There are several matters before the Court. The Court sets out its reasoning and conclusions below.

 I. Background

Plaintiff, the Secretary of Labor (or the “Secretary”), brings this action pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). See Compl. [Doc. 21]. Defendant Robert N. Preston was the owner and chief executive officer of Defendant The Preston Partnership Holdings, Inc. (“TPP”), which established the TPP Employee Stock Ownership Plan (“ESOP”) in 2004 to provide retirement income for TPP’s employees. See id. Plaintiff alleges that Defendants breached their fiduciary duties owed to the ESOP pursuant to ERISA when they knowingly caused the ESOP to purchase TPP stock at inflated prices in 2006 and 2008. See id.

Plaintiff filed its Complaint on December 30, 2014. Id. After granting Defendants’ motion to dismiss [Doc. 17], Judge Willis B. Hunt, Jr. granted Plaintiff’s “Motion for Certification of an Interlocutory Appeal” and the case was submitted to the Eleventh Circuit for consideration of a jurisdictional issue. [See Docs. 29, 30]. In 2018, the Eleventh Circuit remanded the case to the District Court for further proceedings on the merits. [Docs. 36, 37]. Upon remand, the Parties engaged in an extensive discovery period, which closed on January 31, 2021. [See Docs. 62, 70, 71, 75, 78, 82, 87, 91]. Thereafter, in the absence of any motions for summary judgment, the undersigned directed the Parties to file a Proposed Consolidated Pretrial Order (“CPTO”) through an Order dated March 3, 2021. [Doc. 94]. Following a brief extension, the Parties filed their CPTO on March 24, 2021. [Doc. 98].

On March 31, 2021, the Court issued a “Notice Setting Trial,” scheduling a bench trial to begin on October 5, 2021. [Doc. 99]. On August 31, 2021, Plaintiff filed several motions, all of which Defendants oppose. [See Docs. 100, 101, 102, 103, 104, 105, 106]. Additionally, on September 14, 2021, the Parties filed a consolidated/joint discovery statement (hereinafter, “Joint Discovery Statement”). [Doc. 111]. Subsequently, Defendants moved to continue the trial due to several witnesses’ concerns related to travel and the COVID-19 Pandemic. [See Docs. 7; 13 at 2–4]. In an Order dated September 20, 2021, the Court granted Defendants’ motion for a continuance, rescheduling the bench trial for February 22, 2022. [See Doc. 115]. Thereafter, Plaintiff sought leave to file a motion for partial summary judgment, which Defendants oppose. [See Docs. 116, 117]. Having been fully briefed, Plaintiff’s motions [Docs. 100, 101, 102, 103, 116] as well as the Parties’ Discovery Statement [Doc. 111] are now ripe for the Court’s consideration. The Court addresses each in turn.

II. “Motion to Allow Amendment to his Witness and Exhibit Lists to Include Newly Discovered Evidence” [Doc. 100]

In August 2021, more than six (6) months after discovery closed in this case, Plaintiff received new evidence from a previously unknown former employee of Defendant TTP, William Brownback. [See Doc. 100 at 2]. Mr. Brownback contacted Plaintiff’s counsel, stating that he had information relevant to the instant litigation, and subsequently shared emails and other relevant documents that had not been produced by Defendants during discovery. [See id.] In particular, Mr. Brownback supplied email correspondence Defendant TTP’s principals exchanged with each other using Gmail accounts in 2008. [See id. at 2–4]. Plaintiff now seeks to amend its attachments to the Parties’ jointly submitted CPTO to include these emails as exhibits and add Mr. Brownback as a witness. [See id. at 1].

Defendants, in turn, do not oppose Plaintiff’s request to add the proposed exhibits, marked as P-32, P-33, and P-34.[1]  [See Doc. 106 at 1]. Additionally, Defendants do not contest the addition of Mr. Brownback as a potential witness for Plaintiff, provided that Defendants be permitted to depose him prior to trial. [See id. at 2]. However, Plaintiff objects to Defendants’ request to depose Mr. Brownback. [See Doc. 110 at 5].

Generally, courts permit amendments to pretrial orders unless the proposed amendment would cause a substantial danger of prejudice. See Jacobs v. Agency Rent-A-Car, Inc., 145 F.3d 1430, 1432 (11th Cir. 1998).

The trial judge is vested with broad discretion to preserve the integrity and purpose of a pretrial order. Basically, these orders and stipulations, freely and fairly entered into, are not to be set aside except to avoid manifest injustice. FED. R. CIV. P. 16. However, in the interest of justice and sound judicial administration, an amendment of a pretrial order should be permitted where no substantial injury will be occasioned to the opposing party, the refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the court is slight.

United States v. Varner, 13 F.3d 1503, 1507 (11th Cir. 1994) (internal citation and quotation omitted). “There is a presumption that a pretrial order will be amended in the interest of justice and sound judicial administration provided there is no substantial injury or prejudice to the opposing party or inconvenience to the court.”[2] Id. at 1507–08. “If amendment of the pretrial order would result in substantial injustice to the opposing party or inconvenience to the court, the order should be amended only to avoid manifest injustice.” See Jacobs, 145 F.3d at 1432.

