United States District Court, N.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SANCTIONS [DOCKET NO. 201]
DONNA M. RYU, Magistrate Judge.
Plaintiff Logtale, Ltd. ("Logtale") submitted a letter brief in which it moves for sanctions against Defendants IKOR, Inc. ("IKOR"), Dr. James Canton, and Dr. Ross Tye for discovery violations. [Docket No. 201.] Defendants submitted a response to Plaintiff's motion. [Docket No. 203.] For the reasons stated below and at the September 25, 2014 hearing on the matter, the court grants Plaintiff's motion in part. At the hearing, the court ordered the parties to submit further briefing regarding the amount of reasonable attorneys' fees and costs that should be awarded to Plaintiff as a sanction against Defendants. The parties timely filed the requested briefing. [Docket Nos. 219 ("Pl.'s Mot."), 220, 224-28 ("Defs.' Opp'n"), 233, 234.] Having considered the parties' submissions, and having deemed that the matter appropriately may be decided on the papers without oral argument pursuant to Civil Local Rule 7-1(b), this order also contains the court's ruling as to the amount of sanctions that should be levied against Defendants and/or their counsel in the form of attorneys' fees and costs payable to Plaintiff.
This motion follows several attempts by Plaintiff to obtain full and complete responses to requests for production ("RFPs") served on Defendant IKOR on December 4, 2012. Defendants' responses to those RFPs have been the subject of numerous disputes presented to the undersigned, including at least two motions to compel and two motions for sanctions by Plaintiff. [ See Docket Nos. 55, 62, 69, 117.]
Plaintiff filed its first motion to compel in March 2013 after IKOR provided admittedly late, incomplete responses to Plaintiff's RFPs. [Docket No. 55.] On April 22, 2013, the court granted Plaintiff's motion to compel and awarded Plaintiff $1, 400 in sanctions. [Docket No. 59.] The court ordered IKOR to produce all responsive documents within fourteen days, which was May 6, 2013. However, IKOR did not produce documents by that deadline, instead producing 184 pages on May 9, 2013. Plaintiff again moved to compel in June 2013, seeking, inter alia, further responses to the first set of RFPs to IKOR, as well as further responses to RFPs propounded on Defendant Canton. [Docket No. 62.] On July 31, 2013, the court granted the motion to compel and again awarded Plaintiff monetary sanctions, this time ordering Defendants to pay $5, 200. [Docket No. 65.] The court ordered Defendants to produce all remaining responsive documents by no later than August 26, 2013. In its order, the court noted its concerns about the adequacy of Defendants' search for responsive documents, and warned Defendants and their counsel of their obligations under the Federal Rules of Civil Procedure to properly preserve evidence and to adequately search for and produce responsive documents.
It is undisputed that Defendants made numerous productions of documents after the court-ordered August 26, 2013 deadline. Defendants produced responsive documents on August 27, 2013 and September 19, 2013. (Alameda Decl., Aug. 8, 2014, ¶¶ 3-5.) Plaintiff filed a motion for sanctions in September 2013, asserting that Defendants had not produced documents by the August 26 deadline and that they had again failed to produce all responsive documents. [Docket No. 69.] The court ordered Defendants to produce certain documents by November 14, 2013 and ordered Defendants to provide information regarding their searches for documents in the form of detailed, sworn declarations by their technology expert and Defendant Canton. [Docket No. 79.] Following that order, Defendants made productions of documents on November 7, 2013, December 6, 2013, and March 7, 2014. (Alameda Decl. ¶¶ 6, 7, 12.) On March 17, 2014, Plaintiff filed a motion for sanctions based on alleged evidence spoliation. [Docket No. 117.] After Plaintiff filed its motion, Defendants made two more productions of documents, on March 27 and 31, 2014. (Alameda Decl. ¶¶ 14, 17.) The court denied Plaintiff's motion for spoliation sanctions on May 22, 2014, but admonished Defendants, noting that they had produced documents upon the filing of Plaintiff's motion despite the court's order to produce all responsive documents by August 26, 2013. Despite having represented to the court that they had produced all responsive documents, ( see generally Docket No. 137), Defendants made additional document productions on May 20, 2014, June 11, 2014 and June 13, 2014. (Alameda Decl. ¶¶ 19, 20, 24.)
