Oro BRC4, LLC v. Silvertree Apartments, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ORO BRC4, LLC, :

: Case No. 2:19-cv-4907

Plaintiff, :

: CHIEF JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Deavers

SILVERTREE APARTMENTS, INC., :

et al., :

:

Defendants. :

_______________________________________

ORO CAPITAL ADVISORS, LLC, :

et al., :

: Case No. 2:19-cv-5087

Plaintiffs, :

:

v. :

:

BORROR CONSTRUCTION CO., LLC, :

et al., :

:

Defendants. :

OPINION & ORDER

This matter is before the Court on Defendants’ Objections, (ECF No. 127), to the

Magistrate Judge’s June 10, 2021, Opinion and Order, (ECF No. 123), GRANTING IN PART

AND DENYING IN PART Plaintiffs’ Motion for Sanctions (ECF No. 109).1 For the reasons set

forth more fully below, the Defendants’ Objections are OVERRULED.

1 The Court will enter this Opinion and Order in each case. Unless otherwise noted, the Court cites to

documents only as they appear on the docket for Case No. 2:19-cv-5087 (“Federal Construction Case”).

I. BACKGROUND

A. Factual Background

On December 31, 2020, Plaintiffs served Defendants with a 30(b)(6) Notice of Deposition

set for January 15, 2021. (ECF No. 114 at 9; ECF No. 127 at 5). The Notice contained thirty-

seven (37) topics seeking testimony by Defendants corporate designee, Mr. Cook. (ECF No. 114

at 9). During the Deposition, Mr. Cook expressed several times that he relied almost solely on his

own knowledge in answering questions and except for one topic, declined to seek information

from other sources within the company, including other employees. (See e.g., ECF No. 109-2,

Cook Dep. 09:22–10:11, 66:11–66:16). After asking Mr. Cook numerous times about his

understanding of the role of a 30(b)(6) designee, Plaintiffs’ counsel declared:

“I don’t believe this deposition is over and we reserve the right to

reconvene it as to these ESI issues and the topics noticed because

it’s our position that we did not have a witness who was able to and

prepared to answer all of the questions relating to all of the topics.”

(Cook Dep. 282:11–282:20.) On January 19, 2021, the Magistrate Judge held a previously

scheduled status conference to follow-up on discovery matters. (See ECF No. 120). There,

Plaintiffs made the Court aware of its position as to Defendants’ 30(b)(6) designee as well as its

position on sanctions; the Magistrate Judge ordered briefing. (See Id. at 3, 8).

B. Procedural Background

On February 9, 2021, Plaintiffs filed a Motion for Sanctions for Defendants’ Failure to

Prepare Witness for 30(b)(6) Deposition, Failure to Disclose Discoverable Information, and

Failure to Preserve Evidence. (ECF No. 109). On June 10, 2021, the Magistrate Judge entered an

Opinion and Order GRANTING IN PART and DENYING in PART Plaintiffs’ Motion for

Sanctions. (ECF No. 123). On June 23, 2021, Defendants filed their Objections to the Magistrate’s

Order. (ECF No. 127). On July 7, 2021, Plaintiffs filed their Response in Opposition. (ECF No.

131). Defendants’ Objections are now fully briefed and ripe for decision.2

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 72(a), district judges reviewing magistrate judges’

orders on non-dispositive matters “must consider timely objections and modify or set aside any

part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28

U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any pretrial matter under this

subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous

or contrary to law.”).

Rule 72(a) provides “considerable deference to the determinations of magistrates.” Siegler

v. City of Columbus, 2:12-CV-472, 2014 WL 1096159, at *1 (S.D. Ohio Mar. 19, 2014) (Marbley,

J.) (quoting In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995)

(internal quotations omitted). This Court has noted that “[w]hile Rule 72(a) does not use the phrase

‘abuse of discretion,’ the standard applied under this rule for a nondispositive motion parallels the

standard outlined in Getsy for appellate review of discovery orders.” Nathan v. Ohio State Univ.,

2:10-CV-872, 2013 WL 139874, at *2 (S.D. Ohio Jan. 10, 2013) (citing Getsy v. Mitchell, 495

F.3d 295, 310 (6th Cir. 2007) (en banc) (“[A] district court abuses its discretion where it applies

the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous

findings of fact.”)).

The “clearly erroneous” standard applies to factual findings by the magistrate judge, while

legal conclusions are reviewed under the “contrary to law” standard. Gandee v. Glaser, 785 F.

2 The same motion was also filed as ECF No. 90 in Case No. 2:19-cv-04907.

Supp. 684, 686 (S.D. Ohio 1992), aff’d, 19 F.3d 1432 (6th Cir. 1994); see also Siegler, 2014 WL

1096159, at *1–2 (S.D. Ohio Mar. 19, 2014). A factual finding is “clearly erroneous only when

the reviewing court is left with the definite and firm conviction that a mistake has been committed.”

Siegler, 2014 WL 1096159, at *1 (citing Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d

135, 140 (6th Cir. 1985)). A district court’s review of legal conclusions under the “contrary to

law” standard “may overturn any conclusions of law which contradict or ignore applicable precepts

of law.” Gandee, 785 F. Supp. at 686 (quoting Adolph Coors Co. v. Wallace, 570 F.Supp. 202,

205 (N.D. Cal. 1983); see also Peters v. Credits Prot. Ass’n LP, 2:13-CV-0767, 2015 WL

1022031, at *3 (S.D. Ohio Feb. 19, 2015) (Marbley, J.).

III. LAW AND ANALYSIS

Defendants object to the Opinion and Order granting, in part, Plaintiffs’ Motion for

Sanctions (ECF No. 123). (ECF No. 127). Defendants assert six separate objections: two it argues

are clearly erroneous and contrary to law; one it maintains is simply clearly erroneous; and three

it contends are contrary to law. (Id. at 1–2). In the first category—objections it alleges are clearly

erroneous and contrary to law, Defendants object to the Magistrate Judge’s conclusion that

Plaintiffs met the standard in S.D. Ohio Civ. R. 37.1 and that its 30(b)(6) witness was not prepared.

(Id. at 1). In the second category—characterizing the Magistrate Judge’s decision as only clearly

erroneous, Defendants object to the finding that they failed to disclose devices that could contain

discoverable information. (Id. at 2). Finally, Defendants assert two objections that it argues are

contrary to law. (Id.). Defendants maintain that the Magistrate Judge applied the wrong standard

when awarding sanctions regarding its 30(b)(6) witness and disclosure of devices potentially

containing ESI. (Id.). Defendants also contend that even if this Court finds that the awarded

sanctions are permissible as a general matter, the portion of the sanctions that are punitive rather

than compensatory must be vacated because punitive sanctions in the discovery context are

contrary to law. (Id.). This Court will consider each objection along with Plaintiffs’ corresponding

responses in turn.

