Donna GRITTERS, Plaintiff, v. OCWEN LOAN SERVICING, LLC; Nationstar Mortgage, LLC; Federal Home Loan Mortgage Corporation; and Pierce & Associates, P.C., Defendants No. 14 CV 916 United States District Court, N.D. Illinois, Eastern Division Signed January 26, 2016 Counsel Mara Ann Baltabols, Sulaiman Law Group Ltd., Oak Brook, IL, Nick Heath Wooten, Nick Wooten, LLC, Conway, AR, Ross Michael Zambon, Zambon Law, Ltd. (of Counsel Sulaiman Law Group, Ltd.), Lombard, IL, for Plaintiff. Simon A. Fleischmann, Chethan G. Shetty, Locke Lord LLP, David M. Schultz, Justin M. Penn, Jason L. Santos, Hinshaw & Culbertson LLP, Chicago, IL, for Defendants. Mason, Michael T., United States Magistrate Judge REPORT AND RECOMMENDATION *1 To: The Honorable Jorge Alonso United States District Judge Currently pending before the Court is plaintiff Donna Gritters' (“plaintiff” or “Gritters”) motions to compel and for an order imposing sanctions against defendant Ocwen Loan Servicing, LLC (“Ocwen”) [129] and Nationstar Mortgage, LLC (“Nationstar”) [131]. In light of the relief sought, the Court respectfully recommends that the District Court grant plaintiff's motion against Ocwen in part and deny it in part. The Court also respectfully recommends that the District Court deny plaintiff's motion against Nationstar. I. Background Plaintiff filed her original complaint at law on February 10, 2014, alleging that she was subject to two wrongful foreclosures against her home even though she was current with monthly mortgage payments. In her complaint, she alleged breach of contract, breach of fiduciary duty, and violations of the Fair Debt Collection Practices Act (“FDCPA”), the Illinois Consumer Fraud Act (“ICFA”), the Real Estate Settlement Procedures Act (“RESPA”), and the Truth in Lending Act (“TILA”). Plaintiff named as defendants Ocwen, Nationstar, Federal Home Loan Mortgage Corporation (terminated on 10/1/15), and Pierce and Associates, P.C. Discovery was originally ordered closed on November 3, 2014 for the breach of contract claim (Dkt. 33) and as to Pierce & Associates (Dkt. 41). The fact discovery deadline was eventually extended to January 20, 2015, and applied to all parties and counts. (Dkt. 49.) On December 20, 2014, plaintiff filed an unopposed motion to extend discovery based on the availability of the defendants for depositions and a pending Rule 12(b)(6) motion to dismiss. (Dkt. 55.) Fact discovery was extended to March 13, 2015. (Dkt. 57.) The parties subsequently requested another agreed extension of discovery in light of a potential settlement conference, and discovery was extended until May 29, 2015. (Dkt. 64.) Discovery was again extended until July 31, 2015 following an agreed motion because the settlement conference had not yet taken place and the parties wished to avoid further litigation fees. (Dkt. 81.) Also during this time, plaintiff filed an amended complaint and defendants filed motions to dismiss. (Dkt. 71, 85, 86, 88.) On May 18, 2015, Magistrate Judge Gilbert terminated the settlement referral because the settlement letters received by both sides indicated, and the parties agreed, that a settlement conference would not be a productive use of time and resources. (Dkt. 105.) Another agreed motion to extend the close of fact discovery was filed on July 7, 2015 because of the ongoing exchange of written discovery and the proposed depositions of damages witnesses. (Dkt. 116.) Fact discovery was extended until September 30, 2015. (Dkt. 118.) The District Court subsequently granted Ocwen's agreed motion to extend fact discovery for limited purposes, extending discovery until October 30, 2015. (Dkt. 125). On November 16, 2015, plaintiff filed motions to compel and for orders imposing sanctions against Ocwen (Dkt. 129) and Nationstar (Dkt. 131). The motions were referred to this Court (Dkt. 133), and a briefing schedule was entered. In plaintiff's motion to compel against Ocwen, plaintiff alleges that “Ocwen has failed to (a) tender basic, discoverable materials that should have been disclosed under Rule 26 in August 2014, (b) to produce documentation of its policies and procedures, (c) to produce emails and call recordings directly related to this litigation, and (d) to produce a representative for a Rule 30(b)(6) deposition by the final discovery close date of October 30, 2015.” (Dkt. 129 at 1.) As a result of Ocwen's alleged discovery violations, plaintiff asserts that Ocwen should be prohibited from raising any affirmative defenses and that plaintiff is entitled to an adverse inference and a finding of spoliation. Plaintiff also suggests the entry of a default judgment. *2 In her motion against Nationstar, plaintiff argues that Nationstar produced its policy and procedure documents three weeks before the close of discovery and subsequently failed to make a Rule 30(b)(6) witness available for a deposition regarding Nationstar's policies and procedures. (Dkt. 131.) Plaintiff argues that appropriate sanctions for these alleged discovery violations include striking Nationstar's bona fide error affirmative defense and barring Nationstar from presenting evidence of its internal policies and procedures in any fashion. The Court addresses the individual arguments raised in plaintiff's motions in further detail below. II. Legal Standard a. Motions to Compel Rule 26(b)(1) of the Federal Rules of Civil Procedure allows the parties to obtain discovery regarding “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” FED. R. CIV. P. 26(b)(1). “In ruling on motions to compel discovery, courts have consistently adopted a liberal interpretation of the discovery rules.