SWAN GLOBAL INVESTMENTS, LLC, Plaintiff, v. THOMAS RICHARD YOUNG, Defendant Civil Action No. 18-cv-03124-CMA-NRN United States District Court, D. Colorado Filed June 05, 2020 Counsel Thomas F. Quinn, Thomas F. Quinn, P.C., Denver, CO, for Plaintiff. Cara F. Thornton, Henry Marwood Baskerville, IV, Fortis Law Partners LLC, Denver, CO, for Defendant Neureiter, N. Reid, United States Magistrate Judge REPORT AND RECOMMENDATION ON DEFENDANT'S YOUNG'S MOTION FOR THE SANCTION OF DISMISSAL (DKT. #110) *1 This matter came before the Court on May 28, 2020 for both a Final Pretrial Conference and a hearing on Defendant Thomas Young's Motion for Sanctions, filed April 12, 2020. Dkt. #110. The Motion for Sanctions was referred to me by Judge Arguello on April 13, 2020. See Dkt. #112. Plaintiff Swan Global filed its response to the Motion for Sanctions on May 22, 2020. Dkt. #117. Based on the reasoning outline below, I recommend this action be DISMISSED WITH PREJUDICE as a sanction for Plaintiff's failure to live up to its discovery obligations and discovery abuse. Background This is a lawsuit brought by Swan Global, an investment advisory company, against Mr. Young, who was alleged to have been a consultant to Swan Global providing customer relations services. Swan Global and Mr. Young had entered into a skeletal “consulting agreement.” Swan Global claims that Mr. Young acted as a fiduciary to Swan Global and, in his capacity as a consultant, obtained access to proprietary information about Swan Global including its business operations and investment strategies. Swan Global claims that while Mr. Young was being paid for his consulting services and was in possession of proprietary trade secret information, he ceased to provide such services and instead started to compete with Swan Global, misappropriating Swan Global's confidential information and interfering with Swan Global's customer relations. Mr. Young denies the allegations, saying that, if anything, he was an independent contractor without any fiduciary obligations. He had no obligation not to compete with Swan Global and stole no proprietary or confidential information. Despite the seriousness of its allegations, Swan Global has been, to put it charitably, less than vigorous in pursuing this case. In February of 2019, I had to issue an order to show cause why the case should not be dismissed with prejudice pursuant to Fed. R. Civ. Pro. 41(b) for: (1) failure of Sawn Global to appear at a motions hearing; (2) its principal's making of misrepresentations to the Court; (3) failing to file a “short and plain” statement of the case and failing to correct the deficiencies in multiple amendments; (4) failing to timely respond to a motion to dismiss; and (5) failing to have replacement counsel timely enter an appearance even after being ordered to do so by the Court. See Dkt. #38. Ultimately, I did not recommend dismissal of the case but did impose a monetary sanction on Swan Global, “in large part because an alternative sanction [to dismissal] in the form of attorneys’ fees is sufficient to compensate Defendant for the prejudice done and to discourage future inappropriate conduct.” Dkt. #44 at 2 (emphasis added). I issued a Scheduling Order on April 11, 2019 setting a discovery cut-off date of December 20, 2019. Under the scheduling order, any written discovery was to have been tendered 60 days prior to the close of fact discovery. See Dkt. #65. Of note, at the Scheduling Conference, Mr. Young had objected to setting any discovery deadlines given that a motion to dismiss was pending and no answer had been filed. At Swan Global's urging, I overruled the objection, ordering the parties to proceed with discovery based on the allegations of the operative complaint. *2 But Swan Global propounded no written discovery to Mr. Young within the time specified for discovery in the Scheduling Order and took no depositions. And on November 12, 2019, after the time for tendering written discovery had passed, Swan Global filed a motion asking to vacate or otherwise modify the Scheduling Order in part because Mr. Young's objection to my recommendation on his Motion to Dismiss was still before Judge Arguello. See Dkt. #86. Swan Global's counsel also claimed to have “overlooked” the 60-day requirement for the tendering of written discovery. On December 3, 2019, I denied the Swan Global's motion to extend the discovery deadline, writing in part, “Swan Global is the Plaintiff. It should have been aggressively pursuing discovery in this case from the time the Scheduling Order was approved. Instead it did close to nothing. It has demonstrated no diligence or any good cause for extending the deadline for issuing written discovery.” See Dkt. #90 at 5. The Present Motion to Dismiss Now Mr. Young brings another motion for dispositive sanctions against Swan Global. The basis for the motion is that Swan Global been slipshod not only in its pursuit of discovery on its own behalf, but it has failed to live up to its obligations to provide discovery in response to Mr. Young's discovery requests and pursuant to its disclosure obligations under Rule 