With respect to his exhibit list, Plaintiff seeks to add several newly discovered exhibits and Defendants do not object to Plaintiff’s proposed amendments. [See Docs. 101; 106 at 1; 109 at 1–2]. Thus, because Defendants do not object, the Court finds no prejudice to Defendants and grants Plaintiff’s motion to amend his exhibit list. See Strategic Decisions, LLC, 2015 WL 4727143, at *9 (granting the plaintiff’s motion to amend the proposed pretrial order because the defendant did not object).

As for Plaintiff’s request to add Mr. Brownback to his witness list, the Court finds that any potential prejudice to Defendants can be cured by permitting Defendants to depose Mr. Brownback prior to trial. See Lincoln Benefit Life Co. v. Stamps, No. 1:04-CV-1272-JEC, 2008 WL 11336942, at *2 (N.D. Ga. Sept. 23, 2008) (“To avoid any potential for unfair surprise at trial, the Court will permit plaintiff to conduct pretrial discovery on the seven newly added witnesses.”); see also Harrison v. Burlage, No. 08-80989-CIV, 2009 WL 3048687, at *3 (S.D. Fla. Sept. 18, 2009) (permitting the plaintiff to add new witnesses and noting that it would consider a request from defendants to depose the new witnesses, particularly those added after the close of discovery). Plaintiff states only that he objects to Defendants’ deposition request and that neither Party has had the benefit of deposing Mr. Brownback. [See Doc. 110 at 4]. Further, Plaintiff points to no authority supporting his position that Defendants should not be permitted to depose Mr. Brownback. [See id. at 4–5].

Therefore, in the interest of sound judicial administration and to prevent any unfair surprise at trial, the Court grants Plaintiff’s motion to amend the witness list to add Mr. Brownback and permits Defendants to depose Mr. Brownback prior to trial.”[3]  [Doc. 100].

III. “Motion to Compel Defendants to Produce Communications from Undisclosed Gmail Accounts” [Doc. 101]

By its motion to compel, Plaintiff asks this Court to require Defendants to produce emails from Gmail accounts that their principals allegedly set up in 2008 to covertly discuss layoffs, pay cuts, and office closures. [See Doc. 101 at 7, 9]. Plaintiff was unaware of the existence of such Gmail accounts until a former TTP employee, Mr. Brownback, provided such emails between himself, Defendant Preston, and TPP’s chief operating officer Steve Byerly in August 2021. [See id. at 6–7]. Thereafter, Plaintiff notified Defendants of Mr. Brownback’s emails and requested that Defendants “immediately supplement” their discovery production to include any emails to or from Defendant Preston and Mr. Byerly’s Gmail accounts addressing the financial status of the Company around the time of the 2008 ESOP stock transaction. [See id. at 7–8]. Plaintiff asserts that Defendants have not fully supplemented their discovery responses as requested. [See id.]

Plaintiff now seeks an order compelling Defendants to produce all communications responsive to Plaintiff’s discovery requests, including those made through the Gmail accounts. [See id.] Additionally, Plaintiff moves for sanctions related to Defendants’ alleged spoilation of electronically stored information due to their separate failure to suspend their automatic deletion program until November 2018, almost four (4) years after Plaintiff filed his Complaint. [See id. at 10].

 As an initial matter, the Court declines to address the merits of Plaintiff’s instant motion due to Plaintiff’s failure to adhere to the undersigned’s Instructions regarding discovery motions. As explained in the Instructions, “[t]he parties shall not file discovery motions (including motions to compel, motions for protective order, motions for sanctions) without prior permission from the Court.” [See Doc. 68 at 4]. Further, the Instructions require counsel to confer, either in person or via phone, to resolve the discovery dispute, and only then if the dispute cannot be resolved to “file on the docket a Consolidated/Joint Discovery Statement outlining their positions on each of the discovery items in dispute.” [See id. at 4–5]. Accordingly, the Court denies Plaintiff’s “Motion to Compel Defendants to Produce Communications from Undisclosed Gmail Accounts.”[4]  [Doc. 101].

IV. “Motion to Exclude Thirteen of Defendants’ Listed Witnesses for Failure to Identify them in Initial Disclosures” [Doc. 102]

 Next, Plaintiff moves in limine to exclude thirteen (13) of Defendants’ potential witnesses, arguing that Defendants failed to properly identify these individuals in their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a) and (e). [See Doc. 102 at 2]. Rule 26 provides, in pertinent part, that a party must disclose “the name . . . of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” See FED. R. CIV. P. 26(a)(1)(A)(i). A party must supplement its disclosure “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]” See FED. R. CIV. P. 26(e)(1)(A).

Although Defendants consent to the removal of twelve (12) of the listed witnesses at issue,[5] they oppose the removal of Jeremy Jones from their witness list. [See Doc. 106 at 1–2]. Here, it is undisputed that Defendants neither listed Mr. Jones in its initial disclosures nor supplemented their disclosures to include him. [See Docs. 106 at 5–6; 112 at 2]. Nevertheless, Defendants argue that the exclusion of Mr. Jones from their witness list would be improper because he was identified as individual who may hold relevant information during the deposition of Defendant Preston. [See Doc. 106 at 4]. Thus, Defendants contend that Mr. Jones was “otherwise made known” to Plaintiff during the discovery process, alleviating Defendants’ duty to supplement their initial disclosures. [See id. at 4–5].

