*1 This discovery dispute involves requests for production and interrogatories served on Defendant Southwest Regional PCR, LLC, doing business as MicroGenDX, LLC (MicroGen), by Plaintiffs Tom Ferguson and Gregg Browne (collectively, Plaintiffs). Through the motion, Plaintiffs challenge MicroGen's responses and answers in five ways: (1) improper reliance on waived objections; (2) purported boilerplate objections and incomplete document production; (3) alleged failure to substantively respond to interrogatories; (4) failure to provide documents in the agreed upon format; and (5) non-verified amended interrogatory responses. ECF No. 19, at 8–18. The motion is ripe for review. See ECF Nos. 22, 24. For the reasons stated herein, the Court GRANTS Plaintiffs’ Motion to Compel. ECF No. 19.

Plaintiffs are former sales representatives of MicroGen. Compl. 2, ECF No. 1. In late 2020, Plaintiff Ferguson secured a COVID-19 testing contract for MicroGen with the State of Colorado. Id. By separate agreement, MicroGen subcontracted with Dr. Alison Allen at Roaring Fork Neurology, PC to collect samples at the testing sites. Id. at 3. Plaintiffs claim they “were entitled to receive commissions of five dollars per COVID-19 test that [MicroGen] performed[,] split evenly between each of them.” Id. Plaintiffs allege that MicroGen paid them pursuant to their agreement between December 2020 and November 2021 but improperly refused to pay their commission between December 2021 and April 2022. Id.

For its part, Microgen claims that Plaintiff Ferguson misrepresented to MicroGen that it would be compensated by the State of Colorado for samples submitted for testing between November 11, 2020, and December 16, 2020, despite the fact the effective date of the formal contract was December 17, 2020. Counter-Compl. 2–3, ECF No. 15. According to Microgen, the State of Colorado refused to compensate it for the samples processed before the contract's effective date, resulting in an unpaid invoice in the amount of $569,640. Id. at 3. MicroGen, in turn, did not pay Plaintiffs’ commissions for the tests performed prior to the effective date and refused to pay Dr. Allen for the tests she performed during that time. Mot. to Compel 3, ECF No. 19 [hereinafter Mot.]. In December 2021, however, MicroGen elected to pay Dr. Allen for the samples she collected before the effective date of the contract. Id. To do so, Plaintiffs claim MicroGen withheld their commissions “until the running total ... reached $272,000”—i.e., the amount MicroGen paid to Dr. Allen. Id. Plaintiffs filed suit for breach of contract to recover the unpaid commissions. Compl. 3–4. MicroGen asserts counter claims for breach of contract, fraudulent misrepresentation, and negligent misrepresentation. Counter-Compl. 4–6.

Plaintiffs served on MicroGen their First Set of Requests for Production (RFP) and Plaintiff Ferguson's First Set of Interrogatories (ROG) on October 18, 2022. Mot. 4. On December 13, MicroGen untimely served written responses and allegedly produced some, but not all, of the requested documents. Id. at 4–5. Within a few days, Plaintiffs’ counsel sent a letter to MicroGen's counsel identifying several deficiencies: (1) MicroGen's objections were “waived as untimely” and it could not withhold documents and information based on those surrendered objections; (2) MicroGen failed to produce several categories of documents, and the documents it had produced were not in accordance with the form of production in the parties’ agreed protocol; and (3) by simply referring Plaintiffs to the entirety of its document production in response Plaintiffs’ interrogatories, MicroGen had failed to adequately respond. Id. at 5. Counsel conferred regarding those alleged deficiencies, and MicroGen then served unverified Amended Interrogatory Answers on February 24, 2023, in which it re-asserted its objections and again generally referred to all documents it had produced. Id. After another conference, MicroGen supplemented its document production on March 7. Id. at 6. Plaintiffs identified further deficiencies in MicroGen's discovery responses and document production, but the parties were unable to resolve the issue, thus causing Plaintiffs to file the instant motion. Id.

