JUAN JOSE LECHUGA LECHUGA, NICOLAS MARTINEZ SANDATE, and PEDRO SILVA GUAJARDO Plaintiffs, v. DANIEL MAGALLANES, SR., DANIEL MAGALLANES, JR., TERESA MAGALLANES, DDM HAULERS, LLC, KLDT TRUCKING, LLC, and DTM TRUCKING, INC., Defendants NO. MO:16-CV-00269-RAJ-DC United States District Court, W.D. Texas, Midland-Odessa Division Filed July 07, 2017 Counts, David, United States Magistrate Judge ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL *1 Before the Court is Plaintiffs Juan Jose Lechuga Lechuga, Nicolas Martinez Sandate, and Pedro Silva Guajardo's (“Plaintiffs”) Motion to Compel Defendant DTM Trucking Inc.'s (“DTM”) Responses to Requests for Production. (Doc. 36). This case is before the United States Magistrate Judge by Order of Referral from the United States District Judge pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. 12). For the following reasons, Plaintiffs' Motion to Compel DTM Trucking, Inc.'s Responses to Requests for Production is GRANTED. (Doc. 36). I. BACKGROUND Plaintiffs are suing Defendants Daniel Magallanes, Sr., Daniel Magallanes, Jr., Teresa Magallanes, DDM Haulers, L.L.C., and KLDT Trucking, L.L.C., and DTM “for unpaid minimum wages and overtime, RICO visa fraud, retaliation under the Fair Labor Standards Act, contract damages and an assault claim.” (Doc. 30). Prior to the addition of DTM as a named defendant in this case, Plaintiffs served a third-party subpoena on DTM on February 16, 2017. (Doc. 36-1). DTM responded to the subpoena on March 30, 2017, after it was joined as a defendant to the action. (Doc. 36-2). On April 18, 2017, Plaintiffs' Counsel contacted DTM's Counsel and requested that DTM supplement its discovery responses. (Doc. 36-3). Plaintiffs' Counsel again asked DTM to supplement its responses on June 20, 2017 and June 22, 2017. (Docs. 36 at 2, 36-4). DTM's Counsel never responded to Plaintiffs' requests to supplement. (Doc. 36 at 2). Discovery ended on June 27, 2017. (Doc. 19). On June 27, 2017, Plaintiffs filed their Motion to Compel DTM's Responses to Requests for Production. (Doc. 36). “Plaintiffs now seek to compel discovery because, in some instances, the responses fail to provide the requested information; in other instances, they only provide partial information; and, in others, objections were asserted which are not supported by law or the facts of this case.” (Id. at 2). As of now, DTM has not responded to Plaintiffs' Motion. This matter is ripe for disposition. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense....” Fed. R. Civ. P. 26(b)(1). Furthermore, the discovery request must be proportional to the case's needs, “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.” Id. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The party seeking discovery bears the initial burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Once the party seeking discovery establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted. Id. *2 Under Federal Rule of Civil Procedure 37(a), “a party may move for an order compelling disclosure or discovery.” A 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.” Fed. R. Civ. P. 37(a)(1). A party may move to compel a discovery response if a party fails to answer an interrogatory submitted under Rule 33 or fails to produce documents as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). Federal Rule of Civil Procedure 33(b)(2), (3) and Federal Rule of Civil Procedure 34 (b)(2)(A) require that a party to whom the request is directed must respond in writing “within 30 days after being served.” III. DISCUSSION A. Deposition By Written Questions Plaintiffs assert that because DTM responded to Plaintiff's Deposition Upon Written Questions like a request for production, it failed to comply with the requirements of Federal Rule of Civil Procedure 31. (Doc. 36 at 3). Federal Rule of Civil Procedure 31(b) states that the officer “before whom the deposition will be taken” must “promptly proceed... to: (1) take the deponent's testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice.” The Court finds that treating Plaintiffs' Deposition Upon Written Questions like a request for production does not satisfy Rule 31's requirements. Accordingly, Plaintiffs' Motion to Compel Responses to Plaintiffs' Deposition Upon Written Questions is GRANTED. DTM is ORDERED to fully answer Plaintiffs' Deposition Upon Written Questions according to the requirements enumerated in Federal Rule of Civil Procedure 31. B. Request for Production Litigants have a “continuing responsibility under Federal Rule of Civil Procedure 26(e) to supplement or correct their responses ‘in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or as ordered by the court.’ ” Jacquez v. Compass Bank, No. EP-15-CV-26-RFC, 2015 WL 11529918, at *1-2 (W.D. Tex. Dec. 17, 2015) (unpublished) (quoting Fed. R. Civ. P. 26(e)). First, Plaintiffs assert that Request for Production Nos. 5 and 14 “seek documents by or between agents of DTM regarding hiring or recruitment of workers which were submitted to the [Department of Labor - Employment and Training Administration]. Defendant DTM did not object to these Requests but has refused to produce documents responsive to these requests.” (Doc. 36 at 4). The Court finds that DTM's responses to Request for Production Nos. 5 and 14 are incomplete. In order to comply with Rule 26(e), DTM must supplement or correct its responses to Request for Production Nos. 5 and 14. Accordingly, Plaintiffs' Motion to Compel Responses to Request for Production Nos. 5 and 14 is GRANTED. DTM is ORDERED to fully answer Request for Production Nos. 5 and 14. Second, Plaintiffs assert that Request for Production Nos. 17 and 18: asked for all financial documents for DTM. [Defendant] Daniel Magallanes admits that he is the sole owner and manager of DTM....that he uses Conway Witt for tax accounting. Nevertheless, Mr. Magallanes never reached out to his accountant to obtain records responsive to this request and did not know of any other documents. Therefore, Plaintiffs request that the Court compel DTM's production to this requests because DTM's sole manager admits that responsive documents are in its possession, custody, or control and has still refused to fully respond to this request. *3 (Id.) (internal citations omitted). The Court finds that DTM's responses to Request for Production Nos. 17 and 18 are incomplete. In order to comply with Rule 26(e), DTM must supplement or correct its responses to Request for Production Nos. 17 and 18. Accordingly, Plaintiffs' Motion to Compel Responses to Request for Production Nos. 17 and 18 is GRANTED. DTM Trucking is ORDERED to fully answer Request for Production Nos. 17 and 18. Third, Plaintiffs assert that Request for Production No. 19 “asked for vehicle registration, title, and any sale information for all [DTM's] vehicles.” (Id. at 5). Defendant Daniel Magallanes, sole owner and manager of DTM, admitted in his deposition that DTM owns about 6 trucks with 8 trailers currently and 10 to 12 trucks from 2014 to 2016. (Id. at 4-5). However, DTM has only produced the title for three vehicles. (Doc. 36-5). The Court finds that DTM's response to Request for Production No. 19 is incomplete. In order to comply with Rule 26(e), DTM must supplement or correct its response to Request for Production No. 19. Accordingly, Plaintiffs' Motion to Compel Responses to Request for Production No. 19 is GRANTED. DTM is ORDERED to fully answer Request for Production No. 19. Finally, Plaintiffs assert that Request for Production No. 8 “seeks personnel records for all employees or independent contractors that worked for [DTM] in 2015 and 2016. DTM only produced ‘time sheets’ – the template for which he created in Word on his computer and which he claims he handwrote.” (Id. at 5). Plaintiffs contend that this response is deficient because: First, Plaintiffs requested that DTM produce documents in their native electronic file formats, however, DTM provided only photocopies or printouts of documents that were clearly created on a computer....Many of these documents are clearly copies of either Excel spreadsheets or Microsoft Word documents but have been provided in nonsearchable PDF format – erasing all of the relevant metadata which Plaintiff has a right to obtain....Second, these documents, along with a host of others, must be maintained by employers by law for 1-3 years. This includes all records of the daily stopping and starting times of workers that have been created, pay stubs for all checks provided to the persons