*1 Before the Court is Defendant/Counterclaim Plaintiff/Third-Party Plaintiff Darren Graves' Motion for Sanctions for Plaintiff/Counterclaim Defendant S&G Labs Hawaii, LLC, Third-Party Defendant Lynn Puana, M.D. and Third-Party Defendant Stefanie Bade-Castro's Failure to Comply with Court's September 10, 2020 Order, filed on November 24, 2020 (Motion). See ECF No. 98. Plaintiff/Counterclaim Defendant S&G Labs Hawaii, LLC, Third-Party Defendant Lynn Puana, M.D., and Third-Party Defendant Stefanie Bade-Castro (collectively the S&G Parties) filed their Response to the Motion on December 14, 2020. See ECF No. 100. Defendant Graves filed his Reply on January 4, 2021. See ECF No. 104. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii.

After careful consideration of the record in this action and the relevant legal authority, the Court GRANTS IN PART AND DENIES IN PART the Motion as detailed below.

BACKGROUND

On September 10, 2020, this Court issued an order granting Defendant Graves' motion to compel discovery responses from the S&G Parties (Discovery Order). See ECF No. 88. In the Discovery Order, the Court ordered the S&G Parties to provide discovery responses to Defendant Graves no later than September 28, 2020. See id. The Discovery Order required the S&G Parties to produce both document and written discovery responses to Defendant Graves no later than September 28, 2020. Specifically, the Discovery Order required the S&G Parties to produce the following written discovery responses to Defendant Graves no later than September 28, 2020:

*2 See ECF No. 88 at 6-15. Additionally, the Discovery Order required the S&G Parties to produce the following documents to Defendant Graves no later than September 28, 2020:

See id.

The Discovery Order also granted Defendant Graves' request for reasonable expenses incurred in bringing the motion to compel and directed the parties to submit supplemental briefing regarding the expenses incurred. See id. at 13. On October 29, 2020, after the supplemental briefing was complete, the Court awarded reasonable expenses in the amount of $13,438.74 and directed payment no later than November 24, 2020. See ECF No. 93.

Although the S&G Parties oppose Defendant Graves' Motion, they did not dispute the following facts regarding the discovery at issue. See ECF No. 100.

On September 28, 2020, the Discovery Order's date of compliance, counsel for the S&G Parties emailed counsel for Defendant Graves stating the production of documents would be delivered later that day and the written responses to the requests for production of documents and answers to interrogatories would also be emailed later that day. See ECF No. 98-2 ¶ 7; ECF No. 98-4.

At 11:30 p.m. on September 28, 2020, counsel for the S&G Parties produced Dr. Puana's verified interrogatory responses. See ECF No. 98-2 ¶ 8; ECF No. 98-5. The S&G Parties did not produce any documents or any other written responses on September 28, 2020. See id. ¶ 10. Instead, counsel for the S&G Parties stated that responsive documents and additional written responses would be produced the following day. See id. ¶ 9; ECF No. 98-6. According to the email from counsel for the S&G Parties, documents were given to Professional Image for processing on September 28, 2020. See ECF No. 98-6.

On September 29, 2020, counsel for the S&G Parties informed Defendant Graves' counsel that responsive documents would be available for pick up from Professional Image at 4:30 p.m. that day. See ECF No. 98-2 ¶ 11; ECF No. 98-7. However, no documents were available to be picked up from Professional Image on September 29, 2020 because they were awaiting further documents from counsel for the S&G Parties. See ECF No. 98-2 ¶ 12.

*3 Also on September 29, 2020, counsel for the S&G Parties emailed Ms. Castro's verified interrogatory responses, however, they were password protected and not viewable. See id. ¶ 13; ECF No. 98-8. The password was only provided after Defendant Graves' counsel reached out to counsel for the S&G Parties. See id.

An incomplete production of a single disc of documents was produced to Defendant Graves on September 30, 2020. See ECF No. 98-2 ¶¶ 14-15.

The S&G Parties produced a second disc of documents on October 2, 2020. See id. ¶ 16.

