Wendy Rago v. Select Comfort Retail Corporation, et al Case No. ED CV 19-2291-FMO (SPx) United States District Court, C.D. California Filed December 09, 2020 Counsel Kimberly Carter, Deputy Clerk, Attorneys Present for Plaintiff: None Present None, Court Reporter / Recorder, None, Tape No., Attorneys Present for Defendant: None Present Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part and Denying in Part Defendant's Motion for Terminating, Evidentiary, and Monetary Sanctions [84] I. INTRODUCTION *1 On October 27, 2020, defendant Select Comfort Retail Corporation filed a motion for terminating, evidentiary, and monetary sanctions against plaintiff Wendy Rago and her counsel for engaging in alleged discovery misconduct. The motion is supported and opposed in a joint stipulation (“JS”). Docket no. 84. Specifically, defendant moves the court for an order either: (1) issuing terminating sanctions and dismissing this action with prejudice; or alternatively (2) prohibiting plaintiff from: offering a damages expert; asserting any claim for or entitlement to lost wages as is currently pled in plaintiff's Second Amended Complaint; offering any expert witness who has relied on any document not previously produced to defendant; and relying on any document, for any purpose, not previously produced to defendant. Defendant also seeks monetary sanctions against plaintiff. Defendant's portion of the JS is supported by the declaration of defense counsel Hayley S. Grunvald (“Grunvald Decl. 1”) and exhibits. Plaintiff's portion of the JS is supported by the declaration of plaintiff's counsel Arnold P. Peter (“Peter Decl. 1”). Defendant Prudential Insurance Company of America has joined in the motion. The parties came before the court via videoconference for a hearing on November 17, 2020. During the hearing, defendant indicated it intended to file a second motion for sanctions regarding another instance of plaintiff's alleged discovery misconduct. To avoid a separate yet related motion, the court instructed the parties to submit supplemental briefing covering the basis for defendant's second motion for sanctions, which would be incorporated into the existing motion. See docket no. 92. On November 20, 2020, defendant filed supplemental briefing (“D. Supp. Mem.”), which is supported by the declaration of Hayley S. Grunvald (“Grunvald Decl. 2”). Docket no. 93. On that same day, plaintiff filed a Supplemental Memorandum (“P. Supp. Mem.”), which is supported by the declaration of Arnold P. Peter (“Peter Decl. 2”). Docket no. 94. On November 24, 2020, the court instructed defendant to file a declaration or other evidence in support of its motion for monetary sanctions. Defendant filed a Supplemental Declaration of Hayley S. Grunvald (“Grunvald Decl. 3”) specifying the total amount of attorney's fees that it seeks, and providing a breakdown of that amount, on November 25, 2020. Plaintiff filed a second supplemental declaration of Arnold P. Peter (“Peter Decl. 3”) on November 27, 2020, and a third such supplemental declaration (“Peter Decl. 4”) on December 7, 2020. After carefully considering the parties' papers and arguments, the court grants in part and denies in part defendant's motion for terminating, evidentiary, and monetary sanctions as described below. In particular, the court does not now recommend terminating or evidentiary sanctions, but does order monetary sanctions. II. BACKGROUND On May 4, 2020, plaintiff Wendy Rago filed a Second Amended Complaint (“SAC”) against defendant Select Comfort Retail Corporation alleging claims for: (1) discrimination on the basis of physical condition in violation of Government Code § 12926(d); (2) failure to engage in the interactive process in violation of Government Code § 12940(n); (3) wrongful termination in violation of public policy; and (4) intentional infliction of emotional distress. SAC ¶¶ 18-47. *2 On May 21, 2018, defendant issued written discovery to plaintiff, which sought documents relevant to the causes of action alleged against it including, but not limited to, all documents exchanged between plaintiff and any employee of defendant and all documents supporting her claims for damages inclusive of lost wages. JS at 6, Grunvald Decl. 1 ¶ 3, Ex. A. On July 31, 2018, plaintiff issued written responses to defendant's discovery and attached only 23 pages of responsive documents, attesting that no other responsive