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Crossfit, Inc. v. National Strength and Conditioning Association

United States District Court, S.D. California

December 4, 2019

CROSSFIT, INC., a Delaware corporation, Plaintiff,
v.
NATIONAL STRENGTH AND CONDITIONING ASSOCIATION, a Colorado corporation, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF CROSSFIT, INC.'S RENEWED MOTION FOR TERMINATING SANCTIONS (ECF Nos. 326, 359)

          Hon. Janis L. Sammartino United States District Judge.

         Presently before the Court is Plaintiff CrossFit, Inc.'s Renewed Motion for Terminating Sanctions (“Mot., ” ECF Nos. 326, 359), as well as Defendant the National Strength and Conditioning Association's (“NSCA”) Opposition to (“Opp'n, ” ECF No. 353) and CrossFit's Reply in Support of (“Reply, ” ECF No. 369) the Motion. Also before the Court are the Final Report of Execution Against Agreed Upon Forensic Protocol (“Final Rep., ” ECF No. 322) and Supplemental Status Report of Execution Against Agreed Upon Forensic Protocol (“Supp. Rep., ” ECF No. 379-2), both prepared by the Court-appointed neutral forensic evaluator, Stroz Friedberg (“Stroz”), and the Parties' voluminous declarations and exhibits. See ECF Nos. 327-37, 346, 353, 358, 360-68, 370-75. The Court held a hearing attended by the Parties and Stroz on October 22, 2019. See ECF Nos. 387, 388 (“Tr.”). Having carefully considered the Parties' arguments, the evidence, and the law, the Court GRANTS IN PART and DENIES IN PART CrossFit's Motion, as follows.

         BACKGROUND

         The factual and procedural background through October 2018, are thoroughly documented in the Court's May 26, 2017 Order Granting in Part and Denying in Part Motion for Sanctions (ECF No. 176) and October 19, 2018 Order (1) Denying Defendant's Motion to Appoint Special Master, and (2) Setting Scheduling Order (ECF No. 302). See ECF No. 176 at 2-6; ECF No. 302 at 2-22. The Court incorporates by reference the facts as presented fully in those Orders and sets forth below factual and procedural developments since October 2018.

         I. Discovery from the Kraemers

         On November 28, 2018, a digital forensics vendor selected by The Ohio State University (“OSU”), TCDI, collected data from Dr. William Kraemer's and Joan Kraemer's mobile devices. Final Rep. at 9. Although OSU authorized TCDI to turn over to Stroz the data from Ms. Kraemer's mobile device, Stroz has not received the data from Dr. Kraemer's mobile devices. Id.

         On the same day that TCDI harvested data from the Kraemers' mobile devices, Stroz conducted informational interviews of Dr. and Ms. Kraemer “regarding their device and[]account usage, and preservation efforts related to NSCA business.” Id. Dr. Kraemer informed Stroz that he had used an iPhone purchased by the NSCA between approximately 2016 and January 2018, and that he had purchased his current mobile device in January 2018. Id. at 10. In January 2018, with the help of OSU staff, Dr. Kraemer transferred data from his NSCA-owned iPhone to his new device. Id. With the assistance of OSU staff, Dr. Kraemer then performed a factory reset of his NSCA-owned iPhone, although he did not return the device to the NSCA. Id. Dr. Kramer also reset to factory defaults the four previous mobile phones he had used for NSCA business, three of which he returned to the NSCA and one of which was lost in 2010. Id.

         During the pendency of this litigation, Dr. Kraemer has had three separate laptops: one at the University of Connecticut (“UConn”) and two successive ones at OSU. Id. OSU technicians transferred data from Dr. Kraemer's UConn laptop to his first OSU laptop and from Dr. Kraemer's first OSU laptop to his second. Id.

         Ms. Kramer has been using her current iPhone, which was purchased by the NSCA, since approximately five years ago. Id. Prior to that, she had used a flip phone purchased by the NSCA. Id. Ms. Kramer “wiped” the flip phone before returning it to the NSCA. Id.

         On December 11, 2018, CrossFit re-deposed Dr. Kraemer. See generally Decl. of Justin S. Nahama in Support of Mot. (“Nahama Decl., ” ECF No. 327) Ex. 76, ECF No. 327-76.

         II. Review of NSCA Asset Inventory

         Although Stroz believed it had collected everything through its device-based collection efforts, see Tr. at 45:6-13, 48:13-16, on December 6, 2018, counsel for CrossFit provided to Stroz several asset inventories that the NSCA had produced.[1] Final Rep. at 11. The asset inventories listed 538 records, some of which Stroz determined to be duplicates. Id. Stroz confirmed that it had imaged or otherwise collected data from devices listed in 225 of the 538 records. Id.

         On January 14, 2019, counsel for the NSCA confirmed to Stroz that 225 devices had been provided to Stroz and that an additional 17 devices had “[p]ossibly” been provided to Stroz. Id. at 12; see also ECF No. 319-3. Counsel for the NSCA was “[u]nable to determine” whether devices in 240 of the listed records had been provided to Stroz. Final Rep. at 12; see also ECF No. 319-3.

