*1 Defendant, Capital Premium Financing, Inc., has filed a second motion before Judge Lee, seeking imposition of discovery sanctions for claimed violations by BankDirect Capital Finance, LLC and Texas Capital Bank. (collectively “BDTCB”). The Motion asked the court to dismiss BankDirect's claims and enter a default judgment against BankDirect and in favor of Capital Premium on Capital Premium's claims. In the alternative, Capital Premium asks for a mandatory adverse inference against BankDirect and Texas Capital Bank, and for the two to complete their discovery obligations under the supervision of a third party at their own expense. BDTCB's response to the motion insists that none of the claimed discovery violations or the claimed violations of court orders are BDTCB's fault. Consequently, they argue, imposition of sanctions would not be appropriate. Judge Lee has sent the motion here for a Report and Recommendation.

In the view of BDTCB, all they wanted was for the plaintiff to pay the $400 filing fee, file the 40-page Complaint (with 750 pages of exhibits) against a former business partner, Capital Premium, and, if everything went smoothly, take it over. [Dkt. # 1]. But things seldom go as we would like. Especially in complex litigation. They certainly did not here. Right off the bat, the Complaint was dismissed for lack of jurisdiction. [Dkt. #8]. An unfortunate beginning that ultimately was repaired. [Dkt. #89]. Actually, four versions of the Complaint were required. [Dkt. ##1, 9, 40, 160]. But then Capital Premium filed a Counterclaim (two more versions would ultimately be filed). [Dkt. #27]. So now, BankDirect is not just a plaintiff, but a defendant, as well.

In a case that eventually needed seven sets of pleadings, it ought to come as no surprise that a substantial effort was involved in working out a discovery schedule, and even more was required to get discovery rolling. [Dkt # 62, 64, 71, 142]. Capital Premium had difficulties handling e-discovery and asked for an extension, which was unsuccessfully opposed, and the extension was granted. [Dkt. ##68, 71, 72]. BankDirect's motion for partial summary judgment was denied. [Dkt. # 78]. Capital Premium moved for a preliminary injunction, which it won. [Dkt. ##89, 164]. Capital Premium filed its own motion for summary judgment, and although it was stricken, BDTCB nonetheless had to go through the substantial effort of briefing it. [Dkt. #201]. And, as it is alleged in the response to Capital Premium's sanctions motion, briefing is time-consuming. [Dkt. # 328, at 7-8]. But it is for everyone involved in modern, complex litigation.

All along, BDTCB laments it had to participate in time consuming discovery.[1] Not surprisingly, it was “arduous” [Dkt. # 328, at 1] – and expensive. Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc., 900 F.3d 884, 891 (7th Cir. 2018); Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001). But it always is. It is “the bane of modern federal litigation.” Rossetto v. Pabst Brewing Co., Inc., 217 F.3d 539, 542 (7th Cir. 2000). Sadly, pre-trial discovery under modern federal practice has become a monster on the loose; “[p]re-trial proceedings have become more costly and important than trials themselves.’ ” A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986). See also Bond v. Utreras, 585 F.3d 1061, 1067 (7th Cir. 2009); Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998). That seems to be the case here. In any event, it is not a legitimate excuse for what has occurred in this case.

*2 Not surprisingly, the judge and the magistrate judge insisted, among other things, that there be compliance with Local Rule 37.2 and that conferences over discovery disputes be conducted in “good faith.” [Dkt. # 328, at 14] – precisely as common sense and every relevant discovery case ever decided requires. [Dkt. #328]. Of course, to use the plaintiff's words, discovery required “agonizing persistence.” [Dkt. # 328, at 5]. Parties more often than not have to put up with “granular inquiries” from opponents. [Dkt. # 5]. The plaintiff claims to be a good deal more focused than the defendant – “painstaking[ ]” is the word they use – than the defendant. But that claim is simply not persuasive. Nor is the claim that BDTCB's supposed punctiliousness has resulted in their not having produced as many documents as would otherwise be required. [Dkt. #328, at 5, 8].

