Tracey McEuen, Plaintiff, v. Riverview Bancorp, Inc., a Washington corporation; Riverview Community Bank, a Washington nonprofit corporation, Defendants CASE NO. C12-5997 RJB Signed January 14, 2014 Counsel Anne Foster, Samuel T. Smith, Dunn Carney Allen Higgins & Tongue, Portland, OR, for Plaintiff. Jennifer S. Pirozzi, Ryan Paul Hammond, Littler Mendelson, Seattle, WA, for Defendants. Bryan, Robert J., United States District Judge ORDER DENYING DEFENDANTS' MOTION FOR SANCTIONS *1 This matter comes before the Court on Defendants' (Riverview) motion for sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A). Dkt. 97. The Plaintiff (McEuen) has filed a cross-motion for attorney fees incurred in responding to the motion pursuant to Fed. R. Civ. P. 37(a)(5)(B). Dkt. 104. The Court has considered the pleadings in support and in opposition to the motions and the record herein. INTRODUCTION AND BACKGROUND Riverview's motion concerns whether McEuen has complied with this Court's Order Re Defendants' Motion to Compel, dated October 1, 2013. Dkt. 47. That Order dealt with discovery obligations in regard to an external hard drive that McEuen brought to work and connected to Riverview's computer system. Id. The Order provides in relevant part: 1. Plaintiff shall produce and deliver to Defendant, no later than October 11, 2013, at Plaintiff's own expense, a privilege log that includes a metadata of file path, file name, whether deleted, file created, last written, and last accessed, for all documents in the hard drive that are being withheld on the basis of privilege. 2. All documents in the subject hard drive that were accessed during the course of employment with Riverview are subject to production and shall be produced to Defendant no later than October 11, 2013. 3. In the event Plaintiff does not produce a timely and appropriate privilege log and metadata, Plaintiff shall produce at her own expense a copy of the entire hard drive to Defendants. Dkt. 47 p. 6. Riverview argues that McEuen has failed to comply with the Court's Order requiring McEuen to produce all documents in the subject hard drive that were accessed during the course of employment with Riverview. Dkt. 97 p. 1. Riverview contends that McEuen's “failure has resulted in unfair prejudice to Defendants that can only be cured through dismissal of Plaintiff's claims.” Id. The Court disagrees. On October 9, 2013, McEuen's counsel sent a letter to Riverview's counsel outlining McEuen's production. Dkt 103-1. Enclosed with that letter were two CDs. Dkt. 103 p. 1. The first CD contained a 500+ page log of all metadata on McEuen's hard drive for the documents previously withheld from production. Id. The second CD contained 4,827 pages of documents pulled from the hard drive. Id. Concerning the production of metadata, the letter explained that McEuen's vendor Streamline used Nuix and Ecapture software to extract all available metadata, but that not all documents on the log had metadata for all fields as required by the Court's Order. Dkt. 103-1 p. 2. Addressing the production of all documents accessed during McEuen's employment, a metadata search was conducted from the date that McEuen brought her hard drive to the office, late June or July 2011, until October 13, 2011, the date of her termination. Dkt. 103-1 p. 2. The metadata search failed to reveal which documents McEuen accessed during her employment. Id. McEuen's vendor had a technical explanation why the metadata search failed to reveal the accessed documents. Id. As an alternative, because McEuen states that she only accessed audit-related Intel documents from the hard drive during the course of her employment at Riverview, McEuen produced all audit-related Intel documents from the external hard drive. Id. p. 3. Because McEuen believed she saved copies of blank Intel templates onto her work computer, her counsel suggested that Riverview “mirror image” McEuen's work computer and gather the documents that McEuen accessed/copied during the time her external hard drive was connected to her work computer. Id. *2 Riverview was of the opinion that the discovery was incomplete and did not comply with the Court's directive. The parties and their respective vendors held a conference call on October 17, 2013. Riverview requested, and McEuen agreed, that a different metadata software search be conducted. Dkt. 104 p. 5. On October 18, 2013, McEuen created and produced a new 900-page metadata log based on metadata extracted with Encase, Riverview's preferred program. Dkt. 103-2. This metadata log was twice the size of the Nuix log due to the inability of the Encase software to distinguish between documents previously produced and the documents withheld. Id. This production of metadata apparently satisfied Riverview and it appears they do not contend that McEuen has violated the provisions of the Court's Order requiring production of the metadata. See Dkt. 97 p. 2; Dkt. 99 pp. 2, 12-64. Riverview next objected to the production of documents accessed during McEuen's employment. Upon review of the metadata file, Riverview learned that McEuen had accessed several document on her personal hard drive between the dates of February 28, 2011 and October 14, 2011. On October 21, 2013, the parties discussed this issue by telephone conference. McEuen explained that she had accessed these documents at home prior to bringing the hard drive to work and thus, she had no obligation to disclose these documents pursuant to the Court's Order. Dkt. 103 pp. 2-3. On November 20, 2013, Riverview produced a declaration form its vendor, eDiscovery, stating that a review of McEuen's work computer revealed that she had connected her external hard drive to her Riverview computer on March 11, 2011. Dkt. 70. On November 22, 2013, Riverview requested that McEuen reassess her position regarding documents