The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
Plaintiff, Texas Instruments Incorporated ("Texas Instruments"), brought suit against defendant, PowerChip Semiconductor Corporation ("PowerChip"), for breach of contract. The Honorable Sidney H. Stein referred the case to the undersigned for general pretrial matters. Before the Court are Texas Instruments's four motions for sanctions against PowerChip in connection with multiple discovery disputes that have arisen between the parties. Texas Instruments asks the Court to impose sanctions for conduct related to PowerChip's belated production of certain responsive documents and its failure to produce other responsive documents. For the following reasons, Texas Instruments's motions are GRANTED, in part, and DENIED, in part.
On June 2, 2006, the scheduling order in the instant case established the deadline of October 27, 2006, for the close of fact discovery. On June 16, 2006, Texas Instruments served its first document request on PowerChip and, on July 17, PowerChip responded. In its response, PowerChip objected to producing documents in unredacted form because of confidentiality concerns. On August 16, Texas Instruments sought the Court's intervention in the dispute, after unsuccessfully attempting to reach a compromise with PowerChip. On August 31, the Court ordered PowerChip to produce unredacted documents. On September 11, Texas Instruments informed the Court that PowerChip would not be able to complete the production until the second week of October. Since discovery was set to close on October 27, Texas Instruments sought a two month extension to account for the delay in PowerChip's production. The request was granted, and the discovery deadline was extended to December 29. On October 17, the parties submitted a revised scheduling order, taking into account the two month extension of fact discovery. The Court endorsed the proposed schedule, which set the following deadlines: disclosure of expert testimony by February 5, 2007; disclosure of rebuttal expert testimony by March 20, 2007; and close of expert discovery on April 16, 2007.
B. First Motion for Sanctions
On December 18, 2006, Texas Instruments wrote this Court to request a conference to discuss their intention to file a Rule 37 motion. Texas Instruments alleged that there had been a substantial failure of production on PowerChip's part, and wanted PowerChip precluded from introducing evidence that was responsive to Texas Instruments's discovery requests but not produced. Letter from Barry Satine, December 18, 2006 ("12/18 Letter") at 1. Texas Instruments claimed that it had brought these deficiencies to the attention of PowerChip throughout the course of discovery, and told PwerChip of its intention to seek preclusion of documents not produced. Id. at 1-2. Texas Instruments also alleged that depositions of PowerChip employees revealed that certain responsive documents had not yet been searched for, even though discovery was set to end shortly. Id. at 2. Specifically, Texas Instruments claimed three deficiencies: 1) invoices, purchase orders and other documents (collectively, "financial documents") requested by it had not been produced for two of the six years at issue, specifically 2000 and 2001; 2) one witness, a department head, testified during her deposition that she had not been instructed to look for relevant written documents and emails; and 3) the legal counsel had testified that she had not looked for a responsive document because her office was too messy. Id.
PowerChip responded to Texas Instruments letter, arguing against discovery sanctions. Letter from Andrew Aitken, December 22, 2006 ("12/22 Letter") at 4-5. PowerChip asserted that it had been diligent and cooperative throughout the discovery process, noting that it had produced nearly 120,000 pages of documents. Id. at 4. With regard to the specific allegations, PowerChip stated that: 1) the financial documents had been overlooked, and would be produced by early January 2007; 2) the department head who testified had not been instructed to look for emails because there was no reason to think she would have relevant emails; and 3) the document referenced by the legal counsel could not be located at this time. Id. at 4-5.
On January 12, 2007, the parties participated in a conference call with the Court to address Texas Instruments's motion for sanctions. As to the financial records for years 2000 and 2001, the Court ruled that these documents would be considered timely, even though they were produced after the close of discovery, thereby denying Texas Instruments's request for preclusion. The parties were also instructed to confer and attempt to define for the Court what specific documents would be responsive to each of Texas Instruments's discovery requests. The parties did confer, but were unable to identify with specificity what documents each document category would include, with one exception: they agreed that "manufacturing drawings and specifications" would include, inter alia, masks and layout databases, and that PowerChip had not produced masks or layout databases. Letter from Barry Satine, January 30, 2007 ("1/30 Letter") at 1-2. In the letter, PowerChip stated that it would not be introducing masks or layout databases into evidence at trial, and therefore would not be relying on these materials. Id. at 7.
