Moore v. Chertoff

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________
)
REGINALD MOORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 00-953 (RWR/DAR)
)
JANET NAPOLITANO, )
)
Defendant. )
____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiffs, current and former African-American special

agents of the United States Secret Service, brought this

employment discrimination action individually and on behalf of a

putative class of African-American special agents against the

Secretary of the Department of Homeland Security. The defendant

objects to two of the magistrate judge’s discovery orders -- one

sanctioning the defendant for failing to fully respond to one of

the plaintiffs’ interrogatories by a court-ordered deadline, and

one granting the plaintiffs’ motion to compel electronic searches

and sanctioning the defendant by awarding plaintiffs the costs of

the motion. Because the orders reflect no error, but the

defendant has shown reason to modify two sanctions issued by the

magistrate judge, the defendant’s objections to her rulings will

be overruled except as to the dates from which the preclusion and

payment sanctions are measured.
 2

BACKGROUND

The defendant has filed objections to two rulings issued by

the magistrate judge: (1) an April 26, 2007 sanction order

precluding the defendant from introducing into evidence at any

stage, any information responsive to one of plaintiffs’

interrogatories that was not provided to the plaintiffs by

January 30, 2007, and (2) a September 13, 2007 order granting the

plaintiffs’ motion to compel the defendant to search for and

produce responsive e-mails and other electronically stored

documents (collectively referred to only as “electronic

documents”).

DISCUSSION

Federal Rule of Civil Procedure 72(a) and Local Civil Rule

72.2(b) allow a party to seek reconsideration of a magistrate

judge’s decision in a discovery dispute. “On review, the

magistrate judge’s decision is entitled to great deference unless

it is clearly erroneous or contrary to law, that is, if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Moore v.

Chertoff, 577 F. Supp. 2d 165, 167 (D.D.C. 2008) (internal

quotations and citations omitted); see also Graham v. Mukasey,

247 F.R.D. 205, 207 (D.D.C. 2008); LCvR 72.2(c) (“Upon

consideration of objections filed . . . , a district judge may

modify or set aside any portion of a magistrate judge’s order
 3

under this Rule found to be clearly erroneous or contrary to

law.”).

I. SANCTION PRECLUDING USE OF INFORMATION RESPONSIVE TO
INTERROGATORY 4(c)

On December 14, 2006, the magistrate judge granted the

plaintiffs’ motion to compel and ordered the defendant to fully

respond to plaintiffs’ Interrogatory 4(c) by January 19, 2007.1

On February 1, 2007, the plaintiffs filed a motion to sanction

the defendant under Rule 37(b)(2)(B) for violating the court’s

December 14 order, arguing that the defendant had failed to fully

respond to Interrogatory 4(c) by the court-ordered deadline and

unilaterally determined that it would continue to produce

documents on a rolling basis without seeking compromise from the

plaintiffs or relief from the court. (See Pls.’ Mot. for

Sanction of Def. for Failure to Comply with Ct. Order (“Pls.’

Sanction Mot.”) at 2.) In an April 26, 2007 bench ruling, the

magistrate judge granted the plaintiffs’ motion for a sanction

and precluded the defendant from introducing “as evidence, for

whatever purpose and at any stage of discovery or at trial, . . .

1
The defendant moved for reconsideration of the magistrate
judge’s order granting the plaintiffs’ motion to compel, arguing
that the magistrate judge erred by not sustaining some of the
defendant’s objections to Interrogatory 4(c) and by imposing the
January 19, 2007 deadline for production despite the defendant’s
showing that it would need additional time beyond January 19 to
fully respond. On May 8, 2007, the defendant’s motion for
reconsideration was denied and the defendant was ordered to
comply with the magistrate judge’s order within thirty days of
the May 8 order.
 4

any information that is responsive to Interrogatory 4(c) that was

not provided to [the] Plaintiffs on or before January 30, 2007.”

(Pls.’ Sanction Mot. at 3.)

