TAIKA BLAIER, Plaintiff, v. AMPS STAFFING, INC., et al., Defendants CIVIL ACTION NO: 1:20-cv-2324-AT-RDC United States District Court, N.D. Georgia, Atlanta Division Filed July 26, 2022 Counsel Audrey K. Berland, Huff Powell & Bailey, LLC, Atlanta, GA, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, for Plaintiff. Alan J. Statman, Pro Hac Vice, William Brokate Fecher, Pro Hac Vice, Statman, Harris & Eyrich, LLC, Cincinnati, OH, Mirza Khurram Baig, The Baig Firm, Norcross, GA, for Defendants. Totenberg, Amy, United States District Judge ORDER *1 Before the Court is the Magistrate Judge's Non-Final Report and Recommendation [Doc. 162]. The R&R (1) denied Defendants' Motion for Reconsideration (Doc. 143) and (2) recommended that Plaintiff's Motion for Contempt and Sanctions (Doc. 147) be granted in part and denied in part. Defendants have filed timely objections to the to the R&R (Doc. 170). Plaintiff filed a Motion to Overrule Defendants' Objections (Doc. 173), which, as indicated by prior Order (Doc. 174), the Court construes as a response in opposition to Defendants' objections. The Court first addresses the appropriate legal standard and then discusses the two underlying motions in turn. I. Legal Standard The parties dispute the appropriate legal standard for the Court's review of Defendants' objections to the R&R. Defendants contend that the objected-to portions of the R&R are subject to de novo review. Countering, Plaintiff argues that the objected-to portions of the R&R are subject to the “clearly erroneous or contrary to law” standard. Rule 72 of the Federal Rules of Civil Procedure divides pretrial matters assigned to magistrate judges into two categories: dispositive or non-dispositive. Under this Rule, when timely objections are made to a magistrate judge's order on a pretrial, non-dispositive matter, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The Magistrates Act, 28 U.S.C. § 636, is similar. It provides that magistrate judges can “hear and determine any pretrial matter pending before the court,” with the exception of eight specific motions, for example, motions for summary judgment or motions to dismiss. Indeed, even before Rule 72 was adopted, the lower courts keyed their review not only to the checklist of motions contained in Section 636(b)(1)(A) but also to the underlying considerations of the dispositive-nondispositive dichotomy. When a pretrial matter was not among the listed exceptional motions, the lenient ‘clearly erroneous or contrary to law’ standard of Section 636(b)(1)(A) would be applied so long as the judge did not conclude that the motion was nevertheless dispositive. WRIGHT & MILLER, Magistrate Judge Handling of Matters Other Than Trial—Dispositive and Nondispositive Matters, 12 Fed. Prac. & Proc. Civ. § 3068.2 (3d ed.) (emphasis added). Motions related to discovery matters, including sanctions motions, are subject to this more lenient standard, unless the sanction is dispositive. Id. See also Diaz v. Drs. Best Weight Loss & Wellness Ctr., 2022 WL 1012894, at *1-2 (S.D. Fla. Apr. 5, 2022) (applying “clearly erroneous or contrary to law” standard to review of objections to magistrate judge's sanctions order); Kounelis v. Sherrer, 529 F. Supp.2d 503, 518 (D.N.J. 2008) (same); Keithley v. Homestore.com, Inc., 629 F. Supp. 2d 972, 974 (N.D. Cal. 2008) (same) (“The monetary sanction is a ruling on a nondispositive matter ... The Court reviews th[is] monetary sanction to determine whether it is ‘clearly erroneous or [ ] contrary to law.’ ”). *2 Here, all the discovery rulings are non-dispositive and thus subject to review based on the “clearly erroneous or contrary to law” standard.[1] This standard is a “very difficult one to meet.” Thornton v. Mercantile Stores Co., Inc., 180 F.R.D. 437, 439 (M.D. Ala. 1998). A decision is “clearly erroneous” if the district court finds that the magistrate judge abused her discretion or, “if after viewing the record as a whole, the court is left with a definite and firm conviction that a mistake has been made.” Diaz, 2022 WL 1012894, at *1-2 (citing Pigott v. Sanibel Dev., LLC, 2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008)). A decision is “contrary to law” when it “fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id. (internal citations omitted). II. Discussion The Court adopts the factual and procedural background as outlined in the Magistrate Judge's R&R. (Doc. 162.) As such, the Court does not repeat the relevant facts. However, to provide clarity for the analysis below, the Court briefly recounts the relevant procedural history. In May 2021, Plaintiff moved to compel the production of certain documents and moved for sanctions against Defendants for various discovery violations. (Doc. 82.) The Magistrate Judge granted the motion in part and sanctioned Defendants, ordering them to pay the attorneys' fees incurred by Plaintiff's counsel in briefing the Motion to Compel. (Order, Doc. 118.) Plaintiff's counsel then submitted a declaration outlining the fees associated