26. The discovery that was produced was in the form of a “document dump” with thousands of unorganized pages produced without any categorization. Swan Global served its initial Rule 26 Disclosures on May 9, 2019. In so doing, it identified eight categories of documents in Swan Global's possession, custody, or control that Swan Global may use to support its claims or defenses. With the exception of the Consulting Agreement (which was already in Mr. Young's possession), all the categories of documents were allegedly “available through Plaintiff's counsel.” Categories of documents identified as being in Swan Global's possession that “Swan may use to support its claims and defenses” included: • Documents and communications between Defendant and Swan relating to the services performed by Defendant pursuant to the Consulting Agreement. • Documents and communications between Defendant and Swan evidencing Defendant's receipt of Swan's confidential and proprietary information. • Documents evidencing Plaintiff's payments to Defendant. • Documents reflecting or evidencing Defendant's offering of products and services that compete with Swan's offerings, and Defendant's disparagement of Plaintiff. • Documents and communications between Defendant and Swan regarding Defendant's termination of the Advisor-Manager Agreement and ongoing use of Swan's DRS. • Documents and communications between Defendant and third parties conveying Swan's confidential and proprietary information. • Pleadings and other submissions in an arbitration before the American Arbitration Association (AAA Case no. 01-16-0004-9434). Dkt. #111-1 at 4. On the issue of Plaintiff's alleged damages for misappropriation of trade secrets, breach of fiduciary duty, interference with its existing and prospective business relations, disparagement, fraud and conspiracy, Swan Global stated, “Plaintiff has not computed these categories of damages, and cannot meaningfully do so until it has conducted discovery in support of its claims.” Dkt. #111-1 at 5. Despite a request, Swan Global did not produce any documents with its initial disclosures.” Dkt. #111 at ¶ 4. Mr. Young served written discovery on Swan Global on October 21, 2019. Id. at ¶ 6. Swan Global served its verified responses to the discovery requests on November 20, 2019. Id. at ¶ 7. No documents were produced in connection with the responses to Mr. Young's discovery on that date. Id. at ¶ 8. In all of Swan Global's responses to Mr. Young's requests for production, Swan Global wrote the identical response: “Subject to General Objection No 1, above, Plaintiff will produce all Documents in its possession or control with the scope of this Request. Such production shall be made in pdf format (with respect to paper and pdf files) and native format with respect to other electronic files, via DropBox or other electronic delivery system, after entry of a Protective Order protecting the confidentiality of materials designated as confidential by Plaintiff. Plaintiff anticipates that production shall be made on or before December 3, 2019.” *3 Dkt. #111-3 at 8–9. Swan Global's documents in response to Mr. Young's requests for production were produced on December 3, 2019, at which time Swan Global produced 727 pages of documents bearing Bates numbers Swan000054–780. Dkt. #111 at ¶ 10. The documents were not broken down by any category or provided in a way organized with the requests for production. On December 13, 2019, seven days prior to the close of discovery, Swan Global produced an additional 29,583 pages of documents bearing Bates numbers ADVISOR002834–298195 and Swan 000781–5003. On January 23, 2020, a month after the close of discovery, Swan Global produced an additional 8,315 pages of documents with Bates numbers K0001–8315, which it had subpoenaed from third party Kaizen Advisory, LLC. Id. at ¶¶ 12–13. In the letter accompanying the Kaizen production, Plaintiff's counsel wrote, “this material is provided to you pursuant to our obligations under Rule 26(f), F.R.C.P. We have not yet reviewed the material, but we assume it may include some items responsive [sic] to your discovery [sic]. If so, we will separately so advise after we have reviewed the material.” Id. at ¶ 14. Six days later, on January 29, 2020, Swan Global produced an additional 16,512 pages of documents bearing Bates numbers ADVISOR00001–16512. While these documents bore identical “ADVISOR” Bates prefixes and overlapping numbers with those produced on December 13, 2020, they were an entirely different set of documents from the earlier production. Id. at ¶16. To date, Swan Global has produced 55,137 pages of documents. Swan Global has not identified what the documents pertain to, whether any such documents are responsive to Mr. Young's discovery requests, how the documents produced relate to the categories identified in the Rule 26 disclosures, or how the documents relate to the claims and defenses in the litigation, if at all. Id. at ¶17. For clarity, despite commencing this lawsuit on November 16, 2018, Swan Global did not produce a single document in this litigation until December 3, 2019—more