ADAMS BAYOU MARINE MANAGEMENT COMPANY, LLC, Plaintiff, v. DOUBLE CHINE, LLC, Defendant, v. MARY E. SNEED FAMILY TRUST, et al., Third-party Defendants CIVIL ACTION NO. 1:23-CV-84-MJT-CLS United States District Court, E.D. Texas, Beaumont Division Filed November 26, 2024 Stetson, Christine L., United States Magistrate Judge ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR DISCOVERY SANCTIONS (Doc. #37) *1 Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to United States Magistrate Judges, the district court referred Defendant Double Chine, LLC's Motion for Discovery Sanctions (docs. #37, #38) to the undersigned magistrate judge for consideration and disposition. After review, the court will DENY in part and GRANT in part the motion.[1] I. Background In this diversity action, the parties dispute ownership of a 2.073-acre tract of land in Orange County, Texas (the “Property”). On February 28, 2023, Plaintiff Adams Bayou Marine Management Company, LLC (“Adams Bayou”) filed this lawsuit against Defendant Double Chine, LLC (“Double Chine”), bringing a claim of trespass to try title based on theories of adverse possession and superior record title. (Doc. #1.) Mr. Chester Slay is the sole manager of Adams Bayou. (Id., ¶ 6.) Double Chine filed an answer on March 30, 2023. (Doc. #3.) The next day, March 31, 2023, the court entered an Order Setting Civil Action for Rule 16 Management Conference. (Doc. #4.) The order required the parties to conduct their Rule 26(f) attorney conference on or before April 18, 2023, and to complete their initial mandatory disclosures no later than ten days after that conference was held. (Id. at 1.) The parties' initial mandatory disclosures had to include “a[ ] copy of all other documents, electronically stored information, witness statements, and tangible things in the possession, custody, or control of the disclosing party that are relevant to a claim or defense of any party.” (Id. at 2.) The parties were also ordered to produce “[t]he name and, if known, the address and telephone number of persons having knowledge of facts relevant to a claim or defense of any party, a brief characterization of their connection to the case[,] and a fair summary of the substance of the information known by such person.” (Id.) The order also advised the parties that “[t]he fact that the Scheduling Order will have a deadline for completion of discovery is NOT an invitation, or authorization, to withhold documents or information required to be disclosed as part of initial mandatory disclosures, under the guise of ‘supplementation.’ ” (Id. at 3.) The parties were referred to Local Rule CV-26(d) for the meaning of “relevant to the claim or defense of any party” and the order further advised them that “[a] party that fails to timely disclose such information will not, unless such failure is harmless, be permitted to use such evidence at trial, at a hearing, or in support of a motion.” (Id.) Nor were the parties “excused from making its disclosures because it ha[d] not fully completed its investigation of the case.” (Id.) On May 17, 2023, Adams Bayou served its initial mandatory disclosures to Double Chine and certified that it had “produc[ed] a copy of all non-privileged documents.” (Docs. #37 at 4 & n.3, #37-2 at 3.) *2 On June 6, 2023, the court entered the Scheduling Order. (Doc. #12.) The order required the parties to complete discovery by March 11, 2024. (Id. at 2.) The order also informed the parties that “[f]ailure to comply with [the] relevant provisions of the Local Rules, the Federal Rules of Civil Procedure, or this Order may result in the exclusion of evidence at trial, the imposition of sanctions by the court, or both.”[2] (Id. at 4.) On July 20, 2023, Double Chine filed a third-party complaint against the Mary E. Sneed Family Trust and other third-party defendants to quiet title on the Property. (Doc. #13.) According to Double Chine, “[t]he parties' discovery dispute began shortly after Double Chine deposed Mr. Slay in December 2023.” (Doc. #37 at 4.) On January 18, 2024, Double Chine sent Adams Bayou a “deficiency letter” “to request supplemental discovery .... Mr. Slay's December 19, 2023[,] deposition made clear that [Adams Bayou's] discovery responses are deficient in a number of ways.” (Docs. #37 at 4 & n.3, #37-3 at 1.) Double Chine “identified 40 categories of information ... that remained outstanding.” (Doc. #37 at 4–5); see (doc. #37-3.) On March 1, 2024, Adams Bayou produced its first supplemental discovery to Double Chine. (Docs. #37 at 5, #37-4.) Several weeks later on March 20, 2024, Double Chine sent Adams Bayou a second “deficiency letter identifying 34 categories of outstanding information” “[b]ased on [its] review