JAMES STEER, Plaintiff, v. AMERICAN ORDNANCE LLC, Defendant CIVIL NO. 3:02-CV-80049-CRW-TJS United States District Court, S.D. Iowa, Davenport Division Filed January 31, 2005 Shields, Thomas J., United States Magistrate Judge ORDER *1 Plaintiff James Steer filed this action in April of 2002 asserting age discrimination claims against his employer American Ordnance LLC. (Petition and Jury Demand (Clerk's No. 1).) Plaintiff contends defendant discriminated against him when his position was eliminated and he was demoted from Production Engineer to Production Supervisor as the result of an alleged reduction in force in March of 2001. Despite being what the court views as an ordinary employment discrimination case, this case has been extensively delayed by a protracted battle over defendant's responses to plaintiff's discovery requests. Currently before the court are the following motions which were generated by the parties' inability to resolve the ongoing discovery disputes: Plaintiff's Application for Attorney's Fees (Clerk's No. 70); Plaintiff's Supplemental Application for Attorney Fees (Clerk's No. 74); Plaintiff's Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions (Clerk's No. 83); and Plaintiff's Motion for Order to Show Cause (Clerk's No. 84). United States District Court Judge Charles R. Wolle referred for ruling plaintiff's motion for sanctions and motion to show cause to this magistrate judge. (See October 14, 2004 Order (Clerk's No. 91).) Oral arguments were heard on November 10, 2004. Before addressing these motions, it is necessary for the court to review the procedural history which led the parties, and the court, to this point. I. PROCEDURAL HISTORY OF DISCOVERY ISSUES Plaintiff filed a Motion to Compel (Clerk's No. 38) discovery responses from defendant on November 4, 2003. The court denied the motion, without prejudice, because it was not satisfied that the requirements of a good faith effort to resolve the discovery issues under Federal Rule of Civil Procedure 37(a)(2)(A) and Local Rule 37.1 had been met. (See Order on Plaintiff's Motion to Compel (Clerk's No. 42).) The majority of discovery requests at issue were served by plaintiff on defendant in April 2002, when plaintiff filed his lawsuit, and in May 2003. The court noted that the issues appeared to have lain dormant for months and directed the parties to have a meet and confer session. Id. at 3. Plaintiff filed a Renewed Motion to Compel (Clerk's No. 47) on February 25, 2004. It appeared the parties made minimal progress because plaintiff raised numerous issues relating to several interrogatories and requests for production. Defendant resisted the motion and the parties presented oral arguments on April 30, 2004. The court entered an Order (Clerk's No. 69) on July 2, 2004, which granted in part and denied in part plaintiff's Renewed Motion to Compel. For most of the discovery requests at issue, defendant failed to meet its burden of establishing objections such as lack of relevance and undue burden. See, e.g., St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000). Instead of providing the court with specific and sufficient information to establish the grounds for its objections, defendant relied upon mere boilerplate statements. Nevertheless, the court carefully examined and specifically addressed, in detail, each interrogatory and request for production at issue. Defendant was given to July 30, 2004, to produce all the information and documents found discoverable in the order. Unfortunately, it appears the court's efforts did little to dispose of the discovery issues. *2 Defendant served supplemental responses on July 30, 2004, to the requests for production at issue but, according to plaintiff, defendant's responses and production of documents failed to comply fully with the court's order. Many of the supplemental responses merely stated that the responsive documents “are available for inspection at the IAAP or as otherwise arranged by the parties.” (See July 30, 2004 Supplemental Response of American Ordnance, LLC to Plaintiff's Requests for Production of Documents; Plaintiff's Ex. B.) According to defendant, the additional documents responsive to the court's order were contained in approximately 40 boxes with each box containing approximately 3,000 pages. Because of the large volume of documents, defendant informed plaintiff's counsel that they would be available for inspection at its plant any time after July 30, 2004. On September 13 and 14, 2004, plaintiff's counsel went to defendant's plant to review documents and take depositions of witnesses. Plaintiff claims that many of the documents that defendant had indicated would be made available were not produced for inspection. Defendant concedes that some responsive documents were not in the boxes made available to counsel but claims that it acted immediately to search for and provide copies of additional documents. On September 14, 2004, defendant served supplemental answers to plaintiff's interrogatories. (See Defendant's Ex. 3.) At the time of the hearing on November 10, 2004, however, defendant's counsel advised the court that there were still some additional documents being bate stamped for production to plaintiff. II. ANALYSIS OF PENDING MOTIONS A. Plaintiff's Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions (Clerk's No. 83) and Motion for Order to Show Cause (Clerk's No. 84) Plaintiff moves for sanctions against defendant for what he believes has been a “severe dereliction