The relief requested in Sections I(B) (spoliation sanctions against Davenport for missing emails) and III (Fed. R. Civ. P. 37(c)(1)(B) sanction of informing the jury of AmSpec's failure to provide forensic images of AmSpec's computers) of Saybolt and Bartlett's joint motion, and the relief requested in their joint supplement of “making the jury aware of Freeman's failure to amend his interrogatory answers” (Doc. 228), are due to be found MOOT because the Court has since granted summary judgment in favor of the Defendants on all of Saybolt's claims (see Doc. 302), and such relief was only relevant to those claims.

In Section I(A) of their joint motion, Saybolt and Bartlett request an “adverse inference” jury instruction sanction against AmSpec for its purported failure to produce the employment agreement with Bartlett that is the basis for its counterclaims. This relief is due to be DENIED. As AmSpec correctly points out, it attached the employment agreement, dated March 23, 2016, as an exhibit to its counterclaims (see Doc. 56-1). Saybolt and Bartlett claim that this could not possibly be the subject employment agreement because “Bartlett did not begin his employment at AmSpec on or about March 23, 2016. He signed a separate agreement when he did begin his work at AmSpec months later ...” (Doc. 192 at 5 (quotation omitted) ). At most, Saybolt and Bartlett's assertions goes to the enforceability of the March 23, 2016 agreement,[2] as their arguments on the issue in their reply make clear. (See Doc. 233 at 5–6).[3]

*2 In Section II(A) of their joint motion, Saybolt and Bartlett claim that one of AmSpec's witnesses designated under Federal Rule of Civil Procedure 30(b)(6) was unprepared to testify on certain noticed topics, and that “Saybolt and Bartlett should be reimbursed for the time and expense they incurred in preparing for and taking the depositions of the unprepared corporate representative witnesses.” (Doc. 192 at 14). Under Federal Rule of Civil Procedure 37(d)(1)(A)(i), the Court “may, on motion, order sanctions if ... a person designated under Rule 30(b)(6) ... fails, after being served with proper notice, to appear for that person's deposition ...” This Court and others have recognized that presenting a Rule 30(b)(6) witness who is unprepared to discuss noticed topics for which that witness has been designated is the functional equivalent of that witness's failure to appear for deposition as to those topics.[4] Even assuming, without deciding, that AmSpec's witness was substantially unprepared to discuss a designated topic, however (as opposed to simply not answering Saybolt and Bartlett's questions to their satisfaction), any motion for sanctions under Rule 37(d)“must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Fed. R. Civ. P. 37(d)(1)(B). Saybolt and Bartlett's joint motion makes no such certification. Accordingly, the relief sought in Section II(A) is due to be DENIED.[5]

In Section II(B) of their joint motion, Saybolt and Bartlett claim that AmSpec reneged on a promise to produce certain invoices “by August 17, 2017, the week before depositions of fact witnesses were to begin in this case.” (Doc. 192 at 15). Because, per Saybolt, “it has not had the opportunity to depose any witnesses with [the invoices], and has incurred the fees and costs in preparing for and taking 13 depositions without this critical evidence[,] ... Saybolt asks to be reimbursed for its time and expense incurred by AmSpec's failure to comply with its discovery obligations.” (Id. at 15–16). However, Saybolt never moved to compel production of the invoices, sought to continue or reconvene the depositions, or in any way attempted to alert the Court of this issue in the two months between the purportedly missed production deadline and the October 16, 2017 discovery cutoff (see Doc. 140 at 2). Saybolt has failed to convince the undersigned that the invoices were such “critical evidence” that monetary sanctions should now be imposed against AmSpec for failure to produce them. Accordingly, the relief requested in Section II(B) is due to be DENIED. As such, AmSpec's motion for leave to file a sur-reply (Doc. 235) is due to be DENIED as moot, as the proposed sur-reply only provides additional argument directed at the relief requested in Section II(B).

*3 Saybolt and Bartlett further request that the Court “strik[e] the erroneous statements made by Defendants in ECF No. 190 ...” (Doc. 228 at 12). However, they do not make clear what practical effect any such relief, assuming it is warranted, would have in this case. To the extent they are requesting sanctions for false representations in a court filing under Federal Rule of Civil Procedure 11, the request is deficient for at least two reasons: (1) a motion for Rule 11 sanctions must be “made separately from any other motion[,]” Fed. R. Civ. P. 11(c)(2), not, as here, as part of a motion requesting sanctions under a variety of sources; and (2) there is no indication that Saybolt and Bartlett complied with the “safe harbor” provisions of Rule 11(c)(2). Accordingly, the request to strike made in the joint supplement (Doc. 228) is due to be DENIED.

