BACKGROUND

A. The Court’s Orders Requiring Production

Discovery in this nearly five-year-old case has never progressed smoothly. The parties have argued, seemingly endlessly, over various categories of discovery, and the subject of the sanctions motion currently before the Court represents only a narrow slice of their broader disputes. In this Court’s view, however, the particular dispute underlying Defendants’ sanctions motion – regarding the timing of when, in the discovery process, Plaintiffs needed to produce audio recordings made by Plaintiffs of statements purportedly made by Defendants (i.e., whether those recordings needed to be produced prior to depositions or could instead be produced thereafter) – was put to bed months ago.

1. The February 13, 2019 Order

Specifically, on February 13, 2019, following a discovery conference and briefing by the parties, this Court issued a written Order, which, in relevant part, stated unequivocally that:

(Order, dated Feb. 13, 2019 (“2/13/19 Order”) (Dkt. 163) ¶ 2.) Plaintiffs appealed that Order, but it was affirmed by Judge Torres on March 19, 2019, in a written decision. (Order, dated Mar. 19, 2019 (“3/19/19 Order”) (Dkt. 175).) Plaintiffs then applied to Judge Torres for reconsideration of her Order of affirmance or, alternatively, for certification of an interlocutory appeal. (Dkts. 183, 184.) Judge Torres denied both of those applications, in a written decision dated April 26, 2019. (Order, dated Apr. 26, 2019 (“4/26/19 Order”) (Dkt. 192) (finding that Plaintiffs had not met the standard for either reconsideration or an interlocutory appeal).)

2. The Follow-up March 21, 2019 Order

*2 After Judge Torres’s affirmance of this Court’s original discovery Order, but before her denial of reconsideration – this Court, on March 21, 2019, issued a follow-up discovery Order (Order, dated Mar. 21, 2019 (“3/21/19 Order”) (Dkt. 177)), largely to address certain disputes that had been left open by this Court’s prior Order.

Two portions of the March 21 Order are relevant here. First, the Court followed up on a dispute as to the scope of the discovery that Plaintiffs were supposed to have produced pursuant to a negotiated compromise reached between counsel, at a point in 2018 when Plaintiffs were represented by counsel. As to that dispute, this Court noted that, according to Defendants’ counsel, the parties’ compromise had included an agreement that Plaintiffs produce a number of specific items, including “all party statements.” (Id., at 3.) This Court further noted that, according to correspondence from Plaintiffs’ prior counsel, all of the items that Plaintiffs had agreed to produce, pursuant to that compromise, had been placed on a CD. (Id., at 4). Putting counsel’s representations together, this Court concluded that the CD referenced by Plaintiffs’ counsel likely contained the items that had been identified by Defendants’ counsel. Thus, so as to effectuate the parties’ bargain, this Court directed Plaintiffs to produce the CD by April 4, 2019. Recognizing, however, that the CD might have been in the hands of Plaintiffs’ prior counsel, this Court further ruled that, if it were not possible for Plaintiffs to obtain the CD through diligent effort, then they should otherwise produce, by the same date, each of the items that Defendants had listed, including “all party statements” – which, this Court noted, would cover “statements recorded by audio.” (Id.)

Second, in the next section of its Order (titled “Plaintiffs’ Production of Audio Recordings of Party Statements”), this Court more particularly addressed the fact that, as it had previously ruled, the audio recordings were to be produced prior to depositions. There, this Court made specific reference to its earlier Order and to the affirmance of that Order on appeal, and cautioned Plaintiffs that this Court would not tolerate further delay in the production of the recordings to Defendants:

(Id., at 4-5.)

Plaintiffs also appealed from the various rulings contained in this Court’s March 21 Order ruling, but Judge Torres affirmed those rulings as part of her April 26 Order. (See 4/26/19 Order, at 3-4 (finding “[a]ll of Plaintiffs’ objections [to be] wholly without merit”).) Further, Judge Torres issued the following additional warning to Plaintiffs:

*3 (Id., at 4.)

