*1 Plaintiff, a former Olympic speedskater, commenced this action on July 30, 2020, pursuant to New York's Child Victims Act, N.Y. C.P.L.R. § 214-g, alleging that her teammate and mentor, Defendant Andrew Gabel, sexually abused her when she was 15 years old, over a period of seven months when she was training for the 1998 Winter Olympics. See generally Dkt. No. 2, Compl.[1] Since filing their responsive pleadings, the parties have engaged in extensive discovery and motion practice on non-dispositive issues before Magistrate Judge Hummel.

Recently, the parties have engaged in significant disputes involving medical records, testimony, and disclosures from Plaintiff's treating psychiatrist, Dr. Eleni Maloutas, M.D. Pending before this Court are two motions, brought by Defendant United States Olympic & Paralympic Committee (“USOPC”), seeking to (1) strike Plaintiff's expert disclosure of Dr. Maloutas and preclude Dr. Maloutas from testifying as an expert, and (2) sanction Plaintiff for her alleged misconduct in acquiring and producing her medical records from Dr. Maloutas. See Dkt. Nos. 185, 198. The Court acknowledges that, despite these pending motions, the parties are ordered to file all motions for summary judgment and motions pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), by August 11, 2023. The Court expects the parties to adjust any relief requested in such motions in accordance with this Memorandum-Decision and Order.

A. Defendant's motion to strike Plaintiff's treating physician's testimony

The Court first addresses Defendant USOPC's motion to strike Plaintiff's disclosure of Dr. Maloutas and to preclude her from testifying as an expert based on Plaintiff's allegedly untimely and insufficient disclosure of her. See Dkt. No. 185. The parties do not dispute that, pursuant to the Court's text entry dated August 2, 2022, Plaintiff was required to disclose her expert witnesses, if any, by November 30, 2022. The parties agree that, on November 30, 2022, Plaintiff provided a supplemental Rule 26(a)(1) disclosure to Defendant USOPC, in which she indicated her intent to call Dr. Maloutas at trial as Plaintiff's treating psychiatrist “to testify regarding ‘Plaintiff's health.’ ” See Dkt. No. 185 at 1; Dkt. No. 198-4 at 6.

In addition, after several extensions, Plaintiff was further required to disclose any rebuttal expert witnesses by May 15, 2023.[2] See Dkt. No. 176. The parties agree that, on May 15, 2023, Plaintiff served her disclosure of expert witnesses rebutting Defendant USOPC's expert reports, and she identified Dr. Maloutas as a treating physician expert witness under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. See Dkt. No. 193 at 11.[3]

*2 Plaintiff argues that her disclosure was proper and timely because she was not required to disclose Dr. Maloutas as an expert witness by the November 30, 2022 deadline; this is allegedly because Dr. Maloutas is a treating physician, not an expert who is retained and specially employed to provide testimony for her. See Dkt. No. 193 at 8 (quoting Fed. R. Civ. P. 26(a)(2)(B)). However, as Defendant USOPC notes, the Court's Uniform Pretrial Scheduling Order (“Scheduling Order”) indicates otherwise. See Dkt. No. 69.

That Scheduling Order's section entitled “Special procedures for management of expert witnesses,” which the parties received in December of 2021, provides various deadlines and requirements for parties that intend to proffer expert testimony at trial. See id. at 2. For example, it provides “[w]ith regard to experts who are retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony,” the plaintiff shall identify such expert and serve upon other parties the expert's written report pursuant to Rule 26(a)(2)(B). See id. Immediately, following that provision, the Scheduling Order notes the following with respect to treating physician witnesses:

