R.S. Logistical Solutions, Ltd v. Janus Global Operations, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

R.S. LOGISTICAL SOLUTIONS, LTD, )

)

Plaintiff, )

)

v. ) No. 3:21-CV-178-DCLC-JEM

)

JANUS GLOBAL OPERATIONS LLC, and )

CALIBURN INTERNATIONAL, LLC, )

)

Defendants. )

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,

and Standing Order 13-02.

Now before the Court are Plaintiff’s Motion to Compel [Doc. 42] and Defendants’ Motion

for Protective Order [Doc. 49]. By way of background, on May 16, 2022, the parties participated

in an informal discovery conference pursuant to section 4(g) of the Scheduling Order [Doc. 41].

During the informal conference, the parties addressed the issues now before the Court. Given the

nature of the disputes and the parties’ positions, the Court granted the parties leave to file motions

[Id.]. The motions are ripe for adjudication [see Docs. 52, 53, 57 & 59], and for the reasons set

forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion to

Compel [Doc. 42] and DENIES Defendants’ Motion for Protective Order [Doc. 49].

I. BACKGROUND

This case arises from an alleged breach of contract and related torts. Plaintiff provides

logistics and specialized mission support services to federal agencies and military forces operating

in volatile areas throughout the developing world [Doc. 1 ¶ 1]. Defendant Janus Global

Operations, LLC (“JGO”) provides mission support and program management services to

government agencies operating around the world and has served as a prime contractor for multiple

United States federal agency task orders [Id. ¶ 6]. Defendant Caliburn International, LLC

(“Caliburn”) is JGO’s holding company [Id. ¶ 7].

In April 2019, the United States Department of State (“DOS”) issued Request for Proposals

No. 19AQMM19R0112 seeking bids for protective guard services, status guard services,

and specialized security services to be provided at the U.S. Mission Somalia (the “Somalia RFP”)

[Id. ¶ 12]. The Somalia RFP contemplated the issuance of a hybrid fixed-price, cost-

reimbursement type task order for a base year and four one-year options (“Somalia Task Order”)

[Id.]. Among the Somalia RFP’s requirements was the provision of a secure residential compound

and associated life support services within a fifteen-minute drive of the International Campus

(“IC”) at the Mogadishu International Airport (“MIA”) compound [Id. ¶ 13].

On May 10, 2019, JGO submitted its Somalia Task Order proposal (“Task Order

Proposal”) to the DOS, which included Plaintiff’s proposal that housing be located at the SKA

Home Lodge (“SKA Compound”), a facility owned by SKA Somalia (“SKA”) [Id. ¶¶ 18, 22]. In

September 2019, the DOS awarded the Somalia Task Order to JGO over SOC, LLC (“SOC”), the

former contractor for the existing Somalia Task Order [Id. ¶¶ 13, 26]. SOC filed a bid protest,

which JGO was able to successfully counter with Plaintiff’s assistance [Id. ¶¶ 28, 30–33].

On January 21, 2020, Plaintiff and JGO signed the Master Services Agreement (“MSA”)

[Id. ¶ 40]. A few days later on January 23, 2020, following a trip from Somalia, Thomas Heasley

(“Heasley”), Caliburn’s Senior Vice President, emailed JGO’s project manager, Randy Leonard

(“Leonard”), providing a negative assessment of the SKA Compound in its then-unrefurbished

condition [Id. ¶ 51]. On the same day, JGO asked Plaintiff to sign and return Purchase Order

No. Somalia 001 (“PO1”), which released funding for the mobilization of Plaintiff to begin

construction of the SKA Compound on February 4, 2020 [Id. ¶ 52]. In late January, Heasley

indicated to Leonard that JGO would be cancelling the MSA with Plaintiff and would instead

subcontract with Bancroft Global Development (“Bancroft”), a subcontractor of SOC, to provide

the secured housing at the IC [Id. ¶ 55].1 Roy Shaposhnik (“Shaposhnik”), Plaintiff’s owner and

president, informed JGO that executing the PO1 was now fraught with enormous financial risks

given Heasley’s and Caliburn’s indications that they were opposed to the MSA [Id. ¶ 54].