 At the beginning of Defendant Preston’s deposition, Plaintiff’s counsel inquired as to whether he had spoken with anyone other than his attorneys in preparation. See Deposition of Robert Preston (“Preston Dep.”) at 10:15–16 [Doc. 105-1]. In response, Defendant Preston listed several individuals with whom he spoke in preparation, including Mr. Jones. See id. at 10:17–11:1. Plaintiff’s counsel then asked what Defendant Preston and Mr. Jones discussed. See id. at 11:10–11. After conferring with his attorney, Defendant Preston explained that Mr. Jones worked at Frazier & Deeter, a company that performed an inconclusive audit of TTP in 2008, and that Mr. Jones had spearheaded that audit. See id. at 12:1–19. Defendant Preston stated that he spoke with Mr. Jones to refresh his memory about deferred revenue and revenue recognition. See id. at 11:12–20, 12:12–14. This was the only mention of Mr. Jones during Defendant Preston’s deposition.

Upon review, the Court finds that Defendant Preston’s mention of Mr. Jones during his deposition testimony was not sufficient to identify Mr. Jones as “an individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses” as required by the Federal Rules of Civil Procedure. See FED. R. CIV. P. 26(a)(1)(A)(i); see also Preston Dep. at 10:15–12:19. In short, the only reference to Mr. Jones was as an employee of Frazier & Deeter who helped prepare Defendant Preston for his deposition by refreshing Defendant Preston’s memory regarding the terms deferred revenue and revenue recognition. See Preston Dep. at 10:15–12:19. The Court finds that this exchange did not put Plaintiff on notice that Defendants might offer testimony from Mr. Jones. See id.; see also Wright v. Hyundai Motor Mfg. Alabama, LLC, No. 2:08CV61-SRW WO, 2010 WL 4739486, at *3 (M.D. Ala. Nov. 16, 2010) (finding that the plaintiff had not satisfied his disclosure obligation where witnesses were only mentioned in a deposition and there was no suggestion from deposition testimony that the plaintiff intended to offer their testimony); OjedaSanchez v. Bland Farms, LLC, No. 6:08CV096, 2010 WL 2382452, at *2 (S.D. Ga. June 14, 2010) (finding that plaintiffs were not alerted that an individual proffered as a witness possessed discoverable information pertaining to contract negotiations where he was only identified in a deposition as an individual who worked in the defendant’s sales department).

Defendants cite Watts v. Hosp. Ventures, LLC, No. 2:06-CV-1149-MEF, 2008 WL 220798, at *2 (M.D. Ala. Jan. 25, 2008), in support of their argument that they sufficiently identified Mr. Jones through Defendant Preston’s deposition. [See Doc. 105 at 5]. The Court finds the instant case to be distinguishable from Watts. See 2008 WL 220798, at *2. In Watts, the district court found that the plaintiff was sufficiently apprised of a potential witness during the discovery process (despite defendant’s failure to list her in its initial disclosures or supplement its disclosures) because the defendant produced emails between the plaintiff and the witness, and the witness was mentioned in a deposition. See id. Specifically, in the deposition, plaintiff’s counsel directly asked who the witness at issue was, and in response to the deponent’s answer, plaintiff’s counsel stated: “Oh. Maybe I should be talking to her.” See id. Thus, in Watts, it was clear that defendant’s email production and deposition testimony together placed the plaintiff on notice that the witness had discoverable information, as the plaintiff’s counsel so much as acknowledged in the deposition. See id.

In contrast, Defendants’ only proffered basis that Mr. Jones was sufficiently identified is Defendant Preston’s testimony that he spoke to Mr. Jones to refresh his recollection regarding specific terms. See Preston Dep. at 10:15–12:19. Accordingly, the Court finds that Mr. Jones was not “otherwise made known” to Plaintiff during the discovery process so as to relieve Defendants of their duty to supplement their disclosures pursuant to Rule 26(e).

However, the exclusion of an undisclosed witness is not automatic. Instead, the Court must determine whether the failure to disclose was “substantially justified or is harmless.” See FED. R. CIV. P. 37(c); see also Wolfe v. Sec’y, Dep’t of Corr., No. 5:10-CV-663-OC-PRL, 2012 WL 6740732, at *2 (M.D. Fla. Dec. 30, 2012) (“If a party fails to disclose or supplement this information, then ‘the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.’”). The “party failing to comply with Rule 26 bears the burden of showing that its actions were substantially justified or harmless.” See Murdick v. Catalina Marketing Corp., 496 F.Supp.2d 1337, 1345 (M.D. Fla. 2007).

 Regarding the first prong of the nondisclosure test, Defendants argue that their nondisclosure of Mr. Jones was substantially justified because “reasonable minds could differ” as to whether he was sufficiently identified during Defendant Preston’s deposition. [See Doc. 105 at 6]. However, the Court disagrees with Defendants’ contention that Defendant Preston’s deposition testimony regarding Mr. Jones renders the nondisclosure substantially justified.

As recounted above, the brief reference to Mr. Jones during Defendant Preston’s deposition was that he helped refresh Defendant Preston’s memory regarding the terms deferred revenue and revenue recognition in preparation for his deposition. See Preston Dep. at 10:15–12:19. Further, the Court notes that when determining whether to exclude a non-disclosed witness’ testimony, courts in the Eleventh Circuit typically consider three (3) factors: (1) the importance of the testimony; (2) the reasons for the failure to timely disclose the witness; and (3) the prejudice to the opposing party if the witness [is] allowed to testify. See Cooley v. Great Southern Wood Preserving, 138 F. App’x 149, 161 (11th Cir. 2005). Here, Defendants fail to advance any argument as to these three (3) factors and have otherwise not met their burden to establish that their nondisclosure was substantially justified. [See Doc. 105]. Accordingly, Defendants may avoid exclusion of Mr. Jones only if they demonstrate that his nondisclosure was harmless.

