ST. JUDE MEDICAL S.C., INC., a Minnesota corporation, Plaintiff/Counterclaim Defendant, v. Thomas M. TORMEY, Jr., Defendant/Counterclaim Plaintiff, Tormedco, Inc., Counterclaim Plaintiff No. 11–cv–00327 (MJD/TNL) United States District Court, D. Minnesota March 25, 2013 Counsel Carrie L. Hand, Edward F. Fox, and Peter L. Gregory, Bassford Remele, PA, Minneapolis, MN, for Plaintiff/Counterclaim Defendant. Dwight G. Rabuse and Erin E. Neils, Rabuse Law Firm, P.A., Minneapolis, MN, for Defendant and Counterclaim Plaintiffs. Leung, Tony N., United States Magistrate Judge ORDER OPINION *1 This matter comes before the Court, United States Magistrate Judge Tony N. Leung, on Plaintiff's Motion for Sanctions (Docket No. 111). A hearing was held on January 14, 2013. Edward F. Fox appeared on behalf of Plaintiff/Counterclaim Defendant St. Jude Medical S.C., Inc. (“St.Jude”). Dwight G. Rabuse appeared on behalf of Defendant/Counterclaim Plaintiff Thomas M. Tormey, Jr., and Counterclaim Plaintiff Tormedco, Inc. (collectively, “Tormey”). I. The Court only restates those facts relevant to the instant motion. In 2001, Tormey became an independent sales representative for St. Jude and entered into a series of agreements with St. Jude. (Mem. of Law & Order at 2, Jan. 26, 2012, Docket No. 47.) One of them was a loan agreement accompanied by a promissory note under which “St. Jude gave Tormey a $650,000 interest-free loan.” (Id . at 3.) “Tormey agreed to repay the loan on October 3, 2008, or upon the sale of Tormedco[, the corporation he formed for purposes of selling St. Jude products,] to St. Jude, whichever came earlier.” (Id. at 3–4.) Tormey's independent-sales-representative position was terminated in May 2004. (Id. at 4.) Following his termination, Tormey claims he reached a “walk-away” agreement with St. Jude Vice President Jim Gantz wherein St. Jude would waive repayment of the $650,000 loan if Tormey agreed not to pursue legal action against St. Jude. (Id. at 4.) St. Jude denies that such an agreement was reached and ultimately brought this action to collect on the loan. (Id. at 6, 7.) A. Summary Judgment Motion St. Jude filed a motion for summary judgment, seeking enforcement of the promissory note and dismissal of Tormey's counterclaims. (Id. at 7.) At the time, the record included, among other things, (1) an April 27, 2004 e-mail from Tormey, proposing his resignation and release of the put option for Tormedco if St. Jude forgave the loan; (2) a May 27, 2004 e-mail referring to a phone conversation with Gantz; and (3) forms 1099 sent to Tormey by St. Jude while the loan was maturing, notifying Tormey of his obligation to report imputed income based on the benefit he received from the interest-free loan. (Id. at 6–7.) On January 26, 2012, the Honorable Michael J. Davis, Chief District Judge for the United States Court for the District of Minnesota, denied St. Jude's motion. (Id. at 23.) Among other things, Chief Judge Davis held that a genuine issue of material fact existed as to whether there was clear and convincing evidence to support the existence of the walk-away agreement, evidence which would ultimately turn on the credibility of the parties to the alleged walk-away agreement. (Id. at 13–15.) Further, Chief Judge Davis held that Tormey's counterclaims could not be deemed untimely as a matter of law because St. Jude had not shown that a complete failure of proof existed as to Tormey's estoppel claim, which is rooted in the alleged walk-away agreement. (Id. at 18–20.) On this second point, Chief Judge Davis concluded: *2 Here, Tormey has consistently stated that he and Gantz reached a ‘walk away’ agreement. His statements are not contradictory. Though there is no direct written evidence of such an agreement, an email sent by Tormey proposes a similar agreement and another email confirms that he and Gantz spoke shortly after St. Jude's termination of the Representative Agreement. .... St. Jude has not shown that there is a complete failure of proof in this case. (Id. at 19–20.) B. Production of TOR000738 and TOR000739 In April 2012, more than one year after this litigation began, Tormey produced two letters, dated December 28, 2005 (“TOR000738”), and January 10, 2008 (“TOR000739”), which Tormey allegedly sent to St. Jude in response to forms 1099 he had received. (Order Op. at 2, 3, Oct. 31, 2012, Docket No. 100; TOR000738, TOR000739, Gregory Decl., Oct. 9, 2012, Ex. 3, Docket No. 90–3.) “Essentially, these letters state that Tormey is not obligated to repay the loan based on his agreement with Gantz.” (Order Op. at 2.) St. Jude questioned the authenticity of these letters and sought discovery of electronically stored information (“ESI”) related to the letters. (Order Op. at 2, 3.) “Tormey produced a disk containing native Microsoft Word documents