Opinion

Fouad v. The Milton Hershey School and School Trust

Court: District Court, M.D. Pennsylvania
Filed: Jun 17, 2020
Cited by: 0 cases
Authority: More cited than 29.1%

holding that discovery rulings are reviewed under abuse of discretion standard rather than de novo standard

How later courts described this case

holding that discovery rulings are reviewed under abuse of discretion standard rather than de novo standard
holding that a magistrate judge’s resolution of discovery disputes deserves substantial deference and should be reversed only if there is an abuse of discretion
“The party asserting the attorney-client privilege ‘bears the burden of proving that it applies to the communication at issue.’ ”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

F. FREDERIC FOUAD, : Civil No. 1:19-CV-253

Plaintiff : (Judge Wilson)

v. : (Magistrate Judge Carlson)

THE MILTON HERSHEY SCHOOL :

AND TRUST, et al., :

Defendants :

MEMORANDUM OPINION AND ORDER

I. Introduction

This case, which comes before us for consideration of 15 discovery motions,

(Docs. 260, 261, 262, 263, 269, 270, 369, 371, 376, 390, 399, 400, 402, 406, 408),

presents itself as yet another battle in a prolonged bout of internecine legal warfare

between the plaintiff, F. Frederic Fouad, and the defendants. The parties have

conducted this litigation in a bitter and acrimonious fashion, taking every

opportunity to engage in a mutually caustic dialogue resulting in dysfunction and

strife which is antithetical to the goals of our legal system—“the just, speedy, and

inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The

instant discovery motions are no exception.

Indeed, it appears that in the three months that these parties have engaged in

discovery regarding Fouad’s motion for termination sanctions, they have

accomplished very little in terms of reaching the merits of the issues they have placed

before this court. Rather, they have littered the docket with prolific and acerbic

rhetoric, a practice which does not advance either party’s position before this court.

They have also been largely unable to come to a consensus on the scope of the

limited and tailored discovery which we had ordered them to undertake in March of

this year. Based on our review of these parties’ extensive submissions, we believe

that each party has approached these discovery questions from an almost theological

perspective, with each party adhering to certain positions as articles of faith, rather

than viewing them as factual matters which must be subject to discovery and proof.

For example, the plaintiff appears to believe that the focus of discovery should be

on what the defendants allegedly did with the 1999 Memo after it appeared in their

possession. Thus, for Fouad it is an article of faith that this disputed memo was both

privileged and stolen.

In contrast, the defendants focus upon the 1999 Memo’s creation, Fouad’s

relationship to it, and the events at the 1999 conference at the Hotel Hershey at which

Fouad alleges that the theft of this document occurred. However, they do so in a

categorical fashion, asserting as an article of faith that the memo was neither

privileged nor stolen. Adopting this perspective, the defendants would like us to

decide this sanctions motion on the pleadings alone and refrain from ordering any

additional discovery.

In our view, as is frequently the case, the path toward resolution of this

sanctions motion lies somewhere in between the parties’ two extreme suggestions.

As Fouad’s counsel noted during our oral argument on these discovery motions, this

court has broad discretion in sequencing discovery. In the instant case, we will

exercise that discretion and order the parties to return to return to first principles.

Since our initial discovery scheduling order appears to have been too broad in scope,

the purpose of this memorandum opinion is to refocus and refine the scope of

discovery which we believe will lead to prompt resolution of the key, largely

overlooked issue before us within the plaintiff’s motion for termination sanctions:

whether the 1999 Memo was in any sense privileged and whether it was ever

stolen—key issues since Fouad seeks sanctions for stolen document use. To this end,

we will order the bifurcation of the discovery process in this case as follows: the

parties should first endeavor to determine whether the 1999 Memo was ever stolen

and whether this document is subject to any valid privilege held by Fouad.1 Only

after these determinations have been made, and both answered in the affirmative,

should the parties delve into what use has been made of this document. We will set

1 We specify that the privilege should be held by Fouad in this instance because in

his motion for termination sanctions, Fouad states that the document “included

Plaintiff’s attorney work-product[.]” (Doc. 241).

a separate discovery schedule for the second half of discovery, relating to the use of

the memo, should the parties need to progress to this stage. We note that thus far,

the parties have largely expected us to decide this motion for sanctions on the basis

of each side’s conjecture and speculation, rather than facts garnered through

discovery efforts in support thereof. Thus, we expect that the parties will engage in

a full and good faith exchange to establish a factual record that will enable us to

determine these important preliminary issues relating to this motion.

We also note that by properly refocusing the parties’ discovery efforts upon

these essential threshold questions, the more focused scope of discovery may render

many of the pending discovery disputes moot. In addition, we are aware that much

of the discovery served thus far has been tailored to a much larger universe of

information than this order prescribes. To avoid prejudicing either side, the parties

should begin the discovery process again with this new limited scope in mind as set

forth below.

We now turn to the pending motions before us. These 15 discovery motions

consist of four motions for a protective order, (Docs. 369, 371, 406, 408), nine

motions to compel discovery, (Docs. 260, 261, 262, 263, 269, 270, 376, 390, 399),

and two motions to strike, (Docs. 400, 402).2 The parties involved in these various,

2 There remains one motion for sanctions, (Doc. 421), which is not yet ripe for our

review.

far-flung motions include the Elliott Greenleaf law firm and one of its attorneys,

Jarad Handelman (collectively, “EG Defendants”); the Milton Hershey School’s

(“MHS”) president, Peter Gurt; MHS’s senior director for the alumni relations and

programs, Ralph Carfagno; MHS’s vice president for legal affairs, Andrew Cline;

and numerous present and former members of the board of directors for MHS and

the Hershey Trust Company (collectively, “MHS Defendants”);3 as well as the

plaintiff, Mr. Fouad. These motions stem from our determination that limited,

carefully tailored discovery was appropriate in this case regarding Fouad’s motion

for termination sanctions for what the plaintiff alleges was the unlawful receipt and

inappropriate use by the defendants over the past 20 years of a document which he

claims was attorney work product. (Doc. 241). While appearing to be a simple task

with a narrow and focused scope, these parties quickly illustrated for us their vast

disagreement regarding the scope of discovery and what documents each side was

entitled to receive. Thus, on April 6, 2020, we directed these parties that: “any

lingering or perceived disputes regarding the scope of discovery existing after April

13, 2020 should be promptly raised in an appropriate motion before this court, i.e.,

either a motion to compel or a motion for a protective order.” (Doc. 365). After being

3 The MHS and HTC have mirror boards. These individual current and former board

members made part of this lawsuit include Robert Heist, David Saltzman, Velma

Redmond, James Meade, James Brown, M. Diane Koken, Melissa Peeples-

Fullmore, James Katzman, and Jan Loeffler Bergen.

inundated with these motions, we determined that extending the option for oral

argument would be appropriate to give each side an opportunity to fully present their

perspective on these contentious discovery motions. This argument was held on June

12, 2020, at which time all parties were given an opportunity to be heard.

The motions subject to this argument are fully briefed and are, therefore, ripe

for disposition. After careful consideration, these motions will be granted, in part,

and denied, in part.

