*1 Before the Court is Plaintiff Morgan Howarth's Opposed Motion to Overrule Objections and Compel Discovery, Dkt. 31, and all related responses and replies. Upon the undersigned's order, the parties filed a Joint Advisory, Dkt. 36, describing the outstanding discovery issues. The undersigned held a hearing on May 3, 2022, and enters this Order of the rulings made on the record.

Plaintiff Howarth asserts that he served Defendants with written discovery via mail on October 16, 2021, and via email on October 17, 2021, and although responses were due on November 16, 2021, Defendants failed to respond. Howarth moves to have the requests for admissions deemed admitted and all objections overruled on this basis. Defendants, claiming they made a calendaring mistake, untimely served responses on January 14, 2022. Howarth asserts that the responses are inadequate, contain boilerplate objections, and that any objections are waived due to the tardiness of the response.

After a telephone conference, Defendants' counsel stated they would review their responses and amend or supplement, and after another call, that he was working on supplementing the discovery and it would be two weeks. Howarth's counsel gave the Defendants until February 23, 2022, to supplement, and they did not do so, leading to the filing of the instant motion. In Howarth's motion he requests that the undersigned: (1) overrule Defendants' improper objections and deem them waived; (2) order the Defendants to properly respond to the interrogatories and requests for production; and (3) attorney's fees.

Defendants argue that the motion is improper and premature, that discovery production is ongoing, and that all will be completed before the close of discovery on August 18, 2022. Also, they argue that Howarth has failed to explain with specificity how their discovery is deficient. Defendants turned over 66 pages of documents on May 2, 2022.

Federal Rule 37 governs motions to compel discovery or disclosure. Fed. R. Civ. P. 37 (“[A] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.”). Federal Rule 37 allows such a motion when a party fails to answer an interrogatory under Federal Rule 33 or respond to a request for production under Federal Rule 34, provided such discovery requests are within the scope of Federal Rule 26(b). See Fed. R. Civ. P. 37(a)(3); accord Crosswhite v. Lexington Ins. Co., 321 F. App'x 365, 368 (5th Cir. 2009) (“A party may move to compel production of materials that are within the scope of discovery and have been requested but not received.”). Under Federal Rule 37, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). In other words, the resisting party “must show how the requested discovery is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Lopez v. Don Herring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018) (citing Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005)).

A. Verification

*2 Howarth asserts that Supplemental interrogatory responses are not verified, which Defendants' counsel confirmed. The undersigned ORDERS them verified by May 20, 2022.

B. Waiver of Objections Due to Untimeliness

Howarth argues that Defendants' objections are waived due to their failure to timely object, and for failure to demonstrate good cause. The undersigned DENIES Howarth's motion as to this issue.

C. General Objection, and “Subject To.”

Howarth argues that Defendants have improperly asserted global objections and responses “subject to” those objections. Howarth also complains about general objections to the term “metadata”. Defendants assert that no documents are being withheld based on any objections and therefore Howarth's complaint is moot. The undersigned finds that Defendants' objections to the term “metadata”, general objections, and “subject to” objections are overruled and that to the extent they have not already done so, Defendants are ORDERED to completely and properly RESPOND to Howarth's discovery requests by May 20, 2022.

D. Boilerplate Objections.

Howarth complains that each and every Interrogatory has the same boilerplate objection, which are improper and should be overruled. The undersigned concurs and overrules Defendants' boilerplate objections. Defendants are ORDERED to completely and properly RESPOND to Howarth's discovery requests by May 20, 2022.

E. Arguing Over Ordinary Terms.

Howarth complains that Defendants improperly object to the terms “changes,” used in Interrogatories 4, 6, and 7, “stored”, in Interrogatory 5, and “operation” in Interrogatory 6. Howarth argues objections to the meaning of these terms should be overruled because the terms are clear; Defendants say the terms are ambiguous and vague. The undersigned overrules Defendants' objections. Defendants are ORDERED to completely and properly RESPOND to the outlined Interrogatories by May 20, 2022.

F. Federal Rule 33(d).

Howarth complains that Defendants have improperly relied on Federal Rule of Civil Procedure 33(d) in objecting to Interrogatories 6, 10, 11, 12, and 13, as they have pointed to no documents which are responsive. The undersigned agrees. The undersigned overrules Defendants' objections. Defendants are ORDERED to completely and properly RESPOND to Interrogatories 6, 10, 11, 12, and 13 by May 20, 2022.

G. Specific Interrogatories

Howarth complains that Defendants have failed to completely respond to Interrogatory No. 9 and Interrogatory 15. The undersigned agrees, overrules Defendants' objections, and ORDERS Defendants to completely and properly RESPOND to Interrogatories 9 and 15 by May 20, 2022.

H. Requests for Production

Howarth objects to Defendants' general objection to his Requests for Production: “Defendant will produce all nonduplicative, nonprivileged documents requested in the relevant time frame that are relevant to this matter in its possession, custody, or control, if any.” The undersigned notes that this is not in fact an objection, but also does not identify what documents Defendants have or have not produced, or if any such documents exist, and if withholding documents, the basis. The undersigned ORDERS Defendants to completely and properly RESPOND to Howarth's Requests for Production, including a privilege log, if claiming privilege, by May 20, 2022.

I. Request for Fees

*3 Howarth requests fees for this motion. Rule 37(a)(5)(A) provides that, if a motion to compel discovery is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” However, the court must not order the payment if: (1) the movant filed the motion before attempting in good faith to obtain the discovery or disclosure without court action; (2) the opposing party's nonresponse was substantially justified; or (3) “other circumstances” make an award of expenses unjust. The undersigned finds that at present, an award of expenses for the filing of this motion is unnecessary and unjust. Howarth's request for fees is DENIED. If Defendants fail to comply with the terms of this Order, however, the undersigned will favorably entertain a request for attorney's fees, monetary sanctions, and any other appropriate sanctions.

J. Protective Order

Defendants assert that some discovery has been withheld because the lack of a protective order in this case. The undersigned points to the form protective order contained within the Local Rules for the Western District of Texas, which the parties may easily agree upon. Moreover, a failure to agree to the entry of a protective order does not excuse either party from producing discovery in this case.

The undersigned ORDERS that Plaintiff Morgan Howarth's Opposed Motion to Overrule Objections and Compel Discovery, Dkt. 31, is GRANTED IN PART and that Defendants are ORDERED to comply with the dictates of this Order on or before May 20, 2022.