The defendant has filed objections to the magistrate judge’s

sanction order on several grounds. She contends that the

magistrate judge erred in issuing a “severe” preclusionary

sanction when the defendant had made substantial efforts to

comply with the January 19 deadline, and claims that she was

permitted to withhold certain documents that were the subject of

her motion for reconsideration of the magistrate judge’s order

granting the plaintiffs’ motion to compel. (See Def.’s Obj’ns to

Sanction Order at 12, 17-18, 20; Defs.’ Reply in Support of

Objn’s to Sanction Order at 11-12.) These arguments lack merit.

Absent a court order staying enforcement of a magistrate judge’s

discovery order, a party must comply with the magistrate judge’s

order, even if the order is subject to review by the district

court. Cf. Ilan-Gat Eng’rs, Ltd. v. Antigua Int’l Bank, 659 F.2d

234, 239 (D.C. Cir. 1981) (concluding that a magistrate judge may

sanction a party who does not comply with a discovery order

regardless of any challenge to the court’s subject matter

jurisdiction over the complaint). A party is not free to

unilaterally alter the method of compliance mandated by such an

order. A preclusion sanction issued for failure to comply with a

discovery production deadline set in a magistrate judge’s order
 5

far from being severe is a wholly unexceptional remedy that is

contemplated in the federal rules. See Fed. R. Civ. P.

37(b)(2)(A)(ii), (d)(3).

The defendant also argues that the magistrate judge erred in

sanctioning the defendant on April 26 for failing to produce

documents that the district court on May 8 gave the defendant an

additional thirty days to produce. A magistrate judge cannot err

in April by ruling in a way that differs from a district court

order yet to be issued in May. Nevertheless, because the May 8

order later extended the defendant’s deadline to produce

documents responsive to Interrogatory 4(c) from January 19, 2007

to thirty days from the May 8 order denying the defendant’s

motion for reconsideration, the magistrate judge’s sanction order

will be modified to preclude the introduction into evidence of

any documents responsive to Interrogatory 4(c) that were not

produced to the plaintiffs within thirty days after the May 8,

2007 order denying the defendant’s motion for reconsideration.

The remaining objections to the magistrate judge’s sanction order

will be overruled.

II. ORDER GRANTING THE PLAINTIFFS’ MOTION TO COMPEL

Three months after the close of discovery, the plaintiffs

filed a motion to

compel [the defendant] to satisfy [her] discovery
obligation to search and produce responsive e-mails and
electronic documents, and to do so pursuant to a
transparent process approved by the Court that
 6

includes, but is not limited to, identifying where
Defendant must conduct this search, whose e-mails and
electronic documents must be searched, and what search
terms should be employed to conduct these searches.

(Pls.’ Mot. to Compel Def. to Comply with [Her] Discovery

Obligation to Search & Produce Responsive E-mails and Electronic

Documents (“Pls.’ Mot. to Compel”) at 4.) The plaintiffs alleged

that throughout discovery, the defendant lodged boilerplate

objections to the plaintiffs’ document requests, but then

continued to produce documents responsive to many of the

plaintiffs’ requests. The plaintiffs further alleged that while

the defendant was producing responses, she did not inform the

plaintiffs that she was not producing all documents responsive to

the plaintiffs’ requests or that she was unilaterally limiting

her search efforts, including by not searching for electronic

documents. After receiving a letter from the defendant dated

June 5, 2007, in which the defendant explained what limited

efforts it had made to search for responsive electronic documents

for some of the plaintiffs’ document requests, the plaintiffs

filed their motion to compel the defendant’s compliance with her

discovery obligations under Rules 26 and 34.

After a hearing on the motion, the magistrate judge granted

the plaintiffs’ motion to compel and ordered the defendant “to do

what the Federal Rules of Civil Procedure already require in no

uncertain terms, and that is to search for the responsive

documents and produce them.” (Sept. 13, 2007 Hr’g Tr. 94:18-22.)
 7

She then ordered the parties to file a joint status report after

defense counsel and “anyone else who need[ed] to be involved in

the process ha[d] made a good faith effort to determine what

[was] required to comply with the federal rules.” (Id. at 95:3-

6.) In addition, the magistrate judge sanctioned the defendant

by ordering her to pay “the Plaintiffs’ costs, including

reasonable attorney’s fees, of moving to compel discovery” within

thirty days of the date of her order. (Id. at 97:5-10.)