II. Discussion

A. Standards Governing Discovery Disputes

Several basic guiding principles inform our resolution of the instant discovery

disputes. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs

motions to compel discovery, and provides that:

(a) Motion for an Order Compelling Disclosure or Discovery

(1) In General. On notice to other parties and all affected persons, a

party may move for an order compelling disclosure or discovery. . . .

Fed. R. Civ. P. 37(a).

The scope of what type of discovery may be compelled under Rule 37 is

defined, in turn, by Rule 26 of the Federal Rules of Civil Procedure, which provides

that:

Unless otherwise limited by court order, the scope of discovery is as

follows: Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and proportional

to the needs of the case, considering the importance of the issues at

stake in the action, the amount in controversy, the parties’ relative

access to relevant information, the parties’ resources, the importance of

the discovery in resolving the issues, and whether the burden or expense

of the proposed discovery outweighs its likely benefit. Information

within this scope of discovery need not be admissible in evidence to be

discoverable.

Fed. R. Civ. P. 26(b)(1).

Rulings regarding the proper scope of discovery, and the extent to which

discovery may be compelled, are matters consigned to the court’s discretion and

judgment. Thus, it has long been held that decisions regarding Rule 37 motions are

“committed to the sound discretion of the district court.” DiGregorio v. First

Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the

scope of discovery permitted under Rule 26 also rest in the sound discretion of the

Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).

Therefore, a court’s decisions regarding the conduct of discovery, and whether to

compel disclosure of certain information, will be disturbed only upon a showing of

an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir.

1983). This far-reaching discretion extends to rulings by United States Magistrate

Judges on discovery matters. In this regard:

District courts provide magistrate judges with particularly broad

discretion in resolving discovery disputes. See Farmers & Merchs.

Nat’l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585

(D.N.J. 1997). When a magistrate judge’s decision involves a

discretionary [discovery] matter . . . , “courts in this district have

determined that the clearly erroneous standard implicitly becomes an

abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224

F.R.D. 169, 174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United

States, 943 F. Supp. 501, 502 (E.D. Pa. 1996)). Under that standard, a

magistrate judge’s discovery ruling “is entitled to great deference and

is reversible only for abuse of discretion.” Kresefsky v. Panasonic

Communs. & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see also

Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45

(N.D.N.Y. 1999) (holding that discovery rulings are reviewed under

abuse of discretion standard rather than de novo standard); EEOC v.

Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y. 2004) (holding that a

magistrate judge’s resolution of discovery disputes deserves substantial

deference and should be reversed only if there is an abuse of discretion).

Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).

This discretion is guided, however, by certain basic principles. Thus, at the

outset, it is clear that Rule 26’s broad definition of that which can be obtained

through discovery reaches nonprivileged matter that is relevant to any party’s claim

or defense. Therefore, valid claims of relevance and privilege still cabin and restrict

the court’s discretion in ruling on discovery issues. Furthermore, the scope of

discovery permitted by Rule 26 embraces all relevant information—a concept which

is not confined to admissible evidence but is also defined in the following terms:

“Information within this scope of discovery need not be admissible in evidence to

be discoverable.” Fed. R. Civ. P. 26(b)(1). Rather, “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

Id.

Moreover, it is also undisputed that “courts have broad discretion to manage

the discovery process, and can expedite or otherwise alter the timing and sequence

of discovery.” Canal St. Films v. Does 1-22, No. 1:13-CV-0999, 2013 WL 1775063,

at *2 (M.D. Pa. Apr. 25, 2013). See Malibu Media LLC v. Doe, No. 1:15-CV-1129,

2015 WL 3795948, at *2 (M.D. Pa. June 18, 2015); Kone Corp. v. ThyssenKrupp

USA, Inc., No. CIV.A. 11-465-LPS, 2011 WL 4478477, at *3 (D. Del. Sept. 26,

2011). Indeed, at the oral argument relating to these discovery motions, the parties

conceded this broad discretion that is conferred upon the court.

The Federal Rules of Civil Procedure also set numerical limits on the number

of discovery demands which a party may propound. In this regard, Rule 33(a)(1) of

the Federal Rules of Civil Procedure, which governs interrogatories to parties,

expressly provides that: “Unless otherwise stipulated or ordered by the court, a party

may serve on any other party no more than 25 written interrogatories, including all

discrete subparts.” Fed. R. Civ. P. Rule 33(a)(1) (emphasis added). Over the past

years, much ink has been spilled addressing the question of how interrogatory

sections and subparts should be counted. In this regard, the positions of the parties

are proponents or opponents of particular interrogatories often color their views

regarding whether an interrogatory consists of a single, albeit extended, question, or

multiple subparts each of which is independently counted in determining whether

Rule 33’s limits have been met or exceeded. On this score, as the courts have

observed: “Identifying a ‘discrete subpart’ has proven difficult.” Banks v. Office of

Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004). In addressing this

question: “[T]he courts have . . . attempted to formulate more conceptual approaches,

asking whether one question is subsumed and related to another or whether each

question can stand alone and be answered irrespective of the answer to the others.

Kendall v. GES Exposition Services, 174 F.R.D. 684 (D. Nev. 1997). But, . . . , this

is anything but a bright-line test. Safeco of America v. Rawstron, 181 F.R.D. 441,

445 (C.D. Cal. 1998).” Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7,

10 (D.D.C. 2004).

In addressing this question, we begin as many other courts have in the past,

by considering the Advisory Committee Notes to Rule 33 which explains that:

Interrogatories often contain subparts. Some are explicit and separately

numbered or lettered, while others are implicit and not separately

numbered or lettered. Extensive use of subparts, whether explicit or

implicit, could defeat the purposes of the numerical limit contained in

Rule 33(a), or in a scheduling order, by rendering it meaningless unless

each subpart counts as a separate interrogatory. On the other hand, if all

subparts count as separate interrogatories, the use of interrogatories

might be unduly restricted or requests for increases in the numerical

limit might become automatic. The Advisory Committee addressed this

issue and provided some guidance as to when subparts should and

should not count as separate interrogatories:

Each party is allowed to serve 25 interrogatories upon any other party,

but must secure leave of court (or stipulation from the opposing party)

to serve a larger number. Parties cannot evade this presumptive

limitation through the device of joining as ‘subparts’ questions that seek

information about discrete separate subjects. However, a question

asking about communications of a particular type should be treated as

a single interrogatory even though it requests that the time, place,

persons present, and contents be stated separately for each such

communication.

Advisory Committee Note, 146 F.R.D. 401, 675-676 (Fed. 1993).

Nyfield v. Virgin Islands Tel. Corp., 200 F.R.D. 246, 247 (D.V.I. 2001).

Adopting this approach, we note that we are urged to “use rules of

reasonability and fairness in compressing subparts to count against [Rule 33’s 25

interrogatory] limit.” Id. In this regard, “the best test of whether questions with[in]

a single interrogatory are subsumed or related, is to examine whether the first

question is primary and subsequent questions are secondary to the primary question.

Or, can the subsequent question stand alone?” Id. Put another way, “[a] subpart is

discrete and regarded as a separate interrogatory when it is logically or factually

independent of the question posed by the basic interrogatory. See Safeco of Am. v.

Rawstron, 181 F.R.D. 441, 444-45 (C.D. Cal. 1998); Kendall v. GES Exposition

Servs., Inc., 174 F.R.D. 684, 685-87 (D. Nev. 1997).” New Colt Holding Corp. v.