matching the text of TOR000738 and TOR000739 [ (“Tormey Native Documents CD/CD 3”) ]. File information for these letters dated 2005 and 2008, however, indicated that the documents were created in 2003.” (Id. at 3 (quotation and citations omitted).) Following an unsuccessful settlement conference, the parties entered into a Computer Inspection Protocol (“CIP”) with respect to TOR000738 and TOR00739. As part of the CIP, Tormey permitted inspection of the entire intact computer tower and standalone hard drive ... on which the original electronic files for documents that have been reproduced as TOR000738 and TOR000739 were created and represented that one of these Electronic Devices contained the original electronic files for documents that have been reproduced as TOR000738 and TOR000739. (Order Op. at 3 (quotations and citations omitted).) C. Initial Analysis of Electronic Devices Around this same time, St. Jude served its Second Set of Requests for Production of Documents, Things, and Electronically Stored Information to Defendant and Counterclaim Plaintiff Thomas Tormey and Counterclaim Plaintiff Tormedco, Inc. (Gregory Decl., Oct. 9, 2012, Ex. 4, Docket No. 90–4.) In Request No. 49, St. Jude sought: “The computer tower, laptop or other electronic device housing the Hard Drive or Hard Drives on which the electronic files associated with documents bates labeled TOR000738 and TOR000739 were originally created.” (Id.) Tormey responded to this request by stating that “[t]he computer tower and hard drive is being produced in accordance with the parties' [CIP].” (Gregory Decl., Oct. 9, 2012, Ex. 5, Docket No. 90–5.) St. Jude retained the firm of Stroz Friedberg to analyze these two hard drives, which have become known as the “UPTech Desktop” and “60GB Hard Drive.” (Gleason Expert Disclosure ¶¶ 1, 8, Oct. 1, 2012, Docket No. 117–1.) Stroz Friedberg searched both the UPTech Desktop and the 60 GB Hard Drive and was unable to locate copies or fragments of TOR000738 and TOR000739. (Id. ¶ 9.) Stroz Friedberg reported its findings to the parties in an e-mail dated August 23, 2012. (Gregory Decl., Oct. 9, 2012, Ex. 7, Docket No. 90–7.) *3 Stroz Friedberg was also given the Tormey Native Documents CD/CD 3, containing native word documents of TOR000738 and TOR000739. (Gleason Expert Disclosure ¶ 10.) The file system metadata of the Tormey Native Documents CD/CD 3 showed that TOR000738 had a creation and last written date and time of June 7, 2003, at 2:44 A.M ., and TOR000739 had a creation and last written date and time of June 7, 2003, at 3:09 A.M. (Id. ¶ 13.) Stroz Friedberg noted that these 2003 dates were inconsistent with the dates in the text of [TOR000738 and TOR000739] in two ways. First, the file created and last written dates from 2003 preceded the 2005 and 2008 dates within the text by several years. Second, the dates within the text of [TOR000738 and TOR000739] would indicate that they were created approximately two years apart, but the file system metadata from the [Tormey Native Documents] CD[/CD 3] showed that the documents had been created within less than 30 minutes of each other. (Id.) Stroz Friedberg also analyzed the embedded metadata of TOR000738 and TOR000739 on the Tormey Native Documents CD/CD 3, comparing it to the 60 GB Hard Drive. (Id. ¶ 15.) Stroz Friedberg determined that the version of Microsoft Office “reported in the embedded metadata is inconsistent with the software installed on the 60 GB Hard Drive.” (Id.) Further, “the embedded author information contradicted the user and author information found on the 60GB Hard Drive.” (Id. ¶ 16.) TOR000738 and TOR000739 were authored by “ttormey.” (Id.) While the 60 GB Hard Drive contained a “Thomas Tormey” user profile, the author information was listed as “Preferred Customer”; there were no documents authored by “ttormey.” (Id.) Stroz Friedberg concluded that TOR000738 and TOR000739 were not authored using either the UPTech Desktop or the 60GB Hard Drive, but were authored on a yet un-provided computer. Additionally, ... the origin and dates of creation of [TOR000738 and TOR000739] are irregular and suspicious as the evidence shows that [TOR000738 and TOR000739] were authored on the same day, and not more than two years apart as shown on the face of each document. (Id. ¶ 17.) Through counsel, Tormey subsequently advised St. Jude that his computer “crashed” in 2009. (Gregory Decl., Oct. 9, 2012, Ex. 10 at 2, Docket No. 90–10.) Tormey retained Express Computer Service to recover whatever data it could. (Id.; Gregory Decl., Oct. 9, 2012, Ex. 12, Docket No. 90–12.) Express Computer Service was able to recover some data, which it burned to a disk. (Neils Aff., Ex. 4, Docket No. 93–1.) The technician who worked on Tormey's computer could not recall the extent of the recovery. (Id.) Tormey produced