with the briefing on the Motion to Compel, (Ichter Declaration, Doc. 121-1), and the Magistrate Judge subsequently ordered Defendants to pay $40,018.76 to Plaintiff by January 31, 2022. (Sanctions Order, Doc. 132.) Defendants did not pay the sanctions by the deadline and instead, on February 2, 2022, moved for reconsideration of a portion of the Sanctions Order. (Motion for Reconsideration, Doc. 143.) In response to Defendants' failure to pay the sanctions — even the uncontested portion — Plaintiff filed a Motion for Contempt and Motion for Sanctions. (Contempt Motion, Doc. 147.) The Magistrate Judge entered a Report and Recommendation, denying Defendants' Motion for Reconsideration of the first Sanctions Order, granting Plaintiff's request for some amount of additional sanctions, and recommending that this Court deny Plaintiff's request to hold Defendants in contempt. (R&R, Doc. 162.) Defendants filed objections to the R&R (Doc. 170) and Plaintiff responded to those objections (Doc. 173). With this background in mind, the Court now turns to Defendants' specific objections. A. Objection to the R&R's denial of the Motion for Reconsideration of the Sanctions Order Defendants first object to the Magistrate Judge's denial of their Motion for Reconsideration as to a portion of the December 2021 sanctions order, specifically the $20,099.90 assessed for Plaintiff's counsel review of Defendants' May 2021 document production, produced the same day Plaintiff filed her motion to compel and for sanctions. Defendants essentially argue that, regardless of the untimeliness of their motion for reconsideration, the Magistrate Judge should have exercised her discretion to reduce the sanctions amount related to the May 2021 document production because reconsideration was necessary to correct a manifest injustice. (Objections, Doc. 170 at 9-10.) According to Defendants, the fees expended by Plaintiff's counsel in reviewing the 22,000 documents included in the May 2021 production were not caused by Defendants' discovery violations because Plaintiff's counsel would have had to review those documents regardless. (Id. at 11-12.)[2] Accordingly, Defendants argue that the $20,099.90 associated with the Plaintiff's document review was imposed as a duplicative punishment, rather than to compensate Plaintiff for work required due to Defendants' discovery violations. (Id.) *3 The sanctions in question were imposed under Federal Rules of Civil Procedure 26(g) and 37(a). Rule 26(g) outlines an attorney's obligation to sign and certify that discovery responses are inter alia nonfrivolous and not interposed to cause unnecessary delay or increase the cost of litigation. Rule 26(g) further provides that, if a certification violates this rule without substantial justification, the court, “must impose an appropriate sanction on the signer,” including potentially “an order to pay the reasonable expenses, including the attorney's fees, caused by the delay.” Fed. R. Civ. P. 26(g). Rule 37(a) provides the procedures related to motions to compel disclosure or discovery. Fed. R. Civ. P. 37(a). Where a motion to compel discovery is granted, the court must “require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” absent certain exceptions not applicable here. Id. Thus, under both Rule 26(g) and Rule 37(a) the sanctions issued should be for the reasonable expenses incurred as a result of, or caused by, the offending conduct. See Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 n.5 (2017) (addressing sanctions under the court's inherent authority powers but noting that “[r]ule-based and statutory sanction regimes similarly require courts to find such a causal connection before shifting fees” and citing Federal Rule 37). Here, Defendants' objection is essentially that the document review was not caused or necessitated by their misconduct because Plaintiff's counsel would have had to review the documents no matter what. In the Sanctions Order (Doc. 132) the Magistrate Judge found that the sanctions award for the preparation and briefing on the motion to compel should include the $20,099.90 for the document review because (1) if Defendants had produced that material during the original discovery period, much of Plaintiff's motion would have been unnecessary and (2) the late production required Plaintiff's counsel to stop drafting the reply brief and assess 22,000 documents to determine whether their production changed Plaintiff's position. (Id. at 3.) This Court generally agrees that, as a part of litigating the motion to compel, Plaintiff's counsel was required to expend time reviewing the 22,000 documents for the purpose of determining whether the May 2021 production was responsive to the discovery requests and therefore determine how best to proceed in connection with Plaintiff's motion and reply brief. The fees associated with such a general review are certainly encompassed in Rule 37(a)'s discussion of “reasonable expenses incurred in making the motion” and would not have been necessary