*1 Before the Court is Plaintiff The Hub Texas, LLC a/k/a/ The Hub Delaware, LLC's (Hub) Amended Motion to Compel.[1] ECF No. 39. Through the motion, Hub raises three areas of disagreement, including Defendant Arch Specialty Insurance Company's (Arch): (1) alleged failure to substantively respond to interrogatories; (2) failure to provide a privilege log; and (3) purported boilerplate objections and incomplete document production in response to non-party subpoenas. Id. at 1, 6. Along with its Response brief, Arch served amended interrogatory responses, as well as a privilege log. ECF Nos. 43, 43-1, 43-2, 43-3. For the reasons stated herein, the Court GRANTS in part and DENIES in part, without prejudice, Hub's Amended Motion to Compel.

Hub filed its original motion to compel on November 7, 2022,[2] ECF No. 31. Believing the circumstances described in the motion suggested that the parties could resolve most, if not all, their differences, the Court directed the parties to confer. ECF No. 35. In that order, the Court cautioned the parties “that if any matter ultimately submitted to the Court for resolution is substantially similar to an issue or question already decided” in two Northern District of Texas cases, the Court would “give significant weight to that fact in determining whether” the party's position “is substantially justified.” Id. at 2 (emphasis omitted).

As a result of their meeting, the parties were able to narrow, but not fully resolve, their differences. ECF No. 37. Specifically, Arch “agreed to amend its responses and objections to [Hub's] Requests for Production and Interrogatories” and also produced additional documents. Id. at 1–2. On November 18, 2022, Arch served Amended Answers and Objections to Plaintiff's First and Second Sets of Interrogatories. See id. Because some issues remained, however, Hub filed the instant motion. See ECF Nos. 38, 39; see also ECF No. 41 (setting an expedited briefing schedule and eliminating opportunity for reply brief).

Hub initially argues that “nearly every amended interrogatory response” impermissibly “refers [it] to ‘documents previously produced,’ ” Am. Mot. to Compel 3, ECF No. 39 [hereinafter Mot.]. In Hub's view, “[c]ase law is clear that responses like [Arch's] are not allowed under [Federal Rule of Civil Procedure] 33(d).” Id. Hub further asserts that Arch has utterly refused to answer certain interrogatories, including Plaintiff's First Set of Interrogatories (First ROG) Nos. 5, 13, and 14, as well as Plaintiff's Second Set of Interrogatories (Second ROG) Nos. 5, 6, 7, and 10. Id. at 4. The requests, Hub maintains, are relevant to its causes of action. Id. at 4–5.

*2 Next, Hub contends that “despite asserting privilege objections to nearly all of [its] requests for production and interrogatories,” Arch has failed to produce a privilege log as required by Rule 26 of the Federal Rules of Civil Procedure. Id. at 5. Finally, Hub takes issue with Arch's responses to Rule 45 nonparty subpoenas Hub served on Engle Martin & Associates (Engle Martin) and Unified Building Sciences, Inc. (UBS). Id. at 1–2.[3] Hub does not, however, provide any legal argument concerning these subpoenas. See id. at 1–6.

Based on the foregoing, Hub asks the Court to enter an order: “(1) compelling substantive interrogatory responses and request for production responses listed above; (2) compelling production of complete discovery responses to third parties Engle Martin and [UBS] without objection; and (3) [directing] production of a full privilege log.”[4] Id. at 6. Hub also asks the Court to award attorney's fees and costs in connection with its prosecution of the motion. Id.

In response, Arch first asserts that Hub served more than twenty-five interrogatories without leave of court, in violation of Rule 33(a). Def.'s Resp. to Pl.'s Am. Mot. to Compel 3, ECF No. 43 [hereinafter Resp.]. But Arch apparently does not seek specific relief in this regard. See id. at 3, 6.

Arch also attaches amended interrogatories, as well as a privilege log, to its Response, which Arch believes addresses the majority of the deficiencies alleged by Hub. Id. at 3–5; see ECF Nos. 43-1, 43-2, 43-3. In Arch's view, however, the privilege log was unnecessary because “counsel for [Arch] has informed counsel for [Hub] numerous times that the documents being withheld are based on attorney-client privilege.” Resp. 4. Moreover, as to Second ROG Nos. 5, 6, and 7, Arch “maintains its” relevancy objection, as well as its contention that the requests are “unreasonably cumulative.” Id. In Arch's view, questions concerning its relationships with third parties “have no bearing on the claims and/or defenses presented in this action.” Id.