*2 The dispute involves RFP Nos. 1, 5, 7, 13–15, and 17–19 and ROG Nos. 1–3, 5–6, and 9.[2] Id. at 4, 8-18. Plaintiffs’ production requests relate to: (1) documents and communications concerning the negotiation, terms, drafting, or execution of the contract (RFP Nos. 1, 5); (2) documents and communications concerning the amounts allegedly owed and paid by MicroGen to Dr. Allen and withheld from Plaintiffs (RFP Nos. 7, 13–15); and (3) documents reflecting how MicroGen tracked the commissions it purportedly withheld from Plaintiffs (RFP Nos. 17–19). Pls.’ App. 14–18, ECF No. 20. As to the interrogatories, ROG Nos. 1-3 request the factual basis for MicroGen's assertions that (1) it “was not paid roughly $590,000 for its services” “due to Plaintiffs’ deceit,” (2) it “was forced to pay more than $270,000 to compensate” Dr. Allen, and (3) “Plaintiff[s] [are] attempting to recover commissions for which [MicroGen] was never paid.” Id. at 9–10, 24–25. ROG Nos. 5–6 seek information about the number of COVID-19 tests performed between November 1, 2020, through April 21, 2022, and the number of tests performed during that period for which MicroGen received payment. Id. at 10–11, 25–26. Finally, ROG No. 9 asks whether MicroGen paid Plaintiffs commission for all tests performed under the contract between December 1, 2021, and April 21, 2022, and seeks accompanying support or explanation for its answer. Id. at 12, 27.

Plaintiffs initially argue that MicroGen has waived its objections because it “has not shown good cause for the untimely responses,” as required by relevant law. Mot. 8. Even if its responses were timely, Plaintiffs view the objections as “boilerplate and without merit.” Id.

Turning first to the RFP, Plaintiffs contend the requests “are straightforward and directly related to the claims and defenses in this matter,” but MicroGen has “refused to produce many responsive documents” and “appears to have failed to even earnestly attempt to collect responsive materials.” Id. Plaintiffs further report that MicroGen committed to producing documents responsive to Nos. 1, 5, 7, 13, 17–19, but have failed to produce all relevant records. Id. at 9–13. As to Nos. 14 and 15, MicroGen claimed the “materials are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence,” which Plaintiffs characterize as “boilerplate objections.” Id. at 11–12 (citation omitted). Finally, Plaintiffs assert MicroGen has failed to adhere to the parties’ agreed procedure for producing electronically stored information (ESI) and should be compelled to produce documents in an appropriate and legible format. Id. at 13–14.

Next, Plaintiffs argue MicroGen's answers to ROG Nos. 1, 2, and 3 are “tantamount to no answer at all.” Id. at 14. According to Plaintiffs, MicroGen improperly “cites to the entirety of its document production,” which “is not an appropriate answer under the Rules [of Civil Procedure].” Id. at 15. Even where MicroGen refers to specific document ranges in its answers, Plaintiffs contend “those pages do not provide information sufficient to fully answer the interrogatories.” Id. Plaintiffs claim MicroGen's response to No. 9 fails for the same reasons. Id. at 17–18. As to Nos. 5 and 6, Plaintiffs aver MicroGen's boilerplate objections are without merit because the information sought is relevant to Plaintiffs’ claims and MicroGen's counterclaims. Id. at 15–17. Plaintiffs further note that MicroGen's amended interrogatory responses are not verified. Id. at 18.

Based on the foregoing, Plaintiffs ask the Court to enter an order overruling MicroGen's objections and requiring service of proper document production and verified substantive interrogatory responses within seven days. Id. Plaintiffs also ask the Court to award attorney's fees and costs in connection with their prosecution of the motion. Id.

MicroGen's responsive briefing is woefully insufficient and borders on misrepresentation given its conclusory, generalized nature and lack of cited legal support. For starters, it states the barefaced proposition, without citation to any legal authority, that its objections are not waived because “the discovery rules are not meant to be an absolute bar to objections if documents are produced within a reasonable time frame, relevant to the deadline,” and the discovery period in this action “is not set to close until September of 2023.”[3] Resp. 5, ECF No. 22. Next, MicroGen asserts that Plaintiffs seek information that “goes far beyond the scope of their lawsuit” because they filed suit “for failure to pay commissions between December 2021 and April 2022,” but “their discovery seeks to obtain information beginning in November of 2020.” Id. at 2. MicroGen insists that it “has produced all relevant discovery pertinent to all claims and defenses located after a diligent and thorough search,” and “has produced documents which it believes are immaterial” “[i]n an effort to satisfy the voluminous requests.” Id. According to MicroGen, it not only has “sufficiently responded to discovery, but it has far exceeded the type and style of response proffered by Plaintiffs.” Id. at 3.[4]

*3 Beyond these broad assertions, MicroGen in large part does not address Plaintiffs’ specific discovery requests or the arguments raised in their motion. In an apparent reference to RFP Nos. 1, 5, and 13—15, MicroGen alleges that it now “has produced every email correspondence ... located after a reasonable and diligent search” and “has constantly communicated” the reason for the delay in any of its responses. Id. at 4. MicroGen further avers that it has resolved the issue with Nos. 1 and 5 “by producing the remaining email correspondences and other documents.” Id. at 5–6. MicroGen does not specifically discuss RFP Nos. 7, 17–19, or ROG Nos. 1–3, 5–6, and 9. See generally id. at 1–7. Neither does MicroGen respond to Plaintiffs’ claims that MicroGen allegedly failed to follow the ESI protocol or provided unverified amended interrogatory responses. See id. In closing, MicroGen conclusorily claims “written discovery is now complete and Plaintiffs’ arguments are moot.” Id. at 6.