The parties continued to exchange communications, and on February 4, 2020, JGO emailed

a letter to Plaintiff titled, “Termination for Convenience,” which invoked Article No. 12 of the

MSA [Id. ¶ 61]. Article 12 allowed JGO to terminate the MSA if (1) JGO’s customer terminates

for convenience, or (2) to avoid a termination for default from JGO’s customer in which case the

parties agreed to discuss prior to JGO issuing the termination [Id. ¶ 43]. Plaintiff disputed the

Termination for Convenience letter, stating that JGO “provided no information indicating that the

conditions justifying termination exist” [Id. ¶ 62]. Plaintiff wrote that it construed the Termination

of Convenience letter as a suspension of work notice [Id.]. On February 4, 2020, Ned Lowry

(“Lowry”), the Procurement Director for one of Caliburn’s holding companies, responded to

Plaintiff that JGO had “detailed discussions with our customer wherein we believe we are taking

steps to avoid a termination from the customer” [Id. ¶ 63]. JGO agreed with Plaintiff, however,

that the Termination for Convenience should be construed as a suspension [Id.].

Plaintiff alleges that for the next three and a half months, “Caliburn actively undermined,

and JGO refused to perform, the MSA, while repeatedly expressing a variety of vague concerns,

equivocations, and doubts regarding the SKA Compound’s acceptability to the DOS [Id. ¶ 67].

1 The Complaint alleges that prior to Heasley joining Caliburn, he worked at SOC [Doc. 1

¶ 36].

On May 16, 2020, Heasley emailed Shaposhnik stating “yesterday the [DOS] modified our

Mogadishu WPS contract directing a housing solution consistent with their stated desire vice [sic]

our proposed solution” [Id. ¶ 86]. Later, Shaposhnik learned that JGO formally engaged Bancroft

as its subcontractor [Id. ¶ 89].

Plaintiff alleges breach of contract against JGO, breach of implied covenant of good

faith and fair dealing against JGO, anticipatory repudiation against JGO, tortious inference

with contract against Caliburn, tortious inducement of breach of contract pursuant to

Tenn. Code Ann. § 47-50-109, and quantum meruit against both Defendants [Id. ¶¶ 96–132].

The parties are now engaged in discovery disputes, and they have filed competing motions.

At the heart of the parties’ disputes is whether Defendants must produce communications to/from

the DOS, Defendants’ customer. Plaintiff has filed the Motion to Compel [Doc. 42], requesting

that the Court compel Defendants to respond to Request for Production (“RFP”) Nos. 1, 2, 3, 11,

and 17 and Interrogatory Nos. 1, 2, and 10. Defendants have responded in opposition [Doc. 53],

and Plaintiff has replied [Doc. 57]. Defendants have filed a motion for protective order [Doc. 49],

requesting that the Court enter a protective order to relieve them of the obligation to produce

documents and communications to/from the DOS. Plaintiff has responded in opposition

[Doc. 52], and Defendants have replied [Doc. 59].

II. ANALYSIS

Federal Rule of Civil Procedure 26(b)(1) provides as follows:

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.

Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is

traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D.

Ohio 2017) (quoting Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Courts

have cautioned, however, that “[d]iscovery requests are not limitless, and parties must be

prohibited from taking ‘fishing expeditions’ in hopes of developing meritorious claims.” Bentley

v. Paul B. Hall Reg’l Med. Ctr., No. 7:15-CV-97-ART-EBA, 2016 WL 7976040, at *1 (E.D. Ky.

Apr. 14, 2016). “[T]he [C]ourt retains the final discretion to determine whether a discovery

request is broad or oppressive.” Id. (citing Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305

(6th Cir. 2007)).

