Sadeghpour v. Nakamoto et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARMAN SADEGHPOUR
VE
RSUS
TETSUO NAKAMOTO, ET AL.
*
*
*
CIVIL ACTION
NO.
24-2744
SECTION “C” (2)
ORDER AND REASONS
Pending before me is Plaintiff Arman Sadeghpour’s motion to compel discovery from
Defendants. ECF No. 33. Defendants Alexander Falster and William Simmons, Jr. filed an
Opposition Memorandum, and Defendant Tetsuo Nakamoto joined in that Opposition and filed
his own Supplemental Opposition. ECF Nos. 44-46, 48. Plaintiff filed a Reply Memorandum.
ECF No. 56. No party requested oral argument in accordance with Local Rule 78.1, and the Court
agrees that oral argument is unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, Plaintiff’s motion to compel is GRANTED IN PART AND DENIED IN PART
for the reasons stated herein.
I.BACKGROUND
Plaintiff Arman Sadeghpour filed this copyright infringement suit alleging that Defendants
Tetsuo Nakamoto, Alexander Falster, and William Simmons, Jr., his former mentors and business
partners, removed him from their business and later authored an article about Plaintiff’s research,
infringing upon his copyrighted doctoral thesis and using same to further their commercial
interests. ECF No. 1 ¶¶ 8-18, 71-84. After answering, Defendants filed a Rule 12(b)(6), or
alternatively Rule 12(c) motion, which is scheduled for submission on August 5, 2026. ECF Nos.
11, 12, 35, 35-3.
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Plaintiff issued discovery, and Defendants answered on March 3, 2026, and supplemented
the responses on March 16, 2026. ECF Nos. 33-2, 33-3, 33-4, 44 at 2-3, 44-5, 44-6, 44-7. Plaintiff
now files this motion to compel asserting that Defendants failed to answer or produce documents
due to frivolous objections, evasive responses, improper invocation of privilege, and lack of a
privilege log. ECF No. 33. Specifically, Defendants responded to Interrogatory Nos. 3 and 5 and
Requests for Production Nos. 2 through 15 with general, boilerplate objections (irrelevant, overly
broad, unduly burdensome, and work product) and Requests for Production Nos. 16 through 25 on
the bases that discovery is ongoing and incomplete but subject to same and all documents have
been previously produced. ECF No. 33-1 at 2-3, 6-10. Plaintiff disputes the assertion that the
minimal initial disclosure production encompasses all responsive documents. Id. at 3.
In Opposition, Defendants Falster and Simmons assert that Plaintiff did not conduct a
proper meet and confer, failed to identify specific deficiencies, and Defendants supplemented their
responses but cannot produce documents that do not exist. ECF No. 44 at 1. Defendants assert
that, in a phone call, Plaintiff raised concerns with Requests for Production Nos. 2 and 15 only,
not Interrogatory Nos. 3 through 5, and Plaintiff’s subsequent email is insufficient for a proper
Rule 37 conference. Id. at 3-8. Defendants assert that their objections were proper, and they
cannot produce documents that do not exist. Id. at 8-10. As to Interrogatory No. 5, Defendants
argue that the answer is responsive, but simply not to Plaintiff’s liking, and the answer to
Interrogatory No. 3 was responsive other than the portions to which they objected based on
overbreadth and relevance. Id. at 10-11.
Defendant Nakamoto incorporates the other Defendants’ response and further asserts that
he provided supplemental responses, and in any event, Interrogatory Nos. 3 and 5 seek information
about the process of writing the 2021 article, which he argues is irrelevant to whether it infringed
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on Plaintiff’s work. ECF No. 46 at 1-3. He argues that he has produced responsive documents
and cannot produce documents that do not exist. Id. at 3-4. Alternatively, he asks that ruling on
the motion to compel be deferred until after resolution of the pending motion to dismiss/judgment
of the pleadings. Id. at 4.
In Reply, Plaintiff argues that he conducted a proper meet and confer with Defendants
Simmons and Falster and attempted to meet and confer in good faith with Defendant Nakamoto,
that their assertions of no responsive documents are false, that the former’s interrogatory responses
are vague, and that the latter’s request for a deferral is without legal basis and should be denied.
ECF No. 56 at 1-5.
II. APPLICABLE LAW
A. Discovery is Not Automatically Stayed by a Pending Rule 12 Motion
Defendant Nakomoto asks to delay this motion until after resolution of the pending motion
to dismiss. This request is effectively a request to stay discovery. However, no federal or local
rule, statute, or binding case law automatically stays discovery pending a ruling on a motion to
dismiss.
1
Nor is a stay of discovery permitted merely because defendant believes it will prevail
on its motion to dismiss: “[H]ad the Federal Rules contemplated that a motion to dismiss under
F
ED. R. CIV. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect.”
2

