*1 Senior Judge Thomas B. Russell referred this case to Magistrate Judge Lanny King for ruling on all discovery motions. (Docket #25). This matter is before the Court on Plaintiff Kenneth Robinson's Motion for Sanctions against Defendant Cousins BBQ Enterprises, LLC, d/b/a The Keg Bar & Grill (“Cousins”), based on the failure to produce surveillance/security video as sought in Plaintiff's requests for production propounded on August 17, 2018, as well as Plaintiff's notice of deposition duces tecum of the Defendant's 30(b)(6) representative. (Docket #68). Defendant filed a Response (Docket #73) and Plaintiff has filed a Reply. (Docket #75). Fully briefed, this matter is now ripe for adjudication.

For the reasons discussed below, the Court GRANTS Plaintiff's Motion for Sanctions and orders Defendant Cousins to reimburse Plaintiff Robinson's costs and fees for re-taking of any depositions originally taken on March 4 and 5, 2019, as well as any costs and fees incurred in the filing of this Motion.

Plaintiff originally propounded his First Set of Interrogatories and Requests for Production of Documents on August 17, 2018 to Defendant Cousins, to which Defendant Cousins responded on October 1, 2018. (Docket #68-1). Document Request No. 1 requested “Videos, both external and internal, of defendant's place of business known as the Keg Bar & Grill.” (Id. at 3). In response, Defendant stated, “Defendant Cousins is not in possession of any videos, either external or internal of The Keg Bar & Grill. The Defendant will supplement this response should it discover such requested information.” (Id.). Plaintiff alleges that at the time Defendant Cousins served its responses, the liability insurance carrier, Liberty Mutual Insurance Company (“Liberty Mutual”), was in possession of videos taken by Cousins' video recording system on November 4, 2017, the date of the incident at the core of this case. (Docket #68-2 at 3).

On March 4th and 5th, 2019, Plaintiff took approximately twelve depositions of various current and former employees of Defendant. (Docket #68 at 1). In the notice of deposition duces tecum, Plaintiff again requested “[a]ny and all surveillance video from Cousins [i.e., ‘the Keg’] on November 4, 2017.” (Id.). Plaintiff alleges that only two of the deposed employees admitted to serving alcohol to Defendant Darren Henderson. (Id.). After completing the depositions, the Plaintiff's counsel went to the Fulton Police Department and met with Captain Allen Poole. (Id.). At this meeting, Captain Poole showed counsel a video that impeached the testimony of the deposed employees. (Id.). Captain Poole advised Plaintiff's counsel that he could not release the video due to the ongoing criminal proceedings against Defendant Henderson, but that Liberty Mutual had obtained a copy of the video “over a year ago.” (Id.).

On March 7, 2019, Plaintiff's counsel contacted Defendant Cousins' counsel regarding the surveillance video discussed with Captain Poole. (Id.; Docket #73-1). In a follow-up telephonic conversation on March 11, 2019, Defendant's counsel informed Plaintiff's counsel that he had no knowledge of the video in the possession of Liberty Mutual until he was informed by Plaintiff's counsel. (Docket #68-2 at 3-4). Defendant's counsel sent a copy of a USB drive containing the videos on March 14, 2019, as well as a letter confirming the contents of the conversation between counsel. (Docket #73-2).

*2 Plaintiff asks the Court to order, pursuant to FED. R. CIV. P. 37(b), Defendant Cousins to reimburse Plaintiff's costs, expenses, and attorney's fees associated with the taking of the depositions, as well as the costs and fees incurred in the bringing of this Motion. (Docket #68 at 1). In response, Defendant Cousins alleges that: (1) Plaintiff violated Local Rule 37.1 in filing his Motion for Sanctions; (2) Plaintiff violated paragraph 4 of this Court's Scheduling Order (Docket #25) in filing his Motion for Sanctions; (3) The Plaintiff did not support his position with binding precedent; and (4) Plaintiff suffered no undue prejudice, as the discovery was timely supplemented.

