KOLOGIK CAPITAL, LLC, Plaintiff and Counterclaim-Defendant, v. IN FORCE TECHNOLOGY, LLC, BRANDON-COPSYNC LLC, AND BRANDON D. FLANAGAN, Defendants and Counterclaim-Plaintiffs CIVIL ACTION NO. 18-11168-GAO United States District Court, D. Massachusetts Filed April 20, 2021 Counsel Peter Francis Carr, II, Carson M. Shea, Nicole Joyce Cocozza, Eckert Seamans Cherin & Mellott, LLC, Wyley S. Proctor, Anne E. Shannon, Brian M. Seeve, James J. Thomson, McCarter & English, LLP, Boston, MA, Alexander T. Hornat, McCarter & English, LLP, Hartford, CT, for Plaintiff and Defendant-in-Counterclaim. David A. Chavous, Giordano & Chavous LLC, Joel R. Leeman, Lisa M. Tittemore, Lena M. Cavallo, Sunstein Kann Murphy & Timbers LLP, Michael J. Lambert, Sheehan Phinney Bass Green, PA, Boston, MA, Peter A. Nieves, Pro Hac Vice, Bryanna Devonshire, Robert R. Lucic, Sheehan, Phinney, Bass & Green Professional Association, Manchester, NH, Anissa Davidson, Chavous Intellectual Property Law, North Andover, MA, for Defendants and Plaintiffs-in-Counterclaim. Bowler, Marianne B., United States Magistrate Judge REPORT AND RECOMMENDATION RE: CERTIFICATION OF FACTS REGARDING PLAINTIFF'S MOTION FOR CONTEMPT OF COURT ORDER AND FOR SANCTIONS (DOCKET ENTRY # 113) *1 Plaintiff Kologik Capital, LLC (“plaintiff”) is seeking “an order finding that” defendants In Force Technology, LLC (“IFT”), Brandon-COPsync LLC (“BCS”), and Brandon D. Flanagan (“Flanagan”) (collectively “defendants”) “are in contempt of [this] Court's March 11, 2020 Order (‘Order’) and for appropriate sanctions.” (Docket Entry # 113). After hearing oral argument on April 12, 2021, this court took the motion (Docket Entry # 113) under advisement. BACKGROUND[1] This patent and trademark infringement, unfair competition, and false advertising case involves a dispute over technology that facilitates communication among police units and individuals, such as school officials, who are subject to an emergency threat. (Docket Entry # 38, ¶¶ 16-17). In a 22-count amended complaint, plaintiff asserts that COPsync, Inc. (“COPsync”), plaintiff's predecessor in interest, created, sold, and licensed software under the COPSYNC and COPSYNC911 trademarks (“COPsync trademarks”). (Docket Entry # 38, ¶¶ 10, 12, 16). COPsync911 software and COPSYNC software (collectively “COPsync911 software”) purportedly provide law enforcement “in-car real-time information sharing and data communication network” to better enable law enforcement to respond to emergencies, such as those encountered at schools. (Docket Entry # 38, ¶¶ 17-18). In June 2010, COPsync entered into a professional services agreement with Brandon Associates, LLC (“Brandon Associates”), in which COPsync purportedly granted Brandon Associates “a non-exclusive license to distribute COPsync Inc.’s software and related goods and services.” (Docket Entry # 38, ¶ 23) (Docket Entry # 38-2). Brandon Associates subsequently assigned its rights and responsibilities under the agreement to BCS. (Docket Entry # 38, ¶ 27) (Docket Entry # 57, ¶ 27). On June 2, 2017, an attorney representing COPsync notified BCS President and Chief Executive Officer Flanagan that BCS was in default of the professional services agreement. (Docket Entry ## 38-2, 38-4, 38-5, 38-7 to 38-9). After amendments to the professional services agreement, the agreement “was formally terminated” in November 2017. (Docket Entry # 116-1, ¶ 3). On June 30, 2017, BCS was dissolved involuntarily “by the Massachusetts Secretary of State” (Docket Entry # 38, ¶ 50) (Docket Entry # 57, ¶ 50) but continued to do business (Docket Entry ## 91-21, 91-22) (Docket Entry # 91-2, ¶ 33). On September 29, 2017, COPsync filed for chapter 11 bankruptcy in the United States Bankruptcy Court for the Eastern District of Louisiana, and plaintiff thereafter agreed to purchase COPsync's assets. See Complaint and Asset Purchase Agreement, In re COPsync, Inc., Case No. 17-12625 (Bankr. E.D. La. Sept. 29, 2017), ECF Nos. 1, 125-1. In November 2017, the bankruptcy court approved the asset purchase agreement. See Sale Order, In re COPsync, Inc., Case No. 17-12625 (Bankr. E.D. La. Nov. 21, 2017), ECF