On August 28, 2007, AMD filed a Motion to Compel and Motion for Sanctions arguing that U & I failed to produce documents covered by the court's July 13, 2007 order. (Dkt. 41) AMD alleged that U & I failed to produce documents, including 2004 e-mails, attachments to all e-mails, executed copies of agreements, registration documents, and documents submitted to government agencies. (Dkt. 41 at 4)
In response, U & I alleged that its employees were “subject to prior international travel requirements that slowed the process and the server problems associated with 2004 documents further slowed this production.” (Dkt. 42 at 3) Additionally, U & I contended *670 that “confusion, software formatting, language barriers and understanding of the U.S. legal system” delayed document production. (Id.
) Further, U & I's counsel stated that he received e-mails from his client regarding the production of documents but was unable to open the e-mails, which delayed the production process. (Id.
) As of September 12, 2007, U & I insisted that it had produced all responsive documents. (Id.
at 5) Due to a computer error following a server change that occurred prior to this litigation, U & I contended that all 2004 e-mails were “unloadable,” and therefore, could not be produced. (Dkt. 42 at 6-9). U & I represented that it had no hard copies of any 2004 e-mails and no internal or external correspondence from 2004 to produce. (Dkt. 68; Dkt. 69 at 9) U & I agreed to supplement its discovery responses for evidentiary purposes to clarify its position that it produced all responsive documents under its control. (Dkt. 69 at 9)
By order of November 26, 2007, the court directed the parties to file a stipulation regarding the production of e-mail attachments and ordered U & I to file an amended discovery response. (Dkt. 69 at 9) The court deferred ruling on AMD's motion to compel inspection of the hard drives of U & I's computers pending the production of 2004 e-mails by a non-party, Zimmer Spine, Inc. (“Zimmer Spine”). (Dkt. 69 at 10)
Regarding AMD's request for sanctions, the court found that U & I did not inform AMD that its 2004 e-mails were unobtainable in its discovery responses. (Dkt. 69 at 10) Instead, U & I's counsel waited until after the time period had passed for it to comply with the court's July 13, 2007 order to advise AMD of his client's computer problems. (Id.
) Without more information as to how the error occurred or what steps were taken to retrieve the information, it could not evaluate U & I's conclusory statement that U & I's deletion of all 2004 e-mails was made in good faith and any noncompliance was harmless. (Id.
) Consequently, the November 26, 2007 order directed U & I to submit the affidavits of U & I's corporate representative detailing why the e-mails were “unloadable” and the efforts the company had undertaken to retrieve the information. (Id.
3Under Rule 34(a), a party may request the responding party to produce and permit the requesting party to inspect and copy any designated documents. Fed.R.Civ.P. 34(a). Rule 34 does not grant unrestricted access to a respondent's database compilations. In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir.2003). Instead, Rule 34(a) allows a requesting party to inspect and to copy the product (whether it is a document, disk or other device) resulting from the respondent's translation of the data into a reasonably usable form. Id. at 1316-1317. If there is improper conduct on the part of the responding party, the requesting party may need to check the data compilation. Id. at 1317. However, to gain direct access to the respondent's databases, the court must make a factual finding of some non-compliance with discovery rules and protect respondent with respect to preservation of his records, confidentiality of non-discoverable matters and costs. Id.
Pursuant to Rule 26, the parties are expected to confer and discuss any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. Fed.R.Civ.P. 26(f) advisory committee's notes (2006). It may be important for the parties to discuss their systems and important for counsel to become familiar with those systems before conferring about electronically stored information. Id.
On a motion to compel, a responding party need not provide discovery of electronically stored information from sources that the responding party identifies as not reasonably accessible because of undue burden or cost. Fed.R.Civ.P. 26(b)(2)(B). The burden is on the responding party to make this showing; if the responding party succeeds, the court may nevertheless order discovery from such sources if the requesting party shows good cause. Fed.R.Civ.P. 26(b)(2)(C). In deciding whether to permit discovery of electronically stored information, a court will consider whether the burden or expense of the proposed discovery outweighs the likely benefit, taking into account the needs of the case, the amount of in controversy, the parties' resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues. Id. A court may also specify conditions for the discovery of electronically stored information. Fed.R.Civ.P. 26(b)(2)(B).
