Debra BUCKOSH, Plaintiff, v. BONDED FILTER COMPANY, LLC, et al., Defendants Case No. 1:21CV975 United States District Court, N.D. Ohio, Eastern Division Signed January 12, 2022 Counsel Stephen W. Gard, Orville E. Stifel, II, Cleveland, OH, for Plaintiff. Andrew J. Dorman, Reminger Co., Cleveland, OH, Jacalena M. Jewell, Columbus, OH, for Defendants. Baughman Jr., William H., United States Magistrate Judge ORDER RE PLAINTIFF'S SECOND MOTION FOR SANCTIONS AND THIRD MOTION TO COMPEL I. *1 This case involves gender discrimination in the workplace. In the short time since April 6, 2021 when plaintiff Debra Buckosh began this case in state court,[1] however, the parties and their counsel appear to have been more interested in litigating discovery disputes than the actual legal claims. On January 10, 2022, Buckosh filed her second motion for sanctions and third motion to compel the production of documents by defendant Bonded Filter Company, LLC.[2] The next day, the District Judge referred this motion to me to decide.[3] Buckosh already obtained sanctions against BFC a month ago involving deposition discovery.[4] That same order, though, also granted in part BFC's motion to compel and for sanctions.[5] In short, both sides have come out swinging. Both sides’ bombastic, hyperbolic language suggests they've been itching for a fight for a rather long time. There's another similarity: neither side comes to this discovery dispute with clean hands. The federal rules and the Court's local rules governing discovery tolerate this approach to litigating discovery disputes for only so long. With those rules as my guide, I deny Buckosh's motion at this time. In so doing, I discourage the parties from engaging in this approach to discovery in the future. II. On December 23, 2021, the District Judge adjudicated an earlier motion by Buckosh to compel the production of documents.[6] In granting that motion in part, the District Judge ordered that BFC “must produce the required supplemental documents by January 7, 2022”[7] and “complete supplemental production by January 7, 2022.”[8] Buckosh claims BFC failed to comply with this deadline. On January 7th, BFC delivered to Buckosh's lawyers 700 pages of documents.[9] Shortly after 6 p.m. that day, BFC's lead lawyer sent Buckosh's lead lawyer an email. In it, she explained that BFC had made that supplemental document production “under the Court's December 23, 2021 order.”[10] She went on to explain the following: Our client transferred to us today the electronic communications from the 13 custodians. We need to do a privilege search and anticipate producing those documents to you by Friday, January 14, 2022. Our client is also still in the process of culling the sales contracts and other sales data you requested. That information will also be available to you for inspection under Rule 34(a)(1) next week. Please let me know some dates and times you are available to come to our office.[11] Buckosh argues that her lawyers shouldn't have to inspect the responsive documents at opposing counsel's offices, especially during a pandemic and given the purported ease by which BFC could instead electronically transfer those documents in digital format.[12] BFC in turn claims “[d]efendants are producing this voluminous production as fast as humanly possible.”[13] BFC adds that it will be producing the remaining documents “before January 14, 2022.”[14] *2 Our Court's local rules give litigants the following admonition as the very first rule governing discovery: The parties are encouraged to cooperate with each other in arranging and conducting discovery, including discovery involved in any ADR program. Discovery must be conducted according to limitations established at the Case Management Conference and confirmed in the Case Management Plan. Absent leave of court, the parties have no authority to modify the limitations placed on discovery by court order. Attorneys serving discovery requests must review them to ascertain that they are applicable to the facts and contentions of the particular case. Form discovery pleadings containing requests that are irrelevant to the facts and contentions of the particular case must not be used.[15] This directive appears to be wishful thinking in this case—at least thus far. But the parties’ refusal to read court orders or local rules does not change the law that governs discovery. A party responding to production requests can do so by making the responsive documents available for inspection or by producing the actual materials, including those in electronic format. “The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection.”[16] Accordingly, I reject Buckosh's argument that the law requires BFC to deliver responsive documents to her lawyers rather than allow for inspection at the offices of BFC's lawyers. But regardless of the format the producing party chooses, that party must still comply with deadlines set by the Court. And the District Judge's order set forth the January 7th deadline not once but twice. BFC asks to be excused from this deadline at least for the responsive documents it will be producing this week. Its reasons include unexpectedly long transfer times when client representatives electronically sent responsive materials to their lawyers, a six-day company shutdown for the recent holidays, and the time it takes to organize the client materials, conduct a privilege search, and prepare the documents for production.[17] No one questions the voluminous nature of the discovery at issue.[18] But to say that discovery involving less than 100 gigabytes of data requires non-compliance with court deadlines because of its burdensomeness should fall on deaf ears in a district where for years cases have been litigated involving multiple terabytes of discovery.[19] No one questions the burdensomeness of the document production. But that doesn't excuse untimely production. “At the very least, where a party claims burdensomeness, it must explain why that is so. It should also propose alternatives, if such might be possible, that could enable some degree of production. Where a party explains the difficulties that compliance would create, the requesting party must be heedful, and not simply knee-jerk dismissive of those explanations.”