A. S.D. Ohio Civ. R. 37.1 & Fed. R. Civ. P. 37(a)

Defendants assert that Plaintiffs failed to satisfy the requirements of S.D. Ohio Civ. R. 37.1

and Fed. R. Civ P. 37(a) and as such, the Magistrate Judge’s conflicting finding is clearly erroneous

and contrary to law. (Id. at 4). With respect to Local Rule 37.1, S.D. Ohio Civ. R. 37.1, Defendants

maintain that Plaintiffs disregarded the requirement of “exhausting all extrajudicial means for

resolving their differences” before taking their dispute to the Magistrate Judge. (Id.) (citing S.D.

Ohio Civ. R. 37.1). Instead, Defendants contend, Plaintiffs immediately raised the issue directly

with the Court during the Rule 37.1 informal discovery dispute conference. (Id. at 5).

Regarding FRCP 37, Defendants argue that the rule requires a party seeking sanctions in

the discovery context to “include a certification that the movant has in good faith conferred or

attempted to confer with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.” (Id. at 4) (citing Fed. R. Civ. P. 37(a)(1)). Relying on In re

Johnson, 408 B.R. 115, 119 (S.D. Ohio 2009), Defendants assert that Plaintiffs’ Motion for

Sanctions must fail for wont of the conferment requirement. (Id.). Additionally, according to

Defendants, to find that Plaintiffs met their requirements under either S.D. Ohio Civ. R. 37.1 or

Fed. R. Civ. P. 37(a)(1) is clearly erroneous because it is unsupported by the record and

accordingly makes the conclusion based on that finding contrary to law. (Id. at 5–6).

Plaintiffs rejoin, contending that it did satisfy the duty to exhaust extrajudicial means.

(ECF No. 131 at 5). Particularly, Plaintiffs point to its statement at the end of the deposition.

There, Plaintiffs’ counsel stated that:

“they didn’t believe this deposition is over and we reserve the right

to reconvene it as to these ESI issues and the topics that were in the

deposition notice because it’s our position that we did not have a

designee who was able to and prepared to answer all of the questions

relating to all of the topics.”

(ECF No. 123 at 10 n.3) (quoting ECF No. 109-2 at 71) (internal quotations omitted). Further,

Plaintiffs participated in an informal discovery dispute conference under 37.1. (ECF No. 131 at 4

n.1). Taken together, Plaintiffs argue, its statement near the end of the deposition coupled with

the time elapsed to the informal conference, and seemingly the informal conference itself, was

sufficient to discharge its duties under 37.1 allowing it to seek sanctions. (Id. at 4–5). Importantly,

the Magistrate Judge agreed with Plaintiffs on this point. (See id. at 6). Moreover, because

Defendants failed to make a good faith effort to prepare its witness under 30(b)(6), Plaintiffs

maintain that no further extrajudicial means could have altered this result. (Id.). Finally, Plaintiffs

do not respond to Defendants’ arguments concerning Fed. R. Civ. P. 37(d). (See id.).

S.D. Ohio Civ. R. 37.1 requires movants filing under Federal Rules 26 or 37 to take certain

steps before bringing the matter to the attention of the Court. Asamoah v. Amazon.com Servs.,

Inc., No. 2:20-CV-3305, 2021 WL 3637730, at *5 (S.D. Ohio Aug. 17, 2021) (citing S.D. Ohio

Civ. R. 37.1) (Marbley, J.) (“Additionally, Local Rule 37.1 states that before filing a motion …,

the parties must exhaust all extrajudicial means for resolving their differences and issues.”)

Specifically, the rule provides that “[o]bjections, motions, applications, and requests relating to

discovery shall not be filed in this Court under any provision in Fed. R. Civ. P. 26 or 37 unless the

parties have first exhausted among themselves all extrajudicial means for resolving their

differences.” S.D. Ohio Civ. R. 37.1. The rule continues: “After extrajudicial means for the

resolution of differences about discovery have been exhausted, in lieu of immediately filing a

motion under Fed. R. Civ. P. 26 or 37, any party may first seek an informal telephone conference

with the Judge assigned to supervise discovery in the case.” S.D. Ohio Civ. R. 37.1.

Here, the Magistrate Judge found that Plaintiffs satisfied this threshold requirement. In a

footnote, the Magistrate Judge reached this conclusion, apparently in part, based on the above

assertion made by Plaintiffs’ counsel at the conclusion of Mr. Cook’s deposition. (ECF No. 123

at 10 n.3). Then, the Magistrate Judge noted that the parties “discussed Oro’s concerns with the

Court during an informal Teleconference on January 19, 2021, as contemplated by Local Rule

37.1.” (Id.). Finally, the order asserts “that Local Rule 37.1 does not preclude the imposition of

sanctions.” (Id.). While this assertion is absent authority, the Court does note that the Magistrate

Judge’s Order does appear to rely, in part, on Plaintiffs’ Motion for Sanctions. (Id.) (citing ECF

No. 119 at 2–3). There, Plaintiffs assert a waiver argument but also cite no authority. (See ECF

No. 119 at 2–3).

Next, Plaintiffs contend that the exhaustion of extrajudicial means under Local Rule 37.1

is relaxed when compliance would be futile, relying on three decisions by Judge Frost: William F.

Shea, LLC v. Bonutti Rsch., Inc., 2:10-CV-615, 2012 WL 3780299, at *3 (S.D. Ohio, Aug. 31,

2012); E.E.O.C. v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166, 171 (S.D. Ohio 2013); and

Tdata Inc. v. Air. Tech. Pub., No. 2:03-CV-264, 2008 WL 2169353, at *3 (S.D. Ohio May 21,

2008). (Id.). Each case, however, is inapposite.

First, in William F. Shea, LLC., the court found that the movant did enough to satisfy 37.1

by writing to opposing counsel with a proposed remedy, waiting two weeks for a reply, and then

filing the Motion for Sanctions with the court. Moreover, the court was motivated in no small part

by the time-constraint the parties were up against: a looming final pretrial conference and pretrial

motions deadlines. Instead, in the case sub judice, discovery is not complete. Plaintiffs’ end-of-

deposition declaration and three-day waiting period pales in comparison to the effort by the movant

in William F. Shea, LLC. Similarly, in E.E.O.C. v. JP Morgan Chase Bank, the movant

demonstrated actual exhaustion through its previous dealings with the opposing counsel. Finally,

in Tdata Inc., before the court was a Motion in Limine. There, the Court first assumed without

deciding that Local Rule 37.1 applied to Motions in Limine. Then, like the previously mentioned

cases, waived the requirement of 37.1 on the basis of futility. The Court then expressly limits the

extent of this proposition to “the specific circumstances of this case.” Tdata Inc. v. Aircraft Tech.

Publishers, No. 2:03-CV-264, 2008 WL 2169353, at *4 (S.D. Ohio May 21, 2008). Here, of

course, the case is not on the eve of trial nor is a motion in limine under the Court’s consideration—

the consequence of which would be to exclude testimony of certain witnesses because of the other

side’s failure in discovery. See id. Yet, even absent waiver and futility, the Magistrate Judge was

still well within her discretion to order briefing and ultimately sanctions.

