I. BACKGROUND

On December 29, 2019, Defendants AMPS Staffing, Inc., Darana Hybrid, Inc. (“Darana”), and Darryl Cuttell removed this case to federal court. (Doc. 1). In the original complaint, Plaintiff Taika Blaier asserted claims under the Equal Pay Act and state law related to her employment with Darana.[1] (Doc. 1-1). The action proceeded to discovery, with an original deadline of January 19, 2021. (Doc. 26).

On December 28, 2020, Plaintiff filed a motion for extension of time to complete discovery. (Doc. 34). In her motion, Plaintiff's counsel alleged that Defendants had failed to cooperate in discovery, which included failing to produce documents, respond to interrogatories, and schedule necessary depositions. Id. In addition to the requested discovery extension, Plaintiff asked this Court to admonish Defendants and counsel for their delay in discovery and to award “fees and expenses incurred in having to bring this motion and for the failed good faith efforts to resolve the discovery disputes.” (Id. at 12).

On January 11, 2021, the undersigned granted Plaintiff's motion in part, to the extent that she sought a discovery extension. (Doc. 35). As to the request for fees and expenses, the undersigned held the motion in abeyance pending a discovery conference with the parties. Id. On the same day, Plaintiff filed a discovery statement, outlining the disputed issues in discovery. (Doc. 36).

On January 14, 2021, the undersigned held a telephone conference with the parties to discuss Plaintiff's request for fees and expenses. (Doc. 37). The Court instructed Plaintiff to file a proposed order and affidavit from counsel to support a potential fee award. As to the Defendants, they did not dispute that they had not complied fully with their discovery obligations, and the Court directed them to respond to Plaintiff's discovery statement. The Court also reminded the parties that, because the discovery period had been extended, they still held an obligation to resolve their discovery issues while the Court considered sanctions. Id.

On January 29, 2021, Plaintiff filed an affidavit from counsel and proposed order, seeking $8,290 in fees and costs connected to the parties' discovery disputes and $7,412.50 in fees and costs related to the motion for extension of time (Docs. 39, 41). Defendants also responded to the discovery statement, conceding that discovery had been significantly delayed. (Doc. 40). In large part, Defendants also made no effort to dispute that they had not been forthcoming with interrogatory responses and requests for production. Id.

*2 Then on February 1, 2021, Plaintiff filed a second Motion for Sanctions, this time seeking default judgment against Defendants. (Doc. 42). Plaintiff represented that Defendants still had not cured their discovery errors, as instructed by the Court in the January 14 teleconference. Id.

In response, Defendants argued that, as to monetary sanctions, Plaintiff's request for fees and expenses related to all discovery disputes, including the motion for extension of time, was excessive. (Doc. 44). Defendants also argued against entry of default judgment, as that sanction is generally the Court's last resort. (Doc. 45). Additionally, Defendants attached a letter indicating that they had cured or attempted to cure the deficiencies identified in Plaintiff's discovery statement. (Doc. 45-1).

On March 5, 2021, Plaintiff filed a single reply brief on the issue of sanctions broadly. (Docs. 55, 60). Accordingly, the undersigned finds that both the original request for sanctions and the separate motion for sanctions are now ripe for review.

II. DISCUSSION

A. Discovery Violations

In Plaintiff's original motion for extension of time, she argues that Defendants delayed the discovery process without justification and prejudiced her “right to full and complete discovery.” (Doc. 34 at 1). She notes that she served Defendants with her First Continuing Interrogatories in May 2020, which Defendants responded to between August 6 and August 11, 2020. (Id. at 2–4). She alleges that, when she found Defendants' responses to be deficient, she attempted to resolve those deficiencies without the Court's intervention in September 2020. (Id. at 4–5). Plaintiff argues that Defendants continued to resist producing discovery throughout the remainder of the original discovery period and, by December 2020, Defendants had only produced 425 pages of written discovery. (Id. at 5–9). She also argues that the parties have been unable to schedule depositions because of the complications related to written discovery. (Id. at 10–11).

As a supplement to her motion, Plaintiff argues in her discovery statement that Defendants have intentionally withheld e-mails dating back to Plaintiff's employment with Darana. (Doc. 36 at 2–3). She alleges that she saved a portion of these e-mails that Darana has not produced, showing that Defendants were withholding discoverable material and ignoring their discovery obligations. Id. She also addresses seven instances where Defendants have resisted discovery on improper or unjustified grounds. (Id. at 3–6). First, Plaintiff alleges that Defendants have impermissibly asserted general objections to interrogatories and requests for production. Second, she alleges that Defendants' specific objections to Plaintiff's First Interrogatories were untimely. Third, she alleges that Defendants' response to an interrogatory requesting identification of any female who had worked under Cuttell's supervision in the last ten years and resigned was false, as they did not identify any female including Plaintiff herself. In the remaining four disputes, Plaintiff alleges that Defendants did not provide written discovery on several issues, as promised: (1) the identify of any AMPS or Darana employees who were subject to a “litigation hold notice;” (2) the contact information for several witnesses who worked for Darana; (3) the identity of a third party company hired to remove Plaintiff's image from Darana's website; and (4) Darana's customer list within six months after Plaintiff's resignation. Id.

