*1 In this “lemon law” action, Jesse Santos Teixeira (“Plaintiff”) has alleged that BMW NA (“Defendant”) breached its express and implied warranties for a BMW X5 M Competition that Plaintiff has under lease. ECF Docket Nos. (“Dkts.”) 15-1 at 9–10; 1-1 at 11–14. The Court has detailed the background extensively in its prior order. Dkt. 48 at 1–4.

Relevant here is that, on April 24, 2023, the Court granted Plaintiff's March 14, 2023 Motion to Compel (“First Motion to Compel”) in full, ordering Defendant to provide further discovery by May 5, 2023 and to pay Plaintiff's reasonable expenses incurred in bringing the Motion to Compel. Dkt. 22. On May 9, 2023, Plaintiff filed their first Motion for Sanctions (“First Motion for Sanctions”). Dkt. 28. Plaintiff argued that Defendant had yet to provide the discovery compelled by the April 24 order and sought sanctions in the form of issue preclusion on affirmative defenses 6–10 and reasonably incurred fees and expenses. Id.

On June 8, 2023, the Court denied Plaintiff's First Motion without prejudice and set further deadlines for the completion of discovery. Dkt. 48.

On August 22, 2023, Plaintiff filed a second Motion for Sanctions (“Second Motion for Sanctions”). Dkt. 63. Plaintiff alleges that Defendant has still failed to comply with the Court's prior orders. Id. at 7–13. Plaintiff seeks an order enforcing the Court's prior orders, awarding evidentiary sanctions, and reasonable costs and fees. Id. at 13–14.

On August 30, 2023, Defendant filed an Opposition to the Second Motion. Dkt. 64 (“Opposition”). Defendant argues that it has produced the documents that “Plaintiff needs to prove his alleged causes of action” and otherwise has “substantially complied” with the Court's orders. Id. at 4–14. Defendant also argues it has not otherwise engaged in discovery misconduct that would warrant sanctions. Id. at 14–17.

On September 6, 2023, Plaintiff filed a Reply. Dkt. 65 (“Reply”). Plaintiff disputes that Defendant has substantially complied with the Court's orders, again identifying the specific documents missing from Defendant's production as well as their relevance to defending against Defendant's defenses. Id. at 2–8.

On September 6, 2023, Plaintiff filed a Motion to Compel Deposition of Defendant, before the Court on the parties' joint stipulation. Dkt. 66. Defendant filed an additional Opposition on September 13, 2023. Dkt. 68.

The Court finds these matters suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. The matters thus stand submitted.

A. MOTION FOR SANCTIONS

1. Applicable Law

Federal Rule of Civil Procedure 37(b)(2)(A) authorizes a district court, in its discretion, to enter sanctions against a party who violates a discovery order. Fed. R. Civ. P. 37(b)(2)(A). These sanctions may include “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.” Fed. R. Civ. P. 37(b)(2)(A)(i). Rule 37(b)(2)(A)(ii) also permits courts to issue an order “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii). Finally, Rule 37(b)(2)(A)(iii) permits the Court to strike pleadings either in whole or in part. Fed. R. Civ. O. 37(b)(2)(A)(iii).

*2 Rule 37(b)(2) sanctions are limited by two considerations: the sanction must be “just” and “specifically related to the particular claim which was at issue in the order to provide discovery.” Guifu Li v. A Perfect Day Franchise, Inc, 281 F.R.D. 373 (N.D. Cal. 2012) (citing Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). Unless a proposed sanction implicates dismissal of an action, the court need not identify “willfulness, fault, or bad faith[,]” even if the sanction is severe. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also Sas v. Sawabeh Info. Servs., No. CV 11-4147-MMM (MANx), 2015 WL 12711646, at *6 (C.D. Cal. Feb. 6, 2015) (“If the sanction ordered is less than and/or is not tantamount to dismissal, the disobeying party's noncompliance need not be proven to be willful or in bad faith.”). Relatedly, provided that the sanction is not tantamount to dismissal, it is not necessary to apply the Ninth Circuit's five-factor test for terminating sanctions before issuing issue preclusion sanctions. See id. at *9–10; see also In re Tan, No. ADV. 00-04199, 2007 WL 7541007, at * 6 n.19 (9th Cir. BAP Sept. 28, 2007) (noting the court must weigh the five factors for “dispositive sanctions” such as dismissal, default, and their functional equivalents (“i.e., refusing to allow the disobedient party to support or oppose designated claims or defenses”)). “A Magistrate Judge may recommend such nonmonetary sanctions by report and recommendation to the District Judge presiding over the case.” RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 493 (C.D. Cal. 2022).