No. 125. Plaintiff's purchase included COPsync's patents, COPsync trademarks, and COPsync9111 software. See Sale Order and Asset Purchase Agreement at 15, In re COPsync, Inc., Case No. 17-12625 (Bankr. E.D. La. Nov. 21, 2017), ECF Nos. 125, 125-1. *2 In June 2018, plaintiff filed this lawsuit alleging that BCS and Flanagan were designing competing products as well as urging COPsync911 software customers to pay them fees for use of the software instead of paying those fees to plaintiff. (Docket Entry # 1, ¶¶ 69, 76) (Docket Entry # 38, ¶¶ 70, 77). The complaint further alleges that IFT, formed in November 2017 (Docket Entry # 116-1, ¶ 3), BCS, and/or Flanagan were misrepresenting themselves as owners or licensors of the COPsync911 software to software customers. (Docket Entry # 1, ¶¶ 83, 85). In September 2018, the court set various discovery deadlines. (Docket Entry # 21). In February 2019, the court allowed plaintiff leave to file the amended complaint. (Docket Entry # 37). The amended complaint sets out claims for patent and trademark infringement, unfair competition, false advertising, trademark dilution, false designation of origin, conversion, violation of Massachusetts General Laws chapter 93A, and unjust enrichment. (Docket Entry # 38). In May 2019, this court reviewed a joint status report (Docket Entry # 43) and modified certain scheduling deadlines (Docket Entry # 61). Thereafter, the parties briefed the issues of claim construction and this court conducted a Markman[2] hearing in December 2019. Discovery is set to close “60 days after [the] claim construction decision.” (Docket Entry ## 43, 61). In January 2020, plaintiff filed a motion for sanctions for spoliation and to compel production of documents against BCS and Flanagan. (Docket Entry # 90). After conducting a hearing on March 6, 2020, this court issued a Memorandum and Order (“the March Order”) five days later on March 11 allowing in part and denying in part the motion for sanctions. (Docket Entry # 103). The March Order imposed a sanction against BCS and Flanagan directing them “to take responsibility for recovering additional lost or destroyed electronically stored documents that should have been preserved with respect to third-party customer communications after June 2, 2017.” (Docket Entry # 103, p. 9) (internal quotation marks and brackets omitted). Defendants’ purported violation of this provision forms the basis of the motion for contempt and sanctions. (Docket Entry # 113). During this litigation, defendants changed counsel a number of times. On March 20, 2019, defendants’ counsel filed an assented-to motion to withdraw, which the court allowed. (Docket Entry ## 48, 49). Defendants’ successor counsel (“defendants’ successor counsel”) filed notices of appearance on March 19, 2019 and continued to represent defendants for the next year. (Docket Entry ## 46, 47). On March 31, 2020, defendants’ successor counsel filed a motion to withdraw and referenced defendants’ instruction “that Camp Corporate Law, LLC would take over its representation.” (Docket Entry # 106). On the same day, plaintiff opposed the motion to withdraw “at least until Defendants, including a corporate representative for each corporate defendant, and their counsel appear telephonically at a status conference or hearing on the Motion to Withdraw.” (Docket Entry # 107, p. 2) (internal parentheses omitted). Plaintiff asserted that “[d]efendants have failed to comply [with] the Court's March 11, 2020 order to ‘take responsibility for recovering additional lost or destroyed [electronically stored] documents that should have been preserved.’ ” (Docket Entry # 107, p. 2) (internal citation omitted). The following day, defendants’ successor counsel filed a reply brief explaining defendants’ demand that counsel immediately “withdraw as counsel” and “cease all communications and representations” thereby precluding counsel's ability to comply with the March Order. (Docket Entry # 109, p. 1). On April 1, 2020, this court allowed the motion to withdraw. It was not until April 23, 2020 that attorneys from Sunstein LLP (“Sunstein”) filed notices of appearance on behalf of defendants.