Orchestratehr, Inc. v. Trombetta (178 F. Supp. 3d 476, 2016)

MEMORANDUM OPINION AND ORDER ON PLAINTIFFS’ MOTIONS FOR SANCTIONS AND TO COMPEL

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

Plaintiffs OrchestrateHR, Inc. and Viva-ture, Inc. have filed a Motion for Sanctions Against All Defendants [Dkt. No. 232], a Motion for Sanctions Against Anthony L. Trombetta for Spoliation of Evidence [Dkt. No. 240], and an Emergency Motion for Sanctions [Dkt. Nos. 245 & 251]. Chief Judge Jorge A. Solis has referred these motions to the undersigned United States magistrate judge, see Dkt. Nos. 242 & 250, and the undersigned held a hearing on the motions on February 18, 2016, see Dkt. Nos. 274 & 285.

Plaintiffs then filed a Motion to Compel and for Sanctions Against All Defendants, see Dkt. No. 281, which Chief Judge Solis also referred to the undersigned magistrate judge, see Dkt, No. 283.

For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part the Motion for Sanctions Against All Defendants [Dkt. No. 232], except for the portion of the motion concerning civil contempt for alleged violations of the Agreed Temporary Injunction and Agreed Temporary Restraining Orders, which is addressed in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated March 28, 2016 [Dkt. No. 299]; DENIES the Motion for Sanctions Against Anthony L. Trombetta for Spoliation of Evidence [Dkt. No. 240]; GRANTS the Emergency Motion for Sanctions [Dkt. Nos. 245 & 251]; and GRANTS in part and DENIES in part the Motion to Compel and for Sanctions Against All Defendants [Dkt. No. 281], See generally Brown v. Bridges, No. 3:12-cv-4947-P, 2015 WL 410062, at *1-*4 (N.D.Tex. Jan. 30, 2015) (explaining that, when a district judge refers a motion for sanctions to a magistrate judge, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs the determination of whether Federal Rule of Civil Procedure 72(a) or 72(b) applies and that, when the magistrate judge finds that dismissal or another sanction disposing of a claim or defense in unwarranted, the motions should be characterized as non-dispositive and ihay be ruled on by the magistrate judge).

Background

Defendant Borden-Perlman Insurance Agency, Inc. (“BP”) has previously been sanctioned twice under Federal Rule of Civil Procedure 37(a)(5) in this litigation. See Dkt. Nos. 196 & 237. Although Plaintiffs have argued for additional sanctions previously under Rule 37 or the Court’s inherent powers, the Court has to this point declined to order sanctions beyond awards of fees and expenses mandated by Rule 37(a)(5). See Dkt. Nos.. 170, 192, & 193.

Plaintiffs now seek additional sanctions in a series of motions.

First, Plaintiffs seek sanctions against Defendants Anthony L. Trombetta, BP, Kelly Myers, and Dave Icenhower and their counsel, Sandra Liser, for Ms. Liser’s contacts and attempted contacts with current employees and former employees whom she knew or should have known are represented by Plaintiffs’ attorneys. Plaintiffs seek both $50,000 in monetary damages plus expenses and an order prohibiting Defendants’ counsel from any further attempts to contact Plaintiffs’ current and former employees, requiring Defendants’ counsel to provide a detailed summary of all contacts by the attorneys or by anyone (such as private investigation firms) acting at the attorneys’ directions, and stating that all information or evidence gathered as a result of the improper contacts with Plaintiffs’ employees and former employees is deemed inadmissible. See Dkt. Nos. 245 & 251.

Second, Plaintiffs seek sanctions in the form of an adverse inference jury instruction based oh Defendant Anthony Trom-betta’s destruction of emails shortly before he terminated his employment with Plaintiffs and began working for BP. See Dkt. No. 240.

Third, in an omnibus motion, Plaintiffs seek sanctions for false deposition testimony by Mr. Trombetta and BP corporate representative - Jeff Perlman; for Mr. Myers’s preparing documents that contain false information, which Mr. Perlman used at his deposition; for providing to the Court affidavits by Ms. Liser and Mr. Myers that contained false statements; for Defendants’ violating the Court’s prior discovery order, the July 15, 2015 Order on Pending Discovery Motions [Dkt. No. 170]; for Defendants’ violating the Agreed Temporary Restraining Orders and Agreed Temporary Injunction; and for several “other obstreperous acts.” Plaintiffs seek $100,000 in monetary sanctions plus expenses and an order allowing a third-party vendor to forensically locate, capture, and copy electronically stored information from both BP and from Mr. Trombetta’s personal Hotmail account. Plaintiffs also ask the Court to hold Defendants in civil contempt for violations of the Agreed Temporary Restraining Orders and the Agreed Temporary Injunction. See Dkt. No. 232.

Fourth, Plaintiffs move to compel document production from Defendants in response to Plaintiffs’ most recently served requests for production and seek sanctions for Defendants’ failure to provide responsive documents and complete responses, including not only attorneys’ fees and expenses but also a “significant monetary sanction meant to stop further discovery abuse by Defendants” and “a jury instruction advising the jury that the Court was forced to intervene and order Defendants to respond to discovery and produce documents.” Plaintiffs assert that Defendants failed to produce any documents in response to their most recently served requests, that Defendants’ responses consist of boilerplate objections, and that Defendants’ responses violate the Court’s July 15, 2015 Order on Pending Discovery Motions [Dkt. No. 170]. See Dkt. No. 281.

Legal Standards and Analysis

I. Emergency Motion for Sanctions and Request for Order

Plaintiffs seek sanctions against Defendants and their counsel, Sandra Liser, for hiring a private investigation firm to contact Plaintiffs’ current and former employees to attempt to obtain confidential and privileged information from those employees after being informed that Plaintiffs’ counsel represented former employees and despite an agreement not to contact them. See Dkt. Nos. 245 & 251. Plaintiffs contend that Ms. Liser’s conduct was unethical and violated the rules of professional responsibility.

A. Legal Standards

Case law in the Fifth Circuit addressing an attorney’s alleged violations of rules of professional responsibility typically arises in the context of motions to disqualify counsel or disciplinary proceedings for attorney misconduct. See, e.g., In re Am. Airlines, Inc., 972 F.2d 605 (5th Cir.1992); N.D. Tex. L. Civ. R. 83.8(e) (defining “Unethical Behavior” as “conduct undertaken in or related to a civil action in this court that violates the Texas Disciplinary Rules of Professional Conduct” for purposes of attorney discipline).

For the reasons discussed below, the Court will not analyze Plaintiffs’ request for sanctions under the rubric of a violation of a rule of professional responsibility but rather as an allegation of conduct in the course of this litigation that is sanc-tionable under the Court’s inherent power.

