*1 Before the Court are Defendant's Motion to Compel Discovery Responses and Production of Documents (ECF No. 21) and Appendix in Support (ECF No. 22), filed June 7, 2019; Plaintiff's Response (ECF No. 24), filed June 14, 2019; and Defendant's Reply (ECF No. 25), filed June 19, 2019.

Plaintiff Doyce Thompson filed this putative class action on September 24, 2018, alleging violations of the Telephone Consumer Protection Act (“TCPA”). Compl. 2, ECF No. 1. Plaintiff contends that Defendant repeatedly made unsolicited calls to Plaintiff's telephone without her consent. Id. Defendant contends that third-party discovery and Defendant's records contradict Plaintiff's allegations. Def.'s Mot. Compel 1, ECF No. 21. Additionally, Defendant claims Plaintiff failed to comply with her discovery obligations and, as such, moves to compel discovery. Id.

Having considered Defendant's Motion to Compel (ECF No. 24), the briefing, and applicable law, the Court finds that it should be and is hereby GRANTED.

I. LEGAL STANDARD

The Federal Rules of Civil Procedure permit discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering [among other things] ... whether the burden or expense of the proposed discovery outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1). The discovery rules are to be construed broadly and liberally. Burns v. Thiokol Chemical Corp., 483 F.2d 300, 304 (5th Cir.1973) (citing Hickman v. Taylor, 329 U.S. 495, 500 (1947)). Under Federal Rule of Civil Procedure 34, “documents are considered to be under a party's control for discovery purposes when that party has the right, authority, or practical ability to obtain the documents from a nonparty to the suit.” Shell Global Solutions (US) Inc. v. RMS Eng'g, Inc., 2011 WL 3418396, at *2 (S.D. Tex. Aug. 3, 2011) (citing cases). Generally, “the rules dealing with discovery in federal cases are to be self-executing.” Dondi Properties Corp. v. Commerce Sav. & Loan Ass'n, 121 F.R.D. 284, 289–90 (N.D. Tex. 1988).

II. ANALYSIS

Defendant argues Plaintiff failed to comply with the discovery rules and should be compelled to provide adequate discovery responses and produce responsive documents. Defendant also argues Plaintiff should be sanctioned by the Court. Def.'s Mot. Compel 9, ECF No. 21. Specifically, Defendant contends that Plaintiff served untimely discovery responses with improper objections and testified to having responsive documents she has not produced. Id.

A. Discovery Disputes

First, Defendant details correspondence between the parties to illustrate their discovery disputes. For example, Plaintiff initially failed to serve responses on February 4, 2019, which was an agreed to—extended—deadline. Def.'s Mot. Compel 2, ECF No. 21. On March 4, 2019—a month later, Defendant sent Plaintiff a letter regarding Plaintiff's failure to respond to discovery. Id. at 3. Plaintiff did not respond to the March 4th letter, but instead served untimely discovery responses on March 8, 2019. Id. On March 15, Defendant sent Plaintiff another letter noticing Plaintiff's deposition. Id. at 4. Defendant deposed Plaintiff on April 24, 2019, where she admitted she did not make any effort to locate several documents that were identified in the Requests for Production. Id. Additionally, Defendant contends that deposition testimony revealed Plaintiff failed to produce several documents she admitted were emailed to her. Id. at 5. Finally, Defendant learned that Plaintiff's counsel had conducted a pre-suit investigation, which Plaintiff failed to disclose. Id. When asked about the facts related to the investigation, Plaintiff's counsel objected based on the work-product doctrine. Id. In attempts to address the outstanding discovery, Defendant claims it followed up with letters and telephone calls to Plaintiff, which Plaintiff ignored. Id. at 8.

*2 Now, Defendant seeks a complete response to Interrogatories Numbers 1 and 4, as well as verification of the interrogatory answers, as required by Federal Rule of Civil Procedure 33(b)(5). Id. at 10. Further, Defendant seeks production of the following documents: Plaintiff's cellular phone contract, monthly emails from her cellular phone provider, emails with other universities regarding the pursuit of any doctoral program, emails from Capella, and text messages from Capella. Id. at 11. Additionally, Defendant seeks any other responsive documents in Plaintiff's possession and non-privileged facts related to the investigation. Id.