Instead of, or in addition to, these sanctions, “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).

2. Analysis

Here, the first relevant question is whether Defendant has violated this Court's discovery orders. The Court finds that Defendant remains in violation of this Court's April 24, 2023 and June 8, 2023 orders.

In its April 24, 2023 order, the Court granted Plaintiff's Motion to Compel in full, ordering Defendant to serve all further responses without objection by May 5, 2023, and pay Plaintiff's reasonable expenses incurred in making the Motion. Dkt. 22. In coming to this conclusion, the Court noted that Defendant had wholly failed to contest the relevance of Plaintiff's requests, which was explained, in detail, in Plaintiff's counsel's several-hundred-page declaration. Id. at 7. In fact, “[o]ther than their argument concerning Plaintiff's alleged failure to fully meet and confer, Defendant offer[ed] only the conclusory statement that Plaintiff's discovery [was] grossly disproportional to the needs of the case, along with a citation to Fed. R. of Civ. P. 26(b)(1).” Id. at 6–7. The Court found that Plaintiff had satisfied their meet and confer obligations, evidenced again by Plaintiff's counsel's extensive declaration, which detailed his extensive efforts to confer with Defendant. Id. at 4–6.

As the Court found in its June 8, 2023 order, Defendant, at that point, had essentially admitted they had intentionally failed to comply with the Court's April 24, 2023 order; Defendant openly continued to oppose the scope of the order, and had filed a “Motion for Relief” with the district judge. Dkt. 48 at 4–5. Regardless, though the Court had already issued monetary sanctions in the form of costs and fees in its April 24, 2023 order, the Court declined to issue further sanctions in its June 8, 2023 order. Id. at 5–6. In coming to this conclusion, the Court relied on Defendant's assertion that it had provided some supplemental discovery already and intended to provide more, but the Court's mandated schedule was untenable given the scope of the discovery Plaintiff was seeking. Id. The Court also noted that Plaintiff filed his Motion for Sanctions immediately after the deadline set by the Court expired, which reflected that Plaintiff may have not done all he could to work with Defendant's schedule and make a good faith effort to avoid bringing the Motion for Sanctions. Id. Though Defendant consistently maintained that Plaintiff sought irrelevant materials with his discovery request, the Court gave Defendant the benefit of the doubt and assumed that, given adequate opportunity, Defendant would ultimately comply with the Court's orders, even though they continued to disagree with them.

*3 However, though Defendant purports to argue that they have “substantially complied” with the Court's orders, the substance of their opposition reveals that they continue to contest the relevance of the documents Plaintiff seeks; in other words, Defendant continues to contest the scope of the Court's prior orders. See Dkt. 64.

For example, Defendant first argues that they have “produced the documents Plaintiff needs to prove his alleged causes of action.” Dkt. 64 at 4–5. Defendant then lists the elements of Plaintiff's causes of action, and concludes that “the only documents needed to prove Plaintiff's causes of action are the Vehicle lease agreement; the Warranty; the service and repair records; the Vehicle's warranty history; and Pre-litigation communications with Plaintiff,” all of which were produced prior to Plaintiff's Motion to Compel. Id. This argument was not persuasive the first or second time Defendant made it, and it is not persuasive now. Nonetheless, out of an abundance of caution, the Court will address it squarely.