than a year later. Then, between December 3, 2019 and December 20, 2019, the date when discovery closed, Swan produced 30,310 pages of documents. After the close of discovery, Swan disclosed an additional 24,827 pages of documents. And, despite the belated dump of 55,137 pages of documents at or after the close of discovery, Swan Global still has not produced the documents identified in its Rule 26 Initial Disclosures. Nor has Swan Global identified which, if any, of the 55,137 belatedly produced pages are relevant to the case and/or responsive to Mr. Young's discovery requests. In connection with the hearing on Defendant's motion for sanctions, the Court held a Final Pretrial Conference on May 28, 2020. In advance of that conference, the parties submitted a proposed final pretrial order that included a joint exhibit list the designates only 56 potential exhibits to be used at the trial of this case, 33 of which were designated by Plaintiff Swan Global. Based on representations by counsel at the Final Pretrial Conference, Swan Global submitted a revised list of potential trial witnesses because its initial list of proposed witnesses included a number of witnesses who had never been previously identified by Plaintiff. When confronted with the fact that the originally listed witnesses had never been previously identified, counsel for Swan Global agreed to strike them from the exhibit list. Mr. Young's Argument for Terminating Sanctions *4 Mr. Young argues that under Fed. R. Civ. P. 37(c)(1)(C) the Court has inherent power to levy sanctions in response to abusive litigation practices. Dkt. #110 at 4 (citing Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993)). This includes the power to dismiss an action for discovery violations. Id. (citing Fed. R. Civ. P. 37(b)(2)(C) and Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)). Mr. Young argues that dismissal is an appropriate sanction where a party's failure to comply with discovery demands is a result of willfulness, bad faith, or some fault of a party other than an inability to comply. Mr. Young argues that the “document dump” of more than 50,000 pages of documents just prior to the close of discovery and after discovery had closed, without any identification of the documents, and without any effort to provide any categorized responses to its Rule 26 disclosures demonstrates a willful failure to comply with applicable discovery rules. Mr. Young argues he has been prejudiced by being deprived of conducting any discovery about the documents’ contents, and denied the ability to identify relevant documents in defense of the claims asserted against him. Swan Global, Mr. Young argues, “will have the unfair advantage at trial of having surprise responsive explanations that have not been explored or tested in discovery.” Dkt. #110 at 7. Plaintiff's Argument Against Terminating Sanctions Swan Global argues that the prejudice caused by its discovery failures can be addressed by (1) requiring Swan Global to categorize with specificity the thousands of pages of documents produced in this case, and (2) extending discovery to allow Mr. Young to take a deposition regarding the documents produced, if necessary. Swan Global also argues that Mr. Young failed to meaningfully confer consistent with this Court's practice standards on discovery disputes prior to filing its motion, and also that most the documents “dumped” on Mr. Young came from an underlying arbitration matter between Swan Global and Brookstone (a non-party to this case) or from Kaizen Advisory LLC. Plaintiff argues that it was precluded from producing the Brookstone arbitration documents in a more timely fashion because of the protective order issued in that arbitration and, once permission was granted to allow the documents to be used in this case, Swan Global merely advised Mr. Young's counsel that they were available for use. This is because one of Mr. Young's lawyers was counsel to Brookstone in that arbitration and had preserved the documents. Swan Global also argues that with respect to the Kaizen Advisory documents, Mr. Young was President of Kaizen Advisory and should have been in control or possession of those documents already. Swan Global asserts that Defendant Young should have been aware of the contents of the Brookstone and the Kaizen Advisory documents and did not need (and does not need) any further explanation of how the documents are relevant to the instant claims leveled against Mr. Young. See Dkt. #177 at 8–9. Swan Global goes so far as to assert that Mr. Young “should know what the documents are and should have disclosed them to Plaintiff pursuant to Rule 26.” Id. at 9. Swan Global also claims that Mr. Young's “assertion that he needs an explanation of the relevance of those documents in this case is disingenuous.” Id. Swan Global also makes the argument that in connection with the Final Pretrial Order, it has only listed 33 exhibits for use in trial and has identified those documents by Bates number. Thus, according to Swan Global, its “overproduction does not unduly burden Defendant.” Id. Analysis *5 Under Fed. R. Civ. Pro. 