Defendant Bashlin Industries, Inc. (“Bashlin”) is a Pennsylvania corporation that designs, manufactures, and sells climbing equipment. (Compl. 2, 7 (Docket Entry No. 1).) One of Bashlin's products, at issue in this case, is a climbing harness called “the Patriot.” (Id. 9.)
On July 12, 2016, Plaintiff David Engeling attended a training program at the Southeast Lineman Training Center (“SLTC”), a Georgia limited liability company and a former co-defendant in this case, to receive certification as a lineman. (Compl. 12.) During this training event, Mr. Engeling used one of Bashlin's Patriot harnesses. (Id.) Plaintiffs allege that one of the Patriot's latches came undone while Mr. Engeling used it, causing him to fall and sustain severe injuries. (Id.) Plaintiffs later filed this action to recover damages on September 7, 2017. (See generally Compl.)
After discovery commenced, Plaintiffs served Bashlin with interrogatories and requests for production of documents. (Pls.' Ex. A (Docket Entry No. 47-1); Pls.' Ex. B (Docket Entry No. 47-2).) Bashlin's responses to the interrogatories asserted, among other things, (1) that there had been no recall notices for the Patriot and (2) that Bashlin had received no reports of a Patriot's latch coming undone. (Pls.' Ex. C (Docket Entry No. 47-3) 15, 17.) Bashlin's responses to the document requests included an incident report addressing Mr. Engeling's fall, the Patriot's user manual, a safety booklet for Bashlin's products, a component list for the Patriot, invoices, a testing report for the Patriot composed by Bashlin, and an ergonomics report for the Patriot composed by Ergonomist Approved, LLC. (See Pls.' Ex. E (Docket Entry No. 47-5).)
Finding these disclosures inadequate, Plaintiffs' counsel sent a good faith letter to Bashlin's counsel on January 30, 2018, asking Bashlin to supplement its discovery responses. (Pls.' Ex. F (Docket Entry No. 47-6).) Bashlin sent supplemental responses on March 23, 2018. (Pls.' Ex. G (Docket Entry No. 47-7); Pls.' Ex. H (Docket Entry No. 47-8).) These largely denied the existence of any additional documents, and they further stated that “there are no prior incidents/complaints of latch performance failure, and therefore no information/documents related thereto.” (Pls.' Ex. H 14.)
Bashlin's counsel also included a letter addressing certain points Plaintiffs had raised in their January 30 request. (Pls.' Ex. I (Docket Entry No. 47-9).) The letter explained that Bashlin is a “small company,” that many of its communications are verbal rather than electronic, and that “Bashlin has no written communications with SLTC or any third party regarding the Patriot harness and latches.” (See Pls. Ex. I at 2.)
Plaintiffs subsequently scheduled depositions of four Bashlin employees for May 22, 2018 and May 23, 2018 in Grove City, Pennsylvania. These employees were Rod Paul (“Paul”), Doug Parker (“Parker”), Brad McGill (“McGill”), and Bob Schell (“Schell”). At the start of the first deposition, Bashlin's counsel asked to go off-record and handed Plaintiffs' counsel a set of documents previously unproduced. (See Mot. to Compel at 11; Resp. to Mot. to Compel (Docket Entry No. 48) at 5-6.) These included (1) an internal memorandum discussing a 2015 recall of the Patriot, (2) a 2015 letter to Bashlin customers concerning the recall, (3) six pages of internal and external emails discussing the Patriot, and (4) memoranda recording multiple trips and communications between Parker and SLTC employees. (See Exs. 1, 2, 3, and 4 to Dep. of Roderick Alan Paul (Docket Entry No. 47-10).)
*2 The depositions themselves also suggested the existence of other documents Bashlin had not produced to this point. Paul and McGill both testified that Bashlin does record customer returns of the Patriot. (Paul Dep. at 61:10-18; Dep. of Bradley S. McGill (Docket Entry No. 47-12) at 34: 2-23.) Paul stated that some of these returns have included questions about the Patriot's gate hanging in an open position. (Paul Dep. at 61: 10-18.) McGill also confirmed that the ergonomics report Bashlin had produced previously was merely a summary, and a longer report existed. (McGill Dep. at 132: 10-20.)
The Bashlin employees further testified about their efforts to locate relevant documents and information for this case. Paul testified that he searched for “anything relative to this particular incident.” (Paul Dep. at 88: 7-14.) Parker testified that he did not participate in searching for responsive documents. (Dep. of Douglas Andrew Parker (Docket Entry No. 47-11) at 44: 8-12.) McGill testified that he “asked Mr. [Rod] Paul for any information he had and asked Mr. [Doug] Parker for any information he would have had.” (McGill Dep. at 177: 2-18.)