Rule 26(c) governs protective orders. It authorizes a court to enter an order “to protect a

party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

Fed. R. Civ. P. 26(c)(1). A party requesting a protective order must establish good cause for such

an order. Eagle v. Hurley Med. Ctr., 292 F.R.D. 466, 478 (E.D. Mich. 2013). “Good cause may

exist if ‘specific prejudice or harm will result’ from the absence of a protective order.” In re Ohio

Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (quoting Father M. v. Various Tort

Claimants, 661 F.3d 417, 424 (9th Cir. 2011)). “This Rule confers broad discretion on the trial

court to decide when a protective order is appropriate and what degree of protection is required.”

Eagle, 292 F.R.D. at 478 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

Defendants object to producing their communications with the DOS on two grounds. First,

Defendants submit that they are contractually bound to maintain these communications in

confidence. Second, Defendants assert that Plaintiff’s discovery requests seek a significant

volume of material that is not relevant to the parties’ claims or defenses or proportional to the

needs to this case. The Court has considered the parties’ positions in this matter, and the Court

will grant in part Plaintiff’s Motion to Compel [Doc. 42] and will deny Defendants’ Motion for

Protective Order [Doc. 49]. The Court finds that Defendants have not established good cause for

a protective order to relieve them of the obligation to produce relevant and non-privileged

communications and documents to/from the DOS. The Court further finds that Defendants’

communications and documents to/from the DOS relating to the residential compound and

associated life support services are relevant but that the parties need to meet and confer to discuss

the specific parameters of Plaintiff’s discovery requests.

A. Protective Order

Defendants state that the dispute relates to RFP Nos. 2 and 11 and Interrogatory No. 1,

which request them to identify communications and correspondence and produce documents and

communications to/from the DOS.2 Defendants assert that they cannot produce the requested

information without violating a contractual obligation (i.e., “a strict confidentiality provision”)

owed to the DOS, a key customer [Doc. 49 p. 3]. While Defendants are not asserting any

privileges, they claim they cannot produce the documents because of the confidentiality

provision.3

Defendants maintain that their contractual obligation to keep communications in strict

confidence is in direct tension with their discovery obligations. They fear that violating the

confidentiality provision will result in serious financial and reputation risks. For instance,

Defendants assert that violating their contractual obligations could place the entire

2 Defendants add that their motion is also intended to cover any discovery request that “may

in part call for Defendants’ communications with DOS” [Doc. 49 p. 6 n.5].

3 Defendants rely on language in the contract with the DOS to support the request for a

protective order, but the Court has not included this language in this Memorandum and Order

because it is under seal [Docs. 48, 54 & 58].

contract—not just the Somalia Task Order—at risk. The Somalia Task Order alone is estimated

to be worth in excess of $61 million and represents a significant value of Defendants’ business

[Doc. 49 p. 10 (citing Doc. 49-7 ¶ 10)]. But even beyond the financial harm of potentially losing

their Somalia Task Order, Defendants assert they could also face serious reputational harm with

one of their major customers, be competitively harmed by jeopardizing other existing DOS

contracts, and impair their ability to seek future government contracts [Id. at 9].

According to Defendants, Plaintiff should seek these documents directly from the DOS

because the DOS is in the best position to determine whether there are legitimate reasons to resist

the production. They suggest that Plaintiff can use the Touhy process to seek the requested

discovery from the proper source (i.e., the DOS), but they do not claim that Touhy or the DOS’s

regulations relieve them of their discovery obligations. Should the Court deny Defendants’ request

to enter a protective order, they request that the Court (1) allow the parties to negotiate a stipulated

protective order governing this (and other) sensitive material, and (2) afford the DOS an

opportunity to be heard concerning any documents Defendants may identify for production.

In response, Plaintiff maintains that third-party confidentiality agreements do not

supersede the Federal Rules. Plaintiff asserts that Defendants do not provide any authority or

examples showing why this Court should deviate from the typical process of handling discovery

involving information subject to contractual nondisclosure obligations. Plaintiff further asserts

that while Defendants seek a protective order to relieve them of their discovery obligations, the

appropriate resolution is to submit a conventional protective order to maintain the confidentiality

of any sensitive information.

