Julie A. SU, Acting Secretary of Labor, United States Department of Labor, Plaintiff, v. NAB LLC d/b/a NAB Nail Salon d/b/a NAB Nail Bar, a Nevada limited liability corporation; Asia Trinh, an individual and managing agent of the Corporate Defendant; Nicole Brown, an individual and managing agent of the Corporate Defendant, Defendants Case No. 2:21-cv-00984-JCM-EJY United States District Court, D. Nevada Signed December 04, 2023 Counsel Andrew J. Schultz, Paige B. Pulley, Eduard Meleshinsky, Office of the Solicitor, U.S. Department of Labor Office of the Solicitor, San Francisco, CA, Kathryn A. Panaccione, U.S. Department of Labor, Los Angeles, CA, for Plaintiff. Anthony L. Martin, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Las Vegas, NV, Jeffrey D. Winchester, Lewis Brisbois Bisgaard & Smith LLP, Las Vegas, NV, Paul S. Padda, Paul Padda Law, PLLC, Las Vegas, NV, Katryna Lyn Spearman, Pro Hac Vice, Lowther Walker LLC, Atlanta, GA, for Defendants. Youchah, Elayna J., United States Magistrate Judge ORDER *1 Pending before the Court is the U.S. Department of Labor's (“DOL”) Motion for Sanctions (ECF No. 45). The Court reviewed the Motion, Defendants’ Oppositions (ECF Nos. 66, 71), and the DOL's Replies (ECF Nos. 67, 72).[1] I. Background The DOL's suit alleges violations of the Fair Labor Standards Act (“FLSA”) including Defendants: (1) failure to pay minimum wages and overtime, (2) failure to keep records required by law, (3) preventing employees from exercising their rights under the FLSA, and (4) interfering with the DOL's investigation into FLSA violations. ECF No. 1. On September 20, 2022, the Court granted a Motion to Compel filed by the DOL requiring Defendants to respond to interrogatories and requests for production by October 30, 2022. ECF No. 19 at 2. Discovery closed on December 18, 2022. ECF No. 22. On March 10, 2022, parties filed a joint Motion requesting a settlement conference. ECF No. 35. While the Parties participated in settlement negotiations and agreed on a term sheet (ECF No. 41), Defendants ultimately decided not to settle. ECF No. 42. The DOL seeks sanctions under (1) Federal Rule of Civil Procedure 37(e) and/or the Court's inherent authority based on Defendants’ failure preserve evidence, and (2) Federal Rule of Civil Procedure 37(b)(2) for failing to fully respond to the DOL's discovery requests. ECF No. 45 at 2, 9-24. Defendants contend the evidence the DOL seeks has been produced or does not exist, and to the extent they violated any discovery rules they did not do so with the intent required to support sanctions. ECF No. 71 at 3-4, 7-9. Defendants also argue the DOL filed this Motion to force Defendants into settlement. Id. at 9-10. The DOL replies that it is seeking the least severe sanctions possible for the purpose of curing some of the prejudice the DOL faces. ECF No. 72 at 2. The DOL questions the veracity of Defendants’ contention that it is in possession of all relevant evidence given Defendants’ history during discovery in this case. Id. at 3-5. The DOL submits Defendants failed to cite any evidence contradicting its allegations other than Defendants’ declarations which lack credibility. Id. at 9-12. II. Discussion a. Spoliation sanctions under Rule 37(e) are appropriate. *2 Generally, the Court may issue sanctions under its inherent authority and Federal Rule of Civil Procedure 37; however, for spoliation of electronically stored information (“ESI”) only Rule 37(e) sanctions apply. Ahern Rentals, Inc. v. Eure, Case No. 2:20-cv-01680-JAD-BNW, 2022 WL 18670848, at *4 (D. Nev. Mar. 16, 2022). The Ninth Circuit holds that “[t]he detailed language of Rule 37(e) ... foreclose[d] reliance on inherent authority to determine whether terminating sanctions were appropriate.” Newberry v. City of San Bernadino, 750 Fed.Appx. 534, 537 (9th Cir. 2018) (internal quotation marks omitted). Nevada district courts recognize the same. See, e.g., Winecup Gamble, Inc. v. Gordon Ranch, LP, Case No. 3:17-cv00163-RCJ-WGC, 2020 WL 3840420, at *3 n.1 (D. Nev. July 8, 2020) (“Defendant also moves for sanctions under the Court's inherent authority. However, the Advisory Committee Notes make clear that the 2015 amendment forecloses a court from imposing sanctions for spoliation of ESI under that basis.”); Indep. Techs., LLC v. Otodata Wireless Network, Inc., Case No. 3:20-cv-00072-RJC-CLB, 2020 WL 1433525, at *5 (D. Nev. Mar. 23, 2020) (Rule 37(e) “now provides the specific—and only—basis for sanctions for spoliation of ESI.”); Small v. Univ. Med. Ctr., Case No. 2:13-cv-0298-APG-PAL, 2018 WL 3795238, at *60 (D. Nev. Aug. 9, 