While the better practice is to hold parties and counsel accountable to the requirements of

our local rules, or clearly provide the basis for departure, S.D. Ohio Civ. R. 1.1(c) empowers

Judges in this court with significant discretion concerning such rules. Specifically, the rule

provides that the Local Rules “govern practice and procedure ... unless a Judge orders otherwise

in a given case.” Emerson Climate Techs., Inc. v. M.P.D., Inc., No. 3:15-CV-365, 2016 WL

3637182, at *5 (S.D. Ohio June 29, 2016) (citing S.D. Ohio Civ. R. 1.1(c)). Further, assuming

arguendo that 37.1 was a bar to sanctions here, the Court still retains inherent power to sanction

certain conduct. First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 513 (6th

Cir. 2002) (“We do not interpret Chambers to require the district court, in every instance, to

exhaust consideration of sanctions under other relevant rules and/or statutes.”). Although the

Court reminds the litigants of its inherent power, here Local Rule 37.1 is the proper device.

Because Magistrate Judge Deavers had the authority to relax what would otherwise be a condition-

precedent to seeking sanctions, her articulation of the law and her factual findings are neither

contrary to law nor clearly erroneous. Thus, Defendants’ objection to the Magistrate Judge’s order

on this basis is OVERRULED.

Regarding Defendants assertion that Plaintiffs failed to satisfy Fed. R. Civ. P. 37(a), it is

important to note that Plaintiffs move for sanctions under Fed. R. Civ. P. 37(d). (ECF No. 119 at

3). As such, the requirements of Fed. R. Civ. P. 37(a)(1) are irrelevant to the Court’s analysis.

Furthermore, while 37(d) has its own certification requirement, the plain language of Fed. R. Civ.

P. 37(d)(1)(B) does not extend to sanctions regarding a party’s failure to attend its own deposition.

And while Defendants would surely argue that its 30(b)(6) witness was physically present,

presentation of an unprepared witness can be treated as a failure to attend. Wicker v. Lawless, 278

F. Supp. 3d 989, 1000 (S.D. Ohio 2017) (“[P]roducing an unprepared Rule 30(b)(6) witness is

tantamount to a failure to appear, which may warrant sanctions under Fed. R. Civ. P. 37(d)); Allen

v. Wyndham Vacation Resorts, Inc., No. 3:18-CV-259-TAV-DCP, 2021 WL 2434355, at *3 (E.D.

Tenn. Mar. 18, 2021) (same); Adkisson v. Jacobs Eng’g Grp., Inc., No. 3:13-CV-505-TAV-HBG,

2021 WL 1685955, at *4 (E.D. Tenn. Feb. 3, 2021) (same); Little Hocking Water Ass’n, Inc. v.

E.I. Du Pont de Nemours & Co., No. 2:09-CV-1081, 2013 WL 1196606, at *14 (S.D. Ohio Mar.

25, 2013) (same). Moreover, courts have found—consistent with the language of Fed. R. Civ. P.

37(d)(1)(B)—that the certification requirement does not apply to such sanctions. Bell-Coker v.

City of Lansing, No. 1:07-CV-812, 2009 WL 166556, at *5 (W.D. Mich. Jan. 21, 2009) (“The

Rule does not require such consultation and certification, however, where the movant seeks

sanctions for a party’s failure to attend its own properly-noticed deposition.”); see Black Horse

Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 302 (3d Cir. 2000); see also Gonzalez v.

Batmasian, 319 F.R.D. 403, 404 (S.D. Fla. 2017). Thus, Defendants’ objection to the Magistrate

Judge’s order on this basis is OVERRULED.

B. Alleged Violation - Preparation of 30(b)(6) Witness

Defendants also argue that the Magistrate Judge’s finding that Defendants’ 30(b)(6)

witness was unprepared for noticed topics 7-11, 16-23, and 36-37 was clearly erroneous and

contrary to law. (ECF No. 127 at 6). First, Defendants’ objection to the Magistrate Judge’s factual

finding under the clearly erroneous standard. Defendants argue that the Magistrate Judge

erroneously found that Mr. Cook did not adequately prepare for the deposition. In fact, according

to Defendants, Mr. Cook and counsel spent months getting ready, albeit indirectly, for the

deposition. (Id.). Defendants minimize the distinction between active and passive preparation,

asserting that they should be credited with passively preparing their witness for months.3 (Id.).

Finally, Defendants argue it was Mr. Cook’s poor memory, not his unpreparedness, that led to his

failure to answer some questions during his deposition. (Id. at 7).

Next, Defendants argue that the Magistrate Judge’s conclusion was contrary to law because

she did not apply the appropriate standard. (Id. at 6). Specifically, Defendants argue that the

Magistrate Judge failed to compare the testimony of Mr. Cook against the noticed topics. (Id.).

Indeed, according to Defendants, if a 30(b)(6) witness provides substantive responses to some

topics, the court should conclude that the witness was sufficiently prepared. (Id. at 8). Defendants

rely on Little Hocking Water Ass’n, Inc. v. E.I. DuPont de Nemours & Co., 2013 WL 1196606, at

*17, 23-25 (S.D. Ohio Mar. 25, 2013) for this proposition. (Id.). Further, according to Defendants,

had the Magistrate Judge applied this standard correctly, she would have found that Mr. Cook

3 Defendants were served with a Deposition Notice on December 31, 2020 for a Deposition on January

15, 2021. Thus, the passive preparation theory Defendants rely on, appears to mean discussing certain

information with their client before they knew he was going to be deposed as a 30(b)(6) witness.

sufficiently discharged his duties to provide responses to the noticed topics. (Id.). In fact,

Defendants argue, Mr. Cook’s testimony shows that he had sufficiently answered questions on

every noticed topic. (Id.).

Plaintiffs reply, that not only was the Defendants’ 30(b)(6) witness unprepared, but it was

also the Magistrate Judge’s application of the correct legal standard that revealed this fact. (ECF

No. 131 at 6). Plaintiffs cite several excerpts from the Magistrate Judge’s Order comparing the

testimony of Defendants’ witness with the noticed topics. (Id. at 7). Moreover, Plaintiffs assert

that in deciding whether the Magistrate Judge actually compared the witness’s testimony “with the

noticed topics, this Court must give ‘considerable deference’ to her determination,” relying on

Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 550 (S.D. Ohio 2014). (Id.).

Additionally, Plaintiffs argue that the Magistrate Judge applied the appropriate legal

standard and that Defendants arguing otherwise is supported solely by vague criticism. (Id. at 8).

