I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Plaintiffs’ Allegations

The Technology Park X Limited Partnership (“Tech Park X”) is a limited partnership, created by the Tech Park X Limited Partnership Agreement (“LP Agreement”) in which Plaintiffs Norman and Nassrine Traverse hold a 38 percent share, and defendants The Gutierrez Company (“TGC”), Arturo J. Gutierrez (“Arturo”), and Arthur J. Gutierrez (“Arthur”), among others, hold smaller stakes. Amended Complaint ¶ 12. TGC serves as the General Partner of Tech Park X and is responsible for the management of Tech Park X. Id. at ¶ 22.

In this action, the Plaintiffs allege that the Defendants improperly inflated Tech Park X's operating expenses and maintenance expenses through inflated invoices. Id. at ¶ 27. They also allege that the Defendants caused Tech Park X to enter into contracts that were in excess of reasonable and competitive market rates. Id. In addition, the Plaintiffs claim that the Defendants caused Tech Park X to incur costs for a water main break caused by the Gutierrez Construction Co., Inc.’s (“GCCI”) negligence. Id. Plaintiffs claim that the Defendants concealed these activities from Plaintiffs, withheld information from Plaintiffs, and misappropriated Tech Park X funds. Id.

The Amended Complaint also alleges that cafeteria renovations were “overcharged”, certain drywall costs were too expensive, and fitness center renovations cost “hundreds of thousands of dollars more” than “usual market rates.” Id. at ¶¶ 37-39. Plaintiffs claim to have identified $1.6 million in construction overcharges. Id. at ¶ 42.

B. The Demiraj Spreadsheets

On November 8, 2019, the Defendants moved to compel, among other things, the production of certain spreadsheets prepared by Nassrine Traverse's bookkeeper, Ilira Demiraj. Docket No. 211. The Plaintiffs argued that the spreadsheets were protected by the work product doctrine. Id. at 9-12. On December 23, 2019, I found that the Plaintiffs had failed to meet their burden to show that the spreadsheets were protected by the work product doctrine and granted in part the Defendants’ motion to compel. Docket No. 250. I ordered the Plaintiffs to produce the spreadsheets by January 6, 2020. Id. at 11. Although Plaintiffs failed to produce the spreadsheets by the January 6 deadline, I granted their belated request for a stay of the December 23 order while Judge Casper considered the Plaintiffs’ objections to the December 23 order. Docket No. 264.

*2 On January 24, 2020, Judge Casper denied the Plaintiffs’ objections. Docket No. 265. Accordingly, I ordered the Plaintiffs to “produce the spreadsheets prepared by Ms. Demiraj no later than January 31, 2020.” Docket No. 266.

When the Plaintiffs failed to produce the spreadsheets by the original January 6, 2020 deadline, the Defendants moved for enforcement of the order and for sanctions. Docket No. 259. On February 4, 2020, the Plaintiffs filed an opposition to the motion. Docket No. 269. In that opposition, they represented that they produced the spreadsheets on January 31, 2020, within the deadline I set after Judge Casper denied the Plaintiffs’ objections to the order. Docket No. 269 at 2. Based on the Plaintiffs’ representations, I denied the motion for sanctions as moot on February 5, 2020. Docket No. 270.

C. Plaintiffs’ Productions In Response To The Order

On Friday, January 31, 2020, the Plaintiffs produced to the Defendants 47 documents, seven emails, 36 Excel spreadsheets, and four PDFs of spreadsheets. Declaration of James L. Tuxbury (Docket No. 281-1) (“Tuxbury Decl.”) at ¶¶ 4, 5. On February 4, 2020, the Plaintiffs produced three additional spreadsheets. Id. at ¶ 10. On February 7, 2020, Plaintiffs made a supplemental production of 33 Excel spreadsheets, which they represented were the “original” spreadsheets retained “in their original location” prior to any modifications as alleged below. Id. at ¶¶ 13, 14.

The Defendants allege that the Plaintiffs’ production was deficient and did not comply with my order in three ways.

1. Plaintiffs Produced Two Of The Sixteen Spreadsheets From The Privilege Log

First, the Defendants allege that the Plaintiffs produced only two of the sixteen Demiraj spreadsheets listed on their privilege log. Docket No. 281 at 6. Plaintiffs, on the other hand, represent that the logged spreadsheets were produced on January 31, with two exceptions, set forth below. See Affidavit of Jason Koral in Opposition to Defendants’ for Rule 37 Sanctions (Docket No. 297) (“Koral Aff.”) at ¶ 5. Specifically, they maintain that the spreadsheets were named differently than they were in the privilege log. See Docket No. 281-3 at 6. On February 4, 2020, Attorney Jason Koral sent an email to Defendants’ counsel with a list of the produced spreadsheets and how they corresponded to the spreadsheets on the privilege log. See id.