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006)(citation omitted); see Cannon v. Burge, No. 05 C 2192, 2010 WL 3714991, at *1 (N.D. Ill. Sept. 14, 2010) (“The federal discovery rules are liberal in order to assist in trial preparation and settlement.”). “Courts commonly look unfavorably upon significant restrictions placed upon the discovery process,” and the “burden rests upon the objecting party to show why a particular discovery request is improper.” Kodish, 235 F.R.D. at 450. “For purposes of [Rule 37(a) ], an evasive or incomplete disclosure, answer, or response, must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4). A party may move for an order compelling discovery after conferring or attempting to confer in good faith with the party failing to produce discovery. FED. R. CIV. P. 37(a); Local Rule 37.2. b. Sanctions Under Federal Rule of Civil Procedure 37(b)(2)(A), sanctions may be imposed on a party who disobeys a discovery order. Sanctions may include, but are not limited to: “(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; ... (vi) rendering a default judgment against the disobedient party.” FED. R. CIV. P.37(b)(2)(A). Sanctions for violations of court orders should generally “seek to serve one or more of the following purposes: (1) to remedy the prejudice caused to an innocent party by a violation of the court order; (2) to punish the party who violates an order; and/or (3) to deter others from committing like violations.” Corporate Express, Inc. v. U.S. Office Products, Co., No. 00 C 0883, 2000 WL 1644494, at *6 (N.D. Ill. Oct. 27, 2000). Sanctions are proper if the court finds bad faith, willfulness, or fault on the part of the noncomplying litigant. Melendez v. Illinois Bell Telephone Co., 79 F. 3d 661, 671 (7th Cir. 1996). “Bad faith” ... is characterized by conduct which is either intentional or in reckless disregard of a party's obligations to comply with a court order. “Fault,” by contrast, doesn't speak to the noncomplying party's disposition at all, but rather only describes the reasonableness of the conduct-or lack thereof-which eventually culminated in the violation. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). When imposing sanctions, courts “must be guided by a certain measure of restraint.” Barnhill v. U.S., 11 F.3d 1360, 1367 (7th Cir. 1993). “District courts ... may only impose sanctions that are ‘just,’ that is, proportionate to the circumstances surrounding a party's failure to comply with discovery rules.” Melendez, 79 F.3d at 672. The sanction must be one that a reasonable jurist would have chosen as proportionate to the infraction. Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998). *3 Further, even though a motion to compel usually precedes a Rule 37(b)sanction, a formal motion is not always necessary. Tamari v. Bache & Co., 729 F.2d 469, 472 (7th Cir. 1984). If a party has sufficient notice that discovery proceedings are to occur by a specific date and fails to comply, a court may impose sanctions without a formal motion to compel from the opposing party. Id. III. Motion to Compel and for Sanctions Against Ocwen Based on the record before this Court, Ocwen does not object to producing certain documents nor has Ocwen asserted that certain documents are unavailable. Therefore, plaintiff's arguments regarding the destruction of records are premature. This Court addresses the discovery requests at issue, production to date, and whether sanctions are appropriate at this stage. a. Background At issue in plaintiff's motion is the production of certain documents. Specifically, plaintiff alleges that Ocwen has failed to produce its internal policy and procedure manuals[1] as well as critical phone recordings and emails (hereinafter collectively “documents at issue”). Both parties provide their general account of the procedural history of discovery production in this case. Not surprisingly, the accounts differ in various respects. According to plaintiff, Ocwen's first document production on October 15, 2014 did not include any of the documents at issue. (Dkt. 129 at 4.) The parties subsequently engaged in Rule 37 telephone conversations regarding the document production, but plaintiff alleges that a November 12, 2014 supplemental production also failed to include the documents at issue. (Id.) On December 10, 2014, plaintiff served a Rule 30(b)(6) deposition notice, which included a request for a person who could discuss certain policies and procedures. (Dkt. 129 at Ex. E.) The Rule 30(b)(6) notice, however, did not include a written request for the production of the policies and procedures. (Id.) Discovery was originally stayed with respect to Ocwen, other than for Count I, due to Ocwen's pending motion to dismiss. (Dkt. 33.) The motion to dismiss was granted in part and denied in part on December 31, 2014. (Dkt. 58.) Plaintiff subsequently served Ocwen with supplemental requests to produce, interrogatories, and requests for admission. (Dkt. 155 at 3-4.) According to plaintiff, Ocwen provided amended written responses, but no documents, on March 4, 2015.[2] (Dkt. 129 at 4.) Ocwen contends that a May 22, 2015, Rule 37 phone conference was the first discussion between the parties regarding the actual substance of Ocwen's responses to written discovery. (Dkt. 155 at 5.) Ocwen further asserts that “in a good faith effort to resolve the dispute and satisfy Plaintiff's requests, Ocwen supplemented its document production on July 17, 2015,[ ] August 9, 2015,[ ] and October 30, 2015.” (Id.) Also during this time, plaintiff asserts that the Ocwen Rule 30(b)(6) deposition was rescheduled from June 26, 2015, to July 8, 2015, and finally to August 27, 2015. (Dkt. 129 at 5.) Ocwen allegedly did not have all of the documents available for production prior to the August 27 deposition and agreed to allow plaintiff to conduct a second deposition once the discovery was produced. (Id.) Ocwen contends that it communicated its good faith efforts to obtain the remaining discovery with plaintiff. (Dkt. 155 at Ex. G.) *4 The second deposition was to proceed on October 23, 2015. (Dkt. 129 at 6.) According to plaintiff, the parties “agreed to a ‘drop dead’ date of September 11, 2015, for Ocwen to complete remaining discovery.” (Id.) Ocwen's counsel emailed plaintiff's counsel on September 11 stating that they had received policy and procedure materials and an initial batch of emails from their technology vendor, but required additional time to review the documents. (Id. at Ex. H p. 7.) Plaintiff requested the additional production on October 5 and requested an update on October 7. (Id. at Ex. H p. 3-5.) Ocwen responded on October 8 that the policy and procedure documents were for the incorrect time period and that the emails had not yet been filtered for production. (Id. Ex. H p. 3.) On October 20, Ocwen wrote that they would not be producing a Rule 30(b)(6) witness for the October 23 deposition because they were still in the process of locating the policy and procedure documents. (Id. at Ex. I.) Ocwen's counsel indicated that, if necessary, they would get a motion or stipulation on file to ensure plaintiff was not precluded from taking the deposition due to the close of discovery. (Id.) No motion or stipulation was ever filed. According to plaintiff, Ocwen emailed amended responses to discovery on October 30, 2015. (Id.at 7.) However, the supplement did not contain policies and procedures, emails, or phone recordings; except for one audio file that plaintiff was unable to play.