Citations
- 94 F. Supp. 3d 893
Full opinion text
OPINION AND ORDER
NORAH McCANN KING, United States Magistrate Judge.
This matter is before the Court on Little Hooking’s Motion for Sanctions for Lack of Reasonable Inquiry and Discovery Abuses, ECF 264 (“Motion for Sanctions ”), and Little Hooking’s Renewed Motion to Broaden Sanctions Discovery, ECF 296 (“Motion to Broaden Sanctions Discovery ”). For the reasons that follow, the Motion for Sanctions is GRANTED in part and DENIED in part and the Motion to Broaden Sanctions Discovery is GRANTED in part and DENIED in part.
I. FACTUAL ALLEGATIONS AND DEFENSES
Little Hocking is an Ohio non-profit corporation that supplies water to eight townships in Washington County, Ohio, and to two townships in Athens County, Ohio. First Amended Complaint, ECF 23, ¶ 21 (‘Amended Complaint”). Little Hocking owns wellfields consisting of approximately forty-five (45) acres of land as well as the soil and groundwater beneath the land. Id. at II26. The wellfields are located in the State of Ohio, directly across the Ohio River from defendant E.I. du Pont de Nemours and Company’s (“DuPont”) Washington Works Plant. Id. at ¶29. The wellfields include four production wells that, Little Hocking alleges, “have been and continue to be contaminated by DuPont’s release of [hazardous [wjastes.” Id. at ¶32. Little Hocking also alleges that the hazardous wastes have contaminated its water distribution system, which consists of pipes, pumps and storage tanks. Id. at ¶ 3.
The alleged hazardous wastes consist of “perfluorinated compounds (including per-fluorinated acids, sulfonates, phosponates, and telomer alcohols), precursors to per-flourinated compounds and/or other toxic and hazardous materials that may be released with these perfluorinated compounds.” Id. at ¶ 5. The foregoing are collectively referred to as “PFCs.” PFCs are synthetic carbon chain compounds that contain fluorine and are used in the manufacture of numerous consumer products. Id. at ¶ 42. According to Little Hocking, DuPont uses at least one PFC, ammonium perfluorooctanoate (“APFO”) in connection with its Teflon® related products. Id. at ¶ 44. APFO is the ammonium salt of “PFOA,” the acronym used to identify the chemical Perfluorooctanoie acid commonly referred to as “C8.” Id. at ¶¶ 45 n. 1, 48. Little Hocking alleges that DuPont has used PFOA at its Washington Works plant from at least 1951 to the present. Id. at ¶ 46.
According to Little Hocking, DuPont has known of the “bio-persistence and toxicity of PFOA” for some time. Id. at ¶ 52. Although Little Hocking concedes that DuPont is under no obligation to cease the production, purchase or use of PFOA, plaintiff alleges that the release of such “hazardous wastes” endangers the safety, health and welfare of the community — in particular, Little Hocking’s water users. Id. at ¶¶ 52-58. Exposure to PFOA has been identified by the United States Environmental Protection Agency (“EPA”) as potentially harmful to human health. Id. at ¶¶ 91-96. Little Hocking alleges that DuPont was aware of the harmful effects of exposure to PFOA on its employees as early as 1981 through, inter alia, blood sampling data. Id. at ¶¶ 60-67. Little Hocking further alleges that DuPont was aware of contamination of plaintiffs well-fields and distribution system as early as 1984. Id. at ¶ 68. Little Hocking apparently did not become aware of the presence of PFOA in its wellflelds, or of the threat to the public at large, until January 2002, during a West Virginia Department of Environmental Protection meeting. Id. at ¶ 81.
Once Little Hocking learned of the presence of PFOA in 2002, its General Manager, Bob Griffin, investigated the scope of the problem “to find short and long-term solutions to the problem, and to advise Little Hocking’s water users of what the small organization knew about the scope of the public health threat.” Id. at ¶ 149. Little Hocking alleges that its efforts to address the contamination has resulted in fees and expenses, including consultant fees. Id. at ¶¶ 164-168.
In 2005, DuPont entered into a Memorandum of Understanding with the EPA in order to assess the past and current release of PFOA from the Washington Works Plant. Id. at ¶ 130. According to Little Hocking, the Final Report was inconclusive because of omissions in the data supplied by defendant. Id.
In November 2007, DuPont, “in consultation with Little Hocking and its consultants[,]” completed construction of a building (“the Carbon Plant”) that attempted to lower PFOA concentrations in the water sent to Little Hocking’s water users. Id. at ¶ 135. Little Hocking has spent “hundreds of staff and professional hours planning and reviewing plans for the Carbon Plant that now houses Little Hocking’s entire water treatment facilities.” Id. at ¶ 150. According to' Little Hocking, the Carbon Plant was rendered necessary by DuPont’s hazardous wastes. Id.
Little Hocking also alleges that the release of hazardous wastes by defendant has affected not only human health and the environment, but also the operations of its business, resulting in various expenses, including costs associated with its participation in the review of the Carbon Plant design plans and its testing of the levels of PFOA and other PFCs in the blood of approximately 25 of its water users. Id. at ¶¶ 148-180. Little Hocking asserts a number of claims, including claims under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (“RCRA”), public and private nuisance, negligence, trespass, “abnormally dangerous or ultrahazardous activity,” conversion, unjust enrichment and declaratory judgment and indemnification. Id. at ¶¶ 181— 251. On March 10, 2015, the Court granted in part and denied in part DuPont’s motion for summary judgment and granted Little Hocking’s motion for summary judgment on its claims for trespass and conversion, leaving for trial Little Hocking’s RCRA claims and claims for nuisance and negligence. Opinion and Order, ECF m (“3/10/15 Order”).
II. PROCEDURAL BACKGROUND RELATED TO DISCOVERY
Both parties have vigorously litigated this action, which has been marked by years of protracted discovery and multiple discovery disputes. As it relates to the present dispute, Little Hocking previously sought in discovery, inter alia, information regarding the migration of C8 contamination from DuPont’s Washington Works facility to Little Hocking’s well-fields. Opinion and Order, ECF 194 (“3/25/13 Order”), p. 6. Little Hocking specifically sought information regarding DuPont’s groundwater flow model as well as information relating to DuPont’s production wells, which Little Hocking believed was contained in the files of the Washington Works Power & Services unit (“P & S unit”). Id. On June 28, 2011, DuPont produced to Little Hocking its groundwater flow model which, DuPont represented, captured all relevant project files during the course of another PFOA-related class action. Id. at 8. When Little Hocking later advised that it could not locate such files, DuPont produced in January 2013 a zip file containing electronic information (in the form of Microsoft Excel spreadsheets) underlying its groundwater flow model, including a sampling of well flow meters from 1957 to 1980, and well flow rates from 1997, 1998, 1999, and 2001. Id. at 9.
