, the “Contracts”). (Id. at ¶ 13; see also copies of contracts from each

Hydro Projects, ECF Nos. 1-1, 1-2, 1-3, 1-4.) Each Contract requires Voith to, among other

things, (a) design, fabricate and supply the unique and specialized Voith Equipment to the

Projects; (b) provide project specifications and installation instructions relating to the Voith

Equipment; (c) direct and oversee installation and field testing of the Voith Equipment by

separate contractors; and, (d) ensure proper performance of the installation of the Voith

Equipment by the contractors on the individual projects. (Complaint, ¶¶ 14–15; see ECF Nos. 1-

1, 1-2, 1-3, 1-4.) The Contracts required Voith to, inter alia, perform pursuant to certain

deadlines (“Milestones”) and provided that Voith would be liable to AMP for liquidated

damages if Voith failed to timely achieve the Milestones. (Complaint, ¶¶ 20–22; Articles 3.1,

3.2, 3.3 of ECF Nos. 1-1, 1-2, 1-3, 1-4.) The Contracts further provide that Voith would

reimburse AMP for third-party claims for damages due to delays in the Projects caused by

defects in Voith’s work, not to exceed $23,000 a day for all claimants or, in total, 10% of the

Contract price. (Complaint, ¶ 23; Article 3.5 of ECF Nos. 1-1, 1-2, 1-3, 1-4.)

The Contracts require Voith, under certain circumstances, to provide AMP with a “root

cause analysis,” including design and performance calculations:

[I]f there are two or more similar failures of any component of the Work [all Voith-

provided labor, materials, equipment, and services as defined in the Contracts], the

Contractor [Voith] must promptly perform a “root cause analysis” of the failures

and promptly submit to the Owner [AMP] and Engineer a detailed and

comprehensive report of that analysis including all related design and performance

calculations and measurements. This section applies regardless of whether the

multiple failures all occur in one unit or there is one failure in one unit and one or

more failures of the same component in the other units.

(Contracts, Article 8.02(D)(4) of ECF Nos. 1-1, 1-2, 1-3, 1-4.)

The Contracts further provide that Voith expressly warrants, inter alia, that Voith’s

Work, including the Voith Equipment, will conform to the Contracts and be free of defects in

workmanship and material and that all Voith’s services included within the work, and including

the Voith Equipment, will be performed in accordance with the Contract. (Complaint, ¶¶ 24, 27;

Article 5 of “General Conditions” of Contracts, ECF Nos. 1-1, 1-2, 1-3, 1-4.) Under the

Contracts, Voith must perform all work “consistent with the professional standards of skill, care,

and diligence exercised by entities licensed to provide (where required under Laws and

Regulations) and regularly providing comparable services and work on power plant projects of

similar complexity, design, and cost in the United States.” (Id.)

In addition, upon written notice of a breach of warranty, Voith must, at its own cost,

investigate and correct any non-conforming work. (Article 5, Section 5.09.G of Contracts, ECF

Nos. 1-1, 1-2, 1-3, 1-4.) The Contracts go on to provide as follows:

I. If the Contractor fails to promptly commence and diligently pursue correction of

non-conforming Work after receiving notice to do so under Paragraph 5.09.G, the

Owner may correct the non-conforming Work without giving further notice to the

Contractor.

J. If in the Owner’s opinion the non-conforming Work presents a threat of harm or

danger to people, property, or the environment, the Owner may order the Contractor

to immediately correct the non-conforming Work under Paragraph 5.09.H, or the

Owner may correct the non-conforming Work itself without prior notice to the

Contractor.

K. If the Owner corrects non-conforming Work as described under Paragraph

5.09.I or 5.09.J, the Owner may deduct from the Contract Price all of the reasonable

costs described under Paragraph 5.09.H that the Owner incurs to correct the

defective Work. If those costs exceed the unpaid balance of the Contract Price, the

Contractor must immediately pay the difference to the Owner.

L. Paragraphs 5.09.G, 5.09.H, 5.09.I, 5.09.J, 5.09.K, and Agreement, Exhibit G,

paragraph 2.2.3:

1. apply on a unit-by-unit basis;

2. describe the Owner’s sole and exclusive remedy for a breach of the

warranties described under Paragraph 5.09.C and 5.09.D whether in contract or in

tort or under any other legal theory, and whether arising out of warranties,

representations, instructions, installations or defects from any cause;

3. apply to remedial Work performed under Section 5.09.H, but such Work

will not renew or restart the Correction Period except in the case of the cavitation-

pitting warranty as described under Agreement, Exhibit G, paragraph 2.2.3.3; and

4. do not apply to the performance guarantees described under Agreement

Sections 4.3 and 4.4.

(Article 5, Sections 5.09.I, 5.09.J, 5.09.K, and 5.09.L of Contracts, ECF Nos. 1-1, 1-2, 1-3, 1-4.)

3. Vibrations at Meldahl Project and cracks in Voith discharge rings in other

plants

In October 2015, Voith’s on-site personnel at the Meldahl Project observed, and advised

Voith’s engineering department of, movement in the Meldahl Unit 2 discharge ring. (Exhibits 3

and 4, ECF No. 59-1, PAGEID ## 690, 692–93.) Specifically, Scott Burtch, Voith’s Site

Manager for the Meldahl Project, was “very concerned” about the “excessive” pulsating and

vibrating he observed:

I observed the discharge ring at Meldahl vibrating and pulsating excessively to the

point that water was squirting from the discharge ring itself as it was pulsating and

vibrating. In my many years of experience, I have never observed a component of

this type and magnitude vibrate and pulsate to this extreme degree.

[] I was very concerned from both an operational and safety perspective about the

vibrations and pulsations of the discharge ring. Because of my high level of

concern, I demanded both orally and in writing that the Voith York engineering

department take a serious look at the cause of the vibrations and pulsations of the

discharge ring.