4If a party disobeys a court order requiring production of documents, the court may enter such orders as are just, including the sanctions enumerated in Rule 37(b)(2). Sanctions may be granted against a party under Rule 37 if there is non-compliance with a court order, notwithstanding a lack of wilfulness or bad faith, although such factors are relevant to the sanctions imposed. In re Seroquel Prods., Liab. Litig., 244 F.R.D. 650, 656 (M.D.Fla.2007). For purposes of Rule 37, an incomplete response is to be treated as a failure to respond. Fed.R.Civ.P. 37(a)(3).
Rule 37 authorizes a court to impose the following sanctions: an order that facts in dispute be taken to be established in favor of the party seeking the motion, an order precluding the party refusing to comply with the order from opposing or presenting evidence in opposition to the movant's claim, and an order striking the offending party's pleading. Fed.R.Civ.P. 37(b)(2). The court may also order, in lieu of or in addition to these sanctions, that the party pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make such an award unjust. Id.
Rule 37 sanctions are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process. Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 482 (11th Cir.1982). The most severe spectrum of sanctions must be available to district courts not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
*675 5Here, the record demonstrates beyond dispute that AMD incurred unnecessary expense and delays in attempting to obtain U & I's compliance with legitimate discovery requests. U & I repeatedly delayed the production of responsive documents.
For instance, on September 12, 2007, U & I asserted that it had fully responded to AMD's First Request for Production of Documents. Nevertheless, U & I provided AMD approximately 10,000 documents on 13 occasions from September 18, 2007 to January 16, 2008. As the result of U & I's sporadic and incomplete document production, AMD filed four motions compelling U & I to produce all responsive documents to AMD's First Request for Production of Documents.
Other examples of U & I's misconduct are U & I's delay in advising AMD concerning the “unloadable” 2004 e-mails and U & I's failure to provide attachments to e-mails. While U & I knew as early as January 2005 that the 2004 e-mails were “unloadable” because of a failure with its hard drives, U & I neglected to inform AMD of this fact when it initially responded to AMD's document request. Instead, U & I waited until AMD filed a motion to compel and then advised AMD and the court that these e-mails were unrecoverable. Similarly, by neglecting to produce the attachments to e-mails, U & I further postponed the production of documents.
Given the discovery deadline of December 10, 2007, U & I's actions may have benefitted U & I by limiting the time available to review the belatedly produced documents and to depose witnesses regarding these documents.
Equally reprehensible is U & I's failure to produce e-mails between it and Zimmer Spine. In response to a non-party document request, Zimmer Spine produced numerous 2005 and 2006 e-mails between Zimmer Spine and U & I employees. AMD correctly points out that these 2005 and 2006 e-mails would not have been affected by U & I' alleged server problem. Jung's affidavit asserts that it is U & I's company policy to keep all data, including e-mail information from employees (past and current), on the main server. Thus, even assuming U & I disposed of the faulty hard drive in January 2005, internal documents and e-mails from 2005 and 2006 should have been preserved on the new hard drive in compliance with U & I's retention policy. Although U & I's counsel argues that he did not believe it was necessary to retain 2004 and 2005 e-mails because these documents would be inadmissible as parole evidence, the touchstone of discovery is not admissibility but relevance. Further, such a belief on counsel's part is contrary to the court's ruling on July 13, 2007 regarding the proper time frame for AMD's document requests.
Also perplexing is U & I's failure to produce any responsive internal documents between U & I employees. While U & I asserts that it has produced all requested information, it seems highly unlikely that not even one e-mail responsive to AMD's document requests would not be produced. In reference to documents contained on the personal computers of U & I's agents and employees (past and present), U & I contends that these computers were searched and no responsive non-privileged documents were located. However, U & I fails to submit an affidavit from a knowledgeable individual verifying the scope of the search, the efforts taken to locate documents, the inability to identify and produce such documents and the date when these documents were deleted or removed from the personal computers.
U & I's assertion that the delay in providing documents to AMD was caused by the international travel requirements of its employees, server and software problems, confusion, language barriers of its employees *676 and the lack of understanding of the American legal system does not excuse U & I's tardy and incomplete responses. After all, U & I was the party which filed this lawsuit. Indeed, U & I admitted that it received letter in the summer of 2006 from AMD requesting that U & I retain all relevant documents related to the dispute between the parties. U & I's counsel should have been familiar with U & I's document retention policy and computer systems prior to conferring with AMD regarding discovery. At the outset of the litigation, U & I and its counsel had the responsibility to take affirmative steps to ensure that all sources of discoverable information were identified, searched, and reviewed so that complete and timely responses to discovery requests could be provided.
