Plaintiffs Sadie Sabin and Simply Sadie Jane, LLC (collectively “Plaintiffs”) filed this action against Defendants Christopher P. Newman and Cinehopper, LLC (collectively “Defendants”) for breach of contract seeking a court order decreeing that Simply Fusion, L.L.C. is dissolved pursuant to Section § 48-3a-701 of the Utah Revised Limited Liability Company Act (hereinafter “Utah LLC Act”); approving the winding up of Simply Fusion LLC's business and affairs by Plaintiff Sabin pursuant to Section § 48-3a-703 of the Utah LLC Act; and ordering a full accounting of each member's capital account and Simply Fusion LLC's expenses (ECF 2 at 20). Plaintiffs also seek a judicial declaration that Plaintiff Sabin is the sole copyright owner of certain property (ECF 2 at 20).

Eight months after filing the Complaint, on June 3, 2020, Plaintiffs filed an initial motion to compel (“Initial Motion”) asserting that Defendants’ interrogatory responses were inadequate, that Defendants had failed to produce documents in a format Plaintiffs could access, and that Defendants’ initial responses were late and therefore all objections were waived under Federal Rule of Civil Procedure 33(b)(4) (ECF 18). Defendants filed an opposition indicating that the Initial Motion was filed prior to a meet and confer (ECF 20). The court denied the Initial Motion based on the parties’ failure to meet and confer as required under Local Rule 37-1(a)(4) (ECF 21). The court ordered the parties to meet and confer within ten days from the date of the order and invited Plaintiffs to file a renewed motion to compel if the parties were unable to reach a resolution regarding the responses to interrogatories (ECF 21).

Plaintiffs filed the present Motion on August 24, 2020, asserting that the parties met and conferred, and that Defendants agreed to provide supplemental interrogatory responses by August 10, 2020. Defendants failed to supplement responses within the timeframes discussed at the meet and confer (ECF 22). Defendants filed an opposition to the Motion (“Opposition”) rearguing their response to the Initial Motion and indicating that “it is working diligently to address several (if not all) of the concerns being raised by counsel for the Plaintiff[s]” (ECF 23 at 2). Defendants’ counsel also indicates that a very serious family matter prevented defense counsel from providing timely supplements to the interrogatories, that the responses were adequate, and that at no time did Defendants rely on Rule 33(d) (ECF 23).

A. Defendants’ Responses

*2 While Plaintiffs fail to identify which specific interrogatory responses were inadequate and for what reason, after the court denied the Initial Motion, the parties met, conferred, and came to an agreement for supplementation which Defendants have not honored. The Defendants essentially admit they are to supplement the responses in saying they are “diligently working to address several (if not all) of the concerns” raised by Plaintiffs, but defense counsel argues he is unable to do so because of his very pressing family issue. Though inconsistent to the admission that he is working to diligently supplement the responses and frankly, confusing, Defendants also refer the court back to their initial objection to the Initial Motion.

While the court is sympathetic to the family issue, that does not relieve the Defendants of the obligation to adhere to discovery deadlines. If more time is needed, the proper course is to request additional time from opposing counsel and then the court if necessary. Fed. R. Civ. P. 6(b). While Defendants submitted three sets of supplemental responses (see ECF 22-1, 22-2 and 22-3), after meeting and conferring, Defendants were to provide further supplements to the interrogatory responses by August 10, 2020 and they failed to do so. Defendants neither contest the August 10 agreement to supplement nor that the supplementation was not provided. Moreover, in reviewing the Second Amended Responses to Plaintiff's [sic] First Set of Interrogatories (ECF 22-3), nearly all are evasive in that only general objections were noted, and it is unclear if any information was withheld subject to the general objections. Though Plaintiffs’ Motion itself fails to articulate if this is part of the concern, the court notes general objections are insufficient.