[3] (Id.) In plaintiff's motion, plaintiff claims that the emails and phone calls will, at minimum, address Ocwen's conduct and whether or not Ocwen “(a) acted in good faith, (b) fairly and honestly dealt with Gritters and handled Gritters' account, (c) acted with malice or reckless disregard of Gritters' rights, or (d) conducted a reasonable investigation in response to Gritters' disputes.” (Dkt. 129 at 9-10.) Plaintiff further asserts that the policies and procedures will address whether Ocwen followed internal policies; followed procedures to conduct a legitimate investigation; or adhered to protocol. (Id. at 10.) It is plaintiff's position that Ocwen has been on notice of the claims since February 2014, and all documents should have been produced under Rule 26(a)(1) more than a year ago. (Id.) Plaintiff maintains that the delay in production of the documents at issue supports a strong inference that Ocwen's behavior was willful and conducted in bad faith. Accordingly, plaintiff seeks the following sanctions: strike any answer and affirmative defense and the entry of a default judgment; an adverse inference and a finding of spoliation; and/or bar Ocwen from presenting evidence of its internal policies and procedures, emails, or phone recordings. (Id. at 10-14.) In response, Ocwen first argues that plaintiff's motion mischaracterizes the facts in order to infer its noncompliance with discovery. (Dkt. 155 at 1.) Instead, Ocwen asserts that it has been working diligently since May 2015, when discovery disputes were first brought to its attention, and that it “has searched for and produced, or will be producing, all of these documents.” (Id.) Ocwen further notes that plaintiff's only formal request for policies and procedures was related to documents supporting its affirmative defenses, and plaintiff's present motion was filed while Ocwen's motion to dismiss was still pending. (Id. at 6.) Therefore, Ocwen contends it had not yet asserted its affirmative defenses and plaintiff's motion on the issue was premature. (Id. at 6-7.) Ocwen maintains that its affirmative defense under the FDCPA is the only affirmative defense it has asserted that relies on its policies and procedures. (Id. at 6.) Ocwen has located and will produce the FDCPA policies and procedures and present a witness for deposition on the documents. (Id. at 8.) Ocwen further contends that it has made a good faith effort to locate potentially relevant emails, including identifying six custodians most likely to have corresponded with plaintiff and requesting narrower search terms from the plaintiff. (Id. at 8-9.) With respect to the telephone calls, Ocwen explains that since individual calls could not be isolated, Ocwen undertook an effort to determine which tapes might include calls from the relevant time period. (Id. at 11.) Accordingly, Ocwen argues that it acted in good faith at all times and did not engage in any sanctionable conduct. *5 Plaintiff replied to Ocwen's response, asserting that any difficulty locating the materials should have been addressed and resolved over a year ago.[4](Dkt. 158 at 2.) Given that no specific information was provided regarding the methodology used for identifying the custodians or searching telephone recordings, plaintiff finds the searches arbitrary. (Id. at 7-8 and 10.) Additionally, plaintiff argues that Ocwen's contention that it did not need to disclose its affirmative defenses yet is no excuse for missing discovery deadlines. (Id. at 6.) b. Analysis Although plaintiff paints a picture of numerous discovery extensions in which “Ocwen has failed to meet its most basic obligations under Rules 26, 34, and 37” (Dkt. 129 at 1), the docket reveals agreed discovery extensions for various reasons, including pending motions to dismiss and a settlement conference. Further, a status report from February 6, 2015, discusses the status of discovery and makes no mention of Ocwen's alleged delinquent production. (Dkt. 63.) While plaintiff asserts that Ocwen's delinquent production is cause for sanctions, Ocwen argues that plaintiff never raised certain discovery issues in the past. i. Policies and Procedures Based on the record before this Court, the plaintiff issued, inter alia, a written request to produce for policies and procedures related to documents “that would support any of Ocwen's affirmative defenses.”[5] (Dkt. 129 at Exs. A ¶ 2 and B ¶ 2.) The Court notes that neither party addresses whether all of the policies and procedures plaintiff seeks are, in fact, related to Ocwen's affirmative defenses or if she is seeking policies and procedures beyond the FDCPA documents. Plaintiff sought a Rule 30(b)(6) witness to discuss policies and procedures on thirteen topics, but there is no evidence provided that indicates that requests for the actual policies and procedures were issued.