of [Adams Bayou's] March 1[st] supplemental production.” (Docs. #37 at 5, #37-5 at 1.) Pursuant to Federal Rule of Civil Procedure 34, Double Chine also requested an in-person inspection “of the documents produced by [Adams Bayou] to date.” (Doc. #37-5 at 5.) The parties' counsel also met and conferred on March 20, 2024. (Doc. #37 at 5.) Double Chine alleges that it informed Adams Bayou that it believed Mr. Slay “was withholding documents,” “produced documents that intentionally obscured” Mr. Slay's relationship with Shine & Associates,[3] and “that certain documents had been altered by Mr. Slay.” (Id. at 5–6.) Adams Bayou made two additional supplemental discovery productions on March 29, 2024, and April 3, 2024, respectively. (Docs. 37 at 6, #37-6, #37-7.) The parties were set to meet and confer again on June 4, 2024, but counsel for Adams Bayou cancelled and “offered to make Mr. Slay available for a supplemental deposition.” (Doc. #37 at 6.) Double Chine declined the offer and informed counsel for Adams Bayou that it would move for discovery sanctions. (Docs. #37 at 6, #37-8.) On June 20, 2024, Double Chine filed the instant motion, seeking dismissal of Adams Bayou's claims with prejudice—known as death-penalty sanctions—and reasonable expenses, including attorney's fees. (Doc. #37 at 19–20.) Double Chine also requested a stay of the deadlines in the First Amended Scheduling Order. (Id. at 20.) On June 27, 2024, Sneed Family Trust filed a response to Double Chine's motion. (Doc. #39.) On July 9, 2024, the court struck Double Chine's request for a stay as improperly filed under Local Rule CV-7(a) and set an evidentiary hearing on the sanctions motion for August 6, 2024. (Doc. #41.) Double Chine properly filed a request for a stay the next day, styled as a Motion to Stay Discovery. (Doc. #42.) On August 1, 2024, the parties filed an Agreed Motion For Continuance of the August 6, 2024, evidentiary hearing because Adams Bayou's “primary witness ... [Mr.] Slay” began “experiencing significant health issues.” (Doc. #44 at 2.) By text order, the court continued the hearing until September 5, 2024, and entered a second order requiring Adams Bayou to respond to Double Chine's sanctions motion no later than August 16, 2024. (Doc. #46.) *3 On August 12, 2024, Adams Bayou filed an Opposed Motion for Continuance and Amended Scheduling Order, citing Mr. Slay's “significant health issues” as grounds to continue the evidentiary hearing a second time, push back its time to respond to the sanctions motion, and postpone the trial setting for an unspecified time. (Doc. #49.) Double Chine and Sneed Family Trust filed responses that same day. (Docs. #50, #51.) After reviewing the pleadings, the court granted the continuance with respect to Double Chine's sanctions motion (doc. #37), and ordered that Adams Bayou's Opposed Motion for Continuance and Amended Scheduling Order (doc. #49) and Double Chine's Motion to Stay Discovery (doc. #42) be discussed at the September 5, 2024, hearing. (Doc. #54 at 1.) The court also ordered counsel for Adams Bayou to bring to the hearing Mr. Slay's most recent medical records for in camera review, along with a statement from his treating physician attesting to an approximate date by which Mr. Slay, and by extension Adams Bayou, could effectively participate in the lawsuit. (Id. at 2.) At the September 5, 2024, hearing, each party made an appearance through counsel. After reviewing Mr. Slay's medical records and hearing argument from counsel, the court entered an order on September 9, 2024, granting Double Chine's Motion to Stay Discovery (doc. #42), setting an evidentiary hearing on Double Chine's Motion for Discovery Sanctions (doc. #37) for October 17, 2024, and requiring Adams Bayou to file its response, including an affidavit from Mr. Slay, no later than October 7, 2024. (Doc. #57 at 1.) The court also ordered that Adams Bayou's Opposed Motion for Continuance and Amended Scheduling Order (doc. #49) be held in abeyance.[4] (Doc. #57 at 1–2.) By text order on September 16, 2024, the court rescheduled the hearing on the sanctions motion for October 21, 2024. On October 7, 2024, Adams Bayou filed its response, and Double Chine and Sneed Family Trust have each filed a reply. (Docs. #58, #59, #60.) On October 21, 2024, the court conducted an evidentiary hearing on the sanctions motion, with each party making an appearance by counsel and offering their respective arguments.[5] Double Chine's Motion for Discovery Sanctions (doc. #37) is finally ripe for review. II. Legal Standard Federal courts “have broad discretion to impose sanctions for discovery conduct.” Williams v. Am. Honda Motor Co., No. 6:20-CV-00022, 2022 WL 1071463, at *1 (E.D. Tex. Apr. 8, 2022) (citing Smith & Fuller, P.A v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012)). Rule 37(b)(2)(A) allows for sanctions when a party “fails to obey an order to provide or permit discovery.”