Defendants contend that their nondisclosure was harmless because they held an honest belief that disclosure of Mr. Jones was unnecessary because Plaintiff had sufficient knowledge of Mr. Jones after Defendant Preston’s deposition testimony. [See Doc. 105 at 7]. The Advisory Committee Note to Rule 37(c) gives examples of “harmless” violations: “e.g., the inadvertent omission from a Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to list as a trial witness a person so listed by another party. . . .” Thus, “[t]his commentary strongly suggests that ‘harmless’ involves an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.” See Wright v. Hyundai Motor Mfg. Alabama, LLC, No. 2:08CV61-SRW WO, 2010 WL 4739486, at *4 (M.D. Ala. Nov. 16, 2010) (internal citation omitted); see also Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308 (N.D. Ga. 2003) (“A discovery mistake is harmless if it is honest, and is coupled with the other party having sufficient knowledge that the material has not been produced.”).

Here, the Court does not find that Plaintiff had sufficient knowledge that Mr. Jones was a potential witness for Defendants. Therefore, even if Defendants held an honest belief that that disclosure was unnecessary, they have still failed to meet their burden to establish that the nondisclosure was harmless. See Go Med. Indus. Pty, Ltd., 300 F. Supp. 2d at 1308. Additionally, without knowledge of Mr. Jones as a potential witness, Plaintiff did not have an opportunity depose him during the discovery period, and thus, the Court cannot conclude that Defendants’ failure to comply with their disclosure obligation was harmless.

Therefore, pursuant to Rules 26 and 37(c), the Court grants Plaintiff’s motion [Doc. 102] and excludes Mr. Jones from Defendants’ witness list, as well as the other twelve (12) witnesses that Defendants consent to withdraw. See FED. R. CIV. P. 26(a)(1)(A)(i); FED. R. CIV. P. 37(c).

V. “Unopposed Motion to Use Deposition Transcript of Witness Michael Jacobs due to Unavailability” [Doc. 103]

By his motion, Plaintiff seeks permission to use the February 20, 2020 deposition testimony of his named witness, Mr. Michael Jacobs, in lieu of live testimony or testimony via telephone or Zoom, because Mr. Jacobs is unavailable for trial. [See Doc. 103]. Pursuant to Federal Rule of Civil Procedure 32(a)(4), “[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds . . . (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition.” See FED. R. CIV. P. 32(a)(4). “The burden of showing the witness’s unavailability . . . rests with the party seeking to introduce the deposition.” Chao v. Tyson Foods, Inc., 255 F.R.D. 560, 561 (N.D. Ala. 2009). Plaintiff represents that Mr. Jacobs is unavailable because he lives in Wilmington, North Carolina, more than four hundred (400) miles from the Courthouse in Atlanta, Georgia, and refuses to appear either in person or remotely. [See Doc. 103 at 1–2].

Defendants offer to consent to Plaintiff’s request to use Mr. Jones’ deposition transcript only if: (1) Mr. Jacobs continues to refuse to testify either live or via Zoom, and (2) the Parties are not permitted to take a video deposition of him prior to trial. [See Doc. 104 at 1–2]. Additionally, Defendants request that the Court “hold in abeyance any ruling on whether Mr. Jacobs is ‘unavailable’ to afford an opportunity for Mr. Jacobs to decide whether to provide live or remote testimony at trial.” [See id. at 2]. Defendants also suggest that Plaintiff’s request to use the deposition transcript “for any purpose” is overbroad, as Local Rule 16.6(B) provides that a party introducing a witness’ testimony by deposition must “designate the portions of each person’s deposition which will be introduced.” [See id.] (citing LR 16.6(B), NDGa).

In his reply, Plaintiff argues that the Court need not consider Defendants’ “extraneous conditions” because Plaintiff has met his burden, pursuant to Rule 32(a)(4), to show that Mr. Jacobs is unavailable. [See Doc. 108 at 2]. Additionally, Plaintiff claims that Defendants’ present “request” to take a video deposition of Mr. Jones is improper because they included their request in their response brief instead of making a separate motion. [See id.] (citing Local Rule 7.1(B), NDGa).

As an initial matter, based on the representations of Plaintiff’s counsel and her supporting declaration, the Court finds that Mr. Jacobs does not voluntarily agree to testify in person at trial or via Zoom or telephone. [See Doc. 103 at 2, 5]. Other than stating that their counsel is also in communication with Mr. Jacobs, Defendants have made no indication that Mr. Jacobs is likely to change his mind and appear either in person or remotely to testify. [See Doc. 104 at 2]. Thus, the Court will not hold its ruling in abeyance on this point. Therefore, the only question remaining is whether Mr. Jacobs is deemed unavailable because he is located more than one hundred (100) miles from the Courthouse. See FED. R. CIV. P. 32(a)(4). Plaintiff has shown that Mr. Jacobs is located in Wilmington, North Carolina, more than one hundred (100) miles from the Courthouse in Atlanta, and will not be present at trial. [See Doc. 103 at 4–5]. Thus, the Court finds that pursuant to Rule 32(a)(4)(B), Mr. Jacobs is unavailable, and Plaintiff may introduce his deposition testimony for any purpose at trial.[6] 

Accordingly, the Court grants Plaintiff’s motion [Doc. 103] and directs Plaintiff to designate and file on the docket the portions of Mr. Jacobs’ deposition testimony which will be introduced at trial no later than November 30, 2021. Should Defendants object to Plaintiff’s deposition designations, their objections must be filed no later than December 8, 2021.