See id.; see also Fed. R. Civ. P. 26(a)(2)(C),

Pursuant to this language in the Scheduling Order, Plaintiff was required to disclose both her expert witnesses and any treating physicians she expected to call as a witness by November 30, 2022. Notably, Plaintiff did not identify Dr. Maloutas as an expert, but she identified her as a treating physician. The parties agree that Dr. Maloutas is not a witness who must provide a written report pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure; instead, she is a witness who must be disclosed pursuant to Rule 26(a)(2)(C). See id.; Fed. R. Civ. P. 26(a)(2)(B), (C). Plaintiff's November 30, 2022 disclosure, in which she simply states that Dr. Maloutas is her “treating physician” who will “testify to Plaintiff's health,” see Dkt. No. 198-4 at 6, indisputably fails to disclose “the subject matter on which [Dr. Maloutas] is expected to present evidence” and “a summary of the facts and opinions to which [she] is expected to testify,” Fed. R. Civ. P. 26(a)(2)(C)(i)-(ii). Accordingly, the Court finds that Plaintiff failed to comply with the Federal Rules of Civil Procedure and the Court's Scheduling Order in her November 30, 2022 disclosure of Dr. Maloutas.[4] Nonetheless, for the reasons discussed below, the Court finds that such error is not so prejudicial that striking Plaintiff's May 15, 2023 disclosure or Dr. Maloutas's testimony is warranted.

*3 Plaintiff further asserts that Dr. Maloutas is a rebuttal expert in that she diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”), and Defendant USOPC's expert does not believe Plaintiff suffers from PTSD. See Dkt. No. 193 at 11; see also Dkt. No. 190 at 19. Pursuant to the language in the Scheduling Order, all parties must identify, and provide disclosures for, all experts who will contradict or rebut on the same subject matter identified by other party's experts no later than 30 days prior to the discovery deadline. See Dkt. No. 69 at 2. As stated above, Magistrate Judge Hummel set that date to provide rebuttal experts as May 15, 2023. See Dkt. No. 176. Plaintiff disclosed Dr. Maloutas as an expert rebuttal witness on that date. See Dkt. No. 193-1. Plaintiff's expert rebuttal witness disclosure was clearly timely.

In that disclosure, Plaintiff indicated that she anticipated that, in addition to what Dr. Maloutas testified to in her April 7, 2023 deposition and noted in her treatment records, Dr. Maloutas would “provide expert testimony regarding her knowledge of the mental health of [Plaintiff], the symptomology seen in patients who have suffered traumatic sexual abuse as teenagers, the care and treatment of such individuals, [Plaintiff's] diagnoses and the clinical significance and prevalence of her symptoms and the consequences of the ‘index event,’ [and] the repeated sexual abuse and emotional abuse committed by [D]efendant Andy Gabel.” See id. at 4. Additionally, Plaintiff asserted that she anticipated Dr. Maloutas would provide “expert opinion testimony” on the following:

In addition to this disclosure, Plaintiff produced all of Dr. Maloutas's treatment records to Defendants by February 24, 2023, and Defendant USOPC had the opportunity to question Dr. Maloutas at her deposition in April of 2023 about her treating relationship with Plaintiff.[5] Notably, when Magistrate Judge Hummel gave Defendant USOPC an opportunity to re-depose Dr. Maloutas to ask additional questions after Plaintiff submitted the expert witness disclosure on May 15, 2023, Defendant USOPC declined to do so and instead pursued this motion to strike; and, thus, it appears Defendant USOPC is satisfied with the testimony and opinions Dr. Maloutas offered in her deposition. See Dkt. No. 190 at 20.

Furthermore, to the extent that Defendant USOPC argues that the above-quoted language in the disclosure fails to provide Dr. Maloutas's opinions, the Court finds such contention disingenuous. The Court notes that Dr. Maloutas's opinions are likely included in her deposition testimony,[6] and the disclosure plainly provides some of Dr. Maloutas's opinions on its face. For example, the disclosure states that Plaintiff suffered “psychiatric injuries” that were the “result” of Defendant Gabel's alleged repeated sexually and emotionally abusing her. See Dkt. No. 193-1 at 4.

*4 For all of these reasons, the Court finds that Plaintiff's expert rebuttal disclosure is both timely and sufficient to identify Dr. Maloutas as an expert witness on rebuttal in response to Defendant USOPC's expert's claim that Plaintiff does not suffer from PTSD. The Court notes that the question of whether Dr. Maloutas qualifies as an expert to testify on the issue of PTSD is not before the Court.[7] Even if Dr. Maloutas does not qualify as an expert, Plaintiff may call Dr. Maloutas as a rebuttal witness on the limited facts that she diagnosed Plaintiff with and treated her for PTSD. Similarly, Dr. Maloutas may testify as a fact witness based on her diagnosis and treatment of Plaintiff and her belief that Defendant Gabel's alleged assaults of Plaintiff and her status as an assault victim affected her future relationships. As none of Defendant USOPC's expert witnesses opined on this topic, however, the Court finds it is inappropriate for Dr. Maloutas to opine on it as an expert rebuttal witness.