[6] FED. R. CIV. P. 37(b)(2)(A). The Fifth Circuit has broadly interpreted Rule 37 so as to not limit the imposition of sanctions to instances where a party fails to obey a court order, such as a motion to compel. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (“[A]n order is not always a prerequisite to the imposition of sanctions. Courts have held that [R]ule 37(b) sanctions can be imposed even without an existing order to compel.”). *4 Rather, “where a party has received adequate notice that certain discovery proceedings are to occur by a specific date, and that party fails to comply, a court may impose sanctions without a formal motion to compel the discovery from the opposing party.” Id. (quoting Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469, 472 (7th Cir. 1984)). Thus, “a court may issue discovery sanctions for violating Rule 16 scheduling orders.” Williams, 2022 WL 1071463, at *1 (citing id.); see also Hanan v. Crete Carrier Corp., No. 3:19-CV-0149-B, 2020 WL 1692952, at *2 (N.D. Tex. Apr. 7, 2020) (“If a party fails to obey a court's [Rule 16] scheduling order, [o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii).”) (quotation mark omitted) (citing FED. R. CIV. P. 16(f)(1)). A plain reading of Rule 16(f)(1) supports this view as well. See FED. R. CIV. P. 16(f)(1). As the movant, Double Chine bears “the burden to show that sanctions are warranted.” ReSea Project ApS v. Restoring Integrity To the Oceans, Inc., No. SA-21-CV-1132-JKP, 2022 WL 17724419, at *7 (W.D. Tex. Dec. 15, 2022) (citing Ford v. Lee, 137 F.3d 1351, 1351 (5th Cir. 1998) (per curiam)). A party's discovery misconduct may result in a “litigation-ending sanction,” such as dismissal or a default judgment. Williams, 2022 WL 1071463, at *2 (citing Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019)); see also CEATS, Inc. v. TicketNetwork, Inc., 71 F.4th 314, 324 (5th Cir. 2023) (“Dismissals with prejudice and default judgments are both litigation-ending.”) (citations omitted). The Fifth Circuit “imposes a heighte[ne]d standard for litigation-ending sanctions.” Law Funder, L.L.C., 924 F.3d at 758. For lesser sanctions, the district court must “determine [that] the sanctions are ‘just’ and ‘related to the particular claim’ which was at issue in the order to provide discovery.” Id. (quoting Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 413 (5th Cir. 2004)). The court must make four additional findings to order a litigation-ending sanction: “(1) the discovery violation was committed willfully or in bad faith; (2) the client, rather than counsel, is responsible for the violation; (3) the violation ‘substantially prejudice[d] the opposing party’; and (4) a lesser sanction would not ‘substantially achieve the desired deterrent effect.’ ” Id. (quoting FDIC v. Conner, 20 F.3d 1376, 1380–81 (5th Cir. 1994)). Even if the four Connor factors are met, courts “have a duty to impose the least severe sanction adequate to achieve the desired result’ and the ‘harsh sanction of dismissal is not favored except in extreme circumstances.” MCP Int'l, LLC v. Formula Four Beverages, Inc., No. CV 20-3440-WBV-DMD, 2022 WL 2339793, at *3 (E.D. La. June 29, 2022) (citations omitted); see also Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1988) (“The discretion of a federal district court to impose sanctions under Rule 37(b)(2) is broad but not unlimited. We have repeatedly emphasized that a dismissal with prejudice is a ‘draconian’ remedy, or a ‘remedy of the last resort.’ ”) (citations omitted). Rule 37(b)(2)(C) states that “in addition to the orders [described under Rule 37(b)(2)(A)], the court must order the disobedient party, 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.” FED. R. CIV. P. 37(b)(2)(C). A party's discovery conduct “is found to be substantially justified under Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” Dexon Computer, Inc. v. Cisco Sys., Inc., No. 5:22-CV-53-RWS-JBB, 2023 WL 9645470, at *2 (E.D. Tex. June 2, 2023) (citation omitted). “The burden rests on the party who failed to comply with the order to show that an award of attorney's fees would be unjust or that the opposing party's position was substantially justified.” Id. (citation omitted). When a court “awards attorney fees as part of a sanction under Rule 37, it generally still must use the familiar two-step lodestar process.” CEATS, Inc., 71 F.4th at 326 (citing Tollett v. City of Kemah, 285 F.3d 357, 367 (5th Cir. 2002)). III. Discussion A. Adams Bayou's