[3] (Docket Entry ## 111, 112). *3 On July 14, 2020, plaintiff filed the motion for contempt, supporting memorandum, and attached exhibits. (Docket Entry ## 113, 114). Two weeks later, defendants filed an opposition with attached exhibits. (Docket Entry # 116). On July 31, 2020, this court issued a Report and Recommendation on claim construction. (Docket Entry # 117). On September 18, 2020, Sunstein filed a motion to withdraw as counsel. (Docket Entry # 124). On October 7, 2020, the court stayed deadlines “for 30 days to permit the defendants to retain successor counsel.” (Docket Entry # 125). On December 16, 2020, defendants’ current counsel from the law firm Sheehan Phinney Bass & Green PA filed notices of appearance, and the Sunstein attorneys filed notices of withdrawal on December 18, 2020. (Docket Entry ## 134-137). On December 23, 2020, the court allowed the motion to withdraw. (Docket Entry ## 124, 139). As noted, this court heard oral argument on the motion for contempt of the March Order and for sanctions (Docket Entry # 113) and took the motion under advisement. (Docket Entry # 154). DISCUSSION A. Civil Contempt Federal courts have the inherent power “to issue civil contempt sanctions to ‘protect the due and orderly administration of justice and maintain the authority and dignity of the court.’ ” Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 78 (1st Cir. 2002) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)) (internal brackets and ellipses omitted). “[A] monetary sanction, assessed for the purpose of compensating the complainant for losses sustained by reason of the contemnor's acts, is within the universe of permissible sanctions.” Id. In order to establish a civil contempt, the movant “must show that (1) the alleged contemnor had notice of the order, (2) the order was clear and unambiguous, (3) the alleged contemnor had the ability to comply with the order, and (4) the alleged contemnor violated the order.” Hawkins v. Dep't of Health and Human Servs. for State of N.H., Comm'r, 665 F.3d 25, 31 (1st Cir. 2012) (internal citation and quotation marks omitted). “[T]he movant must make this demonstration with clear and convincing evidence.” Id. The law in this circuit “firmly” establishes “that good faith is not a defense to civil contempt.” Goya Foods, 290 F.3d at 76. First Circuit precedent, however, “permits a finding of contempt to be averted where diligent efforts result in substantial compliance with the underlying order.” AccuSoft Corp. v. Palo, 237 F.3d 31, 47 (1st Cir. 2001); see Hawkins, 665 F.3d at 31 n.7 (“court may exercise its discretion and decline to make a finding of contempt where the defendant has been substantially compliant with the terms of the underlying order”); Langton v. Johnston, 928 F.2d 1206, 1220 (1st Cir. 1991) (“substantial compliance can avert a finding of contempt” and “decrees” at issue “were susceptible to satisfaction by diligent, good faith efforts, culminating in substantial compliance”). B. Magistrate Judge's Contempt Authority The authority of this court to make a finding of civil contempt is limited by statute. See 28 U.S.C. § 636(e) (“section 636(e)”); Funnekotter v. Republic of Zimbabwe, No. 09 Civ. 08168 CM THK, 2011 WL 5517860, at *2 (S.D.N.Y. Nov. 10, 2011) (whereas “district courts have wide discretion in imposing sanctions for failure to comply with discovery orders, United States magistrate judges have limited civil contempt authority”) (internal citation omitted). This is not a consent proceeding or a misdemeanor proceeding under 18 U.S.C. § 3401. Accordingly, sections 636(e)(3), (4), and (6)(A), which by their terms only apply in a consent case or a 18 U.S.C. § 3401 misdemeanor proceeding, do not apply. Section 636(e)(2) does not apply because plaintiff is not seeking criminal contempt. Section 636(e)(6)(B) therefore provides the applicable scope of this court's authority. See M-Cor Steel, Inc. v. Rodgers, Case No. 2:17-MC-035, 2018 WL 1312138, at *1 (S.D. Ohio Mar. 14, 2018) (in civil cases without consent “contempt is governed by Section 636(e)(6)(B)”); see also Martinez-Garcia v. Perez, No. CV613-015, 2013 WL 5606366, at *3 (S.D. Ga. Oct. 11, 2013). *4 Section 636(e)(6)(B) sets out a procedure that requires this court to certify facts that constitute a civil contempt and allows this court to issue an order that the putative contemnor appear before the district judge to show cause why he “should not be adjudged in contempt.”