Colorado Biolabs Inc v. Three Arrows Nutra LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
COLORADO BIOLABS, INC., 	§
§
Plaintiff-Counterdefendant, 	§
§
VS. 	§ 	Civil Action No. 3:25-CV-0601-D
§
THREE ARROWS NUTRA, LLC, 	§
§
Defendant-Counterplaintiff. 	§
MEMORANDUM OPINION
AND ORDER
Defendant-counterplaintiff Three Arrows Nutra, LLC (“Three Arrows”) moves to
compel discovery from plaintiff-counterdefendant Colorado Biolabs, Inc. (“CBL”) and
requests an award of attorney’s fees associated with the motion to compel. CBL moves for
leave to file supplemental evidence. For the reasons that follow, the court grants in part and
denies in part Three Arrows’ motion to compel and denies its request for attorney’s fees. The
court grants CBL’s motion for leave to file supplemental evidence.
I
CBL and Three Arrows are competitors in the iron supplement industry. In 2023 CBL
sued Three Arrows, asserting claims for false advertising and unfair competition based on
Three Arrows’ alleged misrepresentation that its products contained Heme Iron sourced from
bovine blood. 	CBL and Three Arrows eventually entered into a Confidential Settlement
Agreement and Mutual Release (“Settlement Agreement”) under which Three Arrows
agreed, inter alia, that it would re-label and re-brand its products to eliminate all
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representations that they constitute or contain Heme Iron; that it would not represent,
expressly or by implication, that its products contain Heme Iron; and that neither party would
disparage the other party or its employees, products, or services.
In March 2025 CBL filed the instant lawsuit, alleging that Three Arrows has failed
to comply with its obligations under the Settlement Agreement and asserting claims for
breach of the Settlement Agreement, false advertising and unfair competition under the
Lanham Act, 15 U.S.C. § 1125(a), and common law unfair competition and business
disparagement. 	Three Arrows counterclaims against CBL for breach of the Settlement
Agreement, breach of the parties’ Non-Disclosure Agreement, and unfair competition under
common law and the Lanham Act.
On June 9, 2025 Three Arrows served CBL its first requests for production and first
set of interrogatories (“First Discovery Requests”) and on September 9, 2025 it served its
second requests for production and second set of interrogatories (“Second Discovery
Requests.”). 	Three Arrows maintains that CBL’s responses to the First and Second
Discovery Requests are deficient. Accordingly, it has filed the instant motion to compel.
CBL opposes the motion, which the court is deciding on the briefs, without oral argument.
II
The court begins by addressing CBL’s motion for leave to file supplemental evidence.
CBL filed its response to Three Arrows’ motion to compel on January 2, 2026. On January
7, 2026 (nine days before Three Arrows’ reply in support of its motion to compel was due),
CBL filed the instant motion for leave to file a supplemental evidence. 	CBL seeks to
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supplement its response appendix with the declaration of Adam Kashenberg (“Kashenberg”),
its Chief Executive Officer, as additional support, inter alia, for its argument that Requests
for Production (“RFP”) Nos. 9 and 10 are “overburdensome and not proportionate to the
needs of the case.” 	D. Br. (ECF No. 44) at 2. 	Three Arrows opposes the motion on the
grounds that CBL should not be permitted to use the Kashenberg declaration to retroactively
cure deficiencies in its discovery objections, and that CBL’s untimely submission prejudices
Three Arrows because it was filed after Three Arrows “was forced to brief its Motion to
Compel without the benefit of the factual explanations CBL now offers to justify its
boilerplate overbreadth and proportional objections,” D. Br. (ECF No. 47) at 5.
The court grants CBL’s motion and grants CBL leave to file the supplemental
evidence. CBL filed the motion five days after it filed its response brief, and Three Arrows
had a fair opportunity to reply to the Kashenberg declaration (ECF No. 45-1) when it filed
its reply brief. The court therefore deems the declaration to be part of the motion record.
III
The court now turns to Three Arrows’ motion to compel.