“A district court has the inherent authority to impose sanctions in order to control the litigation before it.” Positive Software Solutions, Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th Cir.2010) (internal quotation marks omitted). This includes “the power to levy sanctions in response to abusive litigation practices.” In re Stone, 986 F.2d 898, 902 (5th Cir.1993). Accordingly, “[a] district court has inherent power to sanction attorneys for bad faith conduct in litigation.” Crowe v. Smith, 261 F.3d 558, 563 (5th Cir.2001).

But these inherent powers “ought to be exercised with great caution” and are reserved for “conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (internal quotation marks omitted). “The threshold for the use of the inherent power sanction is high.” Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir.1996).

Although “the inherent power extends to a full range of litigation abuses,” the United States Supreme Court has cautioned that, “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44, 46, 111 S.Ct. 2123. “A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45, 111 S.Ct. 2123.

“A court may assess attorney’s fees under its inherent powers when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons” but “must make a specific finding that the sanctioned party acted in bad faith in order to impose such sanctions.” Matta v. May, 118 F.3d 410, 416 (5th Cir.1997). And any sanctions ordered should be “the least severe sanctions adequate to accomplish the purpose for which the sanction was imposed.” Topalian v. Ehrman, 3 F.3d 931, 938 (5th Cir.1993); accord Toon v. Wackenhut Corr. Corp., 250 F.3d 950, 952-53 (5th Cir.2001).

B. Analysis

The evidence before the Court shows that, on August 10 and 16, 2015, Ms. Liser contacted Plaintiffs’ counsel about requested depositions, including the deposition of Janey Brown, and, after being informed that Ms. Brown is no longer an employee, asked, “[s]ince Ms. Brown no longer works for Orchestrate, may I contact her directly to schedule her deposition?” Dkt. No. 246 at 13-14. Plaintiffs’ counsel responded that “[a]ll contact with Ms. Brown will need to be through my office. As I am sure you know, the privilege extends to her communications while she worked for Orchestrate, even though she no longer works there.” Id. at 12. Ms. Liser responded: “I will not call Ms. Brown.” Id.

On January 26, 2016, Plaintiffs’ counsel notified Ms. Liser that “we are going to need to take the deposition of Beth Andrews. It is my understanding she is no longer an employee of BP. May I reach out to her directly, or will you be representing her?” Dkt. No. 246 at 9. Ms. Liser responded that “I will be representing her and will contact her about a deposition.” Id.

On January 26, 2016, Mouzon Bass III, President of OrchestrateHR, Inc., testified in his deposition that OrchestrateHR, Inc. owns Employers Direct Health, Inc. and that Employers Direct Health, Inc. is a subsidiary of OrchestrateHR, Inc. See Dkt. No. 269 at 4, 6. Ms; Liser represented Defendants at the deposition. See id. at 6.

At approximately 7:45 p.m. on February 3, 2016, Sabrina Hooten was contacted via telephone at her home by Darryl D. Joy of M&M Investigations. In response to Ms. Hooten’s questions, Mr. Joy stated that he had been hired by Defendants’ counsel. See Dkt. No. 246 at 4; Dkt. No. 259 at 17-18 (Affidavit of Darrel D. Joy). In an affidavit, Mr. Joy testified' that “I informed Ms. Hooten I understood she used to be employed by OrchestrateHR. Ms. Hooten informed me she was still employed by Orchestrate HR.” Dkt. No. 259 at 18. Ms. Hooten told Mr. Joy that she would not speak to him and then notified Mr. Bass, who notified his counsel. See Dkt. No. 246 at 4.

At 8:38 p.m., Plaintiffs’ counsel contacted Mr. Joy by telephone, who confirmed that he had been engaged t'o contact Plaintiffs’ employees by the law firm of Ñaman Howell Smith & Lee, PLLC and, specifically, by Sandra Liser. Plaintiffs’ counsel advised Mr. Joy that Plaintiffs’ employees were represented by counsel and should not be contacted directly. Plaintiffs’ counsel also asked Mr. Joy which other employees he had been hired to contact, but Mr. Joy stated that he would not give that information and hung up the phone. See id.

Plaintiffs’ counsel- then sent an .email to four attorneys representing Defendants in this case, advising them to immediately cease and desist from contacting Plaintiffs’ employees and demanding that they contact Mr. Joy and any other persons retained by them to contact Plaintiffs’ employees and advise them to stop immediately. See id. at 4, 6. Plaintiffs’ counsel also requested copies of any emails from Defendants’ counsel to Mr. Joy or his company. See id. And Plaintiffs’ counsel emailed Mr. Joy and advised him to immediately stop contacting Plaintiffs’ employees. See id. at 6.

On February 4, 2016, Ms. Liser responded that she asked Mr. Joy to contact Ms. Hooten after being informed that Ms. Hoo-ten was not employed by OrchestrateHR, Inc. or Vivature, Inc. She also stated that Mr. Joy contacted Ms. Liser after he located and contacted Ms. Hooten and informed Ms. Liser that he immediately terminated his conversation with Ms. Hooten when Ms. Hooten advised him that she was still employed by OrchestrateHR. See Dkt. No. 252 at .7.

Ms. Liser then sought confirmation of the name of Ms. Hooten’s current employer. See id. Plaintiffs’ counsel responded that “Ms. Hooten is an employee of my clients. I am not certain which entity she receives her actual check from. Regardless of whose name is on the check, I am advised that she is my clients Comptroller. As you know, my clients maintain several wholly owned subsidiaries from which they share employees.” Dkt, No. 252 at 14. Plaintiffs’ counsel also informed Ms. Liser that he would be the contact person for scheduling Mr. Hooten’s deposition. See id. at 20.

In subsequent emails on February 4, 2016, Defendants’ counsel would not agree to stop attempting to contact Ms. Hooten unless Plaintiffs’ counsel confirmed that Ms. Hooten was employed by a 100% owned subsidiary of Plaintiffs. See id. at 10-12.

That same day, Plaintiffs filed an Emergency Motion for Sanctions and Request for Order, see Dkt. No. 245, and Plaintiffs then filed a supplement to the motion on February 5, 2016, see Dkt. No. 251. Defendants filed a response, see Dkt, No. 258, Plaintiffs filed a reply, see Dkt. No. 265, and the Court set the motion for hearing on February 18, 2016, see Dkt. No. 253.