Turning to the Engle Martin and UBS Rule 45 subpoenas, Arch alleges that Hub has not identified “the specific Rule 34 requests at issue nor explain[ed] why it contends [Arch's] responses are insufficient.” Id. at 5. Thus, the Court should deny Hub's Motion as to the subpoenas.[5] Id.

A. Legal Standard

*3 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. See 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, 592 (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.”). 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.” Firebirds Int'l, LLC v. Firebird Rest. Grp., LLC, No. 3:17-cv-2719-B, 2018 WL 3655574, at *7 (N.D. Tex. July 16, 2018); accord Chung, 325 F.R.D. at 591.

B. The claims and defenses in this action.

To properly determine the relevance of Hub's discovery requests, the Court must first examine the law applicable to the parties' claims and defenses. This case involves an insurance coverage dispute concerning commercial property owned by Hub. Am. Compl. 1–2, ECF No. 23. Hub contends that a storm caused significant hail and wind damage to the property for which it made an insurance claim to Arch, but Arch concluded the damages did not exceed Hub's deductible. Id. at 2–7. Thereafter, Hub filed suit asserting the following causes of action: (1) breach of contract; (2) violations of Texas Insurance Code § 541.060, including, inter alia, failing to attempt in good faith to effectuate a settlement, failing within a reasonable time to affirm/deny coverage, and refusing to pay Hub's claim without conducting a reasonable investigation; (3) violations of the Texas Deceptive Trade Practices Act (DTPA); and (4) breach of the duty of good faith and fair dealing. Id. at 7–16.

*4 As to Hub's extra-contractual tort claims, “Texas courts have clearly ruled that the[y] ... require the same predicate for recovery as bad faith causes of action in Texas.” Hall Arts Ctr. Off., LLC v. Hanover Ins. Co., 327 F. Supp. 3d 979, 999 (N.D. Tex. 2018) (quoting Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 460 (5th Cir. 1997)). “Plainly put, an insurer will not be faced with a tort suit for challenging a claim of coverage if there was any reasonable basis for denial of that coverage,” Higginbotham, 103 F.3d at 460. “In determining the reasonableness of an insurer's decision, a court reviews the facts that were available to the insurer at the time of denial,” Sustainable Modular Mgmt., Inc. v. Travelers Lloyds Ins. Co., No. 3:20-CV-1883-D, 2022 WL 2134022, at *16 (N.D. Tex. June 14, 2022).

Arch raises several affirmative defenses to Hub's claims, including that the damages to the property were: (1) “pre-existing and/or did not occur within the applicable [p]olicy period”; (2) caused by other conditions such as the continuous seepage of water, wear and tear, hidden or latent defects, and/or settling or expansion; and (3) “caused by or resulted from faulty, inadequate or defective design, ... workmanship, ... construction, ... or maintenance.” Answer to First Am. Compl. 15–17, ECF No. 24.

The Court now turns to the discovery disputes raised in Hub's Motion.

C. Arch's bare invocation of Rule 33(d) without directing Hub to specific documents is impermissible, but Arch has cured most of these deficiencies through its December 2022 amended responses.

Hub generally takes issue with Arch's interrogatory responses that do not refer Hub to specific documents but instead state that, in accordance with Rule 33(d), the information can be found in Arch's business records.[6] Mot. 3–4; see, e.g., Pl.'s Suppl. App. 58–59, 62–63, 67–68, ECF No. 40-1. In support, Hub cites to a Northern District of Texas case—McKinney/Pearl Restaurant Partners, 2016 WL 2997744, at *9 (quoting Rule 33(d)'s provisions). Mot. 3–4.

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 directing 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”).

Arch's November 18 interrogatory answers that merely referred Hub to previously produced documents, or documents produced in connection with the answers—i.e., First ROG Nos. 2, 4, 6, 11, 13, and 14 and Second ROG Nos. 1 and 3—violated both Rule 33(d) and case law In this and other districts. See Pl.'s Suppl. App. 58–63, 67–68.

As noted above, however, along with its Response to Hub's Motion, Arch has served amended answers to its November 18 interrogatory responses. ECF Nos. 43-1, 43-2. The amended answers removed general references to produced documents, and Arch now cites to relevant documents by bates number. See id.