of duty in connection with the discovery process.” (Plaintiff's Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions at p.14.) Plaintiff asserts that defendant has blatantly and wilfully failed to abide by the federal discovery rules and to comply with this court's July 2, 2004 Order. In a separate motion, plaintiff requests that defendant be ordered to show cause why it should not be held in both civil and criminal contempt for its willful defiance of the court's order. (Plaintiff's Motion for Order to Show Cause (Clerk's No. 84)[1]). Much of plaintiff's discontent is focused on Lynn Humphreys who is the Human Resources Director for defendant and appears to be the primary individual responsible for obtaining and producing information on behalf of defendant. Plaintiff accuses Humphreys of “evasiveness, game playing, stonewalling and outright misrepresentations.” Plaintiff also attacks defendant's counsel for refusing to conduct discovery in good-faith. In its written response to plaintiff's assertions, defendant unequivocally stated to the court that “American Ordnance has produced for inspection by Plaintiff's counsel or has Bates stamped, copied and delivered all additional discovery ordered by the Court in its Order of July 2, 2004.” (American Ordnance's Response to Plaintiff's Motion for Order to Show Cause (Clerk's No. 94) ¶ 1.) Defendant also points out that it has “searched for, located, compiled, stamped, copied and delivered to Plaintiff free of charge over 16, 500 pages of discovery”; “provided approximately 2,000 pages of documents in electronic form”; and “made available to Plaintiff for inspection tens of thousands of pages of additional documents.” Id. ¶ 6. *3 There is no doubt that defendant has responded to some of plaintiff's discovery requests and provided copies of many documents. The questions before the court, however, are whether defendant fully and timely responded to all of the discovery requests and fully and timely complied with this court's order. Federal Rule of Civil Procedure 37(b)(2) authorizes the court to impose sanctions upon a party who fails to comply with a discovery order. “ ‘In order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party.’ ” Mems v. City of St. Paul, 327 F.3d 771, 779 (8th Cir. 2003)(quoting Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999)). After carefully reviewing the record submitted, the court finds that defendant has failed to fully and timely respond to several of plaintiff's discovery requests and failed to fully and timely comply with the court's July 2, 2004 Order. 1. Defendant's Failure to Timely and Fully Comply with Court Order Before addressing the specific discovery requests at issue, the court will begin with defendant's decision to make approximately 40 boxes of documents available for inspection after July 30, 2004, instead of producing copies of the documents to plaintiff before the court ordered deadline. While in the ordinary course of discovery a party is permitted to make documents available for inspection, the court is concerned about defendant's chosen course of action in light of the past delays in discovery and the court's July 2, 2004 Order. If defendant wanted to avoid copying all of the documents, then it should have made them available before July 30, 2004, to comply with the order. In addition, defendant failed to timely comply with the court's explicit directive to “specifically identify which documents respond to the discovery requests as required under” Federal Rule of Civil Procedure 33(d). (July 2, 2004 Order p. 2.) In fact, defendant had failed to fully supplement its formal discovery responses at the time of the November 10, 2004 hearing, but promised the court it would do so. In the court's opinion, the failure by defendant to timely comply with the court's explicit directive led to the problems raised by plaintiff regarding the inspection of the documents on September 13, 2004, and caused further delays in discovery. Turning to the specific discovery issues, the court starts with the protracted battle over production of basic information regarding the positions eliminated by the March 2001 alleged reduction in force at issue in this case. While there should be no doubt about its relevance, a simple discovery request seeking this information turned into a tortured discovery dispute. Plaintiff's Interrogatory No. 10, served on defendant in April 2002, states as follows: Define the job requirements or qualifications and the job duties for each of the following positions and state for each such position who within American Ordnance has held each such position between 1974 to the present. For these purposes, position is defined as including title, number, grade, department and salary range. Include the individual's age and years of employment with Defendants or Defendants' predecessors; (a) Process or Production Engineer; (b) Senior Project Engineer; (c) Team Leader for Production Engineering; (d) Program Manager; (e) Plant Manager; (f) Chief Engineer; (g) Engineering Department Manager; (h) Production Supervisor; (i) Director of Artillery Business Unit; (j) Project Management Support; (k) Metrologist; (l) Project Team Leader; (m) the thirty-three positions eliminated as a result of American Ordnance's reduction-in-force of March, 2001; and (n) the positions offered to those employees affected by American Ordnance's March 2001, reduction-in-force. *4 (Plaintiff's Interrogatory No. 10 (emphasis added)). The parties have