*1 Before the court by order of reference (ECF No. 159) is Defendant Wright Medical Technology, Inc.'s (“Wright Medical”) Motion for Sanctions due to Plaintiff AngleFix Tech, LLC's (“AngleFix”) Failure to Produce Documents in Accordance with the Court's Orders Ordering AngleFix to Complete its Production of Documents from the Webmail of Michael Shinsheimer (the “Motion for Sanctions”), filed on April 11, 2016. (ECF No. 122.) AngleFix filed a response in opposition on April 28, 2016. (ECF No. 138.) After receiving leave of court (ECF No. 142), Wright Medical filed a reply on May 6, 2016 (ECF Nos. 143 & 144).

On June 27, 2016, the case was stayed in accordance with the court's Order Granting in Part and Denying in Part Defendant's Motion for Summary Judgment. (ECF No. 169.) The stay was lifted on November 15, 2016, pursuant to the court's Order Granting Plaintiff's Motion to Intervene, Denying Defendant's Motion for Summary Judgment for Lack of Standing, and Lifting Stay, and the University of North Carolina was joined as a co-plaintiff. (ECF No. 191.) That same day, upon resumption of the case, Wright Medical filed a notice (ECF No. 192) with the court in response to AngleFix's unauthorized and untimely, see LR 7.2(c), Sur-Reply in Response to Reply in Support of Motion to Compel Attachments (ECF No. 162 (June 10, 2016)). Wright Medical's notice indicated that certain of the issues set forth in the Motion for Sanctions had been resolved. The court held a telephonic hearing on November 30, 2016, for the purpose of receiving clarification from the parties as to any remaining open issues. The parties informed the court that all issues as to the present motion had been resolved aside from Wright Medical's request for sanctions in the form of attorney's fees.

For the following reasons, Wright Medical's request for sanctions is DENIED. All other requests for relief pursuant to the Motion for Sanctions are DENIED AS MOOT.

In the context of the litigation between the parties, the matters at issue here arise from a February 5, 2016 order of the court compelling AngleFix to produce “documents from the webmail account maintained by AngleFix's principal, Michael Shinsheimer,” by February 19, 2016. (ECF No. 107 at 1.) The initial production was not completed until March 2 and 3, 2016. Due to issues outside the scope of this motion, the court ordered a corrected production (see ECF No. 115 (Mar. 7, 2016)), which was timely completed on March 11, 2016. After receiving AngleFix's final, corrected production, Wright Medical determined that the production appeared to be missing numerous attachments that allegedly should have been included with the e-mails to which they were originally attached. (ECF No. 122-1.) At this point, Wright Medical, via its counsel, Jeffrey Pollack of Duane Morris LLP, began a series of e-mail and phone communications with AngleFix's counsel, Joseph Zito of DNL Zito, to address the issue. (See, e.g., ECF No. 122, Exs. A-G.) Each party made arguments to the other as to the status of any alleged missing attachments, but the parties (at that time) were not able to agree upon a resolution, which led to Wright Medical filing this Motion for Sanctions.

*2 According to AngleFix, many of the alleged missing attachments had been produced but were not directly attached to the corresponding e-mails. (ECF No. 122, Ex. D (e-mail from Zito to Pollack, et al.).) To the extent any attachments had not been provided, AngleFix claims that the attachments had been withheld for privilege or based on lack of relevance. (ECF No. 138 at 1, 4-5.) However, AngleFix did not specify particular objections to particular documents.

To attempt to prove to Wright Medical that there were no missing attachments, AngleFix e-mailed Wright Medical screenshots listing all of the e-mails in Shinsheimer's webmail, purportedly illustrating that most of the e-mails that were the subject of Wright Medical's concerns did not actually include attachments. (See ECF No. 122, Ex. F.) Finally, AngleFix suggests that making the webmail available to a third-party IT review company to confirm AngleFix's compliance, as AngleFix had offered, would have resolved any disagreements.

In response, Wright Medical disputed AngleFix's assertion that the specified e-mails did not actually contain attachments. (ECF No. 122-1 at 6.) Wright Medical argued that the screenshots of the webmail actually indicated that there are attachments, directly contrary to AngleFix's assertion, because many of the e-mails at issue show a paperclip icon that commonly indicates there is an attachment to the e-mail. (ECF No. 143.) Wright Medical has provided the court a Supplemental Appendix A to illustrate this, directly linking many of the challenged documents to entries on the screenshots with paperclip icons. (Id.) Wright Medical also expressed concerns as to spoliation. In its sur-reply (filed without leave of court), AngleFix provided a chart matching up the alleged missing attachments with Bates numbers linked to discovery previously produced in this case.