Alleged Willfulness and Bad Faith *5 Double Chine presents four examples of willful discovery misconduct committed by Adams Bayou. (Doc. #37 at 6–14, 15–17.) Before examining each in turn, the court will address a couple of Double Chine's citations to Mr. Slay's deposition testimony. Double Chine first refers to Mr. Slay's statement that he “provided Double [C]hine with ‘everything that [it] asked for that ... [Mr. Slay has].” (Id. at 6 (citing doc. #37-1 at 26).) This was in response to Double Chine's question, “What have you done to prepare for your deposition today?” (Doc. #37-1 at 26.) Mr. Slay's complete response was: “Well, I've reviewed 20 years' worth of records. We have been through three hurricanes and the Deweyville floods, and I had records deposited at several places. We had to bring all those together. So I have gone over those records as much as I know how to go over them; and I've provided you with, I think, everything that – that you've asked for that – that I have.” (Id.) Next, Double Chine provides, this time completely, Mr. Slay's acknowledgement that his discovery was “not complete,” but that it is his “hope to be able to give [Double Chine] more. I don't know if we're going to be able to get it.” (Id. at 150.) Double Chine does not explain the significance of this deposition testimony, except to generally claim that it is evidence that Adams Bayou has purposefully withheld discovery. (Doc. #37 at 6.) The court will consider Mr. Slay's testimony to be his sworn understanding of his discovery obligations pursuant to the court's Rule 16 Order (doc. #4) and the then-operative Scheduling Order (doc. #12). 1. Withholding of Documents Double Chine claims that Adams Bayou has “intentionally withheld responsive information throughout the discovery process.” (Id.) Adams Bayou has purportedly failed to turn over “a police report” and “pictures of the ‘great big pile.’ ” (Id. at 7.) As for the police report, Mr. Slay testified that he made a police report after “the jerk next door pushed all the scrap steel in front of my bridge.” (Doc. #37-1 at 62.) Upon request during the deposition, Mr. Slay further testified that he would get a copy for Double Chine as he did not have one at that time. (Id. at 63.) Besides not explaining the relevance of the report, Double Chine has not responded to Adams Bayou's claim that Mr. Slay “has not been able to” retrieve a copy of the report,” and therefore cannot produce it. (Doc. #58 at 7.) With respect to the “pictures of the ‘great big pile,’ ” Double Chine has not responded to Adams Bayou's claim that Mr. Slay has produced the photographs “after diligently searching for [them] and f[inding] them.” (Docs. #58 at 7, #60.) The court cannot consider litigation-ending sanctions appropriate if a party does not produce a document it does not possess or documents it ultimately produces, albeit late. Double Chine also alleges that Mr. Slay withheld what it calls “the Shine records.” (Doc. #37 at 7, #60 at 2–3.) These records appear to relate to a survey of the Property conducted by Shine & Associates at Mr. Slay's request. (Doc. #37 at 8.) Double Chine references Mr. Slay's testimony that “he didn't know have any idea when he started working with [Shine & Associates] on this .... We – we'll get it for you from the – Shine [& Associates]. They keep pretty tight records.” (Id. at 51.) Adams Bayou responds that both it and Double Chine received “the Shine records” on March 1, 2024, with Adams Bayou “formally produc[ing] the documents” to Double Chine eight days later. (Doc. #58 at 7.) It is troubling, however, that Double Chine had to “independently contact[ ]” Shine & Associates to get these records. (Doc. #60 at 2.) The court agrees with Double Chine that because these documents contain “many communications to and from Mr. Slay's email address,” and were therefore “under Mr. Slay's control[ ],” they “should have been produced well before.” (Id. at 3.) Adams Bayou has been required to disclose all relevant discovery within its possession, custody, and control since March 31, 2023. (Docs. #4, #12, #30.) Mr. Slay's deposition testimony also reflects his understanding of the relevancy of the Shine records. Adams Bayou's explanation at the October 21, 2024, hearing that Mr. Slay no longer possesses or has access to the relevant laptop computer—an explanation apparently offered for the first time in the year-and-a-half since the court entered its Rule 16 Order—is, at best, unconvincing.[7] Nor does it explain why Adams Bayou could not have sought out this information from Shine & Associates “well before” Double Chine had to do so itself. As the dust settles, Double Chine possesses “the Shine records,” but the court finds Adams Bayou's failure to timely produce them a willful violation of the court's Rule 16 Order (doc. #4) and then-operative Scheduling Order (doc. #12). 