JAMES P. O'HARA, Magistrate Judge.
The plaintiff, Coley Gassaway, brings this diversity action against defendant, Sunbeam Products, Inc., alleging that defendant's negligent manufacture, design, inspection, testing, and marketing of certain "space heaters" caused a house fire and the deaths of plaintiff's two children. On December 16, 2013, the undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a hearing on a motion (ECF doc. 83) filed by plaintiff, seeking sanctions against defendant under Fed.R.Civ.P. 37 for failing to comply with the court's September 3, 2013 discovery order (ECF doc. 78). Plaintiff appeared through counsel, Jeremiah L. Johnson and Daniel T. DeFeo. Defendant appeared through counsel, David J. O'Connell and Timothy E. Congrove. Kansas Gas Service, LLC, ONEOK Kansas Properties, LLC, and Kansas Gas Service, a Division of ONEOK, Inc. (which are among the named defendants in this case) appeared through counsel, Karrie J. Clinkinbeard. For the reasons discussed below, plaintiff's motion is denied.
This dispute stems from defendant's responses to plaintiff's first set of interrogatories. After several exchanges between counsel, plaintiff filed a motion to compel discovery on July 29, 2013 (ECF doc. 67). In that motion, plaintiff asked the court to strike defendant's objections to the interrogatories, award fees and costs, and impose sanctions against defendant. On September 3, 2013, the court granted plaintiff's motion in part and denied it in part (ECF doc. 78). In doing so, the court deemed waived defendant's "general objections" and its objections to Interrogatory No. 8, overruled defendant's overly broad and/or undue burden objections to Interrogatory Nos. 9 and 11, and ordered defendant to supplement its answers to Interrogatory Nos. 2 and 5. Pursuant to certain conditions, defendant was ordered to supplement its answers to Interrogatory Nos. 3, 6-9, and 11-12.
The court held that an award of fees and expenses was not warranted because both sides were at fault to some degree. Although the court strongly encouraged the parties to cooperate and communicate with each other before involving the court again, plaintiff filed the instant motion for Rule 37 sanctions on October 31, 2013. In her motion, plaintiff challenges defendant's assertion that it does not have certain documents from the time period before its merger with The Holmes Group, Inc.
In 2005, Jarden Corporation (which is among the named defendants in this case) acquired The Holmes Group, Inc. One year later, The Holmes Group, Inc. merged with and into defendant. Before the merger, The Holmes Group, Inc. manufactured the quartz space heater at issue, the Holmes HQH307 ("HQH307"). After the merger, defendant manufactured the HQH307. Plaintiff asserts that her "heaters each contain stamping claiming a 2005 copyright for Jarden Corporation." Defendant asserts it never manufactured space heaters with the "Holmes" trade name before the merger in 2006. Defendant also claims that it has confirmed the subject heater was manufactured in 2008, two years after the merger.
Plaintiff seeks pre-merger documents from The Holmes Group, Inc. relating to the design, manufacturing, testing, and sales of the HQH307 and other similar quartz space heaters. Defendant responds that it has produced responsive information in its possession, custody, and control for the HQH307 and similar quartz model heaters, including all available information dated prior to the merger. Plaintiff is dissatisfied with this response and claims defendant has misled the court and plaintiff by its failure to candidly disclose the unavailability of pre-merger documents in its responses to plaintiff's first set of interrogatories and motion to compel.
Plaintiff asks for relief pursuant to Rule 37 for defendant's alleged violation of the court's September 3, 2013 order. Rule 37(b) governs sanctions for failure to comply with an order of the court to provide or permit discovery. The court should diligently apply sanctions under Rule 37 not only to penalize those who have engaged in sanctionable misconduct but also to deter those who might be tempted to such conduct in the absence of such a deterrent. The court is afforded wide discretion in choosing an appropriate sanction.
Rule 37(b) authorizes the court to "issue further just orders" and to impose various sanctions upon a party for failure to comply with an order to provide or permit discovery, including: (1) ordering that designated facts be taken as established; (2) precluding the disobedient party from supporting or opposing matters at issue or introducing designated matters in evidence; (3) striking pleadings in whole or in part; (4) staying further proceedings until the order is obeyed; (5) dismissing the action; (6) rendering a default judgment against the disobedient party; and (7) treating the failure to obey the discovery order as contempt of court.
Oddly, in her motion plaintiff did not specify which relief under Rule 37 she was seeking. Rather, she asked the court to sanction defendant and order defendant to "supplement its Interrogatory Answers and provide an accounting of Sunbeam's claimed unavailable documents and information." In essence, plaintiff's motion appeared to be a motion to compel defendant to supplement its responses to plaintiff's first set of interrogatories as ordered by the court's September 3, 2013 order.
Because defendant's supplemental answers were served on September 16, 2013, any motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2 had to be filed within 30 days of service of the response,  or October 16, 2013. To the extent plaintiff seeks to compel defendant to supplement its answers to her first set of interrogatories, such a motion is untimely because the instant motion was filed on October 31, 2013. Without good cause shown, the court will construe and address plaintiff's motion as a motion for sanctions only.
At the hearing, the court pressed plaintiff to articulate what specific relief she is seeking. Upon extended inquiry, plaintiff finally asked for the following: 1) additional time to disclose experts; 2) issue preclusion of certain affirmative defenses; and 3) relief from the duty to lay certain foundations because of the alleged tardiness and incompleteness of defendant's production. As explained by the court on the record during the hearing, without a strong factual basis by plaintiff or citation to any legal authority, the court will only consider plaintiff's request to extend the expert disclosure deadline.
First, plaintiff argues defendant is not in compliance with the court's September 3, 2013 order because of its "previously unasserted theory that certain documents and information from The Holmes Group, Inc. are not available." Plaintiff asserts that defendant's theory that pre-merger documents are unavailable should be deemed waived because it was not asserted in defendant's answer to plaintiff's interrogatories or in response to the motion to compel. Plaintiff explains that most of defendant's supplemental answers to plaintiff's first interrogatories were limited by defendant's failure to produce pre-merger documents, which are crucial to its claims. Plaintiff claims defendant has ...