*1 This matter is before the Court on Plaintiff's Renewed Motion for Sanctions [DE 63], filed August 29, 2019. Plaintiff/Counter-Defendant GJMS seeks to have Defendants found in contempt of court for violating a discovery order, and seeks dismissal of Defendant Hamstra Builders, Inc.’s counterclaim. Defendants filed a response on September 10, 2019. GJMS filed a reply on September 17, 2019.

On September 26, 2019, District Court Judge James T. Moody entered an Order [DE 66] referring this matter to the undersigned Magistrate Judge for a report and recommendation on the instant Motion pursuant to 28 U.S.C. § 636(b)(1)(B).

I. Background

On October 31, 2018, GJMS filed a motion to compel Defendants to produce numerous documents related to their management of GJMS properties. Defendants did not respond to the motion to compel, and the Court granted the motion on November 16, 2018. After Defendants failed to produce additional documents, GJMS filed an initial motion for sanctions for violating a discovery order. In response to that motion, Defendants essentially argued that they had produced all the documents they have. On June 6, 2019, the Court entered an Opinion and Order finding that Defendants’ document search was inadequate, and compelling Defendants to conduct further searches for documents using additional search terms. In response to that order, Defendants produced several hundred pages of additional documents. GJMS filed the instant motion renewing its request for sanctions, arguing in part that several important documents are still missing.

II. Analysis

When the Court granted GJMS's motion to compel, Defendants were obliged to conduct a “careful and through” search, and produce all documents described in the Court's order within their custody or control. See Novelty v. Mountain View Mktg., Inc., 265 F.R.D. 370, 376 (S. D. Ind. 2009). If a party “fails to obey an order to provide or permit discovery,” the Court “may issue further just orders,” including dismissing the action or treating the failure to obey the order as contempt of court. Fed. R. Civ. P. 37(b)(2)(A).

In this case, GJMS argues that Defendants initially failed to make a timely and adequate search, and that their renewed searches and subsequent production still do not comply with the Court's order compelling them to produce the documents. GJMS identifies two specific issues: that several e-mails from Defendants’ most recent production were not produced with their attachments, and that no supporting documents were produced relating to loans allegedly made to GJMS by Defendant Hamstra Builders, Inc.

Defendants did not address the missing attachments in their response to the instant motion. Having reviewed the corresponding e-mails, the Court finds that the attachments are encompassed by its initial Order compelling production of documents and should be produced. The Court notes that Defendants have given numerous explanations for their failure to produce documents, but most recently, Defendant Mitch van Kley certified that to his knowledge “no document concerning GJMS, LLC has been lost or destroyed” during the time period relevant to this action. Affidavit of Mitch Van Kley [DE 59], ¶ 3. Defendants must either produce these documents or explain why they do not have the attachments to the e-mails they have already produced.

*2 Next, GJMS argues that Defendants’ production is “bereft of any document, note, loan, signed authorization, or other signature” related to funds allegedly loaned to GJMS by Hamstra Builders, Inc. Any of those documents, if they exist, should be produced. However, Defendants addressed these documents specifically in their response to the motion, stating that they “do not exist.” While GJMS argues that it “[s]trains credulity” that source documents from the loan do not exist, GJMS offers no particular evidence beyond its disbelief. Because Defendants have clearly stated their position that these documents do not exist, they do not need to respond further on that issue. Fine Line Distribs., Inc. v. Rymer Meats, Inc., No. 93 C 5685, 1994 WL 376283, at *4 (N.D. Ill. July 15, 1994) (“Plaintiff claims that defendants are not being truthful regarding the existence of these documents but have offered no proof to support this contention .... [D]efendants’ response [that the documents do not exist] is acceptable to the court unless plaintiff establishes the existence of such documents.”); see also Echemendia v. Gene B. Glick Mgmt. Corp., No. 105-CV-00053, 2007 WL 420713, at *2 (N.D. Ind. Feb. 2, 2007) (holding that unless specific evidence is presented that documents are being withheld, “the Court simply has no relief to afford ... at this juncture”).

Finally, the June 6, 2019 Opinion and Order required Defendants to file an affidavit certifying “that they have produced all applicable documents in the possession of another person that Defendants have the legal right to obtain, such as those that would be held by an accountant or other agent.” Op. and Order on Pl.’s Objs. to Affs. [DE 58] at 7. Prior to the supplemental production, Defendant Mitch van Kley certified that “all documents that may be in the possession of [GJMS's] accountants that were supplied [by Defendant Hamstra Builders Inc.] is [sic] believed to have been previously produced.” Affidavit of Mitch Van Kley [DE 59], ¶ 6. Defendants must update that certification to indicate that they have produced all applicable documents that Defendants have the legal right to obtain.

III. Conclusion

For the reasons described above, the Court TAKES UNDER ADVISEMENT Plaintiff's Renewed Motion for Sanctions [DE 63], as referred by [DE 66]. The Court ORDERS Defendants to file a supplemental affidavit by October 15, 2019, consistent with the following instructions:

(1) Defendants must either: certify that they have produced the attachments to the emails documented in Exhibit 3 to Plaintiff's Renewed Motion for Sanctions, or state why they have not or cannot produce those documents and the basis for that position. The affidavit must specifically address the attachments. A generic statement that Defendants have produced all documents, or that no documents were lost or destroyed, is not sufficient;

(2) Defendants must certify that they have produced all applicable documents in the possession of another person that Defendants have the legal right to obtain, such as those that would be held by an accountant or other agent.

GJMS may file a response by October 22, 2019. After reviewing the affidavit and response, the undersigned will issue a further recommendation on GJMS's requests for sanctions. No renewed motion for sanctions is necessary.

SO ORDERED this 1st day of October, 2019.