Melissa C. Butterworth, Plaintiff, v. Laboratory Corporation of America Holdings, Defendant Case No. 3:08–cv–411–J–34JRK United States District Court, M.D. Florida, Jacksonville Division Signed April 23, 2012 Counsel Dana G. Bradford, II, Jonathon D. Pressley, Steven Eric Brust, Smith, Gambrell & Russell, LLP, David M. Applegate, Akerman LLP, Jacksonville, FL, Michele F. Martin, Pastore & Dailey, LLC, Gainesville, FL, for Plaintiff. Guy O. Farmer, II, GrayRobinson P.A., Jacksonville, FL, Thomas H. Loffredo, Daniel Alter, GrayRobinson, P.A., Ft. Lauderdale, FL, Jason A. Pill, John E. Phillips, Jr., Jolee Land, Reed Russell, Phelps Dunbar, LLP, Tampa, FL, for Defendant. Klindt, James R., United States Magistrate Judge ORDER *1 This cause is before the Court on Plaintiff's Motion for Sanctions (Doc. No. 271; “Motion”), filed May 5, 2010. In support of the Motion, Plaintiff filed a five-part appendix containing various exhibits (Doc. Nos. 272, 273, 274, 275, 276). The Motion is opposed. See Defendant's Response in Opposition to Plaintiff's Motion for Sanctions (Doc. No. 319; “Response”), filed June 18, 2010. In support of the Response, Defendant attached thereto numerous exhibits (Doc. Nos. 319–1 to 319–14) and filed deposition transcripts, see Notice of Filing Deposition Transcripts in Support of Defendant's Response in Opposition to Plaintiff's Motion for Sanctions (Doc. No. 320), filed June 18, 2010. After obtaining leave of Court (see Order (Doc. No. 324)), on August 6, 2010, Plaintiff's Reply to Defendant's [Response] in Opposition to Sanctions (Doc. No. 327; “Reply”), containing various exhibits (Doc. Nos. 327–1 to 327–22), was filed. On December 8, 2010, the Motion was referred to the undersigned by the Honorable Marcia Morales Howard, United States District Judge, “for appropriate resolution of any nondispositive matters, and for a report and recommendation with regard to any dispositive resolution, if appropriate.” Order (Doc. No. 344). On December 20, 2010, a hearing on the Motion was held. See Minute Entry (Doc. No. 351); Transcript from December 20, 2010 Hearing (Doc. No. 355; “12/20/10 Tr.”). I. Relevant Background This action commenced on April 24, 2008, when Plaintiff filed a Complaint against Laboratory Corporation of America Holdings (“LabCorp” or “Defendant”), her former employer, alleging Defendant engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991; the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01 et seq.; the Florida Whistle–Blower's Act, Fla. Stat. § 448.101 et seq.; as well as breach of contract, quantum meruit, and unjust enrichment. See Complaint (Doc. No. 1) at 1 ¶ 1. Plaintiff asserts in part that Defendant unlawfully engaged in sex discrimination with respect to her employment, id. at 10–13, and that Defendant retaliated against Plaintiff when she attempted to engage in statutorily protected activity, id. at 13–16. Defendant responds, inter alia, that “Defendant's actions with respect to [terminating] Plaintiff['s employment] were predicated upon grounds other than, and would have been taken absent, Plaintiff's gender or exercise of any alleged protected rights.” Amended Answer (Doc. No. 82) at 21 ¶ 9. Through the multitude of discovery matters with which the Court has been presented, it is apparent that Defendant intends to rely in part on Plaintiff's alleged participation in an internet website called “Realtors to the Stars” (“RTS website”), to justify its ultimate decision to terminate Plaintiff.[1] The RTS website had four (4) participants: Plaintiff; Jack Sznapstajler; Kelly Balester; and Jed Walter. Plaintiff and Sznapstajler were fired; Balester and Walter were not.[2] In short, Defendant alleges Plaintiff's involvement in the RTS website constituted a conflict of interest, in violation of the company's policies regarding outside activities and/or employment. *2 From the outset of the case (and even prior to the case being filed), Plaintiff has raised concerns regarding Defendant's failure to properly preserve evidence, and even intentional destruction of evidence on Defendant's part. Cognizant of Plaintiff's concerns, the Court held regular discovery status conferences (with the consent of the parties) throughout much of the discovery portion of the case in an attempt to facilitate orderly discovery and production of documents. See, e.g., Minute Entries (Doc. Nos. 131, 137, 141, 153, 160, 169, 175, 191, 221, 225). The discovery status conferences seemed to have been somewhat helpful in that the parties were able to work out many of the discovery issues between themselves prior to being called upon to explain the progress of the case and/or after hearing each other's presentations in Court. Plaintiff, however, never has been satisfied with the document preservation efforts (or, in Plaintiff's view, the lack thereof) undertaken by Defendant. The Motion now before the Court addresses alleged spoliation of evidence and “sluggish production.” See generally Motion. This case has been described by the defense as “almost a perfect storm” for Defendant in terms of producing electronically stored information (“ESI”). Transcript from May 27, 2009 Motions Hearing (Doc. No. 87; “5/27/09 Tr.”) at 30. During the discovery phase of the litigation, Defendant “had an antiquated [computer] system it was converting.” Id. Added to the so–called “perfect storm” from the system conversion are two factors that, in the Court's view, have significantly complicated the issues. First, some of Defendant's employees were initially less than diligent in their preservation efforts. Second, Plaintiff's pretrial litigation strategy has been extremely aggressive and at times relentless. Plaintiff understandably has stopped at nothing to get to the bottom of exactly what happened with regard to the preservation of documents, but in doing so, Plaintiff has at times in her papers and in other representations exaggerated the facts and circumstances of Defendant's allegedly poor preservation and production efforts. II. Motion/Issues Raised In the Motion, Plaintiff seeks sanctions against Defendant “for spoliation of evidence and sluggish production[.]” Motion at 1. Plaintiff alleges she suffered prejudice “in two main respects: (1) destruction of relevant documents and (2) significant delay in taking depositions resulting in substantial memory loss by witnesses on pertinent issues.” Id. at 24. Plaintiff asks the Court to strike “Defendant's pleadings with respect to her whistle–blower claims due to [Defendant]'s failure to preserve and produce key operational data;” to provide “an adverse inference to the jury for [Defendant]'s destruction of documents and sluggish production as to the remainder of her non–contract claims;” and to award “Plaintiff her fees and costs reasonably incurred as a result of Defendant's failure to preserve and produce documents.” Id. at 35. Calling Plaintiff's Motion “a recitation of Plaintiff's causes of action and a hyperbolic laundry list of perceived slights,” Defendant contends that “Plaintiff's hysteria cannot mask the failings of her claim for sanctions.” Response at 1. Regarding the allegation of spoliation, Defendant argues it fulfilled its duty to preserve documents; Plaintiff cannot establish that allegedly missing documents exist; Plaintiff is not missing any crucial evidence; and Defendant did not exhibit any bad faith which would warrant sanctions. Id. at 9–27. Defendant also contends that “sluggish production” is not a basis for a spoliation claim. Id. at 28. Even so, Defendant argues “it was largely Plaintiff's actions that caused delay in this case.” Id. Defendant says “Plaintiff has taken the narrow scope of this case and blown it out of proportion to include 175 broad discovery requests, the majority of which were not served until March 2009 or later (almost a year after the Complaint was served on LabCorp on April 25, 2008).” Id. (citations omitted). Defendant concludes in part: *3 After a year of enduring allegations of improper conduct, fraud, and other nefarious behavior, LabCorp welcomes this opportunity to present its side of the story. LabCorp has undertaken extraordinary efforts and enormous time and expense to satisfy Plaintiff's requests. Despite Plaintiff's relentless complaints, she still has not demonstrated how she was prejudiced and has provided absolutely no evidence of bad faith. Id. at 29. Having considered the parties' papers and the file as a whole, as well as having heard oral argument, the Court finds that the Motion is due to be granted in part and denied in part. Specifically, the Motion is due to be granted to the extent that Plaintiff will be awarded reasonable attorney's fees and costs in connection with Defendant's sluggish production of ESI, but the Motion is otherwise due to be denied.[3] III. Facts[4] A. LabCorp's Forms of Information/Retention In 2007, the year most relevant to the issues before the Court, Defendant stored its electronic data on computer servers located in Hollywood, Florida; Tampa, Florida; Burlington, North Carolina; and Shelton or Stratford, Connecticut. Deposition of Jamie Nelson (Motion at Ex. 3–Doc. Nos. 274–2, 274–3; Doc. Nos. 320–2, 320–3 (duplicate); “J. Nelson Dep.”) at 55[5]; Declaration of Jamie D. Nelson (Doc. No. 157–4; Doc. No. 319–1 (duplicate); “J. Nelson Dec.”) at 1 ¶ 4. Each of the computer servers contained ESI for all LabCorp employees, including: (1) emails; (2) network home drive documents (those documents saved by individual employees on their own individual space on the network server); and (3) network share drive documents (standard forms and letters located on the server and accessible by various employees). J. Nelson Dep. at 130–35; J. Nelson Dec. at 1 ¶ 5. *4 An email sent or received on the LabCorp network remained on the server for a period of forty–five (45) days, assuming an individual did not save or delete it. J. Nelson Dep. at 66; J. Nelson Dec. at 1 ¶ 6. Upon expiration of the forty–five (45) day period, the email would automatically be deleted from the “live system.” J. Nelson Dep. at 78–79, 82. At least some of LabCorp's employees who are likely witnesses in this case were not aware of the forty–five (45) day deletion practice. See, e.g., Motion at Ex. 7 (Doc. Nos. 275–1, 275–2, 275–3, 275–4, and 275–5; “Deposition Excerpts”) at Ex. 8 p. 112 (John Gornto), Ex. 13 pp. 182–83 (Kate Sumsion). Documents on an employee's network home drive and on the network share drive were not subject to the automatic deletion; instead, the documents remained on the drives until manually deleted by the employee. J. Nelson Dec. at 1–2, ¶¶ 7–8. In about May or June of 2008, LabCorp started migrating from its old email system, Novell Group–Wise, to a new email system, Microsoft Exchange. J. Nelson Dep. at 53–54. Prior to the migration, if an employee wished to save an email so it would not be subject to the automatic deletion, there were two options. Id. at 63–66, 68–71, 94–97. First, the employee could “copy and paste” the text of the email into a Microsoft Word document or a. pdf document and save the document. Id. at 94–95. Second, the employee could initiate a “Group–Wise archive,” which entailed inputting a date into the email program. Id. at 63–66, 94–97. The email program would “pull the email from the server” in accordance with the inputted date “and put them in an archive file” which would be a “local archive file” on the individual's personal computer, rather than on the home drive or the share drive. Id. at 63–66, 68–71, 94–97. There were five (5) employees who had the archiving function turned on and had retrievable emails saved by such function when the migration was performed: Terry Ferrell, Jorge Franco, Beverly Hartshorn, Kim Lomelo, and Tom Napolitano. Id. at 67–69. Emails saved by employees were not subject to the automatic forty–five (45) day deletion. Id. at 66–69, 71. Such “archived” emails remained on the employee's personal computer indefinitely; to be deleted, the employee would had to have manually done so. Id. at 68–69. As previously stated, although emails were subject to an automatic deletion from the servers after forty–five (45) days, documents stored on network home drives, and documents stored on network share drives were not subject to automatic deletion and remained on the server until manually deleted, J. Nelson Dec. at ¶¶ 7–8; further, network and share drive documents were preserved by being recorded on “disaster” backup tapes which provided a snapshot of all the data on a server at the time a recording was made. J. Nelson Dep. at 82–87, 134–35; J. Nelson Dec. at 2 ¶ 9. In addition to the network and share drive documents being preserved by the “disaster” backup tapes, any existing emails and deleted emails were preserved. J. Nelson Dep. at 82–87, 101. Although once–deleted emails were preserved, prior to the 2008 migration to Microsoft Exchange, if an employee deleted an email the same day it was sent or received and then deleted it again from the “deleted mailbox,” it would not have been captured in the above–described backup process. Id. at 100–01. But, any emails in an employee's deleted mailbox were “maintained on the server for an additional 14 days” and “could [have been] easily recovered without returning to tape.” Id. at 101–02. The backup tapes in Tampa, Hollywood, Burlington, and Connecticut preserved information on a daily, weekly, and monthly basis. Id. at 83–85. As a result, “[i]n the event of a technological catastrophe during which a server was damaged or destroyed, the data on that server could be ‘recovered’ from that server's [t]apes.” J. Nelson Dec. at 2 ¶ 10. Backup tapes were maintained for a period of time and then placed back into the rotation, or recycled, to record data over the existing backup material. J. Nelson Dep. at 82–83, 87–90; J. Nelson Dec. at 2 ¶ 12. For example, in Tampa during the relevant time frame, daily backup tapes were recycled once per week, weekly backup tapes were recycled every four (4) weeks, and monthly backup tapes were recycled every month. J. Nelson Dep. at 88–90. When there was a need to preserve data, such as in the event of a lawsuit, the relevant tapes would be taken out of the recycle circulation. J. Nelson Dec. at 2 ¶ 14. In addition, when a litigation hold was issued, LabCorp generally entrusted each employee to maintain data on his or her local device(s) until the hold was released. J. Nelson Dep. at 166. *5 Any information, including archived emails, existing solely on an employee's personal hard drive was not subject to the above–described backup process. Id. at 180–81. As such, “corporate IT” recommended to employees that information be saved on the network drives so that it could be recovered if needed. Id. at 181. As previously summarized, one (1) of the subjects about which Plaintiff complains and for which she seeks the harshest sanction (striking Defendant's responsive pleading) is Defendant's alleged “failure to preserve and produce key operational data.” Motion at 35. Separate and apart from preservation efforts in the event of a lawsuit, LabCorp's “Business Practices Manual” contains certain policies regarding retention of operational documents. See generally Motion at Ex. 4 (Doc. No. 274–4). For example, laboratory test requisitions and reports must be kept for seven (7) years, while laboratory documents such as quality control records, proficiency testing records, worksheets, and accession records must be kept for two (2) years. Id. at Ex. 4 App'x A. B. Relevant Background Regarding Preservation Efforts Prior to Lawsuit Plaintiff first complained of being “singled out due to gender” in a January 13, 2007 memorandum to Farrell, the Vice President of Sales and Plaintiff's then–boss. Motion at Ex. 1 at Ex. A. The January 13, 2007 memorandum was copied to Sumsion, the Human Resources Director. Id. The memorandum was sent following a sales meeting in Orlando, Florida. Id. During the sales meeting, various “teams” were formed and were expected to perform a “skit” using certain guidelines. Id. Plaintiff was the leader of her team, which allegedly performed an “offensive” skit. Id. After the skit, Plaintiff was asked by Farrell to apologize to the “sales reps” for the offensive nature of her team's skit. Id. Plaintiff speculated that she was “singled out” by being asked to apologize because (1) no one else on her team had to apologize; and (2) none of the other team leaders (all of whom were males) of teams performing allegedly offensive skits was asked to apologize. Id. Fast forwarding about six (6) months, in a June 12, 2007 email from Gornto (Associate Vice President of Corporate Human Resources) to Farrell and Sumsion, Gornto – who had apparently recently learned of the RTS website – contemplated Farrell discussing with the RTS website participants their “potential conflict of interest” in being involved in the website. Id. at Ex. 1 at Ex. C p.1.[6] Soon thereafter, a series of emails were exchanged between and among management and human resources personnel, including the above three (3) individuals and Bob Nelson, the Senior Vice President of the Florida Division of LabCorp, regarding the RTS website and possible action to be taken against the employees involved in the website. See generally id. As these issues were being discussed, on June 15, 2007, Plaintiff again complained in a memorandum to Farrell about “ongoing operational concerns” and speculated that “they aren't being addressed because [Farrell did not] want to support [Plaintiff] because [she is] female....” Motion at Ex. 1 at Ex. D. On June 22, 2007, Farrell told Plaintiff she was terminated. Compl. (Doc. No. 1) at 9 ¶ 36; Motion at Ex. 1 at Ex. I Part 1 p.5.[7] Sumsion was present for the termination. Motion at Ex. 1 at Ex. I Part 1 p.5. *6 Jamie Nelson, LabCorp's Rule 30(b)(6) deponent, testified that four (4) days after the termination, on June 26, 2007, the “[k]ey decision makers were told to maintain files and notes[.]” J. Nelson Dep. at 166; see also id. at 149. Jamie Nelson could not say whether the communication was verbal or in writing. Id. at 166. Those key decision makers were identified as Bob Nelson, Farrell, and Sumsion. Id. In the limited portion of the Bob Nelson deposition testimony provided by Plaintiff, Bob Nelson was not specifically asked whether he was told by anyone near the time of Plaintiff's termination to preserve documents. See generally Dep. Excerpts at Ex. 11. He was asked about whether he took “any steps to preserve documents” in the “June 2007 time frame,” to which he responded in part, “We didn't discard documents, certainly, or in any way do anything that would jeopardize the document collection process.” Id. at Ex. 11 p. 287. He stated that he did not do anything specific to preserve ESI because he believed it would be preserved by “systems” via a backup tape. Id. at Ex. 11 pp. 287–89. Farrell testified that he did not believe he was told to preserve documents and information at any point prior to Plaintiff's termination, but at some point afterwards he was told to do so. Id. at Ex. 12 pp. 278–79, 280–82. He, too, did not do anything to save at least emails because he believed they would be “archived.” Id. at Ex. 12 p. 278. Farrell had his archiving function turned on, but he stated his general practice was to delete emails and memoranda, and he continued his normal practice at that time. Id. at Ex. 12 pp. 278, 281–82; see also J. Nelson Dep. at 68–69 (indicating Farrell's archiving function was turned on and there were retrievable emails in Farrell's archive). Sumsion does not recall whether she was told to preserve her ESI. Dep. Excerpts at Ex. 13 pp. 165, 167–68. Jamie Nelson further testified regarding alleged responsibilities placed on Sumsion after Plaintiff was terminated. He stated that on June 26, 2007, “there was a communication from corporate legal to HR in Tampa to preserve” and the preservation was to include “emails, documents, any documents pertaining to the termination, [and] hard copy documents in offices.” J. Nelson Dep. at 148–49. This communication supposedly included share drive documents and hard drive documents. Id. at 149–50. Jamie Nelson confirmed that the human resources employee to receive that communication was Sumsion. Id. at 149. Sumsion allegedly contacted Franco (the head of South Florida laboratories), Hudson (an HR employee in the South Florida area), and Bloom (the IT director for the Florida division) on unknown dates and “extend[ed] the request to them.” Id. at 150–51, 153–54. Specifically, Sumsion instructed Franco and Hudson “to preserve data” and Bloom “to preserve email and file data for Ms. Butterworth, Mr. Sznapstajler, Jed Walter, and [Jamie Nelson] believe[s] it's Kelly Balester.” Id. at 151; see also id. at 154. Franco then contacted Manny Corp, an “IT person in Hollywood who incidentally reports to Roger Bloom,” and “asked Manny to contact corporate security and work on getting the preservation of machines of laptops, laptops, desktops under way.” Id. at 152. Corp “pulled tapes out of the rotation for Hollywood. He pulled laptops and sent them to [LabCorp's] corporate security department for image, for forensic imaging.” Id. at 152–53. In addition, Bloom “preserved the Tampa tapes.” Id. at 155. The Hollywood and Tampa tapes (the locations where Plaintiff primarily worked) were pulled out of rotation between June 26 and June 29, 2007.[8] Id. at 155, Ex. 4. The backup tapes contained emails and documents on the home and network share drives but not information existing solely on hard drives. Id. at 164–65. Jamie Nelson believes Plaintiff's computer and Sznapstajler's computer were imaged in July 2007, and he knows that no others were imaged at that time. Id. at 152–53. *7 Sumsion painted a different picture than did Jamie Nelson of Sumsion's preservation responsibilities upon Plaintiff's termination. She testified that her role in preservation was “[t]he same as it would have been in any other case, preserving the documents that [she] received.” Dep. Excerpts at Ex. 13 p.165. When asked whether she “receive[d] any verbal direction from anybody at LabCorp to tell other employees to preserve documents,” Sumsion answered, “I don't believe — I don't recall doing that. I do recall sending e-mails to people saying your computer is going to be copied, or mirror imaged, as you said. Be prepared for someone to come and get it.” Id. at Ex. 13 pp. 176–77. In addition, Sumsion stated she was not required to ensure other employees preserved documents. Id. at Ex. 13 p. 177; see also id. at Ex. 13 p. 190. As previously stated, the three (3) LabCorp employees with whom Sumsion allegedly had contact after Plaintiff's termination were Franco, Hudson, and Bloom. Hudson was not deposed. Motion at 20–21 n.42. Plaintiff did not provide a deposition of Bloom, so the Court assumes he was not deposed either. Franco, who was responsible in part for maintaining records in the Hollywood laboratory, testified he did not recall being asked to locate documents when Plaintiff was terminated, and no one has ever asked him to suspend his deletion practices. Dep. Excerpts at Ex. 14 pp. 110–11. Franco did not testify about any alleged instruction from Sumsion to preserve data upon Plaintiff's termination. See generally id. at Ex. 14. He did recall having his computer imaged “several months” prior to his March 2, 2010 deposition. Id. at Ex. 14 pp. 106–07. He believed he was asked at some point via email, possibly by Sumsion, to locate “anything at all pertinent to communications with [Plaintiff], that's all.” Id. at Ex. 14 p. 109. Franco could not recall whether that communication came before or after his computer was imaged. Id. at Ex. 14 pp. 109–10. Franco also testified that he did not believe documents showing “operational issues” were maintained at the laboratory level. Id. at Ex. 14 pp. 23, 27. On July 16, 2007, LabCorp received a litigation hold letter dated July 13, 2007 from Plaintiff's counsel at the time stating in relevant part: The purpose of this letter is to put you on notice that Ms. Butterworth intends to assert a claim for breach of contract and other claims against LabCorp. Accordingly, LabCorp is under a duty to maintain and preserve all documents and electronically stored information relating to Ms. Butterworth and her employment with LabCorp and its predecessors, including but not limited to the following subjects: • Ms. Butterworth's employment with LabCorp, including without limitation correspondence, contracts, and e-mails relevant to her employment; her personnel file; her compensation (including without limitation bonuses, salary and benefits); and her employment evaluations. • Ms. Butterworth's concerns of discrimination and retaliation against her, and all underlying facts relevant to those concerns, which concerns Ms. Butterworth has brought to the attention of LabCorp representatives, including senior management, human resources and sales personnel. • Ms. Butterworth's dealings with clients, co–workers, and LabCorp's management, insofar as they are relevant to her employment, her compensation, any alleged reason for her termination, or any of her concerns respecting discrimination and retaliation against her. • Ms. Butterworth's employment at Dynacare Laboratories, Inc. • LabCorp's contractual obligations, and company policies and practices, concerning the sale of Dynacare Laboratories, Inc. to LabCorp and relating to the transition of employees and employment agreements. For purposes of this letter, “documents” and “electronically stored information” include without limitation writings, e-mails, drawings, graphs, charts, photographs, sound recordings, images, and any other data or data compilations. Your instructions to preserve these documents and data should be directed to LabCorp's Florida management team, Florida employees, and any other individual or entity employed by or in privity with LabCorp, and who may have custody or control of such documents and data. *8 Motion at Ex. 1 at Ex. H; J. Nelson Dep. at Ex. 4. On about August 7, 2007, Plaintiff filed an EEOC Charge of Discrimination (Motion at Ex. 1 at Ex. G; “EEOC Charge”), which was received by LabCorp on August 13, 2007 (Response at 6). The EEOC Charge alleged sex discrimination and retaliation, but Plaintiff also alleged in an Affidavit attached to the EEOC Charge that she had complained about operational issues, that she was not paid compensation she had earned, and that her earnings were instead paid to males. In an attachment to the EEOC Charge and labeled “Witnesses,” Plaintiff identified potential witnesses as Balester, Sznapstajler, Amy Dalton (former LabCorp regional manager of sales), Bufford Hilson (account representative), Michelle Wise (unknown title), and Gretna Zergerbny (former LabCorp employee). Also, in the Affidavit attached to the EEOC Charge, Plaintiff specifically mentioned Farrell, Bob Polege, Balester, Walter, Danny Shoemaker, Bob Nelson, Tom Napolitano, Sumsion, Ben Miller, Joe Romirez, and Marie Daniel. LabCorp responded to the EEOC Charge on September 20, 2007 by submitting its position statement. Motion at Ex. 1 at Ex. I. A preservation notice from LabCorp dated August 27, 2007 named the following individuals as recipients: Bob Nelson, Sumsion, Farrell, Gornto, Cole Davis (the head of email in 2007, see Response at 6 n.9), Jim Kane (an employee in corporate security, see id.), and Trish Bulluck (an employee in human resources, see id.). Motion at Ex. 1 at Ex. H; Response at Ex. B (duplicate) (collectively, “Preservation Notice”). The Preservation Notice summarized the EEOC Charge as containing “allegations pertaining to gender discrimination and retaliation.” Preservation Notice at 1. It directed the recipients of the Preservation Notice to retain all documents and information related to the EEOC Charge, including “any and all paper and electronic documents created and maintained by you, including e-mails, voicemails, handwritten notes, physical as well as electronic files, calendars, and tasks, as well as any unique databases utilized by you.” Id. at 2. Recipients were advised that they “[could not] automatically delete e-mail or recycle documents relating to this claim as [they] might otherwise do in the ordinary course of [their] data retention practices.” Id. Directions were provided regarding collection of electronic documents: once the relevant documents were located, the recipient was instructed to “create a folder on [his/her] C: drive and copy all such documents into that folder.” Id. at 3. Then the recipient was to “copy the folder onto a CD–ROM, or compress the folder into a ZIP file,” and then await further instruction related to production. Id. Regarding “hard copies of documents,” recipients were directed to “conduct a thorough search of [their] office[s] or workstation[s] to collect originals,” including “any on-site or off–site storage locations,” and then await further instruction related to production. Id. at 2–3. The recipients were also directed to “promptly notify the Legal Department” if anyone else was known to “possess relevant documents or information but did not receive th[e] Preservation Notice [.]” Id. at 2. Though the Preservation Notice instructed recipients to confirm its receipt and standard practice was for employees to confirm receipt of such notices, Jamie Nelson testified he did not know whether the recipients did so here. Id. at 3; J. Nelson Dep. at pp. 170–71. *9 Four (4) of the seven (7) recipients were deposed regarding document preservation: Bob Nelson (some of whose testimony is summarized above), Farrell (some of whose testimony is summarized above), Sumsion (some of whose testimony is summarized above), and Gornto. In the limited portion of the Bob Nelson deposition testimony submitted by Plaintiff, Bob Nelson was not specifically asked whether he received the Preservation Notice.