VI. The Parties’ Joint Discovery Statement [Doc. 111]

The Court now turns to the Parties’ September 14, 2021 Joint Discovery Statement, by which they present two (2) issues to the Court. [See generally Doc. 111]. First, Plaintiff seeks an order compelling Defendants to produce all responsive communications from the Gmail accounts used by Defendants’ principals (some of whom are no longer Defendants’ employees). [See id. at 3]. Second, Plaintiff asks the Court to impose an adverse inference sanction on Defendants for their alleged bad faith destruction of electronically stored information (“ESI”). [See id. at 5]. Defendants argue that neither of Plaintiff’s requests are warranted, and that Plaintiff has failed to meet the burden for such requests. [See id. at 3–4, 6–7]. The Court addresses each discovery dispute in turn.

A. Request to Compel Production of Gmail Account Communications

Plaintiff claims that Defendants have failed to comply with Plaintiff’s request to supplement their discovery responses with emails from Gmail accounts held by Defendant TPP’s principals, including messages from former and current employees. [See Doc. 111 at 2]. In response, Defendants contend that after Plaintiff informed Defendants that the Gmail accounts may contain responsive documents, Defendants searched the accounts held by current employees and produced documents from January 1, 2008, through March 31, 2008, the time period requested by Plaintiff. [See id.] Defendants note that only two (2) current employees had such Gmail accounts: Andrew Preston and Defendant Robert Preston. [See id.]

Defendants argue that it produced all responsive emails from Andrew Preston. [See id. at 4]. However, Plaintiff contends that emails obtained from former employees demonstrate the existence of additional responsive emails. Specifically, Plaintiff states that former employees produced emails to or from Andrew Preston’s Gmail account that Defendants never turned over, despite Defendants’ contention that they produced all responsive emails from Andrew Preston. [See id. at 3 n.4, 4]. As for Defendant Robert Preston, Defendants assert that he lost access to his Gmail account in June 2008 and the Company’s IT personnel were unable to regain access to it at that time. [See id. at 4 n.6]. Additionally, Defendants contend that any responsive emails on Defendant Preston’s inaccessible Gmail account are likely gone due to Google’s Gmail retention policy. [See id.] The Parties dispute whether Google has such a retention policy. [See id.]

As for former employees, Defendants appear to argue that they do not have custody or control over their Gmail accounts, and thus, cannot produce the requested emails from their former employees. [See id. at 5]. Further, Defendants provide that Plaintiff has equal access to Defendants’ former employees, as demonstrated through Plaintiff’s successful subpoenas of responsive documents from several former employees who used Gmail accounts. [See id. at 5 n.5].

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]” FED. R. CIV. P. 26(b)(1). Pursuant to Federal Rule of Civil Procedure 34(a), a party may serve a request for production of documents on any other party to an action. If a party fails to respond to a request for production of documents, the opposing party may file a motion to compel against another party who fails to produce documents within its possession, control, or custody. See FED. R. CIV. P. 34(a)(1), 37(a)(3)(B)(iv). For purposes of Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” See FED.R.CIV. P. 37(a)(4). A party does not have authority to compel the production of documents outside the possession, control, or custody of a party to the case through a motion to compel under Rule 37. See FED. R. CIV. P. 37(a)(3) (permitting a motion to compel a disclosure or a discovery response under Rules 26(a), 30, 31, 33, or 34, which relate to discovery obligations of a party to the litigation, but not permitting a motion to compel discovery under Rule 45, which relates to the subpoena of non-parties).

First, as to Plaintiff’s request to compel Defendants to produce responsive documents from their former employees, the Court agrees that Defendants do not have documents from its former employees’ personal Gmail accounts within their possession, control, or custody. See FED. R. CIV. P. 34(a)(1), 37(a)(3)(B)(iv). Thus, Plaintiff cannot compel Defendants to produce such documents from their former employees. See id. Plaintiff, in turn, argues that Defendants may still have such control over their former employees to require them to produce documents. [See Doc. 111 at 5]. However, in support, Plaintiff cites only to two (2) cases outside of this Circuit, which the Court does not find persuasive. [See id. at 5 n.9] (citing Export-Import Bank of the U.S. v. Asia Pulp & Paper Co., Ltd., 233 F.R.D. 338, 341–42 (S.D.N.Y. 2005); In re Folding Carton Antitrust Litig., 76 F.R.D. 420, 423 (N.D. Ill. 1977)). Further, the Court notes that Plaintiff has already sought and received documents from several of Defendants’ former employees. [See Doc. 111 at 2 n.3, 3 n.4]. Accordingly, the Court will not compel Defendants to produce communications from Gmail accounts held by Defendant TPP’s former employees.

As for Plaintiff’s request to compel Defendants to produce all responsive communications from Gmail accounts held by Defendant TPP’s current employees, the Court first turns to Defendants’ argument regarding Defendant Preston’s Gmail account. Before determining whether to credit Defendants statement that Defendant Preston “lost access” to his account in 2008 and that any emails “are likely long gone” [Doc. 111 at 4 n.6], the Court requires more specific information on Defendants’ efforts to obtain the information. Thus, the undersigned directs Defendants to submit an appropriate affidavit within ten (10) days of the date of this order detailing: the circumstances surrounding the lost access to Defendant Robert Preston’s Gmail account, and the efforts Defendants have undertaken to regain access to his account to retrieve the information. Accordingly, ruling is deferred on this issue.