Also, BDTCB insists that while they were trying to keep up with discovery, they had to do “extensive briefing” in motion practice, including defending against their opponent's first sanctions motion, which, they contend, unfairly targeted them for mere technical problems in discovery that it is claimed could not be helped. [Dkt. #328, at 7-8]. Given all that, BDTCB insists they ought not be blamed for any “shortcomings” [Dkt. # 328, at 1] – or for “imperfections, mistakes and delays” [Dkt. # 328, at 1] – or for “unfortunate oversight[s]” [Dkt. # 328, at 10], “technical problems” [Dkt. # 328, at 7], or “deficiencies.” [Dkt. # 328, at 12]. BDTCB insists it should not be blamed for TCB's CEO failure to suspend automatic deletion of years' worth of seemingly relevant emails. After all, the President of the Bank was not concerned about it because, as he claimed, quite unconvincingly, he didn't think “there would[ ] have been any emails that were problematic during that period of time....” [Dkt. # 229, at 9-10]. Is it BDTCB's fault that BankDirect's IT department can't input the right dates into a document search or doesn't know how to use quotations marks in a search? [Dkt. # 328, at 7]. Ignored is the fact that BDTCB, during the course of this case, was represented by respected and significant law firms that proudly boast to having a national reputation and a national clientele.

As far as BDTCB is concerned, Capital Premium's recent motion is, “excessive”, “drastic”, “unfair[ ]”, “overstate[d]”, and “histrionic[ ].” [Dkt. # 328, at 1, 8, 12]. It is, BDTCB insists, even more contrived and unfair than the first one Capital Premium filed, which we resolved against BDTCB.[2] Judge Lee has sent the matter here for another Report and Recommendation.

ARGUMENT

On April 4, 2018, I entered a Report and Recommendation on Capital Premium's motion for sanctions due to claimed spoliation of evidence. While Capital Premium asked for default judgment, I stopped short of recommending that measure and recommended other alternatives. [Dkt. #229]. See BankDirect Capital Fin., LLC, 2018 WL 1616725, at *2. While Capital Premium filed an objection, it only took issue with the ultimate recommendation. [Dkt. #234]. Both the Report and Recommendation – which, contrary to Capital Premium's characterizations, is not an Order and could not have imposed any sanctions as it is a nullity until de novo review, 28 U.S.C. ¶ 636(b)(1)(B); Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 869 (7th Cir. 1996) – and Capital Premium's objections are pending before Judge Lee. In this second Report and Recommendation, I address only what has gone on while the first Report and Recommendation has been pending.[3]

A.

*3 The first Report and Recommendation regarding sanctions due to claimed spoliation of evidence by the plaintiff was entered April 4th of this year. Around the same time, an ongoing – long ongoing – dispute between the parties over Capital Premium's Second Set of Document Requests was finally coming to a head. Among the sticking points were Requests 8 and 9, which BDTCB had been all but ignoring since Capital Premium served them on August 22, 2017. The Order that I entered concluded that dispute and provided the details of BDTCB's recalcitrance. [Dkt. #271]. Those details need not be revisited at length here. Suffice it to say that BDTCB missed multiple deadlines, engaged in its own private stay of discovery, lied to opposing counsel, and made representations to the court that were difficult to believe. They were ordered to produce the documents at issue by August 10, 2018. Notably, BDTCB never objected to that Order detailing its discovery violations as being clearly erroneous under 28 U.S.C. ¶ 636(b)(1)(A); Fed.R.Civ.P. 72(a). BDTCB does, however, congratulate itself on producing the documents at issue by the August 10th deadline, and thereby not violating a court Order. [Dkt. #328, at 8]. But this was a year after the initial discovery request.

Then there was the odyssey BDTCB took Capital Premium and the court on regarding an August 2017 discovery request for communications BankDirect had with certain insurance agencies. It is depicted in greater detail in yet another discovery Order issued in August 2018 [Dkt. # 271], so the details need only be briefly discussed here. See BankDirect Capital Fin., LLC, 326 F.R.D. 171. The parties haggled for a couple of months until, in November 2017, Capital Premium provided BankDirect with a pared down list of insurance agencies. But, rather than getting the list to their client so a search could begin, BankDirect's counsel inexplicably held onto the list for three weeks, filed a motion to stay discovery and, while it was pending, instituted their own private stay of discovery.[4] When Judge Lee denied the motion for a stay in January 2018, BankDirect finally promised to produce the communications within 21 days. BankDirect then essentially ignored that deadline and promised to provide the communication by March 12th and then March 19th. On March 21st, however, counsel for BankDirect astonishingly informed Capital Premium that BankDirect wouldn't be producing anything. After nearly a year of recalcitrance and delay, a court Order was necessary to hold BankDirect to its word and to its discovery obligations. [Dkt. #271].

