*1 Before the Court is Defendant Carriage Services, Inc.’s (“CSI”) motion seeking sanctions under Federal Rule of Civil Procedure 37(b)(2), either in the form of dismissal or, alternatively, through evidentiary sanctions and for attorneys’ fees (“Motion”). (Mot., Dkt. No. 129, re-noticed at Dkt. No. 136.) A hearing was held on October 1, 2019, at 9:00 a.m. For the reasons set forth below, the Court (1) DENIES the request for dismissal; (2) DENIES in part and GRANTS in part the request for issue and evidentiary sanctions; and (3) DENIES the request for attorneys’ fees without prejudice.

I. FACTUAL BACKGROUND

Plaintiffs William Uschold, Jose Almendarez, Tiana Naples, and Ton Saechao (“Plaintiffs”) are former employees of CSI in event planning and/or sales. (Sec. Am. Compl. (“SAC”) ¶¶ 6-9, Dkt. No. 38.) In the course of performing their jobs, Plaintiffs allege that they used their personal vehicles for work-related travel, incurring costs for gas, vehicle registration, maintenance, and toll fare. (Id. ¶ 13.) Plaintiffs further allege that they were required to use their personal cell phones for work-related calls. (Id. ¶ 15.) Plaintiffs state that CSI provided eight company phones in their office, but that was not enough company phones for all employees to use and CSI had a policy of not reimbursing employees for the use of personal cell phones or vehicles. (Id. ¶¶ 14, 16.) Plaintiffs were also expected to attend work meetings or events outside of regular business hours, which required them to use their home office space, printing, and other personal resources without compensation. (Id. ¶¶ 17-18.)

II. PROCEDURAL HISTORY

A. The Parties’ Dispute

Plaintiffs filed their complaint in state court on July 3, 2017, asserting that CSI: (1) violated Cal. Lab Sec. 2802 for failure to reimburse for necessary work expenditures and losses, and (2) violated California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (Compl., Dkt. No. 1-1, Ex. A.) CSI removed the case to federal court on August 4, 2017. (Id.) CSI filed two motions to dismiss the complaint. (Dkt. Nos. 16, 28.) After receiving the first motion to dismiss, Plaintiffs agreed to amend their complaint. (Dkt. No. 15.) The second motion to dismiss was granted by the Court with leave to amend. (Dkt. No. 33.) Plaintiffs filed a second amended complaint on April 4, 2018, which CSI answered on April 11, 2018. (Dkt. Nos. 37-38.) Plaintiffs filed a motion for summary judgment on February 28, 2019. (Dkt. No. 76.) Plaintiffs also filed a motion for class certification on March 1, 2019. (Dkt. No. 81.)

B. Initial Discovery Disputes and the January 17, 2019 Order

CSI served initial requests for production (“RFPs”) and interrogatories on each named Plaintiff in May 2018, with Plaintiffs’ responses due on June 25, 2018. CSI twice agreed to extensions for responses, which Plaintiffs still failed to meet. Plaintiffs attempted to excuse their lengthy delays to counsel’s “internal staffing changes, trial deadlines, and discovery obligations in other matters.” (Joint Case Management Statement at 4, Dkt. No. 44.) Plaintiffs eventually served responses and objections to Defendant’s RFPs and interrogatories on August 17, 2018. CSI complained that the responses were incomplete and sought an order requiring Plaintiffs to serve complete responses, as well as an order that Plaintiffs waive objections. (Dkt. No. 51 at 2.) In their December 28, 2018 letter, Plaintiffs acknowledged that “they did not serve timely written discovery responses and waived objections.” (Dkt. No. 56 at 1.)

*2 On January 17, 2019, this Court ordered further responses to Defendant’s discovery requests. (January 17, 2019 Order, Dkt. No. 62.) In particular, with respect to RFP Nos. 1, 8, and 17, the Court ordered Plaintiffs to produce responsive documents, or alternatively, provide a written statement under oath explaining whether they had any responsive documents after their duty to preserve arose that are no longer in existence or why they could not obtain requested records. (Id.) The Court also ordered further depositions because (1) Plaintiffs’ conduct fell below expectations for producing documents before depositions, and (2) Plaintiffs’ privacy objections were overruled. (Id.)

