Citizens Bus. Bank v. Mission Bank
Citizens Bus. Bank v. Mission Bank
2024 WL 3363593 (C.D. Cal. 2024)
March 15, 2024

Pym, Sheri,  United States Magistrate Judge

Cost Recovery
Failure to Produce
Possession Custody Control
Proportionality
Mobile Device
Third Party Subpoena
Bad Faith
Source Code
Scope of Preservation
Spoliation
Sanctions
Forensic Examination
Search Terms
Privacy
Failure to Preserve
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Summary
Plaintiff filed a motion to compel a forensic examination of defendant's electronic devices and accounts, alleging that defendant engaged in misconduct by deleting relevant information and not adequately preserving documents. The court must consider the relevance and proportionality of the information, as well as any privacy concerns, before ordering a forensic examination. Defendant argues that the motion is not ripe, but the court finds that the request for a forensic examination of one employee's devices is ripe.
Additional Decisions
Citizens Business Bank
v.
Mission Bank, et al
Case No. 5:22-cv-01473-FLA (SPx)
United States District Court, C.D. California
Filed March 15, 2024
Pym, Sheri, United States Magistrate Judge

Opinion

I. INTRODUCTION
*1 On February 16, 2024, plaintiff Citizens Business Bank filed a motion to compel a forensic examination of certain of defendant Mission Bank's and its employees' electronic devices, accounts, and storage. Docket no. 77. The parties' positions are set forth in a Joint Stipulation (“JS”). Plaintiff's arguments are supported by the declaration of Christina N. Goodrich, declaration of Ryan Q. Keech, declaration of Zachary Timm (“Timm Decl.”), and exhibits. Defendant's arguments are supported by the declaration of Jonathan E. Phillips (“Phillips Decl.”), declaration of Catherine S. Owens (“Owens Decl.”), and exhibits. On February 27, 2024, plaintiff filed a supplemental brief in support of the motion (“P. Supp.”) (docket no. 83), and defendant filed a supplemental brief (“D. Supp.”) and declaration of Phillips (“Supp. Phillips Decl.”) in opposition to the motion (docket no. 82).
The court held a hearing on March 12, 2024. The court now denies the motion for the reasons discussed below.
II. BACKGROUND
On August 19, 2022, plaintiff filed a complaint against defendant alleging misappropriation of trade secrets, intentional interference with contractual relations, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage, and unfair competition following plaintiff's acquisition of Suncrest Bank (“Suncrest”). As part of the acquisition, plaintiff acquired all of Suncrest's property and assets and hired many of its existing employees. Complaint ¶¶ 11-12. Plaintiff alleges that defendant conspired with one of the Suncrest employees it hired, Dustin Della, to steal plaintiff's trade secrets, interfere with its contracts and customer relations, and unfairly compete with plaintiff. Id. ¶¶ 1, 12. Plaintiff further alleges Della identified some of its employees and provided their identities to defendant to solicit. Id. ¶¶ 18-21. Plaintiff alleges defendant continues to use plaintiff's trade secrets, including in connection with the solicitation of plaintiff's customers. Id. ¶ 23.
On December 2, 2022, plaintiff served two sets of requests for production of documents (“RFP”) on defendant. Timm Decl. ¶ 3, Ex. B-C. As part of the document collection process, defendant collected documents from 15 of its employees, including Della and Bryan Easterly, defendant's chief banking officer. Owens Decl. ¶ 4. On July 10, 2023, defendant indicated it had produced all responsive documents. Timm Decl., Ex. F.
On September 22, 2023, plaintiff served third-party subpoenas on its former employees who were then defendant's current employees (“Employee Subpoenas”). Id. ¶ 8. Defendant's counsel, who represents nine of these employees, objected on their behalf and argued, among other things, that defendant had already produced all responsive documents. Id. The parties met and conferred on the Employee Subpoenas on November 27, 2023. Id. ¶ 10. Defendant agreed to interview each former employee it represented and conduct searches of all identified accounts. Id. ¶ 10. Plaintiff provided a list of cell phone numbers and e-mail addresses it identified, as well as assisted with developing additional search terms. Id. ¶ 10, Ex. H.
*2 On December 3, 2023, Della, who is represented by his own counsel, produced his first set of documents in response to the subpoena. Id. ¶ 11; see id., Ex. G (listing the former employees represented by defendant's counsel). This production included e-mails Della sent to Easterly from his personal e-mail address. Id. ¶ 11; see id. ¶¶ 12-22, Ex. I-S.