(Exhibit 47, Declaration of Scott Burtch (“Burtch Declaration”), ECF No. 63-1, ¶¶ 4–5

(emphasis in the original).)

In November 2015, during commissioning of the plant at Meldahl, AMP and its

consulting engineers at MWH, expressed concerns about vibrating and pulsating observed in the

Meldahl Unit 2 discharge ring during unit operations. (Exhibit 1, ECF No. 59-1, PAGEID ##

681–83.) On November 9, 2015, Voith responded as follows:

Our head of power unit (turbine and generator) engineering was at Meldahl last

week to take a look at the general behavior of unit 2, as it is the first unit to be put

into commercial operation. He was pleased with the temperature, noise and

vibration levels. He also had the opportunity to take a closer look at the discharge

ring.

Pulsations in the discharge rings are expected. They results [sic] from the rotation

of the four runner blades in the water passage. The discharge ring is designed to be

more flexible than stiff to better absorbed them.

We are also in receipt of MWH letter dated 11/6/2015 on the same subject. Please

note that we already initiated a fatigue analysis of the discharge rings aiming to

respond to this letter. Preliminary results will be available next week.

(Exhibit 2, ECF No. 59-1, PAGEID # 686.)

At the end of 2015, discharge rings designed by and manufactured by Voith that were

used in hydroelectric plants in Brazil were cracking. (Exhibit 14, excerpt of Deposition of

Nathan Eveler, ECF No. 59-1, PAGEID # 722–23.)

On February 11, 2016, Voith sent to MWH, AMP’s engineers, a fatigue analysis on the

Meldahl discharge rings. (Exhibit 21, ECF No. 59-2, PAGEID # 748; Exhibit No. 22, ECF No.

59-2, PAGEID ## 750–86.)

4. Cracks appear in discharge rings at the Projects and Voith’s repairs

In early February 2016, a crack was discovered in the discharge ring of Unit 2 at the

Meldahl Project, requiring that Unit 2 be shut down. (Exhibit 16, ECF No. 59-2, PAGEID

#732.)3 Voith mobilized a team to develop a weld procedure to make repairs. (Id.; Exhibit 20,

ECF No. 59-2, PAGEID # 746.)

3 AMP filed its forty-six exhibits to the Re-Filed Motion to Compel totaling nearly 300 pages in

four mass filings instead of filing each exhibit separately. (See ECF No. 59-1 (containing

Exhibits 1–15); ECF No. 59-2 (containing Exhibits 16–30); ECF No. 59-3 (containing Exhibits

On April 1, 2016, Voith internally noted that repairs would be needed to all 11 units at

Cannelton, Smithland, Willow Island, and Meldahl hydro plants and acknowledged that “the

original design flaw” in the discharge rings originated with Voith’s Heidenheim, Germany

Engineering Center (“VHEC”), which originally designed the discharge rings. (Exhibit 23, ECF

No. 59-2, at PAGEID # 788.)

By May 2016, cracks also appeared in Cannelton Units 2 and 3, requiring they be shut

down while Voith mobilized welders to make repairs. (Exhibit 24, ECF No. 59-2, PAGEID ##

791–93; Exhibit 25, ECF No. 59-2, PAGEID ## 796–97.) Voith acknowledged that the

discharge rings at Cannelton were “cracking faster and more severely than the other sites.”

(Exhibit 24, ECF No. 59-2, PAGEID # 791.) In February 2017, two additional cracks appeared

in Cannelton Unit 3. (Exhibit 28, ECF No. 59-2, PAGEID # 806.) Voith internally

acknowledged that “the discharge ring repairs will be taking a little longer than anticipated.”

(Exhibit 41, ECF No. 59-3, PAGEID # 893.) Voith began discharge ring repairs in October

2017. (Exhibit 31, ECF No. 59-3, at PAGEID # 815.)

After Voith completed repairs on the Cannelton discharge rings in early June 2018, new

cracks appeared in the repaired Cannelton units in late June 2018. (Exhibit 32, ECF No. 59-3,

PAGEID # 818; Exhibit 33, ECF No. 59-3, PAGEID ## 821–23; Exhibit 34, ECF No. 59-3,

PAGEID ## 825–26.) On June 29, 2018, AMP notified Voith of two new cracks at Meldahl

Units 1 and 2, requiring that Unit 1 be shut down and that Unit 2 operate at 50% rated power.

(Exhibit 34, ECF No. 59-3, PAGEID # 825.)

31–45); ECF No. 59-4 (containing Exhibit 46).) AMP’s decision to do so unnecessarily

increased the burden on the Court by requiring it to repeatedly sift through multiple exhibits in

the mass filings to locate specific exhibits cited in the briefing. In future filings, the Court

expects AMP to file exhibits separately with a brief description of each exhibit as Voith did in its

response. (See ECF No. 62.)

5. Cracks discovered in September 2018 at Smithland and Cannelton

On September 18, 2018, Voith discovered cracks in all three units at Smithland, resulting

in the shutdown of the entire Smithland plant. (Exhibit 38, ECF No. 59-3, PAGEID ## 848–49.)

On the same day or the next day, a crack was also discovered in Cannelton Unit 2 (collectively,

with the Smithland cracks, “the September 2018 cracks”), requiring that unit, too, be shut down.

(Id. at PAGEID # 848; Exhibit D, ECF No. 62-4.) On September 21, 2018, Voith sent AMP a

letter reminding AMP that the modifications at Smithland had been delayed in order to

accommodate AMP’s operations over the summer, and, therefore, not all Voith-recommended

modifications had been implemented. (Exhibit C, ECF No. 62-3.) In the same letter, Voith also

detailed a unit-by-unit plan for completion of the necessary repairs to the September 2018 cracks

and associated modifications. (Id.)