battled repeatedly over various points in regard to this interrogatory including whether an actual “list” of the eliminated positions existed and whether there were 33 positions or 19 positions which were actually eliminated. The parties have also had extensive arguments over whether the specific job titles listed in the interrogatory are the actual job titles being used at defendant's plant. In the court's opinion, defendant should have clarified these issues for plaintiff many months ago and prior to the issue being raised in a motion to compel. In its July 2, 2004 Order, after plaintiff agreed to restrict the time frame to be applied, the court found that the information sought by Interrogatory No. 10 is relevant to plaintiff's claims and is subject to discovery under Rule 26. The court rejected defendant's objections that the request is unduly burdensome and expensive. The specific issue regarding the positions affected by the reduction in force was so clear that during the hearing the court ordered defendant to identify those positions. In the subsequent written order, the court further ordered defendant to produce all information responsive to Interrogatory No. 10 “including the information sought regarding all positions eliminated as a result of the reduction of force in March 2001.” (July 2, 2004 Order pp. 6-7.) The record indicates, however, that defendant did not timely produce all of the information in response to Interrogatory No. 10 by July 30, 2004, as ordered by the court. Lynn Humphreys testified, as follows, during her deposition on September 14, 2004: Q.... And then the 33 positions eliminated as a result of American Ordnance's reduction in force of March 2001. Now we have what we think is a complete list. Before that we had the 19 people, correct? A. Correct. Q. And what this asks you to do is identify everyone who held those positions from October, 1998, to the present. Did you do that? A. I don't believe we've got that completed yet. Q. And it also asks you the positions offered to those employees affected by American Ordnance's March, 2001, reduction in force, and you haven't done that either, correct? A. I don't believe so. Q. All right. What Interrogatory Number 10 also asks you to do is identify the salary range – the department and salary range for the position. You have never provided to me the salary range for any position, correct? A. I don't believe so. Q. And Judge Shields ordered you to provide that information to me in his order of July 2nd, 2004, correct? A. I believe so. (Humphreys' September 14, 2004 Dep. Tr. p. 51-52.) The record also indicates that defendant did not fully and timely respond to other discovery requests as ordered by the court. For example, the court explicitly ordered that “defendant shall produce the documents requested for all of the individuals identified in Request for Production No. 9.”[2] (July 2, 2004 Order p. 12.) Although the request explicitly asks for payroll records, Humphreys testified on September 14, 2004, as follows: *5 A. We have not produced all payroll records. We've produced some. Q. What payroll records have you produced? Just the cards? A. We've produced the cards. We produced any other records that are in the files that you've had access to. Q. But there is an electronic database, which contains payroll records, that has not been produced; that is correct? A. I just indicated that we did not produce all of it. (Humphreys' September 14, 2004 Dep. Tr. p. 74.) The court also ordered defendant to produce materials in response to plaintiff's Request for Production No. 18.[3] (See July 2, 2004 Order pp. 17-18.) Again, the record indicates that defendant failed to provide a full and timely response: Q.... So I do not have an answer to Request for Production Number 18 in any form, correct? A. You don't have a complete answer. (Humphreys' September 14, 2004 Dep. Tr. p. 78; see also p. 81 (confirming again that defendant had not answered fully Request for Production No. 18.)) Plaintiff's Request for Production No. 48 asks for “[a]nnual budgets and monthly updates for the year 2000 and 2001.” Because this request sought materials which the court believes could be easily produced, and should have been produced prior to a motion to compel, the court explicitly ordered that the “information shall be produced by defendant immediately.” (July 2, 2004 Order pp. 26-27.) Yet, it appears defendant again failed to comply, continuing its dilatory tactics: Q.... the Court said, “If not already produced, this information shall be produced by defendant immediately.” Were you aware of that? A. Yes. Q. And you waited until September 14th, 2004, to produce these two pages? * * * Q. These two documents were not made available until yesterday, correct? These two pieces of paper, you couldn't put them in the mail? A. Two pieces of paper could have been put in the mail, but there was considerable time spent gathering that information. (Humphreys' September 14, 2004 Dep. Tr. pp. 100-01.) *6 Plaintiff's Request for Production No. 72 asks for “[s]alary range tables and job classification lists.” The court explicitly ordered that “defendant shall produce all documents responsive to Request for Production No. 72.” (July 2, 2004 Order pp. 31-32.) Defendant failed to do so in a timely manner: Q. And Request for Production Number 72 asks for salary range tables and job classifications lists. You were ordered to produce those, and as I sit here today, I do not have those, correct? * * * A. I