MICHAEL ROBECK and SHEILA ROBECK, Plaintiffs, v. FORD MOTOR COMPANY, Defendant Civil No. 04-4858 (PJS/JJG) United States District Court, D. Minnesota Filed October 11, 2006 Counsel Daniel T. DeFeo, Gary Stoneking and Angela Cahill for Plaintiffs Theodore Dorenkamp for Defendant Graham, Jeanne J., United States Magistrate Judge REPORT AND RECOMMENDATION *1 The above-entitled matter came on for hearing before the undersigned Magistrate Judge of the District Court on August 10, 2006, on Plaintiffs’ Motion for Further Sanctions Pursuant to Rule 37 (Doc. No. 219). This matter has been referred to the undersigned for resolution of pretrial issues pursuant to 28 U.S.C. § 636 and D. Minn. L.R. 72.1. As a preliminary matter, Local Rule 7.1(f) provides that “[e]xcept with permission of the Court, no memoranda of law will be allowed except as provided by the Rules.” D. Minn. L.R. 7.1(f). On September 27, 2006, Plaintiffs submitted an unsolicited supplemental memorandum of law in support of their motion. The Court fails to find good cause for permitting additional briefing on the instant motion, and thus declines to extend any such permission to do so to Plaintiffs. The Court shall not, therefore, consider Plaintiffs’ supplemental memorandum in its evaluation of the merits of Plaintiffs’ motion for sanctions. I. Background Plaintiffs, Sheila and Michael Robeck(“Plaintiffs” or “the Robecks”) filed this products liability case in November 2004, following a serious single motor-vehicle accident. On December 22, 2001, Sheila Robeck was driving the Robeck’s family vehicle, a Ford F-150 Supercab pick-up truck, southbound on MinnesotaHighway15 near Dassel, Minnesota. Michael Robeck was the front seat passenger. Cody and Nathan Robeck, Plaintiffs’ sons, were back seat passengers. All of the occupants of the vehicle were wearing seat belts. At some point, Sheila Robeck began to pass a slower-moving vehicle. During the passing process, Mrs. Robeck lost control of the Supercab. The truck drove off the road surface into a northbound ditch where it rolled and came to rest on its wheels. At the time of the accident, weather conditions were adverse; light snow was falling and snow and ice were on the road surface. Michael, Cody and Nathan Robeck did not suffer serious injuries. Sheila Robeck, however, sustained serious injuries resulting in partial quadriplegia. Plaintiffs contend the roof of the Supercab crushed down during the rollover of the vehicle causing a fracture of Mrs. Robeck’s sixth cervical spine (C6).[1] In their Complaint, Plaintiffs allege the handling and stability characteristics of the Supercab were defective and caused Sheila Robeck to lose control of the vehicle, and that defects in the Supercab’s roof, roof structure, doors and door latches, and restraint system caused Mrs. Robeck’s injuries. Defendant Ford Motor Company (“Defendant” or “Ford”) denies these allegations and denies that any alleged defect was the cause of the crash or Mrs. Robeck’s injuries. Ford contends the accident and subsequent injuries to Mrs. Robeck were the result of Mrs. Robeck’s ill-fated attempt to pass another vehicle on an ice and snow covered roadway, which then caused her to lose control of the Supercab. *2 The discovery phase of this litigation has been protracted and extremely contentious from the very beginning. The original Pretrial Scheduling Order was entered on February 2, 2005, and disputes between the parties immediately followed when the parties could not reach agreement on terms of a protective order. After some delay and intervention by the Court, a Protective Order was entered. Defendant served Plaintiffs with discovery requests on February 21, 2005. These requests consisted of 29 requests for interrogatories and 20 documents requests. On April 22, 2005, Plaintiffs served their first Request for Production of Documents and Things on Ford. Plaintiffs’ document requests consisted of 148 separate requests, some of which included several discrete subparts.[2] Plaintiffs’ document request were broadly written, and on their face, clearly requested information that was outside of any reasonable scope of discovery when considered in conjunction with the allegations in the Complaint. Ford resisted production in response to the overly broad document requests and the parties began to meet and confer in an attempt to narrow the scope of Plaintiffs’ requests and resolve their numerous disputes. Factual discovery in this case lasted for over fifteen months, and required five Court-ordered deadline extensions. The Court has received no less than twenty separate discovery-related motions from the parties. The Court has held three informal telephone conferences regarding discovery disputes and has issued thirteen separate orders in an attempt to fairly and practically resolve the parties’ numerous discovery disputes and move this action closer to a final resolution. Trial is currently scheduled to commence in late February or early March 2007. II. Discussion A. General Culpability of Both Parties Now, Plaintiffs come once again before this Court, this time to requesting sanctions against Ford in the form of an order that strikes all of Ford’s defenses and sends the case to trial on the issue of damages only. Plaintiffs claim this extreme sanction is warranted because Ford has failed to comply with its discovery obligation under the prior orders of this Court, and because the prejudice Plaintiffs have suffered as a result cannot be remedied in any other manner given the fact that discovery in this case has now closed. Plaintiffs’ list of alleged violations of this