[9] See generally Dep. Excerpts at Ex. 11. Regarding his efforts to preserve documents, Bob Nelson stated that he did not take any particular efforts to preserve ESI, as he believed emails and the like would be preserved on a backup tape. Id. at Ex. 11 p. 287. As to efforts to preserve hard copy documents, he testified he “believe[d] early on in the case [they] were asked [by either inside or outside legal counsel] if [they] had any documents, physical documents, as best [he] can recall.” Id. at Ex. 11 at p. 292. He did look for hard copy documents, id. at Ex. 11 pp. 288–89, but he did not have any because he “rarely” kept such documents, id. at Ex. 11 pp. 287–88. Although Bob Nelson could not recall the exact date he was asked to locate documents, he estimated it to be in the time period of the filing of the Complaint in this matter. Id. at Ex. 11 pp. 292–93. In the limited portion of the Farrell deposition testimony submitted by Plaintiff, Farrell was not asked specifically whether he received the Preservation Notice, but he was asked whether he had been told to preserve documents. Dep. Excerpts at Ex. 12 pp. 281–82. Farrell testified that “at some point” he received a “notification” from either the outside law firm representing LabCorp or from internal counsel that directed him not to delete emails. Id. He said he was not instructed regarding “memoranda” he had received. Id. at Ex. 12 p. 282. In the limited deposition testimony provided by Plaintiff, Farrell was not asked whether LabCorp followed up to retrieve any documents from him.[10]See generally id. at Ex. 12. Sumsion testified she did not recall whether she received anything directing her to preserve documents, but that if she did receive notice, she “would have acknowledged that [she] did receive it. And that should be on somebody's hard drive somewhere.” Id. at Ex. 13 p. 165. Regarding the Preservation Notice itself, the following exchange occurred: Q. Did you receive a copy of this document? A. Yes. Q. Do you recall receiving a copy of this document? A. I don't, but my name is on here, so I did.[11] Id. at Ex. 13 p. 167. When asked about her understanding of what she was supposed to have preserved, Sumsion testified she understood her obligation to have been “[k]eeping what [she] get[s].” Id. at Ex. 13 p. 164; see also id. at Ex. 13 p. 165. She “already had a separate folder [on her computer] just for [Plaintiff]” at the time, so there was no need to do anything else. Id. at Ex. 13 p. 170; see also id. at Ex. 13 pp. 172–73. At some point in time that she could not remember, her computer hard drive was mirror imaged or copied. Id. at Ex. 13 pp. 173, 176, 183. Also at a point in time that she could not remember, she was asked for any hard copy documents she had in her office. Id. at Ex. 13 p. 183. She assumed she was asked for the documents when LabCorp submitted its position statement to the EEOC. Id. Gornto testified he received the Preservation Notice, and in accordance with the instructions in it, he created a file and placed any files that “had [Plaintiff]'s name in [them] or were relative to [Plaintiff] ... in that file [.]” Id. at Ex. 8 p. 110; see also id. at Ex. 8 p. 113. When asked whether he “ever produce[d] that electronic file to anybody in this case,” Gornto testified that someone had retrieved his hard drive on a date he could not remember, and the file would have been on the hard drive.[12] Id. at Ex. 8 pp. 113–14. C. Instant Case *10 The instant case commenced on April 24, 2008 with the filing of the Complaint (Doc. No. 1) by Plaintiff. LabCorp's Rule 30(b)(6) deponent, Jamie Nelson, confirmed during his deposition that the Complaint identifies twenty–nine (29) then–current employees of LabCorp and eight (8) former employees. J. Nelson Dep. at 172; see also Compl. (Doc. No. 1). Jamie Nelson testified that between May 1, 2008 and August 1, 2008, eighteen (18) of the twenty–nine (29) then–current employees were interviewed by outside counsel. J. Nelson Dep. at 172–73. According to Jamie Nelson, each of the interviewees was instructed when the interviews took place to preserve documents. Id. at 172–73, 176–77. Plaintiff deposed seven (7) of those employees who were interviewed: Farrell, George Franco, Bufford Hilson, Gonzalo Agramonte, Bob Nelson, Sumsion, and Walter. See id. at 172–73; Dep. Excerpts at Exs. 2(a), 2(b), 3, 5, 8, 11, 12, 13. The testimony of Farrell, Franco, Bob Nelson, and Sumsion regarding alleged instruction to preserve documents has already been summarized in Section III. B. above. Hilson testified that the day before his May 21, 2009 deposition was the first time he was told to preserve documents and the first time he was asked to produce documents. Dep. Excerpts at Ex. 3 p. 231. He did acknowledge, though, that he had “conversations with one attorney” about the case possibly one year prior to his deposition. Id. at Ex. 3 p. 232. Agramonte testified that in about 2009, he was asked if he had any documents relating to Plaintiff. Id. at Ex. 5 p. 71. He responded that he did not. Id. He did not know Plaintiff. Id. Agramonte confirmed he was not asked for “documents relating to operational concerns[.]” Id. He was asked for documents reflecting “quality assurance concerns,” and he provided such documents, as well as “QA reports” and “call slips.” Id. at Ex. 5 pp. 72–73. He thought those documents were probably sought in relation to Sznapstajler's case. Id. at Ex. 5 pp. 75–76. As explained below, Walter testified regarding the lack of instruction to preserve and produce documents, and he specifically confirmed “that from June 2007 through February, March, April of 2009,” no one “associated with LabCorp.” asked him to preserve relevant documents. Id. at Exs. 2(a), 2(b) p. 17. In addition to the deponents' testimony already discussed, Plaintiff deposed six (6) others who were not specifically identified by Defendant as having been interviewed between May 1, 2008 and August 1, 2008: Balester, Wise, Younts, Feldman, Smith, and Miller. Id. at Exs. 1(a), 1(b), 4(a), 4(b), 6, 7, 9, 10. Of the six (6) additional deponents, three (3) were identified as potential witnesses as early as when Plaintiff filed her EEOC charge (Balester, Wise, and Miller) and two (2) were identified when Plaintiff served her initial disclosures on July 24, 2008 (Younts and Smith). As explained in more detail below, Balester testified that no one in or after June 2007 advised her to stop deleting documents, and that February 2009 was the first time she was asked to produce documents related to Plaintiff's case. Id. at Ex. 1(b) pp. 66–67, 136. Wise testified on May 21, 2009 that the day prior to her deposition was the first time she was asked whether she had any documents that related to Plaintiff's case. Id. at Ex. 4(a) p. 64. Miller testified that he did not definitively remember whether he made any effort to save or whether anyone asked him for emails and documents relating to Plaintiff's case, but he did not think either had occurred. Id. at Ex. 10 pp. 97–98. Younts testified that he was asked to preserve and provide documents relevant to Plaintiff's case, but he could not recall when. Id. at Ex. 6 pp. 254–58. He made efforts to locate responsive documents. Id. at Ex. 6 p. 256–57. Smith testified he did not know whether he received notification to preserve documents, but he “never threw anything away.” Id. at Ex. 9 p. 122. Feldman testified he archived all of his emails and the emails are retrievable. Id. at Ex. 7 pp. 28, 31. Although no one asked him “to preserve emails or any information related to” the RTS website, he did send some emails and documents to counsel at some point. Id. at Ex. 7 pp. 117, 134. He did not look for any documents until May 2009. Id. at Ex. 7 pp. 134–35. *11 During the time frame in which the above–described interviews were taking place, on July 7, 2008, Plaintiff sent LabCorp a second notice requesting that certain preservation efforts be undertaken. Motion at Ex. 1 at Ex. J. In the second notice, Plaintiff identified thirty–seven (37) specific witnesses and three (3) categories of witnesses whose “emails and correspondence containing information reasonably calculated to lead to the discovery of admissible evidence to, from, cc, bcc, or authored by” such witnesses should be preserved. Id. On July 8, 2008, a revised second notice was sent which was the same as the original second notice but included a revised list of witnesses. Id. at Ex. 1 at Ex. K. On July 24, 2008, Plaintiff served initial disclosures identifying sixty–four (64) witnesses (thirty–seven (37) of whom were LabCorp employees and were the same as those identified in the revised second notice) and identifying subjects about which the witnesses may have knowledge. Id. at Ex. 1 at Ex. L. On August 25, 2008, Plaintiff's counsel sent an email to Defendant's counsel reiterating that “we want to make sure that important emails and documents have not been and are not in the future automatically via LabCorp's email/electronic document retention policy (or intentionally by the witnesses) deleted or destroyed.” Id. at Ex. 1 at Ex. M p. 2.[13] The email also expressed concerns about the Preservation Notice and the fact that it had only been sent to seven (7) individuals: Also, please note that the issues involved in this case are broader than the issues raised in the EEOC Charge. We expect all documents relevant to [Plaintiff]'s whistle–blowing and breach of contract claims to have been preserved, in addition to the issues related to the EEOC Charge. Ms. Bartis' “preservation notice” memo only references the EEOC claims and appears to have been sent to only seven employees (a much narrower audience than the list of witnesses we have identified). Id. On August 27, 2008, Plaintiff's counsel followed up with a letter reiterating that the Preservation Notice “did not address preservation of documents and records relating to [Plaintiff]'s whistle–blowing and contract claims.” Id. at Ex. 1 at Ex. M p. 4. In the letter, Plaintiff's counsel expressed her concerns regarding the timing of the Preservation Notice and the “small fraction of employees” to whom it was sent. Id. A response to this letter is not included in the evidence submitted.[14] Apparently unbeknownst to Plaintiff's counsel at the time, on August 25, 2008, two (2) days prior to the follow–up letter being sent, Defendant's counsel had emailed two (2) LabCorp representatives. Response at Ex. D. The August 25, 2008 email instructed them, if they had not already done so, to “suspend the operation of the Company's normal document destruction/retention policy with regards to” forty (40) individuals. Id. Interestingly, the list of forty (40) individuals included almost every deponent that has testified he/she was not asked at all or until late in the discovery process to preserve or produce documents. Id. Among those on the list were Walter, Balester, Hilson, Wise, Agramonte, and Smith. Id.