Pursuant to Federal Rule of Civil Procedure 37 and Local Rule 37.1, Plaintiff moves to compel non-party North Georgia National Bank (“NGNB”) to produce a prepared Rule 30(b)(6) witness for additional testimony. Under Rule 30(b)(6), an organization subject to a subpoena must designate persons “who consent to testify on its behalf.” The designated person then “must testify about information known or reasonably available to the organization.” Fed. R. Civ. Proc. 30(b)(6). Plaintiff contends that the person designated by NGNB, Mr. Matt Robbins, was ill-prepared to testify about topics listed in DS Waters's amended subpoena. It its defense, NGNB states that it identified the person with the most knowledge about the subject matter at issue. NGNB argues that the majority of the information Plaintiff seeks relates to communications to or from Mr. Robbins; Mr. Robbins was the only source with first-hand knowledge of those communications, and he no longer remembers the specifics. The Court agrees that NGNB could not have prepared Mr. Robbins to remember the details of two-year old communications which originated solely from or were received by Mr. Robbins.

With regard to Plaintiff's contention that NGNB failed to prepare Mr. Robbins to answer questions related to the type of information reasonably available to NGNB in the form of documents or other information sources, i.e. “information relating to the Bill of Sale and to NGNB's interest in the property,” it appears to the Court that NGNB is willing to consider Plaintiff's request for information upon receipt of a list of specific items with regards to which Plaintiff seeks more information [Doc. No. 182, 5]. Plaintiff indicates that it provided such a list to NGNB's counsel in a telephone conference. NGNB represents that Plaintiff has refused to provide a list of specific items [Doc. No. 182, 5]. The Court concludes that to the extent Plaintiff can specifically identify information that is reasonably available to NGNB, NGNB must either prepare Mr. Robbins to provide testimony regarding the information or produce a substitute corporate representative. To that end, Plaintiff is DIRECTED to provide NGNB's counsel with a specific list of information it seeks. Once it determines that the information sought is reasonably available, NGNB shall either prepare Mr. Robbins to testify to the matter or shall produce a substitute. Plaintiff is DIRECTED to conduct the supplemental deposition as early as practicable.

Plaintiff seeks an order from this Court compelling Defendants to produce certain documents they have allegedly failed to produce up to this point. Plaintiff indicates that the following documents have not been produced: (1) documents referenced by Defendants' drivers during their depositions; (2) documents containing statements made by non-party witnesses and drafts of declarations; (3) a revised privilege log; (4) all documents relied upon by Defendants' expert; and (5) GBC data in native format.

*2 Rule 37 of the Federal Rules of Civil Procedure contemplates foremost that, where possible, parties should settle discovery disputes amongst themselves. A party may seek an order compelling discovery only after it has, at the least, made a good faith attempt to confer with the party from whom the information is sought. Fed. R. Civ. Proc. 37(a)(1). Here, while Plaintiff's motion to compel is accompanied by a certificate of good faith [Doc. No. 173-2] as required by Rule 37, the certification is conclusory, in large part, and is insufficient especially in view of Defendants' contention that a number of the issues raised by Plaintiff's motion would have been resolved had there been an opportunity to engage in good faith efforts to address the individual issues. See Brannon v. Allie Interstate, Inc., No. CV610-052, 2010 WL 5463254, at *1 (S.D. Ga. Dec. 29, 2010). As is, Defendants argue that a number of documents Plaintiff seeks have already been produced and no further information remains to be produced. These are the types of issues that can be readily addressed and resolved by the parties conferring in good faith with the clear intent to settle discovery disputes and with the goal of seeking court action as the last resort. It is not apparent here that the parties have carried their burden of ensuring that those discovery disputes that are capable of being resolved without intervention from this Court are, in fact, resolved without this Court's action. Accordingly, Plaintiff's motion to compel discovery from Defendants [Doc. No. 173] is DENIED without prejudice.

