*1 This matter comes before the court on a number of pending discovery motions as follows:

(1) Plaintiffs’ Motion for Rule 37(b)(2) Sanctions [#188, filed November 13, 2015];

(2) Defendents’ [sic] Motion to Compel [#199, filed November 16, 2015]; and

(3) Plaintiffs’ Motion for Discovery Sanctions and to Reopen Limited Expert Disclosures [#202, filed December 4, 2015].

These Motions were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Order Referring Case dated January 29, 2014 [#4], the Order of Reassignment dated February 9, 2015 [#107], and the memoranda dated November 16, 2015, November 17, 2015, and December 7, 2014 [#197, #200, #204]. For the reasons set forth in this Order, Plaintiffs’ Motion for Rule 37(b)(2) Sanctions is GRANTED IN PART and DENIED IN PART, Defendants’ Motion to Compel is GRANTED IN PART and DENIED IN PART; and Plaintiffs’ Motion for Discovery Sanctions and to Reopen Limited Expert Disclosures is DENIED.

BACKGROUND

The background of this case has been recounted in various court orders, as well as the recently issued Recommendation, and thus this court will limit its focus to the history of the discovery disputes at issue. Plaintiffs, who are current and former martial arts instructors known as Chief Instructors, filed their original Complaint on January 28, 2014 on behalf of themselves and other allegedly similarly situated individuals seeking back pay and other damages allegedly owed under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. [#1]. On February 5, 2014, Plaintiffs amended their Complaint to raise six claims for relief: (1) a declaration that the plaintiffs are “classified employees under state and federal law”; (2) violation of the FLSA by failing to pay wages at least equal to the minimum wage plus overtime compensation; (3) fraud in classifying the plaintiffs as independent contractors rather than employees; (4) negligent misrepresentation based on the independent contractor classification; (5) civil conspiracy to improperly classify the plaintiffs as independent contractors; and (6) to pierce the corporate veil based on alter ego and undercapitalization. [#22].

The Parties have been embroiled in successive discovery disputes in this case dating back almost as far as the entry of the Scheduling Order by the Honorable Boyd N. Boland, see [#37]. Plaintiffs filed their “First Motion to Compel Discovery,” taking issue with Defendants’ responses to Interrogatories 1-4 and Requests for Production 1-10, on July 29, 2014. [#43]. Judge Boland subsequently granted Plaintiffs’ Motion to Compel and required (1) “full answers to Interrogatories 3 and 4,” and (2) “production of all documents responsive to Requests for Production 1, 2, 3, 4, 5, 6, 7, 8, and 9,” on or before September 5, 2014; and he awarded Plaintiffs their reasonable expenses incurred in submitting the Motion to Compel. [#56]. On August 20, 2014, Plaintiffs filed a Motion for Temporary Restraining Order and Order for Spoliation Sanctions, seeking entry of default or, alternatively, an adverse jury instruction on the basis that certain Z-Ultimate Profit and Loss Statements were altered prior to being produced during the discovery process. [#52]. Ultimately, after an evidentiary hearing on the matter, Judge Boland found that the “evidence clearly establishes” the Profit and Loss Statements were altered in bad faith, but that the resulting prejudice to Plaintiffs was slight because either the information was available elsewhere or the probative value of the evidence was not great. [#85]. The court therefore sanctioned Defendants in the form of payment for Plaintiffs’ reasonable expenses incurred in connection with the despoiled discovery. [Id.].

*2 Next, in September 2014, another round of discovery motions ensued from Defendants’ failure to comply with Judge Boland’s original order compelling further discovery responses. Plaintiffs filed an omnibus Renewed Motion to Compel Discovery, Second Motion to Compel Discovery, and Motion for Sanctions and Contempt of Court (“First Omnibus Discovery Motion”). [#68]. After a hearing on the Motion, this court granted in part and denied in part the First Omnibus Discovery Motion on April 9, 2016, providing specific direction as to which discovery responses Defendants were required to supplement. See [#117]. To the extent Defendants took the position that no additional responsive documents were within their possession, custody or control, the court ordered Defendants to certify such response no later than April 24, 2015.[1] See e.g., [id. at 20].

On April 3, 2015, Plaintiffs filed another Motion for Discovery Sanctions based on Defendants’ failure to produce documents “evincing any agreements, contracts, deals or arrangements between any Chief Instructor and any Defendant.” [#114]. Plaintiffs argued that Defendants were selectively withholding responsive documents that were relevant to Plaintiffs’ claims of civil conspiracy, misclassification of the Chief Instructors, and fraud, and asked the court to impose “severe sanctions.” [Id. at 12]. Later that month, Plaintiffs filed a Third Motion to Compel Discovery [#131], which focused on Defendants’ failure to adequately respond to interrogatories regarding the advice they had received regarding employee classification and the compensation structure for Chief Instructors, and their failure to produce communications between Defendants and any person providing financial, bookkeeping, accounting or tax advice or services. The Parties also disagreed as to whether they had satisfied their meet and confer obligations prior to the filing of the discovery motions. After full briefing and argument on both of these motions, this court denied the Motion for Sanctions, and granted in part and denied in part Plaintiffs’ Third Motion to Compel. See [#150]. In doing so, this court declined to deny the Motion for Sanctions based solely on a failure to adequately meet and confer pursuant to Local Rule 7.1(a), but instructed the Parties to meet and confer about the “specifics of a forthcoming motion, and not simply rely upon months-old prior conferences regarding discovery deficiencies to satisfy [their] obligation [under D.C.COLO.LCivR 7.1(a) and Rule 37 of the Federal Rules of Civil Procedure].” [Id. at 5]. In addition, this court advised the Parties that while written interrogatories and requests for production are important, they are not the only vehicles for discovery available. [Id. at 17]. This court then granted the Third Motion to Compel in part, instructing Defendants to supplement discovery responses consistent with the Order no later than June 10, 2015. [Id. at 18].