[15] *12 Thereafter, on September 18, 2008, Plaintiff substituted counsel. See Order (Doc. No. 16). On October 6, 2008, Plaintiff served her first set of requests for production and first set of interrogatories. Motion at Ex. 1 at Ex. N. LabCorp objected to the requests. On October 29, 2008, Plaintiff's counsel emailed Defendant's counsel and asked for a response to the concerns set forth in the August 27, 2008 letter. Id. at Ex. 1 at Ex. O. A response to the October 29, 2008 email is not included in the evidence submitted. On December 16, 2008 and December 17, 2008 respectively, Plaintiff's counsel took the depositions of Balester and Walter. Id. at Ex. 1 at Exs. P, Q. Balester testified that if there had been operational issues, she would have involved Plaintiff and she would have “put it in writing”; that no one had ever asked her to produce anything in writing regarding lost specimens; that she does not save all of her emails; and that no one had verbally or in writing asked her to locate any information relating to the instant case. Id. at Ex. 1 at Ex. P. Walter testified that he was never asked to provide any documents relating to the instant case. Id. at Ex. 1 at Ex. Q p. 71. During Walter's deposition, Plaintiff's counsel indicated that he intended to bring Defendant's failure to preserve documents to the attention of the Court. Id. at Ex. 1 at Ex. R. On December 31, 2008, Plaintiff's counsel sent Defendant's counsel a letter summarizing the correspondence previously sent on the preservation issue, noting that Plaintiff's counsel had not received responses to any of the correspondence, and again reiterating the concern that Defendant was not properly preserving documents and was not making a good faith effort to locate documents. Id. at Ex. 1 at Ex. S. The December 31, 2008 letter alleges that Defendant's production of documents in response to the requests for production consisted of the following: “Defendant scanned and emailed approximately 500 pages of materials to Plaintiff. Of the 500 pages of materials, the vast majority of the documents were non–responsive to Plaintiff's requests.” Id. at Ex. 1 at Ex. S p. 2. A response to the December 31, 2008 letter is not included in the evidence submitted, although emails dated January 5, 2009 and January 9, 2009 stating that a response would be forthcoming are included. Id. at Ex. 1 at Exs. T, U. In two (2) separate emails both dated February 10, 2009 that have become two (2) of the centerpieces of this litigation, Defendant's then–counsel wrote Balester and Walter regarding the case and included the following in each email: I know this issue has come up before, but I need to ask you again if you have ANY documents that might be relevant to [Plaintiff]'s claims of gender discrimination and retaliation for “whistleblowing.” It is very very important that we have all relevant documents. Id. at Ex. 1 at Ex. V pp. 5,11.[16] Both recipients responded, in part, by clarifying that the first time they had been asked for documents was in the February 10, 2009 emails they had received. Id. at Ex. 1 at Ex. V pp. 3, 10. Walter provided nineteen (19) documents and stated “that there [were] thousands of pertinent documents that [were] no longer retrievable.” Id. at Ex. 1 at Ex. V. p. 16. Balester also produced some documents in response to the email request. Dep. Excerpts at Ex. 1(b) pp. 35–38.[17] *13 In a letter dated February 13, 2009 and an email dated March 10, 2009, Plaintiff's counsel continued to assert that Defendant's production of documents was deficient in a number of respects. Motion at Ex. 1 at Exs. W, Y. It is evident that during the time period in which the letter and email were sent by Plaintiff's counsel, the parties were working together to resolve their outstanding disputes with respect to the documents. See id. On March 11, 2009, after a telephone conference between the parties, Plaintiff's counsel sent an email to Defendant's counsel which summarized the parties' agreements and outstanding issues. Id. at Ex. 1 at Ex. Z pp. 3–6.[18] With respect to document preservation concerns, Plaintiff's counsel stated that “emails from certain LabCorp employees identified by Plaintiff” were “not on LabCorp's server. Instead, these are emails that were saved/archived/filed by individual employees and, as such, these emails were not subject to LabCorp's 45 [day] rolling deletion policy.” Id. at Ex. 1 at Ex. Z p. 4 (emphasis removed). With respect to “operational deficiencies,” Defendant had already produced “jeopardy reports,” but the parties could not agree on whether “hospital business reports and lost business reports [would] be produced.” Id. Following the telephone conference and the March 11, 2009 summary of agreements and outstanding issues, Defendant agreed via email dated March 31, 2009 to produce relevant, non–privileged emails from the following individuals: “Farrell, Nelson, Feldman, Napolitano, Sumsion, Cornett, Ramirez, Franco, Menendez, Rodriguez, Basco, Benvenudo, Wise, Hilson, Mc[A]llister, Visage, Gentile, Torbes, Daniel, Gornto, and Shoemaker.” Id. at Ex. 1 at Ex. BB. Defendant also agreed to determine whether hospital business reports and lost business reports existed and whether they would be produced. Id. Also on March 31, 2009, Plaintiff filed an Amended Unopposed Emergency Motion to Amend Case Management and Scheduling Order and for Continuance and Incorporated Memorandum of Law (Doc. No. 49; “Emergency Motion”). The thrust of the Emergency Motion was that “fact discovery” was set to end one (1) week from the date of the filing of the Emergency Motion and Defendant had not produced “essential documents,” leaving Plaintiff “without documents and information necessary to conduct the depositions of the[ ] key witnesses.” Emergency Motion at 1–2. On April 1, 2009, Defendant filed a response (Doc. No. 50) disputing Plaintiff's contentions regarding its production and characterizing many of Plaintiff's factual allegations as blatantly false. Defendant also stated that “[i]mmediately following the termination of [Plaintiff]'s employment on June 22, 2007, LabCorp took steps to ensure that the active ‘back up tape’ for Plaintiff's server was preserved.” Id. at 2. Defendant stated it “has already produced over seven thousand pages of e-mail correspondence involving Plaintiff and the other individual who was discharged on the same day for the same reason [ (Sznapstajler) ].”[19] Id. at 3. Defendant also represented the following regarding its computer system and the 2008 migration that had taken place: ... LabCorp has experienced technical difficulties in producing electronic correspondence. In brief, the Novell software LabCorp utilized at the time of Plaintiff's discharge does not allow for ready access to old data. The fact that LabCorp has since converted to a new software system has further complicated the task of retrieving old data. LabCorp has discussed these issues with Plaintiff's counsel at length. In addition, at Plaintiff's request, LabCorp made a high–level LabCorp IT executive available to speak directly with Plaintiff's technology consultant. Id. at 5. Sometime in February, March, or April 2009, LabCorp began attempting to convert emails, home drive, and share drive documents from the backup tapes to a usable format. J. Nelson Dep. at 185–86. When that conversion was not entirely successful, in late June or early July 2009, LabCorp sought the assistance of an outside vendor to complete this process.[20] Id. at Ex. 4. On April 3, 2009, Plaintiff filed a Motion to Compel Discovery and for Sanctions and Incorporated Memorandum of Law (Doc. No. 51; “Motion to Compel”). Plaintiff sought, inter alia, production of “hospital business reports” and “lost business reports.” Id. at 14–17. Plaintiff questioned Defendant's preservation efforts. Id. at 23. Plaintiff requested that the Court sanction Defendant at that time for failing to properly preserve documents. Id. at 23–24. Plaintiff also indicated there was a “real possibility [she] may have to file a motion for sanctions with regards to spoliation of evidence in the future. As Defendant still represents that documents production is forthcoming, such a Motion would be premature at this time.” Id. at 25. Defendant responded, in part, by maintaining it “took affirmative and effective steps to preserve all relevant information regarding Plaintiff's then known claims before receiving a litigation hold letter. Plaintiff's dispute centers not on certain evidence being destroyed, but on the procedures and processes employed by LabCorp to preserve the evidence.” Defendant's Response to Plaintiff's Motion to Compel Discovery and for Sanctions (Doc. No. 58), filed April 20, 2009, at 1 (emphasis removed). Defendant further indicated that the identification and retrieval of electronically stored documents “has been time–consuming not because of inaction or delay but because of significant challenges caused by LabCorp's now overhauled electronic data storage system.”Id. at 16. *14 A hearing on the Motion to Compel and other motions was held on May 27, 2009. See Minute Entry (Doc. No. 85). Preservation of documents and production of ESI going forward were discussed.[21] See generally 5/27/09 Tr. Counsel for Defendant at the time, stating he was “trying to be careful” with his representations, did not appear to have a great grasp on LabCorp's server issues and the types of documents that would be recoverable post–conversion. Id. at 69–72. With respect to emails, counsel indicated that “until recently, there was not a way simply to get [emails requested by Plaintiff]” because of the conversion that had taken place. Id. at 37. Defendant's counsel represented that “[v]ery recently, LabCorp's ability to not go off of things on a server ... has been enhanced and there's a new tool in place post–conversion.” Id. at 30. Given the “new tool,” counsel requested a “drop–dead, 60 days” to produce the ESI requested, id. at 31, and stated that “[LabCorp could] give [Plaintiff] a lot of stuff over the next 60 days and with the 60–day time period proposed, that that will take a lot away [sic] of prejudice. I mean, it's unfortunate there has been delay because of these issues, which [Plaintiff] can explore and find out why, but that can be remedied,” id. at 75. On July 28, 2009, Defendant's Emergency Motion for Protective Order and Supporting Memorandum of Law (Doc. No. 114; “Motion for Protective Order”) was filed, seeking Court intervention with respect to the manner in which ESI recovered from the “57 additional back–up server tapes; 17 share drives; 19 pre–2007 archive files; and [a]pproximately 40 individual hard drives” would be reviewed and produced. Id. at 3. In short, Defendant proposed a list of search terms. See generally id. Plaintiff objected to Defendant's proposed resolution. See Plaintiff's Response in Opposition to Defendant's Motion for a Protective Order (Doc. No. 119), filed August 11, 2009. At a hearing held on August 20, 2009, Defendant represented that the parties had reached a resolution of the search terms issue. Transcript from August 20, 2009 Hearing (Doc. No. 135; “8/20/09 Tr.”) at 7–19. Defendant also represented it was “working with an outside IT consultant to take all of th[e] electronic data and load it into an E discovery platform.” Id. at 8. Defendant stated that all necessary data would be uploaded by the end of August. Id. at 15–16.[22] From July 12, 2009 through August 26, 2009, the following individuals had their hard drives imaged by a third party brought in by LabCorp: Agramonte, Mary Lou Brandon Brodley, Coretta Butler, Perry Cornett, Marie Daniel, Farrell, Feldman, Franco, Parthia Gentles Hudson, Gornto, Maribeth Guerrero, Connie Hamilton, Beverly Hartshorn, Thomas Herman, Hilson, Rick Howard, Kim Lomelo, Laura Long, Jim Martin, Beth Mathias (twice), Diane McAllister, Rudy Mendendez, Carlos Montero, Deborah Morton, Napolitano, Bob Nelson, Khuan Ng, Ann Raycroft, Teresa Riggsbee, Dawn Rinaldi, Aleida Ruiz, Danny Shoemaker, Elizabeth Snyder, Sumsion, Allen Taylor, Nick Todd, Sandy VanDerVaart, Debbie Wiley, and Younts. J. Nelson Dep. at 178–80. Among those who did not have their hard drives imaged were Wise, Balester, Walter, Ramirez, Visage, Smith, and Miller.[23] See Motion at 17. *15 Following resolution of a host of other discovery issues and following the hearing on the Motion to Compel, by written Order dated August 26, 2009, the Court ruled, among other things, on Plaintiff's requests in the Motion to Compel related to operational deficiencies. Plaintiff had requested the following: Plaintiff's Document Request #40 All documents reflecting or relating to any complaints made by Defendant's customers or clients relating to Defendant's patient care, laboratory services or standards, billing practices, and/or other operational matters. ... Plaintiff's Document Request #41 All documents reflecting or relating to any complaints or concerns communicated by any of Defendant's current or former employees, officers, directors, agents or representatives relating to Defendant's patient care, laboratory services or standards, billing practices, and/or other operational matters. Order (Doc. No. 128) at 9–10 (citation omitted). Regarding these two (2) requests, Defendant was ordered to “produce complaints by Defendant's customers, clients, current or former employees, officers, directors, agents or representatives, made in years 2005, 2006, and 2007, to hospitals within the Florida division that were actually reported to Defendant's management.” Id. at 10–11. The deadline for production of those documents, as well as other ESI, was set for October 30, 2009. See Order (Doc. No. 133) at 3. On October 20, 2009, Defendant's Second Motion for Protective Order (Doc. No. 157) was filed, in which Defendant sought Court intervention with respect to the processing and review of network share drives. Defendant contended that because of the voluminous number of documents on the network share drives and the potential time and cost associated with reviewing the documents, Defendant should not have to review and produce documents on the share drive. Id. at 10–13. Alternatively, Defendant sought to shift the cost of review and production to Plaintiff. Id. at 13–16. Plaintiff responded on October 30, 2009 (Doc. No. 178). The parties were able to resolve between themselves the issues raised, and as such, the Second Motion for Protective Order was withdrawn on December 15, 2009. See Defendant's Notice of Withdrawing Second Motion for Protective Order (Doc. No. 223). Thereafter, the instant Motion was filed. IV. Discussion A. Spoliation “ ‘Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’ ” Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009) (unpublished) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)); see also Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (defining spoliation “as the destruction of evidence or the significant and meaningful alteration of a document or instrument”) (quotation and citation omitted).[24] In an action such as this one, federal law governs the issue of whether sanctions should be imposed for spoliation. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005); Martinez v. Brink's, Inc., 171 F. App'x 263, 268 n.7 (11th Cir. 2006) (unpublished). Notwithstanding, a federal court may consult state law in determining whether to impose sanctions, as long as state law is “consistent with federal spoliation principles.” Flury, 427 F.3d at 944. *16 Courts in this district applying Florida law have often used the framework set forth in Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006) for analyzing spoliation claims. See, e.g., Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009); Victor v. Makita U.S.A., Inc., No. 3:06–cv–479–J–33TEM, 2007 WL 3334260, at *2 (M.D. Fla. Nov. 9, 2007) (unpublished); Floeter v. City of Orlando, No. 6:05–cv–400–Orl–22KRS, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007) (unpublished); Optowave Co. v. Nikitin, No. 6:05–cv–1083–Orl–22DAB, 2006 WL 3231422, at *8 (M.D. Fla. Nov. 7, 2006) (unpublished).[25] According to Golden Yachts, a court considering whether spoliation has occurred and whether sanctions are warranted must determine: “1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.” Golden Yachts, 920 So. 2d at 781 (citations omitted). In addition, in the Eleventh Circuit, “an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (quotation and citation omitted). A court need “not require a showing of malice in order to find bad faith,” but “mere negligence in losing or destroying records is not sufficient to draw an adverse inference.” Id. (citation omitted). The burden is on the party moving for sanctions to establish spoliation. See Eli Lilly & Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010) (stating that “a party moving for sanctions [as a result of spoliation] must establish, among other things, that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice”) (citing Flury, 427 F.3d at 943). In applying the law to the instant case, the Court discusses the required elements in the following order: the duty to preserve; the “one time” existence of the evidence; the “critical” nature of the allegedly missing evidence; and bad faith. 1. Duty to Preserve The dispute with regard to Defendant's “duty to preserve” is two–fold. First, the parties disagree on the time period in which the duty arose. Second, they disagree on the scope of the preservation obligation once the duty arose. “A party has an obligation to retain relevant documents, including emails, where litigation is reasonably anticipated.” Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1324–27 (S.D. Fla. 2010) (discussing when the duty to preserve is placed upon defendant corporations) (citing Se. Mech. Servs., 2009 WL 2242395, at *2 (stating that “[o]nce a party files suit or reasonably anticipates doing so ... it has an obligation to make a conscientious effort to preserve electronically stored information that would be relevant to the dispute”); Wilson v. Wal–Mart Stores, Inc., No. 5:07–cv–394–Oc–10GRJ, 2008 WL 4642596, at *2 (M.D. Fla. Oct. 17, 2008) (unpublished)); see also In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1307 (N.D. Ga. 2011) (stating if the corporation “owed any document preservation duty to [the p]laintiffs, it arose only when [the corporation] could have reasonably foreseen civil litigation”) (quotation and citation omitted). Plaintiff first contends that Defendant had a duty to preserve starting in January 2007, Motion at 28, when she sent the memorandum to Farrell and Sumsion complaining of “being singled out due to gender based on the fact that [she] happen[ed] to be the one female leader of the three potentially suggestive skits,” id. at Ex. 1 at Ex. A.[26] As previously discussed, during the Orlando sales meeting, Plaintiff was asked to apologize for her team's allegedly offensive skit; in the January 2007 memorandum, Plaintiff summarized the events at the meeting and indicated at the end of the memorandum that she felt she was “singled out” for being asked to apologize when no one else was asked. See id. Though she claims the duty to preserve arose upon the memorandum being sent, Plaintiff appears to concede that Defendant's duty at that time only encompassed preservation of the January 2007 memorandum and information relating thereto. See Motion at 28 (stating that “[a]t a minimum, [Defendant] had a duty to preserve the January 2007 complaint of gender discrimination and any information regarding such complaint”). Defendant asserts that “[t]he oblique references in the memorandum were not sufficient to put a lay person on notice of Plaintiff's potential claims.” Response at 11 n.11. According to Defendant, “Plaintiff apparently believes that LabCorp's preservation duty in this case included relying on a crystal ball to anticipate far into the future all of the parameters of the multiple–count lawsuit that Plaintiff would eventually file.” Id. *17 Plaintiff relies on Broccoli v. Echostar Commc'ns Corp., 229 F.R.D. 506, 510–11 (D. Md. 2005) to support her contention that the duty to preserve arose in January 2007. In Broccoli, an employment discrimination case in which the plaintiff was terminated and later brought suit under Title VII and under various state laws, the court found the defendant “was placed on notice of potential litigation” as early as ten (10) months prior to the plaintiff being terminated. Id. The court noted that about ten (10) months prior to the termination, the plaintiff had “informed two of his supervisors ... both orally and via email, of [a human resources administrator's] sexually harassing behavior.” Id. The court went on to point out, among other things, that both supervisors “testified that [the plaintiff] made numerous complaints to them regarding [the human resources administrator's] inappropriate behavior throughout [the year leading to the termination]....” Id. at 511. Here, the evidence is not nearly as strong as that in Broccoli. Complaining of sexual harassment on multiple occasions, as did the plaintiff in Broccoli, is far different from Plaintiff's one–time mention of being “singled out due to gender” in the January 2007 memorandum. This reference to being “singled out due to gender” does not translate into a reasonable anticipation of litigation. Rather, it was an isolated complaint that was not repeated until about five (5) months later.[27] Even if the Court were to accept Plaintiff's contention that the January 2007 memorandum should have amounted to a reasonable anticipation of litigation on the part of Defendant, Plaintiff admits Defendant was able to produce the memorandum as it was kept by Farrell.[28] See Motion at 25. Plaintiff does not point to any other evidence that Defendant should have been able to produce which would be related to the January 2007 memorandum. See id. at 28. Thus, using Plaintiff's own description of what should have been preserved in January 2007, LabCorp met that obligation. Alternatively, Plaintiff contends that “[c]learly, [LabCorp] had a duty to preserve” by “early to mid–June of 2007.” Motion at 28. Plaintiff gives three (3) main reasons for this contention: (1) Farrell testified that by June 12, 2007, he knew Plaintiff would sue LabCorp[29]; (2) LabCorp has withheld various documents dated June 13, 2007 on the basis of an attorney/client privilege and/or work product protection; and (3) Plaintiff sent a second memorandum to Farrell on June 15, 2007 in which she alleged that operational concerns were not being addressed because she was a female.[30] Id. Defendant, on the other hand, alleges its duty to preserve did not arise until July 16, 2007, when Plaintiff's counsel wrote a letter to Defendant and put Defendant on notice of Plaintiff's potential claims. Response at 11–12. Even then, says Defendant, the letter “did not give LabCorp notice of all of Plaintiff's claims; rather, it vaguely referenced discrimination and breach of contract as the possible causes of action to be included in her lawsuit.” Id. at 12–13. *18 The Court agrees with Plaintiff that by mid–June 2007, there was a reasonable expectation of litigation and thus a duty to preserve. As early as June 12, 2007, management and human resources learned about the RTS website and were contemplating taking action against the employees involved in the website. Between June 12, 2007 and June 21, 2007, a series of emails were exchanged between management and human resources, in which it was ultimately decided Plaintiff would be terminated. During the time in which the emails were being exchanged, on June 15, 2007, Plaintiff complained in a memorandum to Farrell about “ongoing operational concerns,” and she attributed Farrell's alleged lack of support regarding such concerns to her being female. Taking into account all of these facts, by the time termination of Plaintiff was being considered, there was a reasonable expectation of litigation. Not only was there a reasonable expectation of litigation, but Defendant has also admitted in two (2) ways that it actually anticipated litigation as early as mid–June 2007. First, both Plaintiff's supervisor and the human resources director testified they anticipated litigation during this time–frame. In Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003), the court stated that “[m]erely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm–wide duty to preserve,” but it found such a duty when “almost everyone associated with [the plaintiff] recognized the possibility that she might sue.” Here, distinguishable from the “one or two employees” hypothetical presented in Zubulake, id., the two (2) employees who have admitted that they contemplated litigation were the very employees who were involved in the decision to terminate Plaintiff and who carried out Plaintiff's termination. Specifically, Farrell, Plaintiff's supervisor, agreed during his deposition that as early as June 12, 2007, he believed there would likely be litigation brought by Plaintiff. In addition, Sumsion, the human resources director, testified during her deposition that she “would have assumed” Plaintiff would initiate litigation upon her termination. Dep. Excerpts at Ex. 13 p. 192. Further, on June 25, 2007 Sumsion emailed Bob Nelson and wrote: Bob, We are free and clear of any employee settlements right now (until Melissa Butterworth gets started!). Kate. Motion at Ex.1 at Ex. C p. 34. Second, in its privilege log, Defendant claimed work product protection as early as mid–June 2007.[31] The Federal Rules of Civil Procedure (“Rule(s)”) provide that certain documents are not discoverable if they are work product: under Rule 26(b)(3), “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Defendant, by invoking the work product protection cited above, necessarily anticipated litigation in mid–June 2007 given that it has withheld documents from that time period. See Siani v. State Univ. of New York at Farmingdale, No. CV09–407 (JFB)(WDW), 2010 WL 3170664, at *5–6 (E.D.N.Y. Aug. 10, 2010) (unpublished) (finding a duty to preserve when a party claimed work product protection in January 2008, and relying on “the common sense conclusion that if the litigation was reasonably foreseeable for one purpose in January 2008, it was reasonably foreseeable for all purposes”); Anderson v. Sotheby's Inc. Severance Plan, No. 04 Civ. 8180(SAS), 2005 WL 2583715, at *4 (S.D.N.Y. Oct. 11, 2005) (unpublished) (finding a duty to preserve based on a party claiming work product protection on a certain date, even though the court had previously found that the work product protection was not available for notes prepared on that same date). *19 Although Defendant's preservation duty arose in mid–June 2007, the scope of the duty at that time was not as broad as Plaintiff suggests in her Motion. The Court finds that the scope at that time encompassed documents and emails related to Plaintiff's termination, to the RTS website, and to her complaints of gender discrimination. Weighing heavily in Defendant's favor with regard to meeting its preservation obligation is the fact that Defendant “pulled” the tapes from the relevant servers on June 26 and 29, 2007, which included any emails for forty–five (45) days prior to those dates (assuming they had not been deleted and therefore were unretrievable) and any documents on the home and network share drives. In addition, as summarized in Section III. B., Defendant allegedly instructed Farrell, Bob Nelson, and Sumsion on June 26, 2007 to “maintain files and notes,” but these three witnesses' testimony was somewhat unclear regarding whether they were in fact told to do so. Bob Nelson was not specifically asked about whether he was told, but he indicated he did not do anything specific to preserve ESI at the time because he thought it would be preserved via a backup tape. Farrell testified he was not told to preserve documents prior to Plaintiff's termination, but he was told to do so at some point afterwards. Farrell said he did not do anything to save emails because he thought they would be archived. Farrell also stated that his regular practice was to delete emails, and he continued to do so at the time of the termination. Sumsion could not remember if she was told to preserve documents at this time. About one (1) month later, when Defendant received the litigation hold letter from Plaintiff on July 16, 2007, the scope of the duty to preserve expanded some, but it still was not as broad as Plaintiff argues. Plaintiff's stated intent in the litigation hold letter was to “assert a claim for breach of contract and other claims.” Obviously, the “other claims” language is vague, but Plaintiff's intent and Defendant's preservation obligation were clarified to some degree in the rest of the letter. The letter specifically requested that documents and ESI relating to Plaintiff's compensation and Plaintiff's “concerns of discrimination and retaliation,” as well as other types of documents, be preserved. Plaintiff explained what documents were to be included in the “concerns of discrimination and retaliation” category by stating that the documents should contain “all underlying facts relevant to those concerns, which concerns [Plaintiff] has brought to the attention of LabCorp representatives, including senior management, human resources and sales personnel.” Notably, the litigation hold letter did not give any indication of the underlying facts of Plaintiff's “concerns of discrimination and retaliation.” Further, the litigation hold letter did not at all mention “operational complaints” or anything of the sort. It did not indicate that Plaintiff intended to bring a claim for whistleblowing. This is important because the only clearly defined category of documents Plaintiff now points to as being altogether missing is the category of documents showing “key operational complaints,” Motion at 31; the harshest sanction she seeks is “striking Defendant's pleadings with respect to her whistle–blower claims due to [Defendant's] failure to preserve and produce key operational data,” id. at 35. Weighing against Defendant with regard to meeting its preservation obligation is the fact that despite receiving the litigation hold letter on about July 16, 2007, Defendant apparently made no other efforts to notify any other employees of the obligation to preserve documents until it sent the Preservation Notice more than one (1) month later on August 27, 2007 and to only seven (7) employees. Even after the Preservation Notice was sent, Defendant initially was reluctant to expand the litigation hold despite being asked by opposing counsel to do so. Having determined that (1) Defendant's preservation obligation arose in mid–June 2007; (2) it was expanded some upon receipt of the litigation hold letter on July 16, 2007; and (3) Defendant took some favorable action and some not so favorable action with regard to its preservation duty, the undersigned next turns to the issue of whether evidence that once existed was destroyed.