As a matter of federal procedure, the request to stay discovery is considered a motion for
protective order under Rule 26(c)(1)(A)-(B). Good cause may exist when the party from whom
discovery is sought shows that it would suffer “annoyance, embarrassment, oppression or undue

1
See, e.g., Escareno ex rel. A.E. v. Lundbeck, LLC, No. 14-257, 2014 WL 1976867, at *2 (N.D. Tex. May 15, 2014)
(“[A] motion to dismiss does not automatically stay discovery . . . until the motion is resolved.” ( citing Glazer’s
Wholesale Drug Co. v. Klein Foods, Inc., No. 08-774, 2008 WL 2930482, at *1 (N.D. Tex. July 23, 2008)). In fact,
a stay of discovery pending resolution of a motion to dismiss is the “exception rather than the rule.” Id. ( quoting
Glazer’s Wholesale Drug Co., 2008 WL 2930482, at *1).

2
Valenzuela v. Crest-Mex Corp., No. 16-1129, 2017 WL 2778104, at *5 (N.D. Tex. June 26, 2017) (citation omitted).
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burden or expensive” absent a stay.
3
Courts are accorded the discretion to stay discovery where
the disposition of a motion to dismiss might preclude the need for discovery entirely.
4
In
determining whether a stay of discovery is appropriate, courts are to balance any harm produced
by a stay against the possibility that a motion to dismiss would be granted and eliminate the need
for any discovery.
5
As such, the movant must establish good cause to support issuance of a
protective order, which requires a “particular and specific demonstration of fact as distinguished
from stereotyped and conclusory statements.”
6

A stay of discovery while dispositive motions are pending is more the exception than the
rule.
7
Although the exception, courts have issued protective orders to stay discovery pending
disposition of a motion to dismiss and/or motion for summary judgment when the party seeking
such protection proves its necessity,
8
such as when the dispositive motion raises a purely legal

3
FED. R. CIV. P. 26(c)(1).
4
Your Preferred Printer, LLC v. United Wholesale, LLC, No. 11-2954, 2012 WL 2190853, at *2 (E.D. La. June 14,
2012) (citation omitted) (holding that a stay is appropriate towards a defendant asserting fiduciary shield doctrine in
a 12(b)(2) motion and the plaintiff has not demonstrated how it would suffer harm from a stay of discovery); see also
Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987) (recognizing that trial courts have “broad discretion and inherent
power to stay discovery until preliminary questions that may dispose of the case are determined”).
5
Your Preferred Printer, 2012 WL 2190853, at *2 (citing Dresser v. MEBA Med. & Benefits Plan, No. 08-2662, 2008
WL 2705584 (E.D. La. July 10, 2008)).
6
In re Terra Int’l , Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3
(5th Cir. 1978)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y. 1994) (“Good
cause must be established and not merely alleged.”). “The Court does have discretion to stay discovery ‘for good
cause shown.’” Escareno, 2014 WL 1976867, at *1 (quoting F
ED. R. CIV. P. 26(c)(1); and citing Landry v. Air Line
Pilots Ass'n Int’l AFL-CIO, 901 F.2d 404, 436 (5th Cir. 1990)). Given the Court’s “broad discretion to manage the
conduct of discovery, . . . [n]o categorical rule is appropriate; rather each case should be considered based on its
unique facts and context.” Sai v. Dep’t of Homeland Sec., 99 F. Supp. 3d 50, 58 (D.D.C. 2015) (quotation and citations
omitted).
7
Notariano v. Tangipahoa Par. Sch. Bd., No. 16-17832, 2018 WL 3844882, at *2 (E.D. La. Aug. 13, 2018) (citation
omitted); Griffin v. Am. Zurich Ins. Co., No. 14-2470, 2015 WL 11019132, at *2 (N.D. Tex. Mar. 18, 2015) (Ramirez,
M.J.) (citation omitted) (staying discovery while a motion to dismiss is pending “is the exception rather than the rule”).

8
See e.g., Dresser, 2008 WL 2705584, at *2 (citing Aguirre v. Nueces County, 217 F. App’x 348, 349 (5th Cir. 2007)
(stating a temporary stay of discovery did not amount to an abuse of discretion as a “plaintiff's entitlement to discovery
prior to a ruling on a motion to dismiss is not unlimited and may be terminated when the record shows that the
requested discovery is not likely to produce facts necessary to withstand judgment as a matter of law”).
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issue.
9
But a stay of discovery is not appropriate when it could prevent a party from having a
sufficient opportunity to develop a factual basis to defend against the dispositive motion.
10

Nakamoto has failed to particularly and specifically demonstrate good cause as necessary
to establish that a protective order staying discovery is appropriate in this case. Accordingly, the
request to delay resolution of this motion until after a decision on the pending motion to dismiss
is denied.
B. Scope of Discovery
Rule 26(b)(1) of the Federal Rules of Civil Procedure authorizes the parties to
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.

