BookXchange FL, LLC, Plaintiff, v. Book Runners, LLC, Tobias Kaplan, and Andrew McCotter, Defendants No. 19 C 506 United States District Court, N.D. Illinois, Eastern Division Filed: December 07, 2020 Counsel Michael R. Friedman, Cameron Matthew Nelson, Greenberg Traurig LLP, Chicago, IL, for Plaintiff. Mark Edward Wilson, Bradley Paul Nelson, Fisher Broyles LLP, Chicago, IL, Joseph Schramm, III, FisherBroyles, LLP, Princeton, NJ, for Defendants. Finnegan, Sheila, United States Magistrate Judge ORDER On August 31, 2020, Defendants filed their Motion for Discovery Sanctions because, despite serving an answer to Interrogatory No. 9 on June 17, 2020, Plaintiff did not provide a verification of that answer in violation of Federal Rule of Civil Procedure 33(b). (Doc. 180, at 2; Doc. 180-2). Defendants sought an order (a) stating that Plaintiff's unverified answer to Interrogatory No. 9 is binding, (b) barring Plaintiff from submitting evidence or making arguments inconsistent with that answer, and (c) awarding Defendants the “costs and expenses pertaining to the issues in this motion.” (Doc. 180, at 6). On September 15, 2020 (the same day as the filing of its response), Plaintiff served a verified amended answer to Interrogatory No. 9. (Doc. 183, at 4-5; Doc. 183-4; Doc. 184, at 1-2). For reasons set forth below, Defendants' Motion for Discovery Sanctions is granted in part and denied as moot in part. BACKGROUND In February 2019, Defendants served Interrogatory No. 9, asking: For each product for which you claim to have lost sales, lost sales opportunities, lost restocking opportunities, or lost profits as a result of Defendants' conduct after August 31, 2018, identify and describe with full particularity: the product, your amounts of inventory for the product on each day from August 31, 2018 to the present, your inventory cost on each day, your sales of each item sold, what additional sales you would have made on which days at what prices but for Defendants' conduct, what restocking opportunities you lost, the value to you of those restocking opportunities, and how you determined those values. (Doc. 180-1, at 7, 9). Defendants assert that “[t]his interrogatory goes to the heart of Plaintiff's claims against Book Runners” by seeking information about the alleged harm from Defendants' orders that “locked up” Plaintiff's inventory. (Doc. 180, at 1). According to Defendants, Plaintiff first served an answer stating that, subject to objections, it would refer to documents under Rule 33(d) but identified no specific documents (Defendants do not attach a copy of this answer), and Plaintiff produced no responsive documents. (Id. at 2, 4). After the parties met and conferred on this issue, on June 17, 2020, Plaintiff then served the following supplemental answer (subject to various objections): ... while daily inventory is available in real time, [BookXchange] is unable [sic] determine daily inventory information on a historical basis. Determining daily inventory at some point in the past is complex; it would include both books that were in BookXchange's own warehouse as well as those in any one of many Amazon warehouses on a specific date. The Amazon portion of this equation is especially difficult to determine on a historical basis, since at any given minute Amazon's computer systems might add or subtract items from its electronic inventory count, which may in turn differ from physical inventory count. Despite BookXchange's best efforts to review the historical inventory information, BookXchange cannot work out how to identify historical inventory data for specific dates. That said, BookXchange was monitoring the specific transactions at issue in this case in real time, and in each instance complained of, BookXchange had inventory available to sell. (Doc. 180-2, at 7-8; Doc. 180, at 2). This answer was not verified by the client. (Id.). After Plaintiff served this unverified interrogatory answer on June 17, 2020, Defendants repeatedly sought the verification, including: by email on June 30, 2020, July 30, 2020, August 12, 2020, August 24, 2020, and August 31, 2020; and in telephone conferences on July 22, 2020 and August 25, 2020. (Doc. 180, at 2, citing Docs. 180-4, 180-5; Doc. 180-8). Defendants set forth in detail how, despite repeated assurances, Plaintiff repeatedly failed to provide the verification. During a call on July 22, 2020, counsel said Plaintiff would serve the verification “soon.” (Doc. 180-5, at 2). On July 31, 2020, Plaintiff's counsel emailed that he was “awaiting receipt [of] the signed verification and expect[ed] to produce that shortly.” (Id. at 4). On August 13, 2020, in response to Defendants' email requesting that Plaintiff “suggest a date” for compliance, Plaintiff's counsel “propose[d] getting this verification by the end of next week.” (Id. at 6-7). On August 21, 2020, Plaintiff's counsel emailed that he “never heard back from you that this date was acceptable” but was “working to get the verification executed, and expect[ed] to have it early next week.” (Id. at 9). On August 24, 2020, Defendants' counsel emailed that they would not file a motion if Plaintiff provided the verification by August 25, 2020 at 5:00 p.m. (Id. at 8). In a call “in the late afternoon” on August 25, 2020, Plaintiff's counsel “promised” to provide the verification that evening or the following day and wanted to make sure no motion would be filed. (Id. at 2-3). In a follow-up email on August 25, 2020, Plaintiff's counsel stated that his client had “been addressing a number of COVID 19 related issue[s] that had temporarily taken precedence which [he] was not in a position to discuss earlier” but he now “expect[ed] to receive [the verification] sometime tonight or tomorrow” and would “send it as soon as [he] receive[d] it.” (Id. at 8). On August 31, 2020, Plaintiff's counsel emailed that he was “still working on getting the document from the client, due to the same COVID 19 related issues” and “fully expect[ed] to produce it in the next few days.” (Doc. 180-8, at 2-3). Later that day, Plaintiff's counsel answered defense counsel's “questions for [sic] related to Interrogatory No. 9” by (in part) confirming that “we will produce in the next few days, but no later than September 7[, 