the February 2009 invoice from Express Computer Service to St. Jude. (Gregory Decl., Oct. 9, 2012, Ex. 12, Docket No. 90–12; Neils Aff., Ex. 3, Docket No. 93–1.) St. Jude followed with its Third Set of Interrogatories to Defendant and Counterclaim Plaintiff Thomas Tormey and Counterclaim Plaintiff Tormedco, Inc., in which St. Jude propounded the following: *4 20. Describe in detail and not in summary fashion where TOR000738 and TOR00073[9] came from including a description of the electronic devices on which the original native files associated with those letters were created, a description of all electronic devices to which those files were transferred and the date of such transfer, and the chain of custody for any electronic devices to which the native electronic files in question were transferred. 21. Describe in detail and not in summary fashion the complete circumstances of the computer “crash” referred to in your attorneys' letters of September 17, 2012 and October 1, 2012 and the effect of that event upon the preservation of the original native files associated with TOR000738 and TOR00073[9]. Your answer should include the electronic device or devices in question, exact date on which the crash took place, the date or dates on which the native electronic files associated TOR000738 and TOR000739 were backed up and/or retrieved, an identification of the devices to which these electronic files were transferred, the identity of the person who transferred those electronic files, the identity of the “professional” who attempted to recover data after the 2009 computer crash, a detailed description of the steps taken by this professional (what hardware and software was used in this recovery effort and precisely what was done), the event or events that destroyed or altered the native electronic files, and any efforts that were made to retrieve this Electronically Stored Information. (Gregory Decl., Oct. 9, 2012, Ex. 14, Docket No. 90–14.) D. October 2012 Motion to Compel St. Jude then moved for an order compelling the production of “the electronic devices containing ESI that would allow [St. Jude] to determine the original date of creation for the documents bates labeled TOR000738 and TOR000739” in response to Request No. 49. (Pl.'s Mot. to Compel, Docket No. 86; Pl.'s Mem. in Supp. of Mot. to Compel at 10, 12, Docket No. 89.) St. Jude also moved for an order compelling Tormey to provide specific information about documents lost or destroyed as a result of the 2009 computer crash. (Pl.'s Mem. in Supp. of Mot. to Compel at 11, 12.) Tormey opposed the motion, arguing: This motion should be denied for a simple reason: it seeks to compel documents and things that do not exist. Tormey has produced all hard drives in his possession that could contain the native file versions of TOR000738 and TOR000739. Moreover, Tormey has produced the only record available from the computer repair technicians who worked on the computer originally containing the hard drive explaining the work that was done. There are no other documents concerning the work done to the hard drives beyond those already produced, and there are no other computers Mr. Tormey has with native file data for TOR000738 and TOR000739. There is nothing more to produce. (Defs.' Mem. in Opp'n to Mot. to Compel at 1–2, Docket No. 92.) *5 The hearing on St. Jude's motion to compel took place on a Tuesday. (Docket No. 96.) At the hearing, St. Jude informed the Court that it had received two additional “recovery” disks from Tormey on the preceding Friday. On Monday, the day before the hearing, St. Jude's analyst reported that neither of the letters were found on one of the disks and, on the second disk, only one of letters, TOR000738, was found and the 2005 date on the face of the letter remained inconsistent with the document's 2003 “last written” date. (Order Op. at 5.) This Court orally granted St. Jude's motion on the record with a written order to follow. (Docket No. 96.) In the Court's written order, Tormey was ordered, to the extent he had not already done so, to produce[ ] for inspection and analysis the hard drive(s) and computer tower, laptop or other electronic device housing the hard drive(s) on which the native electronic files associated with the documents Bates labeled TOR000738 and TOR000739 were originally created. If Tormey has no such other electronic devices and/or has lost or discarded the same, then Tormey shall attest to that fact. (Order Op. at 6.) Further, with respect to the 2009 crash and any lost or destroyed ESI relating to TOR000738 and TOR000739, this Court ordered Tormey to answer the following questions in detail and not summary fashion: 1. The exact date on which the 2009 computer crash took place; 2. The date(s) on which the native electronic files associated with TOR000738 