According to Plaintiffs, MicroGen's argument that it did not waive its objections has no basis in law and it has not attempted to show good cause for its untimely responses. Reply 5–6. In any event, Plaintiffs contend MicroGen's unsupported boilerplate objections are invalid and should be ignored. Id. at 6–7. Concerning the RFP, Plaintiffs maintain that the documents MicroGen withholds are relevant and discoverable. Id. at 1–5. They clarify that “MicroGen still has not produced the documents addressed in” the motion, despite any apparent representation to the contrary. Id. at 3–4 n.8. Plaintiffs further argue that MicroGen “fails to offer any explanation for its ongoing refusal to” produce documents in a proper format, including in a legible form with email attachments, because “[i]ts actions are indefensible.” Id. at 5. Finally, Plaintiffs challenge MicroGen's refusal to address the ROGs, insisting that “MicroGen will not live up to its discovery obligations unless ordered by the Court to do so.” Id. at 7.

A. Legal Standard

Rule 26 of the Federal Rules of Civil Procedure defines the permissible bounds of discovery:

FED. R. CIV. P. 26(b)(1). That is, information must be nonprivileged, relevant, and proportional to the needs of the case to constitute discoverable material. See Samsung Elecs. Am., Inc. v. Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017) (“Under Rule 26(b)(1), discoverable matter must be both relevant and proportional to the needs of the case—which are related but distinct requirements.”).

Federal Rule of Civil Procedure 37(a) governs motions to compel discovery responses. Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling production against another party when the latter has failed to answer interrogatories under Federal Rule of Civil Procedure 33 or produce documents requested under Rule 34. FED. R. CIV. P. 37(a)(3)(B)(iii), (iv). For purposes of Rule 37(a), “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 has the burden of showing why the requested discovery is irrelevant, overly broad, or unduly burdensome. Samsung Elecs. Am. Inc. v. Chung, 325 F.R.D. 578, 591-92 (N.D. Tex. 2017); accord McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 2997744, at *4 (N.D. Tex. May 25, 2016) (“The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable.”). “General or boilerplate objections are invalid, and ‘objections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections.’ ” Lopez v. Don Herring Ltd., 327 F.R.D. 567, 578 (N.D. Tex. 2018) (quoting OrchestrateHR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016) (alteration omitted)). And in response to a motion to compel, an objecting party must “urge and argue in support of its objection to an interrogatory or request [for production], and, if it does not, it waives the objection.” Zenith Ins. Co. v. Tex. Inst. for Surgery, L.L.P., 328 F.R.D. 153, 161 (N.D. Tex. 2018). Moreover, the resisting party may not rely on new grounds not previously raised in a timely objection. Lopez, 327 F.R.D. at 582.

B. MicroGen waived its objections by failing to timely respond to Plaintiffs’ discovery requests.

*4 The Federal Rules of Civil Procedure impose a thirty-day deadline to respond to discovery requests. FED. R. CIV. P. 33(b)(2), 34(b)(2)(A). “As a general rule, any potential objections to discovery requests are waived if a party fails to timely respond to the request.” Amin v. United Parcel Serv., Inc., No. 3:19-CV-2578-X-BK, 2021 WL 3629731, at *2 (N.D. Tex. June 3, 2021); accord ln re United States, 864 F.2d 1153, 1156 (5th Cir. 1989). In responding to an interrogatory, Rule 33(b)(4) provides that “[a]ny 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). Similarly, “[i]f a party fails to timely respond in writing after being served with a request for production of documents, it is appropriate for the Court to find that the party's objections are waived, unless the court finds good cause and excuses that failure.” Richmond v. SW Closeouts, Inc., No. 3:14-cv-4298-K, 2016 WL 3090672, at *5 (N.D. Tex. June 2, 2016); accord Henderson v. Union Pac. R.R. Co., No. 15-0669, 2016 WL 5936889, at *2 (W.D. La. Oct. 11, 2016) (“Although Rule 34 does not provide that untimely objections are waived, the Fifth Circuit has found that the waiver provision applies equally to Rule 34.” (citing In re United States, 864 F.2d at 1156)).

