Aryeh GUTMAN, individually and on behalf of A to Z Holding Corp., A to Z Capital Corp., Paz Franklin Company and Washington Green Associates and, individually, by 185 Marcy, LLC, and Park Offices, LLC, Plaintiffs, v. Zalman KLEIN, Dina Klein, Rachel Brach, Rodney Capital Company, Toyv Corporation, Republic Capital Group LLC, Atlas Furniture Manufacturing Corp., A to Z Holding Corp., A to Z Capital Corp., Paz Franklin Company, Washington Greene Associates, John Doe Entities 1–10, and John Does 1–10, Defendants No. 03 CV 1570(BMC)(RML) United States District Court, E.D. New York August 19, 2010 Counsel Darren Oved, Brian S. Tretter, Oved & Oved LLP, New York, NY, for Plaintiff. Edward Charles Wipper, Eric Scott Crusius, Oved & Oved LLP, New York, NY. Abraham Hoschander, Abraham Hoschander & Associates PLLC, Brooklyn, NY, Anthony L. Paccione, Brian A. Schmidt, Daniel Aaron Edelson, Joel W. Sternman, Katten Muchin Zavis Rosenman, Greg Michael Bernhard, Zeichner Ellman & Krause LLP, New York, NY, Barry R. Feerst, Barry R. Feerst and Associates, Brooklyn, NY, Paul Savad, Savad Churgin, Nanuet, NY, for Defendant. Levy, Robert M., United States Magistrate Judge REPORT AND RECOMMENDATION *1 On December 1, 2008, the Honorable Brian M. Cogan, United States District Judge, ordered that a default judgment be entered against defendants as a sanction for discovery misconduct that included the spoliation of a hard drive. (See Order, dated Dec. 1, 2008.) Familiarity with that order and with my report and recommendation of October 15, 2008 is assumed. Defendants now allege that plaintiffs have committed similar discovery misconduct by producing a non-business-related hard drive in place of a hard drive they were supposed to produce in discovery, and for a remedy they ask the court to impose sanctions (including dismissal of the complaint) or, alternatively, to appoint a forensic examiner, order plaintiffs to produce deleted files, and permit defendants to conduct compliance discovery. (Memorandum of Law in Support of Defendants' Motion for Sanctions and for Other Relief, dated Mar. 19, 2010 (“Defs.' Mem.”).) On August 17, 2010, Judge Cogan referred defendants' motion to me for a report and recommendation. For the reasons stated below, I respectfully recommend that defendants' motion be denied. BACKGROUND AND FACTS By orders dated November 7 and November 30, 2005, I ordered the parties in this case to provide to the court, inter alia, copies of “the hard drives of all computers of plaintiff and defendant.” (See Order, dated Nov. 7, 2005 (“11/7/05 Order”); Order, dated Nov. 30, 2005 (“11/30/05 Order”).) In the first order, I set a schedule for production that included several deadlines, with a final deadline of January 20, 2006 for filing objections. (11/7/05 Order.) In the second, I revised certain deadlines, setting a final deadline of February 3, 2006 for filing motions for protective orders. (11/30/05 Order (stating that “tight discovery deadlines were imposed, at Mr. Klein's request”).) Plaintiff Aryeh Gutman (“Gutman”) identified two computers at his office suite, and an agent of defendant Klein (“Klein”) imaged the hard drive of one computer (the “First Workstation”) on December 8, 2005, and the hard drive of the second (the “Second Workstation”) on December 13, 2005. (See Defs.' Mem. at 2–3; Letter of Richard A. Finkel, Esq., dated Dec. 23, 2005 (“Finkel Ltr .”), at 1–2; Declaration of Darren Oved, Esq., dated May 3, 2010 (“Oved Decl.”), ¶¶ 3–7; Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Sanctions and for Other Relief, dated May 3, 2010 (“Pls.' Mem.”), at 4.) After the imaging of the two computers, defendants' then attorney wrote to the court that “at the appropriate time, we will present evidence that plaintiffs' [sic] failed to provide all of their computers, and that plaintiff admitted during the copying session at the office ... that the two computers that were presented are ‘only secretarial’ stations.” (Finkel Ltr. at 1–2.) On November 28, 2006, Gutman stated in a deposition that there were two computers in his office suite, and that there had never been a third computer. (Transcript of Deposition of Aryeh Gutman, dated Nov. 28, 2006 (“11/28/06 Gutman Tr.”), attached as Ex. V to Declaration of Joel W. Sternman, Esq., dated Mar. 19, 2010 (“Sternman Decl.”), at 33.) Earlier in November 2006, however, a private investigator had observed three computers in Gutman's office suite: two “in the secretarial area” and a third “in the office from which Mr. Gutman emerged to talk to me.” (Affidavit of Joel Krausz, dated Nov. 8, 2006, attached as Ex. B to Letter of Barry R. Feerst, Esq., dated Nov. 30, 2006 (“11/30/06 Feerst Ltr.”), attached as Ex. W to Sternman Decl.) By letter dated November 30, 2006, defendants revealed this observation and asked the court to “direct that the third computer, disclosed by the Krausz affidavit, be delivered by [plaintiffs' counsel] to the Court appointed expert forthwith and that the computer not be touched by Mr. Gutman or anyone else.” (11/30/06 Feerst Ltr.) When the deposition resumed the following day, Gutman testified that the third computer Krausz had seen “was a computer my son was upgrading for one of his friends.” (Transcript