While the Court understands Defendants’ position, and predicament,

confidentiality restrictions in contracts do not override the Federal Rules of Civil Procedure.

O’Hara & Assocs., LLC v. Winzeler, Inc., No. 16-11708, 2017 WL 11423043, at *2 (E.D. Mich.

Aug. 4, 2017) (“[A] private non-disclosure agreement cannot limit a court’s ability to order

discovery of relevant evidence.”); see also Shvartser v. Lekser, 270 F. Supp. 3d 96, 98 (D.D.C.

2017) (“[C]onfidentiality agreements will not stand as a barrier to discovery between two parties

in litigation.” (citations omitted)). As explained by several courts, “‘Confidentiality is

not a recognized basis for withholding discovery’ even when such a confidentiality

restriction is imposed by a U.S. agency.” First Horizon Nat’l Corp. v. Houston Cas. Co.,

No. 2:15-CV-2235-SHL-DKV, 2016 WL 5867268, at *11 (W.D. Tenn. Oct. 5, 2016) (quoting

Hanas v. Inner City Christian Outreach Ctr., Inc., No. CIV.A. 06-CV-10290-D, 2007 WL 551609,

at *2 (E.D. Mich. Feb. 20, 2007)); see also Covad Commc’ns Co. v. Revonet, Inc., 258 F.R.D. 5,

11 (D.D.C. 2009) (“Confidentiality is not a basis for withholding information in the ordinary

course if it can be protected by a protective order . . . restricting access . . . .”); EEOC v. Roswell

Radio, Inc., No. CV 04-729 BB/LCS, 2005 WL 8163666, at *2 (D.N.M. Sept. 19, 2005) (“But an

objection based on confidentiality, like one based on relevancy, fails to meet the Rule’s threshold

requirement of demonstrating good cause.”).

It “was probably prudent for [Defendants] to err on the side of caution in objecting to these

discovery requests,” O’Hara & Assocs., 2017 WL 11423043, at *2, but Sixth Circuit law is

instructive, if not dispositive of the issue before the Court.4 In In re Bankers Trust, the defendant

4 Defendants cite Ross v. DynCorp., 362 F. Supp. 2d 344 (D.D.C. 2005), but they admit that

Ross is distinguishable because it did not relate to a discovery dispute [Doc. 49 p. 9–10]. Instead,

the court in Ross granted summary judgment to the defendant on the plaintiffs’ intentional

infliction of emotional distress claim because the defendant’s actions stemmed from legitimate

business reasons as opposed to extreme and outrageous conduct. Id. at 364. The court concluded

that the defendant’s “belief that [a] contractual provision prevented it from giving the plaintiffs all

of the information requested” was reasonable. Id. at 363. As Defendants concede, this case does

not support Defendants’ position that they may withhold relevant documents in litigation on the

basis of contractual obligations.

objected to the plaintiff’s discovery requests, which sought from the defendant all documents

submitted to and from the Board of Federal Reserve (“Board”). 61 F.3d 465, 467

(6th Cir. 1995). The defendant claimed the documents were the property of the Board and that

under the Board’s regulations, the defendant was prohibited from disclosing the documents. Id.

The defendant also argued that the plaintiff had to request the documents directly from the Board.

Id. at 469. The Sixth Circuit disagreed. Id. The Court explained that pursuant to Rule 34, the

plaintiff was not required to seek the documents directly from the Board, explaining that “federal

courts have consistently held that documents are deemed to be within the ‘possession, custody or

control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the

legal right to obtain the documents on demand.” Id. (citation omitted). In addition, the Court

found that the Board’s regulation that prohibited disclosure of information inconsistent with the

Federal Rules, and therefore, “cannot be recognized by this court.” Id. at 470. It concluded, “[W]e

find no compelling reason to discard the relatively straightforward discovery methods outlined in

the Federal Rules of Civil Procedure simply because the Federal Reserve has attempted to mandate

a different procedure.” Id. at 470–71.