Instead, Plaintiffs assert, Defendants’ alternative explanation for their witness’s performance—

that Mr. Cook has a bad memory—is simply unavailing. (Id.). According to Plaintiffs, this is not

excusable under the plain language of Fed. R. Civ. P. 30(b)(6). (Id. at 9). Moreover, Plaintiffs

argue, Defendants’ reliance on Little Hocking Water Ass’n, Inc. for the proposition that a witness

can still be considered prepared in the event he answers some questions and not others in a

deposition is not applicable in this scenario. (Id. at 9–10). Unlike the witness in Little Hocking

Water Ass’n, Inc., who was unprepared for one noticed topic, Plaintiffs maintain, Mr. Cook was

unable to provide information on more than fifteen topics. (Id. at 10). Thus, according to

Plaintiffs, the Magistrate Judge’s Order appropriately applied the right legal standard and correctly

concludes that Mr. Cook was unprepared. (Id.).

To determine whether a 30(b)(6) witness is adequately prepared, “courts should compare

the testimony elicited in the deposition to the topics noticed.” Wicker, 278 F. Supp. 3d at 1000–

01. Moreover, “[t]he party seeking sanctions must make at least an initial showing … suggesting

that the designee’s preparation was inadequate.” Id. at 1000 (citing Eid v. KLM, 310 F.R.D. 226,

229 (S.D.N.Y. 2015) (“Plaintiffs have not met their burden of establishing that the Defendants'

preparation of their Rule 30(b)(6) witness was deficient.”). Finally, determinations by Magistrate

Judges are afforded ‘considerable deference’ under Rule 72(a). Langenfeld, 299 F.R.D. at 550.

Here, the Magistrate Judge’s Order, as consistent with the record, belies the assertions

made by Defendants. First, the Magistrate Judge found Defendants’ 30(b)(6) witness unprepared

for noticed topics 7-11 (“Litigation hold topics”), 16-23 (“Rankey and Weaver topics”), and 36-

37. (ECF No. 123 at 27). Under topic 7, for example, concerning the details of Defendants’

receipt, internal discussion, and distribution of the litigation hold letter, Mr. Cook testified that he

had no idea if anyone at Defendants had ever received the letter. (ECF No. 109-2, Cook Dep.

236:14–237:03). When Plaintiffs’ counsel followed up, reminding Mr. Cook of his obligations as

the designated 30(b)(6) witness, Mr. Cook stated: “You know, I received this list Tuesday. 37

topics. I did my best to prepare for it.” Indeed, Mr. Cook was emphatic about only having two

days to prepare even though Defendants had been noticed with the topics two weeks prior. (See

ECF No. 109-2, Cook Dep. 249:08–249:19). These statements, however, were simply a small

sample of the deposition testimony the Magistrate Judge compared to the noticed topics. The

Court deals with each in turn, finding that the Magistrate Judge appropriately applied the

comparison standard, and as such, found that Defendants’ 30(b)(6) witness was not adequately

prepared for his deposition. As more fully detailed below, the Defendants’ objections to this

finding of the Magistrate Judge as to each topic is OVERRULED.

1. Matters Related to The Litigation Hold Letter (Topics 7, 9)

Defendants assert that the Magistrate Judge did not adequately compare the noticed topics

to the deposition transcript of Mr. Cook. Yet, the Magistrate Judge’s Order belies this conclusion.

(See e.g., ECF No. 123 at 3–4). Topics 7 and 9 each relate to the Litigation Hold Letter (“Letter”)

served by Plaintiffs on Defendants. (ECF No. 109-2 at 104). Topic 7 concerns the facts and

circumstances surrounding the receipt of the Letter; Topic 9 is about internal communications

about the Letter. (Id.). The following exchange demonstrates Mr. Cook’s level of preparation:

Q: But you said you don’t know whether the litigation hold letter from Oro was

ever received by Borror – I’m sorry – from Oro’s counsel was ever received

by Borror.

A: How would I know?

Q: Well, you’re supposed to ask other people if you don’t know enough to

answer the questions relating to this topic. It says the receipt of the

litigation hold letter and how and to what extent it was shared, discussed,

and/or distributed. And I’m saying: You don’t even know if it was received.

Do you know whether that litigation hold letter was distributed within

Borror?

A: You know, I received this list Tuesday. 37 topics. I did my best to prepare.

(ECF No. 123 at 3) (citing ECF No. 109-2, Cook Dep. 247:06–247:22). The above

exchange not only demonstrates that the Magistrate Judge undertook a comparison of noticed

topics 7 and 9, but also reached the reasonable conclusion that Mr. Cook fundamentally

misunderstood his role as a 30(b)(6) witness. (See id.). Further, on Topic 9, Mr. Cook admits he

“did not speak to other people internally on this, being I received it Tuesday.” (ECF No. 109-2,

Cook Dep. 249:08–249:09). Thus, on these topics, Defendants’ objection that the Magistrate

Judge reached an erroneous factual conclusion—that Mr. Cook was unprepared and unable to

answer questions concerning these topics—and also that she applied the incorrect legal standard

of comparing the deposition testimony to the noticed topics is belied by Mr. Cook’s testimony.

Accordingly, Defendants’ objections as to these topics are OVERRULED.

2. Matters Related to Any Implemented Litigation Hold Procedures (Topics 8, 10,

11)

Topics 8, 10, and 11 all relate to the implementation of any litigation hold procedures

(“Hold Procedures”) by Defendants. (ECF No. 109-2 at 104). Topic 8 concerns Hold Procedures

generally; Topics 10 and 11 ask about any specific Hold Procedures taken upon receipt of the

Litigation Hold Letter and before receipt, respectively. (See id.).

As for Topic 8, Mr. Cook was unable to provide even the most routine aspects of Borror’s

implementation of litigation holds. Indeed, Mr. Cook could not explain why he sought certain

archived data—email accounts—from one of its vendor’s servers.

Q. And those were -- because those were

people that would have access -- or would have

information or potentially would have e-mails

relating to the disputes with Oro. Correct?

MS. CARWILE: Objection.

A. I just went off the list. See, I didn't

know the -- I don't know what the details of what

the lawsuit was about or is about.

Q. But your understanding was you were

requesting these accounts because these accounts

needed to be held for litigation purposes.

Correct?

A. Yes.

MS. CARWILE: Objection.

THE WITNESS: Sorry.

Q. Okay. And that would have included

then -- what I wanted to know is: So basically

what Borror's position is is that all these people

here potentially would have e-mails or information

relating to Oro. Correct?

MS. CARWILE: Objection.

A. I don't know.

Q. Well, is there somebody at Borror that

would know that?

A. Bethany gave me the list.

(ECF No. 109-2, Cook Dep. 99:19–100:04). Accordingly, when asked about the details of its

litigation hold procedures, Mr. Cook repeatedly answered that he either didn’t know or that

someone else was better suited to answer counsel’s questions. (See id.).

