*1 On February 26, 2019, District Judge Ross referred [Doc. 163] Defendant Ken Hall's motion [Doc. 156] for sanctions pursuant to Fed. R. Civ. P. 26(g), 37(b) and 37(c) and, subsequently, on March 26, 2019, referred [Doc. 169] Defendant's supplemental motion [Doc. 166] for sanctions pursuant to Rules 37(b) and (c) for resolution to the undersigned.[1] Plaintiff Agilysys, Inc. (“Agilysys”) has responded opposing the motions for sanctions [Docs. 157, 167], and Defendant replied [Docs. 158, 168]. The motions are ripe for resolution by the undersigned.

As a part of reviewing and resolving the issues raised in the motions for sanctions and responses thereto, the court has taken into account the District Court's January 11, 2018, order [Doc. 71] resolving motions to quash and for a protective order and instructing the parties as to the scope of discovery, the undersigned's prior discovery conference and the November 5, 2018, orders [Docs. 141, 151] addressing the outstanding discovery matters and, again, instructing the parties as to the scope of discovery, the District Court's January 22, 2019, rulings regarding the scope of discovery during Defendant Hall's deposition [Doc. 156, Exh. A (“DJ 1/22/19 Order”) ], and the undersigned's March 7, 2019, ruling [Doc. 171] on the third-party's motion [Doc. 159] for a protective order granting in large part that motion due to Plaintiff's failure - again - to adhere to the limitations ordered by the District Court on the scope of discovery.

I. Summary of Grounds Underlying Motions for Sanctions

In Defendant's first motion for sanctions pursuant to Rules 26(g)(3) and 37(c)(1), he contends that Plaintiff withheld four documents supporting Defendant's defense of the claims and which were responsive to Defendant's Request for Production of Documents (“RFPD”) numbers 22 and 29[2] : (1) April 26, 2016, email with attachments from David Baldwin, Plaintiff's employee, to Defendant four weeks after Defendant's resignation containing detailed information about Plaintiff's customers; (2) May 12, 2016, email from Baldwin to Defendant at his new business address (Solutions II) again containing Plaintiff's customer information; (3) May 10, 2016, email from Baldwin to Defendant at his Solutions II address also containing Plaintiff's customer information; and (4) a July 2016 internal email between two of Plaintiff's employees, Robert LaPorte advising Bryan Griffin that he, LaPorte was resigning his employment because Rob Jacks, employed in Plaintiff's management, had stated that Plaintiff was getting out of the hardware business. [Doc. 156 at 4-8]. The first three emails are pertinent to Defendant's defense of the Computer Fraud and Abuse Act (“CFAA”) and misappropriation of trade secret claims because those claims are based on Defendant allegedly improperly procuring the same type of customer information. Plaintiff does not dispute that Plaintiff did not produce these documents in response to discovery requests until provided by Baldwin in connection with the subpoena for his deposition on February 5, 2019. And the last email is pertinent to Plaintiff's allegation that Defendant slandered Plaintiff by advising third parties that Plaintiff was getting out the hardware business and was produced by the attorney for Plaintiff's employee, LaPorte, in January 2019. [Id. at 2, 4-8].

*2 Pursuant to Rules 26(g)(3) and 37(c)(1), Defendant also contends that Plaintiff failed to supplement its initial disclosures and discovery responses, the last supplements, respectively, November 2, 2018, and December 14, 2018, regarding contact information for two witnesses to Plaintiff's damage calculations, Yolanda Brown and Joshua Elder, whom Plaintiff identified as current employees to be contacted only through Plaintiff's counsel in order to schedule depositions. Defendant asserts that, when he sought dates to schedule depositions in early February 2019, Plaintiff advised that the employees no longer worked for Plaintiff (one leaving that employment in July 2018 and one in December 2018) but that Plaintiff had not updated initial disclosures or provided contact information.[3] [Id. at 10-11].

In the supplemental motion for sanctions, pursuant to Rules 26(g)(3) and 37(c)(1), Defendant contends that Plaintiff failed to provide complete initial disclosures or to timely supplement the disclosures concerning damage calculations and, pursuant to Rule 37(b)(2), that Plaintiff failed to comply with the undersigned's discovery order issued November 5, 2018, regarding producing damage calculations sufficiently in advance of the deposition of Plaintiff's Rule 30(b)(6) deponent to allow Defendant's counsel adequate time to prepare.[4][Docs. 141, 151, 166]. Additionally, Defendant asserts that Plaintiff's tardy production still does not comply with the court's order or properly supplement the disclosures as required by Rule 26(a) for damages. [Doc. 166].

Finally, pursuant to Rule 37(b)(2), Defendant seeks sanctions based on Defendant's conduct in repeatedly violating both the District Judge's and the undersigned's discovery orders limiting the scope of permissible discovery in this case. [Doc. 156 at 11-16].

The court will address infra additional details regarding Defendant's grounds for seeking sanctions and Plaintiff's arguments in opposition thereto.

II. Discussion

a. Rules 26 and 37

b. Procedural Issues Regarding Filing Motions for Sanctions

In response to the motions for sanctions, Plaintiff seeks to have the court deny the motions on procedural grounds. First, Plaintiff asserts that Defendant failed to certify that he met and conferred with Plaintiff in a good faith attempt to resolve the disputes underlying the motion for sanctions and that, in fact, Defendant did not do so as required by Rule 37(a)(1). [Doc. 157 at 1-2].[5] Plaintiff's attempt to avoid the consequences of its discovery abuses through these procedural arguments are not persuasive. As Defendant correctly points out, the motions for sanctions are not being sought pursuant to Rule 37(a)(1), which pertains to seeking orders on motions to compel or for protective orders, but pursuant to Rule 26(g)(3) and Rules 37(b)(2) and (c)(1) which do not impose a meet and confer requirement prior to filing a motion. [Doc. 158 at 2 n.1]. In fact, the omission of a meet and confer requirement under Rules 37(b)(2) and (c)(1) is illustrated by the inclusion of such a requirement in order to seek sanctions pursuant to Rule 37(d), pertaining to the failure to appear for deposition or to respond to discovery. See Fed. R. Civ. P. 37(d)(1)(B) (“A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.”); and see In the Matter of Johnson, 2017 WL 6371347, at *2 (Bankr. N.D. Ga. December 12, 2017) (discussing sanctions pursuant to Rules 37(b)(2) and (d) and noting that subsection (d) requires certification of a good faith attempt to meet and confer). Additionally, as Defendant points out [Doc. 158 at 1-3] and based on the prior discovery disputes in this case, the court finds that Defendant made repeated, unfruitful attempts to resolve discovery issues and to obtain information missing from Plaintiff's disclosures before the motions for sanctions were filed.

*4 Second, Plaintiff claims that the supplemental motion for sanctions is both untimely and not proper, that is, Defendant should have instead immediately sought a protective order. [Doc. 167 at 5-6]. As discussed further infra, the supplemental motion for sanctions addresses the timing of and completeness of Plaintiff's damage calculation disclosures and responses to discovery requests and the court's prior order “that supplemental discovery responses from Plaintiff regarding damage computation and calculation are not due until sufficiently in advance of the Rule 30(b)(6) deposition [of Plaintiff's employee] to allow for Defendant to prepare for said deposition.” [Doc. 141 at 3]. Upon agreement with Plaintiff, Defendant noticed the Rule 30(b)(6) deposition for February 22, 2019, and Plaintiff produced an excel workbook with thousands of entries the day before the deposition pertaining to damages and, on February 26, 2019, four days after the scheduled deposition produced a second excel worksheet also containing thousands of entries pertaining to damages. [Doc. 166 at 2-4]. On February 22, 2019, Defendant conducted the Rule 30(b)(6) deposition and, at the end of the day, requested additional time for the deposition due to the untimely disclosure by Plaintiff which Plaintiff refused to allow. Defendant then “suspended” the deposition in order to seek relief from the court. [Id.; Exh. B (“Rule 30(b)(6) Dep.”) ]. In support of the procedural objection to the supplemental motion, Plaintiff cites to the decision in Ferguson v. North Broward Hosp. Dist., 2011 WL 1496771 (S.D. Fla. April 19, 2011). [Doc. 167 at 5-6]. That decision is based on facts that are inapposite to those before this court and provide no support for Plaintiff's arguments.