Under Fed. R. Civ. P. 26(b)(1), “[u]nless otherwise limited by court order . . . [p]arties
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.” 	And, under Rule 37(a)(3)(B), “[a]
party seeking discovery may move for an order compelling an answer, designation,
production, or inspection” when the party from whom discovery is sought fails to produce
requested documents or respond to an interrogatory or request for admission. The burden
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is on the party resisting discovery—here, CBL—to establish why the motion to compel
should not be granted. Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)
(Ramirez, J.); see also Lozano v. Dorel Juv. Grp., 2010 WL 11619687, at *1 (N.D. Tex. May
26, 2010) (Means, J.) (“Generally, the burden is on the party seeking to avoid compliance
with a discovery request to show that the request is improper[,]” such that “in the context of
a motion to compel, the party who opposes discovery must ‘show specifically how [the
request] is not relevant or how [the request] is overly broad, burdensome, or oppressive.’”
(second and third alterations in original) (quoting McLeod, Alexander, Powell and Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990))).
IV
Three Arrows moves the court to overrule CBL’s “Objections to Instructions and
Definitions” (“General Objections”); to overrule CBL’s “discrete subparts” objection to
Interrogatories Nos. 12, 19, 23, and 24; and to compel full and complete answers to these
Interrogatories. CBL responds that the court should deny these grounds of Three Arrows’
motion because Three Arrows failed to confer with CBL regarding them.
A
Rule 37(a) requires that a motion to compel “include a certification that the movant
has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” “When a motion to
compel addresses a number of matters, a good faith effort to confer typically requires that the
parties discuss each matter in good faith to comply with conference requirements.” Brown
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v. Bridges, 2015 WL 11121361, at *4 (N.D. Tex. Jan. 30, 2015) (Solis, C.J.) (citing Anzures
v. Prologis Tex. I LLC, 300 F.R.D. 314, 316 (W.D. Tex. 2012)); see also Alt Platform, Inc.
v. Beckett Collectibles, LLC, 2025 WL 836049, at *2 (N.D. Tex. Mar. 17, 2025) (Godbey,
C.J.) (declining to compel further production when moving party sought to have objections
overruled but had not previously raised the issue in any of its four deficiency letters to
opposing party). 	“Failure to confer generally serves as a basis for denying a discovery
motion.” Brown, 2015 WL 11121361, at *3 (quoting Layne Christensen Co. v. Purolite Co.,
271 F.R.D. 240, 245 (D. Kan. 2010)).
B
The certificate of conference included in Three Arrows’ motion to compel states:
[o]n September 9, 2025, Defendant sent correspondence to
counsel for Plaintiffs regarding the deficiencies in Plaintiff’s
discovery responses and productions. 	On October 9, 2025,
Defendant’s counsel sent correspondence in further discussion
of Plaintiff’s discovery deficiencies. On October 16, 2025, the
counsel for both Parties engaged in a lengthy meet and confer by
video conference in an attempt to resolve the relief requested via
this Motion. On October 30, 2025, counsel for Defendant sent
correspondence 	to 	counsel 	for 	Plaintiff 	regarding 	further
discovery deficiencies. 	On November 10, 2025, counsel for
Plaintiff 	sent 	responsive 	correspondence 	to 	counsel 	for
Defendant.
D. Br. (ECF No. 41) at 25. Despite these apparent attempts to resolve the parties’ discovery
disputes, CBL contends that Three Arrows failed to confer with it regarding “the issues
Three Arrows takes with (i) CBL’s so-called ‘general objections’ . . . , and (ii) CBL’s
objections that Interrogatories No. 12, 19, 23, and 24 contain discrete subparts.” P. Br. (ECF
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No. 42) at 6.
Three Arrows replies that “CBL has been sufficiently notified of which discovery
responses would be at issue in Three Arrows’ Motion, and CBL has unambiguously and
consistently stood on its objections, which are now at issue in Three Arrows’ Motion.” D.
Reply (ECF No. 48) at 3.
C
Based on the certificate of conference or the evidence attached to Three Arrows’ reply
brief—which it did not obtain leave of court to file1—the court is unable to determine
whether Three Arrows conferred with CBL regarding its General Objections or discrete
subparts objections. But assuming that it did, the court nevertheless denies this ground of
Three Arrows’ motion to compel because it appears that CBL has not withheld information
based on either objection.
