Clay v. Consol Pennsylvania Coal Co., LLC
Clay v. Consol Pennsylvania Coal Co., LLC
2013 WL 4854746 (N.D. W. Va. 2013)
September 11, 2013

Stamp Jr., Frederick P.,  United States District Judge

Bad Faith
Cost Recovery
Default Judgment
Sanctions
Download PDF
To Cite List
Summary
The court found that the defendants had failed to search for ESI in response to the plaintiff's discovery requests. The court granted the plaintiff's motion for sanctions, including redepositions of six individuals at the defendants' expense, permission to depose seven additional individuals, and reasonable expenses associated with the motion. The court also prohibited the defendants from conducting any further discovery, except for redeposing the plaintiff about a previously filed employment discrimination case, deposing the plaintiff's narcotics anonymous sponsor, deposing Devon Cummings, and obtaining the plaintiff's medical records from and deposing Dr. Midcap.
TONY B. CLAY, Plaintiff,
v.
CONSOL PENNSYLVANIA COAL COMPANY, LLC, a foreign limited liability company and subsidiary of Consol Energy, Inc., McELROY COAL COMPANY, a foreign corporation and subsidiary of Consol Energy, Inc. and CONSOL ENERGY, INC., a foreign corporation, Defendants
Civil Action No. 5:12CV92
United States District Court, N.D. West Virginia
September 11, 2013

Counsel

David K. Coleman, Patrick S. Casey, Sandra M. Chapman, Casey & Chapman, PLLC, Wheeling, WV, for Plaintiff.
David L. Delk, Jr., Jeffrey A. Grove, Grove & Delk, PLLC, William A. Kolibash, Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, WV, David E. Renner, Richard J. Cromer, Leech Tishman Fuscaldo & Lampl, LLC, Pittsburgh, PA, for Defendants.
Stamp Jr., Frederick P., United States District Judge

MEMORANDUM OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AS A SANCTION BE DENIED AND ORDER THAT PLAINTIFF'S MOTION FOR SANCTIONS BE GRANTED IN PART AND DENIED IN PART

*1 The above-styled civil action involves claims of racial discrimination and retaliation under Title VII, a claim for breach of the plaintiff's employment agreement, and a claim for violation of West Virginia's Wage Payment and Collection Act. On July 16, 2013, the plaintiff filed a motion for sanctions against the defendants for abuse of the discovery process. In support of his motion, the plaintiff provided six separate instances where he believes the defendants abused the discovery process. The plaintiff requests that this Court enter default judgment based on counsel's bad faith conduct and abuse of discovery. In the alternative, the plaintiff seeks other sanctions such as an award of reasonable expenses in taking certain depositions, an order preventing the defendants from using plaintiff's depositions for any purpose including at trial, and permission to redepose certain witnesses at the defendants' expense.
The defendants, Consol Pennsylvania Coal Company, LLC (“Consol PA”), McElroy Coal Company (“McElroy”), and CONSOL Energy, Inc. (“CONSOL”), responded arguing that sanctions should not be imposed because: (1) the defendants at all times exercised good faith and attempted to communicate with the plaintiff regarding the discovery process; (2) any delay in the production of electronically stored information (“ESI”) was the result of a minor miscommunication between the defendants and their counsel; (3) the defendants made numerous attempts to communicate with plaintiff regarding ESI and the additional time needed to complete discovery once the miscommunication regarding ESI was discovered; (4) the details regarding the defendants' review of ESI and the subsequent document production resulting from the defendants' review demonstrate the plaintiff has not been prejudiced; (5) the plaintiff cannot show that the defendants or their counsel withheld the production of documents its employees were asked to produce via subpoenas duces tecum; and (6) even if this Court finds that the plaintiff was prejudiced, an award of default judgment is not the appropriate remedy.
United States Magistrate Judge James E. Seibert issued a report and recommendation, wherein he recommended that default judgment not be granted as the prejudice to the plaintiff can be alleviated through the imposition of less drastic sanctions. The magistrate judge, however, did order that the defendants pay all reasonable expenses for the redeposition of certain employees, but not for employees which have yet to be deposed. Further, the magistrate judge ordered that the defendants' discovery should be limited to those areas, which they discussed with this Court, but they should not be able to depose plaintiff's Narcotics Anonymous sponsor. Finally, the magistrate judge ordered that the plaintiff is entitled to reasonable expenses for the prosecution of this motion.