The defendant has filed objections to the magistrate judge’s

order granting the plaintiffs’ motion to compel, alleging that

the magistrate judge erred by not rejecting the plaintiffs’

motion as untimely, by not considering each of the plaintiffs’

document requests and the defendant’s corresponding objections,

and by failing to sustain the defendant’s undue burden claim. In

addition, the defendant contends that the magistrate judge abused

her discretion by requiring the defendant to pay plaintiffs’

costs of bringing their motion within thirty days of her order

because the defendant’s opposition to the plaintiffs’ motion was

justified and because the sanction order lacked a date by which

the plaintiffs were to submit their costs to the defendant.

A. Order compelling discovery

1. Timeliness

The defendant contends that the magistrate judge’s order

granting the plaintiffs’ motion to compel should be vacated
 8

because the magistrate judge failed to rule on the timeliness of

the plaintiffs’ motion and because the motion to compel was

untimely. Although the magistrate judge did not expressly rule

on the timeliness of the plaintiffs’ motion to compel, timeliness

was an issue clearly raised in the defendant’s opposition to the

plaintiffs’ motion to compel and an issue to which the plaintiffs

devoted a portion of their reply. The magistrate judge stated on

the record that she reviewed the parties’ filings before the

hearing on the plaintiffs’ motion to compel and her ruling from

the bench on the merits of the plaintiffs’ motion. (See

Sept. 13, 2007 Hr’g Tr. 88:9-18.) Thus, it is evident that the

magistrate judge, after having the opportunity to review the

defendant’s timeliness challenge, found the plaintiffs’ motion to

be timely because she proceeded to hear arguments and rule on the

merits of the plaintiffs’ motion.

Moreover, the defendant has not shown the magistrate judge’s

conclusion that the plaintiffs’ motion was timely to be in error.

In their motion, the plaintiffs alleged that their concern that

the defendant “had not searched for all responsive e-mails arose”

in December 2006 when the defendant produced “a few responsive e-

mails” that “should have been included in [the defendant’s]

production several months earlier.” (Pls.’ Mot. to Compel at 2.)

The plaintiffs also alleged that despite “repeated inquiries into

the matter,” it was not until a June 5, 2007 letter that the
 9

defendant “admitted, for the first time, that [she had] not

complied with [her] obligations under Rules 26 and 34 of the

Federal Rules of Civil Procedure to search for and produce all

responsive electronic documents.” (Id. at 2-3.)

The defendant alleges that the plaintiffs were on notice

from the defendant’s response to the plaintiffs’ first document

requests in February 2005 that the defendant was not responding

in full to their document requests because the defendant lodged

specific objections to many requests. (Def.’s Obj’ns to Order

Granting Mot. to Compel at 18.) In addition, the defendant

contends that the plaintiffs’ previous filing of a motion to

compel an electronic search in response to plaintiffs’ document

request number 10 in June 2005 is evidence that plaintiffs knew

the defendant was not searching for all electronic documents at

that time. (Id. at 18-19.) The defendant argues that “certainly

by June 2005 plaintiffs knew that defendant was not conducting

electronic searches in response to every document production

request plaintiffs had served on [the] defendant[,]” and “[a]t

that time[,] plaintiffs should have raised all issues concerning

electronic searches for document requests served on defendant by

that date.” (Id. at 19.)

With respect to the defendant’s contention that her

objections to the plaintiffs’ first document requests put the

plaintiff on notice that it was not conducting electronic
 10

searches for responsive documents, the magistrate judge properly

rejected the defendant’s general objections as insufficient to

excuse the defendant from her obligation to conduct electronic

searches. In response to many of the plaintiffs’ document

requests the defendant raised objections utilizing boilerplate

language from Rule 26, stating that a request was overly broad,

was unduly burdensome, would result in needless duplication, or

was not reasonably calculated to lead to the discovery of

admissible evidence. Nonetheless, the defendant continued to

produce documents in response to many of the plaintiffs’

requests.