After the depositions, Plaintiffs' counsel sent a second good faith letter. (Pls.' Ex. M (Docket Entry No. 47-13).) The letter informed Bashlin's counsel that the employees' testimony had brought Plaintiffs' attention to several new pieces of information, including: (1) customer complaints regarding the Patriot's connector, (2) the existence of customer return forms for the Patriot, (3) an engineering change to the Patriot following the 2015 recall, (4) another design change to the Patriot then in progress, and (5) the fact that the ergonomics report included with Bashlin's first set of discovery responses was merely a summary of a longer report. (Id. at 1). In light of these revelations, Plaintiffs asked Bashlin to agree to the appointment of a special master, who would oversee Bashlin's search for documents and electronically stored information (“ESI”). (Id. at 2). In the alternative, Plaintiffs proposed that Bashlin allow them to retain a third-party vendor to search for documents and ESI. (Id. at 3).
Bashlin sent a third set of supplemental documents on July 9, 2018, to which Plaintiffs responded with a third good faith letter on July 17, 2018. (Pls.' Ex. O (Docket Entry No. 47-15).) The third letter reiterated Plaintiffs' request for a special master, asked for a forensic examination of Bashlin's ESI, and sought permission to re-depose the Bashlin employees in light of the belatedly produced documents. (Id.at 3.)
In addition to their discovery requests toward Bashlin, Plaintiffs have sought and received emails from Bashlin's former co-defendant SLTC. These emails include discussions of the Patriot between Paul and SLTC employees. (See Pls.' Ex. P (Docket Entry No. 47-16).) Plaintiffs also claim to have acquired further emails from non-party Hards Welding, which Bashlin has not produced. (Mot. to Compel at 18.).
Federal Rule of Civil Procedure 26(g) requires that discovery disclosures and responses be signed by “at least one attorney of record” in his or her name. Fed. R. Civ. P. 26(g). This signature certifies to the court that, “after a reasonable inquiry,” the disclosure is “complete and correct as of the time it is made” to the best of the attorney's knowledge. Id. “If a certification violates this rule 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.” Fed. R. Civ. P. 26(g)(3).
*3 Rule 26(g) broadly “imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.” See Fed. R. Civ. P. 26(g) advisory committee's note; see also Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1305 (11th Cir. 2003) (quoting the advisory committee's note and stating that “Rule 26 explicitly encourages the imposition of sanctions for violations of the rule”).
To further enforce this obligation of responsible discovery, Rule 37 provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness ... unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In addition to or instead of excluding evidence, the court may impose other sanctions on motion and after giving an opportunity to be heard. These sanctions may include (1) ordering payment of the reasonable expenses and attorney's fees caused by the failure, (2) informing the jury of the party's failure, (3) directing that certain facts be taken as established, (4) striking pleadings, or (5) rendering default judgment. See id. (c)(1)(A)-(C). In crafting sanctions under Rule 37, district courts have broad discretion. Dorey v. Dorey, 609 F.2d 1128, 1135 (5th Cir. 1980).
Thus, when ruling on a motion for discovery-related sanctions, the Court first must assess whether an opposing party or opposing counsel violated their duties under Rule 26. If so, and if the violation was neither substantially justified nor harmless, the Court must impose sanctions that are appropriate under the particular circumstances. See Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993)(emphasizing that sanctions under Rule 37 “are mandatory unless the court finds a substantial justification for discovery delays”).
For the reasons discussed below, the Court finds that Bashlin's discovery conduct violated its obligations under Rule 26, and those violations were not substantially justified or harmless. The Court does not find a forensic inspection of Bashlin's records to be warranted at this time, however, and declines to require a search by a third-party vendor. The Court instead orders Bashlin to pay Plaintiffs' costs of re-deposing the Bashlin employees, as well as Plaintiffs' costs and reasonable attorney's fees of filing their Motion to Compel.
Bashlin's efforts to locate responsive documents and information in this case, particularly during the discovery period before the depositions of May 2018, simply fall short of the diligence demanded by Rule 26. Bashlin's initial responses to Plaintiffs' document requests produced fewer than thirty documents, none of which involved emails or correspondence with customers. When Plaintiff's counsel expressed skepticism toward these disclosures, Bashlin's counsel repeatedly informed Plaintiffs that there were no other documents responsive to their requests, and he certified as much to the Court by signing Bashlin's discovery filings.
