WILLIAM MATTHEWMAN, Magistrate Judge.
This discovery dispute concerns Defendant's dilatory discovery behavior in this case. As any party is authorized to do under the applicable rules, Plaintiff served his written discovery upon Defendant on June 19, 2019. [DE 29, p. 1]. Now, approximately nine weeks later, Defendant has yet to produce full and complete discovery responses to Plaintiff's discovery requests.
The Court has carefully reviewed Plaintiff's Motion [DE 29] and each of the related filings. Defendant has been dilatory in responding to discovery in this case. On July 26, 2019, the Court granted Defendant an extension until August 8, 2019, to fully respond to Plaintiff's Requests for Production and Interrogatories. [DE 27]. That date came and went, and Defendant failed to produce the discovery as ordered.
On August 19, 2019, Plaintiff was therefore forced to file a Motion to Compel Responses to Plaintiff's Interrogatories and Request for Production [DE 29]. Upon review of Plaintiff's Motion, the Court entered an Order to Show Cause directed to Defendant and Defendant's counsel [DE 29].
On August 22, 2019, Defendant filed a response to the Order to Show Cause which failed to establish good cause for its dilatory conduct. [DE 33]. In effect, Defendant's rationale for not timely producing the discovery sought by Plaintiff sounded more like a series of excuses akin to "the dog ate my homework." Moreover, in paragraph 11 of the response, Defendant stated that it "has since served Plaintiff with its responses to Plaintiff's interrogatories and requests for production." [DE 33, p. 3]. Upon reading Defendant's response, and especially paragraph 11 of Defendant's response, the Court was led to believe by Defendant and Defendant's counsel that all outstanding discovery had been served on Plaintiff's counsel.
However, on August 23, 2019, Plaintiff filed a reply [DE 34], in which Plaintiff advised the Court that Defendant had still not produced any documents or electronically stored information. [DE 34, p. 1]. Moreover, when Plaintiff's counsel attempted to confer with Defendant's counsel on the issues, Defendant's counsel ignored him. Id. at pp. 1-2.
On August 23, 2019, after receiving leave of the Court, Defendant filed a sur-reply [DE 37]. Defendant explained that Melissa M. Sims, Esq., is the lead attorney and is "responsible for the events that have transpired." Id. at p. 1. According to Defendant, upon receipt of Plaintiff's reply, Ms. Sims called Plaintiff's counsel to apologize for the unreturned calls and to discuss the production of documents. Id. The parties have agreed to a document production date of August 30, 2019, because the employee with access to the records is on vacation through August 27, 2019. Id. at pp. 1-2.
Thus, even after numerous motions, responses, replies, and Orders, Defendant has yet to produce the discovery sought by Plaintiff.
The Court has had enough of Defendant's dilatory conduct. The Court is also extremely concerned about the misleading representation made by Defendant's counsel, Melissa M. Sims, Esq., and the law firm of Berk, Merchant & Sims, PLC, that all discovery had been produced when it had not been produced. See DE 33, p. 3; DE 34, p. 1. In fact, in Defendant's sur-reply, it admitted that it had not yet produced all relevant documents. [DE 37, pp. 1-2]. The Court is further frustrated by Defendant's counsel's failure to confer as required by our Local Rules and this Court's Order Setting Discovery Procedure [DE 25]. Not until Plaintiff filed his reply did Defendant's counsel return Plaintiff's counsel's phone calls about discovery. [DE 37, p. 1].
Based on the foregoing, Plaintiff's Motion [DE 29] is
Finally, Rule 37(a)(5)(A) provides that, if a motion to compel discovery is granted, the Court must require the party whose conduct necessitated the motion or the attorney advising that conduct, or both, to pay the movant's reasonable fees in making the motion unless (1) the movant filed the motion before attempting in good faith to obtain the discovery with court action, (2) the opposing party's response or objection was substantially justified, or (3) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). The Court finds that, under the facts of this case and because none of the exceptions apply, both Defendant and Defendant's counsel shall be required to pay Plaintiff's attorney's fees and costs incurred in drafting the Motion [DE 29], in drafting Plaintiff's Reply to Order to Show Cause [DE 34], and in reviewing Defendant's responses and the Court's Orders related to this dispute.
Based on the forgoing, it is hereby