C. March 15, 2019, March 21, 2019, and April 11, 2019 Orders

The January 17, 2019 Order did not resolve the discovery disputes, and CSI filed a motion for sanctions. (Dkt. No. 65.) On March 15, 2019, the Court issued an order sanctioning Na’il Benjamin of the Benjamin Law Group, P.C., $4,060.50 for the motion to compel and associated meet-and-confer efforts, $5,212.45 for Mr. Benjamin’s deposition conduct, and $6,741.75 in attorneys’ fees for the sanctions motion, for a total of $16,014.70, to be paid to CSI within 28 days of this order. (March 15 Order, Dkt. No. 97.) The Court found that Plaintiffs’ counsel’s excuse of office staffing changes to have caused their much belated inadequate written discovery responses to be unpersuasive, particularly given the lengthy delays beyond the months of stipulated extensions. (Id. at 10-12.) Judge White denied Plaintiffs’ motion for relief from sanctions. (Dkt. No. 123.)

On March 19, 2019, at the Plaintiffs’ request, this Court held a second hearing to address the ongoing discovery dispute. (Dkt. No. 102.) On March 21, 2019, the Court ordered Plaintiffs to review communications with counsel to determine whether any of those communications must be produced in response to RFP No. 1 (seeking documents relating to Plaintiffs’ employment and allegations). (March 19 Order at 1, Dkt. No. 104.) Regarding RFP Nos. 8 and 17, the Court found Plaintiffs’ court-ordered affidavits “far too cursory” and ordered Plaintiffs to revise affidavits and address in detail the steps Plaintiffs took to obtain cell phone and tax return records. (Id. at 2.) This Court ordered Plaintiffs to complete these tasks by March 29, 2019. (Id.)

Despite the order, the Court was once again asked to address this ongoing dispute. (See April 11, 2019 Order, Dkt. No. 109.) While Plaintiffs Uschold and Almendarez timely served revised affidavits on March 29, 2019, those revised affidavits merely recycled their previous, deficient affidavits with only minor revisions. (April 11, 2019 Order at 2-3.) Plaintiff Uschold’s affidavits stated that he provided to counsel all tax returns that exist and subpoenaed his carrier for his cellphone records. (See, e.g., March 29, 2019 Uschold Aff. ¶¶ 2-4, Dkt No. 129-35.) His revised affidavit did not, however, explain what other attempts he made to obtain his cellphone records or discuss the one-page cellphone record he produced. (See id.) Although Plaintiff Uschold previously gave deposition testimony that he was in the process of preparing his 2017 tax return, after initially testifying that he had already filed it, he did not address the status of the filing in his revised affidavit. (See Uschold Dep. Tr. 325:16-21.)

Plaintiff Almendarez’s affidavits stated that he contacted Turbo Tax, the program he used to complete his tax returns, but Turbo Tax declined to provide copies of his tax returns because he could no longer access the email account that he used to complete them. (See, e.g., March 29, 2019 Almendarez Aff. ¶ 3, Dkt. No. 129-36.) He stated that he has requested his tax returns from the IRS. (Id.) He also stated that he subpoenaed his cellphone records from his carrier but, he did not explain what other steps he took to obtain those records. (Id. ¶ 4.)

*3 As to Plaintiffs Naples and Saechao, Plaintiffs filed a motion for extensions because Plaintiff Naples was delayed in preparing her affidavit due to hospitalization and Plaintiff Saechao needed more time to provide additional information. (Pls.’ Mot. to Enlarge Time, Dkt. No. 107.) CSI opposed the motion and raised concerns regarding the effect of these extensions on the briefing schedule for class certification and summary judgment motions. (Def.’s Opp., Dkt. No. 108.)

The Court once again ordered Plaintiffs Uschold and Almendarez to serve revised affidavits, this time by April 18, 2019. (April 11, 2019 Order, Dkt. No. 107.) The Court granted the extensions for Plaintiffs Naples and Saechao but declined to alter Judge White’s briefing schedules for the motions. (Id.) Plaintiffs were warned that their failure to serve the revised affidavits that comply with the Court’s March 21 Order may have serious consequences. (Id.)

Still unsatisfied with Plaintiffs’ responses and conduct, CSI filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2).