Information need not be admissible into evidence to be discoverable.
11
Rather, information merely
needs to be proportional and relevant to any claim or defense.
12
The party claiming it would
suffer an undue burden or expense is typically in the best position to explain why, while the party

9
Sapp v. Mem’l Hermann Healthcare Sys., 406 F. App’x 866, 870 (5th Cir. 2010) (citing Brazos Valley Coal. for Life,
Inc. v. City of Bryan, 421 F.3d 314, 327 (5th Cir. 2005)) (finding no abuse of discretion to stay discovery where
dispositive motion raised issue of law); see also Landry, 901 F.2d at 435-36 (affirming trial court’s stay of discovery
pending resolution of summary judgment motion where issues raised were purely legal and discovery would not aid
their resolution); Fed. Ins. Co. v. N.H. I ns. Co., No. 03-385, 2010 WL 1757932, at *3 (M.D. La. Apr. 30, 2010)
(staying discovery in coverage dispute where pending motion raised only legal issue).
10
Bickford v. Boerne Indep. Sch. Dist., No. 15-1146, 2016 WL 1430063, at *2 (W.D. Tex. Apr. 8, 2016).
11
FED. R. CIV. P. 26(b)(1).
12
Id.
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claiming the information is important to resolve the issues in the case should be able “to explain
the ways in which the underlying information bears on the issues as that party understands them.”
13

The relevancy evaluation necessarily begins with an examination of the pending claims
and defenses.
14
The threshold for relevance at the discovery stage is lower than the threshold for
relevance of admissibility of evidence at the trial stage.
15
This broader scope is necessary given
the nature of litigation, where determinations of relevance for discovery purposes are made well
in advance of trial; facts that are not considered in determining the ultimate issues may be
eliminated in due course of the proceeding.
16
At the discovery stage, relevance includes “any
matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case.”
17
Discovery should be allowed unless the party opposing discovery
establishes that the information sought “can have no possible bearing on the claim or defense of
the party seeking discovery.”
18

While the discovery rules are accorded broad and liberal treatment to achieve their purpose
of adequately informing litigants in civil trials,
19
discovery does have “ultimate and necessary
boundaries.”
20
The parties and the court have a collective responsibility to ensure that discovery
is proportional, and Rule 26(b)(2)(C) mandates that the Court limit the frequency or extent of
discovery otherwise allowed, if it determines:

13
FED. R. CIV. P. 26(b)(1) advisory committee’s notes to 2015 amendment.
14
Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., No. 02-3398, 2006 WL 378523, at *4 (E.D. La. Feb.
17, 2006) (Zainey, J.).
15
Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted).
16
Id. at 590 n.5 (citation modified).
17
Id. at 590 (citations modified).
18
Dotson v. Edmonson, No. 16-15371, 2017 WL 11535244, at *2 (E.D. La. Nov. 21, 2017) (Morgan, J.) (citing Merrill
v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)).
19
Herbert v. Lando, 441 U.S. 153, 177 (1979) (citations omitted).
20
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507
(1947)).
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(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

“The court’s responsibility, using all the information provided by the parties, is to consider these
and all the other factors in reaching a case-specific determination of the appropriate scope of
discovery.”
21

1. Duties in Responding to Interrogatories and Requests for Production
Both Rules 33 and 34 require a party to serve responses within 30 days of service, absent
court order or stipulation. F
ED. R. CIV. P. 33(b)(2); 34(b)(2)(A). A party served with written
discovery must fully answer each request to the full extent that it is not objectionable and
affirmatively explain what portion of an interrogatory or document request is objectionable and
why, affirmatively explain what portion of the interrogatory or document request is not
objectionable and the subject of the answer or response, and affirmatively explain whether any
responsive information or documents have been withheld.
22

“Discovery by interrogatory requires candor in responding. . . . The candor required is a
candid statement of the information sought or of the fact that objection is made to furnishing the
information.”
23
Although a party responding to interrogatories is not required to make an
extensive investigation in responding to an interrogatory, it must review all sources of responsive
information reasonably available and provide the responsive, relevant facts reasonably available.
24

The fact that an interrogatory calls for a thorough response—one that will take time and effort to