[20] *3 Buckosh wants sanctions in light of the defendants’ “multiple and multifaceted failures.”[21] At worst, BFC's lawyers badly mismanaged the production burden by underestimating the time needed to respond completely to the production request and to be entirely in compliance with the deadline the District Judge set. If they had planned appropriately on December 23rd when the District Judge set the deadline, BFC's lawyers would have realized that production compliance would be difficult to achieve if the necessary client representatives were unavailable for six of the 14 days that remained in the production window. At worst, Buckosh will receive a portion of the responsive materials less than a week late. Fed. R. Civ. P. 37(d)(3) provides a legal basis for the sanctions Buckosh seeks. Even this rule, however, describes situations of noncompliance that nevertheless do not warrant sanctions. (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.[22] The defendants’ lawyers and their clients didn't plan ahead in mapping out a strategy for making the supplemental document production in a timely fashion. That the lawyers struggled and then failed to meet the January 7th deadline for the entire supplemental production was predictable. I have no reason, though, to question their good-faith efforts in trying to produce all the supplemental documents in a timely fashion. Moreover, Buckosh provides no reasons to suggest that her position in this litigation is harmed or prejudiced in any way because she received only a portion of the responsive materials on the deadline and will receive the remaining responsive materials later this week. In light of these facts, I find that an award of expenses at this time for BFC's failure to produce on January 7th the entire group of responsive supplemental documents would be unjust. BFC's mismanagement of the most recent production effort could have been avoided, or at least mitigated, had the parties diligently sought a protective order— perhaps instead of calling each other out on discovery lapses. In September 2021, the parties spent time drafting a stipulated protective order, but apparently failed to see to it that it was entered as an order in this case.[23] Now it is.[24] BFC correctly observes that document review and production are more tedious and time-consuming without a protective order.[25] With a protective order now in place, the parties are urged to use it prudently and efficiently. It is far easier, less time-consuming, and less expensive for the parties to have documents produced under the appropriate protections of a protective order and holding off voicing objections until the documents are actually used in motion practice or at trial rather than to voice objections before the production ever occurs. If the document so produced never gets used and remains protected, then the objection never needs to be voiced—and the accompanying delay and expense are avoided. Furthermore, the parties are encouraged to use portable large-capacity data storage devices for transferring voluminous document productions. BFC is correct to note that the discovery deadline is still more than a month away.[26] That probably means further document productions and other discovery. Should discovery continue beyond the current kerfuffle, no party should be heard to complain that less than 100 gigabytes of data took a long to time transfer when a small portable hard drive with two terabytes or more of capacity (over 2,000 gigabytes) can be purchased online for less than the cost of one hour of a lawyer's time, be quickly loaded with responsive materials, and then be hand-delivered to an opposing party. *4 The Supreme Court adopted amendments to the federal discovery rules a decade and a half ago to recognize the prevalence of electronically stored information and (then) new digital technologies.[27] One of the assumptions underlying these and subsequent amendments is that lawyers would use technology to lessen the burden and the cost of discovery.[28] The parties and the lawyers in this case are urged to take that assumption to heart to avoid discovery disputes like this one in the future. III. The parties have a long way to go in this litigation. Getting sidetracked on discovery disputes is sometimes unavoidable. But getting sidetracked requires the parties to get back on track with the aim of either settling their dispute or presenting it at trial. With a protective order in place and the practical suggestions above, the parties and their lawyers on both sides can hopefully get this case back on track. Accordingly, for the foregoing reasons, it is hereby ORDERED that Buckosh's second motion for sanctions and her third motion to compel[29] is denied. IT IS SO ORDERED. Footnotes [1] ECF #1-1. [2] ECF #47. [3] ECF #49. [4] ECF #31. [5] ECF #22. [6] ECF #38. [7] ECF #45, at 7. [8] Id. at 9. [9] ECF #50, at 2. [10] ECF #47-1, at 1. [11] Id. (emphasis added). [12] ECF #47, at 2. [13] ECF #50, at 1. [14] Id. at 2 (emphasis added). [15] L.R. 26.1. [16] Fed. R. Civ. P. 34(b)(2)(B). [17] ECF #50, at 1-2. [18] See https://www.cmd-ltd.com/advice-centre/usb-chargers-and-power-modules/usb-and-power-module-product-he..., last accessed on 1/11/2022 (providing data size comparisons and transfer times). [19] See, e.g., United States v. Dimora, 843 F. Supp. 2d 799, 819 (N.D. Ohio 2012); United States v. Farmer, No. 1:14CR362, 2015 WL 4661370, at *2 (N.D. Ohio Aug. 5, 2015); United States v. Clark, slip op., Case No. 1:19CR148 (N.D. Ohio May 14, 2019); In re: National Prescription Opiate Litigation (N.D. Ohio). [20] In re Heparin Prod. Liab. Litig., 273 F.R.D. 399, 411 (N.D. Ohio 2011). [21] ECF #47, at 4. [22] Fed. R. Civ. P. 37(d)(3). [23] ECF #17. [24] ECF #51. [25] ECF #50, at 2. [26] ECF #14, at 1. [27] See Rule 26, Committee Notes to 2006 Amendment. [28] See Rule 26, Committee Notes to 2015 Amendment (adding a proportionality component to discovery). [29] ECF #47.