D. The Present Dispute

On July 8, 2019, CSI filed this Motion requesting that Plaintiffs’ action be dismissed with prejudice. (Mot. 9-10.) In the alternative to dismissal, CSI seeks issue and evidentiary sanctions. In particular, CSI asks that (1) Plaintiffs should be precluded from introducing documentary evidence encompassed by RFP No. 1 “relating to [each plaintiff’s] employment with Carriage Services;” (2) Plaintiff Uschold be precluded from presenting evidence of CSI expenses in the year 2017; and (3) Plaintiff Uschold be precluded from introducing evidence regarding cell phone usage. (Mot. 14.) CSI also requests fees for bringing this motion. (Id.) According to CSI, Plaintiffs and their attorneys have once again failed to comply with the April 11 Order, which essentially ordered them to comply with the Court’s March 21 Order. (Mot. 9-10.) CSI argues that Plaintiffs’ submitted affidavits failed to provide the explanations ordered by this Court. (Id.) Thus, CSI argues that dismissal or evidentiary sanctions are appropriate. (Mot. 19-21.)

III. LEGAL STANDARD

Rule 37(b)(2) provides for dismissal in whole or in part as a sanction for failure to comply with a court’s order to provide or permit discovery. Fed. R. Civ. Proc. 37(b)(2)(A)(v). The Ninth Circuit has set forth a five-part test to determine whether a case-dispositive sanction under Rule 37(b)(2) is just:

Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citations omitted).

Rule 37(b)(2) also authorizes sanctions “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. Proc. 37(b)(2)(A)(ii.); see also Von Brimer v. Whirlpool Corp., 536 F.2d 838, 843 (9th Cir.1976) (district court properly excluded evidence pursuant to Fed.R.Civ.P. 37(b)(2) for failure to comply with pre-trial discovery orders). There are two limitations to the application of a Rule 37(b)(2) sanction. First, “any sanction must be ‘just’; second, the sanction must be specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.” Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee (Compagnie des Bauxites), 456 U.S. 694, 707, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (holding that a district court did not abuse its discretion in finding personal jurisdiction as a sanction, where the plaintiff repeatedly attempted to use discovery to establish jurisdictional facts, only to be obstructed by defendant’s refusal to produce the requested information).

*4 Federal courts also have inherent power to impose sanctions against both attorneys and parties for “bad faith” conduct in litigation or for “willful disobedience” of a court order. Chambers v. NASCO, Inc., 501 US 32, 43-45 (1991); Roadway Express, Inc. v. Piper, 447 US 752, 764-766 (1980). The Ninth Circuit has noted “that dismissal sanctions under Rule 37 and a court’s inherent powers are similar.” Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 n.4 (9th Cir. 1990). The Ninth Circuit has also “recognized as part of a district court’s inherent powers the ‘broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.’ ” Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)). Due process limits the imposition of the severe sanctions of dismissal or default to “extreme circumstances” in which “the deception relates to the matters in controversy” and prevents their imposition “merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case.” Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1338 (9th Cir. 1985) (citing Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 591 (9th Cir.1983)). A court should narrowly tailor any sanctions award to the particular circumstances of the case before it. See United Medical Supply Co. v. United States, 77 Fed.Cl. 257, 270 (Fed. Cl. 2007).

IV. DISCUSSION

A. Terminating Sanctions

CSI requests that the Court dismiss the case due to Plaintiffs’ failure to follow Court orders, failure to produce requested discovery documents, and failure to take diligent steps in resolving this dispute. (Mot. 11-13.) CSI argues that the first two factors—the public’s interest and the Court’s need to manage its dockets—weigh in favor of dismissal based on “Plaintiffs’ lengthy pattern of dilatory conduct.” (Mot. 12.) CSI primarily points to the long history of discovery disputes and court orders issued against Plaintiffs. (Id.)

Plaintiffs insist that after the initial delays caused by staff transitions, they have diligently prosecuted this case as shown through a class certification motion and motion for summary judgment. (Opp. 9.) Plaintiffs maintain that any delays have been reasonable, and Plaintiffs have engaged in extensive meet and confers. (Id.) However, the Court has already rejected these types of arguments in the past. (See, e.g., March 15, 2019 Order at 10-11, Dkt. No. 97 (“Plainly, these explanations do not amount to substantial justification for their lengthy failure to produce the requested information.”).) CSI alleges that the “extensive meet and confer” was the result of Plaintiffs’ repeated defective responses and disregard for the Court’s orders. (Reply 8.) Even long after Plaintiffs’ counsel’s staff transitions, Plaintiffs have failed to meet Court-ordered deadlines. (Chang Decl. ¶ 40, Dkt. No. 129-1.) Plaintiffs even violated this Court’s order to pay monetary sanctions within 28 days of the order (Dkt No. 97) and unilaterally—without seeking the Court’s leave or a stay pending appeal—withheld payment until at least July 8, 2019, which was nearly 4 months after this Court’s order and nearly 2 months after the District Court’s May 13, 2019 order denying relief. (See Opp. 3.) Given Plaintiffs’ repeated delays, disregard of deadlines and extensions granted by CSI and the Court, Plaintiffs’ assertion that they are expeditiously trying to resolve this litigation is not well taken. Accordingly, the first and second factors favor dismissal.