As to the two exceptions, according to Plaintiffs, one document had been inadvertently omitted in the production and the Plaintiffs produced it later on February 4, 2020. Koral Aff. at ¶ 5. The Plaintiffs maintain that the other document was not relevant to this case and had been included in the privilege log in error but nonetheless they produced it that day. Id.

2. Plaintiffs’ Alleged Failure To Log Or Identify Dozens Of Ms. Demiraj's Spreadsheets

The Defendants also allege that the Plaintiffs failed to log or identify dozens of Ms. Demiraj's spreadsheets in their privilege log. Docket No. 281 at 7-8. The Plaintiffs’ privilege log identified 14 spreadsheets created by Ms. Demiraj. See Docket No. 281-2. However, in response to this Court's order, the Plaintiffs produced 40 spreadsheets. Tuxbury Decl. at ¶ 5.

According to Plaintiffs, on October 17, 2019, Attorney Koral met with Ms. Demiraj at Ms. Traverse's house in Florida. Koral Aff. at ¶ 2. He asked Ms. Demiraj to show him copies of the spreadsheets she prepared relating to Tech Park X, which she did while logged into a computer in Ms. Traverse's home. Id.; see also Affidavit of Ilira Demiraj in Opposition to Defendants’ Motion for Rule 37 Sanctions (Docket No. 301) (“Demiraj Aff.”) at ¶ 12. After viewing the spreadsheets, he asked Ms. Demiraj to give him a list of the documents for inclusion on the privilege log. Koral Aff. at ¶ 3. Ms. Demiraj provided Attorney Koral with the list, which he then copied to the draft privilege log.[3] Id. The privilege log was produced to the Defendants on October 27, 2019. Id.

*3 Plaintiffs maintain that the number of spreadsheets produced and the number of spreadsheets logged differ only because those are different, “legacy,” or duplicate versions of the same spreadsheets. See Docket No. 299 at 13-14.

3. Plaintiffs’ Alleged Modification Of The Spreadsheets After This Court's December 23 Order

The Defendants also allege that the metadata for the spreadsheets shows that Ms. Traverse modified almost half of the Demiraj spreadsheets after I ordered the Plaintiffs to produce them. Docket No. 281 at 8; see also Docket No. 281-4. The metadata identifies the spreadsheet author as “Gita” or “Gita Costa.” Id. However, for approximately half of the documents, the metadata also reflects that “nassrine” modified those spreadsheets on or after the day the Defendants filed the motion to compel, with most modifications occurring after the December 23 order. Id.

Plaintiffs deny the Defendants’ allegations. According to them, Ms. Demiraj created the spreadsheets while working on the computer in Ms. Traverse's home office that was originally purchased by Ms. Traverse's daughter, Gita Costa. Demiraj Aff. at ¶ 9; see also Affidavit of Nassrine Traverse in Opposition to Defendants’ Motion for Rule 37 Sanctions (Docket No. 300) (“Traverse Aff.”) at ¶ 5. Documents created on this computer list “Gita” as the creator of the document, even if Ms. Demiraj was the person using the computer. Demiraj Aff. at ¶ 9.

In late 2017, Ms. Traverse hired a computer consultant named John Kim to do some IT work for her. Traverse Aff. at ¶ 8. Later that year, he connected three computers Ms. Traverse owned together so it was possible to access files from any of the computers while logged into one of the computers. Id.; Demiraj Aff. at ¶ 11; Affidavit of John Kim in Opposition to Defendants’ Motion for Rule 37 Sanctions (Docket No. 295) (“Kim Aff.”) at ¶¶ 3-4. After the upgrade, Ms. Demiraj accessed Tech Park X documents residing on the “Gita” computer through a connected “nassrine” computer. Demiraj Aff. at ¶ 11.

At the end of 2019, Ms. Traverse informed Ms. Demiraj that they might need to produce the spreadsheets due to a court order. Id. at ¶ 13. “To prepare for this possibility, while on the ‘nassrine’ computer, [Ms. Demiraj] accessed the Excel Spreadsheets that were on the ‘Gita’ computer to verify their contents.” Id. Ms. Demiraj denies that she changed or altered anything in the spreadsheets after the Court's order. Id. “But in some cases, [she] then saved the Spreadsheets back to the ‘Gita’ computer without changing their contents.” Id. She further avers that “[a]lthough it was not [her] intent, [she] later learned that by saving the document before closing it, the ‘last modified’ date could have been changed to the date when I saved the document.” Id.