“[T]reating physicians are considered fact witnesses so long as they testify to facts learned and opinions formed based on personal knowledge obtained from treatment of the party, as opposed to opinions that arise from examination of outside sources.” Buczakowski v. Crouse Health Hosp., Inc., No. 5:18-CV-330 (LEK/ML), 2022 U.S. Dist. LEXIS 9898, *7 (N.D.N.Y. Jan. 19, 2022) (Kahn, S.J.) (citing Spencer [v. Int'l Shoppes, Inc.], 2011 U.S. Dist. LEXIS 106402, 2011 WL 4383046, at *3 [(E.D.N.Y. Sept. 20, 2011)] (citing Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996))); see also Smith v. Fricke, No. 9:17-cv-00244 (BKS/TWD), __ F. Supp. 3d __, 2022 U.S. Dist. LEXIS 186120, *10 (N.D.N.Y. Oct. 12, 2022) (Sannes, C.J.) (holding that “[a] treating physician may ‘offer opinion testimony on diagnosis, treatment, prognosis, and causation, but solely as to the information he[ ] has acquired through observation of the [p]laintiff in his[ ] role as a treating physician.’ ” (quotation omitted)). Courts within the Second Circuit have found that “[o]pinions formed during consultation ‘are considered an explanation of treatment[.]’ ” Ali v. Connick, No. 11-CV-5297 (NGG) (VMS), 2016 U.S. Dist. LEXIS 67466, *19 (E.D.N.Y. May 23, 2016) (quoting Turner v. Delta Air Lines Inc., No. 06-CV-1010, 2008 U.S. Dist. LEXIS 5528, 2008 WL 222559 (NG) (CLP), at *1 (E.D.N.Y. Jan. 25, 2008)). “Specifically, a treating physician who testifies as a fact witness can opine on ‘causation, severity, disability, permanency and future impairments’ as part of the doctor's explanation of treatment.” Id. (quoting Puglisi [v. Town of Hempstead Sanitary Dist. No. 2, No. 11-CV-0445 (PKC)], 2013 U.S. Dist. LEXIS 111972, 2013 WL 4046263, at *6 [(E.D.N.Y. Aug. 8, 2013)] (quoting Williams v. Regus Mgmt. Grp., No. 10-CV-8987 (JMF), 2012 U.S. Dist. LEXIS 68551, 2012 WL 1711378, at *3 (S.D.N.Y. May 11, 2012))).

“However, the testimony of a treating physician who has not been declared an expert under Rule 26 or complied with its disclosure requirements is not without bounds.” Id. The treating physician may not testify “ ‘with regard to another physician's records, opinion or recommendations ... because this information cannot be characterized as being within the personal knowledge of [the treating physician].’ ” Id. (quoting Motta v. First Unum Life Ins. Co., No. 09-CV-3674 (JS) (AKT), 2011 U.S. Dist. LEXIS 105524, 2011 WL 4374544, at *4 (E.D.N.Y. Sept. 19, 2011) (other citation omitted)). “Equally off limits is ‘information acquired during preparations for [ ] testimony at trial.’ ” Id. at *20 (quoting Puglisi, 2013 U.S. Dist. LEXIS 111972, 2013 WL 4046263, at *6).

With this framework in mind, the Court declines Defendant USOPC's request to preclude Dr. Maloutas's “expert” testimony and disclosure in their entirety as “highly prejudicial.” See Dkt. No. 185 at 5. As stated above, knowing that Dr. Maloutas is Plaintiff's treating psychiatrist – and having known this at least since Plaintiff's disclosure on November 30, 2022, if not since her initial disclosure in December of 2021 – and that a treating physician may testify as to her opinions on “causation, severity, disability, permanency and future impairments” as part of her explanation of diagnoses and treatment, Defendant USOPC was able to fully question Dr. Maloutas on these opinions at her April 7, 2023 deposition and declined an opportunity to re-depose her. Additionally, Plaintiff's November 30, 2022 disclosure provided Defendant USOPC with sufficient notice that she intended to call Dr. Maloutas as a treating physician before the ultimate May 1, 2023 deadline to close discovery,[8] and Defendant USOPC could have requested additional information if necessary before that date.

