In an Order dated January 20, 2012, I directed Printex to produce several categories of documents by January 30. (Order dated Jan. 20, 2012 (“1/20/12 Order”), ¶ 5). These included “all CAD images and all related creation documents for each of the designs at issue,” “documents showing first sale for each of the designs at issue,” and “the requested invoices and purchase orders.” (1/20/12 Order, ¶¶ 1, 3, 4). Family Dollar contends that Printex violated that order by failing to produce certain of the documents and producing others well after the deadline I had set. In particular, Printex produced 564 pages of invoices and summary sales documents on March 20, after the deposition of Printex had concluded. (Schurin 4/11/12 Letter at 1). At the same time, it produced six work-for-hire agreements for the designs alleged to be infringed, (Schurin 4/11/12 Letter at 1–2). Finally, while Printex produced the chemical composition sheets for the specific design that Printex claims was infringed, it has not produced similar documents for the other designs encompassed within the same collection copyright, (Schurin 4/11/12 Letter at 2).

Family Dollar suggests two alternative sets of remedies for Printex's alleged violation of my order. First, it argues that Printex should be required to produce the remaining chemical composition sheets but also be precluded from relying on any documents produced after January 30, 2012. (Schurin 4/11/12 Letter at 6–7). If I were to deny this relief, Family Dollar contends that, in addition to producing the chemical composition sheets, Printex should be required to appear for a continuation of its deposition and to reimburse Family Dollar for the costs, including attorneys' fees, of the deposition and of the instant motion. (Schurin 4/11/12 Letter at 7).

Printex plainly failed to comply with the January 20 Order. That order was issued in response to arguments presented in a series of letters that made clear that Family Dollar was seeking documents relating to all designs covered by Printex's collection copyright, while Printex was contending that only documents relating to the specific design alleged to be infringed were relevant. (Letter of Richard S. Schurin dated Jan. 13, 2012; Letter of Michael D. Steger dated Jan. 17, 2012; Letter of Richard S. Schurin dated Jan. 18, 2012). The January 20 Order adopted Family Dollar's broader view of the pertinent discovery, and it is too late to revisit that determination. See Blatch v. Franco, No. 97 Civ. 3918, 2002 WL 342453, at *2 (S.D.N.Y. March 5, 2002) (holding propriety of order compelling discovery not reviewable on subsequent motion for sanctions for noncompliance). Each category of documents that Printex has either failed to produce or produced tardily was encompassed within Family Dollar's requests and the January 20 Order. It remains to be determined what the remedy should be.

*2 Family Dollar prefers an order precluding Printex from relying on documents produced after the court-imposed deadline. In determining whether preclusion is appropriate, courts must consider: (1) the reasons for the delay in providing the evidence; (2) the importance of the evidence precluded; (3) the prejudice to the opposing party from having to address the new evidence; and (4) the possibility of a continuance. See Softel, Inc. v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 961 (2d Cir.1997); Outley v.. City of New York, 837 F.2d 587, 590–91 (2d Cir.1988); Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co., 769 F.Supp.2d 269, 278 (S.D.N.Y.2011); Lidle v. Cirrus Design Corp., No. 08 Civ. 1253, 2009 WL 4907201, at *6 (S.D.N.Y. Dec. 18, 2009). “Before the extreme sanction of preclusion may be used by the district court, a judge should inquire more fully into the actual difficulties which the violation causes, and must consider less drastic responses.” Outley, 837 F.2d at 591.

Here, Printex has not provided a plausible reason for failing to comply with the January 20 Order in a timely manner. However, the information that would be precluded is potentially important to Printex's enforcement of the copyright; any prejudice to Family Dollar can be mitigated by allowing further discovery; and it is feasible to extend the discovery deadline. An order of preclusion would therefore be too draconian in light of the alternative remedies available.

It is appropriate to require Printex to produce the chemical composition sheets for all designs that are part of the collection copyright. And, to prevent Printex from gaining an unfair advantage from its late production of the invoices and work-for-hire agreements, it must appear for a continued deposition at which inquiry may be made concerning these documents. Finally, to remedy the prejudice to Family Dollar of Printex's noncompliance, Printex shall pay the costs incurred by Family Dollar in connection with both the continued deposition and the instant motion.