C. Second Motion for Sanctions
On February 2, 2007, Texas Instruments again wrote the Court requesting a conference to discuss alleged discovery failures by PowerChip. Letter from Barry Satine, February 2, 2007 ("2/2 Letter") at 1. On August, 28, 2006, Texas Instruments had written PowerChip and had asked that it confirm Texas Instruments's request for the "SAP" reports for the years 2000 through 2006. Id, Exh. 1 at 2. On October 16, PowerChip confirmed that Texas Instruments had requested the SAP reports and agreed to produce them, reserving the right to object to further requests for data contained in the SAP database. Id., Exh. 2 at 3. On October 19, PowerChip produced a cd-rom, and, on October 31, Texas Instruments wrote to PowerChip asking if the cdrom contained the SAP reports. Id., Exh. 3 at 2. On November 10, Texas Instruments wrote to PowerChip to alert it that there were no SAP reports for 2000 or 2001 on the previously produced cd-rom. Id., Exh. 4. On December 5, Texas Instruments began depositions of PowerChip employees in Taiwan, and, on December 10, again requested that PowerChip produce the SAP reports for 2000 and 2001. Id., Exh. 5. On December 11, PowerChip produced two cd-roms containing the data requested in an Excel spreadsheet format. Id., Exh. 7. A PowerChip witness, Charlene Lei, advised Texas Instruments that the data was not in a SAP report because the SAP system was not established until 2002. Id., Exh. 9. On January 31, 2007, PowerChip produced a cd-rom to Texas Instruments, which it asserted contained the same information as in the spreadsheets previously produced, but in electronic format. Id., Exh. 13. Texas Instruments objected to this production because it said the information was different from that produced in the spreadsheets. Id. at 4. It claimed, moreover, that the production was untimely both because discovery had closed on December 29, 2006, and because Texas Instruments's expert would not be able to review this newly produced data given that expert reports were due on February 5, 2007. Id. at 4-5. In response to a request from the Court to clarify the relief sought, Texas Instruments submitted a second letter, on February 8, asking for an order pursuant to Rule 16(f) precluding PowerChip from relying on these SAP reports. Texas Instruments claimed that the SAP reports, and the program which created them, were inadmissible hearsay, as well as noting that there were inconsistencies between the data in the spreadsheets and that in the SAP reports. Letter from Barry Satine, February 8, 2007 ("2/8 Plaintiff's Letter") at 1-2.
PowerChip responded to Texas Instrument's request for a conference in a letter dated February 8, 2007. It claimed that it had discussed with Texas Instruments throughout the discovery period that the production of SAP reports for 2000 and 2001 would be more difficult than production for later years. Letter from Andrew Aitken, February 8, 2007 ("2/8 Letter") at 1. In 2002, PowerChip had changed from a process in which employees manually reviewed data to determine if a royalty payment should be made, to one which was automated by a newly written computer program. Id. It had tried to create a computer program that could generate reports for 2000 and 2001, but this had proven more difficult than anticipated. Id. at 1-2. In order to produce the information as quickly as possible, PowerChip provided the spreadsheets during depositions, and then supplemented with the SAP reports when they were finally completed. Id.
D. Third Motion for Sanctions
On February 21, Texas Instruments wrote the Court regarding its intent to seek further sanctions against PowerChip pursuant to Rules 16(f) and 37(d). Letter from Barry Satine, February 21, 2007 ("2/21 Letter") at 1. In this application, Texas Instruments raised two issues:
1) PowerChip's failure to produce certain business records and 2) its failure to comply with the discovery schedule by producing another group of documents after the close of fact discovery and the exchange of expert reports. Id. at 1. With regard to PowerChip's failure to produce the business records, Texas Instruments had served two interrogatories on PowerChip on November 22, 2006. Id. at 2. The first interrogatory asked: "For each individual report responsive to Plaintiff's Fourth Request for Production of Documents, identify by PSC Customer Identification Number each customer to whom a sale was made by PSC which resulted in a payment of a royalty by PSC, which royalty is included in an identified report." Id., Exh. 1 at 2. The second interrogatory asked: "For each individual report responsive to Plaintiff's Fourth Request for Production of Documents, identify by PSC Part Number each product sold by PSC which resulted in a payment of a royalty by PSC, which royalty is included in an identified report." Id., Exh. 1 at 2. Texas Instruments states that these interrogatories "were designed to identify which products sold to which PSC customers resulted in . . . PSC royalty payments to third parties," and therefore whether a customer was excluded from PowerChip's royalty obligations to Texas Instruments. Id. at 2.
