The Plaintiff commenced this action on October 10, 2006, alleging that he was unlawfully terminated by the Defendant in contravention of the rights secured to him by the federal Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et. seq. (b), and the Connecticut Fair Employment Practices Act, Connecticut General Statutes (Conn.Gen.Stat.) §§ 46a–60 et. seq. The Plaintiff also brought a claim for negligent infliction of emotional distress.
On March 15, 2007, the Plaintiff Attorney served the first set of discovery requests seeking, among other things, the production of applicable documents. Although he did not ask for specific types of documents, the Plaintiff Attorney wanted the Defense Attorneys to produce monthly reports entitled “DSFG Region Ranking Within Country” (“DSFG Reports”). The Defense Attorneys did not produce any DSFG Reports. The Plaintiff Attorney knew of the DSFG Reports because he received a facsimile of the June 2004 DSFG Report before he was terminated by the Defendant. The fax was sent anonymously but the fax number was from the Defendant's office located in Stamford, Connecticut. The June 2004 DSFG Report provided key information regarding the sales performance of employees in relation to their peers, including actual sales, plan quotas, percentage comparisons between current year sales and present sales, percentages of plan attainment, along with the number of the Defendant's sales locations within a given region. Most importantly, the June 2004 DSFG Report revealed that the Plaintiff was leading his division in sales performance. After nine months, the Defense Attorneys had produced four additional DSFG Reports that the Plaintiff Attorney sought. On October 16, 2007, the Plaintiff Attorney filed a motion to compel the seven DSFG Reports from the year prior to the Plaintiff's termination.
The Court held a telephone conference with the Plaintiff and Defense Attorneys (together, the “Attorneys”) on January 9, 2008, to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports. During the conference the Attorneys maintained their respective positions on the matter: the Plaintiff Attorney believed that the Defense Attorneys were hiding or had deleted the DSFG Reports, and the Defense Attorneys gave the assurances that such reports could not be located. Accordingly, the Court proposed that the Defense Attorneys permit a forensic computer consultant to inspect the Defendant's computers. The Attorneys agreed. The Court issued the following order (“Inspection Order”):
*2 ORDER granting in part and denying in part 26 Motion to Compel. Pursuant to the Telephone Conference held on January 9, 2008, the Court ORDERS the following: (1) The defendant shall permit its electronic records to be inspected by the plaintiff, through a mutually agreed to forensic computer expert; (2) The inspection shall be performed by February 29, 2008; (3) The inspection shall be limited to the search for the existence of the seven Department Stores Fragrance Group (DSFG) Ranking Reports, which the plaintiff claims he is entitled to receive but that the defendant claims it does not possess. The scope of the inspection for the DSFG reports shall be limited to the twelve month period of time prior to the plaintiffs termination in September, 2004; (4) In the event that the inspection reveals any of the seven DSFG reports, the defendants shall bear the entire cost of the inspection;(5) In the event that the inspection does not reveal any of the seven DSFG reports, the plaintiff shall bear the entire cost of the inspection....
In accordance with the Inspection Order, the Attorneys, on January 30, 2008, mutually agreed to use a consultant (“Consultant”) from Strategic Security Consulting, Inc. (“SSC”) of Shelton, Connecticut, to perform the forensic computer inspection. In addition to the Inspection Order, the Attorneys, on their own, stipulated to an agreement (“Stipulation”) to ensure the protection of any confidential communications that the Consultant may inadvertently obtain from the Defendant's computers. The Stipulation provided, in pertinent part:
1. This Stipulation and the attached Confidentiality Agreement ... shall govern the conduct of such inspection. The terms of the Court's order are hereby incorporated by reference.
2. The Forensic Consultant will search Defendant's computer programs after good faith consultation with Defendant's internal IT personnel to extract forensic images of media which may contain Department Stores Fragrance Group (DSFG) Ranking Reports dated between September 2003 and May 2004 (hereinafter the “Reports”).
3. With respect to any located Reports that the Forensic Consultant is able to extract or recover from Defendant's hard drives, the Forensic Consultant will further indicate the identified servers or hard drives on which they were stored, and print such Reports located.
4. The Forensic Consultant will first deliver all Reports first to counsel for Defendant, but simultaneously indicate to counsel for both parties whether these Reports were located. After Defendant extracts or removes any information determined to be protected form disclosure pursuant to any applicable privileges, the redacted Reports/information shall be produced to Plaintiff's counsel. Defendant shall provide Plaintiff with a privilege log indicating the nature of the protected information and the applicable privilege. Any disputes between the parties regarding such information shall be presented to the Court for adjudication, and the Forensic Consultant shall, under no circumstances, produce such information or Reports to Plaintiff or his counsel absent Court order resolving the dispute.
*3 (Dkt.# 55, 4–5).