In Ferguson, the defendant suspended a deposition being conducted by the plaintiff based on the plaintiff's allegedly abusive questioning of the witness. See 2011 WL 1496771, at *1. Pursuant to Rule 30(d), “the deponent or a party may move to terminate or limit [a deposition while it is being conducted] on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.... If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.” Fed. R. Civ. P. 30(d)(3)(A). In Ferguson, the defendant waited twenty-two days before filing the motion for protective order and for sanctions which the court held was untimely. See Ferguson, 2011 WL 1496771, at *1. As Defendant Hall's counsel correctly stated in suspending the Rule 30(b)(6) deposition in this case, Defendant was conducting the deposition, not Plaintiff, and Defendant was not interposing objections to Plaintiff's examination of the deponent. Defendant noticed the deposition and could end the deposition, as to questioning on Defendant's behalf, at any time - no protective order was required as would be case if Defendant had sought to restrict or limit the questioning by Plaintiff at a deposition noticed by Plaintiff. The question before this court is not whether a protective order should be entered, but, whether under the circumstances of Plaintiff's production of Rule 26(a) and (e) disclosures and responses to discovery regarding damage calculations, Defendant is entitled to sanctions, such as, additional time to conduct the Rule 30(b)(6) deposition. Additionally, as Defendant points out, the supplemental motion for sanctions was filed within a reasonable time after this court granted permission to do so. [Doc. 168 at 4].

c. Law Governing Motions for Sanctions

In the motion for sanctions, Defendant seeks the sanction of dismissal of the amended complaint based on the cumulative impact of the varying violations or, in the alternative, the imposition of lesser sanctions depending on the nature of the alleged underlying discovery violation. [Doc. 156 at 22-24]. “The purpose of discovery is to obtain the disclosure of all relevant information so that disputed issues are resolved fairly and justly in the light of a full and accurate understanding of the facts.” Sexton v. United States, 2001 WL 649445, at *1 (M.D. Fla. April 12, 2001). As is especially true under the terms of this court's discovery guidelines, “[d]iscovery operates with minimal judicial supervision absent a dispute requiring judicial intervention” and “is accomplished voluntarily - that is, the parties disclose relevant information without the need for court orders compelling disclosure. In this manner, lawyers do their duty as officers of the court seeking the truth.” Id. And in doing so, “attorneys advise their clients to make honest, complete, and non-evasive disclosures in discovery matters, and also advise their clients of the spectrum of sanctions they face for violating that duty.” Id. (citing Fed. R. Civ. P. 26(g)).

*5 Rules 26 and 37 of the Federal Rules of Civil Procedure, along with the court's inherent power, govern sanctions for discovery violations. “U.S. District Courts have broad inherent powers to regulate litigation and to punish litigants for abusive conduct.... In addition, Rule 37(b) ... provides that a district court may impose sanctions for failure to comply with discovery orders.” H&R Block Eastern Enterprises, Inc. v. Chambers, 2007 WL 9710307, at *5 (N.D. Ga. October 3, 2007) (citations omitted). “ ‘Rule 37 sanctions are intended to prevent unfair prejudice to litigants and insure the integrity of the discovery process.’ ... The failure to comply with the Court's order need not be willful or in bad faith unless the court ‘imposes the most severe sanction-default or dismissal.’ ” CS Business Systems, Inc. v. Schar, 2017 WL 9939116, at *1 (M.D. Fla. September 5, 2017) (citations omitted); and see Functional Products Trading, S.A. v. JITC, LLC, 2013 WL 4482507, at *6 (N.D. Ga. August 20, 2013) (noting “that ‘[v]iolation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal’ ” and that “ ‘the severe sanction of dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders’ ”) (citations omitted). In addition to the potential sanctions listed under Rule 37(b)(2)(A), subsection (b)(2)(C), requires that a party or the attorney for the party disobeying a discovery order, unless substantially justified in the conduct or other circumstances make the award unjust, be ordered to pay the reasonable expenses, including attorney's fees, caused by the failure to obey. Functional Products, 4482507, at *7. Accordingly, courts “have broad discretion in imposing sanctions under Rules 37[ (b)(2)(A) and (C) ]” in order “to compensate the court and parties, facilitate discovery and deter abuse of the discovery process.” Chambers, 2007 WL 9710307, at *6 (“it is important that the non-offending party be compensated by parties, and their counsel alike if the circumstances warrant, for the added expenses caused by the violation of discovery orders”).

In order to find that sanctions are appropriate pursuant to Rule 37(b)(2), the “key phrase” for consideration by the court “is ‘fails to obey an order to provide or permit discovery.’ ” In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d 1335, 1353 (N.D. Ga. 2012)(citation omitted). The Eleventh Circuit Court of Appeals has held that Rule 37(b)(2) does not extend to violations of protective orders or similar rulings restricting or limiting the scope of discovery issued pursuant to Rule 26(c) because such an order “is not ‘an order to provide or permit discovery.’ ” Lipscher v. LRP Publications, Inc., 266 F.3d 1305, 1323 (11th Cir. 2001) (citation omitted); and see Lanard Toys Ltd. v. Dolgencorp LLC, 2019 WL 1003134, at *2 n.2 (M.D. Fla. March 1, 2019) (noting that the defendants' moved for sanctions under the court's inherent power based on the plaintiff's repeated violations of the court's protective orders because “the Eleventh Circuit has held that sanctions under Federal Rule 37(b)(2) are unavailable for violations like those” in that case); Mitchell Co., Inc. v. Campus III, 2009 WL 3110367, at *2 (S.D. Ala. September 24, 2009) (noting that the court was “unfortunately” unable to impose sanctions pursuant to Rule 37(b)(2) for the plaintiff's violation of the court's order to return and not make use of certain information improperly obtained from the defendant because that order “was in the nature of a protective order and thus sanctions cannot be imposed under Rule 37(b)”); Valdez-Castillo v. Busch Entertainment Corp., 2008 WL 4999175, * *5-6 (S.D. Fla. November 20, 2008) (same).[6]

Additionally, “Rule 37(c) grants the Court the power to impose sanctions for, inter alia, a party's failure to disclose information required by Rule 26(a) or 26(e)(1), or a party's submission of false or misleading documents.” SCADIF, S.A. v. First Union Nat'l Bank, 208 F. Supp. 2d 1352, 1377 (S.D. Fla. 2002); Sexton, 2001 WL 649445, at *2 (“Rule 37[ (c)(1) ] authorize[s] sanctions, including payment of attorney's fees, for a party's failure to disclose or supplement disclosure [under Rule 26] without substantial justification.”). And “Rule 26(g) requires attorneys to vouch for the completeness, truthfulness and good faith nature of disclosures, discovery requests, responses and objections. If a party violates 26(g), the rule empowers the Court to impose ‘an appropriate sanction.’ ” SCADIF, S.A., 208 F. Supp. 2d at 1377 (quoting Fed. R. Civ. P. 26(g)(3)); see Malautea v. Suzuki Motor Co., LTD., 987 F.2d 1536, 1545 (11th Cir. 1993) (“Rule 26(g) makes the imposition of ‘an appropriate sanction’ mandatory if a discovery ... response ... is interposed for an improper purpose.”) (citation omitted); In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1351, 1357-58 (finding that sanctions were appropriate under Rule 26(g)and Rule 37(c)(1) for the defendant's failure to conduct a reasonable search to ensure the complete and timely disclosure of items sought in discovery requests). “Rule 37(c) does not require [the moving party] to show that [the non-producing party] acted in bad faith.... Instead, [the non-producing party] must show that its conduct is substantially justified.” Fanelli v. BMC Software, Inc., 2015 WL 13122473, at *3 (N.D. Ga. April 29, 2015); and see Stallworth v. E-Z Serve Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001) (“The burden rests upon the non-producing party to show that its actions were substantially justified or harmless.”). “The federal discovery rules place an affirmative duty upon a party and its counsel to produce not only responsive materials of which they are aware, but also those which they reasonably ought to have been aware.” Stallworth, 199 F.R.D. at 369.

*6 “Under Rule 37(c)(1), a party who fails to provide information as required by Rule 26(e) is not allowed to use that information unless its failure was substantially justified or is harmless. [A]n individual's discovery conduct should be found substantially justified under Rule 37 if it is a response to a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1358 (citation and internal quotation marks omitted). “Exclusion, however, is not mandatory....Rule 37(c)(1) provides that in addition to or instead of excluding the late-produced information, the Court may order a party to pay the reasonable expenses caused by its failure; inform the jury of the party's failure; or impose other appropriate sanctions, including those listed in Rule 37(b)(2)(A)(i)-(iv).” Id.