Because it appears at this time Arch has cured its defective answers, but only after Hub filed the instant Motion to Compel, the Court GRANTS Hub's Motion as to the Rule 33(d) issue.[7] To the extent any interrogatory answer remains non-compliant with the Court's analysis above, Arch should amend its response no later than seven days from the date of this Order.

D. Arch's remaining unsupported, boilerplate objections to Hub's interrogatories are improper.

Hub also alleges that Arch has “flatly refuse[d] to answer numerous interrogatories,” including First ROG Nos. 5, 13, and 14 and Second ROG Nos. 5, 6, 7, 9, and 10. See Mot. 4; supra note 6. Arch similarly amended its answers to these interrogatories, which it served on Hub with Arch's December 21, 2022 Response to the Amended Motion to Compel[8] (ECF Nos. 43-1, 43-2, 43-3), and apparently believes that these modified responses resolve Hub's objections. Resp. 3. Nevertheless, Arch “maintains its [relevancy and unreasonably cumulative] objections” in regard to Second ROG Nos. 5, 6, and 7 (Resp. 3–4), and despite having purportedly addressed Hub's objections in this regard as to the other interrogatories, Arch has failed to remove the boilerplate objections from those responses.

*6 The Court will review Arch's answers/objections to First ROG Nos. 5, 13, and 14 and Second ROG Nos. 5, 6, 7, 9, and 10,[9] as well as its objections to First ROG No. 6 and Second ROG Nos. 1 and 3. Although Hub did not cite these interrogatories as containing non-responsive answers (see Mot. 4), Hub did generally assert that they are deficient. See id. at 3 (subheading entitled “Defendant's deficient amended interrogatory responses” (emphasis omitted)), 4 (citing Exhibits G and H—i.e., Arch's answers to the First and Second ROGs—in connection with its non-responsive argument).

First ROG No. 5 asks: “Describe how you determined to hire the persons or entities you sent to inspect the [p]roperty and identify the number of times you have hired said person or entity in the past to handle similar claims.” Def.'s Am. Ans. & Obj. to Pl.'s First Interrogs. 4, ECF No. 43-1 [hereinafter First Interrogs.]; see Pl.'s Suppl. App. 59. Arch objects on the following grounds: overbroad; relevancy; and proportionality. Id. Nevertheless, Arch partially answers the interrogatory, “[s]ubject to and without waiving the foregoing objections.” Id. (listing the names of the independent adjuster and consultant who inspected Hub's property but failing to answer “the number of times” those individuals have “handle[d] similar claims”).

Initially, the Court notes that Arch's use of the “subject to and without waiving” language is impermissible. Judges in this district, as well as other courts in this circuit, have consistently and 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 v. City of Dallas, 303 F.R.D. 466, 486–87 (N.D. Tex. 2014) (citation omitted) (Horan, M.J.); 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) (Toliver, M.J.) (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 plaintiffs 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 ... ‘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).

*7 Turning to Arch's objections, Arch contends that the interrogatory is overbroad, irrelevant, and not proportional to the needs of the case. First Interrogs. 4. Arch asserts that the requested information “is of low importance ..., particularly in light of the significant expense that would be required to respond,” and that information regarding its third-party adjusters/consultants “is unrelated to [Hub] ... or the parties' claims and defenses in this lawsuit.” Id.

As to Arch's contention that the interrogatory is overbroad and not proportional, Arch's partial answer to the question belies its objection. And Arch has not otherwise supported its objection with an affidavit or specific information. 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 Lopez v. Don Herring Ltd., 327 F.R.D. 567, 580 (N.D. Tex. 2018) (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”).

Arch's relevancy objection is similarly unsupported and therefore unsustainable. First Interrogs. 4. Moreover, the Court finds the question—which relates to the individuals that inspected Hub's property—is relevant to Hub's claims and Arch's defenses, including Hub's claims under the Texas Insurance Code and Arch's assertion that the damage was pre-existing. 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.”).

Thus, the Court OVERRULES Arch's objections to First ROG No. 5 and GRANTS Hub's Motion as to this interrogatory. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections and the “subject to” language—to First ROG No. 5 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

This interrogatory asks Arch to “[i]dentify all items on the [c]laim made the basis of this [I]awsuit to which [Arch] applied depreciation during the claims handling process, stating for each item the criteria used and the age of the item.” First Interrogs. 4; see Pl.'s Suppl. App. 60. Arch answered by objecting that the question “is unreasonably cumulative and duplicative of deposition testimony ... and documents previously produced by [Arch].” First Interrogs. 4. “Subject to these objections,” however, Arch refers Hub to specific bates-numbered documents. Id. at 4–5.

