*1 On August 21, 2020, the parties in this action filed a Joint Stipulation (alternatively “JS” (ECF No. 93)) in support of their positions regarding plaintiff's Motion for Sanctions (“Motion” or “Mot.” (ECF No. 92)), in which plaintiff seeks an order (1) compelling defendants to submit a declaration identifying “all persons and entities to whom defense counsel forwarded or made available the highly confidential and personal records overproduced to them by Wells Fargo and HSBC Bank and detailing all efforts taken to destroy all hard and electronic copies of such records”; and (2) awarding sanctions against defendants and their counsel pursuant to Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, and/or Rule 37(b)(2) of the Federal Rules of Civil Procedure for failure to comply with a discovery order, and/or pursuant to 28 U.S.C. § 1927 for unreasonably and vexatiously multiplying proceedings, and/or pursuant to the Court's inherent authority to impose sanctions. (JS at 1, 2, 22-25). Plaintiff also submitted the Declaration of her counsel, Theresa Zhen (“Zhen Decl.”) and exhibits; defendants submitted the declaration of their counsel, Laura Reathaford (“Reathaford Decl.”), former counsel William Cross (“Cross Decl.”), and counsel Ronald A. Valenzuela (“Valenzuela Decl.”), along with exhibits. On September 15, 2020, defendants filed an Opposition (alternatively “Opp'n” (ECF no. 96)) to the Motion, along with another declaration from counsel (“Reathaford Opp'n Decl.” (ECF No. 97)), counsel Valenzuela (“Valenzuela Opp'n Decl.” (ECF No. 98)), and former counsel Cross (“Cross Opp'n Decl.” (ECF No. 99)), along with exhibits. Defendants also filed evidentiary objections (“Objections” or “Obj.”) to portions of the Zhen Declaration on the grounds of speculation and/or hearsay.[1] (ECF No. 100). On September 22, 2020, plaintiff filed her Reply (ECF No. 101), along with another Declaration from Zhen (“Zhen Reply Decl.”), a Declaration from plaintiff Zucchella (“Zucchella Reply Decl.”), and a Declaration from Dina Lee Almeida (“Almeida Reply Decl.”), a former consultant for Olympusat. On September 23, 2020, defendants filed a Request to Strike Matter Submitted in plaintiff's Reply (“Request”). (ECF No. 102). Also on September 23, 2020, plaintiff filed an Opposition to defendants' Request (“Opp'n to Request”). (ECF No. 103). Pursuant to the Court's August 26, 2020, Scheduling Notice (ECF No. 95), this matter is now under submission.

Background

Plaintiff contends that since April 29, 2020, defendants have been “knowingly in possession of highly personal bank record documents regarding Plaintiff and Perro Blanco Films, produced to Defendants by Wells Fargo and HSBC Bank in violation of this Court's Order of April 1, 2020 Quashing in Part Defendants' February 29 subpoenas and in violation of the parties' stipulated April 15 subpoenas.”[2] (JS at 1). Plaintiff also states that despite knowing they were in possession of highly personal bank records, defendants failed to notify plaintiff's counsel, this Court, or the banks of the mistaken overproduction of records. (Id. at 1-2). She asserts that defendants had several communications with Wells Fargo Bank regarding missing bank records, but “failed to mention the mistaken overproduction of records in contradiction to the strictures of the subpoenas served and failed to request the Bank reproduce a limited set of records complying with the Court's Order and the agreed-upon subpoenas.” (Id.). Plaintiff claims that defendants “inspected the confidential and highly sensitive personal records to gain an advantage in this litigation”; circulated the records to associates at counsel's firm; and “likely sent these documents to their clients or third parties, who in turn may have further disseminated the records.” (Id. at 2). She also states that defendants “adamantly refused to destroy the records and stated that they had every right to maintain copies of the records, even though in violation of the Court's order and the parties' negotiated subpoenas, because they did not believe the records to be privileged.” (Id.). Plaintiff acknowledges that defendants have since provided declarations in an attempt to resolve the dispute, but contends that those declarations “fail to identify whether the six years of unauthorized records were shared with Mohler, Olympusat, Inc., and client representatives, whether those individuals have been instructed to destroy all records in their possession, and whether those instructions were followed.” (Id.). Plaintiff seeks an order compelling defense counsel to file a declaration “identifying all persons and entities to whom defense counsel forwarded or made available the records produced to them by the Banks and detailing all efforts taken to destroy all hard and electronic copies of such records, as well as sanctions for defendants' conduct in this regard.” (Id.). Plaintiff alleges that the overproduced bank records are “privileged, private, confidential, and subject to a third-party right to privacy.” (JS at 19). As such, she argues that defendants also failed to comply with the procedures of Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, which governs when confidential and privileged material has been produced. (Id. at 20-21 (citations omitted)).