21
FED. R. CIV. P. 26(b)(1) advisory committee’s notes to 2015 amendment.
22
Lopez v. Don Herring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018) (citation omitted).
23
Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977).
24
Lopez, 327 F.R.D. at 579 (citing 8B WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 2174 (3d ed. 2013)).
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answer—does not make it improper.
25
Where an interrogatory answer “‘as a whole discloses a
conscientious endeavor to understand the question and to answer fully that question,’ a party’s
obligation under Rule 33 is satisfied.”
26

Likewise, a party responding to requests for production must produce responsive
documents within that party’s actual or constructive possession, custody or control, which
production must occur “no later than the time for inspection specified in the request or another
reasonable time specified in the response.” F
ED. R. CIV. P. 34(a)(1), (b)(2)(B). A party has
“control” over documents or materials that it has the legal right to obtain even though it has no
copy and even if the documents are owned or possessed by a nonparty.
27
Thus, documents owned
or possessed by agents, attorneys, hired consultants, and other third parties hired by a party that
the party can reasonably obtain the requested information from upon request fall within that party’s
custody or control.
28
The burden is on the party seeking discovery to show that the other party has
control over the material sought.
29
To establish control over documents in the possession of a non-
party, the movant must typically show that there is “a relationship, either because of some
affiliation, employment or statute, such that a party is able to command release of certain

25
Areizaga v. ADW Corp., 314 F.R.D. 428, 437 (N.D. Tex. 2016) (citing Burns v. Thiokol Chem. Corp., 483 F.2d 300,
307-08 (5th Cir. 1973)).
26
Id. (citation modified) (quoting Meltzer/Austin Rest. Corp. v. Benihana Nat’l Corp., No. 11-542, 2013 WL 2607589,
at *3 (W.D. Tex. June 10, 2013) (quoting 8B W
RIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 2177 (3d ed.
2010))).
27
Becnel v. Salas, No. 17-17965, 2018 WL 691649, at *3 (E.D. La. Feb. 2, 2018) (citations omitted); Est. of Monroe
v. Bottle Rock Power Corp., No. 03-2682, 2004 WL 737463, at *10 (E.D. La. Apr. 2, 2004) (citation omitted).
28
Becnel, 2018 WL 691649, at *3 (noting that control extends to materials over which the subject party has the legal
right to obtain even though she has no copy (citing cases)); Dillard Univ. v. Lexington Ins. Co., No. 06-4138, 2008
WL 11350306, at *1 (E.D. La. Mar. 27, 2008) (finding materials provided to consultants within that party’s possession,
custody, or control (citing cases)).
29
Washington-St. Tammany Elec. Coop., Inc. v. La. Generating, L.L.C., No. 17-405, 2019 WL 1804849, at *7 (M.D.
La. Apr. 24, 2019) (citation omitted).
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documents by the non-party person or entity in actual possession.”
30
The key is whether the
responding party could come into possession of the requested document upon reasonable inquiry.
31

Documents must be produced as maintained in the usual course of business or organized
and labelled to correspond to the categories in the request. FED. R. CIV. P. 34(b)(2)(E)(i). This
prohibits a party from producing a disorganized document dump, requiring the other party to
laboriously comb through the documents to find what it requested.
32
Thus, the producing party
must turn over the documents in an organized, comprehensible arrangement—either by
specifically indexing each document to the request to which it was responsive or by delivering the
documents in the business’s ordinary filing system or other organizational structure that is intact
and useable by the requesting party.
33
When a party responds to an interrogatory by producing
records in accordance with Rule 33(d), the referenced business records must be identified with
specificity and sufficient detail, not merely by reference to the records in toto.
34

The Court cannot, however, compel a party to produce documents that do not exist.
35

When an officer of the court represents that documents do not exist, courts may require a

