*1 Plaintiff Trilegiant Corporation (“Trilegiant”) brings this motion to compel defendant Sitel Corporation (“Sitel”) to produce certain documents reflecting Sitel's communications with its insurer and for an award of attorneys' fees and costs. For the reasons that follow, the motion is granted in part.

Trilegiant, a company that operates membership-based service clubs and programs, accuses Sitel, a business that provides telephone-based marketing and customer relations services, of breach of contract and negligence based on Sitel's failure to preserve audio recordings of telephonic sales as mandated by a contract between the parties.

This is the seventh discovery order I have issued in this case. (Docket Nos. 35, 44, 63, 73, 75, 86). Only one of the previous disputes is particularly relevant here. In November 2009, Trilegiant sought discovery of certain categories of documents from Sitel, including:

(Trilegiant Corporation's First Request for Production of Documents dated Nov. 11, 2009 (“RFP”), attached as Exh. 1 to Declaration of Kenneth M. Kliebard (“Kliebard Decl.”), at 5). Sitel objected that these documents were protected by the attorney-client privilege or the work product doctrine. (Sitel Operating Corporation's Objections and Responses to Trilegiant Corporation's RFP dated Jan. 11, 2009,[1] attached as Exh. 2 to Kliebard Decl., at 8).

Trilegiant disagreed and brought a motion to compel seeking, among other relief, production of documents responsive to RFP Nos. 15 and 16. (Memorandum in Support of Plaintiff's Motion to Compel Discovery and for Sanctions dated May 26, 2011 (“May 2011 Memo.”), at 13–15). Trilegiant noted that “Sitel's privilege log identifies ... [three] responsive communications with its insurers.” (May 2011 Memo. at 15; Privilege Log of Trilegiant Corporation,[2] attached as Exh. 10 to May 2011 Kliebard Decl., at 1, 2, 3). Trilegiant requested either production of the three items from the privilege log and “any other documents responsive” to RFP Nos. 15 and 16, or submission of the three items from the privilege log for in camera review. (May 2011 Memo. at 15).

I ordered Sitel to submit the three identified documents for my review. (Order dated Sept. 6, 2011, at 2). In the notice accompanying the submission, Sitel asserted that it was “in possession of similar documents that were exchanged between itself and its insurer.” (Sitel Operating Corporation's Notice of Filing Documents for In Camera Review dated Oct. 5, 2011 (“Notice of Filing”), at 1). However, Sitel explained that these additional documents were not included on the privilege log because I had previously ordered, in resolving a different discovery dispute, that Trilegiant need not log privileged documents post-dating February 8, 2008. (Notice of Filing at 1; Order dated Feb. 17, 2011, at 3). Sitel offered to submit such documents for in camera review. (Notice of Filing at 1). I reviewed the three submitted documents, determined that they were not protected by the attorney-client privilege or the work product doctrine, and ordered them produced. (Order dated Oct. 18, 2011 (“October 2011 Order”)).

*2 In March 2012, Sitel filed a declaratory judgment action in the U .S. District Court for the Middle District of Tennessee against its insurer, American Home Assurance Company (“American Home”), which has disclaimed coverage for the instant action. (Complaint, Sitel Corp. v. American Home Assurance Co., at 4–6, attached as Exh. 4 to Kliebard Decl.). Sitel attached to the complaint three documents reflecting communications between Sitel and American Home regarding insurance coverage that it has not produced in this action. (E-mail chain dated March 27–31, 2008, attached as Exh. 5 to Kliebard Decl.; Letter of Estelita Vas, undated,[3] attached as Exh. 6 to Kliebard Decl.; Letter of Sharon Bourbonnais dated Aug. 5, 2009, attached as Exh. 7 to Kliebard Decl.).

Asserting that these three documents are relevant and responsive to its document requests but were not produced in this litigation, Trilegiant seeks supplemental responses to RFP Nos. 15 and 16, certification from Sitel that its responses to those requests are complete, and payment of Trilegiant's reasonable expenses incurred in bringing both this motion to compel and its May 2011 motion to compel. (Pl. Memo. at 6–7).