This Court concluded in February and March 2013 that certain information requested by Little Hocking fell within the ambit of discoverable information. See generally Opinion and Order, ECF 169 (“2/19/13 Order”); 3/25/13 Order. More specifically and relevant to the parties’ present dispute, the Court ordered DuPont, inter alia, to:
(1) Search for and produce certain historic, i.e., pre-2006, well pumping production data (2/19/13 Order, pp. 64-66; 3/25/13 Order, pp. 11,18-22);
(2) Search for and produce drain information, including historic and current information about drain maintenance issues and the layout of drains, at the Washington Works facility (2/19/13 Order, pp. 68-70; 3/25/13 Order, pp. 49-60);
(8) Search for and produce the Groundwater Pollution Source Inventory and Groundwater Protection Plan for the Washington Works facility (2/19/13 Order, pp. 61-64; 3/25/13 Order, pp. 6-9, 13);
(4) Search for and produce responsive information from the P & S unit at Washington Works (2/19/13 Order, pp. 32-39);
(5) Provide supplemental answers to Interrogatory Nos. 19, 32, 66, 68, 69 (2/19/13 Order, pp. 96-97, 99-101).
In addressing the parties’ discovery disputes and the scope of DuPont’s obligation to produce this information, the Court specifically permitted DuPont to rely on its discovery searches and the documents produced in other PFOA-related action, including Leach v. E.I. du Pont de Nemours and Company, No. 01-6-608 (Cir. Ct. Wood County W. Va.) (“the Leach action”) and two other actions in which the last full collection and review of documents occurred in 2007. 2/19/13 Order, pp. 5-21.
After DuPont produced summaries of well pumping data (contained in a series of Excel spreadsheets) for the years 2006 to 2012 on January 7, 2013, Little Hocking asked DuPont about production of pre-2006 well pumping information. 3/25/13 Order, p. 10. In response, DuPont represented to Little Hocking that, from the early to mid-1980s to 2006, it “tracked well production information on a computer system named Wantage’ that ran on a VAX computer and stored this information on magnetic tapes.” 3/25/13 Order, p. 11 (citing Declaration of John T. Myers, ECF 164-10, dated January 24, 2013) (“Myers 1/21/13 Declaration ”). Several years ago, DuPont transitioned to a new system, IP-21, for recording well flow data. Id. Before that transition, Mr. Myers took steps to retrieve and store “old data”:
11. Vantage could only be run on a VAX computer. VAX computers utilize what is now outdated technology, and to my knowledge, VAX computers haven’t been made since the early 1990’s.
12. The Vantage system was a DuPont internal system, but had less data reporting capabilities than IP-21, and stored its back-up data on digital tapes (in VAX format). Limited data was also stored on the VAX hard drive itself.
13. Before the transition to IP-21, I personally attempted to revive some of the old data, but the tapes were so degraded that I was unable to retrieve usable information. The tapes actually broke my tape reader machine, which ended my attempts to revive the data.
14. Recognizing the limitations of the tape drive data backups, in the mid-2000’s, I began to store raw VAX data on my desktop workstation hard drive. The data retrieved could only be processed at the time by a VAX machine running Vantage; in essence, my computer was replacing the tape backups.
15. At Washington Works we no longer have a VAX machine. The unit previously used to run the Vantage system was dismantled at the time of the transition to IP-21 due to its age, the fact that it was obsolete technology and the unavailability of replacement hardware.
16. Around the time of the transfer to the IP-21 system, I developed a complicated and labor intensive process to translate the'binary VAX history data into a comma separated value (“.esv”) text file, which could be read by a spreadsheet. I tested this process on some of the post 2006 data; however because it was extremely time consuming and data intensive it was impractical to process all the retained data.
17. To illustrate the data intensive nature of this process; to convert VAX binary data into a .csv text file, it would ' multiply the file size by a factor of nearly 100, and thus greatly burden data storage capabilities. Because historical information of this nature was not required by the business, the process was not carried out on all the data.
18. The process described in paragraphs 16 and 17 above could only be used on raw data that had been previously exported in VAX format from a VAX computer running Vantage to a PC.
Myers 1/21^/13 Declaration, ¶¶ 11-18. Based on this information, DuPont represented to Little Hocking in January 2013 that DuPont was unable to determine whether these backup tapes, which had degraded and contained well data, could be located. 8125/13 Order, p. 12. DuPont further represented that “‘even if the tapes could be located, they could not be read without a VAX running the Vantage program, both of which are defunct.’ ” Id. (internal citations omitted). Thia Court permitted Little Hocking to pursue discovery “related to the [alleged] failure to preserve or the destruction of the pre-2006 pumping records maintained on back-up tapes as well as the Vantage system and/or VAX computer[.]” Id. at 28. After DuPont discovered additional media that might contain historic well data, the Court later ordered DuPont to provide Rule 30(b)(6) testimony regarding this media as well as the Vantage system and VAX computer. Opinion and Order, ECF 208, pp. 8-9 (/%/26/13 Order ”).
On May 10, 2013, Little Hocking deposed Mr. Myers, DuPont’s Rule 30(b)(6) designee regarding these issues. Myers 5/10/13 Deposition. According to Little Hocking, this deposition revealed additional information related to the preservation and/or destruction of the well pumping data, including the loss or destruction of at least twenty (20) CDs containing well pumping data. Opinion and Order, ECF 278, p. 2 (“9/20/13 Order ”).
Following a May 20, 2013 status conference, the Court noted that “DuPont expects to produce, on a rolling basis, virtually all remaining well pumping data by June 15, 2013.” Order, ECF 219, p. 1 (“5/20/13 Order”). The Court therefore re-opened non-expert discovery “to permit plaintiff to conduct a Rule 30(b)(6) deposition regarding those documents[.]” Id. On July 10, 2013, DuPont produced two Rule 30(b)(6) corporate designees (Mr. Myers and Mark Eakle) regarding the maintenance, degradation or destruction of pre-2006 well records, the VAX and the Vantage system. ECF 286, p. 3 (“DuPont’s Final Status Report ”). After Little Hocking represented that DuPont had failed to preserve and had destroyed evidence, this Court denied without prejudice to renewal Little Hocking’s motion to broaden sanctions discovery. 9/20/13 Order, pp. 9-10.
On September 27, 2013, DuPont submitted its final status report regarding its compliance with the 2/19/13 Order and its response to the 9/20/13 Order. DuPont’s Final Status Report. DuPont located and produced on a rolling basis at least some well pumping data for every year from 1958-1980 and from 1991-2012. Declaration ofNiallA. Paul, ECF 286-1, ¶¶ 5-10, 14-22, 27-28 (“Paul 9/27/13 Declaration”)', Exhibits A and B, attached to Paul 9/27/13 Declaration (copies of summaries reflecting months and years for which well pumping data has been produced). However, “[djespite having expended hundreds of man hours and hundreds of thousands of dollars in discovery costs and attorneys’ fees,” DuPont could not locate well pumping data for 1981-1990, nor could it locate data for certain months in 1991, 2002, and 2003. Paul 9/27/13 Declaration, ¶ 29. DuPont produced all well pumping data stored in the Vantage folder. Id. at ¶ 34. DuPont made its final production of well pumping data on September 6, 2013, which included “all well pumping data that DuPont was able to restore and recover from the found storage media.” Id. at ¶¶ 17, 35.
