*1 Before the Court are Defendants' Motion to Compel (“Motion I”) filed August 17, 2020 (Dkt. No. 35), and Amended Motion to Compel (“Motion II”) filed October 1, 2020. Dkt. No. 60. United States District Judge James Wesley Hendrix referred these motions to the undersigned United States magistrate judge for resolution. Dkt. Nos. 56 and 61, respectively. Vestas filed its Opposition to Motion I on September 4, 2020 (Dkt. No. 50) and its Opposition to Motion II on October 5, 2020. Dkt. No. 62. Defendants did not file a reply in connection with Motion I, so that motion is fully briefed. For the reasons below, both motions are DENIED, so a reply from Defendants in connection with Motion II is not necessary.

Defendants represent in Motion I that “[o]n or about March 24, 2020, these Defendants served upon Plaintiff's Counsel a Request for Entry Upon Plaintiff's Property and Inspection of Computer and Cell Pone [sic], pertaining to a lap top computer and cell phone used by Arturo Salazar during his employment with the Plaintiff.” Dkt. No. 35 at 1. Rather than describing with reasonable particularity the items or category of items within the laptop and cell phone, as required by Federal Rule of Civil Procedure 34(b), Defendants simply sought to inspect and copy the entirety of the laptop and the cell phone without limitation.[1] Dkt. No. 35-2 at 3.

Defendants' counsel, Steve Hershberger (“Hershberger”), attached a copy of the disputed request to Motion I, but he failed to provide the Court with a copy of Vestas's response and/or objections to the disputed request. Instead, in his motions, Hershberger paraphrased Vestas's response by explaining to the Court that “Plaintiff's position has been, boiled down, that the content in the lap top and cell phone would not be relevant and that the content is privileged.” Id. at 2.

Hershberger certified in Motion I that he “conferred with Plaintiff's counsel on the request to inspect the lap top and cell phone via email and the parties have not been able to resolve their difference [sic] and Defense Counsel urges that court intervention is necessary.” Dkt. No. 35 at 3. And he expands on that certificate in Motion II by providing copies of the referenced emails. Dkt. No. 60 at 3.

This is the disputed discovery request at issue in both Motion I and Motion II.

Vestas responds in its Opposition to Motion I that Hershberger's paraphrase of Vestas's position “is patently false,” and further contends that “[o]f course, there could be irrelevant and privileged material on the computer. But the point—indeed Vestas's ‘position’ is—Vestas has already produced all relevant documents from the laptop or otherwise that are responsive to the Salazar Defendant's discovery requests.” Dkt. No. 50 at 1, n. 1. Vestas likewise did not file a copy of its written response to the disputed request.

*2 Faced with the dilemma of resolving a discovery dispute in which the parties themselves could neither agree on what Vestas's response was nor provide a copy of that response to the Court, the Court entered a Notice of Deficiency and Order to Cure (“Notice and Order”) on September 25, 2020. Dkt. No. 58. That Notice and Order sought to compel two simple things. First, it directed Hershberger to file an amended certificate of conference to Motion I that fully complies with Rule 37 and Local Rule 7.1, as discussed further below. Dkt. No. 58 at 3–4. Second, it directed Defendants to supplement Motion I by providing the Court with a copy of Vestas's response to the disputed request.[2]

Instead of simply filing an amended certificate of conference or supplementing Motion I with Vestas's response to the disputed request, Defendants, through Hershberger, filed Motion II. Motion II essentially repeats Motion I verbatim, except that Hershberger amends his previous certificate of conference by certifying that:

Dkt. No. 60 at 3.

Although unclear, it appears that Defendants intended the two emails attached to Motion II to serve as the supplemental filing of Vestas's response ordered by the Court. Regardless, the Court is left to assume that the only response by Vestas to the disputed request is the email of Vestas's counsel, Joel Neckers (“Neckers”), dated August 5, 2020. This dispute, therefore, must be resolved on that basis.

As alluded to above, Defendants' request to inspect and copy the entirety of the laptop and the cell phone used by Salazar during his employment with Vestas arguably ran afoul of Rule 34(b)'s requirement that the requesting party “describe with reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 34(b)(1)(A). However, it does not appear that Vestas objected to the request on that basis or any other. And although Vestas argues in its oppositions to Motion I and Motion II that the disputed request is “invasive” and “disproportionate,” it does not appear that Vestas timely asserted objections on these bases. Upon receiving a request under Rule 34(a), the responding party “must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Any objection to the request “must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). Failure to specifically articulate a timely objection to a discovery request generally results in waiver of any objections that could have been asserted. Lopez v. Herring LTD, 327 F.R.D. 567, 582 (N.D. Tex. 2018) (citing In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989)). Therefore, the Court deems whatever objections Vestas could have made as having been waived.