Next, Plaintiff’s request to compel responsive communications from the Gmail Account held by Andrew Preston is clearly relevant to this action, and Defendants have not argued otherwise. See FED. R. CIV. P. 26(b)(1); [see generally Doc. 111]. It appears that Defendants have not responded fully to Plaintiff’srequest, since Plaintiff proffers that several former employees have produced emails to or from Andrew Preston’s Gmail address that Defendants did not produce. [See Doc. 111 at 3 n.4]. Defendants may not have additional responsive emails in their possession, custody, or control, however, Plaintiff “is entitled to a response under oath stating why [Defendants] do not have those documents.” See Home Legend, LLC v. Mannington Mills, Inc., No. 4:12-CV-0237-HLM, 2014 WL 12498260, at *5 (N.D. Ga. June 11, 2014) (granting the plaintiff’s motion to compel in part and directing the defendant to supplement its responses to certain production requests, stating that if the defendant does not have “some or all of those materials within its possession, custody, or control, it must file a response under oath . . . stating why” it does not have those materials). Accordingly, the Court directs Defendants either to produce all responsive communications or to file a response under oath stating that they do not have this information and providing an explanation why they do not have the communications.

Lastly, to the extent either Party seeks a request for attorney’s fees pursuant to Rule 37, the Court finds that an award of attorney’s fees is not justified at this juncture. [See Doc. 111 at 4 n.7]; see also FED. R. CIV. P. 37(a)(5). The Court consequently will not award attorney’s fees to either Party in connection with Plaintiff’s request to compel production in the Joint Discovery Statement. [Doc. 111].

B. Request for Sanction for Failure to Preserve ESI

Plaintiff requests sanctions for Defendants’ alleged bad faith destruction of ESI predating November 2018. [See Doc. 111 at 6]. Specifically, Plaintiff seeks an adverse inference that any emails destroyed due to Defendants’ failure to place a litigation hold on their automatic deletion program would have been be helpful to Plaintiff’s case. [See id.]

As background, Plaintiff bases his request for a spoliation sanction on Defendants’ failure to suspend its automatic deletion program, which eliminated documents more than ten (10) years old on its servers, until November 2018. [See id. at 2 n.2]. Plaintiff contends that, as a result, Defendants destroyed most of the emails and ESI from the time of the 2006 and 2008 ESOP stock transactions. [See id.]

As an initial matter, it is unclear from the Joint Discovery Statement whether Plaintiff seeks sanctions pursuant to Federal Rule of Civil Procedure 37(e) or the Court’s inherent power principles developed in the common law.[7] [See id. at 5–6]. Upon review of relevant case law in this Circuit, the Court finds that Rule 37(e) governs sanctions in this case because the alleged spoliation involves ESI. See Sosa v. Carnival Corp., No. 18-20957-CIV, 2018 WL 6335178, at *8–10 (S.D. Fla. Dec. 4, 2018) (finding that Rule 37(e), as amended in 2015, and not a court’s inherent authority, governs the issue of spoliation sanctions for the loss of ESI); see also In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-MD-2734, 2018 WL 4856767, at *2 (N.D. Fla. Oct. 5, 2018) (“The law applicable to destruction of emails and other ESI is now controlled by Rule 37(e)”); Alabama Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 740 (N.D. Ala. 2017) (explaining that Rule 37(e) forecloses reliance on inherent authority to sanction spoliation of ESI); Living Color Enter’s, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *4 (S.D. Fla. Mar. 22, 2016) (“If the alleged spoliation involves ESI, then Rule 37(e) applies.”).

Pursuant to Rule 37(e),

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

See FED. R. CIV. P. 37(e). When confronted with a spoliation claim, the Court must first make three (3) preliminary determinations pursuant to Rule 37(e) before turning to subsections (e)(1) or (e)(2).

First, the Court must determine whether the evidence should have been preserved. See FED. R. CIV. P. 37(e). In the Eleventh Circuit, a duty to preserve ESI attaches when litigation was “pending or reasonably foreseeable.” See Living Color Enterprises, Inc., 2016 WL 1105297, at *4. Here, the Court notes that Defendants may have become aware of the prospect of the instant litigation when it entered into a tolling agreement with the U.S. Department of Labor’s Employee Benefits Security Administration in August 2011. [See Doc. 101 at 17]. However, at the very least, Defendants knew of the litigation and had a duty to preserve ESI when the Complaint in this case was filed on December 30, 2014. [See id.] Thus, the allegedly spoliated ESI should have been preserved.

Second, the Court must determine whether the ESI that should have been preserved “is lost.” See FED.R.CIV. P. 37(e). According to the Advisory Committee Notes for Rule 37(e): “Because electronically stored information often exists in multiple locations, loss from one source may be harmless when substitute information can be found elsewhere.” In the instant case, it appears that some of the ESI predating November 2018, including emails, were provided to Plaintiff by another party. [See Doc. 111 at 2 n.2]. However, because Plaintiff notes that most of the Company’s ESI predating November 2018 was destroyed and not replaced by third parties, the Court continues its analysis pursuant to Rule 37(e) and proceeds to the third preliminary question.