30
S. Filter Media, LLC v. Halter, No. 13-116, 2014 WL 4278788, at *5 (M.D. La. Aug. 29, 2014) (citations omitted).
31
Ruby Slipper Cafe, LLC v. Belou, No. 18-1548, 2020 WL 4905796, at *4 (E.D. La. Jan. 15, 2020) (citing Becnel,
2018 WL 691649, at *3 (“Rule 34’s definition of possession, custody, or control, includes more than actual possession
or control of [documents]; it also contemplates a party's legal right or practical ability to obtain [documents] from a
[non-party] to the action”)).
32
Dodd v. Hendrickson USA, LLC, 349 F.R.D. 286, 299 (W.D. Ky. 2025).
33
United States v. Bollinger Shipyards, Inc., No. 12-920, 2015 WL 13529562, at *3 (E.D. La. Apr. 13, 2015) (Vance,
J.) (quoting Anderson Living Tr. v. WPX Energy Prod., LLC, 298 F.R.D. 514, 522 (D.N.M. 2014)).
34
KeyBank Nat’l Ass’n v. Perkins Rowe Assocs., LLC, No. 09-497, 2011 WL 765925, at *3 n.14 (M.D. La. Feb. 25,
2011) (“Rule 33(d)(1) requires that answers using the business records option must specify the records to be reviewed
in enough detail so that the interrogating party can locate and identify them as easily as the responding party. Thus,
it is improper to direct the interrogating party to a mass of business records or offer to make all of the party's business
records available.” (citations omitted)).
35
Butler v. La. Dep't of Pub. Safety & Corr., No. 12-420, 2014 WL 3867552, at *1 (M.D. La. Aug. 6, 2014); Payne
v. Forest River, Inc., No. 13-679, 2015 WL 1912851, at *4 (M.D. La. Apr. 22, 2015) (“The court cannot order the
production of documents that no longer exist or, despite a diligent search, cannot be found in the possession, custody,
or control of a party.”); Callais v. United Rentals N. Am., Inc., No. 17-312, 2018 WL 6517446, at *7 (M.D. La. Dec.
11, 2018) (same); Terral v. Ducote, No. 15-2366, 2016 WL 5017328, at *2 (W.D. La. Sept. 19, 2016) (same).
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certification or “confirm[ation]” that the discovery at issue does not exist.
36
A party’s mere
disbelief or disagreement with a response is not a recognized ground for compelling discovery.
37

The requesting party’s belief or suspicion that the response is incomplete or incorrect must be
supported by evidence that the responding party’s production is not complete.
38
If the other party
has or acquires evidence that the response is incomplete or affidavit is false, other remedies may
be sought.
39

2. Objections Must Be Stated With Specificity
A party served with written discovery must fully answer each request to the full extent that
it is not objectionable and affirmatively explain what portion of an interrogatory or document
request is objectionable and why, affirmatively explain what portion of the interrogatory or
document request is not objectionable and the subject of the answer or response, and affirmatively
explain whether any responsive information or documents have been withheld.
40
Likewise, for
each request for production, the respondent must either state that the inspection or production will

36
Nguyen v. La. State Bd. of Cosmetology, No. 14-80, 2016 WL 67253, at *2 (M.D. La. Jan. 5, 2016) (requiring
plaintiff to “confirm that the requested information does not exist”); see Callais, No. 2018 WL 6517446, at *7
(ordering qualified representative to provide a sworn certification that no responsive documents exist); Brookshire v.
Jackson Pub. Schs., No. 13-772, 2015 WL 11018443, at *1 (S.D. Miss. May 8, 2015) (“If the document does not exist,
then Defendants are to certify that the document does not exist.”); Beasley v. First Am. Real Est. Info. Servs., Inc., No.
04-1059, 2005 WL 1017818, at *4 (N.D. Tex. Apr. 27, 2005) (“[D]efendant is entitled to an unequivocal
representation . . . that the documents specified in this request for production do not exist.”).
37
Tingle v. Hebert, No. 15-626, 2018 WL 1726667, at *5 (M.D. La. Apr. 10, 2018) (noting that mere speculation that
documents must exist is insufficient); see also Gordon v. Greenville Indep. Sch. Dist., No. 13-178, 2014 WL 6603420,
at *2 (N.D. Tex. Nov. 20, 2014) (“Although Plaintiff is not satisfied with this response, he fails to point to anything
that suggests such reports actually exist. The Court cannot compel a [responding party] to produce documents that do
not exist.”); McElwee v. Wallantas, No. 03-172, 2005 WL 2346945, at *3 (S.D. Tex. Sept. 26, 2005) (“[T]he Court
cannot order the Defendants to produce documentation that does not exist. Therefore, unless the Plaintiff can provide
proof that the documents exist, rather than mere speculation, the Court will not entertain motions to compel the
Defendants to produce documentation whose existence is nothing more than theoretical.”).
38
VeroBlue Farms USA Inc. v. Wulf, 345 F.R.D. 406, 420 (N.D. Tex. 2021) (cleaned up).
39
Henderson v. Compdent of Tenn., Inc., No. 97-617, 1997 WL 756600, at *1 (E.D. La. Dec. 4, 1997) (denying motion
to compel based on representation that documents that do not exist and noting other remedies are available if
representation is untrue).
40
Lopez, 327 F.R.D. at 580 (citation omitted).
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be permitted or state with specificity the grounds for objecting to the request, including the reason.
FED. R. CIV. P. 34(b)(2)(B).
Courts throughout the country have long interpreted the federal rules to prohibit general,
boilerplate objections.
41
Boilerplate objections use standardized, ready-made or all-purpose
language without regard to the particular discovery request.
42
General objections refer to
objections that a party responding to discovery asserts as applicable to multiple individual requests
set forth in a given set of discovery requests.
43
A general objection untethered to specific requests
(and is thus also a boilerplate objection) is improper.
44