34(b)(2)(E)(i), in responding to a request for production, a “party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” See, e.g., Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606 (D. Neb. 2001) (defendant's response to document request in products liability suit was inadequate as defendant merely invited plaintiff's counsel to peruse four overstuffed file cabinets in a discovery repository, there was no index provided, and the documents were not organized by date, subject matter, or in any other way); T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449 (W.D.N.C. 1991) (where mortgage company in response to request for production of documents produced documents in a box with no apparent order and not labeled as responsive to any particular request, company would be required to organize produced documents in manner clearly indicating which of the documents responded to the specific request for production); Stiller v. Arnold, 167 F.R.D. 68 (N.D. Ind. 1996) (ordering sanctions for production of 7,000 pages of documents in no apparent order which violated discovery rule requiring party to organize and label documents produced for inspection). Rule 41(b) states that “[i]f [a] plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” A dismissal under Rule 41(b) “operates as an adjudication on the merits” “unless the dismissal order states otherwise.” In Ehrenhaus, the Tenth Circuit laid out the test for whether dismissal with prejudice is an appropriate sanction. In that case, the court was addressing a discovery sanction for failure to appear at a deposition, but the principles articulated there apply equally to Defendant's Motion to Dismiss, which is based on Rule 41(b). The Ehrenhaus court held as follows: At the outset, we recognize that dismissal represents an extreme sanction appropriate only in cases of willful misconduct. Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872–73 (10th Cir. 1987); Standard Metals, 817 F.2d at 628–29. In many cases, a lesser sanction will deter the errant party from further misconduct. “Because dismissal with prejudice ‘defeats altogether a litigant's right to access to the courts,’ it should be used as ‘a weapon of last, rather than first, resort.’ ” Meade, 841 F.2d at 1520 n.6 (citations omitted). The district court's discretion to choose a sanction is limited in that the chosen sanction must be both “just” and “related to the particular ‘claim’ which was at issue in the order to provide discovery.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982). Before choosing dismissal as a just sanction, a court should ordinarily consider a number of factors, including: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; ... (3) the culpability of the litigant,” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th Cir. 1988) (quoting Meade, 841 F.2d at 1521 n.7 (10th Cir. 1988)); (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance, see, e.g., Willner v. University of Kansas, 848 F.2d 1023, 1030 (10th Cir. 1988) (per curiam), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989); Standard Metals, 817 F.2d at 629; Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 180, 107 L.Ed.2d 135 (1989); Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 538 (1st Cir. 1988); and (5) the efficacy of lesser sanctions. See Ocelot Oil, 847 F.2d at 1465; Meade, 841 F.2d at 1520; Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir. 1988). “Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.” Meade, 841 F.2d at 1521 n.7 (citations omitted). *6 These factors do not constitute a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction. The court should ordinarily evaluate these factors on the record. See Bud Brooks Trucking v. Bill Hodges Trucking, 909 F.2d 1437, 1439 (10th Cir. 1990). Ehrenhaus, 965 F.2d at 920–921. See also Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996) (describing the Ehrenhaus factors and emphasizing that the criteria for sanction “cannot be reduced to a formula or standardized test,” that trial courts are accorded broad discretion in imposing sanctions, and that judicial decisions relating to sanctions “cannot be tied to a fixed rule or formula”). Using the criteria laid out in Ehrenhaus, I find that the extreme sanction of dismissal with prejudice is appropriate in these circumstances of a party that does not seem to be willing to expend the resources necessary to comply with its discovery obligations under the Federal Rules. First, I find that Swan Global was on notice that failure to abide by court orders and its obligations under the Rules could result in the sanction of dismissal. Indeed, as described in my prior sanction order, I was sorely tempted to dismiss the case at that point but decided that the lesser sanction of an attorney's fee award would serve the purpose of compensating for the prejudice done and discouraging inappropriate future conduct. Dkt. #44. The prior sanction did not discourage the misconduct described above. Swan Global was on notice that it needed to clean up its litigation act and it did not do so. Second, in terms of addressing prejudice, I do not