[4] 28 U.S.C. § 636(e)(6); see Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., No. 2:05–cv–1532–RLH–GWF, 2007 WL 3101248, at *13 (D. Nev. Oct. 16, 2007) (under section 636(e)(6), “magistrate judge is required to refer contempt charges to the District Court and is required to certify the facts to a district judge and may serve or cause to be served ... order requiring” party “to appear before the district judge”); see also E&C Copiers Export Import Corp. v. Arizas Fotocopiadoras S.A.S., Case No. 15-21693, 2018 WL 6978631, at *3 (S.D. Fla. Dec. 28, 2018) (“certification of facts under section 636(e) serves to determine whether” moving party “adduced sufficient evidence ... of contempt”), appeal dismissed, 2019 WL 4011497 (11th Cir. May 7, 2019). The “certification of facts commonly takes the form of a Report and Recommendation.” Commonwealth Constr. Co., Inc. v. Redding, Case No. 14-cv-3568-GLR, 2016 WL 8671536, at *2 (D. Md. May 6, 2016); see, e.g., Garner v. Soc'y Fashion Week LLC, Case No. 6:19-cv-00588-DCC-JDA, 2020 WL 8483821, at *4 (D.S.C. Sept. 17, 2020) (decision by magistrate judge certifying facts and recommending “[d]efendants be required to appear before the Court and show cause why they should not be held in contempt”), adopting Report and Recommendation as modified, 2020 WL 8483882 (Dec. 2, 2020); M-Cor Steel, 2018 WL 1312138, at *3 (decision by magistrate judge certifying facts and recommending “district judge issue a show-cause order” requiring that defendant appear before “district judge to show cause during a hearing why he should not be held in contempt of court for failing to obey” magistrate judge's orders); Admiral Ins. Co. v. Wieland, Case No. A–15–CV–77–RP–ML, 2016 WL 8224269, at *5 (W.D. Tex. June 29, 2016) (decision by magistrate judge certifying facts and recommending district judge order putative contemnor “appear and show cause for why he should not be held in civil contempt”). It is then the province of the district judge to “hear the evidence” and, if warranted, make a finding of contempt and issue sanctions. 28 U.S.C. § 636(e)(6)(B); see Parenteau v. Prescott Unified Sch. Dist., Case No. CV-07–8072–PCT–NVW, 2010 WL 729101, *3 (D. Ariz. Mar. 2, 2010) (absent “consent of all parties pursuant to 28 U.S.C § 636(c), ‘[m]agistrate judges must refer contempt proceedings stemming from out-of-court action/inaction to district court judges’ ”) (internal citations omitted); see also Kiobel v. Millson, 592 F.3d 78, 89 (2d Cir. 2010) (“magistrate judges have limited power to punish acts of contempt” and “must refer the matter to the district judge if the act does not occur in the magistrate's presence, § 636(e)(6)(B)(ii)”) (Cabranes, J., concurring); Coan v. Dunne, 602 B.R. 429, 436 (D. Conn. 2019) (under section 636(e)(6), “magistrate judge may certify facts constituting civil contempt to the district judge” who “must then ‘make an independent determination of the facts certified and consider any additional evidence’ ”) (internal citation omitted). Accordingly, this court certifies the following facts. C. Certification of Facts On January 17, 2020, plaintiff filed the motion for sanctions for spoliation of electronically stored information under Fed. R. Civ. P. 37(e)(1) and to compel against BCS and Flanagan. (Docket Entry # 90). Whereas the motion did not seek sanctions against IFT, Flanagan is the chief executive officer of IFT and held the same position at BCS. (Docket Entry # 116-1, ¶¶ 1-2). The motion requested four sanctions including a sanction that BCS and Flanagan “take responsibility for recovering additional lost or destroyed documents that should have been preserved, such as by issuing subpoenas to third parties and forensic recovery efforts, or reimburse Kologik's costs and fees for doing so and