Ms. Demiraj then “copied the Spreadsheets from the ‘Gita’ computer to a dedicated file folder that I created on the ‘nassrine’ computer for production purposes.” Id. at ¶ 14. She also “changed some of the file names in this production file folder by right clicking and then renaming the files to make them more descriptive. Id. Ms. Demiraj states that “I did this one [sic] own without receiving a specific direction from Ms. Traverse or from counsel, because I wanted to be prepared to produce the documents when needed.” Id.

*4 Ms. Demiraj states that the spreadsheets she placed into the production folder included the same spreadsheets that she previously identified for inclusion on the privilege log in October 2019. Id. at ¶ 15. She also reviewed the spreadsheets as produced on January 31, 2020 and matched the produced documents to the documents she had listed for the privilege log. Id. In some cases, the file names or headings differ from the names she assigned them for the privilege log, but they are still the same documents. Id.

According to Plaintiffs, this chain of events explains the metadata showing “last modified dates” postdating this Court's order. They maintain that, in Microsoft Excel, the mere act of saving a document, even if no change is made to the content, causes the document's metadata to update to list the “modified date” as of the last date the save button was clicked. Koral Aff. at ¶ 15. “Excel treats the concepts of ‘last saved’ and ‘last modified’ as identical.” Id.

The Defendants dispute the Plaintiffs’ assertions. First, they point out that many of the spreadsheets that Plaintiffs claim used to bear the file names listed on the privilege log were not modified after the privilege log was created. Docket No. 281 at 11. For example, Plaintiffs represent that the spreadsheet entitled “TPX CASH REGISTER DISBURSEMENT 2011-2016” on the privilege log was separated by Ms. Demiraj into three new documents, bearing Bates Nos. DFG-030643, DFG-030658, and DFG-030671. Id. However, the document metadata belies that representation. Id. The document bearing Bates No. DFG-030671, entitled “5 – TP CASH REG. SUMMARY 2010-2016.xlsx,” was created on August 24, 2016 and last modified on June 16, 2017. Id. (citing to Tuxbury Decl. at Ex. C). Therefore, the Defendants argue, Ms. Demiraj could not have modified or created the document after the Court's December 23 order. Id.

In addition, the Defendants maintain that merely changing the file name of a spreadsheet does not affect the “Last Modified” date. Tuxbury Decl. at ¶ 11. If a user changes only the file name of an Excel file, the “Last Modified” date for the document will not change. Id. Similarly, if a user creates a copy of an Excel spreadsheet using the “Copy” function, the copied version of the spreadsheet retains the metadata of the original spreadsheet, even if the file is edited. Id.

On the other hand, if a new Excel file is created from an existing file using the “Save As” function of Excel, the “Last Modified” and “Created” date for that new document reflects the date of that “Save As.” Tuxbury Decl. at ¶ 12. However, in that scenario, (1) the production versions of the spreadsheets would reflect created dates post-dating the December 23 order, which they do not; and (2) Plaintiffs would still have the original files as they existed on the Privilege Log. Docket No. 281 at 12. Yet the Plaintiffs either do not have or are withholding any such files. Id.

When the Defendants first reached out to Plaintiffs’ counsel regarding the purported modifications to the spreadsheet, Attorney Koral represented that when Ms. Demiraj created new copies of the spreadsheets specifically for the January 31, 2020 production, “[t]he original spreadsheets were left in their original location.” Docket No. 281-3 at 6. Therefore, the Defendants requested that the Plaintiffs produce the original spreadsheets. Id. at 5. Three days later, the Plaintiffs made a production they represented to be the original spreadsheet files extracted from Ms. Traverse's computer by Plaintiffs’ electronic discovery vendor. Id. at 4.

*5 However, according to the Defendants, the February 7 production was a virtual copy of the January 31 production, except in two respects. Docket No. 281 at 13. First, the February 7 production included ten spreadsheets that Plaintiffs had not previously produced to Defendants. Tuxbury Decl. at ¶ 17. Second, the remainder of the February 7 production was comprised of spreadsheets that are virtual copies of spreadsheets from the January 31 production, except that the versions produced on January 31 contain an extra number in the file name. Id. at ¶ 14. At oral arguments, Plaintiffs’ counsel represented that the spreadsheets produced on February 7 were the “original” spreadsheets that Ms. Demiraj created.

II. ANALYSIS

A. Legal Standard

Defendants move for sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure. Docket No. 281 at 14-15. Pursuant to that rule, “[i]f a party ... fails to obey an order to provide or permit discovery,” the court “may issue further just orders,” including directing that certain matters or facts be taken as established, prohibiting the disobedient party from supporting or opposing certain claims or defenses, striking pleadings, or even dismissing the action. Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to” these sanctions, “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. P. 37(b)(2)(C).