2. Mr. Slay's Inaccurate Deposition Testimony *6 Double Chine claims that Mr. Slay “provided inaccurate testimony about several material issues.” (Doc. #37 at 15.) The court has reviewed all the evidence cited by Double Chine in support of this allegation, namely Mr. Slay's deposition testimony, Mr. Joe Mattox's affidavit, and the records from Shine & Associates. (Docs. #37-1 at 50–52, 112–14, 119–21, 169–71, 216–18, #37-6 at 5–11, 31, #37-10, ¶¶ 7, 10.) Double Chine is essentially asking the court to dismiss Adams Bayou's case with prejudice based on premature credibility determinations. One can only arrive at the conclusion that Mr. Slay made “inaccurate or misleading statements” by crediting Double Chine's witnesses over those of Adams Bayou. (Doc. #37 at 7.) Under these circumstances, this is not sanctionable conduct and certainly does not call for the death penalty under Rule 37. 3. Suspicious Documents Next, Double Chine claims that Adams Bayou has produced “several documents that appear fabricated.” (Id. at 8.) It identifies five documents that “include[ ] suspicious lines suggesting that information on th[ese] document[s] originated from other sources.” (Id. at 8–12 (citing doc. #37-9 at 123, 138, 212, 276, 354, 492).) Double Chine also claims that other documents “appear[ ] to have been altered to intentionally omit information” and that “sticky note[s] ... obscure[ ] portions of the text.” (Id. at 10, 12 & n.7 (citing doc. #37-9 at 143, 197, 248, 256, 258, 419, 552, 564, 641).) Here, the issue is that Double Chine's accusations are wholly speculative—the documents “appear fabricated” and “suggest[ ]” impropriety. (Id. at 8 12.) As alleged, Double Chine's conjecture cannot carry its “burden to show that sanctions are warranted,” especially litigation-ending penalties. ReSea Project ApS, 2022 WL 17724419, at *7. The court appreciates Double Chine's adversarial stance as the defendant in this case, but its skepticism is best channeled by deposing Mr. Slay a second time on the nature of these documents. This will allow Double Chine to develop a fuller record upon which it may later present its claims in the appropriate procedural vehicle. Double Chine points to Mr. Slay's testimony “that he copied and pasted information in his September 2022 deed to Adams Bayou” to account for the allegedly fraudulent documents described above. (Id. at 17.) But Double Chine does not explain why this instance of Mr. Slay's alleged behavior is itself indicative of sanctionable conduct. See (id.) The mere act of copying and pasting information, without anything more, does not necessarily imply misconduct. It certainly does not leaven Double Chine's unadorned claims of manipulated paperwork. Double Chine also alleges that Adams Bayou “has manufactured evidence to corroborate elements of Adams Bayou's adverse possession claim.” (Id. at 13.) First, Double Chine takes issue with three affidavits produced by Adams Bayou because they were produced after Mr. Slay's December 2023 deposition, wherein he “failed to name any of the third parties that submitted statements as people who could corroborate that he's held himself out as the true owner” of the Property. (Id.) Adams Bayou responds that the affidavits were not produced in time for Mr. Slay's deposition because they did not “exist[ ] in December 2023,” citing the signature dates of the affidavits. (Doc. #58 at 9–11.) In his affidavit, Mr. Slay explains that “[i]n the weeks and months following that deposition, I spoke with several individuals who have knowledge of my ownership of [the Property] and obtained affidavits from those individuals.” (Doc. #58-1 at 1.) Mr. Slay and Adams Bayou are missing the point. The relevant concern is why Adams Bayou and Mr. Slay did not become aware of these individuals “with knowledge of relevant facts” during the “weeks and months” before his deposition occurred in December 2023. (Doc. #58 at 11.) The court's March 31, 2023, Rule 16 Order required Adams Bayou to disclose as part of its initial mandatory disclosures “a[ ] copy of all other documents, electronically stored information, witness statements, and tangible things in the possession, custody, or control of the disclosing party that are relevant to a claim or defense of any party.” (Doc. #4 at 2.) It also required disclosure of the “[t]he name and, if known, the address and telephone number of persons having knowledge of facts relevant to a claim or defense of any party, a brief characterization of their connection to the case[,] and a fair summary” of the substance of the