[6] Additionally, plaintiff's position is that Ocwen should have produced the policies and procedures under Rule 26(a)(1), which requires a party to disclose documents that it may use to support its claims or defenses. That position, however, assumes that all of the policies and procedures plaintiff seeks are intended by Ocwen to support its defenses. Plaintiff may be requesting policies and procedures that she deems relevant to her claims and that Ocwen had no intention of using for its own purposes. Unless a formal request for such documents is made, a defendant cannot predict which documents a plaintiff may seek to further its claims. Therefore, while the parties may have had discussions regarding the policies and procedures requested, the parties nonetheless need to clarify what documents are actually being requested and put the requests in writing. With respect to Ocwen's failure to produce any policies and procedures at this time, it appears as though Ocwen has documents in its possession that it is prepared to produce. The briefing of the motion to compel should not have precluded earlier disclosure of the documents. Moreover, even though Ocwen argues that it was not required to identify documents responsive to its affirmative defense before it needed to assert its affirmative defense, the record indicates that Ocwen was attempting to produce certain policies and procedures in early September. This, again, raises the question of whether the policies and procedures being sought go beyond the FDCPA documents. The Court will not make its own assumptions regarding why policies and procedures were, based on the record, first identified as being available in September, but the record does support Ocwen's good faith attempts to supplement discovery throughout this procedurally complex case. The policies and procedures were not the only documents Ocwen was working on procuring. Therefore, the Court does not find that Ocwen acted willfully in delaying production. *6 This Court recommends that if Ocwen has yet to produce the policies and procedures related to the FDCPA affirmative defense, it should be ordered to produce the documents within seven days of an order by the District Court.[7] With regards to any policies and procedures beyond Ocwen's affirmative defense, the Court recommends that plaintiff issue Ocwen a narrowly tailored request for production identifying the policies and procedures she seeks within 14 days. Ocwen should produce any and all responsive documents within 45 days of receipt of the request. ii. Email Production Ocwen originally objected to plaintiff's request for all communications related to any allegation in the complaint as “overbroad, unduly burdensome, and to the extent internal emails would not be readily accessible due to their storage in electronic archives, back-up files, or legacy systems.” (Dkt. 155 at 8.) It further explains that it produced a loan servicing comment log, which identified over 240 individuals with some role in the day-to-day servicing of plaintiff's loan over several years, and asked plaintiff's counsel to narrow the scope of the request. According to Ocwen, plaintiff never narrowed the scope.[8] Additionally, Ocwen states that it produced internal notes regarding emails and that the written correspondence found in the loan servicing comment log addresses the issues plaintiff identifies as relevant in her motion. Ocwen further asserts that it identified six individuals as potential document custodians, and its litigation support team searched data files for these individuals for any emails related to plaintiff and identified one “unprivileged, responsive email.” (Dkt. 155 at 9.) Ocwen stated that it will produce that email.[9] Further, Ocwen acknowledges that co-defendant Pierce and Associates produced an email from one of the individuals, but states that Ocwen is personally unable to recover the email due to email crashes affecting the individual in 2010 and 2011. Given the cost and time burdens of extracting emails from hundreds of employees, Ocwen contends it has met its duty through its search for responsive emails, production of the comment log, and the deposition of its Rule 30(b)(6) witness. Plaintiff argues that Ocwen previously agreed to produce the emails and never raised an issue of the burden before. According to plaintiff, Ocwen never previously identified the six custodians or informed plaintiff of its efforts to search for relevant emails. Further, plaintiff argues that an actual email is more complete than a mere note identifying the email and that there may be other emails not referenced in the notes log. Ocwen states that it remains willing to work with plaintiff to identify and search for emails from key individuals. Ocwen provides numerous explanations to support its good faith argument for not producing more email correspondence. However, it is clear that the parties have failed to properly communicate regarding the efforts to complete discovery. Accordingly, the Court recommends that the parties meet and confer to narrow the search terms for the emails within 14 days. Any emails withheld on the basis of privilege are to be identified in a corresponding privilege log. Ocwen should produce the emails and privilege log within 45 days from the conference. In the event emails from certain periods of time are unable to be recovered due to a server crash, the Court recommends that Ocwen be ordered to enlist an individual proficient with such crashes to attempt to recover any data and provide an affidavit attesting to the efforts made. Additionally, if Ocwen has not yet produced the one email it admitted to locating, the Court recommends that the email be produced within seven days. iii. Phone Recordings *7 With respect to plaintiff's request for phone recordings, Ocwen explains that “[t]o the extent those calls were recorded, they are stored on backup tapes at a vendor's offsite location and cannot be readily isolated within those tapes; the tapes must be listened to manually to locate particular recordings.” (Dkt. 155 at 11.) Due to the costs to be incurred for listening to every tape, Ocwen “approximated the location of calls on backup tapes” and sent its counsel the recordings. (Id.) Counsel subsequently identified one recording and produced it to the parties.