documents existed. Id. ¶ 4. During plaintiff's deposition on February 5, 2019, plaintiff testified she had text messages between herself and other employees of defendant that had not been produced. Id. ¶ 5, Ex. C. In light of this testimony, defendant continued plaintiff's deposition to October 4, 2019, to allow a private investigation company, Setec Investigations (“Setec”), to make a mirror image copy of the text messages on plaintiff's cell phone and to produce those results directly to defendant. Id. ¶¶ 6, 9; Ex. E. On May 24, 2010, Setec produced 218 pages of responsive text messages to defendant, which were not previously produced by plaintiff. Id. ¶ 8. Pursuant to the court's scheduling orders, on September 18, 2020, the parties exchanged expert reports with plaintiff identifying four experts she intended to call at trial. Id. ¶ 11. One of the experts identified by plaintiff – a damages expert named William Buckley – stated in his expert report that he relied on a series of plaintiff's tax returns which plaintiff had not produced and represented in her written discovery responses did not exist. Id. ¶¶ 11, 12, Ex. G. On October 5, 2020, defense counsel sent correspondence to plaintiff's counsel informing him of this revelation, and seeking confirmation as to whether plaintiff's expert had relied on documents that plaintiff previously advised did not exist. Id. ¶ 12, Ex. G. In the same correspondence, defendant requested a telephonic meet and confer with plaintiff, so that it could file a motion for sanctions. Id. On October 7, 2020, plaintiff responded that he was available to meet and confer on Friday or Monday afternoon, and that his associate would forward the tax returns to defendant as soon as possible. Id. The following day, plaintiff's counsel also informed defendant that he would make plaintiff available for a supplemental deposition and will not object if defendant's damages expert requires additional time to prepare a rebuttal report, but defendant did not respond to this offer. Peter Decl. 1 ¶ 3, Ex. A. The parties met and conferred telephonically on October 12, 2020 to address the issues raised in the instant motion. Grunvald Decl. 1 ¶ 14. On that same day, plaintiff's counsel produced 152 additional tax-related documents, which defendant contends were an incomplete production. Id. ¶ 13, Ex. H. Following their October 12 meet and confer efforts, defendant also sent correspondence to plaintiff's counsel seeking confirmation that plaintiff had produced all responsive documents to date, and specifically, all those documents relied upon by her experts. Id. ¶ 15, Ex. I. On October 20, 2020, plaintiff's counsel confirmed with defendant that plaintiff had produced all responsive documents. Id. On November 4, 2020, plaintiff's counsel emailed defendant a copy of her opposition to defendants' Joint Motion for Summary Judgment (“Joint MSJ”), which included as an exhibit a document not previously produced as well as a declaration from plaintiff including facts that were not previously disclosed to defendant. Grunvald Decl. 2 ¶ 2, Ex. B. The document is an excerpt of a letter plaintiff purportedly sent to Dr. Olivia Lee, plaintiff's treating opthamologist, dated April 13, 2017, requesting assistance in filling out forms certifying plaintiff's disability leave of absence from defendant. Id. ¶ 8, Ex. G. Plaintiff's declaration included a paragraph stating she engaged in a therapy session with a therapist in August 2020 to address emotional distress stemming from her separation of employment from defendant. Id. ¶ 8, Ex. H ¶ 21. Defendant requested this undisclosed evidence via its written discovery (Requests for Production (“RFP”) Nos. 23, 26, 55-56), and plaintiff indicated during the October 2019 deposition such evidence did not exist. Id. ¶¶ 9, 11, Exs. I, K. Defense counsel sent plaintiff's counsel an email seeking clarification and an explanation as to why this evidence had not previously been disclosed. Id. ¶ 3, Ex. C. The parties held a telephonic meet and confer on November 10, 2020, wherein plaintiff's counsel admitted that he never previously disclosed the evidence in question and suggested it was an inadvertent error. Id. ¶ 6. *3 During their meet and confer call, plaintiff's counsel promised to promptly produce a full copy of the April 13, 2017 letter and the name of the therapist plaintiff had purportedly seen in August 2020. Id. On