RON LESLIE, Plaintiff, v. IQ DATA INTERNATIONAL, Defendant CIVIL ACTION NO. 1:22-cv-02304-VMC-RDC United States District Court, N.D. Georgia, Atlanta Division Filed June 01, 2023 Counsel Ralph S. Goldberg, Goldberg & Cuvillier, P.C., Tucker, GA, for Plaintiff. Ron Leslie, Atlanta, GA, Pro Se. Jill Rhodes Dunn, Matthew Nolan Foree, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendant. Cannon, Regina D., United States Magistrate Judge ORDER *1 Before the Court are Defendant IQ International's Emergency Motion for Sanctions, (Doc. 31), and Plaintiff Ron Leslie's Motion for Virtual Appearance, (Doc. 33). Following a teleconference with the parties, the undersigned DENIES both motions and ORDERS the parties to comply with the following instructions. On April 5, 2023, the undersigned held a teleconference with the parties regarding a discovery dispute that concerned Plaintiff's purportedly deficient written responses to interrogatories and production of documents. In preparation for that teleconference, the parties emailed to Chambers a joint consolidated discovery statement setting out the dispute, and Defense counsel attached the subject interrogatories and requests for production, as well as two good faith letters it sent to Plaintiff outlining why it believed the responses and production were deficient. During the teleconference, in response to the undersigned's request to summarize the present disputes, Defendant stated that it needed “to receive complete discovery—both written discovery and document production.” Defendant elaborated that Plaintiff's written responses produced in February 2023 were incomplete, and thus, it had sent two good faith letters, to which Plaintiff had not responded. Defendant requested Plaintiff provide responses and supplementation to the written discovery, as well as complete document production. Following Defendant's summary, the undersigned asked Plaintiff to state his position. Plaintiff responded that he believed that he had already produced the written discovery that Defendant wanted but would be able to produce it again in approximately two weeks. He further stated that he had no objection to continuing his deposition after the production. After hearing from Plaintiff, the undersigned asked Defendant whether it would agree to allow Plaintiff until the end of the month to “produce the written discovery and any other documents that needed to be produced.” Defendant agreed and further requested that Plaintiff Bates-label any produced documents, to which he agreed. At the conclusion of the teleconference, the parties appeared to agree that Plaintiff would produce the documents and written responses by April 30, 2023. On the same day following the teleconference, the undersigned entered an Order, (the “April 5 Order”), which provided in part that, “Plaintiff shall produce to Defendant the disputed written discovery, as well as provide Bates-stamped documents, on or before April 30, 2023.” (Doc. 29). On May 9, 2023, Defendant filed an emergency motion for sanctions arguing that Plaintiff failed to comply with the undersigned's April 5 Order. (Doc. 31). Defendant asserted that Plaintiff had not supplemented his written discovery responses and his document production was incomplete. Defendant requested the Court order Plaintiff to comply immediately and argued that sanctions were appropriate. In light of Defendant's allegations and the quickly approaching deadline for Plaintiff's deposition, on May 10, 2023, the undersigned entered an Order (the “May 10 Order”) granting Defendant's motion in part. (Doc. 32). Plaintiff was ordered to produce the disputed written discovery, as well as the Bates-stamped documents, as previously ordered or certify under oath that he had produced all such discovery to Defendant. The undersigned further ordered that Plaintiff's deposition was to take place within 10 days of his production of documents or certification that he had already done so and ordered him to respond to Defendant's motion. *2 In response, Plaintiff asserted that his client had produced all documents in his possession and counsel did not learn that there was a problem with the production until Defendant filed its motion. (Doc. 35). Following the undersigned's May 10 Order, Plaintiff's counsel learned that certain documents were missing because they were lost; missing medical records had been requested again; and counsel reviewed the production with his client, which led to the production of three additional documents. Plaintiff reported that all records in his possession had been produced. Additionally, Plaintiff asserted that his understanding of the Court's orders was that he was to produce the Bates-stamped documents and that no ruling had been made on the interrogatory responses. He did not recall discussing those responses at the teleconference. Finally, Plaintiff argued that sanctions were not appropriate because the attorneys have not met and conferred as required by the Local Rules. While briefing was taking place on Defendant's motion for emergency sanctions, Plaintiff filed a motion for virtual appearance.[1] (Doc. 33). Plaintiff asserted that he has mental and physical impairments such that he requires numerous accommodations that are only possible through a virtual deposition. Defendant opposed the request, explaining that Plaintiff's previous deposition was performed virtually and riddled with technical and logistical difficulties. (Doc. 36). Defendant also asserted that Plaintiff's counsel agreed that his client's continued deposition would occur in person to avoid the same difficulties. On May 31, 2023, the undersigned held a teleconference with the parties to address both pending motions. As for the motion for virtual deposition, Plaintiff proposed completing the deposition at his own counsel's office. Defendant responded that it would agree to any location and accommodation, as long as the deposition occurred in person. Plaintiff further requested that there be a time limit on the deposition, and the undersigned agreed a time limit was appropriate given his medical issues. As for the motion for sanctions, Defendant argued that the dispute regarding both the written discovery responses and documents was delineated in multiple documents, as well as the previous teleconference. Plaintiff responded that, to the best of his recollection, his interrogatory responses were not discussed during that teleconference. Further, he argued that Defendant still has not conferred with him regarding that issue. Defendant replied that, not only did it send Plaintiff a good faith letter addressing the interrogatories with no response, but it