absent Defendants' discovery violations. That said, such a review — to see what was included in the production and whether it was sufficiently responsive to all the outstanding discovery requests — is different from an exacting, time-consuming review for the purpose of evaluating the documents as evidence in this case. This latter type of detailed review is one that would have been required regardless of when the production occurred and thus would not have been necessitated by the discovery misconduct. In his declaration detailing the scope of work associated with the document review of the May 2021 production, Plaintiff's counsel stated that: [G]iven the particular posture [of] the case, our office began the process of reviewing the documents in the May production for the purpose of assessing whether they resolved the discovery deficiencies Plaintiff identified in the Motion. If they had, Plaintiff would be able to report the same to the Court in Plaintiff's reply brief and would have done so. To be efficient, we also evaluated Defendants' confidentiality designations for all documents produced in the May production. That process added a layer of complexity to the review that increased the time needed to review many of the produced documents. Between May 28, 2021, through the filing of the Reply Brief on June 15, 2021, our attorneys and paralegals spent 64.1 hours undertaking that task, incurring $20,099.90. *4 (Ichter Declaration, Doc. 121) (emphasis added). Thus, it is clear that Plaintiff's counsel's review was primarily to assess the documents to determine whether the production was sufficiently responsive and how the production affected the pending motion to compel. However, the Court finds that the portion of time spent evaluating Defendants' confidentiality designations — while perhaps more efficient for Plaintiff's counsel — was not connected to the sanctioned discovery misconduct.[3] Therefore, the time expended reviewing the confidentiality designations was not for “reasonable expenses incurred in making the” motion to compel under Rule 37(a) and should not have been included in the sanctions amount. In awarding the full amount requested by Plaintiff's counsel for document review, the Magistrate Judge overlooked this component of the review. As a result, her determination to award fees that did not flow from the sanctioned misconduct was error. Even under the more deferential standard for review of non-dispositive matters, this oversight was clearly erroneous in that it ran afoul of Rule 37's requirement that the sanctions be for amounts reasonably incurred in response to, or necessitated by, the discovery misconduct. See also Goodyear, 137 S. Ct. at n.5 (requiring that a court find a causal connection before shifting fees). The Court must therefore revisit this determination. In light of this oversight, the Magistrate Judge's determination to deny Defendants' Motion for Reconsideration was also error. Because Defendants were charged fees that were not incurred a result of their discovery misconduct, reconsideration was necessary to correct an error of law and prevent a manifest injustice. See Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003) (Martin, J.) (explaining that reconsideration is only necessary where there is new evidence, an intervening change in the law, or a need to correct a clear error of law or fact); Spivey v. Royston LLC, 2020 WL 13111125, at *4 (N.D. Ga. Apr. 1, 2020) (Baverman, J.) (noting that reconsideration is appropriate to correct clear errors or prevent manifest injustice). Reconsideration was appropriate even though Defendants' motion for reconsideration was untimely and cited an inapplicable provision of law.[4] It was also appropriate, despite that, as the Magistrate Judge correctly points out, Defendants should have filed a response or objections to Mr. Ichter's initial declaration (filed on November 30, 2021) — which detailed the amount requested ($20,099.90) for the May 2021 document review — earlier, and certainly before the Court issued the sanctions order on December 30, 2021. Regardless of Defendants' procedural failings, however, the fees for reviewing confidentiality designations were not fairly chargeable to Defendants under the operative sanctions provisions of Rule 26(g) and Rule 37(a) because they were not caused by the discovery violations at issue. *5 A review of the Plaintiff's counsel's time entries related to the document review demonstrates that specifically delineating hours spent on confidentiality designations (non-recoverable expenses) versus hours spent determining what documents were included, what was missing, and their general responsiveness (recoverable expenses) is likely impossible. For this reason, the Court finds it appropriate to reduce the total fee award associated with the document review. As discussed further below, in determining an appropriate reduction for a sanctions award, a court should attempt to do “rough justice” and may find that a percentage of a particular