*1 The above matter came before the undersigned United States Magistrate Judge for hearing upon Defendant Domino’s Pizza, LLC’s Motion Under Fed. R. Civ. P. 37(a)(4)(B) and (C) [Docket No. 185] and Defendant Domino’s Pizza, LLC’s Motion Under Fed. R. Civ. P. 37(b) [Docket No. 197]. Scott Korzenowski, Esq. and Thomas Pahl, Esq. appeared on behalf of plaintiffs; Michael Gray, Esq. and Quentin Whittrock, Esq. appeared on behalf of Defendant.

The Court, upon all of the files, records, and proceedings herein, and for the reasons stated on the record, now makes and enters the following Order.

IT IS HEREBY ORDERED that:

1. Defendant Domino’s Pizza, LLC’s Motion Under Fed. R. Civ. P. 37(a)(4)(B) and (C) [Docket No. 185] is GRANTED in part and DENIED in part as set forth in the Memorandum below;

2. Defendant Domino’s Pizza, LLC’s Motion Under Fed. R. Civ. P. 37(b) [Docket No. 197] is GRANTED in part and DENIED in part as set forth in the Memorandum below;

3. Plaintiffs shall send a check payable to Domino’s counsel in the amount of $20,644 on or before January 15, 2008;

4. Defendant shall provide this Court and plaintiffs with an affidavit on or before January 8, 2008 setting forth all of the reasonable attorney’s fees, costs (including expert costs) resulting from the Rule 37(b) motion for sanctions.

MEMORANDUM

I. DEFENDANT’S MOTION FOR SANCTIONS UNDER FED. R. CIV. P. 37(a)(4)(B)[1] AND (C)

A. Factual Background

Domino’s has asked that the Court award it the reasonable costs it incurred in its successful defense against the myriad of motions to compel brought by plaintiffs. See Defendant Domino’s Pizza, LLC’s Memorandum in Support of its Motion Under Fed. R. Civ. P. 37(a)(4)(B) and (C) (“Def.’s Rule 37(a) Mem.”) at pp. 3-4. Domino’s also seeks the attorney’s fees and costs it incurred in defending against plaintiffs’ various requests for sanctions as set out in plaintiffs’ Motion to Enlarge the Time for Discovery and for Leave to File Motion for Sanctions [Docket No. 32]; plaintiffs’ Motion to Compel Production of Documents, to Compel Production of Defendant’s Corporate Designees for Deposition, to Deem Plaintiffs’ Requests for Admissions Admitted or Denied, for Default Judgment, and for Sanctions [Docket No. 58]; and for plaintiffs’ Motion for Sanctions [Docket No. 121], including the fees and costs Domino’s incurred as a part of the Rule 30(6)(b) deposition ordered by this Court at plaintiffs’ request. Id. at pp. 5-7, 9.

Plaintiffs countered that Domino’s was not entitled to any attorney’s fees and costs on the grounds that this Court has already ruled on the issue of whether the parties should receive fees as a result of the discovery motions before the Court. In addition, plaintiffs argued that an award of attorney’s fees and costs was not appropriate since they prevailed on some of their discovery motions, their discovery motions were undertaken in good faith and were substantially justified, and an award of fees would be unjust given the relative financial resources of the parties. See Plaintiffs’ Memorandum in Opposition to Defendant’s Motion under Rule 37(a)(4)(B) and (C) (“Pls.’ Rule 37(a) Mem.”) at p. 2.

B. Standard of Review

*2 In regards to motions to compel, Rule 37(a)(5)(B) and (C) of the Federal Rules of Civil Procedure states:

Fed. R. Civ. P. 37(a)(5)(B) (emphasis added).

Under Rule 37(a)(5)(B), a court has the discretion to deny attorney’s fees and costs where “the court finds that the making of the motion was substantially justified.” Bryte v. American Household, Inc., 142 Fed. Appx. 699, 703 (4th Cir. 2005). “A motion is ‘substantially justified’ if it raises an issue about which ‘there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” Doe v. Lexington-Fayette Urban County Gov’t, 407 F.3d 755, 766 (6th Cir. 2005) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see also Alexander v. FBI, 186 F.R.D. 144, 147 (D.D.C.1997) (finding that a party is substantially justified if “reasonable people could differ” as to the appropriateness of the motion). Rule 37(a)(5)(B) encourages the voluntary resolution of discovery disputes and limits the ability of litigants to use the discovery process “to heap detriments on adversaries ... without regard to the merits of the claim.” Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786 (7th Cir. 1994) (“The great operative principle of Rule 37(a)(4) is that the loser pays.”).

C. Analysis

As a starting point, this Court rejects plaintiffs’ assertion that it already decided the issue of whether sanctions were appropriate against them for bringing their unsuccessful motions to compel and motions for sanctions. There is nothing in any of this Court’s orders that pertained to plaintiffs’ motions for discovery or for sanctions that addressed whether or not Domino’s was entitled to attorney’s fees and costs under Rule 37(a)(5)(B) or (C). See April 25, 2006 Order [Docket No. 54]; January 25, 2007 Order [Docket No. 176]. Further, this Court finds plaintiffs’ suggestion that it would be unjust to award fees and costs, given the relative financial resources of the parties, to be without merit. Under plaintiffs’ theory, a party with less financial resources could act with impunity IN the discovery process, and without any fear of being accountable for the deterrent effect of Rule 37(a)(5)(B). Thus, the focus of this Court’s determination on Domino’s request for sanctions will be centered on whether plaintiffs’ various motions were substantially justified – that is, whether reasonable people could differ as to the appropriateness of plaintiffs’ motions.