B. Defendants’ Pending Motion for Sanctions

Defendants filed the instant motion for discovery sanctions on May 3, 2019, asserting that, despite the Orders cited above and the lack of any stay of those Orders, Plaintiffs had still failed to produce the audio recordings. (Letter to the Court from Andreas E. Theodosiou, Esq., dated May 3, 2019 (“Def. Mtn.”) (Dkt. 193).) According to Defendants’ counsel, they had been advised by Plaintiffs “that [Plaintiffs] believe that the foregoing orders do not compel them to produce party statements that they have, to date, refused to produce.” (Id., at 1.) On May 13, 2019, Plaintiffs filed a lengthy opposition to Defendants’ sanctions motion, arguing, inter alia, that (1) Defendants had violated Local Civil Rule 37.2 by not seeking an informal pre-motion conference; (2) Defendants had violated Rule 5 of the Federal Rule of Civil Procedure by serving a single copy of their motion on both Plaintiffs, rather than serving them individually; (3) this Court’s follow-up Order of March 21 was not “clear and unequivocal” regarding Plaintiffs’ production obligations, and Plaintiffs believed they were in compliance with that Order; (4) the Court’s prior sanctions warnings were not specific as to any consequences that could flow from a failure to produce the audio recordings; and (5) neither an award of costs nor preclusion would be warranted as a remedy for non-production. (See generally Letter to the Court from Tzvee Wood and Andrea Malester, dated May 13, 2019 (“Pl. Opp.”) (Dkt. 200).)

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

Rule 37(b) of the Federal Rules of Civil Procedure authorizes district courts to impose sanctions for a party’s failure to comply with discovery orders, stating “[i]f a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Rule 37(b) provides for a range of permissible sanctions, from mild to severe. See Fed. R. Civ. P. 37(b)(2)(A)(ii), (vii). In general, sanctions under Rule 37 are intended: (1) to ensure that a party will not benefit from its failure to comply with a court order, (2) to obtain the party’s compliance, and (3) to serve as a deterrent. See Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976)). With these purposes in mind, “Rule 37 permits the imposition of ‘just’ sanctions,” and thus “the severity of [the] sanction must be commensurate with the non-compliance.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007).

The “mildest” sanction specifically enumerated under Rule 37(b) is an order that the party who violated the discovery order at issue, or the attorney advising that party, be required to reimburse the opposing party for expenses, including attorneys’ fees, incurred as a result of the violation. See Oleg Cassini, Inc. v. Electrolux Home Prods., Inc., No. 11cv1237(LGS) (JCF), 2013 WL 3056805, at *3-4 (S.D.N.Y. June 19, 2013) (citing Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979)). Rule 37(b)generally requires that this sanction be imposed on a party who fails to comply, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C); see also Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008) (noting that the language of Rule 37 “certainly suggests that an award of expenses is mandatory unless one of the two exceptions – substantial justification or other circumstances – applies”). Once it is shown that a discovery order was violated, the disobedient party has the burden of showing that an award of the expenses caused by the violation is not warranted. See Novak, 536 F.3d at 178.

*4 Among the more severe sanctions that is explicitly permitted under Rule 37(b) is the type of preclusive sanction that Defendants seek here – i.e., a sanction “prohibiting the disobedient party ... from introducing designated matters in evidence.” It is well established that district courts have “broad discretion in fashioning an appropriate sanction,” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 101 (2d Cir. 2002), and that “[s]evere sanctions are justified ... when the failure to comply with a court order is due to willfulness or bad faith, or is otherwise culpable,” Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). The Court’s discretion in selecting an appropriate sanction should be guided by a number of factors, including: “(1) the willfulness of the noncompliant party or the reasons for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the noncompliant party had been warned of the consequences of his noncompliance.” Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 852-54 (2d Cir. 1995)); see also Jobe O. v. Pataki, No. 03cv8331 (RCC) (KNF), 2007 WL 844707, at *4 (S.D.N.Y. Mar. 15, 2007) (“[W]hile willfulness and bad faith may justify the imposition of a sanction(s), the express language of the Rule makes clear that they are not prerequisites to imposing a sanction(s) under Fed. R. Civ. P. 37(d). Rather, they are factors to be considered by a court in determining what sanction(s), if any, to impose on a party that has not met its discovery obligations.”).