*3 In response to Plaintiff's discovery statement, Defendants generally do not dispute that there has been considerable delay and assert that they “will continue in their efforts to provide information they are required to provide under the Federal Rules of Civil Procedure and the Local Rules of this Court.” (Doc. 40 at 1–2). As to the specific disputes identified by Plaintiff, Defendants assert that they will withdraw their general objections and, as to the last four issues, that they will produce the requested information. (Id. at 2–3). As to the specific objections that they asserted in response to Plaintiff's First Interrogatories, Defendants argue that their objections were either reasonable or an oversight. (Id. at 2).

Generally, parties are held to the discovery requirements of Rules 26 through 36 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 26–36. Among the discovery rules, Rule 33 requires a party responding to interrogatories to answer each interrogatory “separately and fully in writing.” Fed. R. Civ. P. 33(b)(3). If the responding party objects to an interrogatory, that objections must be stated “with specificity.” Fed. R. Civ. P. 33(b)(4). Rule 34 requires a party produce discoverable documents in its possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Like Rule 33, objections to a reasonable request to produce documents must provide “with specificity the grounds for objecting to that request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Moreover, the objection must indicate that specific documents are being withheld pending that objection. Fed. R. Civ. P. 34(b)(2)(C). This Court's Standing Order supplements these rules by specifically prohibiting the use of generic or boilerplate objections in discovery. (Doc. 8 at 14–15).

In relevant part, Rule 26(g) states that a party's or attorney's signature on a discovery request, response, or objection amounts to a certification that the request, response, or objection is (i) nonfrivolous, (ii) not made for an improper purpose, such as delay, and (iii) is not unreasonable or unduly burdensome. Fed. R. Civ. P. 26(g)(1)(B)(i)–(iii). If a party violates this rule, the Court may impose sanctions against the attorney or the party. Fed. R. Civ. P. 26(g)(3).

Here, the Court finds that Defendants have not abided by their discovery obligations under the Federal Rules of Civil Procedure and this Court's Standing Order regarding discovery. As to Defendants' conduct, rather than recount the chronology of events between the parties in discovery, a few examples are illustrative of the delay that has plagued this case. In employment disputes, the former employer, who is often a corporate entity, is generally the party in custody of most of the discoverable material. In the Court's experience, some delay is common for these corporate defendants because of difficulty locating past records, recovering electronically stored information, or identifying witnesses, who may no longer have any connection to the company.

In this case, the record is clear that the delay is mainly due to Defendants' unsubstantiated objections and apparent refusal to produce relevant documents. Throughout the early stages of discovery, the parties had difficulty agreeing on the scope of discovery, the wording of discovery requests, and timelines for resolving disputes, all of which can be typical in adversarial litigation. However, the Defendants' repeatedly asserted general and boilerplate objections to Plaintiff's requests for discovery. (See, e.g., Doc. 36-1 at 3; Doc. 36-3 at 3, 6). Other objections asserted frivolous positions on the issues.[2] At other times, when Defendants indicated that documents existed, they stated that production was forthcoming. (Doc. 36-4 at 5; Doc. 36-5 at 3). However, Plaintiff alleges—and Defendants do not dispute—that these documents were never produced. (See Docs. 42, 44).

*4 The record also shows that, in December 2020 (more than four months into the discovery period), Defendants refused to produce documents because there was no confidentiality agreement in place, an issue that was first raised in June 2020. (See Doc. 34-1 at 3, 52–53). Despite these objections, Plaintiff made numerous attempts to resolve the issues without involving the Court, to no avail. (See Doc. 34-1 at 52–53; Doc. 42-5 at 2–7).

Tellingly, Plaintiff represents that, by December 2020, Defendants had only produced 425 pages of written discovery, despite being in custody of most of the discoverable material in this case and promising repeatedly that they would do so. (Doc. 34 at 8–9). Therefore, the Court finds that Defendant failed to follow Rules 33 and 34 in discovery and violated Rule 26(g) by asserting frivolous and unreasonable arguments in response to Plaintiff's discovery requests.

B. Appropriate Remedy

In her separate motion for sanctions, Plaintiff argues that default judgment is warranted under Rule 37(b)(2) because Defendants (1) did not comply with the Court's requests to respond to her discovery statement and (2) had not produced any further discovery since the January 14, 2021, teleconference. (Doc. 42 at 2–11). She argues that these failures amount to a willful refusal to participate in the discovery process and abide by the Court's orders. (See Doc. 44).