*3 If the Court concludes that an award on attorney’s fees is appropriate, then the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hennsley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Gumbhir v. Curators of the Univ. of Missouri, 157 F.3d 1141, 1146 (8th Cir. 1998) (citations omitted); Transclean Corp. v. Bridgewood Services, Inc., 134 F. Supp.2d 1049, 1052 (D. Minn. 2001). This approach is referred to as the lodestar method. Once a lodestar amount is determined, the court then considers the relevant factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), to increase or decrease the loadstar figure if appropriate. Gopher Oil Co., Inc. v. Union Oil Co. of California, 757 F. Supp. 998, 1009 (D. Minn. 1991) (citation omitted).

These factors include:

Id. at 1011 n. 16 (citing Johnson, 488 F.2d at 717-19). Even though the Johnson factors may be used to raise or lower the lodestar amount, “many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Id.

1. Plaintiffs’ Motion to Compel [Docket No. 32]

On April 6, 2006, plaintiffs brought a Motion to Compel Discovery, for Enlargement of the Discovery Period and for Sanctions [Docket No. 32]. On April 26, 2007, this Court issued an Order [Docket No. 54] denying plaintiffs’ motion to compel and for sanctions, but granting their motion for an extension to enlarge the period for fact discovery. This Court denied plaintiffs’ motion to compel and motion for sanctions on the basis that plaintiffs failed to meet and confer in accordance with Rule 37 of the Federal Rules of Civil Procedures and Local Rule 37.1, and failed to set forth or attach the discovery at issue in violation of Local Rule 37.2. As such, this Court finds plaintiffs’ April 6, 2006 motion to compel was not substantially justified, as it fell far short of the basic procedural rules that govern any motion to compel.

According to Domino’s, its counsel spent 20.1 hours defending against the motion to compel and for sanctions, and it is seeking attorney’s fees in the amount of $6,192 for opposing plaintiffs’ motion. See Affidavit of Quentin R. Wittrock in Support of Motion Under Rule 37(a)(4)(B) and (C) (“Wittrock Rule 37(a) Aff.”), ¶ 5, Ex. A (Time Responding to Plaintiffs’ Motions Heard April 24, 2006). Unfortunately, the description of services rendered by Domino’s’ counsel does not differentiate between the work performed on the motion to compel and sanctions and the work performed on plaintiffs’ motion for enlargement of time, for which plaintiffs were ultimately successful. Nevertheless, having reviewed the billing rates of the counsel involved and having considered the nature and complexity of the issues involved, this Court finds that $4644 or 75% of the attorneys fees and costs associated with the entire motion is an appropriate award for the expenses incurred by Domino’s in defending against plaintiffs’ motion to compel and motion for sanctions.

2. Plaintiffs’ Motion to Compel Written Discovery, to Compel Production of Documents, to Compel Production of Domino’s Corporate Designees for Deposition, to Deem Plaintiffs’ Requests for Admissions Admitted or Denied, for Default Judgment, and for Sanctions [Docket No. 58]

a. Plaintiffs’ First Set of Interrogatories and First Set of Requests for Production of Documents

*4 This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery. The Court rejected plaintiffs’ motion to compel as to this discovery because plaintiffs failed to provide this Court with the discovery that was in dispute. See January 25, 2007 Order at pp. 6-8. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

b. Plaintiffs’ Second Set of Requests for Production of Documents

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery. The Court rejected plaintiffs’ motion to compel as to this discovery because plaintiffs failed to provide this Court with an entire copy of the discovery that was in dispute and failed to give the Court a reason why Domino’s objections were inappropriate. See January 25, 2007 Order at pp. 8-10. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

c. Plaintiffs’ Third Set of Requests for Production of Documents

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery, since this Court ruled that Domino’s had not made a complete production of the Uniform Franchise Officering Circulars and operation manuals. See January 25, 2007 Order at pp. 10-14.

d. Plaintiffs’ Second Set of Interrogatories and First Set of Request for Admissions

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery. While this Court denied the motion, the Court finds plaintiffs’ position was substantially justified and that reasonable people could differ as to the appropriateness of the motion on this discovery.

e. Plaintiffs’ Third Set of Interrogatories

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery, as this Court granted part of the relief sought as to the Third Set of Interrogatories. See January 25, 2007 Order at p. 25. In addition, while this Court denied the balance of the motion, the Court finds plaintiffs’ position was substantially justified and that reasonable people could differ as to the appropriateness of the motion on this discovery.

f. Plaintiffs’ Fourth Set of Requests for Production of Documents

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery, as this Court granted part of the relief sought by the Fourth Set of Interrogatories (production of copies of the agreements related to the vendors involved in the point of sale system) See January 25, 2007 Order at pp. 26-27). In addition, while this Court denied the balance of the motion, the Court finds plaintiffs’ position was substantially justified and that reasonable people could differ as to the appropriateness of the motion on this discovery.

g. Plaintiffs’ Fourth Set of Interrogatories and Second Set of Requests for Admissions

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this discovery. The Court rejected plaintiffs’ motion to compel because plaintiffs failed to articulate to the Court why Domino’s objections and responses to their Fourth Set of Interrogatories and Second Set of Requests for Admissions were improper. See January 25, 2007 Order at pp. 27-28. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

*5 Having determined that Domino’s is entitled to sanctions in the form of attorney’s fees and costs on some portions of plaintiffs’ motions, the Court must determine what amount of fees and costs should be awarded to Domino’s. According to Domino’s, its counsel spent 41.3 hours defending against this motion, and is seeking attorney’s fees in the amount of $15,738.80. See Wittrock Aff., ¶ 6, Ex. A (Time Responding to Plaintiff’s Motions Heard June 5, 2006). Again, this Court notes that Domino’s did not attempt allocate the time spent on the motion to compel and for sanctions by the various topics of plaintiffs’ motion (see Wittrock Aff., Ex. A).

