FIRST COAST ENERGY, L.L.P., Plaintiff, v. MID–CONTINENT CASUALTY COMPANY, Defendant No. 3:12–cv–281–J–32MCR United States District Court, M.D. Florida, Jacksonville Division Signed September 02, 2015 Counsel George W. Hatch, III, Mary K. Simpson, Robert D. Fingar, Catherine Barbara Chapman, Jennifer Ann Sullivan Davis, Guilday, Schwartz & Simpson, West, Hatch & Lowe, PA, Tallahassee, FL, for Plaintiff. Dustin Craig Blumenthal, John R. Catizone, Michael K. McCaffrey, Litchfield Cavo, LLP, Ft. Lauderdale, FL, for Defendant. Corrigan, Timothy J., United States District Judge ORDER ON REPORT AND RECOMMENDATION *1 The question presented is when do discovery violations become sufficiently serious to warrant entry of a partial default as a sanction. This case is before the Court on Plaintiff First Coast Energy, L.L.P.'s Amended Renewed Motion for Sanctions Including Default Judgment (Doc. 145). The assigned United States Magistrate Judge issued a Report and Recommendation (Doc. 166) recommending that the motion be granted and that, as a sanction, default be entered against Defendant Mid–Continent Casualty Company on First Coast's first-party bad-faith claim. Mid–Continent filed written objections to the Report and Recommendation. (Doc. 167.) First Coast responded to the objections. (Doc. 170.) With leave of court, Mid–Continent filed a reply in support of its objections. (Doc. 174.) The matter is now before the undersigned for review. I. STANDARD OF REVIEW After conducting a careful and complete review, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); M.D. Fla. R. 6.02(a); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982). The district judge must make de novo determination of those portions of the report and recommendation to which a specific objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Such objections “must ‘pinpoint the specific findings that the party disagrees with.’ “ Roundtree v. Bush Ross, P.A., 304 F.R.D. 644, 650 (M.D.Fla.2015) (quoting United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir.2009) and citing Leatherwood v. Anna's Linens Co., 384 F. App'x 853, 857 (11th Cir.2010)). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo. Id.; Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993). Even without objections, though, the district judge must review legal conclusions de novo. See Cooper–Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994); Owings v. T–Mobile USA, Inc., 978 F.Supp.2d 1215, 1217 (M.D.Fla.2013). A magistrate judge may recommend a resolution of even dispositive matters, consistent with Article III of the Constitution, “ ‘so long as the entire process takes place under the district court's total control and jurisdiction, and the judge exercises the ultimate authority to issue an appropriate order.’ “ Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir.2006) (quoting Thomas v. Arn, 474 U.S. 140, 153, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). First Coast contends that many of Mid–Continent's objections merely restate arguments initially made in response to the motion for sanctions and are not specific objections to the Report and Recommendation. The Court determines, however, that most of the objections are sufficiently specific, and it would, in any event, consider de novo all issues that require addressing. See id. (“Even if no objections to the findings or recommendations have been filed, the district court may under take ‘further review ..., sua sponte or at the request of a party, under a de novo or any other standard.” (quoting Thomas, 474 U.S. at 154)). II. THE PARTIES' POSITIONS *2 The Magistrate Judge has done a yeoman's work sifting through an unnecessarily complicated history of interrogatory answers and the production and nonproduction of documents over more than two years of discovery. That effort will not be reproduced here. Instead, the undersigned addresses the supposed errors in the retelling of the history that Mid–Continent says it identified in the Report and Recommendation, as well as Mid–Continent's objections to the outcome recommended by the Magistrate Judge. A. Mid–Continent's Objections Mid–Continent does not contest that the Magistrate Judge employed the correct standard for the imposition of sanctions. Instead, Mid–Continent's objections boil down to the contention that default is too harsh a sanction for what it calls inadvertent oversights inaccurately characterized in the Report and Recommendation as “gross negligence rising to the level of bad faith.” Mid–Continent acknowledges that documents that should have been produced in 2012, like electronic claim notes, were not produced until 2014, but says its discovery errors were neither willful nor as widespread and prejudicial as the Report and Recommendation finds. Mid–Continent believes that its efforts to investigate and fix the problems were also undertaken in good faith, have been successful, and have shown that very few relevant documents were produced late. Mid–Continent also disputes that the affidavits it produced about the problem and its investigation contain any falsities. According to Mid–Continent, the task of responding to First Coast's interrogatories on coverage determinations and denials in other claims required a “monumental” and “continued good faith investigation.” Mid–Continent contests that First Coast has suffered any prejudice, taking issue with certain of First Coast's representations about what was produced and when, as well as the importance of those documents to the case. Mid–Continent also takes issue with the adequacy of the Magistrate Judge's review of the evidence and depiction of discovery in the Report and Recommendation, particularly any suggestion that discovery extensions were solely Mid–Continent's fault, that Mid–Continent did not advance good faith objections to production based on relevance and privilege, or that Mid–Continent was solely responsible for the continuance of trial in January 2014. Mid–Continent urges the undersigned to reject the Report and Recommendation and, if necessary, to enter a sanction other than default. B. First Coast's Response First Coast challenges whether Mid–Content has presented the kind of “specific written objections” required by Federal Rule of Civil Procedure 72(b)(2), instead of just rearguing its opposition to the motion for sanctions. First Coast also charges Mid–Continent with misrepresenting the findings in the Report and Recommendation. In particular, First Coast does not understand the Report and Recommendation to depend solely on the sheer number of pages of documents produced since the motion was filed, but also on Mid–Continent's repeated assurances that production was complete, only for First Coast to inquire and ultimately prove the assurances wrong. First Coast suggests that, contrary to Mid–Continent's representation, the Report and Recommendation does address Mid–Continent's affidavits, but found that the subsequent deposition testimony showed that no adequate search, including for e-mails and training materials, was undertaken when discovery responses were initially due. First Coast also disputes Mid–Continent's characterization of the reasons it needed to serve sixth, seventh, eighth, ninth, and tenth supplemental responses to requests for production and of the relevance of the documents produced with those supplemental responses. And First Coast finds none of Mid–Continent's explanations for the lateness of its supplemental interrogatory answers adequate. First Coast believes that default is the only appropriate sanction in light of Mid–Continent's allegedly false affidavits and late production of important documents like captioned reports and the reserve history for this claim. First Coast questions whether any other sanction could provide assurance that Mid–Continent has produced all discoverable materials in its possession, custody, or control. III. ANALYSIS *3 The Court has reviewed the parties' briefing on the amended renewed motion for sanctions, the Report and Recommendation, the briefing on Mid–Continent's objections to the Report and Recommendation, and the various exhibits to the parties' filings. (Docs.145, 148, 154, 162, 166, 167, 170, 174.) With only minor modification, the Court adopts the factual findings of the Magistrate Judge, overruling Mid–Continent's objections. To begin with, it was appropriate for the Magistrate Judge to consider the number of Mid–Continent's supplemental responses after the deadline as some evidence of bad faith.[1] Frankly, Mid–Continent's contention that the repeated supplements were Mid–Continent's effort to stagger production to “give First Coast time to digest” is ridiculous. The Court is not aware of any order or agreement allowing for the “staggered” production of documents that should have been produced years earlier. Instead, based on a review of the supplemental responses, the repeated supplementation is an indication of an inadequate initial investigation followed by a disjointed effort to search for responsive documents only after the Court stepped in to address the deficiencies.