As an initial matter, the Court strikes and does not consider either Bykowski’s Affidavit submitted as Exhibit 4 to his response brief or his Supplemental Affidavit submitted on April 9, 2015. An unsworn declaration under 28 U.S.C. § 1746 must be subscribed by the declarant “as true under penalty of perjury, and dated, in substantially the following form: ... ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).’ ” 28 U.S.C. § 1746 (emphasis added). Bykowski’s Affidavit at Exhibit 4 does not declare under penalty of perjury that the contents of the Affidavit are true and is not dated. The Supplemental Affidavit is not dated.

BACKGROUND

On November 14, 2014, Plaintiff Apex Colors, Inc. served a subpoena on Paul Bykowski, which requested, in part, that Bykowski produce “for inspection and copying any and all computers....” Plaintiff represents that, until March 19, 2015, Bykowski had only identified in his possession a laptop computer as potentially having information responsive to Plaintiff’s subpoena.

On January 22, 2015, the Court ordered Bykowski to produce “his computer” on Plaintiff’s Motion for Order to Show Cause or Alternatively to Compel Production of Documents and Electronically Stored Information, which was directed at Bykowski based on the November 14, 2014 subpoena. At that time, the only computer referenced by Bykowski was his laptop computer.

On January 29, 2015, during a telephonic motion hearing, the parties and the Court discussed that Bykowski’s production of his computer might permit Plaintiff access to personal files and documents not relevant to this litigation as well as attorney-client information or other non-relevant or privileged information. The Court agreed with the parties that they should work cooperatively on an electronically stored information (“ESI”) protocol to avoid disclosure of information that is not discoverable. There was no discussion of a color analysis computer at that hearing.

On February 4, 2015, Plaintiff’s counsel emailed Bykowski’s counsel: “In addition to working on issues pertaining to the computers of Mr. Bykowski and Chemworld, I also want to confer with you regarding your clients' compelled answer to [Plaintiff’s] discovery requests.” (Def. Br., Ex. A). Later that day, Bykowski’s attorney responded that he was available after 1:00 p.m. to discuss an ESI protocol and the compelled subpoena answers. Bykowski’s attorney represents that Plaintiff’s counsel never produced a proposed ESI protocol that would permit Plaintiff’s computer technicians access to any computers at Bykowski’s current color certification laboratory.

*2 On February 12, 2015, Bykowski’s attorney informed Plaintiff’s attorney that Bykowski lost his laptop computer the night before at a hotel in Ohio.

On February 19, 2015, Bykowski’s attorney wrote a letter to Plaintiff’s counsel, offering a “written and comprehensive explanation of [Bykowski’s] use of electronic equipment between 2001 and the Effective Date of the dissolution of Finos, LLC.” (Def. Br., Ex. 3). First, the letter describes two “Apex Desktops” that were purchased by Shyam Zalani in 2001, one of which was installed in the Portage, Indiana laboratory for use by Bykowski. The “Apex Desktop” that Bykowski used “died” many years ago. The letter next describes a “Finos Desktop” that was used by Bykowski until his last day in the Finos laboratory in Portage, Indiana. The letter explains that Bykowski learned that the “Finos Desktop” was loaded on a skid by Chris Molnar at the instruction of Lloyd Kantner with all of the other Portage laboratory office equipment in 2013. The letter next describes a “W.B. Tabler/Finos Laptop” that was used by Bykowski after he began selling for Tabler in 2007 or 2008, that was given to him by Eric Boggess while Bykowski was in Louisville, Kentucky, and that “died” in approximately 2010. Bykowski provided his attorney with the hard drive of the “W.B. Tabler/Finos Laptop,” which he had saved in his garage to preserve photos; the machine itself was disposed of four to five years earlier.

The letter then describes Bykowski’s laptop, which Bykowski purchased himself in approximately 2010 when the “W.B. Tabler/Finos Laptop” “died.” The letter explains that Bykowski used his laptop for Tabler business and Finos business and that he continued to use that laptop as an independent representative on behalf of Chemworld. This laptop was lost in Ohio on February 11, 2015. The letter represents that the laptop contained data including Finos/Apex ISO certification books, manuals, and procedures; electronic communications with the ISO certification consultant; and customer quotes for sales by Finos and Chemworld. The letter does not mention a color analysis computer.