Little Hocking now moves for sanctions in connection with DuPont’s multiple alleged discovery violations and alleged bad faith during the course of the discovery process. See generally Motion for Sanctions. Little Hocking also renews its request to broaden sanctions discovery related to DuPont’s alleged failure to preserve and/or alleged destruction of pumping well data and the means to read that data as well as discovery regarding the destruction of DuPont’s electronic database, Nexus. See generally Motion to Broaden Sanctions Discovery. These motions are now fully briefed and the Court will address each in turn.
III. APPLICABLE STANDARDS FOR MOTION FOR SANCTIONS
Although the Motion for Sanctions is not a model of clarity, the Court understands that Little Hocking seeks sanctions pursuant to Rules 26(g) and 37(b)(2), (c) and (d) of the Federal Rules of Civil Procedure as well as pursuant to this Court’s inherent authority. See Motion for Sanctions, pp. 11-12, 24-25, 42 (Clerk’s pagination); Little Hocking’s Reply in Support of Its Motion for Sanctions for DuPont’s Lack of Reasonable Inquiry and Violations of 2/19 Order (Doc. 26k), ECF 289, pp. 8, 10, 14, 17-19, 23 (Clerk’s pagination) (“Sanctions Reply ”); Little Hocking’s Response to DuPont’s Surreply to Little Hocking’s Motion for Sanctions, ECF 327, p. 6 (“Response to DuPont’s Sur-Reply ”) (Clerk’s pagination).
Rule 26(g) “requires an attorney or the party personally to certify [after reasonable inquiry] that discovery responses and objections are supported by nonfrivolous argument and are not aimed to harass, cause delay, or drive up litigation costs.” Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 854 (6th Cir.2010). See also Fed.R.Civ.P. 26(g)(1). Rule 26(g) therefore requires “that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.” Fed.R.Civ.P. 26 advisory committee’s notes. A court must impose “an appropriate sanction” should an attorney violate Rule 26(g) without “substantial justification.” Fed.R.Civ.P. 26(g)(3); Jones, 617 F.3d at 854. “The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.” Fed.R.Civ.P. 26(g)(3).
Rule 37(b)(2)(A) authorizes sanctions when a party fails “to obey an order to provide or permit discovery.” By this authority, a court may issue such orders as are just. Rule 37(b)(2)(A)(i)-(vii). Instead of or in addition to these orders, Rule 37(b)(2)(C) requires a court to “order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure [to comply with an order], unless the failure was substantially justified or other circumstances make an award of expenses unjust.”
Sanctions are also available under Rule 37(c) for violations of Rule 26 of the Federal Rules of Civil Procedure. More specifically, Under Rule 26(a)(2), a party must disclose information relating to an expert witness whose testimony may be offered at trial. Fed.R.Civ.P. 26(a)(2). Rule 26(e) requires a party to supplement its disclosures and other discovery responses “in a timely manner.” Fed.R.Civ.P. 26(e). Failure to comply with Rule 26(a) or (e) may result in the imposition of sanctions pursuant to Rule 37(c)(1) unless the violation was either harmless or substantially justified. Fed.R.Civ.P. 37(c)(1).
Rule 37(d) authorizes the imposition of sanctions in connection with a party’s failure to make Rule 26(a)(1) disclosures, Rule 37(c)(1), or failure to respond to written discovery requests or failure to attend one’s own deposition. Fed.R.Civ.P. 37(d)(1)(A). Sanctions for a violation of Rule 37(d)(1) “may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37(d)(3). A court is vested with wide discretion in determining an appropriate sanction under Rule 37. See, e.g., Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642-43, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Cornette v. Rousselle Corp., 647 F.2d 164, 164 (6th Cir.1981).
Little Hocking also seeks the imposition of sanctions pursuant to this Court’s inherent authority because of DuPont’s alleged spoliation of evidence. “[A] federal court’s inherent powers include broad discretion to craft proper sanctions for spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir.2009) (en banc). See also Metz v. Unizan Bank, 655 F.3d 485, 490-91 (6th Cir.2011) (rejecting the assertion that “inherent power sanctions are improper if Rule 11 also applies”); Chambers v. NASCO, Inc., 501 U.S. 32, 49, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (stating that inherent powers “can be invoked even if procedural rules exist which sanction the same conduct”); BDT Prods. v. Lexmark Int’l, Inc., 602 F.3d 742, 754 (6th Cir.2010) (“Harassing the opposing party, delaying or disrupting litigation, hampering the enforcement of a court order, or making improper use of the courts are all examples of the sorts of conduct that will support a finding of bad faith or improper purpose[.]”). “Spoliation is defined as the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.” United States v. Boxley, 373 F.3d 759, 762 (6th Cir.2004) (citation omitted). Unlawful spoliation may consist of not only the intentional destruction of evidence, but also the removal of evidence “with the ‘purpose of rendering it inaccessible or useless to [a party] in preparing its case....’” Id. (quoting Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir.1999)). In determining an appropriate sanction for spoliation, a court should craft a sanction that serves “both fairness and punitive functions.” Adkins, 554 F.3d at 652.
Little Hocking complains about DuPont’s multiple alleged discovery abuses and argues generally that such abuses warrant a variety of sanctions. However, Little Hocking fails to identify and analyze the particular authority governing each alleged abuse. Accordingly, the Court has attempted to organize the alleged abuses into general categories.
IV. WELL DATA
The parties’ sanctions-related filings focus primarily on DuPont’s numerous alleged defaults related to the production of, or failure to produce, its well data. Little Hocking claims contamination by both groundwater and air emissions. See, e.g., id at 20-21, 23-24, 28, 33. DuPont argues that the “ ‘revised groundwater modeling by DuPont supports the previous conclusion that no current groundwater migration pathway exists beneath the Ohio River to the Little Hocking Well Field’ ” and that the only possible pathway of C8 was transported via air emissions from its stacks by winds. Id at 5. See also Opposition to Motion for Sanctions, p. 14 (Clerk’s pagination) (explaining that its “strategy” is to rely on widely-accepted data “to assess the containment of PFOA in the groundwater surrounding Washington Works”); DuPont’s supplemental expert disclosures dated April 2, 2013, ECF 209-6, pp. 4-5 (Clerk’s pagination) (disclosing that expert Andrew Hartten may testify and opine regarding, inter alia, the following topics: “the environmental conditions surrounding the Washington Works facility, including but not limited to, the science of hydrogeology and the hydro-geology of the area at and around the Washington Works facility”; “the alleged leaching of PFOA through the soil to the groundwater”; “that it is not scientifically reasonable that the PFOA in the Little Hocking Well Fields arrived there via water migration from emissions of the Washington Works facility”; “that the majority of any PFOA in the Little Hocking Well Fields which might have come from the Washington Works facility would have been transmitted via air dispersion (rather than through or under the Ohio River)”; “that the migration of any such PFOA releases would not have occurred through underground water migration”; “that DuPont followed generally accepted scientific methods and practices to accurately and fully assess the hydrogeology around the Washington Works site and fully assess the leaching of chemicals through soil to a reasonable degree of scientific certainty to determine that any PFOA emissions in the Little Hocking Well Fields did not occur via underground water migration”).
