CELANESE CORPORATION, Plaintiff, v. CLARIANT CORPORATION and CLARIANT AG, Defendants No. 3:14-cv-4165-M United States District Court, N.D. Texas, Dallas Division Filed June 30, 2016 Horan, David L., United States Magistrate Judge ORDER GRANTING DEFENDANT'S SECOND MOTION TO COMPEL *1 Defendant Clariant Corporation (“Clariant”) has filed a Second Motion to Compel [Dkt. No. 40] (the “Second MTC”), seeking an order overruling the objections lodged by Plaintiff Celanese Corporation (“Celanese”) to Clariant's Request for Production Nos. 18, 19, and 22, and Interrogatory No. 16 and compelling Celanese to produce all responsive documents. See Dkt. No. 83. Chief Judge Barbara M.G. Lynn has referred the motion to the undersigned United States magistrate judge for determination. See Dkt. No. 85. Celanese responded, see Dkt. No. 86, and Clariant filed a reply, see Dkt. No. 89. For the reasons and to the extent explained below, the Court GRANTS Clariant's Second Motion to Compel [Dkt. No. 83]. Legal Standards 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 or answers against another party when the latter has failed to produce documents requested under Federal Rule of Civil Procedure 34 or to answer interrogatories under Federal Rule of Civil Procedure 33. 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 must show specifically how each discovery request is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). In response to a Rule 34 request, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” FED. R. CIV. P. 34(b)(2)(C). And, in response to an interrogatory under Rule 33, “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath”; “[t]he grounds for objecting to an interrogatory must be stated with specificity”; and “[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)(3)-(4). A party resisting discovery must show how the requested discovery was overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. See Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005); see also S.E.C. v. Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A party asserting undue burden typically must present an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.”). A party who has objected to a discovery request must, in response to a motion to compel, urge and argue in support of her objection to a request, and, if she does not, she waives the objection. See Dolquist v. Heartland Presbytery, 221 F.R.D. 564, 568 (D. Kan. 2004); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999). *2 Federal Rules of Civil Procedure Rules 26(b) and 26(c) have been amended, effective December 1, 2015. Rule 26(b)(1) now provides that, “[u]nless otherwise limited by court order, the scope of discovery is as follows: 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1). The amendments to Rules 26 and 34 govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, in all proceedings then pending. The Court finds that applying the standards of Rules 26 and 34, as amended, in resolving Clariant's Second MTC to be both just and practicable. Further, for the reasons the Court has recently explained, the Court concludes that the amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery discussed above. See Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 463-69 (N.D. Tex. 2015). Rather, just as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can – and must – limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit – and the court must do so even in the absence of a motion. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011). Thus, as amended, Rule 26(b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C). But a party seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address – insofar as that information is available to it – the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The party seeking discovery, to prevail on a motion to compel, may well need to make its own showing of many or all of the proportionality factors, including the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, and the importance of the discovery in resolving the issues, in opposition to the resisting party's showing. *3 And the party seeking discovery is required to comply with Rule 26(b)(1)'s proportionality limits on discovery requests; is subject to Federal Rule of Civil Procedure 26(g)(1)'s requirement to certify “that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: ... (B) with respect to a discovery request..., it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action”; and faces Rule 26(g)(3) sanctions “[i]f a certification violates this rule without substantial justification.” FED. R. CIV. P. 26(g)(1)(B), 26(g)(3); see generally Heller v. City of Dallas, 303 F.R.D. 466, 475-77, 493-95 (N.D. Tex. 2014). But the amendments to Rule 26(b) do not alter the basic allocation of the burden on the party resisting discovery to – in order to successfully resist a motion to compel – specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable. See McLeod, 894 F.2d at 1485; Heller, 303 F.R.D. at 483-93. Analysis Requests for Production Nos. 18, 19, & 22 After carefully considering the parties' briefing, the Court determines that Celanese's objections to Clariant's Requests for Production (“RFP”) Nos. 18, 19, and 22 – which Celanese does not press in opposition to the Second MTC and “subject to” which Celanese responded to these document requests – must be overruled. Celanese contends that the Second MTC as to these requests is or will be moot because of its supplemental document productions. Clariant disagrees. In any event, the Court determines that the Second MTC must be granted as to RFP Nos. 18, 19, and 22 and hereby orders that Celanese must produce, to the extent it has not already done so, all documents and electronically stored information that are in its possession, custody, or control and that are responsive to Clariant's RFP Nos. 18, 19, and 22 by July 11, 2016. Interrogatory No. 16 As to this interrogatory, Celanese again does not support its objections – which are hereby overruled – and only asserts that the request for information is premature until after attorneys' fees have been awarded post-judgment. The Court disagrees. Discovery is open now and is appropriate under Federal Rule of Civil Procedure 26(b)(1) on any claim or defense asserted. Celanese does not claim that this discovery is not relevant or is not proportional to the needs of the case, and the Court concludes that it is. The Court therefore orders Celanese to fully answer Clariant's Interrogatory No. 16 by July 11, 2016. Rule 37(a)(5) Award of Expenses. Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel is granted, or if the requested discovery is provided after the motion was filed, “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” except that “the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(A). *4 The Court determines that Clariant attempted in good faith to obtain the discovery at issue in its Second MTC without court action before filing. The Court will grant Celanese until July 21, 2016 to file a response to this order to explain why the Court should not require Celanese or its counsel to pay Clariant, as required by Rule 37(a)(5), the expenses, including attorneys' fees, that Clariant incurred in filing and briefing its Second MTC, including the reply in support thereof. In this response, Celanese should fully explain whether its nondisclosure, responses, or objections at issue were substantially justified and whether other circumstances make an award of expenses under Rule 37(a)(5) unjust. Clariant may file a reply in support of its request for an award of its reasonable expenses by August 4, 2016. The Court defers ruling on Clariant's request for an award of its reasonable expenses under Rule 37(a)(5) pending this additional briefing. Conclusion For the reasons and to the extent explained above, the Court GRANTS Clariant's Second Motion to Compel [Dkt. No. 83]. SO ORDERED.