         On August 1, 2019, counsel to the NSCA submitted an updated asset inventory in support of its Opposition that claims to have located over 150 of the devices the NSCA previously had been unable to locate. See Decl. of Genevieve M. Ruch in Support of the Opp'n (“Ruch Decl., ” ECF No. 353-2) ¶ 3; see also Ruch Decl. Ex. 1, ECF No. 353-4.

         III. Review and Production of Documents

         A. Documents from the NSCA

         After running the Parties' search terms on the 12 Terabytes of data harvested from the NSCA, [2] Stroz ported to a Relativity document review workspace 1, 245, 070 presumptively relevant documents, consisting of 853, 699 direct search term hits plus family members.[3] Final Rep. at 14; see also Final Rep. App. F. The NSCA began its review of these documents on November 6, 2018. Final Rep. at 15.

         Between November 20, 2018, and January 2, 2019, Stroz produced 218, 949 documents to CrossFit. See Id. After January 2, 2019 and prior to the filing of its Final Report on April 4, 2019, Stroz produced an additional 60, 605 documents to CrossFit. See Id. All told, 279, 554 documents were produced to CrossFit as a result of the neutral forensic evaluation prior to the filing of Stroz's Final Report. Id. The NSCA also provided privilege and non-responsive logs to CrossFit containing 43, 448 and 932, 422 entries, respectively. Ruch Decl. ¶ 10.

         Since April 4, 2019, the NSCA has produced an additional 153 documents in response to CrossFit's challenges to the NSCA's non-responsive and privilege logs, 81 documents related to a newly agreed-upon search for documents, and one additional document that had previously been produced. Id. ¶ 11. CrossFit has continued to challenge the NSCA's claims of non-responsiveness, privilege, and confidentiality. Id. ¶ 15.

         B. Documents from the Editorial Manager System

         On January 7, 2019, Stroz received data from the Editorial Manager System, which holds the NSCA's publications and historical data associated with those publications, from the owner of the software, Areis Systems. See Final Rep. at 8-9. The data harvested from the Editorial Manager System yielded 93, 627 presumptively relevant documents, consisting of 93, 586 direct search term hits plus Manuscript Group members. Id. at 14; see also Final Rep. App. G. Stroz made these documents available for the NSCA to review in Relativity on March 14, 2019. Final Rep. at 14. The NSCA produced 8, 645 documents from Editorial Manager following the filing of Stroz's Final Report. Ruch Decl. ¶ 11.

         IV. Stroz's Final and Supplemental Reports

         On April 4, 2019, CrossFit filed Stroz's Final Report, see ECF No. 319, which was provided to the Parties on April 3, 2019. See ECF No. 319-4. In addition to relaying many of the above developments, Stroz relayed its conclusions from its forensic analysis. See Final Rep. at 12-13.

         Specifically, “Stroz performed forensic analysis to identify devices that may reflect evidence of spoliation through unreasonable wiping or deletion across all collected devices and repositories.”[4] Id. at 12. Although “Stroz identified no evidence of data wiping on any of the collected devices” and “no evidence of deletion of the Exhibit A Documents, ”[5]id. at 12-13, “Potentially Relevant Documents and mass deletions were identified across some devices.”[6] Id. at 13; see also Final Rep. App. E.

         “Based on the deletion findings, Stroz performed more in-depth analysis of each of the devices to determine potential context for deletions or other related user activity.” Final Rep. at 13. “While deletion evidence may be related to moving documents to another device or volume, the fact that recoverable and processed data was excluded from [Stroz's] analysis negates this possibility.” Id.; see also Tr. at 40:25-41:3.

         Stroz identified several mass deletion events occurring throughout the pendency of this litigation. See Final Rep. at 13; see also Final Rep. App. E. Overall, Stroz found evidence of 9, 107 documents destroyed in seven separate mass deletion events. See Final Rep. at 13; see also Final Rep. App. E. These mass deletion events also resulted in the destruction of 50 presumptively relevant documents. Id. Another 67 presumptively relevant documents were destroyed in non-mass deletions. Id.

         Following the filing of Stroz's Final Report, CrossFit renewed its request for terminating sanctions on June 20, 2019. See generally ECF No. 326. On August 29, 2019, after the close of briefing on the instant Motion, CrossFit filed Stroz's Supplemental Report, see ECF No. 379, which was provided to the Parties on August 28, 2019. See ECF No. 379-3. The Supplemental Report was meant “to help clarify several points raised by the parties regarding [Stroz's] work performed to date.” Supp. Rep. at 1.

         In its Supplemental Report, Stroz emphasized that, “[w]hile Stroz did not identify evidence of deletion of the documents referenced in Exhibit A of Plaintiff's Sanction Motion or of the use/installation of wiping utilities, Stroz did identify evidence of mass deletions and deletion of files whose names were responsive to agreed-upon keywords across numerous NSCA devices.” Id. (citing Final Rep. at 12-13; Final Rep. App. E). Stroz clarified that “the Protocol did not require Stroz to conduct an in-depth deletion analysis of the data harvested from NSCA devices and processed into Relativity. Rather, Stroz agreed to make available to the Parties (in accordance with agreed upon production protocols) all available data, including recoverable deleted files, for the Parties' own review and analysis.” Id. at 2. “In providing this data, Stroz utilized industry standard and forensically sound processes to extract user documents from forensic images of devices and repositories collected from NSCA.” Id. “Specifically, [Stroz's] process included recovering available deleted files and maintaining available metadata for each file (including its original location, often referred to [as] a ‘Full Path', and timestamps).” Id. “Once processed into Relativity, the parties were provided this metadata information for each produced file in specific fields that had been agreed upon by the Parties.” Id.