of Deposition of Aryeh Gutman, dated Dec. 1, 2006 (“12/1/06 Gutman Tr.”), attached as Ex. X to Sternman Decl., at 41; see also id. at 41–42 (Gutman explaining that his son “freelances” and that “he brings computers home and plays with them over the weekend, so there's always a few”).) *2 Approximately two months later, defendants' counsel wrote to the court to request a hearing on a variety of topics, including “Mr. Gutman's testimony to the effect that only two computers were in operation at his office when he was visited by a private investigator, who found to the contrary.” (Letter of Barry R. Feerst, Esq., dated Jan. 29, 2007.) In response, the court held a lengthy conference on February 26, 2007, at which the parties argued numerous discovery issues, but at which defense counsel did not raise the issue of the alleged third computer. (See generally Minute Entry, dated Feb. 27, 2007; Transcript of Hearing, dated Feb. 26, 2007.) On March 28, 2007, Stroz Friedberg, LLC (“Stroz”), the court-appointed computer forensics expert, delivered to counsel a set of six DVDs (the “DVDs”). (Letter of John F. Curran, dated Mar. 28, 2007, attached as Ex. H to Sternman Decl.) The DVDs included spreadsheets listing active and deleted files from each of the two computers imaged from Gutman's offices. (Defs.' Mem. at 3.) At a conference on December 12, 2007, defendants' counsel argued that the 11/7/05 Order obligated plaintiffs to produce two computer hard drives located in the basement of a third party's house. (See Transcript of Hearing, dated Dec. 12, 2007, attached as Ex. 3 to Oved Decl., at 119.) The court directed the parties to confer on the matter and ruled that “[i]f you still disagree, then it will be [defendants' counsel]'s obligation to move to compel.” (Id. at 121.) Defendants' counsel did not move to compel. Rather, in May 2008, defendants' counsel wrote a lengthy letter to the court concerning payment of Stroz's fees and supplementation of Stroz's report. (See Letter of Barry R. Feerst, Esq., dated May 2, 2008.) Included in that letter was a request that Stroz analyze the two hard drives produced by Gutman in order to investigate deleted documents and “to determine whether meaningless ‘filler’ was placed on the hard drives immediately prior to the imaging ordered by this Court.” (Id. at 4–5.) There was no mention of an alleged third computer in Gutman's office or of computer hard drives allegedly located in a third party's basement. At a hearing held on June 18, 2008, defendants reiterated their request for an expert inspection of the two Gutman hard drives described in the May 2, 2008 letter, and the court directed that in the absence of an agreement between the parties, defendants should file a motion. (Transcript of Hearing, dated June 18, 2008, at 37–38.) Defendants' counsel responded that “[t]here's no agreement. I'd be glad to make the motion.” (Id. at 38–39.) Some five months later defendants noted in their objections to the report and recommendation of October 15, 2008 that plaintiffs had still not produced the alleged third computer “in spite of promises to furnish all hard drives to the Court for imaging and Orders for same.” (Defendants' Objections, dated Nov. 3, 2008, at 8). They also alluded to Klein's earlier request that Stroz inspect the Gutman hard drives. Apparently referring to the Second Workstation, defendants stated that “the hard drive furnished by Gutman ... contained a paltry 1528 documents, and of those 1528 documents, 958 documents had been created in the one week prior to the imaging, 1008 of the documents seemed to be the result of random internet surfing, with a deletion list of 4800.” (Id.) “The state of the hard drive,” they declared, “strongly suggested an effort by Gutman to manufacture the substances of the hard drive.” (Id.) Nonetheless, defendants did not move to compel or for sanctions, as directed at the June 18, 2008 conference. *3 In December 2009, one of Klein's family members apparently recognized two names on the list of deleted files from the Second Workstation, which Klein had received from Stroz in March 2007. (Defs.' Mem. at 4.) Klein located two relatives of the two named individuals and asked them about the computer. (Id.) According to Klein, one of the relatives, David Hecht, informed him that he is a data-recovery specialist who has had a business relationship with one of Gutman's sons, Eliezer Gutman, who works in the computer industry. (Declaration of Daniel A. Edelson, Esq., dated Mar. 19, 2010, ¶ 3.) In a Declaration in support of the instant motion, Edelson summarized the discussion as follows: “David Hecht has provided Eliezer with hard drives from time to time,” and he “noted that he recognized certain names of the files on the” list of deleted files “that came from a hard drive on a computer previously used by his family.”