[2] As for the volume of documents produced late, the undersigned agrees with First Coast that, in some circumstances, who or where a document came from may be significant even if the document itself appears duplicative of one already produced. Thus, the Magistrate Judge was not wrong to estimate the pages of late-produced documents in the thousands. Moreover, even using Mid–Continent's numbers without potential duplicates, a significant number of documents were produced nearly two years after they should have been. The undersigned also agrees with First Coast that at least some of the late-produced documents are important. For instance, Mid–Continent kept a reserve log as part of the claim file for the underlying claim, but did not produce it until later, meaning First Coast had to piece together its own understanding of the reserve history from various documents. For another, though Mid–Continent says its initial production included “captioned reports,” First Coast correctly responds that the captioned report Mid–Continent attaches to its objections was not for the underlying claim, but for another claim. That report was also not produced until November 2013. Captioned reports for the underlying claim are indisputably relevant, but were not produced until September 2014. Accepting for the sake of argument that Mid–Continent inadvertently failed to produce its electronic claim notes for the underlying claim, its failure to produce other documents, like the captioned reports mentioned in those electronic claim notes, further supports the conclusion that Mid–Continent's initial investigation was woefully inadequate.[3] The undersigned rejects the contention that Mid–Continent “had no reason to question the completeness of the electronic claim file prior to April 23, 2014,” when counsel for First Coast inquired. (Doc. 167 at 9.) Instead, the undersigned agrees with the Report and Recommendation that the May 15, 2013 Order (Doc. 54) was one such reason to double-check. Repeated inquiries from plaintiff's counsel about electronic claim notes and other documents should have served as further reminders.[4] But the inquiries were instead met with false assurances that production was complete. *4 Setting aside the late production of electronic claim notes and other materials from the file for the underlying claim, Mid–Continent has not provided a satisfactory reason for the repeated and late supplementation of its responses to First Coast's interrogatories and document requests regarding other pollution/environmental claims. First Coast's first set of interrogatories and document requests were served on August 28, 2012. (Docs.145–1, 145–2.) On November 1, 2013, the Court limited the production of actual claim files to claims where coverage had been determined. (Doc. 76.) But as late as December 17, 2014, Mid–Continent was still disclosing additional denied claims covered by First Coast's first set of interrogatories (Doc. 154–11), despite repeated requests and a court order. (See, e.g., Docs. 145–6, 145–17.) The primary explanation for the delay proffered by Mid–Continent appears to be that searching its claims has been a “monumental” undertaking.[5] Maybe. But such a large project should have begun in earnest earlier in the case, and not, as it appears, only after the Magistrate Judge granted First Coast's first motion for sanctions on July 17, 2014 and ordered Mid–Continent to submit to depositions on its discovery compliance. Mid–Continent blames First Coast for some of the delay by not identifying what other claim denials it had independently found that were not in Mid–Continent's interrogatory answers. Similarly, First Coast discovered that training materials had been produced in another case before Mid–Continent agreed to produce them in this case.[6]These instances evince, at the very least, a backwards treatment by Mid–Continent of discovery obligations, where documents are only produced when the requesting party asks for them repeatedly and by name. See Tarlton v. Cumberland Cnty. Corr. Facility, 192 F.R.D. 165, 170 (D.N.J.2000). Having addressed those of Mid–Continent's specific objections that require attention, the undersigned turns its focus to the recommendation of default. Again, Mid–Continent does not object to the Report and Recommendation's recitation of the standard for imposing default as a sanction. As the Report and Recommendation notes, “ ‘fashioning appropriate sanctions for violations of discovery orders' “ is a matter for the court's discretion. (Doc. 166 at 22 (citing Sussman v. Salem, Saxon, Nielsen, P.A., 154 F.R.D. 294, 298 (M.D.Fla.1994).) The Report and Recommendation also properly recognizes that the sanction of a default is a last resort for “ ‘willful or bad faith disregard of those orders' “ and “ ‘when less drastic sanctions would not ensure compliance with the court's orders,’ “ even if the court has not already tried lesser sanctions. (Id. at 22–23 (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.1986) and Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir.1993).) The sanction of default may be used not only to penalize the offending party, but also “to deter those who might be tempted to such conduct in the absence of such a deterrent.” (Id. (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).) *5 Mid–Continent believes the circumstances in this case compare most closely to those in Florida Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514 (11th Cir.1996) and Altmone v. Coca–Cola Bottling Co. of New York, Inc., 169 F.R.D. 246 (D.Conn.1996). In Florida Power & Light, the Eleventh Circuit affirmed the district court's decision not to enter default judgment against one of the defendant for waiting seventeen months to produce documents it had been ordered to produce. Id. at 1521. The district court had not abused its discretion because its order set no deadline for production and essentially no one disputed that the one relevant, but late-produced, document hardly helped the plaintiff. Id. In Altmonte, the plaintiff first failed to timely serve a required damages analysis and then failed to timely file his witness and exhibit lists. Altmonte, 169 F.R.D. at 247–48. The defendant labeled these errors as a “blatant disregard for this Court's orders” warranting dismissal. Id. The court agreed that “Plaintiff appears to have little concept of his schedule compliance obligation,” id. at 248, but declined to dismiss his claims because he had no prior notice that dismissal was a possibility and because defendant sustained no real prejudice since the case was not set for trial, id. at 249. The court also declined to strike plaintiff's damages claim, but did assess fees and expenses associated with the delays and warned plaintiff that further delays might result in dismissal. Id. The undersigned does not find the relatively minor infractions and resulting delays at issue in those two cases comparable to the situation here. Though not a perfect analog, Mid–Continent's conduct is in some ways more akin to that in Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees & Restaurant Employees International Union, 212 F.R.D. 178, 221–22 (S.D.N.Y.2003), where counsel for the defendant provided almost no oversight of discovery and, when confronted with evidence of the inadequacy of the search for responsive documents, still repeatedly asserted that production was complete. The Magistrate Judge concluded that “Defendant made no reasonable inquiry to ensure that all responsive documents have been produced” and acted “at a minimum, [with] gross negligence rising to the level of bad faith.” (Doc. 166 at 26.) The undersigned agrees and finds that default is at least an available sanction. Still, default must be the appropriate sanction. The prejudice sustained by the requesting party due to the discovery violations may be a relevant factor to consider. Marcelle v. Am. Nat'l Delivery, Inc., No. 3:09–cv–82–J–34MCR, 2010 WL 1655537, *3 n. 4 (M.D.Fla. Apr.23, 2010). Mid–Continent suggests that “its inadvertent discovery omissions have been cured without prejudice” to First Coast. But this “no harm, no foul” approach elides the significant delay incurred in attempting to remedy the “omissions,” the impairment of First Coast's ability to use the late-produced information in preparing its case, the cost of preparing for trial only to have trial continued, in part, so that Mid–Century could complete its production, the cost of briefing the renewed motion for sanctions, and the cost of conducting depositions and other discovery to confirm Mid–Continent's compliance. Moreover, given Mid–Continent's behavior, neither First Coast nor the Court can have any confidence that Mid–Continent has finally produced all requested documents. See Tarlton, 192 F.R.D. at 170. *6 Deterrence is also particularly important here. Though Mid–Continent views it differently, the state court in First Coast Energy, L.L.P. v. Mid–Continent Casualty Co., Case No. 16–2006–CA–1584 (Fla. Cir. Ct. June 14, 2012) found that Mid–Continent's late and incomplete disclosure of a relevant document after responding to many inquiries by the plaintiff with repeated assurances that the document did not exist was one basis for setting aside a potential settlement agreement. (Doc. 145–14.) Yet, based on Mid–Continent's behavior in this case, little has changed since June 2012. Mid–Continent cannot continue to flout the discovery rules of this or any other court with impunity. The Court concludes that the recommendation of default against Mid–Continent on First Coast's traditional bad-faith claim is the right one. The Magistrate Judge correctly assessed that the lesser sanction of reopening discovery on this claim would reward Mid–Continent's bad behavior without remedying the prejudice it has caused. An award of fees alone would not restore confidence that all discoverable information has been produced. In other circumstances, an adverse jury instruction might be an appropriate lesser sanction, but in this situation, would be likely to have the same practical effect as entering default. The Court finds that