On August 5, 2003, the Defendant served its First Request for Production of Documents and First Set of Interrogatories on the Plaintiff, Barry Fiala, Inc. Def.'s Mem. Of Law in Support of Mot. to Comp. Prod. The Plaintiff responded to Defendant's First Set of Interrogatories on or about October 24, 2003, and produced documents which were responsive to Defendant's First Request for Production of Documents in February, 2004. Id.

On June 30, 2004, counsel for the Defendant sent a 24 page letter to counsel for the Plaintiff which, among other things, addressed what the Defendant considered to be deficiencies in the responses and documents provided by the Plaintiff. Pl.'s Resp. in Opp'n to Def.'s Mot. to Compel; Decl. of Paul A. Morris. The next day, counsel for the Plaintiff responded to the June 30, 2004 letter and stated that the Plaintiff would investigate and respond to each of the discovery concerns raised in the Defendant's letter. Id. ¶ 16. On July 2, 2004, counsel for the parties spoke by telephone, and counsel for the Plaintiff again stated that the Plaintiff would carefully and timely review the concerns raised by the Defendant in its' June 30, 2004 letter.[1] Thereafter, counsel for the parties corresponded by mail and e-mail, but there were no further telephone or in person discussions between counsel. Id. ¶ 19-29. In fact, counsel for the Defendant accused counsel for the Plaintiff of misconduct and improprieties in a letter dated August 9, 2004, and stated that “[t]elephone conversations are no longer viable ...” Id.¶ 27. When the Plaintiff failed to cure all of the deficiencies alleged in Defendant's June 30, 2004 letter, the Defendant filed the instant Motion to Compel.

In its' Motion, the Defendant identifies four areas that it contends remain deficient and that require a Court Order compelling the Plaintiff to respond. Additionally, the Defendant seeks attorney's fees and costs associated with its' Motion to Compel. By Order dated November 15, 2004 the Court Ordered counsel for the parties to meet and confer concerning the alleged deficiencies that remained. Counsel for the parties met in-person on November 16, 2004, and each party filed a report on November 23, 2004 which detailed the remaining disputes relating to Defendant's Motion to Compel. Additionally, the Court conducted a Hearing on November 24, 2004. The Court will address each area of dispute separately.

*2 Even though the Plaintiff did provide the Defendant with an Infringement Chart for Claim 30 which purports to show where each element of each claim is found within the accused product and the basis for each assertion, the Defendant contends that the Infringement Claim Chart is so general and conclusiory so as to be meaningless. Specifically, the Defendant contends that the Claim Chart fails to identify any specific aspect of the Defendant's accused process that the Plaintiff alleges infringes the patent-in-suit.

By contrast, the Plaintiff states that it agreed to supplement its response to Interrogatory # 1 and to provide a Claim Chart in a format which the Defendant agreed to during the November 16, 2004 conference. The Plaintiff states that it supplemented its response to Interrogatory # 1 on November 19, 2004 and its supplementary response was in the format agreed to by the parties. The Plaintiff contends that it has no additional information which would be responsive to Interrogatory # 1.

This is the classic case where one party is demanding additional information, and the other party claims that it has provided everything it has. During the hearing on November 24, 2004, the Defendant reiterated its position that the Claim Chart provided by the Plaintiff was very general and essentially meaningless. This is because the Claim Chart has two major flaws according to the Defendant. First, the Defendant wants more specific representation as to which number, the personal identification number or account number, that the Plaintiff is referring to, and second, the Defendant wants a full explanation as to all elements of the claim of infringement as to Claim 29. In response, the Plaintiff reiterated its position that it doesn't have any more information it can provide, and stated that it is Claim 30 which incorporates Claim 29.