2018) (same). Based on the foregoing, the Court considers the DOL's request for sanctions arising from spoliation of ESI under Rule 37(e). Rule 37(e) sanctions are available when ESI “that should have been preserved in the anticipation or conduct of litigation is lost because the party failed to take reasonable steps to preserve it, and [the information] cannot be restored or replaced through additional discovery.” Rule 37(e) sanctions may be imposed when the district court finds: (1) the loss of information has prejudiced the moving party, in which case the court may order “measures no greater than necessary to cure the prejudice” (Fed. R. Civ. P. 37(e)(1)), and (2) the offending party “acted with the intent to deprive another party of the information's use in the litigation,” in which case the court may require an adverse evidentiary presumption, dismiss the case or enter default judgment. Fed. R. Civ. P. 37(e)(2). 1. DOL did not meet its burden as to Nicole Brown's text messages, but did meet its burden as to Trinh's text messages and video surveillance. The party seeking spoliation sanctions has the threshold “burden of showing that evidence was in fact destroyed or not preserved.” Colonies Partners, L.P. v. Cty. of San Bernardino, Case No. 5:18-CV-00420-JGB-SHK, 2020 WL 1496444, *5 (C.D. Cal. Feb. 27, 2020). Defendant Brown testified at deposition that she may have deleted relevant text messages, but she was not sure. ECF No. 45-11 at 10 (stating she “had to confirm if she had [the text messages], but when you have a new phone and honestly when you have a data package, the text messages is the first thing that you delete to save your data”). The DOL offers no other evidence showing whether the text messages were actually deleted. Because it is unclear whether Brown deleted text messages, the Court finds the DOL has not met its burden of showing they were “in fact destroyed or not preserved.” In contrast, Asia Trinh (“Trinh”) admitted that she deleted relevant text messages from 2018 to 2022 (ECF No. 45-12 at 13, 15), and Defendants admit that video surveillance was automatically deleted. ECF Nos. 45-13 at 22-24, 71 at 5. Therefore, there is no dispute that this evidence “was in fact destroyed or not preserved.” Colonies Partners, L.P., 2020 WL 1496444, *5. 2. Video surveillance and text messages are ESI that should have been preserved in the anticipation of litigation. The Court finds the video surveillance footage and text messages at issue constitute ESI for the purposes of a Rule 37 analysis. Phan v. Costco Wholesale Corp., Case No. 19-CV-05713-YGR, 2020 WL 5074349, at *2 (N.D. Cal. Aug. 24, 2020) (surveillance video footage is electronically stored information); Colonies Partners, L.P., 2020 WL 1496444, at *4 (text messages are electronically stored information). *3 “A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.” Perkins v. City of Modesto, Case No. 1:19-CV-00126-LJO-EPG, 2020 WL 1333109, at *16 (E.D. Cal. Mar. 23, 2020). A duty to preserve may arise during the period before litigation “when a party should reasonably know that evidence may be relevant to anticipated litigation.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal. 2015) (citations omitted). “Although the Ninth Circuit has not precisely defined when the duty to preserve is triggered, trial courts in this Circuit generally agree [the duty is triggered] ‘[a]s soon as a potential claim is identified.’ ” Apple Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012) (quoting In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006)) (other citations omitted). A cease and desist letter constitutes sufficient notice to trigger a duty to preserve. S. Ctys. Oil Co. v. Henry, Case No. CV-18-02307-PHX-DWL, 2023 WL 2891378, at *17 (D. Ariz. Apr. 11, 2023). The DOL served NAB Nail Bar with a cease and desist letter on September 27, 2019 identifying NAB Nail Bar as a “potential litigant” in the DOL's investigations into its pay practices. ECF Nos. 45-8 at 2, 45-9 at 2. The letter instructed NAB Nail Bar “not [to] destroy – or permit to be destroyed – any records relating to the number of hours worked or other documents which the Department is seeking;” to “instruct all persons with potentially responsive documents or other evidence to affirmatively preserve and retain it;” and to “take all necessary steps to put in place effective litigation holds to ensure that all potentially relevant documents and other evidence are [sic] preserved.” ECF No. 45-9 at 2-3. In doing so, the DOL put Defendants on notice that they had a duty to preserve evidence that may have been relevant to anticipated litigation. Further, the DOL served a subpoena in conjunction with the cease and desist letter, which sought production of “communications between Defendants and NAB workers, records related to training, and surveillance footage of the nail salon.” ECF No. 45-8 at 2. The subpoena eliminated any possible uncertainty Defendants may have had regarding whether “communications between Defendants and NAB workers” such as text messages or “surveillance footage of the nail salon” should be preserved.