# Fouad v. The Milton Hershey School and School Trust

> District Court, M.D. Pennsylvania · June 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10408871

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408871

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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;

(C) prescribing a discovery method other than the one selected by the
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
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.

4. The Defendants’ motions to compel discovery, (Docs. 390, 399), are
GRANTED, in Part, and DENIED, in Part. We find this discovery to be relevant,
and with the narrow focus on discovery directed by the court we reject Fouad’s
overbreadth objections. While we find that these defense discovery demands are

proper relevant lines of inquiry given the issues raised by Fouad in his sanctions
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.

5. The Plaintiff’s motions to strike, (Docs. 400, 402), are DENIED.
6. Further, 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’
submission, and which issues may require further briefing, argument, or motions
practice.
7. All discovery described in this order shall be competed on or September

10, 2020. A hearing on the termination sanctions motion will then be held on
September 22, 2020 at 9:00 a.m., at which time the parties may present evidence
and argument relating to whether the 1999 Memo was ever stolen and whether this
document is subject to any valid privilege held by Fouad.

So ordered this 17th day of June, 2020.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408871. Public record. Not legal advice.