*1 The court has addressed before the defendants’ failures to comply with discovery requests and with the court's discovery orders. It held a hearing on April 26, 2018, to address the defendants’ failures to comply with discovery. The court took under advisement the extent to which it would allow the plaintiff to inspect the defendants’ business premises and business and personal electronic devices and the extent of sanctions. The court made it clear that its decisions on these matters would be influenced by the defendants’ behavior in ameliorating their prior discovery failures and their compliance with discovery obligations in the future. The court reminded the defendants that it had overruled or found forfeited all objections (except privilege objections) to certain of the plaintiff's discovery requests, and required them to supplement their answers and document production as to the “highlighted” discovery requests by June 15, 2018. The court also ordered the defendants to provide written answers and documents by June 15, 2018, with respect to the non-highlighted requests. See May 8, 2018 Entry and Order from Show Cause Hearing, Dkt. 113.

Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”) has filed a motion to compel because of the defendants’ failures to comply with the court's directives. The court agrees with PETA that the defendants continue to defy the court's orders and shirk their discovery obligations. The court's review of the record makes clear that, at a minimum, the following information and/or documents remain to be disclosed or produced. Discovery must be supplemented, as noted below. Further, each defendant is required to show cause why an entry of default should not be made against it, her, or him. A show cause response must (1) state whether and when the discovery supplementation, outlined below, was accomplished; (2) include the certification regarding searches of electronic devices, also as outlined in this order; and (3) explain why default should not be entered.

The defendants must by December 7, 2018:

The court reminds the defendants that their searches for and production of documents must include electronically-stored information, whether stored on or accessed via a computer, phone, other electronic device, or the cloud. The defendants’ statements that they have searched electronic sources are not credible in light of the paucity of electronically-stored information that they produced.

Because of the court's continued concern that the defendants have not properly searched for electronically-stored information, the court requires each of the defendants to file with their show causes responses, by December 7, 2018, an affidavit made under the penalties for perjury regarding the party's efforts in searching for and producing electronically-stored information.

Each affidavit must provide the following information, under oath: (1) the identity of all computers or communication/electronic storage devices (e.g., phone, tablet) in the defendant's possession, custody, or control at any time between January 1, 2017, and the present; (2) the email address(es) used by the defendant at any time between January 1, 2017, and the present; (3) the identity of the computer, device (e.g., cell phone, tablet), cloud, or email that was searched, and the name or names of the individual who possessed or controlled that source of information; (4) the search terms or other search protocol that were used or followed to locate responsive documents and information within each source; (5) the date, date(s), or date range(s) each source was searched; and (6) the identity of the person(s) conducting the search(es).

By December 7, 2018, each defendant must show cause in a filed writing why an entry of default should not be made against it, her, or him based on behavior in responding to discovery and complying with the court's discovery orders. Each defendant must address his, her, or its efforts to locate and produce responsive information and compliance with the above requirements in this order under the headings “Discovery Supplementation” and “Certification Regarding Searches of Electronic Information.”

The plaintiff's motion to compel (Dkt. 133) is GRANTED IN PART AND TAKEN UNDER ADVISEMENT IN PART as provided in this order. The court continues to take under advisement the nature of any appropriate sanctions, including the payment of attorneys’ fees.

*3 So ORDERED.

Distribution:

All ECF-registered counsel of record by email through the court's ECF system

Via United States mail:

TIMOTHY L. STARK

3320 Jack Teeple Road

Charlestown, IN 47111

The court overrules the defendants’ objection that these materials are equally available to the plaintiff. The plaintiff contends, and the defendants did not rebut, that all contents of the business's Facebook account are not necessarily available to the public but may have been restricted. See Dkt. 134 at pp. 5-6.

The court notes that contrary to the Starks's representation regarding records available from Dr. Pelphrey (see responses to Requests 6 and 7, Dkt. 139-1 at p. 9), Dr. Pelphrey testified in his deposition that the records of his treatment were kept at the defendants’ place of business. See Dkt. 134-