6. Voith’s Root Cause Analysis

On September 30, 2018, Voith issued to AMP a “Root Cause Analysis” (“RCA”), which

acknowledged discharge ring cracking at the various Projects, subsequent investigation, and

explained the scope of the RCA as follows:

Cracking reoccurred in modified areas of CWM units. An investigation determined

that the further cracking was from discontinuities that arose because the modified

locations did not meet the quality requirements as defined on the revised drawing.

Based on these identified reasons, repairs and corrective actions were taken to

resolve further instances of discharge ring cracking.

This Root Cause Analysis (RCA) delineates the occurrence of discharge ring

cracking, the methodology used to identify possible causes, the investigation into

those possible causes, the results of the evaluation, and the resulting corrective

actions and their outcomes. Note that the cracks discovered in September 2018 at

Smithland and Cannelton are still under investigation and an addendum will be

added as appropriate.

(Exhibit 39 (RCA), ECF No. 59-3, PAGEID # 854 (emphasis added); see also id. at PAGEID ##

856 (“Note that the cracks discovered in September 2018 at Smithland and Cannelton are still

under investigation and an addendum will be added as appropriate.”), 878 (same).)

As of the date of the RCA, there were thirty-one cracks in the discharge rings throughout

the four Project locations. (Id. at PAGEID # 856.) The RCA acknowledged that “[t]here are

[Voith] modifications that have accumulated a significant number of operational hours without

reoccurrence; however, in some instances, the initial modified location cracked.” (Id. at

PAGEID # 876.) Eleven of the thirty-one cracks occurred in modified locations. (Id. at

PAGEID # 856.) The RCA determined that after Voith redesigned and re-implemented its

recommended modifications, no additional issues have been reported in any of these areas,

except in one area caused by a weld defect in the original manufacture of the discharge ring. (Id.

at PAGEID # 877.)

The RCA also identified the “Root Cause” and “Secondary Root Cause” of the cracks as

follows:

6.5.2 Welding Area (Access)

During repair in the field, welding was required without removing the discharge

ring, and thus the welding position was required to be overhead. Welding in the

overhead position is common; however, higher welder skill is necessary.

In addition to the welding position, the welding environment was constrained by

the proximity of other powerhouse structures to the area requiring repair. This

impacted the design of modification weld joints, limited access for a welding torch,

and limited the welding personnel’s ability to have a clear field of vision while

welding. Welding access was determined to be a contributing factor to the root

cause of the discharge ring cracking (see Section 6.4.2.1).

(Id. at PAGEID # 867.)

7 Root Cause

The original design was based on static analysis. The discharge rings were exposed

to cyclic loading which caused fatigue cracking in locations of high stress

amplitudes. . . .

9 Secondary Root Cause

In locations of high stress amplitudes, the transitions from one thickness to another

were not designed to have a gradual shape or gradual thickness transition, resulting

in a geometric discontinuity at the change in shape or thickness.

The discharge ring is a welded fabricated component. During welding, there may

be surface and subsurface discontinuities that are inherent to the process. The weld

inspection and testing acceptance criteria were defined from the requirements for a

static loading based design. These two separate sources of discontinuities caused

stress concentrations that were the initiation points for fatigue cracking.

(Id. at PAGEID # 868.)

7. Status of cracks and repairs

On October 26, 2018, Voith sent a letter to AMP, addressing the crack discovered at

Cannelton in September 2018. (Exhibit D, ECF No. 62-4.) Voith noted that its repair work to

that crack began on September 25, 2018, and was completed on October 15, 2018. (Id.) Voith

advised that this repair work did not impact the completion of planned modifications on the

Cannelton units. (Id.)

AMP represents in its briefing that Voith made all repairs to the Cannelton discharge

rings by February 2019. (ECF No. 59 at 11.) Voith represents in its briefing that there are

currently no known un-remediated cracks in the discharge rings and that all cracks were repaired

at Voith’s cost. (ECF No. 62 at PAGEID ## 1074, 1076; ECF No. 80.)

B. Procedural Background

1. AMP’s allegations and claims

On August 14, 2017, AMP filed this action against Voith, asserting four claims for

breach of contract and four claims for breach of express warranty based on the four Projects at

Smithland, Cannelton, Meldahl, and Willow Island. (ECF No. 1.) AMP specifically alleged that

Voith materially failed to perform as required by the Contracts and breached as follows:

(a) delivering drawings and equipment late and out of sequence;

(b) delivering defective, incomplete and uncoordinated drawings and defective

installation instructions;

(c) delivering defectively manufactured guide bearings and discharge rings;

(d) defectively designing and/or manufacturing equipment and equipment

components;

(e) delivering equipment that was not completely and/or properly manufactured and

required significant additional field work to install;

(f) failing to deliver “Category C” parts necessary for Voith Equipment assembly;

(g) failing to timely and completely address installation issues with the Voith

Equipment, including but not limited to, failing to timely and completely address

turbine alignment issues;

(h) failing to provide check sheets consistent with the Contracts’ specifications;

(i) refusing to promptly and accurately address problems with the Voith Equipment;

(j) failing to maintain a consistent executive and project management team and site

representatives who were informed and prepared to address ongoing issues; and

(k) causing substantial delay and damage to the Hydro Projects, all in material

breach of the Contracts.

(Complaint, ECF No. 1, ¶ 28; see also id. at ¶¶ 40, 45.) AMP goes on to allege as follows:

46. As result of Voith’s material breaches of the Contracts and the extensive

damages caused to AMP and to AMP’s general contractors, and pursuant to General

Conditions Section 10.04.A entitling AMP to withhold payment from Voith, AMP

has withheld approximately $40 million in payments under the Contracts to offset

the damages and costs incurred by AMP and its general contractors due to Voith’s

material breaches of the Contracts.