Regarding its General Objections,2 CBL contends that they “merely reflect [CBL’s]
1See, e.g., Budri v. FirstFleet Inc., 2020 WL 10816627, at *2 (N.D. Tex. June 10,
2020) (Ramirez, J.) (citations omitted) (a movant is not “ordinarily permitted to introduce
new evidence in support of a reply because such action would deprive the non-movant of a
meaningful opportunity to respond”).
2In its responses to Three Arrows’ First and Second Discovery Requests, CBL
includes the following General Objections:
Plaintiff states the following [General Objections] with respect
to each and every Request for Production made by Defendant.
The [General Objections] shall be incorporated by reference in
the response to each such Request for Production. The specific
objections 	included 	within 	a 	response 	to 	a 	Request 	for
Production are intended to supplement the [General Objections]
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intent to fulfill its obligations to respond to Three Arrows’ discovery requests in good faith
and reserve its right to amend and supplement its specific objections and responses in
accordance with the federal rules.” 	P. Br. (ECF No. 42) at 6. 	With respect to the
interrogatories to which CBL objects on the basis that they contain discrete subparts, CBL
has provided responses to each interrogatory “subject to” the objection, see D. App. (ECF
No. 41-1) at 13, 17, 18-19, and clarifies in its response that it has not withheld any discovery
based on the “subject to” objections, P. Br. (ECF No. 42) at 10.
Accordingly, the court denies this ground of Three Arrows’ motion to compel.
V
Three Arrows moves to compel responses to Interrogatories Nos. 3, 14, 17, and 18 and
RFP Nos. 11, 13, 33, and 35 on the ground that CBL’s objections are generic, vague, and
ambiguous and do not provide specific grounds or explanations. CBL responds that it
has 	already 	informed 	Three 	Arrows 	that, 	except 	for 	the
documents described [in its response], CBL is not withholding
any 	documents 	or 	information 	based 	on 	the 	objections
complained about in section D of the Motion to Compel. CBL
and shall not limit the applicability of the [General Objections]
to each such Request for Production.
Plaintiff has made reasonable efforts to respond to these
Requests for Production based on its reasonable interpretation
of same. If Defendant subsequently asserts an interpretation of
any 	Request 	for 	Production 	that 	differs 	from 	Plaintiff’s
interpretation, 	then 	Plaintiff 	reserves 	the 	right 	to 	further
supplement and/or amend these Objections and Responses.
D. App. (ECF No. 41-1) at 1 (paragraph numbering omitted).
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has informed Three Arrows, and also explains [in its response]
why 	the 	withheld 	documents 	and 	information 	are 	not
discoverable. 	There is no need for the Court to rule upon
objections that are not being relied upon to withhold discovery.
P. Br. (ECF No. 42) at 10 (emphasis added) (citation omitted).
Because CBL has confirmed that it has not withheld any information based on its so-
called “boilerplate objections and ‘subject to’ responses,”—and Three Arrows concedes in
its reply that this ground of its motion is moot, see D. Reply (ECF No. 48) at 7—the court
denies this ground of Three Arrows’ motion to compel.
VI
Three Arrows moves to compel CBL to produce complete and itemized financial data,
as requested in RFP Nos. 9 and 10.
A
RFP No. 9 requests “[a]ll documents and communications related to the sales of the
CBL Products from 2021 to present, including but not limited to sales reports, sales data,
invoices, purchase orders, and bills of lading.” D. App. (ECF No. 41-1) at 3. RFP No. 10
requests “[a]ll documents and communications evidencing CBL’s revenue and profits from
the sale of CBL Products.” Id. at 4.
In response to RFP Nos. 9 and 10, CBL produced a one-page document that compiles
the net income for one of its products (Proferrin Clear) from May 31, 2024 through October
23, 2025. It objects to both requests
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on the grounds that [they are] overbroad, unduly burdensome,
not proportional to the needs of the case, and seek[] information
that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. More specifically, none of
CBL’s claims provides proper grounds for the discovery of the
documents sought by th[ese] Request[s].
Id. at 3-4.
