INFODELI, LLC, et al., Plaintiffs, v. WESTERN ROBIDOUX, INC., et al., Defendants Case No. 4:15-CV-00364-BCW United States District Court, W.D. Missouri, Western Division Filed March 19, 2020 Counsel Jeffrey J. Lowe, Jeffrey J. Lowe, P.C., Clayton, MO, Joseph K. Eischens, Law Office of Joseph K. Eischens LLC, Parkville, MO, Michael M. Tamburini, Levy Craig Law Firm, PC - MainSt, Eric L. Dirks, Williams Dirks Dameron LLC, Kenneth N. Caldwell, Caldwell Law Firm, Kansas City, MO, Paul A. Maddock, James J. Rosemergy, Carey & Danis Law Firm, PC, St. Louis, MO, for Plaintiffs. Daniel Eric Blegen, Breanna Spackler, Catherine Diane Singer, Kendra Frazier German May, PC, Peter Knops, Knops LLC, Kansas City, MO, for Defendants Wimes, Brian C., United States District Judge ORDER *1 Before the Court is Plaintiffs' Renewed Motion for Sanctions Due to Spoliation and Willful Refusal to Comply with the Court's Orders. (Doc. #664). The Court, being duly advised of the premises, and consistent with its previous Orders, grants said motion based on Engage's consistent and pervasive failure to comply with discovery orders, but otherwise denies the requested relief. BACKGROUND Previously, the Court granted Plaintiffs' motion for sanctions against Defendant Engage Mobile Solutions for repeated violations of discovery orders. (Doc. #382). The Court specifically ruled “imposition of sanctions against Engage is warranted,” but did not determine “the type and amount of sanctions to be assessed against Engage.” (Doc. #382). In the instant motion, Plaintiffs re-assert their request for sanctions against Engage (Docs. #204, #213, #217, #305). (Doc. #503, #664). Plaintiffs seek sanctions against Engage and against “the other corporate defendants, who at all times were in custody or control of Engage's documents and those of Engage's contractors.” (Doc. #664). Plaintiffs' renewed motion requests the following specific categories of sanctions: (1) an order directing Engage to provide Plaintiffs' expert, or the designated third-party neutral, access to Engage's computers, networks, storage systems, and online applications for forensic audit, at Engage's expense; (2) all expert witness fees expended in pursuit of Plaintiffs' motions for sanctions; (3) reasonable attorneys' fees expended related to Plaintiffs' sanctions motions related to discovery productions; (4) “an order defaulting Engage on the issue of infringement for the Ceva and BIVI Marketing Stores, from the time the Platforms became operation[al] to December 4, 2014, the first date of a database backup for either complete Platform”; and (5) an order defaulting Engage on the issue of infringement for vectrarebate.com from April 1, 2014 to February 15, 2015, the first date of the database backup for this site. LEGAL STANDARD Fed. R. Civ. P. 37 addresses the imposition of sanctions. Fed. R. Civ. P. 37. The Court has an inherent authority and discretion to “fashion an appropriate sanction for conduct which abuses the judicial process.” Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir. 2012); Harlan v. Lewis, 982 F.2d 1255, 1260 (8th Cir. 1993). “A finding of bad faith is not always necessary to the Court's exercise of its inherent power to impose sanctions.” Stevenson v. Union Pac. R. Co., 354 F.3d 739, 745 (8th Cir. 2004). However, a finding of bad faith is a prerequisite to the imposition of attorneys' fees as a sanction. Id. ANALYSIS As previously set forth, it is the Court's intent to sanction Engage for delays in complying with the Court's discovery orders. Based on the record, it is the Court's view that Engage purposefully “slow-played” its responses to the Court's discovery orders, with knowledge that delaying production of certain ESI would operate to conceptually distance the Engage project from Plaintiffs' Platforms. The Court is thus satisfied that Engage's delays in producing discovery were undertaken in bad faith and prejudiced Plaintiffs in prosecuting their claims. For these reasons and consistent with the Court's previous ruling (Doc. #382), the imposition of sanctions against Engage arises under Fed. R. Civ. P. 37(b).[1] *2 The Court otherwise considers whether the imposition of sanctions under Fed. R. Civ. P. 37(e) is justified. Fed. R. Civ. P. 37(e) applies particularly to a party's failure to preserve electronically-stored information (“ESI”): If electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon a finding a prejudice to another party from loss of the information, may order no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the jury; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). Plaintiffs' renewed motion argues the Court should impose sanctions against not only Engage, but also the other corporate defendants involved in this case. In contrast with Engage, the record does not demonstrate that the other corporate defendants repeatedly failed to timely comply with the Court's discovery orders. The motion to sanction the other defendants for violations of discovery orders is denied. Second, the Court considers whether Engage's failure to undertake reasonable steps to preserve ESI not otherwise available provides an additional basis for sanctions. Fed. R. Civ. P. 37(e). To the extent Plaintiffs' motion seeks additional and/or other sanctions for Engage's failure to deploy reasonable preservation efforts such that sanctions under Fed. R. Civ. P. 37(e) are also warranted, the Court declines to make such a finding upon the current record. Notwithstanding, as previously set forth, Plaintiffs' renewed motion for sanctions is granted with respect to Engage and the Court imposes sanctions pursuant to Fed. R. Civ. P. 37(b)(2). Accordingly, it is hereby ORDERED Plaintiffs' Renewed Motion for Sanctions Due to Spoliation and Willful Refusal to Comply with the Court's Orders (Doc. #664) is GRANTED IN PART AND DENIED IN PART. As previously set forth, the motion is granted with respect to imposition of sanctions against Engage for failure to timely comply with discovery orders. (Doc. #382). The motion is otherwise denied. It is further ORDERED, pursuant to Fed. R. Civ. P. 37(b)(2)(A) and (C), the Court assesses sanctions against Engage for Plaintiffs' costs, expert witness fees, and attorneys' fees incurred or expended between February 22, 2016 and February 24, 2017. Plaintiffs shall, within 30 days of the date of this Order, file a proposed itemized accounting of Plaintiffs costs and fees associated with addressing Engage's discovery delays from February 22, 2016 through February 24, 2017, including those costs and fees associated with preparing its motion for sanctions, not including those incurred or expended relating to witness tampering. IT IS SO ORDERED. Footnotes [1] For a party's failure to obey a discovery order, the following types of sanctions may be appropriate: (1) directing matters be taken as established; (2) prohibiting the disobedient party from responding to or presenting certain evidence; (3) striking pleadings; (4) staying proceedings; (5) dismissing the action; (6) entering default; and/or (7) contempt of court. Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to the orders above, 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, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).