Estakhrian v. Obenstine
Estakhrian v. Obenstine
2016 WL 6275599 (C.D. Cal. 2016)
May 17, 2016
Olguin, Fernando M., United States District Judge
Summary
The court found that defendant Obenstine willfully and in bad faith violated Federal Rules of Civil Procedure 26(a) and 26(e) by not disclosing and producing ESI found on his laptop and in bankers' boxes. As a result, the court imposed sanctions including an adverse inference jury instruction, striking Obenstine's affirmative defenses, and awarding plaintiffs reasonable attorney's fees and costs.
Additional Decisions
James ESTAKHRIAN, et al.
v.
Mark OBENSTINE, et al.
v.
Mark OBENSTINE, et al.
CV 11-3480 FMO (CWx)
United States District Court, C.D. California
Filed May 17, 2016
Counsel
Dan L. Gildor, Mark A. Chavez, Nance F. Becker, Chavez and Gertler LLP, Mill Valley, CA, Raymond C. Fay, Fay Law Group PLLC, Steven M. Skalet, Merhi and Skalet PLLC, Washington, DC, S. Ron Alikani, Irvine Law Group LLP, Irvine, CA, for James Estakhrian, et al.Harry A. Safarian, Alexis Ara Baroian, Safarian and Baroian LLP, Glendale, CA, Kenneth Charles Feldman, Larissa G. Nefulda, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA, for Mark Obenstine, et al.
Olguin, Fernando M., United States District Judge
Proceedings: (In Chambers) Order Accepting Findings, Conclusions and Recommendations Set Forth in Special Master's Order of February 29, 2016
*1 Pursuant to Rule 53 of the Federal Rules of Civil Procedure, the court has conducted a de novo review of the records herein, the Special Master's Order Granting Plaintiffs' Motion for Sanctions, filed on February 29, 2016, (Dkt. 422, “Special Master's Order”), and the Objections to the Special Master's Order (see Dkt. 431, Defendant Mark Obenstine's Objections to Special Master's February 29, 2016 Order [ ] (“Deft's Obj.”); Dkt. 432, Plaintiffs' Objection to Special Master's Order (“Pitts' Obj.”)).[1] The court finds that oral argument is not necessary to resolve the parties' objections to the Special Master's Order, see Fed. R. Civ. P. 78; Local Rule 7-15; Willis Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.
INTRODUCTION
On December 22, 2015, putative class action plaintiffs James Estakhrian and Abdi Naziri (“plaintiffs”) filed their motion for sanctions against defendant Mark Obenstine (“defendant” or “Obenstine”). (See Dkt. 390, Plaintiffs' Motion for Sanctions (“Sanctions Motion”)). Obenstine opposed the Sanctions Motion for multiple reasons, including that it was a discovery motion that should have been referred to the Special Master, the Han. Rosalyn Chapman (Ret.). (See Dkt. 391-1, Declaration of Harry A. Safarian in Support of Opposition to Plaintiffs' Motion for Sanctions [ ] (“Safarian Decl.”) at ¶ 5) (“I reminded Plaintiffs' counsel repeatedly of Judge Chapman's role ..., and asked that all discovery issues—such as this one—be handled in compliance with the Court's reference to Judge Chapman.”). The court agreed with Obenstine, stating that plaintiffs' motion “is truly a discovery motion that should have been noticed for hearing before the Special Master,” (Dkt. 397, Court's Order of January 19, 2016, at 1), and denied the Sanctions Motion without prejudice to plaintiffs refiling their motion with the Special Master. (See id. at 2).
On February 5, 2016, plaintiffs filed their Sanctions Motion with the Special Master. After oral argument and considering all the briefing filed by the parties with respect to the Sanctions Motion, the Special Master issued an Order granting the Sanctions Motion. (See Dkt. 422, Special Master's Order at 1-2 & 24-25). In her Order, the Special Master made the following findings:
■ Obenstine did not disclose in his Rule 26(a)[2] initial disclosures the existence of documents regarding Daniel Watt et al. v. Nevada Property 1, LLC, et al., Case No. A582541 (“Nevada litigation”) located on his laptop and one or two bankers boxes (“undisclosed documents” or “subject documents”). (See Dkt. 422, Special Master's Order at 5) (citing Dkt. 390-1, Declaration of S. Ron Alikani in Support of Plaintiffs' Motion for Sanctions (“Aiikani Decl.”) at 390-2, Exhibit (“Exh.”) C (Obenstine's Initial Disclosures)).