It is not the court's role, nor that of opposing counsel, to drag a party kicking and screaming through the discovery process. U & I has failed to show substantial justification for its failure and unwillingness to abide by discovery rules and the court's prior orders in connection with AMD's Motion for Sanctions (Dkt. 41), Defendant's Motion for Protective Order and Motion for Sanctions (Dkt. 77) and, Defendant's Motion to Compel and Motion for Sanctions (Dkt. 92). U & I is therefore assessed the reasonable attorney's fees and costs incurred by AMD in connection with these motions.
Although federal courts have the inherent power to dismiss an action for misconduct that abuses the judicial process and threatens the integrity of that process, based on the present record such a sanction is premature and unwarranted. However, the conclusion is inescapable that lesser sanctions are both appropriate and necessary to compensate AMD for its expenses and to deter U & I from future discovery violations and disregard for court orders. Thus, in addition to monetary sanctions under Rule 37, and based upon good cause, AMD is also entitled to a limited inspection of U & I's computer hard drives used by certain employees, as set forth below.
The court finds that burden and expense of the independent inspection of the hard drives is outweighed by the benefits of the proposed discovery. The proposed discovery is important in resolving the merits of AMD's $3 million counterclaim. However, to allow AMD unrestricted access to U & I's computers and hard drives would constitute an undue burden. Accordingly, AMD's motion to compel the inspection of hard drives used by certain U & I employees is granted to the extent that:
(1) Within 10 days of this order, the parties shall select a qualified independent third party forensic examiner to conduct a limited samples of information contained on all the hard drives used by Jung, Mickey Gwak and Sean Hur.
(2) The forensic examiner shall limit the examination of the hard drives to whether, during the periods of December 1, 2004 through December 31, 2004; January 1, 2005 through January 31, 2005 and February 1, 2006 through February 28, 2006, there are any responsive documents pursuant to the court's order of July 13, 2007 which have not been produced by U & I.
(3) The three computer hard drives belonging to Jung, Gwak, and Hur shall be delivered by U & I to the examiner at the examiner's place of business within 10 days of the examiner's selection. During the sampling of the hard *677 drives, the forensic examiner shall also determine whether any responsive documents have been transferred or deleted from these hard drives, including the date of any transfer and deletion of data.
(4) The sampling of the hard drives by the forensic examiner shall be conducted outside the presence of the parties or their attorneys and shall be completed within 45 days of this order;
(5) After the sampling is completed, the forensic examiner shall provide a hard copy of his proposed findings to U & I's counsel for review prior to furnishing them to AMD's counsel.
(6) In the event that U & I objects to any of the findings being furnished to AMD, U & I shall file a motion for protective order within ten days of the receipt of the findings. If no such motion is filed within this period, the forensic examiner shall furnish a copy of the findings to AMD.
(7) All costs for the examiner shall be born by AMD. However, if the examiner's search reveals responsive documents which have not been produced by U & I or the transfer or deletion of responsive documents in violation of discovery rules and the court's orders, the court will consider shifting part, or all of the costs of the examination to U & I, among other sanctions.
It is further ordered that:
(1) Defendant's Motion for Protective Order (Dkt. 77) is GRANTED.
(2) Defendant's Second Motion for Sanctions (Dkt. 81) is DENIED.
(3) Sanctions of reasonable attorneys' fees and costs in connection with Defendant's Motion for Sanctions (Dkt. 41), Defendant's Motion for Protective Order and Motion for Sanctions (Dkt. 77) and Defendant's Motion to Compel and Motion for Sanctions (Dkt. 92) are imposed on U & I pursuant to Rule 37, Fed.R.Civ.P.
(4) The parties are directed to confer in a good faith effort to agree on the amount of reasonable attorneys' fees and costs. If an agreement is reached, the parties shall file a stipulation within 10 days of this order. If there is no agreement, U & I shall file a response to AMD's request for reasonable attorneys' fees and costs (Dkt. 105) within 20 days of this order.