On January 5, 2024, plaintiff sent defendant a meet and confer letter regarding defendant's document production (the “January 5 Letter”). Id. ¶ 23, Ex. T. Plaintiff stated that upon review of the third-party productions, it discovered documents that should have been – but were not – produced by defendant. Id., Ex. T. Plaintiff specifically identified 23 e-mails from Della's production that were not produced by defendant, and stated that this list was not exhaustive. See id.
On January 15, 2024, the parties met and conferred telephonically. See id. ¶ 24, Ex. U at 49-51.[1] Plaintiff's memorialization of the discussion indicated defendant represented that it had already produced five of the documents identified from Della's production, would rerun a search of its collected documents with different parameters, would re-interview the former employees it represented and conduct another search, and would produce additional responsive documents in about a week. See id., Ex. U at 49-50. Defendant also told plaintiff that it appeared there were deleted e-mails and it would investigate. Id., Ex. U at 50-51.
On January 19, 2024, in advance of a meet and confer later that day, defendant e-mailed plaintiff to inform it of which employees it collected documents from, of the search parameters used, that it since discovered that a limited number of responsive documents were not captured by the search terms, that it was in the process of reviewing the additional documents, and that it would produce all additional responsive documents. Id., Ex. U at 40-43. As a follow up to the earlier discussion regarding deleted e-mails, defendant explained that its investigation revealed there were approximately 20 e-mails between Della and Easterly that Easterly deleted pursuant to his standard personal e-mail practices and prior to defendant receiving plaintiff's demand letter and the filing of the Complaint. Id., Ex. U at 43. After the parties met and conferred, plaintiff requested a forensic inspection of Easterly's computer. Id., Ex. U at 34-37. That same day, Della made a second production of documents. Owens Decl., Ex. EE at 20.
Defendant made a supplemental document production on January 23, 2024. See id.; Timm Decl., Ex. U at 31, 33. On the same day, plaintiff requested a meet and confer to discuss a motion to compel: (1) a forensic inspection of Easterly's devices; and (2) defendant to restore backup tapes and produce server records related to Easterly's e-mails. Id., Ex. U at 24-25. Between January 23 and 30, 2024, the parties continued to communicate by e-mail regarding defendant's production and the preservation of Easterly's e-mails. See id., Ex. U at 12-32. On January 31, 2024, the parties had another telephone meet and confer, but were unable to reach an agreement. Id. ¶ 26., see id., Ex. U at 4-11.
*3 On February 2, 2024, defendant's counsel informed plaintiff that upon further investigation, it confirmed that defendant used the Spanning platform to preserve and backup data. Id., Ex. U at 2-4. Defendant stated it would export Easterly's data from the Spanning platform to determine what documents were not collected and reviewed, run the search on those documents, and produce all responsive documents not already produced. Id., Ex. U at 4. Defendant estimated the process would take about a week. Id. After defendant performed the review, it confirmed that all but one of Della's documents attached to the instant motion – Exhibit P – were preserved and produced them. Supp. Phillips Decl. ¶ 2.
On February 12, 2024, plaintiff served a third set of RFPs and a second set of interrogatories on defendant. Phillips Decl. ¶ 11, Ex. CC, DD. The third set of RFPs request, among other things, communications and documents between Della's e-mail addresses and certain of defendant's employees, documents relating to retention policies, and all devices which may contain electronically stored information (“ESI”) related to any business conducted by three specific employees on behalf of defendant. Id., Ex. CC. The second set of interrogatories concern profits and revenues, how defendant collects and maintains ESI, and defendant's attempts to preserve documents. Id, Ex. DD.
At the hearing, plaintiff represented defendant made an additional production of approximately 20,000 documents, which included e-mails between Della and Easterly, on March 9, 2024. Defendant stated the number of documents was high because plaintiff added more customer names to the search parameters.