*2 ■ On or about December 12, 2011, in response to a document request seeking the production of “[a]ll Documents authored or generated by [Obenstine], any of the other Defendants, Donna Billiter, or Kay Jackson, and sent to or received by [Obenstine], any of the other Defendants, Donna Billiter, or Kay Jackson concerning, referring to, or relating to the [Nevada litigation], or any of the plaintiffs, defendants, class members, or putative class members in the [Nevada l]itigation,” Obenstine responded, among other things, that he “has no documents in his possession, custody or control responsive to this request that are not protected from disclosure based on the foregoing privileges/doctrines.” (Dkt. 422, Special Master's Order at 5-6) (citing Dkt. 390-1, Alikani Decl. at Dkt. 390-2, Exh. B). Obenstine did not produce any documents or privilege log in response to this request. (See id. at 6).
■ On or about December 30, 2013, in response to a document request seeking the production of “[a]ll documents constituting, evidencing, concerning, referring to, or relating to the disbursement of settlement proceeds to class members in [the Nevada litigation], including Documents identifying the entity that administered the settlement and Documents identifying the entity that issued the settlement checks[,]” Obenstine responded, among other things, that he “has conducted a search for responsive materials, and has yet to locate documents responsive to this request other than those already produced.” (Dkt. 422, Special Master's Order at 6-7) (citing Dkt. 390-1, Alikani Decl. at Dkt. 390-2, Exh. D).
■ Obenstine never supplemented his initial disclosures or his responses to the subject document requests pursuant to Rule 26(e). (See Dkt. 422, Special Master's Order at 13).
■ At his September 17, 2015 deposition, Obenstine disclosed the existence of the undisclosed documents. (SeeDkt. 422, Special Master's Order at 7-10) (citing Dkt. 390-1, Alikani Decl. at Dkt. 390-2, Exh. A).
The Special Master found that Obenstine willfully and in bad faith violated Rule 26(a) by not providing “a description by category and location” of the undisclosed documents, and willfully and in bad faith violated Rule 26(e) by not supplementing his deficient initial disclosures and discovery responses. (See Dkt. 422, Special Master's Order at 15 & 16). While, “[i]n the Special Master's opinion, Plaintiffs have shown sufficient prejudice to justify striking Defendant Obenstine's Answer and rendering a default judgment against him[,]” (id. at 20), the Special Master imposed less drastic sanctions given “the dearth of prior sanctions against” Obenstine. (Id.). The Special Master issued an evidentiary sanction prohibiting Obenstine from using the documents he failed to disclose, i.e., those documents on his laptop and the bankers boxes. (See id. at 20-21). However, given Obenstine's admission that “the evidentiary prohibition under Rule 37(c)(1) will not be a real sanction against Defendant Obenstine since it will merely preclude him from doing something he did not intend to do[,]” (id. at 22), the Special Master imposed additional sanctions, including: (1) an adverse inference jury instruction that Obenstine willfully and in bad faith failed to disclose relevant documents he had in his possession; (2) striking the affirmative defenses in his answer; and (3) ordering Obenstine and his attorney, Harry Safarian, to pay plaintiffs' reasonable expenses and attorney's fees in connection with the Sanctions Motion. (See id. at 22-23).
DISCUSSION
I. DEFENDANT'S OBJECTIONS.
A. Objections to Special Master's Order.
Obenstine asserts several objections to the Special Master's Order. First, Obenstine contends that the Special Master erred when she concluded that Obenstine did not produce any documents in response to plaintiffs' discovery requests. (See Dkt. 431, Deft's Obj. at 2-3). According to Obenstine, he produced 7,996 pages in 2012, and 100,000 pages in 2015 from the “Crestridge account.” (See id. at 2; Dkt. 391, [Obenstine's] Opposition to Plaintiffs' Motion for Sanctions[ ] at 4) (referring to “Crestridge Production”). Obenstine improperly seeks to take credit for producing documents that were produced as a result of a third-party subpoena. In 2012, Crestridge Partners, Inc. (“Crestridge”), not Obenstine, produced 7,996 pages of discovery. (See Dkt. 391, [Obenstine's] Opposition to Plaintiffs' Motion for Sanctions[ ] at 4). Similarly, in 2015, the court ordered Crestridge—not Obenstine—to produce the 100,000 pages of discovery. (See Dkt. 334, Court's Order of July 14, 2015, at 1-5 & 8-9). The only documents produced by Obenstine were, as the Special Master noted, a series of 2009 email exchanges between him and Reza Jafary (“2009 Jafary emails”), which were produced in 2012. (See Dkt. 422, Special Master's Order at 13).