Consistent with Rule 1 of the Federal Rules of Civil Procedure, I subsequently held a series of discovery conferences in an attempt to facilitate the timely resolution of discovery disputes and to avoid unnecessary discovery motion practice. See e.g., [#171]. On October 6, 2015, this court ordered that all discovery motions be filed no later than November 16, 2015. [Id.]. Consistent with that Order, Plaintiffs filed the instant Motion for Rule 37(b)(2) Sanctions on November 13, 2015 and Defendants filed the instant Motion to Compel. [#188, #199]. Without leave of court, Plaintiffs filed the Motion for Discovery Sanctions and to Reopen Limited Expert Disclosures on December 4, 2015. See [#202]. I now turn to each of these Motions as follows.

ANALYSIS

I. Plaintiffs’ Rule 37(b)(2) Motion

*3 Plaintiffs essentially seek to highlight Defendants’ pattern of discovery misconduct to justify their request for sanctions. See [#188 at 2-4]. Specifically, Plaintiffs contend that Defendants have failed to produce the following: profit and loss statements as they were maintained and as sought by Request for Production No. 2; pricing documents as sought by Request for Production No. 5; instructors’ independent contractor and non-compete agreements as sought by Request for Production No. 8; documents reflecting payments to the Chief Instructions as sought by Request for Production No. 9; financial documents relevant to enterprise liability and claims that Plaintiffs should be allowed to pierce the corporate veil based on theories of alter ego and undercapitalization as sought by Request for Production No. 14; communications between any Defendant and any accountant, bookkeeper or other financial adviser, including failure to identify accountant Suzanne Bradeen as sought by Request for Production No. 15; copies of all checks issued to and deposited by any Chief Instructors from 2010 to the present, even if compliance required Defendants to seek those checks from their banks, as sought by Request for Production No. 16; communications reflecting discussions of employee classification, including correspondence with the Colorado Department of Labor as sought by Request for Production No. 19; documents associated with corporate events as sought by Request for Production No. 20; documents associated with deposits, withdrawals, or transfers of investor funds as sought by Request for Production No. 25; and documents associated with any state or federal department of labor investigation as sought by Request for Production No. 30. [Id. at 4-21].

Plaintiffs further assert that Defendants have failed to adequately respond to their Interrogatories including: the identification of all bookkeepers and accountants as requested by Interrogatory No. 1; communications between Defendants and any employee or Opt-in Plaintiffs as requested by Interrogatory Nos. 3, 26, and 27; any advice from non-attorneys regarding wage and hour law, classification of workers, and the Department of Labor as requested by Interrogatory No. 9; identification of all legal and administrative actions, in particular evidence regarding investigations and determinations of the Colorado Department of Labor regarding Chief Instructors’ employee classifications as requested by Interrogatory No. 13; identification of all Z-Ultimate Board of Masters as requested by Interrogatory No. 14; and identification of studio investors and where investments were maintained in response to Interrogatory Nos. 32 and 33. [Id. at 21-28].

Plaintiffs argue that Defendants should be sanctioned up to and including default judgment for their discovery violations, and that “Defendants’ broad campaign to obstruct discovery hinders Plaintiffs’ ability to effectively prosecute this case.” [Id. at 28-29]. Specifically, Plaintiffs ask for an order of full or partial summary judgment on their alter ego, enterprise liability, civil conspiracy, fraud, and negligent misrepresentation claims, or any element thereof; an order entering findings of fact or inferences that Defendants knowingly misclassified Chief Instructors as independent contractors in violation of the FLSA; and sanctions plus reasonable attorneys’ fees incurred in investigating, researching, and filing this motion. [Id. at 30].

In response, Defendants argue that they did not deliberately withhold responsive documents; they produced all responsive documents that “they are aware of” and that have been “located”; and the court cannot compel them to produce or create what they do not possess. [#203]. Defendants “concede,” with respect to certain discovery requests, “that some communications may have been lost.” [Id. at 7]. However, they argue that they have provided complete answers to interrogatories, and that “Plaintiffs are utilizing the discovery process for an ulterior motive to seek sensitive financial information on behalf of united Studios of Self Defense, Inc. (“USSD”).” [Id. at 11-12]. Defendants conclude by arguing that they “did everything in their power to comply with this Court’s discovery order and to provide full and complete responses to plaintiffs’ discovery. Plaintiffs have not argued any prejudice or damage caused [sic] the claimed discovery lapses (if any).” [Id. at 14].