The magistrate judge informed the parties that they may object to his report and recommendation and his order within fourteen days from the date of the report and recommendation and order being filed. The plaintiff then filed objections arguing that: (1) the finding of no bad faith and no default was in error; (2) the magistrate judge was incorrect in his ruling that the use of plaintiff's deposition, having been ruled upon in another context, mooted it as a sanction; (2) the magistrate judge's finding that those employees being deposed for the first time should be at plaintiff's expense is an improper finding; and (3) the magistrate judge was incorrect in finding that the defendants should be allowed further discovery.
*2 The defendants then filed a motion seeking leave to respond to the plaintiff's objections, which this Court granted. Accordingly, the defendants filed a response wherein they argued that: (1) the magistrate judge's ruling finding no bad faith and no default was not error and (2) the order as to the other sanctions sought by the plaintiff was also not in error.
As to nondispositive pretrial matters, a magistrate judge's ruling may be reversed only on a finding that the order is “clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1). “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). In light of the broad discretion given to a magistrate judge in the resolution of nondispositive discovery disputes, the court should only overrule a magistrate judge's determination if this discretion is abused. Detection Sys ., Inc. v. Pittway Corp., 96 F.R.D. 152, 154 (W.D.N.Y.1982).
This Court recognizes that the plaintiff filed a motion seeking default judgment or, in the alternative, other sanctions for the defendants' abuse of the discovery process. If the magistrate judge had awarded the sanction of default, the motion would be dispositive of this action and therefore require a de novo review if the parties made timely objections to the report and recommendation. See Fed.R.Civ.P. 72(b) (stating that the district judge must determine de novo any part of the magistrate judge's disposition of a dispositive matter that has been properly objected to). A motion for default judgment based on discovery violations, however, is “nothing more than an optimistically labeled motion for sanctions.” Segal v. L.C. Hohne Contractors, Inc., 303 F.Supp.2d 790, 794 (S.D.W.Va.2004). Therefore, courts have found that the sanction chosen by the magistrate judge, not the sanction sought by the party, governs whether this Court must review the magistrate judge's order de novo after receiving objections, or whether the review is limited a clear error review. Id. at 794–95 (citations omitted). Accordingly, because the magistrate judge declined to recommend the imposition of default judgment and instead ordered that other sanctions be imposed, this Court reviews the magistrate judge's order for clear error.
In addressing the plaintiff's motion for sanctions, the magistrate judge first found that default judgment was not the appropriate sanction in this matter. As the magistrate judge indicated, while a court has wide discretion in imposing sanctions, its range of discretion is more narrow when the sanction of default judgment is involved because it is “confronted head-on by the party's right to a trial by jury and a fair day in court.” Mutual Fed. Sav. & Loan Ass'n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir.1989) (citations omitted). As the United States Court of Appeals for the Fourth Circuit stated, this requires the application of the following four part test:
*3 (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.
The magistrate judge found that in applying this test, default judgment was inappropriate because it could not reach a conclusion that defendants acted in bad faith. Further, while the magistrate judge did indicate that some prejudice did result from the defendants' actions during discovery and deterrence for this behavior is needed, the magistrate judge found that less drastic sanctions can be effective and reverse most of the prejudice to the plaintiff.
The plaintiff objects to the magistrate judge's finding that there was no bad faith and indicates numerous instances that he believes show that the defendants acted in bad faith during the discovery process. After reviewing the record in this case, this Court agrees with the magistrate judge's finding that the defendants, while acting in a dilatory manner during the discovery process, were not acting in bad faith. Further, this Court agrees that the other sanctions imposed by the magistrate judge provide the proper deterrence and alleviate much of the prejudice to plaintiff, therefore, making default judgment inappropriate in this matter.
The magistrate judge, after finding that default judgment was inappropriate, addressed whether as a sanction, the defendants should be required to pay for all reasonable expenses associated with the depositions of certain persons who the plaintiff sought to depose following the receipt of the previously undisclosed information. Six of the individuals were previously deposed before receipt of the newly disclosed information. Seven of the individuals, however, the plaintiff wished to depose for the first time after receipt of such information. The magistrate judge found that while the plaintiff was entitled to depose all of the witnesses that he requested to depose, the defendants were only responsible for the expenses associated with those individuals previously deposed.