November 13, 2020, defendant sent plaintiff an email seeking the status of the evidence at which point plaintiff produced it. Id. ¶¶ 7, 12, Exs. F. Plaintiff sent defendant an email attaching the full April 13, 2017 letter, and clarified that plaintiff set up one session with Dr. Arthur Sarkisian, but did not actually start the therapy. Id. ¶ 14, Exs. L, M. Plaintiff's counsel also indicated that he would submit a supplemental declaration making this clear, but still has not done so. Id. ¶ 14. During the November 17, 2020 hearing, plaintiff's counsel first suggested that plaintiff's production of her tax returns was incomplete, because she is an unsophisticated layperson and had handled her taxes alone and without the assistance of an accountant. But defendant states it closely reviewed those documents and found that many of plaintiff's tax returns have been prepared by at least two different tax preparers and not by plaintiff alone. Id. ¶ 17. And indeed, plaintiff testified at deposition that her tax returns were prepared by a bookkeeper or accountant. Id. ¶ 16, Ex. N. After the hearing, plaintiff undertook remediation efforts regarding the tax returns and the other evidence that was untimely produced to defendant, namely: (1) providing defendants with the contact information for plaintiff's tax preparation service, and requesting the records and files maintained by the service; (2) promising to produce the documents obtained from the service or advised defendants none exists by November 26; (3) promising not to object to any subpoena served on the tax preparation service; and (4) promising to provide defendants with the IRS transcripts of plaintiff's tax returns by November 26. P. Supp. Mem. at 1; Peter Decl. 2 ¶ 3, Ex. A. Plaintiff subsequently obtained from a tax preparer and produced on December 7, 2020 what appears to be plaintiff's tax return for the year 2018.[1] Peter Decl. 4 ¶ 5, Ex. A. Plaintiff additionally concedes that the April 13, 2017 letter to Dr. Lee and plaintiff's efforts to seek therapy should have been disclosed in a timely manner. See P. Supp. Mem. at 2-3. In an effort to further remedy the prejudice to defendant, plaintiff has made various additional proposals, which include the following: (1) she will appear for another deposition; (2) she will not oppose discovery on the items at issue in this motion; (3) she will pay for the court reporter fees for her own deposition, along with the depositions of Dr. Lee and the tax preparer; (4) she will not object to submission of a report from defendant's damages expert despite the discovery cutoff; (5) she will withdraw the April 13, 2017 letter to Dr. Lee from her opposition to the MSJ; and (6) she will not rely on the August 2020 therapy efforts for any purpose. Id. at 2-4. Defendant has not agreed to plaintiff's proposals. See Peter Decl. 2, Ex. A at 2-4. Plaintiff's counsel's December 7, 2020 declaration states plaintiff has in fact withdrawn the April 13 letter from her MSJ opposition, and also asked the court to deem three facts related to plaintiff's August 2020 communication with the therapist undisputed. Peter Decl. 4 ¶ 5. III. DISCUSSION In the instant motion, defendant argues the court should issue terminating, evidentiary, and monetary sanctions under Rules 16(f) and 37(b) of the Federal Rules of Civil Procedure. See JS at 14-18. Specifically, defendant asks the court for an order either (1) issuing terminating sanctions and dismissing plaintiff's SAC with prejudice; or alternatively, (2) prohibiting plaintiff from: (a) offering a damages expert; (b) asserting any claim for or entitlement to lost wages as is currently pled in plaintiff's SAC; (c) offering any expert witness who has relied on any document not previously produced to defendant; and (d) relying on any document, for any purpose, not previously produced to defendant. JS at 2-3, 14-18. *4 In defendant's supplemental motion for sanctions, defendant again requests that the court either: (1) issue terminating sanctions dismissing this case in its entirety; or alternatively, (2) strike in full plaintiff's opposition to defendant's Joint MSJ; and (3) deny plaintiff the ability to use, for any purpose, any facts or documents disclosed after the discovery cutoff date of September 4, 2020. D. Supp. Mem. at 2. Defendant further requests that the court impose a monetary sanction on plaintiff in the amount of $14,812.50 