“Courts have the discretion to determine whether good cause exists to preclude a finding of waiver.” Amin, 2021 WL 3629731, at *3; accord Enron Corp. Sav. Plan v. Hewitt Assocs. L.L.C., 258 F.R.D. 149, 156 (S.D. Tex. 2008). The Enron court suggested six factors to consider in determining whether an untimely objection or claim of privilege should be excused:

258 F.R.D. at 157 (citation omitted).

MicroGen has offered no explanation for its failure to timely respond to Plaintiffs’ RFP and ROG, nor has it even so much as alleged that good cause exists. See Resp. 5. As such, MicroGen has wholly failed to address, much less satisfy, the relevant Enron factors. At most, MicroGen challenges Plaintiffs’ waiver argument because it believes “[t]he spirit of the discovery rules is not” in line with the view that “all objections are waived” “if responses are not received the minute they are due.”[5] Id. MicroGen continues, again without citation to legal authority, that its objections are not waived because a party need not comply with the thirty-day deadline so long as there is “ample time” in the remaining discovery period for the parties to “exchange discovery and avoid surprise.” Id. This argument “has no foundation in law and is rejected.” Edwards v. Junior State of Am. Found., No. 4:19-CV-140-SDJ, 2021 WL 2793850, at *3 (E.D. Tex. Jan. 21, 2021) (rejecting identical argument and noting that under such logic a party would be “free to ignore and refuse to respond to specific discovery requests for many months, so long as he ultimately produces the requested documents by the close of discovery”); see RE/MAX Int'I, Inc. v. Trendsetter Realty, LLC, No. H–07–2426, 2008 WL 2036816, at *5 (S.D. Tex. May 9, 2008) (“[W]hen a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived” because any other result would “completely frustrate the time limits contained in the Federal Rules and give a license to litigants to ignore the time limits for discovery without any adverse consequences.” (citations omitted)).

*5 The Court notes that, although not raised in connection with waiver, MicroGen claims that it “has constantly communicated that the reason for the delay was due to: (1) the 13+ month[s] of email correspondences requested by Plaintiffs and (2) the amount of people at MicroGen for which Plaintiffs seek information.” Resp. 4. This explanation is insufficient to establish good cause for several reasons. As an initial matter, this excuse at best explains a delay for only some of the RFP and none of the ROG because not all discovery requests relate to email correspondence. See Pls.’ App. 9–18. Second, the assertion is undermined by the fact that MicroGen did not raise undue burden or overbroad objections to RFP Nos. 1, 5, and 13–15, nor do counsels’ email correspondence support its claim. See id. at 3-5, 14-18, 29-34, 37-40. Moreover, “the proper course for a party who needs more time to properly respond to discovery requests is not to ignore the 30-day deadline (without a court order or agreement of the parties) or to serve general or boilerplate objections but rather to seek more time.” Lopez, 327 F.R.D. at 583.

Simply stated, MicroGen has not demonstrated good cause for failing to lodge timely objections. Neither has MicroGen shown any basis to conclude that Plaintiffs’ discovery requests are unduly burdensome or that enforcing the waiver would be excessively harsh. See Enron, 258 F.R.D. at 157. On this basis, standing alone, any objections in MicroGen's untimely responses are waived and MicroGen must provide full and complete answers and responses to the RFP and ROG as set forth in more detail below.

C. In the alternative, assuming MicroGen timely raised its objections, they substantively fail on the merits.

Even if the Court found that MicroGen timely asserted its objections (it did not), its improper and blanket objections are “meaningless” and “preserve[ ] nothing.” Heller v. City of Dallas, 303 F.R.D. 466, 483, 487 (N.D. Tex. 2014) (citations omitted).

