*1 Plaintiff moves for discovery sanctions based on Defendant's alleged failure to conduct an adequate search, failure to supplement discovery responses, and failure to preserve electronically stored information (ESI). Plaintiff asks for the following sanctions:

For the reasons stated herein, the Motion for Sanctions is DENIED.

Plaintiff seeks sanctions under Federal Rules of Civil Procedure 26(g), 37(c), and 37(e). It also seeks sanctions under this Court's inherent authority. “The party seeking sanctions under Rule 37 bears the burden of establishing that an opposing party failed to comply with Rule 26 or a discovery order. If the party can establish that a discovery violation occurred, that party then has the burden of establishing the appropriateness of a requested sanction at least by a preponderance of the evidence.” DeepGulf Inc. v. Moszkowski, 333 F.R.D. 249, 253 (N.D. Fla. 2019) (citations omitted); Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV, 2021 WL 515624, at *4 (S.D. Fla. Feb. 11, 2021) (J. O'Sullivan) (moving party bears burden of proving ESI spoliation).

1. Rule 26(g)

Rule 26(g)(1) requires an attorney to sign every discovery response. That signature constitutes a certification that to the best of the person's knowledge, information and belief formed after a reasonable inquiry, “the response is complete and correct and that any objection is consistent with the federal rules and law, is ‘not interposed for any improper purpose,’ and is not unreasonable.” Steed v. EverHome Mortg. Co., 308 Fed. Appx. 364, 371 (11th Cir. 2009). Rule 26(g)(3) calls for “an appropriate sanction” if the certification violates Rule 26(g)(1) “without substantial justification.... The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” Fed. R. Civ. P. 26(g)(3).

2. Rule 37(c)

Rule 37(c) authorizes sanctions when a party fails to properly supplement a prior discovery response. The available sanctions include preventing a party from using belatedly-produced evidence, assessing reasonable fees and expenses caused by the late disclosure, an adverse jury instruction, striking pleadings, and dismissing the case. Fed. R. Civ. P. 37(c)(1).

3. Rule 37(e)

Rule 37(e) authorizes sanctions for failing to preserve ESI. The sanctions analysis under this Rule requires the Court to address three initial questions: (1) was there a duty to preserve the missing ESI, (2) was the ESI lost because the party failed to take reasonable steps to preserve it, and (3) can the missing evidence be restored or replaced through additional discovery. Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *4–5 (S.D. Fla. Mar. 22, 2016) (J. Matthewman). “If the answer to any of questions 1–3 is ‘no’, then the Court need proceed no further under Rule 37(e), and a motion for spoliation sanctions or curative measures must be denied. If the answer to all three of the questions is ‘yes’, however, then the Court must analyze the facts at hand under subsection (e)(1) if there is a finding of ‘prejudice’ or under subsection (e)(2) if there is a finding of ‘intent to deprive.’ ” Id. at *5. If there was prejudice, but no intent to deprive, the Court “may order measures no greater than necessary to cure the prejudice.” If there was prejudice and an intent to deprive, the Court can give an adverse jury instruction or dismiss the case. Fed. R. Civ. P. 37(e)(1), (2).

4. Inherent Authority

*2 Federal courts possess an inherent power to “police those appearing before them,” and to punish bad faith conduct that affects proceedings pending before the Court. Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). That inherent power is necessary for Courts “to manage their affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 632 (1962). “The inherent powers of federal courts are those which “are necessary to the exercise of all others.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). “The most prominent of these is the contempt sanction, ‘which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court ...’ Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” Id. (citations omitted) (ellipses in original). “The key to unlocking a court's inherent power is a finding of [subjective] bad faith.” Purchasing Power LLC, 851 F.3d at 1223.

Plaintiff argues (1) defense counsel failed to properly oversee the collection of ESI responsive to Plaintiff's Request for Production 8, which requested documents related to Defendant's potential employment after April 2017; (2) Defendant failed to preserve ESI; (3) Defendant failed to adequately supplement his response to Interrogatory 3, which requested communications related to Defendant's potential employment after April 2017; and (4) Defendant misled the Court and opposing counsel about his intention to quit his job with Plaintiff and his efforts to obtain new employment.

RFP 8 was served on March 18, 2020. ECF No. 140-1 at 10. Defendant served a written response on April 27, 2020, that said:

ECF No. 140-3 at 5.