B
Three Arrows moves to compel CBL to produce complete and itemized financial data,
contending that CBL’s production is “woefully deficient.” D. Br. (ECF No. 41) at 13. It
maintains that gross sales and attendant expenses are relevant to the calculation of damages
with respect to both parties’ Lanham Act claims; that information related to CBL’s sales
around the time of the social media posts that allegedly breached the Settlement Agreement
are clearly relevant to fully evaluate CBL’s alleged damages; that CBL should be required
to produce its financial information at the level of granularity available to CBL in its ordinary
course of business, not in summary fashion; and that the court should order CBL to produce
comprehensive daily sales data for all of its Heme Iron products in such detail that CBL’s
profits can be readily ascertained.
CBL responds that Three Arrows has failed to explain the relevance of its requests;
that requiring CBL to locate, review, and produce “all” such documents and communications
covering a period of more than three years before the Settlement Agreement’s effective date
and spanning more than four years in total would be “grossly overburdensome” and not
proportionate to the needs of the case; that, “attempting to respond in good faith,” CBL
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produced documentation reflecting all sales of its Proferrin Clear product in the United States
from the relevant date of the Settlement Agreement to the present; and that CBL’s counsel
informed Three Arrows that CBL is willing to search for further documentation regarding
its alleged damages if Three Arrows’ counsel would identify the particular information it
seeks in RFP Nos. 9 and 10, but that Three Arrows failed to provide any meaningful
clarification.3 P. Br. (ECF No. 42) at 10-11.
C
To the extent that CBL is withholding documents responsive to RFP Nos. 9 and 10
on relevance grounds, CBL has not established that the requested documents are not relevant.
As stated above, the burden is on the party resisting discovery to establish why the motion
to compel should not be granted. Merrill, 227 F.R.D. at 470. In its response, CBL argues
only that “[t]he Motion to Compel fails to explain the relevance of the vaguely described ‘all
documents and communications’ or the equally vaguely described ‘comprehensive daily sales
data for all of its heme iron’ which Three Arrows seeks (and presumes exists) in its Motion
to Compel.” 	P. Br. (ECF No. 42) at 10. 	CBL neither argues nor establishes that the
discovery Three Arrows seeks in RFP Nos. 9 and 10 is irrelevant.
3 In its reply, Three Arrows contends that, on December 9, 2025, it asked CBL to
confirm via email whether it “is unwilling to produce any additional financial data including,
but not limited to, income for CBL’s other heme iron products, expenses for any heme iron
product, income statements, balance sheets, complete profit and loss reports, invoices,
purchase orders, or any information from which CBL’s revenue and profits for its heme iron
products may be calculated,” and that CBL did not provide this information. D. Reply (ECF
No. 48) at 8 (emphasis omitted).
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D
The court now turns to CBL’s contention that RFP Nos. 9 and 10 are “grossly
overburdensome and not proportionate to the needs of the case.” Id.
1
As with CBL’s relevance objection, a party opposing discovery on the basis that it is
unduly burdensome “bears the burden of showing why discovery should be denied.” S.E.C.
v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (Ramirez, J.) (citing Wiwa v. Royal Dutch
Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004)). 	“In order to satisfy its burden, the
objecting party must make a specific, detailed showing of how a request is burdensome.” Id.
(citation omitted). “A mere statement by a party that a request is ‘overly broad and unduly
burdensome’ is not adequate to voice a successful objection.” United States v. Umbrella Fin.
Servs., LLC, 2024 WL 117153, at *1 (N.D. Tex. Jan. 10, 2024) (Fitzwater, J.) (quoting
Brady, 238 F.R.D. at 437). 	“[A] party asserting undue burden typically must present an
affidavit or other evidentiary proof of the time or expense involved in responding to the
discovery request.” Id. (quoting Brady, 238 F.R.D. at 437).
2
In support of its response, CBL has produced the declaration of Kashenberg, its Chief
Executive Officer. With respect to RFP Nos. 9 and 10, Kashenberg explains that
CBL’s revenue comes from literally tens of thousands of
individual transactions, including several thousand every day.
The volume of documents relating to each individual CBL sales
transaction, such as “invoices, purchase orders, and bills of
lading,” from January 1, 2021 to present—whether for just
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Proferrin Clear or for all Proferrin products—would be massive
and extremely burdensome to locate, download, coordinate, and
produce. . . .