The magistrate judge stated that the defendants allowed those previously deposed individuals depositions to take place without providing the plaintiff with much of his requested discovery, and the defendants do not provide an explanation for such action. The magistrate judge found that such action warrants sanctions. As to the individuals that the plaintiff wished to depose for the first time, the magistrate judge found that these individuals were disclosed in the defendants' Rule 26 disclosures, the plaintiff must have had personal knowledge of some of these individuals and, further, the plaintiff made the strategic choice not to depose these individuals initially. Therefore, while the plaintiff should be allowed to exceed the deposition limit and depose these individuals, the magistrate judge found that the defendants should not be responsible for the expenses associated with their depositions.
*4 The plaintiff objects to this finding, arguing that the magistrate judge incorrectly stated that the plaintiff was aware of the individuals to be newly deposed, and had the plaintiff had the benefit of all of the newly discovered information when initially choosing who to depose, he may have chosen to depose these specific individuals. This Court finds this objection to be without merit, and after reviewing the record agrees and finds no clear error in association with the magistrate judge's finding. The defendants should be responsible for the redeposition of those individuals who were deposed prior to the defendants providing the requested discovery. This Court, however, does not find it appropriate to order the defendants to pay for the expenses associated with those being deposed for the first time. The plaintiff did not previously expend resources deposing these individuals, and therefore, the defendants have not caused the plaintiff any loss in association with the deposition of these individuals.
The magistrate judge next found that the defendants were allowed to conduct the following limited discovery: (1) redeposing plaintiff about a previously filed employment discrimination case; (2) deposing Devon Cummings, plaintiff's physician at the Veteran Affairs Hospital; and (3) obtaining plaintiff's medical records from, and deposing Dr. Midcap. The magistrate judge found that such discovery should be allowed because these requests relate only to information recently revealed through the plaintiff's deposition in late May. The magistrate judge, however, found that the defendants were not entitled to depose the plaintiff's Narcotics Anonymous sponsor, as this individual had previously been disclosed to the defendants prior to the plaintiff's deposition.
The plaintiff objected to this finding arguing that the defendants had not made a motion for any of this discovery, and it would result in expense and prejudice to the plaintiff if it was allowed. This Court finds such objection to be without merit. As the defendants indicate in their response to the plaintiff's objections, the plaintiff is the party responsible for recommending the possible sanction of preventing the defendants from participating in further discovery. The plaintiff made such recommendation during the plaintiff's rebuttal argument at the hearing on this motion. ECF No. 326 *83. Therefore, whether the defendants made a motion requesting such discovery is irrelevant, as the plaintiff requested a sanction that would prohibit the defendants from ever making such a motion. Based on the plaintiff's request, the magistrate judge addressed this particular sanction. Further, the discovery allowed is very limited, and this Court agrees with the magistrate judge that such discovery is appropriate as it is a result of information learned at the plaintiff's deposition, which did not occur until later in this litigation. Thus, this Court finds no clear error in the magistrate judge's findings on this matter.
*5 In the initial part of the magistrate judge's order, he indicates that the requested relief of not allowing the use of plaintiff's deposition during trial or otherwise, was previously dealt with through a prior report and recommendation concerning the imposition of sanctions against Mr. Cromer, one of the defendants' counsel, for his conduct during the plaintiff's deposition. In that report and recommendation, the magistrate judge indicated that the defendants should not be prevented from using the plaintiff's deposition, but instead that Mr. Cromer should be publicly reprimanded for his actions. Based on this finding, the magistrate judge determined that he need not again address the imposition of this sanction.
The plaintiff argues that the magistrate judge erred in making the determination that he need not address this possible sanction in relation to this motion. The plaintiff argues that he made additional representations in this motion as to why such a sanction would be appropriate, but the magistrate judge did not provide any further analysis as to why this sanction was inappropriate. This Court finds this objection to be without merit. The plaintiff has not shown how the defendants' actions during discovery, which are complained of in this motion, in any way affected the plaintiff's deposition. Therefore, regardless of why the magistrate judge did not address this possible sanction, this Court finds that such a sanction is not appropriate in response to the complained of actions.
For the reasons stated above, the magistrate judge's report and recommendation that plaintiff's motion for default judgment as a sanction be denied and order that plaintiff's motion for sanctions be granted in part and denied in part (ECF No. 324) is hereby ADOPTED and AFFIRMED. Accordingly, the plaintiff's motion for sanctions (ECF No. 279) is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein.