To begin, MicroGen's use of the “subject to and without waiving” language in response to RFP Nos. 1, 5, 17, and ROG Nos. 1–3, 5–6, and 9 is improper. Pls.’ App. 9–12, 14–15, 18, 24–27. Judges in this district, as well as other courts in this circuit, have for almost a decade expressly held that this practice “is ‘manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.’ ” Heller, 303 F.R.D. at 486-87 (citation omitted); see Parker v. Bill Melton Trucking, Inc., No. 3:15-CV-2528-G-BK, 2017 WL 6554139, at *2 (N.D. Tex. Feb. 3, 2017) (observing that “the all-too-common practice of responding to an inquiry ‘subject to’ or ‘subject to and without waiving objection’ is confusing and disfavored”); see also Cicalese v. The Univ. of Tex. Med. Branch, No. 3:17-cv-00067, 2020 WL 10762300, at *1 (S.D. Tex. July 20, 2020) (holding that except for defendant's objections concerning attorney-client privilege and work-product, “all objections followed by the phrase ‘subject thereto’ [were] not ... preserved and [were therefore] waived” (emphasis omitted)); Holcombe v. Advanced Integration Tech., No. 4:17-CV-00522, 2018 WL 3819974, at *3 (E.D. Tex. Aug. 10, 2018) (concluding defendant waived its objections “by including ‘without waiving’ language in its responses” because such answers are “not supported by the federal rules and go[ ] against the purposes of a just, speedy, and inexpensive resolution”); Crum & Forster Specialty Ins. Co. v. Great W. Cas. Co., No. EP-15-cv-00325-DCG, 2016 WL 10459397, at *4 & n.7 (W.D. Tex. Dec. 28, 2016) (determining that plaintiff's responses to requests for production that included “subject to” language was “insufficient” under the federal rules). “[I]f the request is truly objectionable—that is, the information or documents sought are not properly discoverable under the Federal Rules—the responding party should stand on an objection so far as it goes,” instead of answering “subject to.” Heller, 303 F.R.D. at 487; accord Keycorp v. Holland, No. 3:16-cv-1948-D, 2016 WL 6277813, at *11 (N.D. Tex. Oct. 26, 2016). Indeed, objecting to an interrogatory on the grounds that it is vague or imposes an undue burden, but “then fully answering the interrogatory or promising production of all documents responsive to the request ‘subject to’ the vagueness and [burdensomeness] objection[s] betrays that the objection[s] w[ere] made reflexively and without a factual basis.” Heller, 303 F.R.D. at 488–89 (discussing “subject to” language in context of vague, ambiguous, and undue burden objections).

*6 Following the “subject to” language, MicroGen's responses to RFP Nos. 1, 5, and 17 then include the same general answer: “Defendant will produce non-privileged documents responsive to this Request, located after a good faith and reasonable search of documents and materials.” Pls.’ App. 14–15, 18. MicroGen gave a similar response to RFP Nos. 7, 13, 18, and 19: “Defendant will produce non-privileged documents responsive to this Request.” Id. at 16–18. To the extent these responses can be construed as objections, such “general objections ... are invalid” (Trombetta, 178 F. Supp. 3d at 507) because they leave the requesting party “in the dark as to whether there are responsive materials being withheld on the basis of particular objections.” New Belg. Brewing Co. v. Travis Cnty. Brewing Co. LLC, No. A–15–CV–452 LY, 2015 WL 13227999, at *2 (W.D. Tex. Dec. 18, 2015). “Objections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections.” Trombetta, 178 F. Supp. 3d at 507. Rule 34 further instructs that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). “In short, the[se] objections are the very sort of ‘boilerplate’ objections that ...Rule 34 intends to eliminate.” New Belg. Brewing Co., 2015 WL 13227999, at *2 (rejecting responses “stating that ‘subject to and without waiving its remaining general and specific objections, [plaintiff] will produce relevant, non-privileged documents responsive to this request in its possession, custody, or control to the extent that they exist’ ”).

Turning to ROG Nos. 5 and 6, MicroGen claims the requests are overbroad. Pls.’ App. 10–11, 25–26. But MicroGen has not otherwise supported its objection with an affidavit or specific information. See Heller, 303 F.R.D. at 490 (providing that a party must support its objection to an interrogatory “by submitting affidavits or offering evidence revealing the nature of the burden”); see also Lopez, 327 F.R.D. at 580 (explaining that, “as a general matter,” a party's failure to submit an affidavit or other “evidence revealing the nature of the burden ... makes such an unsupported objection nothing more than unsustainable boilerplate” (quoting Heller, 303 F.R.D. at 490)); Keycorp, 2016 WL 6277813, at *12 (finding defendant's objections to requests for production were “the sort of general, boilerplate objection that the [c]ourt has warned are improper,” where defendant “did not provide specific reasons for the ‘overly broad, overly burdensome and vague’ objections”).

MicroGen's relevancy objections to RFP Nos. 14, 15, and 17, and ROG Nos. 5–6 are similarly unsupported and thus unsustainable boilerplate. Pls.’ App. 10–11, 17–18, 25–26; see McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1484–85 (5th Cir. 1990) (holding that simply objecting to requests as “overly broad, burdensome, oppressive and irrelevant,” without showing “specifically how” each request “is not relevant or how each question is overly broad, burdensome or oppressive,” is inadequate to “voice a successful objection” (citations omitted)). Moreover, the Court finds the inquiries relevant to the claims and defenses in this matter. See Chung, 321 F.R.D. at 280 (“To be relevant under Rule 26(b)(1), a document or information need not, by itself, prove or disprove a claim or defense or have strong probative force or value.”).