Defendants assert that In re Bankers Trust is inapposite because it involved a petition for a

writ of mandamus to vacate a court order compelling production and it involved regulations as

opposed to a confidential provision in a contract [Doc. 52 pp. 16–17]. But these distinctions are

without a difference. In First Horizon Nat’l, 2016 WL 5867268, at *11, the plaintiffs withheld

numerous documents from discovery, stating that the Department of Housing and Urban

Development (“HUD”) placed restrictions on the production of the documents to the defendants,

which included prohibiting the plaintiffs from showing, releasing, or reproducing the requested

documents. Id. at *11. The Western District of Tennessee held that “a government agency could

not override the application of the Federal Rules and prevent production of documents otherwise

required under Rule 34.” Id. (citing In re Bankers Trust, 61 F.3d at 470). Instead, “any

confidentiality concerns are adequately addressed by a protective order.” Id. Thus, the court

ordered the plaintiffs to produce the documents. Id.

In light of this authority, the Court finds that the confidentiality provision in Defendants’

contract with the DOS does not preclude the production of non-privileged communications and

documents to/from the DOS that are relevant and proportionate to the needs of the case.

Diamond Resorts Int’l, Inc. v. Phillips, No. 3:17-CV-01124, 2018 WL 3326814, at *2 (M.D. Tenn.

Apr. 17, 2018) (“It is an ‘unremarkable proposition,’ however, ‘that confidentiality agreements

will not stand as a barrier to discovery between two parties in litigation.’” (quoting Saini v. Int’l

Game Technology, 434 F. Supp. 2d 913, 922 (D. Nev. 2006))). But Defendants argue that their

position is not based on confidentiality alone.

Defendants state that it would be more convenient, less burdensome, or less expensive

to seek the documents directly from the DOS [Doc. 49 p. 11 n.6 (quoting

Fed. R. Civ. P. 26(b)(2)(C)(i)]. The Sixth Circuit has rejected a similar argument. See In re

Bankers Tr., 61 F.3d at 471 (“It seems illogical to this court to require P&G to initiate the much

more cumbersome procedure of serving a subpoena on the Federal Reserve in Washington, D.C.

simply to enable P&G to obtain the same documents that defendant Bankers Trust possesses.”);

see generally Raymond James & Assocs., Inc. v. 50 N. Front St. TN, LLC, No. 18-CV-2104-JTF-

TMP, 2018 WL 6528192, at *1 (W.D. Tenn. Sept. 10, 2018) (“[N]umerous courts have quashed

subpoenas issued to non-parties when the requesting parties could have obtained the documents

from other parties.” (collecting cases)).

Defendants also argue that they will face undue burden if required to disclose the requested

records, citing to the Declaration of Kelly McIntyre (“McIntyre”), senior counsel at Acuity

International, LLC (formerly, Caliburn):

9. If Defendants were to produce communications with DOS

concerning the Somalia Task Order and related issues

without authorization, it would risk irreparable harm to

Defendants’ reputation and their ongoing business

relationship with DOS, which also includes a similar WPS

task order in Erbil, Iraq, and a medical-support contract for

U.S. diplomats and military members in Iraq. Defendants

also have pending a WPS proposal with DOS for source

selection for a Baghdad embassy task order. All of these

contracts and opportunities could be put at risk if Defendants

are forced to produce the documents without government

authorization.

10. The Somalia Task Order alone is expected to generate more

than $61 million in revenue.

[Doc. 49-7 ¶¶ 9–10]. 5 The Court appreciates Defendants’ concern that production could affect its

reputation and ongoing relationship with the DOS. But at this point, Defendants’ concerns

are speculative. Williams v. Baptist Healthcare Sys., Inc., No. 3:16-CV-00236-CRS,

2018 WL 989546, at *3 (W.D. Ky. Feb. 20, 2018) (finding that, while the affidavit provided “an

explanation of harm that could occur, this type of harm is too speculative to constitute a clearly

defined and serious injury” (internal quotations omitted)). Further, many of the allegations in this

matter relate to what the DOS communicated to Defendants in terms of Plaintiff’s services [See

infra Section II.B.]. Defendants’ concerns are outweighed by the importance of communications

and documents to/from the DOS to this litigation.

