*1 Court-appointed Special Master Dennis Barnes issued a Report and Recommendation (Report) pursuant to the Court's order. ECF 75. The Report addressed the following dispute:

Plaintiffs moved for sanctions and alleged that Defendant Maritas deleted pertinent discovery, most particularly in the form of electronic mail. ECF 29. Defendant Maritas admitted to deleting electronically stored information (ESI) that was responsive to Plaintiffs' discovery requests. ECF 61, PgID 2318. The parties then retained Avalon Legal (Avalon) as an electronic discovery vendor, ECF 75, PgID 2634, and Avalon applied search terms that the Discovery Master previously proscribed, see ECF 61, PgID 2332. Those terms yielded approximately 65,000 electronic messages for review. ECF 75, PgID 2637.

The Master's Report explained that the original search terms produced a volume of discovery that was unduly burdensome and disproportionate to the needs of the case. Id. at 2637. The Report therefore recommended that the Court limit the discovery search terms. Id. The Report also recommended that the Court order Defendants to (1) pay all outstanding Avalon invoices and complete their relevancy and privilege review of the documents yielded by application of the search terms, (2) provide Plaintiffs with a privilege log under Federal Rule of Civil Procedure 26(b)(5) that identifies any information being withheld from discovery, and (3) produce all ESI that is not identified on the privilege log. Id. at 2637–38. The Report further recommended that Avalon provide a final report evaluating whether Defendants' deleted ESI has been or could be restored or replaced, and explaining, to the extent possible, the timing, manner, extent, and nature of Defendants' deletions of ESI. Id. at 2638. Last, the Report recommended that Plaintiffs be given twenty-one days after receipt of Avalon's final report to renew, revise, refile, or abandon their motion for spoliation sanctions, ECF 29. Id. Plaintiffs and Defendants both timely objected to the Report. See ECF 77; 78. For the reasons below, the Court will adopt the Report in full and overrule the parties' objections to it.

The parties also filed a joint stipulation to amend two of the previously filed complaints—one on behalf of Defendant Maritas that proposed to add United Federation Law Enforcement Officers Security Union (UFLEOS-PBA) as a Plaintiff in his suit, and another on behalf of Defendants Hickey and Security, Police, and Fire Professionals of America (SPFPA) that sought to add UFLEOS-PBA and Law Enforcement Officers Security & Police Benevolent Association (LEOS-PBA) as Defendants in their suit. ECF 73. For the reasons below, the Court will deny leave to file both amended complaints.

I. Objections to the Report & Recommendation

The Court reviews de novo the Report's factual findings and legal conclusions. Fed. R. Civ. P. 53(f)(3)–(4). The Court reviews the Report's procedural rulings for abuse of discretion. Fed. R. Civ. P. 53(f)(5).

II. Stipulation to Amend the Complaints

*2 Federal Rule of Civil Procedure 15(a)(2) states that after filing a responsive pleading, a party may only amend its pleading with the written consent of the opposing party or with leave of the Court. The rule also states that “[t]he [C]ourt should freely give leave when justice so requires.” Id. To resolve whether to grant leave to amend a pleading, the Court relies on six factors: (1) “undue delay in filing,” (2) “lack of notice to the opposing party,” (3) “bad faith by the moving party,” (4) “repeated failure to cure deficiencies by previous amendments,” (5) “undue prejudice to the opposing party,” and (6) “futility of [the] amendment.” Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458–59 (6th Cir. 2001) (quotations omitted). A proposed amendment is futile if the complaint could not survive a motion to dismiss under Rule 12(b)(6). Skatemore, Inc. v. Whitmer, 40 F.4th 727, 737 (6th Cir. 2022).

I. Objections to the Report & Recommendation

First, Plaintiffs objected to Defendant having time to review the discovery and create a privilege log. ECF 77, PgID 2643. But privileged evidence is not subject to discovery and the Court will not order Defendants to produce it. See Fed. R. Civ. P. 26(b)(1) (providing that the scope of discovery extends to any nonprivileged matter). Accordingly, Defendant will be afforded time to review discovery, make determinations regarding privilege and create a privilege log.