CBL currently uses a cloud-based version of Quickbooks
Enterprise to manage its accounting and financial information.
CBL also implemented new inventory software (Fishbowl
Inventory) in approximately the last 3 years. Prior to this, all of
CBL’s sales and other financial information prior to that
transition resides on two physical servers. 	Those physical
servers run on a old version of Microsoft Windows that is no
longer supported.
Given the vast volume and scope of financial and sales
documents and information that Three Arrows has demanded, I
estimate that it would require a CBL accounting team staff
member to spend two full work weeks (approximately 80 hours)
to 	locate 	and 	download 	or 	print 	each 	such 	document.
Additionally, because of the technical challenges associated
with the legacy financial information on the physical servers, I
estimate 	that 	it 	would 	also 	require 	a 	CBL 	information
technology team member to spend approximately 20-30 hours
to resolve technical access issues.
P. App. (ECF No. 45-1) at 3-4 (paragraph numbering omitted).
CBL has demonstrated that it would be unduly burdensome to produce its daily sales
data (i.e., all invoices, purchase orders, and bills of lading) for all of its products, from
January 1, 2021 to the present. 	But it has not demonstrated that it would be unduly
burdensome to produce the financial data stored in Quickbooks Enterprise or Fishbowl
Inventory. 	Nor has it established that it would be unduly burdensome to produce the
requested financial information (for all products, for the time period requested) “at the level
of granularity available to CBL in its ordinary course of business.” D. Br. (ECF No. 41) at
14. For example, CBL has not shown that it would be unduly burdensome to produce the
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following financial data: “income for CBL’s other heme iron products, expenses for any
heme iron product, income statements, balance sheets, complete profit and loss reports . . .
or any information from which CBL’s revenue and profits for its heme iron products may be
calculated.” D. Reply (ECF No. 48) at 8 (emphasis omitted).
Accordingly, the court denies this ground of Three Arrows’ motion to the extent that
it requests daily financial information that pre-dates CBL’s current accounting and inventory
software, but it otherwise grants the motion.
VII
Three Arrows moves to compel CBL to identify the specific documents it has
produced that form the basis for its allegations against Three Arrows relating to violations
of the Settlement Agreement and its Lanham Act claims.
A
Three Arrows contends that, in response to its RFPs seeking statements by Three
Arrows that CBL believes breach the parties’ Settlement Agreement or the Lanham Act,
CBL produced over 11,000 pages of documents that include screenshots of various websites,
social media posts, and hours of podcast recordings and transcripts of a potential third-party
witness. To clarify which of the more than 11,000 pages of material violates the Settlement
Agreement or Lanham Act, Three Arrows requested, in Interrogatory No. 19:
Identify all statements made by Three Arrows that you contend
violate the Settlement Agreement or the Lanham Act. 	A
complete 	answer 	will 	include 	the 	bates 	number 	of 	each
document produced that contains the statement (including but
not limited to within CBL’s production bates-labeled CB-
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000001 through CB-011702), an identification of the specific
statement CBL alleges violate[s] the Settlement Agreement or
the Lanham Act, and an identification of the Settlement
Agreement or Lanham Act provision CBL alleges the identified
statement violates.
D. App. (ECF No. 41-1) at 17. CBL responded, in pertinent part that
the statements by Three Arrows that violate the Settlement
Agreement or the Lanham Act are set forth verbatim in
Paragraphs 33-68 of Plaintiff’s Original Complaint. 	The
provisions of the Settlement Agreement breached by Three
Arrows are set forth in Paragraphs 30 and 31 of Plaintiff’s
Original Complaint. The provisions of the Lanham Act violated
by Three Arrows are set forth in Paragraphs 93-99 of Plaintiff’s
Original Complaint.
Id.
B
Three Arrows moves to compel CBL to identify which specific documents it has
produced that form the basis for its allegations against Three Arrows.