On February 4, 2008, the Defense Attorneys provided the Plaintiff Attorney with a revised Agreement stating that the Consultant was not permitted to “peruse all hard drives for emails, etc.” (Dkt.# 58, 25). The Plaintiff Attorney disagreed. The exact outcome of this disagreement is unclear, but on February 6, 2008, the Plaintiff Attorney sent the Defense Attorneys details of the Consultant's inspection methods, which stated “[the Consultant] gathers images of computer media with forensically sound methods, hardware and software. This includes gathering images in a read-only manner.” (Dkt.# 58, 29). While the Plaintiff Attorney states that the Defense Attorneys did not object to these details, the Defense Attorneys maintain that they had concerns with the conduct of the inspection.
Despite any objections, the Consultant arrived at the Defendant's Stamford office at approximately 9:40 a.m. to conduct the inspection. The Plaintiff Attorney contends that throughout the course of the day, the Consultant was prevented from taking forensic media images and was denied access to many areas of the computer system. The Defense Attorneys respond that the Consultant wrongfully told Lisa McCarthy that the DSFG Reports had disappeared and that he needed to access the “personal laptops” of McCarthy, employees Heidi Rande and Sally Sachse, and the Plaintiff's last supervisor, Elizabeth Naramore.
(Dkt.# 55, p. 6). The Defense Attorneys were upset by these statements because, in their view, “personal laptops” were not items within the parameters of the permitted inspection. For the next five hours the Attorneys engaged in communications regarding the scope of the Consultant's search. As a result of these discussions, the following motions were filed with the Court.
On February 29, 2008, the Defense Attorneys filed the motion for protective order (dkt.# 54) to prevent or suspend all further inspection of the computer systems, and the motion for attorneys' fees (dkt.# 56). In response, the Plaintiff Attorney filed a memorandum in opposition to which the Defense Attorneys filed a reply. On March 5, 2008, the Plaintiff Attorney filed the motion for contempt (dkt.# 57) for the Defense Attorneys' violation of the Inspection Order, and the motion for sanctions (dkt.# 62) seeking attorneys' fees. The Defense Attorneys filed their memorandum of law in opposition to the motion for sanctions and contempt of court (dkt.# 64) on March 26, 2008.
A. Protective Order and Attorneys' Fees
The Defense Attorneys request the Court to enter a protective order suspending all further inspection of the Defendant's computer systems or, in the alternative, to suspend such inspection until the Court issues a new order detailing the limits of the search.
1. The Legal Standard for Protective Orders
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, “[a] party or any person from whom discovery is sought may move for a protective order.... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (A) forbidding the disclosure or discovery; [or] (B) specifying terms, including time and place, for the disclosure or discovery; ... [or] (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.”
*4 A court is given broad discretion regarding whether to issue a protective order under Rule 26(c). Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir.1992) (the grant and nature of protection is singularly within the district court's discretion); Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir.1992) (order regarding sequence of discovery is at the discretion of the trial judge). However, a court may issue a protective order only after the moving party demonstrates that good cause exists for the protection of the material. In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 145 (2d Cir.1987). To establish good cause under Rule 26(c), courts require a “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Havens v. Metro. Life Ins. Co. (In re Akron Beacon Journal), No. 94 Civ. 1402, 1995 WL 234710, at * 10 (S.D.N.Y. April 20, 1995) (internal quotation marks omitted) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)). If the moving party establishes good cause for protection, “the court may balance the countervailing interests to determine whether to exercise discretion and grant the order.” Hasbrouck v. BankAmerica Housing Services, 187 F.R.D. 453, 455 (N.D.N.Y.1999)).
2. Good Cause
The Defense Attorneys claim that there is good cause to enter a protective order because the Plaintiff Attorney violated the inspections limitations which were established in the Stipulation and Inspection Order. The Defense Attorneys make five arguments as to why a protective order should be imposed.
First, the Defense Attorneys claim that prior to the date of inspection the Plaintiff Attorney wrongfully indicated his intent to attend the inspection. The Court is not persuaded by this argument because there is no evidence that the Plaintiff Attorney actually appeared at the inspection. Even if the Plaintiff Attorney did attend the inspection, neither the Inspection Order nor the Stipulation prevented such attendance.
Second, the Defense Attorneys argue that discussions with the Plaintiff Attorney, prior to the date of inspection, revealed that the Plaintiff Attorney had not canvassed the Consultant properly on the parameters of the inspection. In line with this is the Defense Attorneys' third argument that, during the inspection, the Consultant stated he was told the Defendant had hidden the DSFG Reports. These arguments do not persuade the Court. The lack of proper canvassing does not establish good cause for protection because there is no evidence supporting that it was the Plaintiff Attorney's duty to canvass the investigator. Indeed, the Inspection Order specifically required the Consultant to be “mutually agreeable” (dkt.# 51), a directive that places a mutual obligation on the Attorneys to ensure that the Consultant had a copy of the Inspection Order. In the Consultant's affidavit, he affirms that the Plaintiff Attorney provided him with such directive. (Dkt.# 59, 4). Moreover, the Court can not find that the Inspection Order prohibited the Attorneys from providing the Consultant with material to assist in the inspection, unless such material constituted a misrepresentation or was provided in bad faith. The Plaintiff Attorney's indication that the DSFG Reports may have been hidden or deleted was not a misrepresentation or made in bad faith because implied within the concept of an inspection of computers is that the information to be searched no longer exists or may have been deleted.