*5 The Court further rejects Defendant USOPC's argument that “precluding Dr. Maloutas from testifying as an expert would not deprive Plaintiff of testimony on issues important to her case.” See Dkt. No. 185 at 5. As Dr. Maloutas treated Plaintiff for at least seven years for psychological issues, and Plaintiff is seeking to hold Defendant USOPC liable for both negligent and intentional infliction of emotional distress, see Dkt. No. 2 at ¶¶ 108-117, the Court finds that precluding Dr. Maloutas from testifying about her opinions based on her diagnosis and treatment of Plaintiff would certainly deprive Plaintiff of relevant testimony that is critical to her case.

The Court also refuses Defendant USOPC's request that it preclude Dr. Maloutas's testimony because “Plaintiff has no excuse for her failure to properly disclose Dr. Maloutas as an expert by the November 30, 2022 deadline.” See Dkt. No. 185 at 5. Although the Court finds that Plaintiff's November 30, 2022 disclosure of Dr. Maloutas was insufficient, the Court further notes that both parties have struggled with complying with Federal and Local Rules without excuse throughout the time that this action has been pending, despite repeated warnings from the Court.[9]

In sum, the Court finds that, although Plaintiff's November 30, 2022 disclosure of Dr. Maloutas was not sufficient pursuant to Rule 26(a)(2)(C), Dr. Maloutas may testify at trial as Plaintiff's treating physician with respect to her opinions insofar as they pertain to her diagnosis and treatment of Plaintiff. Furthermore, to the extent that Plaintiff timely and sufficiently sought to produce Dr. Maloutas as an expert rebuttal witness on the issue of Plaintiff's PTSD, she may do so provided that the Court is ultimately satisfied that Dr. Maloutas qualifies as such an expert. Accordingly, the Court denies Defendant USOPC's motion to strike Dr. Maloutas's testimony and disclosure. See Dkt. No. 185.

B. Defendant's motion for sanctions

The Court next addresses Defendant USOPC's motion for sanctions – including monetary sanctions and an order limiting Plaintiff's rebuttal expert reports to information produced before November 30, 2022 – based on its allegation that Plaintiff engaged in misconduct during discovery. See Dkt. No. 198. Defendant USOPC alleges that Plaintiff did not request a single medical record until six months after Defendant USOPC demanded them, it twice sought Magistrate Judge Hummel's intervention to force Plaintiff to produce her medical records, and Plaintiff represented to Defendant USOPC and the Court that she would produce all of her medical records by November 30, 2022, which did not happen. See Dkt. No. 198-1 at 2. Defendant USOPC also accuses Plaintiff of misrepresenting in a discovery response, dated January 5, 2023, that she had produced all medical records in her possession, custody, or control, even though this was not true. See id. Furthermore, Defendant USOPC alleges that Plaintiff sought only those medical records that she and her counsel believed would support her claim for damages, and Plaintiff made incomplete and contradictory representations to Defendants and the Court about her efforts to obtain her medical records. See id. at 2-3. In considering Defendant USOPC's motion, the Court has reviewed the parties’ submissions, which appear to reveal the following timeline of events with respect to Plaintiff's obtaining her records from Dr. Maloutas.

Plaintiff first served her Rule 26 initial disclosures on Defendant USOPC on December 9, 2021, at which time she disclosed 24 medical providers, including Dr. Maloutas. See Dkt. No. 198-3 at 5. In February of 2022, Defendant USOPC issued its document requests from Plaintiff. See Dkt. No. 198-1 at 4. According to Plaintiff, around April of 2022, the attorney responsible for discovery requests in her case left her counsel's law firm; thus, she did not make any requests for her medical records from Dr. Maloutas and did not produce those records. See Dkt. No. 214 at 12 (citing Dkt. No. 214-3 at ¶ 3). The parties then point to Defendant USOPC's status report, filed with the Court on August 1, 2022, in which it informed the Court that it still had not received medical records from Plaintiff for her treatment with Dr. Maloutas. See Dkt. No. 84. Plaintiff asserts that she executed a HIPAA release that same day. See Dkt. No. 214 at 6 (citing Dkt. No. 214-1 at 4-5).