[10] Accordingly, Ocwen contends it undertook a reasonable search and produced the only call it was able to identify and restore. Plaintiff argues that Ocwen never before raised the cost issue with respect to identifying phone recordings nor did Ocwen discuss its search of the tapes to ensure parties would be satisfied with the method used. Based on the record before the Court, Ocwen acted in good faith to identify available recordings; however, the issues with the tapes and the need to modify its search of the tapes should have been discussed with the plaintiff. Therefore, it is recommended that Ocwen provides plaintiff with the search parameters used for the tapes within seven days, meet and confer with plaintiff's counsel regarding additional search parameters within 14 days, and produce any additional recordings that result from that search within 45 days. Ocwen should also ensure that any additional recordings are produced in a format plaintiff can access. iv. Rule 30(b)(6) Second Deposition The second deposition of an Ocwen Rule 30(b)(6) witness was cancelled due to Ocwen's request for additional time to locate the relevant policy and procedure documents. Given the fact that three months have passed since Ocwen requested more time, it is reasonable to presume that the documents should be available for production and for a Rule 30(b)(6) deposition. Therefore, the Court recommends that the final Rule 30(b)(6) deposition take place within 30 days of Ocwen's production of policies and procedures. v. Request for Sanctions While Ocwen maintains that it did not know until May 2015 that certain discovery was at issue, plaintiff asserts that the discovery was a year overdue even at that point. Plaintiff, however, fails to acknowledge the fact that discovery was stayed at times due to motions to dismiss and a potential settlement conference; delays that are not attributable to Ocwen's alleged delinquency. It was only in September that the parties jointly sought an extension due to the need to obtain additional discovery from Ocwen and to depose Nationstar and Ocwen witnesses. Notably, this is plaintiff's first motion to compel and for sanctions against Ocwen. The sanctions plaintiff seeks allude to egregious behavior on the part of Ocwen. Although case law allows sanctions to be issued when no motion to compel has been disobeyed (see Tamari, 729 F.2d at 472), this Court finds that the sanctions sought at this stage are disproportionate to the alleged discovery violations. Further, plaintiff cannot assert that Ocwen's delayed discovery has impaired her ability to prove her case on the merits at trial. Any discovery violation did not result in a complete inability of plaintiff to obtain documents or conduct a second deposition. Instead, the delays are remediable in a lawsuit where a trial date has yet to be set. This case involves a number of allegations against Ocwen and extensive discovery. Ocwen's attempts to produce discovery appear to be in good faith, even though the Court acknowledges that certain delays border on excessive. Ocwen should have communicated its earlier efforts to obtain emails and phone recordings, as well as efforts to locate the policies and procedures. Moreover, Ocwen's statements that it “will produce” documents do not negate Ocwen's responsibility to timely produce discovery. The briefing of this motion is no excuse for further discovery delays. Accordingly, it is recommended that should any of Ocwen's future discovery production be late, sanctions in the form of attorney fees or striking certain documents for use at trial may be warranted. Additionally, the Court notes that while plaintiff spends time addressing the destruction of evidence, there is no indication that any of the documents sought have been destroyed. Therefore, it would be premature to issue sanctions regarding a failure to preserve material evidence. IV. Motion to Compel and for Sanctions Against Nationstar *8 Although plaintiff references a number of discovery issues in her motion, the only matters at issue for the present motion are the production of policies and procedures and the second Rule 30(b)(6) deposition, the Court will only address those discovery matters and related background. Further, while plaintiff classifies her motion as a motion to compel and for sanctions, the motion does not seek any discovery production. Instead, the motion seeks sanctions as a result of delayed production and the failure to produce a witness for deposition prior to the close of discovery. a. Background On July 31, 2014, Nationstar answered plaintiff's original complaint and asserted the bona fide error affirmative defense for plaintiff's FDCPA claims.[11] (Dkt. 48 at 41.) According to plaintiff, Nationstar provided its initial Rule 26(a)(1) disclosure on August 25, 2014. (Dkt. 131 at 5.) It is plaintiff's position that the policies and procedures should have been disclosed at that time.[12] Plaintiff propounded discovery on September 25, 2014. (Dkt. 131 at 3.) The requests to produce requested, inter alia, “[a]ny documents, manuals, protocols, procedures, and training materials that would support any of Nationstar's affirmative defenses raised to the complaint.” (Dkt. 131 at Ex. A ¶ 2.) Nationstar served its answers on December 9, 2014, and objected to plaintiff's request for documents, including protocols and procedures, relating to Nationstar's affirmative defenses.[13] (Dkt. 154 at Ex. B p. 30.) On December 10, 2014, plaintiff served a Rule 30(b)(6) notice of deposition to Nationstar. (Dkt. 131 at Ex. C.) The notice contained 38 topics for the deponent to address, including various company policies and procedures. (Id.) The deposition notice did not include a request for documents related to the topics to be discussed. (Id.) The parties subsequently agreed to a stay of oral discovery until April 9, 2015 due to a scheduled settlement conference. (Dkt. 131 at 4.) As previously explained, the settlement referral was terminated on May 18, 2015. (Dkt. 105.) On May 21, 2015, plaintiff and Nationstar met and conferred over outstanding discovery. (Dkt. 131 at 4; 154 at 4.) According to the plaintiff, Nationstar produced 230 additional documents on June 16, 2015, but did not include any policies and procedures in the production. (Dkt. 131 at 4.) The Nationstar Rule 30(b)(6) deposition took place as scheduled on June 25, 2015. (Dkt. 154 at 5.) The parties subsequently corresponded regarding Nationstar's amended written responses and further document production. (Dkt. 157 at Ex. A.) In one email exchange, Nationstar's counsel explained that the “hold-up” in producing policy documents was because counsel was awaiting the client's approval to produce certain documents. (Dkt. 157 at Ex. A p. 4.) On September 9, 2015, Nationstar produced its policies and procedures, subject to a protective order, and agreed to a second Rule 30(b)(6) deposition to address the documents. (Dkt. 131 at 5; 154 at Ex. F.) On September 25, 2015, the parties filed an agreed motion to extend fact discovery in order to complete outstanding discovery by Ocwen and Nationstar, and discovery was extended until October 30, 2015. (Dkt. 123; 125.) The remaining discovery