*5 Fourth, the Defense Attorneys claim that the Consultant wrongfully requested access to the laptops of McCarthy, Rande, Sachse and Naramore. This claim is unavailing because the Inspection Order stated that the Defendant was to “permit its electronic records to be inspected.” (Dkt.# 51). This broad language provided the Consultant with the authority to inspect any of the Defendant's computers that he thought might reasonably lead to the discovery of the DSFG Reports or evidence that such reports had been deleted. The computers of the above named employees should have been subject to the inspection, especially given the nexus that each one has to the Plaintiff's claim: Sachse is the employee who emailed the Plaintiff concerning her role in designing the DSFG Reports, McCarthy was mentioned in Sachse's email as the person who helped design the DSFG Reports, Rande was mentioned in Sachse's email as the person for whom the DSFG Reports were designed, and Naramore was the Plaintiff's last supervisor. The Defense Attorneys claim that the laptops of Naramore and Rande were out of state and that the Plaintiff Attorney knew this was the case. While this may provide an excuse for why these laptops could not be inspected immediately, it does not explain why (1) the Defense Attorneys could not have provided them at a later date, (2) they refused to permit inspection of Sachse's computer, and (3) the Consultant was given limited access to McCarthy's laptop.
Fifth, the Defense Attorneys state that a protective order should be issued because the Plaintiff Attorney improperly refused to confirm that he had advised the Consultant that forensic images could only be taken within the parameters of the Inspection Order. This claim is not valid because the Plaintiff Attorney was not required by the Inspection Order or Stipulation to confirm anything for the Defense Attorneys.
In addition, each of the five reasons that the Defense Attorneys set forth fail to establish good cause. First, the Defense Attorneys argue that the Plaintiff wrongfully advised the Consultant that the DSFG Reports were erased or buried. As previously noted, this advice was not improper. Second, the Defense Attorneys argue that the Plaintiff wrongfully advised the Consultant that he could search anything and everything. As previously noted, the Inspection Order permitted inspection of the “electronic records,” which permitted the Consultant to inspect any of the Defendant's computers the Consultant thought might reasonably lead to the discovery of the DSFG Reports or evidence that such reports had been deleted. The third and fourth arguments of the Defense Attorneys, that the Plaintiff Attorney failed to provide the Consultant with all pertinent documents for the inspection and with Sachse's pertinent testimony regarding the location of the DSFG Reports, fail because the Inspection Order imposed no such duty upon the Plaintiff Attorney. Fifth, the Defense Attorneys argue that the Plaintiff wrongfully advised the Consultant to take forensic images of all the Defendant's hard drives. This argument fails because the basic job description of a forensic computer consultant is to take forensic computer images. Further, such advice was not a misrepresentation or made in bad faith.
*6 Finally, the Court notes that, in large part, the Defense Attorneys' arguments were based on the concept that the Plaintiff Attorney's actions threatened the Defendant's private or privileged information. While this may seem like a valid concern, the structure of the Inspection Order and the Stipulation render it meritless. The Defense Attorneys argue that the Consultant was operating under the mistaken impression that he was entitled to search anything and that he had been directed to take forensic images of all of the Defendant's hard drives: “It bears repeating that [permitting such a broad search] ... would have been in direct contravention of the express and/or implicit terms of the Order, in which this Court limited the search both temporally and in terms of the subject matter.” (Dkt.# 64, p. 4).
The Inspection Order was drafted in broad terms so that the relevant information could be found,
but with two particular limitations so that only particular forensic images would be discoverable.
First, the inspection was “limited to the search for the existence of the seven [DSFG Reports].” (Dkt. # 51). Second, the inspection was “limited to the twelve month period of time prior to the plaintiffs termination in September, 2004.” (Id.)
Thus, whereas the Consultant was free to take forensic images of any “electronic records” that he believed could reasonably lead to a DSFG Report or evidence of a deleted DSFG Report, the only information that the Plaintiff could discover,
i.e. that the Defense Attorneys would be required to produce to the Plaintiff Attorney, would be one of the seven missing DSFG Reports from September 2003 to September 2004. Clearly, any other information or images that the Consultant found
could not be discoverable.