In reply, Plaintiffs argue that Defendants offer no facts to contradict their documentary evidence, and that attorney argument is insufficient to address the deficiencies identified in Plaintiffs’ Rule 37(b)(2) Motion. See [#206].

A. Applicable Legal Framework

1. Documents

Plaintiffs argue that sanctions are warranted under Rule 37(b)(2) because the court previously ordered the production of documents responsive to the Requests for Production at issue, and the documents exist, are within Defendants’ possession, custody and control, and either have not been produced or have been destroyed.[2] See e.g., [#206 at 7]. Defendants contend that they have produced all responsive documents, and no other responsive, non-privileged documents are within their possession, custody or control. See [#203].

*4 Considering the nature of the Parties’ arguments, this court applies standards appropriate for assessing a party’s refusal to produce documents despite a discovery order compelling production, as well as those used in assessing whether a party has spoliated evidence. In addition, while Defendants do not, in any material way, challenge the relevance of the documents requested by Plaintiffs, see [#203], this court considers the breadth of Plaintiffs’ discovery requests so as to discharge its duty to administer this case in a just, speedy, and economical manner as contemplated by Rule 1 of the Federal Rules of Civil Procedure.

In Ehrenhaus v. Reynolds, the Tenth Circuit held that a district court’s discretion to sanction under Rule 37(b)(2) is limited to choosing a sanction that is both just and related to the particular claim which was at issue in the order to provide discovery. Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). In considering whether sanctions are warranted, the court considers: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. Id. at 921 (citations omitted).

A party seeking spoliation sanctions is required to establish three elements: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the claims and defenses at issue in the litigation. [#52 at 5 citing Zubulake (IV) v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003)]. Spoliation sanctions are proper when the court determines that a party had a duty to preserve relevant evidence, and the adverse party is prejudiced by the destruction of the evidence. Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). The prejudice must be actual, rather than merely theoretical. Id. at 1032-33.

While instructive, neither set of standards fits squarely with the circumstances presented by the discovery process in this case. Therefore, this court in its discretion applies a combination of those factors in determining whether, and what, sanctions are appropriate for each category of documents: (1) whether the evidence demonstrates that the document was withheld or spoliated after the duty to preserve was triggered;[3] (2) whether the requested documents were within the scope of appropriate discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure; (3) the culpability of Defendants; (4) the degree of actual, rather than theoretical, prejudice to Plaintiffs resulting from Defendants’ actions; and (5) what sanction is just and related to the prejudice suffered by Plaintiffs.

2. Interrogatories

Rule 33 of the Federal Rules of Civil Procedure governs responses to Interrogatories, and this court has discussed the applicable standards in its previous orders. See e.g., [#150]. Interrogatories must be answered fully and under oath; they must be signed by the individual answering the interrogatories; and they must be supplemented as necessary as discovery progresses. Fed. R. Civ. P. 33; Fed. R. Civ. P. 26(e). The failure to appropriately respond to Interrogatories may also lead to sanctions under Rule 37(b)(2). Indeed, the court may preclude a party from using information that is not reflected in formal discovery responses if the court determines that the party served incomplete responses and/or did not properly supplement a response under Rule 26(e). Fed. R. Civ. P. 37(b)(2)(A)(ii); Fed. R. Civ. P. 37(c)(1).

B. Application of Law with Respect to Request for Production Nos. 2, 5, 8, 9, 14, 15, 16, 19, 20, 25, and 30

1. Profit and Loss Statements

*5 As Plaintiffs note, they have been seeking, and this court has repeatedly ordered, the production of Defendants’ profit and loss statements (“P&Ls”) that are “uncollapsed” and “unaltered” through Request for Production No. 2. [#188 at 5]. Plaintiffs have supplied the court and opposing counsel with examples of such uncollapsed and unaltered P&Ls, see [#192-4, #192-5], which are different from what Defendants produced, see [#192-6, #192-7]. Defendants contend that (1) Plaintiffs have failed to produce documents in response to Defendants’ requests for production, see [#203 at 3], and (2) there were some “interim profit and loss statements” that were “generated but not kept which are provided to instructors and investors,” and that “these interim statements are not kept as part of the normal course of defendants’ business.” [Id. at 3]. Defendants further contend that “[t]he verified yearly profit and loss statements as well [sic] tax returns and full check registries also show instructor compensation, investor distributions and the cost breakdown of studio expenses.” [Id.]. On Reply, Plaintiffs assert that Ms. Applehans testified that she reconciled the P&Ls prior to sending them to investors. See [#206 at 2, #206-7 at ¶¶ 3-4]. Plaintiffs then argue that there is no reason why Defendants cannot produce unaltered P&Ls in the same format, and Defendants were ordered to do so over a year ago. See [#206 at 2-3].