Under Rule 26(b),

Fed. R. Civ. P. 26(b)(1). Relevancy is broadly defined to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Accordingly, Plaintiff is entitled to far more than just “what he needs to prove” the elements of his claims—he is entitled to discovery on Defendant's affirmative defenses, as well as discovery on “any matter that bears on or that reasonably could lead to other matters that could bear on” his claims or Defendant's affirmative defenses, provided that the discovery is proportional. Defendant has consistently failed to apply or even cite this standard in any of its oppositions. Indeed, Defendant's Opposition to the Second Motion for Sanctions continues to cite California statutes and caselaw almost exclusively, despite the Court's previous reminder that such authority is inapplicable to federal discovery disputes. See Dkt. 48 at 3.

Conversely, Plaintiff's counsel has set forth several times, both to the Court and in documented correspondence to Defendant's counsel, why he believes the discovery sought is relevant to not only Plaintiff's claims, but also to Defendant's affirmative defenses. See Dkts. 15-2 at 7–11; 19–57; 28-2 at 73–71; 65-1 (Declaration of Stephen Parnell ISO Reply ISO Plaintiff's Second Motion for Sanctions (“Parnell Decl. ISO Reply”) ¶¶ 57–259. Most recently, in his Declaration ISO the Second Motion for Sanctions (“Parnell Decl. ISO Second Motion”), Plaintiff's counsel explains that he believes the sought discovery will be relevant:

*4 Parnell Decl. ISO Second Motion ¶ 28. In the Reply ISO Plaintiff's Second Motion for Sanctions, Plaintiff's counsel persuasively explains why he believes these will be the primary issues at trial in this case:

Reply at 3–4 (citations omitted).

At this point, in an attempt to prepare to rebut Defendant's anticipated defenses, Plaintiff's counsel seeks the following four categories of documents: (1) warranty service contracts, (2) service literature, (3) vehicle data, and (4) parts-handling documentation. Dkt. 65 at 3. Plaintiff's counsel also explains why each category of documents is relevant to the issues outlined above in his Declaration ISO the Reply. Parnell Decl. ISO Reply ¶¶ 100–259. The Court declines to reproduce the entirety of Plaintiff's counsel declaration here, but summarizes as follows:

*6 Ultimately, Plaintiff's counsel has identified specific categories of documents, described their relevance, and explained why he believes these documents exist and are in Defendant's control. As noted above, he has not only done so multiple times directly to this Court, but also in several correspondences to Defendant's counsel—some of which are documented in previously submitted exhibits. And yet, Defendant continues to maintain that the documents Plaintiff seeks are not necessary for him to litigate his case, despite the fact that the Court has already made the opposite determination. Indeed, Defendant has had three (3) previous opportunities to make this argument, including an opportunity to make it to the district judge. Each time, Defendant has failed to directly address Plaintiff's arguments, or even cite the applicable legal standard, case law, or local rules. Even still, here Defendant again attempts to argue, somewhat indirectly, that Plaintiff seeks “unnecessary” documents, again without applying the proper standard or addressing Plaintiff's relevance showing. This argument is wholly unpersuasive, and not well taken.

In any case, though it is not entirely clear, Defendant also appears to argue that, after conducting a reasonably diligent search, it has produced all documents responsive to Plaintiff's requests. Opposition at 4 (“Certainly, BMW NA cannot state that it has produced each and every page of every document that could possibly have been created that may relate to Plaintiff's Requests for Production of Documents. BMW NA can confirm, however, that it has substantially complied with the Court's Order by searching its own records for responsive documents and contacting third parties who may have responsive documents.”). Generally, when a party avers that no responsive documents exist, absent any evidence to the contrary, courts presume the parties are answering honestly, lest courts become mired in disputes over search adequacy. See Khan v. Boohoo.com USA, Inc., No. CV-20-03332-GW-JEMX, 2021 WL 3882970, at *1 (C.D. Cal. July 19, 2021) (“Defendants fail to present any declaration setting forth facts that Plaintiffs' search was inadequate. Defendants state, ‘It appeared that counsel for Plaintiffs may have asked their client whether responsive documents exist.’ ...This is pure speculation. Every document production would be mired in disputes over search adequacy if it were sufficient that a propounding party merely believed without any factual or evidentiary showing that documents have been withheld.”). However, where the seeking party presents convincing evidence that further responsive documents do exist, courts find that the defending party is not relieved of their discovery obligations. See Strategic Partners, Inc. v. FIGS, Inc., No. CV 19-2286-GW (KSX), 2021 WL 4813646, at *11 (C.D. Cal. Aug. 12, 2021) (“Although the Court generally presumes the accuracy of a party's representation that its document production is complete, here, SPI has presented convincing “contrary evidence” that additional documents likely exist such that FIGS is not yet relieved of its discovery obligations as to its HAI claim.”). As discussed in detail above, Plaintiff's counsel has convincingly set forth multiple times why he believes Defendant's production to be incomplete with respect to the four (4) categories of documents listed above. Plaintiff's counsel has demonstrated—and this Court has found—that these documents are relevant and proportional to issues in this case, including both Plaintiff's claims and Defendant's affirmative defenses. Defendant does not address or attempt to rebut Plaintiff's counsel's detailed explanation of why he believes the missing documents exist under Defendant's control. Rather, Defendant merely lists the documents they have already produced in response to Plaintiff's requests.