The Stipulation added an additional measure of security by permitting, prior to the production of the DSFG Reports to the Plaintiff, the Consultant to “extrac[t] or remov[e] any information determined to be protected from disclosure pursuant to any applicable privileges.” (Dkt. # 55, Ex. A). Therefore, the Defense Attorneys' insecurity regarding the inspection was unwarranted.
Accordingly, each of the Defense Attorneys' arguments fails and the motions for protective order (dkt.# 54) and attorneys' fees (dkt .# 56) are hereby DENIED.
1. The Legal Standard for Sanctions
*7 Rule 37 (b)(2)(A) of the Federal Rules of Civil Procedure provides, in pertinent part, that “[i]f a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders ... [including]: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed.R.Civ.P. 37(b)(2)(A). In addition, “the court must order the disobedient party, 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.” Fed R. Civ. P. 37(b)(2)(C).
The discovery provisions of the Federal Rules of Civil Procedure are “designed to achieve disclosure of all the evidence relevant to the merits of a controversy.” Daval Steel Products, Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991) (internal quotation marks omitted). “[A]ll litigants ... have an obligation to comply with court orders. When they flout that obligation they ... must suffer the consequences of their actions.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988). A district court has broad discretion to impose sanctions for failure to comply with its orders pursuant to Rule 37(b). See
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002); Burgie v. Euro Brokers, Inc., 2006 WL 845400, at *12 (E.D.N.Y. Mar.30, 2006).
The factors relevant to determining whether a party should be sanctioned under Rule 37 are “(1) the willfulness of the non-compliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of his non-compliance.” Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y.2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 852–54 (2d Cir.1995)). This court is mindful, however, that the imposition of sanctions “must be weighed in light of the full record in the case.” Cine Forty–Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir.1979); Penthouse Int'l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 388 (2d Cir.1981) (“[I]t would be excessively formalistic to view the defiance of the order in isolation rather than against the background of [a party's] prolonged and vexatious obstruction of discovery.”)
2. Willfulness or Reasons for Non–Compliance
*8 Non-compliance of a discovery order may be deemed willful “when the court's orders have been clear, when the party has understood them and when the party's noncompliance is not due to factors beyond the party's control.” Burgie, 2006 WL 845400, at * 12 (internal quotation marks omitted) (quoting Baba v. Japan Travel Bureau Int'l, Inc., 165 F.R.D. 398, 402–03 (S.D.N.Y.1996), aff'd,
111 F.3d 2 (2d Cir.1997)). In this case, the Defense Attorneys did not object to the Inspection Order. Next, the Court must determine whether the Defense Attorneys' non-compliance was due to factors beyond their control. Although the Defense Attorneys do not admit that they did not comply with the Inspection Order, they raise the following points as to why problems arose during the inspection.
The Defense Attorneys argue that things went wrong because the Plaintiff Attorney failed to inform the Consultant as to what information was being searched for and whether that information may or may not exist. As previously noted, there is no evidence that the Plaintiff Attorney breached a duty or acted in bad faith with the instructions that he provided to the Consultant. Further, the Defense Attorneys argue that “[they] had real and legitimate concerns about [the Consultant's] neutrality, as well as his methods. Any reasonable attorney would have been concerned as to whether [the Consultant] was familiar with the Order and Stipulation, as well as whether he and [the Plaintiff Attorney] intended to comply with the Order and Stipulation.” (Dkt. # 64, p. 15). This claim is not persuasive because, as previously noted, the Inspection Order required the Consultant to be mutually agreeable. This presumes that the Consultant was neutral, and therefore, the Defense Attorneys' argument fails.
Next, the Defense Attorneys claim that they misunderstood why the Consultant was going to take forensic images of the Defendant's hard drives. Certainly, finding out what services are provided by a “forensic computer expert” who is inspecting one's “electronic records,” is not beyond the control of the Defense Attorneys. By imposing the requirement for a mutually agreeable forensic computer expert, it is presumed that because the Defense Attorneys agreed to use the Consultant, they knew or should have known of the services he would provide. Finally, the terms of the Stipulation state that the Consultant would be taking forensic images and recovering material from the Defendant's hard drives and servers. The Defense Attorneys' state that “[they] did review [the Consultant's] brief description of his practice, but did not interpret the summary of his method to indicate that it required [the Consultant] to gather all
images.” (Dkt.# 64, p. 8) (emphasis in original). This point is unavailing because neither the Inspection Order, nor the Stipulation, nor the description of the Consultant's services, which stated that “SSC gathers images of computer media with forensically sound methods, hardware and software” (dkt.# 64, Ex. E), imposed any limitation on the Consultant's inspection. The limitation, rather, was imposed on what documents could ultimately be discovered and produced to the Plaintiff. Accordingly, it is unreasonable that the Defense Attorneys would have interpreted the Consultant's inspection not to include all electronic images.