When a party has failed to respond completely to a discovery request, the aggrieved party “may move for an order compelling disclosure or discovery.” Fed.R.Civ.P. 37(a)(1) & (4). Importantly, “[t]he motion must include a certification that the movant has in good faith conferred or attempted to confer with the ... party failing to make disclosure ... in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). Failure to confer in good faith is a basis to deny a motion to compel. See, e.g., Prowley v. Hemar Insurance Corp. of America, No. 05 Civ. 981, 2010 WL 1848222, at *10 (S.D.N.Y. May 7, 2010); AIU Insurance Co. v. TIG Insurance Co., No. 07 Civ. 7052, 2008 WL 4067437, at *3 (S.D.N.Y. Aug. 28, 2008). This requirement is not a mere formalism; rather, it is designed to “encourage cooperation, requiring parties to work with opposing counsel to clarify discovery requests and resolve apparent deficiencies in discovery responses rather than resorting to formal motion practice in the first instance.” R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 43 (S.D.N.Y.2010).

Trilegiant's motion does not include such a certification, and and it is clear from the papers that no attempt was made to meet and confer or to otherwise resolve this dispute without the expense of a formal motion. Trilegiant asserts that it has already asked for production of the documents—first in its requests for production and again in connection with the May 2011 motion to compel—and that, therefore, “Sitel's argument that Trilegiant was required to ask” again is both “meritless” and “absurd.” (Reply Memorandum in Support of Plaintiff's Motion to Compel Discovery (“Reply Memo.”) at 4). That position ignores not only the plain language, but also the spirit of Rule 37(a)(1), which unambiguously requires attempts at informal dispute resolution before a motion is filed. In addition, as a practical matter, an attempt to confer in good faith with Sitel on this issue, with or without my assistance, would likely have obviated the need for this motion: the defendant asserts that, “[i]f Trilegiant had contacted Sitel, it is likely an agreement could have been reached regarding production of those documents.” (Response in Opposition to Trilegiant Corporation's Motion to Compel Discovery and Motion for Sanctions (“Def.Memo.”) at 6).

*3 Of course, Sitel's representation—which seems to concede that the documents are discoverable—raises a question about its own conduct in connection with this dispute; that is, why did it not produce the documents on its own? Sitel's explanations reveal a particularly crabbed view of its discovery obligations both in this specific case and under the Federal Rules of Civil Procedure.

Sitel observes that the only documents requested for in camera review were three documents on its privilege log, and that these three documents were the only ones it was ordered to produce. (Def. Memo. at 5–6; October 2011 Order). That is correct. But Sitel further explains that no other documents responsive to RFP Nos. 15 and 16 were included on the privilege log because “the parties agreed and this Court ordered that no documents created after February 8, 2008[,] need be included on a privilege log and would not be produced.” (Def. Memo. at 5). That is incorrect.

In July 2010, Sitel filed a motion to compel responses from Trilegiant. The defendant sought, among other responses, documents responsive to Sitel's RFP No. 23, which asked for “all documents relating to any investigation Trilegiant has taken to discover the facts concerning the allegations in the Complaint or Counterclaims.”[4] (Trilegiant Corporation's Response to Sitel Operating Corporation's First Set of Requests for Admissions, Interrogatories, and Requests for Production of Documents dated Jan. 22, 2010, attached as Exh. 1 to July Memo., at 22). Trilegiant argued that the documents encompassed within RFP No. 23 were “obviously privileged.” (Memorandum in Support of Plaintiff's Motion for Reconsideration of Order on Motion to Compel dated Nov. 29, 2010, at 10–11). The order finally resolving that dispute stated:

Request No. 23 involves documents relating to Plaintiff's internal investigation of the underlying complaint.... The Court encouraged the Parties to come to an agreement as to when the work product protection/attorney client privilege applies, and when it should be invoked. Based on its review of relevant documents, Plaintiff anticipated litigation not later than February 8, 2008, when its representatives received a letter from Defendant [ ] ... regarding the subject matter of the lawsuit. The Parties agree[ ] that after February 8, 2008, they need not log attorney-client privileged communications regarding the subject matter of the lawsuit or attorney work product regarding the anticipated litigation.

(Order dated Feb. 17, 2011 (“February 2011 Order”), at 2–3).

