ANTHONY AYALA, individually and on behalf of all those similarly situated, Plaintiff(s), v. U.S. XPRESS ENTERPRISES, INC., ET AL., Defendant(s) Case No. EDCV 16-137-GW (KKx) United States District Court, C.D. California Filed December 28, 2018 Counsel James Paul Kan, Goldstein Demchak Baller Borgen and Dardarian, Oakland, CA, Aashish Y. Desai, Desai Law Firm PC, Costa Mesa, CA, David Borgen, Laura L. Ho, Raymond A. Wendell, Goldstein Borgen Dardarian and Ho, James M. Sitkin, Law Offices of James M. Sitkin, Oakland, CA, Joshua S. Boyette, Pro Hac Vice, Justin L. Swidler, Pro Hac Vice, Richard S. Swartz, Pro Hac Vice, Swartz Swidler LLC, Cherry Hill, NJ, for Plaintiff(s). Christopher Chad McNatt, Jr., Scopelitis Garvin Light Hanson and Feary LLP, Pasadena, CA, Adam C. Smedstad, Scopelitis Garvin Light Hanson and Feary PC, Seattle, WA, Alaina Cathrine Hawley, James Anthony Eckhart, E Ashley Paynter, Pro Hac Vice, James H. Hanson, Pro Hac Vice, R. Jay Taylor, Jr., Pro Hac Vice, Scopelitis Garvin Light Hanson and Feary PC, Indianapolis, IN, for Defendant(s). Kato, Kenly K., United States Magistrate Judge ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SANCTIONS [DKT. 174]; (2) DENYING DEFENDANTS' EX PARTE APPLICATION TO STRIKE PLAINTIFF'S MOTION FOR SANCTIONS [DKT. 178] I. INTRODUCTION *1 On November 22, 2018, Plaintiff Anthony Ayala individually and on behalf of all those similarly situated (“Plaintiff”) filed a Motion for Sanctions against Defendants U.S. XPRESS ENTERPRISES, INC. and U.S. XPRESS, INC. (“Defendants”) seeking terminating, evidentiary, and monetary sanctions for Defendants' alleged discovery abuses. ECF Docket No. (“Dkt.”) 174. For the reasons discussed below, the Court GRANTS IN PART Plaintiff's motion for monetary sanctions and DENIES without prejudice Plaintiff's motion for evidentiary and terminating sanctions. On November 29, 2018, Defendants filed an Ex Parte Application to Strike Plaintiff's Motion for Sanctions (“Application to Strike”). Dkt. 178. For the reasons discussed below, Defendants' Application to Strike is DENIED. II. BACKGROUND On December 23, 2015, Plaintiff commenced this class action in San Bernardino County Superior Court. Dkt. 1-1. On January 22, 2016, Defendants removed the case to this Court on the basis of diversity jurisdiction. Dkt. 1. In the First Amended Complaint, Plaintiff asserts claims for violations of the California Labor Code and California Industrial Commission Wage Orders, including (1) failure to provide meal and rest periods in violation of Labor Code §§ 226.7 and 512, and Wage Order 9-2001 §§ 11, 12; (2) failure to compensate for all hours of work performed in violation of Labor Code §§ 221, 223, and 1194, and Wage Order 9-2001 ¶ 4; and (3) failure to provide itemized pay statements and/or maintain required wage/time records in violation of Labor Code §§ 226, and Wage Order 9-2201 ¶ 7-B. Dkt. 99, FAC. Plaintiff also alleges one claim for unfair competition in violation of California Business & Professions Code § 17200. Id. On July 27, 2017, the Court certified the following class: All truck drivers who are residents of California, who worked or work in California for Defendant after the completion of training at any time for four years from the filing of this legal action until there is a final disposition of this lawsuit. Dkt. 117. On August 3, 2017, the Court held a scheduling conference and set a discovery cut off of March 30, 2018 and a jury trial for July 10, 2018. Dkt. 119. On December 15, 2017, Plaintiff served a Fifth Set of Document Requests seeking, in relevant part, (a) training documents provided to class members “including but not limited to any orientation and/or training materials or videos;” (b) hours of service data; and (c) payroll data. Swidler Decl., ¶ 27, 128; Dkt. 161-2. On February 14, 2018, Defendants served responses to Plaintiff's Fifth Set of Document Requests. Dkt. 161-2. Defendants' response to Request 20, regarding training materials stated they “ha[d] produced the material in [their] possession, care, custody, or control.” Swidler Decl., ¶ 129; Dkt. 161-2 at 17. On February 26, 2018, the Court continued the discovery cut off to August 21, 2018 and the jury trial to December 4, 2018. Dkt. 129. On May 1, 2018, Defendants produced wage and load data for Plaintiff only (not the other class members). Swidler Decl., ¶ 60. On May 2, 2018, Plaintiff's counsel advised Defendants' counsel of the deficiencies in the wage and load data. Id. ¶ 61. *2 In May 2018, Defendants produced electronic records which they represented were the complete hours of service (“HOS”) records for all class members. Swidler Decl., ¶ 30. Plaintiff's expert reviewed the HOS records and determined there were many gaps. Id. ¶ 31. In June 2018, Defendants supplemented the HOS production. Id. ¶ 32. On June 7, 2018, Defendants