for the attorney's fees incurred in filing the instant motions for sanctions. See Grunvald Decl. 3 ¶ 6; JS at 18; D. Supp. Mem. at 10. A. Legal Standard Federal Rule of Civil Procedure 37(b)(2) states in part: “If a party or a party's officer, director, or managing agent — or a witness designated under Rule 30(b)(6) or 31(a)(4) — 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. They may include the following: ... striking pleadings in whole or in part; ... dismissing the action or proceeding in whole or in part; [or] rendering a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(iii)-(vi). Federal Rule of Civil Procedure 16(f) also provides in part: “The court may issue any just order, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney ... fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). The standard for dismissal under the above-referenced rules is “basically the same.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). The court must weigh five factors in deciding whether to impose a terminating sanction: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. (internal quotation marks and citation omitted). This multi-factor test is “not mechanical,” and the court “need not make explicit findings regarding each of these factors.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007); Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Rather, the test “provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096. Although defendant's moving papers do not rely on it, Rule 37(c)(1) of the Federal Rules of Civil Procedure also provides, “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The court may also “order payment of the reasonable expenses, including attorney's fees, caused by the failure ....” Id. This sanction is a “self-executing, automatic sanction to provide a strong inducement for disclosure of material ....” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001). The party facing sanctions has the burden of establishing its failure was harmless. Id. at 1107. Rule 37(c)(1)'s exclusion sanctions are not mandatory. Id. at 1106; see also Bonzani v. Shinsenki, 2014 WL 66529, at *3 (E.D. Cal. Jan. 8, 2014) (finding Rule 37(c)(1) exclusion sanctions are not mandatory, even when the insufficient disclosures are not substantially justified or harmless). A court's decision to exclude evidence is discretionary, and the court is given “particularly wide latitude” to issue sanctions under Rule 37(c)(1). Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014). In exercising that discretion, the court is also guided by the requirement that where imposing a Rule 37(c)(1) sanctions amounts to dismissal of a claim, the court is required to consider whether noncompliance involved willfulness, fault, or bad faith, and also the availability of lesser sanctions. See R&R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1247 (9th Cir. 2012) (reversing district court grant of evidentiary sanctions excluding evidence of damages and remanding for consideration of willfulness, fault, or bad faith, and availability of lesser sanctions). B. Terminating and Evidentiary Sanctions Are Not Warranted *5 Defendant argues that terminating and evidentiary sanctions are warranted here, because plaintiff has engaged in a pattern and practice of discovery abuse over an almost two-year period by withholding critically responsive documents on several occasions and misleading defendant about their existence. See JS at 16; D. Supp. Mem. at 7-8. Defendant points to the text messages plaintiff failed to produce until their existence was revealed at her deposition as a part of the alleged pattern and practice of discovery abuse, but does not claim any ongoing prejudice from their late production. The same is not true of plaintiff's untimely production of 152 tax-related documents, which were produced two years after defendant initially served its discovery requests seeking such documents, which defendant asserts has prejudiced its efforts to determine the potential damages at issue. Defendant argues the pattern and practice continued when plaintiff failed to timely produce two additional pieces of crucial evidence, plaintiff's April 13, 2017 letter to Dr. Lee requesting assistance in certifying her disability leave of absence, and information regarding plaintiff's attempt to attend a therapy session with Dr. Sarkisian in August 2020. Defendant