RJG Holdings of Florida, Inc., No. CIV. 3:02CV173 (PCD), 2003 WL 22305141, at

*1 (D. Conn. Feb. 6, 2003). Thus, an evaluation of whether various queries constitute

separate interrogatories for purposes of assessing the limits set by Rule 33 often

entails, “including subparts and sub-subparts that are often logically and/or factually

independent of the question posed by the basic interrogatory.” Knit With v. Knitting

Fever, Inc., No. CV 08-4221, 2010 WL 11474937, at *1 (E.D. Pa. Jan. 22, 2010).

Rule 26 also provides a framework by which a party may seek a protective

order to limit the scope of discovery. Specifically, Rule 26(c)(1) provides as follows:

A party or any person from whom discovery is sought may move for a

protective order in the court where the action is pending. . . . . The

motion must include a certification that the movant has in good faith

conferred or attempted to confer with other affected parties in an effort

to resolve the dispute without court action. The court may, for good

cause, issue an order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense, including one

or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place, for the disclosure or

discovery;

party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of

disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is

conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research,

development, or commercial information not be revealed or be revealed

only in a specified way; and

(H) requiring that the parties simultaneously file specified documents

or information in sealed envelopes, to be opened as the court directs.

Fed. R. Civ. P. 26(c)(1). In addition, valid claims of relevance and privilege still

cabin and restrict the court’s discretion in ruling on discovery issues. If a motion for

a protective order is denied in whole or in part, “the court may, on just terms, order

that any party or person provide or permit discovery.” Fed. R. Civ. P. 26(c)(2).

Finally, we note that this broad discretion over discovery matters extends to

decisions under Rule 26(c) relating to the issuance of protective orders limiting and

regulating the timing of discovery. Indeed, it is undisputed that: “ ‘[t]he grant and

nature of [a protective order] is singularly within the discretion of the district court

and may be reversed only on a clear showing of abuse of discretion.’ Galella v.

Onassis, 487 F.2d 986, 997 (2d Cir. 1973) (citation omitted).” Dove v. Atlantic

Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992).

B. Protective Orders

a. The Defendants’ Motions for a Protective Order, (Docs. 369,

371), Will be Granted.4

In their respective motions for a protective order, (Docs. 369 and 371), the EG

and MHS Defendants allege that the plaintiff served excessive discovery requests in

violation of our March 9, 2020 order, (Doc. 348), which set narrow and tailored

discovery limitations for the parties. Specifically, the defendants assert that Fouad

propounded excessive requests for production of documents on various individual

defendants and that these requests included additional discrete subparts, placing

them well over the limit set by our March 9, 2020 order. In addition, the defendants

4 Our decision to grant this protective order is, to some extent, an apparent Pyrrhic

victory for the MHS Defendants with respect to the interrogatories propounded by

Fouad. We note that it appears that the MHS Defendants have indeed answered

Fouad’s interrogatories despite the fact that they had a motion for a protective order

still pending with this court. (See Doc. 403, Exhibits 1A-L).

assert that Fouad served a total of 125 interrogatories on these various defendants—

a figure also well beyond the prescribed limitations.

This March 9, 2020 order, which attempted to set clear guidelines for the

parties’ limited discovery, set the following restrictions on discovery:

(i) Depositions to be taken by:

Plaintiff 7 All Defendants 7

(ii) Interrogatories:

Plaintiff 25 All Defendants 25

(iii) Request for Production of Documents:

Plaintiff 25 All Defendants 25

(iv) Request for Admissions:

Plaintiff 25 All Defendants 25

(Doc. 348). This order also noted that “these are aggregate limits for both parties.

Discovery in excess of these limits must be approved by the Court upon a

showing of good cause.” (Id.) (emphasis in original). It is undisputed that we have

not received any such request for additional discovery from Fouad.

Fouad appears to argue that despite serving discovery requests on all

defendants, the fact that he served each defendant with a number of requests within

our prescribed limits with the same or common language rendered the number of

requests compliant with the limits set by this order. In other words, he argues that

the number of questions with different requests was within our set limits, even

though the total number of questions served may have been over the amount

allowed.5 We disagree with this logic for a number of reasons.

5 For example, Fouad served the following requests for production of documents on

all 12 individual MHS Defendants and both EG Defendants:

1. Documents and communications relating to the 1999 Memo,

including, but not limited to: (a) the interception, acquisition, or any

other way obtaining of the 1999 Memo at the Hotel Hershey or

anywhere else; (b) the chain of custody of the 1999 Memo before

and after it was received by MHS, including the details of the files

in which it was stored, the custodian of these files, and its disclosure

to all persons, including all Defendants in this case; (c) the details

of how, when and from whom the 1999 Memo was obtained by

MHS; (d) MHS’s decision to forbear from returning the 1999 Memo

to Plaintiff, including any advice from any attorney to return the

1999 Memo to Plaintiff and forebear from examining or using the

1999 Memo; (e) MHS disclosures of the 1999 Memo to any attorney

and the purpose of each such disclosure; (f) MHS’s decisions to use

the 1999 Memo and the details and purpose of those decisions and

each such use; (g) any strategic plan or document of any kind,

whether media, legal, or otherwise, that makes use of the content of

the 1999 Memo directly or indirectly including, without limitation,

any plan to use the 1999 Memo to allege Dragonetti Act violations

against Plaintiff or any other party, any plan to rely on the 1999

Memo to obtain discovery concerning Plaintiff in any proceeding,

and other plan that makes use of the content of the 1999 Memo in

any way; and (h) the original 1999 Memo received by MHS and

every iteration of the 1999 Memo.

2. Documents not already produced by you in response to request #1

and relating to the use, publication, or disclosure of the content of

the 1999 Memo by you or any other Defendant in this case for any

purpose, including, but not limited to: (a) use, publication, or

disclosure of the content of the 1999 Memo in any docketed filing

Initially, even without reviewing the subparts of Fouad’s discovery requests

for document production and interrogatories, which seem replete with separate and

distinct inquiries, he has requested more than he was authorized by the court to

propound. In total, it appears that Fouad has propounded at least 32 requests for

production of documents and 125 interrogatories in blatant disregard for the

prescribed aggregate limits.6 Thus, Fouad has demanded 7 more requests for

or other filing in any proceeding whether or not under seal and in

any administrative proceeding whether or not confidential; (b) use,

publication, or disclosure of the content of the 1999 Memo in

evaluating, planning, or pursuing litigation hold letters, threats, or

claims. including claims relating to the Dragonetti Act against

Plaintiff or any other person or party; (c) use, publication, or

disclosure of the content of the 1999 Memo relating to A&G or to

any other person relating to any media or public relations strategy

of MHS; and (d) use, publication, or disclosure of the content of the

1999 Memo to any other persons.

(Doc. 370, Exhibits 1, 6). Likewise, the requests served on the MHS designee

contained substantially similar language to that quoted above. (See Doc. 370, Exhibit

3). The fact that virtually all defendants received the same requests does not render

Fouad’s discovery demands compliant with our March 9, 2020 order.

6 We reach these figures as follows: in terms of his requests for production of

documents, Fouad served each of the 12 MHS defendants with two requests, the

MHS designee with four requests, and each of the EG Defendants with two requests.

