*1 Currently pending before the Court is Plaintiff's Motion [22] to Compel Answers to Plaintiff's First Set of Interrogatories, Requests for Production of Documents, and Requests for Admissions, Directed to Defendant, Larson Design Group, Inc, filed December 20, 2023. This matter is pending before the undersigned on referral from the District Court. ECF No. 23. On December 27, 2023, the Court entered an Order setting deadlines and an oral argument/evidentiary hearing. ECF No. 24. In said Order, the Court set the hearing for January 11, 2024. Defendant moved to continue this hearing. ECF No. 26. On January 8, 2024, the Court entered an Order resetting the hearing for January 17, 2024. This matter has been fully briefed, and the hearing was held on January 17, 2024. After considering the arguments of the parties, the applicable law, and the Court file, the undersigned is satisfied that Plaintiff's Motion [22] should be granted.

I. Factual/Procedural History

This case arises out of the design and installation of an inground public swimming pool located in Wellsburg, Brooke County, West Virginia. ECF No. 1-1. According to the Complaint, Plaintiff contracted with Defendant, R&R Pools for the construction of the pool and contracted with Defendant, Larson Design Group for design services related to the construction of the aforementioned pool. Id. Plaintiff has asserted the following claims against Larson Design Group: breach of contract, negligence, breach of express warranty, and breach of implied warranty of fitness for a particular purpose. Id.

Plaintiff served its first set of discovery upon Larson Design Group (“Defendant”) on or about October 20, 2023. ECF No. 22. See also ECF No. 16. On or about November 20, 2023, Defendant served responses and objections to Plaintiff's discovery responses. ECF Nos. 22, 17, 19, 20. As part of these discovery answers, Defendant produced approximately 370,000 documents. ECF No. 22. See also e.g., ECF No. 22-3, p. 1 (Defendant refers Plaintiff to its project file at LDG-0000001-LDG-0370601).

On or about November 27, 2023, Plaintiff wrote to Defendant regarding certain alleged deficiencies in Defendant's discovery responses. ECF No. 22-5. On or about November 28, 2023, Defendant refused to supplement any of its responses, which included a refusal to organize and label them to correspond to the categories of the pertinent requests. ECF No. 22-6. On or about December 5, 2023, Plaintiff again wrote a letter to Defendant regarding alleged deficiencies in Defendant's discovery responses and requested that Defendant supplement its responses. ECF No. 22-7. Defendant did not respond to this letter. Plaintiff filed the instant Motion on December 20, 2023. ECF No. 22.

II. Applicable Law

Plaintiff makes its Motion pursuant to Fed. R. Civ. P. 37, and LR Civ P 37.02. Plaintiff seeks to compel answers to interrogatories, requests for production of documents, and requests for admissions. Consequently, Fed. R. Civ. P. 33, 34, and 36, and LR Civ P 26.04, 33.01, 34.01, and 36.01 are implicated by Plaintiff's Motion.

III. Discussion

*2 As an initial matter, Defendant argues that Plaintiff did not comply with the meet and confer requirement set forth in Fed. R. Civ. P. 37 and LR Civ P. 26.04 prior to filing the instant Motion, and that, as a result, Plaintiff's Motion should be denied. The Court is not persuaded by this argument. A review of the record demonstrates that Plaintiff made a good faith effort to resolve the discovery dispute. See ECF Nos. 22-5, 22-6, and 22-7. Defendant's attempts were either rebuffed or ignored. Id. See also ECF No. 22 at p. 2.

Defendant contends that Plaintiff failed to satisfy the meet and confer requirement because Plaintiff did not arrange an in-person meeting or a meeting by telephone. Given Defendant's responses to Plaintiff's written attempts to confer, it appears that there was no substantive need for an in-person or telephonic meeting. Notwithstanding, and assuming that an in-person and/or telephonic meeting was nevertheless required before Plaintiff filed the instant Motion, the Court would still find that Plaintiff's Motion should not be denied based on this alone. The failure to fulfill the meet and confer requirement does not result in the automatic denial of a motion to compel. Rather, the sanction for failing to conduct an in-person or telephonic meeting is denial of a request for expenses incurred in bringing the Motion. General Assurance of America, Inc. v. Arch Insurance Company, 2018 WL 4343413, at * 3 (S.W.W. Va. Sept. 11, 2018) (“failure to meet and confer does not automatically preclude the Court from ruling on the merits of a discovery motion.... [r]ather, the sanction for failing to meet and confer is the denial of a request for expenses incurred in making the motion, including attorneys fees”).[1] The Court will therefore consider the substance of Plaintiff's Motion to Compel.

Plaintiff argues that Defendant's responses to Plaintiff's Requests for Production of Documents and the accompanying document production do not comply with the applicable rules of procedure because there is no organization to the documents, and as such, forces Plaintiff to embark on a scavenger hunt through the documents to locate material responsive to Plaintiff's discovery requests. Defendant contends that the documents at issue, i.e., LDG-0000001-LDG-0370601, were produced in the format in which they were kept in the normal course of business, pursuant to Fed. R. Civ. P. 34(b)(2)(E). Defendant therefore maintains that it is not required to provide any summary or any further organization to the documents. The Court is not persuaded by Defendant's argument.