[2] 3. Defendants failed to take reasonable steps to preserve the text messages and video surveillance footage. When a Defendant makes a “conscious decision to not preserve” relevant evidence, this constitutes a “failure to take reasonable steps to preserve” for the purposes of Rule 37(e). Est. of Hill by & through Grube v. NaphCare, Inc., Case No. 2:20-CV-00410-MKD, 2022 WL 1464830, at *11 (E.D. Wash. May 9, 2022). Trinh stated she routinely deleted all non-family text messages on her phone from 2018 to 2022, including those related to the salon. ECF No. 45-12 at 13, 15. In doing so, Trinh demonstrates a conscious decision not to take any steps to preserve relevant text messages, deleting them along with everything else that was non-family related. Defendants’ undisputed failure to preserve video footage adds to the Court's spoliation determination. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). When the relevant evidence is video footage that will automatically record over itself, parties to litigation need only take the simple step of saving the video onto a hard drive. Phan, 2020 WL 5074349, at *3. Although Brown made two attempts to contact “somebody ... found on Google that said they knew about cameras” to help preserve the salon's video surveillance footage, she dropped the issue after she did not get a response and the salon video footage was automatically deleted. ECF No. 45-13 at 22-24. To find this was accidental or without a conscious disregard is defied by the undisputed fact Defendants successfully saved video footage from a break-in at the salon. ECF No. 45-12 at 15. The Court finds Brown's attempt to contact someone to assist her with preserving video footage was insufficient to meet the “reasonable steps to preserve” ESI required by Rule 37(e) and the case law interpreting the Rule. 4. The ESI cannot be restored or replaced through additional discovery. *4 Sanctions are inappropriate under Rule 37(e) when unpreserved ESI can be restored or replaced. Lopez v. Cardenas Markets, LLC, Case No. 2:21-CV-01915-JCM-BNW, 2023 WL 3182658, at *4 (D. Nev. May 1, 2023) (quoting Freidig v. Target Corp., 329 F.R.D. 199, 208 (W.D. Wis. 2018)). Using other evidence, such as witness statements, to speak to what the destroyed video surveillance depicted does not constitute “restoring or replacing” the lost evidence. Id. Here, the parties agree that the deleted video footage cannot be restored or replaced. ECF No. 45 at 8; ECF No. 71 at 5. There is also nothing demonstrating that the text messages deleted by Trinh from her cell phone (ECF No. 45-12 at 11, 12-13, 15) can be recovered or replaced by additional discovery. 5. The DOL was prejudiced by the loss of the ESI justifying sanctions under Rule 37(e)(1). “[U]pon finding prejudice to another party from the loss of the [electronically stored] information, [the Court] may order measures no greater than necessary to cure the prejudice.” Rule 37(e)(1). The Court has significant discretion in determining what satisfies this standard. See Fed. R. Civ. P. 37 Advisory Committee Notes to the 2015 Amendment. Prejudice exists where “the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision in the case.” hiQ Labs, Inc. v. LinkedIn Corp., 639 F. Supp. 3d 944, 979 (N.D. Cal. 2022) (internal quotations omitted). Defendants argue that any discovery violations that may have occurred did not prejudice the DOL because “[t]ext messages Defendants sent to NAB workers (text messages that the Secretary received from NAB workers, not from Defendants) are sufficient to prove the Secretary's claim against Defendants for interference with the Secretary's investigation[,] support the Secretary's overtime and recordkeeping allegations[,] and demonstrate Defendants’ ability to control NAB workers.” ECF Nos. 71 at 4, 45 at 12. However, Defendants offer nothing that refutes the DOL's argument that video surveillance was the only reliable evidence available showing the actual hours Defendants’ employees worked. ECF No. 45 at 10. The Court finds Defendants’ spoliation of the video surveillance footage impaired the DOL's