[1] (Id. ¶¶ 4–5.) Defendants retained a firm of forensic consultants, which reported after a preliminary analysis of the DVDs that “[i]t is unlikely that the computer from which the files were harvested from was a business use computer” and that most of the files on the computer were suggestive of Internet use from December 1 through 12, 2005. (See Defs.' Mem. at 4–5; Draft Report, dated Jan. 6, 2010, attached as Ex. M to Sternman Decl., at 8–9.) Finally, defendants filed the instant motion for sanctions on March 19, 2010. DISCUSSION Defendants' motion should be denied, both because it is untimely and because it fails on its merits. A. Timeliness “While Rule 37 does not establish any time limits within which a motion for sanctions must be filed, unreasonable delay may render such motions untimely.” Shamis v. Ambassador Factors Corp., 34 F.Supp.2d 879, 886 (S.D.N.Y.1999); see also Mercy v. County of Suffolk, 748 F.2d 52, 55 (2d Cir.1984) (“[A] motion for Rule 37 sanctions should be promptly made, thereby allowing the judge to rule on the matter when it is still fresh in his mind.”); Savage & Assocs., P.C. v. Mandl (In re Teligent, Inc.), 358 B.R. 45, 59 (Bankr.S.D.N.Y.2006) (“A party must bring discovery abuses to the Court's attention within a reasonable time.”). Defendants have delayed unreasonably in bringing this motion. At numerous prior stages of this protracted litigation, defendants voiced their dissatisfaction with Gutman's production of the Second Workstation and their suspicion that plaintiffs had not produced all of the required computer hard drives. Notwithstanding the strict deadlines of the 11/7/05 and 11/30/05 Orders, the court took pains to provide defendants with opportunities, and even encouragement, to make a formal motion. Defendants repeatedly failed to take advantage of those chances within a reasonable period of time. To delay filing this motion until more than four years after the events in question, and nearly two years after the court last invited a motion, is to wait too long. *4 Defendants blame Gutman for their delay, on the grounds that he “fail [ed] to disclose the relationship between the hard drive and the Hecht family” and gave “vague and misleading testimony concerning his business computers.” (Defs.' Mem. at 14.) However, defendants' concerns about the completeness of Gutman's production and the integrity of his hard drives date at least as far back as the Krausz affidavit in 2006 and the Stroz report in 2007. Hecht's statements, even if admissible, add little to the analysis that would justify so lengthy a delay. The court is hard-pressed to understand how its discovery orders obligated Gutman to recount the provenance of his computers. The claim that Gutman's testimony was “vague and misleading” is also unconvincing, as explained below; in any event, even if his testimony were vague and misleading, that would not excuse defendants' delay in making this motion. I respectfully recommend that this motion be denied as untimely. B. Merits Defendants allege that “Gutman, in violation of discovery orders issued by this Court, did not submit the actual hard drive from [the Second Workstation] for imaging; instead he submitted a hard drive from a computer previously owned by a third party.” (Defs.' Mem. at 1.) Defendants' logic consists of the following argument: (1) Gutman was obligated to produce copies of every hard drive he used in his business, but not other hard drives; (2) Gutman testified that he used two computers in his business; (3) he therefore had two business-related computers; (4) he produced one business-related computer and one non-business-related computer. Therefore, plaintiffs committed discovery misconduct by (5) producing a non-business-related computer; (6) failing to produce Gutman's second business-related computer; and (7) failing to produce other individuals' computers. The first, third, and fifth through seventh steps of this argument are flawed. The first and fifth steps are flawed because the 11/7/05 Order mandated the production of copies of “all computers of plaintiff and defendant.” The scope of the order is not limited to business-related computers or hard drives. The third and sixth steps are flawed because Gutman testified not that he had two business-related computers, but simply that there were two computers in the office suite where he conducted business. (See 11/28/06 Gutman Tr. at 33–36.) While his statement that his son would sometimes bring other computers to the office to do freelance work appears to be inconsistent with his earlier flat assertion that “[t]here were never three” computers in the suite, (compare 12/1/06 Gutman Tr. at 41, with 11/28/06 Gutman Tr. at 33), that discrepancy alone is too minor to warrant the relief defendants seek. Finally, the seventh step is flawed because the scope of the 11/7/05 Order did not extend to computers owned and used by relatives of the individual parties. In sum, defendants have not met their burden of demonstrating that Gutman engaged in sanctionable conduct. CONCLUSION *5 For the reasons stated above, I respectfully recommend that defendants' motion be denied. Any objections to this Report and Recommendation must be filed with the Clerk of Court, with courtesy copies to Judge Cogan and to my chambers, within fourteen (14) days. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 72. Footnotes [1] Plaintiffs object to consideration of Hecht's statements as inadmissible hearsay, as defendants have not submitted an affidavit or declaration from Hecht, but rely instead on Edelson's summary of Hecht's out-of-court statements.