*9 Next, the Defense Attorneys claim that they complied with the Inspection Order by providing full access to the Defendant's servers and networks on the condition that the Plaintiff Attorney confirm with the Consultant that any forensic images only be taken within the parameters of the Inspection Order. This argument is without merit because, as previously noted, there is no evidence that the Plaintiff Attorney breached a duty or acted in bad faith with the instructions he provided to the Consultant.
Finally, the Court notes that, in general, the Defense Attorneys' arguments fail because they are not supported by the evidence. This finding is based on the Consultant's affidavit, which the Court finds reliable because he is a non-party to this action and was mutually agreed upon by the Attorneys. The Consultant's affidavit states the following information:
On January 30, 2008, the Plaintiff Attorney proposed to the Defense Attorneys that the Consultant from SSC perform the inspection. The Defense Attorneys agreed. On January 31, 2008, the Plaintiff Attorney forwarded the Inspection Order to the Consultant, which he read. On February 6, 2008, the Consultant forwarded the details of his inspection methods to the Plaintiff Attorney, who forwarded it to the Defense Attorneys. The details stated that the inspection methods involve “gatheri[ing] images of computer media with forensically sound methods, hardware and software. This includes gathering images in a read-only manner and detailed logging of the activity.” (Dkt.# 64, Ex. E). The Consultant also was provided with a copy of the Stipulation that authorized him to inspect the Defendant's computer systems and to extract forensic images of media that may contain the DSFG Reports from September 2003 through May 2004.
On February 28, 2008, the Consultant traveled to the Defendant's office in Stamford, arriving at approximately 9:42 a.m.. The Consultant was initially permitted to access the Defendant's network by using McCarthy's account. The Consultant was told that he would not be able to access Naramore and Rand's laptops since both were in Florida. The Consultant had questions about the network and was given assurances on at least four different occasions that a technology employee (“IT”) would soon be present to help provide answers. Despite repeated assurances by McCarthy, the IT employee never appeared. McCarthy directed the Consultant to a folder entitled “DSFG,” but McCarthy could not provide the Consultant with access to the folder. The Consultant repeatedly attempted to gain access to the DSFG folder and to other areas of the drive without success. With each attempt McCarthy would leave the room to speak with one of the Defense Attorneys and would return only to tell the Consultant that his access was restricted. Such restriction essentially provided the Consultant with no access. When the Consultant requested access to Sachse's files, which were still on the system, McCarthy left the room to speak with IT and one of the Defense Attorneys. Upon returning, McCarthy told the Consultant that he had more access to the server than the Defendant had wanted. Minutes later the Consultant was logged out of McCarthy's account and logged into another account that no longer permitted him to access the folders that he previously had been able to access. Due to the minimal server access and lack of IT support, the Consultant left the Defendant's offices at 2:30 p.m.. The Consultant told McCarthy that without complete access to the media it was impossible to verify whether the DSFG Reports existed and that the only way to find deleted items is to review the entire media.
*10 Accordingly, although the Defense Attorneys may have provided some access to the Defendant's servers and networks, the majority of the inspection was thwarted by the Defense Attorneys obstructive tactics. Such tactics are sanctionable because “[a] party that ignores or engages in delaying tactics, despite an explicit refusal to produce discovery, is still liable for sanctions pursuant to Rule 37.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707–08, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (finding that the trial court's invocation of powers under Rule 37 was “clearly appropriate” based on “continued delay and an obvious disregard of its order” even though “petitioners repeatedly agreed to comply with the discovery orders”).
3. Efficacy of Lesser Sanctions
Next, the Court must consider the efficacy of lesser sanctions than the request by the Plaintiff of a default judgment, costs and attorneys fees. To impose sanctions properly, the court must find that such imposition would be just and would relate to the particular claim to which the discovery order was addressed. Daval Steel, 951 F.2d at 1366. A chronological review of the Defense Attorneys' behavior throughout discovery reveals a motive of bad faith and a disregard for the authority of this Court.
On March 15, 2007, the Plaintiff Attorney served his first request for discovery on the Defense Attorneys and they failed to produce any DSFG Reports. On July 20, 2007, the Attorneys held a discovery conference to resolve why the DSFG Reports had not been produced. The Defense Attorneys claimed that the DSFG Reports could not be found. On July 20, 2007, the Plaintiff served a second set of discovery requests, specifically demanding the DSFG Reports. On August 17, 2007, the Defense Attorneys requested an extension of time to respond to the second set of discovery requests because “[t]he key personnel needed to locate the electronically stored information necessary for us to recreate ... [the DSFG Reports] are presently on vacation.” (Dkt.# 58, 8). The Plaintiff Attorney contacted the Defense Attorneys to explain that the DSFG Reports should not need to be “recreate[d],” because they were supposed to be original documents. The Defense Attorneys did not respond.