accessed between March 11, 2011, and June 1, 2011. On December 5, 2013, the parties conferred by telephone. Dkt. 98 p. 14. Counsel for McEuen requested that Riverview produce the information necessary for McEuen's vendor, Streamline, to verify Riverview's process and results. Id; Dkt. 102 p. 2. McEuen conceded that if verification was possible, the documents would be produced. Id. McEuen's counsel explained that it would take some time to complete the verification because she was scheduled to be in trial from December 10 to December 18, 2013. Id. On December 6, 2013, Riverview provided to McEuen a disc containing the information used in determining the March 11, 2011, date for connection of the external hard drive to Riverview's computer system. Dkt. 98 p. 14. The letter accompanying the disc indicated that Riverview would like confirmation of production of the documents by December 12, 2013. Id. p. 15. McEuen did not respond on December 12, 2013, and on December 19, 2013, Riverview filed the instant motion for sanctions, requesting dismissal of this action. Dkt. 97. RULE 37 SANCTIONS Fed. R. Civ. P. 37(b)(2)(A) provides that “[i]f a party...fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” Riverview seeks dismissal as the sanction. See Fed. R. Civ. P. 37(b)(2)(A)(v). Dismissal under Rule 37(b) is the most severe in the spectrum of sanctions provided by statute or rule. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976). A district court must weigh five factors in determining whether to dismiss a case for failure to comply with a court order: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Further, under Rule 37(b)(2)(C) “unless the failure was substantially justified or other circumstances make an award of expenses unjust,” the Court “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure.” *3 In the Ninth Circuit, sanctions are appropriate only in “extreme circumstances” and where the violation is “due to willfulness, bad faith, or fault of the party.” Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002.); United States v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir. 1988). Disobedient conduct not shown to be outside the litigant's control meets this standard. Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994). Here, it appears that McEuen has substantially complied with the Court's discovery order and that the remainder of the discovery dispute concerns differing interpretations of the Court's order and the factual question as to the time in which McEuen's duty to disclose commences. First, this Court's order requires that “[a]ll documents in the subject hard drive that were accessed during the course of employment with Riverview are subject to production.” Dkt. 47 p. 6. The order is confined to documents accessed while the hard drive was connected to Riverview's computer system. The connection of the external hard drive to the bank's computer system is Riverview's justification for McEuen's termination and what she accessed from the external hard drive during this connection is discoverable. Information accessed away from the work site has no relevance to this litigation and is not subject to the Court's order. Second, it appears undisputed that McEuen has produced those documents that she accessed on the external hard drive from the date that McEuen believed she brought her hard drive to the office, late June 2011, until October 13, 2011, the date of her termination. It was not until November 20, 2013, that Riverview produced a declaration from its vendor, eDiscovery, stating that a review of McEuen's work computer revealed that she had connected her external hard drive to her Riverview computer on March 11, 2011, as opposed to June 2011. Dkt. 70. On November 22, 2013, Riverview requested that McEuen reassess her position regarding documents accessed between March 11, 2011, and June 1, 2011. On December 5, 2013, the parties conferred by telephone. Counsel for McEuen requested that Riverview produce the information necessary for McEuen's vendor, Streamline, to verify Riverview's process and results. McEuen conceded that if verification was possible, the documents would be produced. McEuen's counsel explained that it would take some time to complete the verification because she was scheduled to be in trial. The documents necessary to conduct the verification were transmitted the following day, December 6, 2013. Prior to verification, on December 19, 2013, Riverview filed this motion for the sanction of dismissal. According to this timeline, McEuen was provided approximately two weeks to verify the date she had connected her hard drive to Riverview's computer system and if verified, to produce the documents accessed during this earlier time period. It was not unreasonable for McEuen to request the ability to verify the earlier date prior to providing additional discovery. Due to counsel's trial calendar, this did not occur as soon as Riverview demanded. Though technically a violation of the Court's deadline for producing the accessed documents, any violation is not due to the willfulness, bad faith, or fault of McEuen or her counsel. The violation does not rise to the level of sanctionable conduct, let alone that warranting dismissal. CONCLUSION *4 For the foregoing reasons, it is hereby ORDERED: 1. Defendants' Motion for Sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A) (Dkt. 97) is DENIED. 2. Defendants' request for attorney fees and costs is (Dkt. 97) DENIED. 3. Plaintiff's cross-motion for attorney fees and costs (Dkt. 104) is DENIED. 4. To the extent not already produced, Plaintiff is directed to produce forthwith any additional external hard drive documents accessed while the external hard drive was connected to Defendants' computer system in the course of Plaintiff's employment. Dated this 14th day of January, 2014.