The parties are amenable to negotiating a standard protective order, and the Court finds

that a standard protective order is the most appropriate course of action as opposed to a complete

5 The Court will discuss Defendants’ concerns regarding the volume of production in Section

B [See Doc. 49-7 ¶¶ 11–12].

prohibition on the production of relevant documents [Doc. 57 p. 7 (Plaintiff explaining that a

conventional protective order would readily address Defendants’ confidentiality concerns);

Doc. 49 p. 14 (Defendants proposing, in the alternative, that the Court allow the parties to negotiate

a stipulated protective order)].

For the reasons explained above, the Court DENIES Defendants’ Motion for Protective

Order [Doc. 49]. The Court ORDERS the parties to meet and confer and to submit a proposed

protective order within ten (10) days of this order. If the parties cannot agree on the terms of

protective order within that timeframe, they may contact chambers to set a hearing.

B. Relevancy and Proportionality

Plaintiff seeks an order compelling Defendants to respond to RFP Nos. 1, 2, 3, 11, and 17

and Interrogatory Nos. 1, 2, and 10. Defendants objected to all of these discovery requests on the

basis that their communications with the DOS are confidential. Defendants also argue that several

of Plaintiff’s discovery requests seek a significant volume of material that is not relevant the

parties’ claims and defenses, and as a result, are impermissibly overbroad. In addition, Defendants

submit that Plaintiff’s discovery requests are not proportional to the needs of the case given that

several of the discovery requests seek “all documents” or “all communications” about a wide range

of broad topics. For instance, Defendants state that “two of the most troubling requests” are

RFP No. 2 and Interrogatory No. 1, which seek information beyond the Somalia Task Order

[Doc. 51 p. 9]. Defendants state that “only a small subset of those communications—those related

to the substitution of subcontractors for secured housing—may be relevant to this dispute” [Id.].

Relying on McIntyre’s Declaration [Doc. 47-9], Defendants assert that Plaintiff cannot show

proportionality.

Plaintiff counters that even a cursory review of the record in this case, including the

pleadings and the dispositive motion filings, shows the demonstrable relevance of Defendants’

communications with the DOS. Plaintiff states that documents that Defendants have produced

reference communications with the DOS that implicate Defendants’ legal obligations to Plaintiff

under the MSA. In addition, Plaintiff argues that Defendants have not proposed any narrowing of

the requests and have never conferred with Plaintiff regarding an alternative approach to

responding to the requests. According to Plaintiff, McIntyre’s Declaration is the first substantive,

quantitative information Defendants have provided in explaining the purported burden involved in

producing responsive documents, and Defendants should have proposed a more narrowly tailored

revision months ago.

Upon review of Plaintiff’s allegations, Defendants’ communications to/from the DOS

regarding Plaintiff’s services are relevant in this matter. One of the primary issues in this case is

whether Defendants breached the MSA. In terminating the parties’ relationship, Defendants

allegedly relied on Article 12 of the MSA, which allowed Defendants to terminate the MSA based

on the DOS’s directions. Plaintiffs assert too that Defendants have already produced email

communications establishing Plaintiff’s need for Defendants’ communications to/from the DOS

[See Doc. 57 p. 5 (explaining that “Defendants have already produced multiple emails that

specifically reference communications with DoS that are recognized as implicating Defendants’

legal obligations to RSLS under the MSA”)]. The Court therefore finds that Plaintiff’s discovery

requests seeking Defendants’ communications to/from the DOS regarding Plaintiff’s services (i.e.,

housing services and life support services) relevant in this matter. Indeed, Defendants have

somewhat conceded this point [Doc. 52 p. 9 (“[O]nly a small subset of those communications—

those related to the substitution of contractors for securing house—may be relevant to this

dispute.”)].