default on the first-party bad-faith claim is the only option that fully penalizes Mid–Continent's conduct and deters such conduct in the future. Importantly, this finding does not resolve the case. On March 24, 2014, the Court sua sponte directed that trial would first proceed with First Coast's first-party bad-faith claim. (Doc. 102.) If First Coast prevailed on that claim, then the case would proceed to First Coast's claim that Mid–Continent has a pattern and practice of handling pollution claims in bad faith. (Id.) Because this default on the first-party claim does not resolve the entire case, First Coast will still have to prove a pattern and practice to prevail in the lawsuit. This sanction is more properly termed a partial default, a lesser sanction than a default judgment as to the entire case. The history of this case is tortured, protracted, and contrary to how the Court expects litigation to be handled. Neither side is completely blameless. The Court has continually urged the parties to resolve it. Now, at this new landmark in the case, the Court will require the parties to attempt to settle before proceeding further. The Court directs the parties to reinitiate mediation efforts with Terrance Schmidt. The Court will administratively close the case until Mr. Schmidt reports settlement or impasse. Accordingly, it is hereby ORDERED: 1. The objections to the Report and Recommendation of the assigned United States Magistrate Judge (Doc. 166) are OVERRULED, and the Report and Recommendation, together with this Order, is ADOPTED as the opinion of the Court. The Court attaches the Report and Recommendation to this Order. *7 2. Plaintiff First Coast Energy, L.L.P.'s Amended Renewed Motion for Sanctions Including Default Judgment (Doc. 145) is GRANTED. The Court will enter default in favor of First Coast on its first-party bad-faith claim, and the case will proceed on the pattern and practice claim. 3. The Clerk is DIRECTED to administratively close the case until further order of the Court. The parties should contact Terrance Schmidt to resume mediation. DONE AND ORDERED. REPORT AND RECOMMENDATION[1] MONTE C. RICHARDSON, United States Magistrate Judge. THIS CAUSE is before the Court on Plaintiff First Coast Energy, L.L.P.'s (“First Coast,” “FCE,” or “Plaintiff”) Amended Renewed Motion for Sanctions Including Default Judgment (“Renewed Motion for Sanctions”) (Doc. 145), Defendant Mid–Continent Casualty Company's (“Mid–Continent,” “MCC,” or “Defendant”) Response thereto (“Response”) (Doc. 154), and Plaintiff's Reply to Defendant's Response (“Reply”) (Doc. 162), filed pursuant to the Court's January 8, 2015 Order (Doc. 161). For the reasons that follow, it is respectfully RECOMMENDED that the Renewed Motion for Sanctions be GRANTED. I. Relevant Background This is an action for first-party insurance bad faith pursuant to section 624.155 of the Florida Statutes, after a final judgment entered in state court finding coverage following Defendant's denial of a claim for clean-up costs for petroleum contamination at one of Plaintiff's gas stations. (Doc. 3.) Amended final judgment was entered in Plaintiff's favor on January 26, 2012, after the First District Court of Appeal affirmed the trial court's determination of liability against Defendant and issued its mandate on November 2, 2011. (Doc. 120 at 2; Doc. 127 at 4.) On January 27, 2012, Plaintiff filed this action in state court. (Doc. 3.) On March 14, 2012, Defendant removed the action to this Court. (Doc. 1.) On June 8, 2012, the Court entered a Case Management and Scheduling Order setting January 11, 2013 as the discovery deadline.[2] (Doc. 13.) On August 28, 2012, Plaintiff served its First Request for Production and First Set of Interrogatories on Defendant. (Docs.145–1, 145–2.) On October 11, 2012, Defendant responded to the discovery requests, with some objections. (Doc. 154–1.) On October 22, 2012, Plaintiff filed a motion to compel discovery (Doc. 16), which the Court granted in part and denied in part on November 20, 2012 (Doc. 18). The Court directed Defendant to produce documents responsive to Plaintiff's First Request for Production by December 3, 2012. (Id.) On December 3, 2012, Defendant served its Second Amended Response to Plaintiff's First Request for Production. (Doc. 154–2.) On April 24, 2013, Plaintiff again moved to compel Defendant's responses to Plaintiff's First Request for Production. (Doc. 45.) On May 15, 2013, the Court granted the motion in part and required production, no later than May 24, 2013, of any documents previously withheld on the basis of work product contained in either the claims files at issue in this case or any other insureds' claims files, which relate to and/or illuminate the manner in which Defendant handles other pollution liability and environmental damage claims in the general course of business. (Doc. 54.) Further, the Court directed Defendant to provide the Court and Plaintiff with a revised privilege log referencing the documents being withheld on the basis of the attorney client privilege and to hand deliver the documents to chambers for an in camera inspection no later than May 30, 2013. (Id.) *8 On May 29, 2013, Defendant filed an Objection to the Court's May 15, 2013 Order, which the Court construed as a motion for reconsideration. (Doc. 57.) On October 1, 2013, Defendant served its Second Supplemental Response to Plaintiff's First Request for Production. (Doc. 154–5.) On November 1, 2013, the Court entered an Order, granting in part Defendant's motion for reconsideration of the Court's May 15, 2013 Order, and directing Defendant to produce, no later than November 22, 2013, the information required by the Court's May 15, 2013 Order, except information contained in files where coverage has not yet been determined. (Doc. 76.) On November 22, 2013, Defendant served its Third Supplemental Response to Plaintiff's First Request for Production, along with a Revised Claim File Privilege Log, as directed by the Court's November 1, 2013 Order. (Doc. 1546.) On December 3, 2013, the Court upheld Defendant's assertions of privilege. (Doc. 79.) On January 23, 2014, the Court held a final pretrial conference, during which defense counsel stated, inter alia, that Defendant “inadvertently” did not produce all documents. (Doc. 145–3 at 5 (Tr. 16:21–22).) While preparing exhibit lists for trial, Plaintiff's counsel noticed Defendant had produced electronic claim notes for another claim. (Doc. 154–7 at 3.) On April 23, 2014, Plaintiff's counsel asked Defendant's counsel to confirm that similar notes did not exist for the instant claim because none had been produced. (Id.) On April 25, 2014, Defendant's counsel responded that the entire claim file had been re-reviewed and that claim notes did not exist. (Doc. 145–4.) However, on May 12, 2014, Defendant served its Fourth Supplemental Response to Plaintiff's First Request for Production, 57 pages of redacted claim notes, and an Amended Claim File Privilege Log. (Doc. 154–7.) In an e-mail to Plaintiff's counsel that day, Defendant's counsel stated that the electronically maintained claim notes “were inadvertently omitted from the claim file provided” earlier. (Id. at 2.) On May 16, 2014, Defendant served its Verified Supplemental Responses to Plaintiff's First Set of Interrogatories. (Docs.145–5, 154–4.) On May 20, 2014, Plaintiff moved to compel production of unredacted claims notes that Defendant withheld from its Fourth Supplemental Response to Plaintiff's First Request for Production on grounds of privilege, or, alternatively, for an in camera inspection and a more definite privilege log. (Doc. 120.) Plaintiff also filed a Motion for Sanctions, for Continuance of the Trial, and to Reopen Discovery. (Doc. 119.) On July 17, 2014, the Court entered an Order granting the motion to compel and the motion for sanctions. (Doc. 129.) In granting the motion to compel, the Court's July 17, 2014 Order directed Defendant to provide, no later than July 31, 2014, a revised privilege log and to hand deliver to chambers the claim notes generated after January 26, 2012 for an in camera inspection. (Id. at 6.) The Order also directed Defendant to provide, no later than July 24, 2014, any claim notes generated between September 28, 2010 and January 26, 2012, which had not been produced as of the date of the Order. (Id. at 7.) *9 In granting the motion for sanctions, the Court observed: First, the relevance and importance of the subject claim notes to Plaintiff's case is undisputed. Further, when Plaintiff received these notes, the discovery period had already closed and the trial term was only twenty days away. Under these circumstances, the potential prejudice to Plaintiff cannot seriously be disputed. (Id. at 12 (footnote omitted).) Further, the Court stated: Defendant attempts to establish, through Mr. Jordan's Affidavit, that its untimely production was the result of an inadvertent oversight and was therefore substantially justified. However, the Court is unprepared to reach such a conclusion without the benefit of additional targeted discovery, particularly in light of the Court's May 15, 2013 Order, which not only addressed the same discovery that is at issue here, but also gave Defendant another opportunity to diligently search for and produce any relevant claim notes at a much earlier stage of the case. Therefore, Plaintiff will be given an opportunity to depose Defendant's witness(es) regarding the production of the subject notes. Plaintiff will also be allowed to depose Defendant's witness(es) as to the substantive contents of those notes.... Although the Court will not assess any monetary sanctions at this time, upon completion of this discovery, Plaintiff may renew its request for sanctions, if necessary. All discovery permitted by this Order must be completed no later than September 2, 2014. (Id. at 12–13 (emphasis omitted).)