On March 10, 2015, Plaintiff’s counsel sent Bykowski’s counsel an email in which he notes that he had repeatedly asked about a computer used for color analysis at Apex that Plaintiff believes that Bykowski misappropriated when he left and that contained Plaintiff’s color data from spectrophotometer and Colortools software performed in accordance with Plaintiff’s ISO procedures. In the March 10, 2015 email, Plaintiff’s counsel noted that despite his repeated requests, Bykowski’s counsel had not responded. Plaintiff’s counsel asked for a confirmation as to whether Bykowski still has that computer and whether he would voluntarily produce it.

On March 18, 2015, Bykowski’s counsel responded that Plaintiff put the color analysis computer under lock and key in late September 2012 and that the color analysis computer was not missing when “Chris, Shyam and Lloyd Kantner ‘divvied up’ the lab contents.” (Pl. Br. Ex. 2).

On March 19, 2015, Plaintiff’s counsel asked Bykowski’s counsel for a confirmation from Bykowski as to whether he is in possession of the color computer and, if not, the last time he had access to it. In response on March 19, 2015, Bykowski’s counsel wrote a letter providing, in relevant part:

(Pl. Br., Ex. 4).

Plaintiff’s counsel responded by requesting that the color analysis computer purchased by Weadon for Bykowski’s use be produced and for a conferral regarding the issue on March 20, 2015.

Discovery regarding the Motion for Preliminary Injunction closed on March 18, 2015, and the Motion for Preliminary Injunction is set for a hearing for April 16 and 17, 2015.

ANALYSIS

Plaintiff asks the Court to sanction Bykowski for failing to identify, in response to the November 2014 subpoena, the color analysis computer purchased by Weadon for Plaintiff’s use from May to September 2012.

Plaintiff argues that Bykowski’s new position on March 19, 2015, regarding the color analysis computer purchased by Weadon and used by Bykowski from May to September 2012, is not credible given that the previous day Bykowski did not mention the computer in response to counsel’s inquiry. Plaintiff argues that, even if the Court accepts Bykowski’s representations regarding the computer purchased by Weadon, Bykowski should have identified that computer for inspection and copying in response to the November 2014 subpoena because Bykowski used that color analysis computer during the period of Plaintiff’s joint venture with Finos for the period when Bykowski was Plaintiff’s president.

Plaintiff argues that it has been prejudiced by Bykowski’s failure to produce the computer as Plaintiff believes that the computer contains testing data related to Plaintiff’s product standards and documents relating to Bykowski’s use of Plaintiff’s product standards and testing methods to perform color analysis and quality control for Chemworld Defendants while Bykowski was employed and owed a fiduciary duty to Plaintiff between May and September 2012.

Plaintiff asks the Court to enter an order to show cause why Bykowski should not be held in contempt for his failure to produce the color analysis computer for inspection as well as the documents contained therein that are responsive to Plaintiff’s subpoena, to compel Bykowski to produce any and all computers that contain color analysis data, to find Bykowski’s actions in failing to produce the color computer to have been in bad faith, and to sanction Bykowski for his failure to comply with the subpoena as well as the Court’s prior orders.

*4 In response, Bykowski argues that he was under no obligation to produce any computers because Plaintiff failed to draft a court-mandated ESI protocol and because Plaintiff made no effort to negotiate access to Bykowski’s color analysis computer. Bykowski contends that, between February 10 and March 10, 2015, Plaintiff did not address computer related discovery. This argument is a nonstarter. The ESI protocol discussion was held in the context of Bykowski’s laptop. On February 12, 2015, Plaintiff learned that the laptop computer had been lost; Plaintiff did not know of the existence of the color analysis computer purchased by Weadon until after the close of discovery. Plaintiff would have had no reason to develop an ESI protocol since the only computer Plaintiff knew of had been lost. Notably, Bykowski does not assert that the color analysis computer purchased by Weadon contains any information that is either privileged or irrelevant.

