*1 This matter is before the court on Plaintiff's Motion to Compel Production of Electronic Information From Defendants'/Counter-Plaintiffs' Cellular Phones and for sanctions (Doc. No. 194) and the response in opposition thereto filed by Defendants/Counter-Claimants David Birchfield and Melissa McDickinson (Doc. No. 208). The court heard oral argument by telephone on this motion on April 23, 2020. The motion is now ripe for review. Upon consideration of the parties' arguments and applicable law, the court finds that the motion is due to be denied.

Plaintiff Ka'toria Gray filed this lawsuit against Defendant David Birchfield (“Birchfield”), Defendant Melissa McDickinson (“McDickinson”) and Plaintiff's former employer, Defendant Koch Foods, Inc. and Defendant Koch Foods of Alabama, LLC (collectively “Koch Foods”) in September 2017. In her Third Amended Complaint, Plaintiff alleges claims of sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”), retaliation under Title VII and 42 U.S.C. § 1981 for claims of race discrimination, retaliation under Title VII for engaging in protected activity, invasion of privacy, assault and battery, outrage, and negligent/wanton supervision, training and retention. (Doc. No. 5.) These claims stem from Plaintiff's employment with Defendants Koch Foods from January 24, 2011 through April 22, 2016. Defendants Birchfield and McDickinson (collectively “Defendants”) counter-claimed for defamation and invasion of privacy. (Docs. No. 47 and 48.)

Plaintiff alleges that Defendants used their positions as managerial human resources employees to gain sexual favors with Koch Foods' employees. (Doc. No. 5 at 5-8.) Defendant Birchfield has stated that he was hundreds of miles away from the site of one incident of harassment which Plaintiff alleges took place in the home Defendants shared on or around November 14, 2015. (Doc. Nos. 5 at 5-8; 194 at 7.) Plaintiff asserts that the Global Positioning System (GPS) data from Defendant Birchfield's cell phone would both support her allegations that he was in fact present during her harassment and disprove his account that he was not present. (Doc. No. 194 at 7.) Plaintiff also asserts that Defendants exchanged text messages with Koch Foods' employee Steven Jackson (“Jackson”) and the text messages retrieved from Jackson's phone provide evidence of a sexual relationship between Defendants as well as their sexual pursuit of Koch Foods' employees. (Id.) Defendants have challenged the authenticity of the data from Jackson's phone. (Id. at 18.) Plaintiff seeks access to Defendants' cell phones to corroborate the messages recovered from Jackson's phone. (Id. at 7-8.)

Before initiating suit, Plaintiff informed all defendants by letter and email in May 2016 that any evidence related to her harassment, discrimination and retaliation claims should be preserved in anticipation of litigation. (Doc. No. 194-1.) The bulk of the request for preservation pertained to information maintained in the offices of Koch Foods but specifically instructed that Defendants should not “destroy, conceal, overwrite, or alter any electronic and/or paper documents or files,” and referenced Defendants' cell phones in requesting the preservation of

(Doc. No. 194-1 at 2-4, 7-9.) Plaintiff specified that the list of items to preserve was not inclusive. (Id. at 3, 8.)

In June 2016, Defendants cooperated with an investigation by A-Z Confidential Investigations (“A-Z Investigations”), the firm hired by Koch Foods to investigate Plaintiff's claims. (Doc. No. 194 at 20-21.) Defendants made their cell phones available to A-Z Investigations. (Id.) After Plaintiff initiated suit in September 2017, Defendants produced the text messages between Defendant McDickinson and Plaintiff that were recovered by A-Z Investigations (Doc. No. 208 at 3), and later employed a vendor to image their cell phones. (Doc. No. 82 at 30-31.) Defendants also produced a photograph of Defendant McDickinson and Plaintiff that was recovered from Defendant McDickinson's phone in November 2017. (Doc. No. 138 at 3.) Defendant McDickinson stated that the photograph was taken by Jackson and depicts Plaintiff kissing her. (Doc. No. 194-12 at 7.) Plaintiff challenges the authenticity and image portrayed in the photograph. (Doc. No. 208-2 at 222-23.) As part of Plaintiff's effort to ensure that she had all possible data from Defendants' phones, she issued a subpoena to Defendants' vendor for the data which prompted a motion to quash from Defendants. (Doc. No. 63.)

During a hearing on the motion to quash on September 21, 2018, Plaintiff told United States Magistrate Judge Wallace Capel that access to the phone data was important because

(Doc. No. 82 at 32-33.) The court instructed Plaintiff to tailor her request for the cell phone data and direct it to the parties in possession of the information. (Id. at 33.) The court cautioned Defendants to provide the information from their vendor when Plaintiff made a proper request per the court's instructions. (Id. at 35-36.)

*3 On October 3, 2018, Plaintiff sent a deficiency letter to Defendants pursuant to Federal Rule of Civil Procedure 37 wherein Plaintiff characterized Defendants' interrogatory responses as “incomplete, inadequate, nonresponsive and noncompliant.” (Doc. No. 208-13 at 1.) Defendants responded that the photograph already provided was the only image from Defendant McDickinson's phone and that both Defendants' phones were reset in January 2018.[1] (Doc. No. 138 at 8.) Plaintiff tried again to obtain images of the cell phones through a Rule 45 subpoena served upon Defendants in January 2019. In June 2019, Defendants filed a motion for the court to quash the subpoena or enter a protective order prohibiting use of the subpoena. (Doc. No. 130.) Defendants asserted that the proper method of collecting the desired information was to do so under Federal Rule of Civil Procedure 34. (Id.) In July 2019, United States Magistrate Judge Stephen Doyle agreed with Defendants and granted the motion to quash the subpoena. (Doc. No. 145.) The court directed Plaintiff to use Rule 34 to obtain the information from Defendants and to file a motion under Rule 37 if she was dissatisfied with Defendants' response. (Id. at 4.)

On February 26, 2020, seven months after the court directed Plaintiff to use Rule 37 as a means of raising Defendants' alleged noncompliance with the court, she filed the instant motion to compel. (Doc. No. 194.) Plaintiff requests the court to compel Defendants to produce the data from their phones and seeks sanctions against Defendants under Federal Rule of Civil Procedure 26(g). (Id.) Defendants respond that the motion should be denied, inter alia, due to untimeliness. (Doc. No. 208 at 1-2.)

A. Timeliness of Motion to Compel

Plaintiff filed the instant motion to compel on February 26, 2020. (Doc. No. 194.) The deadline for discovery in this case was March 1, 2020. (Doc. No. 144.) The Guidelines to Civil Discovery Practice in the Middle District of Alabama direct that

Guidelines to Civil Discovery Practice in the Middle District of Alabama, Section I.I (emphasis added). Plaintiff's motion was filed without leave of court three days prior to the discovery cutoff date of March 1, 2020 and seven months after the court offered guidance on the correct procedures to pursue the cell phone data. (See Doc. No. 145.) Upon questioning from the court during oral argument as to the untimeliness of her motion and the need for a showing of good cause, Plaintiff responded that her motion was not untimely and stated she continued to pursue the possibility that data from the phones was still discoverable during the seven months' gap and in so doing delayed filing the motion to compel. Plaintiff did not request leave of court nor attempt to establish good cause for her untimely motion during oral argument.

The court is not persuaded by Plaintiff's argument and finds good cause lacking to warrant consideration of her untimely motion to compel. The court declines to permit its discovery rules to be violated without any demonstration of the need to do so. See McDonald v. Cotton States Mut. Ins. Co., No. 1:13-cv-552-WKW-TFM, 2015 WL 1138026, at *7-8 (M.D. Ala. Mar. 13, 2015) (denying untimely motion to compel where no leave to file was requested and no grounds were cited that warranted consideration). The court has considered previously the merits of two discovery motions which were untimely filed by Plaintiff in this case. (See Docs. No. 225, 226.) Given this motion is the third untimely discovery motion filed by Plaintiff and the court directed her seven months ago to seek the relief she now seeks under Rule 37, the court finds that consideration of the untimely motion to compel is not warranted. Accordingly, as good cause has not been shown to excuse the untimeliness of this motion and leave of court was not sought, the court finds that this motion is due to be denied as untimely.

B. Sanctions Under Rule 26(g)

*4 Plaintiff requests sanctions be assessed against Defendants under Federal Rule of Civil Procedure 26(g). (Doc. No. 194 at 37.) Rule 26(g) in pertinent part provides:

Fed. R. Civ. P. 26(g)(1), (3). Plaintiff fails to make any specific argument as to which individual disclosure, discovery response or objection runs afoul of Rule 26(g). Indeed, Plaintiff merely cites Rule 26(g)[2] while requesting sanctions, fees, costs and a formal reprimand for Defendants' “dilatory discovery tactics.” (Doc. No. 194 at 37.) Considering Plaintiff's failure to argue this issue, the court finds no basis for sanctions under Rule 26(g) has been established in this case.

For the foregoing reasons, it is hereby

ORDERED as follows:

DONE this 4th day of May, 2020.

Both Defendants purchased new cell phones in November 2016 and transferred all data to the new devices. These are the devices that were reset in January 2018. (Doc. No. 208 at 15.)

Plaintiff also cites Rule 37(e) in her request for relief but that reference relates to Plaintiff's motion for spoliation and sanctions against Defendants (Doc. No. 194) which is not before the undersigned.