Immediately before the February 18, 2016 hearing started, Defendants’ counsel handed Plaintiffs’ counsel documents in response to his request for all documents sent to Mr. Joy or his investigative firm. See Dkt. No. 285 at 4-5, 8. Included in those documents is a January 13, 2016 email from Ms. Liser to Mr. Joy providing the names of two former employees of OrchestrateHR — Janey Brown and Chrystal Blackshear. Ms: Liser also provided Mr, Joy with Ms. Brown’s residential address and the name of Ms. Blackshear’s current employer. Ms. Liser instructed Mr. Joy to “confirm you have located them,” and, after Mr. Joy informed Ms. Liser that he had “found both,” Ms. Liser emailed Mr. Joy on January 15, 2016, explaining that “I have attached my proposed list of questions for Ms. Brown and Ms. Bláckshear.” Ms. Liser further instructed Mr. Joy: “Assuming the witness is not represented, please ask if they would be willing to talk to me.”

The list of questions begins with the following:

Advise them that you are working for clients that have been sued by Orchestrate HR and Vivature. Tell them the name of the clients are Borden Perl-man Insurance Agency, Tony Trom-betta, Dave Icenhower and Kelly Myers.

Q: Have you spoken to an attorney about this case?

Q: Are you represented by an attorney in connection with anything related to Orchestrate or Vivature?

Q: Have you ever spoken to Jose Pórtela or Blake Beckham (attorneys representing Orchestrate)?

Q: Have you retained them as your attorneys?

IF SO, WHAT IS THE NAME OF THE ATTORNEY SO WE CAN DIRECT ANY FURTHER INQUIRY TO THE ATTORNEY REPRESENTING YOU AND ADVISE THEM THAT YOU CANNOT ASK THEM ANY FURTHER QUESTIONS.

If they tell you they are not represented by an attorney, ask them the following:

Q: Have any attorneys contacted you to discuss your employment with Orchestrate?

Q: If so:

Who has contacted you?

How did they contact you? In writing? By phone? In person? Any other contact?

How many times they you [sic] communicate with them?

What did they tell you?

"What did you tell them?

Any follow-up communication with them?

Q: Has anyone contacted you on behalf of Orchestrate or Vivature?

Q: If so:

Who has contacted-you?

How did they contact you? In writing? By phone? In person? Any other contact?

How many times they you [sic] communicate with them? ■

What did they tell you? '

What did you tell them?

Any follow-up communication with them?

Q: How long did you work for Orches-? trate[?]

Dkt. No. 278 at 7-20. The list of questions also seeks information about Muzzy Bass, Lánce Wilson, Mr. Trombetta, Mr. Icen-hower, BP, and other claims or lawsuits.

Plaintiffs assert that Ms. Liser’s contact with Ms. Hooten through the investigator violated Texas Disciplinary Rule of Professional Conduct 4.02. According to Plaintiffs, Ms. Hooten is the Comptroller of both OrchestrateHR, Inc. and Vivature, Inc., receives the unredacted invoices for the bills in this case, is in direct receipt of attorney-client privileged information, and, as a result of her position with Plaintiffs, has received additional privileged information and has knowledge of significant confidential information. See Dkt. No. 245 at 3; Dkt. No. 269 at 8-9 (Affidavit of Mouzon Bass, III). .

Defendants respond that Ms. Hooten is employed by Employers Direct Health, Inc. and that, despite several requests, Plaintiffs’ attorneys have failed to confirm that Employers Direct Health, Inc. is a 100% owned subsidiary of Plaintiffs. During the February 18, 2016 hearing, Defendants also, argued that there was no violation of Texas Disciplinary Rule of Professional Conduct 4.02 because Mr. Joy only asked Ms. Hooten if she was represented by counsel and did not ask her anything about this case.

This is not an attorney disciplinary proceeding,, and the Court concludes there is no basis to impose sanctions based on whether there has been a violation of Texas Disciplinary Rule of Professional Conduct 4.02 or ABA Model Rule of Professional Conduct 4,2. Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, titled “Communication with One Represented by Counsel,” provides:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do to so.

Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a) (“Texas Rule 4.02”), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. 10, § 9, Rule 4.02(a)). The parallel rule in the ABA Model Rules of Professional Conduct contains substantially similar provisions:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Model Rules of Prof’l Conduct R. 4.2 (2015) (“Model Rule 4.2”).

The Court notes that both rules have been interpreted not to cover former employees. See, e.g., In re RSR Corp., 475 S.W.3d 775, 781 (Tex.2015) (“Even the Texas Disciplinary Rules of Professional Conduct allow an attorney to contact the former employees of the opposing party.”); United States Equal Employment Opportunity Comm’n v. Placer ARC, 147 F.Supp.3d 1053, No. 2:13-CV-0577-KJM-EFB, 2015 WL 7571535, at *9 (E.D.Cal. Nov. 25, 2015) (explaining that the majority of court decisions dealing with efforts to interview a corporate party’s former employees ex-parte have held that Model Rule 4.2 does not prohibit such contacts and that the same is true when an attorney interviews former members of management). And there is no evidence that the investigator actually communicated with Ms. Hooten about the subject of her representation by Plaintiffs’ counsel in this action.

Accordingly, it is not clear, on this record, that Defendants’ counsel actually violated the so-called non-contact rule in connection with Ms. Wooten, Ms. Brown, or Ms. Blackshear. See generally United States v. Villanueva-Diaz, 634 F.3d 844, 851 (5th Cir.2011) (noting that “[t]he rule that contact with a represented party should be through his lawyer is so well established in American jurisprudence that attorneys are generally prohibited by ethical rules from contact with the opposing party if represented by counsel”) (citing Model Rules of Prof’l Conduct R. 4.2 (2002); Tex. Disciplinary Rules Prof’l ConduCt R. 4.02(a) (2002)).-

But the Court concludes that is not properly the issue here. Nor is the issue whether Ms. Hooten was employed by Or-chestrateHR or its subsidiary.

Instead, the issue is whether Ms. Liser, as Defendants’ counsel, engaged in conduct that is sanctionable under the Court’s inherent powers as a violation of the standards set by this Court for attorneys’ conduct in litigation before it. And the Court determines that she has.

The evidence establishes that Ms. Liser had previously communicated with Plaintiffs’ counsel concerning the legal representation and scheduling of depositions of current or former employees. Under this practice, Ms. Liser had been informed on at least one occasion that Plaintiffs’ counsel represented one of Plaintiffs’ former employee, and Ms. Liser specifically stated that she would not contact that former employee — Ms. Brown. But then she did just that and retained and directed a private investigator to contact Ms. Brown, inquire whether she was represented, and, if Ms. Brown did not report that she was represented, ask her questions concerning this case.