*6 Plaintiff admits that, on August 4, 2022, her counsel faxed her HIPAA release and a request for medical records to Mount Sinai Hospital for the first time. See id. (citing Dkt. No 214-1 at 8-13). After not getting any response to that request, Plaintiff's counsel then mailed, via FedEx, the release and request to Mount Sinai Hospital on September 16, 2022. See id. (citing Dkt. No. 214-1 at 15). That same day, Plaintiff texted Dr. Maloutas directly regarding her medical records. See id. at 7 (citing Dkt. No. 214-2 at 4). According to Plaintiff, on September 22, 2022, counsel received a letter that Mount Sinai Hospital could not process Plaintiff's request for records because she was seen at Mount Sinai Beth Israel (“Beth Israel”). See id. (citing Dkt. No. 214-1, Ex. D).[10]

On September 28, 2022, Plaintiff informed Magistrate Judge Hummel that the parties had reached an agreement in which she would produce all documents relating to her damages, as listed in her initial disclosures, no later than November 30, 2022. See Dkt. No. 198-5 at 4. When Magistrate Judge Hummel asked Plaintiff's counsel why they needed until November 30th when the case had been pending since July of 2020, counsel explained that Plaintiff had difficulty retaining an expert and, although she “sent subpoenas out,” there were issues with some of the medical providers, such as that “the addresses are no longer valid” or the “providers are no longer in business.” See id. at 15.

Following this conference, Plaintiff's counsel sent an updated HIPAA release, authorizing release of documents from Beth Israel, to Mount Sinai Hospital on October 5, 2022. See Dkt. No. 214 at 6 (citing Dkt. No. 214-1 at 18). On October 11, 2022, Plaintiff received a letter from Mount Sinai Hospital instructing her to submit her request for records directly to Beth Israel. See id. (citing Dkt. No. 214-1 at 27). Two days later, October 13, 2022, Plaintiff personally emailed and texted Dr. Maloutas about retrieving her records again, and she attached counsel's October 5th letter to Mount Sinai Hospital. See id. at 7 (citing Dkt. No. 214-2 at 6). In her text on that date, Plaintiff also erroneously told Dr. Maloutas that the psychiatrist could write a letter containing a treatment summary in lieu of providing her medical records, which would assist Plaintiff's expert witness in preparing his report. See id. (citing Dkt. No. 214-2 at 8).

On October 19, 2022, Plaintiff's counsel resubmitted her release and request for records to Beth Israel. See id. at 6 (citing Dkt. No. 214-1 at 29-40). In the meantime, Plaintiff continued to personally send follow up texts to Dr. Maloutas on October 26, 2022, and November 10, 2022. See id. at 8 (citing Dkt. No. 214-2 at 10). Five days after her last follow-up text, on November 15, 2022, Dr. Maloutas sent Plaintiff a five-page treatment summary. See id. (citing Dkt. No. 214-4). The parties agree that Plaintiff turned that summary over to Defendant USOPC on November 30, 2022, which was Plaintiff's disclosure deadline. See id. (citing Dkt. No. 214-3 at ¶ 6). Defendant USOPC contends that Plaintiff failed to inform it that the production was incomplete because it omitted years of records of her treatment with Dr. Maloutas. See Dkt. No. 225 at 2.

On December 5, 2022, Plaintiff's counsel received some of Plaintiff's records from Beth Israel; however, the records did not include those from her treatment with Dr. Maloutas. See id. at 7 (citing Dkt. No. 214-1 at 42). Defendant USOPC notes that, on January 5, 2023, Plaintiff submitted her response to its third set of requests for production. See Dkt. No. 198-6. Defendant USOPC requested “all Documents reflecting [Plaintiff's] medical, psychiatric, psychological, and/or pharmacological diagnoses and treatment, from January 7, 1994 to present,” and Plaintiff responded that she “has produced all non-privileged documents responsive to [that request] in her possession, custody, or control.” See id. at 7.

*7 On January 27, 2023, Plaintiff personally texted Dr. Maloutas again and asked about the process for obtaining records and having them sent to her personally rather than sending them to her counsel first. See Dkt. No. 214 at 8 (citing Dkt. No. 214-2 at 12). Plaintiff continued to follow up with Dr. Maloutas via text message after this request, sending additional questions about obtaining her records on February 3, 2023, February 6, 2023, February 8, 2023, and February 13, 2023. See id. at 8-9 (citing Dkt. No. 214-2 at 12, 14).