don't believe you've got the list. I believe you have part of the job classification and listings. (Humphreys' September 14, 2004 Dep. Tr. p. 105; see also pp. 106-07.) Finally, the court finds defendant's failure to produce copies of its electronic databases to be the most troubling. One of the key issues raised by plaintiff and addressed by the court in its July 2, 2004 Order was whether defendant should produce its entire electronic human resources database. Counsel for defendant claimed that there is no simple way to copy defendant's entire database and make it available to plaintiff. Plaintiff, on the other hand, argued that there is no question that defendant can produce the information requested electronically because that is how it is created and stored according to defendant's human resources manager. At the time of the hearing on plaintiff's Renewed Motion to Compel, the court had not been provided any specific, detailed information regarding the process, time and cost required to copy the database. Therefore, the court found defendant had failed to show that production of the database is unduly burdensome and ordered that if an electronic database containing the information sought in Interrogatory No. 12 exists, defendant shall produce a copy but may delete information and/or fields not requested in the interrogatory or plaintiff's other discovery requests as discussed below. (July 2, 2004 Order p. 9.) The court entered similar orders in regard to other discovery requests at issue. On page 13, the court ordered that if an electronic database containing the information sought in Request for Production No. 9 exists, defendant shall produce a copy but may delete information and/or fields not specified in this request or plaintiff's other discovery requests as discussed herein. On page 18, the court ordered that if an electronic database containing the information sought in Request for Production No. 18 exists, defendant shall produce a copy but may delete information and/or fields not requested in this request or plaintiff's other discovery requests addressed herein. On page 31, the court ordered that [i]f an electronic database containing the information sought in Request for Production No. 67 exists, defendant shall produce a copy but may delete information and/or fields not requested in this request or plaintiff's other discovery requests as discussed herein. Despite these explicit directives by the court, defendant did not produce any electronic databases to plaintiff. (See Humphreys' September 14, 2004 Dep. Tr. pp. 54, 72, 74-76, 80, 103.) Instead, defendant extracted information from the database and then produced that information in an electronic format. (See American Ordnance's Resistance to Plaintiff's Motion to Strike Answer, Enter Default Judgment and for Additional Sanctions (Clerk's No. 95) at 1-2.) Defendant believes that it complied with the court's July 2, 2004 Order in doing so and emphasizes that the court did not order it to produce the entire database. *7 Defendant is correct that the court did not order it to produce the entire database but, instead, allowed defendant to delete information or fields which was not requested by plaintiff. The court explicitly ordered defendant to produce, however, a copy of the “electronic database” as opposed to defendant obtaining information from the database then producing that information in an electronic format. The court finds defendant's interpretation of the order extremely suspect because the issue of whether the “electronic database” could and should be produced had been discussed at length in both written briefs and during oral arguments. In addition, the record indicates that much of the information relevant to this case, and which was ordered produced by this court, is contained within several different electronic databases including a human resource database referred to as HRIS, a payroll database, a cost allocation database, and a database referred to as Pilgrim which contains information regarding quality control. (See, e.g., Humphreys' September 14, 2004 Dep. Tr. pp. 63, 67, 72, 80, 103.) Although these databases may also contain information that is not relevant to this case, the court believes defendant's repeated delays in discovery leaves the court with no other option at this point other than to order production of the entire databases in their electronic form. The court notes that, even after several opportunities, defendant has failed to produce any specific testimony or affidavit establishing that the production of its databases would be unduly burdensome. During the hearing, Lynn Humphreys testified that it would be “insurmountable” for defendant to produce the HRIS database. She provided no specific reasons, however, other than the software was developed by defendant, and her testimony was based solely on an opinion she received from technical support personnel. Moreover, the court is skeptical of Humphreys' courtroom testimony in light of her following statements from her deposition on September 14, 2004: Q. So I am correct that for each employee, from 2000 until today, his or her salary history and his or her position history exists on the HRIS? A. That's correct. * * * Q.... And you could produce it electronically in the same fashion? Rather than printing it out, you could save it to a different place or just give me the database, which I've asked for, correct? A. I don't know which one would be easier, but yes, either one of