ORDER ON MOTIONS TO COMPEL AND ESI PROTOCOL

BECKY R. THORSON, Magistrate Judge.

This matter is before the Court on Plaintiffs' Motion to Compel Discovery (Doc. No. 207), and Defendant's Motion to Compel Discovery (Doc. No. 213). Plaintiffs seek to compel an answer to Interrogatory No. 33 and responses to Document Request No. 43(a) (e) and (f) held by DHS or Lead Agencies. Defendant seeks to compel answers to Interrogatory Nos. 20, 21, 22, 24, 25, and 26, and responses to Document Request Nos. 18 and 19.1 In addition, Defendant seeks to compel supplementation of Plaintiffs' discovery answers to indicate the relevance of their 100 additional individuals listed in Plaintiffs' Second Amended Initial Disclosures. Also before the Court are the parties' ESI proposals. (Doc. No. 187.) The Court held a hearing on the motions on April 6, 2018, at which the parties were represented by counsel.2

DISCUSSION

I. Applicable Law

Federal Rule of Civil Procedure 26 governs discovery in federal court. Fed. R. Civ. P. 26(b)(1). Discovery under the Federal Rules of Civil Procedure, however, is not without bounds even if relevance is shown. Federal Rule of Civil Procedure 26(b)(2)(C) provides:

Rule 26(b)(1) provides that:

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

A. Rule 33 Interrogatories

Rule 33 explains that a party answering interrogatories "must furnish the information available to the party." Fed. R. Civ. P. 33(b)(1)(B). Specifically—and importantly— it must "provide information that is available to it and can be produced without undue labor and expense." Lindholm v. BMW of N. Am., LLC, Civ. No. 3:15-CV-03003-RAL, 2016 WL 452315, at *5 (D.S.D. Feb. 5, 2016) (quoting Miller v. Pruneda, 236 F.R.D. 277, 282 (N.D. W. Va. 2004)). An individual defendant named in her official capacity must answer interrogatories directed at the government entity "using all reasonably obtainable information within [her] possession, custody or control, including records maintained by [the relevant government entity]." See Tyler v. Suffolk Cty., 256 F.R.D. 34, 37-38 (D. Mass. 2009).

In raising an objection to an interrogatory, the objecting party has the burden to demonstrate "that the information sought is not reasonably available to it." Lindholm, 2016 WL 452315, at *5 (citing 8B Charles A. Wright et al., Federal Practice and Procedure § 2174 (3d ed. 2010)). When answering interrogatories, a party has an obligation to make efforts to obtain the desired information. See id. "If the answering party lacks necessary information to make a full, fair and specific answer to an interrogatory, it should so state under oath and should set forth in detail the efforts made to obtain the information." Id. (quoting Essex Builders Grp., Inc. v. Amerisure Ins., 230 F.R.D. 682, 685 (M.D. Fla. 2005)); see also Wright, supra, § 2177 & n.5 ("If a party is unable to give a complete answer to an interrogatory, it should furnish any relevant information that is available.").

B. Rule 34 Document Requests

Document requests must "describe with reasonable particularity" the documents sought. Fed. R. Civ. P. 34(b). If a document request comports with Rule 34 and the scope and limits of Rule 26, the responding party must produce documents within its "possession, custody, or control." Fed. R. Civ. P. 34(a). "The concept of `control' . . . is often highly fact-specific." Benson v. Rosenthal, No. 15-782, 2016 WL 1046126, *4 (E.D. La. Mar. 16, 2016) (quoting Wright, supra, § 2210). "[U]nder some circumstances courts interpret the control concept to go beyond whether the litigant has a legal right to obtain materials and focus on practical ability to obtain them." Id. (quotations omitted; emphasis added in Benson). The Court has not yet ordered the Defendant to obtain documents from third party agencies.3

I. Plaintiffs' Motion to Compel Discovery

a. Interrogatory No. 33

Plaintiffs argue that Defendant must obtain and provide class member related information from lead agencies as requested in Interrogatory No. 33. This interrogatory states as follows:

(Doc. No. 210, Pls.' Mem. in Supp. of Mot to Compel Discovery 6.) As explained by Plaintiffs,

(Id. at 7.) Plaintiffs contend that Interrogatory No. 33 is specific, proportional, and relevant. Plaintiffs also contend that Defendant has not articulated why this information is not reasonably available to her or why obtaining the information would be unduly burdensome when the provider agreements with lead agencies allow for them to provide DHS with records upon request.