produced wage and load data “for mediation only.” Swidler Decl., ¶ 70. On June 29, 2018, Plaintiff's counsel advised Defendants' counsel the wage and load data was incomplete, in that some types of pay were omitted, some class members were omitted, and parts of 2015 were entirely omitted. Id. ¶¶ 71, 73. On July 6, 2018, Defendants supplemented their responses to Plaintiff's Fifth Set of Document Requests withdrawing all objections for wage and load information and stating they had produced all information in their possession. Id. ¶ 75, Ex. 1-F; Paynter Decl., ¶ 15. Nevertheless, between July and November, Defendants made numerous additional supplemental and replacement productions to remedy gaps as they were identified. Swidler Decl., ¶¶ 79-90. On July 9, 2018, Plaintiff's counsel informed Defendants' counsel by email that the GPS and messaging data Defendants had produced appeared incomplete because approximately half of the truck IDs that appeared in the HOS records for the class members were missing from the GPS and messaging data. Id. ¶¶ 33, 34. In the parties' Joint Status Report filed with the Court on August 7, 2018, Defendants represented they “have attempted to respond to all gaps brought to Defendants' attention.” Dkt. 140 at 6. Nevertheless, in August 2018, because the HOS production was still incomplete, Defendants again supplemented the production with additional hours of service records. Swidler Decl., ¶ 32. On August 9, 2018, the Court continued the discovery cut off to October 23, 2018 and the jury trial to February 5, 2019. Dkt. 141. On August 14, 2018, in a Joint Status Report filed with the Court, Defendants stated “[w]ith the exception of the narrow category of GPS data internally stored by [Defendants], Defendants have completed their production of electronic information responsive to Plaintiffs' requests.” Dkt. 142. On August 16, 2018, the Court held a telephonic conference during which the Court ordered Defendants to produce the missing data and supplemental responses by September 7, 2018. Dkt. 143. On September 7, 2018, Defendants produced 59 tables, including various tables which had not been previously produced. Swidler Decl., ¶¶ 105-12. On October 22, 2018, Defendants produced additional training materials and four new data files, including detention and layover pay tables. Swidler Decl., ¶¶ 10, 163. On October 30, 2018, Defendants produced replacement and supplemental messaging data. Swidler Decl., ¶ 36. However, Plaintiff's expert determined there were still gaps in the messaging data because the truck IDs still did not match the HOS records. Id. On November 2, 2018, Defendants produced additional detention and layover pay tables. Swidler Decl., ¶ 176. On November 4, 2018, Defendants' counsel advised Plaintiff's counsel Defendant had just discovered the GPS and messaging records produced to that point included a substantial amount of irrelevant records regarding trucks that had not been in California. Paynter Decl., ¶ 27. *3 On November 13, 2018, Defendants' representative testified at deposition it was not the GPS and messaging data that was inaccurate, but rather the HOS records were unreliable because they contained incorrect truck ID numbers, which he realized for the first time on November 5, 2018. Swidler Decl., ¶¶ 37, 38; Crane Depo at 20:2-22:18, 24:16-25. Defendants' counsel believes this occurred because the DriverTech files as maintained by DriverTech did not consistently have Defendants' truck ID in the field where it belonged. Paynter Decl., ¶ 42. On November 16, 2018, Defendants produced (a) Resource History Data; (b) HOS data, which purports to have the corrected truck IDs for the class members; and (c) 379 training videos. Swidler Decl., ¶¶ 40, 130; Speakman Decl., ¶ 8. On November 19, 2018, Defendants replaced and supplemented all previously produced GPS and messaging data and produced 379 additional training videos. Swidler Decl., ¶¶ 123-27. On November 20, 2018, Defendants' representative testified in deposition the PREART file, which shows adjustments to pay including adjustments to mileage pay, employee advances, and pay for non-driving work, was improperly pulled, incomplete, and unreliable. Swidler Decl., ¶¶ 7, 90; Darymple Depo., 55:21-58:9, 101:3-101:19. On November 21, 2018, Defendants produced additional training videos. Swidler Decl., ¶ 139. On November 22, 2018, Plaintiff filed the instant Motion for Sanctions. Dkt. 174. On November 29, 2018, Defendants filed an Opposition. Dkts. 179, 180. On November 29, 2018, Defendants also filed an Ex Parte Application to Strike Plaintiff's Motion for Sanctions. Dkt. 178. On November 30, 2018, Plaintiff filed an Opposition to Defendants' Motion to Strike. Dkt. 181. On December 6, 2018, Plaintiff filed a Reply. Dkts. 187, 189. On December 6, 2018, the matter was referred to the