cooperate with those efforts.” (Docket Entry # 90, p. 1). During the March 6, 2020 hearing and with respect to the portion of the motion seeking to compel documents, BCS and Flanagan agreed to produce four categories of documents and plaintiff, in turn, agreed to withdraw this portion of the motion without prejudice to renew if production was inadequate. (Docket Entry # 104, pp. 25-29). After taking the sanctions motion under advisement, this court issued the March Order. (Docket Entry # 103). The Order determined that BCS and Flanagan had a duty to preserve “electronically stored documents” (Docket Entry # 103, p. 9) (internal quotation marks omitted) (“ESD”) beginning on June 2, 2017, and that they “did not preserve relevant documents consisting of lost electronically stored information that was formerly in [their] possession, custody, or control.” (Docket Entry # 103, p. 4). The March Order partially allowed the above requested sanction in deeming the following sanctions appropriate: *5 (1) defendants are directed to “take responsibility for recovering additional lost or destroyed [electronically stored] documents that should have been preserved” with respect to third-party customer communications after June 2, 2017; and (2) they “waive objections as to authenticity and business record status for Defendants’ [electronically stored] communications with third parties recovered through subpoenas.” (Docket Entry # 103, p. 9) (quoting motion for sanctions, Docket Entry # 90, and omitting footnote). The March Order did not limit or restrict the means by which BCS and Flanagan could fulfill their responsibility to recover lost or destroyed ESD. (Docket Entry # 103, p. 9). Separately, the Order denied requested monetary sanctions “without prejudice to be renewed at the conclusion of the case” and reserved a request for a jury instruction or presentation of evidence of the destruction at trial for the trial judge. (Docket Entry # 103, p. 9). Early on plaintiff insisted that taking responsibility for recovering ESD equated to issuing third party subpoenas to nonparties who BCS and Flanagan previously communicated with electronically. (Docket Entry # 114-2) (Docket Entry # 114-4, p. 4). In a March 12, 2020 letter to defendants’ successor counsel, plaintiff's counsel stated that the “Court-ordered recovery should include at least ... [i]ssuing subpoenas for all responsive documents to each third party with whom any [BCS] employee, officer, or representative, including Brandon Flanagan, communicated electronically from June 2, 2017 to the present.” (Docket Entry # 114-2, p. 2). The letter further stated that taking responsibility should include forensic recovery measures. (Docket Entry # 114-2, p. 2). Referring to a recent meet and confer between counsel, a March 19, 2020 email from plaintiff's counsel to defendants’ successor counsel reiterates plaintiff's position that “formal subpoenas are necessary.” (Docket Entry 114-3). On April 1, 2020, this court allowed defendants’ successor counsel to withdraw. Sunstein began representing defendants in mid-April and two Sunstein attorneys filed appearances on April 23, 2020, leading to “several weeks” during which defendants did not have counsel. (Docket Entry ## 111, 112) (Docket Entry # 116-1, ¶ 13) (Docket Entry # 116-2, ¶ 2). On April 10, 2020, Flanagan “suffered a severe personal loss with the death of” his and his wife's infant child. (Docket Entry # 116-1, ¶ 15). On April 16, 2020, a Sunstein attorney spoke with plaintiff's counsel and made plaintiff aware of the death of Flanagan's infant child. (Docket Entry # 116-2, ¶ 2). In a letter dated April 27, 2020 to this Sunstein attorney, plaintiff's counsel emphasized a need to address three discovery requests. (Docket Entry # 114-4, p. 4). The first request was that defendants comply with the March Order, “including issuing subpoenas to all third parties with whom Defendants had electronic communication after June 2, 2017 and using forensic recovery efforts on existing storage devices, computers, and drives.” (Docket Entry # 114-4, p. 4). The letter attached a list of 241 entities (“the contact list”), largely comprising school districts and police departments in New England, “that IFT may have communicated with during the relevant time period.”