Little Hocking contends that data from DuPont’s wells is necessary to test and refute DuPont’s assertion that the pumping of DuPont’s wells controls and prevents C8 from traveling to Little Hocking’s wellfields. See, e.g., Motion for Sanctions, pp. 14, 19, 25. For example, Little Hocking explains that well data records that show that DuPont’s wells are not pumping undermine DuPont’s assertion that its well pumping efforts prevent off-site contamination. ECF 167, pp. 10-11. Little Hocking also contends that the well data is necessary to undermine DuPont’s groundwater model. Id. at 11-12. Little Hocking therefore previously sought to compel well data “to test the veracity of DuPont’s claims[.]” See, e.g., ECF 264, pp. 3536 (explaining that well data is necessary to, inter alia, “evaluate subsurface pathways of migration from DuPont’s Washington Works facility”); ECF 120, p. 35 (“This Court should compel production of the well and drain records, which are necessary to test the veracity of DuPont’s claims about how waste moves in the subsurface” and that Little Hocking “seeks production of information regarding DuPont’s system of groundwater production wells ... because DuPont-influenced public reports conclude that these wells help control off-site groundwater contamination”).
A. Relevance and Burden Objections
Little Hocking argues that sanctions are warranted under Rule 26(g) and the Court’s inherent authority because DuPont acted in bad faith when it objected to the relevance of the well data and when it complained that the production of well data was unduly burdensome. See, e.g., Motion for Sanctions, pp. 15-17, 23-26 (Clerk’s pagination); Sanctions Reply, pp. 14-17 (Clerk’s pagination). More specifically, DuPont formally advanced this objection in 2010 in response to Little Hocking’s request for production:
DOCUMENT REQUEST NO. 11
All documents relating to groundwater flow at and/or near the Washington Works Facility, including all groundwater flow models (and drafts of such models) produced for the Washington Works Facility; all documents generated, reviewed, considered and/or relied on for the development of each groundwater flow model for the Washington Works Facility; and, all communications discussing groundwater flow at the Washington Works Facility.
RESPONSE:
DuPont objects to this request as being overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving, these objections and/or its General Objections, DuPont responds as follows:
See response to Request No. 5. DuPont will search for and produce, as kept in the ordinary course of business, non-privileged documents that are responsive to this Request and/or relate to environmental sampling on or around Washington Works.
DuPont’s Responses and Objections to LHWA’s First Set of Requests for Production of Documents, ECF 264-9, p. 2 (Clerk’s pagination) (dated September 22, 2010) (“Request No. II”).
According to Little Hocking, “throughout the end of 2011” and 2012, DuPont continued to resist production of the well data on the basis of relevance and burden. Motion for Sanctions, p. 16 (citing Declaration of Justin D. Newman, ECF 205-1, ¶¶ 8-9 (“Newman lp/21p/13 Declaration ”), which in turn cites to Declaration of Justin D. Newman, ECF 106-1 (“Newman 6/19/11 Declaration ”)). Little Hocking insists that DuPont’s “strategy” of claiming that DuPont’s production wells prevent the migration of C8 contamination further undermines .DuPont’s relevance objections. Id. at 25 (citing to Exhibit 2, attached thereto, for the proposition that any adjustment to DuPont’s production wells could affect on-site contamination and therefore that the underlying well data is “a key means” to discovering whether the production wells operated as DuPont claimed). Little Hocking also complains that DuPont failed to make a reasonable inquiry into the burden of, producing this information because DuPont’s outside counsel did not speak with Mr. Myers about well data until January 2013. Id. at 24 (citing Myers 5/10/13 Deposition, p. 22 (using deposition pagination)). According to Little Hocking, this failure is particularly egregious where, in response to a subpoena issued in 2005 by the Department of Justice (“DOJ” and “DOJ subpoena”), DuPont’s outside counsel, James P. Denvir, identified Mr. Myers “as the Well custodian” and “his methods of recording Well data were also well known to decision-makers at the Site.” Id. (citing Myers 5/10/13 Deposition, p. 99 (using deposition pagination); letter dated September 12, 2005 from DuPont counsel James P. Den-vir addressed to the DOJ, ECF 264-3, p. 5 (Clerk’s pagination) (“the Denvir Letter”)).
The Denvir Letter states in relevant part:
11. Well Water Flow and Other Tech-nieal Non-C8 Data
John Meyers [sic], an employee at Washington Works, monitors and records well water data at the facility. He does not monitor the well water for chemistry but rather for flow. He maintains approximately 180,000 electronic files of this data from 1985-present representing an hourly monitoring of the pressure, temperature and flow of all facility wells. The data from 1996 to present is on CDs. However, the data from 1985-96 is stored on a “Vax Server”.
According to our forensic specialists, it would take approximately 500 hours to convert this Vax Seryer data into a readable form. Similarly, the Chambers Works facility keeps several hundred magnetic tapes from its own Vax Servers containing process data from operations on site that come from over 6,000 different instruments. The instruments monitor conditions from the site’s processing areas such as temperatures, volr umes, flow rates, and tank levels in 1 minute samples that measure reactions of products that may contain C8 as an ingredient, but which instruments do not make measurements of C8.
Paragraphs 3 and 16 of the Subpoena request documents relating to the “transportation” of C8. Because the well water and instruments contain C8, a broad read of the Subpoena could arguably encompass these records. We suggest that at this time, DuPont produce the Meyers’ CDs, but defer on the production of information from the Vax Server data due to the burden of production and the fact that the materials may not be relevant to your investigation. Should you determine that this data is relevant after review of the CDs, we can revisit the matter again for discussion at that time.
We appreciate your attention to these matters and would be happy to discuss them with you at your convenience. If you have any questions or would like to discuss these matters, please do not hesitate to contact either me or Kirsten Gillibrand.
Denvir Letter, p. 5 (Clerk’s pagination).