47. As a result of Voith’s material breaches of the Contracts, AMP suffered

significant damages and delays including, inter alia, millions of dollars in additional

costs of installation, construction and engineering, liquidated damages, lost power

production and other costs and damages.

(Id. at ¶ 46–47.) AMP seeks damages in an amount of “at least $40 million[.]” (Id. at PAGEID

# 20.)

2. ESI negotiation and ESI Protocol

According to the parties’ Rule 26(f) Report submitted on November 30, 2017, the parties

agreed to exchange lists of custodians from whom ESI will be obtained, proposed keyword

search terms, and proposed date ranges to be applied to the electronically stored information

(“ESI”) by January 30, 2018. (ECF No. 27 at 4.) On December 18, 2017, based on the parties

Rule 26(f) Report, the Court ordered that the parties begin a rolling production of documents by

March 2, 2018. (ECF No. 30 at 2.)

On April 23, 2018, the Court issued the Stipulation and Order Regarding Protocol for the

Search for and Production of Electronically Stored Information and Hard Copy Documents (“ESI

Protocol”). (ECF No. 38.) The ESI Protocol provided, inter alia, as follows:

C. . . . . The parties agree that the terminating date to be used in any date range

will be no later than August 14, 2017. The parties will use reasonable efforts to

identify and, if appropriate, produce ESI created after this date on an as needed

basis and in accordance with the delivery specifications attached in Exhibit A

hereto.

D. By February 16, 2018, the Receiving Party4 may request additional Search

Terms and/or date ranges to be applied to the Producing Party’s ESI.

4 “‘Receiving Party’ or ‘Requesting Party’ means the party to the Action receiving documents

pursuant to this Protocol or in response to a formal request for the production of documents or

information.” (Id. at PAGEID # 448 (Section I.A.7).)

E. The Producing Party5 reserves the right to object to any additional Search

Terms and/or date ranges requested by the Receiving Party. The parties shall meet

and confer in person and/or by telephone regarding any disputed Search Terms

and/or date ranges, and if they are unable to reach resolution, the Receiving Party

may raise this issue with the Court. This Stipulation shall not preclude a motion to

the Court as discovery progresses seeking use of broader or different Search Terms

than initially proposed or agreed upon, on good cause shown.

(Id. at PAGEID # 453 (Section III.D and E).) On the same day, the Court, by separate Order,

ordered that ESI production be completed by September 28, 2018. (ECF No. 39.)

Following ESI discovery disputes and after considering the positions of the parties, the

Court issued the Memorandum of Decision on June 4, 2018. (ECF No. 46.) This Decision

memorialized the methodology for applying keyword searches, including that Voith’s single-

word Project name search terms were over-inclusive and that AMP’s request that Voith search its

ESI collection without reference to the Project names by using as search terms including various

employee and contractor names together with a list of common construction terms and the names

of hydroelectric parts was overly inclusive and would yield confidential communications about

other projects Voith performed for other customers. (Id.) With this guidance form the Court,

Voith began running searches on the data it had collected from its 190 custodians for the agreed-

upon date range of January 1, 2006 to August 14, 2017, using forty-three search terms. (ECF

No. 62 at PAGEID # 1084.)

Shortly thereafter, Voith proposed modifications to the word searches to run searches on

ESI already collected. (Exhibit I, ECF No. 62-9.) AMP refused the proposed modifications,

advising that the ESI Protocol had been negotiated and that Voith did not show good cause for

the proposed modifications “at this late stage in the process[.]” (Exhibit J, ECF No. 10.)

5 “‘Producing Party’ means the party to the Action producing ESI and Documents pursuant to

this Protocol or in response to a formal request for the production of documents or information.”

(Id. (Section I.A.6).)

In June and July 2019, the parties exchanged the names of mediators and agreed upon a

mediator with an eye towards mediating in the fall of 2019.6 (Minute Entry dated June 12, 2019;

Transcript of status conference held on July 17, 2019, ECF No. 71, pp. 25–28.)

Thereafter, despite progress made with ESI production, the process was onerous,

resulting in the Court granting the parties’ request to extend the deadline for completing ESI

production to November 15, 2018, and then to December 15, 2018. (Minute Entry dated July 31,

2018; Minute Entry dated August 28, 2018; ECF Nos. 49, 50.) Fact discovery was later

extended to December 3, 2019. (ECF No. 54.) Thereafter, discovery progressed well (Minute

Entry dated May 6, 2019; Minute Entry dated June 12, 2019), but still required modification of

the case schedule and ultimately extending the fact discovery deadline to June 5, 2020. (ECF

Nos. 69, 71, 74.)

3. Discovery dispute regarding September 2018 cracks and Motion to Compel

On January 18, 2019, AMP sent Voith a letter noting the additional new discharge ring

cracks that occurred as late as 2018, and, “[g]iven the on-going nature of this material defect the

previously agreed to ESI termination date of August 14, 2017 is not sufficient.” (Exhibit 42,

ECF No. 59-3, PAGEID # 895.) AMP therefore requested that Voith re-collect ESI from August

14, 2017, to the present for thirty custodians who had worked on the discharge rings and

requested Voith run thirty-seven search terms paired with select AMP Project-specific terms

against their ESI. (Id. at PAGEID ## 895–98.)

Unable to resolve the dispute, the parties presented the matter to the Court, which ordered

the matter to be briefed. (ECF Nos. 55.) After this issue was fully briefed (ECF Nos. 59, 62,

6 On October 29, 2019, the parties advised the Court via email that mediation has ultimately been

scheduled initially for December 11–13, 2019.