those we should be able to do. Q. And you haven't done that? A. It will take - - I'm not going to say it won't take time, because it does take some time to do that.... (Humphreys' September 14, 2004 Dep. Tr. pp. 63-64.) In sum, the court finds that defendant failed to timely and fully comply with this court's order of July 2, 2004, in regard to several of the discovery requests at issue. While defendant repeatedly focuses on the volume of discovery it has produced and the efforts it has made to comply, the rules clearly provide that “an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose answer, or respond.” Fed. R. Civ. P. 37(a)(3). In addition, the court finds an absence of sufficient justification for defendant's repeated delays throughout the discovery process. Defendant has relied on generalized assertions that plaintiff's requests are over broad and unduly burdensome for its repeated delays. These type of general, unsupported objections are not sufficient responses to either discovery or a motion to compel. See St. Paul Reinsurance, 198 F.R.D. at 511-12; Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610 (D. Neb. 2001); Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997). Likewise, as noted by the Eighth Circuit, “a general allegation as to the burdensome nature of a discovery request is not available as an excuse to avoid the imposition of sanctions.” International Brotherhood of Electrical Workers v. Hope Electrical Corp., 380 F.3d 1084, 1105 (8th Cir. 2004). 2. Prejudice to Plaintiff *8 Although the court was not in a position to review defendant's production, counsel indicated at the November 10, 2004 hearing that defendant was nearing final production of its discovery responses. Because trial has been continued for this case without date (see October 14, 2004 Order (Clerk's No. 91)), there is still an opportunity for defendant to cure any remaining lapses in its discovery responses. In addition, the production of the entire databases should provide much of the information that plaintiff has long sought. Nevertheless, the court finds plaintiff has been prejudiced by defendant's failure to timely comply with the July 2, 2004 Order. First, counsel has spent time and resources further pursuing these discovery issues when counsel could have been focused on preparing the matter for trial. In addition, plaintiff's counsel has taken depositions without having information and documents which plaintiff was entitled to under the discovery rules and the court's order. Finally, according to plaintiff, the expert witness he initially intended to use may no longer be available to provide an opinion in this case due to time constraints. (See Aff. of Murray R. Barrick; Plaintiff's Ex. I.) 3. Appropriate Sanction Under Rule 37 Federal Rule of Civil Procedure 37(b) sets forth several options for sanctions which may be entered if a party fails to comply with a court order on discovery matters: (2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party ... fails to obey an order to provide or permit discovery, ..., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; * * * In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party of both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The “court is not constrained to impose the least onerous sanction available, but may exercise its discretion to choose the most appropriate sanction under the circumstances.” Carey, 186 F.3d at 1022. This “ ‘discretion is bounded by the requirement of Rule 37(b)(2) that the sanction be ‘just’ and relate to the claim at issue’ ” in the court's order. Hairston v. Alert Safety Light Prods., Inc., 307 F.3d 717, 719 (8th Cir. 2002)(quoting Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)). Here, in addition to seeking a monetary penalty, plaintiff also seeks the harshest of sanctions: striking defendant's answer and entry of default judgment. Under Rule 37, the court has “ ‘the authority to enter a default judgment against a party who abuses the discovery process.’ ” Carey, 186 F.3d at 1022 (quoting Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8thCir. 1993)). According to the Eighth Circuit, striking a party's pleadings *9 is within the range of appropriate sanctions when a party demonstrates a “blatant disregard of the Court's orders and the discovery rules,” engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case. Id. There is a strong policy, however, in favor of deciding a case on the merits, and against depriving a party of its day in court. Id. at 1020. The Eighth Circuit has stated that “[d]ismissal or entry of a default judgment should be the rare judicial act.” Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977); see also Hairston, 307 F.3d at 720 (“The crux of Edgar is that the district court should use the dismissal sanction sparingly.”) While defendant has engaged in delay tactics and has relied upon unfounded interpretations of plaintiff's discovery requests and this court's orders, the court does not believe defendant's, or its counsel's, actions rise to the type of repeated egregious conduct that the Eighth Circuit has affirmed as warranting the striking of pleadings and/or entry of default judgment or dismissal of claims. See, e.g., Hope Electrical Corp., 380 F.3d at 1105-07 (affirming default judgment because of defendant's dilatory conduct through years of litigation, refusal to abide by court orders, refusal to participate in arbitration, refusal to participate in discovery, and failure to raise