III. DISCUSSION
A. Forensic Examination
Plaintiff requests the court: (1) compel a forensic examination by a neutral third party, at defendant's expense, of Easterly's and other key custodians' devices and accounts, as well as any other backup servers or other record keeping systems where their information may be housed, to search for deleted emails and documents relevant to plaintiff's RFPs Sets 1 and 2 and information relevant to plaintiffs' interrogatories set 1 to defendant; (2) order a restoration and forensic examination of defendant's backup tapes and/or servers; and (3) compel defendant to confirm the deletion habits/procedures of all its custodians. Plaintiff argues a forensic examination is warranted in order to determine what Easterly deleted, when he deleted it, to whom he transmitted what was deleted, what else he did with that information before deleting it, and whether any of the deleted information may be recovered. Plaintiff contends this is necessary because it is “uncontroverted that [defendant] has deleted relevant information and has continued to engage in a mass and indiscriminate policy of deleting emails before and throughout the course of this litigation.” JS at 16.
1. Legal Standard
Federal Rule of Civil Procedure 34 allows discovery of ESI, which is limited to “any nonprivileged matter that is relevant to any party's claim or defense” and “proportional to the needs of the case.” Fed. R. Civ. P. 34(a), 26(b)(1). The Advisory Committee noted that Rule 34(a) “is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances.” Instead, “ ‘[a] forensic examination of an opposing party's computer is considered an extraordinary remedy.’ ” Juul Labs, Inc. v. Chou, 2022 WL 2161062, at *2 (C.D. Cal. Apr. 19, 2022) (quoting MGA Entm't, Inc. v. Nat'l Prods. Ltd., 2012 WL 12886446, at *2 n.2 (C.D. Cal. Jan. 26, 2012)); see Moser v. Health Ins. Innovations, Inc., 2018 WL 6735710 (S.D. Cal. Dec. 21, 2018) (“Forensic examination is generally regarded as a drastic step.”) (quotation marks and citation omitted).
*4 In determining if a forensic examination of an electronic device is warranted, courts consider whether the examination will reveal relevant information that is proportional to the needs of the case given any possible privacy or confidentiality concerns. Henson v. Turn, Inc., 2018 WL 5281629, at *5 (N.D. Cal. Oct. 22, 2018) (denying request for forensic imaging of devices because it may reveal information that is not relevant or privileged, and implicate significant privacy concerns); Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., 2012 WL 70428, at *2 (N.D. Cal. Jan. 9, 2012) (allowing forensic inspection of computer hard drive where the electronic information is relevant to the pending claims). The party seeking to compel the forensic examination must also demonstrate that the benefit outweighs the burden. Azenta, Inc. v. Andrews, 2023 WL 8845604, at *6 (S.D. Cal. Dec. 21, 2023).
“[T]he Ninth Circuit has not articulated a standard for ordering a forensic examination,” but several district courts in the circuit have consistently held that the requesting party must make a showing that the responding party engaged in misconduct. Juul Labs, 2022 WL 2161062, at *2; see, e.g., Wisk Aero LLC v. Archer Aviation Inc., 2022 WL 6250989, at *2-*3 (N.D. Cal. Aug. 19, 2022). “[A]bsent specific, concrete evidence of concealment or destruction of evidence, courts are generally cautious about granting a request for a forensic examination of an adversary's computer.” Sophia & Chloe, Inc. v. Brighton Collectibles, Inc., 2013 WL 5212013, at *2 (S.D. Cal. Sept., 13, 2013) (internal quotation marks and citation omitted). “ ‘[M]ere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.’ ” Id. (quoting John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)); see MGA Entm't, 2012 WL 12886446, at *2 (requiring more than mere speculation).
2. Ripeness
Defendant contends the motion is not ripe because: (1) plaintiff did not serve a Rule 34 request for a forensic examination; and (2) defendant's responses to plaintiff's latest round of discovery requests, which includes the production of certain devices for inspection, were not due until March 13, 2024, after this motion was heard. JS at 40-41.
Ordinarily, a party seeking to inspect documents or a device will serve a request for inspection within the scope of Rule 26(b). RG Abrams Ins. v. Law Offices of C.R. Abrams, 2021 WL 8895081, at *3 (C.D. Cal. Dec. 15, 2021) (discussing Rule 34(a)(2)). The responding party will then have 30 days to respond and if the responding party fails to respond or permit inspection, then the requesting party may move to compel. Id.