On December 22, 2006, PowerChip had served unverified responses to Texas Instruments's interrogatories. Id., Exh. 3. Power Chip objected to the first interrogatory as overly broad and unduly burdensome, but stated that it would "produce SAP . . . reports sorted by relevant customer number, to the extent the SAP system provides an output to such query." Id. Power Chip also objected to the second interrogatory as overly broad and unduly burdensome, but stated that it would "produce SAP reports sorted by relevant customer number, customer name, product description, brand, grade, and material number, to the extent the SAP system provides an output to such query." Id. On December 26, Texas Instruments asked PowerChip to verify its response. Id., Exh. 4. In addition, it asked PowerChip to confirm that the SAP reports produced would include fields reflecting "which sales of which products are royalty bearing sales," and asked whether PowerChip would be responding to the interrogatories with respect to the years 2000 and 2001. Id. PowerChip responded on January 11, 2007, stating that it was working to provide verification and to "produce appropriate electronic reports pursuant to our Response to Interrogatory No. 4 and your letter of December 26, 2006." Id., Exh. 6. It provided verification of its interrogatory responses on January 31, but did not produce additional documents at that time. Id. at 4.
Texas Instruments states that it attempted to resolve the dispute with PowerChip, making several verbal requests for the documents and receiving verbal assurances from PowerChip that the documents were forthcoming. Id. On February 9, it wrote to PowerChip and asked whether the documents would be produced by the middle of the following week. Id., Exh. 8. It alerted PowerChip that it would seek judicial intervention if necessary. Id. PowerChip made a series of responses. Id. at 4. On February 12, PowerChip wrote that they were looking at the issue that day. Id., Exh. 9. On February 13, it wrote that it should have a response by the following day. Id., Exh. 10. On February 14, it wrote that it was preparing the materials in response to Texas Instruments's interrogatories and that it expected to produce them "tomorrow midday." Id., Exh. 11. On February 15, it called Texas Instruments to advise it that it was unable to produce the requested SAP reports. Id. at 4. On February 16, it produced documents, which it identified as responsive to Texas Instruments's "final document requests and interrogatories." Id., Exh. 12. The documents produced did not include the requested SAP reports and PowerChip did not provide a supplemental interrogatory response identifying the documents as responsive to Texas Instruments's interrogatories. Id. at 4-5.
Texas Instruments also claims that PowerChip produced responsive documents in an untimely fashion. Id. at 5. Fact discovery closed on December 29, 2006, but on both January 11 and February 16, 2007, PowerChip produced documents responsive to Texas Instruments's Fourth Request for Production. Id. The production totaled approximately 235 documents, and no explanation for the late production was offered by PowerChip. Id.
Texas Instruments asks for three forms of relief. Id. at 6. First, pursuant to Rule 37(b)(2)(A), it requests that certain facts be established for purposes of the action.*fn1 Id. Second, it asks that the Court preclude PowerChip and its experts from relying upon the approximately 280 documents produced on January 11 and February 16, 2007, numbered PSC-B0012687 through PSC-B0012878. Id. Third, it seeks reasonable expenses, including attorney's fees, for bringing the motion. Id.
PowerChip objects to Texas Instruments's requests on several grounds. First, it asserts that Texas Instruments should have timely filed a motion to compel if it disagreed with PowerChip's objections to its discovery requests. Letter from Andrew Aitken, March 5, 2007 ("3/5 Letter"), at 1. Second, it claims that it never represented that there were additional SAP reports beyond those already produced. Id. Rather, it only agreed to produce reports responsive to Texas Instruments's requests if the SAP system was configured to do so. Id. at 1-2. PowerChip states that it alerted Texas Instruments that its document request was based on an incorrect premise. Id. at 2. Moreover, it learned that the information requested could not be extracted from the SAP database without creating a new program, ...