The court will apply these guidelines in resolving the pending motions for sanctions.

d. Failure to Obey Court Orders Setting Limitations On Scope of Discovery

The court will first address Plaintiff's repeated failures to comply with the orders of the District Judge and the undersigned limiting the permissible scope of discovery. Defendant clearly and succinctly sets forth the various discovery orders limiting the scope of discovery following the District Court's ruling on the motion to dismiss.[7] [Doc. 156 at 11-16; and see Docs. 71, 141, 151, 171; DJ 1/22/19 Order].Plaintiff's response to the motion for sanctions does not address or respond in substance to Defendant's request for sanctions based on non-compliance with the orders of the DJ and the undersigned restricting and limiting the scope of discovery. [Doc. 157]. That silence speaks loudly to the substantive merits of Defendant's motion. However, procedurally, as this court set forth supra, Rule 37(b)(2) cannot provide a basis for imposition of sanctions for Plaintiff's repeated violations of those orders. See Lipscher, 266 F.3d at 1323. Neither party recognized and addressed this procedural hurdle. Although Rule 37 may not provide a basis for consideration of and imposition of sanctions for Plaintiff's conduct, the court's inherent power may do so.

As stated, a party sanctioned under the court's inherent authority must be afforded due process, “both in determining the bad faith required to invoke the court's inherent power to impose sanctions and in assessing fees.” Sunshine Jr. Stores, Inc., 456 F.3d at 1306-07 (“ ‘Due process requires that the [party] be given fair notice that [its] conduct may warrant sanctions and the reasons why.’ ”) (citation omitted). “Importantly, a party can be given notice from either the court or from the party seeking sanctions.... The party subject to sanctions must be afforded the opportunity to justify its actions either orally or in writing.” Id. at 1307. The court finds that under the circumstances of this case, Plaintiff received sufficient notice that its conduct in repeatedly exceeding the scope of discovery could result in sanctions and was afforded the opportunity to respond in writing. Plaintiff responded to the motion for sanctions but did not address the conduct at issue. [Doc. 157]. And to the extent that Plaintiff may contend that specific notice was not given that the court may exercise its inherent powers sua sponte, in lieu of Rule 37(b)(2), to consider imposition of sanctions, Plaintiff will have the opportunity to object and be heard after this report and recommendation is issued. See Martin v. Citimortgage, 2010 WL 3418320, at * *2, 6 & n.8 (N.D. Ga. August 3, 2010) (citing Shrivers v. Int'l Brotherhood of Elec. Workers Local Union 349, 262 Fed. Appx. 121, 125,127 (11th Cir. 2008)); see also United States v. Willis, 273 F.3d 592, 597 & n.6 (5th Cir. 2001) (noting that two concerns of notice and an opportunity to be heard were satisfied because the magistrate judge raised the issue and allowed the party the opportunity to argue against those findings to the district court); accord Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009).

The court will summarize the orders and Plaintiff's conduct supporting a finding that Plaintiff has acted in bad faith while conducting discovery. In the January 11, 2018, order on third-party motions for protective orders and to quash subpoenas to third-party witnesses, Pamela Eversole and Robert LaPorte, the District Court noted “that Plaintiff in particular has approached discovery as if it were to be conducted from the perspective of the Amended Complaint without any consideration given to the Court's lengthy ruling cabining the scope of the Amended Complaint.” [Doc. 71 at 9]. The court specifically noted that the scope of the subpoenas were “extraordinarily broad” in light of the facts that Solutions II was no longer a defendant[8] and that Eversole and LaPorte never were named defendants. [Id. at 12]. After specifically pointing out why a number of the items sought by the subpoenas were beyond the scope of discovery and were not properly restricted to Defendant Hall's activities or the remaining claims in the litigation [Id. at 12-16] and stating that the order “gives Plaintiff's counsel plenty of notice of the Court's view of the scope of this litigation” [Id. at 17], the District Court granted the motions but allowed Plaintiff to serve the revised subpoenas focusing “specifically on any information Non-Parties Eversole and LaPorte have concerning (1) Defendant Hall's emails of allegedly trade secret information from his Agilysys email account to his personal email account and (2) statements Defendant Hall allegedly made to unknown customers about Agilysys's capabilities with respect to IBM solutions” [Id.].

*8 Plaintiff nonetheless served expansive discovery requests in July 2018 seeking information about Defendant Hall's and Solutions II's activities and business operations not even remotely complying with the restrictions on discovery set by the District Court. [Doc. 156 (citing Docs. 113-7, 113-8) ]. These discovery requests were part of the discovery disputes resolved by the undersigned on November 5, 2018. [Docs. 141, 151]. As Defendant correctly points out, the undersigned stated that “once [Plaintiff] identified the specific trade secrets, [Plaintiff's] discovery request ought to be linked to what [Defendant's] done in connection with those.” [Doc. 151 at 27]. As outlined in Defendant's sanction motion, the court specifically addressed a number of Plaintiff's expansive, over broad discovery requests pertaining to activities at Solutions II and Defendant's actions after he began his employment with Solutions II that had no apparent connection to the claims remaining in the litigation and ruled that Defendant would not be required to respond to the requests. [Doc. 156 (citing Doc. 151 at 34-37) ].

On January 22, 2019, during Defendant Hall's deposition, the District Court was asked to resolve a dispute regarding the scope of the questioning, especially with respect to Defendant's actions on behalf of and while working for Solutions II. [DJ 1/22/19 Order]. With respect to the documents containing alleged trade secrets Defendant Hall emailed from his Agilysys email account to his personal email account before he began his employment with Solutions II, the District Court ruled that Plaintiff “can stick to questioning [Defendant Hall] about the documents that he took, what he did with them, and then I don't see how you get beyond that at all. Anything beyond that is getting into specifics of what he has done with certain contacts and certain customers since he's been with Solutions II, which I don't think you can get into.... But yes, I do think that you can go as far as what did you do with these, did you call the people who are listed on this.... And that's it.” [Id. at 293-94].[9] The court clearly restricted any questioning about Solutions II's operations and Defendant's work with customers on behalf of Solutions II because “we're just going into how he transitioned from his former employer to Solutions II. And then it's pretty much shut down because Solutions II is no longer in this case.” [Id. at 289].

Having been instructed three times as to the permissible scope of discovery and arguing and losing yet again in attempts to expand the scope of discovery, the court finds no other explanation for Defendant's conduct when serving new requests for production and interrogatories on January 22, 2019, and when subpoenaing William Bowling, Solutions II's President and CEO, on February 11, 2019, for a deposition and, in so doing, once again exceeding the scope of the discovery restrictions, than bad faith - especially when considered in light of Plaintiff's attempts to justify the scope of the documents sought in connection with the subpoena for Bowling. [Docs. 159, 159-3 (“Bowling Subpoena”), 162].

The revised requests for production of documents violate both the District Judge's and undersigned's orders. [Doc. 156 at 14-15, Exh. D]. Plaintiff totally ignored the District Judge's restriction on obtaining information about Solutions II and Defendant's employment at Solutions II since March 31, 2016, and this court's order to limit the scope of discovery to obtaining information regarding Defendant Hall's conduct regarding specifically identified trade secrets and not his work with Solutions II generally. The requests continued, despite this court's explicit directions to the contrary, to be broad, vague and seeking discovery not related to the claims remaining in the case. The discovery requests, such as Interrogatory #11, seek information about the claim dismissed by District Judge Ross concerning alleged interference with Plaintiff's business by Solutions II and/or LaPorte's and Eversole's hiring. [Id., Exh. D, Requests for Production of Documents #5 and #8; Interrogatories #10 and #11].

