Defendants Michael B. Ashcraft and Michael Ashcraft, DDS, MA, PA have not responded to either motion, and their time to do so has passed. See Dkt. Nos. 45 & 50.

In a combined reply, Plaintiff “requests that the Court enter an order (1) compelling [Defendants] to provide their [Federal Rule of Civil Procedure] 26(a) disclosures; (2) to respond to the discovery requests completely and fully in accordance with the Federal Rules of Civil Procedure; (3) to enter an Order awarding monetary sanctions against [Defendants] including awarding LPS its attorneys' fees filing Motions #1 and #2; (4) allowing LPS to conduct discovery after the discovery cut-off as needed and based on the responses provided by Defendants; (5) awarding LPS its attorneys' fees and costs to be determined based further application with supporting evidence; and (6) Ordering that [Defendant Michael B. Ashcraft] appear at a show cause hearing to explain why punitive sanctions should not be assessed.” Dkt. No. 53 at 10.

The Court has laid out the standards that govern a Federal Rule of Civil Procedure 37(a) motion to compel as to Federal Rule of Civil Procedure 26(a)(1) initial disclosures, Federal Rule of Civil Procedure 34 requests for production, and Federal Rule of Civil Procedure 33 interrogatories, and the Court incorporates and will apply – but will not repeat – those standards here. See Lopez v. Don Herring Ltd., 327 F.R.D. 567, 573-86, 588-90 (N.D. Tex. 2018).

As to Plaintiff's Rule 33 and Rule 34 discovery requests, Defendants have waived any objection to these Rule 33 interrogatories and Rule 34 requests for production by failing to timely state objections. See Lopez, 327 F.R.D. at 582. And the Court has reviewed these discovery requests and finds that the requests are all relevant to the parties' claims or defenses and are proportional to the needs of the case.

The Court GRANTS the Motion to Compel [Dkt. No. 44] and, as Plaintiff requests, extends the discovery deadline to June 14, 2021, and ORDERS that, by Wednesday, April 14, 2021,

Federal Rule of Civil Procedure 37(a)(5)(A) requires the Court to order payment of the movant's reasonable expenses in making a motion to compel, including payment of attorneys' fees, when a motion to compel is granted. See FED. R. CIV. P. 37(a)(5)(A).

But Rule 37(a)(5)(A) also requires the Court must give Defendants an opportunity to be heard as to an award of fees and expenses and provides three exceptions under which the Court must not order payment of the movant's fees and expenses. See FED. R. CIV. P. 37(a)(5)(A)(i)-(iii). The Court finds that Plaintiff filed both motions only after attempting to obtain the responses to the discovery without court action.

But the Court will grant Defendants Michael B. Ashcraft and Michael Ashcraft, DDS, MA, PA an opportunity to, by April 21, 2021, file a response explaining why the Court should not impose Rule 37(a)(5)(A) sanctions and to fully explain whether either of the other two exceptions applied – specifically, whether Defendants' failures to respond to the discovery requests and serve their required disclosures was “substantially justified” or whether other circumstances make an award of expenses under Rule 37(a)(5)(A) unjust. If Defendants file a response, Plaintiff may, by May 5, 2021, file a reply in support of an award under Rule 37(a)(5)(A) of its reasonable attorneys' fees in preparing and filing Plaintiff's Motion to Compel [Dkt. No. 44], Motion to Compel Depositions of Defendants and Motion for Sanctions [Dkt. No. 48], and combine reply in support of these motions [Dkt. No. 53].

As to Defendants' failure to appear for their noticed depositions, Federal Rule of Civil Procedure 37(d)(1)(A) provides that “[t]he court where the action is pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent – or a person designated under Rule 30(b)(6) or 31(a)(4) – fails, after being served with proper notice, to appear for that person's deposition.” FED. R. CIV. P. 37(d)(1)(A)(i). “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under [Federal Rule of Civil Procedure] 26(c).” FED. R. CIV. P. 37(d)(2). Under Rule 37(d), “[s]anctions may include any of the orders listed in [Federal Rule of Civil Procedure] 37(b)(2)(A)(i)-(vi),” and, “[i]nstead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(d)(3).

*3 Plaintiff has established that Defendants Michael B. Ashcraft and Michael Ashcraft, DDS, MA, PA failed to appear for their properly noticed depositions. The Court GRANTS the Motion to Compel Depositions of Defendants and Motion for Sanctions [Dkt. No. 48] and ORDERS that

Plaintiff may file an application for its reasonable expenses as described above. But Northern District of Texas Local Civil Rule 7.1 requires that parties confer before filing an application for attorneys' fees. Plaintiff's counsel and Defendants' counsel are therefore directed to confer by telephone or videoconference about the reasonable amount of these attorneys' fees and costs to be awarded under Federal Rule of Civil Procedure 37(d). Any attorney refusing to confer as directed will be subject to sanctions. By no later than April 21, 2021, the parties must file a joint report notifying the Court of the results of the conference. If all disputed issues as to the amount of reasonable expenses to be awarded to Plaintiff have been resolved, Plaintiff must also, by April 21, 2021, send an agreed proposed order to the Court at Horan_Orders@txnd.uscourts.gov.

If the parties do not reach an agreement as to the amount of attorneys' fees and costs to be awarded to Plaintiff, Plaintiff must, by no later than May 5, 2021, file an application for attorneys' fees and costs that is accompanied by supporting evidence establishing the amount of the attorneys' fees and costs (as described above) to be awarded under Rule 37(d). The fee application must be supported by documentation evidencing the “lodestar” calculation, including affidavits and billing records, and citations to relevant authorities and shall set forth the number of hours expended in connection with the recoverable attorneys' fees described above as well as the reasonable rate(s) requested. See Tollett v. City of Kemah, 285 F.3d 357, 367 (5th Cir. 2002) (using the “lodestar” method to award attorney's fees under Rule 37).

If an application is filed, Defendants may file a response by May 26, 2021, and Plaintiff may file a reply by June 9, 2021.

Finally, the Court will not at this time issue an order to show cause based on Plaintiff's allegations of civil contempt but will hold, over the Zoom platform, a status conference on April 22, 2021 at 3:00 p.m. Defendant Michael B. Ashcraft and his counsel, along with Plaintiff's counsel, are required to personally participate in this status conference. Failure to do so could result in sanctions, including for civil contempt.

*4 SO ORDERED.