To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants' resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation. And we are not talking about information that might have some tangential bearing on a lead to the discovery of admissible evidence, but emails that specifically discuss Plaintiff's employment at the mine, his termination, and emails about Plaintiff which he has classified as “racist.” Surely these emails are relevant in an employment discrimination case alleging mistreatment based upon race, and should have been produced in response to Plaintiff's first set of discovery requests propounded back in December of 2012.[1] However, it is hard to produce something that Defendants have not even looked for. In fact, despite a litigation hold being placed on four email accounts—all human resource people at the mine or corporate office—in June 2011 when Plaintiff's EEOC complaint was filed, counsel for Defendants did not request any ESI from Defendants' IT department until April 2013. At or around that same time, Defendants placed holds on several other employees' email accounts. Again, these were not people with some obtuse connection to the case, but included the people that actually fired Plaintiff, including the superintendent at the mine that signed the firing paper.
*6 The logical question is: why was this not done? The only proffer by Defendants is that there was a minor miscommunication between counsel and a human resource (HR) manager, who they allege was responsible for collecting materials responsive to Plaintiff's discovery requests. This miscommunication, as stated at the hearing on Plaintiff's motion for sanctions, is that counsel did not specifically tell the HR manager to gather emails. Rather, counsel operated under the assumption that emails would be searched in his directive to find responsive materials. In addition to this failure to search for responsive ESI, Defendants operated a suspicious course while other discovery was playing out. For instance, during a May deposition of the aforementioned HR manager, counsel for Plaintiff asked whether there were any emails exchanged regarding Plaintiff.[2] In response, the witness stated that there were emails but they were given to counsel. Counsel stood silent and the deposition continued. This establishes several things: first, Defendants knew there were relevant emails; second, Defendants had those emails in their possession; third, those emails were not given to Plaintiff, despite Defendants knowing they existed and having them in their possession; and finally, Defendants allowed the deposition to continue without Plaintiff having the benefit of the emails to question the witness about. This is just one instance of Defendants allowing a deposition to take place where there were, what the Court will classify as highly relevant documents, without giving those documents to Plaintiff to use at the deposition.
Defendants now take the “we are where we are” stance and state that they have searched everything, will comply with the deadlines, and are ready to proceed.[3] In response to the late disclosures, Plaintiff has now filed a motion wherein he requests the following sanctions for abuse of the discovery process: (1) default judgment on liability; (2) all reasonable expenses associated with the prior depositions of six employees of Defendants; (3) permission to redepose these six employees at Defendants' expense; (4) permission to depose seven additional employees; (5) exclusion of Plaintiff's deposition at trial or in any motion; (6) denial of any effort to prolong this action; (7) precluding Defendants from conducting any further discovery; and (8) reasonable expenses associated with the instant motion.
On August 7, 2013, the Court held an evidentiary hearing and heard argument on the motion, where Plaintiff called the following witnesses: John Christian Savine, director of information technology at CONSOL; Jason Adkins, manager of human resources at the Ohio Valley operations of CONSOL; and David Renner, attorney for Defendants.[4] Plaintiff also presented several exhibits which he contends show that Defendants idly sat by and let discovery proceed all the while knowing that there were documents responsive and relevant to Plaintiff's claims. Defendant submitted one exhibit which showed the date a hold was placed on each employees' email account. Defendants also made several representations to the Court, including: (1) the email accounts of several individuals connected to Mr. Clay's employment decision were not searched until March 2013; (2) Jason Adkins was responsible for searching for documents, including emails, responsive to Plaintiff's discovery requests; (3) Mr. Adkins did not search for emails, and that an email search did not occur until the aforementioned March 13 date; (4) Mr. Adkins did not bring any emails to his deposition noticed by a subpoena duces tecum; and (5) some of those emails would have been responsive to outstanding discovery requests. Defendants also represented that they are willing to make the six previously deposed employees available for another deposition in Wheeling, and will pay for 2.5 hours of preparation time for those depositions. Further, that they are willing to allow depositions of the seven additional employees, but not at their expense.
*7 The Court will first note that a couple aspects of the requested relief have either been dealt with by this Court or the District Court. Specifically, this Court recommended denial of Plaintiff's prior motion for sanctions against Mr. Cromer for his conduct at Plaintiff's deposition wherein Plaintiff requested that the Court exclude the deposition of Plaintiff in any further proceedings. No objection was made to that recommendation, but it is in the District Court's hands now. Further, the District Court has denied a motion by Defendants' to extend the scheduling order in this action. However, the Court did modify the scheduling order to allow for further discovery.