63), the Court permitted supplemental briefing to reflect information obtained through the

discovery process. (ECF Nos. 75, 76, 80.) This matter is now ripe for resolution.

II.

“District courts have broad discretion over docket control and the discovery process.”

Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). “‘It is

well established that the scope of discovery is within the sound discretion of the trial court.’” Id.

(quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). Federal Rule of Civil

Procedure 26(b) identifies the acceptable scope of discovery:

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); see also Fed. R. Civ. P. 33(a)(2) (“An interrogatory may relate to any

matter that may be inquired into under Rule 26(b).”), 34(a) (“A party may serve on any other

party a request within the scope of Rule 26(b)[.]”). In short, “a plaintiff should have access to

information necessary to establish her claim, but [] a plaintiff may not be permitted to ‘go

fishing’; the trial court retains discretion.” Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th

Cir. 2017) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir.

2007)); see also Superior Prod. P’ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 320–

21 (6th Cir. 2015) (“In sum, ‘[a]lthough a plaintiff should not be denied access to information

necessary to establish her claim, neither may a plaintiff be permitted to ‘go fishing’ and a trial

court retains discretion to determine that a discovery request is too broad and oppressive.’”

(quoting Surles ex rel. Johnson, 474 F.3d at 305)).

“[T]he movant bears the initial burden of showing that the information is sought is

relevant.” Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19,

2017) (citing Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant

makes this showing, “then the burden shifts to the non-movant to show that to produce the

information would be unduly burdensome.” Id. (citing O’Malley v. NaphCare, Inc., 311 F.R.D.

461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015

amendment (stating that a party claiming undue burden or expense “ordinarily has far better

information—perhaps the only information—with respect to that part of the determination” and

that a “party claiming that a request is important to resolve the issues should be able to explain

the ways in which the underlying information bears on the issues as that party understands

them”).

III.

A. AMP’s request

AMP seeks an order compelling Voith to produce responsive documents and ESI

utilizing a revised period of time, additional custodians, and key search terms in order to capture

information concerning the post-August 2017 cracking of the discharge rings at the four Projects.

(See generally ECF Nos. 59, 63, 76.) Specifically, AMP seeks ESI and documents created after

August 14, 2017, to the present. AMP initially proposed using for the ESI search the following

sixteen custodians (“the first-requested custodians”), whom AMP believed “were involved in the

discharge ring repairs and are represented in the exhibits AMP has filed in support of its Motion

to Compel”:

Custodian (Voith Germany) | Title / Role

Thomas Neidhardt Turbine Product Owner

Jiri Koutnik Managing Director of Voith Hydro Engineering Center

International, Head of Power Unit Expert Support

Martin Ultsch Head of Global Business Services Voith Global Business

Services EMEA GmbH

Uwe Wehnhardt Member of the Corporate Board of Management and Chairman

of the Management Board

Norbert Riedel Executive Vice President, Chief Technology Officer

Tobias Keitel Chief Operating Officer

Stephan Jahnke Unit Structural Mechanics/Structural Analysis Team

Custodian (Voith York) Title / Role

Stanley Kocon Chief Executive Officer

John Seifarth Director, Engineering

Benjamin Scheunert Hydraulic-FEA Engineer

James Bartkowiak Director, Power Unit Engineering

Nathan Eveler Mechanical Engineer

Chris Gutacker Project Manager

Director of Engineering, Engineering Manager

(ECF No. 59 at 13-14.)

18

In its Supplemental Memorandum, however, AMP represented that it was willing to

narrow its request to the following twelve custodians (“the amended-requested custodians’’):

International, Head of Power Unit Expert Support

(ECF No. 76 at 5 n.7; List of amended custodians and search terms, Exhibit D, ECF No. 76-4.)

AMP initially requested that AMP use the following search terms (“‘the first-requested

search terms’’):

1. “discharge ring”

2. DRs

3. mandoor

4. “split flange”

5. crack

6. “strain gauge”

7. Fatigue

8. fillet

9. weld

10. stress

11. repair

12. rib

13. “slip joint”

14. scallop

15. indication

16. “hot spot”

17. Pulsat!

18. vibrat!

19

19. CFD

20. grind!

21. IIW

22. reinforc!

23. stiffen!

24. stiffness

25. pressure

26. modification

27. mods

28. “design flaw”

29. gussets

30. propogat!

31. shell

32. “skin plate”

33. excavat!

AND

(“Ohio River” OR ORBU OR Cannelton OR CANN OR Smithland OR SMIT

OR Meldahl OR MLDA OR “Willow Island” OR Willow OR CSWM OR

CSW OR AMP OR “American Municipal Power” OR Pete OR Crusse OR

Gerken)

(ECF No. 59 at 14–15 (explaining that “[t]he use of an exclamation point (“!”) denotes using a

stemming or root expansion function to capture variants of a root term (i.e. “pulsate,”

“pulsating,” etc.)”).)

In its Supplemental Memorandum, AMP represented that it also was willing to narrow its

request to the following search terms (“the amended-requested search terms”):

1. “discharge ring”

2. DRs

3. mandoor

4. “split flange”

5. crack

6. “strain gauge”

7. Fatigue

8. stress

9. rib

10. “slip joint”

11. indication

12. “hot spot”

13. pulsat!

14. vibrat!

15. CFD

16. IIW

17. stiffen!

18. stiffness

19. pressure

20. “design flaw”

21. gussets

22. propogat!

AND

(“Ohio River” OR ORBU OR Cannelton OR CANN OR Smithland OR SMIT OR

Meldahl OR MLDA OR “Willow Island” OR Willow OR CSWM OR CSW OR

AMP OR “American Municipal Power” OR Pete OR Crusse OR Gerken)

(ECF No. 76 at 5 n. 7; List of amended custodians and search terms, Exhibit D, ECF No.