[32] 2. Existence of Evidence *20 In support of her contention that once-existing evidence was destroyed, Plaintiff submitted with the Motion an exhibit containing two (2) charts summarizing sixty-three (63) allegedly spoliated documents. Motion at Ex. 11; seeid. at 24, 24 n.47. Thirty-nine (39) of the documents were not produced by LabCorp in its document production; instead, Plaintiff saved them herself and produced them. Id. at 24 n.47, Ex. 11. Of the remaining twenty–four (24) documents, twenty-two (22) were produced by LabCorp in the form kept by some employees but not in the form kept by others. For example, an email sent by person “A” to person “B” was only produced as it was maintained by person “B.” Also, two (2) documents were email chains that were only partially produced. While these numbers initially are compelling, a closer look at the documents refutes Plaintiff's contention evidence that once existed was destroyed. First, almost every document Plaintiff alleges Defendant wholly “failed” to produce, but that Plaintiff was able to produce, is dated well prior to the date Defendant's preservation obligation commenced. In fact, many are dated more than one (1) year prior to the date Defendant was obligated to preserve. It is reasonable to expect that these documents Plaintiff produced but Defendant “failed” to produce were not indefinitely kept by Defendant in its normal course of business, and thus were not in existence when Defendant's preservation obligation arose. Plaintiff has not presented any evidence to the contrary. Thus, sanctions are not appropriate for Defendant's failure to produce these documents. There are two (2) documents Defendant failed to produce which were dated close in time to the date Defendant's preservation obligation arose, so the Court takes a moment to comment on each of them. These are documents saved and produced by Plaintiff. The first document is a memorandum from Plaintiff to Walter dated June 11, 2007 (labeled “JS–0003”), that appears to have been sent via inner–office mail, see Response at 17 (contending the document was “not transmitted by email and [is] only available in hardcopy form” (citation omitted)), and which Plaintiff contends should have been a part of “Jed Walter's document production,” Motion at Ex. 11. In the memorandum, Plaintiff discusses concerns about LabCorp doing business in the Bahamas without the correct licensor, her attempts to discuss the concerns with Farrell, and alleged instruction from Farrell not to email him regarding the issue but rather to talk “off line.” Obviously, if the memorandum indeed had been sent only via inner–office mail, it would not have been part of the ESI captured by the backup tapes. Defendant does not concede this document was ever in its possession, stating it is “of dubious authenticity, at best” because it was allegedly found in Sznapstajler's storage unit. Response at 17 (citation omitted). Defendant, however, appears to concede it did not initially ask Walter and Balester to preserve documents, as they “had no role in the decision–making that affected Plaintiff's position.” Id. at 16. “Even so,” says Defendant, “as litigation continued and the facts supporting Plaintiff's claim began to develop, LabCorp did seek to retain and produce documents from Walter and Balester.” Id. Defendant further contends that “the duty to preserve” does not extend “as far down the corporate totem pole as Plaintiff asks this Court to find.” Id. Assuming Plaintiff indeed sent the document, given that this document was not within the scope of Defendant's preservation obligation at the time it was allegedly sent, sanctions are not appropriate for Defendant's failure to produce it. The second document is entitled “Monthly Report–Florida/PR Division” (labeled “MB0115”–“MB0120”) and is for “Month: June 15, 2007.” Motion at Ex. 11. Although Plaintiff does not point to any particular relevance the document may have, the Court surmises the potential relevance is in a section titled “Operational concerns,” discussing concerns about patient safety and quality of work. The document does not indicate to whom it was allegedly sent. It appears to have been authored by Plaintiff. Plaintiff does not indicate how or through whom Defendant should have been able to produce this document. Without more information regarding to whom the document was allegedly sent and when it was sent, the Court is not willing to sanction Defendant for failing to produce it. In addition, given the scope of Defendant's obligation in June 2007, Defendant would not have been obligated to preserve the document at that time. Even in July 2007 when Plaintiff sent her litigation hold letter, the letter only vaguely referenced “concerns” about gender discrimination and retaliation that Plaintiff had brought to the attention of management. Thus, reasonable minds could differ regarding whether the document was included in Defendant's expanded preservation obligation. *21 As stated above, of the remaining twenty–four (24) documents, most of which are emails, twenty–two (22) were produced by Defendant only through certain witnesses but not by others who should have been able to produce them, and two (2) are email chains only partially produced by Defendant. Plaintiff contends two (2) inferences should be drawn with respect to these documents: (1) the witnesses who should have produced them must have intentionally deleted the emails to destroy evidence; and (2) there must have been more documents out there that were destroyed which would have supported Plaintiff's claims. Motion at 27 (contending Farrell and Sumsion “triple–deleted the information, thereby intentionally destroying the emails and documents”) (citation omitted), 30–31 (contending Farrell “triple–deleted” the documents prior to the daily back up processes in a deliberate attempt to destroy evidence). Defendant, on the other hand, argues that “Plaintiff has not attempted to establish that the documents complained of are even ‘missing,’ but only attempts to demonstrate that the documents were not produced in duplicate and triplicate form.” Response at 21 (citations omitted). According to Defendant, the Rules do not require it to produce documents in duplicate form. Id. A review of the charts provided by Plaintiff summarizing the twenty–four (24) documents, Motion at Ex. 11 (charts entitled “Spoliation Documents” and “Example of Spoliation Documents Regarding Bad Actors), shows that eight (8) of the documents were created well prior to the time frame in which the preservation obligation commenced. As previously stated, it is reasonable to expect that these documents were not indefinitely kept in the normal course of business, and thus were not in existence when Defendant's preservation obligation arose. The other sixteen (16) documents, all contained in the chart entitled, “Example of Spoliation of Documents Regarding Bad Actors,” Motion at Ex. 11, are more problematic for Defendant. All but two (2) of the documents that should have been included in the production of Farrell's documents were not included. It is troubling that Plaintiff's supervisor, who ultimately decided with others to terminate her employment, who was well aware of Plaintiff's complaints, and who admittedly anticipated Plaintiff would initiate litigation, did not save many of the documents and emails related to the termination. In addition, about three (3) of the documents that should have been part of the production of Sumsion's documents were not included. Again, it is troubling that the human resources director did not save all pertinent documents and emails relating to the termination. Given that most of the documents and emails are between and among Sumsion, Bob Nelson, and Farrell, the Court is also somewhat troubled by the above–described testimony regarding alleged instruction to these three “key decision makers” to preserve documents and their actions or lack thereof after allegedly receiving the instruction. Further, the Preservation Notice was not sent until August 27, 2007, and even after it was sent, at least Bob Nelson apparently took no efforts to preserve his emails because he believed they would be preserved by backup tapes. Even though two (2) of the key decision makers failed to preserve at least some important documents and/or emails, the bottom line is that Defendant was able to produce the documents and emails through others. And even though some of the decision makers apparently did not find it necessary to preserve important information, someone was diligent enough to almost immediately remove the backup tapes from circulation. Through extracting information on those tapes, Defendant has been able to produce emails and documents sent to/from all of the key decision makers. The Court is not willing to draw the inference that because Defendant has not been able to produce these documents in duplicate form, there must be additional documents that Defendant both (1) had a duty to preserve and (2) has destroyed and thereby failed to produce. 3. Crucial Nature of Allegedly Missing Evidence Based upon the testimony of several witnesses who stated they were not told until late in the litigation to preserve documents, Plaintiff wants the Court to infer that the witnesses possessed documents at some point and that the documents would be helpful to her if they had been preserved. Even assuming these witnesses should have suspended their deletion practices with respect to hard copy documents and/or ESI but did not because they were not told to do so, the Court finds below that (1) any documents not relating to “operational concerns” could not be crucial to Plaintiff's claims; and (2) documents Plaintiff now relies on to support her contention that crucial “operational concerns” evidence should have been preserved were never properly requested. *22 There is no real dispute that Plaintiff has the necessary evidence to support most of her claims. And of course, Plaintiff has in her possession all of the documents already discussed in Section IV. A. 2., so those documents cannot be viewed as “missing.” The only specific claim Plaintiff points to as missing crucial evidence to support it is the one for whistleblowing. Motion at 30. In that regard, Plaintiff attempts to focus on evidence of “operational complaints” as the crucial missing piece to her whistleblowing claim. Id. Aside from speculating that LabCorp “intentionally destroyed the evidence [of operational complaints] because the documents would have confirmed that [LabCorp] violated CLIA,” id., Plaintiff in the Motion does not attempt to explain what, if any, significance the allegedly missing information would have on her whistleblowing claim. See Point Blank Solutions, 2011 WL 1456029, at *29 (stating the party seeking sanctions for spoliation “must also ‘demonstrate that the deleted [documents] had more than tangential relevance to its claims' ”) (alteration in original) (quoting Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 347 (M.D. La. 2006)). Although the significance of the allegedly missing information was not included in the Motion, as detailed below, the Court allowed Plaintiff the opportunity to discuss at length missing “operational complaints” and the significance of them during the December 20, 2010 hearing. See generally 12/20/10 Tr. at 79–116. As previously summarized, on August 26, 2009, Defendant was ordered to “produce complaints by Defendant's customers, clients, current or former employees, officers, directors, agents or representatives, made in years 2005, 2006, and 2007, to hospitals within the Florida division that were actually reported to Defendant's management.” Order (Doc. No. 128) at 10–11. The parties did not dispute during the December 20, 2010 hearing that in an attempt to comply with the August 26, 2009 ruling, Defendant “produced its entire hospital customer service database, which covered all complaints lodged by hospitals in the Florida division from January 1, 2004, through June 30, 2007,” as well as jeopardy reports. 