[3] On July 24, 2014, Defendant served its Fifth Supplemental Response to Plaintiff's First Request for Production, producing additional electronic claims notes. (Doc. 154–8.) On July 31, 2014, Defendant served a Revised Claim File Privilege Log, as directed by the July 17, 2014 Order. (Doc. 132.) On August 5, 2014, the Court found the privilege log to be inadequate and directed Defendant to provide a further revised privilege log no later than August 11, 2014, which Defendant did. (Id.) On August 13, 2014, after an in camera inspection of Defendant's claim notes and privilege log, the Court directed Defendant to produce some of the notes previously withheld on privilege grounds, and to further revise its privilege log with respect to claim notes generated after January 26, 2012. (Doc. 135.) On September 8, 2014, after an in camera inspection of the claim notes generated between January 30, 2012 and May 1, 2014 and a review of Defendant's further revised privilege log, the Court directed Defendant to produce additional claims notes previously withheld on privilege grounds, no later than September 12, 2014. (Doc. 138.) Pursuant to the Court's July 17, 2014 Order, between August 11, 2014 and September 11, 2014, Plaintiff conducted five witness depositions and re-deposed Defendant's expert. One of the deposed witnesses was Defendant's corporate representative Jack Jordan. (Doc. 145–3 at 7–16.) In his earlier affidavit, Mr. Jordan represented that the separate task of printing the electronic claim notes for the underlying claim at the outset of this matter was an apparent oversight. (Id. at 9.) At his August 11, 2014 deposition, Mr. Jordan testified that he did not know why the electronic claim notes had not been produced. (Id. at 9–10.) He stated that although the electronic claim notes are part of the electronic claim file, they cannot be put on a disc and would need to be printed. (Doc. 154–13 at 5–6, 8.) He assumed that either the electronic claim notes had not been printed initially, or they had been printed and sent under a separate cover, or they had been sent to defense counsel who must not have seen them. (Doc. 145–3 at 8.) Mr. Jordan also testified that in September of 2012, it was possible to print the electronic claim notes. (Id. at 11–12.) Mr. Jordan further testified that the electronic claim file was searchable to the extent it was possible to break it down into categories, such as correspondence, investigation, photos, legal pleadings, and sub-files, such as reservation of rights.[4] (Id. at 13–14.) *10 On August 12, 2014, Plaintiff took the deposition of Defendant's Home Office Supervisor Frank Pope. (Id. at 36–46.) Mr. Pope testified, inter alia, that when a request is made to put a claim file on a disc, the disc would not include the claim notes because the claim notes would need to be printed. (Id. at 38.) On August 13, 2014, Mr. Pope inspected MCC's Home Office for any coverage files separate and distinct from the electronically maintained claim files for FCE claims 3026, 3040/2015, 3011, and 2002. (Doc. 145–15 at 7.) His inspection revealed that no such files exist. (Id.) On August 21, 2014, Plaintiff took the deposition of Defendant's now retired employee Patrick Elwood. (Doc. 145–3 at 18–34.) Mr. Elwood testified that he was not aware of any set procedure at MCC for responding to requests for production of documents in a lawsuit. (Id. at 22.) Mr. Elwood further testified that for purposes of responding to Plaintiff's document request, he did not inquire if anyone at the home office had any responsive documents. (Id. at 24.) When asked if he looked at the disc that the IT department prepared to make sure it had captured everything in the claim file before sending it to defense counsel, Mr. Elwood responded: I am sure I looked at it briefly, but ... [t]here is no way that I went through each and every one and matched them. I have to trust if [sic] they took everything off the system and put it on the disk, electronically, I don't know how it could not be the same. (Id. at 26–27.) Additionally, Mr. Elwood testified that he did not print out the electronic claim notes and did not send them to counsel. (Id. at 32.) On September 8, 2014, Plaintiff's counsel wrote an e-mail to defense counsel, opining that “no reasonable and diligent effort was made to respond to [Plaintiff's] various discovery requests” and stating, inter alia, that Plaintiff's counsel had “located a number of additional claims where coverage was denied, that were not listed in response to [Plaintiff's] interrogatories requesting such information.” (Doc. 145–6 at 2.) The e-mail further stated: “It is frankly not our job to discover what has not been produced but the job of you and your client to be sure that all responsive documents have been searched for and produced and all answers to interrogatories are complete and correct.” (Id.) On September 9, 2014, defense counsel responded by e-mail, stating that he would ask his client to look for the documents identified in depositions if Plaintiff identified those documents.[5] (Id. at 4.) The e-mail also provided: As for claims manuals or guidelines, Jack [Jordan] has again assured me no such manuals or guidelines exist. You claim vaguely that manuals and guidelines were produced by MCC in other cases. Tell me what cases you are referring to, and better yet, if you have any such manuals or guidelines please send them to me.... All electronic claim notes, i.e., those that were not scanned originally and those that were, have already been produced to you. *11 (Id.) On September 25, 2014, Defendant served its Sixth Supplemental Response to Plaintiff's First Request for Production, producing 380 pages of documents from its claim file that were generated between September 28, 2010 and January 26, 2012, and a further revised claim file privilege log, identifying additional documents withheld from discovery. (Doc. 145–7.) On October 24, 2014, Defendant served its Second Supplemental Verified Answers to Plaintiff's First Set of Interrogatories, revising its response to Interrogatory No. 7 to identify, for the first time, 589 policies and claim numbers where it had allegedly accepted coverage. (Doc. 145–8.) On October 29, 2014, Defendant served its Seventh Supplemental Response to Plaintiff's First Request for Production, producing approximately 498 pages of additional documents. (Doc. 145–9.) On November 4, 2014, Defendant served its Eighth Supplemental Response to Plaintiff's First Request for Production, producing 745 pages of additional documents. (Doc. 145–10.) On November 7, 2014, Defendant served its Ninth Supplemental Response to Plaintiff's First Request for Production, producing over 3,000 pages of additional documents. (Doc. 145–11.) On November 10, 2014, Defendant produced a copy of the EDS Document Production Request form generated in connection with Defendant's duplication of the underlying claim file at the outset of discovery. (Doc. 154–10.) On December 17, 2014, the same day that Defendant filed its Response to the instant Motion, Defendant served its Tenth Supplemental Response to Plaintiff's First Request for Production, providing 746 pages of new documents. (Docs.154–12, 162–1.) Also on December 17, 2014, Defendant served its Third Supplemental Verified Answers to Plaintiff's First Set of Interrogatories, responding to Interrogatory No. 6, and disclosing 32 additional denied claims. (Docs.154–11, 162–1.) II. Discussion A. The Parties' Positions 1. Plaintiff's Arguments Plaintiff asserts that “[t]he sanction of default is the only appropriate sanction based upon the egregious nature of the conduct in this action.” (Doc. 145 at 11.) Plaintiff states: [T]he sworn deposition testimony of Mid–Continent witnesses demonstrates that Mid–Continent willfully failed to undertake virtually any investigation to ensure its initial responses to First Coast's August 2012 Request for Production and First Interrogatories were complete. It was not until September of 2014, more than two years after the discovery was served and after several court Orders compelling production of documents responsive to First Coast's First Request for Production, when Mid–Continent finally produced over 4,000 pages of documents critical to the prosecution of the case and disclosed 589 relevant claims in response to interrogatories. Mid–Continent's dilatory conduct is “plainly willful” and the prejudice to First Coast arising therefrom is clear. (Id. at 11–12 (internal citations omitted).) *12 Plaintiff contends that the Affidavits of Patrick Elwood and Jack Jordan, filed by Defendant earlier in this action, “contained false and/or misleading statements apparently made in an attempt to make the burden upon First Coast to prosecute the claim more onerous and to obfuscate the discovery process.”