Based on the fact that this Court has determined that Domino’s is entitled to attorney’s fees and costs on approximately half of the issues presented by its motion for sanctions, and considering the billing rates of Domino’s attorneys’ and the complexity of the issues on which Domino’s prevailed, this Court finds that Domino’s is entitled to $8000 in attorney’s fees and costs associated with defending against plaintiffs’ motion to compel and for sanctions.

2. Plaintiffs’ Motions for Sanctions [Docket Nos. 59, 121]

a. The Appropriateness of the “Confidential” Designation of Documents Produced by Defendant

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. The Court rejected plaintiffs’ motion, as they completely ignored the framework of the Stipulated Protective Order [Docket No. 53] for challenging the “Confidential” designation of produced documents. See January 25, 2007 Order at pp. 53-54. As such, this portion of plaintiffs’ motion for sanctions was not substantially justified, and there are no other circumstances that make an award unjust.

b. Access to Microsoft Databases and Microsoft Project Files.

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. The Court rejected plaintiffs’ request for access to Domino’s Microsoft Databases and Microsoft Project Files because Domino’s had already made the databases and project files available for inspection by plaintiffs’ counsel in their native format. See January 25, 2007 Order at pp. 42-43. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

c. Access to Information on Domino’s Shared Drive.

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. The Court rejected plaintiffs’ motion as to this discovery given the clear jurisprudence on this issue, including the Advisory Committee Note to Rule 34 of the Federal Rules of Civil Procedure, which states that a party generally does not have right to go rummaging through the computer systems of its opponents, and because plaintiffs gave no reason for the search, except that the drives should contain necessary information. See January 25, 2007 Order at pp. 44-46. As such, plaintiffs’ motion was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

d. The Adequacy of Domino’s Document Production—Native Electronic Format versus TIFF Files

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. While this Court concluded that Domino’s did not have to produce documents in their native electronic format, Rule 34(b)(ii) Federal Rules of Civil Procedure does provide that “a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” Therefore, this Court finds that reasonable people could differ on the appropriateness of plaintiffs’ motion as to whether the TIFF files were in a form that was reasonably usable.

e. The Adequacy of Joe Devereaux’s Rule 30(b)(6) Testimony

*6 This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. The Court rejected plaintiffs’ motion for sanctions because plaintiffs failed to provide this Court, per its request, with a recitation line-by-line where plaintiffs claimed Devereaux demonstrated he was not competent to address the Rule 30(b)(6) topics at his deposition. See January 25, 2007 Order at pp. 90-91. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery and there are no other circumstances that make an award unjust.

f. The Adequacy of Hartwig’s Rule 30(b)(6) Testimony.

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion. Plaintiffs’ challenges to Hartwig’s Rule 30(b)(6) deposition testimony were devoid of any merit. See January 25, 2007 Order at pp. 93-101. As such, plaintiffs’ motion to compel was not substantially justified with respect to this discovery, and there are no other circumstances that make an award unjust.

g. The Adequacy of Matthew Maguire’s Rule 30(b)(6) Testimony and the Propriety of Domino’s Search for and Production of Documents

This Court denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion for sanctions. This Court concluded that Maguire was not entirely prepared to address the Rule 30(b)(6) topics. In particular, Maguire was unable to testify regarding two key topics bearing on the search for documents: (1) who conducted searches outside of IS and what was searched (physical file and data locations; servers; individual computers; computers of third parties; outside contractors; employees and employees; and former employees) consistent with Topic 6 of this Court’s July 12, 2006 Order [Docket No. 161]; and (2) Graziani’s search of the IS shared drive for documents to be produced in this case consistent with Topic 8 of the July Order. See January 25, 2007 Order at pp. 101-11. Further, given that the Maguire deposition was never taken again,[2] this Court has no way of making a final determination on the propriety of Domino’s search for and production of documents. As such, this Court also denies Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) as it relates to the propriety of Domino’s search for and production of documents.

h. Franchisee Documents Not Produced from Devereaux and Information of PULSE Committees

This Court grants Domino’s motion for attorney’s fees and costs under Rule 37(a)(5)(B) pertaining to this portion of plaintiffs’ motion for sanctions. The Court rejected plaintiffs’ request for franchisee documents because plaintiffs did not identify those documents or their contents and rejected plaintiffs’ request for information on PULSE “shadow” committees, as plaintiffs did not provide this Court with any evidence of or specific reference to the existence of these committees or Domino’s failure to produce discoverable documents regarding them. See January 25, 2007 Order at p. 92. As such, plaintiffs’ motion for sanctions was not substantially justified with respect to these requests, and there are no other circumstances that make an award unjust.

Having determined that Domino’s is entitled to sanctions in the form of attorney’s fees and costs for its successful defense of certain portions of plaintiffs’ motions for sanctions, the Court must resolve what amount of fees are reasonable. According to Domino’s, its counsel spent 38.85 hours defending against the motions for sanctions, and is seeking attorney’s fees in the amount of $9,269.20. See Wittrock Aff., ¶ 7, Ex. A (Time Responding to Plaintiff’s Motions Heard June 26, 2006). Considering that Domino’s prevailed on virtually all of the issues presented by plaintiffs’ sanction motions, the billing rates of Domino’s attorneys, and the complexity of the issues on which Domino’s prevailed, this Court finds that Domino’s is entitled to an award of $8000 for the expenses associated with defending against these motions.