*3 Defendants nonetheless assert that Vestas raised two additional objections to the request. Specifically, Hershberger represented to the Court on behalf of Defendants that “Plaintiff's position has been, boiled down, that the content in the lap top [sic] and cell phone would not be relevant and that the content is privileged.” However, this representation appears to be, as asserted by Vestas's counsel, “patently false.” Hershberger repeats this same mischaracterization of Vestas's position in Motion II, after Neckers pointed out its falsity and despite the falsity being apparent from the emails proffered by Hershberger. Furthermore, Hershberger repeated this mischaracterization in Motion II despite the Court's admonishment that it required clarity regarding Vestas's actual response to the disputed request and that it remained skeptical of the meaningfulness of Hershberger's conference with Neckers prior to filing his motions.

Again, the email of August 5, 2020, is the only evidence produced by Defendants regarding communications with Neckers about the underlying dispute. And contrary to Hershberger's assertions, at no point in that email did Neckers claim that the laptop or cell phone contents were either irrelevant or privileged. Moreover, Vestas appears to confirm the absence of any objection to the disputed request in its opposition to Motions I and Motion II. See Dkt. Nos. 50, 62.

Therefore, in the absence of a timely and proper objection, the only question is the sufficiency of Vestas's response. And it being established that Vestas's sole response to the disputed request is in the email exchange produced in connection with Motion II, the Court examines the relevant portions of those emails, specifically:

It now becomes clear that Vestas's response, contrary to Hershberger's representations to the Court, is that it produced everything in its possession that is responsive to Defendants' request, but if Defendants believe there is more, Vestas agrees to look wherever Defendants suggest more can be found. This response is not only eminently reasonable, but consistent with Rule 34. Specifically, Rule 34(b)(2)(B) provides that “[t]he responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection.” That appears to be precisely what Vestas had already done by the time of the above emails. Neckers's response incorporated, in effect, the standard announced by Rule 34(b)(1)(A), i.e., if Defendants can describe with reasonable particularity the item or category of items it believes are yet to be produced, Vestas will search for that, too. Otherwise, Vestas's response is that it produced copies of everything in its possession related to this lawsuit.

*4 Defendants do not even attempt to identify for either Vestas, through the required conference, or the Court, through a proper motion, what additional items or category of items were in Vestas's possession that it had not produced in response to Defendants' request. Nor do they explain why an unlimited inspection and copying of the laptop and cell phone, above and beyond what Vestas had already produced and agreed to continue searching for, is necessary. Vestas argues that “[t]he Salazar Defendants articulate no reason whatsoever—other than vague skepticism—why they should be permitted to forensically examine the laptop and cell phone.” Dkt. No. 50 at 3. The Court disputes this statement only insofar as it suggests Defendants asserted even so much as “vague skepticism” in their motions to the Court, which they did not. Defendants have completely failed to even argue, let alone support, that Vestas's production was deficient in any manner.

Instead, in support of Motion I and Motion II, Defendants cite generally to Rule 26(b)(1) of the Federal Rules of Civil Procedure (governing Discovery Scope and Limits) and argue that the disputed request is “consistent” with that Rule. Dkt. No. 35 at 2; Dkt. No. 35-1 at 3; Dkt. No 60 at 2. One would hope so, but the Court is unconvinced for the reasons stated above. Defendants also state that they “would point to a protective order entered into by the parties in this case.” Dkt. No. 35 at 3; Dkt. No. 35-1 at 3; Dkt. No. 60 at 3. But pointing to this order is all they do. They fail to explain its relevance to the instant dispute.

In search of support for Defendants' motion to compel, the Court turned to what purports to be Defendants' Brief in Support of Motion I, which was filed as an exhibit to that motion. Dkt. No. 35-1. This brief essentially repeats Motion I verbatim with the only substantive difference being the inclusion of a citation to Nerium Skincare, Inc., v. Olson, 2017 WL 277634 (N.D. Tex. Jan. 20, 2017). However, as with Defendant's citation to Rule 26(b)(1) and the protective order, there is no attempt to explain the relevance of the Olson case to this particular dispute. Otherwise, Defendants' Brief in Support of Motion I is virtually identical to the motion it supports and wholly fails to demonstrate why the Court should compel the requested unlimited inspection and copying of the laptop or cell phone. The Court can find no reason either.

For the above reasons, Defendants' Motion to Compel (Dkt. No. 35) and Amended Motion to Compel (Dkt. No. 60) are DENIED.