and TOR000739 were destroyed, lost, backed up, or retrieved; 3. An identification of the devices to which these electronic files were transferred; 4. The identity of the person or persons who transferred those electronic files; 5. The identity of the “professional” who attempted to recover data after the 2009 computer crash; 6. A detailed description of the steps taken by this professional (what hardware and software was used in this recovery effort and precisely what was done); 7. A description of all electronic devices to which the recovered electronic files were transferred; and 8. The chain of custody for any electronic devices to which the native electronic files in question were transferred. (Id. at 7–8.) These questions, as the Court observed, closely mirrored the recently propounded Interrogatory No. 21. (Id. at 8, 9.) E. Interrogatory Responses In responding to Interrogatory Nos. 20 and 21, Tormey chronicled the creation of TOR000738 and TOR000739 as well as the 2009 computer crash and recovery efforts. (Tormey's Answer to Third Set of Interrogs. at 3–6, Gregory Decl., Dec. 7, 2012, Ex. 1, Docket No. 114–1.) Tormey explained that he created TOR000738 and TOR000739 on a computer he used between 2002 and 2009, which he believes was a Dell laptop. (Id. at 3.) Tormey's family also used this computer. (Id.) When this computer crashed in 2009, Tormey brought it to Express Computer Service. (Id. at 3, 5) Express Computer Service told Tormey that the computer's hard drive was “fried” and copied what data it could onto a compact disk (“TMT Back Up DVD/CD 1”). (Id. at 3, 5, 6; Gleason Supp. Expert Disclosure ¶ 4, Gregory Decl., Dec. 7, 2012, Ex. 2, Docket No. 114–1.) Express Computer Service gave Tormey the TMT Back Up DVD/CD 1 and the physical hard drive, both of which Tormey placed in a desk drawer with other computer-related equipment. (Tormey's Answer to Third Set of Interrogs. at 3–4.) Express Computer Service recycled the rest of the computer. (Id. at 3.) Tormey believes he made copies of the TMT Back Up DVD/CD 1 on at least two occasions for his children. (Id. at 4.) *6 For the rest of 2009 and continuing until April 2010, Tormey used another Dell laptop computer. (Id.) Tormey does not recall copying or transferring TOR000738 and TOR000739 to this computer, stating that he would have viewed the letters by inserting the TMT Back Up DVD/CD 1 into the laptop during this time. (Id.) This laptop, including its hard drive, was recycled in April 2010. (Id .) Since April 2010, Tormey has used an Acer laptop. (Id.) Tormey stated that he did not create TOR00738 and TOR00739 using the Acer laptop. (Id.) In connection with this litigation, Tormey located the TMT Back Up DVD/CD 1 and another compact disk (“Memorex CD–RW Disk/CD 2”) in his home office. (Id.; Gleason Supp. Expert Disclosure ¶ 9 .) Tormey does not recall when the Memorex CDRW Disk/CD 2 was created. (Tormey's Answer to Third Set of Interrogs. at 4.) Tormey stated that he located TOR000738 and TOR000739 on the Memorex CD–RW Disk/CD 2 and copied the documents onto a third disk, the previously discussed Tormey Native Documents CD/CD 3, which he gave to his attorneys. (Id.; Gleason Supp. Expert Disclosure ¶ 14.) The TMT Back Up DVD/CD 1 and Memorex CD–RW Disk/CD 2 were the additional disks provided to St. Jude the Friday before the hearing on St. Jude's motion to compel. (Tormey's Answer to Third Set of Interrogs. at 5.) F. Analysis of Additional Electronic Media Stroz Friedberg analyzed the TMT Back Up DVD/CD 1, Memorex CD–RW Disk/CD 2, and Acer laptop. (Gleason Supp. Expert Disclosure ¶¶ 3–5.) Stroz Friedberg concluded that the TMT Back Up DVD/CD 1 appears to be consistent with the 2009 data transfer from the 60 GB Hard Drive performed by Express Computer Service. (Id. ¶ 7.) Stroz Friedberg noted that all of the user-created documents present on the TMT Back Up DVD/CD 1 were also present on the 60 GB Hard Drive. (Id.) Neither TOR000738 nor TOR000739 were present on the TMT Back Up DVD/CD 1. (Id. ¶ 8.) Because the letters were not on the TMT Back Up DVD/CD 1, Stroz Friedberg opined that they were not created on the 60 GB Hard Drive and subsequently recovered by Express Computer Service as stated by Tormey in his response to Interrogatory No. 20, calling Tormey's explanation “not technically possible.” (Id.) Further, Stroz Friedberg stated that the 60 GB Hard Drive belonged to a desktop computer, not a laptop. (Id. ¶ 6.) As for the Memorex CD–RW Disk/CD 2, Stroz Friedberg observed that this disk had two burn sessions, which both occurred on June 7, 2003. (Id. ¶¶ 9, 13.) The files on the disk, however, contained last-written dates as late as December 2010. (Id. ¶ 9.) In addition, roughly 98% of the files on the Memorex CD–RW Disk/CD 2 were not present on either the UPTech Desktop or the 60 GB