The Court notes that Ms. Liser’s co-counsel explained during the hearing that, when he discovered that there was an attempt to contact Ms. Brown, knowing that there was the previous email between Plaintiffs’ counsel and Ms. Liser discussed above, he instructed that it stop. See Dkt. No. 285 at 14-16. And he explained that this is why Ms. Liser advised Mr. Joy on January 19, 2016: “Please do not contact [Ms.] Brown until you hear otherwise from me.” Dkt. No. 278 at 6.

And, at the hearing, Defendants’ counsel represented to the Court that Defendants, through their counsel, will not contact any known or perceived current or former employees of Plaintiffs or their subsidiaries without having first contacted Plaintiffs’ counsel. See Dkt. No. 285 at 17-18, 23.

The Court finds that Ms, Liser, as Defendants’ counsel, engaged in bad-faith litigation conduct when she instructed a private investigator to contact Janey Brown despite having expressly told Plaintiffs’ counsel that she would not contact Ms. Brown after Plaintiffs’ counsel told Ms. Liser that “[a]ll contact with Ms. Brown will need to be through my office. As I am sure you know, the privilege extends to her communications while she worked for Orchestrate, even though she no longer works there.” Dkt. No. 246 at 12. Notably, whatever Texas Rule 4.02 or Model Rule 4.2 may permit generally as to former employees, the rules prohibit contact with a person known to be represented by another lawyer in the matter' — and Plaintiffs’ counsel previously .informed Ms. Liser that Ms, Brown would be, represented in this matter.

The Court finds that Ms. Liser has acted in a manner that abused the judicial process and the standards expected of attorneys “as members of a learned profession whose unswerving duty is to the public they serve and to the system of justice in which they practice.” Dondi Properties Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 288 (N.D.Tex.1988). That Ms. Liser’s co-counsel stopped her from going through with having Mr. Joy contact Ms. Brown does not resolve the matter from the Court’s perspective, nor does Ms. Liser’s instructing Mr. Joy to ask Ms. Brown about a matter (whether she was represented in connection with this case) that Plaintiffs’ counsel had already confirmed.

This Court has adopted “standards to which we expect litigation counsel to adhere.” Id. at 287. These include that “[a] lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration of our system of justice and the respect of the public it serves”; that “[a] lawyer unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity”; and that “[ljawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times.” Id. at 287-88. The en banc Court in Dondi explained that “the standards we now adopt...are appropriately established to signal our strong disapproval of practices that have no place in our system of justice and to emphasize that a lawyer’s conduct, both with respect to the court and to other lawyers, should at all times be characterized by honesty and fair play.” Id. at 288-89.

Ms. Liser’s conduct falls below these standards to the level of bad-faith abuse of the judicial process and warrants “an appropriate response from the court.” Id. at ,288.

Plaintiffs request the following relief:

A. “An order prohibiting Defendants, Defendants’ counsel, or anyone acting at their direction or in concert with them from contacting any current or former employees of Plaintiffs. Any such contact ' should be coordinated through Plaintiffs’ Counsel and done pursuant to the discovery process contained in the Fed. R. Civ. P. Given that Defendants and their counsel have already violated this Court’s orders, this order should also provide for specific sanctions against Defendants and their counsel for any future breach of the order.”

B. “An order requiring Defendants’, counsel to provide a detailed summary of all of their contact, or contacts made by anyone at their direction such as M&M Investigation, with Plaintiffs’ employees or former employees since this suit was filed on May 31, 2013. This summary should include the time, date, method of contact, who made the contact, who was contacted, and other information identifying the nature and contents of the contact.”

C. “An order stating that any information or evidence gathered as a result of the contacts described in (b) above be deemed inadmissible.”

D. “An order requiring Defendants’ counsel to produce copies of their communi- ■ cations with M&M Investigation or Mr. Joy individually.”

E. “Monetary sanctions against Defendants and their counsel in the amount of no less than $50,000.”

F. “Expense sanctions against Defendants and their counsel in the amount of no less than $5,000.”

Dkt. No. 245 at 5-6.

The Court determines that most of these requested sanctions do not fit the sanction-able conduct that the Court has found and are not the least severe sanctions adequate to accomplish the purpose for which a sanction will be imposed.

But the Court determines that, whatever the requirements imposed by Model Rule 4.2 or Texas Rule 4.02, under the circumstances here, an appropriate sanction is to prohibit Defendants, Defendants’ counsel, or anyone acting at their direction or in concert with them from contacting any current or former employees of Plaintiffs or their subsidiaries without first coordinating that contact through Plaintiffs’ counsel. The Court additionally orders Defendants’ counsel to produce to Plaintiffs’ counsel — to the extent they have hot already completely done so — a copy of any communications by Defendants’ counsel with M&M Investigations or Mr. Joy individually in connection with this case. Further, the Court orders Defendants’ counsel to pay the attorneys’ fees that Plaintiffs incurred in briefing their Emergency Motion for Sanctions [Dkt. No. 245], including the supplement to that motion and reply in support of it, and in preparing for and participating in the hearing of that motion. This is, collectively, narrowly tailored as a just and appropriate sanction to address the conduct at issue.

Northern District of Texas Local Civil Rule 7.1 requires that parties confer before filing an application for attorneys’ fees. Plaintiffs’ counsel and Defendants’ counsel are therefore directed to meet face-to-face and confer about the reasonable amount of these attorneys’ fees to be awarded. This face-to-face requirement is not satisfied by a telephonic conference. Any attorney refusing to appear for this meeting or to confer as directed will be subject to sanctions.

By no later than May 2, 2016, the parties must file a joint status report notifying the Court of the results of the conference. If all disputed issues as to the amount of attorneys’ fees to be awarded to Plaintiffs have been resolved, Plaintiffs’ counsel must also send an agreed proposed order to the Court at Horan_Orders@txnd. uscourts.gov by May 2, 2016.

If the parties do not reach an agreement as to the amount of attorneys’ fees to be awarded to Plaintiffs, Plaintiffs must, by no-later than May 6, 2016, file an application for attorneys’ fees that is accompanied by supporting evidence establishing the amount of the reasonable attorneys’ fees and costs (as described above) to be awarded. The fee application must be supported by documentation evidencing the “lodestar” calculation, including affidavits and detailed billing records, and citations to relevant authorities and shall set forth the itemized number of hours expended in connection with the recoverable attorneys’ fees described above as well as the reasonable rate(s) requested.

If an application is filed, Defendants may file a response by May 27, 2016, and Plaintiffs may file a reply by June' 10, 2016.

Plaintiffs’ Emergency Motion for Sanctions [Dkt. Nos. 245 & 251] is GRANTED for the reasons and to the extent explained above.