owed by Nationstar was to present its witness for a second Rule 30(b)(6) deposition. On October 14, 2015, plaintiff sent a notice of deposition for the deposition to take place on October 23, 2015. (Dkt. 154 at 6, Ex. A.) Nationstar's counsel replied on October 20 that the witness was unavailable on October 23 and they were looking into other dates. (Dkt. 154 at Ex. A p. 6.) On October 22, Nationstar's counsel wrote to the other parties and stated that the witness might be available on October 30, but they were trying to work out a conflict. (Id.) Nationstar's counsel provided the alternative dates of December 7 and 14. (Id.) Plaintiff's counsel responded on October 26 that the October 30 date worked for them. (Id. at p. 5.) On October 27, counsel for Pierce and Associates wrote that they were unavailable on the 30th and requested additional dates. (Id. at p. 4.) Counsel for Nationstar responded “[i]t was going to be difficult for us to make October 30 work so that is fine with us.” (Id.) She then reiterated that the witness was available on December 7 or 14. (Id.) *9 Plaintiff's counsel wrote the parties on October 29 expressing disapproval over Nationstar and Ocwen's failure to produce witnesses before the close of discovery. (Id. at p. 2.) Nationstar's counsel subsequently sent follow-up emails providing available deposition dates following the October 30 discovery deadline. (Dkt. 154 at Ex. I.) On November 11, following the District Court's denial of the pending motions to dismiss, plaintiff's counsel emailed all parties and suggested that parties “move forward with punitive/pattern and practice discovery ... We believe the discovery can be completed by the end of February 2016 and we would be ready for an April 2016 trial.”[14] (Dkt. 154 at Ex. J.) Plaintiff's counsel filed her motion to compel on November 16, 2015. In her motion, plaintiff argues that because the “bona fide error defense requires a debt collector to establish that it had policies and procedures in place designed to prevent violations of the FDCPA[,] [i]t borders on the preposterous for a debt collector to claim that it employed these procedures within its company, yet couldn't locate them for over a year.” (Dkt. 131 at 6.) Plaintiff further argues that Nationstar made unfulfilled promises to induce plaintiff to extend discovery. It is also plaintiff's position that policies and procedures are relevant to her other claims of breach of contract, violation of ICFA, violation of RESPA, and breach of fiduciary duty because they will address whether Nationstar (a) followed internal policies; (b) followed procedures to conduct a legitimate investigation; or (c) adhered to protocol. Because plaintiff has been unable to depose Nationstar on its policies and procedures, plaintiff asks the Court to strike Nationstar's bona fide error affirmative defense and/or bar it from presenting evidence of its policies and procedures “in any fashion.” (Dkt. 131 at 8.) In its response, Nationstar first asserts that plaintiff failed to comply with Rule 37(a)(1) by not meeting and conferring on the issues prior to filing the motion. Nationstar seeks costs for plaintiff's failure to comply with Rule 37(a)(1). Nationstar then argues that plaintiff improperly infers that Nationstar was attempting to run out the clock on discovery, when in fact, the parties agreed to discovery extensions for reasons other than Nationstar's discovery. Nationstar also points out that it produced the policies and procedures on September 9, 2015, and it has been trying to complete the deposition of its witness for over two months. Further, at no time prior to the plaintiff's filing of this motion did plaintiff ever raise a concern about the discovery produced before September 30. Nationstar acknowledges that parties “may have been shortsighted in only seeking an additional month on the last extension,” but maintains that it tried in good faith to complete the remaining deposition within that time. It is therefore Nationstar's position that sanctions are not warranted in this case. In reply, plaintiff reiterates Nationstar's failure to timely disclose the policies and procedures in its Rule 26(a)(1) disclosures, responses to written discovery, or after raising its bona fide error defense. Plaintiff further maintains that even though Nationstar provided additional dates for the deposition, they were all after the discovery cut-off date and no extension was ever sought. Plaintiff also asserts that it met the Federal Rule 37(a)(1)standard to meet and confer even though it does not seek relief pursuant to the rule. Instead, plaintiff seeks relief pursuant to Rule 37(c)(1)(C). b. Analysis *10 As evident by the docket and the briefings on this motion, discovery was an ongoing matter that involved several agreed upon extensions. Both parties offer differing interpretations of certain interactions and discussions regarding discovery. While Nationstar asserts that parties continued to engage in good faith discovery by supplementing discovery and amending responses, plaintiff infers that Nationstar was delinquent with much of its discovery production. i. Rule 37.2 Conference Nationstar argues that plaintiff improperly brought the motion before attempting to hold a Rule 37(a)(1) conference. According to Nationstar, plaintiff had yet to respond to its emails containing alternative dates in December for the deposition when she filed the present motion. Plaintiff asserts that not only did she comply with Rule 37(a)(1), but that the requirements under the rule are irrelevant because she did not seek relief under that specific rule. Instead, plaintiff sought relief under Rule 37(c)(1)(C). Further, even though Nationstar did not raise Local Rule 37.2 requirements, plaintiff asserts she explained in detail her “good faith consultation” in which she was unable to reach an accord and that “her attempts to engage in such consultation were unsuccessful due to no fault of her own.” (Dkt. 157 at 9 n. 4.) Plaintiff, however, fails to cite to any reference of her efforts to meet and confer on the specific discovery issues raised in this motion with Nationstar, nor could this Court find evidence of a meet and confer following the cancellation of the October 30 deposition. Further, although she asserts that Rule 