*3 Second, Obenstine contends that Rule 26(a)(1)(A)(ii) only requires a party to disclose all documents within his “possession, custody, or control and may use to support [his] claims or defenses,” and Obenstine never had in his possession any documents “he ‘may’ have intended to ‘use to support his claims or defenses[,]’ ” including the undisclosed documents.[3] (Dkt. 431, Deft's Obj. at 3) (emphasis omitted). Obenstine's contention is unpersuasive. As an initial matter, Obenstine's discovery violations are premised not just on his failure to comply with his initial disclosure obligations but also on his failure to produce the subject documents either in response or as a supplemental response to relevant document requests. (See Dkt. 422, Special Master's Order) (“Defendant Obenstine willfully and in bad faith violated Rule 26(a) ... [and] Rule 26(e) by not supplementing his deficient Initial Disclosures”); (id. at 16) (Obenstine “should have immediately supplemented his responses to RPD, Sets One and Two, under Rule 26(e)”). Further, Obenstine's interpretation of his disclosure obligations under Rule 26(a) is unduly narrow. A party's “disclosure should describe and categorize, to the extent identified during the initial investigation, the nature and location of ... documents and records [it potentially will use in the proceeding], including computerized data and other electronically-recorded information, sufficiently to enable opposing parties (1) to make an informed decision concerning which documents might need to be examined, at least initially, and (2) to frame their document requests in a manner likely to avoid squabbles resulting from the wording of the requests.” 1993 Adv. Comm. Notes to Fed. R. Civ. P. 26(a). What's more, as the Special Master noted, Obenstine did use documents from his laptop and bankers boxes.[4] (See Dkt. 422, Special Master Order at 14). For example, he produced the 2009 Jafary emails that “Obenstine was able to salvage ... after many hours of searching on a computer, or from limited written materials he had concerning the [Nevada] litigation.” (Dkt. 391-1, Safarian Decl. at 2; see Dkt. 422, Special Master Order at 14). As the Special Master stated, “Defendant Obenstine cannot deny that the undisclosed documents are relevant as they include documents related to the Cosmopolitan matter and all of his Crestpar emails – including the 2009 emails with Mr. Jafary. In fact, Defendant Obenstine did use the 2009 emails with Mr. Jafary when he found them to be helpful to his defense, thereby belying his claim that he did not disclose the documents because he did not intend to use them.” (Dkt. 422, Special Master's Order at 14) (emphasis in original).
Third, Obenstine asserts that it was “fundamentally unfair” to impose sanctions because plaintiffs failed to properly meet and confer. (See Dkt. 431, Deft's Obj. at 4). However, as the Special Master noted, plaintiffs made multiple attempts to meet and confer with Obenstine's counsel, which he refused to do. (See Dkt. 422, Special Master Order at 12 n. 2; Dkt. 393-1, Declaration of S. Ron Alikani in Support of Plaintiff's Reply Brief (“Aiikani's Reply Decl.”) at Dkt. 393-2, Exh. B (multiple email exchanges from December 3 to December 14, 2015 where Obenstine's counsel refused to meet and confer)). Here, the failure to participate in the meet and confer process was largely due to Obenstine's counsel. (See, Dkt. 393-1, Alikani's Reply Decl. at Dkt. 393-2, Exh. B at ECF 8720, 8722 & 8736 (Obenstine's counsel's multiple refusals to meet and confer, and asking that opposing counsel “not communicate with [him] again[,]” and “reserv[ing] the right to block emails from [plaintiffs' counsel]”)). Further, the Special Master has the discretion to ignore procedural deficiencies and hear the Sanctions Motion, especially where, as here, the parties were given a full opportunity to brief the issues. As the Special Master noted, the serious nature of the Sanctions Motion, the rapidly approaching trial date, and the fact that plaintiffs learned of the discovery violations at the end of the close of fact discovery, militated toward hearing the Sanctions Motion. (See Dkt. 422, Special Master's Order at 12).