Defendant correctly notes that plaintiff did not serve it with a request to inspect Easterly's devices. Nevertheless, a party may also move to compel a forensic examination as a remedy without serving a standalone discovery request when such request is to remedy or sanction a failure to comply with discovery obligations. See Drueding v. Travelers Home and Marine Ins. Co., 2022 WL 17092736, at *7 (W.D. Wash. Nov. 21, 2022) (party seeking to compel a forensic examination did not need to make a standalone discovery request because the request was a remedy for the responding party's failure to comply with her discovery obligations). Here, after multiple meet and confer sessions and ongoing exchanges about Easterly's e-mails, plaintiff seeks a forensic examination of Easterly's devices because of defendant's initial failure to produce all responsive documents, Easterly's deletion of e-mails, alleged misconduct, and alleged inadequate inspection of Easterly's devices. As such, plaintiff's request for a forensic examination of Easterly's devices is ripe.
*5 By contrast, plaintiff's request to compel a forensic inspection of other devices and the backup platform is not ripe. Although defendant similarly failed to produce all responsive documents from the other custodians in its initial production, it has subsequently conducted additional searches and made supplemental productions. Plaintiff has not raised the same concerns over defendant's production of documents from its other custodians. Nor have the sides met and conferred on plaintiff's request for a forensic examination of defendant's other custodians.
Moreover, on February 12, 2024, plaintiff served a third set of RFPs and second set of interrogatories, requesting some of the same documents and information it seeks in this motion. Phillips Decl. ¶ 11. For example, in the third set of RFPs, plaintiff asks defendant to produce all devices which may contain ESI related to business conducted by three former employees on behalf of defendant. Phillips Decl., Ex. CC (Request no. 95). And in the second set of interrogatories, plaintiff asks defendant to describe all steps it took to ensure the retention of documents. Id., Ex. DD (Interrogatory No. 23). Defendant's responses were not due until March 13, 2024. Id. ¶ 11.
As such, plaintiff's request for a forensic examination of Easterly's devices is ripe, but its other requests are premature.
3. Showing of Destroyed Evidence or Other Misconduct
As stated above, courts generally require a party requesting a forensic examination to show evidence of destruction or other improper conduct. Juul Labs, 2022 WL 2161062, at *2; Sophia & Chloe, 2013 WL 5212013, at *2.
a. Destroyed Evidence
Plaintiff fails to make a showing that any evidence was destroyed or missing. Plaintiff's argument rests on defendant's incomplete initial production, Easterly's deletion of responsive e-mails, and Easterly's general practice of deleting e-mails. See JS at 16-20. In support, plaintiff attaches 11 e-mails to this motion that it claims were not a part of defendant's production and implies they were “destroyed.” JS at 12; see Timm Decl., Ex. I-S.
In the January 5 Letter, plaintiff identified 23 e-mails that were produced by Della in response to the third-party subpoena but not by defendant.[2] Timm Decl., Ex. T. Nineteen of those e-mails were from Della to Easterly. See id. After some investigation, defendant informed plaintiff that some of those documents had indeed been produced,[3] and Easterly, in accordance with his personal e-mail practices, had deleted approximately 20 e-mails before the filing of the Complaint or the March 22, 2022 demand letter. Id., Ex. U at 40, 43. Defendant subsequently produced the e-mails identified in the January 5 Letter to plaintiff. See id., Ex. U at 31, 33. When plaintiff pointed out that defendant simply reproduced Della's production, as evidenced by the fact that defendant placed its bates-numbers above the Della bates-numbers, defendant explained that the vendor erred by pulling the documents from Della's production rather than his e-mail account. See id., Ex. U at 15, 18. Defendant further explained that it was in possession of those e-mails because they were preserved in Della's e-mail and Della was an employee and one of its custodians for purposes of this discovery. See id., Ex. U at 15.
*6 To the extent plaintiff relies on Easterly's deletion of e-mails prior to the demand letter to support its argument for a forensic examination, such actions do not constitute spoliation since the duty to preserve documents had not yet arisen. See Apple, Inc. v Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012) (the duty to preserve evidence is triggered when a party knows or reasonably should know it is related to litigation). Plaintiff also argues that the deleted e-mails should have been preserved elsewhere – in the recipient's e-mail or in Easterly's sent box – and included in the production, thereby suggesting that the e-mails were “destroyed” or “lost.” But as defendant notes, the e-mails were not “destroyed.” The e-mails were preserved in Della's personal e-mail, and Della is its employee. See Advisory Committee Notes to Rule 37(e) (The “loss from one source may often be harmless when substitute information can be found elsewhere.”).
Further, of the e-mails attached to this motion that plaintiff alleges were “lost” or “destroyed,” “many” were preserved by other custodians and all but one were preserved in Easterly's backup files on the Spanning Backup platform. Phillips Decl. ¶ 6, Ex. BB; Supp. Phillips Decl. ¶ 2.