category of expenses was incurred as a result of one party's misbehavior. Goodyear, 137 S. Ct. at 1187 (addressing sanctions in the context of court's inherent authority rather than under Rule 37). Upon review of the full record, the R&R, and the numerous briefs devoted to this topic, the Court finds that the document review award of $20,099.90 should be reduced by 20%. As such, it is ORDERED that the sanctions award for the document review be reduced to $16,079.92. B. Objection to the R&R's granting of additional sanctions for Defendants' failure to pay the December 2021 sanctions award Next, Defendants object to the R&R's recommendation that the Court grant in part Plaintiff's Motion for Contempt and Sanctions in connection with Defendants' more than six-month failure to pay the December 2021 sanctions amount. Defendants argue that they failed to pay the sanctions fee because they were “misguided” as opposed to acting in bad faith and therefore the sanction is punitive. Specifically, Defendants argue that they believed that their motion for reconsideration tolled their obligation to pay the sanctions amount. They also point out that Plaintiff's counsel never reached out to them to let them know that Plaintiff was planning to file a motion for contempt. (Obj., Doc. 170 at 13-15.) In the R&R, the Magistrate Judge explained that, based on Defendants' failure to comply with a valid court order without justification, there is sufficient legal and factual support for this Court to hold Defendants in contempt. However, the Magistrate Judge recommended that the district court not hold Defendants in contempt at this time because (1) while Defendants were more at fault, Plaintiff's counsel also contributed to the difficulties in this litigation; (2) there is yet another sanctions motion pending in connection with ESI discovery issues; and (3) the parties were set to mediate on July 7, 2022.[5] Accordingly, the Magistrate Judge did not believe holding Defendants in contempt would aid in settlement efforts. (R&R, Doc. 162 at 15-16.) Despite recommending against a finding of contempt, the Magistrate Judge granted Plaintiff's request for additional sanctions based on the court's inherent authority to sanction a party or attorney who demonstrates bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. (R&R, Doc. 132 at 16) (explaining that sanctions in such circumstances can serve “the dual purpose of vindicate[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent's obstinacy”). Specifically, the Magistrate Judge found that Defendants' failure to pay the December 2021 sanctions award without legal justification — or even the portion of the award that they did not contest — demonstrated bad faith. (Id. at 17). Thus, Defendants were ordered to pay Plaintiff's attorneys' fees and costs associated with briefing the motion for contempt and sanctions. As noted, unlike the initial sanctions for discovery violations under Rules 26 and 37, this sanction was ordered pursuant to the court's inherent authority to “fashion an appropriate sanction for conduct which abuses the judicial process.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (explaining that, pursuant to such authority, one permissible sanction is an assessment of attorney's fees “instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side”). Such a sanction must be “compensatory rather than punitive in nature.” Id. (internal citation omitted). As such, “the court can shift only those attorney's fees incurred because of the misconduct at issue.” Id. (“[A] sanction counts as compensatory only if it is calibrated to the damages caused by the bad-faith acts on which it is based.”) (internal quotation omitted). If an award extends further than the legal bills that the litigation abuse caused — to fees that would have been incurred absent the misconduct — it “crosses the boundary from compensation to punishment.” Id. Thus, a sanctioning court must identify a causal link between the litigant's misbehavior and legal fees paid by the opposing party. Id. In the context of a court's inherent authority to sanction, this kind of causal connection is appropriately viewed as a “but-for” test: the complaining party may recover “only the portion of [her] fees that [s]he would not have paid but for” the misconduct. Id. at 1187 (quoting Fox v. Vice, 563 U.S. 826, 836 (2011)). Ergo, a court should determine whether a given legal fee — for example, drafting a motion — would or would not have been incurred in the absence of the sanctioned conduct. Id. *6 Here, the sanctions imposed were for the attorneys' fees associated with briefing Plaintiff's motion for contempt and sanctions. These costs of drafting the movant's brief and reply were only necessary because of Defendants' continued failure to pay the December 2021 sanctions award (and consequently, their continued defiance of a court order). The Magistrate Judge — who has been highly involved with the parties and counsel throughout this case, holding frequent phone conferences on all manner of issues — determined that this failure to pay even the portion of the fees that were not contested demonstrated bad faith. Defendants cite to no law that even arguably supports their position that their filing a motion for reconsideration under Federal Rule of Civil Procedure 60 (erroneously, as explained in the R&R) tolled the deadline for them to pay the ordered sanctions. Indeed, a quick review of Rule 60 indicates that filing such a motion “does not affect the judgment's finality or suspend its operation.” Fed. R. Civ. P. 60(c)(2).