*1 Dear Counsel:

This letter order memorializes the conference calls I held on January 9, 27, and 29, 2020 regarding the two motions to compel that Plaintiff Modern Remodeling, Inc. filed on November 5, 2019, ECF Nos. 66 and 67.[1] I directed the parties to meet and work together to resolve the disputes before each call, ECF Nos. 89, 92, 95, and they filed status reports of their progress, ECF Nos. 90, 91, 93, 96. For the reasons that follow, ECF No. 66 is granted in part and denied in part as moot, and ECF No. 67 is denied as moot.

Plaintiff filed a Motion to Compel Discovery Responses of Defendants Rachel Franks, Robert Gately Keenan, Earl Edwards, Randy Moran, and Matthew Olesky pursuant to Fed. R. Civ. P. 34 and 37. ECF No. 67. Defendants did not respond to the motion until January 27, 2020, when they asserted that they had provided the requested discovery, rendering the issues moot. ECF No. 94. Plaintiff's counsel confirmed in the January 29, 2020 status report that the parties have resolved this dispute. Accordingly, ECF No. 67 is denied as moot.

Plaintiff also filed a Motion to Compel Discovery Responses of Defendants Tripod Holdings, LLC, High Mark Construction, LLC, and Strong Wall Construction, LLC (collectively, “Tripod Entities”), Robert Michael Kimball, David Drab, and Patrick Boyle pursuant to Fed. R. Civ. P. 34 and 37. ECF No. 66.[2] In the most recent status report and on the January 29 call, the parties reported that they had resolved most of the issues raised in this motion. The sole remaining issue was the extent to which the Defendants must produce text messages responsive to Plaintiff's document requests. Plaintiff requested responsive text messages from May 1, 2019 until the present. Defendants objected to that date range and stated that they will produce relevant text messages from November 1, 2018 to February 5, 2019 for Kimball and Drab and from November 1, 2018 to April 23, 2019 for Boyle by Monday, February 3, 2020. After much back and forth on the calls about the appropriate time frame for responsive text messages, it became clear that the parties agree that relevant text messages likely exist but have not been searched for or produced by the Defendants. This, apparently, is because there was a misunderstanding between counsel about the agreed-upon date range for the production of text messages. Defendants’ current primary objection to producing the relevant text messages is burden and an inability to produce them by the February 6, 2020 discovery deadline. To address these valid objections, I narrowed the date range to July 1, 2018 until May 10, 2019, the date litigation commenced, and allowed Defendants until February 28, 2020 to produce responsive text messages. The parties agree that relevant text messages likely, if not certainly, exist between that time period. On our calls, Plaintiff proffered grounds for expanding the date range, but a more expansive date range would be unduly burdensome on the Defendants. Therefore, Defendants shall produce by February 28, 2020 additional, responsive text messages dating from July 1, 2018 to May 10, 2019. Accordingly, ECF No. 66 is granted in part and denied in part as moot.

*2 The discovery deadline is extended for this limited purpose. Additionally, the parties stated that they have scheduled depositions approximately one week beyond the February 6, 2020 discovery deadline. Discovery otherwise closes on February 6, 2020. See Scheduling Order, ECF No. 71.

Plaintiff's counsel also informed the Court in the January 24, 2020 status report, ECF No. 94, that the parties have exchanged motions to compel documents and information from Defendant MGB Investments, LLC (“MGB”) and a forensic examination of Defendants’ electronic devices. The parties agreed on the January 27, 2020 status call that they had resolved the issue regarding MGB's financial information. Plaintiff's counsel stated on the January 29, 2020 status call that he does not plan to file a motion to compel a forensic examination at this time.

The parties notified the Court on the January 27, 2020 conference call that Plaintiff had served a third-party subpoena on Wheelhouse Contracting, an entity controlled by Defendant Boyle, and the parties disputed the proper scope of the subpoena. They reported on the January 29, 2020 call that Plaintiff had narrowed the scope and they had resolved this issue.