37(a)(1) is not applicable here, she does title her motion as a motion to compel and a motion for sanctions. A closer look at the motion reveals that plaintiff, in fact, is not seeking any discovery to be compelled. Instead, plaintiff only seeks sanctions for alleged discovery violations. Therefore, the Court finds that while plaintiff should have met and conferred regarding the recent discovery issues, plaintiff does not appear to seek any remedy that Nationstar could acquiesce to following a meet and confer. Given that this present matter only requests sanctions, the Court does not recommend denying plaintiff's motion based on an insufficient Rule 37discussion or awarding Nationstar costs. ii. Second deposition of Rule 30(b)(6) witness Nationstar maintains that it attempted in good faith to produce its Rule 30(b)(6) witness for a second deposition. According to Nationstar, plaintiff did not give it sufficient notice for its witnesses' deposition when she issued a notice of deposition two weeks after discovery was extended and for an arbitrary day seven days before the close of discovery.[15] Therefore, Nationstar believes it timely responded regarding availability on October 20. Plaintiff disputes Nationstar's argument and notes that Nationstar could have provided available dates before plaintiff noticed the deposition. Additionally, plaintiff argues that Nationstar did not make sufficient effort to complete the deposition before the October 30 close of discovery. According to plaintiff, Nationstar “stated it could not appear on October 30” (Dkt. 131 at 5) and “never intended-or certainly never committed-to complete the October 30, 2015 deposition.” (Dkt. 157 at 6.) Based on the emails between the parties, Nationstar admitted it would have difficulty with the October 30 date, but never said it could not make it work. The deposition was only cancelled once Pierce and Associates said its counsel was unavailable that date.[16] *11 Furthermore, while the November 11, 2015 email from plaintiff's counsel was with respect to “punitive/pattern and practice discovery” (Dkt. 154 at Ex. J), it is clear that the parties were still engaged in some form of discovery practice and no trial date had been set at the time the motion was filed. Therefore, although plaintiff's motion does not seek the second deposition of the Rule 30(b)(6) witness because discovery has closed, the Court finds that requiring the deposition to take place is more appropriate in this case than the sanctions sought. As discussed in further detail below, the sanctions are not just or proportionate to the inability to schedule the second Rule 30(b)(6) deposition before October 30. Based on the record, the actual discussion of a second deposition first took place after the September 9 production and before the September 25 agreed motion to extend the close of fact discovery. (Dkt. 131 at 5.) It could, however, be argued that Nationstar's “delayed” September 9 discovery production was the reason the second deposition was not even addressed until discovery was about to close. The parties were perhaps presumptuous to assume that they could schedule the deposition so near to the close of discovery without any possible conflicts. Accordingly, the Court recommends that the District Court order the second Rule 30(b)(6) deposition to proceed within 30 days. To avoid any dispute over who should notice the deposition, it is recommended that Nationstar provide all counsel with available dates within seven days. iii. Sanctions It is plaintiff's position that Nationstar's September 9 production of policies and procedures and failure to produce a witness by October 30 warrant sanctions. Specifically, plaintiff asks the Court to strike Nationstar's bona fide error affirmative defense and bar Nationstar from presenting evidence of its internal policies and procedures “in any fashion.” (Dkt. 131 at 8.) The Court first notes that no discovery production is outstanding. While, as plaintiff argues, the production was delayed, the fact remains that all policies and procedures were produced before discovery was closed. Moreover, the record before this Court does not establish that plaintiff raised any issue with the September 9 production until her November 16 motion. No objections were made, and the parties instead moved forward with discussing the deposition. It was only after the issues surrounding scheduling the deposition arose that plaintiff sought to bar any evidence of the policies and procedures. Further, based on the record before this Court, plaintiff issued a request to produce for documents that included policies and procedures related to Nationstar's affirmative defense and also sought to depose a Rule 30(b)(6) witness about various policies and procedure. There is, however, no other evidence of requests for policies and procedures beyond those related to the affirmative defense. Neither party makes it clear what, if any, additional policies and procedures were sought, when the requests were made, or even what policies and procedures were produced on September 9. Plaintiff asserts that they should have been disclosed in the Rule 26(a)(1)disclosure, but provides no support for that argument.[17] Accordingly, the Court is not in a position to determine whether the September 9 production was in bad faith. The Court has no evidence that plaintiff formally requested policies and procedures beyond ones pertinent to Nationstar's affirmative defenses, when any additional requests were made, or whether Nationstar delayed production of the documents in bad faith. Furthermore, given all of the reasonable discovery delays and stays in this case, as well as the unclear timeline of when any additional relevant policies and procedures were identified, the Court does not find that Nationstar was willfully delinquent in its discovery production. *12 The sanctions sought by plaintiff are extreme considering the background of this case. Setting aside the semantic games played by both parties in their briefings, it is clear that the original discovery extensions were not the fault of either party. Instead, as discussed above, various motions to dismiss, an amended complaint, and a potential settlement conference warranted the parties' agreed requests for more time to complete discovery. As