Finally, Obenstine contends that “[i]t was improper” for the Special Master to serve as “a neutral tasked with ... arriving at a settlement” and with “the authority to issue severe sanctions[.]” (Dkt. 431, Deft's Obj. at ¶ 5). Obenstine, however, cites no authority to support this contention.[5] (See, generally, id.). Nothing in Rule 53 prohibits a Special Master from both mediating and resolving discovery motions in the same action. Indeed, Obenstine's counsel readily acknowledged this when he “reminded Plaintiffs' counsel repeatedly of Judge Chapman's role ..., and asked that all discovery issues—such as this [Sanctions Motion]—be handled in compliance with the Court's reference to Judge Chapman.” (See Dkt. 391-1, Safarian Decl. at 5) (emphasis added). That Obenstine is unhappy with the result does not make the Special Master's dual role “improper.”
B. Severity of Sanctions.
*4 Obenstine asserts that the 2012 production of the 2009 Jafary emails gave plaintiffs notice that Obenstine did not disclose the subject documents, (see Dkt. 431, Deft's Obj. at 6 & 10), and that plaintiffs failed to act after they received that notice. However, the court shares the Special Master's “unwilling[ness], without [any] supporting documentary evidence, to give credence to [Safarian's] recollection of conversations about discovery in complex litigation, such as this, which occurred several years ago.” (Dkt. 422, Special Master Order at 14; see Dkt. 391-1, Safarian Decl. at ¶ 2). Moreover, while Obenstine's counsel acknowledges that plaintiffs “raised questions” as to the source of the 2009 Jafary emails, the fact remains that Obenstine's counsel did not make transparent to plaintiffs' counsel the existence of the undisclosed documents. A party is not required to divine an opposing counsel's murky statements; rather, Obenstine and his counsel had an obligation to give plaintiffs notice of the undisclosed documents in his initial disclosures and produce the subject documents either in response to plaintiffs' document requests or as supplemental responses to the document requests. See Fed. R. Civ. P. 26(a), 26(e) & 34.
Obenstine next contends that there was no showing of prejudice because the undisclosed documents are merely duplicative of what has already been produced. (Dkt. 431, Deft's Obj. at 5). According to Obenstine, “Plaintiffs have been unable to point to any gaps in the documents produced that would indicate a single email or page was excluded.” (Id. at 8). “Thus, any breach of discovery was, at worst, technical.” (Id. at 9).
Again, the court agrees with the Special Master that there is no way to validate defendant's contention given Obenstine's failure to disclose the existence of the subject documents in his initial disclosures, or produce the documents (either initially or as a supplemental response) in response to plaintiffs' document requests. As the Special Master stated:
Without knowing Defendant Obenstine possessed relevant documents on the laptop and in the bankers' boxes, Plaintiffs could not take whatever steps were necessary to obtain those documents from Defendant Obenstine. And without obtaining the documents in Defendant Obenstine's possession in 2012, and comparing those documents to the documents Plaintiffs obtained from other parties and nonparties, it is not possible for Plaintiffs to know whether Defendant Obenstine's violation of Rule 26(a)was harmless.
(Dkt. 422, Special Master's Order at 21) (footnote omitted). Moreover, plaintiffs have found at least one email from Obenstine regarding the Nevada litigation that was not produced by any other party, (see Dkt. 393, Reply Brief in Support of Plaintiffs' Motion for Sanctions at 9; Dkt. 422, Special Master Order at 21 n. 6), which further undermines Obenstine's contention that his failure to disclose or produce the subject documents was harmless.
Obenstine next contends that the Special Master did not give enough consideration to his December 9, 2015, offer to produce the undisclosed documents. (See Dkt. 431, Deft's Obj. at 3; Dkt. 393-1, Alikani Reply Decl. at Dkt. 393-2, Exh. B at ECF 8728). However, as the Special Master stated, “it is important to note that the offer was only after Plaintiffs advised Defendant Obenstine of their intention to file the Motion for Sanctions. As Plaintiffs aptly point out, this was after the deposition of Defendant Obenstine and after the discovery and expert discovery cut-off dates had passed, so that obtaining the information would not assist Plaintiffs.” (Dkt. 422, Special Master's Order at 19). Under the circumstances here, “belated compliance with discovery orders does not preclude the imposition of sanctions[.]” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.), cert. denied, 537 U.S. 1018 (2002).