Obviously, the Court can't order a party to provide information that it does not have. However, the Court is not convinced that the Plaintiff cannot provide a more specific representation as to which identification number it is referring to in the Claims Chart. Therefore, Defendant's Motion is GRANTED IN PART, and the Plaintiff is ordered to supplement its response to Interrogatory # 1 and specify whether the identification numbers are personal identification numbers or account numbers. The remainder of Defendant's Motion to Compel as it relates to Interrogatory # 1 is DENIEDbased upon the Plaintiff's unequivocal statement that it has no more information that it can provide.

The Defendant contends that some of the documents produced by the Plaintiff were illegible and/or contained missing pages. The Defendant claims that there were roughly 90 pages that were illegible and that 23 documents contained missing pages.

The Plaintiff takes the position that the company who the Defendant hired to make copies of Plaintiff's business records, and not the Plaintiff, is responsible for any illegible copies and/or any missing pages. The Plaintiff points out that it made its original files available to the Defendant for inspection and copying, and contends that there is nothing more it can do under the circumstances. The Court agrees. The Court finds that by making its original files available to the Defendant for inspection and copying, the Plaintiff has satisfied its obligation under the Federal Rules of Civil Procedure, and Defendant's Motion to Compel as it relates to illegible copies and missing documents is DENIED.

*3 The Defendant further contends that the Plaintiff has not produced attachments to 130 e-mails,[2] In response, the Plaintiff states that it retained the services of a computer services vendor who was able to find some, but not all, of the attachments. The Plaintiff also contends that the remaining e-mail attachments are irrelevant to this case, and it should not be required to employ extraordinary measures to locate documents that are not relevant.

The Court finds that the Plaintiff has satisfied its obligation under the Federal Rules of Civil Procedure as it relates to locating e-mail attachments. Without more, the Court is unwilling to order the Plaintiff to undertake additional measures to locate e-mail attachments which may or may not be relevant. As such, Defendant's Motion to Compel Production of the e-mail attachments is DENIED without prejudice at this time. If the Defendant can demonstrate that some or all of the attachments are relevant or are likely to lead to the discovery of admissible evidence, it can file a new motion to compel as to those documents which the Court will consider.

As it relates to an award of expenses, Rule 37 of Federal Rules of Civil Procedure provides:

Additionally, the Local Rules of Court for the Western District of Tennessee require consultation before a party files a motion, such as a motion to compel, under FED. R. CIV. P. Rule 37. Local Rule 7.2(a)(1)(B) provides:

*4 In this matter, the Defendant did not initiate a conference before filing its Motion to Compel. The last contact which could be considered a conference under Local Rule 7.2 occurred on July 2, 2004, two days after counsel for the Defendant sent the 24 page letter which outlined the alleged deficiencies. The Defendant then filed its Motion to Compel on August 12, 2004 and claims that the correspondence between counsel for the parties satisfies the requirements of Local Rule 7.2. The Court disagrees.

The essence of Local Rule 7.2 is that counsel for the parties will meet and confer in a good faith effort to resolve disputes before seeking court intervention. Telephonic conferences are generally acceptable, but correspondence between counsel which is often times demanding and hostile is not. The wording and spirit of Local Rule 7.2 requires more. Otherwise, counsel could fire off an angry letter one day, and file a Motion to Compel the next day and claim that the requirements of Local Rule 7.2 had been satisfied.

The Court is particularly concerned that counsel for the Defendant apparently made the decision not to speak to counsel for the Plaintiff, even though counsel for the Plaintiff telephoned him on several occasions. And, while counsel for the Defendant accused counsel for the Plaintiff of misconduct and improprieties in the letter dated August 9, 2004, there is nothing before the Court to indicate that such was actually the case. The Court can understand counsel for the Defendant's frustration with some of the Plaintiff's lack of diligence, but that was not sufficient reason to terminate discussions between counsel.

The Court finds that the Defendant did not satisfy the requirements of Local Rule 7.2 before filing its Motion to Compel. Additionally, because the Court granted in part and denied in part Defendant's Motion to Compel, an award of fees and costs to the Defendant is not warranted, and is therefore DENIED.

IT IS SO ORDERED.