information known by such person.” (Id.) Failure to “fully complete[ ] its investigation of the case” was no excuse. (Id.) *7 Tellingly, Adams Bayou does not explain why it could or did not disclose these three witnesses in its initial mandatory disclosures or prior to Mr. Slay's deposition. See (doc. #58 at 9–12.) But inferring from Adams Bayou's foot-dragging or undue diligence that it manufactured these witnesses and affidavits, as Double Chine does, is not reasonable at this time. Nonetheless, Adams Bayou's unexplained lack of diligence will be considered a willful violation of the court's orders (docs. #4, #12), which the undesigned will consider in recommending the appropriate sanction. Double Chine also points to three invoices that Chambers Marine Management, LLC—a separate entity managed by Mr. Slay—mailed to Muddy Water Dredging, LLC—a distinct entity operated by Double Chine's manager—for “dredge pipe storage on the [Property] between January and April 2024.” (Docs. #37 at 13, #37-11.) Double Chine argues that “[t]hese self-serving ... invoices appear manufactured to create fact issues to defeat summary judgment.” (Doc. #37 at 13.) The only support for this allegation is Double Chine's speculation based on Mr. Slay mailing the invoices after his December 2023 deposition. Of course, it does not help that Adams Bayou has not addressed the invoices in its response here. See (doc. #58.) Taken alone, temporality does not persuade the court that the invoices demonstrate sanctionable conduct, especially when it is reasonably surmisable that Mr. Slay mailed the invoices when he did because the charged “storage” occurred at the times specified in them. See (doc. #37-11 at 3–5.) Rather than dismissing Adams Bayou's case with prejudice, this is yet another issue better addressed by Double Chine deposing Mr. Slay a second time. 4. Documents Produced in Inaccessible Formats Lastly, Double Chine accuses Adams Bayou of not producing “documents in a reasonably usable form,” but instead in “non-searchable photocopies of physical documents with no metadata.[ ]” (Doc. #37 at 14.) Adams Bayou did not respond to this accusation in its briefing and unpersuasively argued at the October 21, 2024, hearing that Mr. Slay no longer has digital access to the disputed physical documents. Coupling Double Chine's stated concerns over Adams Bayou's discovery documents with the Local Rule's expansive definition of “relevant to the claim or defense of any party,” the metadata information is clearly relevant, discoverable material that Mr. Slay and Adams Bayou must turn over to Double Chine. See E.D. TEX. LOC. R. CV-26(d). Moreover, the parties agreed in their Rule 26(f) Joint Conference Report “to produce discovery in searchable .PDF format.” (Doc. #11, ¶ 8.) The court finds Adams Bayou's failure to provide its discovery production in searchable PDF format with the concomitant metadata, or an adequate explanation for why it could not, as a willful violation of the court's orders. (Docs. #4, #12.) In conclusion, the court finds that Adams Bayou willfully violated the court's Rule 16 Order (doc. #4) and then-operative Scheduling Order (doc. #12) as to the Shine records, the three affidavits, and the non-searchable photocopies of discovery documents with no metadata. Adams Bayou's dilatoriness in prosecuting its case and faithfully participating in the discovery process is inexcusable. Double Chine has satisfied the first Connor factor. Law Funder, L.L.C., 924 F.3d at 758 (quoting Conner, 20 F.3d at 1380–81). B. Adams Bayou Is Responsible Based on the pleadings and representations made by counsel at the October 21, 2024, hearing, the court concludes that Adams Bayou and Mr. Slay, rather than counsel, are responsible for the willful discovery violations. The second Connor factor is therefore satisfied. Id. (quoting Conner, 20 F.3d at 1380–81). C. Double Chine's Substantial Prejudice and Availability of Lesser Sanctions *8 Double Chine contends that it was substantially prejudiced by Adams Bayou's willful conduct because it “deposed Mr. Slay without the benefit of 537 pages of ... discovery,” “was ... in the dark about the scope of the engagement with Shine [& Associates] before Mr. Slay's deposition,” and that “Mr. Slay's actions have forced Double Chine to exert additional effort and expense to ferret out [Mr. Slay's] lies and to double check every piece of information.” (Doc. #37 at 18) (citation omitted.) The court “is by no means condoning any misconduct by” Adams Bayou, but litigation-ending sanctions are not warranted in this case. ReSea Project ApS, 2022 WL 17724419, at *7. To be sure, the court finds that Adams Bayou willfully violated the court's Rule 16 Order (doc. #4) and