The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge
Judge Amy St. Eve Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Before the court are two motions filed by defendant CBS Broadcasting, Inc. ("CBS"), requesting sanctions against plaintiffs Jill and Robert Webb ("the Webbs"): CBS's Renewed Motion for Sanctions [dkt 133], and CBS's Motion to Compel Return of Confidential Documents and to Dismiss [dkt 191]. In addition, CBS has filed a Supplemental Memorandum in support of the latter motion. [Dkt 210.] For the reasons explained below, those motions are granted as set out below.
This case involves a single incident -- the videotaping of the Webbs, Craig Stebic (Jill Webb's brother) and reporter Amy Jacobson without their consent on July 6, 2007. The discovery phase has, however, necessitated four opinions before this one. (See May 25, 2010 Op. [dkt 77]; Oct. 5, 2010 Op. [dkt 127]; Jan. 13, 2011 Op. [dkt 179]; and March 8, 2011 Op. [dkt 208].) To the extent the background is discussed in those opinions, it will not be repeated here.*fn1
In essence, CBS's current filings present three events that CBS believes justify sanctions against the Webbs, including the ultimate sanction of dismissal.
First, the Webbs failed to produced documents CBS requested in discovery and filed affidavits saying they had no such documents. Later, responsive documents were found on both the Webbs' home computer and in hard copies kept in Robert Webb's file cabinet.
Second, following this court's January 11, 2011 Opinion, which dealt in part with the "Jacobson documents," CBS learned that at even while the Webbs' counsel was representing to the court and CBS that those documents had been "purloined" from his file, he was, in fact, retaining copies of those documents.
Third, in December 2010, CBS learned that the Webbs served a subpoena on the Plainfield, Illinois Police Department, notwithstanding an order entered on October 26, 2010 stating that no additional discovery could be noticed or served without the court's permission. CBS was not served with notice of the subpoena as required by Federal Rule of Civil Procedure 45(b)(1), and the documents sought in the subpoena appear to have no relevance to this case.
I. The search of the Webbs' computer and their continued depositions
In its renewed motion for sanctions, CBS seeks costs incurred in conducting a forensic examination of the Webbs' computer, re-deposing the Webbs about documents found on the computer as well as other documents the Webbs belatedly produced, and bringing the renewed motion for sanctions. (Dkt 133 at 1; dkt 168 at 1.) This has a complicated backstory.
A. The first sanctions order
The facts giving rise to the first order entering sanctions against the Webbs and their counsel were set out in the May 25, 2010 Opinion entering those sanctions. Those facts are described here only to the extent necessary as background to CBS's renewed motion.
CBS originally served interrogatories and document requests on the Webbs in November 2009. (Dkt 52, Ex. A.) The Webbs did not respond to those requests by February 19, 2010, the date ordered by this court and a day later than the Webbs had agreed to respond. (Dkt 48, 49.) After CBS filed a motion for sanctions on February 26 (dkt 50), the Webbs sent their responses, which were incomplete, unverified, and produced no documents. (Dkt 54, Ex. A.) In response to nine of CBS's requests for production of documents, the Webbs responded that they had no responsive documents. (Id.) The Webbs did not respond at all to the other twenty document requests. (Id.)*fn2
A hearing was held on CBS's motion for sanctions on March 9, 2010. (Dkt 65.) Counsel for the Webbs asserted to the court that they had fully complied with their discovery obligations, and submitted identical affidavits from Jill and Robert Webb who swore, in relevant part:
2. I thoroughly read the [defendant's] Interrogatories and Requests for Production of Documents, understood each of them, and answered them truthfully and completely.
3. In response to the Requests for Production of Documents, I considered each request and did a full search to see if I was in possession of any of the documents requested.
4. I was not and am not in possession or control of any of the documents requested.
(Dkt 74, 75, Affs. of J. Webb and R. Webb (emphasis added).) In fact, the Webbs had still not served full responses CBS's requests.