Although a court may, in its discretion, hold a hearing on a sanctions motion brought under Rule 37, see In re Dynex Capital, Inc. Sec. Litig., No. 05cv1897 (HB) (DF), 2011 WL 2581755, at *3 (S.D.N.Y. Apr. 29, 2011), report and recommendation adopted by 2011 WL 2471267 (S.D.N.Y. June 21, 2011), it is appropriate to refrain from holding such a hearing where a thorough written record has been presented and the respective positions of the parties are clear, see SJ Berwin & Co. v. Evergreen Entm’t Grp., Inc., No. 92cv6209 (WK), 1994 WL 501753, at *1 (S.D.N.Y. Sept. 14, 1994); Monaghan v. SZS 33 Associates, L.P., 148 F.R.D. 500, 510 (S.D.N.Y. 1993).

II. PLAINTIFFS’ FAILURE TO PRODUCE THE AUDIO RECORDINGS WARRANTS SANCTIONS.

A. As a Threshold Matter, Plaintiffs’ Procedural Arguments Are Unpersuasive.

Plaintiffs make two technical arguments challenging the propriety of Defendants’ Rule 37 motion, neither of which persuades this Court that sanctions should not be imposed, if warranted on the merits. First, Plaintiffs argue that, in filing their sanctions motion without first seeking an informal conference with this Court, Defendants failed to comply with Local Civil Rule 37.2. (See Pl. Opp., at 1-2; Local Civ. R. 37.2.) In this case, though, where the underlying issue regarding Plaintiffs’ obligation to produce the audio recordings had already been addressed by this Court in a discovery conference (see discussion in the 2/13/19 Order), and where the parties’ multiple submissions on the subject have already resulted in several Court rulings (including an written Order by this Court that expressly warned of sanctions for non-compliance), an additional conference would have served only to cause delay. Under the circumstances, this Court excuses the Rule 37.2 requirement. See Shim-Larkin v. City of New York, 16-CV-6099 (AJN)(KNF), 2017 WL 2304441, at *4 (S.D.N.Y. May 18, 2017) (excusing failure to comply with Rule 37.2 “[g]iven that: [ ] the requirements of Local Civil Rule 37.2 of this court are designed to promote efficiency in litigation and that goal would not be advanced by further delay” (internal quotation marks and citation omitted)), objections overruled by 2017 WL 4862790 (Oct. 25, 2017). In light of the parties’ extensive written submissions, this Court also finds that no hearing on Defendants’ sanctions motion is necessary. See SJ Berwin, 1994 WL 501753, at *1.

Second, Plaintiffs argue that Defendants have violated Rule 5 of the Federal Rules of Civil Procedure by failing to serve their sanctions motion on each Plaintiff individually. (See Pl. Opp., at 2.) Presumably, Defendants delivered a single copy of their motion papers to both Plaintiffs, at the common residential address that they have provided to the Court for service of papers. (See Docket.) While Plaintiffs are correct that they are entitled to receive separate copies of any motion papers filed by Defendants, and Defendants are instructed to serve Plaintiffs individually in the future, neither plaintiff has suggested that he or she did not receive Defendants’ sanctions motion. Further, it is evident that Plaintiffs were not prejudiced by the way in which they were served, given that they filed a joint opposition to the motion. (Dkt. 200.) Accordingly, this Court finds that, in this instance, Defendants’ service error was harmless.

B. Plaintiffs Are in Violation of the Court’s Discovery Orders.

*5 Turning to the merits of Defendants’ motion, this Court must first determine whether Plaintiffs are, in fact, in violation of one or more Court orders. Plaintiffs appear to contend that this Court’s March 21 Order superseded its earlier February 13 Order, and that, as they read the Court’s later Order, they are in compliance. (Pl. Opp., at 2, 3.) Plaintiffs’ professed understanding of the March 21 Order, however, is based on a tortured reading of its language that ignores its plain intent.

As described above, this Court had noted, in that Order, that Plaintiffs, through their former counsel, had seemingly agreed to produce to Defendants a CD containing, inter alia, the recorded statements at issue. This Court directed Plaintiffs to produce that CD, but further directed:

(3/21/19 Order, at 4.) In essence, Plaintiffs claim to believe that the phrase “[i]f the CD is not currently in Plaintiffs’ possession” represented a condition precedent to all other parts of the Court’s Order, including the following section of the Order that specifically reiterated Plaintiffs’ obligation to produce the audio recordings. (See Pl. Opp., at 3.) In Plaintiffs’ view, because they were in fact in possession of the CD (and, they say, had delivered it to Defendants), they were not “required to proceed though [sic] all portions of [the Order].” (Id.) This argument is disingenuous to the point of demonstrating bad faith.