This court agrees that Defendants were under an obligation to produce what was in their possession, custody or control with respect to the P&Ls. Judge Boland determined that Defendants destroyed evidence and acted in bad faith by altering the P&Ls to eliminate certain detailed cost entries and to eliminate altogether the investor realized profit entries, [#85 at 15]; he also recognized that Rule 34 does not require a party to create, or cause to be prepared, new documents solely for production. [Id. at 16]. This court specifically ordered Defendants to produce all monthly P&Ls for the time period of March 10, 2011 to the present for all Defendants, regardless of whether or not the entity is still in existence. See [#117 at 15-16]. This court did not require Defendants to generate such documents from their general ledger, however. See [id.] There is no indication in the Motion or in the voluminous exhibits accompanying the Motion that additional uncollapsed P&Ls are within Defendants’ possession, custody or control. The exhibits provided by Plaintiffs pre-date Judge Boland’s November 2014 Order; and the existence of responsive, unproduced documents would be directly at odds with Defendants’ representations made to this court and to Plaintiffs pursuant to Rules 26(g) and 11 of the Federal Rules of Civil Procedure.

Judge Boland has already granted a Motion for Spoliation directed at this topic and awarded appropriate sanctions. See [id. at 19-20]. There is no evidence before this court that any further destruction of documents has occurred since that time. Cf. [#192-4, #192-5]. In addition, Plaintiffs concede that all payments to Chief Instructors are reflected in other documents previously produced by Defendants. See [#199 at 5]. Furthermore, information as to the wages and payments made to Chief Instructors should also be in the possession, custody or control of the named and opt-in Plaintiffs. To the extent Plaintiffs seek an order from this court further sanctioning Defendants for their refusal to create documents from information that is in their possession, custody or control, this court finds that Rule 34 does not contemplate such a remedy and therefore, declines to sanction Defendants on this basis.

2. Documents Related to Enterprise Liability

In addition, a number of Plaintiffs’ Requests for Production, namely 2, 5, 14, 15, 20, and 25, are directed, at least in part, to evince evidence to support Plaintiffs’ claim for enterprise liability. In light of this court’s Recommendation with respect to enterprise liability, see [#252], I find that any failure to disclose such documents, or the spoliation of those documents, does not warrant sanctions; indeed, the evidence gathered by Plaintiffs was sufficient to persuade this court that no genuine issue of material fact exists as to the issue of enterprise liability. Accordingly, I conclude that additional documents that reflect a joint enterprise, such as pricing documents, seminar or corporate event documents, or investment documents, are cumulative of other discovery in this matter, and Plaintiffs have not suffered any actual prejudice that would warrant sanctions.

*6 Even if the presiding judge, the Honorable Robert E. Blackburn, declines to adopt this court’s Recommendation on that issue, this court would still decline to sanction Defendants. Discovery regarding enterprise liability has been extensive, and Plaintiffs have not persuaded this court that the additional discovery they seek would not be cumulative.

3. Documents Related to Classification of and Pay for Chief Instructors

In Request for Production Nos. 8, 9, 14, 15, 16, 19, Plaintiffs seek documents created and maintained by Defendants regarding the classification and pay for Chief Instructors, including independent contractor agreements, non-compete agreements, checks tendered to Chief Instructors for wages, and communications with accountants and bookkeepers.

Agreements with Plaintiffs. Plaintiffs point to the testimony of Chris Moseley, Emily Carlson, and Heidi Applehans to demonstrate that independent contractor and non-compete agreements were signed by Chief Instructors every year between 2011-2016. See [#188 at 10]. For instance, Ms. Applehans attests that she saw the agreements in Defendant William Clark’s files shortly before she stopped working for him in August 2014, two months after the initial requests for those documents. [Id. citing #193-3]. Defendants contend that “instructors were not required to sign these documents on an annual basis” outside of Colorado, and “not all of the instructors signed and turned in independent contractor or non-compete agreements.” [#203 at 4].

Ms. Applehans attests that “all signed contractor agreements and noncompete agreements for every Chief Instructor that worked for any Z-Ultimate studio in the States of Colorado, Kansas and Illinois from at least 2010-2014 were maintained in the respective Chief Instructor file in Mr. Clark’s office.” [#193-3 at ¶ 12]. This testimony is unrebutted by Defendants. This court finds that there is a sufficient basis to believe that documents were improperly destroyed. However, I also find that, based on the record before me, Plaintiffs have failed to establish any actual prejudice as a result of Defendants’ failure to produce additional independent contractor or non-compete agreements.

There is no evidence before the court that the independent contractor and/or non-compete agreements differed year to year, or between Chief Instructors, so that production of a subset of them would be insufficient to provide Plaintiffs with the relevant information regarding the terms and conditions of the agreements. This court assumes that all of the independent contractor and non-compete agreements had identical terms, so that Plaintiffs can adequately analyze the terms of such agreements and present at trial the legal and practical effect of them. To the extent Defendants attempt at a later date to introduce new evidence regarding discrepancies in the terms of the agreements, or that the Chief Instructors from Colorado, Kansas, and Illinois were not all bound by the same agreements between the years of 2010-2014, Plaintiffs may object and seek to preclude such evidence. Such a motion is more appropriately adjudicated by Judge Blackburn in the context of trial rather than in the abstract.