Under these circumstances, the Court cannot find that Defendant has complied—either wholly or “substantially”—with the Court's prior discovery orders. Of course, Defendant was not required to produce documents that did not exist, nor where they required to scour heaven and earth to ensure they had found every last possibly responsive document. However, here, Plaintiff apparently consistently identified specific categories of documents he sought and his basis for believing that they were in Defendant's control. If Defendant truly could not produce these documents, either because they are not in their control or do not exist, Defendant could have and should have either: (1) explained why the specific documents were not included with the production/do not exist; or (2) averred that they had conducted a reasonable search but could not locate the specific documents. Defendant did neither, but instead either refused to communicate with Plaintiff's counsel at all, or when Plaintiff's counsel threatened filing further motions, told him that further discovery was forthcoming or that he had what he needed. It has now been nearly five (5) months since the Court's initial order, three (3) months since the second order, and two (2) months since the second deadline the Court set for the production at issue, and Defendant continues to maintain that Plaintiff “has all he needs” and vaguely assert that more discovery may be produced if Defendant receives it from third parties. In many ways, the situation does not appear to have changed significantly from the Court's June 8, 2023 order—Defendant essentially admits that they remain in violation of the April 24, 2023 and June 8, 2023 discovery orders.

*7 Having found that Defendant remains in violation of the Court's discovery orders, the next question is what sanctions are appropriate at this stage. As an initial matter, Defendant appears to devote a significant portion of their Opposition to arguing against terminating sanctions (albeit citing inapplicable state law authority). Opposition at 16–17. However, Plaintiff has not ever asked for terminating sanctions. Second Motion for Sanctions at 13 (asking the Court to craft an appropriate, increased sanction); First Motion for Sanctions at 8 (seeking evidentiary sanctions). Nor would the Court find such sanctions appropriate, given that there are less drastic alternatives available. This leaves the option of imposing further monetary sanctions or evidentiary sanctions.

As noted above, the Court already imposed a form of monetary sanctions in the April 24, 2023 order by requiring Defendant to pay Plaintiff's reasonable costs and fees incurred in bringing the Motion to Compel. Dkt. 22 at 8. The Court ordered Plaintiff's counsel to file declarations regarding the amount of fees and costs reasonably incurred within fourteen days, and Defendant to file objections, if they so desired. Id. However, Plaintiff's counsel never filed such a declaration. In his First Motion for Sanctions, which was filed fifteen days after the April 24, 2023 order, Plaintiff asked for an order “continuing” the April 24, 2023 Order requiring Defendant to pay Plaintiff's reasonable fees, costs, and expenses in bringing both the Motion to Compel and the First Motion for Sanctions. Dkt. 28 at 2. It is unclear whether, in bringing this request, Plaintiff sought to defer the imposition of the April 24, 2023 order with respect to fees and costs until the discovery was ultimately provided. In any case, given that Plaintiff never submitted a declaration on costs and fees and that neither party has mentioned the issue in the instant Motion, the Court assumes that, as of yet, Defendant has yet to pay the sanctions ordered in the April 24, 2023.