The Webbs and their counsel were sanctioned pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) for failing to comply with the discovery order, and they were subsequently ordered to pay $10,444 to CBS for its fees and costs in bringing the motion for sanctions. (May 25, 2010 Op.; dkt 127.) The Webbs were further ordered to serve complete discovery responses no later than June 2, 2010, even if they had no documents to produce. (May 25, 2010 Op. at 6-7.) The court questioned the fact that the Webbs had not disclosed documents to support their complaint allegations of "ongoing medical bills" for treatment of mental anguish and emotional distress, but the Webbs' counsel responded that CBS could subpoena those records. (See id. at 9-10.) Ruling was reserved on the issue of whether the Webbs should be precluded from presenting evidence of economic or monetary damages as a further sanction. (Id. at 9-12.) The parties thereafter agreed to defer that issue pending the motion for summary judgment CBS intends to file. (Dkt 85, 135 at 14.)
B. The first depositions of the Webbs
On June 1 and 2, 2010, CBS deposed the Webbs. (Dkt 83, Exs. 1, 2, Dep. J. Webb, Dep. R. Webb.) Those depositions revealed that, contrary to their affidavits, the Webbs possessed -- at least at one time -- relevant materials that were not produced, some of which may have been destroyed; that they had failed to conduct a diligent search for documents; and, perhaps most significantly, they had concealed the existence of a report that apparently formed the basis for some of the factual allegations of their complaint.
First, Robert Webb testified that he did not believe he had ever searched the Webbs' computer for discoverable documents, despite his March 5 affidavit swearing that he conducted a "full" search. (R. Webb Dep. at 92-93.) He did not look on the computer to see if there were any e-mails that might be responsive to CBS's requests. (Id. at 93.) He searched for "some stuff but . . . [he] was unsure what [they] were looking for." (Id.) Jill Webb testified that she searched the computer for e-mails and other documents that might be responsive to CBS's discovery requests, but found nothing, possibly due to a virus infecting the computer. (J. Webb Dep. at 106-07, 342.) The Webbs testified that their home computer had crashed due to one or more viruses including one around February or March 2010, leaving e-mail and other data irretrievable. (J. Webb Dep. at 106-07; R. Webb Dep. at 93-96.) The Webbs had never before disclosed to CBS that potentially relevant documents were irretrievable due to a computer virus. The Webbs offered to surrender their computer voluntarily to CBS for a forensic examination. (Dkt 79 at 3.)
Second, the Webbs testified that Robert Webb had taken photographs of the gathering on July 6 that was the subject of the videotaping, but had not disclosed them to CBS. (R. Webb Dep. at 87-88; J. Webb Dep. at 300.) Robert Webb testified that he believed copies of the digital pictures were on the Webbs' computer, but that they had not looked for or produced them because they did not think they were "part of" the case. (R. Webb Dep. at 88.)
Third, the Webbs testified that Amy Jacobson had faxed to them a report written by a private investigator Ms. Jacobson or her attorney hired to look into the circumstances behind the July 6 videotaping. (J. Webb Dep. at 343-45; R. Webb Dep. at 113-14.) Jill Webb testified that she received the report from Ms. Jacobson shortly after the investigation was done because she "really, really" wanted to see it. (J. Webb Dep. at 344.)*fn3 However, Jill Webb could not remember what she had done with the report and testified she had been unable to find it. (Id. at 344-45.) Robert Webb testified that Jill Webb "could very possibly" have thrown it away. (R. Webb Dep. at 114.)
C. The post-deposition document response and production of photographs and medical records
Following their June depositions, the Webbs submitted amended discovery responses to CBS, disclosing the photographs mentioned in the depositions. (Dkt 136, Ex. A.) Other than the photographs and suggesting that CBS could subpoena third-parties, the Webbs responded that they had no further documents responsive to the requests, including e-mail, documents, or other correspondence. (Id.) Notwithstanding Jill Webbs' testimony the previous day about getting the investigator's report from Amy Jacobson, the Webbs responded "none" to Request 9, which asked for "[a]ny and all documents referring or relating to your relationship with, including any communication you have had with, Amy Jacobson or her agents, attorneys or representatives." (Id.) On June 11, CBS sent a letter to the Webbs' counsel requesting production of the private investigator's report, if the Webbs had retained it. (Dkt 136, Ex. L.) CBS asserts it never received a response. (Dkt 135 at 9.)