Payments made to the Chief Instructors. Plaintiffs argue that to the extent Defendants do not possess documents reflecting checks issued and payments made to Chief Instructors, they should have sought those documents from their banks so as to comply with the discovery requests. Rule 34 requires a party to produce documents over which they have “possession, custody, or control.” See Fed. R. Civ. P. 34(a). Defendants assert that they have no responsive documents within their possession or custody. Thus the remaining issue is whether the court can compel Defendants to seek documents from a non-party, on the premise that those documents are presumably under Defendants’ “control.”

*7 Generally, control under Rule 34 includes the circumstance in which a party has the legal right to obtain the documents on demand. Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 520 (D. Colo. 2003). That legal right must also be coupled with a practical ability to obtain the documents from the third party. Id. However, it is not obvious to this court that Defendants were required to look beyond the documents in their immediate possession and custody to seek records from third party banks in response to the discovery request. It is also unclear based on the record before the court what prejudice Plaintiffs have actually suffered, particularly in light of the financial information disclosed in other forms and Plaintiffs’ certification under oath that all payments made to Chief Instructors are reflected in previously produced check registries. See [#199 at 5]. In analogous circumstances, courts in this District have not compelled a party to execute a release to facilitate the production of documents from a third party when the requesting party has not first subpoenaed the third party for those same documents. See Miller v. Kastelic, No. 12-cv-02677-CMA-MEH, 2013 WL 4431102, at *3 (D. Colo. Aug. 16, 2013). Accordingly, this court declines to sanction Defendants on this basis.[4]

Communications with Accountants. There appears to be no dispute that representatives for Defendants communicated with both Mary Ruparel [#195-2 at 3-4] and Suzanne Bradeen [#193-3 at ¶ 20; #203 at 6]; yet, Defendants have not produced a complete set of those communications. It is less clear whether those documents were expunged after a duty to preserve arose. Ms. Applehans attests that “Mr. Clark stopped working with Ms. Ruparel” in 2012, and worked with Ms. Bradeen from 2012-2014. [#193-3 at ¶ 20]. Without more in the record, this court cannot conclude that Defendants are withholding documents that they, in fact, currently possess (in contradiction to their representations to the court), or that Defendants destroyed those documents after Plaintiffs filed the Complaint on January 28, 2014. Plaintiffs do not argue that they were unable to subpoena documents from either Ms. Ruparel or Ms. Bradeen, and as a result, this court is unable to determine that there is any actual prejudice to Plaintiffs.

4. Communications Regarding Employee Classifications

Request for Production No. 19 seeks communications to and from any individual Defendant regarding the issue of employee classification, and Request for Production No. 30 specifically seeks documents and communications related to audits performed by the Colorado Department of Labor. [#188 at 16-17]. Defendants again assert that they have produced everything in their possession, custody and control, but concede some communications may have been “lost.” [#203 at 6-7]. The inherent frustration associated with such a response is not lost on this court. It is clear that Defendants sought advice regarding how they classified workers and that they were subject to investigation by the Colorado Department of Labor, and this court assumes that both internal and external written communications about the issue of worker classification existed. But based on the record before me, I cannot determine when such documents and communications were “lost,” and if Defendants were under a duty to preserve at that time. In addition, this court notes that it denied motions to quash filed by the Colorado Department of Labor and ordered production of documents sought by Plaintiffs through subpoenas, including documents related to James Steinke and Kera Wilkinson. See [#74, #148, #186]. To the extent correspondence exchanged between Defendants and the Colorado Department of Labor existed, it should have (and, based on Defendants’ exhibits, appears to have) been produced by the Colorado Department of Labor.

C. Application of Law With Respect to Interrogatories

1. Identification of Bookkeepers and Accountants

*8 Plaintiffs contend that Defendants improperly withheld the identity of two accountants who advised Defendants regarding issues of worker classification. [#188 at 21-22]. Defendants respond that these individuals were not intentionally omitted; they were encompassed in Defendants’ disclosure of Ron McCarthy, and Plaintiffs have subpoenaed and received files from Ms. Ruparel and Ms. Bradeen. [#203 at 8-9]. Plaintiffs dispute this representation, and argue that Ms. Ruparel and Ms. Bradeen were separately retained by Defendant Clark. [#206 at 7-8].

There is no declaration from Mr. McCarthy that indicates that Ms. Ruparel and Ms. Bradeen were associated with him. But ultimately, whether or not Ms. Ruparel and Ms. Bradeen worked for Mr. McCarthy is simply of no consequence. Interrogatory No. 1 plainly requests Defendants to “[i]dentify and list the name, address, telephone and email contact information for any bookkeeper or accountant who has performed work for any Z-Ultimate entity, including which entity they worked for and for what time period.” [#189-1 at 1 (emphasis added) ]. In their responses, Defendants identify individuals who worked for the same entity. [Id. (identifying Debbie Nash and Debbie Prazak of D&D Accounting LLC) ]. The record includes unrebutted evidence that Defendant Clark communicated directly with Ms. Ruparel, see [#194-2 at 3-4], and Ms. Bradeen, see [#194-3, #208-3 at ¶ 7]. There simply is no reasonable explanation provided by Defendants for their omission.

