Garrettson v. Sanuwave Health, Inc.

U.S. District Court, District of Minnesota July 24, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Sean Cronin,
Case No. 23-cv-1295 (SRN/ECW)
Plaintiff,

v. ORDER

Sanuwave Health, Inc.,

Defendant.

This matter comes before the Court on Defendant Sanuwave Health, Inc.’s Motion
for Discovery Sanctions (Dkt. 58). For the reasons stated below, the Motion is granted in
part and denied in part.
I. BACKGROUND
On May 10, 2023, Plaintiffs John Garrettson and Timothy Fitzgerald initiated this
action by filing a Complaint against Defendant Sanuwave Health, Inc. (“Sanuwave”)
seeking “to recover damages for unpaid commissions they are owed” and “for wrongful
termination.” (Dkt. 1 at 1.)1 On July 5, 2023, they filed an Amended Complaint adding
Sean Cronin as a Plaintiff. (Dkt. 12.)
On October 16, 2023, the Court issued a Pretrial Scheduling Order setting the
following relevant deadlines: fact discovery had to be commenced in time to be
completed on or before May 1, 2024 and “all non-dispositive motions and supporting

1 Unless otherwise noted, page number citations to materials filed on the docket are
citations to the CM/ECF pagination.
documents” relating to fact discovery had to be filed and served on or before May 15,
2024. (Dkt. 32 at 3, 5.) The Pretrial Scheduling Order limited each party to no more than

5 factual depositions. (Id. at 3.)
On October 31, 2023, the Court stayed the case with respect to Garrettson and
Fitzgerald because they reported reaching an agreement in principle to resolve their
claims against Sanuwave. (Dkts. 34, 36.) Garrettson and Fitzgerald filed a stipulation of
dismissal with prejudice on July 3, 2024, and U.S. District Judge Susan Richard Nelson
dismissed those claims on July 8, 2024. (Dkts. 104, 106.)

Meanwhile, on March 14, 2024, the Court issued a Protective Order based on the
parties’ stipulation. (Dkts. 44, 46.) The Protective Order provides in relevant part:
¶ 2(b) “A party or non-party may designate a document as confidential by
conspicuously marking each page with the word ‘confidential.’”
…
¶ 3(c) “A party or non-party may supplement the “confidential” mark (see
paragraph 2(b)) with the words “attorney’s eyes only,” in which case a
confidential document so designated may not be revealed except to the
attorney or attorney’s [sic] who received the production. For avoidance of
doubt, such attorneys may not share the document with any client without
first obtaining written permission of the producing party or an order by the
Court.
…
¶ 7(a) “A confidential document disclosed or produced by a party remains
confidential unless the parties agree to change its designation or the court
orders otherwise.”
…
¶ 7(c) “A party who cannot obtain agreement to change a designation may
move the court for an order changing the designation. . . . The party or non-
party who designated a document as confidential must show that the
designation satisfies Fed. R. Civ. P. 26(c).”

…
¶ 9(a)(2) “A party who discovers that it may have received an inadvertently
disclosed or produced protected document must promptly notify the
disclosing or producing party or non-party.”
¶ 9(b) “Handling of Protected Document. A party who is notified or
discovers that it may have received a protected document must comply with
Fed. R. Civ. P. 26(b)(5)(B).”
…
¶ 10(b) “A party who learns of a breach of confidentiality must promptly
notify the disclosing or producing party or non-party of the scope and
nature of that breach and make reasonable efforts to remedy the breach.”
(Dkt. 46.)
On April 30, 2024, the Court extended the deadline to complete fact depositions
from May 1, 2024 until May 15, 2024, based on a stipulation filed by Cronin and
Sanuwave. (Dkts. 52, 53.)
On May 15, 2024, Sanuwave filed the instant Motion for Discovery Sanctions
along with its supporting papers. (Dkts. 58-63.) Also on May 15, 2024, Cronin filed a
Motion to Compel, Extend Discovery Deadlines, and for Sanctions (Dkt. 64) and a
Motion for International Judicial Assistance (Letters Rogatory) and Motion for Extension
of Discovery (Dkt. 65). However, Cronin filed most of his papers in support of his two
Motions late, on May 16 and 17, 2024.2 (See, e.g., Dkts. 68-77.) On June 13, 2024, the

2 Cronin’s brief and proposed order in support of his Motion to Compel were filed
shortly after midnight on May 16, 2024. (Dkts. 66-67.) The remainder of his untimely
Court heard argument on Sanuwave’s Motion, as well as on Cronin’s Motions. (Dkt. 96
(minute entry).) At the conclusion of the June 13 hearing, the Court issued oral orders on

Plaintiff’s Motions (Dkts. 64, 65). (See id.) The Court took Sanuwave’s Motion for
Discovery Sanctions under advisement and now issues this Order on the Motion.
II. DISCUSSION
Sanuwave seeks sanctions under Rule 37(b)(2) of the Federal Rules of Civil
Procedure and pursuant to the Court’s inherent authority. (Dkt. 58; Dkt. 59 at 7.)
Sanuwave seeks sanctions for the following reasons. Sanuwave asserts that “Mr. Cronin,

through his counsel, has . . . accessed and reviewed Sanuwave’s proprietary information
marked ‘Attorneys Eyes Only’ in violation of the parties’ Protective Order.” (Dkt. 60 at
1.) Sanuwave asserts that the same lawyer, Matthias Kaseorg of Pierce Jewett, PLLC
(“Cronin’s counsel”), “has served a third-party subpoena duces tecum on Sanuwave’s
former Chief Revenue Officer without providing advanced notice to Sanuwave or its

counsel as required by Federal Rule of Civil Procedure 45, and has engaged in blatant
acts of dishonesty thereafter.” (Id.) Sanuwave also asserts that Cronin’s counsel violated
the Protective Order with respect to this subpoena because it was not served with a copy
of the Protective Order and Local Rule 5.6. (Id. at 10.) Sanuwave also seeks its “fees
and costs incurred in remedying the aforementioned discovery violations pursuant to

Rule 37(b)(2)(C).” (Id. at 13.)

filings began at 11:55 a.m. Central Time on May 16, 2024 (see Dkt. 68). The Court
focuses on the filings beginning at 11:55 a.m. on May 16 for purposes of untimeliness.
A. Legal Standard
Sanuwave seeks sanctions under (1) Rule 37(b)(2) of the Federal Rules of Civil

Procedure and (2) the Court’s inherent authority. (Dkt. 58; Dkt. 59 at 7.) The Court sets
forth the legal standard for each basis below.
As to Rule 37(b)(2), “Rule 37(b) of the Federal Rules of Civil Procedure provides
for sanctions for the violation of discovery orders, which include protective orders issued
under Federal Rule of Civil Procedure 26(c).” Sandoval v. Am. Bldg. Maint. Indus., Inc.,

267 F.R.D. 257, 264

 (D. Minn. 2007).  Sanctions available for violation of a discovery 

order under Rule 37(b)(2) include:                                        
(i)  directing that the matters embraced in the order or other designated 
     facts  be  taken  as  established  for  purposes  of  the  action,  as  the 
     prevailing party claims;                                        

(ii)  prohibiting  the  disobedient  party  from  supporting  or  opposing 
     designated  claims  or  defenses,  or  from  introducing  designated 
     matters in evidence;                                            

(iii)  striking pleadings in whole or in part;                       

(iv)  staying further proceedings until the order is obeyed;         

(v)  dismissing the action or proceeding in whole or in part;        

(vi)  rendering a default judgment against the disobedient party; or 

(vii)  treating as contempt of court the failure to obey any order except an 
     order to submit to a physical or mental examination.            

Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).  “The district court has ‘a large measure of discretion 
in deciding what sanctions are appropriate for misconduct.’”  Aviva Sports, Inc. v. 
Fingerhut Direct Mktg., Inc., No. CIV. 09-1091JNE/JSM,

2013 WL 449775

, at *16 (D. 
Minn. Jan. 8, 2013) (quoting Hutchins v. A.G. Edwards & Sons, Inc.,

116 F.3d 1256, 1260

 (8th Cir. 1997)), R. & R. adopted,

2013 WL 449838

 (D. Minn. Feb. 6, 2013). 

“It is not a requirement that the party ‘willfully’ refuse to obey the Court’s discovery 
order” to award sanctions under this Rule.  Card Tech. Corp. v. DataCard Inc.,

249 F.R.D. 567, 570

 (D. Minn. 2008).  “The willfulness or good faith of the party can hardly 
affect the fact of noncompliance and are only relevant to the path which the District 
Court might follow in dealing with the party’s failure to comply.”