Beyond that, and also since the April 4th Report and Recommendation, I twice ordered BDTCB to produce responsive required materials: the first time was on May 8th. [Dkt. #241] (“Plaintiff is to produce by May 18 the agreed upon documents from Capital's second set of document requests”). And the second Order was on May 24th, when BDTCB missed the May 18th deadline. [Dkt. #252]. That Order stated: “Telephonic discovery conference held. It was reported to me that BankDirect has still not produced documents it was obligated to produced by May 18, 2018 .... The request of BankDirect's lawyer for additional time to produce materials that had been ordered produced by May 18 is granted but only until June 6, the date by which production must be made. No objections to production of the overdue documents will be entertained.”

For some reason, BDTCB is of the opinion that it is a mischaracterization to say that they did not comply with the discovery Orders because they came after a lengthy process of addressing BDTCB's objections and multiple court interventions. [Dkt. #328, at 6]. But, by May 2018, the time had long since passed for BDTCB to produce the pertinent documents or, at the very least, start searching for them. More importantly, the fact that the initial discovery request had to be pared down is no excuse to ignore court ordered deadlines that issue once that paring is completed.

*4 When one looks at the repeated and numerous excuses that BDTCB has given for its chronic and repeated failures in discovery in this case, one is struck by the sheer number of the omissions and stalls that have continually occurred. Of course, discovery is difficult and from time to time the constraints imposed on one party or another – or sometimes both – are rigorous. That is simply the nature of the mechanism that Congress has chosen to replace the so-called “sporting theory of justice.”[5]

Court-ordered deadlines aside, BDTCB had promised to produce the documents by April 27th, and when it couldn't manage that, by May 4th. It didn't fulfill either of those promises, and, in reality, it didn't even run a search until April 26th. [Dkt. #282-3]. According to a letter from BDTCB's counsel to counsel for Capital Premium, the whole process proved to be “cumbersome” and took over a month and, seemingly, ten tries. At one point, in early May 2018, the client's IT department limited the search to the wrong time period. The next time the client tried wasn't until May 31, 2018, at which point it purportedly used quotation marks as an item to search rather than employing them as a search logic marker. [Dkt. ##282-3, 328, at 7].

Electronic searches, of course, are only as accurate as the individuals creating and performing them are knowledgeable and careful. Such searches are, without a doubt, beyond the ken of many. But, BankDirect tells us it is one of the top commercial insurance premium finance companies in the nation. [Dkt. # 160, ¶ . 23]. Yet it also tells us that its IT department could not properly employ quotation marks in a search or input the proper dates due to its technological limitations. [Dkt. #328, at 2]. But if one is an IT expert, one's limitations in this arena should be apparent and known. This is especially the case where the gaffs occurred in the wake of BankDirect's owner and co-counterdefendant, TCB, being found to have destroyed years of emails, supposedly because of ineptitude. [Dkt. # 229, at 9-10]. That ought to have put counsel and client on their most careful behavior, but it clearly didn't.

When the June 6th deadline came, BDTCB produced just three documents. The reason for the paltry production – apparently – was that, after all that, the parties had become embroiled in a dispute within a discovery dispute within a dispute over what search terms BDTCB ought to have applied. [Dkt. #254]. There were no documents from TCB. [Dkt. ##328, at 9; 334, at 2]. The parties were ordered to meet and confer and to attempt in good faith to resolve the dispute by June 25th.

On June 6th, BDTCB wrote a letter summarizing their efforts to comply with outstanding discovery requests and results of those efforts. Among other things, the letter assured Capital Premium that BDTCB had failed to locate any documents responsive to requests 6, 40, and 42. [Dkt. #282-4]. But, after that letter – and more importantly, after the court ordered the June 6th deadline – BDTCB produced a trickle of documents responsive to all three requests. [Dkt. ##281-2, 281-7, 281-9, 281-10, 281-11]. Remarkably, as of July 27th, a letter from BDTCB's counsel to Capital Premium's counsel indicated that, over a month and a half after the June 6th deadline, documents were still being collected and searched [Dkt. #282-12], as though no court Order or deadlines ever existed. TCB, for its part, tells us in the response brief to the sanctions motion that it will finally produce documents – responsive to an August 2017 request – by October 29, 2018. That's just two weeks before the close of fact discovery. Again, slow starts and slow processes yielded bad results.