then-operative Scheduling Order (doc. #12) with its languid and inadequate production of the Shine records, the three affidavits, and the non-searchable photocopies of discovery documents. Time and monetary expense to facilitate discovery also amount to substantial prejudice. Borges v. Gidi Bar-N-Grill Ltd. Liab. Co., No. 4:23-CV-00897, 2024 WL 4535620, at *3 (E.D. Tex. Oct. 21, 2024) (quoting Chisesi v. Auto Club Family Ins. Co., 374 F. App'x 475, 477 (5th Cir. 2010)). The issue is that many of Double Chine's allegations are conjectural and the relief sought is not commensurate. See ReSea Project ApS, 2022 WL 17724419, at *6–*7 (finding litigation-ending sanctions unwarranted, in part, because, although “some intentional discovery misconduct” occurred, the “scope of such misconduct is uncertain”). “To use a football analogy, [Double Chine] went deep for an immediate score instead of methodically matriculating down the field. [Double Chine] missed the mark. It overplayed its hand.” Id. at *7. The court has a “duty to impose the least severe sanction[s] adequate to achieve the desired result” and the court does not believe that this case presents the “extreme circumstances” required to dismiss a case with prejudice under Rule 37. MCP Int'l, LLC, 2022 WL 2339793, at *3. Much of Double Chine's prejudice is curable by a second deposition of Mr. Slay, as well as depositions of the three individuals Adams Bayou has since identified after Mr. Slay's first deposition to establish its adverse possession claim. To that end, Adams Bayou “welcome[s] [Double Chine] to take the depositions of any or all of the individuals ... if it chooses to do so.” (Doc. #58 at 12.) The court finds that these “lesser sanctions would ... achieve the desired deterrent effect” and recommends that Adams Bayou be ordered to do so at its own costs. Law Funder, L.L.C., 924 F.3d at 758 (quoting Conner, 20 F.3d at 1380–81). D. Reasonable Attorney's Fees Based on the foregoing, the court finds that Adams Bayou's sanctionable conduct was not substantially justified under Rule 37(b)(2)(C) and that Double Chine is therefore entitled to recover reasonable attorney's fees, as requested. Additionally, Adams Bayou did not bother to respond to Double Chine's request and thus fails to satisfy its burden “to show that an award of attorney's fees would be unjust or that [its] position was substantially justified.” Dexon Computer, Inc., 2023 WL 9645470, at *2. This award will be subject to Double Chine producing properly redacted documentation with an accounting of rates, hours, and costs in order for the court to arrive at an accurate lodestar calculation. CEATS, Inc., 71 F.4th at 326 (citing Tollett, 285 F.3d at 367). IV. Conclusions and Order *9 In summary, the court finds that Plaintiff Adams Bayou Marine Management Company, LLC willfully violated the court's Order Setting Civil Action for Rule 16 Management Conference (doc. #4) and then-operative Scheduling Order (doc. #12) by failing to diligently produce the Shine records, the three affidavits, and searchable PDF versions of the discovery documents with metadata, or alternatively, for failing to adequately explain why this discovery material could not be produced in compliance with the court's orders. The court also finds that this willful conduct substantially prejudiced Defendant Double Chine, LLC, but concludes that lesser sanctions are available. The court further determines that the following lesser sanctions are just and related to the particular claims which were at issue in the court's orders. Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), the court DENYS in part and GRANTS in part Defendant Double Chine's Motion for Discovery Sanctions. (Doc. #37.) Double Chine's request to dismiss Plaintiff Adams Bayou's case with prejudice is DENIED. The following lesser sanctions are ORDERED: (1) Mr. Charles Slay—the sole manager of Plaintiff Adams Bayou—shall sit for a second deposition, not to exceed 4 hours, at Plaintiff's own cost and at a time and place agreed to by the parties before the deadline to complete discovery as set forth in the court's forthcoming Second Amended Scheduling Order. (2) Mr. Michael Derrick, Mr. Rex Reavis, and Mr. Russell Uher—the three affiants attesting to Plaintiff Adams Bayou's adverse ownership of the Property—shall sit for depositions at Plaintiff's cost and at a time and place agreed to by the parties before the deadline to complete discovery as set forth in the court's forthcoming Second Amended Scheduling Order. Plaintiff shall coordinate the production of these witnesses using subpoenas if necessary. (3) Plaintiff Adams Bayou shall produce all applicable discovery material in searchable PDF