Id.

 (quoting Societe 
Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers,

357 U.S. 197, 208

 (1958)) (cleaned up).  However, “the most severe Rule 37(b)(2) 
sanctions—dismissal, default judgment, and striking pleadings in whole or in part—
require a finding of willfulness to avoid being deemed an abuse of discretion.”  Id. at 571.   
As to fees and costs, Rule 37(b)(2)(C) provides that “[i]nstead of or in addition to” 
the sanctions permitted under Rule 37(b)(2)(A), “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). 
With respect to the Court’s inherent authority, “[t]he court has power to discipline 
attorneys who appear before it.”  Greiner v. City of Champlin,

152 F.3d 787

, 790 (8th 

Cir. 1998) (citing Chambers v. NASCO, Inc.,

501 U.S. 32501

 U.S. 32, 43 (1991); Harlan 
v. Lewis,

982 F.2d 1255, 1259

 (8th Cir.), cert. denied,

510 U.S. 828

 (1993)).  Such 
“inherent powers must be exercised with restraint and discretion, as “[a] primary aspect 
of that discretion is the ability to fashion an appropriate sanction for conduct which 
abuses the judicial process.”  Chambers, 501 U.S. at 44-45 (citation omitted).  “Sanctions 
imposed pursuant to the court’s inherent power are permitted where a litigant acted in bad 

faith, vexatiously, wantonly, or for oppressive reasons.”  Mgmt. Registry, Inc. v. A.W. 
Cos, Inc., No. 17-CV-5009 (JRT/KMM),

2020 WL 1910589

, at *20 (D. Minn. Apr. 20, 
2020) (cleaned up), R. & R. adopted, No. CV 17-5009 (JRT/KMM),

2020 WL 4915832

 
(D. Minn. Aug. 21, 2020), as amended (Aug. 27, 2020).  A court’s inherent authority 
permits it to “assess attorney’s fees as a sanction for the willful disobedience of a court 
order.”  Chambers, 501 U.S. at 45 (cleaned up).  However, “[t]he Eighth Circuit has held 

that there is not a bad faith requirement that extends to every disciplinary action the court 
makes [pursuant to its inherent authority], such as monetary sanctions.”  VanDanacker v. 
Main Motor Sales Co.,

109 F. Supp. 2d 1045, 1055

 (D. Minn. 2000) (citing Harlan v. 
Lewis,

982 F.2d 1255 1260

 (8th Cir. 1993)); see In re Baycol Prod. Litig., No. MDL 
1431 (MJD/JGL),

2004 WL 1052968

, at *17 (D. Minn. Apr. 12, 2004) (citing

VanDanacker to conclude that a finding of bad faith was not required before the court
could impose monetary sanctions under its inherent authority).
B. Disclosure of Attorney’s Eyes Only Information to Cronin in Violation of the
Protective Order
Sanuwave first seeks sanctions on the ground that Cronin and his attorney violated
the Protective Order’s restrictions on disclosure of Attorney’s Eyes Only information
because Cronin’s counsel provided Attorney’s Eyes Only information to Cronin. (Dkt.
59 at 3-8.) The relevant facts (set forth below) are not in dispute.
The Court entered a Protective Order on March 14, 2024 prohibiting an attorney
from sharing a document designated “Attorney’s Eyes Only” with anyone except the

attorney who received the production, and specifically prohibiting sharing of a document
so designated “with any client without first obtaining written permission of the producing
party or an order by the Court.” (Dkt. 46 ¶ 3(c).) In April 2024, Sanuwave produced
emails exchanged between members of its finance team from October 2022 to January
2023, where the emails contained spreadsheets of data (also referred to as “datasets”)
showing the sales that were used to form the basis of Cronin’s monthly commission.

(Dkt. 60 at 5; see also Dkt. 61 ¶¶ 7-8 (describing slip sheets and cover email for
documents); Dkt. 61-1, Ex. 6 at 49-62 (slip sheets).) Sanuwave states that “the datasets
contained customer names, product names, and pricing information,” and because of the
sensitivity of that information, it “marked both the emails and the attached spreadsheets
‘Attorneys Eyes Only’ and produced them.” (Id.) Sanuwave produced the datasets—17

in total—in their native format using Relativity e-discovery software, with each native
Excel file accompanied by a slip sheet in the form of an image file that read “FILE
PRODUCED NATIVELY” in the middle of the slipsheet and where that slip sheet had
the same bates label as the corresponding native Excel file in the lower right-hand corner
and stated “Confidential – Attorneys’ Eyes Only” in the lower left-hand corner. (Dkt. 61-

1, Ex. 6 at 51-65; Dkt. 60 at 5-6.) The cover email to Sanuwave’s production stated:
“Please note there are documents in this production labeled Attorneys Eyes Only under
the parties’ Protective Order.” (Dkt. 61-1, Ex. 7 at 67.)
On April 11, 2024, Cronin’s counsel reviewed the production. (See Dkt. 86 at 6.)
Because Pierce Jewett does not use Relativity or any e-discovery software, Cronin’s
counsel reviewed the production as a “discovery folder” on his computer.’ (See id. at 7.)
The Court reproduces a screenshot of this folder below (see id.):

< VOL001 =e my O OG □□
Back/Forward View Group Share AddTags Action Search |
Name “Date Modified Size Kind
v Gl IMAGES Apr 16, 2024 at 5:26 PM -- Folder
!
> 53 ImGooo2 Apr 16, 2024 at 5:33 PM -- Folder \
v 0D NATIVES Apr 16, 2024 at 5:26PM -- Falder }
v GB NATIVEOO01 May 14, 2024 at 5:52PM -- Folder
& Sanuwave_00000661,xlsx Apr 4, 2024 at 3:30PM 73 KB Micros...k (.xIsx)
& Sanuwave_00000789.XLSX May 8, 2024 at 11:52PM 34 KB Micros...k (.xlsx) )
& □□□□□□□□□□□□□□□□□□□□□□ May 14, 2024 at 5:52PM 80 KB Micros...k (.xlsx) )
& Sanuwave_00000796.xlsx May 13, 2024 at 10:42PM 104 KB Micros...k (.xIlsx) )
&: Sanuwave_00000798.xlsx May 13, 2024 at 10:45PM 128 KB Micros...k (.xlsx) )
& Sanuwave_00000808.xlsx Apr 4, 2024 at 3:30PM 71KB~ Micros...k (.xlsx) )
& Sanuwave_00000944.XLSX Apr 4, 2024 at 3:30PM 34 KB Micros...k (.xlsx) )
& Sanuwave_00000945.xlsx May 13, 2024 at 10:45PM 80 KB Micros...k (.xlsx) }
& Sanuwave_00000947.xlsx Apr 4, 2024 at 3:30PM 105 KB Micros...k (.xlsx) )
& Sanuwave_00000949.xlsx May 13, 2024 at 10:57PM 71KB Micros...k (.xlsx) )
& Sanuwave_00000951.xIsx Apr 4, 2024 at 3:30PM 86 KB Micros...k (.xlsx) )
& Sanuwave_00000957.xlsx May 13, 2024 at 10:57PM 72 KB Micros...k (.xIsx) )
& Sanuwave_00000958.xlsx May 13, 2024 at 10:57PM 127 KB Micros...k (.xlsx) )
& Sanuwave_00000960.xlsx Apr 4, 2024 at 3:30PM 71KB Micros...k (.xlsx) )
& Sanuwave_00000962.XLSX Apr 4, 2024 at 3:30PM 41 KB Micros...k (.xlsx) )
& Sanuwave_00000963.xlsx May 13, 2024 at 10:58PM 63 KB Micros...k (.xlsx) )
& Sanuwave_00000965.xlsx May 13, 2024 at 10:58PM 71KB_ Micros...k (.xlsx) )
□ TEXT Apr 16, 2024 at 5:26PM - Folder )

3 Cronin’s counsel represented at the June 13 hearing that his firm does not use
Relativity or any e-discovery software and that his firm does all of its discovery
production and receipt through native file management and file structures. The Court
takes no position on whether a law firm should use e-discovery software, but the fact that
a firm does not use such software is not an excuse for failing to review documents in a
manner that ensures compliance with the Protective Order.