Hard Drive. (Id.) Stroz Friedberg located TOR000738 on this disk, but not TOR000739. (Id. ¶ 11) With respect to the Acer laptop, Stroz Friedberg again found only TOR000738. (Id. ¶ 12.) The full contents of both the TMT Back Up DVD/CD 1 and Memorex CDRW/CD 2 had been copied onto the Acer laptop in August 2012. (Id.) Stroz Friedberg opined that it was this copying of the Memorex CD–RW/CD 2 that likely resulted in the presence of TOR000738 on the Acer laptop. (Id.) *7 Based on the time stamps found on the Tormey Native Documents CD/CD 3 and Memorex CD–RW Disk/CD 2, Stroz Friedberg created the following timeline of events: Activity Time (UTC) Start 1st Session on [Memorex CD–RW Disk/CD 2] 06/07/03 02:31 AM Create [TOR000738] (Internal created date) 06/07/03 02:34 AM Finish [TOR000738] (Internal last written date) 06/07/03 02:44 AM Start 2nd Session on [Memorex CD–RW Disk/CD 2] 06/07/03 02:51 AM Create [TOR000739] (Internal created date) 06/07/03 03:00 AM Finish [TOR000739] (Internal last written date) 06/07/03 03:09 AM Start Burning [Tormey Native Documents CD/CD 3] 06/07/03 03:14 AM Table 1—Timeline of Events (Id. ¶ 14 (footnotes omitted).) Stroz Friedberg opined that TOR000738 and TOR000739 “were created and burned to [the Memorex CD–RW Disk/CD 2 and Tormey Native Documents CD/CD 3] over the course of 45 minutes and were not created years apart in 2005 or 2008” and all of this activity took place on computer which had its clock rolled back. (Id. ¶ 15) Stroz Friedberg concluded that Tormey has still not provided the original source of TOR000738 and TOR000739 and “the timeline of events strongly suggests that [the letters] are not authentic.” (Id. ¶ 16.) G. Motion for Sanctions Based on the foregoing, St. Jude now moves for an order (1) declaring that TOR000738 and TOR000739 are not authentic; (2) ruling Tormey is in violation of the Court's order; (3) dismissing Tormey's counterclaims “as a sanction for fabricating evidence, providing incomplete and misleading sworn discovery responses, and violating the [Court's order]; and (4) awarding monetary sanctions to St. Jude, including its forensic expert costs and attorneys' fees. (Pl.'s Mem. in Supp. at 12, Docket No. 113.) Tormey opposes the motion. (See Def.'s Mem. in Opp'n, Docket No. 115.) II. The Court begins with one housekeeping matter. St. Jude requests that this Court strike Tormey's memorandum in opposition for being untimely filed under D. Minn. LR 7.1. (Pl.'s Obj. & Req. to Strike at 1–2, Docket No. 119.) Local Rule 7.1 requires that a party responding to a nondispositive motion file its memorandum of law and any supporting documents within seven days after the motion has been filed. D. Minn. LR 7.1(b)(2). This is a somewhat recent change. Public Notice, United States District Court for the District of Minnesota, Federal Court Local Rule Amendments (July 23, 2012), available athttp://www.mnd.uscourts.gov/Press_Releases/2012/2012–07–23–Local–Rule–Amendments.pdf. Previously, a responding party was to file these documents at least seven days before the hearing. See id. St. Jude filed its motion for sanctions on December 7, 2012, simultaneously noticing the hearing for January 14, 2013. (Docket Nos. 111, 112.) Tormey's response was therefore due on or before December 14, 2012. See D. Minn. LR 7.1(b)(2). Tormey filed his response, however, on January 7, 2013, seven days before the January 14 hearing. (Def.'s Mem. in Opp'n.) Tormey's counsel concedes that the response is late under the current Local Rule. (Tormey's Resp. to Obj. & Req. to Strike at 1, Docket No. 121.) Counsel for Tormey apologizes for the error, stating that the response time was “inadvertently calculated ... according to the rule as it existed before the amendment took effect.” (Id. at 2.) *8 Local Rule 7.1 provides the Court with a variety of options when a party fails to timely file a memorandum, including cancelling oral argument, rescheduling of the hearing, and awarding attorneys' fees to the opposing party. D. Minn. LR 7.1(g). The Court may take any combination of these actions or any other action it deems appropriate. Id. St. Jude has not identified any prejudice that resulted from the untimely filing. Tormey, however, faces material prejudice should he not be given the opportunity to respond to the weighty sanctions sought by St. Jude. Therefore, this Court will not strike Tormey's untimely responsive memorandum and St. Jude's request is denied. III. A. Violations of a Discovery Order Under Rule 37, a party may move for sanctions when the opposing party “fails to obey an order to provide or permit discovery.”