The Court concludes Arch's boilerplate objections should be overruled for the same reasons discussed in Section III.D.1 above. Specifically, Arch has not supported the objections with evidence, and Arch's substantive response contradicts the question's supposed issues. Thus, the Court OVERRULES Arch's objections to First ROG No. 6 and GRANTS Hub's Motion as to this interrogatory. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections and the “subject to” language—to First ROG No. 6 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

*8 First ROG No. 13 asks Arch to answer the following:

First Interrogs. 6; see Pl.'s Suppl. App. 62. Arch responded by first objecting that (1) the interrogatory's subparts “constitute separate interrogatories” and therefore exceed Rule 33(a)(1)'s twenty-five question limit, and (2) “it is vague, ambiguous, and fails to identify the information sought from [Arch] with reasonable particularity.” First Interrogs. 7. Arch then goes on to answer the question, however, “[s]ubject to and without waiving the foregoing objections.” Id.

Rule 33(a) provides that “[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” FED. R. CIV. P. 33(a)(1). The rule does not define what constitutes a subpart, but the committee notes provide guidance: “a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” Advisory Committee Notes to FED. R. CIV. P. 33(a) (1993 Amendment).

In support of its objection based on the number of interrogatories, Arch cites to Krawczyk v. City of Dallas, No. 3:03–CV–0584D, 2004 WL 614842 (N.D. Tex. Feb. 27, 2004). Resp. 3. In Krawczyk, the court observed that “[c]ourts have held that interrogatory subparts are to be counted as discrete subparts if they are not ‘logically or factually subsumed within and necessarily related to the primary question.’ ” Krawczyk, 2004 WL 614842, at *2 (quoting Kendall v. GES Exposition Servs., Inc., 174 F.R.D. 684, 686 (D. Nev. 1997)). “If the first question can be answered fully and completely without answering the second question, then the second question is totally independent of the first and not ‘factually subsumed within and necessarily related to the primary question.’ ” Id. (quoting Kendall, 174 F.R.D. at 686). But “a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” Yeager v. Corinthian Colls., Inc., No. 01–3122, 2002 WL 1976773, at *2 (E.D. La. Aug. 23, 2002) (quoting Williams v. Bd. of Cnty. Comm'rs of the Unified Gov't of Wyandotte Cnty., 192 F.R.D. 698, 701 (D. Kan. 2000)).

The Court need not reach the merits of Arch's numerosity objection. Rule 33(b) provides that a “responding party must serve its answers and any objections within 30 days after being served with the interrogatories.” FED. R. CIV. 33(b)(2) (emphasis added). “Any 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) (emphasis added).

*9 Arch served its original answers to the First ROGs on March 4 and amended answers November 18, 2022. Pl.'s Suppl. App. 64, 82. On September 15, 2022, Arch served its original answers to the Second ROGs and amended answers November 18.[10] Id. at 71, 90. In its original and amended answers to First ROG No. 13, Arch did not make a numerosity objection. Id. at 62, 78–79. While it is unclear precisely when Hub served its Second ROGs on Arch (see id. at 85–91), thus triggering Rule 33(b)(4)'s thirty-day time period, the Court need not resolve this question. In reviewing Arch's responses en toto, it is clear Arch did not raise the numerosity objection in any of its interrogatory responses. Pl.'s Suppl. App. 62.

Because Arch did not timely object to No. 13 on the basis that the subparts exceeded the twenty-five question limit (First Interrogs. 6–7), it has waived the objection.[11] See FED. R. CIV. P. 33(b)(4); In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”). The fact that Arch amended its answers, apparently after the parties attempted to resolve the discovery disputes without court intervention, does not alter the analysis, particularly where Arch has not demonstrated good cause for the failure to timely object in the first instance. See, e.g., Scott v. Mobilelink La., LLC, No. 0-826-SDD-SDJ, 2022 WL 3009111, at *6 (M.D. La. July 28, 2022) (holding that defendant waived interrogatory objections, where the objections were available at the time of its initial responses, but defendant failed to raise them and did not show good cause for such failure); TNA Austl. Pty Ltd. v. PM Techs., LLC, No. 3:17-cv-642-M, 2018 WL 2010277, at *4 (N.D. Tex. Apr. 30, 2018) (concluding defendant waived objection to interrogatory where it did “not specifically includ[e] it in its original response”); Talley v. Spillar, No. A–16–CV–670–LY–ML, 2017 WL 9288622, at *3 n.1 (W.D. Tex. Mar. 31, 2017) (providing that new objections raised in plaintiff's supplemental responses to interrogatories were untimely under Rule 33(b)(4) and therefore waived). Arch has therefore waived its objection by not timely raising it.[12]