CSI argues that the third factor—the risk of prejudice to the party seeking sanctions—also weighs in favor of dismissal. CSI argues that it is still missing communications between Plaintiffs and Plaintiffs’ counsel, and documents “relating to [Plaintiffs’] employment with Carriage Services and/or the allegations” in Plaintiffs’ complaint. (Mot. 12, Reply 7-8.) CSI argues that “[w]ithout access to the documents that Plaintiffs admit possessing concerning their employment at CSI and their communications concerning their allegations, CSI is unable to respond to the substance of these claims.” (Reply 7.) Plaintiffs argue that they found no responsive documents in their possession, custody, or control. (Opp. 8.) In particular, Plaintiffs argue that they withheld the communications referenced during prior hearings because “the communications were primarily internal communications between counsel about drafting discovery responses and [sic] there were a few limited emails from Plaintiffs that reflected their responses to discovery requests, [but] those emails are not responsive to Defendants’ [sic] discovery request.” (Benjamin Aff. ¶ 5, Dkt. No. 129-44.) Given the present record, Plaintiffs’ inconsistent and contradictory testimony indicate that at least some documents are missing and unaccounted for. Compare Uschold Dep. Tr. 325:1–8, Mot. at 9, Ex 29 (ambiguous and confusing testimony regarding whether he filed his taxes for 2017), with Sworn Affidavit, Mot. at 9, Ex. 41 (swearing in an affidavit that he did not file); see Naples Dep. Tr. 99:12–100:6, Mot. at 2, Ex. 19 (Plaintiff testified to the existence of text messages, but then later in Court-ordered sworn affidavit makes no reference to those text messages, where they are, nor why they have not been produced); see also Plaintiffs’ initial disclosures, Mot. 3, Ex. 17 (Plaintiffs disclose that they “may use” cell phone records to support their claims); Plaintiffs’ Joint Case Management Statement, Dkt. No. 44 at 2-3 (Plaintiffs stating they were required to use their cell phones to perform their jobs without disclosing that Plaintiff Uschold is unable to obtain a record showing such usage).)

*5 Accordingly, this factor also favors dismissal.

The fourth and fifth factors—the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions—disfavor dismissal. Plaintiffs argue that the claims should be decided on their merits, particularly given that liability will be proven by documents produced by CSI, not Plaintiffs. (Opp. 6.) CSI argues that dismissal is appropriate because the Court has considered, imposed, and warned Plaintiffs of the possibility of sanctions and more serious consequences. (Mot. 12.)

The Court is not convinced that this situation merits dismissal. There are less drastic sanctions that are likely to be effective to cure the consequences of Plaintiffs’ discovery failures. General Atomic Co. v. Exxon Nuclear Co., 90 F.R.D. 290, 307 (S.D.Cal.1981). Accordingly, the Court declines to impose this “most severe penalty,” which is authorized only in “extreme circumstances.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603, 603 n.5 (9th Cir.1988) (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1338 (9th Cir.1985)). While this penalty might be warranted, it is a last resort. General Atomic Co. v. Exxon Nuclear Co., 90 F.R.D. 290, 307 (S.D.Cal.1981) (finding dismissal and default judgment are “the sanctions of last resort [that] run counter to the strong public policy of deciding cases on their merits and affording litigants their fair day in court”).

Accordingly, the Court declines to grant terminating sanctions.

B. Issue and Evidentiary Sanctions

In the alternative to dismissal, CSI seeks issue and evidentiary sanctions. In particular, CSI asks that: (1) Plaintiffs be precluded from introducing any documentary evidence relating to each plaintiff’s employment with Carriage Services; (2) Plaintiff Uschold be precluded from presenting evidence of CSI expenses in the year 2017; and (3) Plaintiff Uschold be precluded from introducing evidence regarding cell phone usage. (Mot. 14.) Each request is addressed below.