*5 But, slow and late is the BDTCB way in this case. Just a couple of months ago, in August 2018, BDTCB was still producing documents in response to Capital Premium's first set of document requests which were served in February 2017; documents that were due to be produced in March 2017. Among this trickle of discovery were documents that, at a glance, were clearly relevant to this case and responsive to Capital Premium's request. [Dkt. ##281-3-281-6]. For example, the late production includes documents such as a presentation BankDirect put together for Capital Premium during the parties' negotiations that describes the essence of their deal – the deal that this case is all about. [Dkt. ##281-3-281-5]. The production also included documents detailing BankDirect's thoughts during negotiations [Dkt. #281-6], and documents pertaining to BankDirect's analysis of Capital Direct's performance during the term of the agreement. [Dkt. #281-8]. How such materials were withheld from discovery for nearly a year and a half is unfathomable. BDTCB doesn't have much of an explanation, saying only that they were withheld based on “initial, good-faith view that these documents were unresponsive.” “Unfortunately ... saying so ... doesn't make it so.” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010). Then, miraculously, they were produced seventeen months late when BDTCB alleges it “retraced its steps for thoroughness.” [Dkt. # 328, at 9-10].

Then there are the emails from TCB's CEO. As already noted, he is the one who claimed in essence he didn't understand how to institute a litigation hold or how his own company's automatic deletion protocol worked or even the period of time that it covered. Any errors, he claimed were the result of his good faith misunderstandings. A quarter of his emails were produced in August 2018 – again, slow and late. Capital Premium points out that the production raised some questions about BDTCB's search methods (again). For example, two emails that the CEO forwarded to his home account from his TCB account were included in his personal account production, but not his TCB account production. BDTCB writes this off as the result of “reasonable limitations” in the company's (alleged) technical ability. [Dkt. #329, at 11]. So, if one blindly accepts all that BDTCB says, its position is there should be no sanctions because BDTCB is just really inept at discovery. (They conveniently ignore the absurdity of the claim to say nothing of being represented by two major and enormously experienced law firms) They did, they say, the best they could; that apparently is the ultimate claim against the imposition of the sanctions that the defendant seeks.

B.

Given all this, sanctions are clearly appropriate. But, judges must tailor sanctions to the severity of a party's misconduct. Nelson v. Schultz, 878 F.3d 236, 238–39 (7th Cir. 2017); Langley by Langley v. Union Elec. Co., 107 F.3d 510, 515 (7th Cir. 1997). The harshest sanction, of course, is dismissal/default judgment, which is exactly what Capital Premium wants. I stopped short of recommending the harsher sanctions Capital Premium wanted the last time BDTCB's misconduct was brought to the court's attention. It remains to be seen what Judge Lee will do; as already noted, Capital Premium has objected to my recommendation of a lesser sanction and both the report and recommendation and Capital Premium's objection remain pending. All this may end up being a moot point should Judge Lee be convinced by Capital Premium's objections. Moreover, should Judge Lee choose a lesser sanction, there would be no reason to duplicate it here. As such, not much more than musings on the possible severity of sanctions can be offered here.

A court can apply the sanction of dismissal for Rule 37 violations with a finding of “willfulness, bad faith, or fault.” Brown v. Columbia Sussex Corp., 664 F.3d 182, 191 (7th Cir. 2011). A finding of fault does not require intentional or reckless behavior, but “suggests unreasonable behavior,” and it “does not include conduct that we would classify as a mere mistake.” Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000). For example, the Seventh Circuit has upheld the sanction of dismissal where the district court found “a pattern of ‘willful delay and avoidance.’ ” In that event, “the Rule 37 standard of willfulness, bad faith, or fault” was met. Brown, 664 F.3d at 191.

*6 Willful delay and avoidance is the pattern that has been recounted here, not to mention bad faith. BDTCB has either ignored or failed to fully comply with multiple discovery Orders. It has failed to meet multiple court-ordered discovery deadlines, as well as automatic deadlines under the Federal Rules of Civil Procedure and to honor promises to opposing counsel. This isn't a record of missing a single deadline, as occurred in Long v. Steepro, 213 F.3d 983, 985-87 (7th Cir. 2000) on which BDTCB relies. [Dkt. # 328, at 13]. It's not just a “mere mistake.” Long, 213 F.3d at 987. Based on objective performance, BDTCB has simply not taken Fed.R.Civ.P. deadlines, court-ordered deadlines, or discovery obligations seriously. It is behavior that has not been sporadic; as recounted here, it's been a pattern. Pendell v. City of Peoria, 799 F.3d 916, 917–18 (7th Cir. 2015)(“Factors relevant to the decision to dismiss include the plaintiff's pattern of and personal responsibility for violating orders....”). Repeated failures to meet deadlines – especially court-ordered deadlines – support the harshest sanction of dismissal/default judgment. See Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 904–906 (7th Cir. 2003).