On February 16, 2023, Plaintiff texted Dr. Maloutas and told her that her counsel was meeting with Magistrate Judge Hummel about the medical records, and Dr. Maloutas responded that she would get them to Plaintiff “in the next few days.” See id. at 9 (citing Dkt. No. 214-2 at 14). At that time, Plaintiff also mentioned in her text message that Defendant USOPC already issued a subpoena for those records from Dr. Maloutas on November 16, 2022, and Dr. Maloutas said she had never received the subpoena. See id. (citing Dkt. No. 214-2 at 16). A few days later, on February 21, 2023, Plaintiff sent a release for records to Dr. Maloutas via text message and email. See id. (citing Dkt. No. 214-2 at 16, 18, 20). Dr. Maloutas then sent an email to Plaintiff personally on February 23, 2023, containing some of her medical records, which Plaintiff immediately turned over to Defendant USOPC. See id. (citing Dkt. No. 214-2 at 22; Dkt. No. 214-3 at ¶ 9). The next day, February 24, 2023, Magistrate Judge Hummel issued an order requiring Dr. Maloutas to produce all records relating to Plaintiff's treatment by March 8, 2023. See Dkt. No. 153. Finally, that same day, Dr. Maloutas produced the remaining records to Plaintiff's counsel, who immediately produced them to Defendant USOPC. See id. (citing Dkt. No. 214-3 at ¶ 10).

Defendant USOPC contends, however, that Plaintiff's improper conduct did not end at that point. See Dkt. No. 198-1 at 11. Defendant USOPC further asserts that, on February 17, 2023, Plaintiff represented to the Court that she had requested records from all 24 providers in her initial disclosures; but, on March 10, 2023, she represented that she had not requested records from six of those 24 providers. See id. Defendant USOPC argues that Plaintiff later changed her story again, representing on March 20, 2023, that counsel requested records from the medical providers listed in her initial disclosures; but, on March 31, 2023 in a court-ordered accounting of her medical records production, Plaintiff stated that she had not requested records from two providers in her initial disclosures and omitted to mention 14 of the providers from those disclosures in her accounting. See id. (citing Dkt. No. 178). Lastly, Defendant USOPC notes that Plaintiff once again stated she had requested records from all 24 medical providers in her initial disclosures on May 23, 2023. See id. “In other words,” Defendant USOPC argues, “Plaintiff changed her answer four times” in a three-month period “as to whether she had requested records from all of the medical providers identified in her disclosures.” See id. at 12.

The Court also notes that, in ordering Plaintiff's accounting of all of the medical records she has received, not received, or requested, Magistrate Judge Hummel informed Plaintiff's counsel that it was “difficult to understand” why counsel did not request certain medical records and why they still had not been produced several years into this litigation. See Dkt. No. 177 at 15. Magistrate Judge Hummel notably remarked that “[t]he fact that [the unrequested records] may not be particularly supportive or used by you with respect to your damage request or calculation doesn't mean that the defendants aren't entitled to those records.” See id. at 15-16.

*8 Based on this cumulation of evidence, Defendant USOPC informed Magistrate Judge Hummel during the parties’ next conference before him that it wished to make a motion seeking to impose sanctions, and the Court granted it leave to do so. See Dkt. No. 190 at 15-16. In its Notice of Motion before this Court, Defendant USOPC indicates that it seeks sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure and pursuant to 28 U.S.C. § 1927. See Dkt. No. 198. The Court first turns to Rule 37.

Rule 37 permits a party to compel disclosure of documents in discovery and provides various remedies. If a court grants a motion to compel disclosure, “or if the disclosure or requested discovery is provided after the motion was filed[,]” Rule 37(a) provides that “the court must, after giving an opportunity to be heard, require ... the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). Furthermore, pursuant to Rule 37(b)(2), when an action is pending before a district court, that court may take various actions against the disobedient party, such as staying further proceedings until the order is obeyed, dismissing the action in whole or part, or rendering a default judgment against the disobedient party. See Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to” those actions, the Rule further provides that “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).