On September 7, 2007, the Defense Attorneys informed the Plaintiff Attorney that despite the June 2004 DSFG Report bearing the fax number of the Defendant's Stamford office,
producing the remaining DSFG Reports would be “overly burdensome.” (Dkt.# 58, 11). Instead, the Defense Attorneys provided an annexed chart representing the same or similar numbers as the DSFG Reports would haven shown. (Id.)
The Plaintiff Attorney objected to the annexed chart because it was not prepared contemporaneously with the Plaintiff's employment and it did not contain the same information as the DSFG Reports.
The Plaintiff Attorney, on October 16, 2007, filed a motion to compel the remaining DSFG Reports. Three days later, the Plaintiff Attorney sent the Defense Attorneys an email stating, in pertinent part:
*11 [the failure to produce the DSFG Reports is] not valid given the key importance of the DSFG document and the broad scope of discovery under Fed.R.Civ.P. 26.... [The Defendant] admits in response to Request 2 that the fax number on the document was a working ... number at the time. Yet it is unwilling to admit that the DSFG report was even faxed from that number despite the appearance of that number at the top of the document. It also claims that it “cannot locate” the DSFG document despite a diligent search. An inspection of the hard drive would certainly establish the veracity of this claim or lack thereof.
(Dkt.# 58, 14). The Defense Attorneys promptly responded to this email stating that they believed that the Plaintiff fraudulently drafted the June 2004 DSFG Report in conspiracy with another employee of the Defendant.
The Plaintiff Attorney's belief that the Defendant created DSFG Reports on a monthly basis was corroborated, on November 14, 2007, by a former employer of the Defendant, Sally Sachse. In an email from Sachse to the Plaintiff, Sachse stated:
Each month the first [T]uesday after retail close I had a set of standard reports that were designed for Heidi Rande called DSFG Monthly Sales Reports. These reports were standard reports and were designed in Business Objects with the help of Lisa McCarthy (who is still there) and can verify that the reports was designed by her and me for Heidi.
(Dkt.# 58, 18). On November 19, 2007, the Plaintiff Attorney forwarded Sachse's communication to the Defense Attorneys. On November 28, 2007, the Defense Attorneys produced more than 1,500 additional documents. Within these documents were four DSFG Reports, dated from April 2004 through September 2004.
In summary, over the course of nine months, the Defense Attorneys' position regarding the DSFG Reports went from: (1) not being able to produce the documents, to (2) claiming that the documents could not be found, to (3) offering to “recreate” the documents, to (4) claiming that producing the documents would be “overly burdensome,” to (5) hypothesizing that the Plaintiff fraudulently produced the June 2004 DSFG Report, to (6) after receiving Sachse's incriminating email, producing four of the eleven missing DSFG Reports. The Court, finding this behavior to be erratic, held a telephonic conference on January 9, 2008, to discuss the whereabouts of the seven remaining DSFG Reports. During the conference the Defense Attorneys gave an express assurance that such reports could not be located and an implied assurance that the erratic behavior displayed over the prior nine months of discovery would end. As the Consultant's affidavit reveals, the Defense Attorneys failed to act in good faith during the inspection, so an order requiring the Defense Attorneys to pay the reasonable expenses associated with the Plaintiff Attorney's efforts to compel discovery is just.
4. Duration of Non–Compliance
The Inspection Order required the Defense Attorneys to permit the Defendant's electronic records to be inspected by a mutually agreeable forensic computer expert no later than February 29, 2008. As of today, April 9, 2008, it appears that the Defense Attorneys have still not complied with the Inspection Order permitting the Consultant to freely inspect the Defendant's electronic records. From January 9, 2008, to April 9, 2008, is not an unreasonably long time of non-compliance. Accordingly, this factor weighs in the favor of the Defense Attorneys.
5. Knowledge of the Consequences of Non–Compliance
*12 The requirement that the non-compliant party's have knowledge of the consequences is directly related to the concept that a sanction imposed under Rule 37(b)(2) be “just.” See
Daval Steel, 951 F.2d at 1366. In Daval,
the Second Circuit noted the importance of weighing a lower court's issuing of express warnings as a factor of just sanctions. Id.
The Second Circuit determined, however, that despite an express warning being a factor that a lower court may consider in imposing sanctions, it is by no means a requirement. Id.
This point was elaborated on:
Although formal warnings often precede the imposition of serious sanctions, this court has never considered warnings an absolute condition precedent. On the contrary, as indicated supra, we have examined the record to ascertain if the party's disregard of court ordered discovery justified the sanctions imposed by the district court. We decline to hobble the necessary discretion of district courts to control discovery by imposing a further requirement of formal and specific warnings before imposing Rule 37(b)(2) sanctions, bearing in mind that, as we hold supra, such sanctions can only be imposed for violation of a specific, previously entered court order. Parties and counsel have no absolute entitlement to be “warned” that they disobey court orders at their peril.