[5] (Docket Entry # 116-1, ¶ 8) (Docket Entry # 116-2, ¶ 3) (Docket Entry # 116-1, pp. 7-13). In response, Sunstein attorney Lena M. Cavallo (“Attorney Cavallo”) reminded plaintiff's counsel that Sunstein was “still working to obtain the files from predecessor counsel” and expressed a willingness to meet and confer in the meantime. (Docket Entry # 116-2, ¶ 4) (Docket Entry # 116-2, p. 6). *6 In or around May and June 2020, defendants determined that “purged BCS emails could not be recovered via forensic recovery efforts.” (Docket Entry # 116-2, ¶ 5) (Docket Entry # 114-6). Flanagan, however, attests that communications with former customers after December 2017 “are accessible from IFT's computer systems.” (Docket Entry # 116-1, ¶ 24). In June 2020, Flanagan sent requests to 19 former BCS customers consisting of school districts and police departments on the contact list. (Docket Entry # 116-1, ¶ 17). In 11 of the 19 requests, he asked for any correspondence with BCS or himself “ ‘from the period of June 2017 and after.’ ” (Docket Entry # 116-1, ¶ 18). The remaining requests asked for emails BCS or Flanagan sent to the school district or police department, particularly in the last seven months of 2017. (Docket Entry # 116-1, ¶ 18). He did not provide copies of the emails to plaintiff through his counsel or otherwise and did not inform plaintiff at that time that he was making these requests. (Docket Entry # 114-1, ¶ 3). On June 21, 2020, plaintiff's counsel wrote to Attorney Cavallo stating “we have seen no indication that Defendants have taken any steps whatsoever to recover the lost evidence.” (Docket entry # 114-5, p. 2). Counsel also noted the passage of more than 100 days since the March Order and the close of fact discovery 60 days after issuance of the Markman ruling. (Docket Entry # 114-5, p. 2). In a reply letter four days later, Sunstein attorney Joel Leeman (“Attorney Leeman”) correctly points out that the March Order “did not ordain one specific means of recovering customer communications.” (Docket Entry # 114-6) (Docket Entry # 116-2, pp. 16-17). The reply letter discloses that “[w]e have investigated whether there are any computers or devices on which a forensic review would yield customer communications” and “are working with our clients” to determine “if they can identify any personal e-mail accounts” with “relevant customer communications.” (Docket Entry # 114-6). The letter also informs plaintiff's counsel that IFT “contacted numerous third partes seeking communications that BCS/IFT had with customers.” (Docket Entry # 114-6). On June 26, 2020, plaintiff's counsel “strongly” objected to IFT contacting third parties and stated that third party subpoenas would avoid “chain-of-custody issues” and ensure “completeness of” the document production. (Docket Entry # 114-8). The letter also complained about the lack of communication regarding defendants’ efforts and asked for a list of the third parties IFT contacted and “records of those communications.” (Docket Entry # 114-8). Production in response to Flanagan's 19 requests was meager. By early July, Flanagan received responses from only four of the 19 entities and only two responses provided emails responsive to his request. He decided that “a more forceful approach was required.” (Docket Entry # 116-1, ¶ 19). More specifically, Flanagan “determined that greater transparency, and a higher response rate, might result from requiring recipients of [his] requests to respond directly to [his] attorneys.” (Docket Entry # 116-1, ¶ 19). On July 9, 2020, plaintiff's counsel and defendants’ counsel conducted a meet and confer in an effort to resolve or narrow discovery disputes, including the dispute regarding defendants’ compliance with the March Order. (Docket Entry # 114-1, ¶ 2). Defendants’ counsel informed plaintiff's counsel that “Flanagan had been reaching out to customers directly, via email, for at most three weeks, and that” defendants only received documents from one