The Court further finds Arch has waived the objection by substantively responding to the interrogatory, despite asserting that its answer is “subject to” the numerosity objection. See, e.g., Bevill v. City of Quitman, No. 4:19-cv-00406, 2022 WL 14318439, at *5 (E.D. Tex. Oct. 24, 2022) (holding defendant waived his objections to requests for production where “he answered ... with ‘subject to’ and ‘without waiving’ language” and “utilized boilerplate relevancy objections”); Heller, 303 F.R.D. at 488 (explaining that “the party should stand on its objection and provide no answer at all” rather than using “subject to” language).

*10 As to Arch's other objections (i.e., that the interrogatory is “vague, ambiguous, and fails to identify the information sought ... with reasonably particularity”), the Court concludes they should be overruled for the same reasons discussed in Section III.D.1 above. Specifically, Arch has not supported the objections with evidence, and Arch's substantive response contradicts the question's supposed flaws. Thus, the Court OVERRULES Arch's objections to First ROG No. 13 and GRANTS Hub's Motion as to this interrogatory. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections and the “subject to” language—to First ROG No. 13 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

First ROG No. 14 asks Arch to “describe in detail [its] reasoning for denying portions or all of [Hub's] claim.” First Interrogs. 7; see Pl.'s Suppl. App. 62. Arch's November 2022 interrogatory answer generally referred Hub to “documents being produced,” as well as Arch's “Answer and Affirmative Defenses to Plaintiffs Original Petition.” Pl.'s Suppl. App. 62–63. Arch's December 2022 interrogatory answer again initially refers Hub to Arch's Answer to Plaintiff's Amended Complaint, but then sets out a specific response and further refers Hub to certain documents by bates number. First Interrogs. 7–8.

As discussed above, Arch's reference to all documents produced is untenable. See supra Section III.C. Correspondingly, Arch's blanket citation to its Answer, without providing a substantive response, is impermissible. 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)); cf. Barnett v. Magellan Health, Inc., No. 17-133-RLB, 2018 WL 2470727, at *4 (M.D. La. June 1, 2018) (“Inquiry into the facts underlying an opponent's affirmative defenses and the application of law to the facts is within the scope of discovery.” (citation omitted)).

Nevertheless, Arch seems to have cured these deficiencies in its December 2022 amended answer. See First Interrogs. 7–8, Because it appears at this time Arch has cured its defective answers, but only after Hub filed the instant Amended Motion to Compel, the Court GRANTS Hub's Motion as to First ROG No. 14. To the extent the answer remains non-compliant with the Court's analysis above, Arch should amend its response no later than seven days from the date of this Order.

This question prompts Arch to “[i]dentify the name, address, and role of the person or persons who created the Underwriting documents and Reports produced by [Arch] and bates labeled: ARCH 000595-000597; ARCH 000624-000644.” Def.'s Am. Ans. & Obj. to Pl.'s Second Set of Interrogs. 2, ECF No. 43-2 [hereinafter Second Interrogs.]; see Pl.'s Suppl. App. 67. Arch objected that the term “ ‘Underwriting documents and Reports’ is vague and ambiguous because it fails to identify the information sought from [Arch] with reasonable particularity.” Second Interrogs. 2. Even so, Arch substantively responded to the question. Id.

Arch's answer to the question refutes its objection. The Court therefore OVERRULES Arch's objection and GRANTS Hub's Motion as to Second ROG No. 1. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objection—to Second ROG No. 1 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

*11 Second ROG No. 3 states, “Identify Jen Beltz's role and duties in connection with the [p]roperty and the Underwriting Reports listed at Interrogatory No. 1.” Id. at 3; see Pl.'s Suppl. App. 68. Arch responds by referring to Rule 33(d). Second Interrogs. 3. Couching that reference with “[s]ubject to and without waiving the foregoing objections,” Arch ostensibly answers the question. Id.