DuPont denies that it violated Rule 26(g) or acted in bad faith when it objected to the relevance of the well data requested by Little Hocking and when it complained that producing 60 years of well data was unduly burdensome. See, e.g., Defendant E.I. du Pont de Nemours and Company’s Combined Table of Contents and Summary of the Argument, and Response in Opposition to Little Hooking’s Motion for Sanctions for Lack of Reasonable Inquiry and Discovery Abuses (Dkt. No. 261/,), ECF 274, pp. 18-22, 24-26 (Clerk’s pagination) (“Opposition to Sanctions ”).
Rule 26(g) requires that discovery requests be proportionate, i.e., “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R.Civ.P. 26(g)(l)(B)(iii). In responding to discovery requests, an attorney or party must personally certify after a “reasonable inquiry” that the discovery responses and objections are supported by nonfrivolous arguments and that they are not interposed for any improper purpose. Fed.R.Civ.P. 26(g)(l)(B)(i), (ii); Jones, 617 F.3d at 854. A court applies an objective standard when determining whether or not a party or an attorney has made a reasonable inquiry. Fed.R.Civ.P. 26 advisory committee’s notes on 1983 amendments; Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 WL 2987051, at *17, 2014 U.S. Dist. LEXIS 90123, at *47 (S.D.Ohio July 1, 2014). “An attorney has made a ‘reasonable inquiry’ if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.... Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances.” Brown, 2014 WL 2987051, at *17, 2014 U.S. Dist. LEXIS 90123 at *47-48 (quoting Quinby v. WestLB AG, No. 04 Civ. 7406, 2005 U.S. Dist. LEXIS 35583, 2005 WL 3453908, *4 (S.D.N.Y. Dec. 15, 2005) (internal quotation marks omitted)).
The Court has previously determined that the well data is relevant to DuPont’s theory that its wells prevented off-site migration of C8. 2119/13 Order. Prior to that time, however, it was not clear that consideration of relevance and burden obligated DuPont to produce 60 years’ worth of well data. See, e.g., Fed.R.Civ.P. 26(b). See Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir.2007) (Holding that the scope of discovery may be properly limited where “the information sought is overly broad or would prove unduly burdensome to produce.”) See also Oppenheimer Fund v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (stating that discovery “has ultimate and necessary boundaries”) (internal quotation marks and citations omitted).
Prior to the issuance of the 2/19/13 Order, DuPont had already provided to Little Hocking, inter alia, a detailed groundwater model and supporting materials related to the model’s development, which described “in detail the hydrology and physical characteristics of the subsurface area around Washington Works and [this information] details the pumping rates for ‘all [o]f the 50 process and supply wells located within the model[.]’ ” 2/19/13 Order, p. 65. Little Hocking had also created its own groundwater model, which it submitted to the Ohio Environmental Protection Agency (“OEPA”), utilizing much less information than it sought from DuPont. See Opposition to Sanctions, pp. 3-5; Wellhead Protection Plan — Phase I, ECF 274-5, pp. 1, 7, 9 (dated November 1996) (using plan document’s pagination) (“OEPA WPP ”) (explaining that the Wellhead Protection Plan (“WPP”), which utilized, inter alia, a groundwater flow model, identified certain “wellhead protection areas,” i.e., “the surface and subsurface area surrounding a water well or well field supplying a public water system through which contaminants are likely to move toward and reach such water or well field” that will be the focus of “wellhead protection efforts[,]” including “groundwater quality monitoring, inventory and control of potential groundwater contamination sources, and public awareness programs”) (internal quotation marks omitted). More specifically, Little Hocking’s OEPA groundwater flow model relied on approximations, assumptions and limited pumping data. Hartten 9/12/18 Affidavit, ¶¶ 8-9. ■See also OEPA WPP, pp. 7-10.
In addition, prior to the issuance of the 2/19/18 Order, DuPont and its counsel had investigated and attempted to reach a compromise regarding the demand for well data. Stennes 9/18/18 Declaration, ¶¶ 10-22. As part of these efforts, DuPont’s counsel spoke with at least five current and former DuPont employees “regarding the existence and/or possible location of additional historical well pumping data.” Id. at 18. Sometime during or after the Spring of 2012, DuPont’s counsel interviewed Alison Crane, a current member of the Washington Works Environmental Group and a former member of the P & S unit, who “indicated that some historical well pumping data could be on microfiche, but she was not able to locate any records or indices to either confirm this information or identify where such microfiche would be located.” Id. at ¶ 11. DuPont’s counsel also spoke with Andrew Hartten, who was later designated as DuPont’s Rule 30(b)(6) representative on the issue of well pumping. Id. at ¶ 12. In 2012 or early 2013, DuPont’s counsel interviewed DuPont employees Gary Klesel, David Altman and Lynwood Ireland. Id. at ¶¶ 12, 14-18. On January 17, 2013, after Mr. Klesel had identified Mr. Myers “as a potential source of information regarding historical well pumping data[,]” DuPont’s counsel interviewed Mr. Myers. Id. at ¶¶ 20-21. DuPont’s counsel had also interviewed two former DuPont employees, neither of whom could recall what had become of the original paper records of manually recorded well pumping data dating from 1958 to 1980. Id. at ¶ 22.
Little Hocking complains that neither Ms. Crane nor Mr. Hartten “had any responsibility for the production wells or pumping records” and they were therefore “in no position to know the location of that data.” Sanctions Reply, p. 9. However, Little Hocking’s assertion is not supported by citations to the record and does not, in this Court’s view, undermine DuPont’s decision to rely on these individuals when it investigated the production of well data, particularly in light of the fact that Mr. Hartten served as DuPont’s Rule 30(b)(6) designee on the issue of well pumping.
Moreover, the Denvir Letter and the timing of DuPont’s outside counsel’s interview of Mr. Myers do not establish that DuPont’s investigation and claims of burden were unreasonable. DuPont’s current outside.counsel did not represent DuPont in connection with the 2005 DOJ subpoena. Declaration of Libretta P. Stennes, ECF 236-5, ¶ 18 (“Stennes 6/21/18 Declara tion”). “While counsel in this litigation had general understanding that DuPont’s DOJ subpoena counsel conducted a considerable number of interviews to ascertain the location of potentially responsive information to the subpoena, counsel in this matter did not and does not have exhaustive knowledge of all the specific information identified [by that other law firm]” Id. The 2005 Denvir Letter was but a single document in a sea of approximately 4.5 million pages of material produced to Little Hocking, including documents generated during the course of other litigation. Id. at ¶ 19; Declaration of Niall A. Paul, ECF 274-2, ¶23 {“Paul 9113/13 Declaration ”). Moreover, Mr. Myers’ name was spelled incorrectly (“Meyers”) in the Den-vir Letter, thus reducing the likelihood that an electronic search utilizing the term “Myers” would uncover the Denvir Letter.