Finally, as mentioned above, Hershberger certified that he “conferred with Plaintiff's counsel on the request to inspect the lap top and cell phone via email and the parties have not been able to resolve their difference [sic] and Defense Counsel urges that court intervention is necessary.” Dkt. No. 35 at 3. And he expanded on that certificate in Motion II by providing copies of the referenced emails. Dkt. No. 60 at 3.

Also, as stated above, the Court entered the Notice of Deficiency and Order to Cure on September 25, 2020, in part because, after reviewing Motion I and its related filings, the Court was unconvinced that Hershberger either genuinely conferred with Neckers about the substance of Motion I or genuinely needed the Court's intervention to resolve the dispute. Dkt. No. 58. As the Court cautioned in its Notice and Order, the duty to confer in a good faith and genuine effort to resolve discovery disputes before seeking court intervention is required by “the ethical rules governing attorneys and the court rules governing all parties....” See Dkt. No. 58 at 1–3 (quoting Brown v. Bridges, No. 3:12-CV-4947-P, 2014 WL 2777373, at *2 (N.D. Tex. June 19, 2014) (citing Dondi Props. Corp. v. Commerce Savings & Loan Ass'n, 121 F.R.D. 284, 289–90 (N.D. Tex. 1988)).

A considered review of the filings in connection with this discovery dispute, and in particular the email exchange proffered by Hershberger, compels two conclusions. First, Hershberger never engaged Neckers in “meaningful discussions in an attempt to resolve matters without court intervention.” See id. at *2 (citing Dondi, 121 F.R.D. at 289–90). The above three-email exchange constitutes the universe of conferencing between the parties on the disputed request. Hershberger did not exchange a single authority with Neckers in support of his position, which is only slightly less than what he provided to the Court through his brief in support of Motion I. There is no indication that Hershberger responded to Neckers's reasonable solution to the dispute (“but if you have Mr. Salazar identify the specific folder where he thinks there might be additional backup documentation related to the invoices that we claim and that Mr. Krier admitted are fake, let me know and we'll see if there's anything there.”). Hershberger apparently never spoke to Neckers by telephone, or even attempted to do so. Nor did he mention to Neckers that he was considering the filing of a motion to compel. The above three emails represent the sum total of effort expended by Hershberger to resolve this dispute without court intervention, and Hershberger's two certificates of conference appear to support this conclusion.

*5 Indeed, it appears that, following a brief and cursory email exchange, fully informed by Neckers that Vestas had produced everything in the laptop and cell phone relating to this lawsuit, and uninformed by anything to suggest otherwise, Hershberger simply filed Motion I in which he “urges that court intervention is necessary.” The Court finds that it was not. And through the Notice and Order, the Court further cautioned Hershberger that he should inform himself through both a meaningful conference with opposing counsel and by taking note of the remedies available to the Court in Rule 37 before continuing down this path. Id. at 4. His response was to file Motion II and the attached emails that confirm the unnecessary nature of these motions. This was a missed opportunity.

The email exchange that occurred, superficial as it was, clearly put Hershberger and the Defendants on notice that Vestas had already produced everything it possessed in connection with the disputed request (“we've produced everything related to the claims and defenses in this case that we've been able to find”) and Hershberger has provided no evidence whatsoever to the contrary.

Second, from a review of the above email exchange, the Court arrives at this inescapable conclusion: Hershberger's urging and representation to this Court that “Plaintiff's position has been, boiled down, that the content in the lap top and cell phone would not be relevant and that the content is privileged,” appears to be, as asserted by Vestas's counsel, “patently false.” It bears repeating that the sole communication to Hershberger from Neckers regarding Vestas's position was the August 5th email, and at no time in that email did Neckers suggest that the laptop and cell phone contents were either irrelevant or privileged.

For the foregoing reasons, Hershberger is ordered to show good cause no later than October 30, 2020, why he should not be sanctioned in the form of being required to pay the reasonable expenses, including attorney's fees, incurred by Vestas as a result of Hershberger's filing of Motion I and Motion II. By that same date, Vestas is ordered to file with the Court an itemization of its reasonable expenses and attorney's fees incurred in responding the Motion I and Motion II.

For the reasons stated above, Defendants' Motion to Compel and Amended Motion to Compel are DENIED. Defendants' counsel, Steve Hershberger, is ORDERED TO SHOW CAUSE why he should not be sanctioned as set forth above for unreasonably and unnecessarily causing Vestas to incur fees and expenses in responding to these motions.

IT IS SO ORDERED this 9th day of October, 2020.