Plaintiff now requests terminating sanctions in the form of striking Defendants' counterclaim for breach of contract in its entirety, or, in the alternative, monetary sanctions on the grounds that Defendants have repeatedly violated this court's orders to produce all responsive documents to Plaintiff, as well as an order compelling Defendants to fully and finally respond to discovery by a date certain.
II. Legal Standards
Federal Rule of Civil Procedure 37 authorizes the imposition of various sanctions for discovery violations, including a party's failure to obey a court order to provide or permit discovery and failure to timely supplement initial disclosures and/or discovery responses pursuant to Rule 26(e). Fed.R.Civ.P. 37(b)(2)(A), (c)(1). Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys' fees, caused by its failure to comply with the order or rule. Fed.R.Civ.P. 37(b)(2)(C), (c)(1)(A). A court may also strike pleadings or dismiss an action in whole or in part. Fed.R.Civ.P. 37(b)(2)(A)(iii), (v). Dismissal is a "harsh sanction, " and the court must consider the following factors to determine whether it is appropriate: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (citing Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)). The court need not make explicit findings on all of these factors, but a finding of "willfulness, fault, or bad faith' is required for dismissal to be proper." Id.
A. Applicability of Sanctions
Plaintiff argues that terminating or monetary sanctions are appropriate for Defendants' repeated late productions of documents in violation of this court's orders. In its motion, Plaintiff complains of other actions by Defendants that it claims constitute discovery violations. Specifically, Plaintiff asserts that Defendants have repeatedly produced documents in PDF format, instead of native format, and have occasionally produced documents in non-unitized PDF format, which is not searchable. (Alameda Decl. ¶¶ 2, 3, 5, 8, 9, 14, 17, 19, 21, 24.) In addition, nearly all of the documents Defendants have produced contain no accessible metadata. (Alameda Decl. ¶¶ 2, 3, 5, 8, 9, 12, 14, 17, 19, 21, 24.) Plaintiff also contends that Defendants produced emails without attachments connected to the parent emails, as well as documents that were not bates-stamped, making it extremely difficult, if not impossible, to verify whether the attachments had been produced separately and to verify which attachments correspond to the emails. (Alameda Decl. ¶¶ 6, 11, 13, 16, 18, 22, 23, 25, 26.) Finally, Plaintiff asserts that some documents contained redactions or were clearly missing pages. (Alameda Decl. ¶¶ 4, 15, 20.) However, it appears that Defendants did not produce a privilege log until July 24, 2014, (Alameda Decl. ¶ 29), despite having been ordered to do so by November 4, 2013. [ See Docket No. 79.]
In response, Defendants do not dispute that they made productions of responsive documents in November 2013, December 2013, and March 2014. Instead, they describe the difficulties they encountered in accessing and producing email communications from Defendants Canton and Tye, reiterating arguments they made in opposition to Plaintiff's motion for spoliation sanctions. Defendants attempt to describe the "core" of the parties' present dispute as a dispute over metadata. Defendants contend that Plaintiff has confused metadata with "native format, " and that Plaintiff's initial RFPs did not include a request for documents in native format. According to Defendants, they have produced documents in hard copy and electronic (PDF) format, and are not obligated to produce the same documents in a different form. Defendants claim they produced metadata for Defendant Canton's emails on June 11, 2014, and additional metadata, as well as an index cross-referencing email attachments, on June 13, 2014.
Defendants' opposition misses the point. Defendants have repeatedly failed to observe court-ordered deadlines to produce all responsive documents, and this court has repeatedly admonished counsel for their failure to do so. While describing essentially technical difficulties encountered with collecting and producing documents, it is undisputed that Defendants made a number of document productions after the August 26, 2013 deadline. By the court's count, Defendants produced documents at least ten times after August 26, 2013. Defendants never sought relief from the court from this deadline, forcing Plaintiff to file repeated motions before the undersigned to obtain responsive documents. Accordingly, sanctions are ...