Second, Plaintiffs objected to limiting the search terms and contended that Defendants should have to produce all 65,000 emails generated by the original search terms. ECF 77, PgID 2645. But the Court agrees with the Special Master that review, storage, and production of 65,000 emails is disproportionate to the needs of the case. See ECF 75, PgID 2637. That volume of discovery would cause further delay in an already delayed dispute and would also be very expensive to review and store. See ECF 78, PgID 2681. Plaintiffs may rest assured that the limited search terms will still produce more than 25,000 relevant documents, which is more than sufficient evidence for Plaintiff to make their case. The Court will adopt the Report's recommendation and limit the search terms. See ECF 75, PgID 2637.

Third, Plaintiffs objected to the recommendation to order Defendants to pay Avalon's invoices within fourteen days. ECF 77, PgID 2648. Plaintiffs argued that Defendants should be ordered to show cause or be held in contempt for not already having paid Avalon's invoices. Id. The Court acknowledges that it ordered Defendant to pay Avalon's reasonable expenses. ECF 64. The Court's order, however, did not specify when Defendants were to pay the invoices, and it did not address Defendants' objections to the reasonableness of the invoices—which the Court will do below. See id. A show cause order, as suggested by Plaintiffs, is therefore not appropriate.

Defendants first objected to paying Avalon's fees, which they termed “exorbitant.” ECF 78. Defendant claimed that it owes $25,487.81 for Avalon's services, including $13,254.88 for storing the ESI at issue. Id. at 2680. While the bill provided by Defendants shows a figure of $25,487.81, the bill does not reflect what portion of the overall amount is owed for the storage of information. Id. at 2700. Defendants also claimed that Avalon's rate schedule lists the charge for ESI storage at only $25 per month. Id. at 2681. But Avalon's rate schedule does not show whether that rate is per hour, per day, or per month. Id. at 2702.[1] Defendants have therefore not provided evidence sufficient to substantiate their claims that the fees are exorbitant or beyond what they originally anticipated. What is more, Avalon is involved in the case because Defendants deleted the electronically stored information. It is reasonable that recovery of the information would be expensive—and that the Defendants must pay for the recovery. The Court will adopt the Report's recommendation and overrule Defendants' objection to paying Avalon's invoices.

*3 Defendants also objected to being provided only thirty-five days to review the ESI; they instead asked for 120 days for review. Id. at 2683. But Defendants have already had far more than thirty-five days to review the documents. In fact, more than thirty-five days have passed between the filing of the Special Master's Report and the issuing of the present Order. The Court therefore will adopt the Master's recommendation and grant Defendants only an additional thirty-five days to review the ESI.

Last, Defendants objected to including “Phillips” in the search terms and requested that the Court limit the search terms further to exclude that name. Id. at 2682. And, as noted above, Plaintiffs requested the Court add other search terms. But the Special Master proposed a set of search terms after conferring with both parties that are based on the needs of the case and further the interests of both the parties and resolution of the litigation. The Court finds that the search terms proposed by the Special Master are relevant and proportionate to the needs of the case. And, so, the Court will overrule Defendants' objection to including “Phillips” as a search term.

In sum, the Court will overrule all of Plaintiffs' and Defendants' objections and adopt the Special Master's Report in full.

II. Stipulation to Amend the Complaints

The Court must address six factors to determine whether to grant leave to amend a pleading: (1) “undue delay in filing,” (2) “lack of notice to the opposing party,” (3) “bad faith by the moving party,” (4) “repeated failure to cure deficiencies by previous amendments,” (5) “undue prejudice to the opposing party,” and (6) “futility of [the] amendment.” Wade, 259 F.3d at 458–59 (quotation omitted). Here, the factors favor the Court denying the stipulation for leave to amend the complaints. See ECF 73.

First, the parties did not timely file their motions for leave to amend. Plaintiffs sued Defendants on March 12, 2019 (more than four years ago). ECF 1. And Plaintiffs filed their first amended complaint on August 28, 2019. ECF 13. Defendants filed an amended complaint on November 3, 2020 (more than three years ago) in consolidated Case No. 20-cv-12544, ECF 8. Several years passed since Plaintiffs and Defendants filed their original complaints. Amending a complaint to add parties after three to four years of litigation is an obvious undue delay in filing. Indeed, the deadline for parties to have amended their pleadings was more than eighteen months ago: January 10, 2022. See ECF 47. The first factor therefore weighs heavily in favor of denying the motions.

Second, the parties had notice of the intent to file amended complaints because they filed a stipulation germane to the issue on June 21, 2023. See ECF 73. The second factor favors granting the motion.