undersigned Magistrate Judge. Dkt. 190. The matter is thus submitted and ready for decision. III. DISCUSSION A. DEFENDANTS' EX PARTE APPLICATION TO STRIKE PLAINTIFF'S MOTION FOR SANCTIONS IS DENIED As an initial matter, Defendants' Application to Strike is denied. Defendants argue Plaintiff failed to comply with the Local Rules regarding filing of discovery motions and the Motion for Sanctions was filed after the deadline for discovery motions. Dkt. 178. However, Local Rule 7-19.1 requires an attorney applying for ex parte relief “to advise the Court in writing and under oath of efforts to contact other counsel and whether any other counsel, after such advice, opposes the application.” L.R. 7-19.1. Here, there is no declaration from any attorney for Defendants attached to the Application to Strike. See Dkt. 178. Moreover, Defendants' argument, which is essentially that Plaintiff should not be permitted to file a motion arising from Defendants' belated production of discovery after the discovery cut-off, is disingenuous and not well taken. Hence, Defendants' Application to Strike is DENIED. B. PLAINTIFF HAS NOT ESTABLISHED DEFENDANTS DESTROYED MATERIAL EVIDENCE 1. Applicable Law Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)(Spoliation “refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.”). “Sanctions that a federal court may impose for spoliation include assessing attorney's fees and costs, giving the jury an adverse inference instruction, precluding evidence, or imposing the harsh, case-dispositive sanctions of dismissal or judgment.” Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997, 1008 (D.Ariz. 2011)(quotation and citation omitted); Apple Inc. v. Samsung Electronics Co., Ltd., 881 F.Supp.2d 1132, 1135 (N.D. Cal. 2012); In re Napster, 462 F.Supp.2d at 1066 (citations omitted). Montoya v. Orange Cty. Sheriff's Dep't, No. SACV 11-1922 JGB, 2013 WL 6705992, at *4 (C.D. Cal. Dec. 18, 2013). 2. Analysis *4 Here, Plaintiff argues Defendants destroyed the “Driver Information Table.” Dkt. 174-1 at 6-10. The Driver Information Table is a working document that is continuously updated and provides current information on every driver at any moment in time. It is undisputed that Defendants have not retained copies of the Driver Information Table for any moment in time throughout the litigation. Plaintiff argues Gail Manis' deposition testimony that the Driver Information Table is not preserved means that the driver's availability for dispatch data is destroyed. However, Ms. Manis' testimony is not clear[1] and it appears the information is available in the Resource History Data Table. Dkt. 174-5, Manis Depo. 671:4-672:25. Defendants have now produced the Resource History Data Table. Therefore, based on the information before the Court, it appears the information on the Driver Information Table was retained in a table that has now been produced to Plaintiff. Hence, without more information, the Court is unable to conclude any spoliation occurred.[2] C. DEFENDANTS ENGAGED IN DISCOVERY MISCONDUCT AND VIOLATED COURT ORDERS 1. Defendants Made Several Misrepresentations Regarding Discovery to Plaintiff and the Court As an initial matter, the Court finds Defendants made several significant misrepresentations regarding the availability of discovery to Plaintiff and the Court. First, on February 14, 2018, Defendants responded to Plaintiff's Fifth Set of Document Requests, Request No. 20, seeking training materials by stating they “ha[d] produced the material in [their] possession, care, custody, or control.” Swidler Decl., ¶ 129; Dkt. 161-2 at 17. However, Defendants produced additional training materials on October 22, 2018, 379 training videos on November 16, 2018, 379 additional training videos on November 19, 2018, and an unknown number of additional training videos on November 21, 2018. Swidler Decl., ¶¶ 10, 40, 130, 123-37, 139, 163. Defendants provide no explanation for why these training materials were not discovered or produced earlier. See Paynter Decl., ¶ 44. Second, on July 6, 2018, Defendants supplemented their responses to Plaintiff's Fifth Set of Document Requests withdrawing all objections for wage and load information and stating they had produced all information in their possession. Id. ¶ 75, Ex. 1-F; Paynter Decl., ¶ 15. Nevertheless, between July and November, Defendants made numerous additional supplemental and replacement productions to remedy gaps as they were identified.[3] Swidler Decl., ¶¶ 79-90. Finally, on August 14, 2018, in a Joint Status Report filed with the Court, Defendants stated “[w]ith the exception of the narrow category of GPS data internally stored by [Defendants], Defendants have completed their production of electronic information responsive to Plaintiffs' requests.” Dkt. 142. However, in numerous productions throughout October and November 2018, Defendants continued to produce documents that were responsive to requests served well before August 14, 2018 that went well beyond the “narrow category of GPS data.” *5 As a result of these clear misrepresentations, Plaintiff's discovery plan was reasonably altered. 