[6] Accordingly, there was adequate justification for the Magistrate Judge to find bad faith, and the Court will not upset this finding. Under the governing law outlined above, the ordered sanction was therefore appropriate because the sanction (Plaintiff's attorneys' fees for briefing the motion for contempt and sanctions) was caused by Defendants' bad faith failure to comply with the Magistrate Judge's order to pay the sanctions amount. Put another way, “but-for” Defendants' bad-faith failure to pay, Plaintiff's counsel would not have incurred the cost of briefing the motion for contempt and sanctions for Defendants' failure to pay. Goodyear, 137 S. Ct. at 1186. Plaintiff's counsel submitted a declaration indicating that these fees amount to $19,312.50 (for briefing the motion and reply brief). As this declaration was submitted after the issuance of the pending R&R, the amounts have not been assessed by the Magistrate Judge. The Court has reviewed the briefing on the motion for contempt and sanctions as well as the associated time entries. Upon review, the Court finds that, while the thrust of the time spent on the briefing involved the issue of Defendants' failure to pay the December 2021 sanctions, some amount of work was devoted to other discovery issues and alleged misconduct not involving the failure to pay. (See Motion to Compel, Doc. 147 at 7-8.) No doubt these additional discovery abuses, as asserted, may demonstrate a disregard for the rules of this Court and a continued lack of professionalism. However, these abuses are not the conduct for which Defendants were sanctioned. The bad faith identified by the Magistrate Judge in granting sanctions was the failure to comply with a court order by failing to pay any portion of the December 2021 sanctions award without justification. (See R&R, Doc. 162 at 16-17.) Accordingly, the portion of the briefing that involved the other discovery violations is not fairly traceable to, and was not caused by, the sanctioned conduct. In Goodyear, the Supreme Court advised that, in determining the appropriate amount of fees owed that would not have been incurred absent the other side's misbehavior, trial courts “need not, and indeed should not, become green-eyeshade accountants.” Goodyear, 137 S. Ct. at 1187. Rather, a court should aim “to do rough justice, not to achieve auditing perfection.” Id. (quoting Fox, 563 U.S. at 838.) In achieving this “rough justice,” a district court “may take into account [its] overall sense of a suit, and use estimates in calculating and allocating attorney's time,” and may decide that “all (or a set percentage) of a particular category of expenses” were incurred solely because of a litigant's bad-faith conduct. Id. (internal quotations omitted). The Court will do just that and again reduce the total percentage of requested fees by a percentage. Based on the Court's review of the relevant briefing and time records, as well its overall assessment of the litigation thus far, the Court finds it appropriate to reduce the amount billed for Plaintiff's briefing of the motion for contempt and sanctions by 20%. As such, the sanctions amount is reduced from $19,312.50 to $15,450.00.[7] *7 The Court next briefly addresses Plaintiff's request for default judgment as a sanction for Defendants' “relentless disregard for their discovery obligations” and their “flagrant violation of the sanctions order.” (See Motion to Overrule Objections, Doc. 173 at 11-15.) In her brief, Plaintiff outlines a series of serious discovery and procedural violations — from failure to respond to discovery requests for months to failure to pay the December 2021 sanctions order based on “misunderstandings,” even after having been advised of the proper way to seek a stay of the sanctions order. The violations discussed in Plaintiff's motion are serious ones that demonstrate Defendant's a lack of respect for opposing counsel, this Court, and the rules themselves. That said, the Court finds that the above-mentioned improper conduct has already been adequately addressed by the Magistrate Judge and this Court in the form of the sanctions that have so far been imposed. As to the series of discovery violations that Plaintiff raises, the Magistrate Judge addressed those arguments in her orders granting Plaintiff's motion to compel and awarding corresponding sanctions. (Docs. 118, 132.) This Court has, in this Order, upheld the majority of this sanction award, for a total of $38,998.78. Similarly, Defendants' disregard for their obligations to comply with the December 2021 sanctions order has been addressed by the Magistrate Judge and by this Court upon review. Defendants have been ordered to pay an additional $15,450.00 for this violation. The Court believes that these serious sanctions sufficiently compensate Plaintiff for harm incurred and that no further measures are required. However, Defendants are cautioned that the Court will not tolerate this litigation conduct going forward. The lawyer who claims to be “misguided” can only claim this so many times before it is apparent that the conduct is in fact entirely intentional. At this stage, Plaintiff's request that the Court hold Defendants in contempt or enter default judgment against Defendants is denied. III. Conclusion For the reasons articulated in this order, the Magistrate Judge's Non-Final Report and Recommendation is ADOPTED IN PART AND OVERRULED IN PART [Doc 162]. Plaintiff's Motion for Contempt and Sanctions [Doc. 147] is GRANTED IN PART AND DENIED IN PART. Based on the parties' notices of compliance, the Court understands that the $22,918.86 for the fees associated with Plaintiff's briefing of the motion to compel was paid on July 20, 2022 (Docs. 177, 178). Defendants are ORDERED to pay the remaining sanctions amounts identified below within 14 days of the date of this order, by August 9, 2022: • $16,079.92 for the fees associated with the document review connected with Plaintiff's motion to compel that was required in response to Defendants' discovery misconduct; and • $15,450.00 for Defendants' bad-faith failure to comply with an order of this Court in failing to pay the prior sanctions award. To be crystal clear, Defendants are ORDERED to pay Plaintiff's counsel this amount of $31,529.92 by August 9, 2022. Defendants are DIRECTED to file a notice of compliance with this order upon transmitting the funds and Plaintiff is DIRECTED to file a notice upon receipt of the funds. A failure by Defendants to pay these sanctions within the ordered 14-day period will result in Defendants being held in contempt, absent extraordinary circumstances. The Clerk is DIRECTED to vacate the judgment entered on January 3, 2022 [Doc. 133]. IT IS SO ORDERED this 26th day of July 2022. Footnotes [1] Although Plaintiff sought more serious sanctions including default judgment, which would be considered dispositive, the critical issue is “what sanction the magistrate judge actually imposes, rather than the one requested by the party seeking sanctions.” See WRIGHT & MILLER, Magistrate Judge Handling of Matters Other Than Trial—Dispositive and Nondispositive Matters, 12 Fed. Prac. & Proc. Civ. § 3068.2 (3d ed.) (citing Phinney v. Wentworth Douglas Hosp., 1991 F.3d 1 (1st Cir. 1999); and Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995)). The Magistrate Judge did not recommend default judgment here. [2] Defendants further contend that, upon receipt of the 22,000 documents, Plaintiff's counsel should have withdrawn the motion to compel or held the motion in abeyance pending counsel's document review. (Id.) [3] Defendants' failure to produce a privilege log was raised in the motion to compel. But this failure was not a basis for the Magistrate Judge's issuance of sanctions. Further, the lack of a privilege log only demonstrates why Plaintiff's counsel's review of confidentiality designations was arguably premature, as Plaintiff's counsel would have to review the confidentiality designations again after receiving a privilege log that included the basis for the confidentiality or privilege designation. [4] The Court notes that Defendants' objections to the R&R's denial of reconsideration were timely filed with the Court within 14 days of the issuance of the R&R. [5] The mediation was unsuccessful. (See Plaintiff's Motion to Overrule Objections, Doc. 173 at n.7.) However, the parties have since filed a joint statement advising that they are continuing their mediation efforts and are in the process of scheduling another mediation session. (Doc. 175.) [6] As noted in the R&R, Defendants have made no argument that they are unable to pay the sanctions amount. Additionally, Defendants did not offer to pay the sanction to the Court's registry pending the Magistrate Judge's ruling on their motion for reconsideration. [7] While the Court does reduce the fees to exclude those not connected to, or caused by, Defendants' misconduct, the Court will not reduce the fees because Plaintiff's counsel allegedly failed to alert Defendants that they were filing a motion for contempt, as Defendants request. Defendants' counsel did not inform Plaintiff's counsel that they were not planning on paying the sanctions amount by the deadline set by the Magistrate Judge's Order. Moreover, Plaintiff's counsel has consistently communicated with Defendants regarding alleged discovery violations and deficiencies. Nevertheless, Court intervention has still been necessary. Defendants' argument on this front is not well taken.