The dilemma once again presented to the court is the extent to which Plaintiffs are actually harmed as a result of this omission. On one hand, Plaintiffs were able to subpoena documents from Ms. Ruparel and Ms. Bradeen, and appear to have been able to procure voluntary cooperation from the latter. See [#208-3]. On the other hand, Defendants’ response is entirely reliant on attorney argument and is not supported by the documents. See [#203 at 8-9]. In the end, this court is guided by the principle that any sanction should be just and related to the particular claim which was at issue in the Order to provide discovery; this principle forms a partial basis for the court’s sanction as discussed below.[5]

2. Communications with Chief Instructors

Interrogatory Nos. 3, 26, and 27 request that Defendants disclose “all” communications between them, their agents, and any Chief Instructor, Z-Ultimate worker, or Opt-in Plaintiff. Although Judge Boland previously ordered Defendants to provide a full response to Interrogatory No. 3, this court notes that it has not specifically passed on Defendants’ responses to Interrogatory Nos. 26 and 27.

As an initial matter, given the scope of Interrogatory Nos. 26 and 27, see [#190-1], an exhaustive response is unreasonable, if not impossible. For instance, Interrogatory No. 27 requests that Defendants “[d]isclose all communications oral or otherwise from any Z-Ultimate or Defendant agent or representative to any Plaintiff. Include the date of communication, specifically what was communicated, and what medium it was communicated through (i.e. email, telephone, in person, letter, etc.).” [#190-1 at 26-27]. Unbounded by time or subject matter, this interrogatory seeks a breadth of information that is unequivocally disproportionate to the needs of the case. See Fed. R. Civ. P. 26(b)(1).

*9 This court recognizes that Defendants’ accounts of communications regarding the litigation or the subject matter of the litigation, e.g., worker classification and fair wages, are sparse at best, and that the record reflects communications that are not recounted in Defendants’ discovery responses. But at least some of the subject communications included Plaintiffs, or Plaintiffs otherwise learned of them. Therefore, the omission does not necessarily create an issue of information asymmetry that prejudices Plaintiffs. As this court previously noted, written discovery did not represent the sole vehicle through which Plaintiffs could gather evidence in support of their claims. Indeed, Plaintiffs’ recently filed Motion for Issuance of Notice, Corrective Statement, and Sanctions acknowledges that Mr. Eszlinger testified as to communications made to workers “outlining what this case was about.” [#239 at 3; #239-5 at 4]. Therefore, Plaintiffs may have a basis to preclude as unfair surprise any testimony regarding communications that Defendants did not identify during discovery and which were otherwise unknown to Plaintiffs. This court thus recommends to Judge Blackburn that Defendants be precluded from offering such testimony unless Defendants can establish such information was disclosed during discovery. However, the determination of what evidence should be permitted at trial is best reserved for Judge Blackburn and within the context of the testimony that is actually offered.

3. Advice Regarding Employee Classification

Plaintiffs also contend that Defendants have failed to properly respond to Interrogatory No. 9, which asks:

[#189-1 at 67-68]. Defendants’ response does not identify anyone other than John Dundon as providing advice regarding employee classification. Additionally, their response does not deny that Ms. Ruparel and Ms. Bradeen[6] provided information regarding the FLSA or employee classification [#203 at 9-10], but rather suggests that such advice was limited to Mr. Dundon. [Id. at 10]. In reply, Plaintiffs insist that Defendants failed to adequately describe the advice received from these other individuals.

Based on the record before the court, it is unclear what actual prejudice Plaintiffs suffered as a result of Defendants’ failure to describe the communications with Ms. Ruparel and Ms. Bradeen, other than potential surprise if Defendants’ trial testimony is inconsistent with, or improperly supplements, disclosures that were properly made. Again, this court recommends to Judge Blackburn that Defendants be precluded from offering testimony regarding communications that they cannot establish were disclosed during discovery.

4. Identification of All Legal and Administrative Actions

Plaintiffs also requested that Defendants:

[#189-3 at 1-6]. Plaintiffs acknowledge that Defendants disclosed numerous legal actions, see [#188 at 25], but argue that they failed to disclose two 2011 Colorado Department of Labor determinations for James Steinke and Kera Wilson, and a 2011-2015 Colorado Department of Labor audit. [Id.]. Plaintiffs then charge that Defendants are withholding evidence of investigations and determinations that the Colorado Department of Labor made about Chief Instructors’ employee classification from 2011 to the present. [Id.]. Defendants’ response does not address James Steinke or provide any explanation for their omission of the Colorado Department of Labor audit—an audit of which Mr. Clark cannot deny knowledge. Compare [id.] with [#195-5 at 2]. Instead, Defendants simply assert that “Defendant Will Clark testified at his deposition that he does not recall Ms. Wilkinson’s claim. Counsel was unaware of these matters and has made repeated inquiry to disclose all matters.” [#203 at 10].