Before discussing the remaining requests for relief, the Court will outline the available avenues for imposing sanctions. Federal Rule of Civil Procedure 37 provides sanctions for conduct abusive of the discovery process. In particular, and the only one relevant to the instant conduct, subsection (c) provides that “if a party fails to provide information or identify a witness as required by Rule 26(a) or (e) ... the court, on motion and after giving an opportunity to be heard,” can impose sanctions ranging from reasonable expenses, including attorney's fees, to rendering default judgment. FED.R.CIV.P. 37(c)(1)(A)-(C). In turn, Rule 26(a) deals with required initial disclosures, and Rule 26(e) requires supplemental disclosure to any initial discovery or previous response to a discovery request “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” FED.R.CIV.P. 26(e)(1). Further, Rule 26(g) requires attorneys to make a reasonable inquiry before answering or objecting to discovery requests. If the Court finds improper certification, it “must impose an appropriate sanction,” which “may include an order to pay the reasonable expenses, including attorney's fees.” FED.R.CIV.P. 26(g)(3). If a party “impedes, delays, or frustrates the fair examination” of a deponent during a deposition, the court “may impose an appropriate sanction,” including the reasonable expenses and attorney's fees incurred. FED.R.CIV.P. 30(d)(2).
Title 28 U.S.C. § 1927 gives the court the power to impose sanctions on an attorney who “multiplies the proceedings in any case unreasonably and vexatiously,” and provides that any counsel found to engage in such conduct may be required to “satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred.” Finally, there is the Court's inherent power to sanction. “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates. These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotes and cites omitted). However, “[b]ecause of their very potency, inherent powers must be excercised with restraint and discretion,” with the primary aspect of their use being the “ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44–45. With this framework for imposing sanctions in mind, the Court will now discuss the remaining relief requested by Plaintiff.
*8 Although a district court has wide discretion in imposing sanctions, “[w]hen the sanction involved is judgment by default, the district court's range of discretion is more narrow because ... [it] is confronted head-on by the party's right to a trial by jury and a fair day in court.” Mutual Fed. Sav. & Loan Ass'n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir.1989) (internal quotes omitted). These “competing interests require the application of a four-part test: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.” Id. The goal is to “insure that only the most flagrant case, where the party's noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.” Id.
This is not the flagrant case where this harshest sanction should be imposed. First, although Defendants' actions certainly have some suspicion, the Court cannot reach a conclusion that Defendants acted in “bad faith and callous disregard for the authority of the district court and the Rules.” Id. This is not the case where a party has looked over some documents and intentionally withheld them because they were unfavorable. Nor is it the case where a party has disobeyed orders of this Court. Rather, it appears clear that Defendants were just dilatory in participating in discovery, and did not even begin searching for this ESI until Plaintiff was on the brink of filing his second motion to compel. After the motions to compel were granted, it appears that Defendants have started an exhaustive effort to comply with this Court's Orders and meet their responsibilities under the Rules.[5] Further, although somewhat suspect that an attorney would place an HR manager at the forefront of gathering responsive materials, rather than engaging the IT department itself, Defendants aver that this failure to search for ESI was the result of a miscommunication between counsel and client. If true, it is further evidence that there was no bad faith in the lack of responsiveness to Plaintiff's discovery requests. Absent a finding of bad faith, judgment by default is not appropriate. See Nat. Hockey League v. Metro. Hockey Club, 427 U.S. 639 (1976) (per curium). Nonetheless, the Court will discuss the remaining Mutual factors.
Looking to the second factor, Plaintiff has certainly suffered some prejudice because Defendants failed to produce material that was clearly relevant, and necessary to engage in further discovery. However, given the extension of discovery and imposition of less drastic sanctions, most of this prejudice can be alleviated. Time is the only thing that cannot be replaced. Third, as this Court has noted in its prior Orders in this action, there certainly needs to be deterrence for this behavior. It is unacceptable to not search for electronically stored information, especially emails, in this day and age where most communication flows through these channels. Finally, less drastic sanctions can be effective and can reverse most of the prejudice suffered by Plaintiff. Namely, as will be discussed further, infra, Plaintiff will be able to redepose the six employees that they request at Defendants' expense. Further, Plaintiff may exceed the deposition limit imposed and depose the seven additional employees that they seek to depose, but at their own expense. Finally, Plaintiff will be entitled to the reasonable expenses, including attorneys' fees, associated with the bringing of the instant motion. In sum, Defendants actions do not warrant depriving them of their day in court before a jury. Accordingly, this Court RECOMMENDS that Plaintiff's motion for sanctions, as it requests default judgment, should be DENIED.