As for Topics 10 and 11, Mr. Cook admitted, as discussed previously, that he was unaware

if Borror had even received a litigation hold letter. (ECF No. 123 at 3) (citing ECF No. 109-2 at

62, Cook Dep. 247:06–247:22). Accordingly, his lack of knowledge and investigation of the letter

itself significantly undermined his ability to answer questions related to Borror’s receipt of the

letter. Again, this was excerpted and discussed at length in the Magistrate Judge’s Order. (See

id). Thus, the Magistrate Judge’s factual conclusion that Mr. Cook could not adequately answer

the noticed topics is not clearly erroneous nor did she reach this conclusion by applying a clearly

incorrect legal standard. Defendants claim she did not compare the deposition testimony to the

noticed topics when it is clear that is exactly what took place. Further, this lack of knowledge and

particularly, Mr. Cook’s reference to other Borror employees as the more appropriate person to

ask demonstrates a fundamental misunderstanding of the 30(b)(6) role and more importantly,

Borror’s failure to prepare its corporate witness. Accordingly, Defendants’ objections as to these

topics are OVERRULED.

3. Matters related to Rankey and Weaver’s departure (Topics 22-23)

Topics 22 and 23 relate to the departure of former employees Jeff Rankey and Kate

Weaver. (ECF No. 109-2 at 105). Notably, the example excerpted and discussed in the Magistrate

Judge’s Order efficiently demonstrated two aspects of Mr. Cook’s deposition: (1) that he was

specifically unprepared to discuss Topics 22 and 23; and (2) that he was again fundamentally

unaware of his obligations as a 30(b)(6) witness. Mr. Cook testified:

Q: But what you’re telling me is you did not come here today prepared to talk

about the timing of their departure. Is that correct?

A: I guess so.

Q: Well, you say, “I have no knowledge” regarding their departure, right?

A: Correct.

Q: Okay. Did you make an effort to go talk to anybody at Borror in order

to find out the timing of their departures?

A: No, I did not.

Q: Did you realize that you have an obligation to do that as the designee

for Borror?

A: I did not.

(ECF No. 123 at 3) (citing ECF No. 109-2 at 48, Cook Dep. 191:06–191:19). Thus, yet again, this

demonstrates that the Magistrate Judge’s factual conclusion that Mr. Cook could not adequately

answer the noticed topics is not clearly erroneous nor did she reach this conclusion by applying a

clearly incorrect legal standard. Accordingly, Defendants Objections to this finding are

OVERRULED.

4. Matters related to ESI being stored locally on Borror Electronic Devices (Topics

36 and 37)

Topics 36 and 37 relate to the storage of ESI on local devices. (ECF No. 109-2 at 106).

First, Topic 36 concerns the actions Borror took to ascertain if the electronic devices used by some

former employees stored such ESI. (Id.). Concerning this topic, Plaintiffs’ counsel asked Mr.

Cook whether he spoke to any employees about what they might have stored on their local device.

In addition to admitting he had not spoken to anyone, he also admitted he had not even checked

the local devices for ESI. He stated:

A. No, I haven't sat down with any

individual and said, What do you have stored on

your device?

Q. Whether they're a current or former

employee. Okay. Is that right?

A. Definitely if they're not -- are a

former employee because I haven't talked to any of

them.

…

A. We thought we were preserving all the

information by grabbing all those PST files,

everyone's e-mail.

(ECF No. 109-2 at 59, Cook Dep. 234:12–235:12). Putting aside the proposition that the head of

IT simply overlooked checking for stored information on the local hard drive of the devices, Mr.

Cook follows that admission with the dubious assertion that the email files represented the entirety

of the litigation hold. While the Defendants argue that the above exchange represented knowledge

on the topic (See ECF No. 127 at 9), from the vantage point of the Court it instead appears that

Borror’s corporate witness was either being intentionally obstructive or, perhaps more likely, was

uninformed of his duties as a 30(b)(6) witness.

Next, Topic 37 involves how Borror employees accessed typical software programs on

their electronic devices as well as the use of local desktops from 2017 onward. (ECF No. 109-2

at 106). First, it is important to note that asking whether employees save items to their local

desktop is a subset of asking whether those same employees save things to their local machine

generally, as the desktop is but a location on the machine. As such, not having the details about

the entire machine necessarily encompasses the use of desktops over the same time period. Thus,

to the extent Mr. Cook had no details to offer about the storage of information on machine hard

drives, the same can be said about the subset topic about saving on desktops. Thus, the fact that

the Magistrate Judge reached the conclusion that Mr. Cook was unprepared to talk about a

significant portion of Topic 37 is not clearly erroneous. Accordingly, Defendants Objections to

this finding are OVERRULED

5. Matters related to Rankey and Weaver’s email accounts (Topics 16-21)

Topics 16-21 relate to the email accounts of former employees Jeff Rankey and Kate

Weaver. (ECF No. 109-2 at 104–105). Topics 16 and 17 are about communications involving,

inter alia, the preservation of those email accounts, internally and externally (with RDI),

respectively. (See id.). Topics 18 and 19 are about the deletion (18) and recovery (19) of those

email accounts. (See id. at 105). Topic 20 is about all the places where such emails could have

been stored. (See id.). Finally, Topic 21 is about Weaver allegedly deleting her emails before she

left Borror. (See id.).

As for Topics 16 through 21, this is the only portion of the fifteen deposition topics that

was not abundantly clear in the Magistrate Judge’s Order. That’s because it is not entirely clear

that the deponent was ever asked about these topics. At first blush, this appears problematic. But

when viewed in context of the deposition, there was no need to engage the deponent deeply on

subjects where his earlier answers demonstrated his inability to answer those questions. Thus,

despite this feature, Defendants do little to disturb the Court’s finding on this point. Defendants’

Objections and Plaintiffs’ Motion for Sanctions forcefully elucidate this conclusion.

In its Objections, Defendants lodge vague criticisms about the Magistrate Judge not

comparing Mr. Cook’s testimony to the noticed deposition topics. At one point, however,

Defendants cite their Response in Opposition to Plaintiffs’ Motion for Sanctions. There, they

assert that “Mr. Cook … provided all of the information that Borror had concerning the Mr. Rankey

and Ms. Weaver’s email accounts.” (ECF No. 127 at 10) (citing ECF No. 114 at 14). This part

then references another portion of the same brief: the discussion of the former employees’ emails.

(See ECF No. 114 at 14).

First, Ms. Weaver. To support the assertion that Mr. Cook testified to the full extent of

Borror’s knowledge, Defendants referenced Exhibits. Those Exhibits note that Ms. Weaver left

the company in 2018; deleted her entire mailbox; and that efforts at retrieval were unsuccessful.

(See ECF No. 114 at 5–6). Notably, Defendants do not point to any portion of the Deposition

record to demonstrate that Mr. Cook’s testimony was consistent with this account. (See id). Thus,

this portion of the brief is wholly unresponsive as to whether Mr. Cook was prepared to testify on

behalf of the corporation concerning its comprehensive knowledge of Weaver’s email account.

Next, Mr. Rankey’s emails. Again, instead of using the deposition testimony to

demonstrate that Mr. Cook was prepared for this topic, Defendants turned to other sources of

information including Exhibits and Declarations of other Borror employees. (See ECF No. 114 at

6). While this information is generally helpful in providing context, it does not speak to whether

Mr. Cook was able to provide that information during his deposition as required. Instead,

Defendants need to go outside of the deposition record is telling—it suggests that Mr. Cook’s

testimony, on its own, could not support their theory that Mr. Cook adequately responded to the

noticed topics.