*10 While this court agrees with Defendants that a touchstone for discovery is whether a reasonable inquiry was made, see e.g. Rule 37(e), there is no evidence before me that describes how Defendants endeavored to respond to this or other Interrogatories, and whether those efforts were in fact reasonable. On the other hand, Plaintiffs subpoenaed documents from the Colorado Department of Labor, and therefore, any actual prejudice is unclear. I do not find that Defendants’ response to this Interrogatory, standing alone, is sufficient to warrant a sanction; however, taken together with the other issues identified by this court, I find a further monetary sanction is warranted as discussed below.

5. Identity of Z-Ultimate Board of Masters and Investors

Through Interrogatory Nos. 14, 32, and 33, Plaintiffs seek information in support of their enterprise liability claims and for the purposes of piercing the corporate veil. Given this court’s Recommendation on the issue of enterprise liability it is unclear that Plaintiffs have been prejudiced by any omission, and thus I respectfully decline to sanction Defendants for their responses to these Interrogatories.

D. Appropriate Sanction

Determining the correct sanction for discovery violations is a fact-specific and fact-intensive inquiry. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996). This court is guided by several principles in assessing the appropriate sanction for Defendants’ discovery conduct. First, a dispositive sanction should be imposed only when the failure to comply with discovery demands is the result of willfulness, bad faith, or some fault of a party other than inability to comply. Id. at 103. Second, courts have a strong preference to resolve cases on the merits rather than on procedural grounds. Lee v. Max Int’l LLC, 638 F.3d 1318, 1321 (10th Cir. 2011). Third, courts are directed to select the least onerous sanction corresponding to the willfulness of violator and prejudice to Plaintiffs. Gates, 167 F.R.D. at 103.

Here, this court balances Plaintiffs’ requests, which at times exceed reasonable bounds for discovery, with Defendants’ repeated failures to disclose information, which are sometimes explained with something akin to a shrug. Furthermore, Plaintiffs’ multitude of discovery motions has left the court uncertain at various junctures whether their objective was to obtain information needed to support their claims, or to prevail on their claims by capitalizing on Defendants’ repeated discovery miscues. To tolerate either side’s conduct would only encourage more of it, and would be in contravention to Rule 1 of the Federal Rules of Civil Procedure. See Lee, 638 F.3d at 1322. As the Tenth Circuit aptly noted in Lee, discovery is not intended to be a game where “a hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered.” Id.

This court finds that the most concerning aspects of Defendants’ discovery conduct at issue involve their repeated and unexplained failure to disclose information related to advice they received from Ms. Ruparel and Ms. Bradeen regarding employee classification; their omission of the Colorado Department of Labor audit; and their failure to describe in more detail communications they had with potential Plaintiffs once the litigation was initiated. As discussed above, this court recommends to Judge Blackburn that Defendants be precluded from offering testimony regarding (1) any agreements they entered into with Plaintiffs that differ from the ones produced, and (2) any communications other than those which Defendants can establish were disclosed during discovery, i.e. through a citation to formal discovery responses, by bates-numbered production, and/or deposition testimony.

*11 In addition, this court orders that Defendants compensate Plaintiffs for reasonable attorney’s fees and costs associated with this instant Motion, which are specifically traceable to the issues associated with Ms. Ruparel, Ms. Bradeen, and the Department of Labor, and the attorney’s fees and costs specifically attributable to the subpoenaing of these individuals and that entity. See generally Fox v. Vice, 563 U.S. 826 (2011). To the extent the Parties cannot agree to a sum certain after a robust meet and confer, which should include sharing information with respect to attorney billings and costs, Plaintiffs are directed to file an Application for Attorney’s Fees and Expenses no later than June 24, 2016.

II. Defendants’ Motion to Compel

On November 16, 2015, Defendants filed their own Motion to Compel. [#199]. As an initial matter, Plaintiffs contend that Defendants failed to properly meet and confer on a number of topics at issue raised by the Motion to Compel, including Request for Production No. 9 and Interrogatory Nos. 1 and 2. See [#205 at 5]. While this court agrees that failure to meaningfully confer is an independent basis for denial of a motion, it also finds that, based on the totality of the circumstances described by the Parties throughout this discovery process, the more appropriate course of action is to give substantive treatment to Defendants’ topics of requests.

Requests Nos. 5, 7, 9. Defendants’ basis for compelling additional responses to Request for Production Nos. 5, 7, 9 is unclear because they fail to articulate how the production to date is incomplete. [Id.]. And, this court declines to rule on arguments made in the first instance on reply absent a showing as to why such arguments were not raised in the affirmative motion. Gates Corp. v. Dorman Products, Inc., No. 09–cv–02058, 2009 WL 4675099, at *2 (D. Colo. Dec. 7, 2009); cf. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (observing that district court can decline to consider new material raised in a reply).

Request No. 8. With respect to Request for Production No. 8, Defendants sought “any and all cellular telephone bills during the time that plaintiffs were working for the defendants in any capacity. This request is limited to the applicable class period of March 2011 to the present date and does not include records previously produced.” [#199 at 4]. Defendants contend that the telephone bills may demonstrate the hours Plaintiffs worked, as well as whether Plaintiffs worked the hours as represented throughout this lawsuit and in their discovery responses. [Id. at 5]. Plaintiffs argue the request is not calculated to lead to the discovery of admissible evidence and bears little to no significance on the case, and assert that production would result in an undue burden. [#205 at 10-12]. But Defendants make clear that they only seek cellular phone records that are within the Plaintiffs’ possession, custody or control. [#210 at 3]. While this court agrees that cellular phone records may have limited probative value to demonstrate what Plaintiffs were doing during business hours when they claim to have been working, it also finds that Plaintiffs should have produced the non-privileged documents responsive to Request for Production No. 8 that are within their respective possession, custody or control, without the service of a subpoena. Accordingly, to the extent such documents have not been produced, Plaintiffs shall produce them no later than June 17, 2016.