On October 5, 2020, counsel for the S&G Parties informed Defendant Graves' counsel that a third disc containing additional documents would be available on October 6, 2020, and a fourth disc would be made available on October 7, 2020. See id. ¶ 17; ECF No. 98-10. No documents were delivered or available for pickup on either October 6 or October 7, 2020. See ECF No. 98-2 ¶¶ 18-19.

On October 8, 2020, counsel for Defendant Graves was informed, after following up with Professional Image, that no further documents had been provided to them. See id. ¶ 20.

On October 23, 2020, Defendant Graves' counsel sent a meet and confer letter to counsel for the S&G Parties requesting that the S&G Parties fully comply with the Discovery Order. See id. ¶ 21; ECF No. 98-11.

On October 26, 2020, counsel for the S&G Parties sent an email stating that additional documents would be available at Professional Image after 3:00 p.m. that day, and more would be available the next day. See ECF No. 98-2 ¶ 22; ECF No. 98-12.

On October 26, 2020, Professional Image informed counsel for Defendant Graves that the third disc was not available for pick up. See ECF No. 98-2 ¶ 23.

On October 27, 2020, the third disc of documents was produced to Defendant Graves. See id. ¶ 24.

On October 28, 2020, counsel for Defendant Graves asked Professional Image about the fourth disc and was told that they had not received any additional documents from the S&G Parties. See id. ¶ 25.

On October 29, 2020, the Court awarded reasonable expenses related to the underlying motion to compel in the amount of $13,438.74 and directed payment no later than November 25, 2020. See ECF No. 93.

On October 30, 2020, the S&G Parties produced a fourth disc of responsive documents. See id. ¶ 26; ECF No. 98-13. Also on October 30, 2020, counsel for the S&G Parties stated that a fifth disc of documents would be produced and additional written responses would be provided soon. See ECF No. 98-13.

Neither a fifth disc of documents nor any additional written discovery responses were produced to Defendant Graves before he filed the present Motion on November 24, 2020. See ECF No. 98-2 ¶¶ 27-28.

On December 4, 2020, nine days after the Court-ordered deadline, the S&G Parties paid the award of reasonable expenses to Defendant Graves related to the underlying motion to compel. See ECF No. 104-1 ¶ 7.

The S&G Parties filed their Opposition to the present Motion on December 14, 2020. See ECF No. 100.

On December 21, 2020, the S&G Parties produced S&G Labs Hawaii LLC's supplemental response to Defendant Graves' first request for production of documents. See id. ¶ 8.

On December 23, 2020, the S&G Parties produced S&G Labs Hawaii LLC's written response to Defendant Graves' second request for production of documents, Dr. Puana's written response to Defendant Graves' first request for production of documents, and Ms. Bade-Castro's written response to Defendant Graves' first request for production of documents. See id. ¶ 9.

*4 As of the date of Defendant Graves' Reply, January 4, 2021, the S&G Parties had failed to produce a privilege log and had failed to produce all responsive documents as ordered. See ECF No. 104 at 6.

In the present Motion, Defendant Graves asks the Court to impose terminating sanctions, to impose evidence preclusion sanctions, to find the S&G Parties in contempt, and to award Defendant Graves his reasonable expenses related to the S&G Parties' noncompliance with the Discovery Order. See ECF Nos. 98, 104.

DISCUSSION

Federal Rule of Civil Procedure 37(b) confers broad authority to impose various sanctions against a party and/or the attorney advising that party for failure to comply with a court order regarding discovery. See Fed. R. Civ. P. 37(b)(2). The available sanctions range from terminating sanctions, contempt, and an award of reasonable expenses, including attorneys' fees, caused by the parties' failure to obey the discovery order. See id. (b)(2)(A), (C). Importantly, “[b]elated compliance with discovery orders does not preclude the imposition of sanctions.” N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986). The Court will discuss each of the available sanctions below.

First, the Court DENIES Defendant Graves' request for terminating sanctions. Although courts generally have wide discretion to impose discovery sanctions, the discretion to impose terminating sanctions is narrower. Before ordering terminating sanctions, the Court must consider: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the [defendant];(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (citations omitted). In considering these factors in this matter, the Court finds that terminating sanctions are not appropriate at this time. As discussed below, less drastic sanctions are available and have assisted in compelling the S&G Parties' compliance in the past. The S&G Parties, however, are cautioned that any future failure to comply with discovery orders of this Court or its discovery obligations may result in terminating sanctions.