Importantly, in Plaintiffs’ Motion for Sanctions, they noted that Mr. Cook’s reference

documents he used throughout his deposition was blank as to these topics. (ECF No. 109 at 11).

Thus, it is entirely plausible that Plaintiffs’ opted not to probe further since the document

Defendants provided in the beginning of the deposition and identified as a reference for Mr.

Cook—a document Mr. Cook intimated was necessary for his recollection—suggested he had

limited to no knowledge on these topics.4 (ECF No. 109-2 at 4). The Magistrate Judge, having

expressly written on all preceding topics, may have concluded that there was no reason to scour

the record on these topics, given the witness’s performance on the previous topics.

Moreover, because Plaintiffs have met their initial burden of “suggesting that the

designee’s preparation was inadequate,” this additional information when viewed in light of the

Defendants other shortcomings provided an adequate basis for her to conclude Defendants’

witness was also not prepared for this topic. Wicker, 278 F. Supp. 3d at 1000. Furthermore, “[a]

factual finding is “clearly erroneous only when the reviewing court is left with the definite and

firm conviction that a mistake has been committed.” Siegler, 2014 WL 1096159, at *1 (citing

Heights Cmty. Cong., 774 F.2d at 140). Here, it is difficult to reach the opposite conclusion based

on the totality of the circumstances presented by Plaintiffs and Defendants. If Defendants were

prepared for their 30(b)(6) deposition as they assert, a simple reference to the deposition transcript

could have demonstrated as such. They have failed to provide any relevant citations. Thus, they

have similarly failed to demonstrate that the Magistrate Judge’s finding on this point is clearly

erroneous. Accordingly, Defendants’ objections on this point are OVERRULED.

C. Alleged Violation - Disclosure of Devices that could contain discoverable

information

Defendants also argue that the Magistrate Judge’s finding that Defendants failed to disclose

that some of its electronic devices could contain discoverable information is clearly erroneous.

(ECF No. 127 at 10). According to Defendants, the record and the exhibits show that Defendants

4 A. I typed some notes in on the deposition sheet.

Q. Okay. And you are using those again to kind of help—and I understand that—to help refresh your

recollection as to some of the dates and names?

A. Oh, absolutely. Otherwise it would be a big fog.

Cook Dep. 15:18–15:23.

and counsel were sufficiently diligent in determining whether employees of Borror were able to

save, view, or modify documents on their local computers as opposed to the network. (Id. at 10–

11). Instead, Defendants again point to their witness’s poor memory as the primary reason “some

information” was not timely disclosed. (Id. at 11). In response, Plaintiffs simply assert that the

sanctions imposed for failure to disclose such devices were neither clearly erroneous nor contrary

to law. (See ECF No. 131 at 13–14).

In determining whether Defendants complied with the Magistrate Judge’s July 13, 2020,

discovery Order, she simply compared what was required by the litigants in her previous Order to

the inconsistent statements made by Defendants. (See ECF No. 123 at 19). Although Defendants

disagree with the conclusion reached by the Magistrate Judge, they do not appear to challenge the

methodology employed to reach this conclusion. (See ECF No. 127 at 10–12). Instead,

Defendants appear to place great emphasis on its counsel’s effort in working with its clients to

ensure the representation Defendants made was defensible. (Id.).

Yet, the diligence of counsel to determine whether its client complied with a court order is

somewhat of a red herring: Rule 37(b)(2) authorizes the district court to sanction parties to the

litigation as well as attorneys. See Fed. R. Civ. P. 37(b)(2)(C) (“[T]he court must order the

disobedient party, the attorney advising that party, or both to pay the reasonable expenses,

including attorney’s fees.”) (emphasis added). As made abundantly clear by the Magistrate

Judge’s Order, Borror, (i.e., Defendants) not Borror’s counsel, is to pay Oro’s attorney’s fees

associated with the Motion for Sanctions. (ECF No. 123 at 22). Accordingly, the emphasis on the

effort of Defendants’ lawyers, while important as a general matter, does nothing to disturb the

Magistrate Judge’s finding that Borror’s errant initial disclosure about devices should have been

corrected in the first instance, and at the very least, corrected sooner. Moreover, that finding—

that Borror made inconsistent statements about the possibility of ESI on certain devices—was

exceedingly evident when the Magistrate Judge compared deposition statements to its own ESI

disclosures. (Id. at 19). Indeed, Defendants’ 30(b)(6) witness openly admitted that it was possible

for employees to have information located on their local machine’s hard drive. (Id.). To argue

that the Magistrate Judge was clearly erroneous on this point strains the credulity of the Court.

Accordingly, the objections on this basis are OVERRULED.

D. Appropriate Standard for Awarding Sanctions

1. 30(b)(6)

Defendants also argue that the Magistrate Judge failed to apply the appropriate standard

for awarding sanctions; as such, her decision to award sanctions is contrary to law. (ECF No. 127

at 8). First, Defendants cite Marietta Health Care Physicians, Inc. v. Yoak, 2021 WL 1310335, at

*2-3 (S.D. Ohio Apr. 8, 2021) for what they consider to be the correct standard. Under that

standard, courts must consider: “(1) whether the party’s failure to cooperate in discovery is due to

willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party’s failure to

cooperate in discovery; [and] (3) whether the party was warned that failure to cooperate could lead

to the sanction.” (Id.) (quoting Marietta Health Care Physicians, Inc. v. Yoak, 2021 WL 1310335,

at *2-3 (S.D. Ohio Apr. 8, 2021)) (internal quotations omitted). Moreover, according to

Defendants, had the Magistrate Judge applied that standard, sanctions would not have issued. (See

id. at 8–10). Thus, because the Magistrate Judge failed to apply the appropriate standard, her

conclusion is contrary to law. (Id. at 10).

Plaintiffs retort that the Magistrate Judge not only applied the appropriate standard but also

did so correctly. (ECF No. 131 at 10). First, Plaintiffs note that sanctions regarding 30(b)(6)

depositions are governed by Federal Rule of Civil Procedure 37(d). (Id.). Furthermore, relying

on Little Hocking Water Ass’n, Inc., Plaintiffs maintain that Magistrate Judges have significant

discretion under that standard to determine appropriate sanctions and she chose a relatively mild

option. (Id. at 11) (citing Little Hocking Water Ass’n, Inc., 2013 WL 1196606, at *17)). Moreover,

Plaintiffs assert that Defendants advocate for the wrong, more stringent standard. (Id. at 12).

Finally, under the appropriate standard used, the Magistrate Judge correctly found that the

Defendants were subject to sanctions for producing an unprepared 30(b)(6) witness. (Id. at 13).