contends it has suffered prejudice as a result of plaintiff's untimely production of these documents and information, because it has been unable to timely question plaintiff about them at her deposition, meaningfully evaluate settlement of the case, retain a damages expert and a rebuttal expert, and incorporate those documents within its motion for summary judgment. JS at 13-14; D. Supp. Mem. at 2, 8. Defendant also asserts that plaintiff has destroyed defendant's ability to rely on the authenticity of plaintiff's discovery production. JS at 14. Plaintiff argues that terminating and evidentiary sanctions are not warranted, because her failure to produce the 152 tax-related documents in a timely manner was not willful. Id. at 24. Plaintiff explains that between October and November 2019, she provided her tax returns and related documents to another damages expert, and she believed that the expert would forward these documents to her counsel, but he failed to do so. Id., Peter Decl. 1 ¶ 2. Plaintiff contends that because there was no prior inquiry by defendant, plaintiff's counsel was not aware that plaintiff's tax returns had not been produced. Id. In regards to the April 13, 2017 letter to Dr. Lee and information regarding her attempt to attend therapy, plaintiff concedes that this evidence should have been timely produced. P. Supp. Mem. at 2-3. But plaintiff contends that sanctions are not warranted, because defendant has failed to take advantage of plaintiff's repeated remediation proposals, which would significantly eliminate any prejudice to defendant. JS at 21-22, Peter Decl. 1 ¶ 3; P. Supp. Mem. at 3-4, Peter Decl. 2 ¶ 2. Plaintiff and her counsel appear to blame their failure to timely produce plaintiff's tax returns and related documents on a lack of inquiry from defendant. This is nonsense. It is plaintiff's obligation to fully investigate her case and determine whether all responsive documents have been produced, and thus defendant's failure to inquire about those documents is not a justifiable excuse. See Fed. R. Civ. P. 26(a)(1)(E) (“A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case ....”). When pressed at the November 17 hearing as to how it was that plaintiff somehow relied on a former expert to forward the tax documents to counsel for production, plaintiff's counsel lamely replied that he was not involved in the initial production. He also acknowledged he had not inquired of plaintiff's accountant to see if the accountant has tax documents, but said he would be happy to do so. In short, counsel utterly failed to make even the most basic inquiry to comply with plaintiff's discovery obligations. And indeed, both parties appear to agree that plaintiff violated her ongoing duty to supplement her discovery responses under Rule 26(e) of the Federal Rule of Civil Procedure when she failed to timely produce the April 13, 2017 letter and information regarding her attempt to seek therapy in August 2020. See P. Supp. Mem. at 2-3; D. Supp. Mem. at 7-8. *6 Defendant has therefore demonstrated a pattern and practice of discovery failures by plaintiff, if not discovery abuse, and plaintiff has offered no real excuse. Plaintiff has been, at best, grossly negligent. Further, defendant has experienced some prejudice due to plaintiff's untimely discovery disclosures. The question is what sanction is warranted. While plaintiff has no good excuse for her untimely production of documents, it is similarly unclear why defendant has failed to avail itself of any of plaintiff's remediation proposals when they would significantly mitigate the prejudice defendant complains of in the instant motions. For example, defendant was aware of the tax returns considered by plaintiff's damages expert on October 5, 2020 (see Grunvald Decl. ¶ 12, Ex. G), but defendant has not undertaken any expert discovery or a supplemental deposition of plaintiff, nor has it provided a declaration from a damages expert indicating that he or she is unable to prepare an expert rebuttal report based on those documents. In addition, plaintiff has provided defendant with her 2012-2019 tax returns, Internal Revenue Service tax transcripts from 2016-2019, and contact details for her tax preparer, but defendant has not attempted to depose plaintiff's tax preparer or subpoena additional tax records. Peter Decl. 3 ¶¶ 3-4; Peter Decl. 4 ¶ 5. Further, plaintiff has withdrawn the April 13, 