*7 Defendants also claimed that they are entitled to $94,514.06 in fees and $7,477.12 in disbursements for expenses incurred as a result of Rule 30(b)(6) deposition process demanded by plaintiffs regarding the appropriateness of Domino’s document production. Id., ¶ 8, Ex. A (Time and Disbursement Responding to Plaintiffs’ Overall Allegations Regarding Search for and Method of Production, as Heard Again August 29, 2007). However, as this Court as this Court has already stated, Maguire was not entirely prepared to address all of the Rule 30(b)(6) topics at his deposition and the deposition was not taken again to address these topics. See January 25, 2007 Order at pp. 101-13. In other words, this Court cannot award sanctions in favor Domino’s if it cannot determine, on a complete record, that its production was complete and appropriate.

D. Conclusion

In sum, Domino’s is entitled to $20,644 in attorney’s fees and costs for defending against plaintiffs’ various motions to compel and motions for sanctions. Plaintiffs and their attorneys shall be responsible jointly for this award and shall deliver a check in the amount of $20,644 to Domino’s counsel on or before January 15, 2008.[3]

II. DEFENDANT’S MOTION FOR SANCTIONS UNDER FED. R. CIV. P. 37(b)

Defendant’s Motion for Sanctions under Federal Rules of Civil Procedure 37(b) consists of two parts. First, Domino’s claims that plaintiffs improperly took documents from it during the copying and inspection of emails ordered produced by this Court. Second, Domino’s seeks sanctions for plaintiffs’ failure to comply with this Court’s January 25, 2007 Order directing plaintiffs to produce certain discovery by February 12, 2007. Specifically, Domino’s asked for dismissal of plaintiffs’ suit and monetary sanctions. See Defendant Domino’s Pizza LLC’s Memorandum in Support of its Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(b) (“Def.’s Rule 37(b) Mem.”) at pp. 2, 12. Given that plaintiffs’ case has been dismissed by virtue of District Judge Richard H. Kyle’s May 31, 2005 Order [Docket No. 273] on the parties’ cross-motions for summary judgment, this Court will limit its sanctions considerations to whether Domino’s is entitled to attorney’s fees and costs for bringing the present motion.

A. Improper Taking of Documents

Pursuant to this Court’s January 25, 2007 Order, Domino’s made available for plaintiffs’ inspection at the law offices of Gray, Plant, Mooty, Mooty & Bennett, PA, approximately 117,000 pages of email documents. See Affidavit of Michael Gray (“Gray Aff.”), ¶ 3. Domino’s counsel decided to make the emails available to plaintiffs through an electronic database maintained on their computers. Id. On March 1, 2007, Domino’s counsel notified plaintiffs’ counsel of the manner in which it was going to produce the emails and plaintiffs’ counsel requested that they be provided with eight computer terminals to accommodate the number of individuals coming to review the emails. Id., ¶¶ 3-4, Ex. 1 (March 1, 2007 12:45 P.M. email from Korzenowski to Gray); Ex. 2 (March 1, 2007 Letter from Gray to Pahl).

The database of documents provided by Domino’s was set up in a manner that plaintiffs could click a button and tag a document they wanted produced. Id., ¶ 6. The documents were then to be reviewed by Domino’s for confidentiality and bates numbered for production. Id. When Domino’s counsel asked that someone from Gray Plant be present during the inspection, plaintiffs refused. Id., ¶ 5, Ex. 1 (March 1, 2007 12:45 P.M. email from Korzenowski to Gray).

The document review took place on March 7 and 8, 2007 at the offices of Gray Plant. Plaintiffs Chris McCormick and Kevin Bores, plaintiffs’ counsel Scott Korzenowski, Kelly Shannon, C.J. Kuhn, Tom Pahl, and paralegal Jennifer Heifner conducted the document review.[4] See Affidavit of Kevin Bores in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Bores Aff.”), ¶¶ 3, 6-7; Affidavit of Scott Korzenowski in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Korzenowski Aff.”), ¶¶ 11, 18; Affidavit of Kelly Shannon in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Shannon Aff.”), ¶¶ 6, 8; Affidavit of C.J. Kuhn in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Kuhn Aff.”), ¶¶ 3, 7; Affidavit of Tom Pahl in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Pahl Aff.”), ¶¶ 4, 8; Affidavit of Jennifer A. Heifner in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Heifner Aff.”), ¶¶ 3, 7. Gray Plant provided plaintiffs with three computers containing the emails in one room (“Room No. 1”), two computers containing the emails in another room (“Room No. 2”), one computer containing emails in another room (“Room No. 3”), one computer containing the emails in another room (“Room No. 4”), and a computer containing the PDF files in another room (“Room No. 5”). See Korzenowski Aff., ¶ 12; Pahl Aff., ¶ 4; Shannon Aff., ¶ 6; Kuhn Aff., ¶ 4; Heifner Aff., ¶ 4; Bores Aff., ¶ 4. Gray Plant provided a sixth room that contained three boxes of documents as well as certain “attorneys’ eyes only” documents (“Room No. 6”). See Korzenowski Aff., ¶ 12; Pahl Aff., ¶ 4; Shannon Aff., ¶ 6; Kuhn Aff., ¶ 4; Heifner Aff., ¶ 4; Bores Aff., ¶ 4. The plaintiffs’ group split up on both March 7 and 8. On both days, McCormick, Kuhn and Shannon initially reviewed documents on the computers in Room No. 1. See Korzenowski Aff., ¶¶ 13, 18; Shannon Aff., ¶¶ 7-8; Kuhn Aff., ¶¶ 5, 7.