Defendant objects to Interrogatory No. 33 "because it is overbroad, unduly burdensome and disproportionate, seeks irrelevant information, is vague to the extent it refers to `related grant reports,' and to the extent it seeks information protected by the attorney-client or work product privileges." (Doc. No. 210 at 6.) Subject to its objections, Defendant states that "individuals are not `identified' in grant reports," and "[t]o the extent Defendant has responsive information in its possession, custody, or control, it has already been produced in the form of grant reports." (Id.) If Plaintiffs seek further information that is in the possession, custody, or control of lead agencies, Defendant argues Federal Rule of Civil Procedure 45 governing subpoenas is the proper vehicle.

Defendant further represents that she does not know the identity of the Waiver recipients sought in Interrogatory No. 33, and that the identities are not in her possession, custody, or control. Plaintiffs argue that the reports Defendant received from certain lead agencies "clearly reference specific individuals who have expressed interest in moving out of corporate foster care facilities into alternatives and individuals who have received assistance to move out of corporate foster care facilities" and that Defendant can request the identities of the individuals from the lead agencies. (Id. at 7, 11.)

Although "[a] party . . . must provide by way of answers to interrogatories the relevant facts readily available to it[,] . . . it should not be required to enter upon extensive independent research in order to acquire such information." La Chemise Lacoste v. Alligator Co., 60 F.R.D. 164, 171 (D. Del. 1973); see also Miller, 236 F.R.D. at 282 (stating that an interrogatory may not demand "extensive investigations or . . . complex research"); Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534, 537 (D. Del. 1962) ("[A] party is not required to make research or compilation of data except that within its own knowledge.") (quotations omitted). If the circumstances were different and the reports at issue were prepared by DHS, the outcome on a motion to compel might be different.4 However, based on the information before the Court, Plaintiff's motion with respect to Interrogatory No. 33 is denied.

b. Revised Document Request No. 43

Revised Document Request No. 43 states as follows:

(Doc. No. 210 at 14.) Plaintiffs argue that Defendant must produce documents responsive to revised Document Request No. 43(a), (e), and (f) because Defendant has possession, custody, or control over documents held at lead agencies and this request is not unduly burdensome. Defendant responded to Revised Document Request No. 43 as follows:

(Id. at 15.) Plaintiffs' motion with respect to Document Request No. 43 is granted in part and denied in part as follows.

With respect to paragraph (a), Plaintiffs' motion is denied. This portion of the request is flawed in that it would require Defendant (or presumably her lawyers) to (1) segregate documents produced in response to Document Request Nos. 35 and 44; (2) re-review those documents to identify "Waiver recipients" listed in the documents; and then (3) go back to source document archives to look for more documents (i.e., "MnCHOICES assessment, Case Support Plan, Community Services and Support Plan, My Move Form, transition plan, person-centered plan, correspondence between the Waiver recipient and cases manager, lead agency and/or DHS, and case notes since January 1, 2015") for all Waiver recipients that Defendant (or her lawyers) identify. In other words, it combines what would otherwise be an interrogatory request with a document request. The Court finds this hybrid request beyond the scope of Rule 34. Document Request No. 43(a) is not sufficiently particular about what should be produced because it requires Defendant or her attorneys to take several burdensome steps to determine its scope.5 And, at this point in the case, requiring Defendant to take these steps in order to fully frame the request puts an undue burden on Defendant. Because Document Request No. 43(a) is fundamentally flawed, this Court need not address whether Defendant has control over any potentially responsive documents to this request held by lead agencies.

With respect to paragraph (e), Plaintiffs' motion is granted in part and denied in part. Paragraph (e) seeks "MnCHOICES assessment, Case Support Plan, Community Services and Support Plan, My Move Form, transition plan, person-centered plan, correspondence between the Waiver recipient and cases manager, lead agency and/or DHS, and case notes since January 1, 2015" for the "42 individuals that Defendant identified as having expressed that they wanted to move from corporate foster care facilities to alternatives during their 2016 MnCHOICES assessment." Defendant agreed to produce the MnCHOICES assessments, Consumer Support Plans, and the Community Services and Support Plans for the waiver recipients identified in paragraph (e). However, Defendant asserts that the "My Move Form, transition plan, person-centered plan, correspondence between the Waiver recipient and case manager [and/or] lead agency" and complete case notes are not in DHS's possession, custody, or control.