Although “[a]bsolute perfection is not required of a 30(b)(6) witness, producing an

unprepared Rule 30(b)(6) witness is tantamount to a failure to appear, which may warrant sanctions

under Fed. R. Civ. P. 37(d).” Wicker, 278 F. Supp. at 1000 (citing Lutz v. St. Paul Fire & Marine

Ins. Co., No. 1:03–cv–750, 2005 WL 2372871, *7–8 (S.D. Ohio May 24, 2005)) (internal

quotations omitted). Moreover, “Rule 37(d) provides for a variety of sanctions for a party’s failure

to comply with its Rule 30(b)(6) obligations, ranging from the imposition of costs to preclusion of

testimony and even entry of default.” Id. at 1000 (citing QBE Ins. Corp. v. Jorda Enters., 277

F.R.D. 676, 688 (S.D. Fla. 2012).” When determining whether to impose “sanctions, courts should

compare the testimony elicited in the deposition to the topics noticed under Rule 30(b)(6) in order

to determine the adequacy of the witness’s preparation.” Id. at 1000–01. (citing QBE, 277 F.R.D.

at 685 (reviewing transcript)).

Beyond that, Rule 37 provides that rather than “or in addition to [the above mentioned]

sanctions, the court must require the party failing to act, 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. Although Defendants urge this Court to apply the four-factor test set forth in Marietta

Health Care Physicians, Inc. v. Yoak, No. 2:19-CV-5626, 2021 WL 1310335, at *2 (S.D. Ohio

Apr. 8, 2021), it is inapposite for several reasons.

First, in Marietta, the Court was analyzing whether to sanction a party that failed to comply

with a Rule 16 scheduling Order. Marietta Health Care Physicians, Inc., 2021 WL 1310335, at

*2. Moreover, the plain language of Rule 16(f) provides for the same sanctions in 37(b). See Fed.

R. Civ. P. 16(f)(1). As such, courts in this circuit have recognized that sanctions pursuant to Rule

16(f) are evaluated in the same manner as those under Rule 37(b). Marietta Health Care

Physicians, Inc., 2021 WL 1310335, at *2–3. Here, however, Plaintiffs move for sanctions under

37(d). Further, while Rule 37(d)(3) allows for any of the sanctions enumerated in 37(b)(2)(A)(i)-

(vi), the Court must, at least, “require the party failing to act, 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.”

EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 447 (6th Cir. 2020) (citing Fed.

R. Civ. P. 37(d)(3)).

Furthermore, the enumerated sanctions under 37(b)(2)(A)(i)-(vi)—those specifically

authorized under 37(d)(3)—are wholly distinct from those listed in 37(d)(3). See Fed. R. Civ. P.

37(d)(3). Thus, if the Court finds that sanctionable conduct occurred under 37(d) (i.e., “failure to

attend its own deposition, serve answers to interrogatories or respond to a request for inspection”),

whether the Court chooses to invoke sanctions under 37(b), it must always order the 37(d)

sanctions independent of those available under 37(b). Fed. R. Civ. P. 37(d)(3) (“Instead of or in

addition to these sanctions, the court must…”) (emphasis added). Accordingly, while the four-

factor test might be appropriate for at least some sanctions under 37(b), it need not be applied when

invoking sanctions under 37(d).5 Instead all that is required is that the court “compare the

testimony elicited in the deposition to the topics noticed under Rule 30(b)(6) in order to determine

the adequacy of the witness’s preparation.” Wicker, 278 F. Supp. 3d at 1000–01.

Here, the Magistrate Judge did just that. As explained above, she excerpted representative

samples of the deposition testimony provided by Plaintiffs. In the order, she notes with specificity

the 30(b)(6) witness’s fundamental misunderstanding of his role as a 30(b)(6) witness. On more

than one occasion, Mr. Cook openly admitted that he did not realize he had to talk to others

reasonably to obtain the knowledge of the corporation. Moreover, his unpreparedness is further

buttressed by his startling admission that he’d only received the deposition notice a few days prior

despite the company being served more than two weeks prior. The Magistrate Judge applied the

correct standard and applied that standard appropriately. Accordingly, Defendants’ objection on

this basis is OVERRULED.

2. Devices

Defendants again assert that the Magistrate Judge failed to apply the Marietta Health

factors and as such the Order is contrary to law. (ECF No. 127 at 12). Moreover, had the

Magistrate Judge applied those factors, according to Defendants, she would have concluded that

5 The Sixth Circuit reviews “a district court’s decision to invoke Rule 37 sanctions … for an abuse of

discretion.” Yet, this Circuit does not require a district court—either by a Magistrate or a District Judge, in

the first instance or when sitting in review—to consider the factors the Defendants urge from Marietta. See

EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 447 (6th Cir. 2020) (finding the District

Court did not abuse its discretion despite not applying the Marietta four-factor test). Instead, as articulated

by other courts in this circuit, “the Sixth Circuit uses four factors to determine whether the sanction is

warranted … [w]here dismissal is considered.” Morris v. Burton, No. 19-02874-MSN-TMP, 2021 WL

6011105, at *2 (W.D. Tenn. Nov. 30, 2021), report and recommendation adopted, No. 2:19-CV-2874-

MSN-CGC, 2021 WL 5999306 (W.D. Tenn. Dec. 20, 2021). Although some may consider these factors

in the first instance, the test is not mandatory as Defendants urge. Accordingly, the Magistrate Judge

applied the appropriate standard consistent with this Circuit’s law.

its witness simply has a bad memory, not that Defendants failed to make any necessary disclosures.

(Id.). Further, Defendants maintain that Plaintiffs were not prejudiced by this failure to disclose.

(Id.). Accordingly, Defendants argue that absent the appropriate analysis, the Order granting the

sanctions for failure to disclose is contrary to law. (Id. at 13).

Plaintiffs rejoin that the Magistrate Judge applied the correct standard (ECF No. 131 at 13),

contending that the standard applied for the failure to produce a 30(b)(6) witness and a failure to

disclose is identical. (Id. at 14). Beyond that, the sanctions imposed for this conduct is identical

to that imposed for its unprepared 30(b)(6) witness. (Id.). As such, according to Plaintiffs, even if

the Magistrate Judge applied the wrong standard here, the sanctions were appropriate under the

37(d) standard. (Id.).

As noted above, Marietta Health was principally about evaluating a motion for sanctions

under Rule 16(f). There, the Court noted that analysis under 16(f) is the same under 37(b).

Although Defendants do not identify the source of this sanction, they appear to argue that the

Magistrate Judge acted pursuant to 37(b). (See ECF No. 127 at 12). Hence, its repeated invocation

of the 37(b) four factor analysis. For their part, Plaintiffs also fail to offer the specific sanction

authority under which the Magistrate Judge acted. (See ECF No. 131 at 14).