2. Defendants Violated the Court's Order Setting the Discovery Cut-Off On August 3, 2017, the Court held a scheduling conference and set a discovery cut-off of March 30, 2018 and a jury trial for July 10, 2018. Dkt. 119. After several continuances, on August 9, 2018, the Court continued the discovery cut-off to October 23, 2018 and the jury trial to February 5, 2019. Dkt. 141. Nevertheless, Defendants identified and produced responsive documents for the first time well after the discovery cut-off, such as the Resource History Data Table and numerous training videos. Swidler Decl., ¶¶ 40, 130; Speakman Decl., ¶ 8. Hence, Defendants violated the Court's Order setting the discovery cut-off. 3. Defendants Violated the Court's August 16, 2018 Order On August 16, 2018, the Court held a telephonic conference during which the Court ordered Defendants to produce the missing data and supplemental responses by September 7, 2018. Dkt. 143. However, in numerous productions throughout October and November 2018, Defendants continued to produce documents that were responsive to requests served well before August 16, 2018 and that should have been produced no later than September 7, 2018. For example, in addition to the numerous training materials produced after September 7, 2018, on October 22, 2018, Defendants produced four new data files, including detention and layover pay tables, which were clearly responsive to several requests in Plaintiff's Fifth Set of Requests for Production, including for example Nos. 5, 22, 23, and 25. Swidler Decl., ¶¶ 10, 163; Dkt. 161-2. Moreover, even if the Court's August 16, 2018 Order could be construed as only referring to the GPS data that Defendants had represented to the Court had not yet been produced, the GPS data was not fully supplemented until November 19, 2018. Swidler Decl., ¶¶ 123-27. Hence, Defendants violated the Court's August 16, 2018 Order. D. PLAINTIFF'S REQUEST FOR TERMINATING SANCTIONS IS DENIED WITHOUT PREJUDICE 1. Relevant Law Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure authorizes the sanction of dismissal against parties who disobey a court's discovery orders. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981). To justify the imposition of case-dispositive sanctions, the Court must find that the discovery violations were due to “willfulness, bad faith, or fault of the party.” Commodity Futures Trading Commission v. Noble Metals International, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815, 117 S. Ct. 64, 136 L. Ed. 2d 26 (1996) (citations and internal quotations omitted); see also Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958). Disobedient conduct not outside the control of the litigant is all that is required to demonstrate willfulness, bad faith or fault. Henry v. Gill Industries, Inc., 983 F.2d 943, 948-49 (9th Cir. 1993). In evaluating the propriety of sanctions, the Court considers “all incidents of a party's misconduct.” Adriana International Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1019, 112 L. Ed. 2d 1100 (1991) (citation omitted). *6 Courts apply a five-part test to determine whether a case-dispositive sanction is just: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions. This “test” is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow. Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citations omitted) (affirming default judgment against defendants after “years of evasion of discovery obligations”). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction. Thus, the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). 2. Analysis First, Plaintiff argues Defendants' failure to preserve a Driver Information Worksheet constitutes spoliation and warrants striking Defendants' pleadings. However, as discussed above, Plaintiff has not established Defendants destroyed material evidence. Plaintiff also argues Defendants' discovery abuses warrant striking Defendants' pleadings. While it is clear Defendants blatantly failed to make any reasonable efforts to timely comply with discovery requests or to comply with the Court's Orders regarding discovery, Defendants have not wholly failed to cooperate in discovery. Further, the Court has not had an opportunity to determine whether less drastic sanctions such as monetary sanctions would be effective. It is therefore unclear whether Plaintiff will be irreparably prejudiced or whether less drastic sanctions may yet be effective. See Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011)(finding a defendant's repeated failure to respond to discovery may prejudice