*8 Plaintiffs requested on both March 7 and 8, 2007, that Domino’s download the emails from the database onto a disk. See Korzenowski Aff., ¶¶ 14, 19-22; Affidavit of Quentin R. Wittrock (“Wittrock Rule 37(b) Aff.”), ¶ 2. On March 8, 2007, at 9:54 a.m., plaintiffs’ counsel, Korzenowski, sent a letter to Domino’s counsel demanding that the emails provided to plaintiffs on the database at the offices of Gray Plant be copied on to a disk. See Korzenowski Aff., Ex. E. Plaintiffs gave Domino’s until 11:00 a.m. to respond and stated that if Domino’s was not was willing to provide the documents on disk, then Domino’s would have to come before this Court for a conference call in order to resolve the dispute. Id. The telephonic conference with the Court was held at approximately 12:15 p.m. on March 8. Id., ¶ 24; Wittrock Rule 37(b) Aff.”), ¶ 3. The telephonic conference ended at approximately 12:45 p.m., with the Court taking the matter under advisement in order to consider the correspondence between counsel that reflected the agreement the parties had reached on how the document production was going to take place. On March 13, 2007, this Court issued an Order denying plaintiffs’ request that the email documents be produced on a disk. [Docket No. 205].

On March 8, 2007, the second day of document inspections at Gray Plant, McCormick, Kuhn, Shannon, and Bores reviewed documents on the computers in Room No. 1 throughout the day. See Korzenowski Aff. ¶ 18; Bores Aff., ¶ 11; Shannon Aff. ¶¶ 8-11; Kuhn Aff. ¶¶ 7-12. At approximately 1:05 p.m., plaintiff McCormick called Leanne Olson, the Litigation Support Director of Gray Plant, stating that he had accidentally shut off the computer he was working on in Room No. 1, and needed to be logged back on. See Affidavit of Leanne Olson (“Olson Aff.”), ¶ 5. Plaintiffs’ counsel, C.J. Kuhn, was in Room No. 1 with McCormick at the time. Id. Upon logging McCormick back onto the computer, Olson noticed an icon on the lower right half of the computer screen. When she clicked on the icon, it indicated that documents were waiting to be copied to a CD. In Olson’s experience, this icon appears when a person is attempting to burn files to a CD. Id., ¶ 6. Olson immediately reported the incident to Domino’s counsel, June Pineda and Quentin Wittrock. Id.; Wittrock Rule 37(b) Aff., ¶ 4. When Pineda entered the conference room, she saw attorney Kuhn sitting in front of one of the computers with his back to McCormick. See Affidavit of June Pineda, ¶ 2. McCormick was working on a laptop that belonged to someone in plaintiffs’ group. Id. After plaintiffs left, the hard drive from the Gray Plant computer McCormick was using was pulled and sent to a computer forensic specialist, Mark Lanterman, to ascertain whether any documents were impermissibly burned onto a CD. See Olson Aff., ¶ 7.

On the same day, Wittrock called Korzenowski at approximately 2:30 p.m. and confronted him about Domino’s suspicion that plaintiff McCormick had copied email documents from the Gray Plant database onto a CD. See Wittrock Rule 37(b) Aff., ¶ 4; Korzenowski Aff., ¶ 25. Subsequently, Korzenowski sent an email to Wittrock stating that he had confirmed with his team that no one in plaintiffs’ group had downloaded or attempted to download any documents off of the Gray Plant computers. See Wittrock Rule 37(b) Aff., ¶ 4, Ex. 1 (March 8, 2007 3:36 P.M. email from Korzenowski to Wittrock).

The hard drive from the computer that McCormick had been working on March 7 and 8, 2007 (“Drive No. 1), was analyzed by Mark Lanterman, the Chief Technology Officer for Computer Forensic Services, Inc. See Affidavit of Mark Lanterman (“Lanterman Aff.”), ¶¶ 1, 8. His analysis of Drive No. 1 revealed that approximately 3000 TIF graphic files had been copied onto a compact disc from the drive on March 8, 2007 at 11:34 a.m. Id., ¶ 9. In addition, Lanterman determined that a commercial software program called “Evidence Eliminator” had been installed on the computer on March 8, 2007 at 3:44 p.m. from a removable USB device, which was used to delete and overwrite data from the hard drive. Id., ¶ 12. Upon completion of the data wipe, “Evidence Eliminator” itself was deleted at 3:52 p.m. Id.

On March 19, 2007, Lanterman received for his review the hard drives from the two other computers that were used in Room No. 1 by plaintiffs to review documents. See Supplemental Affidavit of Mark Lanterman (“Supp. Lanterman Aff.”), ¶ 2. Lanterman’s analysis of the two additional hard drives (named “Drive 2” and “Drive 3” for the purposes of this memorandum) revealed the following:

See Supp. Lanterman Aff., ¶¶ 6-10.

Plaintiffs failed to tag all but 7 of the documents copied onto a CD. See Supplemental Affidavit of Leanne Olson, ¶ 5.

In opposition to Domino’s motion for sanctions, plaintiffs’ legal team stated in affidavits the following:

See Supplemental Affidavit of Scott Korzenowski in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Supp. Korzenowski Aff.”), ¶ 9; Supplemental Affidavit of Kelly Shannon in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Supp. Shannon Aff.”), ¶ 12; Supplemental Affidavit of C.J. Kuhn in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Supp. Kuhn Aff.”), ¶ 16; Supplemental Affidavit of Tom Pahl in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Pahl Aff.”), ¶ 11; Supplemental Affidavit of Jennifer A. Heifner in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Supp. Heifner Aff.”), ¶ 13.

Plaintiff Bores stated in his affidavit as follows:

See Supplemental Affidavit of Kevin Bores in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions (“Supp. Bores Aff.”), ¶¶ 15-16.

Remarkably absent from plaintiffs’ submission was any affidavit from McCormick stating that he did not download emails or any other files to a CD or any other device on March 7 or 8 at the Gray Plant offices and that he did not install Evidence Eliminator software (or any other software) on any computer at Gray Plant on March 7 or 8. Instead, McCormick stated:

Affidavit of Christopher McCormick in Support of Plaintiffs’ Response to Defendants’ Motion for Sanctions (“McCormick Aff.”), ¶ 3 (emphasis added).