As discussed above, Arch's generic reference to Rule 33(d) is improper, as is Arch's use of the “subject to” language. See supra Section III.C, D.1. The Court therefore OVERRULES Arch's objection and GRANTS Hub's Motion as to Second ROG No. 3. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without reference to Rule 33(d), objections, and “subject to” language—to Second ROG No. 3 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

Second ROG No. 5 asks Arch to “[d]escribe the relationship between Arch Specialty Insurance Company and AmWINS and the length of time the two businesses have worked together.” Second Interrogs. 3; see Pl.'s Suppl. App. 68. Arch objects to the interrogatory on the following bases: overbroad; irrelevant; and not proportional. Second Interrogs. 3. “Subject to and without waiving the foregoing objections,” however, Arch partially responds that “AmWINS is a wholesale insurance brokerage firm.” Id.

For the reasons set forth in Section III.D.1 above, the Court OVERRULES Arch's boilerplate, unsupported objections and GRANTS Hub's Motion as to Second ROG No. 5. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections and the “subject to” language—to Second ROG No. 5 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

This interrogatory prompts Arch to “[d]escribe the relationship between Arch Specialty Insurance Company and Engle Martin ... and the length of time the two businesses have worked together.” Second Interrogs. 4; see Pl.'s Suppl. App. 68. Arch objected on grounds identical to those in No. 5: overbroad, irrelevant, and not proportional. Second Interrogs. 4. And similarly, Arch partially responded to the question by stating that, “[s]ubject to and without waiving” its objections, “Engle Martin ... is a third-party independent adjustment firm that [Arch] retains to assist in the adjustments of claims.” Id.

For the reasons set forth in Section III.D.1 above, the Court OVERRULES Arch's boilerplate, unsupported objections and GRANTS Hub's Motion as to Second ROG No. 6. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections and the “subject to” language—to Second ROG No. 6 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

Second ROG No. 7 states: “Please indicate whether Engle Martin ... is a ‘preferred vendor’ or vendor used in assisting with insurance claims. If the answer is yes, please describe what efforts Engle Martin ... had to undertake to become a vendor.” Second Interrogs. 4; see PL's Suppl. App. 69. Arch objects, asserting that the question is overbroad and seeks irrelevant information that is not proportional to the needs of the case. Second Interrogs. 4. Further, Arch objects “to the extent [the question] seeks irrelevant information of [Arch] and/or third-parties that is unrelated to [Hub], the [p]olicy, the [p]roperty, the [c]laim, or the parties' claims and defenses in this lawsuit.” Id.

*12 For the reasons set forth in Section III.D.1 above, the Court OVERRULES Arch's boilerplate, unsupported objections and GRANTS Hub's Motion as to Second ROG No. 7. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objections—to Second ROG No. 7 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

Second ROG No. 9 asks Arch to “[d]escribe how [it] determined the ‘reserve’ amount for [Hub's] [c]laim.” Second Interrogs. 5; Pl.'s Suppl. App. 69. Arch objects to the interrogatory as irrelevant and not “reasonably calculated to lead to the discovery of relevant information.” Second Interrogs. 5. Arch further states that “[t]he existence of a reserve does not establish or imply any admission of liability by an insurance carrier.” Id. “Subject to these objections,” however, Arch refers Hub to specific bates-numbered documents. Id.

Arch's statements concerning the information's purported use—i.e., that it will not establish admission of liability—is more properly raised at trial.[13] Moreover, for the reasons set forth in Section III.D.1 above, the Court OVERRULES Arch's boilerplate, unsupported objections and GRANTS Hub's Motion as to Second ROG No. 9. The Court ORDERS Arch to, no later than seven days from the date of this Order serve on Hub's counsel a complete answer—without objections and “subject to” language—to Second ROG No. 9 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

This interrogatory asks Arch to “[d]escribe what the ‘Relative Hazard Percentile’ metrics at ARCH 000647; 000648; and 000649 is based on....” Second Interrogs. 5; see Pl.'s Suppl. App. 70. Like many of its other answers, Arch objects that the question “calls for an interpretation of a report generated by a third-party, which is a document that speaks for itself,” but “[s]ubject to” that objection, Arch purports to answer the question. Second Interrogs. 5–6.

Thus, the Court OVERRULES Arch's objection to Second ROG No. 10 and GRANTS Hub's Motion as to this interrogatory. The Court ORDERS Arch to, no later than seven days from the date of this Order, serve on Hub's counsel a complete answer—without objection and the “subject to” language—to Second ROG No. 10 in compliance with Rule 33, supplying any additional information that it withheld based upon the overruled objections.