find that a lesser sanction of an attorney fee award or an extension of discovery deadlines and allowing Mr. Young to take depositions regarding the thousands of pages of late produced documents would cure the prejudice here. There has been specific and severe prejudice to Defendant and prejudice to the judicial process. From the beginning, this lawsuit has reflected an imbalance of resources. Based on information published on its publicly available website, Swan Global is a SEC registered investment advisor providing asset management services. As of 2016, it had approximately $3.6 billion in assets under management. Mr. Young is an individual. In its Third Amended Complaint (no longer the operative complaint), filed December 30, 2018, Swan Global used 40 pages and 258 paragraphs to level twenty-two causes of action against Mr. Young, including breach of contract, breach of duty of good faith and fair dealing, unjust enrichment, misappropriation of trade secrets, breach of fiduciary duty, conspiracy, interference with contractual relations, fraud, fraud in the inducement, conspiracy to commit fraud, civil theft, conversion, and theft of confidential information. See Dkt. #20. And in the operative complaint, (the Fourth Amended Complaint, Dkt. #49), Swan Global continues to allege breach of contract, misappropriation of trade secrets, breach of fiduciary duty, interference with contractual relations, fraud, and civil conspiracy. These are serious claims purportedly supported by detailed facts. The mere allegations themselves, as serious as they are and contained in a public filing, are a cloud on one's reputation. Charges of fraud, breach of fiduciary duty, and theft of trade secrets can be especially damaging to someone like Mr. Young, who makes his living in the financial advisory arena. Beyond the ongoing reputational harm of unresolved charges is the anxiety of having a serious lawsuit hanging over oneself like Damocles’ sword, with the associated financial burden of having to defend the case and potentially having to pay a large money judgment. Under such circumstances, being able to defend oneself in a timely manner and seek to clear one's name is an important part of the judicial process. This Court cannot discount the frequently cited adage that “justice delayed is justice denied.” See Sanchez v. Hartley, No. 13–cv–01945–WJM–CBS, 2016 WL 7176718, at *7 (D. Colo. Apr. 26, 2016). Cf. Zukowski v. Howard, Needles, Tammen, and Bergendoff, 115 F.R.D. 53, 58 (D. Colo. 1987) (rejecting any notion “that time and justice are unrelated”). *7 At the same time, if Swan Global were really interested in holding Mr. Young responsible and pursuing these charges, it promptly would have sought to advance the litigation by living up to its discovery obligations and proceeding with prosecuting the case. Instead, it did close-to-nothing in terms of its own discovery and was egregiously deficient in responding to Mr. Young's discovery requests. And Swan Global's “document dump” of thousands of unreviewed pages of material, without any categorization or indication as to how the documents relate to Mr. Young's requests for production or were relevant to the case, was inexcusable. See Atlas Resources, Inc. v. Liberty Mutual Ins. Co., 291 F.R.D. 638, 642 (D. N. Mex. 2013) (describing ““document-dumping” where the defendant's disclosure of material was presented in such a disorganized fashion as to violate the Rules of Professional Conduct and cause undue delay in the litigation of this case”); Stooksbury v. Ross, 528 Fed.Appx. 547, (6th Cir. 2013) (affirming entry of default judgment as sanction in part for party's 40,000-page discovery submission which “was merely a document dump of mostly unresponsive information”). It is no solution to extend discovery further and require Swan Global now to categorize its document dump with more particularity, or to give Mr. Young the opportunity to take depositions. Even forcing Swan Global to pay Mr. Young's attorney fees to date does not make up for the delay that Swan Global has caused to the administration of justice via the flouting of its discovery obligations. Third, I find there has been damage to the judicial process. Under the Federal Rules of Civil Procedure, it is the court's prerogative and duty to manage its caseload and to set and enforce discovery and other significant deadlines. A party does not have the option of complying with those deadlines and the Rules of Civil Procedure or ignoring them and then demanding that the court and the opposing party restructure the discovery schedule to accommodate the violation. In the interim, this Court has been forced to expend time and resources (including writing detailed opinions on Mr. Young's Motion to Dismiss) on a case that Swan Global seems to have little interest in pursuing. In this regard, Swan Global's actions have taken “time away from individuals in other cases who have meritorious claims and serious injuries that deserve to be redressed promptly.” Valentine v. PNC Fin. Servs. Grp., Inc., No. 18-cv-01934-CMA-SKC, 2019 WL 5957297, at *3 (D. Colo. Nov. 13, 2019). Fourth, in