ability to go to trial or threatened to interfere with the rightful decision in this case. With respect to spoliated text messages, Trinh stated in deposition that she often messaged workers regarding their work schedules. ECF No. 45-12 at 4-5. Thus, there is little doubt that had these messages been preserved they would have assisted the DOL when assessing Trinh's control of the employees as well as deduce the schedules worked. The DOL also could not effectively examine Trinh at deposition on the content of these messages because they were destroyed. Defendants’ failure to preserve relevant ESI is sanctionable. Having found the video surveillance and Trinh's text messages cannot be replaced, and the DOL is prejudiced by Defendants’ failure to preserve this evidence, the Court sanctions Defendants as follows: (1) Defendants are precluded from disputing the DOL's reconstruction of workers’ hours, that could have been substantiated by the deleted video surveillance; and (2) Defendants are precluded from disputing the authenticity of the text messages that they have received from nonparties that include Trinh in the conversation. Crema v. Las Vegas Metro. Police Dep't, Case No. 2:17-CV-01535-RFB-VCF, 2023 WL 6262556, at *5 (D. Nev. Sept. 25, 2023) (appropriately precluding defendants “from disputing Plaintiff's version of events that would have been substantiated by the deleted [evidence] and that are disputed by the parties.”). 6. Requisite intent existed justifying sanctions under Rule 37(e)(2) as to the loss of video surveillance footage, but not as to Trinh's text messages. *5 In order to grant sanctions under Fed. R. Civ. P. 37(e)(2), the Court must find “the party acted with the intent to deprive another party of the [spoliated] information's use in the litigation ....” Fed. R. Civ. P. 37(e)(2). The ESI must be unavailable due to “a party's intentional loss or destruction of [it] to prevent it use in litigation.” Fed. R. Civ. P. 37 Advisory Committee Notes to the 2015 Amendment. “Although direct evidence of such intent is always preferred, a court can find such intent from circumstantial evidence.” Crema, 2023 WL 6262556, at *5. Regarding the video surveillance footage, the unrefuted evidence demonstrates Defendants allowed video footage to be auto-deleted (ECF No. 45-13 at 23-24) therefore demonstrating intent to deprive under Rule 37(e)(2). Culhane v. Wal-Mart Supercenter, 364 F. Supp. 3d 768, 774-75 (E.D. Mich. 2019) (when Defendants “knew or should have known to save the ... video footage and for whatever reason(s) did not do so, which permitted it to be overwritten[,] ... the Court may infer an intent to deprive from [Plaintiff's] actions in this matter.”) (internal quotations omitted). However, given the circumstantial nature of the evidence, the Court finds the appropriate sanction is limited to a jury instruction that allows jurors to presume that the video surveillance was favorable to Defendants. As to Trinh's deleted text messages, the Rule 37 Advisory Committee Notes “indicate that negligent or even grossly negligent behavior is insufficient to support sanctions under Rule 37(e)(2).” Aramark Mgmt., LLC v. Borgquist, Case No. 8:18-CV-01888-JLS-KESX, 2021 WL 864067, at *15 (C.D. Cal. Jan. 27, 2021), report and recommendation adopted, Case No. 8:18-CV-01888-JLS-KES, 2021 WL 863746 (C.D. Cal. Mar. 8, 2021). When a defendant has a “habit of deleting text messages” frequently, this alone is not enough to constitute intent to deprive. Hunters Cap., LLC v. City of Seattle, Case No. C20-0983 TSZ, 2023 WL 184208, at *13 (W.D. Wash. Jan. 13, 2023). Trinh routinely manually deleted all text messages, including all texts with salon employees regarding their appointments and work schedules (ECF No. 45-12 at 13, 15), but this evidence does not support that Trinh's deletions were for the express purpose of depriving Defendants of the use of these text messages in litigation. Rather, Trinh seemed to delete all non-family text messages indiscriminately. As a result, Trinh was, at most, grossly negligent in deleting the text messages, and therefore, the Court finds Trinh did not have the requisite intent when deleting the text messages to justify sanctions under Rule 37(e)(2). b. Sanctions under Rule 37(b)(2) are appropriate. 