In the court's opinion, Plaintiff's conduct in ignoring the limitations placed on the scope of discovery which resulted in needlessly requiring both the District Judge and the undersigned to address discovery disputes and requiring the expenditure of Defendant Hall's and Mr. Bowling's resources to obtain relief from repeated attempts to flaunt these orders is the essence of bad faith. Defendant seeks the sanction of dismissal of the amended complaint for this conduct - as well as the other conduct underlying the motions for sanctions. Under both the court's inherent power and Rule 37, the “ ‘severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.’ ” Sunshine Jr. Stores, Inc., 456 F.3d at 1306 (citation omitted); and see Dolgencorp, LLC, 2019 WL 1003134, at *2 n.3 (“The Eleventh Circuit has held ... that dismissal of a case is ‘warranted only upon a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice.’ ”) (citation omitted; emphasis in original). For this conduct, the only lesser sanction that may be imposed is the payment of the expenses, including attorney's fees, resulting from Plaintiff's bad faith in conducting discovery. The court will resolve the issue of the type of sanctions to be imposed after consideration of the remaining grounds for imposition of sanctions.

e. Documents Withheld From Production

*10 Defendant Hall contends that sanctions should be imposed pursuant to Rules 26(g)(3) and Rule 37(c)(1) for Plaintiff's failure to produce responses to discovery requests identified as four emails arguably supporting Defendant's defense of the claims and which were responsive to Defendant's Requests for Production of Documents (“RFPD”) numbers 22 and 29: (1) April 26, 2016, email with attachments from David Baldwin, Plaintiff's employee, to Defendant four weeks after Defendant's resignation containing detailed information about Plaintiff's customers; (2) May 12, 2016, email from Baldwin to Defendant at his new business address (Solutions II) again containing Plaintiff's customer information; (3) May 10, 2016, email from Baldwin to Defendant at his Solutions II address also containing Plaintiff's customer information; and (4) a July 2016 internal email between two of Plaintiff's employees, Robert LaPorte advising Bryan Griffin that he was resigning his employment because Rob Jacks, employed in Plaintiff's management, had stated that Plaintiff was getting out of the hardware business. [Doc. 156 at 4-8]. As set forth supra, Rule 26(g)(1) requires a signature certifying discovery responses which “[b]y signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after reasonable inquiry: ... (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules ...; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action....” Fed. R. Civ. P. 26(g)(1). And Rule 26(g)(3) imposes sanctions if, without substantial justification, the rule is violated. Additionally, Rule 37(c)(1) provides for the imposition of sanctions if a party fails to supplement responses to discovery as required by Rule 26(e).

As noted, Plaintiff does not dispute that the four emails were not produced in the initial or supplemental responses to Defendant Hall's discovery requests to produce documents responsive to numbers 22 and 29, does not argue that the emails do not fall within the scope of the discovery requests and does not dispute that Defendant received the emails from third parties, an employee of Plaintiff, David Baldwin, and the attorney for a former employee of Plaintiff, Robert LaPorte. [Doc. 157 at 4-6]. Plaintiff does not address at all the internal email involving LaPorte and a member of Plaintiff's management. Plaintiff likewise does not dispute that the emails are pertinent to Defendant Hall's defenses to the claims in the amended complaint. [Id.]. Instead, Plaintiff seeks to divert attention from its conduct by claiming that the discovery requests at issue were “obscenely broad” and impossible to comply with in response to discovery. Plaintiff is quite correct that its initial responses to the discovery requests at issue objected on these grounds. [Id., Exh. A]. Accordingly, Plaintiff asserts that it “has not withheld any documents that it discovered through its reasonable, proportional search for documents responsive to Defendant's discovery requests....” [Id. at 5].[12]

The problems for Plaintiff are that the citation to the discovery responses is incomplete and misleading - troubling in itself - and also that the court not Plaintiff should make the decision as to whether Plaintiff's actions satisfied Rule 26(e). However, Plaintiff's supplemental discovery responses to requests numbers 22 and 29 - in response to this court's October 17, 2018, directive,[13] as well as earlier in preparation of the joint statements regarding the discovery issues [Docs. 113 and 137] - that (with the exception of a specifically identified document) no documents were being withheld pursuant to its objections [Doc. 157, Exh. A, at 32 and 42] prevented Defendant from being able to argue to the contrary and the court from ruling on the issue. Because Plaintiff informed the court and Defendant that no documents were being withheld, the court did not address whether Defendant's requests numbered 22 and 29 were over broad, whether Plaintiff's search for responsive documents was reasonable and whether, if not, additional searches should be conducted.

*11 Plaintiff's attempt to obfuscate its failure to comply with its discovery obligations is meritless. The February 5, 2019, production of the three emails from Baldwin to Plaintiff by Baldwin - not Plaintiff - in response to Defendant's subpoena to Baldwin does not satisfy Plaintiff's discovery obligations especially in light of the fact that Plaintiff had confirmed that no documents responsive to requests numbered 22 and 29 were being withheld. See Schar, 2017 WL 9939116, at *2 (finding that Plaintiff's argument in response to the motion for sanctions that the discovery requests were over broad as an excuse for failing to produce or supplement discovery responses meritless when the plaintiff had not previously opposed the discovery requests and, accordingly, finding sanctions were appropriate); In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1357 (rejecting Delta's claim “that it timely produced the recently discovered documents (always in its possession) after the Court's deadline[,]” especially when “Delta represented that it had produced every requested document in its possession” in response to prior inquiries and in discovery responses).

And the court also finds that Plaintiff's failure to produce emails between Baldwin, who testified at his deposition that he had never searched for documents or been asked to search for documents before receiving the subpoena, and Defendant is not substantially justified. SeeFanelli, 2015 WL 13122473, at *3 (noting that witness testified that to her knowledge the defendant never conducted a search of her email or calendar, although aware that the plaintiff sought information involving this witness, and finding no substantial justification for the defendant's failure to conduct an adequate and complete search). As is evident just from the three emails in issue, Baldwin is not some obscure employee who had no regular contact with Defendant such that Plaintiff would not be expected to search his emails for communications with Defendant. Likewise, the court finds it hard to believe that Plaintiff did not search the email account for its former employee, LaPorte, given Plaintiff's repeated efforts to obtain discovery from Defendant and Solutions II about LaPorte and his alleged conduct in cooperation with Solutions II in interfering with Plaintiff's business. As the court in In re Delta/AirTran Baggage Fee Antitrust Litigation stated: “Rule 26(e) does not forgive [a party's] failure to timely conduct an adequate and complete search for responsive documents. Even though subsection (A) required [the party] to supplement incorrect or incomplete information, it does not grant [that party] a ‘right to produce information in a belated fashion.’ ” 846 F. Supp. 2d at 1357-58 (citation omitted); and see SCADIF, S.A., 208 F. Supp. 2d at 1379 (“a failure to timely produce known, requested and discoverable documents is a serious procedural and ethical violation, and one that cannot be dismissed lightly, even where the failure is the result of mere carelessness”). Further evidencing Plaintiff's lack of justification for its conduct, Plaintiff has been non-responsive to Defendant's attempts to clarify which custodians' accounts were searched in response to the discovery requests which prevented both Defendant and the court from evaluating whether the circumstances support Plaintiff's unsubstantiated, belated assertion that the search was adequate and reasonable. [Doc. 156 at 9].

Accordingly, the court finds that Plaintiff, without substantial justification, failed to supplement discovery responses as required by Rule 26(e)and is, therefore, subject to sanctions pursuant to both Rule 26(g)(3) and Rule 37(c)(1). As noted, Defendant seeks dismissal of the amended complaint or, for this conduct, the lesser sanction of prohibiting Plaintiff from opposing Defendant's defenses related to the withheld documents, that is, that “Plaintiff knowingly, voluntarily and without restriction provided what it contends is trade secret information to a competitor” and that “Plaintiff's management informed employees in early 2016 that Plaintiff was getting out of the hardware business” - a sanction authorized by Rule 37(c)(1)(C)'s reference to Rule 37(b)(2)(A)(ii) (“prohibiting the disobedient party from supporting or opposing designated claims or defenses ...”). [Doc. 156 at 23-24]. As stated above, the court will determine the appropriate sanction(s) to be imposed after consideration of the remaining issues before the court.

f. Failure to Supplement Initial Disclosures - Witnesses

In response, Plaintiff does not deny Defendant's assertions regarding the initial and supplement disclosures or discovery responses regarding these witnesses but only, apparently, seeks to justify the failure by stating that, since the filing of the motion for sanctions, Plaintiff had provided contact information for the former employees identified as damage witnesses - as well as identifying additional damages witnesses - “as part of its efforts to update its Initial Disclosures.” [Doc. 157]. In reply, Defendant notes that the contact information included only telephone numbers and email addresses - not the most recent addresses in Plaintiff's possession for its former employees as needed for service of subpoenas. [Doc. 158 at 2-3 & n.2].

Rule 26(a)(1) requires not only the identification of witnesses but contact information, including addresses - if known. And the court finds that Plaintiff should have provided at least the last known address for its former employees by updating both the initial disclosures promptly upon those employees leaving Plaintiff's business. But the real problem is not what information was finally provided by Plaintiff after the filing of the motion for sanctions but the inexcusable fact that, although Plaintiff was well aware that one witness was no longer employed as of July 2018 and that the second witness was no longer employed as of December 2018 by Plaintiff, the disclosures and discovery responses were not timely updated. Plaintiff offers no justification at all for that failure.

