*1 This matter is before the Court on Counter Plaintiff James Champa's Motion to Compel Production of Documents Needed for Forensic Audit of Jireh, Inc., and Motion for Sanctions, Jointly and Severally, Against All Three Defendants-in-Counterclaim [Doc. 63]. For the following reasons, the motion is DENIED.

I. Background

This case stems from a protracted intra-family dispute over ownership interests in a company called Jireh, Inc. (“Jireh”), and the distribution of profits from that company over a period of multiple years. The litigation began when Counter Defendants Jireh, Mickey Moores, and Steven Champa filed a Complaint against Counter Plaintiff James Champa, seeking to enforce a buyout agreement that was allegedly negotiated by the Parties in 2017 for Counter Plaintiff's shares of Jireh. (Compl., Doc. 1 at 8–11.) Counter Plaintiff subsequently filed a Counterclaim in which he sought a declaratory judgment that he is entitled to the negotiated price for the buyout agreement, as well as his share of Jireh's profits for the years 2011–2013, 2015–2016, 2017, and 2018. (Countercl., Doc. 14 at 9–10.) He also raised claims for breach of contract and breach of fiduciary duty and requested an audit of Jireh under Nevada law.[1] (Id. at 10–14.) Shortly thereafter, the Parties appeared for a telephonic hearing, and the Court directed the Parties to conduct an audit of Jireh within 21 days of the date that the forensic accountant performing the audit would be available to proceed. (Doc. 16.)

Since that time, the Parties have engaged in a series of discovery disputes with respect to the audit that they still have not resolved. In a December 13, 2018 Order, the Court directed the Parties to “expeditiously resolve their disputes concerning the depth and breadth of the agreed-upon audit” and “engage in a good faith telephonic meet-and-confer to take place not later than December 21, 2018.” (Doc. 22 at 3.) The Court added that if “after a good faith meet-and-confer, the parties nevertheless find themselves at an impasse” the Court would move forward with appointing a mediator.” (Id.) The case was eventually referred to a Magistrate Judge for mediation. See (Doc. 48.)

Before the mediation took place, Counter Plaintiff moved to compel the production of documents in advance of the mediation, (Doc. 52), and to appoint a Receiver to conduct the liquidation of Jireh, (Doc. 53). The mediation was not successful and the Court ultimately denied both of Counter Plaintiff's motions, but the Court allowed the Parties to proceed with a supplemental discovery period commencing on November 13, 2020 and ending on December 31, 2020. (Doc. 59 at 4–5.) In that Order, the Court stated, “The Parties are directed to endeavor with haste and good faith toward disclosing what ought to be disclosed, and to move efficiently toward resolving this matter either between themselves or through the Court's consideration of their respective motions for summary judgment.” (Id. at 5–6.)

*2 On January 25, 2021, after the supplemental discovery period had concluded, Counter Plaintiff filed a Motion to Compel Production of Documents Needed for Forensic Audit of Jireh, Inc., and Motion for Sanctions, Jointly and Severally, Against All Three Defendants-in-Counterclaim (Doc. 63). In that motion, Counter Plaintiff sought to compel the production of documents related to 21 discovery requests he had sent Counterclaim Defendants for the purpose of conducting the audit of Jireh. See (id. at 10–17.) Counter Plaintiff concurrently sought leave to file his motion after the December 31, 2020 supplemental discovery deadline on the ground that he was bedridden with an illness that began prior to the Christmas holiday and lingered into January. (Doc. 62 at 2–3.) The Court granted Counter Plaintiff's motion for leave and directed the Parties to file their motions for summary judgment by May 1, 2021. (Doc. 67.) On April 30, 2021, both Parties moved for summary judgment. See (Countercl. Defs.' Mot. for Summ. J, Doc. 70); (Countercl. Pl.'s Mot. for Partial Summ. J., Doc. 71).[2]

II. Discussion

In his latest motion to compel, Counter Plaintiff requests that Counter Defendants produce a broad array of documents relating to Jireh's business affairs, including copies of bank and credit card statements, loan agreements, calculations for shareholder disbursements, tax returns, and reimbursement forms. See (Mot., Doc. 63 at 10–17). Counter Plaintiff claims that these documents are necessary to perform the audit of Jireh. See (id. at 6) (“The forensic accountants hired to do this audit (approved and required by the Court in its September, 2018 order) are presently stalled in place due to a dearth of document production from the defendants-in-counterclaim.”).

Counter Defendants respond that Counter Plaintiff's motion should be denied because he failed to file it before the conclusion of the supplemental discovery period. (Opp'n, Doc. 68 at 3). Additionally, Counter Defendants argue that Counter Plaintiff's motion should be denied for failure to comply with the Federal Rules of Civil Procedure, the Local Rules, and the Court's Standing Order because he did not meet and confer with opposing counsel before filing his motion. (Id. at 4–5.) Counter Defendants claim that instead of making an effort to meet and confer with opposing counsel in an effort to resolve the dispute, Counter Plaintiff simply stated in an email “I will be preparing a motion to compel next week.” (Id. at 3.) (citing Counter Defs.' Ex. A, Doc. 68-1). Finally, Counter Defendants argue that Counter Plaintiff's motion should be denied because he did not quote “the actual requests and the actual responses to such requests, so that the response and objections can be properly analyzed by the Court,”[3] (id. at 11), and because Counter Defendants had already produced “all relevant, responsive, non-duplicative documents in their possession, custody, or control” in response to Counter Plaintiff's discovery requests, (id. at 12–13).

