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Davis v. Electronic Arts, Inc.

United States District Court, N.D. California

April 3, 2018

MICHAEL E. DAVIS, et al., Plaintiffs,



         Defendant Electronic Arts Inc. (“EA”) moved to compel Plaintiffs Michael E. Davis, Vince Ferragamo, and Billy Joe Dupree to provide further responses to discovery. Following a hearing, the court ordered Plaintiffs to provide amended responses, responsive documents, and a privilege log by dates certain. [Docket No. 293 (Sept. 15, 2017 Order).] The court subsequently granted EA leave to file a motion for sanctions based on Plaintiffs' alleged failure to comply with the September 15, 2017 order. [Docket No. 307.] Now before the court is EA's motion for sanctions. [Docket No. 310.] Following a January 11, 2018 hearing, the court ordered the parties to file supplemental briefing, which the parties timely filed. [Docket Nos. 327, 329, 334.] For the following reasons, EA's motion is granted in part.

         I. BACKGROUND

         A. Background

         Plaintiffs are retired NFL football players. EA develops and publishes video games. In July 2010, Plaintiffs filed a complaint on behalf of themselves and a proposed class of approximately 6, 000 retired NFL players alleging that EA violated Plaintiffs' statutory and common law rights of publicity through unauthorized use of their likenesses in EA's Madden NFL video game franchise. Specifically, Plaintiffs allege that EA releases new Madden NFL video games every year, producing different editions for different video game platforms, and that many editions of the games include “historic teams.” According to Plaintiffs, EA misappropriated the likenesses of retired NFL players on these historic teams by describing in each player's profile details such as the player's position, years in the NFL, height, weight, skin tone, and skill level in different aspects of the game. Plaintiffs assert that these characteristics are “consistently identical or so close to the actual player's characteristics that the consumers of the game can readily discern which player is being represented.” The only player characteristic that EA changes from the real-life retired NFL players is the jersey number. [Docket No. 11 (Am. Compl.) ¶¶ 33, 34, 53.] Plaintiffs allege that EA did not obtain required licenses or authorizations for the use of the putative class members' likenesses.

         In August 2017, the Honorable Richard Seeborg granted summary judgment on Plaintiffs' claims for misappropriation of likenesses pursuant to California Civil Code section 3344. [Docket No. 263.] He also granted Plaintiffs' motion for leave to file a second amended complaint (“SAC”). [Docket No. 264.] Plaintiffs' five remaining claims are: 1) violation of Plaintiffs' rights of publicity under California common law; 2) conversion; 3) trespass to chattels; 4) unjust enrichment; and violation of the UCL. [Docket No. 231-1.] Fact discovery closed on July 14, 2017.

         B. EA's Sanctions Motion

         In July 2017, EA filed unilateral discovery letter briefs in which it moved to compel Plaintiffs to provide further responses to discovery. [Docket Nos. 249, 257.] The court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. [Docket Nos. 254, 260.] The court held a hearing on September 14, 2017 regarding the issues raised in the parties' subsequent joint letters (Docket Nos. 261, 262) and granted in part EA's motions to compel further responses to requests for the production of documents (“RFPs”), interrogatories, and requests for admission (“RFA”).[1] The court ordered Plaintiffs to serve amended responses by dates certain. It also ordered Plaintiffs to lodge and serve a privilege log listing documents responsive to RFPs 56-58, and to lodge for in camera review documents responsive to RFP 58 by September 28, 2017. Sept. 15, 2017 Order.[2]

         On September 29, 2017, one day after the court-ordered deadline, Plaintiffs lodged a document entitled, “Plaintiffs' Privilege Log and Statement of No. Responsive Documents to EA's RFP No. 58.” In the document, Plaintiffs state that they “engaged in a reasonable and diligent search for documents responsive to Request No. 58” and “did not locate any responsive documents.” In a footnote, Plaintiffs note the delay in submitting the privilege log, describing a computer problem that “rendered it unusable.” EA asserts that Plaintiffs did not send EA a copy of the privilege log until September 30, 2017. Mot. 3. Moreover, EA contends that Plaintiffs' representation that they have no documents responsive to RFP 58 is inconsistent with Plaintiffs' own deposition testimony about communications between the named plaintiffs.

         In addition to Plaintiffs' late submission of a privilege log, EA asserts that Plaintiffs failed to comply with other aspects of the court's order. Specifically, on the September 28, 2017 deadline for Plaintiffs to serve responsive documents and amended responses to RFPs, RFAs, and interrogatories, Plaintiffs produced 363 files and emailed to EA their purported responses to EA's interrogatories. [Docket No. 311 (Slaughter Decl., Nov. 9, 2017) ¶ 5(i), Ex. A.] However, the document purporting to be Plaintiffs' interrogatory responses was incomplete and unsigned, and appeared to be a two-page excerpt from a longer response. Slaughter Decl. Ex. A. Plaintiffs did not send EA full responses to the interrogatories until October 2, 2017. Slaughter Decl. ¶ 5(ii), Ex. B. Plaintiffs also did not serve amended responses to the RFAs by the September 28, 2017 deadline, instead emailing EA with the RFA responses on October 2, 2017. Slaughter Decl. ¶ 5(iii), Ex. C. Notably, Plaintiffs provided their court-ordered discovery responses to EA by email alone, even though EA has not consented to service by email. See Fed. R. Civ. P. 5(b)(2)(E) (authorizing service “by electronic means if the person consented in writing”). Slaughter Decl. ¶ 5. EA also contends that Plaintiffs have never produced documents responsive to RFP 46 or confirmed in writing that they have no such documents.

         Most importantly, EA further asserts that Plaintiffs' late responses to the interrogatories and RFAs remain deficient and do not comply with the court's guidance at the September 14, 2017 hearing.

         EA now moves for sanctions pursuant to Rule 37, the court's inherent powers, and the Civil Local Rules. They ask for evidentiary sanctions specifically tied to the discovery responses that it contends remain deficient, an order directing Plaintiffs to appear in San Francisco for one-hour depositions at Plaintiffs' expense, and monetary sanctions. Plaintiffs oppose the motion.


         Rule 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). Where a party has violated a discovery order or Rule 26's disclosure requirements, a court may direct that certain facts be taken as established for purposes of the action and/or prohibit the party “from introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(A)(i), (ii), (c)(1)(C). In addition, a party in violation of Rule 26 may also be prohibited from using “information or [a] witness to supply evidence on a motion, at a hearing, or at trial, ” unless the failure to disclose the information or witness “was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         Additionally, courts are vested with inherent powers arising out of “‘the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'” Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). A court's inherent powers include “the ‘broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.'” Unigard, 982 F.2d at 368 (quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)).

         Finally, Civil Local Rule 1-4 provides that “[f]ailure by counsel or a party to comply with any duly promulgated local rule or any Federal Rule may be a ground for imposition of any authorized sanction.”


         A. EA's ...

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