Printex contends that Family Dollar has failed to comply with its discovery obligations in four respects. First, it argues that Family Dollar has neglected to search for and produce several categories of documents, and Printex requests an order compelling production of that information. (Steger 4/11/12 Letter at 1–2).[1] Next, Printex maintains that Family Dollar produced documents in a piecemeal fashion, disclosing one “crucial” document only a day before Family Dollar's deposition; at least implicitly, Printex seeks to reopen the deposition. (Steger 4/11/12 Letter at 2). Printex also argues that Family Dollar submitted untimely responses to a request for admissions, some of which contradict testimony of Family Dollar's own witnesses, and Printex asks that Family Dollar be required to supplement its responses. (Steger 4/11/12 Letter at 2). Finally, Printex asserts that Family Dollar deleted relevant e-mails, and it seeks an order permitting a forensic examination of Family Dollar's computer files. (Steger 4/11/12 Letter at 3). Printex also seeks an award of its attorneys' fees and costs in connection with its application. (Steger 4/11/12 Letter at 3). None of these issues has previously been the subject of a court order.

*3 Printex has failed to establish that Family Dollar did not conduct an adequate search for documents. Printex relies on testimony by one Family Dollar witness that she was not shown Printex's discovery requests and was not asked to search for many of the documents identified in those requests. (Steger 4/11/12 Letter at 1–2). However, there is no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Counsel, working with whoever may be the relevant custodians, generally search for documents responsive to a discovery request, and, according to Family Dollar, that is precisely what occurred here. (Schurin 4/18/12 Letter at 1). Furthermore, Family Dollar has identified by bates number the documents that it produced in each of the categories about which Printex complains. (Schurin 4/18/12 Letter at 2–3).

Printex's concern about the production of a document on the eve of deposition is also misplaced. The document at issue provides in summary form information previously produced in more detail by Family Dollar. (Schurin 4/18/12 Letter at 3 & Exhs. N, O). Because the information appears to have been gleaned from a database, it could have been produced in any number of ways, depending upon the parameters requested for a report. It is of no consequence that Family Dollar reproduced information in a different form shortly before a deposition.

More compelling is Printex's argument that Family Dollar's responses to a request for admissions were inadequate. There is no dispute that the responses were not timely served, and Family Dollar has moved to be relieved of any admissions it would thereby be deemed to have made. It has also agreed to supplement its responses in light of subsequent deposition testimony. This is the relief requested by Printex, and it is appropriate.

Were Printex able to demonstrate that Family Dollar had engaged in the spoliation of electronically stored information, its request for a forensic examination of Family Dollar's computer files might have merit. See Treppel v. Biovail Corp., 249 F.R.D. 111, 123–24 (S.D.N.Y.2008). But Printex has made no such showing. 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.’ “ Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 107 (2d Cir.2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)); accord Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429, 435 (S.D.N.Y.2010); Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010); Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y.2009). In order to have engaged in spoliation, then, a party must have violated a preservation requirement.

*4 Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998), abrogated on other grounds by Rotella v. Wood, 528 U.S. 549 (2000); see Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir.2001). Thus, the preservation requirement arises when a party “ ‘reasonably anticipates litigation.’ “ Orbit One, 271 F.R.D. at 436 (quoting Pension Committee of the University of Montreal Pension Plan, 685 F.Supp.2d at 466).

In this case, there is no evidence that the e-mails at issue were deleted at a time when Family Dollar could have reasonably anticipated litigation. The garments containing the accused design were produced for the 2008 and 2009 seasons, and any e-mails relating to them were in all likelihood deleted by the end of 2009. (Schurin 4/18/12 Letter at 4–5 & Exhs. P, Q, R, S, T; Deposition of Amber Buchanan, attached to Steger 4/11/12 Letter, at 78 (testifying that e-mails deleted at end of season)). Yet, Family Dollar had no preservation obligation until March 2011, when Family Dollar first learned of the claims because Printex filed suit against it in California. (Schurin 4/18/12 Letter at 4 n. 4). Therefore, no forensic examination is warranted.

For the reasons set forth above, Family Dollar's letter application is granted to the extent that, by May 31, 2012, Printex shall produce all requested chemical composition sheets and appear for a continued deposition limited to questioning relating to any documents produced after January 30, 2012. Printex shall bear Family Dollar's costs, including attorneys' fees, for the continued deposition and for the instant motion. Printex's letter application is denied except to the extent that, by May 31, 2012, Family Dollar shall provide supplemental responses to Printex's request for admissions. Family Dollar's motion to withdraw admissions (Docket no. 19) is granted in light of this obligation to supplement. The deadline for submitting the pretrial order or any dispositive motion is extended to June 29, 2012.

SO ORDERED.

No page numbers actually appear on this letter.