As shown above, the production contained an “IMAGES” folder, a “NATIVES”
folder, and a “TEXT” folder. The “NATIVES” folder had a single subfolder

(NATIVE0001) which contained 17 files—the Excel spreadsheets at issue. (See Dkt. 86
at 7 (screen shot).) Each native file was identified by bates number in its filename. (Id.)
On April 11, 2024, Cronin’s counsel sent an email to Sanuwave’s counsel asking,
“Can you please provide a listing of documents you are marking as attorneys’ eyes
only?” (Dkt. 88-7 at 1.) Sanuwave’s counsel did not respond to this email. However,
Sanuwave’s counsel stated at the hearing that she suggested they meet and confer with

respect to several emails Cronin’s counsel had sent about the production, and Cronin’s
counsel did not ask for the listing during that meet-and-confer. Cronin’s counsel
accepted Sanuwave’s counsel’s representation that they did not discuss which documents
were designated Attorney’s Eyes Only during that meet-and-confer, but disputed whether
the meet-and-confer was intended to cover the identification of the Attorney’s Eyes Only

documents.
On April 30, 2024, Sanuwave deposed Cronin, at which time Sanuwave realized
that Cronin had reviewed Sanuwave’s Attorney’s Eyes Only datasets. (Dkt. 60 at 6.)
Cronin’s review of these datasets is not disputed, as Cronin’s counsel later confirmed his
review by email, stating:

Okay. This is why I asked for a list of documents that were Attorney s Eyes
Only (see attached) when we first received the production set, to which I
didn’t receive a response. The spreadsheets themselves in the NATIVE
folder, which is what I was accessing, did not have any such designation on
them. I made those spreadsheets in native format available to my client. We
even had conversations about Sean’s review and analysis of the data in the
new spreadsheets. I would strenuously object to the placing of an attorneys
eyes only label on spreadsheets that are material to my client assessing his
damages.

For now, I will revoke access to those spreadsheets and instruct my client to
remove any copies he may have (I don’t believe he has any).

(Dkt. 61-1, Ex. 8 at 69.)
Sanuwave now seeks sanctions on the ground that Cronin and Cronin’s counsel
violated the Protective Order because Cronin’s counsel gave Cronin access to these
Attorney’s Eyes Only spreadsheets. (Dkt. 60 at 7.) Cronin makes three arguments why
he should not be sanctioned.
First, as a threshold matter, Cronin argues that there was no “actual violation of
the Protective Order” that would qualify under Rule 37(b)(2)(A) because the Attorney’s
Eyes Only designation “appears on a separate cover page, but appears nowhere within
the file name or actual files containing the purportedly confidential information.” (Dkt.
86 at 17.) The Court finds this argument unpersuasive. The Protective Order provides
that a party “may designate a document as confidential by conspicuously marking each
page with the word ‘confidential.’” (Dkt. 46 ¶ 2(b) (emphasis added).) The Protective
Order does not state that the only way a party may designate a document as confidential
is by marking each page. If the Court were to accept Cronin’s position that “each page”
of a document must be marked or else the Protective Order is unenforceable, there would

be no way for a native file (such as an Excel spreadsheet or source code) to fall within the
scope of the Protective Order. It is unclear how one would even mark “each page” of an
Excel spreadsheet, and doing so would alter the native file itself.4 Indeed, Cronin’s
suggestion that Sanuwave should have included the Attorney’s Eyes Only designation in

“the file name” (see Dkt. 86 at 17) undermines his argument that there was no “actual
violation” of the Protective Order, as the Protective Order does not specifically identify
marking a file name as a manner of designation.
Here, it is undisputed that the slip sheets for the native files were marked as
“Confidential – Attorneys’ Eyes Only” and that the slip sheets corresponded by bates
number to the native files. (See Dkt. 61-1 at 51-65 (showing slip sheets); Dkt. 86 at 7

(showing folders with file names).) The Court finds that Sanuwave’s designation of the
Excel spreadsheets as “Confidential – Attorneys’ Eyes Only” by adding that designation
to each bates-numbered slip sheet corresponding to the bates-numbered native file meets
the designation requirements of the Protective Order and that Cronin’s counsel’s
provision of the spreadsheets to Cronin constituted a “fail[ure] to obey an order” (the

Protective Order) within the scope of Rule 37(b)(2)(A). This leaves the Court with the
question of an appropriate sanction under that Rule.
The Court therefore addresses Cronin’s other arguments why sanctions should not
be imposed. Cronin’s second argument is that sanctions are inappropriate because his
lawyer’s disclosure of the spreadsheets was “inadvertent, immediately remedied, and did

not result in prejudice.” (Dkt. 86 at 17 (emphases removed); see also id. at 17-20

4 Cronin’s First Requests for Production instruct that “documents originating in
electronic form . . . be produced in the manner that they were stored in the ordinary
course of business . . . in native or near-native form,” where Excel spreadsheets should be
produced as .XLS or .XLSX format. (Dkt. 66-3 at 5 ¶ 9.)
(expanding on arguments).) As to prejudice, Cronin argues “Defendant has failed to
identify a single material record from the Contested Spreadsheets that was not already

available from the Cronin Salesforce Spreadsheet or the Mediation Spreadsheet, let alone
a single piece of material information that Cronin did not already have access to at work.”
(Dkt. 86 at 19.) As explained by another court in this District, this type of argument
“depends on a limited and inaccurate view that the only harm at issue would result from
the publication of sensitive information the confidential documents might contain.”
United States ex rel. Johnson v. Golden Gate Nat. Sr. Care, L.L.C., No. CIV. 08-1194

DWF/JJK,

2013 WL 1182905

, at *7 (D. Minn. Mar. 21, 2013).  The Golden Gate court 
reasoned:                                                                 
Although that type of harm may not be present in these circumstances, the 
harm here is of a different, but equally important character.  Like other 
parties  that  produce  information  in  reliance  on  a  protective  order,  [the 
producing party] relied on the Protective Order in this case in disclosing 
[the information designated as confidential]. When an opponent ignores its 
obligations in handling information it receives under a protective order, the 
producing  party’s  confidence  that  its  sensitive  information  will  be 
safeguarded erodes. The Court’s confidence that its orders will be followed 
erodes as well. That erosion of confidence changes the landscape of the 
discovery process for the producing party and the Court’s expectations that 
litigation can be effectively managed, and there lies the harm.

Id.

The Court agrees with Golden Gate’s reasoning. Cronin’s counsel’s conduct with
respect to the Attorney’s Eyes Only spreadsheets raises serious concerns about whether
counsel can be relied on to follow the Court’s Orders. Cronin’s counsel admitted at the
hearing that he knew from the production cover email that the production contained
Attorney’s Eyes Only documents. Cronin’s counsel initially stated that he did look at the
image files for the documents that had been produced natively and for documents that
had not been produced natively. He then stated that he first reviewed the natively

produced documents (the spreadsheets) and, while he may have scrolled through an
associated image file after reviewing a native file at some point, he could not say for sure
if he did. Cronin’s counsel’s statement that he did review the slip sheets and subsequent
statement that he did not review (or could not be sure that he reviewed) the associated
slip sheets, are difficult to square. Either counsel reviewed the slip sheets or he did not.
In any event, Cronin’s counsel did not dispute that if he had looked at the slip sheets, he

would have seen the Attorney’s Eyes Only designation.
Counsel’s explanation for why he provided the spreadsheets to Cronin knowing
they came from a production containing Attorney’s Eyes Only documents was that the
discovery timeline was compressed and Sanuwave’s counsel was asking for specifics
about so-called “misaligned” sales. According to Cronin:

Plaintiff’s position had been that more information would be required to
fully assess the [misalignment] discrepancies given the lack of meaningful
information within the Contested Spreadsheets. Defendant’s position was
that it needed more information about the misaligned sales before it would
provide additional documents. Plaintiff took this to mean that Defendant
was requesting Mr. Cronin to compare the two sets of documents to provide
his best attempt at identifying misaligned sales. See Exhibit H at 16.

(Dkt. 86 at 18.)
But Exhibit H (filed at both Dkt. 86-9 and Dkt. 88-8) contains no language
suggesting Sanuwave was asking Cronin to personally review the spreadsheets or agreed
that Cronin could personally review Attorney’s Eyes Only documents. Cronin also relies
on Sanuwave’s April 1, 2024 interrogatory answers and April 26, 2024 interrogatory
answers to support this argument. (Id. (citing Exhibit F at Pages 10-16 and Exhibit I at
11-18).) Those interrogatory answers (Dkts. 86-7 and 88-6 (Exhibit F) and Dkts. 86-10

and 88-9 (Exhibit I)) refer to and summarize one of the datasets at issue, but do not
contain any request that Cronin personally review that dataset.
Counsel further stated at the hearing that he provided the spreadsheets to Cronin
because the native spreadsheets themselves (and their filenames) didn’t contain an
Attorney’s Eyes Only designation and blames Sanuwave’s counsel for not responding to
his email asking for a list of the documents that were designated Attorney’s Eyes Only.