Thus, in the aggregate, Fouad has served 32 requests for production of documents

on all defendants—at least 7 more than he is allowed. For interrogatories, Fouad

served each of the 12 individual MHS defendants with 9 interrogatories, the MHS

designee with 5, and each of the EG Defendants with 6. Thus, in the aggregate,

Fouad has served 125 interrogatories on all defendants—five times the aggregate

limit set by our March 9, 2020 order. We note that this is a very conservative estimate

since it does not take into account the compound nature of many of these discovery

demands.

production of documents and 100 more interrogatories than he is permitted under

our March 9, 2020 order. Based on these figures alone, it is without question that a

protective order is warranted in this case.

Moreover, Fouad’s argument that he complied with the limits set by our order

because he served each defendant with a conservative number of requests containing

the same or common language blatantly defies the logic behind our order. When

defining the limits of discovery in this case, we:

carefully considered the competing and contrasting views of the parties.

Specifically, we recognize that the defendants have recommended that

no discovery be undertaken, while the plaintiff proposed serving up to

10 written discovery demands on each defendant, a process which

could result in the issuance of more than 150 written discovery

demands. In order to reconcile these competing views, we have

authorized 7 depositions each, the number of depositions proposed by

the plaintiff, while permitting 25 written discovery demands for each

party, the default number of written discovery demands permitted by

the rules of this court for full merits discovery in most cases. We note

that these are aggregate limits for both parties.

(Doc. 348) (emphasis added). Despite this order’s guidance, we are faced with a

situation in which Fouad has persisted in doing that which we had explicitly

proscribed when we issued our order—Fouad has issued close to 150 written

discovery demands by serving written discovery on each defendant in this case.

These aggregate limits were designed to prevent excessive and one-sided discovery

obligations from being thrust upon the defendants in this case. Thus, quite clearly, a

protective order is warranted.

In defining the scope of this protective order, we reiterate and reemphasize

the terms of our March 9, 2020 order: each side is entitled, in the aggregate, to 25

interrogatories, 25 requests for production of documents, 25 requests for admissions,

and 7 depositions, each of which include subparts. To be quite clear, this means that

each side may propound one discovery request upon one individual party, which

constitutes one discovery request. For example, Fouad could propound one request

for production of documents upon the Milton Hershey School’s designee requesting

“documents and communications relating to the 1999 Memo, including, but not

limited to the interception, acquisition, or any other way obtaining of the 1999 Memo

at the Hotel Hershey or anywhere else,” which would count for one of his available

requests. He could not then propound this same request, phrased in the same or

substantially similar manner, upon Jarad Handelman, for instance, and expect it to

count as the same request; indeed, because he has served two individuals, despite

the fact that he served each with the same request, he has served two requests.

In addition to this clarification, we reiterate that this memorandum opinion

serves to further narrow and refine the scope of discovery for these parties. To this

end, the parties are directed to limit their discovery to garnering facts concerning

two simple questions: whether the 1999 Memo was purloined or misappropriated

and whether it is subject to some valid claim of privilege by Fouad. We make this

finding since the threshold issue in Fouad’s motion for termination sanctions

revolves around whether this document was privileged and had been stolen. If this

document was not misappropriated or not subject to some form of privilege, our

inquiry is at an end. Only after these threshold determinations have been made and

met in the affirmative should the parties take up the question of what subsequent use

was made of this document. In our view, this limitation and narrow tailoring

eliminates or stays many of Fouad’s subparts within his requests for production of

documents7 and most of Fouad’s interrogatories,8 the subjects of these motions for a

protective order.

We recognize that this bifurcation may alter Fouad’s strategy and encourage

more selective choices for what discovery requests Fouad wishes to serve upon

7 Indeed, of his original requests for production of documents, we believe the only

remaining requests available to Fouad would be requests for “Documents and

communications relating to the 1999 Memo, including, but not limited to: (a) the

interception, acquisition, or any other way obtaining of the 1999 Memo at the Hotel

Hershey or anywhere else; . . . (c) the details of how, when and from whom the 1999

Memo was obtained by MHS; . . . and (h) the original 1999 Memo received by

MHS[.]”

8 Specifically, we believe the only remaining interrogatories are: “Interrogatory No.

1: Describe in reasonable detail how you came into possession of the 1999 Memo,

including, but not limited to, the date or dates on which it was obtained, the identity

of the person or persons who provided it, the employment status and affiliations with

MHS or the Hotel Hershey of the person or persons who provided it, the form or

forms in which it was provided, and all current contact information and employment

details for all persons who provided it and all persons who received it wherever they

may be contacted or employed now. . . . . [and] Interrogatory No. 9: Explain in

reasonable detail your understanding of how MHS obtained the 1999 Memo,

including when you first became aware that the 1999 Memo was not obtained by

MHS through a document subpoena or a request for production of documents in a

legal proceeding.”

which defendant(s). To resolve this issue, we will grant the defendants’ motion for

a protective order in its entirety and not require the defendants to further respond to

any of Fouad’s initial requests for production of documents or interrogatories to the

extent that they have not yet responded. For Fouad’s part, we will allow him to

propound 25 requests for production of documents, 25 interrogatories, 25 requests

for admissions, and 7 depositions which comply with all of the directives laid out in

this memorandum opinion.9 We will grant Fouad 20 days from the date of this

memorandum to re-serve the defendants with these discovery requests, and we will

grant the defendants 20 days after receiving these requests to respond.

To ensure the equity of this new arrangement, we will also allow the

defendants to propound 25 requests for production of documents, 25 interrogatories,

25 requests for admissions, and 7 depositions which comply with all of the directives

laid out in this memorandum opinion. We will grant the defendants 20 days from the

date of this memorandum to re-serve the plaintiff with these discovery requests, and

we will grant the plaintiff 20 days after receiving these requests to respond.

9 This discovery is not granted in addition to discovery already authorized by prior

orders. This memorandum opinion supplants prior rulings on discovery limits and

serves as the parties’ template moving forward with this case. To the extent that

either party believes they need more discovery in light of this new, extremely narrow

scope of discovery, such requests should be filed with this court for our review

accompanied by a showing of good cause.

Thus, any additional, selective, narrowly focused and targeted discovery must

be propounded by June 30, 2020 and responded to by July 20, 2020. We prescribe

this scheduling acknowledging that “courts have broad discretion to manage the

discovery process, and can expedite or otherwise alter the timing and sequence of

discovery.” Canal St. Films v. Does 1-22, No. 1:13-CV-0999, 2013 WL 1775063, at

*2 (M.D. Pa. Apr. 25, 2013). See Malibu Media LLC v. Doe, No. 1:15-CV-1129,

2015 WL 3795948, at *2 (M.D. Pa. June 18, 2015). Moreover, discovery on this

narrow question has to date been accompanied by extraordinary, unreasonable delay.

All parties have decried this delay, while blaming others for the delay. This fixed

and firm schedule therefore addresses the parties’ mutual concerns that discovery

proceed forward promptly. Finally, recognizing that there may be a substantial

overlap between any new discovery request and the prior requests propounded by

the parties we are confident that much of the investigative work necessary to fully

respond to discovery has already been accomplished.

b. The Plaintiff’s Motions for a Protective Order, (Docs. 406, 408),

Will be Granted, in Part, and Denied, in Part.