[1] Fed.R.Civ.P. 37(b)(2)(A). These sanctions can take many forms, including the establishment of certain facts, prohibiting the use of evidence, striking portions of pleadings, and dismissing claims. Fed.R.Civ.P. 37(b)(2)(A)(i)-(iii), (v). The imposition of discovery-related sanctions rests within the Court's discretion. Kropp v. Ziebarth, 557 F.2d 142, 146 (8th Cir.1977); Card Tech. Corp. v. DataCard Inc., No. 05–cv–2546 (MJD/SER), 249 F.R.D. 567, 571 (D.Minn.2008). While there is no general requirement that a party's failure to obey be willful, “the most severe Rule 37(b)(2) sanctions—dismissal, default judgment, and striking pleadings in whole or in part—require a finding of willfulness to avoid being deemed an abuse of discretion.” Card Tech. Corp., 249 F.R.D. at 570, 571. St. Jude asserts that Tormey has violated this Court's order to produce the hard drive(s) on which TOR000738 and TOR000739 were originally created and provide detailed information concerning ESI that was lost or destroyed as a result of the 2009 crash. (Pl.'s Mem. in Supp. at 14.) In support of its position, St. Jude cites Stroz Friedberg's opinions that (1) the original source of TOR000738 and TOR000739 has not yet been produced and (2) the technical impossibility of Tormey's explanation—the 2009 crash—to account for lost ESI related to TOR000738 and TOR00739. (Id. at 15.) Because Tormey has not put forth his own expert challenging these opinions, St. Jude maintains that “it is undisputed that [Tormey] ha[s] not furnished the information and devices as required in the Court's Discovery Order.” (Id.) Tormey responds that he has produced everything he has in response to this Court's order and St. Jude's discovery requests. (Def.'s Mem. of Law in Opp'n at 16.) Tormey argues that “[h]e cannot produce that which he does not have, nor can he testify to that which he does not remember.” (Id.) This Court ordered Tormey to produce, to the extent he had not already done so, the hard drive(s) and electronic device(s) housing such hard drive(s) on which TOR000738 and TOR000739 were originally created. (Order Op. at 6.) Throughout this litigation, Tormey has consistently maintained that he created TOR000738 and TOR000739 on the computer he used from 2002 through 2009. This was Tormey's representation in the CIP, his testimony during his deposition, and his response to Interrogatory No. 20. (Gregory Decl ., Oct. 9, 2012, Ex. 6 ¶ 1, Docket No. 90–6; Tormey Depo. at 240, 245–46, 252–53, Docket No. 124; Tormey's Answer to Third Set of Interrogs. at 3.) All that remains of this computer is the TMT Back Up DVD/CD 1, containing data recovered by Express Computer Service when the computer crashed, and possibly a hard drive.[2] Both have been produced. As suspicious as Tormey's sequential explanations may be, he has told his story and must now live with it. There is nothing more that this Court can compel Tormey to produce or sanction Tormey for withholding. *9 With respect to an explanation of the circumstances surrounding the 2009 computer crash and lost or destroyed ESI, Tormey identified when the crash took place, produced the invoice from the technicians servicing his computer, and produced the TMT Back Up DVD/CD 1, which was made from the incapacitated computer. He identified which technician worked on his computer and contacted the technician in an attempt to gain more information about the steps that were taken to recover data. He also described where he kept and how he used the TMT Back UP DVD/CD 1 in the intervening years. St. Jude does not identify any particular deficiency in Tormey's response, only that its own expert has concluded that that Tormey's proffered explanation is not technically possible. Again, Tormey's explanation may well be dubious to the jury as the ultimate finder of fact, but this alone is not sufficient for this Court to sanction Tormey as requested by St. Jude. On this record, the Court cannot conclude that sanctions are warranted under Rule 37. B. Fabrication of Evidence As part of its inherent authority, this Court has the discretion “to fashion an appropriate sanction for conduct which abuses the judicial process.” Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir.2012). “This inherent power reaches conduct both before and during the litigation as long as that conduct abuses the judicial process in some manner.” Stevenson v. Union Pacific R.R. Co., 354 F.3d 739, 751 (8th Cir.2004). “Because of the potency of inherent powers, a court must exercise its inherent powers with restraint and discretion, and a primary aspect of that discretion is the ability to fashion an appropriate sanction.” Plaintiffs' Baycol Steering Comm. v. Bayer Corp., 419 F.3d 794, 802 (8th Cir.2005). Relying on the opinions of its expert, St. Jude asserts that it has been conclusively shown that TOR000738 and TOR000739 are not authentic and were fabricated. (Pl.'s Mem. in Supp. at 12–14.) Tormey responds that the letters have been authenticated through his own testimony and, while St. Jude's expert