[6] (Id. at 12.) Plaintiff points out that although Mr. Elwood stated in his Affidavit that a physical search of each file would be necessary to respond to Plaintiff's discovery requests (Doc. 25–1 at ¶¶ 11–13), this statement was unsupported by subsequent deposition testimony. Further, although Mr. Jordan stated in his Affidavit that Defendant's failure to produce the electronic claim notes in 2012 was an apparent oversight (Doc. 121–1 at ¶ 16), his deposition testimony indicates that he does not know why the claim notes were not produced with Defendant's initial response to Plaintiff's First Request for Production (Doc. 145–3 at 9–10). Plaintiff argues that the prejudice caused by Defendant's failure to timely produce the electronic claim notes is compounded by Defendant's failure to produce many other documents referenced in the claim notes or identified during depositions until October and November of 2014. (Doc. 145 at 16.) Plaintiff states: Mr. Elwood admitted that Mid–Continent does not have any procedure for responding to requests for production of documents in lawsuits.... Mr. Elwood did not take any steps to look at the documents that Mid–Continent's IT department had put on a disc to make sure they had captured everything in the claim file before sending the disc to counsel.... When the claim notes were finally produced more than two years later, had Mid–Continent or its counsel reviewed them, it would have been obvious that additional discoverable documents, some of which are referenced above, remained outstanding. (Id. at 16–17.) Plaintiff also argues that Defendant failed to accurately and completely respond to Interrogatory Nos. 6 and 7 in violation of the Court's November 2012 Order. (Id. at 17.) More specifically, Plaintiff states: In response to Interrogatory No. 6, Mid–Continent failed to identify a number of claims that [Plaintiff's] counsel were aware of because they or other attorneys in the firm were involved in those lawsuits. Several of the claims were defended by Mid–Continent's counsel in this case.... Thereafter, counsel for First Coast's independent Westlaw research revealed additional claim numbers in public court records for claims which were denied and were not identified and listed by Mid–Continent. Counsel for First Coast notified counsel for Mid–Continent in writing and orally about these additional claims. Mid–Continent's counsel still failed to supplement Mid–Continent's answer to the interrogatory.... Mid–Continent initially answered Interrogatory No. 7 [asking about all storage tank claims], by reference to the answer to No. 6, thereby implying that it had not found coverage on any claim under the policy. Mr. Elwood, who executed the interrogatory answers on Mid–Continent's behalf, however, testified in deposition that Mid–Continent had in fact accepted coverage on some claims filed with it[.] ... On October 24, 2014—787 days after the discovery was served—Mid-Continent served its Second Supplemental Response to Interrogatory No. 7, identifying—for the first time—589 storage tank claims where it had presumably accepted coverage. First Coast has, of course, been unable to conduct any discovery with respect to these claims or to use information gleaned as part of their coverage decisions in any depositions or expert analysis. *13 (Id. at 17–19 (internal citations omitted).) In addition, Plaintiff argues that Defendant's failure to produce its training materials as to claims handling has impacted Plaintiff's decisions in litigating this action. (Id. at 19–20.) Although Defendant responded it does not possess such materials, Plaintiff's counsel's independent research has revealed that in another case, Defendant belatedly conceded that training materials did exist. See Signature Dev., LLC v. Mid–Continent Casualty Co., 2012 WL 4321322, *12 (D. So. Dakota Sept. 18, 2012) (ordering Mid–Continent to produce documents that it uses to teach or train its employees on how to adjust claims). Further, one of Defendant's employees, George Chahalis, advised Mr. Pope on October 24, 2014 that “he does possess some non-MCC written/paper storage tank education and/or training and/or reference materials,” and on the same day, he provided a copy of those materials to Mr. Pope who forwarded them to MCC's counsel. (Doc. 145–15 at 19.) According to Plaintiff, Defendant has shown a pattern and practice of discovery violations as this is not the first case involving these parties where Defendant has failed to produce responsive documents. (Doc. 145 at 21.) For example, Plaintiff points to First Coast Energy, L.L.P. v. Mid–Continent Casualty Company, Case No. 16–2006–CA–1584, *31 (Fla. Cir. Ct. June 14, 2012), where the Circuit Court granted plaintiff's motion to set aside settlement agreement because, inter alia, “[t]he settlement was premised on incomplete discovery responses by MCC.” (Doc. 145–14 at 32.) The Circuit Court found that “MCC did not provide FCE with the site specific portion of its renewal application until it produced the underwriting file on April 13, 2010, seven months after it purported to have produced the renewal application.” (Id. at 26.) The Circuit Court further found that “[s]ince FCE was not provided with a complete renewal application, despite having asked for the document on a number of occasions, it could not have presented evidence regarding its disclosures and was unable to fully assert its claim.” (Id. at 31.) Further, Plaintiff contends that since its prior motion for sanctions was filed in this case, “the testimony of Mid–Continent witnesses, the production of thousands of pages of documents in the last 30 days, and the failure to fully respond to discovery, lead only to the conclusion that Mid–Continent has willfully failed to produce pertinent discovery in this case.” (Doc. 145 at 22.) Plaintiff argues that “[a]s Mid–Continent has previously been sanctioned to no avail, any sanction other than a default judgment would not serve as a deterrent for future conduct nor adequately ameliorate the harmful effects of its discovery abuses to First Coast.” (Id.) However, should the Court decline to enter a default judgment, Plaintiff submits that other sanctions are appropriate, including: (1) instructing the jury that Defendant failed to timely produce discovery and acted in bad faith in responding to discovery requests in this case, (2) reopening discovery to allow Plaintiff to follow-up on the information provided after August 2014 and directing Defendant to pay the fees and costs for re-deposing witnesses caused by its failure to produce documents, (3) resetting the expert disclosure deadline, and (4) awarding Plaintiff attorney's fees and costs associated with the motions to compel, motions for sanctions, and related to the investigation of Defendant's deficient discovery responses. (Id. at 22–23.) 2. Defendant's Arguments *14 Defendant responds the Renewed Motion for Sanctions should be denied because “there is absolutely no evidence whatsoever of any willful or bad faith failure by [Defendant] to obey any discovery order of this Court.” (Doc. 154 at 2.) Defendant argues that neither MCC nor its counsel had any reason to question the completeness of the claim file as duplicated at the outset of discovery. (Id. at 11.) Defendant explains that because the EDS form at the outset of discovery provided that the file needed to be duplicated via “BURN TO CD,” the claim notes, which could not be put on a disc, “were omitted by virtue of an inadvertent oversight as opposed to any willful or bad faith conduct by MCC.” (Id.) Defendant contends it conducted an immediate and thorough investigation as follows: MCC's counsel immediately conducted a re-review of the claim file in its possession which did not reveal the existence of claim notes in the form requested by FCE. In an abundance of caution MCC's counsel contacted Jack Jordan at MCC who immediately undertook his own investigation. The claim notes were promptly produced with a privilege log. MCC complied with all subsequent discovery orders directing it to produce a very limited number of additional claim notes and revised privilege logs for the Court's in camera review(s).... In connection with its post-deposition investigation, MCC served supplemental responses.... (Id. at 11–12 (internal citations omitted).) Defendant asserts that its “failure to produce the electronic claim notes can be fairly characterized as ‘simple negligence,’ “ and Plaintiff has suffered no prejudice because it has been afforded the opportunity to conduct extensive discovery. (Id. at 13.) Defendant states it “produced practically the entire claim file in the early stages of discovery.” (Id. at 15.) Also, “[t]he items of discovery which FCE now contends ‘compounded’ its purported prejudice have been addressed by MCC by virtue of its recent supplemental discovery responses.” (Id. at 15–16.) Defendant further states: The only discovery outstanding at the time FCE filed the instant Motion was a further supplemental response to FCE's Interrogatory No. 6, which calls for a list of claim numbers for denied claims ... and a further supplemental response to FCE's Request for Production No. 16, which calls for copies of MCC's position letters for the claims identified in MCC's response to Interrogatory No. 6.... These requests seek information pertaining to FCE's bad faith pattern and practice claim only. This issue has been bifurcated (D.E.102). MCC therefore submits that there is no associated prejudice caused by MCC's supplemental responses. (Id. at 16.) With respect to the Affidavits of Mr. Elwood and Mr. Jordan, Defendant asserts there are no false, misleading, or speculative statements. (Id. at 13–15.) As to the training materials requested by Plaintiff, Defendant appears to argue it was Plaintiff's responsibility to disclose the cases in which it was determined that Defendant maintained such materials. (Id. at 17 .) While Defendant admits that the investigation of its employee, Mr. Chahalis, revealed such materials existed, which were later produced to Plaintiff, Defendant contends it did not generate the materials and therefore they