Third, the parties filed the stipulation in bad faith. Both parties now wish to amend their complaints to add new parties who allegedly committed “subsequent acts,”—acts that comprise the subsequent alleged misconduct of nonparties that occurred years after the filing of the present lawsuit. Id. at 2483. But “subsequent acts” committed by nonparties four years after a lawsuit was filed are not the subject of the present consolidated lawsuits and the acts are not at all relevant to the claims of the parties herein. There is simply no good faith basis on which to add additional proposed parties to the present suit.

Moreover, the parties' agreement to amend the complaint under the circumstances set forth here raises legitimate questions about the parties' motivations. First, the parties filed separate and additional lawsuits in this Court on similar claims, see ECF 67, PgID 2375, but have not made any separate filings addressing the subsequent, unrelated acts alleged in the present proposed amendments—even though separately filed claims would make more procedural sense and be far more efficient than amending the complaints that frame the present dispute. Second, the parties noted in their stipulation that they “reserve the right to seek dismissal and/or summary judgment of the claims.” ECF 73, PgID 2485. But it smacks of futility or some sort of anticipated negotiated end-around for the litigants to agree to add new claims and parties while at the same time anticipating that the merits of those new claims are so inadequate that they would warrant dismissal or an entry of summary judgment. Considering all of the factors set forth above, and especially in light of both the egregious delay in requesting to amend the complaint and the tenuous relationship the new claims and parties have to the present suit, it appears the stipulation was made in bad faith. The third factor thus supports denying the motion.

*4 Fourth, both parties demonstrated a “repeated failure to cure deficiencies by previous amendments.” Wade, 259 F.3d at 458–59. The parties already filed amended complaints and—in the case of Defendant Maritas—added new parties. See ECF 13; Case No. 20-cv-12544, ECF 8. Because the parties failed to cure any alleged pleading deficiencies with previous amendments, the fourth factor favors denying the motion.

Fifth, granting leave to amend will cause undue prejudice to the opposing parties that are yet to be added. The discovery deadline has long passed. ECF 66; ECF 67, PgID 2382; see generally ECF 75. Similarly, the dispositive motion deadline has passed, and all dispositive motions have been both filed and resolved. See ECF 47, 69–71. What is more, trial will now be set to begin March 19, 2024. Introducing new parties at this stage, after more than four years of litigation, would trigger a massive amount of catch-up work for the new parties and unfairly prejudice them. The fifth factor favors denying the motion.

Last, the Court need not address whether the proposed amended complaints could survive a motion to dismiss. Regardless of the amendments' potential futility, the balance of factors overwhelmingly favors denying the stipulation to amend the complaints. The Court will therefore deny the parties' stipulation for leave to amend.

The Court will adopt the Report in full. The Report is well reasoned and supported by the record and applicable law. See Fed. R. Civ. P. 53(f)(3)–(4). And the Court agrees with the Special Master's recommendations. The Court will also deny the stipulation to amend the complaint [73] and set the case for trial on March 19, 2024.

WHEREFORE, it is hereby ORDERED that the Report [75] is ADOPTED.

IT IS FURTHER ORDERED that Plaintiffs' objections [77] and Defendants' objections [78] are OVERRULED.

IT IS FURTHER ORDERED that the search terms applied to the pool of ESI are LIMITED to “SPFPA”, “Hickey”, and “Phillips.”

IT IS FURTHER ORDERED that Defendant must PAY all outstanding Avalon invoices within fourteen days of this Order.

IT IS FURTHER ORDERED that Defendant COMPLETE their relevancy and privilege review of the documents yielded by application of the search terms in above; PROVIDE Plaintiffs with a privilege log under FRCP 26(b)(5) identifying any information being withheld from a discovery production as privileged; and PRODUCE all ESI not identified on the privilege log within thirty-five days.

IT IS FURTHER ORDERED that Avalon PROVIDE a final report evaluating whether Defendants' deleted ESI has been or could be restored or replaced, and explaining, to the extent possible based on the information made available to the Vendor, the timing, manner, extent, and nature of Defendants' deletions of ESI to the parties and Discovery Master within fourteen days of this Order.

IT IS FURTHER ORDERED that Plaintiffs will have twenty-one days after receipt of Avalon's final report within which to RENEW, REVISE, REFILE OR ABANDON their motion for spoliation sanctions [29].

IT IS FURTHER ORDERED that the stipulation for leave to amend the complaint [73] is DENIED.

IT IS FURTHER ORDERED that trial is SET to begin on March 19, 2024.

SO ORDERED.