*2 Defendants respond that the Motion is a “pointless exercise and waste of the Court's valuable time and resources.” (Opp'n[3] at 2-3). They state that plaintiff has provided the Court with an “inaccurate rendition of the facts surrounding” Wells Fargo's overproduction of documents, and assert that they have “fully addressed any concern that those records might be ‘used’ in this litigation or disclosed to third parties.” (Id. at 3). Defendants provide the Court with a chronology and overview of the various subpoenas, document productions, and meet and confer communications between counsel, as well as the steps they took to review the documents when they were produced and their subsequent communications with Wells Fargo (which appear to be the only bank documents at issue in this Motion as no specific issues have been raised with respect to HSBC's production). (Id. at 3, 9-16). With respect to plaintiff's request for a declaration identifying everyone to whom counsel forwarded the records, and detailing all efforts taken to destroy copies of such records, defendants argue that such a request “surely encroaches upon, if not outright invades, attorney work product protections, and potentially, attorney-client communications ... [and] is also beside the point, as all copies of the unredacted documents at issue have been destroyed.” (Id. at 9 n.9). During a July 15, 2020, meet and confer discussion, defendants offered to provide declarations confirming that (1) their review of the unredacted records was limited to determining whether those records were responsive; (2) the documents were not shared with any third parties; and (3) all copies of the records at issue have been deleted. (Id. at 13). Defendants state that they insisted that two of those declarations remain confidential, and plaintiff agreed. (Id.). On August 19, 2020, defendants submitted their portions of the Joint Stipulation to plaintiff, along with the supporting Declarations of Ms. Reathaford, Mr. Cross, and Mr. Valenzuela, attesting to the “true chronology of events as represented by Defendants during the parties' July 15 call.” (Id.). Defendants also “submitted confidential declarations further attesting to the limited review of the overproduced documents and other steps Defendants took to address the overproduction.” (Id.). Defendants contend that plaintiff rejected their proffer and brought this Motion for the sole reason that defendants' “declarations did not state whether the [bank records] were shared with [their] client or client representatives.” (Id.). Defendants generally contend that the overproduced documents “were never disclosed to anyone who was unauthorized to have them under the Protective Order.” (Id. at 19). They also argue that the overproduced bank documents are not “privileged” documents within the meaning of Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, which details procedures for when a party produces privileged information in discovery. (Id. at 19-20). They state that they have continued to maintain all bank records in a secure location to ensure that they are not inadvertently disclosed to third parties. (Id. at 19). Additionally, they assert that they have “met all of their ethical obligations and done everything possible to resolve this dispute and yet, Plaintiff has persisted with filing this frivolous motion, including a baseless request for sanctions.” (JS at 28). They submit that plaintiff has failed to provide “any credible evidence of impropriety on Defendants' part, nor any evidence of harm to Plaintiff, let alone evidence and legal authority warranting the extraordinary relief she requests --sanctions.” (Id.; Opp'n at 25).

Plaintiff replies that the declarations submitted by defendants reflect that they “reviewed the unauthorized records beyond what was necessary”; failed to notify plaintiff and this Court of their possession of the overproduced records; forwarded the records to defendant Mohler and representatives of Olympusat “when they knew the records fell outside the scope of the parties' negotiated subpoenas and this Court's April 1, Order”; and had the records in their possession for more than a month before they advised plaintiff that all unauthorized records would be deleted. (Reply at 2 (emphasis in original)). She disputes defendants' account of their contacts with Wells Fargo on May 18, 2020, stating that the official bank records of communications between bank personnel and defendants' counsel reflect that on May 18, 2020, Mr. Cross contacted the bank and “asked for a ‘password reset’, clear[ly] evidencing that he accessed and reviewed the records,”[4] and that in his second call to the bank he asked for more records from missing accounts. (Id. at 3 (citing Valenzuela Decl. (ECF No. 93-4) at 27, 39)). Plaintiff also states that the bank records reflect that the bank set up “another case for the accounts”[5] that were missing, and not to correct the overproduction as suggested by defendants. (Id. at 4). Thus, plaintiff argues, Mr. Cross did not notify Wells Fargo on that date that any records were overproduced, and did not request that the bank correct that overproduction. She also complains that defendants have said “nothing of whether Mr. Mohler or Olympusat representatives have six years of unrelated bank records for Plaintiff and non-party account holders, which they can use at any point during and after this litigation to intimidate and humiliate Plaintiff.” (Id. at 4-5; but see supra note 2). She asserts that defendants, in fact, have “all but admitted that Mr. Mohler and other Olympusat representatives have a copy of the unauthorized records,” as Ms. Reathaford only states in her declaration that the documents were not distributed to any person or entity that was not authorized under the Protective Order to have confidential materials produced in this case. (Id. at 5 (emphasis in original) (citing Reathaford Opp'n Decl. ¶ 8)). As such, she contends that “it is entirely consistent with Defendants' declarations that the records were forwarded to Mr. Mohler, and officers directors [sic] of all four Defendant entities (all controlled by Mohler).” (Id.). She further contends that despite her request for a declaration from defendants' counsel regarding the dissemination of the overproduced documents, defendants' counsel has refused to “state in unequivocal language under oath that they did not forward and to their knowledge Mr. Mohler and Olympusat personnel are not in possession of the documents produced in violation of this Court's Order and the parties' agreement.” (Id. (citing Opp'n at 24-25)). Plaintiff argues that mere “disclosure of the fact that a communication between client and attorney has occurred does not amount to disclosure of the specific content of that communication, and as such does not in and of itself constitute a waiver of the [attorney-client] privilege.” (Id. at 7 (citations omitted)). Thus, she asserts, defendants' counsel does not waive the attorney-client privilege through a “mere averment as to whether they have or have not forwarded the unauthorized bank records to their clients.” (Id.).