FED. R. CIV. P. 37(c)(1)(A)-(C) provides that the court may order sanctions if a party fails to provide discovery as required by FED. R. CIV. P. 26(e), which includes supplementation of requested discovery. The court may order the payment of reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or harmless. FED. R. CIV. P. 37(c)(1)(A). The court may also “impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Id. The party seeking sanctions must certify that it has acted in good faith and conferred to resolve the dispute without court action. FED. R. CIV. P. 37(d)(1)(B).

The Federal Rules of Civil Procedure require a party “to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information--including ... photographs, sound recordings, images, and other data or data compilations.” FED. R. CIV. P. 34(a)(1) (emphasis added). Federal courts have held consistently “that documents are deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis original); Resolution Trust Corp. vs. Deloitte & Touche, 145 F.R.D. 108, 110 (D.Colo. 1992); Weck v. Cross, 88 F.R.D. 325, 327 (N.D. Ill. 1980). Legal ownership of the document is not determinative. In Re Bankers Trust Co., 61 F.3d at 469; Weck, 88 F.R.D. at 327; In re Sunrise Sec. Litig., 109 B.R. 658, 661 (E.D.Pa. 1990); Am. Rock Salt Co. v. Norfolk S. Corp., 228 F.R.D. 426, 461 (W.D.N.Y. 2005). While the parties cite and the Court finds no case in the Western District of Kentucky expressly addressing this issue, other federal courts have held that parties have control over information if they have “the legal right to obtain the documents requested on demand.” Henderson v. Zurn Industries, Inc., 131 F.R.D. 560, 567 (S.D. Ind. 1990) (citing Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984)). A party may also “be found to have control over documents turned over to his insurer.” Henderson, 131 F.R.D. at 567; see also 8 C. Wright and A. Miller, Federal Practice and Procedure, § 2210 at 621 (1984). In cases where a party culpably fails to produce documents in response to a discovery request, sanctions are warranted under Rule 37(d). Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763-64 (1980).

Defendant's premises were secured by a video surveillance system on November 17, 2018. This system presumably recorded the events at the core of this case involving Defendant Henderson. This video footage was later turned over to the Fulton Police Department, from whom Liberty Mutual obtained it. (Docket #68-2). Thus, Defendant Cousins' insurer, Liberty Mutual, obtained copies of the surveillance videos that were originally taken by the video surveillance system at the Keg Bar & Grill on November 17, 2018. (Docket #73-2). This chain of events means that Defendant Cousins' controlled the video footage twice, first, when it was initially recorded and obtained by the Fulton Police Department and second, when its insurer, Liberty Mutual, obtained it from the Fulton Police Department. Defendant has not explained why did not keep these recordings that it handed over to the Fulton Police, nor does it excuse Defendant's failure to timely turn over the footage. Defendant's duty was to turn over the footage when requested by Plaintiff in discovery and it failed to do so, even though it was in possession of the requested information. This is a violation of Rule 34.

*3 Defendant's ultimate disclosure of the information does not excuse its failure to produce; it only informs the Court as to the severity of the sanctions to impose. Fautek v. Montgomery Ward & Co., Inc., 96 F.R.D. 141, 145 (N.D. Ill. 1982) (citing Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th Cir. 1978)), (cert. denied, 439 U.S. 832 (1978)). Plaintiff incurred expenses and fees, as well as a loss of time, in preparing for twelve depositions of Defendant's current and former employees. (Docket 68-2). The correct time to produce the information was upon the receipt of the original discovery requests. In failing to do so, Defendant caused undue prejudice to Plaintiff in preparation for the depositions, as the information would have informed his questioning of the deponents about the events at the core of this case.

Plaintiff is entitled to the costs, expenses, and attorney's fees associated with re-taking of depositions due to undue prejudice suffered because of Defendant Cousins' failure to produce the video information. He is not entitled to costs, expenses, and attorney's fees for depositions he does not re-take, as no undue prejudice has been incurred if Plaintiff deems it unnecessary to re-take the deposition with the aid of the video evidence. Plaintiff is further entitled to the costs and attorney's fees incurred in bringing his Motion for Sanctions (Docket #68).

IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions (Docket #68) is GRANTED. Accordingly, the Court imposes the following sanctions:

May 23, 2019