BDTCB, of course, has a multiplicity of excuses for its discovery failures and violations that it feels should immunize it from the harshest of sanctions. It points to the claimed ineptitude of its electronic search efforts as one excuse for avoiding responsibility for its discovery violations. [Dkt, #328, at 13]. That claim does not ring true. In any event, their sheer number of missteps are not only inexcusable, but their number and setting make unacceptable the conclusion that they were anything but purposeful and strategic. In isolation, perhaps one of the facts described by BDTCB might conceivably be dismissed as a mere blunder. But considering the evidence in total, it more than represents the sort of intentional circumstances that are alarming. Indeed, “[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” Coggeshall v. United States 69 U.S. (2 Wall.) 383, 17 L.Ed. 911 (1865).

Facts are not to be considered in isolation, and what a fact finder “is permitted to infer from the evidence in a particular case is governed by a rule of reason.” Judges, like other fact finders, may properly “ ‘use their common sense’ ” and “ ‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.’ ” United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989). What Justice Cardozo said in In re Elm St in City of New York, 246 N.Y. 72, 158 N.E. 24 (N.Y. 1927) applies to BDTCB's insistence that its conduct was but an unconnected series of unintentional mishaps: “If we may not say of such a coincidence that it is literally impossible, at least we may say that one would be surprising, and several would be marvelous.”

Beyond that, mistake doesn't account for a party's own personal informal stay of discovery or broken promises to opposing counsel. It is no answer to say that BDTCB has been busy: busy filing briefs and busy complying with Local Rule 37.2. [Dkt. #328, at 7-8, 8-9 13, 14]. The claim is not credible, and in any event “it is widely accepted that neglect due to a busy schedule is not excusable.” Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir. 2006); see also United States v. Cates, 716 F.3d 445, 449 (7th Cir. 2013); Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012). The excuse rings even more hollow when those making it filed the case and are represented by distinguished law Firms that are among the most distinguished in the country. Thus, the record here does not and would not support a claim of “clumsy lawyering,” Fuery v. City of Chicago, 900 F.3d 450, 464 (7th Cir. 2018), even if one had been made.

When BDTCB lists the distractions that they claim have taken them off-task, the excuse cannot be taken seriously. For example, BDTCB reminds us that it “request[ed] an in camera review of [Capital Premium's] excessively redacted communications.” [Dkt. #328, at 7]. The brief supporting that request was just seven pages long, and was filed almost two months after the bungled electronic search. [Dkt. #264]. Moreover, the redactions were found to be, in the main, proper and, of course, the burden in terms of time-consuming review fell almost entirely on the court. So that's an unpersuasive excuse.

*7 It gets worse, however. While BDTCB complains that it had to do “extensive briefing required by [Capital Premium's] spoliation motion,” [Dkt. # 328, at 7], the spoliation motion was occasioned by TCB's misconduct, and it is fundamental that no one can “found any claim upon his own inequity or take advantage of his own wrong.” R.H. Stearns Co. of Boston, Mass., v. United States, 291 U.S. 54, 61–62, 54 S.Ct. 325, 78 L.Ed. 647 (1934). See also Reynolds v. Sims, 377 U.S. 533, 630, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). And, the one brief BDTCB had to file was finished February 16, 2018, well in advance of most of the discovery violations at issue here.

As for having to confer with opposing counsel over discovery disputes and being urged by the court to comply in good faith with Local Rule 37.2, BDTCB has the wrong idea. It claims that these conferences were the product of the court “urg[ing] the parties to work cooperatively in completing document discovery” – imagine that – and that these repeated conferences somehow contributed to BDTCB failing to get discovery production done on time and in compliance with court orders. [Dkt. # 328, at 14 (quoting City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, – (N.D. Ill. 2018) ) (“... 254, [c]ourts cannot preach party cooperation and then unilaterally reject the process the parties agreed upon.”) ](Emphasis supplied).