Thus, the documents identified by plaintiff in this motion were not destroyed. Plaintiff has not identified documents that were destroyed and merely speculates Easterly deleted relevant other e-mails and these e-mails were not preserved in other custodians' e-mails and produced. Mere speculation of destroyed documents is an insufficient basis to grant a motion to compel a forensic examination. See Lee v. Stonebridge Life Ins. Co., 2013 WL 3889209, at *2 (N.D. Cal. Jul. 30, 2013) (denying request for a forensic examination because “[r]ather than identify some specific evidence that is missing, [defendant] suggests that it cannot tell what, if anything, is missing without first looking at the computer”); but see Philips N. Am. LLC v. Advanced Imaging Servs., 2023 WL 316916, at *2 (E.D. Cal. Jan. 19, 2023) (disagreeing that the specific, concrete evidence standard categorically applies to all compelled computer forensics).
b. Misconduct or Concealment
Plaintiff argues a forensic examination is necessary because defendant's conduct “appears designed” to obstruct discovery. See JS at 16-27; P. Supp. at 4-5. Plaintiff asserts defendant represented its discovery was complete and refused to stipulate to continuations when in fact its discovery was incomplete. First, plaintiff contends Easterly deleted relevant documents and “continued to engage in a mass and indiscriminate policy of deleting emails before and throughout the course of this litigation.” JS at 16. Second, plaintiff contends defendant then, as discussed above, inappropriately represented it produced all of the “destroyed” documents identified in the January 5 Letter in its supplemental production, but in actuality defendant simply reproduced Della's production and tried to pass it off as its own. Id. at 18. Finally, plaintiff states that some of the unproduced emails were sent by Easterly and defendant has provided no explanation why those e-mails were not produced. Id. at 26.
As an initial matter, defendant acknowledges its initial production was incomplete and Easterly deleted e-mails prior to receiving plaintiff's demand letter. JS at 34-37. But defendant disputes plaintiff's characterization of its actions. Defendant contends it collected over 430,000 documents from 15 custodians, reviewed over 35,000 documents, and produced almost 10,000 documents. Owens Decl. ¶¶ 4-5, Ex. EE at 16. Upon learning of the “lost” documents, it investigated why certain documents were not captured by its search terms in the initial review. JS at 34. Defendant produced additional documents in January, continued to meet and confer with plaintiff about search terms, and produced approximately an additional 20,000 documents on March 9, 2024.[4] JS at 35, n.10; Owens Decl. ¶¶ 2-3.
*7 As for Easterly's actions, defendant maintains that Easterly, “in accordance with his long-standing practice of deleting emails when no further response or action is required,” deleted the e-mails identified in the January 5 Letter prior to plaintiff's March 25, 2022 demand letter and the filing of the Complaint. Phillips Decl. ¶ 5. As discussed above, the duty to preserve evidence does not attach until a party should reasonably know that evidence should be preserved in anticipation of litigation, such as when it receives a demand letter. See Apple, 888 F. Supp. 2d at 991. Thus, Easterly's deletion of e-mails prior to March 25, 2022 does not constitute misconduct. See AliveCor, Inc. v. Apple, Inc., 2023 WL 4335293, at *5 (N.D. Cal. Jun. 2, 2023) (e-mails deleted pursuant to standard procedure before the litigation was filed was not intentional spoliation).
Plaintiff argues Easterly's indiscriminate deletion of e-mails throughout the litigation is also evidence of misconduct. But defendant contends that subsequent to receiving the demand letter, Easterly “preserve[d] potentially discoverable documents after this dispute arose, and only continued to delete emails that had no bearing on this lawsuit.” Phillips Decl. ¶ 5. Defendant has offered to make Easterly and a corporate representative available for deposition regarding their preservation efforts, but plaintiff maintains that a deposition would not be a proper substitute for a forensic examination in light of his admitted deletions. JS at 23-24, 38; Phillips Decl. ¶ 7. Because there is no evidence Easterly deleted possibly responsive e-mails after the litigation hold, plaintiff's argument concerning Easterly's continued practices is mere speculation. See Brocade, 2012 WL 70428, at *2 (court ordered a forensic inspection after deposition witness admitted plaintiff's source code was on its employee's laptop and transferred onto defendant's system, and was unwilling or unable to explain what he meant when he testified employee's hard drive was “recycled” while the litigation was pending). Moreover, since the motion was filed, defendant has searched the Spanning platform for and produced e-mails between Easterly and Della's personal e-mail.