Court’s discovery orders by Ford can be categorized into three general areas: (1) preparation of Ford’s “Redaction Log”; (2) full and complete production in response to various discovery requests; and (3) the Court-ordered joint-viewing of Ford’s electronic files. The Court first points out that the vast majority of the discovery disputes in this matter have centered around the proper scope of discovery and Ford’s production of documents and information according to that scope. Plaintiffs original 148 discovery requests were extremely broad as written, and the discussions and negotiations between opposing counsel regarding a narrowing of the requests began almost immediately. Despite this Court’s intervention in both September and November of 2005, in which the scope of discovery was expressly defined, both parties continued to engage in posturing, attempts to reach beyond the defined discovery scope, and delays in the production of plainly discoverable information. This contentiousness occurred despite this Court’s clear directions in its Order dated November 9, 2005, stating “[t]he Court strongly urges both parties to accept this scope [of discovery] and to engage in the exchange of discovery in a cooperative manner and in compliance with the Federal Rules of Civil Procedure.” See Doc. No. 83 at 4. In the same Order, the Court stated As a general matter, this Court will no longer by satisfied with Ford’s general statements of ongoing searches and declarations of its intention to produce the results of these searches when confronted with its failure to adequately and completely participate in the discovery process. Ford has had ample time and opportunity to comply with the Court’s Orders and the discovery rules as they apply to the production of responsive documents within the scope of discovery in this matter. *3 Furthermore, the Court does not intend to entertain any further attempts by Plaintiffs to secure an expansion of the scope of discovery in this matter. Because this Court concludes that a vast majority of Plaintiffs’ contentions and complaints in the instant motion are based upon a scope of discovery that far exceeds the proper scope defined in this matter, Plaintiffs’ Second Motion to Compel is denied unless explicitly granted herein, and any such partial grant by the Court within this Order is intended only to the extent that Ford is ordered to produce responsive materials that are within the scope of discovery as defined in this and prior Court Orders. Id. The Court’s Order quoted above was followed by almost eleven months of discovery disputes that required numerous interventions by the Court. Each time the parties brought their motions to the Court, the undersigned carefully considered the positions of the parties in the context of the Court’s prior Orders, governing law, and the applicable Rules of Civil Procedure, and issued an Order containing express directives to the parties regarding the discovery disputes at issue. Along the way, the Court has both granted and denied various requests from each party. From the Court review of the entire process, it is clear that neither party has fully complied with all of the directives and Orders of this Court, and that neither party now stand blameless before it. Thus, the undersigned finds no basis for the imposition of the extreme sanction of outright dismissal of Ford’s defenses as requested by Plaintiffs. Accordingly, the Court recommends Plaintiffs’ motion for such sanctions be denied. In order to create a sufficient record, the Court shall address each of Plaintiffs’ specific contentions in turn. B. Legal Standard Federal Rule of Civil Procedure 37(b)(2) authorizes sanctions for failure to comply with discovery orders. Possible sanctions are listed in Rule 37(b)(2)(B), (C), and (D), and include “refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence” Fed. R. Civ. P. 37(b)(2)(B), “striking out pleadings or parts thereof ... or dismissing the action or proceeding or any part thereof ... .” Fed.R.Civ.P. 37(b)(2)(C). However, the Eighth Circuit Court of Appeals has warned that sanctions of dismissal are extreme sanctions and therefore should be used sparingly. Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000). Rule 37(b) provides limits on the court’s discretion, requiring that the sanction be just and that it be specifically related to the claim at issue in the discovery order. Hairston v. Alert Safety Light Prods., Inc., 307 F.3d 717, 719 (8th Cir.2002). The sanction of dismissal is proper only when there is (1) an order compelling discovery, (2) a willful violation of that order, and (3) prejudice to the other party. Schoffstall, 223 F.3d at 823. C. The Redaction Log During the course of discovery, several of Plaintiffs’ motions raised objections to the number of redactions in documents produced by Ford, and the absence of any explanation for the redactions from Ford. Plaintiffs also complained that their ability to adequately depose witnesses was being severely hampered by the redactions in the documents because deponents could not testify regarding the missing information in documents presented to them at their depositions. Each time the issue was raised before the Court, Ford indicated the redactions were made only to exclude information that was not relevant to the claims and issues in this case. Ford repeatedly suggested that Plaintiffs identify any documents alleged to contain improper redactions so that Ford could reconsider the redactions and correct any errors. *4 Plaintiffs objected to Ford’s proposed method of addressing the redaction issue, and the Court agreed. Part of Ford’s document production in this case consisted of a single electronic media device that contained approximately 800,000 pages of electronic documents. Ford simply provided the device to Plaintiffs for their review and consideration. Counsel for Ford acknowledged that some of the documents in the collection were not relevant to the instant litigation, but that some of the documents were, and the production of the entire device was standard procedure by Ford in accident cases similar to this one. With this understanding, the Court reminded Ford of its obligations under the Rules to produce responsive information, and that the burden of production of responsive information was squarely on Ford and not on Plaintiffs. The discovery process continued. In late March 2006, the Court again heard argument from both parties on numerous discovery disputes. Plaintiffs again objected to the large number of redactions alleged to be in documents produced by Ford, and again claimed their ability to adequately conduct depositions using the documents had been prejudiced. During the hearing, Plaintiffs presented the Court with a specific example of an improperly redacted document, a report on roof crush authored by Ford engineer Bruno Barthelemy. Apparently recognizing that the Court now had before it a specific example of an erroneously redacted document, Ford informed the Court that it had searched for but had been unable to locate an un redacted version of the report to produce to Plaintiffs. In response, Plaintiffs presented the Court with an unredacted version of the report that had been produced by Ford in a separate unrelated case, and suggested Ford had inappropriately withheld production of the full report, as well as many other responsive and unredacted documents, in this case. The Court reviewed the Barthelemy document, determined the redactions likely contained relevant and responsive information, and concluded that Ford’s production of the document with redactions was inappropriate under the Rules and pursuant to the clearly defined scope of discovery in this case. Shortly after the hearing, but prior to the issuance its Order, the Court learned that Ford had located an unredacted version of the Barthelemy report a few days after the hearing and produced it in its unredacted form to Plaintiffs. From this sequence of events, and the with the knowledge that Ford had produced well over 800,000 pages of documents to Plaintiffs to which numerous redactions were potentially made, the Court concluded Ford’s redactions had been sufficiently called into doubt. In light of the Court’s prior directives to Ford regarding their obligations under the Rules, and concluding the burden of production remained with Ford under these circumstances, the Court ordered Ford to produce a full “Redaction Log” similar to a Rule 26 privilege log that would enable Plaintiffs to evaluate the appropriateness of all of Ford’s redactions on the basis of relevance. The Court recognized the enormity of the requirement, but stated its belief that Ford’s “inadequate production of the Barthelemy report [was] but one example of a much more pervasive lack of full disclosure on the part of Ford.” See Doc. No. 195 at 7-8. Ford was given the option of producing fully un-redacted documents to Plaintiffs in lieu of a Redaction Log, and was given a total of 39 days to comply with the Court’s directive. The Court intended this production requirement and limited time frame to both further the course of proper discovery in this case and as a sanction against Ford for its violation of the Rules of Civil Procedure and this Court’s previous Orders. Ford failed to meet the May 10, 2006, deadline established by the Court for production of a Redaction Log, and had not done so when Plaintiffs filed the instant motion for sanctions on June 12, 2006. Plaintiffs argue Ford’s “flat refusal” to comply with the Court’s order, and the severe prejudice to Plaintiffs’ discovery efforts that resulted, support the imposition of extreme sanctions on Ford. *5 While the Court generally agrees with Plaintiffs’ presentation of the sequence of events concerning Ford’s production of redacted documents, the Court disagrees with Plaintiffs’ conclusion. First, Ford has in fact produced the Redaction Log required under the Court’s April 6 Order. The log was produced on July 25, 2006. The Court finds that the delay in Ford’s production of the Redaction Log, while significant, has been reasonably and sufficiently explained, and that the prejudice to Plaintiffs has been far less significant than Plaintiffs now contend. First, Ford states it began working on its preparation of the Redaction Log immediately following the issuance of the Court April 6 Order, while simultaneously seeking reconsideration of the requirement from the undersigned on April 20, 2006. The motion was denied. Then, on May 1, 2006, Ford sought relief from the Honorable Joan Ericksen, United States District Judge for the District of Minnesota.[3] Judge Ericksen affirmed the undersigned’s Order onMay24, 2006. Ford states it dedicated a large number of resources to the task of reviewing the approximately one million documents produced by Ford in this case, and completed the preparation and production of the login as timely a fashion as possible. Although Ford failed to inform the undersigned of the progression of its on-going efforts, and never requested an extension of the court-imposed deadline, the undersigned recognizes the enormity of the task assigned to Ford, and credits counsel’s representations regarding the significant efforts employed in preparing and producing the log. The Court concludes Plaintiffs have suffered little to no prejudice from the delay in production of the Redaction Log. While Plaintiffs assert significant prejudice arose in their attempts to conduct depositions with redacted documents, Plaintiffs have failed to adequately rebut Ford’s contention that the vast majority of the documents Ford identified as containing redactions were old meeting minutes from the late 1960s and 1970s having nothing to do with the subject vehicle, documents with what appear to be redactions for which Ford has no other available versions from which to verify the contents, and documents that are not relevant to this case whatsoever. Plaintiffs provided four documents in support of its contention that Ford’s production is riddled with inappropriate and prejudicial redactions. After careful examination of the documents and consideration of the parties’ arguments, the Court is unpersuaded. Specifically, the Court concludes (1) Exhibit 14 does not in fact contain redactions; (2) Exhibit 97 relates to ADAMS modeling which is not within the scope of discovery in this case, and Mr. Prasad could not have testified regarding traction control testing on the PN-96 during development when the evidence in the record demonstrates traction control was removed from consideration from the PN-96 in the theoretical stages of development; (3) Exhibit 163 is not a document that was produced in this case, and even if it was inadvertently produced, it concerns subject matter relating to the Ford Explorer, which the Court has previously determined to be outside the scope of discovery in this case; and (4) Exhibit 156, while redacted when produced, is identified on the Redaction Log recently produced by Ford, and the redacted version of the documents caused no prejudice to Plaintiffs at the deposition of Mr. Hagenlocker because Mr. Hagenlocker had no recollection of the document whatsoever, and could not, therefore, have provided testimony regarding any of the document regardless of whether or not it was presented to him with redactions. The Court finds that outside of these four unpersuasive exhibits, Plaintiffs’ evidence of prejudice is based only upon Plaintiffs’ counsel’s assumptions that information is missing and his accusations of discovery malfeasance by Ford based upon unsupported inferences of such conduct and documentary evidence from unrelated litigation that is not a part of the record in the case now before this Court. *6 In sum, while the Court is perplexed at Ford’s production of volumes of documents that appear to have no relevance on the instant matter whatsoever, redacted or otherwise, and disapproves of Ford’s long-standing resistance to correcting legitimate redaction errors in a timely manner and without intervention by the Court, the undersigned previously sanctioned this behavior by Ford when it required the production of the Redaction Log. Although it was untimely in its submission under what was indeed a difficult deadline, the Court concludes the substance of Ford’s Redaction Log substantially complies with the Court’s Order and adequately provides Plaintiffs with the ability to evaluate the appropriateness of redactions in Ford’s document production. Plaintiffs have failed to sufficiently demonstrate a measurable prejudice resulted from the redactions in the documents or from the delay in Ford’s production of the Redaction Log. For these reasons, the Court concludes Ford’s conduct relating to document redactions and production of the Court-ordered Redaction Log does not warrant the imposition of the harsh sanctions requested by Plaintiffs. However, it is clear that Ford failed to comply with its Order to produce a Redaction Log on or before May10, 2006, and concludes sanctions are warranted. Accordingly, the Court shall require Ford to reimburse Plaintiffs for the costs and attorney’s fees associated with bringing the Redaction Log portion of the instant motion. Plaintiffs are thus directed to submit by way of affidavit, a detailed accounting of the costs and attorney’s fees associated with bringing the instant motion. The Court will consider Plaintiffs’ submission and determine what portion of the total costs and attorney’s fees are reasonably applicable to the Redaction Log portion of Plaintiffs’ motion. D. Full and Complete Production by Ford Plaintiffs next argue that Ford’s failure to fully and completely produce documents in response to certain discovery requests despite this Court’s orders to do so warrants the imposition of extreme sanctions in this case. Specifically, Plaintiffs claim Ford has failed to adequately respond to the Court directives regarding full production of information concerning the “black box” on the Robeck’s Supercab, information concerning vehicle testing and information on computer modeling of vehicle handling and/or stability. Plaintiffs also alleges Ford’s non-compliance with the Court’s Orders regarding the parties’ joint-viewing of Ford’s electronic files supports of their motion for sanctions. 1. Black Box Data First, Plaintiffs argue Ford has failed to provide the required black box, or RCM, data. In its April 6 Order, the Court stated Pursuant to the Court’s previous Order, Ford provided Plaintiffs’ counsel with a list of the data fields available for download, as well as the information needed to obtain a download pursuant to the RCM manufacturer’s procedures. The Court finds the evidence presented by the Robecks strongly suggests that Ford can gain access to more information on the RCM than it has identified as accessible to Plaintiffs. Therefore, Ford is ordered to provide Plaintiffs with an affidavit, sworn by a management level Ford representative with the appropriate knowledge, that identifies a list of all of the data fields and categories of information available to Ford from an RCM such as the one installed on the Robeck’s F-150 truck. This list shall include any information that is retrievable from the RCM through the use of the manufacturer’s downloading software or through other means known and available to Ford. The list shall further identify the method of access for each data field and category of information identified. The affidavit shall certify the accuracy and completeness of the information contained therein. See Doc. No. 195 at 4. Plaintiffs contend Ford failed to comply with the Court’s Order because the affidavit subsequently produced by Ford did not specifically identify all of the data fields, including those data fields available only to the RCM manufacturer. Plaintiffs contend that Ford has a duty to obtain this data because it is within the control of Ford’s vendors, and claim they have been prejudiced by a lack of equal access to information held by a Ford vendor that is within Ford’s control. *7 The Court has reviewed its prior Orders and the affidavit of Ford’s Manager of Vehicle Dynamics, Joseph Wills, and finds the affidavit sufficiently complies with the Court’s directives. Ford has repeatedly informed Plaintiffs and this Court that Ford does not have access to all of the data fields contained on the RCM, because some of the information is only available to the RCM manufacturer. In addition, Ford has indicated that some of the available data is stored on the RCM in a hexadecimal data format that must be submitted to the RCM manufacture for interpretation. The affidavit produced by Mr. Wills’ reiterates these points, and provided specific details about the functional capacity of the RCM. The Wills affidavit also specifically identifies categories of information the RCM is capable of storing as well as categories of data the RCM does not record. After careful review, the Court finds the Wills affidavit not only provides Plaintiffs with the information intended by the Court’s Order, but also goes beyond the requirements of the Order and provides additional information on the functionality and operation of the RCM. The Court intended for Ford to specifically identify the type of information that Ford was capable of retrieving from the RCM, whether through its own means or by request from an outside party, such as the manufacture of the RCM. The Court did not require Ford to identify any data fields that are not available to Ford through such means. Plaintiffs’ contention that Ford has a duty to produce information within its possession, custody or control under Rule 34, and must therefore produce all RCM information held by the RCM manufacture is misplaced under the facts presented here. Plaintiffs cite Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633 (D.Minn.2000) in support of their contention that Ford has control over the RCM data that is in the possession of the manufacturer because Ford has the legal right, or ability to demand the data from the manufacturer. This Court disagrees with Plaintiffs’ interpretation of Prokosch, and fails to find any evidence to support Plaintiffs’ inference that an agency relationship exists between Ford and the RCM manufacture. The Court agrees with Ford’s position that the relationship is one of buyer-seller, and that Ford maintains no control, as that term is intended under Rule 34, over the independent manufacturer’s own business information. Plaintiffs have provided this Court with no legal authority to the contrary. The Court concludes that Ford has complied with its orders regarding submission of an affidavit concerning available black box data. The Court also notes that both parties are currently in possession of the hexidecimal data that was retrieved from the RCM on the Robeck’s vehicle. Under these circumstances, the Court finds no support for the imposition of the extreme sanction requested by Plaintiffs on the basis of Ford’s production of Black box data. 2. Production of Vehicle Testing and Modeling Information Plaintiffs next argue that Ford has failed to comply with this Court’s directives to produce all relevant and responsive documents relating to failure mode and effects analysis (“FEMA”), vehicle testing and safety restraint testing. Specifically, Plaintiffs contend Ford has withheld FEMA and vehicle testing documents, supplied MADYMO simulation information in a form that can only be reviewed through proprietary software, and failed to provide all of underlying data for certain vehicle testing. Ford claims these contentions are baseless. The Court has reviewed Plaintiffs’ assertions and fails to find sufficient evidence of egregious discovery abuses by Ford. Plaintiffs contentions that Ford has failed to produce all FEMA information is based upon the unsupportable assumption that Plaintiffs are entitled to FEMAs “for every change made to the PN-96 and P-221 vehicle lines.” Despite Plaintiffs’ numerous attempts to obtain a broad spectrum of information from Ford, this Court has repeatedly stated that discovery in this matter is limited to “materials relevant to the 1997 through 2003 Ford F-150 trucks (the model known as PN-96), for all issues except the door latch, for which the scope is limited to materials relevant to the 1999 through 2003 FordF-150 trucks” and alternative design materials “concerning the 2004 model year Ford F-150 that was known or available to Ford prior to December 22, 2001.” See Doc. No. 83 at 5-6; Doc. No. 195 at 3-4. For over a year, the phrase “relevant to the 1997 through 2003 Ford F-150 trucks” has referred to only those components of the PN-96 that are identified in Plaintiffs’ Complaint–i.e., glass, doors structures and latches, roof structures, and handling and stability. The scope of discovery in this case has never encompassed every component on the PN-96 or P-221. Accordingly, the Court is not persuaded that Ford has violated prior Court Orders in this regard. *8 Nor does the Court find any basis for Plaintiffs’ contention that Ford has improperly produced MADYMO simulation information. With the exception of the Court’s specific directives for production of certain I-DEAS files related to the parties’ joint-viewing (discussed further below), this Court has not specifically required Ford to produce so-called “electronic only” discovery responses in the format that is most preferred by Plaintiffs. In fact, the Court specifically rejected such a request in its April 6 Order when Plaintiffs’ raised the issue regarding certain CD’s produced by Ford. There, the Court found that Ford’s discovery obligations extended only as far as the production of documents and information as it is kept in the ordinary course of business. While the Robecks may desire production of MADYMO simulation in a format that is easier and more economical to access than its native format (which requires the purchase of proprietary software), the Court finds no such requirement for Ford to do so under the Rules or prior Orders of this Court. The Court finds even less evidentiary support for Plaintiffs’ contentions that certain reports, photographs and videos relating to certain vehicle tests are absent from Ford’s production, including information from a test-drive by Jackie Stewart in June or July 2001. Ford states is has complied with its obligations under the Rules and the Court-defined discovery scope. The Court fails to find credible evidence in the record that the Jackie Stewart test drive involved components relevant to the issues in this case, or evidence that additional responsive documents relating to vehicle testing have been inappropriately withheld from production by Ford. Finally, Plaintiffs contend Ford has recently produced an improper and incomplete privilege log identifying “mystery tests” on the PN-96 that Ford’s experts will use at trial to advance their defenses at trial. Plaintiffs argue the production of the log was untimely as it was made after the close of discovery. Ford argues the privilege produced on June 2, 2006, was intended as a supplement to the four additional privilege logs already produced by Ford, and that the three entries included on the supplement identify two additional tests conducted by non-testifying experts in relation to other litigation against Ford. Ford objects to Plaintiffs’ attempt to punish it for complying with its obligations to supplement its discovery when it learns its prior responses were incomplete or incorrect. Based upon the record before the Court on this issue, the Court finds no persuasive evidence that Ford acted in bad faith by supplementing the privilege log. In their brief, Plaintiffs simple declare that Ford’s production of the supplemental privilege log “after discovery closed was deliberate and calculated to prevent the Robeck’s [sic] from discovering data about these mystery tests,” and then accuse Ford of “sandbagging on the timely identification of these tests as ordered over and over by the Court.” Clearly, however, counsel’s assertion alone is insufficient to form a basis for this Court’s imposition of extreme sanctions against Ford in this case. In sum, the Court concludes Plaintiffs’ assertions that Ford has failed to comply with this Court’s directives to produce all relevant and responsive documents relating to FEMA, vehicle testing, safety restraint testing, and black box data both are insufficient to warrant the imposition of a sanction that strikes all of Defendant’s defenses in this case. E. Joint-Viewing of I-DEAS Files Lastly, Plaintiffs contend they have been severely prejudiced by Ford’s obstruction of alternative design discovery and by Ford’s failure to comply with the Court’s Orders regarding the procedures for conducting the joint-viewing. By way of background, in late 2005, Plaintiffs sought relief from the Court regarding what they described as “prohibitively expensive” software license fees that would be required to allow Plaintiffs to independently view certain electronic files in Ford’s possession relating to alternative design evidence. The parties appeared before this Court and informed the undersigned that the main problem facing Plaintiffs was that certain files, known as I-DEAS files, were only accessible electronically, and could only be viewed using computer software for which a users license is required. Ford held a license to that software, but Plaintiffs’ counsel did not. After some discussion with the Court, the parties agreed that a joint-viewing was one possible method for production of these I-DEAS files that would enable Plaintiffs to review the information while avoiding the expense of purchasing an expensive software license. *9 The Court subsequently issued an Order that included ten pages of detailed instructions for the joint-viewing and directed the parties to confer on and agree to a specific date for the joint-viewing to occur at Ford’s plant in Michigan. While the Court viewed its Order as more than sufficient to permit a successful review of the necessary