As was the case in Handy v. State Farm Mutual Automobile Insurance Company, 2016 WL 146530 (S.D.W. Va. Jan. 12, 2016), the Court finds it very unlikely that Defendant kept its project file, approximately 370,000 pages of documents, in the same manner as it was apparently produced to Plaintiff. In Handy, a discovery dispute arose between plaintiff, Kyle Handy, and the defendant, State Farm Mutual Automobile Insurance Company. Among the issues involved in the discovery dispute was Mr. Handy's contention that Old Republic “produced over 1,200 pages of documents without specifying which may be responsive to which request.” Handy, 2016 WL 146530, at * 1. Mr. Handy sought an Order requiring “Old Republic to identify by ‘Bates’ numbers which of the particular documents [were] responsive to the specific discovery request.” Id. at * 10. Old Republic argued that, inasmuch as the 1,200 pages of documents were produced as they were kept in the normal course of business, Old Republic was under no obligation to “organize and label them to correspond to the categories in the request.” Id. at * 11. The Court found that Old Republic did not sustain its burden of proving that the 1,200 pages of documents were produced as they were kept in the normal course of business. The Court noted that it was “very unlikely” that Old Republic kept the documents in the same manner as they were produced to plaintiff. In so finding, the Handy Court found similar the case of Pass & Seymour. Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 (N.D.N.Y. 2008) in which the plaintiff produced 405,367 pages of documents which were “devoid of any index to help illuminate the organizational regime utilized by [plaintiff]” and which the New York District Court found “[fell] short of meeting the obligations imposed under Rule 34(b)(2).” Handy, 2016 WL 146530, at * 12.

*3 The facts of Handy and Pass & Seymour are similar to those of the instant matter. As captured on the record, the approximately 370,000 pages of documents produced to Plaintiff by Defendant were not indexed, summarized, tabbed, or organized in any way. Actually, the evidence indicates that the documents are disorganized, with each document being unrelated to the document immediately after it in the production. As in Handy and Pass & Seymour, it is simply not reasonable to believe that Defendant kept approximately 370,000 documents in such disarray in the normal course of their business.

Defendant, as the producing party, bears the burden of demonstrating that the documents at issue were produced in the manner in which they were kept in the ordinary course of business. Handy, 2016 WL 146530, at * 12 (S.D.W. Va. Jan. 12, 2016). Defendant appended to its response brief an affidavit from Bradley Aurand, Senior Practice Manager Land Development, which states that LDG-0000001-LDG-0370601 constitutes Defendant's project file, which was “maintained by LDG in the usual course of LDG's business” and that it “was produced as it was kept in the usual course of LDG's business.” ECF No. 25-2. However, beyond this conclusory statement, Defendant provides no other evidence to prove that the project file was kept in such a disorganized fashion. Indeed, there are no details such as who within the company maintained the file; or whether the file was kept electronically or in hard copy only, or both. The affidavit does not even state whether Mr. Aurand was tasked with actually maintaining the project file at issue,[2] nor does it explain his connection, if any, to this project. There is nothing within the affidavit that demonstrates Mr. Aurand's personal knowledge with regard to this project or the project file itself. Without more, the affidavit from Mr. Aurand does not satisfy Defendant's burden of proving that the documents were produced in the same manner as they were kept in the normal course of business.

Because Defendant has not met its burden of establishing that it produced the approximately 370,000 documents as they were kept in the normal course of business, Defendant must organize, and label said documents to correspond with the categories in each request for production as required by Fed. R. Civ. P. 34(b)(2). Inasmuch as the documents have already been produced, Defendant is DIRECTED to amend its responses to Plaintiff's Requests for Production of Documents to identify by document number those documents which are responsive to each request.

During the hearing, Plaintiff identified as deficient Defendant's answers to the following Interrogatories: 6, 7, 9, 10, 11, and 12. For ease of reference, the Court will consider each Interrogatory and Answer, individually.[3]

*4 Inasmuch as Defendant answered this interrogatory by referring Plaintiff to documents, Defendant appears to have invoked Fed. R. Civ. P. 33(d) to answer this interrogatory. However, by referring Plaintiff to the entire project file, i.e., all 370,601 pages of it, Defendant failed to fully comply with R. 33(d). R. 33(d) mandates that the answering party specify the records that must be reviewed and specify them with sufficient detail to enable the interrogating party, here the Plaintiff, to locate and identify the subject documents as readily as the answering party, here Defendant. However, Defendant has made no such effort. Indeed, a review of Defendant's answer indicates that Defendant is not even sure if documents responsive to this Interrogatory exist: “information about any such services is located within LDG's project file.” ECF No. 22-4 at p. 3 (emphasis added). Defendant's answer is vague and non-committal, and simply refers Plaintiff to over 370,000 pages of documents. Such an answer does not comply with the spirit of the discovery rules, and specifically with R. 33(d). Defendant is therefore DIRECTED to amend this response.

Defendant again appears to have relied upon R. 33(d) to answer Interrogatory No. 7. However, by referring Defendant to over 370,000 pages of documents without specifying where within the 370,000 pages of documents the communications at issue can be found, Defendant has again failed to comply with the rule. Additionally, the Court would note that, again, Defendant has not committed to whether these communications even exist: “all such communications possessed by LDG, if any, are located in LDG's project file.” ECF No. 22-4 at p. 4 (emphasis added). In essence, Defendant has answered “We do not know if these documents exist. If they do, they're somewhere in those 370,000 pages.” Such a sentiment is not compliant with either the spirit or the letter of the federal discovery rules, and specifically R. 33(d). Defendant is therefore DIRECTED to amend this response.