format, which will also include the documents' metadata. Plaintiff is also mandated to take all necessary steps to obtain this information. If it cannot comply with this order, Plaintiff Adams Bayou shall be required to exhaustively detail what efforts it undertook to obtain the information. Plaintiff Adams Bayou's shall comply with this order before the deadline to complete discovery as set forth in the court's forthcoming Second Amended Scheduling Order. The court also cautions Plaintiff Adams Bayou that it will “entertain a later-filed motion for sanctions, should [it] engage in further misconduct or if facts are revealed through discovery to fill gaps noted in this” order. ReSea Project ApS, 2022 WL 17724419, at *7. Finally, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), the court finds that Plaintiff Adams Bayou's failure to obey the court's orders (docs. #4, #12) was not substantially justified. It is thus ORDERED that Plaintiff Adams Bayou shall pay Defendant Double Chine a reasonable attorney's fee related to its disobedience. This award will be subject to Defendant Double Chine producing properly redacted documentation with an accounting of rates, hours, and costs as to the sanctionable conduct and the filing of the instant sanctions motion (doc. #37) to ensure that the court reaches an accurate lodestar calculation. Defendant Double Chine shall file the redacted documentation no later than Monday, December 9, 2024. IT IS SO ORDERED. SIGNED this the 26th day of November, 2024. Footnotes [1] The parties may recall that the undersigned stated that a report and recommendation would be issued on Defendant's motion. After additional research, the undersigned “has authority to enter a nondispositive order granting attorneys' fees or other nondispositive sanctions under Federal Rule of Civil Procedure 37(b) or denying a request for what might be considered a dispositive sanction.” Foreman v. Rogers, No. 3:21-CV-13-S-BN, 2022 WL 904270, at *2 (N.D. Tex. Mar. 11, 2022), R & R adopted, No. 3:21-CV-13-S-BN, 2022 WL 902767 (N.D. Tex. Mar. 28, 2022); see also Siegel v. Compass Bank, No. 3:18-cv-1023-X, 2021 WL 4498914, at *1 (N.D. Tex. Jan. 11, 2021) (“To determine whether a referred motion for sanctions is dispositive or non-dispositive, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs the determination of whether Rule 72(a) or 72(b) applies.”). The court issues this order pursuant to that authority. [2] On February 8, 2024, the parties filed a Joint Motion to Amend Scheduling Order. (Doc. #29.) The court granted the motion that same day and entered the First Amended Scheduling Order resetting the parties' deadline to complete discovery to August 30, 2024. (Doc. #30 at 2.) The First Amended Scheduling Order similarly admonished the parties that failure to comply with the relevant Local Rules, Federal Rules of Civil Procedure, or the order itself may result in exclusion of evidence, sanctions, or both. (Id. at 4.) [3] The nature of Shine & Associates was not made clear in Double Chine's motion, but it was clarified at the hearing that it is an independent third-party surveying company that Mr. Slay engaged with to map out the Property. [4] The court's order also set a status conference for November 6, 2024, to further discuss the stay of discovery and proposed scheduling deadlines. (Doc. #57 at 2.) After review of the parties' Agreed Motion to Vacate (doc. #61) that hearing, the court entered a text order cancelling it. [5] At the hearing, Adams Bayou did not object to Double Chine's request to admit into the record Exhibits 1–11 attached to its sanctions motion. The court granted the request with two exceptions: only pages referenced in the sanctions motion or brought to the court's attention during the hearing from Exhibits 1 and 9 were admitted into the record. [6] Double Chine also invokes the court's inherent authority to issue sanctions. (Doc. #37 at 1.) While “the [c]ourt's inherent powers may provide authority to sanction ‘conduct which abuses the judicial process,’ courts exercise such powers ‘with restraint and discretion’ due to ‘their very potency.’ ” H-E-B, L.P. v. Maverick Int'l, Ltd, No. SA-21-CV-0458-JKP, 2021 WL 5496153, at *6 (W.D. Tex. Nov. 23, 2021) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991)). It is also generally “neither necessary nor warranted to invoke the potent inherent power of the [c]ourt to obtain the same relief or remedy provided by a specific statutory provision.” Id. The court will therefore act pursuant to its Rule 37 statutory authority. [7] It is also odd that Mr. Slay's supposed inaccessibility was not mentioned at all in Adams Bayou's response to Double Chine's motion. See (doc. #58 at 7.)