*3 Finally, plaintiff reiterates that sanctions are warranted as follows: (1) pursuant to Rule 26(b)(5)(B), because defendants violated that Rule “when they did not promptly return or destroy the confidential unauthorized bank records, and when they did not immediately notify Plaintiff [or the Court] of their possession” of those records; (2) pursuant to Rule 37(b)(2), based on defendants' failure to obey the April 15 subpoenas, which are, in essence, court orders; (3) pursuant to 28 U.S.C. § 1927, because defendants have “unreasonably and vexatiously” multiplied proceedings and created unnecessary litigation because they “repeatedly issue[d] overbroad subpoenas with dizzying frequency and call[ed] the banks to give conflicting instructions,” and, even while this Motion was pending, notified plaintiff that they were planning “to issue a fourth round of overbroad subpoenas to Wells Fargo and HSBC”; and (4) pursuant to the Court's inherent power to impose sanctions, based on defendants' bad faith failure to inform plaintiff's counsel or this Court of their possession “of the confidential and private materials” they acquired from the bank. (Id. at 8-12 (emphases in original)).

Motion to Strike (ECF No. 102)

Defendants request that the Court strike plaintiff's assertion that “Defendants' counsel forwarded the [overproduced] records to Defendant Mohler and representatives of Olympusat when they knew the records fell outside the scope of the parties' negotiated subpoenas and this Court's April 1, Order.” (Request at 2 (citing Reply at 2 (italics omitted))). Defendants assert the following:

(Id. (emphasis in original)). Defendants also contend that the Reply Declarations of plaintiff and Ms. Almeida constitute new evidence that was not presented in the moving papers. (Id. at 2 n.1 (citations omitted)). As such, they argue that it is improper for plaintiff to introduce new facts or different legal arguments in her Reply that were not presented in the moving papers and suggest that the Court may ignore these declarations.[6] (Id.).

Plaintiff responds with only circumstantial evidence (as previously described above) to support her contention that the overproduced records were forwarded by defendants' counsel to defendant Mohler and/or to representatives of defendant Olympusat. (Opp'n to Request at 1-2). She also contends that her declaration and the Almeida Declaration were submitted to rebut defendants' claim that plaintiff suffered no prejudice as a result of defendants' alleged actions. (Id. at 2).

The Court determines that plaintiff has no personal knowledge as to what or when defendants “knew” about the overproduced records and the extent of their review of those records. Additionally, the purported “evidence” relied on by plaintiff to support her assertion that the records were forwarded by defense counsel to defendant Mohler or others is nothing more than speculation based on circumstantial evidence. As such, defendants' Motion to Strike (ECF No. 102) is granted. Moreover, to the extent that information in plaintiff's portion of the JS, or in her Reply, or in her submitted Reply Declarations is unsupported by evidence, is speculative, or is outside the scope of the Motion itself, the Court has not considered that information in making its decision herein.

Analysis

*4 After reviewing the parties' positions, and the numerous (and often conflicting) declarations detailing the alleged chronology of activity in this action related to defendants' subpoenas to Wells Fargo, the Court finds the following facts provided by the parties to be supported and relevant to its determination of this Motion:

*5 After reviewing the parties' submissions and considering their arguments, the Court determines that monetary sanctions against defendants are not warranted, and plaintiff's Motion is denied in part.