Courts entertain overbreadth and undue burden objections

only when the responding party demonstrates how a request is

overly broad or unduly burdensome. See Tequila Centinela, S.A.

de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 10 (D.D.C. 2007);

United States ex rel Fisher v. Network Software Assocs., 217

F.R.D. 240, 246 (D.D.C. 2003). A responding party “cannot

‘merely state, in conclusory fashion,’” that a request is

overbroad or unduly burdensome. Fisher, 217 F.R.D. at 246

(quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 191

(D.D.C. 1998)). When a responding party asserts a conclusory

overbreath or undue burden objection and then continues to

produce documents in response to a request, the opposing party is

left “wondering what documents are being produced and what are
 11

being withheld.” Athridge, 184 F.R.D. at 190. The objection

“serves only to obscure potentially discoverable information and

provides no mechanism for either plaintiffs or the [c]ourt to

review a defendant’s decisions.” Id. Thus, “[s]uch an objection

is really no objection at all as it does not address why

potentially responsive documents are being withheld.” Id.

Here, to support her claim that the plaintiffs’ motion is

untimely, the defendant has identified only general objections

such as overbreath, undue burden, and needless duplication that

were wholly unsupported with any detail reflecting as grounds

that the request sought a response that included searches for

electronic documents. Accordingly, the defendant has not shown

it was error for the magistrate judge to reject the defendant’s

contention that these objections notified the plaintiffs that the

defendant was unilaterally deciding to not search for electronic

documents or to limit her searches for electronic documents.

Similarly, to the extent the defendant relies on the plaintiffs’

prior motion to compel where the plaintiffs challenged the

defendant’s efforts to search for electronic documents in

response to one particular document request, this dispute over a

single request does not demonstrate that the plaintiffs had

knowledge of the defendant’s widespread failure to search for

responsive electronic documents. Accordingly, the defendant has

not shown that the magistrate judge’s decision to deem the
 12

plaintiffs’ motion timely, as evidenced by the magistrate judge’s

ruling on merits, was clearly erroneous.

2. Consideration of each discovery request and
corresponding objections

The defendant contends the magistrate judge “clearly erred

in not considering each of plaintiffs’ document requests, and all

of the defendant’s specific objections to those requests, and

separately ruling on all of the objections raised” before setting

aside all of the defendant’s objections to the plaintiffs’

document requests. (Def.’s Obj’ns to Order Granting Mot. to

Compel at 26.) As an example of the magistrate judge’s purported

error, the defendant contends that the magistrate judge set aside

all of the defendant’s relevance objections challenging whether

the kind of information sought in a request was “‘relevant to a

claim or defense of any party,’” even though the plaintiffs

conceded at the hearing they were not bringing their motion to

compel to challenge the defendant’s relevance objections. (Id.

at 24.) While there could be merit in the defendant’s argument

that it is error for an order to set aside all of the defendants’

objections in response to a motion to compel that did not even

challenge all of the defendant’s objections, the defendant has

not established the magistrate judge’s ruling actually did set

aside of all of the defendant’s objections.

As is discussed above, in granting the plaintiffs’ motion to

compel, the magistrate judge clearly disposed of the objections
 13

that the defendant contended relieved the defendant of her

obligation to search for electronic documents in whole or in

part. However, there is nothing in the magistrate judge’s bench

ruling that suggests the magistrate judge sua sponte expanded the

scope of the plaintiffs’ motion and overruled objections that

went unchallenged by the plaintiffs’ motion. While the

plaintiffs’ motion applies to all document requests, it does not

appear to raise an untimely challenge to every objection raised

in response to their requests. As the defendant points out, the

plaintiffs expressly conceded as much at the hearing with respect

to the defendant’s relevance objections. (See Sept. 13, 2007

Hr’g Tr. 38:6-13.) Although the order granting the plaintiffs’

motion to compel broadly ordered “the Defendant to do what the

Federal Rules of Civil Procedure already require in no uncertain

terms, and that is to search for the responsive documents and

produce them” (id. at 94:18-22), the magistrate judge explained

she expressly limited her ruling “to the discovery which is the

subject of the motion[.]” (Id. at 90:18-25.) In light of this

limiting language, the order granting the plaintiffs’ motion to

compel will not be construed as setting aside all of the

defendant’s objections to the plaintiffs’ document requests.