has “offer[ed] suspicions and concerns about the provenance of the letters, or at least about Tormey's recollection of the timeline concerning the letters,” the expert's fundamental conclusion is only “that he believes he has not yet been provided with the electronic media used to write the letters.” (Def.'s Mem. of Law in Opp'n at 15.) And, in counterpoint to St. Jude's list of inconsistencies between Tormey's testimony and the findings of St. Jude's expert, (see Pl.'s Mem. in Supp. at 7–11, 14), Tormey responds with the ways in which TOR000738 and TOR000739 are consistent with his testimony and other evidence in the record (Def.'s Mem. of Law in Opp'n at 4, 5–9.). As part of its argument, St. Jude references a previous sanctions report and recommendation involving the spoliation of evidence issued by the undersigned. See Multifeeder Tech., Inc. v. British Confectionery Co. Ltd.,File No. 09–cv–1090 (JRT/TNL), 2012 WL 4128385 (D.Minn. Apr. 26, 2012), adopted in part and rejected in part, 2012 WL 4135848 (D.Minn. Sept. 18, 2012). (See Pl.'s Mem. in Supp. at 12–14.) In Multifeeder, the court-appointed expert concluded that a file was deleted less than two weeks after a court order establishing an ESI protocol, an order necessitated by the history of the defendant company's deficient discovery responses. 2012 WL 4135848, at * 1–2, 6. The Court also found that the fact the defendant company's own expert “was unable to find evidence of the existence of the deleted PST file does not meaningfully undermine [the court-appointed expert's] contrary finding.” Id. at *6. Finally, the Court declined to accept the defendant company's representations concerning the contents of the file, noting: *10 It is possible that the deleted file is simply an earlier version of the undeleted file. It is possible that the file contained only irrelevant emails. But we will never know because the unencrypted file was permanently deleted and overwritten—less than two weeks after the Court issued the ESI Protocol Order. Id. St. Jude asserts that “[t]he evidence of fabrication is even stronger here than the evidence of spoliation in Multifeeder because in this case, neither [Tormey] nor [his] counsel have presented any hypothetical explanation, much less admissible testimony, disputing the opinions of [St. Jude's] expert witness that TOR000738 and TOR000739 are not authentic.” (Pl.'s Mem. in Supp. at 13–14.) St. Jude correctly points out that Tormey was not able to offer an explanation for the findings of St. Jude's expert concerning TOR000738 and TOR000739 during Tormey's deposition. (Id.; Tormey Depo. at 263, 266–68.) St. Jude is also correct that Tormey has not retained an expert to explain these apparent discrepancies.[3] (Pl.'s Mem. in Supp. at 14; Tormey Depo. at 268; see also Def.'s Mem. of Law in Opp'n at 18.) Again, Tormey has countered, however conveniently, that (1) he created TOR000738 and TOR000739 on the 2002–2009 computer; (2) this computer subsequently crashed; (3) this computer was taken to Express Computer Service for data recovery; and (4) Express Computer Service placed the recoverable data on the TMT Back Up DVD/CD 1. As requested by St. Jude and ordered by this Court, Tormey produced the native files of TOR000738 and TOR000739 in his possession. The findings of St. Jude's expert call this explanation into question. This is fodder for cross-examination—a point not lost on this Court or St. Jude, which indicates that it “is not seeking exclusion of TOR000738 and TOR000739 from evidence because the fabrication of these documents is relevant and probative of Tormey's credibility, which is a central issue in this case.” (Pl.'s Mem. in Supp. at 19 n. 5.) Conversely, Tormey will have an opportunity to cross-examine St. Jude's expert. (See Def.'s Mem. of Law in Opp'n at 17–18.) It will then be up to the jury to determine which witness to believe. See DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir.2000) ( “Determining the credibility of a witness is the jury's province, whether the witness is lay or expert .”); see also Willis v. State Farm. Fire & Cas. Co.,219 F.3d 715, 720 (8th Cir.2000) (“[A] jury is free to disbelieve any witness, even if the testimony is uncontradicted or unimpeached.”). The remarks made by Chief Judge Davis in his memorandum and order denying summary judgment ring ever truer: this case turns on the credibility of the parties. (See Mem. of Law & Order at 14–15.) The authenticity of TOR000738 and TOR000739 is a question that will have to be answered by the trier of fact. See Maxwell v. Olmsted Cnty., No. 10–cv–3668 (MJD/AJB), 2012 WL 466179, at *5 (D.Minn. Feb. 13, 2012) (stating credibility determinations and the weighing of evidence are functions of a jury). The Court is cognizant of the fact that discovery obtained in connection