Next, MicroGen improperly objects to RFP Nos. 14, 15, and 17, and ROG Nos. 5 and 6 given that “objections to discovery requests as seeking information that is not reasonably calculated to lead to the discovery of admissible evidence have no basis in the Federal Rules.” Mahalingam v. Wells Fargo Bank, N.A., No. 3:22-cv-1076-L, 2023 WL 3575645, at *6 (N.D. Tex. May 19, 2023). This is “because ‘[t]he 2015 amendments to Rule 26 deleted from the definition of relevance information that appears reasonably calculated to lead to the discovery of admissible evidence.’ ” Id. (quoting Lopez, 327 F.R.D. at 573).

Neither can MicroGen rely on its objections to ROG Nos. 1-3 and 9 because simply stating “relevant information can be derived from relevant/responsive communications that have been produced” is improper. See generally VeroBlue Farms USA Inc. v. Wulf, No. 3:19-cv-764-X, 2021 WL 5176839, at *27 (N.D. Tex. Nov. 8, 2021) (reasoning that “ ‘You already know the answer’ generally is not a proper objection or answer to a Rule 33 interrogatory” because “a party is not automatically precluded from propounding an interrogatory request to which he already knows the answer” and “[r]esponses by reference to another document ... are therefore insufficient” (citations omitted)).

*7 Finally, MicroGen did not expressly raise any objection to RFP Nos. 7, 13, 18, or 19. Pls.’ App. 16–18. It therefore cannot do so now, even if it had timely served its original discovery responses. See Lopez, 327 F.R.D. at 582 (“[E]ven where the responding party has timely served some objections ... waiver extends to any grounds not stated in a timely objection.”); Orchestratehr, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2015 WL 11120526, at *9 (N.D. Tex. July 15, 2015) (“Any objection that [defendant] may be newly raising in response to [p]laintiff's motion to compel is untimely and waived.”).

In sum, the Court OVERRULES MicroGen's objections to RFP Nos. 1, 5, 7, 13–15, 17–19, and ROG Nos. 1–3, 5–6, 9.

D. MicroGen's RFP responses that it has provided are insufficient and it must produce all responsive documents.

Plaintiffs generally contend MicroGen is withholding documents that are responsive to RFP Nos. 1, 5, 7, 13–15, and 17–19. Mot. 8–13. MicroGen denies this assertion, claiming it “has provided all relevant documents requested by Plaintiffs.” Resp. 3. MicroGen further insists it “has not withheld any documents” and has merely “objected to the relevancy of numerous documents.” Id. As set forth above, however, MicroGen has waived its objections or, in the alternative, failed to raise and properly support valid objections.

The Court must nevertheless “limit proposed discovery that it determines is not proportional to the needs of the case, even without a motion or timely objection.” Chung, 321 F.R.D. at 297; see FED. R. CIV. P. 26(b)(1), (b)(2)(C). Plaintiffs persuasively demonstrate that the requested discovery is both relevant and proportional, and MicroGen asserts nothing to undermine this conclusion. See generally Mot. 1–19; Resp. 1–6; Reply 1–7. At best, MicroGen appears to believe Plaintiffs’ discovery requests are not relevant because they fall “outside the scope of” Plaintiffs’ Complaint.[6] See Resp. 2. Not only does MicroGen ignore the counterclaims it has raised against Plaintiffs, but it completely misstates the appropriate scope of discovery. See FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....”). Thus, MicroGen does not even approach the standard necessary to justify its position. See Lopez, 327 F.R.D. at 583–84 (discussing discovery standards and burdens on a party resisting discovery); Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005) (“Relevancy is broadly construed, and a request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party.” (citation omitted)). For this reason, and for the reasons Plaintiffs articulate in their briefing, the Court finds the materials sought are relevant and proportional to the needs of the case.

*8 Accordingly, MicroGen is ORDERED to produce all documents responsive to RFP Nos. 1, 5, 7, 13–15, and 17–19 no later than seven days from the date of this Order.

Moreover, due to MicroGen's vague, conclusory, and arguably evasive briefing, the Court finds Plaintiffs are entitled to an unequivocal attestation under oath that MicroGen has produced all responsive documents in its possession, custody, and control, and that it is not withholding any responsive documents based on its objections or otherwise. Accordingly, together with its supplemental production, MicroGen is ORDERED to certify under oath that all responsive documents have been produced or, to the extent certain documents have not been produced, to certify the reason(s) the document is being withheld—e.g., it does not exist, MicroGen has no such document in its possession, privilege,[7] etc.

E. MicroGen is required to comply with the parties’ agreed ESI protocol.

Plaintiffs ask the Court to compel MicroGen “to produce documents in an appropriate format in accordance to the ESI protocol they agreed to.” Mot. 14. Plaintiffs explain that the parties agreed to produce each email “as a separate pdf file followed [by] its attachments and organized chronologically.” Id. at 13; see ECF No. 11, at 6–7 (Joint Report). Despite this agreement, “MicroGen has combined multiple email chains and documents into large, non-[optical character recognition] pdfs,” which then “cut off email chains mid-conversation and exclude[s] the attachments to emails.” Mot. 13. One or more emails also “contain[ ] significant distortions and” are partially “illegible.” Id. at 4 n. 10. Plaintiffs argue “MicroGen should be compelled to produce the missing attachments and provide legible copies of the documents that it has obscured.” Reply 5.