1. Sanctions under Rule 37(b)(2)(A) are appropriate. “If a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders,” including “directing the matter embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims,” and “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence.” Fed. R. Civ. P. 37(b)(2)(A)(i)-(ii). Importantly, “[t]he burden is on the party who fails to comply with its discovery obligations to show substantial justification, or that an award of expenses and/or other sanctions would be unjust.” Brown v. Albertsons, LLC, Case No. 2:16-CV-01991-JAD-PAL, 2017 WL 1957571, at *6 (D. Nev. May 11, 2017). *6 On September 20, 2022, the Court entered an Order requiring Defendants to “respond in full to the interrogatories and requests for production of documents outlined in [P]laintiff's [M]otion to [C]ompel” no later than October 20, 2022. ECF No. 19 at 2. Accordingly, Defendants were to produce “information and evidence” sought by the DOL's requests for production and interrogatories “which shows the hours nail technicians worked, the pay they received, and the conditions of their work such as policies and required trainings.” ECF No. 18 at 13. The DOL demonstrates Defendants’ discovery responses on October 20, 2022 failed to include “entire categories of crucial records ... including, among other things, records of employees hire and fire dates, identification of current and former employees, employee contact information, records of employee hours, including records from the MindBody platform, employee payroll records, communications between Defendants and NAB current and former employees, general ledgers, bank records, and video surveillance footage of the nail salon.” ECF No. 45-8 at 3. Further, documents produced “were not produced in native format and were not bates stamped.” Id. The DOL concedes Defendants produced some additional documents after October 20, 2022, but many were not in their native form, and production was still clearly incomplete. Id. at 4-8.[3] Defendants offer only their own declarations in opposition to the DOL's arguments. ECF No. 71 at 11-15. This evidence is insufficient to meet the burden Defendants bear to show substantial justification for their alleged failure. In fact, Defendants’ declarations state, without support, that all information the DOL requests was provided to the DOL, discussed at deposition, or does not exist. ECF No. 71 at 11-15.[4] Unfortunately, however, Defendants’ position is contradicted by Brown's deposition testimony in which she admitted she only produced evidence she thought favorable to herself. ECF No. 45-11 at 6. Moreover, Defendants’ spoliation of evidence renders the declaratory assertions of questionable merit. Given the overall circumstances in which the issue of complete production arises, Defendants’ bare assertions are not adequate to satisfy their burden to show substantial justification. United Artists Corp. v. United Artist Studios LLC, Case No. 2:19-CV-00828-MWF-MAA, 2019 WL 4640403, at *4 (C.D. Cal. Aug. 28, 2019) (when defendant's explanation for failure to comply with discovery lacked credibility, defendant failed to provide substantial justification, and therefore sanctions were appropriate); Choudhuri v. Wells Fargo Bank, N.A., Case No. 15-CV-03608-VC (KAW), 2017 WL 5598685, at *7 (N.D. Cal. Nov. 21, 2017) (same). Overall, the history of discovery post litigation and conduct of spoliation supports the finding that Defendants are prohibited from relying on any evidence not produced in its native form with associated metadata before the date of this Order. Such evidence, even if available, is precluded from introduction for purposes of motion practice and trial. Hawkins v. Kroger Co., Case No. 15-CV-2320 JM(AHG), 2020 WL 6150040, at *8 (S.D. Cal. Oct. 20, 2020) (providing that when defendant failed to produce electronically stored information in native format, Rule 37 sanctions were appropriate); Choudhuri, 2017 WL 5598685, at *8 (finding that when a responding party failed to comply with Court's discovery order, prohibiting responding party “from introducing previously undisclosed facts or evidence that are encompassed by” prevailing party's discovery request was an appropriate sanction). 2. Attorney's fees under Rule 37(b)(2)(C) are appropriate, but the DOL does not provide adequate information to award them at this time. *7 If a party violates a Court order to provide or permit discovery, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). “[A] good faith dispute concerning a discovery question might, in the proper case, constitute a ‘substantial justification’ ” to reverse such a sanction. Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981). However, here, Defendants do not raise a good faith dispute as to a discovery question; rather, they raise bare assertions that they complied with the DOL's requests for discovery when, for the reasons set forth above, they repeatedly refused to do so. Therefore, the Court finds an award of attorney's fees under Federal Rule of Civil Procedure 37(b)(2)(C) is warranted. The DOL's Motion does not provide the information required by Local Rules of Practice for the United States District Court for the District of Nevada (“LR”) 54-14. Therefore, the Court does not consider the amount of the award the DOL requests at this time, but will give the DOL the opportunity to provide the appropriate information. Thereafter, Defendants will have the opportunity to oppose the DOL's request, “set[ting] forth the specific charges that are disputed and stat[ing] with reasonable particularity the basis for the opposition, ... includ[ing] affidavits to support any contested fact.” LR 54-14(d). III. Order Accordingly, IT IS HEREBY ORDERED that the DOL's Motion for Sanctions (ECF No. 45) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiff is entitled to a jury instruction allowing jurors to presume that the video surveillance footage would provide evidence was unfavorable to Defendants. IT IS FURTHER ORDERED that Defendants are precluded from disputing the DOL's reconstruction of workers’ hours. IT IS FURTHER ORDERED that Defendants are precluded from disputing the authenticity of the text messages Plaintiff received from nonparties that include Trinh in the conversation. IT IS FURTHER ORDERED that Plaintiff is entitled to a jury instruction allowing jurors to presume that the deleted video surveillance footage was unfavorable to Defendants. IT IS FURTHER ORDERED that Defendants are prohibited from relying on any evidence not produced in its native form with associated metadata before the date of this Order. IT IS FURTHER ORDERED that the DOL must, within 21 days measured from the date of this Order, submit a memorandum, supported by affidavit of counsel, establishing the amount of attorneys’ fees and costs incurred in drafting its Motion, reviewing Defendants’ Response, and drafting the Reply. The memorandum must provide a reasonable itemization and description of work performed, identify the attorney(s) or staff member(s) performing the work, the customary fee of the attorney(s) or staff member(s) for such work, and the experience, reputation and ability of the attorney performing the work. The attorney's affidavit must authenticate the information contained in the memorandum, provide a statement that the bill has been reviewed and edited, and a statement that the fees and costs charged are reasonable. IT IS FURTHER ORDERED that Defendant will have fourteen (14) days from service of the memorandum of costs and attorney's fees to file a responsive memorandum addressing the reasonableness of the costs and fees sought, and any equitable considerations deemed appropriate for the Court to consider in determining the amount of costs and fees which should be awarded. IT IS FURTHER ORDERED that all of Plaintiff's other requests for sanctions not expressly awarded in this Order are DENIED. IT IS FURTHER ORDERED that ECF Nos. 66 and 67 are moot. Footnotes [1] Defendants were represented by counsel in this matter until August 21, 2023 when the Court granted a motion to withdraw. ECF No. 58. New counsel did not appear until September 11, 2023. ECF No. 68. While unrepresented, Defendant Nicole Brown (“Brown”) filed a Response to the DOL's Motion for Sanction. ECF No. 66. Brown's response attached hundreds of pages of exhibits, but did not reference page numbers when citing to an exhibit thereby violating Local Rule (“LR”) IA 10-3(c). Brown also failed to cite any authority in support of her arguments. Because Brown subsequently retained counsel who filed a Response (ECF No. 71), to which the DOL replied (ECF No. 72), the Court relies on ECF Nos. 71 and 72 when considering the parties’ respective positions. [2] The DOL served Defendants’ counsel with a second litigation hold notice on May 26, 2020. ECF No. 45-8 at 2. [3] For example, the DOL asserts Defendants produced a PDF document labeled “QuickBooks” which listed what appeared to be employee business expenses; however, because the document was not produced in native format, the DOL could not access formulas or creation and modification dates. ECF No. 45-8 at 4. [4] Brown's declaration includes a reference to her now-mooted Response filed at ECF No. 66 that attached voluminous documents she claims were previously produced to the DOL. ECF No. 71 at 11. A copy of that response was included as an exhibit. ECF No. 72-1. The DOL points out the exhibits do not evidence they were previously produced, and at least some of the exhibits had not been produced. ECF No. 67 at 2, 5.