Attorney Kuhn admitted that on March 8, 2007, he observed McCormick place a CD into one of the computers he was reviewing, but that he did not observe him downloading any files onto a CD. See Supp. Kuhn Aff., ¶ 17. Attorney Korzenowski stated that he learned at approximately 1:00 p.m. on March 8, 2007, that Kuhn had observed McCormick placing a CD into one of the computers in Room No. 1. See Supp. Korzenowski Aff., ¶ 10. Attorney Gray asserted that he was called by Attorney Korzenowski on March 12, 2007, after Domino’s had filed its motion for sanctions, and was told by Korzenowski that Kuhn saw McCormick on March 8, 2007 at approximately 11:20 a.m., insert a disk into the computer he was using to review emails and that Kuhn said to McCormick, “Are you insane?” and told him to remove the disk. See Supplemental Affidavit of Michael R. Gray, ¶ 2. Gray was told that Kuhn stopped McCormick before anything happened. Id. Subsequent to this event, Kuhn left for lunch at approximately 11:25-11:30 a.m., leaving McCormick alone in Room No. 1. Id.; see also Supp. Kuhn Aff., ¶ 5. Plaintiff Bores stated that on March 8, 2007 at 3:30 p.m. he went into Room No. 1 where he noticed that McCormick had a flash-drive type device in his possession. See Supp. Bores Aff., ¶¶ 11-12. When Bores asked McCormick what he was going to do with the flash-drive, McCormick told him to “mind his own business and that he was merely using it to fix things.” Id., ¶ 12. According to Bores, he assumed that McCormick was attempting to rectify the issues regarding Domino’s allegations that somebody was attempting to download files. Id. Bores then focused on his own review. Id. Bores claims that he did not observe anyone put anything into any of the computers around 5:00 p.m. on March 8, 2007. Id., ¶ 13.

Following the receipt of the present motion for sanctions, plaintiffs’ counsel, Korzenowski, told Domino’s counsel that if Domino’s was willing to withdraw its motion for sanctions, plaintiffs would attest that they had no copy of any files that Domino’s provided for review, and that plaintiffs would pay the reasonable attorney’s fees and expert fees incurred in bringing the motion. See Korzenowski Aff. ¶ 35. Plaintiffs followed up with an email and letter confirming the offer. Id., ¶¶ 37, 38, Exs. J (March 20, 2007 email from Korzenowski to Gray), L (March 23, 2007 Letter from Korzenowski to Gray).

Pursuant to its inherent powers, a court may “fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991); see also Stevenson v. Union Pacific R. Co., 354 F.3d 739, 751 (8th Cir. 2004). “When rules alone do not provide courts with sufficient authority to protect their integrity and prevent abuses of the judicial process, the inherent power fills the gap.” Shepherd v. Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995).

*11 There can be no question that the events surrounding the burning of emails onto CDs and use of Evidence Eliminator to cover up this conduct, all while this Court was considering plaintiffs’ request for a copy of these emails on a disk, amounts to a flagrant abuse of the judicial process and cries out for sanctions. Suffice it to say that plaintiffs’ admission that they “did nothing more than go slightly over the speed limit” (see Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for Sanctions Pursuant to Fed, R, Civ. P. 37(b) (“Pls.’ Rule 37(b) Mem.”) at p. 23), is a gross understatement and borders on the ridiculous. As such, this Court finds that it is imperative that sanctions be assessed.

In making this determination, this Court rejects plaintiffs’ suggestion that sanctions are not warranted because no documents were in fact taken (see Pls.’ Rule 37(b) Mem. at p. 26). It is the conduct which constitutes a flagrant disregard for the judicial process, not its success or failure. Further, this Court finds completely meritless plaintiffs’ assertion that no sanctions should be awarded because they were entitled to the documents that were allegedly taken. Id. at p. 24. Domino’s had a right to know which of its documents were being selected, whether it was for the purpose of bates stamping the documents, for designating the documents as confidential, or simply to know which documents plaintiffs found sufficiently relevant to select. Plaintiffs’ failure to tag all but 7 of the documents copied onto a CD is clear evidence of plaintiffs’ attempt to conceal the documents they found relevant and to bypass the entire document production process. Further, plaintiffs’ argument ignores the fact that Evidence Eliminator was installed on three computers for the express purpose of deleting files and covering their tracks.

For the most part, plaintiffs and their counsel have relied on the defense that “it was not me” in order avoid sanctions. While Bores and all of plaintiffs’ legal staff have denied downloading emails or any other files to a CD during the March production or installing the Evidence Eliminator software onto the computers in Room No. 1, there is no such denial from McCormick. The only representation made by McCormick was that he never took or retained any hard copies or electronic copies from the offices of Gray Plant. See McCormick Aff., ¶ 3. McCormick’s silence regarding the copying of documents onto the CD or use of Evidence Eliminator screams volumes, particularly in light of Kuhn’s observation of McCormick trying to place a disk into one of the computers in Room No. 1, Olson’s observation that the computer which McCormick had been using indicated that documents were waiting to be copied onto a CD, and McCormick’s admonishment to Bores to “mind his own business and that he was merely trying to fix things” when Bores asked him about the jump drive in his possession. The inescapable conclusion reached by this Court is that McCormick copied the documents onto the CDs and used Evidence Eliminator to delete files and cover his tracks. Sanctions will be assessed against McCormick.