76-4.)

B. Relevance

AMP contends that Voith’s ESI related to the discharge rings since August 14, 2017, is

important to the issues in this case as defects in the discharge rings present potential safety

concerns to AMP and its personnel and “financial risk” to AMP, including engineering costs.

(ECF No. 59 at 15–18; ECF No. 63 at 3–6; ECF No. 76.) AMP specifically argues that the

requested discovery is relevant to its claims that Voith breached the parties’ Contracts by

defectively designing and manufacturing the discharge rings. (Id.)

Voith disagrees, arguing that AMP has not identified any damages claimed in this lawsuit

due to discharge ring issues. (ECF No. 62 at PAGEID ## 1091–94; ECF No. 80.) Voith also

contends that the requested discovery is not warranted because Voith has repaired, at its own

cost, all known discharge ring cracks across the eleven units at all four Projects and that there are

currently no known cracks in any of the rings in the operating turbine units. (Id.) According to

Voith, AMP’s present request for additional ESI is a fishing expedition searching for information

to permit AMP to assert that Voith engaged in a willful misconduct. (Id.) Voith goes on to

argue that AMP’s failure to request this discovery earlier in the litigation, particularly when the

parties were negotiating ESI search parameters, undermines AMP’s present position that the

requested ESI is important to the issues in this litigation. (Id.)

Voith’s arguments are not well taken. The Court is persuaded that information regarding

the cracks in the Projects’ discharge rings from August 14, 2017, to the present (“the new time

period”) is relevant to at least AMP’s breach of contract claims, which require AMP to prove the

following: “(1) that a contract existed, (2) that the plaintiff ‘performed its contractual

obligations,’ (3) that the defendant ‘failed to fulfill its contractual obligations without legal

excuse,’ and (4) that the plaintiff ‘suffered damages as a result of the breach.’” Norfolk S. Ry.

Co. v. Allied Erecting & Dismantling Co., Inc., 775 F. App’x 178, 190 (6th Cir. 2019) (quoting

Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 661 N.E.2d 218, 226 (1995)). While

Voith asserts that AMP has failed to identify any damages AMP suffered flowing from defects in

the discharge rings, AMP specifically alleges that it has been damaged by Voith’s breaches

related to the discharge rings, including incurring additional engineering costs. (Complaint, ¶¶

46, 47, 53, 59, 65, 71, Prayer for Relief (seeking in excess of $40 million in damages).) AMP is

entitled to explore the extent of the defects in the Projects’ discharge rings during the new time

period, which is relevant to the scope of AMP’s damages, an element of its claims. Fed. R. Civ.

P. 26(b)(1).

Moreover, AMP also specifically alleges that Voith materially breached the Contracts by,

inter alia, delivering defectively manufactured discharge rings and defectively designing and/or

manufacturing equipment and equipment components. (Complaint, ¶¶ 28(c), (d); 40(c), (d);

45(c), (d); 51(c), (d); 56(c), (d); 63(c), (d); 69(c), (d).) The extent of defects in the Projects’

discharge rings during the new time period, including the September 2018 cracks, is therefore

relevant to the scope of Voith’s alleged breach of the Contracts. Fed. R. Civ. P. 26(b)(1).

Voith nevertheless insists that the RCA thoroughly addressed issues that caused the

cracking in the discharge rings and that the September 2018 cracks present no new issues beyond

those detailed in the RCA, arguing that the RCA specifically addressed planned split flange

modifications and welding discontinuity, which was what caused the September 2018 cracks at

Smithland and Cannelton. The Court, however, is not persuaded that the RCA is a sufficient

substitute for the requested ESI over the new time period. As detailed above, the RCA

specifically excluded any assessment of the September 2018 cracks, noting that those cracks

were still under investigation. (Exhibit 39 (RCA), ECF No. 59-3, PAGEID ## 854, 856, 878; see

also Contracts, Article 8.02(D)(4) of ECF Nos. 1-1, 1-2, 1-3, 1-4 (requiring Voith to conduct and

submit to AMP a “root cause analysis” if “there are two or more similar failures of any

component of the Work”).) Moreover, even if the Court accepts that the RCA implicitly

addressed the September 2018 cracks, AMP has submitted evidence, including deposition

testimony taken in 2019, that may undermine the RCA’s root cause that Voith failed to design

for fatigue. (Compare Exhibit 39 (RCA), ECF No. 59-3, PAGEID # 868 (stating that “the

original design was based on static analysis. The discharge rings were exposed to cyclic loading

which caused fatigue cracking in locations of high stress amplitudes”) with Exhibit 48 (excerpt

of deposition of Randy Seifarth, P.E., ECF No. 63-2 (testifying that there was a fatigue analysis

on the discharge ring) and Exhibit 49 (excerpt of deposition of Daniel McGinnis), ECF No. 63-3

(same).) In addition, while Voith disputes its significance, AMP has provided recent testimonial

evidence from Voith witnesses regarding Voith’s task force investigating cracks in discharge

rings as well as Voith’s efforts. (See also Exhibit A, ECF No. 76-1 (excerpt of Deposition of

Norbert Riedel, Voith’s Chief Technical Officer from Germany (taken July 10, 2019), testifying

regarding a discharge ring task force that generated updates in various forms, including reports,

emails, or memorandum, and that the documents are easily accessible by him and others);

Exhibit B, ECF No. 76-2 (excerpt of Deposition of Ben Scheunert, Voith’s engineer (taken

August 14, 2019), testifying that he and other Voith employees were instructed in and around the

summer and fall of 2018 to develop a potential new design for AMP’s discharge rings).) Neither

the RCA nor Voith’s present representations in its briefing is a replacement for (or otherwise

obviates) the need for this information. Based on this record, the Court is therefore persuaded

that the requested ESI for the new time period is relevant to AMP’s breach of contract claims,

which include the scope of the breach as well as the scope of AMP’s damages. Fed. R. Civ. P.