Rule 26(g) provides for sanctions for non-compliance with Rule 26(e) as does Rule 37(c)(1). Rule 37(c)(1) provides, in addition to or in lieu of other sanctions, that a party failing to provide information required by or to identify a witness as required by Rule 26(a) and (e) is not permitted to use that “witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” The Eleventh Circuit has explained, “Rule 37(c), which is a ‘self-executing sanction for failure to make a disclosure,’ is ‘the more effective enforcement’ mechanism of the disclosure requirement when ‘the party required to make the disclosure would need the material to support its own contentions.’ ” Barron v. Federal Reserve Bank of Atlanta, 129 Fed. Appx. 512, 519 (11th Cir. 2005) (quoting Fed. R. Civ. P. 37, advisory committee's note (1993)). “[T]o determine whether the ‘self-executing’ exclusionary sanction of Rule 37(c)(1) applies, the Court must examine whether [the party's] omission was ‘substantially justified’ or is harmless.” Nance v. Ricoh Electronics, Inc., 2008 WL 926662, at *3 (N.D. Ga. April 4, 2008). Plaintiff's failure to supplement, without any justification, the witness information in a timely manner and then to delay updating that information until pressed by Defendant for deposition dates and even then to provide incomplete contact information has prejudiced Defendant who was not able to depose the witnesses before the close of the extended discovery period about the important matter of damages. Plaintiff's failure to act is not justified and is harmful. See Chemfree Corp. v. J. Walter, Inc., 2009 WL 2914276, at *3 (N.D. Ga. May 27, 2009) (“Because Defendants did not disclose Binner and Calto in their discovery disclosures, Plaintiff was not given the opportunity to depose Binner and Calto on the issues related to this case.... Defendants may not offer the testimony of Binner and Calto, whether live or by deposition, unless for impeachment.”).

*13 The court will determine, in conjunction with the consideration of the other sanctionable conduct by Plaintiff, what sanction is appropriate for the failure to supplement disclosures regarding these two damage witnesses.

g. Failure to Supplement Initial Disclosures/Comply with Court Order - Damages

Pursuant to Rules 26(g)(3) and 37(c)(1), Defendant contends that Plaintiff failed to provide complete initial disclosures or to timely supplement the disclosures concerning damage calculations and, pursuant to Rule 37(b)(2), that Plaintiff failed to comply with the undersigned's discovery order issued November 5, 2018, regarding producing damage calculations sufficiently in advance of the deposition of Plaintiff's Rule 30(b)(6) deponent. [Docs. 141, 151, 166]. Additionally, Defendant asserts that Plaintiff's tardy production still does not comply with the court's order or properly supplement the disclosures required for damages. [Doc. 166].

The supplemental motion for sanctions addresses the timing of and completeness of Plaintiff's damage calculation disclosures and responses to discovery requests and the court's November 5, 2018, order “that supplemental discovery responses from Plaintiff regarding damage computation and calculation are not due until sufficiently in advance of the Rule 30(b)(6) deposition [of Plaintiff's employee] to allow for Defendant to prepare for said deposition.” [Doc. 141 at 3]. Upon agreement with Plaintiff, Defendant noticed the Rule 30(b)(6) deposition for February 22, 2019 (with discovery closing on February 28, 2019), and, although Defendant began requesting damage calculation disclosures on February 13, 2019, Plaintiff did not produce an excel workbook with thousands of entries until the day before the deposition (at the start of another fact witness deposition) and, on February 26, 2019, four days after the scheduled deposition, produced a second excel worksheet also containing thousands of entries pertaining to damages. [Doc. 166 at 2-4]. Plaintiff does not dispute the timing for the production of the disclosures regarding damages or, for the most part, Defendant's description of the voluminous documents produced. [Doc. 167].[14] However, Plaintiff contends that “a succinct summary page-which neatly detailed Agilysys's damage computation-” and the “well prepared” Rule 30(b)(6) witness who could explain the damage calculation fully satisfied Plaintiff's obligation. [Id. at 7, Exh. B].[15] On February 22, 2019, Defendant conducted the Rule 30(b)(6) deposition at which Defendant states the witness also relied upon another, at that time undisclosed document, to provide answers. At the end of the day, Defendant's counsel requested additional time for the deposition due to the untimely disclosure by Plaintiff which Plaintiff refused to allow. Defendant then “suspended” the deposition in order seek relief from the court. [Id.; Exh. B (“Rule 30(b)(6) Dep.”) ].[16] Four days later, Plaintiff produced the second set of spreadsheets which Defendant believes may be the document used by the witness at the deposition. [Doc. 166 at 4-5 & n.3].

*14 At the November 5, 2018, discovery conference, one of the issues before the court was Plaintiff's failure to provide supplemental initial disclosures and complete responses to discovery requests regarding the computation of damages. [Doc. 151]. Plaintiff repeatedly responded to discovery requests regarding damage calculations by stating that a “full assessment of its damages” could not be made pending further discovery and development of the facts. [Doc. 166-1 (“Plaintiff's Initial Disclosures and Discovery Responses”) ]. To resolve the dispute, and allow Plaintiff time to gather the facts necessary to satisfy Rules 26(a)(1)(A) and Rule 26(e), as well as the discovery requests, the court “directed that supplemental discovery responses from Plaintiff regarding damage computation and calculation are not due until sufficiently in advance of the Rule 30(b)(6) deposition to allow for Defendant to prepare for said deposition.” [Doc. 141 at 3]. The court did not set a specific amount of time before the deposition and erroneously trusted that the court's order would be adhered to by Plaintiff as stated without a rigid deadline. The court finds, for the reasons discussed infra, that Plaintiff did not comply with the court's order and that the untimely damage disclosures do not comply with Rule 26(a)(1)(A)'s requirements.

“To satisfy Rule 26, the disclosing party, the Plaintiff in this case, must meet four requirements. First, the party is required to disclose each category of damages they are seeking. Second, the party must supply a computation of the damages with supporting documentation.” American Enterprises Collision Center, Inc. v. Traverlers Property and Casualty Co. of America, 2010 WL 11507335, at *3 (M.D. Fla. September 17, 2010); and see Mee Industries v. Dow Chemical Co., 608 F.3d 1202, 1221 (11th Cir. 2010) (same). As stated by the District Court in Shock v. Aerospace Integration Corp., 2009 WL 595923 (N.D. Fla. March 6, 2009), “[P]ursuant to Rule 26, a defendant is entitled to a specific computation of plaintiff's damages, and is entitled to have made available for inspection and copying the documents and other evidentiary material on which such computation is based.... [B]y its very terms Rule 26(a) requires more than providing-without any explanation-undifferentiated financial statements; it requires a computation, supported by documents.” Id., at *4 (citations and internal quotation marks omitted). “Third, the party must provide the above information voluntarily, without awaiting a discovery request or court orders compelling disclosure.” American Enterprises Collision Center, Inc., 2010 WL 11507335, at *3; and see Nagele v. Delta Air Lines, Inc., 2017 WL 6398337, at *1 (S.D. Fla. December 13, 2017) (“Plaintiff may not shift to Defendant the burden of attempting to determine the amount of Plaintiff's alleged damages. Rather, Plaintiff must compute in dollars how much she claims for each category of damages.”). And, “Rule 26 ‘imposes a burden of disclosure that includes the functional equivalent of a standing Request for Production under Rule 34. A party claiming damages or other monetary relief must, in addition to disclosing the calculation of such damages, make available the supporting documents for inspection and copying as if a request for such material had been made under Rule 34.’ ” American Enterprises Collision Center, Inc., 2010 WL 11507335, at *4 (citation omitted). Also, as noted, Rule 26(e) imposes a duty on the plaintiff to supplement damage disclosures. See Mee Industries, 608 F.3d at 1221.

The issue of imposition of sanctions with respect to Plaintiff's conduct in providing supplemental disclosures and discovery responses relating to damages does not arise out Plaintiff's incomplete initial disclosures, incomplete supplemental disclosures or incomplete discovery responses up to the time of the November 5, 2018, discovery conference. Instead, the questions before the court are whether the requirements of Rule 26(a)(1)(A)(iii) are now subsequently satisfied and whether Plaintiff complied with this court's order “that supplemental discovery responses from Plaintiff regarding damage computation and calculation are not due until sufficiently in advance of the Rule 30(b)(6) deposition to allow for Defendant to prepare for said deposition.” [Doc. 141 at 3]. That court order entailed two requirements, that the disclosures comply with Rule 26(a)(1)(A)(iii) and that the fully compliant disclosures be served sufficiently before the Rule 30(b)(6)deposition to allow Defendant adequate time to prepare. Plaintiff did not comply in either respect.