12/20/10 Tr. at 80, 85; see also id. at 100, 103. It also seemed to be undisputed that Defendant has never produced “quality assurance reports, call slips, [and] client concern forms,” which, according to Plaintiff, are within the scope of the Court's discovery ruling. Id. at 50, 103. Defendant was unable to produce this information because it had been destroyed, given its “policy of retaining such documentation for two years [.]” Id. at 52. Defendant argued during the December 20, 2010 hearing that the Court did not specifically order it to produce those documents Plaintiff now points to, and that in any event, Defendant was not put on notice that those types of documents would potentially be relevant to Plaintiff's claims until it was too late to retrieve them. See generally id. at 79–116. The Court has reviewed the original Motion to Compel, as well as the transcript from the May 27, 2009 hearing on the multiple motions to compel (5/27/09 Tr.). It is not apparent from any of those materials that Plaintiff was specifically seeking “quality assurance reports, call slips, [and] client concern forms” in response to her requests to produce. In fact, Plaintiff concedes in her Reply that she did not learn of the existence of such documents until Agramonte's 2010 deposition, Reply at 6, which took place more than seven (7) months after the Court's ruling on the Motion to Compel. Given the scope of Plaintiff's claims and the failure of Plaintiff to specify the documents she was seeking, Defendant could not have been expected to preserve all “quality assurance reports, call slips, [and] client concern forms” in the event that Plaintiff at some point decided they were relevant to her claims. In light of this finding, it is unnecessary to address Plaintiff's contention at the December 20, 2010 hearing that these documents were crucial to her whistleblowing claim. 4. Bad Faith Finally, to impose sanctions for spoliation, the Court must find that Defendant acted in bad faith. Plaintiff argues that “nothing other than bad faith can be found from [Defendant's] actions and inactions in this case,” Motion at 34, while Defendant counters that “Plaintiff has made no attempt to establish, and cannot establish, that LabCorp intentionally failed to preserve any documents in this case,” Response at 24. *23 It is indisputable that some employees were at least initially careless in their preservation efforts. Frankly, the Court has a difficult time understanding how Farrell, and to a lesser extent Sumsion, would deem it appropriate in these circumstances not to save all emails and pertinent documents. Nevertheless, on the whole, the Court finds an absence of bad faith. Rather, at most, some of Defendant's employees, including Farrell and to a lesser extent Sumsion, were negligent in their preservation efforts. As the Eleventh Circuit instructs, “[m]ere negligence in losing or destroying records is not enough....” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); see also Mann, 588 F.3d at 1310. Thus, even if Plaintiff could prove the first three elements of a spoliation claim, sanctions would not be warranted based upon spoliation because Defendant did not act in bad faith. B. Delay in Production of ESI Plaintiff also moves for sanctions based upon “purposeful sluggishness.” Motion at 31–32. Plaintiff contends Defendant was “uncooperative throughout the discovery litigation....” Id. at 32. According to Plaintiff, Defendant's “production—15 months after Plaintiff's first discovery requests—was undisputably sluggish regardless of [Defendant]'s alleged technological issues.” Id. Defendant argues that sanctions for delay are not warranted, as “Plaintiff has taken the narrow scope of this case and blown it out of proportion to include 175 broad discovery requests, the majority of which were not served until March 2009 or later[.]” Response at 28 (citation omitted). Defendant claims it “made it a priority to gather documents from its key decision makers and provide all such documents to Plaintiff expeditiously.” Id. (citation omitted). Defendant focuses mainly on discovery requests served in March 2009 or later. Id. at 28–29. Perhaps not an oversight, Defendant does not address the initial requests and the circumstances surrounding those requests. Id.[33] On July 21, 2008, a Case Management and Scheduling Order (Doc. No. 7) was entered, in which the parties were “directed to meet the agreed upon terms and time limits set forth in their Case Management Report” with some exceptions. In the Case Management Report (Doc. No. 6), filed July 9, 2008, the parties contemplated the production of ESI and agreed upon a plan for the production of ESI. As summarized herein, after the entry of the Case Management and Scheduling Order, on October 6, 2008, Plaintiff served her first set of requests for production of documents. No later than December 31, 2008, Defendant was placed on notice via a letter from Plaintiff's counsel that its production of documents was insufficient. Instead of producing ESI in the manner agreed upon by the parties at the outset of the case, “Defendant scanned and emailed approximately 500 pages of materials to Plaintiff,” many of which allegedly were not responsive to her requests. The parties then attempted to work out the document production issues between themselves. Some documents were being produced during this time, but Defendant still had not produced emails from many key witnesses. In an email dated March 31, 2009, Defendant finally agreed to produce emails from several individuals, including the very individuals involved in Plaintiff's termination.[34] On that same date, Plaintiff filed the Emergency Motion, contending that “essential documents” had not been produced, and she could not take the depositions of key witnesses without those documents. *24 Not until February, March, or April 2009 did Defendant even begin attempting to convert the information on the backup tapes to a usable format. On April 3, 2009, Plaintiff filed the Motion to Compel. At the hearing on May 27, 2009, Defendant's counsel admitted there had been delay and perhaps prejudice because of Defendant's server conversion issues, and he indicated, without elaboration, that the delay could be remedied. Not until late June or early July 2009 did Defendant seek the assistance of an outside vendor to complete the conversion process. On July 28, 2009, Defendant filed the Motion for Protective Order. At the August 20, 2009 hearing on the Motion for Protective Order, Defendant represented that its outside consultant would have the necessary data for its ESI production uploaded to an E discovery platform by the end of August. By Order dated August 26, 2009, the Court ruled on the Motion to Compel and ordered that specific categories of documents had to be produced. It is true that Defendant timely objected to the first set of requests for production of documents. And it is true that Plaintiff waited about six (6) months after serving her first set of requests for production to move to compel Defendant to produce those documents that the parties could not agree should be produced. No doubt the parties had some legitimate disputes over the relevance of certain information requested and over other issues, and it took time for the Court to rule on them. But, Defendant cannot rely on those disputes as the basis for failing to timely and meaningfully produce ESI. The first requests for production were served on October 6, 2008, and Defendant did not take the necessary steps to upload the information for production of a significant amount of ESI until the end of August 2009. In other words, for about ten (10) months after Plaintiff initiated the process of seeking relevant ESI, Defendant did not meaningfully produce it. In fact, Defendant did not even try to convert its ESI into a usable format until a minimum of four (4) months after Plaintiff's initial requests. The Court finds this to be a violation of the Case Management and Scheduling Order, which directed the parties to adhere to the terms they had agreed upon in their Case Management Report regarding the production of ESI. Notwithstanding the Court's finding that no spoliation occurred and thus sanctions are not warranted in that regard, the Court still has a basis to impose sanctions for Defendant's sluggish production of ESI in violation of the Case Management and Scheduling Order. See, e.g., In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 665 (M.D. Fla. 2007); Fed. R. Civ. P. 16; Fed. R. Civ. P. 37. A district court has “broad discretion to fashion appropriate sanctions for the violation of discovery orders[.]” United States v. Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997) (citation omitted). Pursuant to Rule 16(f), a court may impose any available sanctions under Rule 37 for failing to obey a scheduling order. Fed. R. Civ. P. 16(f)(1)(C). In addition, a court must order payment of reasonable expenses, including attorney's fees, “unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). To impose monetary sanctions, the violation need “not [be] in bad faith nor callous disregard” for the order. Marshall v. Segona, 621 F.2d 763, 769 (5th Cir. 1980),[35] cited with approval by, Bankatlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994). *25 The Court finds that Plaintiff is entitled to reasonable expenses, including attorney's fees, in connection with Defendant's delay in producing documents during the ten (10) month time period from October 2008 through August 2009. Though Defendant did not act in bad faith, see Marshall, 621 F.2d at 769, Defendant's noncompliance was not substantially justified during this time period, and there are no other circumstances that make the award of expenses unjust, see Fed. R. Civ. P. 16(f)(2).[36] Specifically, Plaintiff is awarded the following expenses and attorney's fees accrued during the ten (10) month time frame: (1) those incurred in connection with any “meet and confer” sessions between the parties and in connection with any correspondence exchanged by the parties for the purpose of ascertaining the status of production of documents[37]; and (2) those incurred in the preparation and filing of any motions for or responses to requests for extensions of time due to document production issues. As for other requested sanctions, the Court rejects the assertion by Plaintiff that she has been prejudiced by the delay that did occur because witnesses allegedly testified “if their deposition had been taken earlier they would have been able to recall [certain] events.” Motion at 1–2. There are few references in the materials submitted to memory loss by the witnesses, and even so, there is no basis to conclude that any memory loss was a result of delay in producing documents. In addition, the Court declines Plaintiff's invitation to provide an adverse inference to the jury regarding the sluggish production, as the sanction imposed is commensurate with the severity of the violation. V. Conclusion Plaintiff has not met her burden of showing that Defendant spoliated evidence. Plaintiff is, however, entitled to reasonable expenses, including attorney's fees, as outlined herein in connection with Defendant's delay in production of documents. In accordance with the foregoing, it is ORDERED: 1. Plaintiff's Motion for Sanctions (Doc. No. 271) is GRANTED in part and DENIED in part. 2. The Motion is GRANTED as to Plaintiff's request for attorney's fees and costs, as outlined herein, and is otherwise DENIED. 3. Plaintiff is awarded reasonable expenses, including attorney's fees, in connection with Defendant's delay in producing documents for the ten (10) month period outlined herein. The Court expects that the parties will confer in good faith regarding reasonable expenses and fees, and will make every effort to agree on such expenses and fees between themselves given the scope of the award. 4. If, after conferring in good faith, the parties are unable to reach an agreement, Plaintiff may file a motion with supporting documentation no later than May 15, 2012, and Defendant shall respond no later than May 31, 2012. Upon receipt of the parties' papers, the Court will determine whether a hearing on expenses and fees is necessary. Plaintiff is reminded that the award of expenses and fees is limited to those incurred as a result of document production delay; any expenses or fees sought for which document production delay was not the dominant issue will not be looked upon favorably by the Court. *26 DONE AND ORDERED at Jacksonville, Florida on April 23, 2012. kaw Copies to: Counsel of Record Footnotes [1] Of course, LabCorp has various other defenses to the claims brought by Plaintiff. See generally Amended Answer (Doc. No. 82). [2] Balester eventually resigned from LabCorp. Response at 16 n.16. Upon their respective separations from the company, Sznapstajler and Balester also initiated litigation against LabCorp, Sznapstajler in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida (which case was removed to the United States District Court for the Southern District of Florida) and Balester in this Court. See Sznapstajler v. Lab. Corp. of Am. Holdings, No. 08–60511–CIV–COHN/SELTZER (S.D. Fla.); Balester v. Lab. Corp. of Am. Holdings, No. 3:10–cv–83–J–32JRK (M.D. Fla.). Sznapstajler claimed age, national origin, and religious discrimination in violation of the Florida Civil Rights Act; retaliation in violation of the Florida Civil Rights Act; and breach of contract in connection with his compensation. Sznapstajler, No. 08–60511–CIV–COHN/SELTZER (Doc. No. 1 pp. 6–12). Balester claimed a violation of the Equal Pay Act. Balester, No. 3:10–cv–83–J–32JRK (Doc. No. 1). In the Sznapstajler action, LabCorp was granted summary judgment on all claims except the breach of contract claim. Sznapstajler, No. 08–60511–CIV–COHN/SELTZER (Doc. Nos. 54, 63). After a bench trial, the court found in favor of LabCorp on the breach of contract claim as well. Sznapstajler, No. 08–60511–CIV–COHN/SELTZER (Doc. No. 71). The Balester action was dismissed in the early stages pursuant to a joint stipulation of dismissal. Balester, No. 3:10–cv–83–J–32JRK (Doc. Nos. 27, 28). [3] Given that the ultimate resolution of the Motion is nondispositive, the undersigned deems it appropriate to enter an Order on the matter, rather than a Report and Recommendation. See, e.g., Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519–20 (10th Cir. 1995) (concluding that “[e]ven though a movant requests a sanction that would be dispositive, if the magistrate judge does not impose a dispositive sanction the order falls under Rule 72(a) [ (allowing for the entry of an order on nondispositive matters) ] rather than Rule 72(b) [ (providing for a recommended disposition and proposed findings of fact regarding dispositive matters) ]”) (citation omitted); Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09–61166–CIV, 2011 WL 1456029, at *2–3 (S.D. Fla. Apr. 5, 2011) (unpublished) (collecting cases regarding a magistrate judge's authority to enter an order when a party seeks dispositive sanctions but dispositive sanctions are not imposed). [4] At one time, the Court contemplated having an evidentiary hearing on this matter, because it is apparent there are some inconsistencies in the witnesses' testimony and in other evidence. 