At a June 18, 2010 hearing, the parties reported to the court that the previous day (June 17), the Webbs had produced documents to CBS related to their medical treatment. Those medical records were provided to the court in camera and consisted of medical treatment and prescription records for both Mr. and Ms. Webb bearing dates from 2007 through 2010. When and how the records were obtained was not made clear, although several bore a fax header with the date "6/7/2010."
D. The search of the Webbs' computer
At that same hearing on June 18, the parties also reported that the Webbs had testified that data on their computer had been lost due to a virus.The Webbs offered to make their computer available for inspection, and were ordered to "cease all operations of their home computer and convey that computer to plaintiffs' counsel immediately." (Dkt 81.) The Webbs were further ordered to pay the reasonable cost incurred by CBS to create a mirror image of the hard drive. (Dkt 85.) Pending the outcome of that examination, decision was reserved as to the subjects of CBS's present renewed motion: whether the Webbs should pay for the examination of the hard drive, and whether they should bear the cost of further deposition testimony regarding any documents found. (Id.) The Webbs, by their counsel, subsequently waived attorney-client privilege as to any documents located during the forensic examination. (See dkt 136, Ex. M at 16-20.)
CBS retained James Murray, a computer forensics expert, to conduct the examination of the Webbs' computer. (Dkt 136, Suppl. Larsen Decl. ¶ 3.) Mr. Murray was charged with determining:
(1) whether a virus had infected the computer; (2) whether documents containing search terms provided to him by CBS resided on the computer; and (3) if such documents did reside on the computer, whether plaintiffs would have been able to access those documents themselves. (Dkt 137, Decl. of James Murray ¶ 4.)*fn4
Mr. Murray found no evidence of a virus on the Webbs' computer; however, he could not definitely state that a virus had not been present in the past but later eliminated by the use of an anti-virus software program. (Murray Decl. ¶ 8.) Mr. Murray was able to take a forensic image of the Webbs' hard drive and search it using the terms provided to him by CBS, which turned up a number of user-generated files like e-mails, photographs, and documents, as well as "text fragments" of documents that exist or once existed. (Id. ¶¶ 5-7.) He determined that the Webbs would have been able to locate the user-generated files with a simple search of their hard drive folders and Outlook Express, an e-mail program that does not require specialized or technical knowledge. (Id. ¶ 10.) On the other hand, he concluded they would not have been able to locate the "text fragments" without the assistance of special software. (Id. ¶ 11.)
Some of the documents turned up by Mr. Murray's search are plainly responsive to CBS's document requests. For example, e-mails were found between the Webbs and Amy Jacobson and between the Webbs and a magazine reporter discussing the July 6 videotaping. (Dkt 136, Exs. B, C, E).
Of particular concern are e-mails Mr. Murray found between the Webbs and their counsel dated January 17, 2010, indicating that Jill Webb faxed her counsel a copy of the private investigator's report on that date. (Id., Ex. J.)*fn5 The Webbs had not produced the report in response to CBS's November 2009 discovery requests, nor had they served a privilege log listing that document and asserting a privilege for withholding it as a party claiming a discovery protection is obligated to do. See Fed. R. Civ. P. 26(b)(5). As discussed above, both Mr. and Ms. Webb testified at their June depositions that they did not know what happened to the report. (J. Webb Dep. at 343-45; R. Webb Dep. at 113-14.) That testimony is contradicted by Ms. Webb's faxing of the report to her counsel in January 2010, after CBS had propounded its document requests to the Webbs, and less than two months before their affidavits stating that they were not in possession of any requested documents.
E. Second depositions of the Webbs
On October 9, 2010, CBS took further depositions of Mr. and Ms. Webb in order to examine them about the documents Mr. Murray discovered, the photographs, the private investigator's report, the medical records, and 84 additional hard copy documents the Webbs produced four days prior, on October 5, 2010. (Dkt 136, Exs. N, O, Cont. Dep. R. Webb, Cont. Dep. J. Webb.) According to CBS, those additional documents included printoutsofInternet blog posts made by the Webbs. (Dkt 135 at 10.) Apparently, Mr. and Ms. Webb posted messages on various ...