*15 Whatever made up the contents of the damage discovery disclosure, Plaintiff's production of that information the day before the Rule 30(b)(6) deposition and supplementing the disclosure four days after the deposition was not timely and did not comply with the court's order. Plaintiff has not provided an explanation for the untimely disclosure. As Defendant points out, Plaintiff obviously had the information sufficiently in advance of the Rule 30(b)(6) deposition for the witness to be “well prepared” by Plaintiff's counsel - which obviously did not occur during the day on February 21, because, like Defendant's counsel, Plaintiff's counsel was in another deposition all day. [Doc. 168 at 2]. Also, as Defendant states, Plaintiff's reason for failing to produce the discovery and supplement the disclosures previously, that is, to conduct discovery, is undermined by the discovery conducted by Plaintiff. [Id.]. Plaintiff's claims were initially filed in September 2016 [Doc. 1], and Plaintiff's inability to calculate the damages flowing from Defendant's alleged misconduct sooner than a week before the close of discovery defies reason.

And the timing of the voluminous production in this case is, in itself, sanctionable. In City of Mountain Park, Georgia v. Lakeside at Ansley, LLC, 2008 WL 11334069 (N.D. Ga. March 19, 2008), the plaintiff produced voluminous documents from its expert witnesses after close of business on a Friday before the scheduled Monday expert witness depositions, such that the defendants were unable to fully prepare for the depositions. Id., at *1. The court held, “In light of the plaintiff's previous conduct in discovery, which played a significant role in lengthening the discovery process, its last-minute dump of documents on the defendants the weekend before a Monday deposition-with no advance warning or explanation-warrants sanctions.” Id.; and see Local Access, LLC v. Peerless Network, Inc., 2017 WL 784828, at * *2-3 (M.D. Fla. March 1, 2017) (finding that the plaintiff's production of information, “a two-page ‘Damages Summary,’ ” at the corporate representative's deposition ten days before the close of discovery, which failed to identify how each category of damages was calculated and producing no documents in support of the calculations, were not only untimely but “clearly fail[ed] to comply with Rule 26(a)(1)(A)(iii)'s requirements” and that the plaintiff's subsequent discovery responses regarding damages, including identifying more than 77,000 documents is the “type of document-dump” precisely designed by Rule 26 to prevent).[17]

The court also finds that the disclosure did not satisfy Rule 26(a)(1)(A)(iii). The single page provided by Plaintiff as a “summary” and the other production of information on the eve of and after the deposition - whether or not the Rule 30(b)(6) deponent could explain the information - does not contain a calculation or explanation of damages by category or linked to any claim in the amended complaint and does not identify much less provide the underlying documentation. Plaintiff was obligated to provide both initial and supplemental disclosures satisfying Rule 26 - the purpose of which was to allow Defendant to conduct a meaningful examination of Plaintiff's corporate representative. Plaintiff failed to fulfill that obligation.

And the court finds that Plaintiff has not provided any justification much less substantial justification for the untimely disclosures and failure to comply with the court's order. See Lincoln Rock, LLC v. City of Tampa, 2016 WL 6138653, at *12 (M.D. Fla. October 21, 2016) (“Factors to be considered are ‘the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party if the information had been admitted.’ ”) (citation omitted). Plaintiff basically contends that Defendant is making a big deal about nothing because Defendant now has the information and was able to depose Plaintiff's corporate representative. [Doc. 168 at 6-8]. Plaintiff is wrong primarily because the disclosures remain incomplete. Defendant has been harmed by Plaintiff's untimely disclosures and responses to the discovery. Not only was Defendant's counsel unable to adequately prepare for the Rule 30(b)(6) deposition, Plaintiff's production of additional information after the deposition and just a few days before the close of discovery - which Plaintiff does not address - foreclosed Defendant's ability to examine the deponent on this information. See Local Access, LLC, 2017 WL 784828, at *4 (finding that untimely disclosure, ten days before the close of discovery, was not harmless because the defendant “had no meaningful opportunity to conduct discovery on the issue of [the plaintiff's] damages”)[18]; Lincoln Rock, LLC, 2016 WL 6138653, at *12 (finding that the plaintiff's supplemental damage disclosures occurring just weeks before the close of discovery and after the deposition of witnesses with knowledge was harmful and prejudicial to defendant).

*16 The question before the court remains, in light of the totality of the Plaintiff's conduct, the appropriate sanctions to be imposed.

h. Sanctions

In summary, the court concludes that Plaintiff's actions during discovery violated both the District Judge's and the undersigned's orders limiting the scope of discovery and that Plaintiff's conduct was willful constituting sanctionable conduct pursuant to the court's inherent powers, see Purchasing Power, LLC, 851 F.3d at 1224-25; Dolgencorp LLC, 2019 WL 1003134, at *2; that Plaintiff failed to produce relevant and material documents, the four emails, responsive to discovery requests without substantial justification and resulting in prejudice to Defendant constituting sanctionable conduct pursuant to Rules 26(g)(3) and 37(c)(1), see In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1351-1352, 1355-59; that Plaintiff failed to supplement initial disclosures in a timely manner regarding two damage witnesses resulting in prejudice to Defendant without substantial justification constituting sanctionable conduct pursuant to Rules 26(g)(3) and 37(c)(1), see In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1351-1352, 1355-59; and that Plaintiff failed to both abide by the court's order to provide damage calculations in a timely manner and failed to comply with obligations to timely supplement damage disclosure and responses to discovery as required, without substantial justification and resulting in prejudice to Defendant, constituting sanctionable conduct pursuant to Rules 37(b)(2) and (c)(1), see Lincoln Rock, LLC, 2016 WL 6138653, at * *11-12; Chambers, 2007 WL 9710307, at *6.

The court will first consider whether, considering all of the sanctionable conduct that the court has found during the course of discovery, dismissal of the amended complaint is appropriate pursuant to the court's inherent powers and/or pursuant to Rules 26(g)(3) (“If a certification violates this [§ 26(g)(1) ] without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.”), 37(b)(2)(A)(v) (providing for sanctions for failure “to obey an order to provide or permit discovery” including “dismissing the action or proceeding in whole or in part”) and 37(c)(1)(C) (providing for sanctions for failure to comply with Rules 26(a) or (e) including “dismissing the action or proceeding in whole or in part”). Defendant presents strong and cogent arguments in support of imposition of this sanction. [Doc. 156 at 16-23; Doc. 166 at 6 n.4]. As already determined, Plaintiff's conduct is not substantially justified and, as regards the District Judge's and the undersigned's orders limiting discovery, was willful and undertaken in bad faith. And, as noted, the court is not persuaded by Plaintiff's arguments nor Plaintiff's attempts to deflect from its misconduct by pointing to Defendant's actions or by arguing about matters immaterial to the issues before the court. However, the court does not believe that the facts, at this time, support imposing the sanction of dismissal of the claims in the amended complaint.

Although both the District Judge and the undersigned have ruled against Plaintiff repeatedly and/or ordered Plaintiff to produce discovery, none of those orders or rulings have included the imposition of any sanctions to date nor included a warning to Plaintiff that failure to comply, either with court orders or the Federal discovery rules, could result in sanctions, including dismissal. Predominately, the cases in which courts have imposed either the sanction of dismissal or default involved a party continuing to violate a court order or discovery rules after being warned that such continued conduct could result in dismissal or default or after lesser sanctions had been imposed to no effect. See, e.g., Kelly, 376 Fed. Appx. at 914-15 (“Although dismissal is an extreme sanction, Kelly had been warned that his case could be dismissed if he continued to violate the Federal Rules of Civil Procedure.”); Solvay Specialty Polymers USA, LLC v. Liu, ––– F.R.D. ––––, ––––, 2019 WL 1975472, at * *2-3 (N.D. Ga. March 28, 2019) (finding that the “unique circumstances” - including the defendant's absence from the case for over ten months, failure to appear for his deposition twice and repeated failure respond to interrogatories, after being ordered to do so by the court and being warned that a default would be entered for non-compliance - supported a finding of bad faith and wilfulness and an entry of default against the defendant); Soto v. Miami-Dade County, 281 F. Supp. 3d 1320, 1323-24 (S.D. Fla. 2017)(imposing sanction of dismissal due to the plaintiff's repeated failures to comply, in any meaningful way, with discovery after multiple hearings and orders and repeated warnings to the plaintiff with no results and after finding that court's prior warnings and attempts to gain the plaintiff's cooperation were unsuccessful and that further similar efforts with lesser sanctions would be unsuccessful); Archer v. Air Jamaica, 268 F.R.D. 401, 402-03 (S.D. Fla. 2010) (finding that the plaintiffs' repeated failures to respond to discovery or to the motions to compel and for sanctions, after the court set deadlines for responses and warned that failure to comply could result in dismissal, “demonstrates that [the plaintiffs] are not likely to comply in the future if the Court were to impose less drastic sanctions now” and imposing sanction of dismissal); Antalan v. Degussa-Huls Corp., 202 F. Supp. 2d 1331, 1337-38 (S.D. Ala. 2002) (finding that lesser sanction than dismissal is insufficient in light of the court having reprimanded the plaintiff twice and “promised dismissal if he did not cooperate with the court-ordered deposition” neither of which “fazed the Plaintiff's recalcitrance” and imposing sanction of dismissal).