Plainly, this ruling arose from the fact that Sitel's RFP No. 23 was so broadly written that it could be read to include a significant number of documents protected by the attorney-client privilege or work product doctrine. Read in context, it is clear that the directive was intended to limit the number of documents reflecting attorney-client communications and attorney work product required to be listed on a privilege log by exempting those communications created after the date that Trilegiant anticipated litigation. It was not directed at communications between an insurer and an insured (which are privileged only in very limited circumstances, see, e.g., Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., No. 00 Civ. 9212, 2002 WL 31729693, at *8 (S.D.N.Y. Dec. 5, 2002)). Even if it were susceptible to Sitel's current interpretation that no putatively privileged documents created after February 8, 2008, needed to be logged, the February 2011 Order neither states nor can fairly be interpreted to mean that documents created after February 8, 2008, “would not be produced.” (Def. Memo. at 5). Indeed, on October 18, 2011, I ordered three such documents produced after reviewing them in camera. (October 2011 Order).

*4 The October 2011 Order also subverts Sitel's final point, which argues that it was not required to produce similar documents reflecting communications between Sitel and American Home because Trilegiant knew of the existence of such documents but “did not request that Sitel produce the additional documents to the Court for in camera review.” (Def. Memo. at 5).

Rule 26(e) of the Federal Rules of Civil Procedure imposes a continuing obligation on a party to supplement its discovery responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R Civ. P. 26(e). This duty obliges the entity responding to discovery to turn over improperly withheld materials without an additional request from the propounding party. See Ritchie Risk–Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, –––F.R.D. ––––, ––––, 2012 WL 500283, at *7 (S.D.N.Y. Feb. 15, 2012) (“[T]he federal discovery rules place a duty on a party to turn over not only proper materials of which he is aware, but also those of which he reasonably ought to have been aware.” (internal quotation marks and emphasis omitted)). Thus, when the October 2011 Order undermined Sitel's rationale for withholding the three documents listed on its privilege log, it was reasonable to expect that “similar documents that were exchanged between [Sitel] and its insurer” (Notice of Filing at 1) would also be subject to production pursuant to Rule 26(e). Sitel failed in its obligation to supplement incomplete discovery.

Therefore, Sitel is directed to produce to Trilegiant all non-privileged documents in its possession responsive to RFP Nos. 15 and 16. Sitel is warned that, as I ruled in a previous order, documents relating merely to insurance coverage are “not subject to the attorney-client privilege or work product protection.” (Order dated Oct. 18, 2011); see, e.g., Bovis Lend Lease, 2002 WL 31729693, at *8. If Sitel believes that certain responsive documents are privileged, it shall include them on a privilege log (without regard to their date of creation) and briefly, but clearly, explain the basis for its invocation of the privilege.

Under Rule 37(a)(5) of the Federal Rules of Civil Procedure, if a party's motion to compel is granted, the court “must ... 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.” Fed.R.Civ.P. 37(a)(5)(A). However, this sanction may not be ordered if the moving party “filed the motion before attempting in good faith to obtain the ... discovery without court action” or if “other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A)(i) & (iii).

*5 Here, as discussed above, Trilegiant did not meet and confer in good faith with Sitel prior to filing this motion. (Def. Memo. at 6; Reply Memo. at 5). Moreover, had Trilegiant done so, there would likely have been no need for the motion for which Trilegiant seeks reimbursement. Therefore, I will not order payment of the expenses Trilegiant has incurred in bringing this motion. Nor is Trilegiant entitled to its costs for bringing the motion to compel in May 2 011. If Trilegiant believed that Sitel's prior conduct in withholding documents responsive to RFP Nos. 15 and 16 was sanctionable, it should have requested such sanctions in that prior motion.[5]

For the foregoing reasons, Trilegiant's motion to compel (Docket No. 78) is granted in part. Sitel shall provide Trilegiant with all documents responsive to Trilegiant's Requests for Production Nos. 15 and 16 by May 31, 2012. By that same date, Sitel shall serve on Trilegiant a privilege log (if necessary) and a certification that Sitel's responses to those requests are complete. Trilegiant's request for sanctions is denied. Counsel are warned that, in the conduct of this dispute and any further discovery dispute in this case, they must strictly adhere to the Federal Rules of Civil Procedure, including Rule 37(a)(1). Failure to do so will be considered evidence of bad faith.

SO ORDERED.