Admittedly, while the magistrate judge’s found that “the

parameters of the [plaintiffs’] motion [were] clear[,]” (id. at

89:19-20), it is not readily apparent to this court from the
 14

plaintiffs’ motion or the magistrate judge’s order which

objections were outside the scope of the plaintiffs’ motion and

the magistrate judge’s ruling.2 It is a reasonable inference,

however, that the magistrate judge envisioned that any

disagreement between the parties as to the scope of her order

would be addressed first by counsel during their communications

regarding search parameters. The magistrate judge’s choice to

provide a broad order requiring the defendant to comply with her

obligation to search for and produce responsive electronic

documents and then ordering the parties to confer and file a

joint status report explaining how the defendant would comply

with her obligation was well within the magistrate judge’s

discretion to resolve discovery disputes. Her course of action

afforded the defendant the opportunity to discuss with the

plaintiffs the scope of the relief ordered, including how

objections not challenged by the plaintiffs’ motion affected the

defendant’s obligation to search for electronic documents, and to

attempt to resolve disputes on the scope of the defendant’s

obligation between the parties themselves first so as not to

encumber judicial resources. The defendant was free to seek

clarification of her obligation either through the ordered joint

status report or by appropriate motion. The defendant, by

2
Nor is it clear what effect the magistrate judge’s ruling
has on previous agreements reached by the parties with respect to
particular document requests.
 15

failing seek appropriate clarification before the magistrate

judge through the process she provided or otherwise, has failed

to develop a record before the magistrate judge to support the

defendant’s assertion that the magistrate judge actually did

overrule all of the defendant’s objections to the plaintiffs’

documents requests. Thus, the defendant has not shown the

magistrate judge’s ruling was clearly erroneous for doing so, and

the defendant’s objection to the magistrate judge’s failure to

specifically consider each discovery request and corresponding

objection is overruled.

3. Undue burden

The defendant alleges that the magistrate judge erred by not

sustaining her claim of undue burden that would be caused by

granting the plaintiffs’ motion. The defendant contends that

many of plaintiffs’ requests were overbroad because they sought

“all documents that ‘reflect, record or relate in way’ to a

particular subject matter.” (Def.’s Obj’ns to Order Granting

Mot. to Compel at 28 (quoting language from Docket No. 462,

Exh. 2).) The defendant alleges this “tremendously overbroad”

language would “require [the] defendant to perform electronic

searches for all possible key words related to the 145 document

requests for numerous current and former Special Agents and

Supervisory Special Agents.” (Id. at 29.) The defendant

contends it submitted “unrebutted declarations” explaining the
 16

undue burden that would be placed “on the Secret Service’s

ability to fulfill its core mission if the broad searches

contemplated by the plaintiffs’ requests were required.” (Id. at

27 (citing Def.’s Opp’n to Pls.’ Mot. to Compel, Exs. 13 (Simms

Decl.), 14 (Pupillo Decl.)).)

The magistrate judge, while recognizing that a district

court in another case deemed certain requests seeking documents

which “‘relate to’ anything regarding certain pay amendments [as]

overbroad,” held that the plaintiffs’ requests in the present

case are not overbroad as a matter of law simply for utilizing

such language. Instead, the magistrate judge found that the

defendant’s overbreadth objections were unwarranted in this

action. In rejecting the defendant’s claim, the magistrate judge

found the declarations explaining the burden of producing the

discovery sought were “largely conclusory with respect to the

harm that would be wrought or the interference with other Agency

operations which would be occasioned by a search” because the

defendant’s representation of the search required came “in the

absence of any real effort to determine what documents exist that

are responsive to the Plaintiffs’ discovery requests.”