Subsection (c) of Rule 37 further provides the following remedy:

Fed. R. Civ. P. 37(c)(1)(A)-(C).

“The Court has discretion in applying Rule 37(c)(1) to preclude evidence.” Cooper Crouse-Hinds, LLC v. City of Syracuse, No. 5:16-cv-1201 (MAD/ATB), 2022 U.S. Dist. LEXIS 60491, *23 (N.D.N.Y. Mar. 31, 2022) (D'Agostino, J.) (citing Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006)). “The Second Circuit has directed courts to consider the following factors when determining whether to preclude evidence under Rule 37(c)(1):

Id. (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (alterations in original)).

In this case, Plaintiff argues that her delayed disclosure of the medical records was substantially justified. See Dkt. No. 214 at 10-13. “ ‘A party's failure to provide discovery is substantially justified if a genuine dispute exists or if there is an objectively reasonable basis for the failure’ ... ‘such as where a party believed caselaw supported its position ....’ ” Mills v. Steuben Foods, Inc., No. 19-CV-1178WMS(F), 2023 U.S. Dist. LEXIS 72292, *4 (W.D.N.Y. Apr. 25, 2023) (internal quotations and citations omitted). “[T]he test for substantial justification is ‘determined by an “objective standard of reasonableness and does not require that the party have acted in good faith[.]’ ”” Id. (quoting Underdog Trucking, L.L.C., 273 F.R.D. at 377 (quoting Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262 (S.D.N.Y. 1995) (citing Pierce, 487 U.S. at 565))). Relatedly, “ ‘[a]n award of attorneys fees may be unjust where the party's failure was based on factors beyond the party's control.’ ” Id. at *4-*5 (quoting Scott-Iverson, 2016 U.S. Dist. LEXIS 50420, 2016 WL 1458239, at *3).

*9 No genuine dispute exists that would support Plaintiff's failure to disclose Dr. Maloutas's records upon Defendant USOPC's request months earlier. Although Plaintiff appears to argue that her failure to disclose those records in their entirety until Magistrate Judge Hummel directed Dr. Maloutas to produce them was reasonable and based on factors beyond her control, the Court finds that that is not objectively so, and her explanation for her failure is lacking. Plaintiff readily admits that she never even completed a HIPAA authorization for release of records or attempted to secure the records until after Defendant USOPC filed its status report on August 1, 2022. Although Plaintiff states that the attorney responsible for responding to discovery requests left counsel's law firm around April of 2022, that fails to explain why requests were not made immediately after Defendant USOPC issued its demand for disclosures in February of 2022, or why any of the nine other attorneys representing Plaintiff in this action could not have responded to the requests. Additionally, after Plaintiff's counsel learned that Plaintiff had been treated at Beth Israel and not at Mount Sinai Hospital, they sent Plaintiff's updated HIPAA release to Mount Sinai Hospital again, instead of to the records department associated with Beth Israel, as Mount Sinai Hospital instructed it to do. There is no explanation for this error. Plaintiff's counsel also points out that Plaintiff, individually, reached out to Dr. Maloutas repeatedly about obtaining a treatment summary and her records. While this certainly shows Plaintiff's efforts to obtain her records, it is unclear to the Court why Plaintiff's counsel did not simply follow the proper procedure – i.e., sending Plaintiff's signed HIPAA release of records for all medical records, including psychiatric records, from Beth Israel to the records department associated with Beth Israel – in response to Defendant USOPC's demand for disclosure. Accordingly, the Court finds that Plaintiff's actions were not substantially justified, and her conduct weighs in favor of sanctions.

The Court further notes, however, that Dr. Maloutas's testimony and medical records from treating Plaintiff are likely critical to her claim for emotional damages. As discussed above, Dr. Maloutas treated Plaintiff for psychological issues for approximately seven years, she was Plaintiff's only treating psychiatrist, and she diagnosed Plaintiff with psychological injuries that are in dispute, such as whether Plaintiff suffers from PTSD. As Dr. Maloutas's testimony and records are highly probative of Plaintiff's claims in this action, the Court finds that this factor weighs against precluding the evidence.