a plaintiff because it makes it “impossible for [p]laintiff to adequately prepare itself for trial”); see also Wanderer, 910 F.2d at 656(affirming default judgment against defendants where defendants' failure to appear at depositions, compounded by “repeated noncompliance with court orders to produce documents,” prejudiced “plaintiffs' ability to prove the claims and to obtain a decision in the case”). Thus, at this point in the case, application of the above factors weighs slightly against terminating sanctions. Accordingly, Plaintiff's request for terminating sanctions is DENIED without prejudice. E. PLAINTIFF'S REQUEST FOR EVIDENTIARY SANCTIONS IS DENIED WITHOUT PREJUDICE 1. Relevant Law When a party fails to obey an order to provide or permit discovery, Federal Rule of Civil Procedure 37(b)(2)(A)(I) permits courts to issue an order “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.” Fed. R. Civ. P. 37(b)(2)(A)(I). 2. Plaintiff's Requests *7 Plaintiff requests an order making a number of evidentiary sanctions to preclude Defendants from providing evidence at trial disputing any of the following: 1. Class Members working for USX were on-call or working at all times when they were over-the-road for USX, except when records demonstrate that they were on home-time or were otherwise on leave from work. 2. Class Members working for USX were required to remain with their truck to provide security for USX's tractor and the load except for times that Class Member sent a Macro 39 in the Messaging Data. 3. The authentication or foundation of any post-September 7 USX-produced document which Plaintiff introduces at trial. 4. Dr. Speakman's estimates of when a Class Member is in California unless it is directly contradicted by the Positional History Information, including where such information is produced in the Hours of Service Data. 5. The only payments that Defendants paid to Class Members for work performed are payments documented in USXA479548 and USXA479550. 6. Class Members were not paid for any time other than when the Class Member was driving. 7. Drivers were informed not to take more breaks than DOT mandated. 8. Defendants have substantial operations in California. See Dkt. 174-1 at 25-28. Plaintiff further requests the following adverse inference instructions at trial: 1. Defendants intentionally withheld relevant information relating to their payment to drivers and work performed by drivers and that by withholding such information, Defendants made it more difficult for Plaintiff and the Class to provide precise damages calculations. 2. Defendants intentionally withheld relevant information relating to policies and procedures that tended to show that drivers were required to remain with the truck and remain on-call when they were over-the-road. 3. Defendants destroyed information necessary for Plaintiff to show when drivers were on-call, and the jury should infer from such destruction that Defendant was seeking to reduce the amount of time it would have to pay drivers for in this lawsuit. Id. at 28-29. 3. Analysis First, the evidentiary sanctions requested are tantamount to terminating sanctions that the Court does not find warranted at this stage. Second, it appears Plaintiff has not had enough time to process the data produced to determine specifically what evidentiary sanctions might be necessary, if any. Moreover, it remains unclear whether (1) any information exists that still has not been produced or (2) whether due to Defendants' abysmal attempts at producing filtered tables (rather than the tables in their entirety), Defendants have so altered the data as to make it unusable. Hence, the prejudice from the late production may yet be remedied. Therefore, and for the reasons set forth above in section III.C., Plaintiff's request for evidentiary sanctions is DENIED without prejudice. Further, as detailed below in section IV, the Court will reopen discovery to permit Plaintiff to conduct limited discovery as necessary. F. PLAINTIFF'S REQUEST FOR MONETARY SANCTIONS IS GRANTED IN PART 1. Relevant Law When a party fails to obey an order to provide or permit discovery, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). “[A]n 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). 