When objecting to a discovery request, the objection must state how the objection “relates
to the particular request being opposed, and not merely that it is overly broad and burdensome or
oppressive or vexatious or not reasonably calculated to lead to the discovery of admissible
evidence.”
45
Any objection must clearly state how the information sought is not relevant to any
claim or defense, or how the request is overbroad, burdensome or oppressive.
46

41
See Chevron Midstream Pipelines LLC v. Settoon Towing LLC, No. 13-2809, 2015 WL 269051, at *3 (E.D. La. Jan.
21, 2015) ( noting that an objection is boilerplate and insufficient “when it merely states the legal grounds for the
objection without: (1) specifying how the discovery request is deficient and (2) specifying how the objecting party
would be harmed if it were forced to respond.” (citation omitted)); see also McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485-86 (5th Cir. 1990) (simply objecting to requests as “overly broad, burdensome,
oppressive and irrelevant,” without showing “specifically how . . . each [request] is not relevant or how each question
is overly broad, burdensome or oppressive” is inadequate to “voice a successful objection”).
42
See Tim Long Plumbing, Inc. v. Kinsale Ins. Co., No. 20-42, 2020 WL 6559869, at *3 (E.D. Tex. Nov. 9, 2020)
(providing examples for boiler plate language, such as “Defendant objects to this Request, as it is overly broad and
vague” and “Defendant objects to this Request to the extent it seeks discovery of information that is irrelevant and not
proportional to the needs of the case”). Objections are deemed “boilerplate” when they are identical and not tailored
to the specific discovery request. Amazing Ins., Inc. v. DiManno, No. 19-1349, 2020 WL 5440050, at *5 (E.D. Cal.
Sept. 10, 2020) (citation omitted).
43
Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 134 n.16 (3d Cir. 2009).
44
See DL v. Dist. of Columbia, 251 F.R.D. 38, 43 (D.D.C. 2008) (citation omitted) (“When faced with general
objections, the applicability of which to specific document requests is not explained further, this Court will not raise
objections for the responding party, but instead will overrule the responding party's objections on those grounds.”
(citation modified)).
45
Cheshire v. Air Methods Corp, No. 15-933, 2015 WL 7736649, at *2 (W.D. La. Nov. 30, 2015) (citation modified)
(quoting Reyes v. Red Gold, Inc., No. 05-191, 2006 WL 2729412 (S.D. Tex. Sept. 25, 2006)).
46
Chevron, 2015 WL 269051 at *3.
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Further, it is improper for parties responding to discovery to provide responses with the
caveat that they are given “subject to and without waiving” objections. Federal courts have
repeatedly recognized that such language is improper and inconsistent with the Federal Rules.
47

Indeed, when a party objects to a request for production, the “objection must state whether any
responsive materials are being withheld on the basis of that objection. An objection to part of a
request must specify the part and permit inspection of the rest.” F
ED. R. CIV. P. 34(b)(2)(C).
48

Objections interposed without also indicating whether any document or information is being
withheld are improper.
49

Defendants’ objections to Interrogatory Nos. 3 and 5 and Requests for Production Nos. 2
through 15 are improper, boilerplate objections. See ECF No. 44-6 at 5-6, 9-12; No. 44-7 at 5-6,
9-12; No. 46-1 at 2-3, 5-9. As to the interrogatories, Defendants repeatedly object on the basis of
“overbreadth and irrelevance,” yet they fail to provide any specific application of those objections
to the particular interrogatory. ECF No. 44-6 at 5-6; No. 44-7 at 5-6; No. 46-1 at 2-3. And while
the parties disagree whether Plaintiff’s claim has any merit, that dispute does not shield a party
from responding to discovery that may be relevant to any party’s claim or defense. Defendants
also repeatedly preface their responses with the improper “subject to and without waiving”
statement. ECF No. 44-6 at 5-6; No. 44-7 at 5-6; No. 46-1 at 2-3. This obfuscates the response