II. Motion for Sanctions Against Anthony L. Trombetta for Spoliation of Evidence

Plaintiffs seek sanctions against Mr. Trombetta for spoliation of evidence,

“Spoliation of evidence ’is the destruction or the significant and meaningful alteration of evidence.’ ” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir.2015) (quoting Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir.1996)). Plaintiffs contend that Mr. Trom-betta spoliated critical evidence in this case by deleting emails that would have been unfavorable to him in this lawsuit when he knew he was about to resign from Orchestrate and begin employment with BP, and Plaintiffs seek an adverse inference jury instruction as a sanction. See Dkt. No. 240. Specifically, Plaintiffs request that the jury be instructed that (1) Mr. Trombetta “intentionally spoliated evidence in order to conceal evidence that was unfavorable to him and would have shown that Trombetta breached his contracts with Plaintiffs”; (2) Mr. Trombetta “intentionally spoliated evidence in order to conceal evidence that was unfavorable'to him and would have shown that Trombetta was conspiring with Defendants”; and (3) Mr. Trombetta’s “intentional destruction of emails indicates that introduction of those emails would have been unfavorable to Trombetta’s case.” Id. at 15.

Defendants filed a response, see Dkt. No. 260, and Plaintiffs filed a reply, see Dkt. No. 267.

A. Legal Standards

“Under the spoliation doctrine, a jury may draw an adverse inference ’that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’” Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008) (quoting Russell v. Univ. of Tex., 234 Fed.Appx. 195, 207 (5th Cir.2007)). The United States Court of Appeals for the Fifth Circuit “permits an adverse inference against the spoliator or sanctions against the spoli-ator only upon a showing of ’bad faith’ or ’bad conduct.’” Guzman, 804 F.3d at 713 (quoting Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir.2005)). “A party’s duty to preserve evidence comes into being when the party has notice that the evidence is relevant to the litigation or should have known that the evidence might be relevant.” Id. (citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 615-16 (S.D.Tex.2010)). “Bad faith, in the. context of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Id. (citing Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.1998)).

Spoliation of evidence is among the range of conduct for which a court may assess sanctions using its inherent powers. See Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.2004) (“The imposition of a sanction... for spoliation of evidence is an inherent power of federal courts.”); accord Union Pump Co. v. Centrifugal Technology Inc., 404 Fed.Appx. 899, 905 (5th Cir.2010). .But the conduct at issue in this motion is covered by Federal Rule of Civil Procedure 37 as amended effective December 1, 2015, to provide sanctions against a party for the failure to preserve electronically stored information. See Fed..R. Civ. P. 37(e) (“If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.”).

Under 28 U.S.C. § 2074(a) and an order of the United States Supreme Court, Rule 37(e) as amended governs all civil cases commenced after December 1, 2015 and, “insofar as just and practicable, all proceedings then pending.” http://www. supremecourt.gov/orders/courtorders/frcv 15(update)_1823.pdf. The Court finds that applying the standards of Rule 37(e) as amended to Plaintiffs’ motion is both just and practicable. Accordingly, insofar as Plaintiffs seek as a sanction for the Court to “instruct the jury that it may or must presume the information was unfavorable to” Mr. Trombetta, Plaintiffs’ must show, and the Court must find, “that the party acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e).

B. Analysis

Mr. Trombetta was deposed on September 16, 2013. See Dkt. No. 241 at 4. During the deposition, Mr. Trombetta testified that he deleted emails shortly before he resigned from Orchestrate:

Q: And then you showed your guilt by deleting the e-mails, or thinking you had covered your tracks, you went back and deleted this so we couldn’t catch you, right?

A: I may have.

Q: Oh, answer it truthfully. You know for a fact you deleted massive amounts of e-mails, so admit it.

A: I may have.

Q: No. Tell the truth unequivocally to this judge: I went back and deleted stuff to cover my tracks, right?

A: I may have deleted stuff.

Q: No, no. Unequivocally, admit it.

Q: You intentionally deleted e-mails to cover you tracks on the way out the door, correct?

A: On some of them, I may have.

Id. at 6 (p. 124, L. 1-13,16-19).

Q: So, sir, did you delete e-mail off of the Orchestrate e-mail server to cover your tracks? Yes, no, or I don’t remember?

A: I don’t remember off the — off the server.

Q: Did you delete them somewhere else that you do remember?

A: I deleted some e-mails.

Id. at 7 (p. 125, L. 7-13).

Mr. Trombetta also testified that he anticipated litigation when he resigned from Orchestrate and when he deleted the emails at issue:

Q: For example, one thing that you— that resignation letter, you practiced it, you did a bunch of drafts of it and you were frying to set up defenses for a potential lawsuit, right?

A: No.

Q: You didn’t practice it?

A: No.

Q: You didn’t have several drafts of it?

A: I had different drafts.

Id. at 10 (p. 143, L. 8-16).

Q: All right. Okay. So back on your resignation. You certainly were concerned that your new career path might — might, not would — might cause you to get sued?

A: I may have thought that.

Q: Okay. So when you were consider— you were considering that as you went through the multiple drafts of your resignation letter, correct?

A: Yes.

Id. at 11 (p. 147, L. 8-11,14-16).

Q: Okay. So let’s put it this way. While you were doing the multiple drafts of your e-mail, you knew you might get sued. Can we at least agree on that?

A: I — I might have been sued.

Id. at 13(p. 179, L. 19-22).

In response to the spoliation motion, Mr. Trombetta submitted a declaration [Dkt. No. 260-1 at 4-7] in which he states that it was his understanding that Orchestrate used a secure server to backup all emails; that he had no access to the server; and that, if the emails were backed up, he would have been incapable of deleting them from the server. Mr. Trombetta also states that Orchestrate’s IT department could access his email account both during and after his employment and that, after he resigned from Orchestrate, his emails were forwarded to Lance Wilson.

Mr. Trombetta also states that, while working for Orchestrate, during the normal court of business, he deleted emails on a regular basis unless there was a specific business reason to keep them. He asserts that “I did not know or anticipate that any of the e-mails I deleted within the normal course of my work-for Orchestrate would be used in a lawsuit against me or anyone else.” He also states that emails that he deleted in the normal course of his work for Orchestrate would have related solely to his work at Orchestrate and would not have discussed his resignation from Orchestrate or his work for BP. «

In his Declaration, Mr. Trombetta states that, during approximately the seven days before he left his job at Orchestrate, he forwarded approximately ten to fifteen emails from his Orchestrate work email account to a private Hotmail email account owned by him. According to Mr. Trombet-ta, during this litigation, either he or someone working with or on behalf of attorneys representing Mr. Trombetta or BP retrieved all of those emails, and it is his understanding that they have been produced to Plaintiffs. Mr. Trombetta further states that, after forwarding these emails to his private Hotmail email account, he may have deleted these emails from the “sent” and “deleted items” folders in his Orchestrate work email account but that he has no specific recollection of deleting those emails from either the “sent” or “deleted items” folders.