were not responsive to Plaintiff's requests. (Id. at 18.) In regards to the documents referenced in Signature Development, LLC v. Mid–Continent Casualty Company, in which Mid–Continent “conceded that its parent company, Great American Insurance Group, does provide training to employees,” Mid–Continent states: *15 [T]he documents referenced by the Signature court are not attached to FCE's Motion as an exhibit. Second, a review of the Signature case reveals that it did not involve a storage tank owner policy claim and/or a claim involving pollution liability and environmental damage.... FCE has made no showing that the documents referenced in that case have any relevance to the issues in this matter. Furthermore, Great American Insurance Company is not a party to this action and FCE's discovery requests clearly do not request any materials from anyone other than MCC. (Id.) In addition, Defendant argues that there is no evidence of a pattern and practice of discovery violations because the Duval County case involving the same parties to which Plaintiff refers does not support a pattern and practice of violations. (Id. at 19.) Defendant further argues that none of the sanctions sought would be justified because “there is no evidence whatsoever of any willful or bad faith conduct” and the “additional materials add nothing of substantive value” because they are “relevant only to FCE's pattern and practice claim, which has been bifurcated.” (Id. at 19–20.) 3. Plaintiff's Additional Arguments In its Reply, Plaintiff states Defendant has not explained its failure to produce the 5,000 plus pages of documents that are not claim notes and the revised answers to interrogatories, which were provided months after the production of the claim notes and years after the discovery requests and court orders compelling production. (Doc. 162 at 1–2.) Plaintiff argues that the actions or omissions of both Defendant and its counsel amount to more than simple negligence. (Id. at 2.) Plaintiff explains: The magnitude alone of the volume of documents produced years after first requested and ordered (over 5,000 pages), evidences the fact that neither MCC nor its counsel conducted a reasonable inquiry into the existence of the discovery requested by FCE and ordered by the Court. The only evidence in the record as to what was done with respect to MCC's attempt to comply with discovery requests and court orders was given by Mr. Elwood at his deposition. Mr. Elwood was asked to gather documents that would be responsive to FCE's document request.... Mr. Elwood asked the IT department to put the claim file on a disc to send to counsel to redact, and to his understanding, this request would have included claim notes. He has no recollection of requesting home office files. Mr. Elwood conceded that while he may have “briefly” looked at whatever IT put on the disc he had requested, “there's no way that [he] went through each and every one and matched them.” Moreover, the very affidavits submitted by MCC in connection with its recent document production responses prove that no reasonable search of MCC's files was ever commenced prior to August and September of 2014. (Id. at 4 (internal citations omitted).) Plaintiff argues that this conduct amounts to willful disregard of court orders and discovery obligations. (Id. at 6.) *16 In response to Defendant's argument that the additional materials add nothing of substantive value, Plaintiff states: MCC had never before produced captioned reports showing that the ONLY reason for denial of FCE's claim was that MCC took the position that there was no evidence of a leak from FCE's underground storage tank system. This evidence is very significant since the judge found in the underlying trial that evidence of a leak from FCE's underground storage tank system had been submitted to MCC in the form of a site check prior to denial of coverage. There can be no clearer evidence that FCE's claim was denied in bad faith. These documents also belie the voluminous affirmative defenses filed by MCC in the underlying coverage action, as well as those asserted in this case. Moreover, ... no reserve history was included with the original file, no electronic claim notes, no captioned reports, and nothing showing how the claim was actually handled. As the Supreme Court of Florida has confirmed, this evidence is critical to a bad faith claim. (Id. at 7–8 (internal citations omitted) (emphasis in original).) Plaintiff also points out that despite its request that the documents be produced in their original form, i.e., the native electronic files format, the documents were not produced in this manner. (Id. at 9.) In conclusion, Plaintiff states: FCE has never had the opportunity to use the documents and interrogatory answers recently provided to develop strategy, engage experts, prepare testimony, conduct other discovery, or use in depositions. FCE has also incurred substantial costs and expenses associated with discovery, motions to compel, motions for sanctions, and depositions that will have to be repeated should a default judgment not be entered. Sanctions are mandatory where MCC has not demonstrated that it was impossible to comply with the prior court orders. (Id. at 10.) B. Standard Plaintiff's Renewed Motion for Sanctions is filed pursuant to Rule 37(c)(1) of the Federal Rule of Civil Procedure, which provides: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(I)-(vi). Fed.R.Civ.P. 37(c)(1). Rule 37(b) (2)(A) authorizes the following sanctions for failure to comply with a discovery order: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; *17 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party[ .]. Fed.R.Civ.P. 37(b)(2)(A). “Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” United States v. One 32' Scorpion Go–Fast Vessel, 339 F. App'x 903, 905 (11th Cir. July 23, 2009) (per curiam) (quoting Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir.1999) (per curiam)). “[C]ourts are given broad discretion in fashioning appropriate sanctions for violations of discovery orders.” Sussman v. Salem, Saxon & Nielsen, P.A., 154 F.R.D. 294, 298 (M.D.Fla.1994). “[T]he decision to dismiss a claim [or] ... enter a default judgment[ ] ought to be a last resort—ordered only if noncompliance with discovery orders is due to willful or bad faith disregard for those orders,” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.1986),[7] and “when less drastic sanctions would not ensure compliance with the court's orders,” Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir.1993). Prejudice to the movant is a also relevant consideration in determining an appropriate sanction. See Marcelle v. Am. Nat'l Delivery, Inc., 2010 WL 1655537, *3 n. 4 (M.D.Fla. Apr.23, 2010) (“While prejudice to the moving party is certainly a relevant consideration in determining whether a lesser sanction will suffice, the Court is not convinced that Eleventh Circuit precedent requires a showing of prejudice before a court can impose the sanction of default judgment or dismissal.... Because the Court agrees with the Magistrate Judge's finding that Defendant's conduct has prejudiced Plaintiff in this action, the Court need not resolve the question of whether a showing of prejudice is required.”) (emphasis in original); Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472, 488 (S.D.Fla.1984). Cf. Inmuno Vital, Inc. v. Telemundo Group, Inc. ., 203 F.R.D. 561, 571 (S.D.Fla.2001) (stating that “unlike lesser sanctions, imposition of a default judgment sanction requires that the district court first find (1) that the party exhibited a willful or bad faith failure to obey a discovery order; (2) that the moving party was prejudiced by that violation; and (3) that a lesser sanction would fail to punish the violation adequately and would not ensure future compliance with court orders.”). “[A] default sanction may be proper even when not preceded by the imposition of lesser sanctions. When lesser sanctions would be ineffective, Rule 37 does not require the vain gesture of first imposing those ineffective lesser sanctions.” Malautea, 987 F.2d at 1544. The most severe sanctions, such as dismissal or default, “must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam). *18 “Violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Malautea, 987 F.2d at 1542. However, a party asserting an inability to comply must produce evidence in support of such claim, as mere assertion of inability will not do. Id. at 1543. To avoid sanctions under Rule 37, a party must show that it made all reasonable efforts to comply with the court order. BankAtlantic, 12 F.3d at 1050. C. Analysis The undersigned agrees with Plaintiff that entry of a default judgment is an appropriate sanction for Defendant's conduct in this case. The discovery requests at issue-Plaintiff's First Request for Production and Plaintiff's First Set of Interrogatories-were served on Defendant on August 28, 2012. However, it was not until late 2014 that Defendant finally produced thousands of pages of documents and disclosed hundreds of relevant claims. Defendant's last production-its Tenth Supplemental Response to Plaintiff's First Request for Production and its Third Supplemental Verified Answers to Plaintiff's First Set of Interrogatories-took place after the instant Motion was filed and, more specifically, on December 17, 2014, the day that Defendant responded to the Motion. Despite Plaintiff's inquiries whether all responsive discovery has been produced, several discovery motions and Court Orders compelling disclosure (see Docs. 18, 54, 76, 129), Defendant falsely claimed