any genuine resistance to motion); Forsythe v. Hales, 255 F.3d 487, 490-91 (8th Cir. 2001)(affirming default judgment because of failure to engage counsel and “complete failure to engage in discovery and failure to appear at depositions and hearings set by court”); Everyday Learning Corp. v. Larson, 242 F.3d 815, 817-18 (8th Cir. 2001)(affirming dismissal of counterclaim and default judgment for repeated and unabated discovery abuses and other pretrial abuses); Keefer v. Provident Life & Accident Ins. Co., 238 F.3d 937, 940-41 (8th Cir. 2000)(affirming dismissal of action where plaintiff engaged in numerous obstructive discovery tactics including wilful obliteration of entries in a Daytimer); Carey, 186 F.3d at 1019-22(affirming sanction of striking pleadings and entry of judgment because of perjurious discovery answers and systematic pattern of discovery abuse); Comiskey, 989 F.2d at 1009-10, 1011-12 (affirming default judgment and award of $5,407.50 in attorney's fees as sanction for defendant's “total failure to comply with numerous court orders and” discovery requests); Boogaerts v. Bank of Bradley, 961 F.2d 765, 766-68 (8th Cir. 1992)(affirming dismissal of plaintiff's RICO claims because plaintiff's counsel willfully and in bad faith refused to comply with discovery orders; noting “total disregard by plaintiff's counsel of the orders of the Court”); Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1207-08 (8th Cir. 1983)(affirming dismissal of plaintiff's complaint as sanction for deliberate and repeated failure to comply with discovery orders and failure to prosecute); Denton v. Mr. Swiss of Missouri, Inc., 564 F.2d 236, 240-41 (8th Cir. 1977)(affirming dismissal of action for “course of conduct amounting to flagrant noncompliance with” discovery orders); c.f. Good Stewardship Christian Center v. Empire Bank, 341 F.3d 794, 797-98 (8th Cir. 2003)(affirming dismissal of case under Federal Rule of Civil Procedure 41(b) for violation of court order, numerous baseless motions, failure to properly answer discovery, and obstructing discovery). *10 The court does not find, at least in the present record, that defendant has wilfully destroyed any evidence.[4] Nor is the court able to find definitive evidence showing that defendant engaged in deceitful tactics to obstruct discovery or gave perjurious answers during depositions or in discovery responses. Therefore, this case is distinguishable from those cases where destruction of evidence or deceitful tactics warranted the imposition of the severe sanctions of dismissal or default judgment. See Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694-95 (8th Cir. 2001)(repeated perjury); Keefer, 238 F.3d at 940-41 (destruction of evidence); Schoffstall v. Henderson, 223 F.3d 818, 823-24 (8th Cir. 2000)(deceitful tactics); Carey, 186 F.3d at 1020-21 (plainly perjurious discovery answers); Carter v. General Car & Truck Leasing Sys., Inc., 218 F.R.D. 180, 182-83 (N.D. Iowa 2001)(repeated false statements); Knapp v. Convergys Corp., 209 F.R.D. 439, 442-43 (E.D. Mo. 2002)(repeated perjurious discovery answers). Because trial has been continued without date, and any remaining deficiencies in defendant's production may still be cured, the present case is also distinguishable from cases where the discovery abuses occurred up to the time of trial. See Mems, 327 F.3d at 779-80 (affirming exclusion of testimony by expert as discovery sanction where meetings and notes were not disclosed until the night before expert was scheduled to testify.); Carey, 186 F.3d at 1021-22 (discovery abuse was not fully revealed until non-disclosed documents were presented at trial; noting monetary penalty could not have remedied “the lack of integrity in the case being presented to the jury”). This case is also distinguishable from those cases where a party either flatly refused to respond to discovery requests or failed to comply with multiple court orders. See, e.g., Avionic Co., 957 F.2d at 557-58 (affirming dismissal of action as discovery sanction where plaintiff's president willfully refused to answer questions despite being ordered to do so); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983)(affirming dismissal of action where plaintiff ignored interrogatories and discovery order); c.f. Hairston, 307 F.3d at 718-20 (reversing dismissal of case as Rule 37(b)(2) sanction; distinguishing cases where parties had numerous opportunities to respond to court orders but repeatedly failed to do so). Instead, the court finds that the circumstances of this case is more in line with cases where monetary sanctions were imposed. See Lawrence v. Bowersox, 297 F.3d 727, 733-34 (8th Cir. 2002)(affirming award of $8,125 in attorneys' fees and $587.19 in expenses as sanction for violating discovery order; but noting opinion that “the district court was generous in foregoing the option to strike the appellants' pleadings and entering a default judgment”); First American State Bank v. Continental Ins. Co., 897 F.2d 319, 329-31 (8th Cir. 1990)(affirming imposition of $2,191.64 personal monetary sanction on counsel for “substantially unjustified and willfully delayed non-compliance” with discovery orders); The Rottlund Co., Inc. v. Pinnacle Corp., 222 F.R.D. 362, 374-88 (D. Minn. 2004)(imposing multiple monetary sanctions for various discovery violations including under Rule 37(b)(2) for failure to obey court order to produce information); Brown v. State of Iowa, 152 F.R.D. 168, 178-79 (S.D. Iowa 1993)(imposing $50.00 sanction for failing to produce discovery by court ordered deadline and for consistent pattern of delay); c.f. Baker v. General Motors Corp., 86 F.3d 811, 816-17 (8th Cir. 1996)(reversing sanctions of striking defendant's affirmative defenses and finding product at issue was defective because less severe sanctions including monetary fines were both available and appropriate), rev'd on other grounds, 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). *11 The primary violations of which defendant is guilty are the reliance on unsupported boilerplate objections and the repeated delays in fully responding to the discovery requests at issue, most of which were served more than 2 years ago. While defendant attempts to avoid sanctions by noting its last minute efforts to complete discovery, the court finds defendant's efforts again fell short and were simply “too little, too late.” As noted by the Eighth Circuit, [a]dverse parties are not obligated to expend time and money pursuing legitimate motions for sanctions only to have courts allow last minute rescues. Courts cannot be willing participants in such improper uses of discovery mechanisms. Keefer, 238 F.3d at 941 n. 6; see also The Rottlund Co., 222 F.R.D. at 380(“Ultimate production of material does not excuse initial disobedience where the production is untimely and especially where the ultimate compliance required further court involvement, as here.”) Therefore, after considering the entire record, the court concludes that a monetary sanction should be imposed for defendant's failure to fully and timely respond to plaintiff's discovery requests and comply with this court's order of July 2, 2004. The amount of the sanction is discussed in section C below. B. Plaintiff's Application for Attorney's Fees (Clerk's No. 70) and Supplemental Application for Attorney Fees (Clerk's No. 74) In his Application for Attorney's Fees and Supplemental Application for Attorney Fees, plaintiff seeks fees and costs incurred in bringing his initial Motion to Compel and Renewed Motion to Compel. Plaintiff claims he is entitled to attorney fees in an amount of at least $54,388.50. Rule 37(a)(4) governs an award of expenses when a motion to compel discovery is granted and/or denied: (A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. (B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. Here, the court granted in part and denied in part plaintiff's Renewed Motion to Compel. Therefore, under subsection C, the court may apportion the reasonable expenses incurred in relation to plaintiff's motion among the parties. *12 A substantial part of the court's order ruled in favor of plaintiff on the various issues raised. Without revisiting the various issues, the court found plaintiff to be entitled to discovery on most of the requests at issue. The court also summarily rejected defendant's use of boilerplate, unsubstantiated objections to many requests. Under Rule 37(a)(4), the court must also examine whether defendant was substantially justified for its nondisclosure of discovery before plaintiff filed his motions and for the objections asserted in response to plaintiff's Renewed Motion to Compel. [T]here is no bright line standard for “substantial justification,” and courts must use discretion when deciding whether opposition to a motion to compel is substantially justified. “Whether opposition to a motion to compel is substantially justified depends on the circumstances of the particular case.” However, courts have generally focused on “the quality of the justification and the genuineness of the dispute; where an impartial observer would agree that a party had good reason to withhold discovery,” when determining whether opposition is substantially justified. Brown, 152 F.R.D. at 173 (citations omitted); see also Wagner, 208 F.R.D. at 613 (discussing standard to determine whether opposition to motion to compel is substantially justified). Here, defendant did have justification for some of the objections raised in response to plaintiff's discovery requests. In response to several requests, however, defendant's reliance on unsupported objections of undue burden do not provide substantial justification for failing to timely respond to discovery. Therefore, plaintiff is entitled to reasonable fees and expenses under Rule 37(a)(4). See Wagner, 208 F.R.D. at 610 (awarding expenses and attorney fees incurred in bringing motion to compel where defendant relied on unsupported objections of undue burden and expense). The court believes, however, that various circumstances make an award of expenses in the amount sought by plaintiff to be unjust. To begin, plaintiff is not entitled to expenses related to the filing of his first motion to compel which was denied by the court. In addition, the court finds that counsel failed, in many respects, to follow the mandate of Local Rule 37.1 requiring counsel to confer personally and in good faith with opposing counsel in an attempt to resolve or narrow by agreement the issues raised by the motion to compel. In the written submissions and during oral arguments, the court was inundated with multiple accusations between counsel such as whether telephone calls were or were not made and whether counsel was or was not available on certain dates. The court was required to dig through what it viewed as piles of irrelevant banter between counsel just to get to the substantive discovery issues which were buried beneath the rubble. Although the court does not doubt