Finally, Obenstine argues that the sanctions are excessive because there is no suggestion that Obenstine destroyed any evidence. (See Dkt. 431, Deft's Obj. at 9-10). However, the Special Master imposed sanctions for Obenstine's willful and bad faith failure to disclose and produce the subject documents in violation of Rule 26(a), 26(e), and 34, not the spoliation of evidence. (See Dkt. 422, Special Master's Order at 15 & 16). Nor does the court believe the sanctions are excessive.[6] The imposition of the adverse inference jury instruction is appropriate because, “[j]ust as the intentional or grossly negligent destruction of evidence in bad faith can support an inference that the destroyed evidence was harmful to the destroying party, so, too, can intentional or grossly negligent acts that hinder discovery support such an inference, even if those acts are not ultimately responsible for the unavailability of the evidence[.]” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 110 (2d Cir. 2002) (citation and emphasis omitted); Cal. Prac. Guide Fed. Civ. Pro. Before Trial § 11:153, at 11-27 (The Rutter Group 2016) (citing Residential FundingCorp, stating “purposeful sluggishness” can support an adverse inference instruction). In addition, a court “may impose the sanctions of striking a defense or deeming a fact as established when a preponderance of the evidence establishes that a party's misconduct has tainted the evidentiary resolution of the issue.” Bayoil, S.A. v. Polembros Shipping Ltd., 196 F.R.D. 479, 482 (S.D. Tex. 2000) (internal quotation marks omitted); Cal. Prac. Guide Fed. Civ. Pro. Before Trial at § 11:154, at 11-28. Under the circumstances here, Obenstine's repeated failure to identify or produce the undisclosed documents either in his Rule 26(a) initial disclosures, or in response, including supplemental disclosures and responses, to the subject discovery requests, justify the imposition of the sanctions ordered by the Special Master. Further, Obenstine's efforts to cherry-pick and produce only documents favorable to him is troubling with respect to the 2009 Jafary emails, since the emails came from the same laptop and bankers boxes that contained the undisclosed documents. (See Dkt. 391-1, Safarian Decl. at ¶ 2) (“Mr. Obenstine was able to salvage the chain of emails after many hours of searching on a computer, or from limited written materials he had concerning the Cosmopolitan litigation (I was unsure which).”). This has tainted the evidentiary resolution of the issues in this case.
II. PLAINTIFFs' OBJECTIONS.
A. Special Master's Denial of Terminating Sanctions.
*5 Plaintiffs contend that the Special Master erred when she declined to impose terminating sanctions against Obenstine. (See Dkt. 432, Pitt's Obj. at 4-9). Generally, a court must consider “the impact of the sanction and the adequacy of less drastic sanctions[,]” United States v. Nat'l Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986), before ordering terminating sanctions. In conducting the lesser sanctions inquiry, the court examines the following factors: (1) the feasibility of less drastic sanctions and why alternative sanctions would be inadequate; (2) whether alternative methods of sanctioning or curing the malfeasance were implemented before ordering dismissal; and (3) whether the party has been warned of the possibility of dismissal before actually ordering dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988); Anheuser-Busch. Inc. v. Nat'lBeverage Distribs., 69 F.3d 337, 352 (9th Cir. 1995); Leon v. lOX Sys. Corp., 464 F.3d 951, 960 (9th Cir. 2006).
The court agrees with the Special Master that the “the dearth of prior sanctions against” Obenstine militates against the imposition of terminating sanctions. (Dkt. 422, Special Master at 20). The lesser sanctions imposed by the Special Master are sufficient under the circumstances here.