Interrogatory 3 also was served on March 18. On April 27, 2020, Defendant provided a sworn response that said:

ECF No. 140-5 at 13.[1]

Defendant was deposed on June 26, 2020. He testified that he had personally reviewed his emails and text messages for responsive documents, that he did not search hard-copy documents, and that he did not provide his devices to his attorneys. ECF No. 140-7 at 4–5. He further testified that he has “a few hundred thousand” emails. ECF No. 140-7 at 7. He testified, “You know, I just scrolled through thousands and thousands and thousands of emails. Did some search functions, which is – if you keep up with things, Microsoft's just changing some search functions on Outlook and that sort of thing and – so search, scroll, look, remember, those sorts of ways.” ECF No. 140-7 at 18. He further testified that he had forwarded to his attorneys all documents that he believed were relevant. ECF No. 140-7 at 9–10. He also testified that he could not locate certain communications that he recalled having occurred. ECF No. 140-7 at 10. During the deposition, Defendant was asked about certain responsive materials that had not been produced in discovery. Defendant and his counsel agreed to “review his files.” ECF No. 140-7 at 33–34.

*3 On August 22, 2020, the last day of discovery, at 5:07 p.m., Defendant's counsel provided a Dropbox link to additional production. ECF No. 140-10 at 2. The Dropbox contained 199 additional documents.

Thereafter, the Court ordered Defendant to sit for a second deposition to allow Plaintiff to question him about, inter alia, the newly-produced discovery. The Court also ordered Defendant to update his response to RFP 8. On September 30, 2021, Defendant produced an additional 181 documents.

On October 5, 2021, Defendant served an “Index of Privileged and Unrelated Materials” related to materials responsive to RFP 8.

Defendant was deposed on October 7, 2021. At that deposition, he testified that he had used the same search methodology for the supplemental searches. He also objected to producing certain documents and answering certain questions about his efforts to obtain new employment. After conducting a discovery hearing on November 16, 2021, I overruled Defendant's objections and ordered the deposition to reconvene. ECF No. 150.

1. Defendant conducted a Rule 26(g) compliant search

Having reviewed the Defendant's deposition testimony, as well as defense counsel's email to Plaintiff explaining the search methodology, I find that Defendant's methodology for collecting documents responsive to RFP 8 complied with Rule 26(g)(1). A discovery respondent need not conduct a perfect search, nor a comprehensive one. The search must be reasonable under the circumstances of the case. Given the search protocols described by counsel and attested by Mr. Jones, there was a substantial justification for the Rule 26(g) certification. No sanctions are warranted on this basis.

2. Plaintiff has failed to show a failure to take reasonable steps to preserve ESI.

Plaintiff has not shown that Defendant failed to take reasonable steps to preserve ESI. Plaintiff first argues that Defendant failed to turn off his auto-delete function for emails. In support of this assertion, Plaintiff cites Defendant's deposition testimony and a correspondence from Defendant's counsel. ECF No. 147 at 17 (citing ECF No. 147-7 at 10 and ECF No. 140-23). The cited deposition testimony was, “[S]ome e-mails that got deleted that I couldn't find.... There's some communications that I know occurred that I was unable to locate.” The statement from Defendant's counsel was, “[Defendant] has learned that, after a certain time period, his system automatically permanently deletes those items.” This cited evidence does not establish when documents were deleted, when Defendant learned about the auto-delete capability, or what Defendant did once he had that information. On this record, Plaintiff has not shown that Defendant failed to take reasonable steps to preserve ESI.

Alternatively, Plaintiff has not shown that Defendant acted with an intent to deprive Plaintiff of ESI or that irremediable prejudice has occurred. Even assuming, arguendo, that some prejudice has occurred from the missing ESI, the sanctions sought by Plaintiff are greater than necessary to remedy that prejudice. No sanctions are awarded under Rule 37(e).

3. No sanctions are warranted under Rule 37(c)

Plaintiff concedes that Defendant has supplemented his responses to RFP 8, but argues that this supplementation was belated. ECF No. 147 at 16–17. Plaintiff also argues that Defendant has not properly supplemented his response to Interrogatory 3. Id. I need not resolve this issue because even if Defendant's response to Interrogatory 3 is insufficient, Plaintiff has been afforded the opportunity to depose Defendant about this subject matter. As such, I would exercise my discretion and not impose any sanctions under Rule 37(c) based on Defendant's alleged failure to submit a sworn interrogatory response on the same subject matter about which he could have been (and was) deposed.

4. No sanctions are warranted under the Court's inherent authority

*4 Plaintiff argues that sanctions are warranted under this Court's inherent authority because Defendant misled the Court and Plaintiff about his ongoing relationship with a prospective employer. Plaintiff also claims that Defendant misled Plaintiff about whether Defendant intended to leave his employment with Plaintiff before he was fired. ECF No. 147 at 18. Plaintiff has failed to show subjective bad faith. In any event, because Plaintiff has not shown irremediable prejudice from Defendant's alleged misrepresentations, granting the sanctions requested by Plaintiff would be an improper exercise of this Court's discretion.

For the foregoing reasons, Plaintiff's Motion for Sanctions is DENIED.

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 7th day of December 2021.

Defendant served Amended and Supplemental Interrogatory Responses on June 19, 2020, that did not change his response to Interrogatory 3. ECF No. 140-6.