As a point of fact, if Plaintiffs did produce the CD in question, then, contrary to this Court’s assumption, that CD must not have contained the audio recordings. Plaintiffs contend that Defendants’ counsel acknowledged receipt of the CD in an October 8, 2018, letter to the Court, and yet, in the motion now before this Court, Defendants maintain that they have still not received the audio recordings.[2] (Def Mem., at 1.) Further, five months after the October 8 date by which, according to Plaintiffs, Defendants had received the CD, Plaintiffs were still arguing aggressively to Judge Torres that they should not be required to produce the audio recordings. (See Dkt. 173.) It defies logic that Plaintiffs would have continued to make this argument, and then moved for reconsideration of Judge Torres’s subsequent Orders, if they had already produced the recordings.

As for the substance of Plaintiffs’ argument as to why they should nonetheless be considered in compliance, Plaintiffs appear to contend that, under the terms of the March 21 Order, their supposed production of the CD alone – regardless of whether it contained the audio recordings – was sufficient to satisfy their discovery obligations, including those required by this Court’s earlier February 13 Order, and “no further action was required.” (Pl. Opp., at 5.) This is patently absurd. Nothing in the March 21 Order vitiated any obligation imposed by this Court’s February 13 Order. To the contrary, the March 21 Order emphasized the requirements of the earlier Order, noted that it had been affirmed by Judge Torres, and expressly warned Plaintiffs that a further delay in producing the audio recordings could result in sanctions. (3/21/19 Order, at 5.) This Court’s March 21 directive to Plaintiffs that the audio recordings had to be produced was clear and unequivocal, and it echoed the equally unambiguous instruction contained in this Court’s February 13 Order. If Plaintiffs had produced a CD that did not contain the audio recordings, then any reasonable reading of the Court’s Orders should have left no doubt that they were still required to produce them, prior to depositions.

*6 At bottom, this Court finds that Plaintiffs’ assertion as to their understanding of this Court’s March 21 Order is not credible, and that Plaintiffs have now knowingly and intentionally violated two discovery Orders issued by this Court, both of which have been affirmed by Judge Torres. Sanctions are therefore warranted.

C. An Immediate Award of Attorneys’ Fees and Costs Is Appropriate, and This Court Will Also Recommend Preclusion, Unless Production Is Made by June 28, 2019.

As stated above, Rule 37(b) generally requires that the moving party’s reasonable expenses be paid by the party who has failed to comply with its discovery obligations, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Plaintiffs point out that “[t]he ‘substantial justification’ exception applies where there was a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” (PL Opp., at 3 (internal quotation marks and citation omitted); see also Klein v. Torrey Point Grp., LLC, 979 F. Supp. 2d 417, 442 (S.D.N.Y.2013). Here, however, there can be no genuine dispute as to the appropriateness of Plaintiffs’ failure to produce the audio recordings. Two Orders of this Court explicitly required Plaintiffs to turn them over. After challenge, both of those Orders were affirmed. As discussed above, Plaintiffs’ professed interpretation of the March 21 Order is neither reasonable nor credible.

As Plaintiffs have not met their burden of showing that their non-compliance was substantially justified or that other circumstances would make a sanctions award unjust, see Novak, 536 F.3d at 178, Defendants are entitled to an award of the expenses, including reasonable attorneys’ fees, that they incurred in connection with their efforts to enforce this Court’s Orders. This includes the fees and other costs associated not only with the preparation and filing of the instant motion for sanctions (Dkt. 193), but also the fees and costs associated with certain other submissions that Defendants made after the February 13 Order was affirmed, specifically including the submissions filed at Dkts. 187 and 208.

Separately, Defendants request that the Court issue an order precluding Plaintiffs from relying on the audio recordings at issue, or their supposed content, at trial. As such a sanction would affect the conduct of trial, and as this case is not before this Court for trial, this Court would not impose such a sanction itself, even if warranted. Rather, if it were to conclude that such a sanction would be appropriate on the facts presented, then this Court would recommend to the trial judge that the sanction be imposed. The factors that must guide this Court’s analysis in this regard, see Nieves, 208 F.R.D. at 535, suggest that Plaintiffs’ conduct may well justify such a recommendation.