the number of hours counsel actually spent on the motions, the court believes that counsel spent more time than was reasonably necessary to raise the pertinent issues with the court. The court also finds plaintiff unnecessarily complicated some of the discovery issues by propounding numerous and overlapping discovery requests. It also appears to the court that plaintiff, at times during the discovery process, was not fully aware of exactly what information defendant had produced. The court notes that it does not place total fault upon plaintiff's counsel on these matters but believes counsel unnecessarily complicated some of the discovery issues and, consequently, added to the time and expense required to bring the motions. C. Amount of Sanction *13 The court finds that the various circumstances surrounding the discovery disputes at issue warrants an award of attorney fees and expenses, but in an amount significantly lower than the amount requested by plaintiff. In this court's opinion, after reviewing the record and considering all of the circumstances involved in the parties' discovery battles, a total award of $10,000 for attorney fees and expenses in bringing its Renewed Motion to Compel and Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions is a just and reasonable sanction for defendant's failure to timely and fully produce discovery prior to the motions and for defendant's failure to timely and fully comply with this court's July 2, 2004 Order. III. CONCLUSION For the foregoing reasons, Plaintiff's Application for Attorney's Fees (Clerk's No. 70) and Plaintiff's Supplemental Application for Attorney Fees (Clerk's No. 74) are granted in regard to the request for an award of attorney fees and expenses but denied in regard to the amount requested by plaintiff, and Plaintiff's Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions (Clerk's No. 83) is granted in regard to the request for imposition of a monetary sanction. Pursuant to Federal Rules of Civil Procedure 37(a)(4) and 37(b)(2), defendant is sanctioned $10,000 in attorney fees and expenses for a repeated pattern of unsubstantiated delay in fully responding to discovery requests culminating in a failure to timely and fully comply with this court's order of July 2, 2004. Defendant shall pay this amount to plaintiff's counsel by no later than February 14, 2005. In light of the above detailed discussion and the court's ruling on plaintiff's other motions, including the imposition of monetary sanctions, Plaintiff's Motion for Order to Show Cause (Clerk's No. 84) is denied. Defendant shall produce to plaintiff copies of all of its electronic databases without any redaction or deletion to the information or fields contained therein by no later than February 11, 2005. If defendant has still failed to fully answer or supplement, or produce responsive documents to, any discovery request addressed in the court's July 2, 2004 Order, defendant shall immediately provide full and complete responses and documents. The failure to do so may result in additional sanctions, including exclusion of evidence and entry of default judgment, being imposed. IT IS SO ORDERED. Dated January 31, 2005. Footnotes [1] The court is uncertain as to the necessity for plaintiff to file a separate Motion for Order to Show Cause because the sanction of treating a failure to obey a discovery order as a contempt of court is available under Rule 37(b)(2). In the court's view, plaintiff could have raised the issue in his Motion to Strike Defendant's Answer, Enter Default Judgment and for Additional Sanctions. [2] Request for Production No. 9 requests the following materials: Copies of personnel files, performance appraisals, payroll records, disciplinary records, or any other records pertaining to Brooks Fry, Wes Hunstad, Brian Stevenson, Byron Olson, Michael Hunter, Roger Fulton, Tim Miller, Gary Degala, Keith Houston, Shane Dupree, Mike Kathismeir, Brent Bennett, Loren Nihart, Brad Hamilton, Butch Hicks, Lou Stoecker, Reed Hager, Robert Haines, Tom Noel, Jose Reyes, Alvera Brockett, Dennis Brobston, Mark Restaino, Robert Goble, Carl Beird, John Berry, Don Lively, Jean Brewster, Steve Birkenstock, John Cortum, Mike Foster, Kevin Rhodes, Phil Clem, Gary Kiminske, Tim Minton, Dan Snyder, Ken Karr, and Jeff Hibler. [3] Request for Production No. 18 requests the following material: Computer readable and sortable data containing the following; Social Security number, date of birth, position and salary of every employee of the defendant on a monthly basis and quarterly basis from January 2000 to the present together with the date of hire or termination, if applicable, and reason for termination, if applicable. [4] While plaintiff raises questions regarding the destruction of certain documents and Humphreys' computer and hard drive, he concedes that there is no direct evidence of spoliation in this case. (See Plaintiff's Brief (Clerk's No. 88) pp. 6-8.) The court finds the circumstantial evidence in the present record is insufficient to justify the sanction of an adverse inference instruction at this time. See Morris v. Union Pacific Railroad, 373 F.3d 896, 900-03 (8th Cir. 2004)(discussing circumstances which justify adverse inference instruction); Stevenson v. Union Pacific Railroad, 354 F.3d 739, 745-50 (8th Cir. 2004)(same). The court notes, however, that plaintiff may raise the issue as a pretrial matter after discovery is completed and if there is sufficient evidence to support plaintiff's claims.