26(b)(1).

Finally, Voith contends that AMP’s failure to seek the requested discovery when the

parties were negotiating ESI parameters in early 2018 undermines AMP’s present contention that

this discovery is relevant to its claims. However, the ESI Protocol obligates the parties to “use

reasonable efforts to identify and, if appropriate, produce ESI created after this date [August 14,

2017] on an as needed basis” and the ESI Protocol does not preclude “a motion to the Court as

discovery progresses seeking use of broader or different Search Terms than initially proposed or

agreed upon, on good cause shown.” (ECF No. 38 at PAGEID # 453 (Section III.C, D, and E).)

Moreover, new evidence uncovered in the discovery process after the ESI search terms,

timeframe, and custodians were negotiated prompted the present Motion to Compel. (See, e.g.,

Exhibit 48, ECF No. 63-2 (Seifarth deposition excerpt); Exhibit 49, ECF No. 63-3 (McGinnis

deposition excerpt); Exhibit A, ECF No. 76-1 (Riedel deposition excerpt); Exhibit B, ECF No.

76-2 (Scheunert deposition excerpt); see also Burtch Declaration.) Finally, fact discovery does

not close until June 5, 2020 (ECF No. 74), distinguishing this action from the cases cited by

Voith. See United States ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 236, 239–41

(D.D.C. 2011) (denying request for additional ESI searches where discovery had closed and the

responding party had already conducted ESI searches, including an initial search of databases for

twenty custodians and an expanded search of databases for 230 custodians); Davidson v. Apple,

Inc., No. 16-cv-04942, 2018 WL 6169349 (N.D. Cal. Nov. 26, 2018) (denying in part motion to

compel filed “very late in the discovery period” to the extent the plaintiffs already

“compromised” regarding that discovery in a previously resolved discovery dispute but granting

in part as to other requested discovery).

In short, for all these reasons, the requested discovery relating to the cracks in the

discharge rings at the Projects from August 14, 2017, to the present is relevant to AMP’s breach

of contract claims. Fed. R. Civ. P. 26(b)(1).

C. Burden and Proportionality

The parties next dispute whether the requested discovery is unduly burdensome and

proportional to the needs of this case. As previously discussed, once AMP shows that the

information sought is relevant, the burden shifts to Voith to demonstrate that producing the

information would be unduly burdensome. Prado v. Thomas, No. 3:16-cv-306, 2017 WL

5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citations omitted); see also Fed. R. Civ. P. 26(b)(1)

advisory committee’s note to 2015 amendment (stating that a party claiming undue burden or

expense “ordinarily has far better information—perhaps the only information—with respect to

that part of the determination” and that a “party claiming that a request is important to resolve

the issues should be able to explain the ways in which the underlying information bears on the

issues as that party understands them”).

Here, Voith contends that the burden of production outweighs any marginal relevance of

the requested discovery. In support, Voith first explains its ESI production to date and the

accompanying cost and burden of that production. Specifically, Voith represents that it has

already produced 540,790 electronically-stored documents in December 2018, and produced an

additional 169,396 documents in February 2019. (ECF No. 62 at PAGEID # 1086 (representing

further that, of that data, over 32,000 documents mentioned “discharge rings”).) Voith also

submits the Declaration of Jonathan Robins, who is the National Director of E-Discovery

Operations for Ricoh USA, which performed data culling, processing, and hosting services in

connection with Voith’s production of ESI. (Exhibit M, ECF No. 62-13, ¶¶ 1–3 (“Robins

Declaration”).) Mr. Robins avers that, to date, Ricoh has billed Voith approximately $1.1

million for its E-Discovery services. (Id. at ¶ 10.) Voith notes that Ricoh’s bill does not include

fees and time expended by Voith’s counsel and employees, which included time collecting

unfiltered data from 190 custodians. (Id. at ¶¶ 4–5.) The volume of unfiltered data Voith

collected and transmitted to its E-Discovery vendor was approximately 15 TB.7 (Id. ¶ 4). Voith

further explains that in addition to the “collection, review, and production of ESI from 190

custodians for the agreed-upon and ordered date range of January 1, 2006 to August 14, 2017,

using the 43 search terms, Voith also identified, collected and produced approximately 900

bankers’ boxes containing all hard-copy documents relating to the projects.” (ECF No. 62 at

PAGEID # 1087.)

7 As Voith explains, “[o]ne terabyte (“TB”) is 1000 gigabytes, or the equivalent of 500 billion

pages of plain text. (ECF No. 62 at PAGEID # 1087 n.5 (citing Laethem Equip. Co. v. Deere &

Co., No. 05-10113, 2008 U.S. Dist. LEXIS 129530, at *13 n.1 (E.D. Mich. Dec. 3, 2008)

(citations omitted)).)

Voith goes on to explain that compelling Voith to collect data from fifteen8 custodians

using a new date range of August 14, 2017, to the present and using thirty-three new search

terms on the newly-collected ESI is unduly burdensome and disproportionate the needs of this

case. In support, Voith points to the Robins Declaration, explaining that Voith will have to go

back and identify and re-collect ESI from all email and home share data for each of these

custodians. (Robins Declaration, ¶ 13.) The email accounts and home shares for these

custodians comprise approximately 2 TB of data. (Id. at ¶ 14.) Once Voith collects the data, it

will have to provide the unfiltered data to Ricoh. (Id. at ¶ 15.) Ricoh will then process the data

collected by Voith to extract the metadata from all items, “flatten” the data by extracting all

emails, including attachments to emails, and extract data from containers such as zip and PST

files. (Id. at ¶ 6). Once this initial processing is complete, Ricoh will apply the date filter to

identify the data that falls within the newly-chosen date range. (Id.) Ricoh will then fully index

the data to extract text and facilitate the keyword searching. (Id. at ¶ 7.) Once the thirty-three

newly-requested searches are run, the responsive data must be fully processed so that it can be

uploaded to a document review platform. (Id. at ¶¶ 8-9.) After these steps are complete, Voith

must conduct a privilege review and prepare the newly-requested ESI for production. (ECF No.