Second, the Court DENIES Defendant Graves' request for sanctions in the form of striking affirmative defenses, precluding evidence, and holding the S&G Parties in contempt. As detailed above and discussed below, the Court finds that the responsibility regarding the S&G Parties' failure to comply with the Court's Discovery Order rests largely on counsel, not on the S&G Parties themselves. Accordingly, the Court finds that it would be unfair to impose evidentiary sanctions that punish the parties for the conduct of their counsel.

Third, based on the conduct at issue, the Court GRANTS Defendant Graves' request for an award of monetary sanctions and AWARDS sanctions against the S&G Parties' counsel in light of counsel's failure to comply with the deadlines set forth in the Discovery Order. The Court may award fees as sanctions unless the party's failure to comply with the discovery order was substantially justified or other circumstances make an award unjust. See Fed. R. Civ. P. 37(b)(2)(C) (providing that “[i]nstead of or in addition to the [sanction] orders above, 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”). Substantial justification requires a showing that the discovery conduct has “a reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The discovery conduct must meet “the traditional reasonableness standard—that is justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Id. (internal quotations omitted).

*5 Here, reasonable people could not differ on whether the S&G Parties' conduct and the conduct of their counsel in this discovery dispute was appropriate. It is undisputed that the S&G Parties did not timely comply with the Discovery Order, did not seek additional time to comply from the Court, and have not fully complied to date. Despite the clear September 28, 2020 deadline set forth in the Court's Discovery Order, the S&G Parties failed to produce the required discovery by that deadline and did not seek additional time from the Court. Instead, counsel for Defendant Graves had to contact counsel for the S&G Parties for weeks trying to obtain the court-ordered discovery and had to reach out to third-party vendors to obtain accurate information about when documents would be produced. Even after the present Motion was filed, the S&G Parties did not produce documents or written discovery as promised. It appears that the S&G Parties did not produce all of the discovery as ordered until December 23, 2020, almost two months after the court-ordered deadline, and have still not produced a privilege log or all documents in .pdf format as ordered. See ECF No. 104 at 6. This matter does not involve voluminous discovery or complex electronic discovery issues that might delay the production of document or written discovery responses. Further, the Court finds that sanctions should be imposed against counsel for the S&G Parties. As detailed above, counsel for the S&G Parties made and broke repeated promises to opposing counsel that full compliance would be forthcoming. Because of the conduct at issue, counsel for Defendant Graves was required to repeatedly reach out to counsel for the S&G Parties, engage in further meet and confer sessions, and file the present Motion detailing the continued noncompliance. The Court finds that the S&G Parties' failure to comply with the Court's Discovery Order was not substantially justified and no other circumstances make an award unjust.

No later than January 29, 2021, Defendant Graves may file a supplemental declaration detailing the reasonable expenses incurred related to the Motion. The supplemental declaration should contain sufficient information for the Court to determine the reasonableness of the work completed and the hourly rate requested. No later than February 12, 2021, the S&G Parties may file a response to Defendant Graves' supplemental submission. Thereafter, the Court will issue an order regarding the award of reasonable expenses.

CONCLUSION

Defendant/Counterclaim Plaintiff/Third-Party Plaintiff Darren Graves' Motion for Sanctions for Plaintiff/Counterclaim Defendant S&G Labs Hawaii, LLC, Third-Party Defendant Lynn Puana, M.D. and Third-Party Defendant Stefanie Bade-Castro's Failure to Comply with Court's September 10, 2020 Order is GRANTED IN PART AND DENIED IN PART as detailed above.

The Court AWARDS sanctions in the form of an award of reasonable expenses against counsel for Plaintiff/Counterclaim Defendant S&G Labs Hawaii, LLC, Third-Party Defendant Lynn Puana, M.D. and Third-Party Defendant Stefanie Bade-Castro. No later than January 29, 2021, Defendant Graves may file a supplemental declaration detailing the reasonable expenses incurred. No later than February 12, 2021, the S&G Parties may file a response to Defendant Graves' supplemental submission. Thereafter, the Court will issue an order regarding the award of reasonable expenses.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, JANUARY 15, 2021.