The third preliminary question is whether the destroyed ESI can be restored or replaced through additional discovery. See FED. R. CIV. P. 37(e). Here, Plaintiff provides that it conferred with a forensic expert in 2019, who stated the ESI was unlikely to be recovered (even with great expense). [See Doc. 111 at 2 n.3]. Accordingly, the Court finds that the allegedly spoliated ESI cannot be restored or replaced through additional discovery.

Having determined the preliminary questions pursuant to Rule 37(e), the Court notes that Plaintiff’s requested sanction requires a finding of an “intent to deprive another part of the information’s use in the litigation” pursuant to Rule 37(e)(2). See FED. R. CIV. P. 37(e)(2). Plaintiff appears to agree that its requested sanction requires a finding of bad faith on the part of Defendants, either by direct or circumstantial evidence. [See Doc. 111 at 5–6]. Courts in this Circuit have found that the “intent to deprive” standard in Rule 37(e)(2) aligns with the “bad faith” standard previously established by the Eleventh Circuit. See Living Color Enterprises, Inc., 2016 WL 1105297, at *6 n.6 (citing Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1323 (S.D. Fla. 2010)); see also Alabama Aircraft Indus., Inc., 319 F.R.D. 730, 746 (applying the circumstantial evidence of bad faith to find that the defendant’s agents acted with an intent to delete ESI).

Here, Defendants clearly had an obligation to retain the relevant documents and emails (at the very least) after this lawsuit commenced in December 2014, and the Court finds that Defendant TPP’s actions in failing to suspend its automatic document deletion program until November 2018 was negligent and prejudicial to Plaintiff. However, the Court does not find any direct or circumstantial evidence of either an “intent to deprive” or bad faith by Defendants and “the amended Rule 37(e) does not permit an adverse inference instruction or other severe sanctions for negligence.” See Living Color Enterprises, Inc., 2016 WL 1105297, at *6.

In support of a finding of bad faith, Plaintiff points to Defendants’ failure to place a litigation hold, as well as the recent revelation of Gmail accounts held by Defendants’ principals. [See Doc. 111 at 5–6]. However, Plaintiff has provided no evidence that Defendant intentionally deleted the emails or intentionally failed to place a litigation hold until November 2018 to deprive Plaintiff of the information. [See id.]; see also In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1313 (N.D. Ga. 2011) (In hindsight, [the defendant] should not have waited to take these additional document preservation steps. . . . However, without some evidence that [the defendant’s] delay was intentional, its failure to act more quickly does not prove bad faith.”). Further, any purported failure to identify the Gmail accounts is not related to Defendants’ failure to suspend its automatic deletion program until November 2018.[8] [See id.]

Thus, because Plaintiff has not met its burden to establish that Defendants acted with an “intent to deprive” or bad faith, the Court finds that sanctions pursuant to Rule 37(e)(2), including the adverse inference Plaintiff seeks, are not appropriate. See Living Color Enterprises, Inc., 2016 WL 1105297, at *6 (finding that sanctions pursuant to Rule 37(e)(2) should not be imposed when the defendant’s deletion of text messages was negligent, and there was no evidence that he intended to deprive the plaintiff of the text messages or acted in bad faith). Accordingly, the Court denies Plaintiff’s request for an adverse inference. [Doc. 111].

However, this ruling does not necessarily foreclose the possibility that Plaintiff may be able to introduce evidence and arguments regarding Defendants’ failure to retain the ESI at trial. See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d at 1315; Managed Care Solutions, Inc., 736 F.Supp.2d at 1333–34 (providing that although the plaintiff was not entitled to an adverse jury instruction, the circumstances surrounding the defendant’s failure to retain relevant documents may be admissible at trial); Kimbrough v. City of Cocoa, No. 605CV471ORL-31KRS, 2006 WL 3500873, at *6 (M.D. Fla. Dec. 4, 2006) (“Courts have found that loss of evidence may be relevant and admissible for the jury’s consideration, and that adverse inferences arising from the destruction of documents can be argued by counsel in closing.”).

VII. “Motion for Leave to File a Motion for Partial Summary Judgment” [Doc. 116]

Lastly, Plaintiff requests the Court’s leave to file an untimely motion for partial summary judgment, which Defendants oppose. [See Docs. 116, 117, 118]. Specifically, Plaintiff contends that good cause exists to modify the Court’s Scheduling Order and permit the filing of a motion for partial summary judgment due to the recent discovery of new evidence provided by Mr. Brownback related to the 2008 ESOP stock transaction. [See Doc. 116 at 5]. Plaintiff also contends that a ruling on such a motion for partial summary judgment will serve judicial efficiency by narrowing the issues for the scheduled bench trial, thereby minimizing the number of exhibits and witnesses. [See id.]

Pursuant to the Local Rules of this district, “[m]otions for summary judgment shall be filed as soon as possible, but, unless otherwise ordered by the court, not later than thirty (30) days after the close of discovery, as established by the expiration of the original or extended discovery period or by written notice of all counsel, filed with the court, indicating that discovery was completed earlier.” See LR 56.1(D), NDGa. Federal Rule of Civil Procedure 56 similarly provides that “[u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” See FED. R. CIV. P. 56(b). A district court retains “broad discretion in deciding . . . whether to consider untimely motions for summary judgment.” See Enwonwu v. Fulton-DeKalb Hosp. Auth., 286 F. App’x 586, 595 (11th Cir. 2008) (internal quotation marks and citation omitted).