62 at PAGEID # 1088.) The cost of Ricoh’s services alone for performing this production could

exceed $100,000. (Robins Declaration, ¶ 16.) Accordingly, Voith takes the position that the

minimal relevance of this discovery, unnecessarily requested at this late stage of the litigation,

does not outweigh the burden and expense of production and is therefore disproportionate to the

8 Voith erroneously refers to fifteen, rather than sixteen, custodians identified in AMP’s Motion

to Compel. (ECF No. 59 at 13 (identifying sixteen custodians); ECF No. 62 at PAGEID # 1088

(referring to fifteen custodians in the Motion to Compel); ECF No. 80 at 1 (referring to sixteen

custodians); Robins Declaration, ¶¶ 12–14 (using fifteen custodians).)

needs of this case.

Voith’s arguments are not well taken. As discussed in detail above, the Court concludes

that the requested discovery is relevant to AMP’s breach of contract claims and there is no

substitute for this information, which is solely in Voith’s possession. Fed. R. Civ. P. 26(b)(1),

(b)(2); cf. Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. While Voith

presents evidence that Ricoh’s cost for producing this ESI for the new time period for fifteen

custodians using thirty-three search terms could exceed $100,000, the Court notes that this cost is

not disproportionate to the $1.1 million for the cost of Ricoh’s services related to ESI produced

to date or to the amount AMP alleges at issue in this action ($40 million). Moreover, Voith’s

estimate of Ricoh’s cost for additional ESI is based on AMP’s initial request identifying sixteen

custodians and thirty-three new search terms. AMP later revised and reduced its request to

twelve custodians and twenty-two search terms, which will presumably require fewer resources

to search and produce. (See ECF No. 76 at 5 n.7; List of amended custodians and search terms,

Exhibit D, ECF No. 76-4.) These numbers— twelve custodians and twenty-two search terms—

are also far fewer than the 190 custodians and forty-three search terms previously used in the

prior ESI collection. While the Court cannot say based on the present record that the specific

number and identity of custodians and specific search terms are appropriate, in light of the cost

and scope of ESI conducted to date, additional ESI from the new time period is not

disproportionate in this litigation where AMP has alleged $40 million in damages, including

engineering costs.9 Fed. R. Civ. P. 26(b)(1).

9 It is worth noting that Voith has asserted a counterclaim against AMP asserting inter alia that

“AMP materially failed to perform as required by the Contracts, resulting in interferences,

hindrances, delays and defective performance by AMP, MWH and the Installation Contractors

that impacted Voith’s work,” and seeks damages “in excess of $40 million.” (Voith’s Answer

and Counterclaim, ECF No. 22 at ¶¶ 59 & 83.)

Finally, to the extent that Voith complains that the timing of AMP’s request increases the

burden of production, the Court again notes that the ESI Protocol expressly obligates the parties

to use reasonable efforts to produce ESI created after August 14, 2017, and authorizes the filing

of a motion to seek broader or different search terms. (ECF No. 38 at PAGEID # 453 (Section

III.C, D, and E).) Moreover, as previously discussed, new evidence uncovered in the discovery

process, including as recently as July and August 2019, and after the parties negotiated ESI

search terms, timeframe, and custodians, supports the timing of AMP’s present request. (See,

e.g., Exhibit 48, ECF No. 63-2 (Seifarth deposition excerpt); Exhibit 49, ECF No. 63-3

(McGinnis deposition excerpt); Exhibit A, ECF No. 76-1 (Riedel deposition excerpt); Exhibit B,

ECF No. 76-2 (Scheunert deposition excerpt); see also Burtch Declaration.) Finally, the Court

notes that Voith has more than six months to produce this ESI as fact discovery does not close

until June 5, 2020. (ECF No. 74.)10 For all these reasons, the Court finds that the timing of the

Motion to Compel does not unduly burden Voith.

IV.

Accordingly, Re-Filed American Municipal Power, Inc.’s Motion to Compel (ECF No.

59) is GRANTED IN PART AND DENIED IN PART. Specifically, AMP’s Motion is

GRANTED to the extent that it is entitled to some additional ESI related to the post-August

2017 cracking of the discharge rings at the four Projects for the period August 14, 2017, to the

present. However, because the Court is unable on the present record to evaluate the suitability of

the twelve custodians and twenty-two search terms identified by AMP (see ECF No. 76 at 5 n.7;

Exhibit D, ECF No. 76-4), the Motion is DENIED WITHOUT PREJUDICE as to these

10 The Court will discuss with the parties at the upcoming status conference whether modification

of the present case schedule is necessary to accommodate this additional discovery.

specific custodians and search terms. The parties are DIRECTED to meet and confer regarding

the custodians and search terms appropriate to collect the ESI addressed in this decision from the

time period of August 14, 2017, to the present. The parties are REMINDED to exhaust all

extrajudicial efforts when determining the appropriate custodians and search terms to use in this

search. The parties are ADVISED that they should be prepared to update the Court as to their

plan for scheduling these discussions as well as any necessary proposed modification of the

current case schedule at the next conference set for November 26, 2019.

Finally, Voith’s request for AMP to bear the cost of producing the requested discovery

(ECF No. 62 at PAGEID # 1097) is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: November 22, 2019 ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE