GAIL HAHN, individually and on behalf of all others similarly situated, Plaintiff, v. MASSAGE ENVY FRANCHISING, LLC; MASSAGE ENVY, LLC , Defendants Civil No. 12cv153-DMS (BGS) United States District Court, S.D. California Filed July 24, 2014 Counsel Jeffrey R. Krinsk, William Richard Restis, Mark Leland Knutson, Trenton R. Kashima, Finkelstein and Krinsk LLP, San Diego, CA, for Plaintiff. Cynthia A. Ricketts, Pro Hac Vice, Sacks, Ricketts and Case LLP, Phoenix, AZ, Luanne Roberta Sacks, Sacks, Ricketts & Case, LLP, San Francisco, CA, Kahn A. Scolnick, Gibson Dunn & Crutcher LLP, Los Angeles, CA, Kathleen M. Sullivan, Quinn Emanuel Urquhart and Sullivan, LLP, Redwood City, CA, for Defendant Massage Envy Franchising, LLC. Cynthia A. Ricketts, Pro Hac Vice, Sacks, Ricketts and Case LLP, Phoenix, AZ, Luanne Roberta Sacks, Sacks, Ricketts & Case, LLP, San Francisco, CA, for Defendant Massage Envy, LLC. Skomal, Bernard G., United States Magistrate Judge ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS I. INTRODUCTION *1 On March 31, 2014, Plaintiff filed a motion to compel and a request for sanctions pursuant to Federal Rules of Civil Procedure 26, 34 and 37. (Mot.to Compel; ECF No. 149.) Plaintiff seeks an order: (1) compelling Defendant to “produce relevant excerpts of its Millenium database as requested in Plaintiff's Request for Production Set Eight”; (2) extending the deadline to exchange expert reports to allow Plaintiff's experts to analyze Defendant's Millennium database and provide an expert report concerning the amount of restitution owed to the Class; (3) sanctioning Defendant and requiring Defendant to pay attorneys' fees and expert costs under Federal Rule of Civil Procedure 37(a)(5);and (4) issuing further sanctions in the form of establishing the amount of restitution owing to the Class as the amount stated in Defendant's responses to Interrogatories Nos. 1 through 4; or (5) issuing sanctions in the form of prohibiting Defendant from offering expert testimony to challenge the amount of restitution owing to the Class as stated in response to Plaintiff's Interrogatories Nos. 1 through 4. (Id. at 2.) Defendant opposes both the request to compel production of “export data” from its Millennium software database in the form a single, comma delimited text file, as well as Plaintiffs' request for sanctions. (Opp'n; ECF No. 150.) Defendant requests that the Court find Plaintiff filed her motion without substantial justification and pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), order Plaintiff to pay Defendant's reasonable attorneys' fees and costs incurred in opposing the motion. (Id.) II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed this California Unfair Competition Law (“UCL”) class action seeking injunctive relief prohibiting the loss of prepaid unredeemed massage services, reinstatement of the right to use unredeemed massages, and restitution. (ECF No. 160 at 3.) Plaintiff contends Defendant's standard form membership agreements impermissibly provide for forfeiture of prepaid massage services because: (1) the memberships are procedurally and substantively unconscionable as consumer contracts of adhesion that permit forfeiture of prepaid massage services, and (2) the membership agreements provide a “penalty liquidated damages” through forfeiture of the prepaid massages upon breach of the agreement. (Id.) This Court issued a Case Management Order regulating discovery and other pretrial proceedings on October 2, 2013. (ECF No. 59.) The fact discovery deadline was set for March 1, 2014, and the deadline for exchanging expert witness reports was set for March 26, 2014. (ECF No. 59.) With only sixteen days remaining for fact discovery, Plaintiff propounded an untimely[1] Request for Production (Set 8), containing Request No. 41: Export DATA from [Defendant's] Millennium Software database, for all columns associated with Massage Envy Members with a California address, produced in a single, comma delimited text file. Defendant promptly alerted Plaintiff to the untimely nature of the request, and further brought the untimely request to the Court's attention during a meet and confer conference on February 14, 2014. (Ricketts Decl. ISO Opp'n at ¶ 6; ECF No. 157.) Defendant also sent Plaintiff a letter on February 18, 2014, to inform Plaintiff that her Request No. 41 was propounded late, and therefore, Defendant did not have an obligation to respond to the request and Defendant demanded that the request be withdrawn. (Id. at Ex. 2.) In an attempt to circumvent the untimely nature of the production request, on February 14, 2014, Plaintiff served Defendant with a Notice of Rule 30(b)(6) deposition. (Decl. Ricketts ¶ 7, Ex. 1.) The 30(b)(6) notice requested the same documents sought in the untimely production request. (Ricketts Decl. ¶ 8, Ex. 1; Restis Decl., Ex. A.) On February 21, 2014, Defendant served its Objections and Responses to Plaintiff's Notice of Rule 30(b)(6) Deposition. (Ricketts Decl. ¶ 12, Ex. 4.) Defendant specifically objected to the document request included with the deposition notice because “it is untimely and seeks to improperly evade the timing requirements [of] Rule 34,” “require[s] [Defendant] to compile information that is not kept in the ordinary course of business” and “it seeks information in a format not previously agreed to by the parties.” (Id.) *2 The parties also filed a joint motion seeking to extend the discovery deadline due to ongoing discovery disputes and deposition scheduling conflicts. (ECF No. 140.) The motion made no mention of Plaintiff's need to propound any additional document requests. (Id.) The Court immediately set a telephonic conference to discuss the parties' discovery disputes and scheduling issues. During the conference the Court was made aware of the parties' recent dispute regarding Plaintiff's untimely document request. The parties, however, had not formally met and conferred on the issue, therefore, the Court directed them to do so. After further meet and confer discussions, on February 24, 2014, Defendant and Plaintiff agreed Defendant would produce “a raw data copy of the entire Millennium CO database,” and in exchange, Plaintiff would forgo her pursuit of other outstanding discovery requests, including Request No. 41 and the Rule 30(b)(6) deposition notice. (Ricketts Decl. ¶ 14.) In consideration of the parties' compromise on all outstanding discovery matters, the Court continued the fact discovery deadline to March 21, 2014. (ECF No. 141.) The extension was granted only after the parties agreed to compromise and the extension was granted solely to enable the “parties to complete depositions and exchange the raw data Plaintiff's experts need to analyze the financial metrics.” (ECF No. 141.) The Court also extended the expert report deadline to accommodate the parties' needs to complete the above mentioned limited fact discovery. Thus, the deadline to exchange expert witness reports was continued to April 11, 2014. (ECF No. 141.) On March 6, 2014, the parties filed a Joint Motion and Stipulation for Amendment of Protective Order. (ECF No. 143.) The amendment was sought because Defendant agreed to produce “information and raw data from [its] proprietary and enhanced Millennium Software Database.” (ECF No. 143.) The parties referred to the data Defendant would produce as “the Millennium Raw Data.” (Id.) The parties, however, did not specifically define “raw data” or otherwise specify what format Defendant's database production would be in. (Id.) The agreement did acknowledge that the “Millennium Raw Data may include information and data that is not related to any member or guest of a California Franchisee since December 2007,” because the “Millennium Raw Data is being produced to Mr. Hansen in the interest of providing Mr. Hansen with information and data ... in the most cost effective and efficient manner and that this necessarily includes producing Non-California Member Millennium Information.” (Id.) The Amendment to the Protective Order was entered the same day. (ECF No. 146.) On March 6, 2014, Defendant secured a copy of all raw data stored in its Millennium Central Office Database (“CO Database”) to produce to Plaintiff's expert. (Ricketts Decl. ¶ 25; Kierman Decl. ISO Opp'n ¶ 1.) Millennium is a business management software program for use in the beauty and wellness industries. (Yusuf Decl. ISO Opp'n ¶ 12.) Defendant requested SunGuard, the third party vendor that hosts the CO Database in Philadelphia, to make a copy of the database for production to Plaintiff's expert. (Ricketts Decl. ¶ 15.) Plaintiff was aware that the copy would come from SunGuard. (Restis Decl. ¶ 5.) Plaintiff's expert received the hard drive containing a copy of the entire unadulterated CO Database on March 7, 2014. (Hansen Decl. ¶ 3.) Plaintiff, however, objected to the the production because the database was not in “CSV” format.[2] Plaintiff admits that her expert is not familiar with the Millennium software system and that he was not familiar with the database relations such to allow him to query the database in order to export “the raw data” to a CSV file. (Pl.'s Reply at 2-3; ECF No. 161.) Defendant, however, produced the entirety of its database in the format the database is ordinarily maintained and used by Defendant as part of its day-to-day operations. (Michuta Decl. ¶ 10 ISO Opp'n; ECF No. 152.) The data contained in the CO database is maintained in “SQL” format, a universal programming language that allows interaction with the database through a commercial relational database management software. (Id. ¶ 13.) Defendant's expert was provided with the same copy of the CO Database that Plaintiff's expert was provided. (Id. ¶ 16.) At no time did Defendant's expert have access to any other data or database than the CO Database Plaintiff's expert received. (Id. ¶ 17.) *3 On March 10, 2014, Plaintiff's counsel demanded Defendant export the entire CO Database into a CSV file. (Restis Decl.; Ex. D, E.) Plaintiff sent Defendant a set of instructions for Defendant's personnel to follow in an attempt to convert the database to CSV format. (Ricketts Decl. ¶ 32.) Despite never agreeing to produce the database in CSV format, in an effort to accommodate Plaintiff's wishes Defendant's counsel sent Plaintiff's instructions to both its IT personnel and its retained expert for their review and “potential execution.” (Ricketts Decl. ¶ 34.) Defendant's Senior Developer, Mr. Michuta, attempted to follow Plaintiff's instructions in order to export one table from the CO Database to a single CSV file. (Michuta Decl. ¶ 36.) Within minutes Mr. Michuta's computer crashed as he attempted to export one table. (Id.) Further, Mr. Michuta avers that producing the CO Database in CSV format would degrade the data's efficacy and render the data unusable. (Id. ¶ 37.) Nonetheless, in order to assist Plaintiff's experts with the technical issues they were encountering, Defendant agreed to make Mr. Michuta available to confer with Plaintiff's expert Mr. Hansen and offer technical support on March 11 and 12, 2014. (Michuta Decl. ¶ 38.) Plaintiff, however, never followed up to schedule the phone call. (Id., see also Restis Decl., Ex. G.) Plaintiff deposed Mr. Michuta via telephone on March 20, 2014. (Restis Decl. ¶ 15; Michuta Decl. ¶ 39.) Plaintiff requested that the deposition be conducted via telephone in order for Plaintiff's counsel to be in the room with Plaintiff's expert, Mr. Hansen, during the deposition. (Restis Decl. Ex. H; Michuta Decl. ¶ 39.) Throughout the entirety of the deposition Mr. Michuta had access to a computer running the SQL Server software loaded with the same CO Database file that was produced to Plaintiff. (Restis Decl. Ex. H; Michuta Decl. ¶ 41.) During the deposition Plaintiff's counsel asked Mr. Michuta to identify the names of certain database tables, as well as the column names for certain tables and what information the columns contained. (Restis Decl., Ex. H; Doc. 149-2 at 77.) Counsel also asked Mr. Michuta how to join specific tables and why Mr. Michuta would not or could not export the entire relational database into a single flat file. (See e.g., Id. at 81, 92.) Mr. Michuta answered all of Plaintiff's questions seeking the names of tables and the information contained in the tables, as well as testified that the entire CO Database contains too much data to usably export the entire database into a single flat file, i.e. CSV format. (Id. at 106.) On March 25, 2014, pursuant to the undersigned's Chambers' Rules, counsel jointly contacted the Court regarding Plaintiff's contention that Defendant failed to satisfy its discovery obligations because Defendant did not produce the Millennium CO Database in CSV format. Plaintiff requested a hearing date in order to file the present motion. (Restis Decl. ¶ 20.) III. MOTION TO COMPEL A. Relevant Legal Standards 1. Discovery of Electronically Stored Information The Federal Rules of Civil Procedure permit discovery requests that are “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Rule 26 states: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). Rule 34 allows a party to serve requests for the production of documents on any other party, so long as that request falls within the scope of Rule 26(b). Fed. R. Civ. P 34(a). The party who has been served with a request for production has thirty (30) days to respond or object to each request. Fed. R. Civ. P 34(b)(2). With respect to depositions of party deponents, the deposition notice may be accompanied by a request under Rule 34 to produce documents at the deposition. Fed. R. Civ. P. 30(b)(2). Accordingly, parties may not circumvent the allotted time to respond set forth in Rule 34 by couching a document request as a Rule 30(b)(6) deposition notice. Carter v. U.S., 164 F.R.D. 131, 133 (D. Mass. 1995); Guzman v. Bridgepoint Edu., Civil No. 11-0069-WQH (WVG) 2014 WL 1670094, *2 (S.D. Cal. April 28, 2014). When documents requested pursuant to Rule 34 are in electronic format, the Rule provides: “A party must produce documents as they are kept in the usual course of business...; and “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(i)-(ii). *4 Further, Rule 34's 2006 Advisory Committee Notes are also instructive, as they address nuances related to production of electronic documents or data: The rule recognizes that different forms of production may be appropriate, for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information. .... The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and the work of the production occurs. .... If the requesting party is not satisfied with the form stated by the responding party, or if the responding party has objected to the form specified by the requesting party, the parties must meet and confer under Rule 37(a)(2)(B) in an effort to resolve the matter before the requesting party can file a motion to compel. If they cannot agree and the court resolves the dispute, the court is not limited to the forms initially chosen by the requesting party, stated by the responding party, or specified in this rule for situations in which there is no court order or party agreement. If the form of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. Rule 34(a) requires that, if necessary, a responding party “translate” information it produces into a “reasonably usable” form....Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information.... If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. Fed. R. Civ. P. 34(b) advisory committee's note to 2006 Amendment. 2. Motion For An Order Compelling Discovery Federal Rule of Civil Procedure 37 provides a mechanism for a party to move for an order compelling disclosure or discovery if the responding party fails to produce documents as requested under Rule 34. Fed. R. Civ. P 37(a)(3)(B)(iv). The party bringing the motion to compel is only entitled to receive reasonable expenses incurred in making the motion if the motion is granted or if the discovery is provided after the motion was filed and the opposing party's nondisclosure was not substantially justified. Fed. R. Civ. P. 37(a)(5)(A). On the other hand, if the motion is denied, the court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party...who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Fed. Civ. P. 37(a)(5)(B). The court, however, must not order the payment of attorney's fees and expenses if the motion was substantially justified or other circumstances make an award of expenses unjust. Id. B. Discussion *5 The main thrust of Plaintiff's request to compel and for the Court to impose sanctions on Defendant centers on Plaintiff's disagreement with the format of Defendant's Millennium CO Database production. (Mot. to Compel; ECF No. 149.) Plaintiff contends Defendant produced a “counterfeit database” in order to “frustrate Plaintiff's access to inculpatory evidence.” (Mot. ECF No. 149-1 at 6.) Plaintiff now claims Defendant was obligated to run queries and convert the resulting data into a single ‘comma delimited text file’ or ‘CSV’ file because that was the format Plaintiff identified in her untimely document request. (Id. at 18.) Plaintiff further argues that Defendant's database is not reasonably useable because Plaintiff's expert is unable to analyze the tables and relationships within the CO database, analyze data within the tables, or generate queries and results from those queries. (Id. at 14.) Defendant contends it produced exactly what it agreed to produce when the parties negotiated a compromise to resolve outstanding discovery disputes. Defendant agreed to produce “raw data” and argues that by producing its Millennium CO Database in the form it is ordinarily maintained—it produced raw data. Further, Defendant's retained expert was able to accomplish generate queries and complete the necessary analysis in only five days, thus Defendant maintains that the data was not only produced as kept in the usual course of business, but that the data is also reasonably useable. (See Yusuf Decl. ¶¶ 20-21; ECF. Doc. No. 151.) For the reasons set forth below, the Court (1) does not find that Defendant was obligated to produce its Millennium CO Database in CSV format, (2) declines to compel Defendant to do so at this time, and (3) denies Plaintiff's request to impose various sanctions on Defendant. 1. Did The Parties Agree To The Format of Defendant's Millennium Raw Database Production? A. Plaintiff's Untimely Document Request The parties' present dispute initially arose because Plaintiff delayed until February 13, 2014 to serve Defendant with Request No. 41 for “Export DATA from [Defendant's] Millennium Software database.” (Ricketts Decl. ¶ 5, Restis Decl., Ex. A.) Request For Production No. 41 was propounded less than 30 days before the deadline to complete all fact discovery. (ECF No. 59; see also Restis Decl., Ex. A.) Thus, pursuant to Rule 34, the request was untimely. ( ECF No. 59 at ¶ 2.) As a result of the request's untimely nature, Defendant promptly informed Plaintiff of the improper document request and formally requested that Plaintiff withdraw the request. (Decl. Ricketts, Ex. 2.) Plaintiff's counsel acknowledged the request's untimeliness, yet attempted to circumvent the timing provisions of Rule 34 and this Court's scheduling order by converting the document request into a notice of Rule 30(b)(6) deposition, which requested the same database production in the same format Defendant objected to. (Decl. Ricketts, Ex. 1.) Plaintiff also unilaterally noticed the deposition for February 28, 2014. (Id.) On February 18, 2014, Defendant formally wrote Plaintiff regarding the untimely request and on February 21, 2014, Defendant served objections to Plaintiff's Rule 30(b)(6) notice. (Decl. Ricketts, Ex. 4.) Defendant objected to the request because it required Defendant to compile information not kept in the ordinary course of its business, it was untimely, and because it demanded production of the database in a format the parties had not agreed on. (Id.) Defendant also objected to the aspect of Plaintiff's notice requesting a comma delimited text file (“CSV format”) of exported data for all columns of the Millennium CO Database associated with a California address as unduly burdensome. (Id.) The Federal Rules of Civil Procedure do not allow parties to avoid the timing requirements of Rule 34 by veiling a document request in the form of a deposition notice. Rule 30(b)(2) governs producing documents at a deposition and specifically provides: “The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.” Fed. R. Civ. P. 34(b)(2); see also Guzman v. Bridgepoint Edu., Civil No. 11-0069-WQH (WVG) 2014 WL 1670094, *2 (S.D. Cal. April 28, 2014) (finding that a deposition notice to a party that seeks documents, the notice must comply with the 30-day notice provision under Rule 34). Thus, Plaintiff sought to do indirectly what she could not do directly, namely obtain the production of an extensive database through a deposition notice after the time for propounding written discovery had expired. See, e.g. Carter v. U.S., 164 F.R.D. 131, 133 (D. Mass. 1995). *6 Plaintiff's request for production and deposition notice requesting documents were not timely under the scheduling order. Therefore, Defendant was well within its rights to object not only to the format that Plaintiff's request identified, and indeed could have also elected to refuse to produce any Millennium data. In fact, had the parties not continued to meet and confer and agree to a compromise, the dispute before the Court would have centered on whether Defendant had any obligation to respond to Plaintiff's untimely discovery request. The parties chose to work together and negotiate a compromise to resolve all outstanding discovery regarding Plaintiff's requests for Defendant's financial performance data. (Restis Decl. ¶ 3, Ricketts Decl. ¶ 11.) On February 24, 2014, the parties jointly contacted the Court and represented that they had reached an agreement wherein Defendant would produce a copy of the entire Millennium CO Database and Plaintiff would withdraw all outstanding discovery requests. (Ricketts Decl. ¶ 20; Restis Decl. ¶¶ 5-6.) As such, Plaintiff effectively abandoned her specific request for “export data” from the Millennium Software database, “in a single, comma delimited text file,” i.e., CSV file. B. The Parties's Agreement After numerous meet and confer sessions the parties reached a compromise with respect to Plaintiff's untimely document request for the Millennium CO Database. (Decl. Ricketts ¶¶ 10-11, 14.) As stated above, in an effort to compromise, on February 24, 2014, Defendant agreed to produce “a raw data copy of its entire Millennium CO database” and Plaintiff agreed to withdraw her pursuit of other outstanding discovery requests including the untimely Request for Production No. 41 and February 14, 2014 Rule 30(b)(6) deposition notice. (Id. at ¶ 14.) Defendant explained to Plaintiff that a copy of the database would be made by SunGuard—the third party vendor that hosts the CO database in Philadelphia. (Ricketts Decl. ¶ 15, Restis Decl. ¶ 5.) The parties contacted the Court and represented they resolved their discovery disputes and agreed to a compromise where Defendant would produce the “raw data” from Defendant's Millennium Software Database. (Restis Decl. ¶ 6, Ricketts Decl. ¶ 20.) The Court took the parties' at their word that they had reached an agreement with respect to Defendant offering to produce its Millennium Raw Data as a compromise to Plaintiff's untimely document request for Defendant to export portions of data and convert it to CSV format. Apparently, this agreement only addressed the format of Defendant's production insofar as Defendant would produce a copy of its Millennium CO Database, referred to as “Millennium Raw Data.” The parties did not elaborate on their mutual understanding of the term “raw data.” The parties now have a dispute regarding their agreement and want the Court to determine what format the production should be in given that their stipulation calls for the production of “raw data.” This dispute requests the Court determine the fair meaning of “raw data” in their agreement. The parties' agreement is memorialized in their Joint Motion and Stipulation for Amendment to Protective Order. (ECF No. 143.) The parties needed to amend the protective order because the copy of the Millennium CO Database Defendant agreed to produce would contain sensitive information concerning employees, members and guests of all Defendant's franchisees across the entire country. (Ricketts Decl. ¶ 16; ECF No. 143.) Therefore, the parties agreed to protect the confidentiality of the information. (Ricketts Decl. ¶ 16; ECF No. 143.) The Joint Motion and Stipulation refers to the material Defendant agreed to produce only as “Millennium Raw Data.” (ECF No. 143 at 2.) The term is not defined with any more specificity, nor does the agreement state the format the raw data is normally maintained or what format the raw data would be produced in. (Id.) Defendant contends it never discussed converting or manipulating the database and made clear that it would produce “unadulterated raw data” in the form of a “complete copy of the database.” (Ricketts Decl. ¶ 16.) Defendant states its intent was to produce the database in the format it is maintained in the ordinary course of its business—the entire Millennium CO Database maintained in SQL format. (Id. ¶ 17; Michuta ¶ 13.) The only way to ensure the database was produced as an exact copy and completely unadulterated was to make a backup copy of the database, which necessarily is in the form the database is ordinarily maintained. (Michuta Decl. ¶ 27.) Moreover, Defendant's retained expert and its Senior Developer both concur that in order to convert the database into a CSV text file, the relational nature of the database would be destroyed, necessarily adulterating the data. (Michuta Decl. ¶ 31; Yusuf Decl. ¶ 33.) *7 Plaintiff, however, declares that she understood Defendant would produce a copy of its entire database in CSV format because that is the format Plaintiff initially identified in her untimely document request. (Mot. to Compel at 7.) Plaintiff erroneously states that Defendant did not object to the format Plaintiff requested. (Id.) But as addressed earlier, Defendant did object to the format Plaintiff requested when it served objections to the deposition notice. (Ricketts Decl., Ex. 4.) Plaintiff's primary argument in support of its belief that Defendant agreed to produce the entire database in CSV format is the fact Plaintiff's untimely discovery request specified comma delimited text file—CSV format. (Id. at 18.) Plaintiff, however, ignores the fact that her request was untimely, and she negotiated a compromise with Defendant wherein Plaintiff would withdraw her request for production and deposition notice in exchange for Defendant agreeing to produce the raw database. Plaintiff never included in that agreement that the raw database would be converted into CSV format. After reviewing the parties' arguments, the Court determines that the only logical reading of the term “Millennium Raw Data” is that Defendant would produce its database in the format it is ordinarily maintained. Defendant points out, and the Court agrees, that if the parties truly contemplated producing the Millennium CO Database in CSV format, the words “single, comma delimited text file” or “CSV” would be mentioned in the Joint Motion and Stipulation. (Opp'n at 9.) If this was the agreement, Plaintiff would have included that the form for production be in CSV format. She did not. Further, it would not follow for Defendant to promptly object to Plaintiff's request that the database be produced in CSV format and negotiate for Plaintiff to withdraw her outstanding discovery requests if Defendant ultimately intended to produce the entire relational database in the very format it objected to earlier. Correspondence between counsel further indicates that the parties agreed to the production of the Millennium CO Database in the form it is kept in Defendant's ordinary course of business. For instance, on March 4, 2014, Plaintiff's counsel explained that Plaintiff's expert witnesses needed the “raw data” from the Millennium database to make sure the data “is unadulterated.” (Decl. Ricketts, Ex. 5.) As made evident by both parties' experts' declarations, converting the database into a CSV file would necessarily adulterate the data because the relational nature of all the tables would be stripped. (Yusuf Decl. ¶ 33, Michita Decl. ¶¶ 54, 60, Hansen Decl. ¶ 19.) Finally, Plaintiff cites Wikipedia to explain CSV files, but omits Wikipedia's explanation of “raw data.” (Hansen Decl. ¶ 21.) Wikipedia states: “Raw data has not been subjected to processing or any other manipulation.”[3] Wikpedia further states that “raw data has the potential to become ‘information,’ extraction, organization, and sometimes analysis and formatting for presentation are required for that to occur. Id. But what Plaintiff wants Defendant to do by converting the Millennium CO Database out of the form it is kept in the usual course of business—as a complex relational database on the SQL server—and into CSV format requires extraction, analysis and formatting. Thus, the very task of converting the database in to a CSV file requires the raw data be subjected to manipulation—rendering it no longer raw data. (See Yusuf Decl. ¶ 38; Hansen Decl. ¶ 19.) All things considered, the Court finds that the only logical interpretation of the parties' negotiated agreement wherein Defendant would produce its “Millennium Raw Data” can only be understood to mean Defendant would produce a copy of its entire Millennium CO Database in the exact form it is kept in the ordinary course of business. To interpret “raw data' after-the-fact as Plaintiff wants the Court to interpret the term, would require the Court to interpret “Millennium Raw Data” to mean Defendant was expected to “run a query where they join the tables of the database...exporting the results to a single flat file.” (Hansen Decl. 19.) This, however, is far too strained an interpretation of the term “raw data.” The only reasonable interpretation of parties' negotiated agreement was for Defendant to produce exactly what it produced—an exact backup copy of the entire CO Database in the form it is maintained—SQL format. (Michuta Decl. ¶ 27.) A backup copy is “completely unadulterated raw data.” Accordingly, the Court finds that Defendant adhered to its side of the bargain to produce “Millenium Raw Data” by producing a backup copy of the entire Millennium CO Database as maintained on SQL Server. 2. Defendant Produced The Millennium CO Database In The Form It Is Ordinarily Maintained, As Well As In A Reasonably Useable Form *8 Plaintiff's motion makes it apparent that she wishes to renegotiate the compromise originally reached with Defendant. Plaintiff desires to turn back the clock and compel Defendant to produce the data in the format she identified in her untimely Request No. 41. Defendant points out that when Plaintiff agreed to negotiate the discovery compromise, she waived any right to seek to compel Defendant to produce the data in the form she identified in her untimely request. (Opp'n at 15.) The Court agrees. Nonetheless, the parties' negotiated compromise also complies with the provisions of Rule 34. Rule 34(2)(E) provides: Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or [ESI]: (i) A party must produce documents as they are kept in the usual course of business... (ii) If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms. Fed. R. Civ. P 34(2)(E)(i)-(ii). In this case, Plaintiff waived her right to specify the form of production by serving an untimely request and then agreeing to negotiate a compromise rather than move to compel Defendant to produce the ESI in the format she identified in her untimely request. Plaintiff likely agreed to the compromise because she was well aware that her document request was untimely and Defendant would not be obligated to produce the ESI at all, let alone be ordered to produce the ESI in a form Defendant did not agree with. When Defendant agreed to produce its ESI pursuant to the compromise, it followed Rule 34's directive for producing ESI by producing it in the form in which it is ordinarily maintained. Fed. R. Civ. P. 34(2)(E)(ii). Plaintiff's motion conveniently ignores the fact Defendant produced the ESI in the form in which it is ordinarily maintained and attempts to argue Defendant was obligated to produce the data in a form Plaintiff's expert could reasonably use. Plaintiff, however, misunderstands Rule 34. Rule 34 does not demand that a responding party produce ESI in the format the requesting party believes is a reasonably useable form. See Fed. R. Civ. P. 34. The Rule provides that the data can be produced as “maintained in the usual course of business OR in a reasonably useable form.” Seabron v. Am. Family Mut. Ins. Co., 862 F. Supp. 2d 1149, 1161 (D. Col. 2012) (emphasis in original). Further, Plaintiff does not dispute that Defendant maintains the Millennium CO database and its approximate one terabyte of data in SQL format. (See, e.g. Mot. to Compel.) Nor does Plaintiff contend that Defendant has ever maintained or ever converted the entire Millennium CO database into CSV format. (Id.) Rather, Plaintiff argues that by producing the database in SQL format, Defendant produced data “that only its designers and regular users could decipher,” and therefore the database is not reasonably useable. (Reply at 7; ECF No. 149.) The Court does not agree with Plaintiff's contention that SQL format is not a reasonably useable format. As evidenced by the fact Defendant's independent retained expert, Mr. Yusuf, received the same database copy and successfully analyzed the data—including the relationships within the database and generated queries—the format is reasonably useable. (Yusuf Decl.; ECF No. 151). Although Mr. Yusuf and his team have no prior experience with Defendant's CO Database, they were able to conduct their analysis and obtain results to their queries in a period of four to five days. (Id. at 21.) In contrast to Plaintiff's retained expert, who admittedly has no prior experience with the Millennium software (Hansen Decl.¶ 24), Defendant's expert does have experience working with the Millennium software program—a program “widely recognized as the leading business management program” in the beauty and wellness industries. (Yusuf Decl. ¶¶ 11-12.) Further, Mr. Yusuf, Defendant's retained expert with no prior experience with Defendant's database avers: *9 “The data in the CO Database is an adequate, useable format that does not require further modification or manipulation for the purpose of querying or reviewing the data. Indeed, SQL Server is imperative to maintain the integrity of the relationships in the CO Database.” (Id. at ¶ 24.) The motion to compel makes it apparent that Plaintiff and her expert misunderstand Rule 34's requirements. For instance, Mr. Hansen states he prefers to receive data “in the most usable form,” which is not what Rule 34 requires. (Hansen Decl. at ¶ 33.) Instead, Rule 34 only requires a responding party to produce ESI in a reasonably useable form when the responding party chooses to convert its data out of the form it is ordinarily maintained and into a different format for production. Fed. R. Civ. P. 34(b)(2). Rule 34 surely does not require a responding party to produce data in the format the requesting party considers most useable. Id. Mr. Hansen further complains that Defendant should not have produced its database in the form it is ordinarily maintained because “[Defendant] is not in a position to understand what format would be the most useful to me.” (Hansen Decl. ¶ 33.) Again, Rule 34 does not require a responding party to conduct time consuming queries and analysis of data in order to comply with a requesting party's desire for a complex relational database to be produced in the format its expert deems “most useful.” Rule 34's procedures were designed to prevent responding parties from converting ESI out of the “form in which it is ordinarily maintained to a form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” Fed. R. Civ. P. 34(b) Advisory Comm. Notes to 2006 Amendment. Thus, Rule 34 does not require Defendant to do what Plaintiff wants: for Defendant to perform the laboring oar and run numerous queries and export the results of those queries out of the form it is ordinarily maintained—as a complex relational database on the SQL server—and into an entirely different format—a CSV file. (See Hansen Decl. ¶ 19.) Plaintiff's expert admits that he does not regularly use the same database engine Defendant uses, and that he is in fact requesting Defendant produce the database in the “format [that] would be the most useful to [him].” (Id. at ¶ 11.) Accordingly, Plaintiff is not simply asking for Defendant to merely produce the database in a different format, she actually wants Defendant to “query the database for Plaintiff” and then export the results of the query into a different format. (Id. at ¶ 39.) The Court does not read Rule 34 to require Defendant to undertake such a burdensome task, nor has the Court found any case law supporting Plaintiff's interpretation of Rule 34. Because Defendant complied with the parties' agreement, and because the agreement conforms with the provisions of Rule 34, the Court DENIES Plaintiff's motion to compel Defendant to produce requested portions of the database in CSV format. IV. PLAINTIFF'S REQUEST FOR THE COURT TO IMPOSE SANCTIONS AGAINST DEFENDANT A. Legal Standards Under the provisions of Rule 37(b)(2), sanctions are available when a party fails to obey a discovery order. Fed. Civ. P. Rule 37(b)(2)(A). The sanctions available under this section of the Rule include: “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; [and] prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Id. at (i)-(ii).[4] Pursuant to Rule 37(d), the Court may, on motion, order sanctions if a party, after being properly served with a request under Rule 34, fails to serve its answers, objections, or written response. Fed. R. Civ. P. 37(d)(1)(A)(ii) (emphasis added). *10 The other source of authority under which a district court can sanction a party for discovery-related abuses is the inherent power of federal courts to levy sanctions in response to abusive litigation practices. Fielstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337–38 (9th Cir.1985). Under its “inherent powers,” a district court may award sanctions in the form of attorneys' fees against a party or counsel who acts “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir.1997) (discussing sanctions against an attorney) (citation omitted). “This inherent power derives from the lawyer's role as an officer of the court which granted admission.” In re Snyder, 472 U.S. 634, 643 (1985) (citations omitted). Under this inherent power, and unlike statutory sanctions provisions, the court may sanction a “broad range of improper litigation tactics.” Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1196 (9th Cir.2003). Before awarding such sanctions, the court must make an express finding that the sanctioned party's behavior “constituted or was tantamount to bad faith.” Id. (citation omitted); see also Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216, 1219 (9th Cir.2010). A party “demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.” Id. at 649 (internal quotations and citation omitted). “[A] finding of bad faith ‘does not require that the legal and factual basis for the action prove totally frivolous; where a litigant is substantially motivated by vindictiveness, obduracy, or mala fides, the assertion of a colorable claim will not bar the assessment of attorney's fees.’ “ In re Itel Sec. Litiq., 791 F.2d 672, 675 (9th Cir.1986) (quoting Lipsig v. Nat'l Student Mktg. Corp., 663 F.2d 178, 182 (D.C.Cir.1980) (per curiam)). “[S]anctions are justified when a party acts for an improper purpose—even if the act consists of making a truthful statement or a non-frivolous argument or objection. In Itel, the improper purpose was the attempt to gain tactical advantage in another case.” Fink v. Gomez, 239 F.3d 989, 992 (9th Cir.2001) (citing Itel, 971 F.3d at 675.) The focus of the bad faith inquiry is the sanctioned party's abuse of the judicial process. Id. (citing Roadway Express v. Piper, 447 U.S. 752, 765–66 (U.S.1980), superceded by statute on other grounds as recognized in 749 F.2d 217, 222 n. 4 (5th Cir.1984)). The bad faith requirement ensures that the district court's exercise of its broad power is properly restrained, and “preserves a balance between protecting the court's integrity and encouraging meritorious arguments.” Id. B. Analysis The Court declines to impose any sanctions on Defendant. First, Plaintiff did not propound a timely and proper discovery request on Defendant. Plaintiff requested “export data from [Defendant's] Millennium Software database...produced