Nationstar noted, it was perhaps overly optimistic in its belief that remaining discovery could be completed within a month. Both parties could have been more diligent in scheduling the second deposition: plaintiff could have issued the notice of deposition earlier or checked on available dates first, and Nationstar could have provided availability as soon as a second deposition was discussed. In any event, the Court does not find that the sanctions sought by plaintiff are proportionate to the alleged discovery violations. Additionally, the Court does not find that Nationstar is entitled to attorney fees because of plaintiff's alleged failure to meet and confer. A more appropriate remedy at this stage is to complete the deposition. V. Conclusion For the reasons stated above, we respectfully recommend that the District Court order the following with respect to plaintiff's motion to compel against Ocwen: 1) The FDCPA policies and procedures should be produced within seven days. The plaintiff should issue defendant a narrowly tailored request for production identifying any additional policies and procedures it seeks within 14 days. Defendant should produce any and all responsive documents within 45 days; 2) The parties should meet and confer regarding narrowing search terms for emails within 14 days. In the event emails from certain periods of time are unable to be recovered due to a server crash, Ocwen should enlist a technician to attempt to recover any data and provide an affidavit attesting to the recovery efforts. Any emails withheld on the basis of privilege are to be identified in a corresponding privilege log. The emails and privilege log should be produced within 45 days; 3) Ocwen should provide plaintiff with the search parameters used for searching the telephone recordings within seven days, meet and confer with plaintiff's counsel regarding additional search parameters within 14 days, and produce any additional recordings that result from any additional search within 45 days; 4) The deposition of Ocwen's Rule 30(b)(6) witness should proceed within 30 days of Ocwen's production of the policies and procedures; and 5) No sanctions are issued at this time, but Ocwen is warned against further discovery delays. Attorney fees and other sanctions may be ordered in the event Ocwen fails to abide by future Court deadlines. With respect to plaintiff's motion against Nationstar, the Court recommends that the second Rule 30(b)(6) deposition take place within 30 days. Further delays in the deposition could result in attorney fees or other, proportional sanctions. Additionally, although neither party addresses it, fact discovery was ordered closed on October 30, 2015. Due to the additional discovery this Court recommends, it is further recommended that the District Court provide a final discovery cutoff date for the limited purpose of completing the discovery addressed within this Report and Recommendation. Specific written objections to this Report and Recommendation may be served and filed within 14 days from the date that this order is served. FED. R. CIV. P. 72. Failure to file objections with the District Court within the specified time will result in a waiver of the right to appeal all findings, factual and legal, made by this Court in the Report and Recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995). Footnotes [1] As discussed in further detail below, the motion is unclear regarding what specific policies and procedures were requested beyond a request to produce for policies and procedures related to Ocwen's affirmative defenses. According to Ocwen, it only relies on its policies and procedures for its affirmative defense under the FDCPA. (Dkt. 155 at 6.) [2] Certain responses contain references to previously produced documents. (Dkt. 155 at Ex. D.) [3] Ocwen provided email documentation of a second attempt to send the audio file. (Dkt. 155 at Ex. H.) The record is unclear whether the plaintiff was eventually able to play the audio file. [4] Plaintiff points to October 14 and 30, 2014 letters it issued to Ocwen outlining discovery issues. (Dkt. 129 at Exs. C and D.) [5] As discussed above, Ocwen maintains that it only relies on policies and procedures in relation to its FDCPA affirmative defense. [6] It is also not clear whether the Rule 30(b)(6) policy and procedure topics are all relevant to the FDCPA affirmative defense. (Dkt. 129 at Ex. E.) [7] Unless otherwise noted, all deadlines recommended by this Court are with respect to the entry of an order by the District Court. [8] Plaintiff contends that it did narrow the search terms; however, the examples cited by plaintiff do not contain the clear search limitations for emails that plaintiff states she provided. (Dkt. 158 at 7.) [9] Ocwen's response does not identify when the email was located or when the email would be produced. [10] Contrary to plaintiff's argument that she was unable to listen to the phone recording, Ocwen's counsel provides email documentation that it circulated a new version of the file. (Dkt. 155 at Ex. H.) [11] Nationstar also answered plaintiff's amended complaint with the bona fide error affirmative defense. (Dkt. 101 at 41.) [12] As discussed in further detail below, plaintiff does not specify which specific policies and procedures should have been produced. [13] Nationstar objected “to the extent it seeks confidential and/or privileged information, including information protected by the attorney-client privilege, work product doctrine, or any other applicable privilege.” (Dkt. 154 at Ex. B p. 30.) [14] Based on the record before this Court, no trial date has been set at this time. [15] The notice of deposition was issued on October 14 with a deposition date of October 23. [16] Plaintiff opines that Pierce and Associates did not have the power to unilaterally cancel the deposition, but provides no support for its statement. It is illogical for plaintiff to claim that it does not matter whether counsel for a co-defendant in a case is available for a deposition. [17] Under Federal Rule 26(a)(1)(ii), parties must disclose a copy or description of documents it may use to support its claims or defenses. Therefore, Nationstar was not required to disclose any and all policies and procedures unrelated to its affirmative defenses.