Request No. 10, Interrogatory Nos. 1 and 2. Request No. 10 seeks documents reflecting Plaintiffs’ income. To the extent such documents have not been produced, Plaintiffs shall produce what is within their possession, custody or control (other than tax returns)[7] regarding income earned by any Plaintiff no later than June 17, 2016. Plaintiffs cite no authority, and this court has found none, that absolves them from producing responsive documents in discovery simply because Defendants may bear the burden of proof if Defendants are established as employers under § 11(c) of the FLSA.

*12 Interrogatory Nos. 1 and 2 request that Plaintiffs “[l]ist the date and location of any martial arts tournament, festival, conference, workout, workshop or other event sponsored by Z-Ultimate or other defendants since 2010 attended by the plaintiffs, and identify the amount of time spent by each plaintiff at such event,” and “[f]or each Plaintiff, how many hours each week do You contend each plaintiff spent working in a Z-Ultimate or Defendant studio location for each specific week they worked as a Chief Instructor and specifically by Bates stamp number identify all documents that support Your contention to this Interrogatory?” [#199 at 6-7]. Regardless of which side ultimately bears the burden of establishing the number of hours worked and how those hours were compensated, Defendants are permitted to seek discovery on those topics. Plaintiffs are therefore compelled to fully respond to Interrogatory Nos. 1 and 2 no later than June 17, 2016.

Request No. 18. Through Request for Production No. 18, Defendants seek communications between Plaintiffs and a third party, Gerard St. Germain/the KushnerCarlson law firm. [#199 at 6; #199-6 at 5]. Defendants contend that Plaintiffs have also withheld production of P&Ls and litigation documents. See [#199 at 8]. Plaintiffs have listed Mr. St. Germain as a witness, see [#199-6 at 5], but argue that Request for Production No. 18 is overbroad, and Defendants have failed to reasonably narrow it. [#205 at 6-8].

Plaintiffs assert work product privilege and appear to have placed a number of third party documents on a privilege log. See id. In federal cases, the attorney work product doctrine is governed by Rule 26(b)(3) of the Federal Rules of Civil Procedure. See Frontier Refining Inc. v. Gorman–Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir.1998). Rule 26(b)(3) provides that “[o]rdinarily, a party may not discover documents that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer or agent).” Fed. R. Civ. P. 26(b)(3)(A). This court agrees with Defendants that “[u]nderlying documents” created by Plaintiffs but possessed by third parties, such as P&Ls, would not qualify as work product for this action. This court further notes that Rule 26(a)(1) and Rule 26(e) require the production of all documents upon which a party may rely to support its claims or defenses, unless the document will be used solely for the purposes of impeachment. Fed. R. Civ. P. 26(b)(1) (emphasis added), Fed. R. Civ. P. 26(e)(1). Accordingly, to the extent Plaintiffs are withholding documents that were created outside the context of this litigation, such as P&Ls, they should produce them no later than June 17, 2016.

III. Plaintiffs’ Motion for Discovery Sanctions and to Reopen Limited Expert Disclosures

Finally, Plaintiffs seek to reopen expert reports so that their expert can opine that Defendants’ decision to allocate losses to avoid paying taxes is further evidence that Defendants failed to follow corporate formalities when operating their business, which would support Plaintiffs’ alter ego arguments. See [#202 at 4]. After reviewing the briefing on this issue, this court is not convinced that the requested information is of such persuasive value as to justify reopening expert discovery. Indeed, Plaintiffs note that their request was prompted by the testimony of Kris Eszlinger on November 4, 2015 [#202 at 6], who is a named Defendant and whose deposition could have been scheduled prior to the deadline for expert disclosures. Particularly given this court’s Recommendation on the issue of enterprise liability, I decline to award sanctions or reopen expert discovery.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that:

(1) Plaintiffs’ Motion for Rule 37(b)(2) Sanctions [#188] is GRANTED IN PART and DENIED IN PART, and consistent with this Order, this court makes certain recommendations to the Honorable Robert E. Blackburn and grants limited attorney’s fees associated with the filing of this motion;

*13 (2) Defendents’ [sic] Motion to Compel [#199] is GRANTED IN PART and DENIED IN PART, and Plaintiffs are ORDERED to SUPPLEMENT their discovery responses no later than June 17, 2016, as directed by this Order;

(3) Plaintiffs’ Motion for Discovery Sanctions and to Reopen Limited Expert Disclosures [#202] is DENIED; and

(4) Unless otherwise specifically ordered, the Parties shall bear their own costs and fees resulting from the filing of the papers associated with these instant motions.