But Cronin’s counsel did not further investigate which of the produced documents he
could give to his client. He did not follow up with Sanuwave and he (apparently) did not
review the image files constituting the slip sheets corresponding to the 17 native files,
which, given there were only 17 native files, would hardly have been a difficult or time-
consuming task. None of these explanations inspire confidence that counsel will follow

the Court’s Orders, including the Protective Order, or that counsel takes compliance with
the Protective Order seriously. This conduct prejudices Sanuwave, which cannot rely on
the Protective Order when producing sensitive materials, and also prejudices the judicial
process, which depends on parties and attorneys complying with the Court’s Orders.
Further, Sanuwave asserts prejudice because the spreadsheets contain sensitive

financial information and Cronin now works at a Sanuwave competitor. (See Dkt. 60 at
3.) Cronin responds by asserting that the spreadsheets do not contain any more
confidential information than other information he already has, the so-called “Cronin
Salesforce Spreadsheets” and a “Mediation Spreadsheet.” (Dkt. 86 at 19.) Cronin did
not file those documents (Dkt. 86 at 2-3 ¶ 3, 5 ¶ 10), and the Court declines to rely on
documents not before it to find a lack of prejudice. Moreover, Cronin’s counsel’s

explanation for why he did not file these documents is troubling. Cronin’s brief states he
did not file these documents because Sanuwave asserted the Cronin Salesforce
Spreadsheets are confidential and the Mediation Spreadsheet is designated Attorney’s
Eyes Only. (Dkt. 86 at 2-3 ¶ 3, 5 ¶ 10.) Instead, the brief offers to make the documents
available “upon request” for the Court. (Id.) At the hearing, the Court explained to
Cronin’s counsel that he should have filed the documents under seal and the Court would

not “request” documents that a party should have filed. Indeed, Cronin has filed other
documents under seal. (E.g., Dkts. 69, 87.) Cronin’s counsel responded that Sanuwave’s
counsel had told him by email that he could not use the Attorney’s Eyes Only documents
in any filing.
Concerned about this possibility, after the June 13 hearing, the Court ordered

Cronin’s counsel to file the Sanuwave email at issue. (Dkt. 97.) He did so (Dkt. 98-1),
but the Sanuwave email does not say what Cronin’s counsel told the Court it says. The
email says: “Sanuwave’s position is certainly that AEO documents cannot be publicly
filed.” (Id. at 1 (emphasis added).) The cover letter filed with the Sanuwave email (a
letter that the Court neither requested nor authorized) offers several explanations for

Cronin’s counsel’s conduct, including a purported misunderstanding of the Protective
Order. (See Dkt. 98.) Those explanations do not justify Cronin’s counsel’s misstatement
to the Court that Sanuwave told him he could not use those documents in any filing. The
Court cannot emphasize enough how important it is that counsel be careful, accurate, and
truthful in their representations to the Court at all times. If Sanuwave had in fact told
counsel that he could not file Attorney’s Eyes Only documents, that would be troubling

indeed. But what Sanuwave said is that Cronin could not “publicly” file such documents.
(Dkt. 98-1 at 1.) Cronin’s counsel’s failure to understand the Protective Order and Local
Rule 5.6 (and apparent failure to ask local counsel for guidance on this issue) does not
excuse his statement to the Court during the June 13 hearing blaming Sanuwave’s
counsel for his failure to file documents supporting his brief.
In any event, Cronin’s argument that there is no prejudice because the Attorney’s

Eyes Only spreadsheets do not contain any more confidential information than the Cronin
Salesforce Spreadsheets and Mediation Spreadsheet is unpersuasive. At the June 13
hearing, Cronin argued that he needed the Attorney’s Eyes Only spreadsheets to address
“misalignment” issues and for damages purposes. Cronin has not explained why, if the
Attorney’s Eyes Only spreadsheets truly contain less information than Cronin already

has, he needs those spreadsheets. The Court concludes that the Attorney’s Eyes Only
spreadsheets contain information that is different from or more detailed than what Cronin
already has and therefore that their disclosure was prejudicial given Cronin now works
for a Sanuwave competitor.
The Court also finds that the disclosure of Sanuwave’s Attorney’s Eyes Only

spreadsheets to Cronin was not “inadvertent.” As described above, counsel knew the 17
spreadsheets were part of a production that contained Attorney’s Eyes Only documents.
Counsel’s decision to bury his head in the sand as to this fact rather than reviewing the
associated slip sheets or following up with Sanuwave does not make his conduct
inadvertent. Rather, it suggests an intent to dodge limitations imposed by the Protective
Order when expedient.

The Court is similarly unpersuaded that it should ignore the violation because it
was “immediately remedied.” Setting aside the question of whether Cronin remembers
any of the information he reviewed, the fact that counsel cut off Cronin’s access to the
documents does not cure the Court’s concern as to counsel’s intent and ability to comply
with the Court’s Orders.
Third, Cronin argues that he should not be sanctioned because the Attorney’s Eyes

Only designation is inappropriate or has already been waived. (Dkt. 86 at 21-22.) The
Protective Order provides: “A confidential document disclosed or produced by a party
remains confidential unless the parties agree to change its designation or the court orders
otherwise” and sets forth the mechanism for challenging designations by seeking relief
from the Court. (Dkt. 46 at 5 ¶ 7(a), (c).) A party cannot avoid sanctions for violating a

Protective Order by making such after-the-fact arguments. In fact, Cronin’s reliance on
these arguments causes concern that counsel violated the Protective Order not for the
reasons proffered to the Court, but because counsel simply disagreed with Sanuwave’s
designation. See Golden Gate,

2013 WL 1182905

, at *7 (“[T]he attempt to argue that 
these documents should never have been marked confidential in the first place leads the 

Court to question whether Defendants decided for themselves that Johnson’s personnel 
file did not deserve to be treated as confidential and then embarked on a plan to use that 
information in whatever advantageous manner they could . . .”); see also Mgmt. Registry,

2019 WL 5388488

, at *7 (concluding that the disclosure of testimony designated AEO
was sanctionable where counsel never “raised the propriety of the confidentiality or AEO
designations” with the producing party or the court before the producing party sought

sanctions).
As to inherent authority, at the June 13 hearing, the Court asked counsel for
Cronin if he was taking the position that if someone sent him a document with a cover
email that said the document was Attorney’s Eyes Only, he could show it to his client
without violating the Protective Order even though he knew the cover letter said that the
document was Attorney’s Eyes Only. Counsel responded that doing so would be within

the Court’s “general sanction power.” That is basically what happened here. Counsel
knew the production contained documents designated Attorney’s Eyes Only based on the
cover email. The image files for the 17 spreadsheets said “DOCUMENT PRODUCED
NATIVELY” and contained the Attorney’s Eyes Only designation and the bates number.
There were only 17 natively produced files. Those 17 files contained the bates numbers

in their filenames. But somehow, counsel concluded that Sanuwave’s natively produced
sales spreadsheets were not designated at all under the Protective Order, and apparently
believed that he did not even need to look at the corresponding image files to check.
Cronin’s counsel’s conduct with respect to the Attorney’s Eyes Only spreadsheets
warrants an award of attorney’s fees under Rule 37, as discussed in Section II.D below.