Second, plaintiff asserts defendant improperly holds Della's production to be its own. But as plaintiff itself acknowledges, defendant Della is an employee of defendant and collected e-mails from Della's personal e-mail address. Thus, defendant rightfully may produce e-mails from Della's personal e-mail address as part of its own production.
Finally, plaintiff contends that defendant's record-keeping was “suspect” because defendant failed to produce, among other things, “most” of the e-mails in Della's production that were e-mails sent from his personal e-mail to his Mission-issued e-mail that contained relevant information and e-mails Easterly sent. JS at 25-26. Given what defendant collected from the custodians' personal e-mail accounts, plaintiff raises legitimate questions regarding defendant's initial searches and production. But plaintiff has not identified the additional documents defendant failed to produce and allowed defendant the opportunity to provide an explanation. It may be that defendant's earlier productions were deficient or constituted misconduct. Or it may that plaintiff is mistaken. For example, during the meet and confer sessions, plaintiff identified documents it received from third-parties that it alleged should have been produced by defendant, but defendant was able to provide explanations for the majority of the documents (e.g., the documents were indeed produced or were non-responsive). See Timm Decl., Ex U at 16, 40; Supp. Phillips Decl. ¶ 2, Owens Decl., Ex. EE at 11-15. Simply put, plaintiff cannot rely on vague allegations of concealment or misconduct.
*8 At bottom, plaintiff has presented a case of an initially incomplete production resulting from flawed searches. For example, defendant inadvertently omitted “Suncrest” from the search terms. See Owens Decl. ¶ 5. But negligence and carelessness are not equivalent to misconduct and obstruction. See AliveCor, 2023 WL 4335293, at *5 (denying sanctions because although defendant's failure to halt its auto-deletion process and delay in issuing a litigation hold was irresponsible and careless, the court could not infer defendant purposely destroyed e-mails to avoid its discovery obligations). Indeed, as discussed above, prior to its initial review, defendant provided plaintiff with, and plaintiff did not object to, its search terms and parameters. Owens Decl. ¶ 5. Upon learning that its initial search terms and reviews did not capture all responsive documents, defendant reinterviewed the custodians and ran new searches. Timm Decl., Ex. U at 40-43. Plaintiff also only provided defendant a complete list of customers to use as search terms on February 9, 2024. See Owens Decl. ¶ 2, Ex. EE at 8-10. It may be that, upon learning of Easterly's missing e-mails, defendant was negligent for failing to immediately search the backup platform. In light of defendant's continuous cooperation with plaintiff and investigation into the backup platform, however, the court does not find defendant's actions constitute misconduct warranting a forensic examination. See Lee, 2013 WL 3889209, at *2.
Accordingly, plaintiff has not presented good cause for ordering a forensic examination of Easterly's devices, and plaintiff's other requests are not ripe.
B. Sanctions
Both sides move for Rule 37(a)(5)(A) sanctions. JS at 28-32, 51-52. Rule 37(a)(5)(A) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). Plaintiff has not prevailed on this motion and is therefore not entitled to sanctions. And although defendant has prevailed on the motion, the significant issues raised by plaintiff would make an award of expenses for defendant unjust.
IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel (docket no. 77) is denied.

Footnotes

Exhibit U of the Timm Declaration is an e-mail chain between plaintiff's and defendant's counsel dated January 5, 2024 through February 2, 2024. It is also attached as Exhibit AA to the Phillips Declaration. Exhibit EE of the Owens Declaration also contains substantial portions of this e-mail chain. All citations to exhibits refer to the page numbers designated by CM/ECF.
References to e-mails include the documents attached to the e-mails.
Although defendant identified five documents that had been produced, the Bates-numbers corresponded to three of the identified documents in the January 5 Letter. The court speculates this discrepancy may be due to whether the sides classified e-mails and their attachments separately or as one document.
At the time the JS was submitted, defendant believed the most likely reason the responsive e-mails were not captured was because they did not concern any customers identified by plaintiff in its Complaint. JS at 35, n.10. On February 9, 2023, plaintiff identified additional customers to use in search terms. Owens Decl. ¶¶ 2-3; Ex. EE at 8-10. As noted above, at the hearing defendant pointed to these additional search terms as the primary reason it collected and produced an additional 20,000 documents.