First, Plaintiffs’ stated reasons for their non-compliance exhibit, at best, deliberate blindness to the obvious meaning of this Court’s Orders. Upon review of the record in its totality, this Court finds that Plaintiffs’ non-compliance more likely represents a willful attempt to delay production of the audio recordings until after depositions are conducted, despite the Court’s explicit rejection of Plaintiffs’ request that discovery be structured in that sequence.

*7 Second, given Plaintiffs’ sustained intransigence on this issue, it seems unlikely that lesser sanctions would be effective in deterring future non-compliance.

Third, the duration of Plaintiffs’ non-compliance is significant: Plaintiffs were initially directed to produce the audio recordings within two weeks of this Court’s February 13, 2019 Order (see 2/13/19 Order ¶ 2), which would have been by February 28, 2019. Although that Order was not stayed, Plaintiffs apparently did not produce the audio recordings by February 28, nor, apparently, did they produce them by April 4, 2019, as directed by this Court’s follow-up Order of March 21, 2019 (3/21/19 Order, at 4-5), which was also not stayed. Thus, as of the time Defendants filed their sanctions motion on May 3, 2019, Plaintiffs had been out of compliance with this Court’s initial Order for over two months, and out of compliance with this Court’s second Order for a month. Further, by the time Defendants’ motion was filed, both of this Court’s discovery Orders had been affirmed by Judge Torres (see3/19/19 Order; 4/26/19 Order), but neither of those affirmances were effective in motivating Plaintiffs to produce the recordings.

Finally, although Plaintiffs contend that they were never warned by the Court that their failure to produce the audio recordings could result in preclusive sanctions, they were certainly warned by this Court, in its March 21 Order, that their continued failure to produce the recordings could result in sanctions. (See 3/21/19 Order, at 4-5.)

Nonetheless, given the harshness of the sanction of preclusion, and so as to ensure that Plaintiffs, who are proceeding pro se, are fully on notice of the precise consequences of their continued failure to abide by the Court’s rulings, this Court will give Plaintiffs one final opportunity to produce the recorded party statements, before recommending to Judge Torres that such a severe sanction be imposed. Accordingly, for the sake of absolute clarity, Plaintiffs are directed to produce, no later than June 28, 2019, any and all audio recordings that contain statements of any of the Defendants. To the extent any of the Defendants’ recorded statements were made in the course of communications with either or both of the Plaintiffs, then the recordings should not be edited to omit Plaintiffs’ statements, but rather should be produced in their entirety, so that Defendants’ statements may be heard and understood in context.[3] If Plaintiffs do not meet this final deadline for production, then, as to any recordings of party statements that have not been produced, this Court will proceed to recommend to Judge Torres that she issue an order precluding Plaintiffs from using such evidence for any purpose at the time of trial, and that the preclusion order extend both to the introduction of the recorded statements themselves and also to any testimony by Plaintiffs purporting to describe the contents of those statements.

CONCLUSION

*8 For the reasons stated above, Defendants’ motion (Dkts. 193, 194) is granted to the extent that it seeks reimbursement of all reasonable expenses, including attorneys’ fees, incurred by Defendants in connection with their efforts to obtain compliance with the Court’s Orders regarding the audio recordings. Defendants’ counsel is directed to provide Plaintiffs, within one week of the date of this Memorandum and Order, with a breakdown of the relevant fees and costs associated with the preparation and filing of the submissions docketed at Dkts. 187, 193, and 208. If, after good-faith conference, the parties cannot agree as to whether the fees and costs sought are reasonable, they may return to this Court for the resolution of that issue.

Further, Plaintiffs are directed to produce all audio recordings of party statements, in their native format or another reasonably usable audio format, no later than June 28, 2019. No later than July 2, 2019, Plaintiffs shall confirm to this Court, in writing, that they have produced all such audio recordings in their possession, custody, or control. Also no later than July 2, 2019, Defendants shall confirm to this Court that they have received the production of audio recordings from Plaintiffs. Plaintiffs are hereby cautioned that, if the parties’ submissions reflect that the required production was not made by June 28, 2019, then this Court will recommend that Judge Torres impose the additional sanction requested by Defendants – i.e., that Plaintiffs be precluded from using the recorded party statements, or referring to their contents, in any way, at the trial of this action.

In light of the above rulings, the Clerk of Court is directed to close the motion filed at Dkt. 193 and, in duplicate, at Dkt. 194.

SO ORDERED