In this case, the Court did not expressly warn the Defense Attorney that sanctions would issue in the event of non-compliance. The Court was aware of the Defense Attorneys' erratic behavior regarding the DSFG Reports, and noted so during the telephonic conference.
6. The Purpose of Sanctions Under Rule 37
Rule 37 sanctions serve three purposes: (1) they ensure that a party will not benefit from its own failure to comply; (2) they are specific deterrents and seek to obtain compliance with the particular order issued; (3) they are intended to serve a general deterrent effect in the case at hand and in other litigation, provided that the party against whom they are imposed was in some sense at fault. See
Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir.1988).
The primary issue is whether sanctions will prevent the Defense Attorneys from benefitting from their failure to comply. There are five ways in which the Defense Attorneys will benefit if the Court did not impose sanctions. First, the Defense Attorneys will benefit because the Inspection Order stated that if the DSFG Reports were not found by the Consultant, the costs would be paid by the Plaintiff Attorney. (Dkt.# 51) (“In the event that the inspection does not reveal any of the seven DSFG reports, the plaintiff shall bear the entire cost of the inspection.”) Second, the Consultant spent a total of ten hours preparing for and attempting to conduct the inspection, and claims to be owed $2,500 for his efforts. (Dkt.# 59, 28). Third, the Plaintiff Attorney has “spent a total of 76.5 hours ... on discovery issues related to [the motion to compel] filed in October 2007 and this [motion for sanctions for contempt of court ... [which] equates to $30,217.50.” (Dkt.# 58, 34). Fourth, the obstructive behavior of the Defense Attorneys has resulted in stalling this case for over one year. Fifth, failing to punish the Defense Attorneys' would provide them with an undeserved benefit because the Plaintiff Attorney would be forced to litigate this case without possessing all of the necessary DSFG Reports, which are crucial because they provide key information regarding the sales performance of the Plaintiff in relation to his younger peers. Accordingly, the Defense Attorneys non-compliance has resulted in significant prejudice to the Plaintiff Attorney such that sanctions must be imposed.
*13 The next issue is whether the sanctions will help the Defense Attorneys to comply with the Inspection Order. The Court must reiterate, that despite the Defense Attorneys' belief that they complied with the Inspection Order by permitting the Consultant to conduct his investigation, this position is without merit. As the Consultant's affidavit shows, the Defense Attorneys failed to comply by engaging in obstructive tactics. Therefore, even assuming that the Defense Attorneys eventually comply with the Inspection Order, this should not be accorded great weight so as to negate the basis for a sanctions award. See
Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Cine Forty–Second St. Theatre Corp., 602 F.2d at 1068. In addition, the Defense Attorneys' erratic behavior throughout the discovery process suggests that future compliance is uncertain. When considering the weight of these two factors, sanctions are required to deter the Defense Attorneys from failing to comply with the future orders of this Court.
The final issue is whether sanctions would serve as a general deterrent in this and other cases. This Court rarely issues sanctions. However, where the behavior of the disobedient party is so unreasonable that the failure to sanction them would be the equivalent of punishing the obedient party, this Court must act swiftly to impose sanctions. Here, the Defense Attorneys' actions during the inspection, and throughout discovery in general, constitute unreasonable behavior. This Court will not allow such improper legal maneuvers and finds that sanctions are proper to deter such future behavior by these Defense Attorneys and others who practice before the Court.
7. The Sanctions
Rule 37 “places the burden on the disobedient party to avoid expenses [including attorneys' fees] by showing that his failure is justified or that special circumstances make an award of expenses unjust.” JSC Foreign Economic Ass'n Technostroyexport v. Int'l Dev. and Trade Servs., Inc., No. 03 Civ. 5562(JGK)(AJP), 2005 WL 1958361, 2005 U.S. Dist. LEXIS 16772, at *34 (S.D.N.Y. Aug. 16, 2005) (internal quotation marks omitted) (quoting 1970 Advisory Committee Notes to Rule 37(b)). “An award of reasonable fees incurred in bringing a motion to compel discovery is the least harsh of all the sanctions allowed under Rule 37.” Id.
(internal quotation marks omitted). Under Rule 37, “a finding of bad faith or willful misconduct is not required before the Court can award attorneys' fees.” Id.
Here, the Defense Attorneys have failed to comply with the Inspection Order and have failed to demonstrate that the non-compliance was justified or subject to special circumstances. As a result of the Defense Attorneys' behavior, the Plaintiff Attorney and the Consultant have incurred significant financial expenses. Although the duration of the Defense Attorneys' failure to comply with the Inspection Order has not been very long, it is undisputed that for one reason or another the Defense Attorneys have not complied with producing the DSFG Reports. The failure to comply with the Inspection Order and to set forth a consistent and fair reason as to the existence of the DSFG Reports is inexcusable.