CBL responds that requiring it to review “all documents produced in this case to log
them for Three Arrows would be unduly burdensome for CBL and not proportionate to the
needs of the case.” P. Br. (ECF No. 42) at 11-12. In support, CBL cites the declaration of
its attorney, who avers:
To date, CBL has collected and produced approximately 5,468
documents, consisting of at least 12,516 pages to Three Arrows.
Estimating a review time of 30 seconds per page, I estimate that
it would take 92 hours to review and log those documents for
Three Arrows, which is the only means CBL would have to
provide the level of specificity requested . . . [in] Interrogatory
No. 19. 	That estimate does not include the amount of time it
would take CBL to review additional documents produced in
this litigation, including those produced by Three Arrows, for
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responsive Bates numbers.
Moreover, each statement that CBL alleges to violate the
Settlement 	Agreement 	or 	the 	Lanham Act 	is 	specifically
identified, reproduced, and quoted in CBL’s Original Complaint
(Dkt. 1). 	CBL is not currently aware of, and does not allege,
any statement that constitutes a breach of the Settlement
Agreement or the Lanham Act by Three Arrows other than those
that are expressly identified and set forth in its Original
Complaint.
P. App. (ECF No. 43-1) at 2-3 (paragraph numbers omitted).
C
CBL has demonstrated that it would be unduly burdensome to review all of the
documents that it produced to date in order to identify those that contain statements that CBL
believes violate the Settlement Agreement or Lanham Act. But it has not shown that it would
be unduly burdensome to produce a complete copy of each document that contains a
statement that it refers to in its original complaint. Accordingly, the court orders CBL to
either identify, by bates number, the documents that it has already produced that contain the
statements CBL refers to in paragraphs 33-68 of the original complaint, or to produce new
copies of these documents if CBL deems it cumbersome to locate them within the 12,516
pages it has already produced.
VIII
Three Arrows moves to compel CBL to produce documents responsive to RFP Nos.
3, 4, 6, 8, 17 and 34 and responses to Interrogatories Nos. 2 and 20 with respect to all of
CBL’s iron supplements.
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A
CBL has produced documents responsive to RFP Nos. 3, 4, 6, 8, 17 and 34 with
respect to only one of its products: Proferrin Clear. 	Three Arrows moves to compel
responsive documents with respect to all of CBL’s iron supplement products. It contends
that the full scope of CBL’s testing procedures for its Heme Iron products is relevant because
the reliability of those procedures is at issue and discrepancies or similarities in testing
procedures across CBL’s Heme Iron products and the results such tests produce speaks to the
reliability and accuracy of CBL’s procedures.4
CBL responds that neither the complaint nor counterclaims contain any allegation that
could justify the disclosure of confidential, commercially sensitive, and proprietary
information5 about any CBL product other than Proferrin Clear, and that Three Arrows has
failed to carry its burden to show otherwise; that while receiving different test results under
the same procedures for the same product might speak to reliability, using different tests or
receiving different test results for different products does not necessarily weigh on reliability;
and that although the amount of iron in Proferrin Clear is at issue, the reliability of CBL’s
testing procedures is not.
4
Three Arrows also moved to compel documents relating to the clinical documentation
CBL referenced in certain social media communications. 	On December 10, 2025 CBL
produced its “clinical documentation.” 	Accordingly, Three Arrows has withdrawn this
ground of its motion to compel.
5To the extent that CBL suggests that the discovery Three Arrows seeks is
confidential, commercially sensitive, and proprietary, it has not established that the parties’
agreed protective order is insufficient to protect its confidential information.
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B
CBL has failed to carry its burden to show that Three Arrows’ requests are not
relevant. 	In support of its counterclaims, Three Arrows alleges that CBL is misleading
customers about the substance of its own product by representing that each capsule of
Proferrin Clear contains 10.5 mg of Heme Iron polypeptide when testing shows that, on
average, Proferrin Clear capsules actually have fewer than 10 mg of Heme Iron. 	CBL
disputes this allegation. 	If CBL attempts to use its own internal testing procedures to
establish that its products do, in fact, contain the amount of Heme Iron it represents, then the
reliability of CBL’s testing procedures could become an issue. CBL’s testing procedures
across all of its Heme Iron products is relevant to whether CBL’s testing procedures, both
as a whole and with respect to Proferrin Clear, are reliable.