documents, growing acrimony between counsel for both parties, and Ford’s failures to follow both the spirit and letter of the Court’s Order, prevented a successful outcome. Consequently, the Court was called upon to intervene once again in order to place Plaintiffs’ discovery of the I-DEAS files back on track. On April 6, 2006, the Court issued another Order, in which it stated its conclusion that “Ford is largely at fault for the failures” of the first joint-viewing. As a result, and at the request of Plaintiffs’ counsel, the Court ordered the second viewing to occur at the Ford plant in Claycomo, Missouri, rather than in Michigan, in an attempt to place the heavier burden of time and travel expenses on Defendant. This decision was intended in part as a sanction on Ford for its failure to comply with the earlier directives of the Court. This second Order again contained detailed and specific procedural directives for the carrying out of the joint-viewing and admonished the parties that if the Court determined that either party has failed to abide by the procedures and directives of the Court regarding this second joint-viewing, the imposition of sanctions will result. These sanctions could include the ordered exclusion of some or all alternative design evidence at trial and/or Court ordered opening of Ford’s corporate databases and file systems for monitored access by Plaintiffs to ensure compliance with its discovery obligations in this manner, or other sanctions the Court deems appropriate. See Doc. No 195 at 15. The joint-viewing was established exclusively to accommodate Plaintiffs’ need to review I-DEAS files relating to alternative design within the scope of discovery in this case. Plaintiffs urge this Court to find prejudicial non-compliance by Ford and order the sanctions promised in its April 6 Order. Plaintiffs contend Ford “ignored” the Court’s Order by (1) failing to provide operators knowledgeable in gaining access to the I-DEAS system; (2) failing to produce required information on CD at least three business days prior to the joint-viewing; (3) failing to provide access to all versions of the assemblies presented for viewing; (4) failing to provide access to CAE and CAD files; and (5) failing to provide a CD of all files made available for viewing for Plaintiffs to take with them at the conclusion of the joint-viewing. Ford contends it fully complied with spirit of the Court’s Order and substantially complied with the letter of the Order, with a few excusable exceptions. Ford claims Plaintiffs’s counsel attempted to use the joint-viewing to access information far beyond the scope of the Court’s Order, and that Ford’s refusal to permit the inappropriate behavior is at the root of Plaintiffs’ current allegations. The parties submissions on this issue tell two very different versions of the same event. Because the Court was not physically present at the joint-viewing, it cannot determine with certainty what, in fact, occurred. However, the Court has carefully considered the affidavits and arguments of each party, reviewed its prior Orders regarding the joint-viewing procedures, and considered the record in this matter as a whole. The Court concludes from the record before it that neither party has fully abided by the procedures and directives set forth in this Court’s April 6 Order regarding the joint-viewing. In so concluding, the Court makes the following findings: 1. Ford failed to provide the Robecks with the required CDs of I-DEAS files three days prior to the date of the joint-viewing. 2. Ford ultimately provided the required CDs in an untimely fashion. The produced CDs apparently contained files outside the scope of alternative design discovery in this case. 3 Ford operator Mr. Brian Ferguson had 200 hours of I-DEAS training and 10 years of IDEAS experience. This constituted sufficient knowledge and experience with the I-DEAS system to provide the access to the system required under the Court’s Order. 4. On the first day of the joint-viewing session, counsel for Plaintiffs’ inappropriately attempted to question Mr. Ferguson regarding the functionality and uses of the I-DEAS software. Mr. Ferguson’s only duties under the Order were to provide access to those I-DEAS files produced by Ford in response to Plaintiffs’ alternative design discovery requests. Plaintiffs’ counsel engaged in this behavior with full knowledge that this Court had previously denied Plaintiffs’ request to depose Mr. Ferguson regarding the general functionality and Ford’s use of the I-DEAS system. *10 5. Mr. Ferguson was not required to access or explain the functionality of “feature-based” or “component-based” modeling aspects of the I-DEAS system. The purpose of the joint viewing was to provide Plaintiffs with visual access to electronic files produced by Ford using Ford’s software in order to alleviate the cost of purchasing their own software license. Mr. Ferguson was only required to open the files produced by Ford and permit visual inspection by counsel for Plaintiffs. Any desire by Plaintiffs’ counsel to more fully interrogate the I-DEAS software or the I-DEAS files produced by Ford in this case can be accomplished through the purchase of a license for the software. Ford had no obligation to provide such information under the Court’s Order. 6. The Court credits Ford’s explanation regarding the presence of gaps in version numbers created through the ordinary course of usage of I-DEAS by Ford employees, and concludes Ford has not withheld production of some versions of I-DEAS files while producing other non-sequential version of the files as Plaintiffs allege. 