Further, a district court is required to issue a scheduling order that limits “the time to join other parties, amend the pleadings, complete discovery, and file motions.” See FED. R. CIV. P. 16(b)(3)(A). The scheduling order controls “the course of the action” and may be modified only “for good cause and with the judge’s consent.” See Fed. R. Civ. P. 16(b)(4), (d). “Under Rule 16(b)(4), the party seeking to extend a deadline bears the burden of demonstrating good cause for modifying the uniform-scheduling order; otherwise, a party’s lack of diligence and failure to notify the court of delays ‘would render scheduling orders meaningless.’” See McClaney v. Macon Cnty. Bd. of Educ., No. 3:10-cv-219-MHT, 2011 WL 9015, at *2 (M.D. Ala. Jan. 3, 2011) (citing Sosa v. Airprint Sys., 133 F.3d 1417, 1419 (11th Cir. 1998)).

In this case, discovery closed on January 31, 2021, and the deadline to file motions for summary judgment expired on March 2, 2021. [See Doc. 91]. Neither Party moved for summary judgment and the Parties filed their CPTO on March 24, 2021. [See Docs. 94 at 1; 98]. At the time of Plaintiff’s instant motion, discovery had been closed for almost eight (8) months. [Doc. 116]. The case is ready for trial, and the undersigned has already rescheduled the bench trial once. [See Doc. 115] (rescheduling trial to begin on February 22, 2022).

Upon consideration, the Court denies Plaintiff’s motion for leave to file a motion for partial summary judgment. [Doc. 116]. It appears that Plaintiff seeks to file a motion for partial summary judgment regarding both the 2006 and 2008 ESOP stock transactions; however, the newly discovered Gmail evidence only supports Plaintiff’s claim regarding the 2008 ESOP stock transaction and not the 2006 transaction.[9]  [See Doc. 118 at 3–4]. Additionally, Plaintiff’s motion fails to explain why he was unable to file a motion for summary judgment within the thirty (30) days provided by the Local Rules and Federal Rules of Civil Procedure, especially as it relates to the 2006 ESOP stock transaction. [See generally Doc. 116]. Plaintiff also concedes that even if the undersigned were to rule in its favor on all issues in the proposed motion for partial summary judgment, this would not alleviate the need for a bench trial as a genuine issue of material fact exists as to the actual fair market value of TTP on the dates of the two (2) stock transactions. [See Doc. 118 at 4 n.3]. Thus, the Parties would still need to present evidence, including expert testimony, on the issue of damages and the alleged loss to the ESOP. [See id.]

Further, the Court agrees that permitting the untimely motion for partial summary judgment would prejudice Defendants. [See Doc. 117 at 11]. The trial has already been continued once, the pretrial conference is approximately a month away, and the first day of trial is three (3) months away. [See Doc. 115]. If the Court were to allow the requested extension, defense counsel would now have to divert his activities away from trial preparation to address Plaintiff’s partial summary judgment motion. See McClaney, 2011 WL 9015, at *3 (finding that plaintiff’s counsel would be prejudiced if the court permitted the defendant to file a summary judgment motion more than two (2) months after the deadline because it would divert his attention from trial preparation).

Thus, in its broad discretion, the Court denies Plaintiff’s “Motion for Leave to file a Motion for Partial Summary Judgment.” [See Doc. 116]; see also Enwonwu, 286 Fed. App’x at 595 (stating that a district court retains “broad discretion” as to whether to consider untimely motions for summary judgment).

VIII. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’s “Motion to Allow Amendment to his Witness and Exhibit Lists to Include Newly Discovered Evidence.” [Doc. 100]. Additionally, the Court PERMITS Defendants to depose Mr. Brownback prior to trial. The Court DENIES Plaintiff’s “Motion to Compel Defendants to Produce Communications from Undisclosed Gmail Accounts” for failure to comply with the undersigned’s Instructions for Civil Cases. [Doc. 101].

Next, the Court GRANTS Plaintiff’s “Motion to Exclude Thirteen of Defendants’ Listed Witnesses for Failure to Identify them in Initial Disclosures,” including Jeremy Jones. [Doc. 102]. The Court also GRANTS Plaintiff’s “Unopposed Motion to Use Deposition Transcript of Witness Michael Jacobs due to Unavailability.” [Doc. 103]. Further, the Court DIRECTS the Parties to adhere to the deadlines set forth above regarding deposition designations for Mr. Jacobs.

Further, the Court DENIES Plaintiff’s request for an order compelling Defendants to produce documents within the control of their former employees. [Doc. 111]. The Court DIRECTS Defendants to file an affidavit, within ten (10) days of the entry of this order, regarding the circumstances and efforts surrounding the lost access to Defendant Robert Preston’s Gmail account. The Court DIRECTS Defendants to either produce all responsive communications in connection with Andrew Preston’s Gmail account or to file a response under oath, within ten (10) days of this order, stating that they do not have this information and providing an explanation why they do not have Andrew Preston’s communications. Additionally, the Court DENIES Plaintiff’s request within the Joint Discovery Statement for an adverse inference spoliation sanction. [Doc. 111]. Finally, the Court DENIES Plaintiff’s “Motion for Leave to File a Motion for Partial Summary Judgment.” [Doc. 116].

SO ORDERED, this 15th day of November, 2021.

Footnotes

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