(Sept. 13, 2007 Hr’g Tr. 92:6-17.)

The defendant has provided no authority suggesting that as a

matter of law, the plaintiffs’ use of broad language in their

documents requests insulates the defendant from providing
 17

responsive electronic documents. Contrary to the defendant’s

assertion that the plaintiffs’ motion and the magistrate judge’s

order mandate the defendant to undertake tremendously burdensome

searches “for all possible key words related to the [plaintiffs’]

145 document requests,” the magistrate judge’s order concludes

only that the defendant must “comply with its [sic] obligation

under the Federal Rules” to search for and produce the documents

responsive to the plaintiffs’ requests. The magistrate judge’s

ruling did not specify precisely how the defendant had to fulfill

her obligation to search for and produce electronic documents.

Instead, it directed the parties to confer and file a joint

status report regarding how much time the defendant would need to

produce documents after determining what efforts would be needed

to comply with the court’s ruling. The plaintiffs’ motion to

compel and subsequent filings repeatedly indicate a willingness

to work with the defendant and the court to develop narrow search

parameters that would fulfill the defendant’s discovery

obligations while minimizing the burden to the defendant. (Pls.’

Mot. to Compel at 5; Pls.’ Reply in Support of Their Mot. to

Compel at 10-11, 14-15; Pls.’ Opp’n to Def.’s Obj’ns to Order

Granting Mot. to Compel at 27.) Given the magistrate judge’s

wide discretion to fashion appropriate relief, it was not clearly

erroneous to reject the defendant’s highly speculative claim of

undue burden resulting from the plaintiffs’ use of broad wording
 18

when the defendant was afforded an opportunity to work with the

plaintiffs to focus the defendant’s search efforts and minimize

any potential burden. The defendant has not shown error in the

magistrate judge’s rejection of the claim that the discovery

sought by the plaintiffs’ motion to compel was so overbroad that

it would be unduly burdensome.

The defendant contends that the magistrate judge should have

sustained the undue burden claim because the plaintiffs’ motion

would require the defendant to conduct keyword searches for

electronic documents where it is clear that no responsive

documents exist in any form for a particular request or where the

information sought by a request does not implicate electronic

searches. However, the magistrate judge’s order requires only

that the defendant comply with her obligation under the federal

rules. The federal rules certainly obligate the defendant at

least to consider whether responsive electronic documents may

exist for a particular document request. The magistrate judge’s

order does not require the defendant to undertake a futile

search, though, where the defendant determines that no documents

could exist in any form or determines that no electronic

documents could exist that are responsive to the plaintiffs’

requests after making a good faith reasonable effort to determine

whether any documents could exist in any form that are responsive

to a particular request. Thus, the defendant’s objections
 19

arguing that the magistrate judge’s ruling improperly requires

her to conduct searches for requests that have no responsive

documents or do not implicate electronic documents lack merit and

will be overruled.

Finally, the defendant contends that the magistrate judge

erred in not concluding that electronic searches would result in

“needless duplication” because the defendant has already produced

over 12,700 e-mails to the plaintiffs and electronic searches

would be an undue burden because electronic searches are likely

to “result in many instances of duplication of what has already

been produced.” (Def.’s Obj’ns to Order Granting Mot. to Compel

at 32.) As the magistrate judge observed, the defendant

presented no evidence in support of her claim demonstrating that

she made “any real effort to determine what documents exist that

are responsive to the Plaintiffs’ discovery requests.”