*14 Based on the foregoing discussion, the Defense Attorneys are ordered to pay the following expenses and fees to the Plaintiff Attorney:
(1) Reasonable expenses and fees associated with enforcing the Inspection Order including any letters, phone calls or emails made between January 9, 2008, and March 5, 2008, the date when the Plaintiff Attorney filed his motions for contempt and sanctions;
(2) Reasonable expenses and fees associated with drafting the motions for contempt and sanctions;
(3) Reasonable expenses and fees associated with rescheduling the inspection of the Defendant's electronic records, but not the costs and fees associated with the inspection itself.
The Plaintiff Attorney shall submit to the Court an accounting of these costs within thirty (30) days of this decision. The Defense Attorneys may file an objection to the accounting within fifteen (15) days of the Plaintiff Attorney's filing. The Court will review the accounting and any objection, and will issue an order of judgment. The Defense Attorneys are ordered to pay the amount designated by the Court within thirty (30) days of the Court's entry of the order of judgment and to file a contemporaneous letter certifying that the Plaintiff Attorney has been reimbursed in full.
Based on the foregoing discussion, the Defense Attorneys are ordered to pay the Consultant the reasonable expenses and fees incurred for the preparation, travel, and investigative work that was completed on February 28, 2008. In the Consultant's Affidavit, he states that he has spent a total of ten (10) hours and that at his hourly rate of $250, the total fee for his time is $2,500. In the Plaintiff Attorney's Affidavit, he states that the Consultant has incurred $2,600 in costs relating to the inspection.
To settle this discrepancy, the Plaintiff Attorney shall submit an accounting of the Consultant's costs within thirty (30) days of this decision. The Defense Attorneys may file an objection to the accounting within fifteen (15) days of the Plaintiff Attorney's filing. The Court will review the accounting and any objection, and will issue an order of judgment. The Defense Attorneys are ordered to pay the Consultant the amount designated by the Court within thirty (30) days of the Court's entry of the order of judgment and to file a contemporaneous letter certifying that the Consultant has been paid in full.
Based on the foregoing discussion, the Defense Attorneys are ordered to permit the Defendant's electronic records to be inspected pursuant to the following terms:
(1) The Defendant shall permit its electronic records to be inspected by the Plaintiff, through a mutually agreed to forensic computer expert;
(2) The inspection shall be performed by May 30, 2008;
(3) The inspection shall be limited to the search for the existence of the seven Department Stores Fragrance Group (DSFG) Ranking Reports, which the Plaintiff Attorney claims he is entitled to receive but that the Defense Attorneys claim they do not possess. The scope of the inspection for the DSFG reports shall be limited to the twelve month period of time prior to the Plaintiffs termination in September, 2004;
*15 (4) In the event that the inspection reveals any of the seven DSFG reports, the Defendant shall bear the entire cost of the inspection;
(5) In the event that the inspection does not reveal any of the seven DSFG reports, the plaintiff shall bear the entire cost of the inspection.
Based on the record, these sanctions are appropriate because they guarantee compliance with the outstanding Inspection Order, ensure that the Defense Attorneys do not benefit from their failure to comply, and deter the Defense Attorneys from needlessly delaying production in the future. Nieves, 208 F.R.D. at 535 (internal citations omitted).
8. The Possibility Of More Severe Sanctions
In addition to the costs and attorneys' fees already awarded by the Court, the Plaintiff Attorney requests that the Court enter a default judgment. This request is denied, but not without warning to the Defense Attorneys. In the event that the Defense Attorneys do not comply in full with the directives contained in this decision, they may be found to be in defiance of these orders and to be disinterested in the resolution of this case on the merits. In such an instance this Court may strike the Defendant's answer and enter a default judgment against it.
For the foregoing reasons, the Defense Attorneys' motions for protective order (dkt.# 54) and for attorneys' fees (dkt.# 56) are DENIED; the Plaintiff Attorney's motion for contempt (dkt.# 57) is GRANTED and the motion for sanctions (dkt.# 62) is GRANTED in part and DENIED in part. The Court directs the Defense Attorneys to permit a mutually agreeable forensic computer expert to inspect the Defendant's electronic records no later than May 30, 2008, in conformance with the order contained within this decision. Within thirty (30) days from the date of this decision, the Plaintiff Attorney shall submit to the Court an accounting of his costs and an accounting of the costs incurred by the Consultant. For each accounting, the Defense Attorneys have fifteen (15) days to object by filing a written memoranda with the Court. Within thirty (30) days of the Court's entry of the order of judgment for each of the accountings, the Defense Attorneys shall pay the amount contained within each judgment and file a contemporaneous letter certifying that the Plaintiff Attorney and the Consultant have been reimbursed in full.