B. Attorney's Fees and Costs.
Plaintiffs contest the Special Master's Order requiring that Obenstine and Obenstine's counsel, Harry Safarian, pay plaintiffs' reasonable expenses and attorney's fees in connection with the Sanctions Motion. (See Dkt. 432, Pitt's Obj. at 9-10). According to plaintiffs, fees and costs in connection with all discovery-related motions and proceedings are warranted. (See id.). The court disagrees, as plaintiffs sought third-party discovery for reasons other than Obenstine's failure to disclose documents in his possession, custody, or control. (See, Dkt. 281, Plaintiffs' Supplemental Reply Brief in Support of Motion to Compel Documents Withheld or Redacted from Second Set of Crestridge Production at 2) (“Plaintiff's counsel provided numerous examples of issues other than jurisdiction to which the subpoenas were relevant.”).
This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
CONCLUSION
Having made a de novo determination of the Special Master's Order, all the objections filed by the parties and the record before the court, the court concurs with and accepts the findings and conclusions of the Special Master. Accordingly, IT IS ORDERED THAT:
1. The court hereby concurs and accepts the Special Master's Order (Dkt. 422), and issues sanctions as follows:
a. Defendant Obenstine shall not be allowed at trial to use or rely on any documentary evidence he did not disclose to plaintiffs; thus, he may only use or rely on the 2009 Jafary emails.
b. The jury shall be informed by an adverse inference jury instruction that Obenstine willfully and in bad faith refused to disclose to plaintiffs relevant documents he had in his possession, custody or control.
c. The affirmative defenses in Obenstine's Answer to the Second Amended Complaint (Document No. 383) are hereby stricken.
d. Plaintiffs shall be awarded reasonable attorney's fees and costs in connection with the instant Sanctions Motion against Obenstine and his attorney, Mr. Harry Safarian, jointly and severally, in an amount to be determined by the Special Master. Plaintiffs may file their motion for attorney's fees and costs with the Special Master no later than 14 days from the filing date of this Order. The Special Master shall then set a briefing schedule for the opposition and reply. Counsel for the parties are excused from the meet and confer requirement with respect to the instant motion for attorney's fees and costs.
*6 2. The Clerk shall serve a copy of this Order on the Special Master.
Footnotes
The court reviews de novo all objections to findings of fact and conclusions of law made by the Special Master. See Fed. R. Civ. P. 53(f)(3) & (4); (Dkt. 358, Court's Order of September 14, 2015, Appointment of Special Master, at 3) (“The timing, procedures, and standard of review for objection and response to any ruling issued by the Special Master shall be governed by Federal Rule of Civil Procedure 53(f)”).
Unless otherwise noted, all “Rule” references are to the Federal Rules of Civil Procedure.
This assertion appears to contradict Obenstine's contention that he should not be sanctioned because he produced thousands of pages of documents. (See Dkt. 431, Deft's Obj. at 2) (Obenstine “produced every single document in his possession concerning the [Nevada litigation], including “every email he ever sent or received from the Crestridge account, which ... exceeded 100,000 pages.”). Obenstine attempts to claim credit for the documents produced by Crestridge—a third party—but he refuses to take responsibility for the documents on his own laptop and the bankers' boxes in his custody.
Obenstine contends that he is unsure whether the 2009 Jafary emails came from the laptop or the banker's boxes. (See Dkt. 391-1, Safarian Decl. at ¶ 2) (“Mr. Obenstine was able to salvage the chain of emails after many hours of searching on a computer, or from limited written materials he had concerning the Cosmopolitan litigation (I was unsure which).”).
In this District, magistrate judges regularly mediate the same action in which they hear discovery disputes, including sanctions motions. (See General Order No. 05-07, at 2 & 3) (a full time magistrate may hear “[d]iscovery-related matters upon referral by the District Judge to whom the case is assigned” and “[s]ettlement conferences in cases to which the Magistrate Judge is assigned, upon referral by the District Judge”). Under Obenstine's view, the court's General Order is invalid because magistrate judges would not be able to resolve discovery disputes and conduct settlement proceedings in the same case. There is simply no authority for that proposition.
Just as he did before the Special Master, Obenstine “takes no exception to being limited to using documents previously produced, as there are no other documents he is aware of.” (Dkt. 431, Deft's Obj. at 8); (see Dkt. 422, Special Master's Order at 22 (Obenstine admits that “the evidentiary prohibition under Rule 37(c)(1) will not be a real sanction against[ ] Obenstine since it will merely preclude him from doing something he did not intend to do.”)).