Under all these circumstances, the Court concludes that DuPont did not violate Rule 26(g) when it objected to Little Hocking’s request for well data on the basis of relevance and burden. As noted supra, discovery of even relevant information is not unlimited. See, e.g., Surles ex rel. Johnson, 474 F.3d at 305; Oppenheimer Fund, 437 U.S. at 351, 98 S.Ct. 2380. DuPont had previously produced information related to the well data, i.e., DuPont’s groundwater model and supporting materials, and had conducted a reasonable investigation into the burden of producing the actual well data. The mere fact that DuPont did not interview Mr. Myers until January 2013 (when Mr. Klesel identified Mr.. Myers as a potential source of information) does not vitiate the reasonableness of DuPont’s interviews of other current and former DuPont employees. See, e.g., Fed.R.Civ.P. 26(g)(1); Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 WL 2987051, at *17, 2014 U.S. Dist. LEXIS 90123, at *47 (S.D.Ohio July 1, 2014). Similarly, the Court concludes that DuPont did not act in bad faith in advancing objections based on relevance and burden.
B. Tape Degradation
Little Hocking next contends that DuPont’s representation that pre-2006 well data could not be produced because the Vantage tapes had degraded was false and was made in bad faith, thus warranting sanctions under the Court’s inherent authority. Motion for Sanctions, pp. 18-21, 25, 42; Sanctions Reply, pp. 11-14. Little Hocking argues that this representation was initially advanced in a letter from DuPont’s outside counsel (letter dated January 24, 2013 addressed to Little Hocking’s counsel from Libretta P. Sten-nes, ECF 264-14 {“Stennes 1/21/13 Letter”)) and in the Myers 1/21/13 Declaration. As noted supra, in 2010 or 2011, DuPont began transitioning from its Vantage system, which tracked data from well header flow meters using a VAX computer system and which stored the information on magnetic tapes, to a new system, IP-21. See also Stennes 1/21/13 Letter, pp. 1-2. After IP-21 began recording data in 2011, “the VAX system was shut down and dismantled approximately one year later.” Id. at 2. See also Myers 1/21/13 Declaration, ¶ 15 (“The [VAX] unit previously used to run the Vantage system was dismantled at the time of the transition to IP-21 due to its age, the fact that it was obsolete technology and the unavailability of replacement hardware.”). Mr. Myers averred that, “[b]efore the transition to IP-21, I personally attempted to revive some of the old [well] data, but the tapes were so degraded that I was unable to retrieve usable information. The tapes actually broke my tape ■ reader machine, which ended my attempts to revive the data.” Myers 1/24/13 Declaration, ¶ 13. Mr. Myers began storing raw VAX data on his desktop hard drive, but that data could be processed only by a VAX machine running Vantage. Id. at ¶ 14; Stennes 1/24/18 Letter, p. 2.
On January 24, 2013, DuPont represented that it had “after a reasonable search, been unable to locate this data, but even if these materials were in existence, it would be impossible to read the data absent either possession of a VAX system running the Vantage program, or an overly burdensome translation process that is both time consuming and data intensive.” Stennes 1/24/13 Letter, p. 2 (citing Myers 1/24/13 Declaration, ¶¶ 14-18). See also Defendant’s Memorandum in Opposition to Plaintiffs Motion to Extend Fact and Expert Discovery Deadlines, ECF 164, pp. 12-13 (representing same and citing to Stennes 1/24/13 Letter and Myers 1/24/13 Declaration) (filed 2/7/13). DuPont went on to describe additional efforts undertaken by it to locate historic well data:
As part of DuPont’s efforts to address Little Hocking’s topic on historical well pumping, Mr. Hartten spent a full day at Washington Works in August 2012. As part of his preparation, he spoke with Allison Crane about what additional historical pumping record documents might exist and where these might be located. Mr. Hartten and Ms. Crane found a sheet listing certain items and speculated those could have been put on microfilm. On its face however, this document ... appears to reference the scroll-like paper records discussed above. Counsel has inquired further with Washington Works’ employees and is unable to locate any information that leads to any well records on microfilm. While DuPont maintains its previous objections around this data, it has, in good faith produced the reasonably-accessible information in DuPont’s possession, custody or control. DuPont has also made a good faith effort to respond to all of Little Hocking’s concerns regarding any potential “destruction” of relevant records.
Stennes 1/24/13 Letter, p. 2.
On February 7, 2013, in opposing Little Hocking’s motion to extend case deadlines, DuPont represented that “[a]t the time of migration to IP-21, DuPont attempted to retrieve the historical data from the backup tapes but could not do so because the tables had degraded to the point of no longer being usable.” ECF 164, p. 12 (citing Myers 1/24/13 Declaration, ¶ 13).
Little Hocking appears to contend that the representations made by DuPont on January 24, 2013 and on February 7, 2013 were deceptive for several reasons. First, the Myers 1/24/13 Declaration refers to degraded “tapes,” but in fact Mr. Myers had attempted to read only one tape. Motion for Sanctions, pp. 20-21, 25; Sanctions Reply, p. 12. Second, that tape had simply “coated” the heads of the machine when Mr. Myers tried to read it, i.e., the tape had not actually degraded. Motion for Sanctions, p. 20. Third, Mr. Myers’ attempt to read this tape occurred in the early 2000s and not as part of the transition to IP-21. Motion for Sanctions, pp. 20, 25. Fourth, these tapes, the TK-50 tapes, did not contain responsive well data. Sanctions Reply, p. 12. Finally, Little Hocking contends that DuPont misled Little Hocking and the Court into believing that historic pre-2006 well data no longer existed. More specifically, even though “the existence of the Myers CDs were, in fact known at the highest levels of the DuPont hierarchy” in January and February 2013, DuPont failed to advise that other media, such as CDs created by Mr. Myers and “zip files” on the P & S portion of a server, contained easily accessible pre-2006 well data. Motion for Sanctions, pp. 18-21, 23, 25, 42; Sanctions Reply, pp. 11-13. Little Hocking argues that DuPont’s January and February 2013 representations were made in bad faith and thus warrant sanctions under the Court’s inherent authority. See, e.g., Motion for Sanctions, p. 25; Sanctions Reply, pp. 11-12. DuPont denies that its representations were deceptive or otherwise made in bad faith. See, e.g., Opposition to Sanctions, p. 23.