In addition to the foregoing, the Court ORDERS Arch to comply with Rule 33(b) in preparing its amended interrogatory responses. Rule 33(b)(1)(B) provides that “interrogatories must be answered ... by any officer or agent,” where the “party is a public or private corporation.” Moreover, “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3) (emphasis added). That is, “[t]he person who makes the answers [to the interrogatories] must sign them,” while “the attorney who objects must sign any objections.” FED. R. CIV. P. 33(b)(5). Arch's December 2022 interrogatory answers are not answered by its officer or agent, nor are they signed under oath. ECF Nos. 43-1, 43-2. Arch must cure these deficiencies. See FED. R. CIV. P. 33(b)(1)(B), (3), (5); 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 283, 293 (observing that interrogatories must, to the extent they are not objected to, 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).

E. Arch's initial refusal to provide a privilege log in support of its objections violates the Federal Rules and established case law.

*13 Hub contends that Arch “has still never produced any privilege log despite asserting privilege objections to nearly all of [its] requests for production and interrogatories.” Mot. 5 (citing applicable interrogatories and RFPs). In the face of Hub's Amended Motion to Compel, Arch has now served a privilege log (see ECF No. 43-3) but has not otherwise amended its responses or addressed Hub's RFP arguments. See Resp. 2 (“As [Hub's] Amended Motion to Compel does not re-assert its prior demands related to [Hub's] [RFPs], [Arch] presumes the issues have been resolved and will address the points raised in” the Motion.).

Rule 26 requires a party claiming a privilege to provide a log that “describe[s] the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected”—so that “other parties [can] assess the claim.” FED. R. CIV. P. 26(b)(5)(A); see Keycorp, 2016 WL 6277813, at *12 (“A privilege log must be produced for any documents, communications, or other materials withheld from production on the grounds of attorney-client privilege, work product, or other privilege, immunity, or protection.” (citing FED. R. CIV. P. 26(b)(5)); OrchestrateHR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2015 WL 11120526, at *9 (N.D. Tex. July 15, 2015) (same); Heller, 303 F.R.D. at 486 (“To comply with the requirements to support withholding any responsive document or information as privileged or protected work product,” a party must produce “a privilege log or equivalent document complying with [Rule] 26(b)(5)(A)'s requirements ... for any ... materials withheld from production on the grounds of attorney-client privilege, work product, or other privilege, immunity, or protection.”).

Because the privileges asserted—particularly the attorney-client privilege—are potentially of great import, the Court declines to find that Arch has waived any of the claimed privileges by failing to timely produce a privilege log.[14] See, e.g., Arya Risk Mgmt. Sys., Pvt. Ltd. v. Dufossat Cap. P.R., LLC, No. H-16-3595, 2017 WL 11635998, at *15 (S.D. Tex. Nov. 16, 2017) (“An inadequate or absent privilege log may result in waiver of the privilege, but the court has broad discretion in discovery matters and finds this is not an occasion for such a drastic measure.”); Janko v. Fresh Mkt., Inc., No. 13–648–RLB, 2015 WL 4656694, at *3 (M.D. La. Aug. 5, 2015) (“It is within the court's discretion to find a waiver of an asserted privilege for failing to timely produce a privilege log.”); OrchestrateHR, 2015 WL 11120526, at *9 (declining to find party waived privilege by failing to produce a privilege log, but requiring party to “produce a proper privilege log”); see also Pub. Serv. Co. of N.H. v. Portland Nat. Gas, 218 F.R.D. 361, 363–64 (D. N.H. 2003) (reasoning that a party's failure to comply with Rule 26(b)(5) does not result in automatic waiver of the asserted privilege but instead “should be enforced under Rule 37” so to avoid an unnecessarily harsh result).

But Arch supplied a privilege log only after Hub filed its Motion. The Court therefore GRANTS Hub's Motion to the extent it requests Arch to produce a privilege log. Arch must ensure that its log generally complies with Rule 26 and the case law in this circuit concerning the use of a privilege log, and specifically as it relates to Arch's corresponding privilege objections asserted in its RFP responses. Should Arch determine additional revisions are required, it must serve an amended privilege log and/or RFP answers on Hub's counsel no later than seven days from the date of this Order.