Fouad seeks a protective order to delay the timing of the noticed deposition

of the plaintiff, (Doc. 406), and the deposition of one of the plaintiff’s experts,

Samuel Stretton, (Doc. 408), in light of the current health crisis caused by COVID-

19. In addition, Doc. 408 seeks a motion to quash the Defendants’ subpoena for

Stretton’s deposition and a protective order to prevent the EG Defendants from

taking Stretton’s deposition before a final report has been issued since Fouad alleges

that discovery is ongoing, the only report issued thus far is a preliminary one, and

the Federal Rules of Civil Procedure prohibit parties from taking experts’ deposition

before final reports issue. (Doc. 408). Further, Fouad appears to hold some belief

that the EG Defendants plan to depose Stretton multiple times after subsequent

reports are issued, and accordingly seeks to foreclose the EG Defendants from

pursuing this alleged scheme. (Id.)

To the extent that Fouad wishes to delay the depositions of the plaintiff, we

find that this motion is now largely moot in light of our May 26, 2020 order

temporarily staying the depositions of the plaintiff and one of his experts pending

oral argument on June 12, 2020 to resolve the discovery motions which are the

subject of this memorandum opinion. (Doc. 418). The parties should reschedule this

deposition at a mutually convenient date and time to occur within the 90 days

following the issuance of this opinion and order, on or before September 7, 2020.

To this end, if necessary in light of the continuing public health crisis, the parties

may request to conduct this deposition using nontraditional means, i.e., via video

recording or telephonically,10 if possible. In our view, Fouad’s motion for a

10 It appears that the parties briefly considered conducting Fouad’s deposition while

he remains abroad in Tokyo, but quickly rejected this as an option due to the vast

differences in time zones. At the outset, we note that Fouad, who has brought this

case, must be prepared to sit for depositions relating to the very serious allegations

he has made, and should be prepared to return to the United States for this purpose.

protective order as to the plaintiff’s deposition, (Doc. 406), is completely moot, so

we need not discuss it further below.

Thus, we turn to Fouad’s request that we quash the Defendants’ subpoena for

Stretton’s deposition or stay Stretton’s deposition until a final report has been issued.

We find that these requests are without merit and will be denied. Fouad states that

“the EG Defendants’ subpoena is premature under Rule 26(b)(4)(A) standards

because Plaintiff has not yet produced the final expert report, as expressly

contemplated by Rule 26(a)(2)(B).” (Doc. 408). We find that this misconstrues the

Federal Rules.

Rule 26(b)(4)(A) states that: “A party may depose any person who has been

identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B)

requires a report from the expert, the deposition may be conducted only after the

report is provided.” This rule does not distinguish between preliminary and final

reports. It merely states that “the deposition may be conducted only after the report

is provided.” In this case, a report has been provided by an individual that Fouad has

However, we would also suggest that, in order to continue to advance this case and

the important issues therein, the parties could consider scheduling this deposition via

videoconference or other remote communication technology between the hours of

7:00 – 10:00 p.m. Eastern Time (8:00 – 11:00 a.m. Tokyo time) or 7:00 – 9:00 a.m.

Eastern Time (8:00 – 10:00 p.m. Tokyo time) if Fouad is unable to return stateside

within the timeframe prescribed for his deposition in this memorandum opinion. If

his deposition must be conducted remotely, it can be conducted over the course of a

few days in this fashion to allow for full development of his testimony.

identified as his expert, which thus triggers the ability for an opposing party to

depose the expert providing the report.

Further, Rule 26(a)(2)(B) provides:

Unless otherwise stipulated or ordered by the court, this disclosure [of

which experts a party plans to use] must be accompanied by a written

report—prepared and signed by the witness—if the witness is one

retained or specially employed to provide expert testimony in the case

or one whose duties as the party’s employee regularly involve giving

expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express

and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all

publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years,

the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

Indeed, as courts have stated,

Parties are required to disclose the identity of potential expert

witnesses, accompanied by a written expert report containing “a

complete statement of all opinions to be expressed and the basis and

reasons therefor” and “the data or other information considered by the

witness in forming the opinions,” within the time frames set out in

Federal Rule of Civil Procedure 26. Fed. R. Civ. P. 26(a)(2)(B). Where

additional relevant information becomes available such the initial

expert report is rendered “incomplete or incorrect,” a party is obligated

to supplement or correct the initial disclosure by filing a supplemental

report before the deadline for pretrial disclosures. Fed. R. Civ. P. 26(e).

In re Safeguard Scientifics, 2004 U.S. Dist. LEXIS 23494, *3-4 (E.D. Pa. 2004).

Here, Fouad has identified Stretton as one of his experts expected to opine on

at least one issue in this case. Fouad has not indicated that he does not plan to use

this expert at trial. Thus, the Federal Rules of Civil Procedure allow the defendants

to depose this expert since he has issued a report. Whether this report has been

designated as “final” is immaterial. Indeed, many experts state that their reports are

based on the facts provided to them and are subject to updates as new facts are

uncovered and relayed to them. Thus, the alleged “preliminary” nature of this report

does not preclude the defendants from deposing Fouad’s expert at this time.

Moreover, we note that Fouad’s apparent objections to certain documents

requested by the EG Defendants in advance of Stretton’s deposition are documents

which were required to be disclosed within the report itself. Specifically, Fouad

appears to object to the EG Defendants’ subpoena in Request #5 which seeks “(i) a

complete statement of all opinions [Stretton] will express and the basis and reasons

for them; and (ii) the facts or data considered by the witness in forming them.” (Doc.

408). Indeed, these requests were required to be included in Stretton’s report under

Federal Rule of Civil Procedure 26(a)(2)(B) (“The report must contain: (i) a

complete statement of all opinions the witness will express and the basis and reasons

for them; [and] (ii) the facts or data considered by the witness in forming them[.]”).

Thus, Fouad’s motion to quash the subpoena to depose Stretton is denied. To the

extent that Fouad seeks to preclude the defendants from deposing this expert

indefinitely, he may not do so unless he forfeits the use of this expert and the

corresponding report.

We note, however, in light of our modified scope of discovery, that the

defendants should, for this stage of discovery, consider whether it is necessary to

depose Stretton since there may be little merit to deposing an expert opining on the

alleged improper use of the 1999 Memo when the preliminary questions in this case

are whether this document was stolen at all, a fact which appears presumed in

Stretton’s report, and whether the document is subject to any valid privilege.

Finally, to the extent that the defendants seek sanctions against Fouad, his

counsel, his expert, and their related law firms, this request is denied for lack of a

factual record on which to make required determinations. We make this denial

without prejudice to the defendants filing a separate motion addressing their

concerns at the close of all discovery so that we may take up this issue on a more

fulsome record.

C. Motions to Compel

a. Fouad’s Motions to Compel Discovery, (Docs. 260, 261, 262, 263,

269, 270, 376) Will be Granted, in Part, and Denied, in Part.

As an initial matter, we note that several of Fouad’s motions to compel are

subject to dismissal under the local rules of this court. Specifically, Docs. 260, 261,

262, 263, 269, and 270 were never accompanied by a brief in support thereof as

required by Local Rule 7.5.11 These motions were filed on December 18 and 19 of

2019. Thus, almost six months have passed since these motions were filed without

any action by Fouad. Therefore, by operation of Local Rule 7.5, these motions are

deemed withdrawn and we need not address them further.