customer. (Docket Entry # 114-1, ¶¶ 4-5). Plaintiff's counsel “explained that allowing the litigants to communicate with third parties and to determine the scope of third party production, without subpoenas, without counsel involved, and without notice to Kologik, [was] improper” and “inefficient.” (Docket Entry # 114-1, ¶ 6). He also noted that plaintiff “had not seen any” third party subpoenas. (Docket Entry # 114-1, ¶ 3). As of July 14, 2020, plaintiff's counsel had not received the documents referenced by defendants’ counsel during the July 9, 2020 meet and confer. (Docket Entry # 114-1, ¶ 5). *7 On July 10, 2020, Attorney Leeman sent plaintiff's counsel an email informing plaintiff's counsel that IFT was “developing a follow-on effort to expand and expedite the collection and production of the customer communications” and suggested that counsel confer regarding the “proposed campaign.” (Docket Entry # 116-2, p. 14) (Docket Entry # 116-2, ¶ 9). The Sunstein attorney also offered to describe the proposed campaign, once finalized, no later than July 15. (Docket Entry # 116-2, p. 14). On July 14, 2020, and having received only one new customer communication since the March Order, plaintiff filed the motion for contempt and for sanctions. (Docket Entry # 113) (Docket Entry # 114-1, ¶¶ 5, 7). The campaign IFT wished to propose to plaintiff called for Flanagan to send approximately 55 former BCS or IFT customers the following letter: In connection with a lawsuit in which In Force Technology (IFT) is involved, I have an important request to make. You may recall that my father, Don, and I previously operated a business under the name Brandon-COPsync (BCS). We must retrieve all e-mails from BCS or IFT to anyone at your place of business, and all e-mails from anyone at your place of business to BCS or IFT, from June 1, 2017 through December 31, 2017. We are required by court procedures to collect these e-mails for potential use in the litigation, which is Civil Action 18-11168 in the U.S. District Court in Boston. We hope to avoid the need of serving a subpoena, which will only be necessary if we don't receive your response by July _____, 2020. To preserve the integrity of the e-mails, please do not forward them or convert them to PDF, but rather keep the e-mails in their original file format and use tools available from your e-mail provider to export e-mails in bulk to a single e-mail container file. We ask that you send the e-mails from the specified seven-month period as soon as possible to Attorney Joel Leeman (cc'd here), not to me. If you or your attorney (or your IT professional) have any questions about this request, please contact Attorney Leeman, who will promptly respond. I regret the inconvenience that this causes you and greatly appreciate your cooperation. (Docket Entry # 116-1, ¶¶ 21, 22). IFT and Flanagan were therefore developing a plan to send these letters, and the circumstances evidence that Flanagan was taking an active role in implementing a more forceful approach. (Docket Entry # 116-1, ¶ 24). Plaintiff incurred significant costs and fees identifying potential sources of “documents, issuing its own subpoenas, and negotiating with third parties for production of documents.” (Docket Entry # 114-1, ¶ 8). It also spent months trying to recover “some of the documents that Defendants failed to preserve.” (Docket Entry # 114-1, ¶ 8). D. Show Cause Having certified the foregoing facts, they do not warrant serving defendants with “an order requiring” them “to appear before [the] district judge” in order “to show cause why they should not be adjudged in contempt.” 28 U.S.C. § 636(e)(6)(B). There is neither prima facie evidence nor a sufficient showing by clear and convincing evidence of a violation of the March Order. See Goya Foods, 290 F.3d at 77 (stating “requirement that the moving party establish by clear and convincing evidence that the putative contemnor violated the relevant court order”); E&C Copiers, 2018 WL 6978631, at *3 (“certification of facts under section 636(e) serves to determine ... sufficient evidence to establish a prime facie case of contempt”).