12/20/10 Tr. at 5–7. Defendant opposed such a hearing, stating that “[w]e don't need to have another hearing and haul a bunch of witnesses in to talk about who was told what when.” Id. at 92. An exhaustive review of the file reveals there are subjects about which testimony and other evidence are inconsistent, and most of the inconsistencies are pointed out herein. However, the inconsistencies are ultimately immaterial to the undersigned's resolution of the issues, so an evidentiary hearing is unnecessary. [5] Unless otherwise noted, citations are to the numbered pages of the document cited, rather than the page numbers assigned by the Court's electronic filing system. [6] Exhibit “C” of Exhibit “1” of the Motion (located at Doc. No. 272–3) is a group of various emails which do not contain page numbers. Citations to Exhibit C of Exhibit 1 are to the page numbers assigned by the Court's electronic filing system. [7] Exhibit “I” of Exhibit “1” of the Motion (located at Doc. Nos. 272–9 and 272–10) is LabCorp's position statement, which was submitted to the EEOC after Plaintiff filed an EEOC Charge. Since Exhibit I is divided into two separate documents on the electronic filing system, citations to Exhibit I of Exhibit 1 are labeled “Part 1” (Doc. No. 272–9) and “Part 2” (Doc. No. 272–10). Citations are to the page numbers assigned by the Court's electronic filing system in the respective parts. [8] The Burlington and Connecticut tapes had a seven (7) year retention policy, so they were preserved in the normal course. J. Nelson Dep. at 161. [9] Plaintiff inaccurately states that all but Gornto of the testifying recipients “consistently testified that they did not receive the preservation notice or any timely notice from [LabCorp] to preserve documents.” Motion at 8 (emphasis added) (citations omitted); see also Reply at 1 (citations omitted). [10] Plaintiff inaccurately states that “Farrell ... testified that [LabCorp] did not follow up with [him] after the preservation notice was allegedly sent.” Motion at 8 (citations omitted). [11] Again, Plaintiff inaccurately states that all but Gornto of the testifying recipients “consistently testified that they did not receive the preservation notice or any timely notice from [LabCorp] to preserve documents.” Motion at 8 (emphasis added) (citations omitted); see also Reply at 1 (citations omitted). [12] Plaintiff stretches Gornto's testimony on this point as follows: “Gornto testified that although he followed the steps in the notice, [LabCorp] failed to ever collect the data he preserved.” Motion at 8 (emphasis added) (citation omitted); see also Reply at 1 (citations omitted). [13] Exhibit “M” of Exhibit “1” of the Motion (located at Doc. No. 273–2) is a group of various emails and letters which do not contain page numbers. Citations to Exhibit M of Exhibit 1 are to the page numbers assigned by the Court's electronic filing system. [14] Defendant contends its “counsel conferred with [Plaintiff's counsel]” upon receiving the July 8, 2008 and August 27, 2008 correspondence from Plaintiff's counsel. Defendant's Amended Response to Plaintiff's Emergency Motion to Amend Case Management Report and for Conference (Doc. No. 50), filed April 1, 2009, at 4. [15] Plaintiff indicates in her Reply that this email “is an attorney–client privileged document that has not previously been disclosed to Plaintiff.” Reply at 5 (citation omitted). Plaintiff correctly points out that some of the forty (40) individuals listed in the email have testified they were not asked to preserve documents during the time frame in which the email was sent. Id. (citation omitted). [16] Exhibit “V” of Exhibit “1” of the Motion (located at Doc. No. 273–11) is a group of various emails which do not contain page numbers. Citations to Exhibit V of Exhibit 1 are to the page numbers assigned by the Court's electronic filing system. [17] Given that Balester and Walter were Plaintiff's subordinates at the time of Plaintiff's termination, these individuals had no role in the termination decision–making process. [18] Exhibit “Z” of Exhibit “1” of the Motion (located at Doc. No. 273–15) is a group of various emails. Citations to Exhibit Z of Exhibit 1 are to the page numbers assigned by the Court's electronic filing system. [19] Plaintiff misstates in the Motion that Defendant claimed “it had already produced all of Plaintiff's and Sznapstajler's emails” from the preserved back–up tape. Motion at 13 (emphasis added). [20] During the December 20, 2010 hearing, Defendant's counsel estimated that the preservation and “imaging” process cost Defendant $200,000. 12/20/10 Tr. at 75. [21] At the hearing, Plaintiff's counsel indicated that the Friday before Farrell's deposition was set to occur and one (1) week prior to the hearing, Defendant had produced 13,000 documents which were described by Plaintiff at the time as “all relevant, all responsive, to pending discovery requests.” 5/27/09 Tr. at 10. Now, however, the documents are described by Plaintiff in the Motion as “a ‘data dump’ causing the Plaintiff significant expense in ferreting out the 112 responsive documents out [of the] approximately 13,000.” Motion at 14 n.30; see also Reply at 9. The production resulted in Farrell's and Bob Nelson's respective depositions being delayed. Motion at 14 n.31. [22] Plaintiff alleges in the Motion that Defendant in its Motion for Protective Order “disclosed that its preservation efforts grew to 57 additional backup tapes as well as 40 individual hard drives without explanation.” Motion at 16 (citation omitted). Plaintiff also contends that during the August 20, 2009 hearing, Defendant's “preservation efforts grew yet again without explanation to 84 backup tapes from the single backup tape identified during the hearing on 5/27/09 and in prior briefs.” Id. (citation omitted). This alleged “growth” of preservation efforts was addressed at the August 20, 2009 hearing. See 8/20/09 Tr. at 47–50. Being somewhat perplexed by Plaintiff's impression in this regard, Defendant's counsel clarified that during the May 27, 2009 hearing, Defendant's counsel actually referred to multiple “servers for which backup tapes had been preserved,” instead of a single tape. Id. at 48–49 (referring to 5/27/09 Tr.). Counsel assured the Court that “in fact, [the 84] backup tapes were preserved from the time of [Plaintiff]'s termination.” 8/20/09 Tr. at 49. [23] Wise was out of town when the request to image her computer was made. Dep. Excerpts at Ex. 4(b) p. 115. When Wise told the director of IT for Florida that it was not possible to image her computer given that she was out of town, she was told not to worry about it. Id. Her computer was never imaged, id. at Ex. 4(b) pp. 115–17, although she turned it into LabCorp upon her separation from the company in January 2010, id. at Ex. 4(b) p. 115. Balester's computer was stolen in March 2009 before it could be imaged. Id. at Ex. 1(b) p. 36. [24] Black's Law Dictionary (cited by Defendant) and some district courts in the Eleventh Circuit include in the definition of spoliation that it be intentional. See, e.g., Black's Law Dictionary 1437 (8th ed. 2004) (defining spoliation as the “intentional destruction, mutilation, alteration, or concealment of evidence”); Point Blank Solutions, Inc., 2011 WL 1456029, at *8 (collecting cases). It appears that the Eleventh Circuit does not. See Graff, 310 F. App'x at 301; Green Leaf Nursery, 341 F.3d at 1308. [25] Indeed, both parties in their papers set forth and analyze the Golden Yachts elements, as cited in the Optowave case, in arguing their respective positions. Motion at 26–27 (citation omitted); Response at 9–10 (citation omitted). [26] Plaintiff also alleges she verbally notified Farrell and Sumsion in January 2007 “that she felt Farrell had discriminated against her based on her gender.” Motion at 28. [27] Plaintiff has not pointed to and the Court has not found any evidence of Plaintiff complaining of gender discrimination or anything that can be construed as gender discrimination for about five (5) months following the January 2007 memorandum. [28] Sumsion denies receiving the memorandum, and Defendant was not able to produce it as it would have been kept by Sumsion. See Motion at 25, 25 n.49. Plaintiff contends, without citation to any record evidence, that “the metadata produced reveals with certainty that Sumsion and Farrell both received the document via email in January 2007.” Id. at 25 n.49. Regardless of whether Sumsion did or did not receive the memorandum, Defendant was able to produce it. [29] Farrell's actual testimony on this point is as follows: Q. Mr. Farrell, would you agree — would you agree, Mr. Farrell, that at least as of — I'm sorry. What's the date of that e-mail? Is it June 12th? A. 6/12. Q. — June 12, 2007, you were contemplating termination of Ms. Butterworth potentially? A. Contemplated what we were going to need to do about it, yes. Q. And isn't it true, Mr. Farrell, that you recognized as early as June 12th, 2007, that if LabCorp terminated Ms. Butterworth, there was very likely going to be litigation brought by Ms. Butterworth? A. Sure. Q. Of course, here we sit, right? A. Correct. Dep. Excerpts at Ex. 12 pp. 277–78. [30] Additionally, Plaintiff contends, without any citation to the record, that Defendant at some point “represented that no later than 6/22/07, its duty to preserve commenced.” Motion at 28. [31] As previously summarized, Plaintiff focuses on Defendant's claims of attorney–client privilege, as well as work product, during this time frame. The more relevant claim to the issue of anticipation of litigation is that of work product; therefore, the undersigned addresses only the work product claim. [32] Plaintiff relies on Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432–34 (S.D.N.Y. 2004) (“Zubulake II”), and the steps identified therein for counsel to take to ensure that a preservation obligation is met. Motion at 28–29. Plaintiff summarizes the steps as follows: (1) issue and reissue an effective litigation hold; (2) communicate directly with key players; (3) monitor compliance with the litigation hold; (4) become fully familiar with the client's overall computer systems, retention policies, data retention architecture, backup procedures, and recycling policy; (5) identify witnesses' methods of retaining information; (6) suspend its deletion practices; (7) obtain copies of relevant active files; and (8) ensure that all backup tapes are identified and stored in a safe place. Motion at 29 (citing Zubulake II, 229 F.R.D. at 432–34). According to Plaintiff, Defendant's counsel “failed to satisfy even one of these factors.” Motion at 29. Defendant, of course, disputes this contention. Response at 14–15. Defendant submitted an Affidavit of Sarah Ford (counsel to LabCorp during much of the discovery stage who later withdrew, see Order (Doc. No. 214)) attesting to some of the steps taken by counsel in the case. Response at Ex. M. Aside from the affidavit and some limited references in the record to steps taken by counsel, the Court does not have before it sufficient information to make a determination regarding these “steps” and Defendant's counsel's efforts or lack thereof. [33] Defendant also contends that “ ‘sluggish production’ is not a recognized factor in the Eleventh Circuit's analysis of spoliation claims....” Response at 28. This argument misses the mark. Plaintiff's allegation of “sluggish production” is separate and apart from the allegation of spoliation. See generally Motion. [34] Defendant had already produced emails from Plaintiff and Sznapstajler by then, presumably because their computers had been imaged upon their terminations. [35] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. [36] Plaintiff in the Motion did not specifically cite Rule 16 or point to any order that was violated by Defendant. Nevertheless, Defendant has been on notice from almost the outset of this litigation that Plaintiff viewed Defendant's production of ESI as problematic. In addition, Plaintiff in the Motion specifically addressed the sluggish production following her first set of requests for production of documents. See Motion at 32 (stating Defendant's “production – 15 months after Plaintiff's first discovery requests – was undisputably sluggish regardless of [Defendant]'s alleged technological issues”). Defendant had sufficient opportunity to respond to this allegation in its Response and at the December 20, 2010 hearing before the undersigned. [37] Fees for attendance of discovery status conferences before the undersigned are excluded from this category.