The opinion of the court was delivered by: Magistrate Judge Norah McCann King
Teresea O'Brien and Dallas Prater ("plaintiffs") filed this action on behalf of themselves and a putative class under the Fair Labor Standards Act, 29 U.S.C. §201 et seq. ("FLSA"). Plaintiffs allege that they, and those similarly situated to them, were not paid the minimum hourly wage and overtime compensation due them in connection with their employment at two McDonald's facilities in Bellefontaine, Ohio. Plaintiffs also assert state law claims under O.R.C. Chapters 4111 and 4113, and claims under the common law of Ohio.
This matter is before the Court on Plaintiffs' Motion for Sanctions Pursuant to Rule 37 of the Federal Rules of Civil Procedure (Evidentiary Hearing Requested) ("Plaintiffs' Motion for Sanctions"). Doc. No. 108. For the reasons that follow, plaintiffs' motion is DENIED.
On February 2, 2004, plaintiffs filed the Complaint in this action. In April 2004, plaintiffs filed a motion to notify other current and former employees of defendants of their right to join the suit as opt-in plaintiffs. Doc. No. 9. This Court granted that motion and the lawsuit currently consists of the two original plaintiffs and the following eight opt-in plaintiffs:
Opt-in Plaintiff Date of Notice of Opt-in
Debbie Brunke 01/14/2005 Jessica West 01/14/2005 Stevie LeVan 01/14/2005 Ben Wallace 01/14/2005 Chad Lawson 01/14/2005 Jill Wager-Puff 01/14/2005 Nathan Buscher 01/21/2005 Derrick Kinchen 01/21/2005 Doc. Nos .45-51.
Plaintiffs served their first discovery requests upon defendants on July 14, 2004. Plaintiffs' Motion for Sanctions at 4. In response to these requests, defendants produced over 8,000 documents consisting largely of plaintiffs' work schedules and time punch and payroll records, including Time Punch Change Approval Reports ("TPCA Reports") that relate to the original and opt-in plaintiffs. Defendants' Memorandum in Opposition to Plaintiffs' Motion for Sanctions ("Defendants' Memorandum Contra")at 2. The TPCA Reports are printed from defendants' computer system, referred to as the "in-store processor" or "ISP." Deposition of Edward Donnelly*fn1 ("Donnelly Dep.") at 145, 174, attached to Defendants' Memorandum Contra. These reports are printed automatically by the ISP as part of the closing paperwork each day. Id. at 174. They are regularly kept and maintained by defendants as paper files. Id. at 95-96.
The information contained in the TPCA Reports is stored in the ISP in electronic form for 72 days. Id. at 94. In addition, defendants back-up the ISP nightly, using one of three rotating backup tapes. Id. Each backup tape contains information for the preceding 72 days. Id. at 146-47. Every three days, each tape is overwritten so that, at most, the backup tapes combined contain information for the preceding 74 days. Id. at 98. Defendants attest that the tapes were intended only for disaster recovery. Affidavit of Edward Donnelly at ¶ 6.
On February 1, 2006, plaintiffs filed Plaintiffs' Motion for Sanctions, alleging that defendants intentionally lost or destroyed some of the TPCA Reports. Doc. No. 108. On February 27, 2006, defendants filed Defendants' Memorandum Contra, Doc. No., 114, and on March 13, 2006, plaintiffs filed Plaintiffs' Reply Memorandum in Support of Plaintiffs' Motion for Sanctions Pursuant to Rule 37 of the Federal Rules of Civil Procedure ("Plaintiffs' Reply"), Doc. No. 166.
Rule 37 of the Federal Rules of Civil Procedure permits a court to impose sanctions, such as preclusion of evidence, for a party's failure to comply with discovery rules and orders. Fed. R. Civ. P. 37(c)(1). The local rules of this Court also provide that: Objections, motions, applications, and requests relating to discovery shall not be filed in this Court, under any provision in Rules 26 and 37, Fed. R. Civ. P., unless counsel have first exhausted among themselves all extra-judicial means for resolving the differences. . . .
S.D. Ohio Civ. R. 37.1. Additionally, even "[a]fter extra-judicial means for the resolution of differences about discovery have been exhausted, then in lieu of immediately filing a motion under Rule . . . 37, Fed. R. Civ. P., and S.D. Ohio Civ. R. 37.2, any party may first seek an informal telephone conference with the judicial officer assigned to supervise discovery in the case." S.D. Ohio Civ. R. 37.1. The Court is satisfied that the mandatory prerequisites for a motion ...