The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for discovery. Currently pending and ready for resolution are 1) Plaintiffs' Concurrent Motion to Compel Full and Proper Responses to Saied Tadayon's Discovery Requests of June 28, 2011; Motion for Sanctions; and Motion to Determine Claim of Privilege [#48], and 2) Greyhound Lines, Inc.'s Combined Motion for a Protective Order and Motion to Compel Plaintiffs to Answer Interrogatories [#50]. For the reasons stated below, both motions will be denied.
Plaintiffs are Saied and Bijan Tadayon, owners of a wireless technology patent. Complaint for Patent Infringement and Demand for Trial by Jury [#1] at ¶¶ 1, 7. Defendant is Greyhound Lines, Inc., a company that operates motorcoaches. Id. at ¶¶ 2, 8. According to plaintiffs, defendant infringed on their patent by utilizing the plaintiffs' technology on its buses. Id. at ¶¶ 6-25.
I. Plaintiffs' Motion to Compel
A. Any Alleged Deficiencies in Defendant's Paper and Electronic Productions are Now Moot
Defendant initially produced the documents responsive to plaintiffs' requests for production in paper form but later made an electronic production. At a recent hearing, however, plaintiffs, who proceed pro se, indicated that they had created their own database from defendant's production, rendering coercive relief against defendant as to its previous productions moot.
B. Any Alleged Deficiencies in Defendant's Interrogatory Responses may be Cured by Deposition
Plaintiffs also complain of deficiencies in defendant's responses to their interrogatories and move to compel supplemental answers. [#48-2] at 6-30. As I pointed out at the hearing, however, both parties are now ready to begin the next phase of discovery, where the taking of depositions (whether of individuals or organizations pursuant to Rule 30(b)(6)) allows either party to cure any alleged deficiencies in her opponents' interrogatory responses. As I understand plaintiffs to have accepted the validity of that proposition, I will, in the interests of judicial efficiency and to move the parties further along the road to the next phase of discovery, deny their motion to compel in this regard without prejudice to its renewal after depositions are taken.
C. Defendant did not Waive any Claimed Privileges
The parties in this case entered into an agreement that permitted either party to retrieve documents that it initially produced but then later claimed were privileged, a so-called "clawback provision."*fn1 See Fed. R. Civ. P. 26 (b)(5)(B) (expressly authorizing clawbacks). On December 14, 2011, defendant invoked that provision of their agreement and "clawed back" some documents it claimed were privileged, after having produced them to plaintiffs. Greyhound Lines, Inc.'s Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Compel Full and Proper Responses to Saied Tadayon's Discovery Requests of June 28, 2011; Motion for Sanctions; and Motion to Determine Claim of Privilege [#53] at 36. Plaintiffs, however, argue in their motion to compel that defendant's hurried negligence should be deemed a waiver of the privilege. [#48-2] at 34-38. But, they do not point to any portion of the agreement that conditions a party's right to clawback privileged documents upon its satisfying a court that its original production was free of defects and not negligent. To the contrary, as defendant correctly points out, the contractual right to clawback documents described in the agreement was not conditioned in any way, let alone upon a showing that the initial production was not the product of negligence. [#53] at 37. Since the right to clawback was not so conditioned, the agreement stands as written and defendant may recall the privileged documents, irrespective of whether or not its initial production was negligent.
D. The Court will not Award Plaintiffs Sanctions
Finally, plaintiffs allege that, on numerous occasions, defendant failed to respond to discovery requests in a timely fashion and generally engaged in "delay tactics." [#48-2] at 6. Specifically, plaintiffs argue that on August 25, 2011, defendant told plaintiffs that it would respond to their discovery requests within the next three weeks and then deliberately did not do so. Id. at 6-12. In support of their argument, plaintiffs reference various communications between the parties regarding the progress of discovery and anticipated production dates. Id. Plaintiffs complain that these communications show that defendant had no intention of responding to their discovery requests and that defendant's only goal was to delay the proceedings so that it could file a renewed motion to stay, which it did on September 19, 2011. Id. at 12. Plaintiffs also site the conclusions reached by Judge Jackson in her October 4, 2011 order as further proof of defendant's bad faith. Id. at 12-13. Plaintiffs ultimately contend that defendant should be sanctioned for its behavior, through an award of attorney's fees, pursuant to both Rule 37(b)(2) of the Federal Rules of Civil Procedure and the ...