United States District Court, N.D. California
MICHAEL E. DAVIS, et al., Plaintiffs,
ELECTRONIC ARTS INC., Defendant.
ORDER ON DEFENDANT'S MOTION FOR SANCTIONS RE:
DKT. NO. 310
M. Ryu UNITED STATES DISTRICT COURT.
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.
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.
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.
EA's Sanctions Motion
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”). 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.
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
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.
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.
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.
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).
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)).
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.”