His conduct causes grave concern that counsel will act with a similar lack of care with
respect to the handling of Confidential and Attorney’s Eyes Only material going forward.
C. Violation of the Federal Rules and the Protective Order Relating to a Third-
Party Subpoena
Sanuwave also seeks sanctions because Cronin’s counsel violated Federal Rule of
Civil Procedure 45 in connection with a third-party subpoena to Jack Schlechtweg,
Sanuwave’s former Chief Revenue Officer. (Dkt. 60 at 8-13.) Sanuwave also alleges
that Cronin’s counsel backdated documents and told Sanuwave’s counsel that he had not

subpoenaed Schlechtweg when in fact he had done so days earlier. (Id.) Finally,
Sanuwave alleges that Cronin violated the Protective Order because he did not
simultaneously serve a copy of the Protective Order and Local Rule 5.6 with the
subpoena at issue. (Id. at 10.)
As stated above, the Pretrial Scheduling Order provided that the discovery period

closed on May 1, 2024 and allowed each party to take 5 depositions. (Dkt. 32 at 3, 5.)
On April 8, 2024, Cronin’s counsel sent an email to Sanuwave’s counsel seeking
deposition dates for 7 individuals, including Schlechtweg and another former Sanuwave
employee, and a Sanuwave corporate representative (a total of 8 depositions). (Dkt. 61-1,
Ex. 9 at 74; Dkt. 88-17, Ex. Q at 20; Dkt. 60 at 9.) The email asked for the last known

addresses of any of the individuals who were no longer employed by Sanuwave or if
Sanuwave could not secure their attendance at a deposition, and stated Cronin’s counsel’s
belief that Schlechtweg was no longer working for Sanuwave. (Dkt. 61-1, Ex. 9 at 74;
Dkt. 88-17, Ex. Q at 20.)
On April 16, 2024, after some correspondence between counsel regarding the

schedule and deposition limits, Cronin served deposition notices on Sanuwave with a
cover email stating: “Please see the attached deposition notices as discussed below. Per
Defendant’s Rule 26 disclosures, where it was represented that these individuals can be

contacted through counsel for Sanuwave, we trust that these notices are sufficient. Please
provide updated addresses if a subpoena is required.” (Dkt. 88-17, Ex. Q at 14; see also
id. at 15-20 (discussion regarding schedule and limits).) On April 17, 2024, Sanuwave’s
counsel responded: “[A]s you have already noted, Jack Schlechtweg . . . [is] no longer [a]
Sanuwave employee[] and you will need to subpoena [him] for [a] deposition[].” (Dkt.
88-17, Ex. Q at 14.) The same day, Cronin’s counsel responded: “We’ll subpoena

[Schlechtweg]. . . , but you’ll need to update your initial disclosures with last known
addresses and contact information – it currently states that [Schlechtweg]. . . can be
contacted via defendant’s counsel.” (Dkt. 88-17, Ex. Q at 13-14.) Sanuwave’s counsel
responded less than 2 hours later that she would “look into the last known addresses for
Mr. Schlechtweg.” (Dkt. 88-17, Ex. Q at 13.) Cronin later reduced his sought-after

depositions to the limit of 5 and the parties agreed to extend discovery for the purpose of
the depositions until May 15, 2024. (Dkt 88-17, Ex. Q at 14; see also Dkts. 52, 53
(Stipulation and Order approving Stipulation).)
On April 17, 2024, Cronin served two Subpoenas to Produce Documents,
Information, or Objects or to Permit Inspection of Premises in a Civil Action, issued out

of the District of Minnesota, on two Florida entities (“the Florida subpoenas”). (Dkts.
88-14, Ex. N.)5 They sought: “All sales documents and contracts with Sanuwave, Inc.,

5 Cronin’s brief refers to both “an earlier subpoena duces tecum” and “two
subpoenas” served on the two Florida entities. (E.g., Dkt. 86 at 14 ¶ 31 (“an earlier
and all correspondences with Sanuwave sales representatives, including but not limited to
John ‘Jack’ Schlechtweg.” (Id.) Cronin notified Sanuwave’s counsel of the Florida

subpoenas and provided copies to Sanuwave. (Dkt. 86 at 12.)
Two days later, on April 19, 2024, Sanuwave’s counsel provided the last known
address for Schlechtweg. (Dkt. 66-10, Ex. J at 1.) On April 30, 2024, Cronin’s counsel
issued a Subpoena to Testify at a Deposition in a Civil Action from the Eastern District of
Virginia to Schlechtweg (“April 30 Subpoena”). (Dkt. 61-1, Ex. 13 at 95-97.) While
titled a Subpoena to Testify at a Deposition, the April 30 Subpoena also requested the

production of: “All sales documents and contracts with Sanuwave, Inc., and all
correspondences with sales representatives, including but not limited to John ‘Jack’
Schlechtweg.” (Id. at 95.) An Affidavit of Service, signed on May 5, 2024, states that a
process server completed personal service on Schlechtweg on May 1, 2024 at 3:05 pm
EDT. (Id. at 98.)

On May 2, 2024, counsel engaged in the following exchange relating to
Schlechtweg, beginning when Sanuwave’s counsel sent an email containing the
following requests to Cronin’s counsel:
Third Party Subpoena Documents. You have issued third-party subpoenas
to two of Sanuwave’s clients. On April 23, 2024, you indicated you had
received responsive correspondence from those parties. As you know,
Sanuwave’s Request Number 18 seeks “All documents received from any
non-party in discovery[.]” I have asked you to produce those documents on

subpoena duces tecum that was served on the two Florida entities”); id. 15 ¶ 35 (“the two
subpoenas issued to the Florida entities”); id. at 25 (“an earlier subpoena duces tecum
that was served on the two Florida entities”); id. at 27 (“the two subpoenas issued to the
Florida entities”).) Exhibit N, which constitutes the subpoenas, includes four copies of
subpoenas, two with returns of service. (Dkt. 88-14.)
April 23, April 26, and April 29, and you have not provided them,
notwithstanding having made multiple supplemental productions in the
interim (though, admittedly, your last set of document productions continue
to remain inaccessible to our team). You have provided no explanation for
why these documents have not been produced notwithstanding minimal
burden and multiple requests.

Third Party Depositions. Please confirm whether you have issued, or intend
to issue, subpoenas for the depositions of Jack Schlechtweg and [another
former Sanuwave employee]. We have received no notice of issuance of
said subpoenas.

(Dkt. 88-16, Ex. P at 4-6.)
Cronin’s counsel responded:
Third Party Subpoena Documents.
See attached. We received a broken link to another letter or document of
some kind, but have not yet received a corrected link. I will provide that
document as soon as we are able to access it.

Third Party Depositions.
[A paralegal at Cronin’s counsel’s firm] will forward you these requests.

(Id. at 3.)
Sanuwave’s counsel responded: “To be clear, have you issued other third-party
subpoenas aside from the two that were noticed? If so, please provide those
immediately.” (Id. at 2-3.) Cronin’s counsel responded: “We have not.” (Id. at 2.)
But Cronin’s counsel did not send the April 30 Subpoena to Sanuwave’s counsel.
Instead, the paralegal emailed a Notice of Deposition for Schlechtweg to Sanuwave’s
counsel with a deposition date of May 15, 2024. (Dkt. 61-1, Ex. 11 at 81-83.) The
Notice of Deposition did not mention the April 30 Subpoena. (See id.) It was signed by
Sanuwave’s counsel with a date of April 29, 2024 and included a certificate of service
stating it had been served on Sanuwave’s counsel on April 29, 2024. (Id. at 83-85.)
Sanuwave’s counsel responded within an hour by saying, “Please correct it to properly
reflect that it was not served on me on April 29,” and the paralegal then served a Notice

of Deposition (that did not reference the April 30 Subpoena) with a May 2, 2024
signature date and including a certificate of service with a May 2, 2024 service date. (Id.,
Ex. 12 at 87-89.)
Sanuwave represents that on May 3, 2024 the parties met and conferred:
during which Mr. Kaseorg represented that Mr. Schlechtweg had been
served with a subpoena days prior (despite his representations to the
contrary), that he had already spoken with Mr. Schlechtweg by phone and
by text, that Mr. Schlechtweg was not available for his deposition on May
15, 2024 as noticed, but that he could either be available in the evening of
May 7, 2024 (in two business days’ time) or weeks following the close of
the discovery period. The undersigned asked that all correspondence with
Mr. Schlechtweg, a copy of the subpoena, and the affidavit of service be
forwarded immediately.