also attached the letter when emailing to the Court the parties' joint discovery statement. This discovery confusion is due to these parties' lack of communication, and two teleconferences with the undersigned have been insufficient to sort it out. While it appeared that the parties were on the same page immediately following the first teleconference, the activity in the last few weeks demonstrates they were not. The undersigned agrees that Plaintiff was advised of the interrogatory issue in multiple instances; however, the undersigned is deeply troubled that these parties have not yet met and conferred to work through this discovery issue. When the undersigned ordered Plaintiff to supplement his interrogatory responses, it was with the understanding that the parties both agreed that he would do so. It is disappointing that the parties were unable to discuss this misunderstanding amongst themselves before a motion for sanctions was filed. Counsel are required to confer, by telephone or in person, in good faith before bringing a discovery dispute to the Court. See Fed. R. Civ. P. 26(c) and 37(a)(1); LR 37.1(A), NDGa. The duty to confer is NOT satisfied by sending a written document, such as a letter, email, or fax, to the adversary, UNLESS repeated attempts to confer by telephone or in person are unsuccessful due to the conduct of the adversary. While the undersigned recognizes that Defendant attempted to confer with Plaintiff regarding this dispute before the teleconference on April 5, 2023, there is no indication that any attempts were made to confer following that conference. *3 At this point, the undersigned cannot make sense of the parties' dispute regarding the interrogatories, let alone make a ruling on whether Plaintiff's responses were deficient such that he needs to supplement them. Thus, the undersigned ORDERS the parties to meet and confer, either in person or on the phone, to address the subject interrogatory responses within ten (10) days of this Order. Specifically, the parties should discuss whether, how, and why Plaintiff's written discovery responses are deficient, as well as whether Plaintiff's latest production of documents affects those responses. If the parties are still unable to resolve this dispute amongst themselves after meeting and conferring in good faith, they may then file a joint consolidated discovery statement via CM/ECF outlining their positions on each of the interrogatory responses in dispute on or before June 15, 2023. The consolidated submission is not to exceed 10 pages. The statement should be formatted in a logical order, i.e., identify each item in dispute followed by a discussion from each of the parties setting forth an explanation of its respective position on the issue as follows: I. Identify Issue #1 A. Party A's Position B. Party B's Response C. Party A's Reply The parties are required to attach as an exhibit to the consolidated statement an excerpt of the relevant interrogatories and the disputed responses. The parties should not attach an entire copy of their interrogatories. No other exhibits are allowed without prior permission from the Court. The Court will determine whether the dispute can be resolved on the papers or whether a conference is necessary and will notify the parties accordingly. Additionally, it is the undersigned's understanding that Plaintiff has produced all relevant documents that are in his possession; has requested additional copies of medical records that were lost to produce them to Defendant; and will be unable to produce other documents that were also lost. While Plaintiff's failure to produce relevant evidence because it was lost may constitute sanctionable spoliation of evidence, the undersigned cannot compel him to produce documents he no longer has. See Gartrell v. J.J. Marshall & Assocs., Inc., No. 3:19-CV-442-J-32JBT, 2019 WL 9089583, at *2 (M.D. Fla. Dec. 10, 2019) (“[T]he Court cannot compel a party to produce documents that it does not have in its possession, custody, or control, or documents that do not exist[.]” (quotation marks and citation omitted)); Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009) (“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.... [S]poliation of critical evidence may warrant the imposition of sanctions such as exclusion of certain evidence or outright dismissal of the case.” (quotation marks and citations omitted)). Therefore, if Defendant believes sanctions based on spoliation of evidence are warranted here, it will have to file a motion for sanctions arguing in part that the absence of that evidence is due to Plaintiff acting in bad faith. See Austrum v. Fed. Cleaning Contractors, Inc., 149 F. Supp. 3d 1343, 1349 (S.D. Fla. 2016) (explaining that, in the spoliation context, “the bad faith factor requires a court to weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” (quotation marks and citation omitted)). Accordingly, because it appears that Plaintiff has produced all documents in his possession and the parties must confer regarding the dispute over Plaintiff's responses to the interrogatories, the undersigned finds that sanctions are not warranted at this time. Thus, the undersigned DENIES Defendant's motion, (Doc. 31), to the extent it requests sanctions. *4 Finally, Plaintiff's motion for virtual deposition is DENIED. (Doc. 33). Counsel both agreed that the previous virtual deposition was plagued with numerous difficulties. Accordingly, Plaintiff is ORDERED to appear IN PERSON for his deposition. Plaintiff's counsel has offered to hold the deposition in his office, and Defendant has assented to allowing for long breaks and any other reasonable accommodation needed to complete the deposition in person. The undersigned finds that these accommodations will be sufficient and trusts that counsel will work with Plaintiff to ensure he is as comfortable as reasonably possible. Further, as discussed at the teleconference, the deposition SHALL NOT last longer than four hours. If Plaintiff needs to be questioned further after those four hours expire, the parties will need to continue the deposition to another date. Plaintiff's deposition shall take place within thirty (30) days of this Order. IT IS SO ORDERED on this 1st day of June 2023. Footnotes [1] It appears that Plaintiff himself, and not his counsel, filed this motion. (See Doc. 33). The Local Rules provide that a party normally may not act on his own behalf when an attorney has already appeared on his behalf. LR 83.1(D)(2). Nevertheless, the Court addressed the relief requested in his motion with counsel for both parties during a teleconference, and thus, resolves the motion in this Order.