To begin, the Court is not convinced by Counter Defendants' argument that Counter Plaintiff's motion to compel should be denied for failure to submit the motion prior to the conclusion of the supplemental discovery period. As Counter Defendants themselves acknowledge, “[t]his Court has granted James' request for leave to file outside these deadlines.” (Id. at 3). Moreover, Local Rule 37.1(B) states that “[u]nless otherwise ordered by the Court, a motion to compel a disclosure or discovery must be filed within the time remaining prior to the close of discovery or, if longer, within fourteen (14) days after service of the disclosure or discovery response upon which the objection is based.” LR 37.1(B), NDGa (emphasis added). Here, the fact that Counter Plaintiff filed the motion after supplemental discovery had closed does not bar the Court from considering his motion because the Court expressly granted Counter Plaintiff permission to file his motion to compel after the close of supplemental discovery.

*3 That being said, the Court's Order granting Counter Plaintiff leave to file his motion after the close of supplemental discovery did not exempt Counter Plaintiff from complying with the additional requirements for filing a motion to compel under the Federal Rules of Procedure, the Local Rules, and the Court's Standing Order. As Counter Defendants note, (Opp'n, Doc. 68 at 4), under Fed. R. Civ. P. 37(a)(1), a motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” And Local Rule 37.1(A)(1) similarly provides that motions to compel must “[i]nclude the certification of counsel with regard to the duty to confer” required by the Federal Rules. LR 37.1(A)(1), NDGA; see (Opp'n, Doc. 68 at 4). Though Counter Plaintiff states that the Parties “have conferred by exchange of e-mail about the documents requested,” (Mot., Doc. 63 at 6), Counter Defendants state that since they served their discovery responses the only email that the Parties exchanged was an email Counter Plaintiff sent on January 8, 2021, (Opp'n Doc. 68 at 4.) In that email, Counter Plaintiff communicated his belief that Counter Defendants' responses were deficient and concluded by stating, “I will be preparing a motion to compel next week.” (Countercl. Defs.' Ex. A, Doc. 68-1.)

As Counter Defendants note, under the Court's Standing Order, the duty to meet and confer as required by the Federal and Local Rules “is NOT satisfied by sending a written document, such as a letter, email, or fax, to the adversary, UNLESS repeated attempts to confer by telephone or in person are unsuccessful due to the conduct of the adversary.” (Standing Order, Doc. 4 at 20); see (Opp'n, Doc. 68 at 4–5). The Court is not aware of any further communication between the Parties about the motion to compel before Counter Plaintiff filed his motion, and even if there were any such communications, Counter Plaintiff has not brought them to the attention of the Court.[4] Further, Counter Plaintiff has not established that “repeated attempts to confer by telephone or in person” had been unsuccessful. That said, the Court recognizes that these parties, who are related, have rarely successfully communicated about discovery or resolved any matters related to this or other litigation. Still, the mere sending of an email does not satisfy the requirement to meet and confer in the circumstances presented here. As the Court extended the discovery and motion practice timeline on behalf of the Counter Plaintiff, it cannot accept his apparent refusal to attempt first to resolve the discovery dispute at hand informally, as required under the Court's rules. Accordingly, the Court DENIES Counter Plaintiff's motion to compel [Doc. 63].

Although Counter Plaintiff's motion also included a request for sanctions against Counter Defendants, (Mot., Doc. 63 at 18–19), and Counter Defendants suggest that Counter Plaintiff could be subject to sanctions based on his most recent motion to compel, (Opp'n, Doc. 68 at 24), the Court declines to order sanctions against any party at this time. Despite the breadth of his discovery requests, it appears to the Court that some of the alleged deficiencies Counter Plaintiff identified in Counter Defendants' discovery responses may well have had merit. As the Court previously stated, “The Court is skeptical of the Counter Defendants' position that allowing Champa access to their QuickBooks records is the same as producing the source documents he specifically requested.” (Doc. 59 at 5 n.2). However, as discussed above, Counter Plaintiff failed to properly raise these alleged deficiencies with the Court in a manner that complied with the Federal Rules of Civil Procedure, the Local Rules, and the Court's Standing Order.

The time for adjudicating discovery disputes has long passed. The Court directed the Parties prior to the commencement of the supplemental discovery period last fall that they were “to endeavor with haste” to resolve their outstanding discovery disputes and “move efficiently toward resolving this matter either between themselves or through the Court's consideration of their respective motions for summary judgment.” (Doc. 59 at 5–6.) Unfortunately, the Parties have failed to resolve their discovery disputes between themselves. So, given that the Parties ultimately failed to resolve their discovery disputes, and the discovery phase of this case has now concluded, the Court will proceed to consider the Parties respective motions for summary judgment, an order for which will be issued in due course.

III. Conclusion

*4 For the reasons stated above, Counter Plaintiff James Champa's Motion to Compel Production of Documents Needed for Forensic Audit of Jireh, Inc., and Motion for Sanctions, Jointly and Severally, Against All Three Defendants-in-Counterclaim [Doc. 63] is DENIED.

IT IS SO ORDERED this 28th day of July, 2021.

Counter Defendants' Complaint was later voluntarily dismissed, leaving only Counter Plaintiff's Counterclaim. See (Order, Doc. 47.)

Counter Plaintiff styled his motion as a partial motion for summary judgment on the ground that the discovery issues he had raised in his motion to compel had not yet been resolved. See (Countercl. Pl.'s Mot. for Partial Summ. J., Doc. 71 at 1–2.)

The Court understands this to be a reference to subsections 2 and 3 of Local Rule 37.1(A), which require the movant to “[q]uote verbatim each disclosure, interrogatory, deposition question, request for designation of deponent, or request for inspection to which objection is taken” and “[s]tate the specific objection.” LR 37.1(A)(2)–(3), NDGa.

Counter Plaintiff did not file a Reply in support of his motion.