(Dkt. 60 at 9-10.)
Sanuwave’s counsel sent a follow-up email on May 3, 2024 requesting “all
correspondence relating to this subpoena, including the proof of service.” (Dkt. 61-1, Ex.
13 at 94.) On May 6, 2024, the paralegal sent the April 30 Subpoena and the Proof of
Service to Sanuwave’s counsel. (Id. at 93).
Based on these facts, Sanuwave argues the following:
[The April 30 Subpoena] violated Rule 45(a)(2) in that it was issued from
the Eastern District of Virginia and not the District of Minnesota. It
violated Rule 45(a)(4) in that it was a subpoena duces tecum with no
advanced notice provided to Sanuwave. It violated Rule 45(d) in that it
sought documents from Mr. Schlechtweg that were exceedingly overly
broad and unduly burdensome (including “all sales documents and
contracts with Sanuwave” and “all correspondence with sales
representatives”). And it violated the parties’ Protective Order in that it did
not include a copy of the Protective Order or Local Rule 5.6. ECF No. 46.”
(Dkt. 60 at 10.) Sanuwave seeks sanctions for these violations of Rule 45, as well as for
Cronin’s counsel’s conduct in “backdating” the Notice of Deposition and misrepresenting
that Cronin had not issued a subpoena to Schlechtweg on May 2, 2024, when Cronin had
in fact done so on April 30, 2024. (See id. at 9-11.) According to Sanuwave:

Mr. Kaseorg’s failure to comply with the Federal Rules of Civil Procedure
when issuing third-party subpoenas is striking. Tipping the scale from
striking to sanctionable, though, is Mr. Kaseorg’s dishonesty aimed to
conceal his actions. Mr. Kaseorg not only affirmatively represented, on
May 2, 2024, that the subpoena had not yet been issued, despite it having
been served the day prior, but he then issued a Notice of Deposition
backdated to April 29, 2024, in an attempt to conceal the belated notice.
Chambers Dec. Exs. 10-13. Mr. Kaseorg’s deception enabled him to have
conversations with Mr. Schlechtweg, Sanuwave’s former CRO, prior to
Sanuwave having the opportunity to represent him.

(Dkt. 60 at 11.)
Cronin’s response is “Defendant provides a smattering of various minutia
regarding the subpoena of Jack Schlechtweg in an effort to overwhelm Plaintiff’s counsel
with a litany of misunderstandings and nominal mistakes.” (Dkt. 86 at 23.) Cronin
further argues that these mistakes have not “impacted the ‘orderly and expeditious
disposition of cases’ before this Court” and identifies several mistakes Sanuwave has
allegedly made. (Id. (citing Chambers, 501 U.S. at 43).)
According to Cronin, the “misunderstandings and nominal mistakes” are as
follows. Cronin’s counsel says that he did not intentionally mislead Sanuwave’s counsel
by answering “we have not” when she asked on May 2, 2024 “have you issued other
third-party subpoenas aside from the two that were noticed?” (Dkt. 86 at 26-27.) He
states that he believed this question “to refer to either Jack Schlechtweg and [another
former Sanuwave employee], which had been discussed earlier, or the two subpoenas
issued to the Florida entities.” (Id. at 15.) This does not make any sense. Sanuwave’s

counsel first specifically asked: “Third Party Depositions. Please confirm whether you
have issued, or intend to issue, subpoenas for the depositions of Jack Schlechtweg and
[another former Sanuwave employee]. We have received no notice of issuance of said
subpoenas.” (Dkt. 88-16, Ex. P at 4-6.) She then asked in a subsequent email: “To be
clear, have you issued other third-party subpoenas aside from the two that were noticed?
If so, please provide those immediately.” (Id. at 2-3.) No reasonable person could have

thought Sanuwave’s counsel knew about the subpoenas to Schlechtweg and the other
former Sanuwave employee based on this exchange.
This is clear because, as of May 2, 2024, Cronin had served copies of the
subpoenas to the Florida entities on Sanuwave (Dkt. 86 at 12), but had not served copies
of the subpoenas to Schlechtweg and the other former Sanuwave employees on

Sanuwave. Cronin’s counsel could not reasonably think a reference to “the two that were
noticed” referred to subpoenas Cronin had not served on Sanuwave. Further, regardless
of what Cronin’s counsel thought, there is no apparent reason why Cronin sent Sanuwave
a Notice of Deposition for Schlechtweg (apparently created on May 2, 2024) rather than
the April 30 Subpoena. Cronin’s counsel said at the hearing that he told his paralegal to

forward the “notice of subpoena” as the clearest way of answering the question. That is
not what happened. Instead, Cronin served a Notice of Deposition without a copy of the
April 30 Subpoena and without referencing the April 30 Subpoena. Both Notices of
Deposition were signed by Cronin’s counsel.
Finally, counsel argued at the June 13 hearing that Cronin was not required to
provide “the deposition notice” because it was not a document request. However, as

discussed above, the April 30 Subpoena did contain a request for the production of
documents. According to Cronin, it “erroneously included the same copied-over
document request language from an earlier subpoena duces tecum that was served on the
two Florida entities.” (Dkt. 86 at 14.) But the subpoenas sent to the Florida entities were
titled Subpoenas to Produce Documents, Information, or Objects or to Permit Inspection
of Premises in a Civil Action and issued out of the District of Minnesota. (Dkts. 88-14,

Ex. N.) It is unclear to the Court how this copying error occurred, given the subpoenas
were different types (the Florida subpoenas were titled for documents, the Schlechtweg
subpoena was titled for testimony) and issued out of different district courts (District of
Minnesota for the Florida subpoenas and the Eastern District of Virginia for the April 30
Subpoena). Counsel did not have a good explanation for how this error occurred during

the June 13 hearing. He speculated that a drop-down menu on the subpoena form had not
been updated from Virginia to Minnesota, but it was the earlier subpoenas that issued
from the District of Minnesota, calling this explanation into question. Cronin’s counsel
had no explanation for how this copying error occurred given the subpoenas were two
different types. Rather, Cronin’s counsel reiterated that it was a mistake, and he should

have taken a closer look at the April 30 Subpoena before signing it and sending it out.
Having considered all of the evidence and arguments of counsel, the Court
concludes that the record does not support a conclusion that counsel for Cronin
intentionally misled Sanuwave about the April 30 Subpoena to Schlechtweg or intended
to violate Rule 45. However, counsel’s lack of attention to the April 30 Subpoena and
the failure to read email correspondence from Sanuwave carefully enough to respond

accurately has certainly disrupted the orderly and expeditious handling of this
proceeding. Moreover, there is no dispute that the April 30 Subpoena was served without
a copy of the Protective Order and Local Rule 5.6, thereby violating the Protective Order.
(See Dkt. 46 at 4 ¶ 4 (“A party serving a subpoena on a non-party must simultaneously
serve a copy of this protective order and of Local Rule 5.6.”).) The question is what
sanctions are appropriate for this conduct.

D. Appropriate Sanctions
Sanuwave requested an award of fees and costs under Rule 37(b)(2)(C) and a
monetary sanction under the Court’s inherent authority for Cronin’s violations of the
Protective Order and Rule 45. (Dkt. 60 at 13.) At the June 13 hearing, Sanuwave
requested monetary sanctions in the amount of $1,000 for each violation—$2,000 total.

Sanuwave also asked the Court to quash Cronin’s more recent subpoena to Schlechtweg
(id. at 12), but that request is moot in view of the Court’s June 13, 2024 denial of
Cronin’s Motions filed on April 15, 2024 (see Dkt. 96). For the reasons stated below, the
Court denies monetary sanctions under the Court’s inherent authority, but imposes a non-
monetary sanction under the Court’s inherent authority and awards reasonable attorney’s

fees and costs under Rule 37(b)(2)(C).
Here, several facts weigh against a monetary sanction under the Court’s inherent
authority. First, after being alerted to the disclosure of the Attorney’s Eyes Only
documents, counsel immediately told Cronin to return the documents and not to review
them and “Mr. Cronin confirmed that he no longer had access to the Contested
Spreadsheets.” (Dkt. 86 at 18.) Cronin has stated under penalty of perjury that he no

longer has access to the Attorney’s Eyes Only spreadsheets, did not save them, and did
not send them to anyone else. (Dkt. 86-11 ¶¶ 5-7.)
Second, after Sanuwave notified counsel that the April 30 Subpoena violated Rule
45, Cronin’s counsel notified Schlechtweg that he did not have to produce documents and
issued a subpoena that complied with Rule 45 before Sanuwave filed this Motion. (See
Dkt. 88-17 at 1; Dkt. 88-18.) And while Sanuwave states that Cronin’s counsel had

“several conversations” with Schlechtweg before he retained Sanuwave’s counsel (Dkt.
61 at 11), it is difficult for the Court to find prejudice here when Sanuwave initially told
Cronin to contact Schlechtweg through Sanuwave’s counsel, then told Cronin’s counsel
on April 17, 2024 after he served a deposition notice that he would have to subpoena
Schlechtweg, and undertook Schlechtweg’s representation only after Cronin actually

subpoenaed him. Nothing prevented Cronin’s counsel from picking up the phone and
speaking with Schlechtweg after April 17, 2024, regardless of whether Cronin ever issued
a subpoena.6 In sum, most of Sanuwave’s prejudice is amorphous.
Third, the Court finds that an award of a monetary sanction is unlikely to deter (or
cure) the conduct that causes the Court the most concern—which is Cronin’s counsel’s

carelessness with respect to his obligations to deal fairly with opposing counsel and make

6 Sanuwave has not stated that it represented Schlechtweg at that time but simply
declined to accept service of a subpoena, nor has it sought sanctions based on Cronin’s
counsel’s direct contact with Schlechtweg.
accurate and truthful representations to the Court and his failure to abide by the Federal
and Local Rules. The Court is mindful that “[t]he sanction imposed must be fair and

tailored to the issue raised by discovery order.” Card Tech.,

249 F.R.D. at 571

 (citing 
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 707

 (1982); Keefer v. Provident Life and Accident Ins. Co.,

238 F.3d 937, 941

 (8th Cir. 
2000)).  Moreover, “[b]ecause of the potency of inherent powers, a court must exercise 
its inherent powers with restraint and discretion, and a primary aspect of that discretion is 
the ability to fashion an appropriate sanction.”  Plaintiffs’ Baycol Steering Comm. v. 