“Harassing the opposing party, delaying or disrupting litigation, hampering the enforcement of a court order, or making improper use of the courts are all examples of the sorts of conduct that will support a finding of bad faith or improper purpose[.]” BDT Prods, v. Lexmark Int’l, Inc., 602 F.3d 742, 754 (6th Cir.2010). For example, courts in this circuit have found bad faith where, inter alia, a party has engaged in misrepresentations during the course of litigation. See, e.g., Galka v. Cooper, No. 11-13089, 2013 WL 1499576, at *4, 2013 U.S. Dist. LEXIS 51312, at *12 (E.D.Mich. Apr. 10, 2013) (finding bad faith where, inter alia, plaintiff fraudulently misrepresenting his financial status on an in forma pauperis application); Laukus v. Rio Brands, Inc., 292 F.R.D. 485, 489 (N.D.Ohio 2013) (dismissing complaint and awarding costs where, inter alia, plaintiff and his counsel “knowingly offered (or allowed to be offered) arguments before this Court and on appeal that were not supported by-and contrary to-the record” and “failed to correct discovery responses they knew to be inaccurate, misleading or false”); Robert Bosch LLC v. A.B.S. Power Brake, Inc., 2011 WL 1790221, 2011 U.S. Dist. LEXIS 49713 (E.D.Mich. May 10, 2011) (striking certain affirmative defenses, dismissing certain counterclaims and awarding expenses where defendants submitted a declaration later proven by discovery to be false); Gordon v. Royal Palm Real Estate Inv. Fund I, LLLP, No. 09-11770, 2011 WL 108917, at *7-9, 2011 U.S. Dist. LEXIS 2110, at *23-26 (E.D.Mich. Jan. 10, 2011).
In arguing that DuPont’s prior representations about the tapes were not made in good faith, Little Hocking relies heavily on the deposition of Mr. Myers. On May 10, 2013, Mr. Myers testified as follows:
Q: Your declaration explained that data storage tapes were destroyed when you attempted to retrieve data from them, right?
MR. PAUL: Objection and same objection, vague.
A: Okay. Yeah. I was requested to retrieve some data by
Gary Kelsel somewhere in the — so many years ago, 2001, 2003, so long ago I can’t remember when because normally Gary was a stinker. He’d call up on the phone and he’d say, hey, I need this. Can I have it by this afternoon? And I would tend to go and try to get it for him.
At any rate, I loaded up the tape to try to read it. It was an old one. And to the best of my memory now, because this was a long time ago, I got all kinds of data errors; and in the end, the tape had coated the heads on my reader with iron oxide film. So that was the last time I tried to pull data off a tape like that.
Q: Right.
A: And to the best of my knowledge and recollection—
Q: What year did you say that happened?
A: It might be 2002, 2003, somewhere around there, but it’s a long time. And the only reason I remember, the only reason I remember is because it was kind of a traumatic experience.
Q: Sure.
A: You don’t normally try to recover data and instead you get a mess.
Q: Maybe you don’t—
A: To the best of my knowledge, what I did then was mark the tape as bad and put it back—
Q: What year was that tape from?
A: To the best of my recollection and again this is all memory, I’m thinking around '87.
Q: So it wasn’t a 1999 tape.
A: No, it wasn’t one I had ever handled before.
Q: Yeah.- And where did you go to get that tape?
A: It would have been in that back room of Building 20.
Q: Building 20. Because that’s where the tapes were stored, correct?
A: Those — that vintage tapes, yes, those of that era.
Q: The old tapes?
A: The older ones, yeah.
Q: Or is this considered a new one?
A: No, this would not have been considered new.
Q: How many other times did you attempt to read tapes where they were destroyed?
A: Never. This was the only time I was asked.
MR. PAUL: Objection to form and it’s not — miseharacterizing his testimony.
MR. ALTMAN: Well, I’m not trying to.
MR. PAUL: Okay.
Q: I’m just asking how many other times if at all did you read tapes that were either destroyed or harmed your machine?
A: Oh, let me think. That’s a good question. I never tried to — well, I was never — again, I don’t read tapes for fun. Somebody has to want some data, and I have to have a reasonable belief that this particular tape has the data that they want.
Q: Certainly.
A: And that was the only time I did that because I — first of all, no one asked; and second of all, I didn’t honestly believe I could recover any data from those tapes.
Q: But those tapes meaning the old tapes?
A: Yeah.
Q: Yeah. But let me understand, this incident is the sum total of what you’re talking about in Paragraph 13 [of the Myers 1/2^13 Declaration ]?
A: That’s it.
Q: Yeah. And that particular tape, that one tape from 1986?
MR. PAUL: '87.
A: My understanding that it was '87 but, you know.
Q: '87 you say?
A: That’s my memory, but my memory is not perfect.
Q: Well, anyway, from that particular tape that you were trying to read the data from broke?
A: Well, it didn’t actually break. It actually ran beautifully destroying the heads of my reader.
Q: Oh, so it didn’t break the tape.
A: No, but it certainly deposited iron oxide on all the heads.
Q: It broke the tape reader?
A: Oh, yeah—
MR. PAUL: Which is what Paragraph 13 says.
Q: But the tape reader could be quickly fixed?
A: Not that old thing.
Q: Oh, it could be quickly fixed?
A: No.
Q: So was it ever fixed?
A: I don’t believe I ever used that tape reader again.
Q: That particular tape reader?
A: That particular tape reader.
Q: How many tape readers did you have?
A: Oh, TK-71s, I probably had two or three; but they’re not freestanding. They were installed in VAXs.
Myers 5/10/13 Deposition, pp. 160-64.
Q: Did you have two or three tape readers or two or three others of that particular type of tape reader?
A: Oh, two or three others of that particular type.
Q: That’s what I thought you said. I just wanted to be clear.
Were there any other types of tape readers that could read the kind of tape you were looking at on that — ■
A: Nope. No.
Q: Is that because of the age of the tape, the age of the tape?
A: No, that was because of the kind of tape it was.
Q: So certain—
A: It was a TK-50 cartridge and you have to read it in a TK-50 tape reader or a TK-70. The TK-70 was a newer model which actually had a little higher data capacity.
Myers 5/10/13 Deposition, p. 165.
Q: Fair enough. So, anyway, there’s no other effort you made to read another tape?
A: Not one of those.
Q: Right. And have you ever had problems reading other tapes?
A: Oh, yeah. That’s one of — the whole point of going to the CDs and FTPing the data across there, that’s all based on tape issues. I had tons of problems with tapes. I had tons of problems with the 90 millimeter tapes. I fought them for years.
Q: Right. Right. Right. But what I’m trying—
A: I destroyed four of them, tape readers. ■
Q: Tape readers?
A: Oh, yeah.
Myers 5/10/13 Deposition, p. 166.
Q: The tapes in that sentence [paragraph 13 of the Myers 1/21/13 Declaration] is plural. In fact, there was one tape that you’re referring to in 13, correct?
A: I believe so. It could be, you know, a slip of the tongue or something like that. I believe at this point and again remember it was a long time ago, my memory was one tape.
Id. at 168-69.
A: Again, it was a long time ago and that’s my memory. It was one tape, but that’s my memory of it.
Q: Certainly. Well, I mean you wrote the declaration, correct?
A: Exactly and I think I mistyped that or—
Q: These are your words?
A: These are my words.
Q: Arid then you said [in paragraph 13 of the Myers 1/21/13 Declaration ] the tapes were so degraded.
A: Uh-huh. ,
Q: Besides that episode and you’re talking about 1980s tapes, what is your basis for saying the tapes were degraded?
A: The one tape.