47
Heller v. City of Dallas, 303 F.R.D. 466, 486-87 (N.D. Tex. 2014) (“The practice of asserting objections and then
answering ‘subject to’ and/or ‘without waiving’ the objections–like the practice of including a stand-alone list of
general or blanket objections that precede any responses to specific discovery requests–may have developed as a
reflexive habit . . . [, but the practice] ‘manifestly confus[es] (at best) and mislead[s] (at worse)[] and has no basis at
all in the Federal Rules of Civil Procedure.’” (citations omitted)).
48
Accord. Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex.), objections overruled sub nom.,
Orchestratehr, Inc. v. Trombetta, No. 13-2110, 2016 WL 5942223 (N.D. Tex. Oct. 13, 2016).
49
See Chevron, 2015 WL 269051, at *4 (holding that objections fall woefully short of objecting party’s burden when
party objected to documents and information protected by privilege but did not describe whether any documents were
withheld or the nature of withheld documents).
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and renders the response ambiguous as it is unclear whether Defendants are fully responding or
withholding certain information based on the asserted objections.
Further, Defendants’ identical, repeated substantive response does not fully respond to the
particular components of the interrogatories. For instance, Interrogatory No. 3 asks for
information regarding “the creation of the Accused Work, including when it was written (including
when it was commenced and when it was completed), where it was written, by whom it was
written, their relationship to Defendant, and anything that was referred to during the creation of
the Accused Work,” and Interrogatory No. 5 asks for the identification of “all work papers, logs,
notes, presentations, outlines, preliminary summaries, work plans, or the like relating to the
creation of the Accused Work.” ECF No. 44-6 at 5-6; No. 44-7 at 5-6; No. 46-1 at 2-3.
Defendants’ identical response to both questions (i.e., “[T]he alleged Accused Work was published
in 2021, and the content contained therein is based on Defendant’s experiments and work with his
co-Defendants”) does not specify when it written (i.e., started and finished), where it was written,
by whom it was written, nor does it describe anything referred to during the creation of the work
or workpapers, logs, notes, etc., which may or may not include materials that were not cited in the
work. ECF No. 44-6 at 5-6; No. 44-7 at 5-6; see ECF No. 46-1 at 2-3. Thus, the response to
Interrogatory Nos. 3 and 5 does not fully and completely respond to each interrogatory, as required.
Similarly, in response to the Requests for Production, Defendants respond “[s]ubject to and
without waiving the foregoing objection,” leaving Plaintiff in doubt as to whether or not
Defendants have provided full and complete responses and produced all responsive documents
other than those specified on a privilege log (as discussed in subsection B(3) infra). In addition to
suffering from the same issues as Request for Production Nos. 2 through 15, Request for
Production Nos. 16 through 25 also respond by providing “the following non-exclusive list of
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documents.” Plaintiff is entitled to a full and complete response that includes delivery of all non-
privileged, responsive documents within Defendants’ actual or constructive possession, custody
or control, not merely a non-exclusive list of some of the responsive documents. Defendants will
be required to provide supplemental responses to Interrogatory Nos. 3 and 5 and Requests for
Production Nos. 2 through 15. The response must specifically indicate whether any responsive
documents have been withheld.
Defendants Falster and Simmons claim documents responsive to Requests for Production
Nos. 2 through 15 do not exist, and Defendant Nakamoto professes the same for Requests for
Production Nos. 2-4, 7, 9, and 11-13 directed to him. ECF No. 44 at 9-10; No. 46-1 at 5-8. Many
of these requests seek communications concerning the alleged infringing work at issue. See ECF
No. 44-6 at 9-12 (RFP Nos. 3-4, 10-15); No. 44-7 at 9-12 (RFP Nos. 3-4, 10-15); No. 46-1 at 5-8
(RFP Nos. 3-4, 11-13). Defendants’ assertions as to the non-existence of documents are
discredited by the emails Plaintiff has provided. See ECF No. 56-1. Indeed, while Defendants
assert that the communications Plaintiff seeks do not exist, Plaintiff has located some responsive
communications, casting significant doubt as to the completeness and accuracy of the responses.
See id. Defendants must supplement their responses and production for the requests they claim no
responsive documents exist and provide responsive documents to the extent they actually do exist,
in accordance with Rule 26(e)(1)(B). Given the concerns regarding Defendants’ search efforts,
their supplemental responses must attach a certification describing all efforts undertaken to locate
any responsive documents as well as confirmation by both the client and counsel that, after such
efforts, no additional responsive documents exist. The Court warns Defendants that they may face
sanctions if they fail to produce responsive materials that should be located in a reasonable search
effort.
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Similarly, as to Requests for Production Nos. 16 through 25, the parties’ dispute as to who
owns the materials or ideas contained in the dissertation does not relieve Defendants of their
obligation to produce the documents they rely on in support of their referenced affirmative
defenses. Should Defendants later seek to rely on documents not previously produced, they may
well face a motion in limine to preclude their use of same at trial.
3. Invocation of Privilege Requires Delivery of a Privilege Log
A responding party withholding information based on privilege “must (i) expressly make
the claim; and (ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed—and do so in a manner that, without revealing information itself privileged
or protected, will enable the other parties to assess the claim.” F
ED. R. CIV. P. 26(b)(5)(A). The
“privilege log’s description of each document and its contents must provide sufficient information
to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.’”
50
It “should not
only identify the date, the author, and all recipients of each document listed therein, but should
also ‘describe the document’s subject matter, purpose for its production, and specific explanation
of why the document is privileged or immune from discovery.’”
51