In Smash Technology v. Smash Solutions, the court held that “boilerplate objections” violate the rule that objections be “state[d] with specificity ... including the reasons.” 335 F.R.D. 438, 441 (D. Utah June 30, 2020). Rule 34 obligates one to state whether any responsive materials are being withheld on the basis of that objection and thus, the objector must state whether responsive materials were withheld and link each specific objection to what was withheld. Smash, 335 F.R.D. at 447 (internal quotes and citation omitted). Otherwise, the objection fails to comply with Rules 33 and 34 and is therefore waived. Id. While Plaintiffs did not specify which responses were inadequate or why each response was evasive or elusive, it appears many of the responses run afoul of the standard articulated in the Smash case. In any event, though Plaintiffs also fail to detail the particulars of the agreement in terms of what exactly is to be supplemented, it appears there is an understanding as Defendants recognize they are working to supplement the responses. In providing the supplemental responses, at the very least Defendants’ responses must not run afoul of the holding in the Smash case.

As to Plaintiffs’ argument regarding Federal Rule of Civil Procedure (“FRCP”) 33(d) and Defendants’ violation of that rule, Rule 33 allows a party to respond to interrogatories by producing business records if: (1) “the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records”; and (2) “the burden of deriving or ascertaining the answer will be substantially the same” for both parties. Fed. R. Civ. P. 33(d). In their Opposition, Defendants contend that they provided responses that were truthful and the totality of the communications between the parties, but that they did not rely on Rule 33(d) in responding to the Plaintiff's interrogatories (ECF 23). The court is at a loss as to what that means. This response misunderstands the obligation Defendants have in responding to interrogatory responses and in issuing supplements. The court orders Defendants to review Rule 33 and decide what, if any, supplements must be made to ensure compliance to Rule 33(d). Since neither party submitted the documents referenced in the responses or even described the length, size, or number of documents submitted, the court is unable to determine whether the records and documents answer the relevant interrogatories or whether the burden of deriving the answer would be the same for each party. The court therefore orders Defendants to review their responses and supplement as discussed above.

B. Waiver of Objections

*3 Plaintiffs also argue that Defendants’ responses were late and therefore all objections were waived (ECF 22). Federal Rule of Civil Procedure 33 provides that the responding party must serve its answers and any objections within 30 days after being served with the interrogatories. Fed. R. Civ. P. 33(b)(2). Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(b)(4).

Here, Plaintiffs only provide a single conclusory statement that the initial responses were late and therefore all objections are waived (ECF 22 at 4). Plaintiffs did not provide the court with the date the First Set of Interrogatories were served on Defendants and Plaintiffs failed to indicate the date any of Defendants’ responses were submitted relative to the date of service. Furthermore, it appears the parties were in communication and conferring regarding the responses (ECF 22 at Ex. D). The court does not have the information necessary to determine whether Defendants failed to serve their general objections within the 30-day timeframe. Furthermore, the court finds good cause exists to excuse the failure as the parties were in communication and Defendants appear to have been working in good faith to provide supplemental responses to Plaintiffs.

C. Attorney's Fees

Under Rule 37(a)(5)(A), if a court grants a party's motion to compel, or if the opposing party provides the requested discovery after the requesting party files the motion, the court “must ... require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney’ fees.” Fed. R. Civ. P. 37(a)(5)(A). However, the court “must not order this payment if” the opposing party's “response, or objection was substantially justified,” or if “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii).

Here, Plaintiffs did not reference, move, or request an award of attorney's fees under Rule 37(a)(5), and while it appears to the court that Defendants’ responses were not all substantially justified given the agreement by Defendants to supplement, they do not appear to be made in bad faith. Imposing the award would be unjust. Therefore, although the court will grant Plaintiffs’ Motion in part as set forth above, the court will not require Defendants or Defense counsel to pay the costs incurred in Plaintiffs bringing the Motion.

IT IS HEREBY ORDERED that Plaintiffs’ Renewed Motion is hereby GRANTED in part. Defendants shall have 15 days from the date of this Order to supplement their discovery responses consistent with the communications counsel had with Plaintiffs. If Plaintiffs are forced to refile a motion after receipt and review of the discovery, the court reminds Plaintiffs again, to meet and confer prior to filing any motion, to be specific in their motion to compel and to identify each request at default, the specific reason for that default and to submit any corresponding documents that may aid the court.

DATED this 27 October 2020.