Id. at 170.
Q: Now, you — do you mention anywhere in your declaration here about the CDs? The CDs, when I say CDs, I’m talking about the CDs you testified about earlier today.
A: No. [Paragraph] 14 [of the Myers 1121113 Declaration ] is talking about the transfer of the VAX data to my desktop workstation. The CD burner was located on my desktop workstation. And so basically all I did was talk about moving it to the workstation; but in actual fact, I would also after doing that burn two CDs and label then and put them in my drawer.
Id. at 173.
Q: Now, in Paragraph 12 of your declaration ... you mention two forms of storage format, correct, or do you mention really three because you mention your hard drive?
A: The Vantage — see, my stuff was not part of Vantage. It was extracurricular if you will.' It was not apart [sic] of the Vantage system at all. It was a PC with a hard drive.
Id. at 176.
Q: So you weren’t trying to exhaustively explain everywhere where you could find Washington Works well pumping data when you wrote your declaration on the Vantage system, correct?
A: Right. No, I didn’t say where all of it was probably because I didn’t think of it at the time because like you say, when you write a declaration, you have a particular purpose in mind and you’re trying to speak to a specific or a particular issue and some of that was extraneous.
Id. at 177.
Q: Well, what was the particular issue you were trying to address in your declaration?
A: My memory of that was that the existing tapes from an earlier era, the '97, '90 through '98, '99 era, I had no confidence in their viability -
Q: ... The purpose of your declaration that you filed that mentioned Vantage and VAX was not to talk about all the places where well pumping data might be found; is that fair?
A: That would — that would be a fair statement, sir.
Id. at 178.
After reviewing this testimony, the Court is not persuaded that the Myers 1121113 Declaration (or DuPont’s representation relying on this declaration) was false or that its averments were made in bad faith when it referred to “tapes” that “broke” the tape reader machine “[b]efore the transition to IP — 21[.]” First, although Mr. Myers’ testimony confirms that he attempted to read only one tape, Mr. Myers also testified that the references to “tapes” rather than to “tape” in the Myers 1/21/13 Declaration was an innocent error. Myers 5/10/13 Deposition, pp. 168-70. An inadvertent error does not amount to an intentional misrepresentation that warrants sanctions. The Court is also not persuaded that this testimony establishes that DuPont acted in bad faith when Mr. Myers (and Attorney Stennes) represented that the “tapes” had degraded. In reaching this conclusion, the Court rejects Little Hocking’s contention that the existence of other types of tapes, ie., DDS backup tapes and reel-to-reel tapes, undermines the representations made by DuPont in January 2013. See Sanctions Reply, p. 12 (arguing that there was no reasonable basis for Mr. Myers and Attorney Stennes to represent that all of the tapes had degraded when it was, at most, only the TK-50 tapes that damaged the reader) (citing Declaration of James M. Bocchino, ECF 233-2 (“Bocchino Declaration ”), ¶ 8). The Bocchino Declaration upon which Little Hocking relies in this regard is dated June 17, 2013, ie., months after DuPont had first interviewed Mr. Myers and after the Court had issued its 2/19US Order. In other words, Little Hocking invites this Court to impute knowledge learned in June 2013 to DuPont as of January 2013. Little Hocking cites no other evidence that DuPont knew of these other media in January 2013. Under these circumstances, and particularly considering that DuPont disputed the relevance and burden of producing the well data prior to the 2/19/13 Order, the Court cannot conclude that sanctions are warranted merely because DuPont represented in January 2013 that TK-50 tapes had degraded.
Third, Little Hocking characterizes as misrepresentation any suggestion that Mr. Myers’ attempt to read the TK-50 tape occurred as part of the transition to IP-21 in 2010 or 2011. Motion for Sanctions, pp. 20, 25. This Court disagrees. Mr. Myers testified that he attempted to read the tape sometime between 2001 and 2003. Myers 5/10/13 Deposition, pp. 160-61. Mr. Myers and Attorney Stennes both specifically stated that Mr. Myers’ attempt to read the tape was “[b]efore the transition to IP-21 [.]” The Myers 1/21/13 Declaration, ¶ 13; Stennes 1/21/13 Letter, p. 2. These statements are accurate, i.e., Mr. Myers’ attempt in 2001-2003 pre-dated the IP-21 transition in 2010-2011. Although a February 2013 filing by DuPont indicated that it had attempted to retrieve historical data “[a]t the time of migration to IP-21,” see ECF 164, p. 12, DuPont specifically cited to the Myers 1/21/13 Declaration, ¶ 13 as support for this assertion. Little Hocking has not established that DuPont’s assertion was anything other than an oversight or a careless misstatement of the Myers 1/21/13 Declaration; it does not establish a purposeful attempt to deceive either Little Hocking or the Court.
Fourth, Little Hocking seeks the imposition of sanctions because “the entire ‘degraded tape’ story is even more fanciful in light of the latest revelation ... that the TK-50 tapes, the supposed basis upon which the degraded tape story was based, never had any responsive well data in the fírst place.” Sanctions Reply, p. 12 (emphasis in the original). This argument is not well-taken. In January 2014 and thereafter, DuPont reasonably believed that TK-50 tapes might contain well data. See, e.g., Myers 1/21/13 Declaration, ¶¶ 5, 9, 12-13 (explaining that Vantage tracked and monitored well production data and that back-up data were stored on tapes similar to that which Mr. Myers attempted to read before the transition to IP-21). See also Myers 5/10/13 Deposition, pp. 162, 165-69; Paul 9/27/13 Declaration, ¶ 31 (“DuPont was able to determine that in 1986-1987, some data was reportedly maintained on TK-50 tapes.”); Declaration of Vincent M. Catanzaro, Esq., ECF 233-1 (“Catanzaro Declaration ”), ¶¶ 6, 8 (averring that DuPont “has identified several pieces of media that it believes may contain well pumping data from a VAX machine that was operated at the Washington Works Site for nearly three dee-ades[,]” including backup tapes); Bocchi-no Declaration, ¶¶4-5 (averring that it was believed that three TK-50 tapes, inter alia, from DuPont contained data originating from a VAX machine). However, it was only after the completion of a painstaking effort to locate well date, in which DuPont expended hundreds of hours and hundreds of thousands of dollars in expenses and attorney’s fees, that DuPont was able to confirm that none of the TK-50 tapes found at Washington Works contained responsive well pumping data. Paul 9/27/13 Declaration, ¶¶ 25, 29. In short, Little Hocking asks this Court to sanction DuPont for confirming that no well data was contained on tapes that DuPont had reasonably believed to contain such information. Sanctions under these circumstances are unwarranted.
Finally, Little Hocking contends that DuPont concealed information in January 2013, thereby misleading Little Hocking and the Court into believing that all pre-2006 data were no longer available, even though DuPont knew that Mr. Myers’ CDs and zip files on the P & S p