At the November 30, 2016 hearing, Wright Medical represented that, after a thorough review of the discovery and a supplemental production from AngleFix, it was satisfied that the parts of this motion regarding potential missing documents and spoliation were rendered moot. However, Wright Medical maintains that AngleFix's document productions were in violation of court orders because they were untimely and produced in a way that unnecessarily increased attorney costs and necessitated the filing of the present motion. Therefore, Wright Medical seeks sanctions in the form of attorney's fees. AngleFix disputes that such sanctions are appropriate on these facts.

This Motion for Sanctions has been brought by Wright Medical pursuant to Federal Rule of Civil Procedure 37(b) for AngleFix's alleged failure to comply with court ordered discovery. The rule states in relevant part: “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). Thus, an award of attorney's fees would be appropriate if the court determines that AngleFix violated a court order, unless the court finds that the violation was substantially justified or the award would be unjust.

The court order at issue (ECF No. 107 (Feb. 5, 2016)) compelled the production of “documents from the webmail account maintained by AngleFix's principal, Michael Shinsheimer.” Put another way, the order required the production of electronically stored information (“ESI”), including e-mails with any corresponding attachments produced in a logically comprehensible manner. See Graff v. Haverhill N. Coke Co., No. 1:09-CV-670, 2011 WL 13078603, at *10 (S.D. Ohio Aug. 8, 2011) (“[T]he production of ESI in the form of emails without the corresponding attachments thereto is not in a ‘reasonably usable form.’ ” (quoting Fed. R. Civ. P. 34(b)(2)(E)(ii))). The production was to be completed by February 19, 2016. Wright Medical asserts that certain e-mail attachments were either withheld or provided in an unorganized and unusable manner and that the production was untimely.

*3 It is undisputed that AngleFix's production was not completed by the deadline. Moreover, Wright Medical has presented evidence that calls into question whether AngleFix had been forthright in its claims that it had produced all attachments in a comprehensible manner. (See, e.g., ECF No. 122, Ex. D (Zito admitting that “the e-mails were necessarily separated from their attachments”); ECF No. 143, Suppl. Apps. A & F (using webmail screenshots featuring paperclip icons to indicate the likely existence of attachments to e-mails that AngleFix claims did not have attachments).) Finally, AngleFix asserted objections based on relevance and privilege without the requisite level of specificity required by the Federal Rules of Civil Procedure. Discovery of documents, including ESI, is governed by Federal Rule of Civil Procedure 34 (“Rule 34”), which requires specific objections when responsive materials are being withheld:[1]

Fed. R. Civ. P. 34 advisory committee notes (2015 Amendment). AngleFix did not claim that documents were withheld for relevance until well after confronted with allegedly missing attachments by Wright Medical, and even then the assertion was supported with essentially no detail. (See ECF No. 122, Ex. D (fourth e-mail, dated April 4, 2016, in a series of correspondence between Zito and Pollack that began March 25, 2016).) This caused Wright Medical to be uncertain as to whether any responsive documents had been withheld and, if so, why, which is the very type of confusion that Rule 34 looks to avoid by requiring specific objections. For these reasons, the court finds that, at the time of the filing of the present motion, AngleFix was not in compliance with the court's February 5, 2016 order.

Nevertheless, the court does not find that an award of attorney's fees is justified at this time. While the court finds fault with the disorganized manner of AngleFix's productions, it appears to the court, pursuant to the representations of the parties at the November 30, 2016 hearing, that AngleFix was basically correct in its original assertion that most of the attachments in question already had been produced to Wright Medical. It also does not appear that Wright Medical's initial suspicions as to spoliation are well-founded (at least based on the current record). Additionally, AngleFix represented at the hearing that it essentially waived its objections as to relevance and produced the final set of missing attachments in a good faith effort to resolve this dispute. Finally, although AngleFix's failure to meet the court-ordered deadline is unjustified, it does not appear that Wright Medical has been unduly harmed by AngleFix's delay.[2] For these reasons, the court finds that the imposition of sanctions would not be prudent at this juncture. However, should such conduct continue, AngleFix is on notice that the court may consider the record as a whole in determining whether sanctions may be appropriate as this case proceeds.

*4 For the above reasons, Wright Medical's Motion for Sanctions is DENIED.

IT IS SO ORDERED.

Amended Rule 34, which the court finds should apply to this action, see CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495-96 (S.D.N.Y. 2016), provides in relevant part:

A thorough review of the record shows that AngleFix alerted Wright Medical on the day of the deadline that the production was in progress but would not be completed that day. (See ECF No. 118-2 (e-mail from Zito to Pollack, et al., attached as Exhibit A to Wright Medical's Motion to Compel).) This does not excuse AngleFix, as the proper procedure would have been to move the court for an extension, with such a motion to be considered on its merits. See Fed. R. Civ. P. 6(b). However, it is clear that AngleFix was aware of the court-imposed deadline and was in communication with Wright Medical regarding the status of the production.