Further, this Court concludes Bores is also responsible for the conduct that has lead to Domino’s motion for sanctions. Although Bores denied in his Affidavit that he downloaded emails or any other files to a CD on March 7 or 8 or installed Evidence Eliminator onto the computers in Room No. 1, he did admit that he noticed McCormick at 3:30 p.m. on March 8, 2007 in Room No 1 with a flash-drive type device in his possession. When Bores asked McCormick what he was going to do with the flash-drive, McCormick told him to “mind his own business and that he was merely using it to fix things.” See Supp. Bores Aff., ¶ 12. Instead of notifying counsel of McCormick’s suspicious activity, he turned a blind eye to it.[5]

*12 In addition, this Court finds that plaintiffs’ counsel Kuhn and Korzenowski are also responsible for the conduct that has lead Domino’s to bring this portion of the motion for sanctions. As stated previously, Kuhn admitted that on March 8, 2007, he observed McCormick place a CD into one of the computers in Room No. 1 and told him to remove the disk. Kuhn then left McCormick by himself to go to lunch, thereby leaving the proverbial fox in charge of the henhouse. Counsel also allowed McCormick and Bores to be alone in Room No. 1 from 3:30 p.m. to 4:15 p.m., even after being confronted by Domino’s regarding the downloading of files. Given that plaintiffs’ attorneys were so adamant that no Gray Plant attorney or representative be present in the room during the document review, this Court finds it incredible that counsel would then leave their clients in the room without an attorney present, especially when they had already observed McCormick acting inappropriately and opposing counsel had alerted them to a significant breach in the document production process. This conduct by plaintiffs’ counsel is at complete odds with their obligations and duties as officers of the Court. Therefore, this Court finds that attorneys Kuhn and Korzenowski shall also be responsible with plaintiffs McCormick and Bores for the attorney’s fees and costs incurred by Domino’s in bringing this portion of the Rule 37(b) motion for sanctions.

In conclusion, this Court finds that the conduct of McCormick, Bores, Kuhn and Korzenowski was a complete abuse of the judicial process and that they shall be sanctioned accordingly for their conduct in the form of payment to Domino’s for the reasonable attorneys fees and costs to it incurred in bringing this matter to the Court’s attention. In order to determine the amount of fees and expenses to be awarded, Domino’s shall provide this Court and plaintiffs an affidavit on or before January 8, 2008, setting forth the hours, attorney’s fees and costs (including expert costs) incurred in bringing this portion of the Rule 37(b) motion for sanctions.

B. Failure to Provide Discovery Ordered by this Court

On January 25, 2007, this Court issued an Order addressing a myriad of discovery related motions brought by the parties. See January 25, 2007 Order [Docket No 176]. The parties were given until February 12, 2007 to serve amended responses to discovery and produce all documents consistent with the Order. Id. at p. 3. By the agreement of the parties, the date of the amended production was extended to February 15, 2007. See February 13, 2007 Second Amended Pretrial Scheduling Order [Docket No. 178]. According to Domino’s, plaintiffs’ February 15, 2007 amended discovery responses and production failed to comply with the following portions of the January 25, 2007 Order:

See Def.’s Rule 37(b) Mem. at pp. 7-8.

On March 2, 2007, Domino’s counsel sent a letter to plaintiffs’ counsel outlining the deficiencies in their amended discovery responses. See Gray Aff., Ex. 4.[6]

In response to this letter, plaintiffs’ counsel asserted that they would address Domino’s concerns by March 16, 2007. See Korzenowski Aff., ¶ 15; Pahl Aff., ¶ 6. Defendants brought the present motion on March 12, 2007. On March 16, 2007, plaintiffs served on Domino’s a revised privilege log, a spread sheet listing plaintiffs’ complete document production, including a list of bates numbers and from which plaintiff the document was obtained, and a letter which discussed the interrogatories and request for production of documents at issue. See Pahl Aff., Ex. A (March 16, 2007 Letter from Pahl to Gray and Production).

*13 In analyzing this portion of Domino’s Rule 37(b) motion for sanctions, this Court only looks to plaintiffs’ responses as of February 15, 2007, the date the amended responses were due. Any subsequent productions by plaintiff will not be considered as they were not permitted by this Court. Keefer v. Provident Life and Acc. Ins. Co., 238 F.3d 937, 941 n. 6 (8th Cir. 2000). (“Adverse parties are not obligated to expend time and money pursuing legitimate motions for sanctions only to have courts allow last minute rescues.”). Plaintiffs have had a history of not complying with this Court’s discovery orders and they and their counsel will be held to the edicts of the January 25, 2007 Order.

Defendant took issue with plaintiffs’ amended answers to Interrogatory No. 1 from its first set of Interrogatories. See Gray Aff., Ex. 4 at p. 5. As to Interrogatory No. 1 from Domino’s First Set of Interrogatories, this Court required that plaintiffs’ verify their Interrogatory Answers. See January 25, 2007 Order at p. 72. McCormick failed to provide his verified responses to Interrogatory No. 1, and therefore, did not comply with the Order. See Gray Aff., Ex. 3 (Plaintiff Christopher McCormick’s Second Amended Answers to Plaintiff’s First Set of Interrogatories Nos. 1, 6, and 7). As to Bores and Huber’s second amended verified answers to Interrogatory No. 1, however, this Court finds that they adequately set forth who attended meetings regarding PULSE and the content of those meetings to the best of their recollections. Id. (Plaintiff Jennifer Huber’s Second Amended Answers to Plaintiff’s First Set of Interrogatories Nos. 1, 6, and 7; Plaintiff Kevin Bores Second Amended Answers to Plaintiff’s First Set of Interrogatories Nos. 1, 6, and 7).