*4 Many of these assurances, however, proved to be untrue. In response to Plaintiffs' request for “any and all recall notices for The Patriot harnesses,” for example, Bashlin stated that “[t]here have been no recalls.” Months later, Bashlin later produced multiple records of a 2015 recall of the Patriot, including the personal emails of several Bashlin employees and a notice sent to Bashlin customers. This revelation occurred on the morning of several depositions key to Plaintiffs' case.
Bashlin also claimed to have no written records of correspondence with SLTC or third parties regarding the sale or design of the Patriot, apart from SLTC's invoices. Bashlin maintained that it lacked these records in its supplemental responses, which counsel filed on March 23, 2018. Yet these records also emerged at the May 2018 depositions.
Moreover, the testimony of the Bashlin employees does not inspire confidence in Bashlin's efforts to locate responsive material. Paul testified that he searched only for documents related to the specific accident underlying this case, Parker did not participate at all, and McGill appears to have done little more than ask Paul and Parker what they had found. Based on these accounts, it appears that many of Bashlin's difficulties may have arisen from a lack of coordination, communication, or direction on the part of its staff.
Ultimately, Bashlin failed on multiple occasions to provide complete responses to Plaintiffs' document requests and interrogatories. Bashlin's initial responses omitted several categories of documents, and affirmatively denied their existence, only for them to emerge after multiple inquiries from Plaintiffs. Bashlin's counsel certified to the Court through his signature that these filings were complete to the best of his knowledge. Even recognizing that Bashlin has supplemented its discovery responses at various times and occasionally of its own volition, belated supplementation is not always enough to cure a violation of Rule 26. See In re Delta/AirTran Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1357 (N.D. Ga. 2012) (“Rule 26(e) does not forgive Delta's failure to timely conduct an adequate and complete search for responsive documents.”); Venator v. Interstate Res., Inc., No. CV415-086, 2016 WL 1574090, at *9 (S.D. Ga. Apr. 15, 2016) (“[D]oing the right thing upon discovery of documents does not erase a Rule 26(g) violation for failing to conduct a reasonable search in the first place.”). While respectful of the fact that document review is often a mundane and arduous task, the Court cannot conclude that Bashlin's delay in providing these records complies with the “spirit and purposes” of the Federal Rules governing discovery.
B. Substantial Justification and Harmlessness
Bashlin argues that sanctions are nonetheless inappropriate in this case for two reasons. First, Bashlin claims to have acted in good faith throughout the discovery process, producing responsive documents whenever it became aware of them. Second, Bashlin asserts that it is a small company with limited infrastructure and administrative staff, which made it difficult to locate many of the records and emails Plaintiffs requested. The Court finds that neither of these arguments substantially justifies Bashlin's delay.
Once the Court has found a violation of Rule 26, “ ‘[t]he burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.’ ” Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). “[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.’ ” Devaney, 989 F.2d at 1163 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
*5 Bashlin's assertions of good faith therefore miss the mark, for good faith is not the standard of Rule 37. Substantial justification is the standard. See Fanelli v. BMC Software, Inc., No. 1:11-CV-436-LMM, 2015 WL 13122473, at *3 (N.D. Ga. Apr. 29, 2015) (citing Devaney, 989 F.2d at 1162). Although a party's good intentions may be important to consider when assessing whether certain conduct was reasonable, they are not of themselves a defense to discovery sanctions. The Court therefore moves on to Bashlin's second argument.
Bashlin emphasizes its small size throughout its brief and, apart from its repeated assertions of good faith, appears to justify its conduct mostly on that basis. Bashlin claims that its main office is “approximately 6 times the size of a small hotel conference room,” that it does not employ an information technology (“IT”) specialist, and that it does not maintain company emails on a server. (Def.'s Br. Resp. Mot. to Compel at 3, 8.) Bashlin's administrative staff is “small ... consisting of 2 customer service representatives, four (4) sales representatives, one engineer and one individual responsible for human resources.” (Id. at 3.)
The Court recognizes that these limited resources likely made the discovery process more cumbersome for Bashlin than it would have been for larger businesses. Taking into account all the circumstances of this case, however, the Court cannot find Bashlin's conduct reasonable. All of Bashlin's responses prior to May 22 denied the existence of any written communications with SLTC, any customer feedback regarding the Patriot, and any recalls of the Patriot. Yet Bashlin ultimately had records of all these things somewhere in its possession, including multiple communications concerning a recall in 2015, and it failed to produce them until the morning of key depositions.