*18 This being said, as the court stated in Scipione, given the record outlined supra in this case, “Defendant [Hall's] argument that Plaintiff [Agilysys] acted with bad faith thereby warranting dismissal of the case is reasonable, the [undersigned] has given Defendant's requested sanction serious consideration. However, after careful examination of the record, even though Plaintiff's conduct is inexcusable and unacceptable, dismissal of the case is unwarranted because less severe sanctions exist that can appropriately address Plaintiff's conduct.” Scipione, 294 F.R.D. at 666; and see Kipperman v. Onex Corp., 260 F.R.D. 682, 700 (N.D. Ga. 2009) (declining to impose sanction of dismissal, although the court found that the defendants' conduct “[w]as a textbook case of discovery abuse” that prejudiced the plaintiff by being denied the documents necessary to depose witnesses and by having to expend time and money to obtain discovery, including expert reports and electronic discovery, to which the defendants' “only defense is their unpersuasive argument that they have now complied and Plaintiff has suffered no prejudice”) (emphasis in original).[19] Accordingly, the court recommends that the following sanctions be imposed.[20]

With respect to Plaintiff's failure to produce electronic discovery, including emails, responsive to RFPD numbers 22 and 29, the court notes that Defendant seeks the sanction of prohibiting Plaintiff from opposing Defendant's defenses related to the withheld documents, that is, that “Plaintiff knowingly, voluntarily and without restriction provided what it contends is trade secret information to a competitor” and that “Plaintiff's management informed employees in early 2016 that Plaintiff was getting out of the hardware business” - a sanction authorized by Rule 37(c)(1)(C)'s reference to Rule 37(b)(2)(A)(ii) (“prohibiting the disobedient party from supporting or opposing designated claims or defenses ...”). [Doc. 156 at 23-24]. In lieu of imposition of this sanction, the undersigned recommends that the District Court direct Defendant to identify a list of current or former employee/custodians of Plaintiff, with search criteria and time frame, to be provided to Plaintiff and that Plaintiff be ordered to conduct a search of its electronic databases for information responsive to RFPD numbers 22 and 29 utilizing the employee/custodian, search criteria and time frame provided by Defendant within thirty days of receipt from Defendant. The undersigned recommends warning Plaintiff that failure to promptly and completely respond as ordered by the court will result in, at least, imposition of the sanction provided by Rule 37(b)(2)(A)(ii) and requested by Defendant, if not dismissal of the amended complaint. Furthermore, the court recommends that Plaintiff bear the reasonable attorney's fees and expenses associated with Defendant preparing and providing the employee/custodian list with search criteria and time frame as well as the reasonable attorney's fees and expenses associated with reviewing and analyzing the information produced from the electronic search. Furthermore, if Defendant requests and the District Court allows additional discovery, including deposition(s), as a result of the production of responsive documents by Plaintiff, the court recommends that Plaintiff bear Defendant's reasonable attorney's fees and expenses associated with conducting that discovery. SeeFanelli, 2015 WL 13122473, at *4 (sanctioning the defendant under Rule 37(c)(1)(A) and ordering “it to pay reasonable attorney's fees incurred by Plaintiff as a result of Defendant's failure to timely produce” the documents); In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1353, 1358-59 (requiring the noncompliant party to pay opposing party's “reasonable expenses and attorneys' fees caused by [the] failure, which includes [the] request for fees and expenses related to [the sanctions] motion [and] the extended discovery period”); Chambers, 2007 WL 9710307, at *6 (“it is important that the non-offending party be compensated by parties, and their counsel alike if the circumstances warrant, for the added expenses caused by the violation of discovery orders”).

*19 With respect to Plaintiff's failure to timely supplement initial disclosures regarding contact information for damage witnesses, Yolanda Brown and Joshua Elder, Rule 37(c)(1) provides, in addition to or in lieu of other sanctions, that a party failing to provide information required by or to identify a witness as required by Rule 26(a) and (e) is not permitted to use that “witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Defendant seeks this sanction. “Exclusion, however, is not mandatory.” In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1358. In lieu of foreclosing Plaintiff's use of these witnesses,[21] the court recommends that the District Court order Plaintiff to secure the attendance of and produce the witnesses for depositions by Defendant, by a date set by the Distric Court,[22] and that Plaintiff be ordered to pay the reasonable expenses of the depositions and Defendant's reasonable attorney's fees associated with preparing for and conducting the depositions. The court further recommends that the District Court warn Plaintiff that failure to comply with the order regarding the depositions of these witnesses will result in the imposition of sanctions pursuant to Rule 37(c)(1), if not, dismissal of the amended complaint. See Fanelli, 2015 WL 13122473, at *4; In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1353, 1358-59; Chambers, 2007 WL 9710307, at *6.

Likewise, with respect to Plaintiff's untimely and incomplete supplemental damage disclosures and discovery responses, Defendant seeks the specific sanction of exclusion of evidence supporting trade secrets damages pursuant to Rules 26(g)(3), 37(b)(2), and 37(c)(1). [Doc. 166 at 6-9]. In the alternative, Defendant requests that Plaintiff be ordered to supplement damages calculations, that the Rule 30(b)(6)deposition be reopened, and that Plaintiff pay the expenses and fees associated with further damage discovery. [Id. at 9-10]. The undersigned recommends that the District Court sanction Plaintiff by ordering that disclosures and responses to discovery regarding damages be produced as required by Rule 26(a)(1)(A)(iii) within twenty-one days of adoption of this order. See Shock, 2009 WL 595923, at *4 (“[P]ursuant to Rule 26, a defendant is entitled to a specific computation of plaintiff's damages, and is entitled to have made available for inspection and copying the documents and other evidentiary material on which such computation is based.... [B]y its very terms Rule 26(a)requires more than providing-without any explanation-undifferentiated financial statements; it requires a computation, supported by documents.”) (citations and internal quotation marks omitted). The undersigned further recommends that Plaintiff be ordered to produce the Rule 30(b)(6) deponent for further examination by Defendant no sooner than five business days after full and complete compliance with damage disclosures. See Lincoln Rock, LLC, 2016 WL 6138653, at *13 (ordering the reopening of discovery for the limited purpose of allowing the defendant to conduct discovery regarding the plaintiff's supplemental damages disclosure). And the undersigned recommends that Plaintiff be ordered to bear the reasonable expenses and attorney's fees associated with preparing for and conducting the reopened deposition. See Fanelli, 2015 WL 13122473, at *4; In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d at 1353, 1358-59; Chambers, 2007 WL 9710307, at *6. And the undersigned recommends that Plaintiff be warned that failure to provide compliant damages disclosures and/or produce a fully prepared Rule 30(b)(6) deponent may result in sanctions of, at least, exclusion of evidence of trade secrets damages and/or dismissal of the amended complaint.

*20 Finally, the court recommends that the District Court order Plaintiff to pay the reasonable expenses and attorney's fees associated with filing the motion and supplemental motion for sanctions. [Docs. 156 and 166]. The court notes that when resolving the third-party motion for a protective order [Doc. 159], the court declined at that time to impose the sanction of attorney's fees on any party [Doc. 171 at 11]. However, in light of the totality of the circumstances and the wilfulness of Plaintiff's conduct in ignoring the orders limiting the scope of discovery, the undersigned recommends that Plaintiff pay the reasonable expenses and attorney's fees associated with filing the motion for protective order to counsel for third-party Solutions II.[23] The court finds that imposition of these additional monetary sanctions against Plaintiff are provided for pursuant to Rules 26(g)(3), 37(b)(2)(C), and 37(c)(1) and/or the court's inherent power and are necessary in order “to compensate the court and parties, facilitate discovery and deter abuse of the discovery process.” Chambers, 2007 WL 9710307, at *6.

III. Conclusion

For the foregoing reasons and cited authority, this court RECOMMENDS that Defendant Hall's motion [Doc. 156] and supplemental motion [Doc. 166] for sanctions be GRANTED IN PART and DENIED IN PART as set forth herein.

The court, having addressed the discovery matters referred by the District Judge [Docs. 163 and 169], DIRECTS the clerk of court to terminate the reference to the undersigned.

SO ORDERED AND RECOMMENDED this 29th day of May, 2019.