Turning next to Fouad’s omnibus motion to compel discovery, (Doc. 376), he

seeks the following: an order directing the Defendants (1) to comply with our prior

order to produce initial disclosures relating to the provenance of the 1999 Memo,12

(2) a vast expansion of our previously prescribed narrowly tailored scope of

11 This Rule provides that: “Within fourteen (14) days after the filing of any motion,

the party filing the motion shall file a brief in support of the motion. . . . . If a

supporting brief is not filed within the time provided in this rule the motion shall be

deemed to be withdrawn.” Local Rule 7.5.

12 Due to the passage of time in this case, the Defendants’ objection that Fouad’s

motion to compel is premature is now moot. By this point, we expect that the

Defendants will have produced such requested discovery or filed a motion for a

protective order to prevent them from needing to respond. Seeing no protective order

on the docket, to the extent that the Defendants have not responded, they will be

required to respond. Based on our decision to severely limit discovery in this case,

we find the Defendants’ other defenses largely moot.

discovery, and (3) for this court to compel the defendants to respond, without

objection, to all discovery requests that he has already propounded upon them.

Fouad’s requests strike us as in some respects contradictory and equivocal. As to

these second and third requests, in essence, Fouad seeks to have this court determine

that the need for narrowly tailored and focused discovery was an error in judgment

and that the defendants are not entitled to object to any of the discovery requests that

he has served upon them. Thus, Fouad seeks broad, unfettered discovery from the

Defendants with unconditional compliance for all of his demands. Yet, with respect

to the Defendants’ initial disclosures, which largely mirror and replicate Fouad’s

own suspicions regarding the vast array of parties allegedly implicated in the

purported plan to misappropriate and conceal the 1999 Memo, he complains that

these responses are too broad and that he has accordingly not been able to

appropriately plan or prepare his discovery to gain fruitful results.13 Fouad makes

this complaint despite himself having identified the same individuals as having

potential information relevant to this lawsuit.

13 For instance, the MHS Defendants identified the following individuals in their

initial disclosures that may have discoverable information useful to their defense:

(1) “Plaintiff F. Frederic Fouad concerning the allegations in his Sanctions Motion

and related filings (e.g., Docs. 241, 242, 265, 280, 293)”; (2) “Any individual

identified by Plaintiff or other parties in their initial disclosures relating to Plaintiff’s

Sanctions Motion;” (3) “Any individual identified in any discovery responses or

depositions in relation to Plaintiff’s Sanctions Motion.” (Doc. 376, Exhibit 2).

This complaint is precisely that which we wished to avoid when setting our

initial narrow scope of discovery for these parties. Rather than grant Fouad’s curious

request to broaden the scope of discovery available to these parties, which would

only result in more ambiguous and broad discovery responses that would be equally

unhelpful to Fouad, we will instead narrow and focus the available field of

information that the parties should pursue, as described above. Specifically, moving

forward, the parties should focus their discovery efforts solely on whether this 1999

Memo was ever stolen—an important, fundamental, and indeed largely overlooked

fact that the plaintiff appears to presume—and whether it is subject to any valid

claim of privilege. To this end, Fouad’s requests to broaden the scope of discovery

and preclude the Defendants from objecting to all discovery requests that he has

served thus far are denied, and his request for more narrowly focused initial

disclosures is granted. Fouad should re-serve these initial disclosures limited in

scope in accordance with this memorandum opinion within the next 20 days, and the

Defendants should respond 20 days after receipt thereof. To ensure reciprocal

discovery, the Defendants are likewise entitled to re-serve new requests for initial

disclosures limited in scope in accordance with this memorandum opinion within

the next 20 days, and the Plaintiff shall respond 20 days after receipt thereof.

b. The Defendants’ Motions to Compel Discovery, (Docs. 390, 399),

Will be Granted, in Part, and Denied, in Part.

The EG and MHS Defendants each seek an order compelling Fouad to

produce, without objection, answers to their interrogatories and requests for

production of documents that they served earlier this year after we directed the

parties to engage in mutual, carefully tailored discovery. (Docs. 390, 399).

According to the defendants, Fouad has not produced any information responsive to

any discovery requests that have been served on him.

The EG Defendants seek documents and information relating to the

provenance of the 1999 Memo, including its fax cover sheet. (Doc. 391, Exhibit F).

In particular, the EG Defendants would like Fouad to produce the original copy of

his 1999 Memo along with its fax cover page. For their part, the MHS Defendants

seek documents and information relevant to Fouad’s alleged legal representation of

the Milton Hershey School Alumni Association (“MHSAA”) and his

communications with this group, Fouad’s fax records, and his stay at the Hotel

Hershey in 1999 in addition to the fax cover sheet for the 1999 Memo. (Doc. 404,

Exhibit B). These motions are granted to the extent that the requested discovery is

relevant to the question of whether the 1999 Memo was stolen and whether Fouad

can assert any form of privilege.

In reaching this result we note that Fouad responds to these requests with an

assertion of privilege and allegations of overbreadth. We find Fouad’s assertions of

privilege to be ambiguous and without a discernable privilege log. In particular,

Fouad does not specify what kind of privilege he invokes that would protect this

1999 Memo. To the extent that he asserts an attorney work-product privilege, he

should be aware that the burden of demonstrating the existence of a privilege and

that it has not been waived rests on the party asserting the privilege. In re Grand Jury

(OO-2H), 211 F. Supp. 2d 555, 557 (M.D. Pa. 2001) (Judge Rambo). Likewise, the

party claiming work product immunity bears the burden of showing that “the

materials in question ‘were prepared in the course of preparation for possible

litigation.’ ” Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138

(3d Cir. 2000). Here, in both instances, the burden rests on Fouad.

Communications are protected under the attorney-client privilege when “(1)

the legal advice of any kind is sought (2) from a professional legal advisor in his

capacity as such, (3) the communications relating to that purpose, (4) made in

confidence, (5) by the client, (6) are at his insistence permanently protected (7) from

disclosure by himself or by the legal advisor, (8) except the protection may be

waived.” In re Impounded, 241 F.3d 308, 316 n.6 (3d Cir. 2001). Further, as Fouad

concedes, the privilege belongs to the client and can be waived by the client.

Therefore, if a representative of MHSAA voluntarily disclosed the memo to the

defendants, that act may well constitute a waiver and this privilege may take flight.

The work product doctrine, in turn, is governed by Rule 26(b)(3) of the

Federal Rules of Civil Procedure, which provides that:

(A) Documents and Tangible Things. Ordinarily, a party may not

discover documents and tangible things that are prepared in anticipation

of litigation or for trial by or for another party or its representative

(including the other party’s attorney, consultant, surety, indemnitor,

insurer, or agent). But, subject to Rule 26(b)(4), those materials may be

discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to

prepare its case and cannot, without undue hardship, obtain their

substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those

materials, it must protect against disclosure of the mental impressions,

conclusions, opinions, or legal theories of a party’s attorney or other

representative concerning the litigation.

Fed. R. Civ. P. 26(b)(3). Generally, “voluntary disclosure to one’s adversary of

documents protected by the work-product privilege waives the privilege.”

Montgomery County v. MicroVote Corp., 175 F.3d 296, 304 (3d Cir. 1999) (citing

Westinghouse v. Republic of the Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991)).