As to Interrogatory Nos. 12, 13, 14, 16 and 22, this Court ordered plaintiffs to fully answer these interrogatories. See January 25, 2007 Order at pp. 84, 86. Having reviewed plaintiffs’ February 15, 2007 answers to these interrogatories, the Court finds as follows:

In addition, this Court ordered that plaintiffs to produce all documents in their possession, custody or control pertaining to Domino’s Second Set of Requests for Production of Documents, Request Nos. 18, 20, 24, 26, and 31. See January 25, 2007 Order at pp. 84, 86. With respect to this discovery, this Court finds as follows:

As part of its Order, this Court also required that plaintiffs produce a privilege log in compliance with Rule 26(b)(5), to the extent they were asserting claims of attorney-client and work product privileges. See January 25, 2007 Order at p. 84. Defendants asserted that plaintiffs’ privilege log, produced on February 15, 2007, was wholly deficient. However, Domino’s did not attach the initial privilege log produced by plaintiff, as part of its moving papers, making it impossible to determine whether the log was inadequate based on the present record.

With regards to plaintiffs’ document production, Domino’s alleged that the document production was comprised of many pages that were either blurry, cut off, or contained unintelligible symbols. Domino’s also complained that the documents were not produced in any perceivable order, making it impossible for it to determine which pages comprised a single document or whether a document had an attachment. Defendant provided the Court with several documents representative of the documents produced by plaintiffs that Domino’s took issue with. See P00000035-39, P00000050, P00000065-67, P00000071, P00000077, P00000150-151, P00000208-211. All of the documents provided by Domino’s appeared to be emails produced by plaintiffs, all contain unintelligible symbols, and at least two of the emails (P00000071, P00000077) are missing text. This Court ordered plaintiffs to provide all documents responsive to Request Nos. 17-27, 29-31 to Domino’s. See January 25, 2007 Order at pp. 84, 86. Documents under Rule 34 must be produced “as they are kept in the ordinary course of business....” Fed. R. Civ. P. 34(b)(2)(E)(i). Plaintiffs’ incomplete production (of those emails identified by Domino’s) constituted a willful violation of this Court’s January 25, 2007, which mandated a complete disclosure of responsive documents in compliance with Rule 34.

*15 Under Rule 37(b) of the Federal Rules of Civil Procedure, a court may award sanctions against a party or a party’s attorney if a party fails to obey an order to provide or permit discovery. Fed. R. Civ. P. 37(b)(2). Specifically, Rule 37(b)(2) allows the Court to consider numerous sanctions for failing to comply with discovery orders where there is “(1) an order compelling discovery; (2) a willful violation of that order; and (3) prejudice to the other party.” Everyday Learning Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001) (emphasis added) (quoting Keefer v. Provident Life & Accident Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000)).

Having found that plaintiffs willfully violated certain portions of this Court’s January 25, 2007 Order, this Court also finds that plaintiffs’ failure to abide by this Court’s Order resulted in prejudice to Domino’s in the form of having to expend money and resources to ensure plaintiffs’ compliance with a discovery order. Further, plaintiffs’ failure to follow this Court’s discovery Order has impeded Domino’s ability to defend its interests. As such, plaintiffs and their counsel shall pay the reasonable costs and fees incurred by Domino’s in bringing this portion of Domino’s Rule 37(b) motion for sanctions. In order to determine this amount, Domino’s shall provide to this Court and plaintiffs an affidavit on or before January 8, 2008, setting forth all of hours expended, and the attorney’s fees and costs incurred, in connection with those portions of their motion for sanctions that this Court has determined that plaintiffs willfully violated this Court’s January 25, 2007 Order, i.e. McCormick’s failure to provide verified responses to Interrogatory No. 1; plaintiffs’ failure to provide adequate answers to Interrogatories Nos. 12, 14 and 16; plaintiffs’ failure to provide responsive documents related to Requests Nos. 26 and 31; and plaintiffs’ failure to provide a complete email production.

While Domino’s cited to Rule 37(a)(4)(B) of the Federal Rules of Civil Procedure as the basis of their motion, the relief sought is now governed by Rule 37(a)(5)(B) and (C) which became effective as of December 1, 2007. The substance of the Rules before and after December 1, 2007, did not change. Rather the changes were intended to be stylistic only. See 2007 Amendment Advisory Committee Notes.

On May 31, 2007, in response to the parties’ cross-motions for summary judgment, District Judge Richard H. Kyle issued an Amended Memorandum and Order that effectively terminated this case with the exception of the pending sanctions motions. See Docket No. 273.

This Court will not award Domino’s any attorney’s fees or costs for bringing its motion for sanctions. (see Wittrock Aff., ¶ 11). Rule 37(a)(5)(B) and (C) permit the award of reasonable expenses incurred in opposing the underlying motions, not for bringing the motion for sanctions.

Plaintiff Jennifer Huber did not participate in the document review. See Affidavit of Jennifer Huber in Support of Plaintiffs’ Response to Defendant’s Motion for Sanctions, ¶ 3.

Presumably Bores was aware of Domino’s suspicion that McCormick had copied email documents from the Gray Plant database onto a CD, given Korzenowski’s email to Wittrock at 3:36 p.m. stating that he had confirmed with everyone that no one in plaintiffs’ group had downloaded or attempted to download any documents off of the Gray Plant computers. See Wittrock Rule 37(b) Aff., ¶ 4, Ex. 1 (March 8, 2007 3:36 p.m. email from Korzenowski to Wittrock).

While Domino’s asserted in its memorandum of law that plaintiffs failed to comply with this Court’s Order as to a number of discovery responses (Def.’s Rule 37(b) Mem. at pp. 7-8), it did not provide the Court with any specific argument or background as to why it believed plaintiffs’ responses to the specific interrogatories and document requests were inadequate and this Court will not speculate on its behalf. As such, this Court has relied on the Domino’s March 2, 2007 letter where it details the deficiencies in plaintiffs’ February 15, 2007 discovery responses.