2017 letter to Dr. Lee from her opposition to defendant's Joint MSJ, and has stated she will not rely on the August 2020 therapy efforts for any purpose, and thus it appears plaintiff has eliminated any prejudice to defendant stemming from her failure to timely produce this evidence. See P. Supp. Mem. at 4; Peter Decl. 2 ¶ 2, Ex. A; Peter Decl. 4 ¶ 5. Based on plaintiff's various remediation proposals, it appears the instant dispute can more equitably be resolved by conducting a supplemental deposition of plaintiff regarding the additional tax-related documents, deposing plaintiff's tax preparer and Dr. Lee at plaintiff's expense, and stipulating to provide defendant with additional time to prepare a damages expert rebuttal report. See Bonzani v. Shinsenki, 2014 WL 66529, at *5 (denying defendants' motion to exclude all evidence of lost benefits above $20,000 despite plaintiff's untimely production of relevant documents on the ground that less drastic sanctions were available). As such, the court finds defendant's motions for terminating and evidentiary sanctions are premature and unwarranted at this time, and will consequently not here recommend such sanctions to the District Judge. The court notes, however, that should plaintiff continue to withhold documents, she could face the severe sanctions defendant seeks. The court referenced Rule 37(c)(1) above but noted defendant did not seek sanctions under that rule here. The court suspects this was for the good reason that the documents and information in question have, it appears, now been disclosed well in advance of trial, and plaintiff is no longer relying on the April 13 letter or attempt to obtain therapy in opposing summary judgment. But if additional undisclosed documents or information should come to light, plaintiff may well face evidentiary or terminating sanctions if she continues to have no legitimate excuse for her failure search for and produce them. C. Plaintiff Is Ordered to Pay Monetary Sanctions *7 Defendant also requests that this court impose monetary sanctions on plaintiff in the amount of $14,812.50 for attorney's fees and related costs incurred in filing the instant two motions for sanctions. See Grunvald Decl. 3 ¶ 6; JS at 18; D. Supp. Mem. at 10. Defense counsel states she has an hourly billing rate of $395.00. Grunvald Decl. 3 ¶ 4. The categories of fees incurred with the hours and total amounts billed are detailed as follows: (1) $790 for the 2 hours spent engaging in written communications with plaintiff regarding the basis for defendant's October 2020 motion for sanctions and participation in telephonic meet and confer efforts; (2) $790 for the 2 hours spent preparing for and participating in the November 17, 2020 hearing regarding defendant's October 2020 motion for sanctions; (3) $790 for the 2 hours spent engaging in written communications with plaintiff regarding the basis for defendant's November 2020 motion for sanctions and participating in telephonic meet and confer efforts; (4) $5,925 for the 15 hours spent researching and preparing for the October 2020 motion for sanctions in addition to correspondence exchanged with plaintiff's counsel to present and then finalize the motion; (5) $3,950 for the 10 hours spent researching and preparing for the second motion for sanctions and supporting documents; (6) $1,975 for the 5 hours spent preparing defendant's individual supplemental brief in light of the November 17, 2020 hearing; and (7) $592.50 for the 1.5 hours spent in preparing the supplemental declaration in support of defendant's request for attorney's fees and costs. See id. ¶¶ 6-10. Under Fed. R. Civ. P. 37(b)(2)(C), if a party fails to obey an order or permit discovery, “the court must order the disobedient party, the attorney advising the 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.” Additionally, under Fed. R. Civ. P. 37(c)(1), if a party fails to provide information as required by Rule 26(a) or (e), the court, on motion and after giving an opportunity to be heard, may order the non-complying party to pay the reasonable expenses, including attorney's fees, caused by such failure. Here, defendant argues it is entitled to the attorney's fees and costs incurred in filing the instant motions under Rule 37(b)(2)(C) on the ground that plaintiff and her counsel have failed to comply with their discovery obligations and engaged in a pattern and practice of