Given that the Court has already attempted to impose monetary sanctions and yet Defendant remains in violation of the Court's discovery orders, the Court is inclined to recommend to the district judge that evidentiary sanctions be imposed. Indeed, Defendant's own arguments support the conclusion that the imposition of evidentiary sanctions will be the most efficient and lease obtrusive path to justly resolving this long-standing dispute. Defendant has consistently maintained that the documents Plaintiff seeks are “not necessary” for him to litigate his claims. Assuming Defendant's position is sincere and based on a full comprehension of Plaintiff's arguments, logic dictates that Defendant must not put much stock in their Sixth through Tenth Affirmative Defenses—or at least, that they do not intend to employ them in the way Plaintiff anticipates. In this case, provided that the Court carefully crafts narrow evidentiary sanctions, Defendant must agree that evidentiary sanctions would be far from tantamount to terminating sanctions.

In the First Motion for Sanctions, Plaintiff asked the Court to prohibit Defendant “from presenting any evidence in support of its Affirmative Defenses 6 through 10” and to strike Defendant's Affirmative Defenses 6 through 10 from its Answer. First Motion for Sanctions at 10. In the Second Motion, Plaintiff merely asks for “an order granting increased sanctions against [Defendant] and defense counsel...in a manner and of a type deemed appropriate by this Court.” Second Motion for Sanctions at 14. The Court appreciates that the preclusion sanctions sought by Plaintiff in the First Motion are clean and simple, but is concerned that they may be broader than necessary. For example, Defendant may argue that someone else was responsible for Plaintiff's damages (Eighth Affirmative Defense) under a wholly different theory than the tampering argument that Plaintiff anticipates; in this case, the sanction would prevent Defendant from presenting evidence to support the defense, even where that evidence is potentially unrelated to the documents that have been the subject of this dispute.

*8 On the other hand, simply precluding Defendant from introducing into evidence the types of documents Plaintiff seeks would not necessarily be an effective sanction. For one thing, tough Plaintiff has produced convincing evidence that Defendant may have responsive documents that it has not produced, the nature of the dispute and Defendant's failure to respond to Plaintiff's evidence make it so that neither Plaintiff nor the Court can presently identify the specific withheld documents that Defendant would seek to introduce. More importantly, Plaintiff may need certain documents to prepare for and defend against Defendant's argument more than Defendant may need the specific documents to support their defense at trial; in this way, preventing Defendant from introducing specific documents may prejudice Plaintiff more than Defendant. For example, this is of particular concern with respect to Defendant's Sixth Affirmative Defense (alleging that any defect was caused by unauthorized or unreasonable use of the vehicle). Defendant could present evidence to support the contention that Plaintiff or someone else tampered with the wheel speed sensor without comprehensive vehicle data from all repairs or the service literature (e.g., by introducing the documents that both parties already have demonstrating that tamper paint was applied). This does not change that the vehicle data and service literature would be critical for Plaintiff to present an alternative theory for why the repairs were unsuccessful and “tamper paint” was applied to the vehicle.

Taking these considerations together, the Court finds the following evidentiary sanction would be just in these circumstances:

In the interest of judicial efficiency and overall fairness, the Court will give Defendant one final opportunity to remedy their failure to obey the Court's orders, now that they are on notice of the pending evidentiary sanctions. Defendant shall provide all responsive discovery related to the above-cited categories of documents by no later than September 29, 2023.[1] To the extent Defendant honestly claims that it has no further responsive documents under their control—or to the extend Defendant sincerely believes that the documents Plaintiff seeks are tangential to the instant dispute—Defendant may satisfy their obligations with respect to this order by certifying that no further responsive documents exist, explaining their search methodology, and providing a brief explanation rebutting Plaintiff's showing regarding why such documents are likely to exist. In this case, if Plaintiff maintains that Defendant is still withholding documents, Plaintiff's remedy will be to impeach Defendant at trial; in other words, further discovery motions on this issue are not likely to be successful.[2] The Court expects the parties to file status reports, ideally jointly, by October 6, 2023. If Defendant fails to comply, the Court will recommend that the district court adopt the evidentiary sanction detailed above.