2. Analysis *8 Here, Defendants' repeated failure to adequately search their own records and produce usable electronic data resulted in the belated production of a huge amount of data just before and after the discovery cut-off that Plaintiff and Plaintiff's experts must now wade through, despite Plaintiff's timely request for the information a year before the discovery cut-off. The numerous “supplemental” productions attempting to “fix gaps” in the productions appear to have been the result of Defendants' failure to either spot check their own productions or produce the raw data in its entirety reasonably resulted in substantial unnecessary work for Plaintiff's damages expert and resulted in Plaintiff having to hire an ESI consultant. Defendants' discovery conduct, discussed above in Section III.C, particularly including the blatant disregard of the Court's August 16, 2018 Order, was not substantially justified and there are no circumstances making an award of expenses unjust. See Fed. R. Civ. P. 37(b)(2)(C). Hence, pursuant to Rule 37(b)(2)(C), the Court finds an award to Plaintiff of the reasonable expenses resulting from Defendants' discovery misconduct is warranted. Plaintiffs seek reimbursement for (a) 90% of the past cost of Plaintiff's damages expert, Dr. Speakman, totaling $147,265; (b) 100% of the cost of Plaintiff's ESI consultant, Jonathan Swerdloff, totaling $4,177.80; (c) 75% of the future cost of Dr. Speakman; (d) up to 400 hours of attorney time relating to Defendants' discovery misconduct, including a 6-day 30(b)(6) deposition, writing the instant motion, seeking ex parte relief, filing a motion to compel, and engaging in meet and confer conferences. Dkt. 174-1 at 20-22. Notably, Defendants do not dispute that much of the work of Plaintiff's expert was unnecessary. In fact, Defendants admit the detention and layover pay tables, which should have been produced as early as February 2018, but no later than September 7, 2018, are a “more efficient” way to get the information about where drivers were located when they earned detention and layover pay. Dkt. 179 at 44-45. Without those tables, Plaintiff's expert had to “extrapolate” that information from the materials produced earlier, which were incomplete or inaccurate. Id. Therefore, the Court finds Plaintiff's request for (a) past expert fees and (b) attorney's fees incurred in preparing the instant Motion is reasonable. However, the Court finds the declarations of Dr. Speakman and Mr. Swerdloff are insufficient to establish the amount of fees attributable to Defendants' misconduct. While the Court finds Dr. Speakman's hourly rate of $545 is reasonable, without a description of how Dr. Speakman's time was spent, this Court is not able to determine whether Dr. Speakman's estimate that only 10% of his work continues to be relevant is reasonable. Therefore, the Court will permit Plaintiff to submit supplemental declarations as set forth below. In addition, because Plaintiff's expert would have been required to interpret the large amount of data that has now been produced even if it had been produced earlier, the Court denies Plaintiff's request for 75% of Dr. Speakman's future fees. IV. ORDER IT IS THEREFORE ORDERED: 1. Defendants' Application to Strike is DENIED. 2. Plaintiff's Motion for Sanctions is GRANTED IN PART and DENIED IN PART as set forth above. 3. On or before January 4, 2019, Plaintiff's counsel may file a declaration regarding the amount of attorney's fees reasonably incurred in preparing the Motion for Sanctions as well as supplemental declarations from Dr. Speakman and Mr. Swerdloff attaching detailed billing records. Defendants may file objections to the declarations on or before January 9, 2019. 3. On or before January 10, 2019, Plaintiff may file a Supplemental Brief not to exceed 5 pages listing specific additional discovery that can be reasonably completed within 60 days along with a short description identifying the belatedly produced evidence that makes each item of additional discovery necessary. On or before January 14, 2019, Defendants may file an Opposition, or notice of non-opposition, not to exceed 5 pages. The Court will consider each request and reopen discovery for each item it deems appropriate. [1] Plaintiff's counsel attempted to have Ms. Manis agree with him that the Resource History Data Table is “not a complete recounting of what was in the driver information” table and “there's no way USX can adequately recover the data that they rewrote upon”, but the questions were ambiguous as phrased and Ms. Manis' answers are not straightforward. Dkt. 174-5, Manis Depo 834:21-24. [2] The Court understands it is unlikely Plaintiff's expert would have had sufficient time before Plaintiff filed the instant Motion for Sanctions to examine the Resource History Data Table in order to determine for himself whether it was possible to determine the historical availability of drivers from this new table. [3] The disconnect between Defendants' counsel's representations in her declaration that most of the information Plaintiff seeks had been produced by July 2018 and the reality that the tables produced were inadequate appears to be a result of Defendants' apparent inability to accurately filter date to only produce information about Class Members. Defendants provide no excuse for their failure to review the production to ensure it was usable after they altered the original information.