Discovery sanctions may be imposed for several purposes: “1) compensating the court and other parties for the added expense caused by the abusive conduct; 2) compelling discovery; 3) deterring others from engaging in similar conduct; and 4) penalizing the guilty party or attorney.” Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1453 (11th Cir. 1985). This Court has broad discretion to fashion sanctions appropriate to the individual case. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993); Properties Int'l Ltd. v. Turner, 706 F.2d 308, 310 (11th Cir. 1983) (“It is settled law that the imposition of sanctions for failure to provide discovery rests with the sound discretion of the district court and will not be overturned absent abuse of that discretion.”). Despite that discretion, the Court must develop a sufficient record by stating its justification for the sanction and providing an accounting of the award imposed. Carlucci, 775 F.2d at 1453.

The severe sanction of a dismissal or default judgment is appropriate only as a last resort when less drastic sanctions would not ensure compliance with the court's orders. See Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.1988). These sanctions require a willful or bad faith failure to obey a discovery order. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1543 (11th Cir. 1993). “Violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Id. Moreover, a court order compelling discovery is generally a prerequisite to the imposition of dismissal or default judgment under Rule 37. United States v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317–18 (11th Cir. 1997).

Although the undersigned finds that sanctions are warranted, Plaintiff has not shown that default judgment is an appropriate remedy. First, to the extent that Plaintiff argues that Defendants have disobeyed a court order, her reliance on Rule 37(b)(2) as a basis for default judgment is misplaced. Rule 37(b)(2) gives the Court broad discretion to impose sanctions “[i]f a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a).” Fed. R. Civ. P. 37(b)(2)(A). Under Rules 26(f), 35, and 37(a), the Court may issue orders regarding a discovery plan, requiring a party to submit to a physical or mental examination, and compelling discovery following a motion a compel. See Fed. R. Civ. P. 26(f), 35, 37(a). Thus, when Rule 37(b)(2) mentions the failure to obey a court order, it contemplates disobeying an order directing a particular party to act. The Court's Standing Order provides the default rules for all parties appearing before the Court. In that sense, a violation of the Standing Order is tantamount to a violation of the Federal Rules of Civil Procedure, and it is not akin to the orders listed in Rule 37(b)(2).

*5 Second, Defendants complied with the undersigned's instructions in the January 14, 2021, teleconference. (Doc. 37). Defendants were directed to respond to Plaintiff's discovery statement by January 29, 2021, which they did. (Doc. 40). The purpose of this request was to allow Defendants to state their positions on the record. Plaintiff's argument takes issue with the substance of Defendants' responses under the discovery rules, not with Defendants' compliance with the Court's instructions.

In any event, the undersigned notes that this Order is the first opportunity that the Court has had to rule on the ongoing discovery disputes in this case. After the January 14 teleconference, the Court anticipated that the parties would continue to exchange written discovery while the Court determined whether Defendants' positions on the disputed issues were substantially justified. However, after Defendants filed their response to the Plaintiff's discovery statement on January 29, 2021, Plaintiff did not wait for any ruling from the Court before moving for default judgment on February 1, 2021. Default judgment is reserved for cases where no other sanction would ensure a party's compliance with the rules and the Court's orders. It is not applicable to cases where a party has not complied under the mere threat of lesser sanctions. Accordingly, Plaintiff's separate motion for sanctions (Doc. 42) is DENIED.

C. Reasonable Amount

Having ruled out the option of default judgment, the Court must determine a reasonable amount of monetary sanctions. In the proposed order and affidavit from Plaintiff's counsel, Plaintiff seeks $8,290 related to discovery disputes that formed the basis for the motion for extension of time and $7,412.50 incurred directly from the motion for extension of time. (Doc. 39-1 at 2; Doc. 41). Defendants object to a combined award as excessive. (Doc. 44). They also argue that the amount of expenses that Plaintiff alleges that she incurred directly from the motion is excessive, given the nature of the motion. Id.

The Court finds that an award of $9,896.25 is reasonable, based on the following considerations. The Court relies on Rules 26(g) and 37(d) to impose sanctions, both of which allow the Court to award reasonable expenses “caused by” the offending party's discovery violations. See Fed. R. Civ. P. 26(g)(3), 37(d)(3). The Court interprets these provisions to authorize an award for any expenses incurred whether from Defendants' unsubstantiated objections or from Plaintiff's having to file the motion for extension of time.