Bayer Corp.,

419 F.3d 794

, 802 (8th Cir. 2005) (internal quotations and citations
omitted).
Here, the harm resulting from the offending conduct is as follows: in April and
May 2024, Cronin’s counsel provided Sanuwave’s financial documents to Cronin in
violation of the Protective Order and notwithstanding the fact that they were designated

Attorney’s Eyes Only under the Protective Order and produced with a cover email stating
the production contained Attorney’s Eyes Only information; served the April 30
Subpoena that violated Rule 45, apparently because Cronin’s counsel did not review the
April 30 Subpoena carefully enough to notice multiple errors, and also violated the
Protective Order because it was not served with a copy of the Protective Order and Local

Rule 5.6; failed to provide notice of the April 30 Subpoena to Sanuwave’s counsel,
apparently because counsel did not notice when reviewing the April 30 Subpoena that it
requested documents; and incorrectly told Sanuwave’s counsel that Cronin had not
subpoenaed Schlechtweg in response to a direct question from Sanuwave’s counsel,
apparently based on a careless reading of email correspondence. Then, at the June 13
hearing, Cronin’s counsel blamed his failure to file certain papers in support of Cronin’s

arguments on an email sent by Sanuwave’s counsel—which, as it turned out, did not say
what Cronin’s counsel told the Court it said. This conduct disrupts and harms the judicial
process. At this point, the Court cannot trust that Cronin’s counsel will take the
necessary care to comply with the Court’s Orders and the Federal and Local Rules or that
counsel will ensure that statements made to opposing counsel and the Court are accurate.7
The Court recognizes that the practice of law can be difficult and demanding. But

at some point, conduct crosses the line from simply making a mistake (or two) to
carelessness and a lack of regard for what is required by the Rules and the Court’s
Orders. Cronin’s counsel’s conduct here is at that point. To remedy these issues, the
Court orders the following two sanctions. First, pursuant to the Court’s inherent
authority, the Court orders that Nichols Kaster PLLP, which moved for the pro hac vice

admission of Cronin’s counsel, must participate in the preparation and presentation of all
aspects of this case going forward.8 This participation includes reviewing all
correspondence between counsel, participation in all meet-and-confers, reviewing all of

7 Although the Court does not rely on the fact that Cronin’s counsel missed the
deadline for filing papers in support of his Motions as a basis for sanctions, the Court
notes that the reasons for that missed deadline are unclear to the Court and appear to be a
failure to read or understand Local Rule 7.1(b)(1) and the Pretrial Scheduling Order.

8 Local Rule 83.5 was recently amended to no longer require a member of this
Court’s bar who moves for the admission pro hac vice of a nonresident counsel to
participate in the presentation and preparation of the case. D. Minn. LR 83.5, 2023
Advisory Committee’s Notes. But that amendment contemplates that a judge in
Cronin’s Court filings before they are made, and appearance at all Court proceedings
(telephonic, by video, or in person). The Court trusts that local counsel’s participation

will ensure that this matter is litigated in a manner that complies with the Federal and
Local Rules and that “secure[s] the just, speedy, and inexpensive determination of” this
action and its proceedings. See Fed. R. Civ. P. 1.
Second, pursuant to Rule 37(b)(2)(C), the Court orders that Cronin’s counsel pay
Sanuwave’s reasonable attorneys’ fees and costs associated with the Motion for
Discovery Sanctions (Dkt. 58). As described in Sections II.B & II.C, Cronin’s counsel’s

failures were not substantially justified, and there are no other circumstances that make
this award of expenses unjust. See Fed. R. Civ. P. 37(b)(2)(C); see also Card Tech.,

249 F.R.D. at 570

 (willfulness not required for Rule 37(b)(2)(C) award of reasonable 
expenses).  Further, since it is Cronin’s counsel who engaged in or caused the 
sanctionable conduct, the Court orders that Cronin’s counsel—not Cronin personally—

must pay those reasonable expenses.  See Fed. R. Civ. P. 37(b)(2)(C) (“[T]he 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.”) (emphasis added).  
Sanuwave must serve a statement of those reasonable fees and costs on Cronin no later 
than August 6, 2024.  If Cronin objects to the amount of fees or costs, he must file his 

objections no later than August 13, 2024.  Sanuwave may file a response to any such 
objections no later than 7 days after Cronin files the objections.  The Court will decide 

a particular case may order that a member of this Court’s bar must participate in that case 
to a greater extent.

Id.

                                                 
any dispute over the reasonable fees and costs based on the papers unless it determines a 
hearing is necessary.                                                     

Consequently, the Court grants Sanuwave’s Motion for Discovery Sanctions (Dkt. 
58) insofar as the Court requires local counsel Nichols Kaster’s participation in all 
aspects of the presentation and preparation of Cronin’s case going forward and grants an 
award of fees and costs, but denies it insofar as it seeks a monetary sanction under the 
Court’s inherent authority.  Cronin and his attorneys are cautioned, however, that future 
violations of the Rules or the Court’s Orders may well result in monetary sanctions. 

                   III.   ORDER                                      
For the reasons stated above, and based on the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               
1.   Defendant Sanuwave Health, Inc.’s Motion for Discovery Sanctions (Dkt. 
58) is GRANTED in part and DENIED in part;                                

2.   Nichols Kaster PLLP must participate in the preparation and presentation of 
all aspects of Cronin’s case going forward;                               
3.   Matthias Kaseorg of Pierce Jewett, PLLC must pay Sanuwave’s reasonable 
attorneys’ fees and costs associated with the Motion for Discovery Sanctions (Dkt. 58). 
4.   Sanuwave must serve a statement of those reasonable attorneys’ fees and 

costs on Cronin no later than August 6, 2024.  If Cronin objects to the amount of fees or 
costs, he must file his objections no later than August 13, 2024.  Sanuwave may file a 
response to any such objections no later than 7 days after Cronin files the objections.  The 
Court will decide any dispute over the reasonable fees and costs based on the papers 
unless it determines a hearing is necessary.                              


Date:  July 24, 2024          s/Elizabeth Cowan Wright                    
                         ELIZABETH COWAN WRIGHT                      
                         United States Magistrate Judge

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Sean Cronin,
Case No. 23-cv-1295 (SRN/ECW)
Plaintiff,

v. ORDER

Sanuwave Health, Inc.,

Defendant.

Rule 37(b)(2)(C).” (Id. at 13.)

267 F.R.D. 257, 264

 (D. Minn. 2007).  Sanctions available for violation of a discovery 

order under Rule 37(b)(2) include:                                        
(i)  directing that the matters embraced in the order or other designated 
     facts  be  taken  as  established  for  purposes  of  the  action,  as  the 
     prevailing party claims;                                        

(ii)  prohibiting  the  disobedient  party  from  supporting  or  opposing 
     designated  claims  or  defenses,  or  from  introducing  designated 
     matters in evidence;                                            

(iii)  striking pleadings in whole or in part;                       

(iv)  staying further proceedings until the order is obeyed;         

(v)  dismissing the action or proceeding in whole or in part;        

(vi)  rendering a default judgment against the disobedient party; or 

(vii)  treating as contempt of court the failure to obey any order except an 
     order to submit to a physical or mental examination.            

Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).  “The district court has ‘a large measure of discretion 
in deciding what sanctions are appropriate for misconduct.’”  Aviva Sports, Inc. v. 
Fingerhut Direct Mktg., Inc., No. CIV. 09-1091JNE/JSM,

2013 WL 449775

, at *16 (D. 
Minn. Jan. 8, 2013) (quoting Hutchins v. A.G. Edwards & Sons, Inc.,

116 F.3d 1256, 1260

 (8th Cir. 1997)), R. & R. adopted,

2013 WL 449838

 (D. Minn. Feb. 6, 2013). 

“It is not a requirement that the party ‘willfully’ refuse to obey the Court’s discovery 
order” to award sanctions under this Rule.  Card Tech. Corp. v. DataCard Inc.,

249 F.R.D. 567, 570

 (D. Minn. 2008).  “The willfulness or good faith of the party can hardly 
affect the fact of noncompliance and are only relevant to the path which the District 
Court might follow in dealing with the party’s failure to comply.”

Id.

 (quoting Societe 
Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers,

357 U.S. 197, 208

 (1958)) (cleaned up).  However, “the most severe Rule 37(b)(2) 
sanctions—dismissal, default judgment, and striking pleadings in whole or in part—
require a finding of willfulness to avoid being deemed an abuse of discretion.”  Id. at 571.   
As to fees and costs, Rule 37(b)(2)(C) provides that “[i]nstead of or in addition to” 
the sanctions permitted under Rule 37(b)(2)(A), “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). 
With respect to the Court’s inherent authority, “[t]he court has power to discipline 
attorneys who appear before it.”  Greiner v. City of Champlin,

152 F.3d 787

, 790 (8th 

Cir. 1998) (citing Chambers v. NASCO, Inc.,

501 U.S. 32501

 U.S. 32, 43 (1991); Harlan 
v. Lewis,

982 F.2d 1255, 1259

 (8th Cir.), cert. denied,

510 U.S. 828

 (1993)).  Such 
“inherent powers must be exercised with restraint and discretion, as “[a] primary aspect 
of that discretion is the ability to fashion an appropriate sanction for conduct which 
abuses the judicial process.”  Chambers, 501 U.S. at 44-45 (citation omitted).  “Sanctions 
imposed pursuant to the court’s inherent power are permitted where a litigant acted in bad 

faith, vexatiously, wantonly, or for oppressive reasons.”  Mgmt. Registry, Inc. v. A.W. 
Cos, Inc., No. 17-CV-5009 (JRT/KMM),

2020 WL 1910589

, at *20 (D. Minn. Apr. 20, 
2020) (cleaned up), R. & R. adopted, No. CV 17-5009 (JRT/KMM),

2020 WL 4915832

 
(D. Minn. Aug. 21, 2020), as amended (Aug. 27, 2020).  A court’s inherent authority 
permits it to “assess attorney’s fees as a sanction for the willful disobedience of a court 
order.”  Chambers, 501 U.S. at 45 (cleaned up).  However, “[t]he Eighth Circuit has held 

that there is not a bad faith requirement that extends to every disciplinary action the court 
makes [pursuant to its inherent authority], such as monetary sanctions.”  VanDanacker v. 
Main Motor Sales Co.,

109 F. Supp. 2d 1045, 1055

 (D. Minn. 2000) (citing Harlan v. 
Lewis,

982 F.2d 1255 1260

 (8th Cir. 1993)); see In re Baycol Prod. Litig., No. MDL 
1431 (MJD/JGL),

2004 WL 1052968

, at *17 (D. Minn. Apr. 12, 2004) (citing

As shown above, the production contained an “IMAGES” folder, a “NATIVES”
folder, and a “TEXT” folder. The “NATIVES” folder had a single subfolder

For now, I will revoke access to those spreadsheets and instruct my client to
remove any copies he may have (I don’t believe he has any).

not result in prejudice.” (Dkt. 86 at 17 (emphases removed); see also id. at 17-20

DWF/JJK,

2013 WL 1182905

, at *7 (D. Minn. Mar. 21, 2013).  The Golden Gate court 
reasoned:                                                                 
Although that type of harm may not be present in these circumstances, the 
harm here is of a different, but equally important character.  Like other 
parties  that  produce  information  in  reliance  on  a  protective  order,  [the 
producing party] relied on the Protective Order in this case in disclosing 
[the information designated as confidential]. When an opponent ignores its 
obligations in handling information it receives under a protective order, the 
producing  party’s  confidence  that  its  sensitive  information  will  be 
safeguarded erodes. The Court’s confidence that its orders will be followed 
erodes as well. That erosion of confidence changes the landscape of the 
discovery process for the producing party and the Court’s expectations that 
litigation can be effectively managed, and there lies the harm.

Id.

2013 WL 1182905

, at *7 (“[T]he attempt to argue that 
these documents should never have been marked confidential in the first place leads the 

Court to question whether Defendants decided for themselves that Johnson’s personnel 
file did not deserve to be treated as confidential and then embarked on a plan to use that 
information in whatever advantageous manner they could . . .”); see also Mgmt. Registry,

2019 WL 5388488

of the District of Minnesota, on two Florida entities (“the Florida subpoenas”). (Dkts.
88-14, Ex. N.)5 They sought: “All sales documents and contracts with Sanuwave, Inc.,

Third Party Depositions.
[A paralegal at Cronin’s counsel’s firm] will forward you these requests.

carelessness with respect to his obligations to deal fairly with opposing counsel and make

tailored to the issue raised by discovery order.” Card Tech.,

249 F.R.D. at 571

 (citing 
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 707

 (1982); Keefer v. Provident Life and Accident Ins. Co.,

238 F.3d 937, 941

 (8th Cir. 
2000)).  Moreover, “[b]ecause of the potency of inherent powers, a court must exercise 
its inherent powers with restraint and discretion, and a primary aspect of that discretion is 
the ability to fashion an appropriate sanction.”  Plaintiffs’ Baycol Steering Comm. v. 

Bayer Corp.,

419 F.3d 794

failures were not substantially justified, and there are no other circumstances that make
this award of expenses unjust. See Fed. R. Civ. P. 37(b)(2)(C); see also Card Tech.,

249 F.R.D. at 570

 (willfulness not required for Rule 37(b)(2)(C) award of reasonable 
expenses).  Further, since it is Cronin’s counsel who engaged in or caused the 
sanctionable conduct, the Court orders that Cronin’s counsel—not Cronin personally—

must pay those reasonable expenses.  See Fed. R. Civ. P. 37(b)(2)(C) (“[T]he 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.”) (emphasis added).  
Sanuwave must serve a statement of those reasonable fees and costs on Cronin no later 
than August 6, 2024.  If Cronin objects to the amount of fees or costs, he must file his 

objections no later than August 13, 2024.  Sanuwave may file a response to any such 
objections no later than 7 days after Cronin files the objections.  The Court will decide 

a particular case may order that a member of this Court’s bar must participate in that case 
to a greater extent.

Id.

                                                 
any dispute over the reasonable fees and costs based on the papers unless it determines a 
hearing is necessary.                                                     

Consequently, the Court grants Sanuwave’s Motion for Discovery Sanctions (Dkt. 
58) insofar as the Court requires local counsel Nichols Kaster’s participation in all 
aspects of the presentation and preparation of Cronin’s case going forward and grants an 
award of fees and costs, but denies it insofar as it seeks a monetary sanction under the 
Court’s inherent authority.  Cronin and his attorneys are cautioned, however, that future 
violations of the Rules or the Court’s Orders may well result in monetary sanctions. 

                   III.   ORDER                                      
For the reasons stated above, and based on the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               
1.   Defendant Sanuwave Health, Inc.’s Motion for Discovery Sanctions (Dkt. 
58) is GRANTED in part and DENIED in part;                                

2.   Nichols Kaster PLLP must participate in the preparation and presentation of 
all aspects of Cronin’s case going forward;                               
3.   Matthias Kaseorg of Pierce Jewett, PLLC must pay Sanuwave’s reasonable 
attorneys’ fees and costs associated with the Motion for Discovery Sanctions (Dkt. 58). 
4.   Sanuwave must serve a statement of those reasonable attorneys’ fees and 

costs on Cronin no later than August 6, 2024.  If Cronin objects to the amount of fees or 
costs, he must file his objections no later than August 13, 2024.  Sanuwave may file a 
response to any such objections no later than 7 days after Cronin files the objections.  The 
Court will decide any dispute over the reasonable fees and costs based on the papers 
unless it determines a hearing is necessary.                              


Date:  July 24, 2024          s/Elizabeth Cowan Wright                    
                         ELIZABETH COWAN WRIGHT                      
                         United States Magistrate Judge

Reference

Status: Unknown