*1 Before the Court is Plaintiff Water Tree Ventures LLC's Motion to Compel Production of Documents from Norman (Lee) Waid. ECF Doc. 185. Plaintiff's motion seeks an order compelling Defendant Waid to respond to Plaintiff's Requests for the Production of Documents and to reimburse Plaintiff for the expenses it incurred in bringing the motion. Waid responded in opposition (ECF Doc. 193) and Plaintiff filed a reply (ECF Doc. 198). After holding a telephonic hearing on the motion on April 22, 2019, the Court concludes the motion should be denied, with one exception. Additionally, Waid will be required to pay Plaintiff the expenses it incurred in bringing the motion.

Plaintiff served Waid with requests for production on October 10, 2018. Waid did not respond or object to the requests within the thirty (30) days allowed by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 34(b)(2)(A). On January 10 and 21 of 2019, Plaintiff's counsel emailed Waid's counsel and reminded him no responses to the requests had been received. ECF Docs. 185-3, 185-4. Waid's counsel did not respond to either email. Plaintiff's counsel emailed Waid's counsel a third time on February 14, 2019, and informed him that if Plaintiff did not receive a response to the outstanding discovery requests, Plaintiff would file a motion to compel. ECF Doc. 185-5. Waid's counsel replied that he had “some things an[d] Mr. Waid was getting [him] some additional materials.” ECF Doc. 185-5. Waid's counsel also advised that he would provide the “final response” to Plaintiff by February 26, 2019. ECF Doc. 185-5. Waid, however, did not provide responses as indicated, which resulted in the filing of the subject motion on February 28, 2019.

Waid's response to the motion concedes he failed to provide the discovery responses as described above. ECF Doc. 193, p. 1. Waid says he submitted his responses to Plaintiff's requests on March 8, 2019, with one exception. Plaintiff's Request for Production No. 23, sought “[a] mirror image copy of the hard drive of all computers, laptops, tablets, mobile phones, or other devices you have used from January 1, 2017 through the date of your response.” ECF Doc. 185-2, p. 8. Waid's response to the discovery request stated:

ECF Doc. 193-1, p. 12.

Waid asks that the Court order: (1) “Plaintiff [to] make arrangements to pay for the imaging of Defendant Waid's phone at a facility convenient to Defendant Waid at his residence in Michigan”; and (2) that “Defendant Waid's counsel [is] entitled to conduct a privilege review of the files identified on the image, redact as necessary and provide the image along with the privilege log to Plaintiff's counsel.” ECF Doc. 193, p. 3. Otherwise, Waid claims Plaintiff's motion is moot because he has supplied his discovery responses.

*2 With the Court's permission, Plaintiff filed a reply to Waid's response which argues Waid has not produced all responsive documents. ECF Doc. 198. The reply states, among other things, that: (1) Waid objected to producing some documents based on obligations he has to Defendant Honest Discounts LLC, but failed to produce any agreements or communications with Honest reflecting those obligations; (2) on March 13, 2019, Waid's counsel informed Plaintiff he had located a single paystub from Defendant Avenel from February 2019, but it has not been produced; (3) Waid's response that he is “not aware” of responsive documents is evasive; and (4) Waid has not produced his Form 1099 for 2018.

Under the Federal Rules of Civil Procedure, Defendant Waid is obligated to produce all documents responsive to Plaintiff's discovery requests. See Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984) (“Under Fed. R. Civ. P. 34, control is the test with regard to the production of documents. Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.”); see also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”). During the April 22 hearing, Waid's counsel represented to the Court that Waid had complied with his discovery obligations and produced all responsive documents. Thus, except for the issue of the mirror image copy of Waid's cell phone, Plaintiff's motion to compel is due to be denied as having been mooted. The Court cannot compel Waid to produce documents he claims are not within his possession, custody or control. Additionally, the parties indicated that Waid's deposition would be taken soon. If Waid's deposition reveals he has not produced all responsive documents which are in his possession, custody or control, has not engaged in a diligent search or made a diligent or good faith inquiry for same, or otherwise has failed to comply with his discovery obligations, Plaintiff may renew its motion to compel or seek sanctions.

Regarding the mirror image copy, the parties largely agreed at the hearing as to what procedure they should use to create the copy. The Court, therefore, will compel Waid to produce his cell phone for the purpose of creating a copy of its data, pursuant to the procedure described below.

Plaintiff also requested that it be awarded expenses for bringing the motion to compel. ECF Doc. 185, p. 1, 7-8. Rule 37 provides that if requested discovery is provided after a motion to compel is filed “the court must, after giving an opportunity to be heard, require the party or deponent 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.” Fed. R. Civ. P. 37(a)(5)(A). “But 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.” Id.

Defendant Waid did not respond to Plaintiff's October 10, 2018, discovery requests for over four (4) months, and only did so after Plaintiff filed a motion to compel. Waid has offered no explanation for his failure to respond to Plaintiff's discovery requests or his counsel's failure to respond to Plaintiff's inquiries regarding the matter. Because Waid has not established that his conduct was substantially justified or that circumstances make an award of expenses unjust, Plaintiff is entitled to reimbursement of the expenses it incurred in bringing the motion.

*3 Accordingly, it is ORDERED:

1. Plaintiff Water Tree Ventures LLC's Motion to Compel Production of Documents from Norman (Lee) Waid (ECF Doc. 185) is DENIED as moot, except with respect to Request for Production No. 23.

2. Within seven (7) days from the date of this order, Plaintiff and Defendant Waid shall confer regarding the creation of a mirror image copy of Waid's cell phone. At Plaintiff's expense, Waid shall submit his cell phone to a forensic imaging company (mutually agreed upon by both Plaintiff and Waid) for creation of printed copies of the images retrieved. Waid shall provide the company with any passwords needed to effectuate the copying. Within seven (7) days of the creation of the images, the third-party forensic company will provide a copy of all images obtained, bates labeled,[1] to Waid's counsel for the purposes of conducting a privilege review. Upon expiration of the 7-day period, Waid must provide Plaintiff with the information from the cell phone, along with a privilege log which describes in detail the documents or files withheld and the basis of the asserted privilege.

3. Plaintiff shall have fourteen (14) days from the date of this order to submit an affidavit, or affidavits, setting forth the reasonable expenses, including attorney's fees, incurred in bringing the motion to compel. Defendant Waid may file an opposition to the reasonableness of fees within ten (10) days after service of the affidavit or affidavits.

DONE AND ORDERED this 26th day of April, 2019.

The third-party forensic expert may send the printed images to a mutually agreed third party copying service for purposes of bates labeling the documents and sending them to Waid's counsel.