Mr. Trombetta also states that, after he left his job at Orchestrate on April 8, 2013, he no longer had access to his Orchestrate work email account but that Orchestrate and its employees did. As a result of his lack of access, Mr. Trombetta is unable to verify whether the ten to fifteen epiails that he forwarded from his Orchestrate work email account to his private Hotmail email account were removed from either the “sent” or “deleted items” folders. Mr. Trombetta asserts that he does not know what happened to his email account after he left Orchestrate, who had access to the account, or how it was handled after April 8, 2013. Mr. Trombetta also states that Orchestrate would have been the only entity with access ■ to his Orchestrate email account after April 8,2013.

In his declaration, Mr. Trombetta also states that he never removed or deleted an email from Orchestrate’s servers. And, other than the emails deleted in the regular course of his work for Orchestrate and the ten to fifteen emails that he forwarded from his Orchestrate email account to his private Hotmail account, Mr. Trombetta is not aware of and has no specific recollection of any other email that has ever been deleted or removed from any folder in his Orchestrate email account.

In reply, Plaintiffs submitted the Affidavit of Murugesan Jambukesan. See [Dkt. No. 268 at 6-8]. Mr. Jambukesan is the Chief Information Officer of Plaintiff Viva-ture, Inc., and his duties include oversight of Vivature’s data center, network security, and email servers. As part of his duties, Mr. Jambukesan is familiar with Vivature’s email system and backup policy. Mr. Jam-bukesan understands that Defendants are claiming that Plaintiffs failed to explain why Mr. Trombetta’s deleted emails are not retrievable from Plaintiffs’ backup servers and are questioning whether any attempt was made to retrieve Mr. Trombet-ta’s deleted emails.

In his affidavit, Mr. Jambukesan states that he participated in the unsuccessful attempt to recover Mr. Trombetta’s emails from the backup servers and explains some reasons why the attempt was unsuccessful. Mr. Jambukesan explains that Vi-vature’s servers automatically back up emails starting at 7:00 p.m. every night. If an email, either sent or received, is deleted from a user’s account before the next backup runs the following day at 7:00 p.m., the email will not be retained on the server or on a backup and will be lost forever. Mr. Jambukesan also explains that, when the backup runs, emails are backed up to tapes. When the backup is complete, the backup tape is overwrite protected for five days. After five days, the tape is eligible to be overwritten by a new backup. At any given point in time, Vivature has the ability to access backup copies from the previous five days.

In his affidavit, Mr. Jambukesan also states that Vivature preserves a monthly backup tape at the first of every month, for twelve months. The monthly backup shows a snapshot of a user’s email account when the backup , was run.. This monthly backup only contains the email folders and emails that are present on the day of the backup. Because Mr. Jambukesan was not alerted to the possibility that Mr. Trom-betta had deleted emails until May 2013, the backups that Vivature had at that time would not have captured emails deleted in March 2013.

Attached to Mr. Jambukesan’s affidavit are an email from Mr. Trombetta’s email dated March 21, 2013 from his Vivature account to his Hotmail account that was produced by Mr. Trombetta in this case, see id. at 10-21 (Bates Stamped TROM-BETTA_ORCHESTRATE 0000035-0000046), and a screen shot from the monthly backup kept after March 2013 that shows what Mr. Trombetta left unde-leted from his sent box, see id. at 9. The email is not listed in the screen shot. According to Mr. Jambukesan, “[t]his confirms that Trombetta did delete emails, including emails which he sent to his Hot-mail account, which Plaintiffs have no record of and are not able to recover. Despite our backup systems, these emails are irretrievable by Plaintiffs’ system no matter what further efforts are made by Plaintiffs.” Id. at 8.

The evidence establishes that Mr. Trom-betta was aware of potential litigation at the time that he deleted the emails and that he knew or should have known that emails on certain subjects, such as his leaving Orchestrate to go work for BP, might be relevant to the litigation. And it appears that the deleted emails may, at least in part, have been relevant, as demonstrated by the email attached to Mr. Jambukesan’s affidavit. The deleted email, a sales status report update by Mr. Trom-betta, discusses, in part, the “change in relationship” between BP and Cleveland State, which could be relevant to Mr. Trombetta’s alleged attempts to divert business from Orchestrate to BP. See Dkt. No. 268 at 7-21.

But it is less clear whether Mr. Trom-betta acted in bad faith or with the intent to deprive another party of the information’s use in the litigation because there is only equivocal evidence about his state of mind at the time that he deleted the emails. In his deposition, Mr. Trombetta admitted that he deleted emails and that he “may” have done so to “cover his tracks.” In his declaration, however, he states that he deleted emails in the ordinary course of business only, and, even though he admits that he forwarded some emails to his personal Hotmail account, he testifies that those emails have been produced to Plaintiffs in this litigation.

Considering the totality of the circumstances concerning Mr. Trombetta’s deletion of emails on the eve of his departure from Orchestrate, including Mr. Trombet-ta’s conflicting and (even considering only his deposition) equivocal testimony on the issue, the Court finds that Plaintiffs have failed to show that Mr. Trombetta destroyed any.emails.in bad faith or with the requisite intent to deprive Plaintiffs of the use of them in this litigation. Even though the evidence is troubling — Mr. Trombetta gave evasive answers at his deposition, only to provide more definite statements in a later-created declaration — because, the supporting evidence of intent or bad faith is not sufficient, the Court concludes that sanctions should not, as Plaintiffs request, be imposed.

Plaintiffs’ Motion for Sanctions Against Anthony L. Trombetta for Spoliation of Evidence [Dkt. No. 240] is DENIED.

III. Motion for Sanctions Against All Defendants

Plaintiffs filed an omnibus motion in which they seek sanctions against Defendants for providing false' deposition testimony and exhibits, providing false affidavits, violating the Court’s Order on Pending Discovery Motions [Dkt. No. 170], violating agreed temporary restraining orders and an agreed temporary injunction, and “other obstreperous acts.” See Dkt. No. 232.