Bykowski also argues that Plaintiff did not request access to Bykowski’s color analysis computer until after discovery closed on March 18, 2015. This argument is disingenuous given that Bykowski did not disclose the existence of the computer purchased by Weadon for Bykowski’s use until March 19, 2015, and that Plaintiff specifically asked for information regarding a color analysis computer that Bykowski used while working for Plaintiff.

Bykowski argues that his color analysis computer will not contain data related to Plaintiff’s product standards from May to September 2012. He says in his Affidavit, which the court is not considering, that “many” of the outputs generated by the color software as graphical representations were already produced to Plaintiff as attachments to emails. The fact that “many” of the outputs were produced does not account for any outputs that were not produced nor does this explain what other information may still be on the computer.

Bykowski’s argument that the color analysis computer does not contain Plaintiff’s data because Bykowski only used PolySolve standards is a nonstarter because Plaintiff is attempting to show that Bykowski was not using PolySolve standards. Bykowski also argues that he used identical testing methods at PolySolve, Finos, and Apex. But Bykowski’s word is not sufficient; Plaintiff should have an opportunity to examine the data. It is not inconceivable that Plaintiff’s testing data would be on a computer utilized by Bykowski in Plaintiff’s laboratory when the sole function of that computer was color analysis and when the business of Plaintiff and Finos in its joint venture was color analysis.

Bykowski does not refute that Plaintiff asked him to identify if he had a color computer used at Apex or that Bykowski failed to identify the existence of the computer until the close of discovery. As noted above, the February 19, 2015 letter from Bykowski’s counsel summarizing all of Bykowski’s computers glaringly omits the color analysis computer purchased by Weadon.

The Court finds that Bykowski should have identified the color analysis computer that is in his possession in his initial subpoena response in December 2014 and that Bykowski has failed to offer any explanation for this failure. The Court grants the motion to compel and orders Bykowski to immediately produce for inspection, without an ESI protocol, the color analysis computer and any other relevant computers in his possession. Although the Court does not consider Bykowski’s Affidavit for purposes of his opposition to the motion, the Court does consider Plaintiff’s argument in the reply brief that Bykowski now asserts that the color computer used for the operations of Plaintiff’s joint venture with Finos was actually Bykowski’s computer and died in early September 2012, not in early summer of 2012 as represented in counsel’s March 19, 2015 letter. Thus, if Bykowski’s computer utilized from May through September 2012 is different than the Hewlett Packard Vectra, the Court orders Bykowski to allow Plaintiff to inspect both the Hewlett Packard Vectra as well as the computer Bykowski used from May through September 2012.

*5 The Court further grants Plaintiff’s request for a monetary sanction in the form of ordering Bykowski to pay for the cost of Plaintiff’s inspection of the color analysis computer and any other computers Bykowski may produce as a result of this order.

Finally, the Court orders Bykowski to pay for Plaintiff’s reasonable costs, including attorney’s fees, caused by his failure to disclose the color analysis computer and any other computer he may produce.

The Court denies the request for the remaining alternative sanctions listed in Plaintiff’s motion.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part Plaintiff’s Third Motion for Order to Show Cause Why Paul Bykowski Should Not Be Held in Contempt, Alternatively Enter an Order Compelling Production of Documents and Electronically Stored Information and for Sanctions [DE 220].

The Court ORDERS Defendant Paul Bykowski to IMMEDIATELY PRODUCE to Plaintiff the color analysis computer and any other computer(s) as identified in this Order for inspection in advance of the Preliminary Injunction hearing scheduled for April 16, 2015, before this Court.

The Court ORDERS Defendant Bykowski to PAY for the cost of the inspection of the computer(s).

The court ORDERS Defendant Bykowski to PAY Plaintiff’s reasonable expenses caused by Bykowski’s failure to disclose the computer(s). The Court ORDERS Plaintiff to submit on or before April 30, 2015, a verified statement of the expenses.

SO ORDERED this 13th day of April, 2015.