1. Evidence Relating to Employment

CSI’s request to preclude Plaintiffs from “introducing any documentary evidence relating to each plaintiff’s employment with Carriage Services” is overbroad. On the one hand, as discussed above, Plaintiffs have repeatedly engaged in unjustified delays in meeting their discovery obligations and have repeatedly violated this Court’s discovery orders. On the other hand, there is some validity to Plaintiffs’ argument that most of the relevant responsive documents are in the possession, custody, or control of CSI, as the employer. (See, e.g., Opp. 9-10.) For example, RFP No. 1, seeks “[a]ll documents relating to your employment with Carriage Services and/or the allegations of your Second Amended Complaint, including but not limited to any alleged employment agreement and other documents which reflect such terms as expenses, reimbursements, work conditions, policies, and other terms of employment.” (Def.’s RFPs at 3, Dkt. No. 129-2.) While CSI may have most of these documents, Plaintiffs have not produced any. (October 1 Hr’g 9:23.)

*6 The Court finds that a tailored evidentiary sanction is warranted. Accordingly, Plaintiffs are precluded from introducing any documentary evidence, except that produced by CSI, relating to each plaintiff’s employment agreement with CSI or other documents reflecting terms of employment, such as expenses, reimbursements, work conditions and policies that Plaintiffs have not yet produced.

2. Evidence Relating to Plaintiff Uschold’s CSI Expenses for 2017

CSI’s request to preclude Plaintiff Uschold from presenting any evidence of CSI expenses in the year 2017 is denied. CSI argues that Plaintiff Uschold has failed to explain why no tax return was filed for 2017, whether he requested an extension, or why documents relating to an extension were not produced. (Mot. 9, Dkt. No. 129.) CSI points out that Uschold’s tax returns for previous years when he worked for CSI “did not claim a single business-related expense which he now claims exist in this lawsuit.” (Mot. 9; October 1, 2019 Hr’g 9:23 (Plaintiff takes deductions for other businesses, but none connected to CSI).) Although Mr. Uschold initially said he had filed a tax return for 2017, he later stated he had not. (Uschold Dep. Tr. 325:16-18, Dkt. No 129-26 (“Q. So you’ve started your 2017 taxes, but haven’t filed them yet; is that correct? A. Yes.”).) In his most recent affidavit, he stated that he did not file a tax return for the 2017 tax year. (See Uschold October 2 Affidavit, Dkt. No. 140 at 2.) Plaintiff Uschold failed in his most recent affidavit to provide an explanation as ordered by the Court regarding his 2017 taxes, such as whether he filed for an extension or intends to file. (Hr’g 9:22; see also Uschold Dep. Tr. 327:23-25 (“Q. Okay. Did you file for an extension for the tax year 2017? A. I don’t remember.”)). This pattern of seeming obfuscation is disturbing. Nonetheless, it is unlikely that any 2017 tax return would be the exclusive source of information about his CSI expenses.

Moreover, at this juncture, it appears that the ordinary process of the Defendant introducing evidence inconsistent with a Plaintiff’s claim, i.e., cross-examination and impeachment should remedy any prejudice from Uschold’s delay in filing his 2017 tax return. If Uschold later attempts to introduce evidence of a filed 2017 tax return that claims CSI-related expenses for the first time, CSI has evidence from prior years’ tax returns to demonstrate the inconsistency and apparent manipulation of any late-filed 2017 return.

Accordingly, the Court denies Defendant’s request to preclude Uschold from presenting evidence of CSI expenses in the year 2017 without prejudice.

3. Evidence of Plaintiff Uschold’s Cellphone Usage

Finally, CSI’s request to preclude Plaintiff Uschold from introducing evidence regarding cell phone usage is denied. CSI argues that Plaintiff Uschold has (1) failed to produce cell phone billing records provided by MetroPCS, and (2) failed to explain the origin of the single-page document produced in lieu of his cell phone records. CSI maintains that these records are important because Plaintiffs are likely exaggerating the number of calls placed while employed by CSI. (Mot. 14-15; Reply 9-10.)

Plaintiff Uschold explains in his latest affidavit that, in an effort to obtain a copy of his cell phone records, he visited the MetroPCS store on December 2018, he subpoenaed MetroPCS on or about January 28, 2019 and MetroPCS produced limited billing records but not call logs in or around May 2019. (April 18, 2019 Uschold Aff. ¶ 3.) He further explains that MetroPCS store employees stated that such logs are not maintained for prepaid phones. (Id.) He also states that MetroPCS produced only billing records rather than call logs. (Id.) However, CSI argues that “[t]hese ‘cell phone billing records’ that Mr. Uschold appears to describe ... appear not to have been produced.” (Mot. 10.) Contrary to CSI’s assertion, the document does list payment amounts, dates, and confirmation numbers for the period April 10, 2015 through January 10, 2019 (Dkt. No. 129-39.). CSI questions the authenticity of the document because it does not identify a source on its face. (Mot. 9.)