Rule 37(b)(2) “requires two things as conditions precedent to engaging the gears of the rule's sanction machinery: a court order must be in effect, and then must be violated, before the enumerated sanctions can be imposed.” R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991). “If, after a court order on a motion to compel, the plaintiffs refuse to comply with the specific order for productions, sanctions can appropriately be imposed under Rule 37(b)(2).” Big Top USA, Inc. v. Wittern Group, 183 F.R.D. 331, 338 (D. Mass. 1998) (internal quotation marks and modifications omitted).

Courts consider the following factors in determining an appropriate sanction for a violation of a discovery order:

Id. (citation omitted).

Even in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs. Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 106-107 (2nd Cir. 2002) (citation omitted); see also R.W. Int'l Corp., 937 F.2d at 17, n. 5 (reversing dismissal of action based on Rule 37(b)(2) but noting that the court's decision did not “limn or limit the other disciplinary weapons contained in the district court's armamentarium”).

B. By Their Own Admission Plaintiffs Did Not Comply With The Court's Order By The January 31, 2020 Deadline

The Plaintiffs argue that they complied with this Court's order and produced all logged spreadsheets but their representations are filled with exceptions and reservations. See Docket No. 299 at 10-12; Demiraj Aff. at ¶¶ 16-18. For example, the Plaintiffs now maintain that they should not have included some of the spreadsheets in the privilege log because they were outside the scope of discoverable information. Docket No. 299 at 11. The Plaintiffs also admit that some spreadsheets were omitted due to “clerical error” or “inadvertently” omitted. Docket No. 299 at 10-11; Demiraj Aff. at ¶ 16(b). Therefore, by their own admission, the Plaintiffs did not comply with this Court's order by the January 31, 2020 deadline.

*6 Moreover, on February 4, 2020, the Plaintiffs represented to this Court that they had complied with the Court's January 24, 2020 order, see Docket No. 269, at which time the Plaintiffs had reason to know such representation was not accurate. By February 4, 2020, Defendants had already notified Plaintiffs that they believed there were substantial deficiencies in their production. See Docket No. 281-3. Indeed, the Plaintiffs discovered some of the deficiencies and produced additional documents on that date. Docket No. 299 at 10.

The Plaintiffs have created, at a minimum, a mess. Separate and apart from any literal violation of this Court's order, the Plaintiffs’ productions of spreadsheets raise issues regarding the Plaintiffs’ compliance with their discovery obligations. Plaintiffs failed to log or identify dozens of spreadsheets in their privilege log. They attempt to minimize their failure to properly log discoverable documents by stating that the documents omitted from the log were simply older versions of the same documents. Docket No. 299 at 13. However, different versions of a document are separate documents that should have been separately logged. See L.R. 26.5(c)(2) (“A draft or non-identical copy is a separate document within the meaning of this term.”).

It appears that Plaintiffs’ counsel relied heavily on Ms. Demiraj on preparing the privilege log. Koral Aff. at ¶ 3. As a result, the privilege log was deficient. This is not the first time that counsel appears to have been negligent in fulfilling his obligation to ensure that a reasonable search of discoverable documents be conducted. See Docket No. 250 at 7 (finding that counsel did not fulfill his obligation to ensure that all responsive emails were in fact produced to Defendants). Thus, this latest issue calls into question the completeness and accuracy of the Plaintiffs’ production of documents. Accordingly, within two weeks, the Plaintiffs shall file affidavit(s) setting forth in detail the specific steps, including the dates, that they have taken in this case to preserve, search for, and produce discoverable electronic and paper documents.

C. Alleged Modifications Of The Spreadsheets

With respect to the alleged modifications of the spreadsheets, I am unable to determine, without more information, whether in fact the spreadsheets were modified after I issued the December 23, 2019 order and, if so, the nature of the modifications and the person making the modifications. Among other things, neither side has presented expert affidavits regarding their assertions about under what circumstances the “last modified” date in an Excel document will change. However, I find that the Defendants have presented sufficient evidence to warrant further investigation into this matter. Accordingly, I grant the motion to the extent that I order the following:

III. ORDER

For the foregoing reasons, I grant in part the motion and reserve ruling on certain issues as described above.

Judge Casper referred the motion to the undersigned on March 4, 2020. Docket No. 287.

Citations to “Docket No. ___” are to documents appearing on the Court's electronic docket. They reference the docket number assigned by CM/ECF, and include pincites to the page numbers appearing in the top right corner of each page within the header appended by CM/ECF.

Ms. Demiraj avers that the names she gave Attorney Koral for the computer documents to be included on the privilege log were not exact transcriptions of the headings inside the Excel documents but were her own descriptions of the spreadsheets. Demiraj Aff. at ¶ 12. She also states that it was her “usual practice to revise the names of Excel Spreadsheets as appropriate, either at Ms. Traverse's suggestion or because [she] believed that the descriptions could be improved.” Id.