discovery abuse which has severely prejudiced defendant's ability to defend itself in this action. See JS at 18; D. Supp. Mem. at 10. Plaintiff argues that her immediate efforts to remedy the failure to produce the tax returns and other documents and the lack of any showing of actual prejudice makes sanctions inappropriate. See JS at 25. As discussed above, plaintiff failed to engage in due diligence to ensure that all responsive documents in her possession were timely produced to defendant, and also failed to comply with her continuing obligation to supplement her disclosures and responses. Although plaintiff contends that her failure to timely produce her tax returns and related documents was not willful, she had about a year to follow up with the previous expert to confirm whether he forwarded those documents to her counsel, and her failure to do so was negligent, as was her counsel's failure to fully inquire of her and ensure all responsive documents in her possession, custody, and control were produced. See JS at 24, Peter Decl. 1 ¶ 2. Likewise, plaintiff only disclosed her attempt to attend therapy in August 2020 as part of her MSJ opposition filed months later. See Grunvald Decl. 2 ¶ 13. Further, plaintiff waited more than two years to disclose her April 13, 2017 letter to Dr. Lee to defendant, and again, only as part of her MSJ opposition. See id. ¶¶ 8-9, Exs. H-I. Given plaintiff's repeated failures to timely disclose responsive documents and supplement her discovery responses, the court finds that monetary sanctions are well warranted to cover defendant's reasonable attorney's fees incurred in filing the instant motions. See Fed. R. Civ. P. 37(c)(1)(A). These sanctions avoid the harsh consequences of dismissing plaintiff's action or excluding plaintiff's evidence, while compensating defendant for the time and effort spent in attempting to obtain the relevant documents from plaintiff. Here, as noted, defendant seeks a total of $14,812.50 for attorney's fees incurred in preparing for and filing the instant motions to compel. Grunvald Decl. 3 ¶ 6. The court finds defense counsel's hourly rate of $395 is reasonable and consistent with the prevailing rate in Southern California, but the number of hours requested are somewhat excessive. Specifically, the court takes issue with the number of hours defense counsel spent preparing the second motion for sanctions. Defense counsel indicates she spent 15 hours doing research and preparing the October 2020 motion for sanctions in addition to exchanging correspondence with plaintiff to present and then finalize the motion. Id. Defense counsel also indicates she spent an additional 10 hours doing research and preparing for defendant's second motion for sanctions. Id. ¶¶ 6, 8. Counsel states she spent another 5 hours preparing the individual supplemental brief in light of the November 17, 2020 court order. Id. ¶¶ 6, 9. Given that defense counsel already spent 15 hours doing research and preparing the first October 2020 motion for sanctions, and the second motion for sanctions involved largely the same legal research and analysis as the first motion, it was unreasonable for defendant to spend an additional 15 hours preparing the second motion for sanctions, including the time spent converting it to a supplemental brief. As such, the court will subtract 5 hours from that time spent. The court finds that the remaining hours defense counsel spent engaging in meet and confer efforts with plaintiff, preparing for the court hearing, and preparing for and drafting the first motion to compel and supplemental brief are reasonable. *8 Accordingly, the court will deduct the $1,975 (5 hours by defense counsel for the second motion for sanctions) from defendant's total recovery, and will order plaintiff and her counsel to pay a total of $12,837.50 in attorney's fees (32.5 hours at an hourly rate of $395). IV. CONCLUSION IT IS THEREFORE ORDERED that defendant's motion for terminating, evidentiary, and monetary sanctions (docket no. 84) is granted in part and denied in part as set forth above. Footnotes [1] Plaintiff should not have filed the tax return without first redacting personal identifying information from the return, such as social security numbers. See Fed. R. Civ. P. 5.2(a); L.R. 5.2-1. The court now orders that Exhibit A to the Third Supplemental Declaration of Arnold P. Peter (docket no. 107-1) be sealed.