(Sept. 13, 2007 Hr’g Tr. 92:16-17.) Although, in all likelihood,

the electronic searches sought may result in some duplication,

having failed to adequately explain what responsive electronic

documents may exist that have not been produced to the

plaintiffs, the defendant has not shown that any duplication

arising from already-produced e-mails would be “needless.”3 The

3
Moreover, the defendant could use the meet-and-confer
process regarding search parameters to assess whether certain
requests were sufficiently satisfied by already-produced
documents.
 20

defendant has not shown the magistrate judge erred in rejecting

her claim that the already-produced e-mails were sufficient to

satisfy the defendant’s duty to search for and produce electronic

documents. Accordingly, because the defendant has not shown that

the magistrate judge erred in concluding that the plaintiffs’

motion to compel would not cause an undue burden on the

defendant, the defendant’s objections to the magistrate judge’s

rejection of her undue burden claim will be overruled.

B. Sanction

The defendant alleges that the magistrate judge’s imposition

of a sanction requiring the defendant to pay to the plaintiffs

the fees and costs of bringing their motion to compel within

thirty days of her order was erroneous because the defendant

raised legitimate objections to the plaintiffs’ discovery

requests and because the sanction award did not set a date by

which the plaintiffs had to provide the defendant with an

itemization of their fees and costs. Under Rule 37(a), a court

must award the moving party “reasonable expenses incurred in

making the motion” to compel unless (1) the movant filed the

motion before making a good faith effort to resolve the dispute

without court action; (2) “the opposing party’s nondisclosure,

response, or objection was substantially justified;” or (3)

“other circumstances making an award of expenses unjust.” Fed.

R. Civ. P. 37(a)(5). For the reasons discussed above, the
 21

defendant has not shown that her failure to conduct electronic

searches for responsive documents was substantially justified or

that any other circumstances make the sanction imposed unjust.4

With respect to the timing of payment, the defendant’s objection

to the magistrate judge’s order requiring payment within thirty

days of the order regardless of when the plaintiffs submit their

itemization to the defendant will be sustained in part. To the

extent that payment has not yet been made, the magistrate judge’s

order will be modified to require payment within thirty days of

the plaintiffs’ service of their itemization of the fees and

costs associated with bringing their motion to compel. The

defendant’s objection to the sanction award is overruled in all

other respects.

CONCLUSION AND ORDER

Because under the court’s May 8, 2007 order, the defendant

was afforded additional time to produce documents in response to

the plaintiffs’ Interrogatory 4(c) that were the subject of the

April 26, 2007 preclusion sanction issued by the magistrate

judge, the sanction order will be modified to bar the use of

documents produced out of time under the May 8 order. Because

the defendant has not shown the magistrate judge’s granting of

the plaintiffs’ motion to compel searches for electronic

4
The defendant did not object to the award on the basis that
the plaintiffs filed their motion before attempting in good faith
to resolve this dispute.
 22

documents to be erroneous and has not shown its position on the

plaintiffs’ motion to be substantially justified, the defendant’s

objections to the order granting the plaintiffs’ motion to compel

and imposing a monetary sanction will be overruled. The

defendant’s objection to the sanction order’s failure to ensure

the defendant is given a reasonable time period between the

plaintiffs’ submission of costs and the time for payment will be

sustained. Accordingly, it is hereby

ORDERED that the defendant’s objections [441] to the

magistrate judge’s oral ruling on plaintiffs’ motion for

sanctions be, and hereby are, OVERRULED IN PART and SUSTAINED IN

PART. The defendant is precluded from introducing as evidence in

any stage of this litigation any information responsive to

plaintiffs’ Interrogatory 4(c) that was not timely produced to

plaintiffs within thirty days of the court’s May 8, 2007 order.

The defendant’s objections are overruled in all other respects.

It is further

ORDERED that the defendant’s objections [473] to the

magistrate judge’s oral ruling on plaintiffs’ motion to compel an

electronic search be, and hereby are, OVERRULED IN PART and

SUSTAINED IN PART. The defendant is ordered to pay plaintiffs’

costs of moving to compel within thirty days of receiving an

itemization of plaintiffs’ costs. The defendant’s objections are

overruled in all other respects.
 23

SIGNED this 7th day of August, 2009.

________/s/_________________
RICHARD W. ROBERTS
United States District Judge