Finally, in Section I(C) of their joint motion, Saybolt and Bartlett request an “adverse inference” jury instruction as a spoliation sanction against AmSpec for its purported failure to take steps to preserve emails from prospective witness Russell Bujol. AmSpec filed its initial counterclaim for breach of Bartlett's non-solicitation agreement, which did not expressly name Bujol, on December 9, 2016. (Doc. 46). AmSpec filed its amended counterclaim on January 19, 2017, which specifically identified Bujol as the AmSpec employee that Bartlett was alleged counterclaim to have solicited. (SeeDoc. 56 at 6). However, at his September 28, 2017 deposition, Bujol testified that he was only made aware of this lawsuit approximately 2 months before the deposition. (See Doc. 192-7 at 2). He also admitted that he had not searched his emails or text messages for material responsive to Saybolt's discovery requests, and that it was his custom to delete emails and text messages that were over a week old. (See id. at 2–4). “Bartlett's defense to AmSpec's counterclaim is that Mr. Bujol came to Saybolt inquiring about a job.” (Doc. 192 at 9). Saybolt and Bartlett claim that AmSpec's failure to have Bujol preserve his emails and text messages have deprived them of “communications about searching for a job at Saybolt, or about [Bujol's interactions with Bartlett,” which “are central to Bartlett's and Saybolt's defenses.” (Id. at 10).

In response, AmSpec asserts that Saybolt and Bartlett's position is a “red herring” because AmSpec produced emails from Bujol retained on its servers. AmSpec's response, however, is somewhat misleading, in that the emails AmSpec cites were produced in response to the Court's orders granting Saybolt's motion to compel emails relevant to Saybolt's claims for tortious interference with its business relationship with Chevron. Compare(Doc. 229 at 4–8) with (Docs. 109, 129). The time range for those emails was expressly limited “to the time period between Defendant Bobby Davenport's retirement from the Plaintiffs in June 2015 (since AmSpec's plot against the Plaintiffs allegedly began with hiring Davenport to recruit other of Plaintiffs' employees) and October 7, 2016, the date the Plaintiffs initiated this action.” (Doc. 109 at 6). As the Court's order on the cross-motions for summary judgment on AmSpec's counterclaims indicates, Bujol reportedly first reached out to Bartlett in October 2016, with Bujol subsequently meeting with Bartlett and other Saybolt employees. (See Doc. 300 at 9). In support of their motion for summary judgment on AmSpec's counterclaims, Saybolt and Bartlett filed text messages from October 11 and 17, 2016 between Bartlett and Bujol attempting to set up a meeting between Bujol and Saybolt employees. (Doc. 203-2 at 14–17). AmSpec fails to explain why Bujol, an AmSpec employee, was not directed to preserve his emails and texts in anticipation of AmSpec's counterclaims.

*4 Nevertheless, the undersigned finds that Saybolt and Bartlett have failed to demonstrate that Bujol's emails and/or text messages are irretrievably lost. Despite learning of Bujol's admitted failure to search his emails and texts for responsive information on September 28, 2017, over two weeks before the October 16, 2017 discovery cutoff, there is no indication that Saybolt and Bartlett made any attempt to ascertain whether the emails and/or texts were still retrievable in spite of Bujol's deletions. There is no indication Saybolt and Bartlett raised its concerns about Bujol's emails and texts with AmSpec prior to the instant motion, nor did they ever move to compel AmSpec to produce any of the purportedly missing emails and texts prior to close of discovery. Given that Saybolt and Bartlett failed to make any attempt to inquire further into Bujol's electronic communications until after close of discovery, the undersigned is not convinced that the evidence was sufficiently important, or that Saybolt and/or Bartlett was sufficiently prejudiced by being deprived of that evidence, to warrant spoliation sanctions.[6]

In accordance with the foregoing analysis, Saybolt and Bartlett's Joint Motion for Sanctions (Doc. 192), as supplemented (Doc. 228), is DENIED in part and MOOT in part, and AmSpec's motion for leave to file a sur-reply (Doc. 235) is DENIED as moot.

DONE and ORDERED this the 25th day of July 2018.