*9 Finally, the Court finds that Defendant has failed to show that their failure to comply was substantially justified or that an award of costs pursuant to Fed. R. Civ. P. 37(b)(2)(C) would be otherwise unjust. Accordingly, the Court orders Defendant and their counsel to pay, jointly and severally, Plaintiff's reasonable costs and fees in bringing the instant Motion. This is an addition to costs and fees related to the First Motion to Compel. Plaintiff shall submit his declaration regarding expenses along with the October 6, 2023 status report. Plaintiff's declaration shall not include costs and fees related to the First Motion for Sanctions, as the Court found it premature. Defendant may file objections to Plaintiff's declaration within seven (7) days of its filing.

B. SECOND MOTION TO COMPEL

Federal Rule of Civil Procedure Rule 16 (“Rule 16”) governs scheduling orders. Pursuant to the Central District of California Local Civil Rule 16-14, “[a]ny application to modify an order entered pursuant to Rule 16 shall be made to the judicial officer who entered the order.” C.D. Cal. L.R. 16-14. Accordingly, a magistrate judge lacks authority to amend a district judge's scheduling order. See Watts v. Allstate Indemnity Co., No. 2:08-cv-01877 LKK KJN, 2012 WL 5289314 (E.D. Cal. Oct. 23, 2012) (finding that a magistrate judge does not have authority to amend a district judge's scheduling order); UMG Recordings, Inc. v. Disco Azteca Distribs., No. CIV.S-04-2611 FCD DAD, 2006 WL 2034689, at *3 (E.D. Cal. July 18, 2006) (“Of course, the magistrate judge is not empowered to modify the district judge's scheduling order.”).

The parties' deadline for fact discovery is currently September 29, 2023. Dkt. 57 at 3. In his scheduling order, Judge Hsu was clear that “[t]he cut-off date for discovery is not the date by which discovery requests must be served; it is the date by which all discovery, including all hearings on any related motions, must be completed... Any motion challenging the adequacy of discovery responses must be filed, served, and calendared before the assigned Magistrate Judge sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion is granted.” Dkt. 59 at 2. Plaintiff's Second Motion to Compel was scheduled for hearing on October 4, 2023, which is after the discovery deadline. Accordingly, the Motion is untimely under Judge Hsu's order. Even assuming the Court forgave the Motion's untimeliness and granted the Motion now, the parties presumably would not have enough time to schedule and complete Defendant's deposition. Accordingly, granting Plaintiff his requested relief would require altering Judge Hsu's scheduling order, which it has no authority to do. See C.D. Cal. L.R. 16-14.

Though Plaintiff may argue the delay is somehow attributable to Defendant's conduct, it is outside this Court's purview to determine whether extraordinary circumstances exist that would justify extending the district court's deadline. See Sigma Fin. Corp. v. Gotham Ins. Co., No. SACV 15-01531-AG-DFMX, 2017 WL 9511489, at *2 (C.D. Cal. Aug. 4, 2017) (“It is not the Court's practice to adjust the District Judges' calendar deadlines; the District Judges, after all, know better the whole picture of the case and how each deadline fits with the ultimate deadline, which is the trial date.”). While Plaintiff is free to present its arguments regarding good cause to Judge Hsu in seeking relief from the current discovery deadline, as it stands, the undersigned magistrate judge lacks authority to hear the untimely motion or order the relief it seeks, which would necessarily include modifying Judge Hsu's scheduling order. Therefore, the Motion must be denied. Compare id. (denying motion to compel without prejudice as untimely because it would require modifying district judge's scheduling order, even where movant argued any delay was due to the defending party's gamesmanship) with Mkt. Lofts Cmty. Assoc. v. Nat'l Union Fire Ins. Co., No. CV 15-3093-RGK (SPX), 2016 WL 6237909, at *3 (C.D. Cal. Mar. 9, 2016) (finding good cause to hear untimely motion where hearing the motion would not require any change to the dates set by the district judge's scheduling order).

*10 Thus, the Second Motion to Compel is DENIED, without prejudice. Should the district judge grant an extension of the discovery deadline, and the dispute not be rendered moot by the pending evidentiary sanction, Plaintiff may renew his Motion.

The Court ORDERS as follows:

IT IS SO ORDERED.