terms of culpability for the misconduct here, I do find that Swan Global has been intentional, or at the very least reckless, in not living up to its obligations as a plaintiff in a federal lawsuit. Asked about Swan Global's apparent disinterest in pursuing discovery and fulfilling its discovery obligations in this complex commercial fraud and trade secrets dispute, Plaintiff's counsel conceded that his client may be “litigation weary” from the arbitration that is part of the underlying factual history of this case and other lawsuits Swan Global has been involved with. But regardless of the other lawsuits, having sued an individual in federal court for fraud and other serious alleged misconduct, the company is not entitled to just “check out,” doing less than the minimum necessary to prosecute this case. I have evaluated the factors outlined in the Ehrenhaus decision. Especially in light of the history of this case and the imbalance of resources between the parties, I do find that Swan Global's failure to live up to its discovery obligations by failing to categorize the tens of thousands of pages of documents produced via a “document dumps” during and after discovery, failing to identify or produce documents consistent with its Rule 26 disclosure obligations, and failing to identify which documents might be responsive to Mr. Young's document requests, merit the severe sanction of dismissal with prejudice, especially in light of the history of prior sanction order issued in this case. As to Swan Global's arguments against the sanction of dismissal, I reject them. I find that Mr. Young meaningfully conferred prior to filing the motion for sanctions. Meaningful conferral does not require agreement. I also find that a motion for seeking terminal sanctions is materially different from a discovery dispute that would normally be addressed through my practice standards. Having meaningfully conferred, Mr. Young was not wrong to file his motion for sanctions without first seeking an informal discovery conference with the Court. As to the notion that Mr. Young should be aware of the relevance of the Brookstone documents to this case and their contents, Mr. Young was not a party to that arbitration proceeding and he would have no basis to understand which of the tens of thousands of pages of material might be relevant to Swan Global's claims or potentially to his defenses. In addition, with respect to the Kaizen Advisors documents, Mr. Young was president of that entity, but defense counsel indicates that he lost that job and the documents were not under his possession, custody, or control in any meaningful way. He also had no way to guess which of the many documents might be responsive to his discovery requests or might fit into the categories outlined by Swan Global's Rule 26 disclosures. *8 As to Swan Global's argument that it has now, in connection with the Final Pretrial Order, identified the 33 exhibits that it intends to use at trial, and therefore its “overproduction” did not unduly burden or prejudice Mr. Young, I reject it. Contrary to Swan Global's protestations, this is a damning admission that Plaintiff did little to nothing to fulfil its discovery obligations in this case. To dump 50,000 pages of mostly irrelevant material on the other side, where, after reflection, only 33 documents will be used to support the numerous claims in the case, is proof that the Plaintiff did almost nothing to comply with its Rule 26 and other discovery obligations during the time when it mattered. Swan Global provided no documents until nearly the end of discovery, and then provided a massive amount which it now says are irrelevant. How is opposing counsel supposed to analyze that material in a meaningful way, other than to spend time (and the client's money), reviewing the material? This conduct is an abuse of the litigation process and inconsistent with a party's discovery obligations. I fully recognize that a recommendation of terminal sanctions is quite serious and results in the litigation being concluded without a decision on the merits, contrary to “the judicial system's strong predisposition to resolve cases on their merits.” Meade, 841 F.2d at 1521 n.7. I also recognize that under slightly different circumstances, the discovery deficiencies identified here potentially could be cured via an extension of deadlines, the permitting of depositions, and the imposition of a monetary penalty. However, under the totality of the circumstances in this case, and my distinct perception that Swan Global is less interested in actually pursuing this litigation to its conclusion than using the process of litigation and its associated cost and anxiety against Mr. Young, I believe that the sanction of dismissal with prejudice is the just sanction. I decline to allow the judicial process to be used as a tool for inflicting financial and emotional distress on an adversary, rather than as means to a judicial outcome. I therefore RECOMMENDED that this case be DISMISSED WITH PREJUDICE as a sanction of Plaintiff's discovery abuse. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).