But this is not a situation in which sanctions are sought for BDTCB's compliance with a mutually agreed upon (or ordered) plan of discovery. That, of course, would be fundamentally unfair and prohibited in any context. The requirement that parties in litigation attempt to work cooperatively could not be more basic to the operation of the Federal Discovery Rules, as every court in the country has recognized. See, e.g., Ayoubi v. Dart, 724 F. App'x 470, 473 (7th Cir. 2018); Nelson v. Schultz, 878 F.3d 236, 239 (7th Cir. 2017); Schindler v. Renaissance Hotel Mgmt. Co., LLC, 639 F. App'x 377, 378 (7th Cir. 2016)(the district court “directed [the plaintiff] to cooperate with opposing counsel, reminding him that ‘he initiated this lawsuit and is expected to cooperate with discovery and appear in court as ordered.’ ”); Halim v. Great Gatsby's Auction Gallery, Inc., 516 F.3d 557, 560 (7th Cir. 2008); Allno Enterprises, Inc. v. Baltimore Cty., MD, 10 F. App'x 197, 203 (4th Cir. 2001); Mills, 259 F.R.D. at 130 (“The civil discovery process is to be engaged in cooperatively.”); Wagner v. St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 422 (N.D.W. Va. 2006) (observing that “[ g]amesmanship” in discovery “is not allowed”); M.D.N.C. LR 26.1(b)(1) (“The Court expects counsel to conduct discovery in good faith and to cooperate and be courteous with each other in all phases of the discovery process.”).

The evidence simply does not support BDTCB's contention that any infractions were really traceable to the fault of the court and its attempt to have the lawyers act cooperatively. While it is true that the court had to remind the parties of their basic obligations in discovery [Dkt. ## 142, 322] and, when that was not enough, had to actually supervise the parties' discovery conferences, [Dkt. ## 167, 241, 254, 255], it is odd and unavailing to suggest significant misconduct should be insulated from sanctions because the litigation, itself, is onerous and demanding. What a curious inversion.[6]

*8 Finally, engaging in a bit of “whataboutism”, BDTCB points an accusatory finger at Capital Direct, arguing that it has been no angel in discovery. [Dkt. #328, at 11]. Court intervention in one discovery squabble after another, not to mention supervision of discovery conferences, certainly suggests this is the case and Capital Premium does not deny it. [Dkt. # 334]. But while Capital Premium's transgression merit a couple of paragraphs in BDTCB's response brief [Dkt. # 328, at 11-12], BDTCB have warranted multiple discovery motions, two sanctions motions and multiple court interventions and rulings. So, there is a significant difference – certainly enough of a difference that BDTCB can't slough off its violations by pointing at the opponent.

C.

There are a number of factors the Seventh Circuit has said ought to be considered before the ultimate sanction of dismissal/default should be imposed: they include the prejudice to other litigants and their lawyers from noncompliance, the possible efficacy of lesser sanctions, and any demonstrated merit to the suit. Pendell, 799 F.3d at 917–18.

Prejudice here is clear – not only to Capital Premium, but to those litigants and their lawyers in other cases who require the court's attention. Every hour consumed administering needless or unnecessary discovery disputes is an hour taken from other litigants, who must wait in a longer queue for judicial attention. Unnecessary complaints sap the time of judges, forcing parties with substantial disputes to wait in a longer queue and condemning them to receive less judicial attention when their cases finally are heard. See Channell v. Citicorp Nat. Services, Inc., 89 F.3d 379, 386 (7th Cir. 1996); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir. 1987); Kasper v. Board of Election Com'rs of the City of Chicago, 814 F.2d 332, 341 (7th Cir. 1987). Cf. Smoot v. Mazda Motors of America, 469 F.3d 675, 677 (7th Cir. 2006). See also the discussion in Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015); City of Greenville, Ill. v. Syngenta Crop Prot., LLC, 764 F.3d 695, 697 (7th Cir. 2014).