Plaintiffs seek a monetary sanction of at least $100,000, plus at least $25,000 for fees and costs incurred by Plaintiffs “in having to deal with the sanctionable conduct described” in this motion, and additional monetary sanctions for fees and costs related to the motion. Plaintiffs also seek an order for the parties to select a mutually agreeable third-party electronic discovery vendor to forensically locate, capture, and copy electronically stored information from BP and from Mr. Trombet-ta’s personal Hotmail account. And Plaintiffs ask the Court to hold Defendants in civil contempt for violating the agreed temporary injunction and agreed temporary restraining orders.

Defendants filed a response to the motion, see Dkt. No. 257, and Plaintiffs filed a reply, see Dkt. No. 262.

For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part the Motion for Sanctions Against All Defendants [Dkt. No. 232].

A. False deposition testimony and exhibits

Plaintiffs seek sanctions based on Mr. Trombetta’s admissions concerning false deposition testimony and false evidence prepared for and used during depositions. Plaintiffs deposed Mr. Trombetta for the second time on January 6, 2016. During the deposition, Mr. Trombetta admitted that he had provided false testimony in the course of this second deposition and that BP’s designated corporate representative Jeff Perlman provided false testimony during a court-ordered Federal Rule of Civil Procedure 30(b)(6) deposition and that Mr. Myers provided false documents to be used during the depositions.

1. Legal Standards

As explained above, courts have inherent powers to sanction litigants for a full range of litigation abuses. See Chambers, 501 U.S. at 44, 46, 111 S.Ct. 2123. And Federal Rule of Civil Procedure 37(b)(2), which authorizes sanctions for violation of a court’s discovery order, may also provide a basis for imposing sanctions against a litigant who gives false testimony at a deposition, despite the absence of a court order. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.1990) (holding that an order is not always a prerequisite to the imposition of sanctions, and sanctions can be imposed under Federal Rule of Civil Procedure 37(b)(2) even without an existing motion to compel).

2. Analysis

On July 15, 2015, the. Court granted Plaintiffs’ Motion to Compel a Rule 30(b)(6) deposition after BP had twice produced corporate representative Kelly Myers, who was not prepared to testify and had not been prepared to testify on designated topics. See Dkt. No. 170. The Court ordered BP to produce a fully-prepared designated corporate representative other than Mr. Myers for deposition. BP designated Mr. Perlman as its corporate representative, and he was deposed on September 29, 2015.

Mr. Perlman relied on documents for his testimony concerning Mr. Trombetta’s contacts with Plaintiffs’ former clients. Those documents included Perlman Exhibit 152, which was prepared by attorney Sandra Liser, and Perlman Exhibit 178, which was prepared by Mr. Myers. Mr. Perlman had not reviewed the exhibits before the deposition and assumed that they were achúrate. See Dkt. No. 233-1 at 76, 83.

Mr. Trombetta was subsequently deposed on January 6, 2016. Mr. Trombetta was instructed on the definition of perjury from Webster’s online dictionary at the beginning of his deposition. See Dkt. No. 257-1 at 5-6. Specifically, Mr. Trombetta was told that perjury is “[t]he crime of telling a lie in a court of law after promising to tell the truth” and “[t]he voluntary violation of an oath or a vow either by swearing to what is untrue or by omission.” Id.

Later, after being confronted with documentary evidence (including his own emails) contradicting his testimony, Mr. Trombetta testified that he had committed perjury, as previously defined, during the deposition. See Dkt. No. 233-1 at 30 (p. 265, 1. 1-5); 32 (p. 269, 1. 2-13); 33-34 (p. 280, 1. 25-p. 281, 1.2); 36-37 (p. 287, 1.22-p. 288,1.1); 37-38 (p. 288,1. 22-p. 289,1. 7); 38 (p. 289,1.16-24), 40 (p. 292,1.1-4).

Mr. Trombetta also testified that Mr. Perlman, as BP’s designated corporate representative, committed perjury during the court-ordered Rule 30(b)(6) deposition, see id. at 11 (p. 201, 1. 14-18); 12 (p. 213, 1. 16-19); 13 (p. 214,1. 12-20); 14 (p. 232,1. 4-17); 27 (p. 262, 1. 20-24), 29 (p. 264, 1. 17-25); 31 (p. 268,1. 23-p. 269; 1. 1); 38 (p. 289, 1. 25-p. 290, 1. 18); 40 (p. 292,1. 16-20), and that Mr. Myers provided documents containing false statements for use in the deposition, see id. at 37 (p. 288, L.10-13), 38 (p. 298, L. 12-15), 39 (p. 290, L. 20-23), 40 (p. 292; 1. 21-25). Mr. Trombetta originally testified that both Perlman Exhibit 152 and Perlman Exhibit 178 were accurate, but, later, after being confronted with his own controverting emails, he testified that the two exhibits contained false information and that Mr. Perlman committed perjury in his deposition in testimony based on the two exhibits. See Dkt, No. 233-1 at 10 (p. 209, L. 2-6), 11 (p. 210, L. 4-23), 12 (p. 214, L.9-19), 14 (p. 232, L.4-17), 27 (p. 262, L. 20-24), 31-32 (p. 268, L. 19-p. 269, L. 1), 33-34 (p. 280, L. 20-p. 281, L.6, 35 (p. 283, L. 10-12), 39 (p. 290, L. 10-18).

And Mr. Trombetta testified that both Defendants’ attorney Sandra Liser filed an affidavit with the court that contained false statements, see id. at 21 (p. 240, L. 2-18), 21-22 (p. 240, L. 24-p. 241, L. 9), 22-23 (p. 241, L. 22-p. 242, L. 5), and that he had violated the Agreed Temporary Restraining Order and both his written employment agreement and confidentiality agreement with Plaintiffs, see id. at 6 (p. 191, L. 12-17), 25-26 (p. 259, L. 15-p. 260, L. 9), 28 (p. 263, L. 3-15), 31 (p. 268, L. 7-15). •

In their response to the motion for sanctions, see Dkt. No. 257, Defendants challenge Mr. Trombetta’s admissions of perjury on the basis that the definition given to Mr. Trombetta did not include a “willful intent” element. See United States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir.2013) (“A witness testifying under oath or affirmation [commits perjury] if she gives [1] false testimony concerning [2] a material matter with [3] the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.”). But Plaintiffs reply that they seek sanctions for false testimony, not for what legally qualifies as perjury.

Defendants also argue that there is no evidence of willfulness. They contend instead that Mr. Trombetta’s admissions of false testimony were due to mistake or faulty memory. And, Defendants argue, because Mr. Perlman was relying on documents prepared by others, he did not willfully provide false testimony or do so in a manner that was intentionally deceitful and in bad faith.