Defendants also seek a court order compelling discovery from Plaintiff. Specifically, Defendants seek the production of a complete privilege log and request that Plaintiff be made to make a number of its employees available for deposition and redeposition. In contrast to Plaintiff's motion, which includes a Rule 37 certificate of good faith, Defendants have failed to include a good faith certification.[1] Much as Defendants have accused Plaintiff in response to Plaintiff's motion to compel, Plaintiff now notes that Defendants have failed to meaningfully confer in good faith to resolve the dispute over Plaintiff's privilege log. The Court is disturbed by these cross-allegations. Once again, the Court emphasizes that parties have an obligation to confer over discovery disputes and, to ensure a streamlined discovery process on behalf of their clients and aid in conserving judicial resources for matters which cannot rightly be resolved without court action, court action must be sought as a last resort.

Additionally, Defendants have failed to certify that they conferred with Plaintiff regarding the deposition or redeposition of Plaintiff's employees and have not even provided evidence of an attempt to confer in good faith. However, as Defendants motion to compel Plaintiff to produce its employees for deposition was filed to preserve their rights, and it has not yet been determined whether depositions or re-depositions will be necessary, the Court is inclined to deny Defendants motion with leave to re-file, once it is determined by Defendants that additional depositions or re-depositions are absolutely necessary and once the parties have conferred in good faith but have reached an impasse over the issue. Overall, Defendants' motion to compel [Doc. No. 174] is DENIED without prejudice.

Defendants move to strike the errata sheet of F. Michael Williams [Doc. No. 164]. They argue that almost all of the 48 changes made in the errata sheet materially change Mr. Williams's sworn testimony.

Rule 30(e) of the Federal Rules of Civil Procedure allows a deponent, within the prescribed time span, to review the transcript of his or her deposition and list any changes as to the “form or substance” and provide reasons for making the changes. Here, Mr. Williams submitted in a timely errata sheet listing the changes and providing the reasons for the changes. It is clear that Mr. Williams has made some substantive changes to his deposition testimony; some of the changes contradict his earlier testimony, while the rest supplement his answers. The changes made are not foreclosed by Rule 30(e), which contemplates that a deponent may revise the form or substance of his testimony. While the Eleventh Circuit has concluded that the “submission of a novella-length errata sheet making a slew of material changes” was improper, Norelus v. Denny's Inc., 628 F.3d 1270, 1281 (11th Cir. 2010), the court's decision in Norelus is distinguishable. The issue before the Norelus court was whether the lower court abused its discretion in finding that the court proceeding was multiplied unreasonably and vexatiously by, among other things, the submission of the errata sheet. There, the plaintiffs submitted a “massive errata document,” itself prepared through improper means, which lay to waste the days spent on the plaintiffs' depositions to waste. The egregious conduct highlighted in Norelus is not present here. Additionally, the only question at hand is whether a deponent may make material, some contradictory, changes to his deposition transcript. The Eleventh Circuit has not had occasion to squarely address this issue.

*3 Overall, the Court is persuaded that changes in the “form or substance” of testimony are allowable. See Purdee v. Pilot Travel Centers, LLC, No. CV407-028, 2007 WL 3143716, *2 (S.D. Ga. Oct. 23, 2007). Additionally, Mr. Williams has provided reasonable explanations for making the changes. To the extent Defendants claim that they are unfairly prejudiced by the changes to Mr. Williams's deposition, the Court shall allow the original version of Mr. Williams's testimony to be read at trial with an opportunity for Defendants' counsel to explore the changes made before the jury. As such, Defendants' motion to strike errata sheet [Doc. No. 164] is DENIED and their motion to expedite ruling on motion to strike [Doc. No. 170] is also DENIED.

For the above mentioned reasons, Defendants' motion to strike errata sheet [Doc. No. 164] and motion to expedite ruling on motion to strike errata sheet [Doc. No. 170] are DENIED. Plaintiff's motion to compel non-party North Georgia National Bank [Doc. No. 172] is GRANTED. Plaintiff is DIRECTED to provide North Georgia National Bank's counsel with a specific list of information it seeks. If the information identified is reasonably available, North Georgia National Bank shall prepare a witness for deposition. Plaintiff is DIRECTED to conduct the supplemental deposition as early as practicable. Additionally, Plaintiff's motion to compel Defendants [Doc. No. 173] and Defendant's motion to compel Plaintiff [Doc. No. 174] are DENIED without prejudice.

SO ORDERED, this 13th day of December, 2011.

Defendants' motion does include a letter from their counsel to Plaintiff's counsel highlighting the dispute over Plaintiff's privilege log. However, the attached letter does not itself constitute the requisite good faith certification.