that all responsive documents have been produced. As Plaintiff states in its Reply: Counsel for MCC has repeatedly represented both in discovery responses and communications with FCE's counsel that all responsive documents have been produced, only for FCE to discover that is not the case.... Counsel for MCC also represented after the late production of the claim notes that Mr. Jack Jordan (MCC's branch manager) had “reviewed everything and he found that only the electronic claims notes had not been produced.” After this representation from MCC's counsel, 5,000 pages of additional documents were allegedly discovered and produced. Counsel's actions are even more egregious when considered in light of the fact that the same counsel represented MCC in the underlying coverage action. MCC's counsel certainly should have had knowledge that some of these documents existed since they had copies of them in their possession. (Doc. 162 at 5 (internal citations omitted) (emphasis in original) .) Defendant's conduct here seems analogous to defendant's conduct in Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees & Restaurant Employees International Union, where defense “counsel's repeated representations that all responsive documents had been produced ... were made without any real reflection or concern for their obligations under the rules governing discovery and, in the absence of an adequate search for responsive documents, [hence] without a reasonable basis.” 212 F.R.D. 178, 221–22 (S.D.N.Y.2003). The court in Metropolitan Opera found it “[e]specially troubling, and of great weight in [the court's] decision to impose the most severe sanction” that defense “counsel's conduct was not merely negligent but was aggressively willful.” Id. at 222. The court explained: *19 [Defense] counsel's repeated representations of full production were made in response to [plaintiff's] counsel's continuing high-decibel allegations of failure to make adequate inquiry and repeated demonstrations of incomplete compliance and non-compliance with discovery requests.... That, in response, [defense] counsel continually professed full compliance—falsely and, as confirmed by compliance discovery, without making a reasonable inquiry—constitutes such gross negligence as to rise to intentional misconduct. Id. (citations omitted). Similarly, here, the sheer number of supplemental responses and the volume of documents produced after claiming that all responsive documents have been produced, which turned out to be false, in the face of Plaintiff's inquiries and statements that responsive documents did exist, as well as Orders compelling production, indicates that Defendant made no reasonable inquiry to ensure that all responsive documents have been produced and constitutes, at a minimum, gross negligence rising to the level of bad faith. Further, although the discovery requests were served in August 2012, it was not until the Fall of 2014, after the court-sanctioned depositions of Defendant's witnesses took place and after the close of discovery, that Defendant apparently made an effort to locate further responsive documents, resulting in the production of thousands of pages of documents. It appears that this eleventh-hour production was made only in an effort to avoid sanctions, as Defendant's witnesses' depositions indicate that there was no substantial justification for Defendant's failure to adequately respond to Plaintiff's discovery at the outset of this matter. See Mutual Fed. Savings & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 94 (4th Cir.1989) (“Even though the defendants may have made efforts to comply, the attempts were lastditch and only offered when it became crystal clear that they were going to lose the case unless they did something.”). For example, Mr. Jordan testified that he did not know why the electronic claim notes had not been produced at the outset of this matter, and stated that although the notes could not be put on a disc, it was possible to print them at the time that Plaintiff originally requested them in 2012. Defendant's employee who was charged with responding to Plaintiff's discovery, Mr. Elwood, testified that he did not print the electronic claim notes, did not go through each item on the disc prepared by the IT department to make sure that all responsive documents were included, and did not look at the disc more than “briefly.” Mr. Elwood also testified that he did not reach out to the home office regarding any responsive documents and was not aware of any set procedure for responding to discovery in a lawsuit. This testimony demonstrates that Defendant did not make any reasonable effort to respond to Plaintiff's requests for years after they were served. See Metropolitan Opera, 212 F.R.D. at 221 (stating that a reasonable inquiry into the factual basis of a party's discovery responses “would have required, at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the defendant potentially possessing responsive information, and to account for the collection and subsequent production of the information to plaintiffs”) (citations omitted). Although Defendant supplemented its responses, as Plaintiff points out, “after ten supplemental responses to the initial request for production and three supplemental interrogatory answers, it is impossible for either FCE or the Court to ever be assured that MCC has finally produced all responsive documents and completely answered all interrogatories.” (Doc. 162 at 9.) Defendant's apparently disjointed searches resulting in a production of a few more documents each time after either being informed by Plaintiff that responsive documents did exist and/or being directed by the Court to produce them, shows lack of good faith and disregard for Defendant's discovery obligations. See Tarlton v. Cumberland Cnty. Correctional Facility, 192 F.R.D. 165, 170 (D.N.J.2000) (“The client is charged with knowledge of what documents it possesses. It was not their option to simply react to plaintiff's fortuitous discovery of the existence of relevant documents by making disjointed searches, each time coming up with a few more documents, and each time representing that was all they had. Under the federal rules, the burden does not fall on plaintiff to learn whether, how and where defendant keeps relevant documents.”). *20 Defendant continues to argue, as it did when opposing Plaintiff's first motion for sanctions, that any failure to respond to Plaintiff's discovery requests was inadvertent. Defendant made this argument at the January 23, 2014 final pretrial conference, then again in its May 12, 2014 e-mail to Plaintiff's counsel, and in the Affidavit of Jack Jordan. However, as already shown, Mr. Jordan's subsequent deposition testimony does not support his earlier statement that Defendant's failure to produce the documents was inadvertent; instead, he testified that he did not know why the electronic claim notes had not been produced with Defendant's initial responses. Moreover, even assuming that the initial failure to produce the documents and answer the interrogatories was inadvertent, the Court's May 15, 2013 Order gave Defendant yet another opportunity to diligently search for and produce any responsive documents and provide adequate answers, but even after that Order, Defendant still failed to do so. On this record, “it seems more likely that Defendant simply chose to withhold relevant evidence[.]” BankAtlantic, 127 F.R.D. at 233. Therefore, the undersigned recommends that Defendant's willfulness in withholding the subject discovery despite Court Orders compelling disclosure, has been established. See Allstate Ins. Co. v. Awan & Assocs. P.C., 2013 WL 1340142, *5 (E.D.Mich. Apr.3, 2013) (stating that “repeated noncompliance with court-sanctioned discovery requests suggests willfulness, bad faith, or fault”). In addition, Plaintiff has been prejudiced as a result of Defendant's conduct. First, as stated in the Court's July 17, 2014 Order on Plaintiff's previous motion for sanctions, when Plaintiff received Defendant's earlier supplemental responses, the discovery period had already closed and the trial term was only twenty days away. (Doc. 129 at 12.) Although the Court subsequently extended the discovery period to September 16, 2014, Defendant continued supplementing its responses beyond that date, providing thousands of pages of new information, regarding which Plaintiff could not seek further discovery. As Plaintiff states: “FCE has never had the opportunity to use the documents and interrogatory answers recently provided to develop strategy, engage experts, prepare testimony, conduct other discovery, or use in depositions.” (Doc. 162 at 10.) In addition, Plaintiff “has also incurred substantial costs and expenses associated with discovery, motions to compel, motions for sanctions, and depositions that will have to be repeated should a default judgment not be entered.” (Id.) Plaintiff has also been prejudiced by the significant delay of moving this case to trial. See Carlucci, 102 F.R.D. at 489. If the Court were to reopen discovery instead of entering a default judgment, it would be rewarding Defendant for its dilatory conduct. See Inmuno Vital, 203 F.R.D. at 573 (“While yet another continuance of this action might allow the parties to exchange the previously withheld discovery and conduct depositions on that discovery, a continuance is simply not a viable option. Five continuances have been granted in this matter. A sixth continuance would have inappropriately rewarded Defendants for the dilatory tactics described above.”). The Court has already