2020]” and explaining that “BookXchange thinks it has found a new way to compile an[d] analyze historical inventory data, but needs a few days to investigate whether this method will work, and how accurate it is.” (Id. at 2). Plaintiff's counsel also “[c]onfirmed” their agreement that Defendants' counsel had met its meet and confer obligations under Rule 37 and Local Rule 37.2. (Id.) Defendants filed this motion for sanctions the same day. (Doc. 180). On September 15, 2020 (the same day as the filing of its response), Plaintiff served a verified amended answer to Interrogatory No. 9 (subject to various objections). (Doc. 183, at 5; Doc. 183-4, at 7-8). Defendants describe this answer as “identical” to the unverified answer except that a final sentence was added, stating: “BookXchange is able to provide monthly inventory averages on a historical basis, and has produced BX000933 which reflects that information.” (Doc. 184, at 2; Doc. 183, at 5; Doc. 180-2, at 7-8; Doc. 183-4, at 7-8) Defendants dismiss the significance of this addition, which provides information “about monthly inventory averages that was not asked for in the interrogatory.” (Doc. 184, at 2). Because Plaintiff did not belatedly make the significant changes that Defendants feared (and led them to move the Court to declare the original answer “binding” and to bar evidence or argument inconsistent with that answer), the only remaining issue is whether Defendants are entitled to reasonable expenses, including attorneys' fees, in connection with this motion. The Court concludes that they are. Rule 33 requires (in relevant part) that: answers and objections to interrogatories be served within 30 days; each interrogatory be answered “under oath[;]” and “the person who makes the answers” signs them. FED. R. CIV. P. 33(b)(2), (3), (5). Rule 37 provides for the imposition of sanctions, specifically an award of reasonable expenses including attorneys' fees, where a party fails to serve answers to interrogatories. See FED. R. CIV. P. 37(d)(1)(A)(ii), (d)(1)(B) (the court “may on motion order sanctions if ... a party, after being properly served with interrogatories under Rule 33 ... fails to serve its answers ...” and the “motion for sanctions for failing to answer ... must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer ... without court action.”); FED. R. CIV. P. 37(d)(3) (“ ... the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”). Rule 37 also provides for the imposition of such sanctions where a party fails to supplement or correct its interrogatory answers. FED. R. CIV. P. 37(c)(1) (“If a party fails to provide information ... as required by Rule 26 ... (e)”—which requires a party to “supplement or correct” its interrogatory answers—“ the court, on motion and after giving an opportunity to be heard ... may order payment of the reasonable expenses, including attorney's fees, caused by the failure”). It is undisputed that Plaintiff failed to timely serve a verified interrogatory answer pursuant to Rule 33. After months of delay, incredibly, Plaintiff criticizes Defendants for “rush[ing]” to file this motion without engaging in “a good-faith meet and confer” (Doc. 183, at 1)—despite Defendants' undisputed extensive efforts to resolve this issue without the Court's involvement and notwithstanding Plaintiff's express agreement that Defendants had satisfied their meet and confer obligations. (Doc. 180-8, at 2). To the Court's surprise, Plaintiff attempts to minimize its significant delay as “[e]xcusable” for various reasons for which Plaintiff supplies scant details and no support. (Doc. 183, at 3-6). Simply put, there is no excuse for Plaintiff's conduct. Plaintiff tacitly acknowledges that it served its unverified interrogatory answer on June 17, 2020, apparently without first getting all the necessary facts from its client. (See Doc. 183, at 3-6). If Plaintiff needed additional time to do so (due to personnel issues, problems related to the COVID-19 pandemic, or anything else), it was incumbent on Plaintiff to request more time from Defendants and, if no agreement could be reached, to seek an extension of time from the Court. See FED. R. CIV. P. 33(b)(2) (“A shorter or longer time” to respond to interrogatories “may be stipulated to under Rule 29 or be ordered by the court.”). Plaintiff did neither. Instead, Plaintiff provided an unsupported and unverified answer, gave Defendants the runaround for nearly three months by promising to soon provide the verification, and ultimately shifted the burden to Defendants to file this motion. Only then—two weeks after the motion was filed and on the due date for Plaintiff's response—was the long overdue and verified interrogatory answer finally provided. Defendants should not have had to incur the expense of this motion to gain Plaintiff's compliance with its discovery obligations.[1] CONCLUSION For all of the foregoing reasons, Defendants' Motion for Discovery Sanctions (Doc. 180) is granted in part and denied as moot in part. The motion is granted as to Defendants' request for reasonable expenses, including attorneys' fees, incurred in bringing this motion. Defendants are to inform Plaintiff of the amount sought, and the parties are then to confer. If they are unable to reach agreement on the amount to be paid and deadline to do so, Defendants may file a fee petition seeking an award of the specific sum (with supporting documentation), and Plaintiff will be allowed to respond. Because Plaintiff has now served a verified answer to Interrogatory No. 9, the motion is denied as moot in all other respects. ENTER: Footnotes [1] Plaintiff devotes much of its response to arguing that “[d]iscovery is nowhere near complete in this case.” (Doc. 183, at 1-3, 5-7) (emphasis in original). That does not excuse the violation of the discovery rules. Moreover, Plaintiff's position is contrary to this Court's order that fact discovery closed on August 31, 2020 with the exception of “any discovery that cannot proceed until after the Court has ruled on pending discovery motions” for which the “Court will set a deadline after ruling on the motions.” (Doc. 170). Plaintiff does not contend that it could not answer Interrogatory No. 9 until after a ruling on pending discovery motions.