The efficacy of lesser sanctions cannot actually be determined as no actual sanction has as yet been imposed on BDTCB. But BDTCB has been operating with at least a report and recommendation hanging over their heads, and it has not seemed to have much of an effect. “Moreover, despite the severity of the sanction, a court is not required to issue less severe sanctions before deciding to enter default judgment (or to dismiss the case).” Wellness Int'l Network, Ltd. v. Sharif, 727 F.3d 751, 779 (7th Cir. 2013)(parentheses in original), rev'd on other grounds, ––– U.S. ––––, 135 S.Ct. 1932, 191 L.Ed.2d 911 (2015). Accord Fuery, 900 F.3d at 464. Neither is a warning required in every case. “[T]he warning requirement is not a ‘rigid rule. It was intended rather as a useful guideline to district judges—a safe harbor to minimize the likelihood of appeal and reversal.’ ” McMahan v. Deutsche Bank AG, 892 F.3d 926, 932 (7th Cir. 2018). See also Fuery, 900 F.3d at 464; Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 562 (7th Cir. 2011); Brown, 664 F.3d at 192 (“More recent case law, however, has clarified that an explicit warning is not absolutely necessary; rather, the language in Ball [2 F.3d 752, 760 (7th Cir. 1993) ] should be taken as a guideline for district court judges and should be treated as a safe harbor rather than a requirement.”) (Emphasis supplied); Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006). See also Fuery, 900 F.3d at 464. In short, the inflexible rule advocated by BDTCB does not, if it ever did, express the governing principles. See also Evans v. Liberty Ins. Corp., 702 F. App'x 297, 300 (6th Cir. 2017)(“A district court is permitted to dismiss a complaint as ‘the first and only sanction, solely on the basis of the plaintiff's counsel's neglect’ and is not required to ‘incant a litany of the available lesser sanctions.’ ”).

*9 The fact that an explicit warning is not required is important in view of the fact that often, judges refer supervision of discovery to magistrate judges who, of course, have no authority to dismiss a case or enter default judgment as a sanction. As such, the question is whether a warning from a magistrate judge as to what the judge might do might understandably fall on deaf ears and not qualify as a warning at all under cases like Ball. We know that here magistrate judge-ordered deadlines seem to have fallen on deaf ears more than once. They certainly were not taken seriously.

There is no need to warn that dismissal may be coming when, as here, the defendant files a motion with notice to the plaintiff asking for dismissal. In such a situation, the plaintiff has an opportunity to explain itself by responding to the motion. If, after hearing from both sides, the district court believes dismissal is appropriate, no purpose would be served by issuing a warning: the motion itself was the warning. Cf.Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994) (rejecting a warning requirement that “would in effect be granting each litigant one opportunity to disregard the court's schedule without fear of penalty”). See McMahan v. Deutsche Bank AG, 892 F.3d 926, 932–33 (7th Cir. 2018); Hal Commodity Cycles Management Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir. 1987)(“A district court is not required to fire a warning shot.”); Serritella v. Markum, 119 F.3d 506, 512 (7th Cir. 1997).

Importantly, for the situation here, the Seventh Circuit has also stated that a warning need not even come from a judge. In Fischer, the court took specific note of the fact that the defendant had made a request that the plaintiff's suit be dismissed if the defendant continued to miss deadlines. The court said this deserved particular emphasis because “[t]he purpose of requiring a warning is not to entrap district judges but to make sure that the plaintiff is warned. The warning need not (despite a contrary suggestion in Kruger v. Apfel, ...) always come from the judge.” Fischer, 446 F.3d at 666. See also Brown, 664 F.3d at 192 (“Further, a warning of dismissal need not come from the judge.”). Here, Capital Premium has requested the ultimate sanction of dismissal/default judgment in two separate motions and one set of objections to the pending report and recommendation. There is no way BDTCB can say it didn't see this coming.

Demonstrated merit to the suit is a difficult gauge to employ in a case where discovery is ongoing. But, we do know that Judge Lee has denied BDTCB's motion to dismiss counts VII and VII of Capital Premium's Second Amended Complaint, and Judge Gottschall denied BDTCB's motion for Partial Summary Judgment [Dkt. # 77], and both decisions went to the merits of those motions and the case. And, Judge Gottschall granted Capital Premium's motion for a preliminary injunction against BDTCB taking certain actions under the Master Transaction Agreement. [Dkt. ## 164, 165]. On the other side of the coin, Judge Lee struck Capital Premium's motion for partial summary judgment [Dkt. # 201], but that was simply because discovery was ongoing. [Dkt. #208]. To the extent anything can be taken from the judges' rulings on the substantive motions in this case thus far, the demonstrated merit factor does not favor BDTCB.