That being said, the Court agrees with Defendants that incurring more than $7,412.50 in expenses for a motion for extension of time is unreasonable. The report of billable hours from Plaintiff's counsel shows that an associate attorney spent 12.4 hours drafting the motion for extension of time. (Doc. 39-1 at 51). Lead counsel, the same associate attorney, and a paralegal then spent 8.1 hours reviewing the motion before it was filed. (Id. at 51–52). Although Plaintiff's motion was fourteen pages long, it consisted largely of a chronology of the parties' disputes with supporting exhibits. (Docs. 34, 34-1). Notably, it was not a motion to compel under Rule 37(a), and it provided no legal analysis of the disputed issues. Because no more than 10 hours should have been spent on such a motion, the undersigned reduces Plaintiff's requested amount by half to $3,706.25.

As to the expenses incurred prior to the motion for extension of time, the Court finds that Plaintiff should be entitled to reasonable expenses from November through December 2020, which is roughly the time that Defendants' objections should have been resolved and the parties should have proceeded to depositions. Plaintiff's records show that the associate attorney billed 15.9 hours from November 3, 2020, to December 1, 2020, and lead counsel billed 1 hour for these delays.[3] (Doc. 39-1 at 34–42). These records also show that Plaintiff's counsel has already deducted hours for several of the entries to exclude unrelated tasks. (See id.; Doc. 60 at 12). Having reviewed the communications between the parties from this time period, the undersigned finds that the claimed hours expended by Plaintiff's counsel are reasonable. Therefore, the Court awards $6,190 in fees related to the discovery disputes forming the basis of Plaintiff's motion for extension of time.

*6 The Court awards this amount for the purpose of punishing Defendants for failing to participate in the discovery process, compensating Plaintiff for her time up to the filing of the motion for extension of time, and ensuring Defendants' future compliance with their discovery obligations. See Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1453 (11th Cir. 1985). There is no doubt that Defendants have not been forthcoming in turning over written discovery related to Plaintiff's claims. Moreover, although the Court attributes this deficiency primary to Defendants themselves, it must also remind counsel that it has a duty to resolve discovery disputes in good faith and a responsibility to ensure that their clients understand and comply with their obligations. See Fed. R. Civ. P. 26(g)(1). To that end, the Court appreciates counsel's candor once its conduct was brought to the Court's attention, and it has considered that fact as a mitigating circumstance in awarding this amount.

Finally, the undersigned must note that, in the future if either party feels that the opposing party has violated the discovery rules, that party should not request sanctions through another motion, such as a motion for extension of time. Just as the Federal Rules of Civil Procedure outline the parties' obligations during discovery, they also outline a general procedure for resolving discovery disputes. Rule 37 contemplates that a party seeking relief for an opposing party's noncompliance should file a motion to compel disclosure or discovery under Rule 37(a). Fed. R. Civ. P. 37(a). Rule 37(a) and Local Rule 37.1 govern the requirements for such motions. See LR 37.1, NDGa. If the moving party provides adequate grounds to compel discovery and the opposing party does not provide substantial justification for its position, the Court may award reasonable expenses on its own motion. Fed. R. Civ. P. 37(a)(5)(A). In short, a party seeking relief from an opposing party's misconduct in discovery should file a motion to compel, specify the applicable discovery rules, and explain how the opposing party's conduct violates each rule.

III. CONCLUSION

For the reasons discussed above, Plaintiff's request for monetary sanctions is GRANTED IN PART and DENIED IN PART. Defendants are ORDERED to pay $9,896.25 to Plaintiff within twenty-one (21) days of the entry of this order. The Clerk of Court is DIRECTED to enter a judgment in favor of Plaintiff and against all Defendants, jointly and severally, in the amount of $9,896.25. The courtroom deputy will contact the parties to schedule a conference to discuss the remaining issues in discovery and a reasonable discovery deadline.

IT IS SO ORDERED on this 18th day of March 2021.

The case was referred to the undersigned for all pretrial matters on June 30, 2020, based on Plaintiff's claim under the Equal Pay Act. (Doc. 16).

For instance, in September 2020, Defendants objected in response to Plaintiff's request to identify information “for each project that Plaintiff originated and/or managed that is pending and/or closed” on the ground that it was vague. (Doc. 36 at 3). However, despite Plaintiff's use of “and/or,” nothing about that request was particularly difficult to understand in a case where the Plaintiff asserts that she was denied sales commissions. (See Doc. 1-1 ¶¶ 18–25). The undersigned understands Plaintiff's request as a demand to identify any projects that Plaintiff either started or was substantially involved in, and based on Defendants' representations in their response, they eventually interpreted the interrogatory similarly. (Doc. 36 at 2).

The rates for these attorneys are $350 and $625, respectively. Defendants do not argue that the hourly rates for Plaintiff's counsel are excessive, and therefore, the Court only reduces the time spent. In any event, these rates are within the range of competitive rates that this Court regularly sees in this market, and accordingly, the Court finds that they are reasonable.