Finally, Plaintiff requested attorneys’ fees and costs associated with filing its two motions to compel. Pursuant to Rule 37(a)(5)(A), when a motion to compel

Fed. R. Civ. P. 37(a)(5)(A). I have granted one of Plaintiff's motions in part and, insofar as the motions were denied, I denied them as moot because Defendants complied with the discovery requests after Plaintiff filed its motions. Defendants have had the opportunity to be heard in their surreply and on the three conference calls. Therefore, I must require Defendants and/or their attorneys to pay Plaintiff's reasonable expenses, unless “(i) [Plaintiff] filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) [Defendants’] nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust,” in which case the Court cannot award expenses. Id.

Plaintiff filed a certificate of its good faith effort to resolve the discovery dispute without court intervention. See ECF No. 66-4; Fed. R. Civ. P. 37(a)(5)(A)(i); Loc. R. 104.7 (“Counsel shall confer with one another concerning a discovery dispute and make sincere attempts to resolve the differences between them. The Court will not consider any discovery motion unless the moving party has filed a certificate reciting (a) the date, time, and place of the discovery conference, and the names of all persons participating therein, or (b) counsel's attempts to hold such a conference without success; and (c) an itemization of the issues requiring resolution by the Court.”); Loc. R. 104.8 (“Counsel are encouraged to confer with one another before or immediately after a motion to compel is served. If they are unable to resolve their disputes, counsel must hold the conference required by [Local Rule] 104.7 after serving upon one another all of the documents relating to the motion to compel.”). Plaintiff asserts that it contacted Defendants by email on October 24, 2019; by phone and email on October 29, 2019; and by email on November 1, 2019. Certif. 1. But Plaintiff then filed the motion instead of complying with Local Rule 104.8, which requires that, before filing a motion to compel, the parties must fully brief the motion and serve their briefs on each other; if the briefing process does not resolve the issue, they then must meet in accordance with Local Rule 104.7. See Loc. R. 104.8. “If the parties again fail to reach an agreement, only then can the parties involve the Court in the dispute.” McNulty v. Casero, No. SAG-16-2426, 2019 WL 5454900, at *3 (D. Md. Oct. 24, 2019) (citing Loc. R. 104.8(c)(i); Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 655 (D. Md. 1997)).

*3 Here, the parties discussed Defendants’ failure to respond to Plaintiff's discovery requests, but they only did so before they briefed the motion and then when I ordered them to meet and confer after they filed their briefs. In addition, Plaintiff filed its motions with the Court instead of first serving them on the Defendants and attempting to resolve the dispute through the briefing and a meeting of their own accord. Further, counsel's conversations were by phone and email; the Certificate does not state that the parties held or even attempted to hold the discovery conference required by Local Rule 104.7.

In Kemp v. Harris, defense counsel sent one email regarding the discovery responses the defendant sought and then moved for sanctions the next business day, after declining the plaintiff's counsel's suggestion that the parties confer by phone. 263 F.R.D. 293, 295, 297 (D. Md. 2009). The Court concluded that the defendant had not moved in good faith. Id. In Madison v. Harford County, Maryland, the plaintiffs’ counsel “ ‘attempted to contact’ Defense counsel” to discuss the discovery responses, which the Court did not find sufficient to demonstrate good faith. 268 F.R.D. 563, 564 (D. Md. 2010). Here, likewise, Plaintiff “attempted” to communicate with Defendants three times by email and once by phone, but did not sufficiently meet and confer about the dispute. Certif. 1. And, instead of meeting after the briefing was complete, Plaintiff filed its motion to compel before receiving Defendants’ response, and only one day after receiving documents from Defendants. Accordingly, Plaintiff did not make a good faith attempt to resolve the dispute without Court intervention. Moreover, Defendants identified at least one misunderstanding between counsel about the date range for the production of relevant documents, and this good-faith misunderstanding appears to be one reason for the filing of a motion. Plaintiff's request for attorneys’ fees and costs is denied. See Fed. R. Civ. P. 37(a)(5)(A)(i).

Although informal, this is an Order of the Court and shall be docketed as such.