The pending motions for sanctions were referred due to the previous referral of discovery disputes between the parties to the undersigned resulting in an oral order [Doc. 151] and supplemental written order [Doc. 141] entered on November 5, 2018, resolving those disputes. Also, referred to the undersigned along with the motion for sanctions was a third-party motion for a protective order. [Docs. 159, 163].

Although Plaintiff presents other reasons for the court not to impose sanctions, Plaintiff does not dispute that these documents were not produced in response to the RFPD and does not dispute that these documents would have otherwise fallen within the scope of the discovery requests. Plaintiff also does not dispute that the contents of these emails are pertinent to Defendant's defenses to the claims. [Doc. 157 at 4-6].

Again, Plaintiff does not dispute that the information regarding these witnesses was not timely supplemented only that, since the filing of the motion for sanctions, “contact information” has been provided. [Doc. 157 at 3]. Defendant notes that the information provided does not include last known addresses needed for service of subpoenas. [Doc. 158 at 2-3].

Plaintiff does not dispute the timing for the production of the disclosures regarding damages or, for the most part, Defendant's description of the voluminous documents produced. [Doc. 167].

Plaintiff also contends that Defendant failed to comply with the District Judge's pretrial instructions regarding discovery disputes. [Id. at 2]. The undersigned leaves enforcement, if deemed appropriate, of those pretrial instructions to the District Court. And the court notes that the supplemental motion for sanctions was filed with the permission of the undersigned during the time that the discovery matters were on referral from the District Court.

As discussed infra, although Rule 37(b) does not provide a basis for imposition of sanctions when a party fails to abide by an order limiting or restricting discovery, the court may under appropriate circumstances impose sanctions pursuant to its inherent power. See Lipscher, 266 F.3d at 1323 (“Because the district court did not invoke its inherent powers in awarding the sanctions, we need not speculate as to whether these powers could justify the sanctions in this case.”); Dolgencorp LLC, 2019 WL 1003134, *2 (determining whether the sanctions should be imposed for violation of the protective order under the court's inherent powers).

The District Court dismissed all claims against Solutions II, Inc., the company that Defendant Hall began working for after his resignation from Plaintiff, and, in so doing, the District Court determined that the ruling severely curtailed the scope of discovery regarding either Solutions II actions or Defendant Hall's actions - as well as the actions of other third parties - after the date that Defendant Hall began his employment with Solutions II. [Docs. 52 and 71].

According to the District Judge, and clearly set forth in her order, any claims involving allegations against Solutions II (and, for that matter, Defendant Hall,) that Plaintiff's customers were solicited away by false statements or that Plaintiff's contractual and business relations were interfered with when Solutions II hired Eversole and LaPorte or that Eversole and LaPorte worked with Solutions II to interfere with Plaintiff's business were dismissed resulting in limitations on the scope of discovery sought on these issues and on dismissed claims. [Id. at 4-9].

The undersigned is citing to the page number of Defendant Hall's deposition.

The information reviewed included, documents 159, 160, 162, 71, DJ 1/22/19 Order, and the court's November 5, 2018, resolution of the discovery dispute, document 151.

As noted supra, Judge Ross had limited discovery to Defendant Hall's actions up to the time that he left Agilysys and specifically foreclosed discovery of Solutions II's actions and Defendant Hall's actions on behalf of Solutions II. [Doc. 71; DJ 1/22/19 Order]. Judge Ross further set specific limits on the discovery that could be sought directly from LaPorte and Eversole as regards employment with Solutions II due to the fact that claims were dismissed against Solutions II. [Doc. 71].

And Plaintiff's additional attempt to divert attention from its actions by claiming that Defendant failed to produce the emails received from Baldwin in response to Plaintiff's discovery requests [Doc. 157 at 6] does not impact a finding as to whether Plaintiff violated Rule 26(e). The fact that the emails were sent to Defendant and, therefore, that he arguably had knowledge of the contents and was not harmed by the failure to timely produce the emails may impact the type of sanction to be imposed.

On October 17, 2018, preliminary to the scheduled November 5, 2018, discovery conference, an email was sent to the attorneys for the parties directing “each party ... to specifically identify WITH RESPECT TO ONLY THE DISCOVERY REQUESTS IN DISPUTE ... whether ANY responses/documents have been withheld from production based on an objection (such as, relevancy, burden, vagueness, etc) by identifying the Interrogatory/Response; if NO documents withheld, confirm that statement....”

Again, instead of addressing the issues raised by Defendant, Plaintiff spends most of the response brief complaining about Defendant's conduct - not before the court - apparently in an effort to distract from the issues before the court. [Doc. 167 at 1-5]. The court is not distracted, and allegations about Defendant's conduct, even if relevant, do not excuse failures by Plaintiff to comply with the court's orders and discovery obligations.

The exhibit identified by Plaintiff is a short list with two categories, “Ken Hall Opps” and “Non-Ken Hall iSeries Opps” and under each heading providing for each quarter of the identified fiscal year a total amount for the “Revenue/Bookings” for that quarter. [Id.]. Neither the identified exhibit, nor any other item identified by Plaintiff, provides the category/nature of the damages being sought with a calculation for that category, the relationship between the calculation of damages to each alleged claim in the amended complaint, particularly the trade secrets allegedly misappropriated, or the supporting documents upon which the spreadsheets are based. [Id.].

Defendant also asserts that, during the Rule 30(b)(6) deposition - through questioning by Plaintiff's counsel - a previously undisclosed theory of damages, that is, “the value of [Plaintiff's] hardware business line,” was identified. [Doc. 167 at 8; Doc. 168 at 3 n.2].

The court notes that in Local Access, LLC, the corporate deponent also was unable to provide additional explanation as to the calculation of damages. Id., at *2.

The district court's decision to impose sanctions, that is, barring the plaintiff from presenting evidence at trial regarding damages, see id., was affirmed on denial of a motion for reconsideration, Local Access, LLC v. Peerless Network, Inc., 2017 WL 951651, at *2 (M.D. Fla. March 10, 2017).

The court further stated that “Defendants' defense completely ignores the burdens the court and Plaintiff have endured to garner their compliance and the destructive precedent this court would set were it to allow Defendants to escape the consequences of three years of bad behavior simply because they believe they have now complied” and indicated that significant monetary sanctions would be imposed. Id. at 700 (emphasis in original).

The court makes these recommendations recognizing that in order to impose the sanctions and to alleviate the prejudice to Defendant resulting from Plaintiff's misconduct, will require a limited reopening of the discovery period and further delay resolution of the claims already pending for almost three years. Also, the undersigned acknowledges that Plaintiff's past conduct does not engender much hope of full and complete compliance without further court intervention but, in that event, the sanction of dismissal of the amended complaint is available to address any future misconduct. If the District Court is not inclined to reopen discovery, then lesser sanctions that would address the prejudice to Defendant flowing from Plaintiff's failure to produce electronic discovery, to provide information about the two damage witnesses and to timely provide damage calculations and supporting documents may require, as Defendant requests, foreclosing Plaintiff from relying on certain defenses, from relying on the statements or testimony of damage witnesses, and, arguably, from even presenting any evidence on the issue of trade secret damages.

The court notes that Plaintiff referenced also supplementing disclosures with other witnesses to damage calculations. [Doc. 157 at 3]. Any such witnesses would be treated in the same manner as recommended infra to allow Defendant an opportunity to depose such witnesses.

The timing of the depositions may depend on when Plaintiff finally properly and completely provides damage calculations and supporting documents to Defendant.

In In re Delta/AirTran Baggage Fee Antitrust Litigation, with respect to determining the amount of fees and expenses for conducting additional discovery and for the filing of motions related to the imposition of sanctions, the court stated that it “strongly expects Plaintiffs and [Defendant] to confer and agree on a reasonable amount for Plaintiffs' expenses and fees incurred in connection with” the motions related to discovery sanctions and “incurred in connection with the extended discovery period.” 846 F. Supp. 2d at 1359. In lieu thereof, the court ordered, with respect to the sanction motions, that within fourteen days of entry of the order on the motions, and with respect to the extended discovery period, that within fourteen days of that period closing, that “Plaintiff shall file a brief in support of their claim for expenses and fees, accompanied by the affidavit of Plaintiffs' lead counsel attesting to the requested amount and reasonableness thereof; fourteen days after Plaintiffs' filing, [Defendant] shall file a brief in opposition to Plaintiff's request for expenses and fees; and fourteen days after [Defendant's] filing[,] Plaintiffs may file a reply brief in support of their claim for expenses and fees.... [T]he parties are cautioned that any such submissions should be succinct, and not voluminous.” Id.