identified, records of deductions from wages paid, and all records related to individual employees –including documents regarding hiring and discipline. (Id. at 6) (internal citations omitted). Under Federal Rule of Civil Procedure 34(b)(1)(C), a request for production “may specify the form or forms in which electronically stored information is to be produced.” Additionally, the response to a request for production of electronically stored information “may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form--or if no form was specified in the request--the party must state the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(1)(D). “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(1)(E)(i). *4 In the instant case, DTM did not object to the requested form of producing electronically stored information. Accordingly, DTM must respond to this request for production in the form requested by Plaintiffs. Moreover, the Court finds that DTM's response to Request for Production No. 8 is incomplete. In order to comply with Rule 26(e), DTM must supplement or correct its responses to Request for Production No. 8. In order to comply with Rule 26(e), Accordingly, Plaintiffs' Motion to Compel Responses to Request for Production No. 8 is GRANTED. DTM is ORDERED to fully answer Request for Production No. 8. Finally, under the Court's Local Rules, a party has seven days from the date a non-dispositive motion is filed within which to respond. Local Court Rule CV–7(e)(2). If a party fails to respond to a motion within the allocated response time, the motion may be granted as unopposed. Id. Movant filed its Motion on June 27, 2017. (Doc. 36). The Certificate of Service attached to the Motion indicates it was served upon DTM the same day. (Id. at 8). Accordingly, the Local Rules gave DTM until July 5, 2017, to respond. SeeLocal Rule CV–7(c), (e). To date, no response has been filed. Therefore, the Court grants Plaintiffs' Motion to Compel. C. Attorney Fees and Costs Plaintiffs request that the Court award expenses, including attorney fees, incurred in the filing of the motion to compel. (Doc. 36 at 2). Under Rule 37, a party whose conduct necessitated the motion to enforce discovery generally is required to pay the movant's reasonable expenses and attorney fees. Fed. R. Civ. P. 37(a)(5)(A). However, payment should not be ordered if the opposing party's nondisclosure or objection was “substantially justified.” Id. If a motion to compel is denied, the Court must require the movant to pay the non-movant its reasonable expenses, including attorney fees. Fed. R. Civ. P. 37(a)(5)(B). Federal Rule of Civil Procedure 37(a)(5)(A) requires that a non-movant have an opportunity to be heard as to the award of fees and expenses, and provides three exceptions under which courts must not order payment of the movant's fees. See Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). The three exceptions are: (1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (2) the opposing party's nondisclosure, response, or objection was substantially justified; or (3) other circumstances make an award of expenses unjust. See id. Accordingly, DTM is ORDERED to respond and show cause as to why attorney fees and costs should not be assessed against it for the filing of Plaintiffs' Motion to Compel. Furthermore, Plaintiffs are advised to submit their request for fees and expenses and a proposed order to the Court should DTM fail to show cause as to why attorney fees and costs should not be assessed against it for Plaintiffs' filing of their Motion to Compel. IV. CONCLUSION For the reasons stated herein, Plaintiffs' Motion to Compel is GRANTED.(Doc. 36). The Court's rulings are summarized as follows: • DTM Trucking, Inc. is ORDERED to fully respond to Plaintiffs' Request for Production Nos. 5, 8, 14, 17, 18, and 19 within seven (7) days of this Order. • DTM Trucking, Inc. is further ORDERED to fully respond to Plaintiffs' Deposition Upon Written Questions within seven (7) days of this Order. • DTM Trucking, Inc. is ORDERED to respond and show cause as to why attorney fees and costs should not be assessed against it for the filing of Plaintiffs' Motion to Compel within seven (7) days of this Order. It is so ORDERED. *5 SIGNED this 7th day of July, 2017.