An email server and an IT specialist might have made documents and ESI easier to find, but Bashlin nonetheless had a responsibility under the Rules to conduct a reasonable search through reasonable methods. Indeed, considering that Plaintiffs were able to procure some of Bashlin's emails from SLTC and other third parties, it is clear that Bashlin might have located certain documents simply by contacting its business associates. Thus, even without an email server or a larger administrative staff, the Court finds no substantial justification for Bashlin's failure to track down documents that Plaintiffs were able to find on their own.
The Court also concludes that Bashlin's behavior was not harmless to Plaintiffs. In particular, had Plaintiffs known while preparing for the May 2018 depositions that Bashlin recalled the Patriot three years ago, or that other customers had commented on the Patriot's connector, their questioning of the Bashlin employees might have been entirely different and more valuable to their case. Furthermore, if Bashlin had provided this information more promptly, many of the Plaintiffs' document requests and letters would have been unnecessary. Bashlin's failure to meet its obligations under the Rules therefore caused needless expense and frustration in this litigation.
1. Search by a Third-Party Vendor
*6 Suspicious that Bashlin still may possess other undisclosed evidence relevant to this case, Plaintiffs move for a “forensic inspection” of Bashlin's files and ESI by a third-party vendor. The Court does not find such measures warranted at this time, however, particularly given that Bashlin has shown itself willing to cooperate as discovery progressed.
A similar case from the Southern District of Georgia is instructive. In Venator v. Interstate Resources, Inc., the plaintiffs demanded a site inspection of the defendant's computer systems because it had failed to produce several key documents until late in the discovery period. No. CV415-086, 2016 WL 1574090, (S.D. Ga. Apr. 15, 2016). As here, the plaintiffs argued that the defendant's delay suggested either deliberate concealment or a risk that other documents remained undiscovered. Id. at *14. The court declined to order an outside inspection, however, because “[a]lthough inexcusably late, [defendant]'s immediate production of the supplemental emails upon their discovery points to negligent investigation and subsequent supplementation, not an intent to deceive.”
As discussed above, bad faith is not a prerequisite to discovery sanctions, but an apparent absence of bad faith on Bashlin's part does make certain sanctions inappropriate here. It may be possible that Bashlin intended to conceal certain documents, but for now the Court agrees with Venator's assessment that it is “[m]ore likely ... that [defendant] simply lacked the computer or legal knowledge necessary to appropriately investigate.” Id. Without greater reason to believe that Bashlin is willfully hiding information from Plaintiffs and the Court, opening all of Bashlin's files to a third party would be a more severe sanction than necessary to achieve the purposes of the Rules. Other sanctions are sufficient at this time to reinforce Bashlin's duty to “engage in pretrial discovery in a responsible manner,” and stronger ones are available should Bashlin continue to take that duty too lightly.
2. Re-Deposing the Bashlin Employees
Plaintiffs also seek permission to re-depose the four Bashlin employees from the May 2018 depositions. They further move for the Court to order Bashlin to pay the costs of these depositions. Bashlin does not oppose Plaintiffs request to re-depose the employees “regarding matters contained in documents that were subject to production prior to May 22, 2018.” (Def.'s Br. Resp. Mot. to Compel at 6.) Bashlin contends instead that it should not bear the deposition costs because Plaintiffs will not incur any added expense. (Id. at 9-10.) In other words, according to Bashlin, any time and money that Plaintiffs spend re-deposing the employees is simply time and money Plaintiffs would have spent anyway during the first round of depositions, if they had received the undisclosed documents. (Id.)
The Court does not agree with Bashlin's appraisal of the situation. Bashlin's argument must fail because it candidly admits that Bashlin's conduct left Plaintiffs unable to prepare properly for the May 2018 depositions. Having lost the opportunity to ask all necessary questions of the Bashlin employees at the first round of depositions, Plaintiffs now must undergo the entire process a second time, thereby expending unnecessary time, energy, and frustration. Because Bashlin has forced Plaintiffs to schedule and prepare for two sets of depositions, when they should have needed only one, the Court does not agree that Plaintiffs will suffer no additional hardship or cost.