*9 The depositions that Plaintiff seeks to retake, or take in the first instance, can be divided into two groups. First, there are the six employees of Defendants that Plaintiff has already deposed, but did not have certain discovery for the deposition. Second, there are the seven additional employees that Plaintiff seeks to depose for a first time, either because their names have only recently surfaced or their involvement in Plaintiff's employment only recently became known, or because they forewent deposing those witnesses in the first instance to comply with the ten deposition limit per side in this action. Plaintiff shall be entitled to depose all of these witnesses, but Defendants will only foot the bill for the first set.
These six employees are Mark Courtney, Ken Harvey, Roger King, Mike Sikora, Jonathan Pritts, and Jason Adkins. As noted, these individuals were previously deposed, either in their individual capacity or as Rule 30(b)(6) representatives for the corporate Defendants. And, as discussed, Defendants allowed these depositions to take place without providing Plaintiff with much of his requested discovery, all the while knowing that the discovery existed, and in particular some highly relevant emails existed. Defendants offer no explanation as to why they allowed the depositions to proceed without providing this discovery, only that Defendants advised Plaintiff that they were continuing to search materials that may be responsive. Even when deponent Jason Adkins testified that their were emails, and that he had given them to counsel, counsel stood silent. The Court finds that this “impedes, delays, or frustrates the fair examination of the deponent,” and warrants sanctions under Federal Rule of Civil Procedure 30(d)(2).
The Court finds that an appropriate sanction for this conduct is, first and foremost, making all of these witnesses available for a second deposition. Second, Defendants shall pay all reasonable expenses for these new depositions, including attorneys' fees and five hours of preparation time per attorney. Further, Defendants shall pay all reasonable expenses, including attorneys' fees, for the prior depositions, which they impeded, delayed, and frustrated by allowing them to occur without turning over relevant discovery for use at the depositions. Defendants shall make all the witnesses available for examination within thirty days of the date of this Order, and shall make them available at Plaintiff's counsels' Wheeling, West Virginia office.
These employees are Mark Hrutkay, Gregg Dixon, David Kelly, Kurt Salvatori, Tracy O'Lare, Eric Fergus, and Joanne Bafralli. Plaintiff contends that these employees' roles did not become apparent until after he reviewed a May 29 “document dump” consisting of three banker's boxes of documents. Accordingly, Plaintiff wants permission to exceed the deposition limit and depose these individuals at Defendants' expense. The Court finds that Plaintiff has shown good cause to exceed the deposition limit, but will not require Defendants to pay the costs of examination. First, although Plaintiff contends that these employees' involvement in his termination did not become apparent until the recent discovery production, half of these individuals were disclosed in Defendants' Rule 26 initial disclosures. (See CM/ECF Doc. 48, Ex. 1.) Further, Plaintiff surely had personal knowledge of some of the main actors, which he could have relayed to counsel. Finally, Plaintiff made the strategic choice not to depose some of the individuals. Thus, although Plaintiff has certainly shown good cause to exceed the deposition limit, there is not enough to warrant imposing sanctions on Defendants.
*10 Plaintiff wants the Court to prohibit Defendants from conducting any further discovery in this action. Although it is not set out in their response, the Court has reviewed the transcript of the hearing held before Judge Stamp on July 17, 2013, and has surmised that Defendants want to conduct only the following limited discovery: (1) redeposing Plaintiff about a previously filed employment discrimination case, which only came to light after recent discovery provided by Plaintiff; (2) deposing Plaintiff's narcotics anonymous sponsor, who Defendants claim was only recently revealed during Plaintiff's deposition; (3) depose Devon Cummings, Plaintiff's physician at the Veteran Affairs Hospital; and (4) obtain Plaintiff's medical records from, and depose, Dr. Midcap, who was only recently revealed in errata to Plaintiff's deposition as a treating physician.