First, the April 15, 2020, negotiated subpoenas are not Court orders as contemplated by Rule 37(b) -- they are a form of discovery and defendants did not violate any rule when they issued those subpoenas or subsequent to their receipt of the bank's documents. Moreover, plaintiff has not provided any evidence that defendants' actions related to the original subpoenas that were revised as the result of the Court's April 1, 2020, Order somehow violated that Order. That Order did not impose any duties on any of the parties with respect to the documents produced in response to those revised subpoenas, e.g., whether to promptly notify the bank(s), the Court, or plaintiff of the overproduction; restricting the circulation of the records to clients or others; relating to defendants' inspection of the records; or with respect to the disposal of overproduced records. Indeed, defendants are not responsible for the fact that Wells Fargo inadvertently “overproduced” the documents requested by the subpoena, and they have provided evidence that they took prompt steps to remedy Wells Fargo's inadvertent overproduction of documents. Moreover, plaintiff has not demonstrated that she has suffered any prejudice as a result of the overproduction or defendants' subsequent actions -- defendants have represented to this Court and to plaintiff that the non-responsive documents were not disclosed to any third parties, that the records have been deleted, and that they have not used (and, because of their destruction, cannot use) those documents in this litigation for any purpose. Thus, defendants have not violated any Court order and sanctions are not warranted pursuant to Rule 37(b).

Second, plaintiff's bank records -- while arguably confidential and private documents -- are not “confidential and privileged” within the meaning of Rule 26(b)(5)(B), which details steps to follow when “[i]f information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material.” FED. R. CIV. P. 26(b)(5)(B) (emphasis added). Thus, defendants were under no obligation to comply with the requirements of this Rule. In any event, as demonstrated by defendants, they have sequestered all of the records produced by the banks, not just those that were overproduced; they have not used the overproduced documents in any way; the documents were deleted “months ago”; the documents were never substantively reviewed or analyzed; and the documents were never disclosed to anyone who was unauthorized to have them under the terms of the Protective Order issued in this action. Thus, defendants have not violated Rule 26(b)(5)(B), and sanctions are not warranted pursuant to this Rule.

*6 Third, plaintiff has not demonstrated that defendants acted in bad faith in their acquisition of or actions taken with respect to the allegedly confidential and/or private overproduced documents. For the same reasons discussed above with respect to defendants' alleged violations under Rule 37 and Rule 26 of the Federal Rules of Civil Procedure, the Court finds that sanctions are not warranted pursuant to 28 U.S.C. § 1927 or the Court's inherent power to impose sanctions.

Notwithstanding the foregoing, the Court also finds that under the circumstances herein, and consistent with the spirit -- if not the actual terms -- of the Protective Order issued in this action, it would not violate defendants' attorney-client privilege to submit declarations to plaintiff confirming that (1) any overproduced records in the possession, custody, or control of any of the defendants, their counsel, or other individuals authorized to receive confidential information pursuant to the Protective Order issued in this action have been destroyed; (2) the overproduced documents have not been provided by that defendant to any third party not authorized to receive such information under the terms of the Protective Order; and (3) any information contained within the overproduced documents will not be used in this litigation.

Accordingly, plaintiff's Motion is granted in part. No later than October 9, 2020, each individual defendant, and a corporate representative for each entity defendant, shall separately provide a declaration to plaintiff, signed under penalty of perjury, stating, if true, that (1) any overproduced documents at issue in this Motion received by that defendant from any source, have been destroyed; (2) the declaring defendant did not provide or disclose the overproduced documents to any third party not authorized to receive such information under the terms of the Protective Order issued in this action, or, if such disclosure was made to an unauthorized third party, the steps taken to retrieve any such unauthorized copies and to inform the third party of the terms of the Protective Order in this Action; and (3) any information contained within the overproduced documents (and not otherwise produced) will not be used by that defendant in prosecuting, defending, or attempting to settle this litigation.

Furthermore, no later than October 9, 2020, defendants' counsel shall provide a declaration to plaintiff, signed under penalty of perjury, stating, if true, that (1) any overproduced documents at issue in this Motion in counsel's possession, custody, or control, have been destroyed; (2) no counsel for defendants provided or disclosed the overproduced documents to any third party not authorized to receive such information under the terms of the Protective Order issued in this action; and (3) any information contained within the overproduced documents (and not otherwise produced) will not be used in prosecuting, defending, or attempting to settle this litigation.

IT IS SO ORDERED.