First, Plaintiffs' request for "correspondence between the Waiver recipient and (Footnote Continued from Previous Page) cases manager, lead agency and/or DHS, and case notes" relating to the 42 individuals identified by paragraph (e) is vague and ambiguous and, as drafted, overly broad. Accordingly, Defendant need not separately search for correspondence and all case notes unless Defendant has correspondence or case note files regarding the individuals wanting to move out of corporate foster care facilities, or it comes upon correspondence and case notes about individuals wanting to move out of corporate foster care facilities when searching for discoverable information and documents.

Two issues regarding paragraph (e) then remain: (1) whether Defendant must search its own databases for additional responsive materials relating to the 42 individuals; and (2) whether Defendant must reach out to the corresponding lead agencies for each of the 42 individuals listed to obtain the "My Move Form, transition plan, and personcentered plans" from the lead agencies.

As to the first issue, it appears that documents responsive to Document Request No. 43(e) are available in the SSIS database, which DHS has access to. (Doc. No. 210 at 15 (stating in Defendant's response how much time it would take to pull documents out of SSIS).) Further, this Court has already ordered Defendant to look for responsive information to Interrogatory No. 6(c) in particular databases that are used by DHS,6 including the SSIS database, and to supplement Interrogatory No. 6(c) with responsive information. (Doc. No. 189, 2/21/18 Order 14.) That decision was affirmed. (Doc. No. 235, 5/18/18 Order.) Since Defendant will be searching the SSIS database anyway, it is not unduly burdensome to add a search relating to these 42 individuals. Indeed, there may be overlap between the individuals identified in Interrogatory No. 6(c) and Document Request No. 43(e).7 Accordingly, Defendant must search the SSIS database for additional MnCHOICES assessments, Consumer Support Plans, and the Community Services and Support Plans for the 42 waiver recipients identified in paragraph (e); Plaintiff's request is otherwise denied.8

As to the second remaining issue—whether Defendant must reach out to lead agencies to obtain the "My Move Form, transition plan, and person-centered plans" for the 42 individuals—this Court finds this part of the request sufficiently particular and also finds that Defendant has control over this relatively narrow set of documents. As evidenced through deposition testimony in this case, DHS reviewers have access to individual case files as part of their review of lead agencies, which likely includes various personal transition plans:

Do you get any permission from the individual themselves who are reviewing before you review their file and their case notes, and then before you show up to the county?

(Doc. No. 211, Aff'd of Christen Chapman ¶ 11, Ex. 10 (Stacey Twite deposition transcript) at 18-19.) Requiring the Defendant to obtain this relatively narrow set of documents from the corresponding lead agencies for the 42 individuals is not unduly burdensome and is proportional to the needs of the case. Therefore, this part of the request is granted.

The court now turns to Plaintiffs' motion to compel the production of documents responsive to paragraph (f). Plaintiffs' motion is denied for the same reasons stated above relating to Interrogatory No. 33 and Document Request No. 43(a). If it is true that Defendant does not know the identities of the Waiver recipients referred to in the DHS Local Planning Grants, Defendant does not have to investigate the identities through lead agencies to determine scope of this request, and then, collect documents responsive to the request (internally or from lead agencies).

c. The Asserted Deliberative Process Privilege

Plaintiffs assert that Defendant has failed to adequately raise the deliberative process privilege with respect to various documents and portions of documents. Plaintiffs point out that Defendant has not provided the necessary affidavit or declaration from a department head or appropriate delegate invoking the deliberate process privilege, and contends that an assertion of the privilege on a privilege log alone is insufficient. Alternatively, Plaintiffs assert that factors weigh in favor of disclosure because (1) there is a compelling need for the documents and they are not otherwise available to Plaintiffs; (2) DHS is the pertinent decision maker and also funds the public services that are at issue, so the government's role in the litigation weighs in favor of disclosure; and (3) disclosure would not hinder frank and independent discussion regarding contemplated policies and decisions.

Defendant argues that Plaintiffs did not meet and confer on this issue, including on the issue of deficiencies in the privilege log. Even so, Defendant asserts that she properly invoked the privilege by serving a privilege log, and that the factors do not weigh in favor of disclosure.

The Court concludes that an in camera review of the documents at issue would be appropriate in this circumstance after the parties fully meet and confer on this issue. Accordingly, if there are issues regarding privilege log entries remaining after the meet and confer, Defendant must provide the Court with the documents at issue (i.e., those designated privileged under the deliberative process privilege) no later than July 16, 2018, for an in camera review. The documents must be clearly marked as either designated privileged in full, or privileged in part by redaction. Those documents where the redacted material is asserted privileged, Defendant must provide the Court with a copy that shows the redaction through highlighting so that the Court can clearly see what was redacted. For each document asserted privileged or privileged in part under the deliberative process privilege, Defendant must provide the Court with a short description of the basis for the privilege.

d. Documents Kept in the Usual Course of Business

Based on the representations provided by both counsel at the hearing on this issue, the Court deems Plaintiffs' request moot. The parties have resolved the issue of identification of custodians for all documents provided in hard copy, and Defendants have sufficiently explained why some electronic discovery records were produced in the usual course of business but do not have individual custodians.