with the Court's prior order has created more questions than answers; the circumstances surrounding the production of TOR000738 and TOR000739 remain—to say the least—highly suspect. Discrepancies and inconsistencies without more, however, do not necessarily fabrication make. C. Tormey's Request to Extend the Time for Rebuttal Experts *11 Finally, Tormey asserts that the timing of Stroz Friedberg's supplemental disclosures has “disabled [him] from making a ‘technical response’ “ because these disclosures came after the time for identifying experts under the pretrial scheduling order. (Def.'s Mem. of Law in Opp'n at 18.) Tormey asserts that he cannot determine whether he needs a rebuttal expert until after he has deposed St. Jude's expert and therefore requests that the deadline for identifying rebuttal experts be extended. (Id.) TOR000738 and TOR000739 were produced in April 2012 and, in early May, St. Jude began to express concern over their authenticity. (Gregory Decl. ¶¶ 4–5, Oct. 9, 2012, Docket No. 90.) Following an unsuccessful settlement conference near the end of May, the parties entered into the CIP concerning ESI associated with TOR000738 and TOR000739. (Id. ¶¶ 4–8; see also Gregory Decl., Oct. 9, 2012, Ex. 6). Approximately three months later, towards the end of August, Stroz Friedberg provided a preliminary analysis to the parties of the electronic devices produced to date. (Gregory Decl., Oct. 9, 2012, Ex. 7, Docket No. 90–7.) Approximately one month later, on October 1, St. Jude formally identified its expert and produced expert disclosures in accordance with the pretrial scheduling order, albeit on the last day. (Gregory Decl. ¶ 15, Oct. 9, 2012; Gleason Expert Disclosure ¶ 1.) The pretrial scheduling order provided that Tormey's rebuttal experts were to be disclosed on or before November 1. (See Docket Nos. 68, 99.) St. Jude provided supplemental expert disclosures on November 21, supplementation which was rendered necessary by Tormey's production of additional electronic media in the months of October and November. (Gleason Supp. Expert Disclosure ¶¶ 1–2, 4–5.) The pretrial scheduling order has been amended four times during the course of this litigation. (See Docket Nos. 15, 68, 99, 106, 108.) Of these amendments, three of them took place between the months of October and November 2012. (Docket Nos. 99, 106, 108.) Tormey did not raise concern over the rebuttal-expert deadlines at any of these junctures. Since May 2012, Tormey has known that St. Jude doubts the authenticity of TOR000738 and TOR000739. Tormey even had in hand preliminary findings from St. Jude's expert in late August. As a result, Tormey arguably had an additional month to consider whether to hire a rebuttal expert. The supplemental disclosures of St. Jude's expert were the result of Tormey's later production of additional electronic devices—a fact Tormey himself recognizes. (Gleason Supp. Expert Disclosure ¶¶ 4–5; Def.'s Mem. in Opp'n at 18.) Tormey has failed to show the requisite good cause for modifying the deadlines set forth in the current Fourth Amended Pretrial Scheduling Order. See Fed.R.Civ.P. 16(b)(4); D. Minn. LR 16.3(b). IV. Based on the foregoing, the arguments of counsel, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that: *12 1. Plaintiff's Motion for Sanctions (Docket No. 111) is DENIED. 2. All prior consistent orders remain in full force and effect. 3. Failure to comply with any provision of this Order or any other prior consistent Order shall subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like, including without limitation: assessment of costs, fines and attorneys' fees and disbursements; waiver of rights to object; exclusion or limitation of witnesses, testimony, exhibits and other evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole or partial default judgment; and/or any other relief that this Court may from time to time deem appropriate. Footnotes [1] Notably, Rule 37 provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed.R.Civ.P. 37(e) (emphasis added). Tormey has not asserted that any native files related to TOR000738 and TOR000739 were purged as part of a document retention policy. [2] During his deposition, Tormey was not able to recall whether the 60 GB Hard Drive was from the 2002–2009 computer or the 2009–2010 computer. (Tormey Depo. at 245–249, 253, 263–64.) In any event, there is no dispute that the hard drive did not contain either TOR000738 or TOR000739. [3] In his response memorandum, Tormey has informally requested that the deadline for disclosing rebuttal experts be extended, arguing that he will be able to determine whether a rebuttal expert is appropriate only after he has had a chance to depose St. Jude's expert. (Def.'s Mem. of Law in Opp'n at 18.) This request will be addressed in a separate section.