The test for determining whether a document was prepared in anticipation of

litigation is “where in light of the nature of the document and the factual situation in

the particular case, the document can fairly be said to have been prepared or obtained

because of the prospect of litigation.” Martin v. Bally’s Park Place Hotel & Casino,

983 F.2d 1252, 1258 (3d Cir. 1993). Courts generally divide this test into two prongs:

the documents were prepared (1) at a time when litigation was reasonably

foreseeable; and (2) primarily for the purpose of litigation. See United States v.

Rockwell International, 897 F.2d 1255, 1266 (3d Cir. 1990); see also Muse-Freeman

v. Bhatti, No. 07-3638, 2008 WL 2165147, at *1 (D.N.J. May 21, 2008). However,

the Third Circuit makes clear that the materials must be prepared in anticipation of

litigation, and not in the ordinary course of business. Id. Otherwise, the privilege

does not apply. Id.

With these substantive requirements and policy considerations in mind, the

party asserting the privilege bears the burden of proving that the privilege applies to

a particular communication. See Joe v. Prison Health Servs., 782 A.2d 24, 31 (Pa.

Commw. 2001); see also In re Grand Jury, 603 F.2d 469, 474 (3d Cir. 1979); SEPTA

v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 259 (E.D. Pa. 2008) (“The party

asserting the attorney-client privilege ‘bears the burden of proving that it applies to

the communication at issue.’ ”) (quoting Sampson v. Sch. Dist. of Lancaster, 262

F.R.D. 469, 2008 WL 4822023, at *3 (E.D. Pa. Nov. 5, 2008)). In this regard, “[t]he

burden of establishing the elements of the privilege can be met only by an

evidentiary showing based on competent evidence and cannot be discharged by mere

conclusory or ipse dixit assertions.” Greene, Tweed of Delaware, Inc. v. DuPont

Dow Elastomers, L.L.C., 202 F.R.D. 418, 423 (E.D. Pa. 2001). “Rarely, if ever, will

the submission of documents to the court for in camera inspection be adequate to

prove the existence of the elements necessary to establish the applicability of the

privilege.” Delco Wire & Cable, Inc. v. Weinberger, 109 F.R.D. 680, 688 (E.D. Pa.

1986). Instead, “a party claiming the privilege must present record evidence, such as

affidavits, and sufficient facts to bring the communication at issue within the narrow

scope of the privilege.” Wise Investments, No. 01-3458, 2002 U.S. Dist. LEXIS

22263, at *5 (citing Delco Wire & Cable, Inc., 109 F.R.D. at 688).

Notably, for purposes of the instant discovery dispute, the “attorney-client

‘privilege does not shield documents merely because they were transferred to or

routed through an attorney.’ ” Smithkline, 232 F.R.D. at 478 (quoting Resolution

Trust Corp. v. Diamond, 773 F. Supp. 597, 600 (S.D.N.Y. 1991)). Accordingly, in

order to invoke properly the attorney-client privilege, the party seeking to prevent

disclosure “must clearly demonstrate that the communication in question was made

for the express purpose of securing legal not business advice.” AAMCO

Transmissions, Inc. v. Marino, Nos. 88-5522, 88-6197, 1991 U.S. Dist. LEXIS

13326, *9 (E.D. Pa. Sept. 24, 1991).

While we find that these defense discovery demands are proper relevant lines

of inquiry given the issues raised by Fouad in his motion, and acknowledge the

hurdles that Fouad faces in asserting claims of privilege, we will permit Fouad a

final opportunity to assert privilege claims, provided that he does so in the manner

required by law. For purposes of this case, if Fouad wishes to claim some form of

privilege, he should, in the first instance, promptly prepare a privilege log identifying

all relevant, but privileged, documents he possesses and we should be provided with

some evidentiary showing in support of this assertion that would enable us to

evaluate this claim on its merits, rather than in the abstract fashion that we have been

presented thus far.

Finally, Fouad presents his claims of overbreadth in a vacuum without

identifying how the defendants’ requests are overbroad or what information he

should not be required to produce. Given the narrow, focused scope of discovery

which we are ordering, these vague overbreadth claims will be denied. Thus, the

defendants’ motions to compel are accordingly granted, in part, and denied, in part.

D. The Plaintiff’s Motions to Strike, (Docs. 400, 402), Will be Denied.

Fouad has also filed motions that seek to strike a number of defense briefs,

alleging that the defendants are engaging in “gimmicks” to evade word counts

prescribed by the local rules. Rule 12(f) of the Federal Rules of Civil Procedure,

which governs motions to strike pleadings, serves a specific and narrow purpose and

provides, in part, that:

(f) Motion to Strike. The court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter.

Fed. R. Civ. P. 12(f).

“ ‘The purpose of a motion to strike is to clean up the pleadings, streamline

litigation, and avoid unnecessary forays into immaterial matters.’ Natale v. Winthrop

Resources Corp., 2008 U.S. Dist. LEXIS 54358 (E.D. Pa. July 9, 2008). Relief under

Federal Rule of Civil Procedure 12(f) is generally disfavored. Fiorentino v. Cabot

Oil & Gas Corp., 750 F. Supp. 2d 506, 509 (M.D. Pa. 2010). Thus, while rulings on

motions to strike rest in the sound discretion of the court, Von Bulow v. Von Bulow,

657 F. Supp. 1134, 1146 (S.D.N.Y. 1987), in practice, courts should exercise this

discretion and strike pleadings only when those pleadings are “redundant,

immaterial, impertinent, or scandalous” and unfairly prejudicial to the opposing

party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). For purposes

of Rule 12(f): “ ‘Immaterial matter is that which has no essential or important

relationship to the claim for relief. Impertinent matter consists of statements that do

not pertain, and are not necessary, to the issues in question. Scandalous matter has

been defined as that which improperly casts a derogatory light on someone, most

typically on a party to the action. Scandalous pleading must “reflect cruelly” upon

the defendant’s moral character, use “repulsive language” or “detract from the

dignity of the court.” ’ Donnelly v. Commonwealth Fin. Sys., No. 07-CV-1881, 2008

WL 762085, at *4 (M.D. Pa. Mar. 20) (internal citations omitted).” Zaloga v.

Provident Life & Acc. Ins. Co. of Am., 671 F. Supp. 2d 623, 633 (M.D. Pa. 2009).

When considering motions to strike pleadings, courts are enjoined to bear in

mind that “motions to strike under Rule 12(f) are highly disfavored.” Hope Now,

2011 WL 883202, at *1 (citing Garlanger v. Verbeke, 223 F. Supp. 2d 596, 609

(D.N.J. 2002)) (“Because of the drastic nature of the remedy, . . . motions to strike

are usually ‘viewed with disfavor’ and will generally ‘be denied unless the

allegations have no possible relation to the controversy and may cause prejudice to

one of the parties, or if the allegations confuse the issues.’ ” (citing Tonka, 836 F.

Supp. at 218). Indeed, motions to strike are further disfavored because they are often

brought by the movant “simply as a dilatory tactic.” Hope Now, 2011 WL 883202,

at *1 (citing Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001));

see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, §

1381 (3d ed. 2004) (observing that “[m]otions to strike a defense as insufficient are

not favored by the federal courts because of their somewhat dilatory and often

harassing character.”).