In response, Plaintiff claims her discovery was initially delayed due to a clerical error. Pl.'s Resp. 3, ECF No. 24. Plaintiff also claims that Defendant misrepresented the parties' correspondence to the Court and that Plaintiff did not respond to Defendant's March 15 letter because the letter did not require a response. Id. On the specific discovery issues, Plaintiff responds that Defendant seeks to compel the production of documents it cannot identify. Further, Plaintiff claims she properly objected to Interrogatory Numbers 1 and 4. Plaintiff also states that her cell phone records, which have been produced, contain the pertinent responsive information to Interrogatories Numbers 1 and 4. Id. at 6. Further, Plaintiff claims that her deposition testimony does not contradict the written discovery. Id. at 4. For example, in her deposition, Plaintiff explained that she did not locate documents in response to requests for productions “because” those records required a subpoena. Id. Plaintiff argues that the cell phone contract and bills are irrelevant to the claims or defenses in the lawsuit. Id. Finally, with respect to the pre-suit investigation conducted by her attorneys, Plaintiff claims there is no discovery request refused. Id. at 5.

In reply, Defendant contends that Plaintiff's production of subpoenaed documents does not relieve Plaintiff from the responsibility of searching for and producing documents in her own possession. Def.'s Reply 2, ECF No. 25. Moreover, Defendant contends the subpoenaed phone records are not relevant because they only contain information for approximately 24 months following usage. Id. at 7. This means that records for the relevant time frame of the allegations were not produced. Additionally, Plaintiff did not provide any of her own records. As to the attorney-client privilege, Defendant claims that Plaintiff is using the work-product doctrine to shield facts discovered during her counsel's investigation.

The Court finds Defendant has identified documents Plaintiff failed to produce that are relevant to any party's claims or defenses. Specifically, Plaintiff's deposition testimony reveals that Plaintiff has monthly emails from her phone provider, her cellular phone contract, text messages from Capella, emails from Capella, and emails with other universities regarding the pursuit of any doctoral program. See Def.'s Mot. Compel 4, ECF No. 25.

For example, Plaintiff's deposition testimony regarding the monthly emails regarding her bill from her phone provider states the following:

Pl.'s Resp. Ex. A (Doyce Dep.), App. 9, ECF No. 24-1. Further, the testimony regarding the contract states:

*3 Id. Here, the Court finds Plaintiff failed to provide “all telephone bills and records in [Plaintiff's] possession” in response to Defendant's Request for Production Numbers 7, 8, and 9. Def.'s App. Supp. Mot. Compel Ex. A-3 (Prod. Req.) App. 28, ECF No. 22.

Similarly, with respect to Plaintiff's text messages and e-mails from Capella, Plaintiff's deposition testimony reveals the following:

Pl.'s Resp. Ex. A (Doyce Dep.), App. 16, ECF No. 24-1.

In addition, counsel for Plaintiff admits that he reviewed Plaintiff's e-mail and located e-mail communication from Capella. See Def.'s App. Supp. Mot. Compel Ex. A-11(Hughes email), App. 64, ECF No. 22. These emails were not provided to Defendant. And, Plaintiff's deposition testimony also reveals she failed to run certain email searches until the morning of the deposition. In relevant part, the testimony states:

Pl.'s Resp. Ex. A (Doyce Dep.), App. 13, ECF No. 24-1.

Based on this testimony, the Court finds Plaintiff failed to provide “all documents and communication in [Plaintiff's] possession, custody or control related to Capella” or sent by Capella in response to Defendant's Request for Production Numbers 4 and 5. Def.'s App. Supp. Mot. Compel Ex. A-3 (Prod. Req.) App. 28, ECF No. 22.

Finally, regarding her communication with other doctoral education programs, Plaintiff's deposition testimony states:

Pl.'s Resp. Ex. A (Doyce Dep.), App. 28, ECF No. 24-1. Thus, here too, the Court finds that Plaintiff failed to provide “all documents and communications in [Plaintiff's] possession” in response to Defendant's Request for Production Numbers 2 and 3. Def.'s App. Supp. Mot. Compel Ex. A-3 (Prod. Req.), App. 28, ECF No. 22.

For the above-mentioned reasons, the Court finds Plaintiff has failed to comply with Request for Production Numbers 2, 3, 4, 5, 7, 8, and 9. Accordingly, the Court ORDERS Plaintiff produce the following: (1) monthly emails from her phone provider, (2) her cellular phone contract, (3) text messages from Capella, (4) emails from Capella, and (5) emails with other universities regarding the pursuit of any doctoral program. Additionally, the Court ORDERS the Plaintiff to review the discovery requests and to search for and produce any other responsive documents in Plaintiff's possession that are responsive.