Assuming for the sake of argument that the Magistrate Judge Ordered sanctions for a

failure to disclose without applying the proper standard, this error is harmless. Because the

sanction ordered by the court regarding the 30(b)(6) witness and failure to disclose certain

information is arguably identical, Defendants would need to differentiate between the two

sanctions.6 Simply put, they do not. Further, the sanction ordered for the Defendants’ failure

6 Although an argument could have been asserted that the cost of producing the motion allocated to just this

issue—to the extent that information is able to be disaggregated—is the most appropriate sanction,

Defendants do not raise it. Even if they did, the briefing on just this issue was little more than a page.

Assuming that the Magistrate Judge’s sanctions are the same for both sets of conduct, the district court is

under 37(d) is consistent with 37(d)(3)—namely, “the court must require the party failing to act,

the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees,

caused by the failure.” Fed. R. Civ. P. 37(d)(3). Thus, absent such foregoing arguments,

Defendants’ fail to identify an error in the Magistrate Judge’s analysis such that this court should

vacate the Order. Accordingly, this objection is OVERRULED.

E. Nature and Extent of Awarded Sanctions

Defendants finally argue that even if some sanctions are warranted, the portion of the

sanctions ordered that are punitive must be stricken. According to Defendants, discovery sanctions

must be “compensatory rather than punitive.” (ECF No. 127 at 13) (citing Goodyear Tire &

Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017)). Moreover, relying on Bard v. Brown

County, Defendants contend this rule extends not only to sanctions authorized under rules of civil

procedures, but also to sanctions pursuant to the Court’s inherent power. (Id.) (citing Bard v.

Brown Cty., No. 1:15-CV-00643, 2018 WL 4087928, at *2 (S.D. Ohio Aug. 27, 2018)). Further,

Defendants maintain, punishment or deterrence are inappropriate to consider when crafting such

sanctions. (Id. at 14). Thus, according to Defendants, they should, at most, be made to pay for the

portion of the Plaintiffs’ Motion for Sanctions that deals directly with the alleged misconduct.

(Id.). In Defendants’ estimate, this amounts, at most, to half of the Plaintiffs’ Motion for Sanctions.

(Id.).

Plaintiffs argue that despite having the power to punish via discovery sanctions, the

Magistrate Judge did not use that power when crafting the sanction. (ECF No. 131 at 16). Instead,

only required to consider lesser sanctions, not necessarily articulate that consideration. Bullard v. Roadway

Exp., 3 F. App'x 418, 422 (6th Cir. 2001) (citing Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir.

1997) (“Concomitantly, we do not assume that lesser sanctions were not considered simply because their

consideration is not articulated.”).

her Order merely compensated Plaintiffs for having to seek sanctions and repeat its 30(b)(6)

deposition. (Id.). Thus, even if what Defendants say is true as a legal matter—that discovery

sanctions must not be punitive—the Magistrate Judge’s Order is consistent with this view of the

law. (See id. at 16–17).

First, Defendants’ arguments as to the applicability of Goodyear Tire & Rubber Co. v.

Haeger, 137 S. Ct. 1178 (2017), are persuasive. There, the Supreme Court instructed that “when

using its inherent sanctioning authority (and civil procedures),” the Court must “establish a causal

link—between the litigant's misbehavior and legal fees paid by the opposing party.” Id. Indeed,

in reaching that holding, the Court used Federal Rule of Civil Procedure 37(b)(2)(C) as an example

of a “rule based … regime[] [that] similarly require[s] courts to find such a causal connection

before shifting fees.” Id. at n.5. The language of Rule 37(b)(2)(C) and 37(d)(3) is almost identical.

Notably, both provisions empower the court to require the disobedient litigant or litigant engaging

in misconduct, or its lawyers, “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.” Compare Fed. R. Civ. P. 37(b)(2)(C) with Fed. R. Civ. P. 37(d)(3) (emphasis

added). Moreover, the Supreme Court rejected the use of such sanctions to deter or punish. Instead,

when shifting fees, the appropriate inquiry is whether the fees would have “been incurred except

for the misconduct.” Id. at 1188.

Here, the Court ordered Defendants to participate in an additional 30(b)(6) deposition with

Defendants paying the bill. (ECF No. 123 at 27). Moreover, the Court ordered Defendants to pay

Plaintiffs’ reasonable attorney’s fees associated with Plaintiffs’ Motion for Sanctions. (Id.). And

while Defendants do offer the principle set forth in Haegar as a basis for its request to limit the

amount it is liable for in sanctions, they do not provide any specific support for disaggregating the

fees incurred for producing different portions of the motion. Nor do Defendants offer this Court

anything more than the general principle from Haeger to reduce its liability.

More importantly, the Supreme Court in Haeger foresaw this exact type of request the

Defendants assert and explicitly decided not to adopt such an approach. Id. at 1187. There, the

Haeger Court set out the general standard and added limiting principles to guide district courts in

their task. Articulating the general rule, the Haeger Court noted that the “but-for-causation

standard generally demands that a district court assess and allocate specific litigation expenses—

yet still allows it to exercise discretion and judgment.” Id. Toward that end, “[t]he court's

fundamental job is to determine whether a given legal fee—say, for taking a deposition or drafting

a motion—would or would not have been incurred in the absence of the sanctioned conduct.” Id.

Then, it espoused some helpful limits: “trial courts undertaking that task need not, and

indeed should not, become green-eyeshade accountants (or whatever the contemporary equivalent

is).” Id. (citing Fox v. Vice, 563 U.S. 826, 838 (2011)). Instead, district courts should maintain

their focus on “[t]he essential goal” in shifting fees: which, of course, is “to do rough justice, not

to achieve auditing perfection.” Id. (citing Fox, 563 U.S. at 838). As such, even when applying

the but-for standard, district courts are empowered to “exercise discretion and judgment.” Id.

Here, although articulating the wrong standard, the Magistrate Judge still arrived at a

reasonable and permissible conclusion: Defendants pay for the fees associated with Plaintiffs

having to depose the 30(b)(6) witness a second time and the Plaintiffs’ Motion for Sanctions.

Defendants urge this Court to extend the Supreme Court’s rule in Haeger to a level of granularity—

subparts of a motion—even they could neither reasonably articulate with any specificity nor

demonstrate the feasibility of such a request. Specifically, Defendants’ proposal of having this

Court only hold them liable for half of the Plaintiffs’ Motion for Sanctions is rejected, and the

District Court finds that the Magistrate Judge’s sanction to pay for all of the Plaintiffs’ Motion for

Sanctions consistent with its task “to do rough justice, not to achieve auditing perfection.” Haeger,

137 S. Ct. at 1187 (citing Fox, 563 U.S. at 838). Accordingly, Defendants’ objections on this basis

is OVERRULED.

IV. CONCLUSION

The Court OVERRULES Defendants’ Objections, (ECF No. 127), and AFFIRMS the

Magistrate Judge’s Opinion and Order (ECF No. 123). Plaintiffs shall submit time and expense

records, for each professional who performed work on the Motion for Sanctions and the second

30(b)(6) Deposition within fourteen (14) days. Defendants’ counsel may submit objections to the

requested amount within fourteen (14) days of each movants’ filing.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

DATED: March 18, 2022

30