*9 “The Federal Rules of Civil Procedure and case law all emphasize that electronic discovery should be a party-driven process.” MC Asset Recovery, LLC v. Castex Energy, Inc., No. 4:07-CV-076-Y, 2012 WL 12919263, at *5 (N.D. Tex. Apr. 26, 2012) (alterations and citation omitted). Federal Rule of Civil Procedure 26(f), which requires that the parties confer to discuss various issues in the very early stages of a case, states that the parties must set forth in the discovery plan their views and proposals on “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.” FED. R. CIV. P. 26(f)(3)(C). Further, “Rule 34 of the Federal Rules of Civil Procedure governs the production of ESI.” Trmanini v. Ross Stores, Inc., No. SA-21-CV-00044-JKP, 2021 WL 5926128, at *2 (W.D. Tex. Dec. 15, 2021). In relevant part, it provides that “[u]nless otherwise stipulated ... (i) [a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request” and “(ii) [i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” FED. R. CIV. P. 34(b)(2)(E)(i)–(ii). The former “addresses the organization of a production and [the latter] specifically addresses the form for producing ESI.” McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 249 (N.D. Tex. 2016).

Here, the parties stipulated to both the manner in which they would produce emails and how the production would be organized. See ECF No. 11, at 6. Plaintiffs report that MicroGen has not complied with that agreement, and MicroGen does not dispute this assertion. See generally Resp. 1–6; see also Mot. 4 n.10, 13–14 (identifying other examples where MicroGen has not produced items in a reasonable, usable format). Accordingly, the Court ORDERS MicroGen to, no later than seven days from the date of this Order, produce ESI in accordance with the parties’ agreed protocol. MicroGen must ensure that its amended production includes previously omitted email attachments and legible copies of the illegible records already produced.

F. MicroGen must give verified, specific, and fully responsive answers to Plaintiffs’ interrogatories.

Plaintiffs take issue with MicroGen's Amended Interrogatory Answers for several reasons: (1) MicroGen's responses are not verified; (2) MicroGen impermissibly relies on Rule 33(d) without identifying specific documents; and (3) even to the extent MicroGen refers to specific documents in answering Nos. 1–3 and 9, its responses do not fully answer the question. Mot. 14–18.

The Federal Rules of Civil Procedure require the responding party to answer each interrogatory “separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3). That is, “[t]he person who makes the answers must sign them,” while “the attorney who objects must sign any objections.” FED. R. CIV. P. 33(b)(5). MicroGen's Amended Interrogatory Answers apparently do not include a signature page, meaning that the answers are not properly signed or verified. See Pls.’ App. 24-28 (reflecting MicroGen's counsel's signature but no signature of MicroGen's officer or agent under oath). MicroGen must cure this deficiency. See W.H. Wall Fam. Holdings LLLP v. CeloNova Biosciences, Inc., No. 1:18-CV-303-LY, 2020 WL 1644003, at *4 (W.D. Tex. Apr. 2, 2020) (requiring defendant to “comply with Rule 33(b)(3) by submitting verifications under oath with regard to all of its responses to the interrogatories in th[e] case”); Chung, 321 F.R.D. at 293 (observing that interrogatories must, to the extent objections are not raised, be answered under oath and therefore requiring respondent to “serve a verification or certification that complies with Rule 33(b)(3)’s ‘under oath’ requirement”).

To the extent MicroGen has not done so, the Court ORDERS MicroGen to, no later than seven days from the date of this Order, serve on Plaintiffs a verification or certification that complies with the Rule's “under oath” requirement. MicroGen must ensure that any future discovery responses are sufficiently verified.

*10 In response to ROG Nos. 5–6, MicroGen referred Plaintiffs to “documents responsive to Plaintiffs’ First Request for the Production of Documents and documents responsive to Rule 26(a) for the time period at issue as alleged in Plaintiffs’ Complaint.” Pls.’ App. 25–26. Similarly, MicroGen's answers to Nos. 1-3 and 9 point generally the entirety of its document production, followed by a reference to a Bates range that is a subset of its document production. Id. at 24–27.