*4 Also, the Court OVERRULES Plaintiff's Objections to Interrogatories Numbers 1 and 4 and ORDERS Plaintiff to provide complete, sworn responses as required by Federal Rule of Civil Procedure 33. Federal Rule of Civil Procedure 33 provides that “[t]he grounds for objecting to an interrogatory must be stated with specificity. 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, the Plaintiff untimely objected to Interrogatory Number 1 as overbroad and states that she cannot “recall the precise content of each call received.”[1] Def.'s App. Supp. Mot. Compel Ex. A-3 (Interrog.) App. 24, ECF No. 22. As to Interrogatory Number 4, Plaintiff untimely objected on the basis that the interrogatory is “confusing” and that it is “impossible to provide a clear response.”[2] Id. In addition to the untimeliness of the objections, the Court finds that Plaintiff's objections are not stated with “sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” Heller v. City of Dallas, 303 F.R.D. 466, 485 (N.D. Tex. 2014). Moreover, Plaintiff's deposition testimony also demonstrates that Plaintiff has information to answer Interrogatories Numbers 1 and 4.

Finally, as to the underlying facts discovered during the investigation conducted by Plaintiff's attorney, the Court ORDERS Plaintiff to produce any underlying facts that are directly responsive to Defendant's discovery requests.

B. Attorneys' Fees

Defendant contends it is entitled to reasonable expenses and attorneys' fees in the amount of $5,000.00 pursuant to Federal Rule of Civil Procedure 37(a)(5). Def.'s Mot. Compel 12, ECF No. 21; Def.'s Reply 8, ECF No. 25. Plaintiff responds that the award of expenses and attorneys' fees is unjust because Defendant filed the motion knowing that the subpoenaed phone records likely contained the requested information. Pl.'s Resp. 8, ECF No. 24.

Under Federal Rule of Civil Procedure 37(a)(5)(A), if a motion to compel is granted, “the court must, after giving an opportunity to be heard, 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's fees,” except that “the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(A)

The Court finds that because Plaintiff refused to comply with discovery requests, Defendant incurred unnecessary expenses and attorneys' fees. Defendant provided counsel's correspondence to show that it sought to resolve the discovery dispute without court intervention. Def.'s Mot. Compel 8, ECF No. 21. And Plaintiff has not provided any evidence that its nondisclosures were substantially justified. Plaintiff's reasoning is that the subpoenaed phone records contained the requested information. But, the phone records do not contain the information requested by Defendant, which Plaintiff admittedly has in her possession. Finally, the Court is not aware of any other circumstances that would make an award of expenses unjust. Therefore, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), the Court AWARDS Defendant's reasonable expenses and attorneys' fees. The Court ORDERS Defendant to file a separate motion to support the amount of $5,000.00 in attorneys' fees and expenses incurred.[3]

III. CONCLUSION

*5 For the foregoing reasons, Defendant's Motion to Compel (ECF No. 21) should be and is hereby GRANTED.

SO ORDERED on this 26th day of June, 2019.

Interrogatory Number 1 states: “Describe each communication that you received from or had with Capella from 2015 through the date you filed the Complaint, including, but not limited to any phone calls including the phone number(s) associated with such calls, online or e-mail communications, or in-person communications.” Def.'s App. Supp. Mot. Compel Ex. A-3 (Interrog.) App. 24, ECF No. 22.

Interrogatory Number 4 states, “If your answer to request for admission number 38, above, was anything other than an unequivocal ‘admit,’ describe any and all reasons the answer was not ‘admit.’ ” Def.'s App. Supp. Mot. Compel Ex. A-3 (Interrog.) App. 24, ECF No. 22.

Before filing the motion, “an attorney for the moving party must confer with an attorney for each party affected by the requested relief to determine whether the motion is opposed.” See N.D. TEX. CIV. R. 7.1 “The purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus the matters in controversy before judicial resolution is sought.” Dondi Properties Corp., 121 F.R.D. at 289–90. The Court finds the issue regarding the reasonableness of attorneys' fees and expenses incurred in the instant case may be resolved by further communications among counsel. Id.