So again, BDTCB's litany of excuses all come down to a plea not to sanction them because this case was so complicated and involved so much effort that whatever infractions were committed by BDTCB stemmed from the good faith attempts to litigate the case properly it was really beyond the good faith ability of BDTCB to handle. In BDTCB's view there were just too many documents to efficiently sift through and too many demands for the litigation to be handled as effectively as BDTCB would have liked. That the litigation was initiated by Capital after, as its labyrinthine Complaint demonstrates, a good deal of thought and analysis, didn't count. Other excuses abound. BankDirect's IT department wasn't much good at conducting computer searches. TCB's CEO didn't have any idea what his company's document retention protocols were. And counsel were just really busy throughout this case with motion practice. It is almost embarrassing saying that these sophisticated companies and their even more sophisticated lawyers subtlety try to compare themselves to the pro se litigant in Long, the case they rely on extensively in the hopes of avoiding responsibility for their long list of failures [Dkt. # 328, at 12-13]. But, the plaintiff in Long did not make one blunder after another, miss one deadline after another, or violate more than one court order. He made one mistake. As the Seventh Circuit said:

213 F.3d at 986. Clearly, BDTCB's performance falls far short of the standard Mr. Long set.

BDTCB didn't simply make a mistake – or even a few mistakes, and what is involved here is not mere “clumsy lawyering.” Fuery, 900 F.3d at 464. Rather, BDTCB's conduct was purposeful and repeated. It compounded its now claimed ineptitude and innocence by stalling and dragging its feet and waiting to the last minute to perform searches and review documents. If it were a matter of a blunder here, or a technical challenge there, their excuses might be acceptable, for “[m]ere clumsy lawyer is not enough.” Id. Any one violation of their discovery obligations might not seem to be much. And even an isolated violation or two may not warrant the sanction sought by the defendant. But, BDTCB's violations are not episodic and cannot be viewed in isolation. Fuery teaches that it is for the district court to evaluate what occurred and determine whether the incremental blows to the integrity of the process warrant the sanction imposed. “Death by a thousand cuts” is still death, and it is “no less severe than death by a single powerful blow.” Fuery.

The Seventh Circuit's summation in Fuery v. City of Chicago applies here:

900 F.3d at 464.

CONCLUSION

It is recommended that Capital Premium's second motion for sanctions be granted. While the facts arguably allow for the harshest of sanctions, the severity of the sanction will necessarily be dependent upon Judge Lee's resolution of the pending report and recommendation on spoliation sanctions and Capital Premium's objections thereto.

Discovery in this three-year-old case has been arduous for everyone. It has necessitated near-constant court intervention and supervision. [Dkt. ## 130, 135, 138, 142, 167, 170, 173, 185, 207, 209, 212, 223, 224, 225, 227, 229, 231, 239, 241, 252, 254, 255, 256, 262, 263, 264, 267, 270, 271].

While reading BDTCB's response brief, the perfect musical accompaniment might be Frank Sinatra's recording – or, if you prefer, Chet Baker's – of Tom Adair and Matt Dennis's “Everything Happens To Me”:

Even at that, given the overly contentious path discovery has taken in this case, it is difficult to weave together an unassailably accurate tapestry from all the threads that come from the many disputes, conferences, hearings, etc. But even through the fog of discovery war, a pattern is evident, and that will serve as the basis for this Report and Recommendation.

During all this time, the plaintiff and its largest shareholder, who is also a party in the case, were represented by two of the most experienced law firms in the country which proudly and publically boast of their skills and involvement in complex nationwide cases.

The concept of what Wigmore called trial by ambush was long ago replaced by rules of discovery in both state and federal courts. The rules seek to facilitate open and even-handed development of the relevant facts. Modern discovery rules regard secrecy as uncongenial to truth seeking and trial by ambush as destructive of the overarching goal that cases be justly determined on their merits. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Thus, lawyers have a duty to act in good faith in complying with their discovery obligations and to cooperate in and facilitate forthright discovery. Johnson v. J.B. Hunt Transport, Inc., 280 F.3d 1125, 1132 (7th Cir. 2002).

BDTCB's reliance on Rockford v. Mallinckrodt is misplaced. The quote that BDTCB selected, out of context, indicated that, because the court allowed the parties in that case to choose keyword searching rather than technology-assisted review, it would not force technology-assisted review onto the parties. Moreover, the docket in Mallinckrodt (18-cv-379) demonstrates that it has nothing to do with this case: no court-supervised discovery conferences, no motions to compel, seemingly no disputes over discovery other than whether sampling the null set was reasonable. True, the case was in its early phase compared to this one, but it would appear to be a far more complicated matter.