When faced with either the absence of a privilege log or an inadequate privilege log, the
court may: (1) permit the party another chance to submit a more detailed log; (2) deem the
inadequate log a waiver of the privilege; (3) conduct an in camera inspection of the withheld

50
Equal Emp. Opportunity Comm’n v . BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (quoting United States v.
El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982); and citing N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th
Cir. 2011) (“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document . . .
set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is
claimed.’” (quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993)))) .
51
See Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. 2008) (emphasis omitted) (quoting Jones v.
Hamilton Cnty. Sheriff’s Dep’t, No. 02-808, 2003 WL 21383332, at *4 (S.D. Ind. 2003); and citing Compaq Comput.
Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 338 (N.D. Cal. 1995)).
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documents; or (4) conduct an in camera inspection of a select sample of the withheld documents.
52

Most courts take a flexible approach, particularly when there is an insufficient privilege log but no
evidence of bad faith, finding waiver only for flagrant or willful failures.
53

Defendants have invoked client privilege in response to Request for Production Nos. 2
through 15. The response does not indicate whether Defendants rely upon the attorney-client
privilege, work product doctrine, or some other recognized privilege. Further, the Defendants have
not provided a privilege log setting forth a description of each document and its contents with
sufficient information to permit courts and Plaintiff to test the merits of the invocation of privilege.
Given the absence of any showing of bad faith, the Court will permit Defendants a chance to
submit a detailed privilege log.
C. Rule 37 Motion and Request for Fees and Costs
If a party fails to respond timely to a discovery request, the party seeking discovery may
move to compel responses under Rule 37. FED. R. CIV. P. 37(a)(3)(B). A Rule 37 motion to
compel “ must 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.” Id. at 37(a)(1).
Rule 37’s “[c]onference requirements encourage resolving discovery disputes without
judicial involvement. Failure to confer or attempt to confer may result in unnecessary motions.
When the court must resolve a dispute that the parties themselves could have resolved, it must

52
RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., No. 10-684, 2014 WL 12660120, at *4 (M.D. La. Jan. 14, 2014)
(quoting N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307-08 (D.D.C. 2009)).
53
Id. (citing United States v. Brit. Am. Tobacco (Invs.) Ltd., 387 F.3d 884, 890-91 (D.C. Cir. 2004); Novelty, Inc. v.
Mountain View Mktg., Inc., 265 F.R.D. 370, 381-82 (S.D. Ind. 2009) (foot-dragging and failure to comply with court’s
order showed willfulness and bad faith); Muro v. Target Corp., 250 F.R.D. 350, 365 (N.D. Ill. 2007), aff'd, 580 F.3d
485 (7th Cir. 2009)).
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17
needlessly expend resources that it could better utilize elsewhere.”
54
The conference requirements
are no “empty formality.”
55
Indeed, this Court requires certain matters be addressed during the
Rule 37 conference, and that the certification reflect these discussions.
56

The failure to engage in a proper meet and confer before filing a motion to compel
constitutes sufficient reason in itself to deny a Rule 37 motion and/or any fees and costs associated
with same.
57

Given the apparent failure to engage in a fulsome meet and confer, the undersigned finds
that other circumstances make an award of expenses unjust.
III.CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff’s motion to compel is GRANTED IN PART AND DENIED
IN PART as stated herein. Defendants must deliver supplemental responses along with an
appropriate privileged log within 21 days.
IT IS FURTHER ORDERED that request for fees and costs be DENIED.
New Orleans, Louisiana, this 6th day of August, 2026.
___________________________________
DONNA PHI
LLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
54
Brown v. Bridges, No. 12-4947, 2015 WL 11121361, at *3 (N.D. Tex. Jan. 30, 2015) (internal quotations and
citations omitted).
55
Riverbend Env’t Servs., LLC v. Crum & Forster Specialty Ins. Co., No. 22-31, 2023 WL 2563228, *3 (S.D. Miss.
Mar. 17, 2023).
56
See Motions & Oral Argument, The Honorable Donna Phillips Currault, UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF LOUISIANA, http://www.laed.uscourts.gov/judges-information/judge/honorable-donna-phillips-currault.
57
Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014) (citations
omitted); see also McAllister v. McDermott, Inc., No. 18-361, 2019 WL 6065704, at *2 (M.D. La. Nov. 15, 2019)
(citing Forever Green Athletic Fields, Inc. v. Babcock Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014) (denying
motion to compel where defense counsel made a single attempt by email to meet and confer and did not do so in a
good faith effort to resolve the dispute without court intervention)).
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