*7 The Court has discretion to impose Plaintiffs' costs as a sanction for Bashlin's delays. If a party fails to disclose information required by Rule 26, “the court ... may order payment of the reasonable expenses, including attorney's fees, caused by the failure....” Fed. R. Civ. P. 37(c)(1)(A). Plaintiffs cite multiple cases within this federal district that have ordered a non-disclosing party to pay the expenses of re-deposing witnesses. See, e.g., Wagner v. Evans, No. 1:04-CV-3696-HTW, 2007 WL 9700669, at *4 (N.D. Ga. Nov. 1, 2007) (imposing costs of re-deposition where the defendant produced key documents on the day of a witness's initial deposition); Fanelli, 2015 WL 13122473, at *4 (imposing costs and attorney's fees, including those associated with a re-deposition, caused by the defendant's belated production of documents). The Court finds this sanction appropriate on the facts of this case, and it therefore orders Bashlin to pay Plaintiffs' costs in re-deposing the employees.
Separate from the issue of costs, Bashlin asks the Court to prohibit Plaintiffs from questioning the employees “regarding topics contained in record requested after May 22, 2018.” (Def.'s Br. Resp. Mot. to Compel at 8.) Specifically, Bashlin seeks to exclude questions “on topics/issues deriving from the documents produced in response to [P]laintiffs' May 24, 2018 Second Request for Production of Documents.” (Id. at 9.)
Bashlin cites no authority to support limiting Plaintiffs' questioning in this way, and the Court does not find it appropriate to do so. Most of the material Bashlin has produced throughout the discovery period was encompassed within Plaintiffs' first request for production of documents. (See Pls.' Br. Reply Mot. to Compel (Docket Entry No. 52) at 9-10.) The majority of documents disclosed both before and after May 22 were therefore subject to disclosure from that point forward, and Bashlin should have produced them well before the May 2018 depositions. To the extent Plaintiffs' second document request was broader than their first, this expanded scope was due to Bashlin's belated disclosures. Narrowing Plaintiffs' questioning as Bashlin requests would allow Bashlin to benefit from its delay and defeat much of the reason for allowing Plaintiffs to re-depose the employees in the first place. Thus, the Court will not prohibit Plaintiffs from questioning the employees about documents they received after May 22, 2018.
3. Costs of Plaintiffs' Motion to Compel
Lastly, Plaintiffs ask the Court to award them the costs and attorney's fees associated with their Motion to Compel, pursuant to Rule 37(a)(5)(A) and Rule 26(g). Bashlin does not respond to this request directly in its brief, perhaps realizing that an award of costs is mandatory should Plaintiffs prevail in their Motion. Where the Court grants a motion under Rule 37, “[it] must
, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). The only exceptions to this requirement are where (1) “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action,” (2) “the opposing party's nondisclosure ... was substantially justified,” or (3) “other circumstances make an award of expenses unjust.” Id.
None of the enumerated exceptions to this mandatory sanction apply here. Plaintiffs did not fail to confer with Bashlin before seeking the Court's intervention, and indeed sent three letters to Bashlin across several months attempting to resolve these issues. The Court also finds no substantial justification for Bashlin's conduct, as described in greater detail above. Finally, Bashlin has pointed to no special circumstances that would make it unjust to award costs in this case. Thus, Rule 37 requires the Court to order Bashlin to pay the costs and attorney's fees associated with Plaintiffs' Motion to Compel.
*8 Independently of Rule 37, the Court also has grounds to impose costs under Rule 26(g). If an attorney's certification violates Rule 26, by filing an incomplete response or disclosure without reasonable inquiry, the Court “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 26(g)(3). This sanction may include an order to pay costs caused by the violation. Id. Because the Court concludes that Rule 37 already mandates such an award, however, there is no need to invoke Rule 26. Pursuant to Rule 37(a)(5)(A), the Court orders Bashlin to pay the costs and reasonable attorney's fees associated with Plaintiffs' Motion to Compel.
ACCORDINGLY, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion to Compel .
The Court GRANTS the portion of the Motion seeking the costs and attorney's fees associated with Plaintiffs' Motion to Compel. The Court also GRANTS the portion of the Motion seeking to re-depose the Bashlin employees. Bashlin will bear the costs associated with such depositions, including court reporter charges, reasonable travel costs, and attorney's fees relating to the depositions. The Court DENIES the portion of the Motion seeking a third-party inspection of Bashlin's records and ESI.
The Court DIRECTS Plaintiffs to file, within fourteen (14) days of this Order, a document specifying and itemizing the attorney's fees and expenses associated with their Motion to Compel. Bashlin may respond or object to that document within fourteen (14) days of Plaintiffs' filing.
IT IS SO ORDERED, this the 20th day of August, 2018.