Yet, Defendants argue that the discovery requests are not proportional to the needs of this

case. Defendants rely on McIntyre’s Declaration:

11. It would also require a substantial expenditure in resources and

time for Defendants to comply with [Plaintiff’s] discovery requests,

which seek all communications with DOS over a two-year period.

12. Defendants communicated extensively with DOS regarding the

Somalia Task Order during that two-year span, which means

thousands of communications would be implicated. I directed the

IT department to search the mailboxes of three custodians involved

with the Somalia Task Order for records that contain a DOS email

domain address (e.g., @state.gov) between January 1, 2019, and

December 31, 2020. The search returned 77,328 hits, constituted

more than 40GBs of data, even before the documents are produced.

We cannot provide a precise estate of the number of these hits that

relate to the Somalia Task Order but can confirm it is in the tens of

thousands. Moreover, Defendants anticipate they will need to

collect documents from additional custodians, which will

meaningful increase the number of documents to be searched.

[Doc. 49-7 ¶¶ 11–12].6 This information persuades the Court that some of the discovery requests

appear to be overly broad [See, e.g., Doc. 42-2 p. 3 (RFP No. 2 requesting all communications for

two years relating to the Somalia Task Order)].

Despite their assertions of undue burden, Defendants “do not contest that a narrowly-

tailored request for some communications with DOS could contain properly discoverable

materials” [Doc. 52 p. 12; see also Doc. 49 p. 13 n.8 (“RFP No. 11 is much closer to an appropriate

tailored document request.”)]. It appears from the parties’ filings, however, that they have not

6 Defendants also repeat its argument that Plaintiff could issue a subpoena to the DOS, which

would entail no burden on Plaintiff [Doc. 52 p. 11]. But Plaintiff is not required to issue a subpoena

to a non-party in order to discover documents that a party possesses. Baumer v. Schmidt,

423 F. Supp. 3d 393, 408 (E.D. Mich. 2019) (explaining that courts repeatedly quash “subpoenas

directed to non-parties where the discovery sought was obtainable from a party to the litigation”).

engaged in specific discussions in an attempt to discover what Plaintiff needs to prosecute its case

[See Doc. 57 p. 7 (arguing that Defendants should have requested or proposed a more narrowly

tailored revision of Plaintiff’s requests)]. To the extent Defendants have objected to Plaintiffs

discovery requests as overly broad (i.e., RFP Nos. 2, 3, 17 and Interrogatory Nos. 1 & 2), the Court

ORDERS the parties to participate in a meet and confer within fourteen (14) days to discuss the

specific documents Plaintiff seeks in response to the discovery requests and what appropriate

parameters can be put into place to avoid undue expense and burden. Should they arrive at an

impasse, they may contact chambers to schedule a hearing. To the extent Defendants

have objected solely based on the confidentiality provision (i.e. RFP Nos. 1 & 11 and

Interrogatory 10), the Court ORDERS Defendants to produce the requested documents within

thirty (30) days of entry of the protective order [see supra Section II.A.].’

I. CONCLUSION

For the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART

Plaintiff's Motion to Compel [Doc. 42] and DENIES Defendants’ Motion for Protective Order

[Doc. 49].

IT IS SO ORDERED.

ENTER:

Rill E. McCook

United States Magistrate Judge

7 Should the Court determine that some material must be produced, Defendants request that

the DOS be afforded an opportunity to be heard concerning any documents Defendants may

identify for production [Doc. 49 p. 14]. Under the circumstances of this case, the Court finds thirty

(30) days from entry of the protective order sufficient time to advise the DOS of the Court’s ruling

and for the DOS to be heard on any documents Defendants identify for production. To the extent

thirty (30) days is insufficient, Defendants may seek leave for additional time but must meet and

confer with Plaintiff prior to seeking an extension.

15