extended the discovery period numerous times, has vacated case management deadlines, and has continued the trial in this case five times. (See, e.g., Docs.28, 64, 72, 78, 95, 118, 123.) Under these circumstances, the undersigned does not believe that another extension of the case management deadlines will cure the prejudice to Plaintiff or ensure that all relevant discovery is produced. *21 Defendant's argument that there is no prejudice because Plaintiff has already been afforded the opportunity to conduct extensive discovery, misses the point. See Tarlton, 192 F.R.D. at 170 (rejecting defendants' argument that there is no harm now that they have answered all of plaintiff's discovery requests and explaining that plaintiff has been prejudiced by being forced to spend months learning about the existence, significance, and whereabouts of the discovery and repeatedly seeking the court's assistance, and that the “prejudice also extends to the court, for defendants' failure to identify relevant documents has hindered the efficient management of the pretrial process ... and has delayed a resolution of this action on its merits”). Moreover, on this record, it is impossible to know whether Defendant has produced, or will ever produce, all discoverable information. Further, as the Court has already stated in its July 17, 2014 Order, the relevance and importance of the claim notes that Plaintiff sought is undisputed. In addition, the supplemental information produced by Defendant is also relevant to Plaintiff's case. Defendant argues that no prejudice was caused by its supplemental responses because they pertain only to Plaintiff's bad faith pattern and practice claim, which has been bifurcated. However, as explained in Plaintiff's Reply, the supplemental information is clearly relevant to Plaintiff's bad faith claim because: MCC had never before produced captioned reports showing that the ONLY reason for denial of FCE's claim was that MCC took the position that there was no evidence of a leak from FCE's underground storage tank system. This evidence is very significant since the judge found in the underlying trial that evidence of a leak from FCE's underground storage tank system had been submitted to MCC in the form of a site check prior to denial of coverage.... These documents also belie the voluminous affirmative defenses filed by MCC in the underlying coverage action, as well as those asserted in this case. Moreover, as stated by Mr. Norris,[8] no reserve history was included with the original file, no electronic claim notes, no captioned reports, and nothing showing how the claim was actually handled. As the Supreme Court of Florida has confirmed, this evidence is critical to a bad faith claim. (Doc. 162 at 7–8 (internal citations omitted) (emphasis in original); see also Doc. 162–8.) In addition, to the extent Defendant argues that Plaintiff has not been prejudiced by Defendant's failure to produce its training materials because it was Plaintiff's responsibility to disclose the cases in which it was determined that such materials existed, this argument is rejected. It was not Plaintiff's responsibility to conduct independent research for responsive documents, which ultimately revealed the existence of training materials. See BankAtlantic, 127 F.R.D. at 234 (“It is not within Defendant's prerogative to complain that Plaintiff might have secured the documents from some other source.... Negligence by Plaintiff cannot erase willful misconduct by Defendant in defiance of a court order.”). *22 Based on the foregoing, the undersigned does not believe that lesser sanctions would ensure compliance with the Court's Orders. Apparently, this is not the first case in which MCC has failed to produce responsive documents. See First Coast Energy, L.L.P. v. Mid–Continent Cas. Co., Case No. 16–2006–CA–1584, *26–32 (Fla. Cir. Ct. June 14, 2012). Moreover, MCC has already been sanctioned in this case (see Doc. 129), and had notice that depending on its subsequent conduct, Plaintiff could seek further sanctions (see Docs. 141, 143). In fact, lesser sanctions have already proven ineffective given that Defendant has failed to provide all responsive documents even after the Court's Order on Plaintiff's previous motion for sanctions. Further, as stated by the court in Metropolitan Opera, a lesser sanction would be “insufficient to restore the evidentiary balance because it is impossible to know what [plaintiff] would have found if [defendant] and its counsel had complied with their discovery obligations from the commencement of the action.” 212 F.R.D. at 230 (internal citations and quotation marks omitted). Because the undersigned believes that lesser sanctions would not change Defendant's behavior and would neither punish Defendant for its discovery failures in this case nor deter other parties contemplating a similar course of action, it is recommended that a default judgment be entered against Defendant, pursuant to Fed.R.Civ.P. 37(b)(2)(A), on liability with respect to Plaintiff's traditional first-party bad faith claim.[9] The case should proceed for a determination of the issue of damages and Plaintiff's pattern and practice claim. Accordingly, it is respectfully RECOMMENDED that the Renewed Motion for Sanctions (Doc.145) be GRANTED, that Defendant's Answer and Affirmative Defenses (Doc. 4) be STRICKEN in part, and that a default judgment be entered against Defendant, pursuant to Fed.R.Civ.P. 37(b)(2)(A), on liability with respect to Plaintiff's traditional first-party bad faith claim. DONE AND ENTERED at Jacksonville, Florida, on March 2, 2015. Footnotes [1] Mid–Continent also contends the Report and Recommendation mischaracterizes its sixth supplemental production as late when the July 17, 2014 Order (Doc. 129) supposedly changed the cutoff date for claims materials. Assuming for the sake of argument that Mid–Continent's characterization of the July 17, 2014 Order is accurate, the undersigned sees nothing in the Report and Recommendation either suggesting the sixth supplement was late or relying on such a finding. [2] Mid–Continent suggests that the Magistrate Judge did not properly consider Patrick Elwood's testimony and role in the initial investigation. The undersigned disagrees. The Magistrate Judge factored Elwood's testimony into his recommendation of default. But instead of finding it reassuring, the Magistrate Judge properly saw Elwood's testimony, and the fact that apparently no one double-checked the initial production, as evidence of Mid–Continent's failures. [3] Mid–Continent has made the argument that reference to a report or memo in the claim notes does not guarantee the report or memo was ever actually created. Accepting that may occasionally be the case, such a reference in the claim notes at least should have been a prompt to determine whether the report or memo exists. [4] As for the testimony of Senior Claim Manager Jack Jordan, unlike the Magistrate Judge, the undersigned does not find his affidavit and his later deposition testimony necessarily inconsistent. But neither piece of testimony explains why it took Mid–Continent so long to recognize its failures. [5] It is worth noting that Mid–Continent only objected to the “undue burden” of the interrogatories on other claims in supplemental answers, not its original answers. (Docs.154–1,154–4.) [6] Mid–Continent says it did not create the training materials it later produced and believes the materials were therefore not strictly responsive to First Coast's requests for production. The undersigned sees no such restriction in the requests. (Doc. 145–1 at 4.) [1] “Within 14 days after being served with a copy of [this Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy.” Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1); M.D. Fla. R. 6.02(a). “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). [2] The discovery deadline was subsequently extended several times and finally it was set for September 16, 2014. (Doc. 137.) On June 9, 2014, the Court entered an Order striking the final pretrial conference set for June 23, 2014 and the trial set for the term commencing July 7, 2014, and stating that new dates will be set as appropriate. (Doc. 123.) [3] The discovery deadline was subsequently extended to September 16, 2014. (Doc. 137.) [4] This is consistent with both Mr. Elwood's and Mr. Pope's deposition testimony. (Doc. 145–3 at 29–30, 39–40.) [5] Plaintiff represents that it provided the documents on September 17, 2014. [6] The Affidavit of Patrick Elwood was filed in support of Defendant's motion to determine discovery costs (Doc. 25–1). The Affidavit of Jack Jordan was filed in support of Defendant's response to Plaintiff's previous motion for sanctions (Doc. 121–1). [7] “[O]nly in a case where the court imposes the most severe sanction—default or dismissal—is a finding of willfulness or bad faith failure to comply necessary.” BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir.1994). [8] Thomas J. Norris is Plaintiff's expert whose fifteen-page expert report provides in part that the initial file materials provided by Defendant “were an incomplete and unorganized record of the handling of the claim,” and that “[b]ad faith claim handling occurred in this case before the claim was denied, when it was denied, and afterwards in the continued handling of the claim.” (Doc. 162–7 at 2, 6.) [9] On March 24, 2014, the Court entered an Order sua sponte bifurcating the proceedings, stating that the Court would try the traditional first-party bad faith claim first, and then, if necessary, the pattern and practice claim. (Doc. 102.)