7. Ford’s provision of an I-DEAS User Manual was both tardy and insufficient. The Court gives little credit to Ford’s position that Volume I is sufficient in providing practical instructions on how to operate I-DEAS. The Court’s Order required provision of the entire manual, which Ford complied with this requirement only after Plaintiffs’ demonstrated their knowledge of the existence of a Volume 2. 8. Plaintiffs have failed to present credible evidence that Jackie Stewart in fact test drove a P-221 in June or July of 2001. Therefore, the Court finds no evidence to support Plaintiffs’ contention that engineering files exist from such a test drive or that they are within the scope of discovery in this case if they indeed exist in Ford’s files. 9. Following a telephone conference call with the undersigned onMay30, 2006, conducted during the joint-viewing exercise, the Court ordered Ford to make available for viewing any CAD or CAE files relevant to the scope of alternative design discovery that are contained within in or attached directly to the I-DEAS files produced by Ford. Ford was under no obligation to provide information or data regarding the path or parameters used to search for these CAD or CAE files, or to show Plaintiffs any CAD or CAE files that did not meet this criteria. 10. Counsel for Plaintiffs improperly requested a CD of “all the data that was actually available during the joint viewing exercise” to take with them at the conclusion of the joint-viewing. Ford was under no obligation to produce any such CD. From these findings, the Court concludes the difficulties associated with the Court-ordered joint-viewing arose from infractions and improper conduct committed by both parties’ counsel in varying degrees. However, the Court also concludes the level of prejudice suffered by each party as a result of the procedural noncompliance by counsel for both parties is minimal from a practical standpoint, and finds that the imposition of sanctions on both or either party on this issue would serve no productive or punitive purpose, and are thus unwarranted. Such a determination should not be construed as this Court’s approval of counsels’ conduct. However, this Court is practically-minded and the bottom line at this point in the process is that Plaintiffs are in possession of Ford’s production of I-DEAS files regarding alternative design, and Ford has sufficiently cooperated in providing Plaintiffs with an inexpensive means for viewing to those files. The confidentiality and propriety of Ford’s computer systems remain intact, as Plaintiffs’ counsel’s attempts to interrogate them in a manner that was outside the permitted scope of the Court-ordered access were unsuccessful. The intentions of the Court in ordering the joint-viewing have thus been realized. Lastly, the Court finds Ford’s provision of CDs prior to the joint-viewing that included files outside the scope of discovery was a voluntary production, and Plaintiffs shall not be required to return those CDs to Ford. The Court also concludes that Ford’s production of the CDs amounts to a waiver of any claims regarding the relevance or privilege of any of the information contained on the CDs. However, questions of admissibility of any such files is left to the trial judge to determine. III. Conclusion *11 During the past fifteen months discovery in this matter has been contentious. After consideration of the entire discovery process in this action, the undesigned finds each side has contributed to the repeated lack of success in reaching informal and prompt resolutions to discovery disputes that were less than extraordinary. Consequently, Court finds Plaintiffs’ request for the harsh sanction of the striking of Ford’s defenses cannot be granted on the basis of the arguments and supporting evidence presented by Plaintiffs, and is unwarranted on the basis of the discovery record in this matter as a whole. IT IS, therefore, RECOMMENDED THAT Plaintiffs’ Motion for Further Sanctions Pursuant to Rule 37 (Doc. No. 219) be DENIED, except to the extent of attorney’s fees and costs as indicated in Section II.C. of this Report and Recommendation. Pursuant to D. Minn. LR72.2(b), any party may object to this Report and Recommendation by filing and serving specific, written objections by October 30, 2006. A party may respond to the objections within ten days after service thereof. Any objections or responses filed under this rule shall not exceed 3,500 words. A District Judge shall make a de novo determination of those portions to which objection is made. Failure to comply with this procedure shall operate as a forfeiture of the objecting party’s right to seek review in the United States Court of Appeals for the Eighth Circuit. Unless the parties are prepared to stipulate that the District Court is not required by28 U.S.C. § 636 to review a transcript of the hearing in order to resolve all objections made to this Report and Recommendation, the party making the objections shall timely order and cause to be filed within ten days a complete transcript of the hearing. Footnotes [1] At the time of the accident, Sheila Robeck was eight and one-half months pregnant and underwent an emergency caesarian section as part of the treatment for her injuries. Jordyn Robeck, the newborn, was delivered without injuries. [2] In their Rule 26(f) report, the parties indicated that there would be no limit on the number of Requests for Production of Documents and Things. [3] This matter was subsequently transferred to the Honorable Patrick J. Shiltz, United States District Judge, District of Minnesota.