Mr. Perlman’s lack of independent knowledge of the facts- contained in the two exhibits does not excuse the conduct of those with relevant knowledge who prepared them for his use as BP’s corporate representative. Defendants respond that all of the information provided in Perlman Exhibit 178 came from Mr. Trombetta— because Perlman Exhibit 178 consists of Mr. Myers’s handwritten notes about what Mr. Trombetta reported during a September, 2015 conference call, after and based on which Perlman Exhibit 152 was created to provide a listing of various schools, information regarding BP’s previous relationship with those schools, and information about BP’s contact with those schools. Defendants contend that Mr. Trombetta is therefore the only witness who would be capable of testifying about the accuracy of the facts and statements contained in Perl-man Exhibit 178, and that, according to Defendants, is precisely what he did at his deposition. Defendants assert that Perl-man Exhibit 178 would only be inaccurate in a manner that would justify sanctions if Plaintiffs could show that Mr. Myers wrongly recorded the information that Mr. Trombetta told him during that conference call and did so intentionally.

Defendants also argue that Plaintiffs set traps for Mr. Trombetta by asking him questions before showing him his own emails that contradicted his answers. But, as Plaintiffs point out in reply, there would have been no “trap” if Mr. Trombetta had answered truthfully.

And Defendants argue that there was no harm because Mr. Trombetta’s testimony was corrected during the deposition. Although Plaintiffs vigorously assert otherwise, that is a relevant consideration as to what, if any, sanctions may be appropriate. See, e.g., Morris v. McMaster-Carr Sup ply Co., No. 01 C 6349, 2002 WL 1290390, at *3 (N.D.Ill. June 10, 2002). But the Court also cannot ignore Mr. Trombetta’s false testimony simply because Plaintiffs’ counsel became aware of it and successfully confronted him during the deposition.

There is a-line — perhaps at times a fine line — between a mistake or oversight that leads to inaccurate or incorrect testimony and a falsehood or intentional omission. Part of what defines that line is a matter of intent or willfulness. That is also what distinguishes discovery conduct that is sanctionable under the Court’s inherent powers from that which is not properly subject to sanctions. As explained above, the threshold for imposing inherent power sanctions is high, and the Court must make a specific finding that the sanctioned party acted in bad faith to impose sanctions.

To be sure, ‘“[f]alse testimony in a formal proceeding is intolerable. We must neither reward nor condone such a ‘flagrant affront’ to the truth-seeking function of adversary proceedings.’” 3M Innovative Props. Co. v. Tomar Electronics, No. 05-7576(MJD/AJB), 2006 WL 2670038, at *6 (D.Minn. Sept. 18, 2006) (quoting ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323, 114 S.Ct. 835, 127 L.Ed.2d 152 (1994)). On the other hand, courts have understandably concluded that, absent evidence'of intentional or willful false testimony, sanctions are not waiTanted, and, “if [a party] disagrees with deposition testimony given by witnesses, he is free to challenge that testimony through his own factual assertions, impeach it through other evidence, and cross-examine the witnesses vigorously at trial.” Taylor v. AFS Techs., Inc., No. CV-09-2567-PHX-DGC, 2010 WL 4955166, at *1 (D.Ariz. Dec. 1, 2010)

The Court is presented with very unusual facts. Regardless of the legal definition of perjury, Mr. Trombetta repeatedly testified that — based on- the definition that he was provided — he had either “lie[d] in a court of law after promising to tell the truth” or “voluntar[ily] violated]. ...an oath or a vow either by swearing to what is untrue or by omission” in his deposition and at other times and that Mr. Myers and Mr. Perlman did so as well.

That is, Mr. Trombetta, using the definition of “perjury” that Plaintiffs’ counsel supplied, testified to making incorrect or false statements under oath and to Mr. Perlman’s doing so as well — but not to either his or Mr. Perlman’s acting intentionally,, willfully, or in bad faith in doing so. As Defendants point out, Plaintiffs’ counsel’s pattern of questioning consisted of confirming that the witness previously credited the accuracy -or truthfulness of a statement or document, showing another document that demonstrated that to be incorrect, and then getting Mr. Trombetta to agree that he or Mr. Perlman therefore committed perjury (as defined) in originally affirming the truth or accuracy of the incorrect or false statement. As Defendants note, Plaintiffs will have ample opportunities in this case to attempt to use these inaccuracies, inconsistencies, and contradictions to impeach these witnesses and impugn their credibility.

Yet the Court is left to guess why, when, “[p]rior to Jeff Perlman’s deposition, in September, 2015, Perlman, Trombetta, Kelly Myers, David Icenhower, and others from BP got together on a joint meeting/conference call to discuss some of the topics that Perlman would be deposed about during his 30(b)(6) deposition on September 29, 2015,” the documents that were created out of that call — including Perlman Exhibit 152 and Perlman Exhibit 178 — -reflected or contained inaccurate or false statements regarding Mr. Trombet-ta’s contacts with certain schools. Dkt. No. 257 at 7.

Defendants suggest “the evidence points more towards a faulty memory and innocent mistakes.” Id. at- 10-11. That puts matters in the best possible light.

The evidence may also suggest that at least BP and Mr. Trombetta, if not others, failed to take reasonable steps — such as reviewing emails that were available to them — to ensure that Defendants would provide complete and accurate information in discovery. See, e.g., Morris, 2002 WL 1290390, at *2. It may reflect a lack of thorough preparation and a failure to conduct a reasonable investigation to ensure the accuracy of information that Mr. Trombetta testified is relevant to “a pretty important issue in this case.” Dkt. No. 257-1 at 21 (p. 269, 1. 6-13). Or it may, as Plaintiffs would have the Court infer, reflect an intentional, coordinated effort to withhold or conceal information that would be damaging to Defendants’ efforts to avoid liability on Plaintiffs’ claims.

But, despite Mr. Trombetta’s remarkable admissions of “perjury,” the record presently before the Court does not support a finding that inherent power sanctions are warranted here. Accordingly, the Court denies the motion for sanctions on this ground.

The Court does not lightly reach this determination, faced with this kind of testimony from Mr. Trombetta — a defendant and witness who, as noted above, in his first deposition, gave evasive deposition answers only to provide more definite statements in a later-created declaration— and faced with this kind-of troubling evidence in connection with Mr. Myers — a defendant and witness who, as a Rule 30(b)(6) corporate representative, was repeatedly so unprepared to testify on designated topics that the Court took the unusual step of ordering BP not to designate him for the ensuing Rule 30(b)(6) deposition necessitated by his deficient testimony (or lack thereof). And the Court does not lightly deny sanctions here in the face of Defendants’ other conduct at issue in Plaintiffs’ various sanctions motions and the Court’s prior orders, including as recounted above, and where the Court has, on multiple occasions, prev