II. Defendant's Motion to Compel Discovery

a. Interrogatory Nos. 20, 21, 22, 24, 25, 26

Defendant seeks supplementation from Plaintiffs on Interrogatory Nos. 20, 21, 22, 24, 25, and 26 because Plaintiffs' previous responses either have reservation language indicating that the response might not be complete, or Plaintiffs have indicated that they are withholding information because it is information known by counsel, but not necessarily known by the named Plaintiffs. For each of these Interrogatories, Plaintiffs must provide supplemental responses, on or before June 29, 2018, that provide what factual information they know (which includes information known to Plaintiffs' counsel) that is responsive to the Interrogatory and that is not subject to the attorney-client privilege or work-product protected.

When responding, Plaintiffs are not required to provide the equivalent of a narrative account of their case including every evidentiary fact, details of testimony of supporting witnesses, and the contents of supporting documents. Regarding Interrogatory Nos. 20, 24, 25, and 26, Plaintiffs must identify primary and material facts known. See Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 447 (D. Kan. 2000) (finding interrogatories seeking "every fact and document" overly broad and unduly burdensome, and limiting the scope "to identification of the material or principal facts and documents supporting plaintiff's contentions"). Plaintiffs should also confirm that they are not withholding known primary and material facts by using a "may not be limited to" clause. This Court rejects the notion that Defendant's Interrogatory No. 21 (i.e., identify "every person who you believe is a class member") seeks attorney work product. See Hickman v. Taylor, 329 U.S. 495 (1947) ("A party clearly cannot refuse to answer interrogatories on the ground the information sought is solely within the knowledge of his attorney."). Indeed, Plaintiffs' argument does not square with their supplemental initial disclosures, which purportedly identify class members. Therefore, Plaintiffs must identify known class members and provide the reasons why they are believed to be class members.9 As for Interrogatory No. 22, Plaintiffs concede they have additional responsive information, but they want to delay a response until they have more time to review Defendant's discovery and obtain additional discovery. The Court appreciates that Plaintiffs' complete answer may depend on additional discovery they have not yet obtained. But Plaintiffs have had sufficient time to review discovery produced and to provide updated answers to include principal and material facts known at this time. Therefore, Defendant's motion with respect to Interrogatory Nos. 20, 21, 22, 24, 25, and 26, subject to the guidance and limitations above, is granted.

b. Document Request No. 18

Document Request No. 18 asks for "All documents reviewed, consulted, or referenced in your Answers to Interrogatories or Requests for Admission." Plaintiffs have agreed to produce those documents "referenced" but not those "reviewed and consulted," arguing that the "reviewed and consulted" part of the request is overbroad, burdensome, unreasonable, and may implicate the work-product doctrine. Regarding Document Request No. 18, Defendant's motion is granted to the extent that Plaintiffs reviewed, consulted, or referenced documents to respond to Interrogatories or Requests for Admission. Documents that are attorney-client privileged or that are protected by the work-product doctrine must be listed on a privilege log.

c. Document Request No. 19

Document Request No. 19 asks for "All documents that refer or relate to the Interrogatories, Requests for Admission, or your responses thereto, in Defendant's current, past, or future discovery requests." This request is overly broad. Therefore, Defendant's motion regarding Document Request No. 19 is denied.

d. Plaintiffs' Second Amended Initial Disclosures

Defendant raises several concerns with Plaintiffs' Second Amended Initial Disclosures, including that Plaintiffs now list 120 people in their disclosures but Plaintiffs' responses to previous discovery requests have not been supplemented to include these individuals. Defendant's motion relating to Plaintiffs' Second Amended Initial Disclosures is granted to the extent that Plaintiffs must supplement previous interrogatories that required identification of people if the newly disclosed people in Plaintiff's Second Amended Initial Disclosures would be responsive to those requests. Otherwise, Defendant's motion is denied.