F. Hub has failed to support its Motion as to Arch's objections regarding the Rule 45 subpoenas served on Engle Martin and UBS.

*14 Seemingly as an afterthought, Hub references two Rule 45 subpoenas it served on Engle Martin and UBS and to which Arch—not the nonparties—has apparently objected. See Mot. 1–2, 6. Other than mentioning this issue in its “Preliminary Statement” and citing to the disputed discovery responses, Hub does not identify the responses it finds deficient nor does it provide the Court with any legal authority or argument in support of the relief it seeks. Id. at 1–3 (citing ECF No. 33-1, at 47, 54).[15] Nevertheless, Hub asks the Court to “compel[ ] production of complete discovery responses to third parties Engle Martin and [UBS] without objection.” Id. at 6. In Arch's view, Hub's failure to identify the “requests at issue [and] explain why it contends such response[s] are insufficient” necessitates denial of Hub's Motion in this regard. Resp. 5. As explained below, the Court must deny Hub's Motion as to the Rule 45 subpoenas issue because it has failed to sufficiently brief the issue and, more fundamentally, it is unclear whether this Court is the appropriate venue for deciding this discovery dispute.

Rule 45(d) provides that when “[a] person commanded to produce documents” or permit inspection objects to doing so, “the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” FED. R. CIV. P. 45(d)(2)(B)(i) (emphasis added). Hub did not provide copies of the Rule 45 subpoenas it served on Engle Martin and UBS, which would reflect the location of compliance. See ECF No. 33-1. Hub's failure to demonstrate that this Court has authority to enforce compliance renders the Court unable to determine its jurisdiction to address any production deficiencies concerning the subpoenas. See, e.g., FED. R. CIV. P. 45(d)(3); MetroPCS v. Thomas, 327 F.R.D. 600, 606 (N.D. Tex. 2018) (“Because the [s]ubpoena requires compliance in Dallas, the [m]otion to [q]uash and [m]otion to [c]ompel are properly filed in this Court, which, as required by Rule 45(d), is the court in the district where compliance with the [s]ubpoenas is required.”); CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709–10 (N.D. Tex. 2017) (“At the time of deciding where such a motion must be filed, then, the place named in the subpoena as required by Rule 45(a)(1)(A)(iii) is the place ‘where compliance is required.’ ”). The Court therefore DENIES without prejudice Hub's Motion as to the Rule 45 subpoenas served on Engle Martin and UBS.[16]

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

Hub asks the Court to award “reasonable and necessary fees and costs it has incurred related” to its Motion. Mot. 6. Under Rule 37(a)(5), where a court grants in part and denies in part a motion to compel, such as here, “the court ... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” FED. R. CIV. P. 37(a)(5)(C).

*15 Given the circumstances surrounding Hub's Rule 45 subpoenas request and the Court's ruling, the Court concludes that the parties shall bear their own expenses, including attorney's fees, in connection with that request. As to Hub's other requests though—the interrogatories and privilege log—the Court permits Arch, no later than fourteen days from the date of this Order, to file a brief explaining why the Court should not award Hub's reasonable fees and costs against Arch and/or its counsel. Hub 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 it incurred in prosecuting the Amended Motion to Compel. Hub may file a reply to Arch's brief no later than seven days from the filing of Arch's brief, and Arch may file any objections to Hub's fee application no later than seven days from the filing of the application.

“Whether or not the Court determines that an award of expenses is appropriate, failing to follow the Federal Rules' and case law's requirements for specificity in objecting and responding and answering, ... correspondingly answering or responding ‘subject to’ and ‘without waiving’ those objections,” and refusing to supply a privilege log, “is improper ... as ... many other judges in this circuit and elsewhere have now made clear for several years.” State Auto. Mut. Ins. Co. v. Freehold Mgmt., Inc., No. 3:16-cv-2255-L, 2018 WL 3548866, at *13 (N.D. Tex. July 24, 2018) (citing numerous cases in support). As stated in its order requiring the parties to confer, the Court will give significant weight to Arch's failure to comply with the Federal Rules and established case law in determining any award under Rule 37(a)(5)(C). ECF No. 35, at 2.

For the reasons set forth above, the Court GRANTS in part and DENIES in part, without prejudice, Hub's Amended Motion to Compel (ECF No. 39), as described in this Order. Hub's original Motion to Compel (ECF No. 31) is hereby DENIED as moot.

SO ORDERED.