[6] *8 The March Order did not establish a particular manner, means, or method for BCS and Flanagan to “take responsibility for recovering additional lost or destroyed” ESD. (Docket Entry # 103, p. 9) (internal quotation marks omitted). Although issuance of third party subpoenas to customers would show compliance, it is not the sole means or method to establish compliance. Flanagan sent requests to 19 former BCS customers on the contact list for “ ‘email correspondence’ ” with BCS or himself or “ ‘emails’ ” from BCS or himself during relevant time periods. (Docket Entry # 116-1, ¶¶ 17, 18). When the response was not informative, Flanagan decided in early July 2020 that the circumstances warranted “a more forceful approach.” (Docket Entry # 116-1, ¶ 19). He and his attorneys worked to finalize the expanded outreach proposal of sending the above-quoted letter to approximately 55 former BCS or IFT customers. (Docket Entry # 116-1, ¶¶ 21, 22) (Docket Entry # 116-2, ¶ 8) (Docket Entry # 116-2, p. 14). The proposed letter discloses the lawsuit and is precisely targeted to recover the lost or destroyed emails. (Docket Entry # 116-1, ¶ 21). Simply put, Flanagan was taking responsibility for recovering the lost or destroyed ESD. Flanagan also avers that communications after December 2017 “are accessible from IFT's computer systems.” (Docket Entry # 116-1, ¶ 24). Accessible communications are not “lost or destroyed” ESD within the meaning of the language of the March Order. (Docket Entry # 103, p. 9) (internal quotation marks omitted); see generally Goya, 290 F.3d at 76 (“ ‘clear and unambiguous’ standard applies to the language of the relevant court order”) (emphasis in original). In or around June or July 2020, defendants also took responsibility by determining via forensic recovery efforts that purged BCS emails, presumably predating December 2017, “could not be recovered.” (Docket Entry # 116-2, p. 2, ¶ 5)[7] (Docket Entry # 116-1, ¶ 24). While plaintiff is understandably disappointed and frustrated by the lack of production and the pace of production, a show cause order is not warranted under the circumstances. CONCLUSION Having certified the foregoing facts, this court RECOMMENDS[8] that defendants not be served an order requiring them to appear before the district judge on “a day certain to show cause why” they “should not be adjudged in contempt by reason of the facts so certified,” 28 U.S.C. § 636(e)(6), and that the motion for contempt and for sanctions (Docket Entry # 113) be DENIED in part only to this extent and otherwise remain pending on the docket for further proceedings, if any, as determined by the district judge. Footnotes [1] The following background summarizes the allegations in an amended complaint and scheduling deadlines entered in this case. It is provided for background purposes only and does not constitute part of the certified facts under 28 U.S.C. § 636(e)(6). [2] Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). [3] Plaintiff filed a motion for defendants to disclose successor counsel on April 6, 2020. (Docket Entry # 110). [4] In pertinent part, section 636(e)(6)(B) states that: the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. 28 U.S.C. § 636(e)(6)(B) (emphasis added). [5] Under the professional services agreement, BCS marketed COPsync911 to school districts and police departments. (Docket Entry # 116-1, ¶ 2). [6] Because plaintiff does not satisfy either standard, it is not necessary to determine which standard applies to determining whether to recommend issuance of a show cause order under section 636(e)(6)(B). [7] The June or July 2020 time period is reasonably inferred from the July 28, 2020 date of Attorney Cavallo's declaration. (Docket Entry # 116-2, p. 4). [8] Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of the Report and Recommendation to which objection is made and the basis for such objection should be included. See Fed. R. Civ. P. 72(b). Any party may respond to another party's objections within 14 days after being served with a copy of the objections. Failure to file objections within the specified time waives the right to appeal the order.