Rule 33(d) provides as follows:

FED. R. CIV. P. 33(d) (emphasis added). Based on this rule, courts have required the party answering interrogatories to “specify the information that [the requesting party] should review in sufficient detail to enable [the requesting party] to locate and identify the information in the documents as readily as [the answering party] could.” McKinney/Pearl Rest., 2016 WL 2997744, at *9; see Chung, 321 F.R.D. at 282 (explaining that Rule 33(d) “generally requires an answering party ‘to point to specific documents, by name or bates number,’ and not pointing the requesting party generally to document productions” (quoting McKinney/Pearl Rest., 2016 WL 2997744, at *10)); Jacquez v. Compass Bank, No. EP-15-CV-26-RFC, 2015 WL 11529918, at *1 (W.D. Tex. Dec. 17, 2015) (admonishing the parties that responding to an interrogatory with “ ‘see documents produced’ is not an appropriate response”).

MicroGen's interrogatory answers that merely refer Plaintiffs to previously produced documents, without referencing specific Bates numbered pages—i.e., Nos. 5-6, and in part Nos. 1-3 and 9—violate both Rule 33(d) and case law in this and other districts. The Court ORDERS MicroGen to amend its responses no later than seven days from the date of this Order.

To the extent MicroGen's responses to Nos. 1-3 and 9 properly invokes Rule 33(d), the answers are nevertheless insufficient.

MicroGen's response to Nos. 1–3 reference three invoices from Dr. Allen to MicroGen (totaling $324,840.00) and two invoices from MicroGen to the State of Colorado (totaling $352,065.00). Pls.’ App. 24–25, 57–62. While the invoices are relevant to Nos. 1-3, they do not specifically identify or provide the “factual basis” underlying MicroGen's contentions that “due to Plaintiffs’ deceit, Defendant was not paid roughly $590,000 for its services,” that “Defendant was forced to pay more than $270,000 to compensate” Dr. Allen, or that “Plaintiff[s] [are] attempting to recover commissions for which Defendant was never paid.” Id. at 24–25; see Mot. 15. The invoices do not: (1) speak to Plaintiffs’ alleged deceit; (2) explain how MicroGen was forced to pay or in fact did pay Dr. Allen; and (3) relate to whether MicroGen was or was not compensated. See Mot. 11 n.36, 15–16.

Plaintiffs’ ROG No. 9 asks whether MicroGen paid Plaintiffs a $5 commission “for all COVID-19 tests that were performed under the Colorado Contract between December 1, 2021 and April 21, 2022,” and seeks accompanying explanation or supporting documentation. Pls.’ App. 27. MicroGen's response refers to weekly pay statements from early 2020 through April 2022. Id.; Mot. 17. As Plaintiffs explain, however, these statements reflect “the total commissions earned on all COVID-19 tests ... sold to any customer,” even though “MicroGen has the information to segregate out the commissions paid for the Colorado Contract specifically.” Mot. 17–18. Moreover, the response does not provide a definitive “yes” or “no” in response to Plaintiffs’ straightforward inquiry. See Pls.’ App. 27.

*11 The Court agrees that MicroGen's answers are incomplete. “[A]n 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); accord Mfrs. Collection Co., LLC v. Precision Airmotive, LLC, No. 3:12–cv–853–L, 2014 WL 2095367, at *3 (N.D. Tex. May 20, 2014); Krawczyk v. City of Dallas, No. 3:03–CV–0584D, 2004 WL 614842, at *7 (N.D. Tex. Feb. 27, 2004).

Accordingly, the Court ORDERS MicroGen to, no later than seven days from the date of this Order, provide full and complete answers to ROG Nos. 1–3 and 9.

G. The Court will consider whether an award of reasonable expenses under Rule 37(a)(5)(A) is appropriate.

Upon granting a motion to compel and after giving the non-movant an opportunity to be heard, Federal Rule of Civil Procedure 37(a)(5)(A) requires the Court to order payment of “the movant's reasonable expenses incurred in making the motion, including attorney's fees.” See FED. R. CIV. P. 37(a)(5)(A). The rule also provides three exceptions under which the Court must not award expenses. See FED. R. CIV. P. 37(a)(5)(A)(i)–(iii).

The Court directs MicroGen to, no later than fourteen days from the date of this Order, file a brief explaining why the Court should not award Plaintiffs’ reasonable fees and costs under Rule 37(a)(5)(A). Plaintiffs must file, no later than fourteen days from the date of this Order, an application that specifically seeks the reasonable costs and expenses, including attorney's fees, that they incurred in prosecuting the motion. Plaintiffs may file a response to MicroGen's brief no later than seven days from the filing of MicroGen's brief, and MicroGen may file any objections to Plaintiffs’ fee application no later than seven days from the filing of the application.

For the reasons set forth above, the Court GRANTS Plaintiffs’ Motion to Compel (ECF No. 19), as described in this Order.

SO ORDERED.