III. Discovery Plan and Protocol Dispute

The Court has reviewed the parties' proposed plan and protocol for the written discovery served on January 30, 2018. (Doc. No. 187.) However, in light of this Court's February 21, 2018 Order (Doc. No. 189) as affirmed by the District Court (Doc. No. 235), and this Order as delineated above, the Court now requires the parties to further meet and confer and file an updated proposed plan and protocol for the remaining written discovery.

It appears that the parties agree on the following:

The parties are not in agreement on how Defendant should search custodial files for documents responsive to Plaintiffs' January 30, 2018 requests. (See Doc. No. 187.)

In October 2017, this Court resolved the parties' dispute regarding search terms for previously served discovery requests. (Doc. No. 102, 10/4/17 Order and Opinion). Plaintiffs' proposed search terms were adopted. (Id.) A November 16, 2017 email from Defendant's counsel indicates that DHS agreed to run searches on Disability SharePoint, Housing SharePoint, Lead Agency Review SharePoint, CRM Database, DSD S drive and DSD X drive sources. (Doc. No. 187, Ex. B.) Apparently, these sources were satisfactory to Plaintiffs. (See id., 11/16/17 email from Plaintiffs' counsel.)

Plaintiffs now argue that a new ESI protocol should apply to their January 30, 2018 requests.10 Defendant asserts that the already litigated search terms and sources should apply to the January 30, 2018 requests. Plaintiffs do not clearly explain why the current search terms did not capture documents responsive to the new document requests, nor do they offer concrete alternatives.

Based on the parties' submissions, the Court finds that Defendant need not repeat a search of sources already searched using the search terms subject to this Court's October 4, 2017 Order. (See Doc. No. 102, 10/4/17 Order and Opinion.) A do-over search of electronic discovery sources is overly burdensome. However, the results of the previous searches should be further examined to determine if the pool of documents includes discoverable documents now responsive to Plaintiffs' January 30, 2018 requests. The parties must meet and confer to identify search terms to further narrow the pool and locate documents that are unique to the January 30, 2018 requests.11 If there are disputes regarding a targeted search of the subset of the pool, the parties must file a joint submission setting forth their respective positions and include a discussion of why the specific January 30, 2018 discovery request(s) at issue are satisfied or not satisfied by the competing search term proposals.

If new electronic sources—including new databases—are now at issue, the parties must meet and confer to determine the search terms to be used to locate responsive documents from these new electronic sources or databases. The Court notes that neither party has proposed sampling electronic discovery sources. See Fed. R. Civ. P. 34(a) advisory committee's note to 2006 amendment ("[P]arties may request an opportunity to test or sample materials sought under the rule in addition to inspecting and copying them."). The Court encourages the parties to consider such an approach for any new electronic discovery sources, especially given the District Court's note that Defendant will have the opportunity to renew her burdensomeness and proportionality objections after reviewing a substantial and representative portion of the records at issue. (See Doc. No. 235, 5/18/18 Order 16, n. 2.)

Finally, the ESI proposals indicate a disagreement about whether Plaintiffs should have negotiated search terms instead of unilaterally applying their own search terms to locate responsive documents. The Court does not conclude that Plaintiffs did anything improper by using search terms to search the source documents of the Named Plaintiffs and guardians "as one tool, in addition to other traditional efforts." (Doc. No. 187 at 17.) The Court agrees with Plaintiffs that search terms would be inapplicable to locate documents responsive to Document Request Nos. 18 and 19. And the Court lacks information necessary to assess whether Plaintiffs' efforts to locate documents responsive to other requests are insufficient. (See id. at 16-17.) The Court will not convert Defendant's search-term complaint into a new motion to compel at this stage in the case.

In sum, disputes regarding electronic discovery plans and protocols could have been raised and resolved more efficiently had both sides better communicated and collaborated in the early stages of this case. (See Doc. No. 235, 5/18/18 Order at 16.) The Court hopes that the multiple discovery rulings will now permit the parties to engage in a meaningful meet and confer about the electronic discovery protocol that should be applied. The parties' updated proposed plan and protocol, consistent with the requirements of this Order, should be filed on or before June 8, 2018.

ORDER

Based on the file, records, argument of counsel, and for all of the above reasons, IT IS HEREBY ORDERED that:

1. Plaintiffs' Motion to Compel Discovery (Doc. No. 207) is GRANTED IN PART and DENIED IN PART as explained above;

2. Defendant's Motion to Compel Discovery (Doc. No. 213) is GRANTED IN PART and DENIED IN PART as explained above;

3. Any meet and confers required by this Order must be completed by June 8, 2018.

4. Any supplementation, production, or certification required by this Order must be completed on or before June 29, 2018.