Accordingly, the court grants Three Arrows’ motion to compel CBL to produce
documents related to the testing of all the CBL products in response to RFP Nos. 3, 4, 6, 8,
17, and 34 and Interrogatories Nos. 2 and 20.
IX
Three Arrows moves to compel documents responsive to RFP Nos. 3, 7, 23, and 24
regarding the source or origin of the components of CBL’s products.
A
In response to RFP Nos. 3, 7, 23, and 24, CBL produced Certificates of Analysis for
Proferrin Clear that state that the country of origin for the completed product is the United
States. Three Arrows contends that, because this document does not speak to the origin of
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any of the component parts of Proferrin Clear, including Heme Iron, it is an incomplete
discovery response.
CBL responds that Three Arrows’ discovery requests are facially irrelevant,
overbroad, unduly burdensome, and lacking in proportionality because, for example:
the source of the ingredients of CBL’s products has nothing to
do with whether Proferrin is the only Heme Iron available in the
U.S. as an iron supplement or whether another company also
manufactures Heme Iron supplements in the United States.
Stated differently, the constituent ingredients of CBL’s products
has 	no 	bearing 	on 	where 	CBL’s 	products 	or 	any 	other
company’s products are manufactured or sold.
P. Br. (ECF No. 42) at 14.
B
CBL has established that Three Arrows’ discovery requests that seek information
regarding the country of origin of each component of CBL’s Heme Iron supplements is not
relevant. In its counterclaims, Three Arrows alleges:
In its “Frequently Asked Questions” panel on its website, CBL
claims that it is the only company that manufacturers heme iron
in the United States.
• Does anyone else manufacture heme iron? (US or
abroad?)
Not in the U.S. but in the past other international
companies produced a similar product.
Am. Countercl. ¶ 17 (bold font omitted) (footnote omitted); see also id. ¶ 41 (“CBL also
claims that it is the only company that manufactures Heme Iron in the United States. On
information and belief, that is also false.”). The source of the ingredients of CBL’s products
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is not relevant to the question whether CBL falsely represented that it was the only company
that manufactures Heme Iron in the United States.
Accordingly, the court denies Three Arrows’ motion to compel CBL to produce
documents that identify the source of the ingredients for the CBL products in response to
RFP Nos. 3, 7, 23, and 24.
X
Three Arrows moves for an award of attorneys’s fees. Under Rule 37(a)(5)(C), if a
motion to compel “is granted in part and denied in part, the court may issue any protective
order authorized under Rule 26(c) and may . . . apportion the reasonable expenses for the
motion.” Rule 37(a)(5)(C). But “the court must not order this payment if . . . the opposing
party’s nondisclosure, response, or objection was substantially justified[.]” Rule 37(a)(5)(A).
“A motion is ‘substantially justified’ if there is a genuine dispute, or if reasonable people
could differ as to the appropriateness of the contested action.” Zenith Ins. Co. v. Tex. Inst.
for Surgery, L.L.P., 328 F.R.D. 153, 162 (N.D. Tex. 2018) (Horan, J.) (brackets omitted).
Here, CBL’s objections to Three Arrows’ discovery requests were largely justified
(and for those that were not, CBL did not withhold discovery based on them). While not all
of CBL’s objections were well-taken, CBL ultimately had meritorious reasons for objecting
to the discovery requests that formed the basis of Three Arrows’ motion to compel.
Accordingly, the court in its discretion denies Three Arrows’ motion for attorney’s fees. See,
e.g., Ayangbile v. Children’s Health Servs. of Tex., 2025 WL 1182089, at *7 (N.D. Tex. Apr.
22, 2025) (Godbey, C.J.) (“If the motion [to compel] is granted in part and denied in part, the
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court may apportion expenses for the motion at its discretion.”).
* 	* 	*
Accordingly, for the reasons explained, the court grants CBL’s motion for leave to file
supplemental evidence; grants in part and denies in part Three Arrows’ motion to compel;
and denies Three Arrows’ request for attorney’s fees. CBL must supplement its discovery
responses within 21 days of the date this memorandum opinion and order is filed.
SO ORDERED.
March 26, 2026.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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