Although the Rule permits the striking of redundant, immaterial, impertinent

or scandalous matter contained within a pleading, “ ‘a motion to strike should not be

granted unless the presence of the surplusage will prejudice the adverse party.’ ”

Hope Now, 2011 WL 883202, at *1 (citing Symbol Techs., Inc. v. Aruba Networks,

Inc., 609 F. Supp. 2d 353, 359 (D. Del. 2009); see also Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure, § 1381 (3d ed. 2004) “[E]ven when

technically appropriate and well-founded, Rule 12(f) motions often are not granted

in the absence of a showing of prejudice to the moving party.”). “Prejudice occurs

when the challenged pleading confuses the issues or is so lengthy and complex that

it places an undue burden on the responding party.” Karpov. v. Karpov, 307 F.R.D.

345, 348 (D. Del. 2015). This is not the case here.

The plaintiff bases his motions to strike on allegedly overlong briefs filed by

the defendants which contain what he characterizes as word count “gimmicks” that

purportedly omit spaces between words and punctuation to artificially decrease the

overall word count. Notably, while Fouad levels this complaint, he does not provide

us with what he would consider to be the “true” word count, and apparently leaves

us to ferret out this information ourselves.14 While the plaintiff has alleged prejudice

caused by “wear[ing] Plaintiff down, disadvantag[ing] him, and unfairly impos[ing]

burden and cost on Plaintiff[,]” (Doc. 400), the plaintiff has not described how these

prejudices have taken place through a filing that allegedly surpasses our word limit

restrictions by an undefined amount. Indeed, while he has alleged that these briefs

14 Our own review of the briefs in question do not disclose any gross anomalies in

the text of the pleadings, but reveal some anomalies in collateral citations. For

example, the EG Defendants are advised that “(Doc.357, p.15; Doc.363, pp.11-14;

Docs.362,362-3)” is not the proper way to cite these docket numbers (they should

appear as Doc. 357, p.15); that spaces are appropriate within, before, and after an

ellipsis, i.e., “. . .”; that space is needed within WestLaw and Lexis citators in

unreported opinions, i.e., 2018 WL 3995697, *1 and 2020 U.S. Dist. LEXIS 29364,

*1; and that a space belongs between an ending and beginning parenthesis, i.e., “. . .)

(. . .”. (Doc. 427, at 5).

are overlong, he has not informed us of the actual word count of these briefs, only

stating that these word count “tricks” cause the word count to “far surpass the

number certified by counsel,” leaving us to ascertain this information for ourselves.

It is the movant’s responsibility to provide information demonstrating prejudice and

how the pleadings are overlength, and he has done neither in this case. This is an

insufficient showing to grant such extreme and highly disfavored motions, and they

will accordingly be denied.

While we reach this result, we close with two observations. First, the parties’

submissions often descend into hyperbolic personal invective. If the parties follow

our instructions and cease this practice, compliance with word counts should present

little difficulty in the future. Second, this on-going debate over word counts reveals

just how far afield these parties have gotten from the merits issues that divide them.

We are committed to resolving this case on the merits. The parties should be too. A

necessary corollary flows from this proposition. While the parties are free to engage

in word-count recriminations, and we will address those concerns as they are

presented to us, we are not inclined to have word-count litigation supersede the

evaluation of the legal merits in this case.

Finally, we note that the mutually destructive discovery process engaged in

by the parties, which has entailed more than a dozen motions relating to what should

be simple straightforward factual discovery, is antithetical to the stated interests of

the parties and the cardinal virtue of our legal system, “the just, speedy, and

inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

Accordingly, in order to avoid the unnecessary delay attendant with motions practice

in this field, instead of filing serial discovery motions, IT IS ORDERED that

beginning on June 24, 2020, the parties will submit a weekly joint status report which

shall be no greater than 10 pages in length (5 pages per side), briefly identifying any

outstanding discovery issues, and the parties’ positions with respect to these issues.

We will then exercise our discretion in addressing these issues, determining which

issues can be resolved by the court based upon the parties’ submissions, and which

issues may require further briefing, argument, or motions practice.

An appropriate order follows.

III. Order

Accordingly, for the foregoing reasons, these discovery motions are

GRANTED, in part, and DENIED, in part, as follows:

Exercising our discretion, IT IS ORDERED that sanctions discovery is

initially limited to two questions: whether the 1999 Memo, which forms the basis of

Fouad’s sanctions motion, was in any sense privileged and whether it was ever

stolen—a key issue since Fouad seeks sanctions for stolen document use. To this

end, we will order the bifurcation of the discovery process in this case as follows:

the parties should first endeavor to determine whether the 1999 Memo was ever

stolen and whether this document is subject to any valid privilege held by Fouad.

Only after these determinations have been made, and both answered in the

affirmative, should the parties delve into what use has been made of this document.

We will set a separate discovery schedule for the second half of discovery, relating

to the use of the memo, should the parties need to progress to this stage.

In accordance with this directive, IT IS ORDERED that:

1. The Defendants’ motions for a protective order, (Docs. 369, 371), are

GRANTED since Fouad has previously exceeded the discovery limitations set by

the court and the defendants are not required to further respond to any of Fouad’s

initial requests for production of documents or interrogatories to the extent that they

have not yet responded. However, recognizing that this order may change the focus

of discovery on Fouad’s part, we will allow him to propound 25 requests for

production of documents, 25 interrogatories, 25 requests for admissions, and 7

depositions which comply with all of the directives laid out in this memorandum

opinion.15 We will grant Fouad 20 days from the date of this memorandum to re-

serve the defendants with these discovery requests, and we will grant the defendants

15 This discovery is not granted in addition to discovery already authorized by prior

orders. This memorandum opinion supplants prior rulings on discovery limits and

serves as the parties’ template moving forward with this case. To the extent that

either party believes they need more discovery in light of this new, extremely narrow

scope of discovery, such requests should be filed with this court for our review

accompanied by a showing of good cause.

20 days after receiving these requests to respond. To ensure the equity of this new

arrangement, we will also allow the defendants to propound an additional 25

requests for production of documents, 25 interrogatories, 25 requests for admissions,

and 7 depositions which comply with all of the directives laid out in this

memorandum opinion. We will grant the defendants 20 days from the date of this

memorandum to re-serve the plaintiff with these discovery requests, and we will

grant the plaintiff 20 days after receiving these requests to respond. Thus, any

additional, selective, narrowly focused and targeted discovery must be propounded

by June 30, 2020 and responded to by July 20, 2020.

2. The Plaintiff’s motions for a protective order, (Docs. 406, 408), are

DENIED and the parties should reschedule Fouad’s deposition at a mutually

convenient date and time to occur within the 90 days following the issuance of this

opinion and order, on or before September 7, 2020, while re-examining the

necessity of the Stretton deposition in light of the more focused nature of the

discovery, since Stretton appears to have no first-hand knowledge of the facts in this

case.

3. The Plaintiff’s motions to compel discovery, (Docs. 260, 261, 262, 263,

269, 270, 376) are GRANTED, in Part, and DENIED, in Part. Specifically, Docs.

260, 261, 262, 263, 269, and 270 which were never accompanied by a brief in

support thereof as required by Local Rule 7.5 are DENIED. Further, moving