First, Plaintiff's narcotics anonymous sponsor was disclosed in his Rule 26 initial disclosures as a potential witness. Defendants never attempted to find out who he was, interview him, or depose him. Accordingly, they have forfeited the right to now depose him. With regard to the other discovery requests, these are all requests relating to information only recently revealed, mostly through Plaintiff's late May 2013 deposition. Thus, Defendants may conduct discovery into only those three limited areas outlined above.
The Court finds that reasonable expenses, including attorneys' fees, may be recovered for the prosecution of this motion. See e.g. Basch v. Westinghouse, 777 F.2d 165 (4th Cir.1985) (finding that it is not an abuse of discretion to assess reasonable expenses, including attorneys' fees, for the filing of a motion for sanctions). Accordingly, Plaintiff is ORDERED to submit an affidavit outlining in detail the reasonable expenses, including attorneys' fees, associated with the prosecution of the instant motion. The affidavit shall be submitted with the other affidavits regarding expenses with the prior and future depositions. After the Court is in receipt of those affidavits, it will give Defendants' an opportunity to be heard on the expenses.
The Court need not invoke its inherent powers to control the discovery process because the Federal Rules of Civil Procedure provide adequate sanctioning power to punish the instant conduct and deter future conduct of the same nature. For the reasons more fully discussed above, the Court:
1. RECOMMENDS that the motion for sanctions, as far as it requests default judgment, be DENIED.
2. GRANTS IN PART AND DENIES IN PART the remainder of the motion for sanctions.
In particular, the Court GRANTS the following relief. (1) All reasonable expenses incurred during the depositions of Mark Courtney, Ken Harvey, Roger King, Mike Sikora, Jonathan Pritts, and Jason Adkins; (2) Permission to redepose these six individuals at Defendants' expense, including five hours of preparation time for the depositions; (3) permission to exceed the deposition limit and depose Mark Hrutkay, Gregg Dixon, David Kelly, Kurt Salvatori, Tracy O'Lare, Eric Fergus, and Joanne Bafralli. Plaintiff shall bear the cost of these depositions; and (4) reasonable expenses, including attorneys' fees, associated with the cost of the instant motion. Defendants are ORDERED to make the witnesses available for deposition within thirty (30) days of the date of this Order. Plaintiff is ORDERED to submit an affidavit detailing all reasonable expenses, including attorneys' fees, within sixty (60) days of the date of this Order.
*11 The Court GRANTS IN PART AND DENIES IN PART Plaintiff's request to preclude Defendants from taking further discovery. In particular, Defendants will only be able to conduct the following discovery: (1) redeposing Plaintiff only regarding a previously filed employment discrimination suit; (2) deposing Plaintiff's VA doctor, Devon Cummings; and (3) securing medical records from, and deposing, Plaintiff's current treating physician, Dr. Midcap. The Court DENIES AS MOOT Plaintiff's motion as it requests the exclusion of Plaintiff's deposition during trial or in any further motions filed with the Court. Further, Plaintiff's request that the Court preclude Defendants from any effort seeking to prolong this litigation is DENIED AS MOOT per Judge Stamp's Order denying Defendants' motion to modify the Scheduling Order.
The Clerk is directed to transmit a copy of this Order to all counsel of record.
IT IS SO ORDERED

Footnotes

Plaintiff has included all of the discovery requests he made which he contends these emails would have been responsive to. The Court will not recite all of the requests, and will only find that these emails would have been responsive.
This deposition was noticed by subpoena duces tecum, but counsel for Defendants instructed the employee deponent not to bring any documents that were company property.
The Court will note that this representation was made by Defendants' new counsel in this action, who only recently took the lead in this case. However, acquiring new counsel does not erase past mistakes.
Defendants objected to Mr. Renner taking the stand, but the Court allowed a narrow inquiry because Defendants have asserted that there was a miscommunication between counsel and CONSOL as a defense to the late production of emails in this action. The Court construed this assertion as a limited waiver of the attorney client privilege under the advice of counsel defense exception to the privilege. See Nicholas v. Bituminous Cas. Co., 235 F.R.D. 325 (N.D.W.V.2006). Accordingly, the Court allowed Plaintiff to very narrowly inquire about any discussion had between Mr. Renner and Jason Adkins regarding a search for emails.
The Court will note that Defendants were compliant with other discovery requests propounded by Plaintiff, but resisted statistical information, and information concerning other employees. The problem with failure to search for ESI is of recent vintage.