Defendant USOPC argues that it suffered substantial prejudice because it prepared for and began conducting “Plaintiff's January 2023 deposition not knowing that key medical records were missing.” See Dkt. No. 225 at 7. Defendant USOPC further contends that it was forced to reschedule the last day of Plaintiff's deposition twice and to reschedule its psychiatric expert's independent medical examination of her at considerable expense due to Plaintiff's failure to disclose her records. See Dkt. No. 198-1 at 9. Defendant USOPC asserts that such “costs are in addition to the many hours” that its counsel “spent drafting subpoenas to Plaintiff's medical providers, serving those subpoenas, attempting to obtain HIPAA releases from Plaintiff in connection with the subpoenas, communicating with providers about the subpoenas, communicating with opposing counsel about the missing records, and repeatedly briefing and arguing the issue to the Court.” See id. Additionally, Defendant USOPC contends that “Plaintiff's failure to produce Dr. Maloutas’[s] records also required extensions of both the expert disclosure and fact discovery deadlines.” See id. (citing Dkt. No. 176). Although the Court finds that some of Defendant USOPC's concerns were mitigated – such as that it was able to finish Plaintiff's deposition following receipt of the medical records – it acknowledges that Defendant USOPC has suffered great expense in attempting to obtain Dr. Maloutas's records and prepare for dispositive motions and trial in this matter. Finally, as the parties are acutely aware, this action has been pending for three years, and a continuance would not only prejudice Defendant USOPC but would only further delay any resolution of this case.

Accordingly, because the Court finds that Plaintiff was not substantially justified, Rule 37 clearly requires that the Court must order her, her attorneys, or both to pay Defendant USOPC's reasonable expenses, including attorney's fees, in attempting to obtain Dr. Maloutas's treatment records of her. See Fed. R. Civ. P. 37(a)(5)(A), (b)(2)(C). The Court does not find, however, that Plaintiff's errors were not so egregious compared to the relevancy and importance of those records and Dr. Maloutas's testimony that preclusion of evidence, including Dr. Maloutas's testimony, Plaintiff's medical records, or other testimony relying on such, is warranted under Rule 37(c)(1). Thus, the Court grants Defendant USOPC's motion for sanctions pursuant to Rule 37 to the extent that Plaintiff's counsel must pay Defendant USOPC's reasonable expenses, including attorney's fees, in obtaining the records at issue, but denies any further relief.

*10 Finally, Defendant USOPC further seeks sanctions pursuant to 28 U.S.C. § 1927, which provides that “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1972. This statute “authorizes sanctions ‘when the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose,’ and upon ‘a finding of conduct constituting or akin to bad faith.’ ” Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (quoting 60 E. 80th St. Equities, Inc. v. Sapir (In re 60 E. 80th St. Equities, Inc.), 218 F.3d 109, 115 (2d Cir. 2000) (internal quotation marks omitted)). Although Plaintiff's conduct was inexcusable and unreasonable, the Court does not find that Defendant USOPC has established that Plaintiff's counsel acted intentionally and in bad faith in failing to produce her psychiatric treatment records until February 23, 2023. Therefore, the Court rejects Defendant USOPC's request that it impose sanctions on this ground.

After carefully considering the entire file in this matter, the parties’ submissions, and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant USOPC's motion to strike Plaintiff's Rule 26(a)(2)(C) disclosure of Dr. Eleni Maloutas, M.D., and her testimony insofar as she seeks to testify as a treating physician, see Dkt. No. 185, is DENIED;[11] and the Court further

ORDERS that Defendant USOPC's motion for sanctions, see Dkt. No. 198, is GRANTED to the extent that Plaintiff's counsel, attorneys from Barnes & Thornburg LLP, must pay Defendant USOPC's reasonable expenses, including attorney's fees, incurred in attempting to procure Plaintiff's medical records from her treatment with Dr. Maloutas pursuant to Rule 37 of the Federal Rules of Civil Procedure; and the Court further

ORDERS that Defendant USOPC must submit an accounting of its reasonable expenses and attorney's fees, including time sheets indicating the time expended by each attorney on this issue, as well as whether each such attorney is a partner or associate and his or her number of years of practice, and receipts for any expenses it seeks to recover with respect to its attempts to obtain those records on or before August 18, 2023.[12] Plaintiff may file a response to Defendant USOPC's submissions by August 25, 2023.

IT IS SO ORDERED.