in a single, comma delimited text file,” too late in the discovery schedule to render her request timely and proper. Regardless, Defendant objected to producing the ESI in the format Plaintiff requested and at no time did this Court order Defendant to produce the data in any format, let alone as a CSV file. The only order entered by the Court with respect to this issue is the amended protective order specifically addressing the parties' agreement that Defendant would produce its Millennium Co Database in a raw and unadulterated format. Accordingly, the Court does not find Defendant violated any rules of discovery, thus there is no basis to enter sanctions against Defendant under Rule 37(b)(2) or 37(d). Further, the Court finds zero evidence to support Plaintiff's contention that Defendant acted with willful intent to engage in discovery gamesmanship. As such, the Court declines to impose any sanctions on Defendant in connection with the above dispute. *11 Finally, as addressed above, the Court denies Plaintiff's motion to compel Defendant to produce the data in CSV format, therefore, Plaintiff is not entitled to her attorney's fees and expenses incurred in bringing the motion. Fed. Rule Civ. P. 37(5)(A). V. PAYMENT OF DEFENDANT'S ATTORNEYS' FEES AND REASONABLE EXPENSES Defendant seeks an award of attorneys' fees and costs incurred in defending against this motion. (Opp'n at 27; ECF No. 150.) Defendant argues the motion to compel was not substantially justified because: (1) Defendant honored the parties' discovery compromise; (2) Defendant produced the Millennium CO database in the format in which it is ordinarily maintained; and (3) Defendant offered to provide Plaintiff's expert with technical assistance but Plaintiff did not take advantage of the offer. (Id.) A. Legal Standard When a motion to compel is denied, Rule 37(a)(5)(B) requires the Court to order the attorney filing the motion “to pay the party...who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(B). The Court must do so after giving an opportunity to be heard unless the motion was substantially justified or other circumstances make an award of expenses unjust. Id. B. Analysis Because the Court denies Plaintiff's motion to compel in its entirety, grounds exist for the Court to award Defendant its fees and costs incurred in opposing the motion. Fed. R. Civ. P. 37(a)(5)(B). Further, the Court preliminarily finds that Plaintiff's motion was not substantially justified because: (1) Defendant produced ESI pursuant to a negotiated agreement with Plaintiff, (2) Defendant produced the ESI in the format it is ordinarily maintained, (3) the format is also reasonably useable as evidenced by Defendant's retained expert's ability to conduct queries and analysis of the data, and (4) the Court never ordered Defendant to produce the data, therefore Plaintiff lacked any grounds to move for sanctions under Rule 37(b)(2). Defendant, however, did not provide any information regarding an estimated or actual dollar amount of fees and costs incurred. Accordingly, Defendant must serve and file a memorandum, supported by the affidavit of counsel, establishing the amount of attorney's fees and reasonable expenses incurred in defending against Plaintiff's motion. The memorandum must itemize and describe the work performed, identify the attorney(s) or other staff member(s) performing the work, as well as the attorney(s) or staff member(s) customary fee for such work. Counsel's affidavit must authenticate information contained in the memorandum, provide a statement that the bill has been reviewed and edited, and a statement that the fees and costs charged are reasonable. Counsel for Plaintiff will have the opportunity to serve and file a responsive memorandum explaining why the Court should find she was substantially justified in filing the motion and further addressing any addititional considerations the Court should take into account in determining the amount of costs and fees that should be awarded, if any. Upon receipt of the memoranda, the Court will consider Defendant's request for an award of fees and costs, and rule accordingly. VI. CONCLUSION *12 Based on the foregoing reasons, the Court DENIES Plaintiff's motion to compel and for sanctions. (ECF No. 149.) Defendant must serve and file the above-referenced memorandum and affidavit of counsel regarding its request for an award of attorney's fees and costs on or before August 1, 2014. Plaintiff must serve and file her responsive memorandum on or before August 8, 2014. A hearing will be held on August 22, 2014 at 10:00 a.m. in Court Room 1B. IT IS SO ORDERED. Footnotes [1] Pursuant to the Court's operative scheduling order, all discovery under Rules 30-36 of the Federal Rules of Civil Procedure needed to be initiated a sufficient period in advance of the March 1, 2014 fact discovery deadline so that after taking into account the time for service and the amount of time the Federal Rules of Civil Procedure allow for response, the discovery would be completed by March 1, 2014. (ECF No. 59.) Thus, in order for the document request to be timely, Plaintiff needed to serve it on Defendant no later than January 30, 2014. Plaintiff, however, served the document request on February 13, 2014—two weeks after the last day to timely serve written discovery. (Restis Decl., Ex. A.) [2] CSV format would require Defendant to export all the data into a single, comma delimited file. CSV stands for comma separated value. (Machuta Decl. ¶ 29.) An example of a CSV file is an Excel spreadsheet. (Yusuf Decl. ¶ 14.) [3] http://en.wikipedia.org/wiki/Raw_data (last visited July 22, 2014). [4] It is important to note that there was no discovery order entered regarding this dispute, therefore, Defendant could not have failed to obey an order that did not exist. Nonetheless, Plaintiff moves for sanctions under this provision.