*7 Regardless of the authenticity of the single-sheet billing record, this document does not contain call logs relevant to the case or which CSI seeks. Notably missing from Plaintiff Uschold’s affidavits is whether he made any effort to retrieve or obtain his call logs when his duty to preserve arose on or before July 6, 2017, when Plaintiffs filed the complaint or after they stated in the initial disclosures that Plaintiffs “may use [cell phone records] to support their claims.” (Mot. 3, Ex. 17.) Plaintiff Uschold does not make any statements regarding any attempts to access his call logs through an online account or his mobile device. However, CSI has not established that he could have successfully done so at the time.

Plaintiff Uschold instead argues that CSI could have, and should have, subpoenaed those records (Opp. 11), despite the Court having already resolved that issue by ordering Plaintiffs to request the information from their carriers. (January 17, 2019 Order at 7.) On October 1, 2019, the Court, nonetheless, gave Plaintiff Uschold another opportunity to demonstrate compliance with the Court’s January 17 order by ordering him to produce a copy of the subpoena he sent to MetroPCS. He did so on October 2, 2019. (Dkt. No. 139.)

In addition, CSI further argues that Plaintiffs intentionally delayed their subpoenas to ensure that the 18-month retention period required by federal law expired. (Reply at 1 (citing 47 C.F.R. § 42.6).) The regulation under 47 C.F.R. § 42.6 requires that “[e]ach carrier that offers or bills toll telephone service shall retain for a period of 18 months such records as are necessary to provide the following billing information about telephone toll calls: the name, address, and telephone number of the caller, telephone number called, date, time and length of the call.” The Parties did not brief the Court on whether the 18-month rule applies to MetroPCS, which offers prepaid cellular services, but the Court’s own research indicates that it likely does not. See, e.g., Denver Post Corp. v. Ritter, 230 P.3d 1238, 1242 (Colo. App. 2009), aff’d, 255 P.3d 1083 (Colo. 2011) (comparing tolled services to flat rate services); Floyd v. Sallie Mae, Inc., 2013 U.S. Dist. LEXIS 190909, *9 (S.D. Fla. Jun. 26, 2013) (“I recognize that call logs from MetroPCS, Plaintiff’s cellular provider at the relevant time, are not available because they were not requested until after MetroPCS’ 6-month discard policy.”).

Regardless of the regulation, Plaintiffs had a duty to preserve relevant evidence and that duty arose on or before July 6, 2017. Plaintiffs’ counsel signed the complaint on June 26, 2017. (Dkt. No. 1, Ex. A at 6.) The complaint was filed in state court on July 3, 2017. (Id. at 1.) It was removed to federal court on July 6, 2017. (Id.) Mr. Uschold’s employment at CSI ended in May 2017 (October 1, 2019 Hr’g 9:15), and Defendant did not submit RFPs to Plaintiffs until May 3, 2018. (Mot. Ex 1.) In the initial disclosures, Plaintiffs stated that they “may use [cell phone records] to support their claims.” (Mot. 3, Ex. 17.) In the August 3, 2018 Joint Case Management Statement, Plaintiffs alleged that cell phone expenses were one of the necessary expenses incurred that were not reimbursed by CSI. (Dkt. No. 44 at 2-3.) Further, the Parties represented to the Court that they were “complying in good faith with their obligations to preserve potentially relevant evidence.” (Dkt. No. 44 at 4.) Plaintiffs did not subpoena the records until January 30, 2019, seven months after they were served with the RFP. However, it is not clear that MetroPCS would have had those records at the time the duty to preserve arose. The question of whether Mr. Uschold could have obtained them on or before July 6, 2017, remains unanswered. CSI may pursue whether Plaintiffs violated their duty to preserve, but the Court cannot decide this issue since it has not been briefed on the record storage policy of MetroPCS. Thus, CSI’s request is denied without prejudice.

C. Attorneys’ Fees

*8 Where a motion is successfully brought under Rule 37(b)(2) “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. Proc. 37(b)(2)(C). Because of the uncertainty as to some of the issues as set forth above, the motion for fees is premature. Accordingly, the Court denies without prejudice the request for attorneys’ fees.

V. CONCLUSION

For the reasons stated above, CSI’s request for dismissal is DENIED and the request for evidentiary sanctions is GRANTED IN PART, as set forth above, and the request for attorneys’ fees is DENIED without prejudice.

IT IS SO ORDERED.