         Stroz further noted that it “collected approximately 279 NSCA devices and repositories for analysis pursuant to the Protocol, ” id. at 1, upon agreement of the Parties “to broaden the collection strategy under the Protocol to collect every NSCA-owned computer, mobile device, server, and external storage device, regardless of its primary user.” Id. at 2. This was because the “NSCA was unable to determine actual relevant custodians and instead identified an extensive list of ‘potential' custodians” and because “NSCA asset inventory records were inaccurate or incomplete.” Id. It was this “expanded collection of devices [that] resulted in an increase in the volume of data that had to be processed, de-duplicated against previously produced documents, searched, and reviewed by the Parties.” Id. Accordingly, “[t]he costs associated with [Stroz's] work under the protocol is largely due to the NSCA's inability at the outset to help identify the custodians, computer systems and repositories containing potentially relevant information, as required by the Protocol.” Id.

         LEGAL STANDARD

         “Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). Additionally, district courts have inherent power to “impose sanctions including, where appropriate, default or dismissal.” Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1961)). Because dismissal is such a severe remedy, however, it should be imposed only in extreme circumstances, and “only where the violation is ‘due to willfulness, bad faith, or fault of the party.'” In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996). To guide its discretion, “a district court should consider a five-part test, with three subparts to the fifth part, to determine whether a case-dispositive sanction” is appropriate. Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). These factors are:

(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. The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.

Id. (footnotes removed).

         But “[t]his ‘test' is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow.” Id.

         ANALYSIS

         I. Evidentiary Objections

         Each Party has objected to evidence introduced by the other. See ECF No. 353-1 (“Def.'s Objs.”); ECF No. 376 (“Pl.'s Objs.”); ECF No. 385 (“Def.'s Reply Objs.”). To the extent possible, the Court has endeavored to rely only on the Final Report submitted by the Court-ordered neutral forensic evaluator and, to the extent necessary, on additional evidence to which neither Party has objected. To the extent the Court has relied on evidence to which objections have been made, those objections are OVERRULED; the Court OVERRULES AS MOOT the Parties' remaining evidentiary objections.

         II. Terminating Sanctions

         CrossFit seeks terminating sanctions on four independent grounds: (1) pursuant to Rule 37(e) for the NSCA's loss of electronically stored information (“ESI”)[7]; (2) pursuant to Rule 37(c) for the NSCA's failure to identify all potential witnesses and sources of relevant documents in its initial Rule 26(a) disclosures or to supplement those disclosures subsequently; (3) pursuant to Rule 37(b) for failure to comply with (a) Magistrate Judge Karen S. Crawford's July 15, 2015 Order re Joint Motion for Determination of Discovery Dispute re Electronic Discovery (ECF No. 59), (b) this Court's May 26, 2017 Order Granting in Part and Denying in Part Motion for Sanctions (ECF No. 176), and (c) this Court's October 19, 2018 Order Setting Scheduling Order (ECF No. 302); and (4) pursuant to the Court's inherent powers. See generally ECF No. 337 (“Pl.'s Mem.”) at 3, 18-39, 50.

         A. Termination Pursuant to Rule 37(e)

         Under Rule 37(e)(2)(C), “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court[, ] . . . only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation[, ] may . . . dismiss the action or enter a default judgment.”

         1. The NSCA Lost ESI

         The first question is whether the NSCA did in fact lose ESI. See Fed. R. Civ. P. 37(e)(2)(C). ESI is only lost if “it cannot be restored or replaced through additional discovery.” Id. CrossFit contends that the NSCA “irrecoverably lost at least 200 devices and 196 responsive documents, ” see Pl.'s Mem. at 19 (emphasis in original); see also Id. at 19-22. The NSCA maintains that CrossFit has failed to establish that any information of significance to the remaining issues in this case has been lost because “[t]here is no basis to conclude that the 196 documents are relevant and important to the remaining issues in the case” and CrossFit performed no “analysis whether the [200] devices were duplicate devices, devices where the information was transferred to a new device and preserved, or devices that are outside the relevant time frame and scope but were listed anyway for full transparency and disclosure.” Opp'n at 35. Further, “many devices that CrossFit claims were lost or destroyed were produced to, and imaged by, Stroz.” Id.

         Although the NSCA attempts to minimize the scope of the ESI losses here, “[t]he NSCA does not dispute that over 100 presumptively-responsive documents are lost” or “that over 100 entire devices are lost.” Reply at 11 (emphasis in original). It is evident that presumptively relevant ESI that cannot be replaced through additional discovery was destroyed, see, e.g., Tr. at 42:2-7, 45:1-2, 46:7-21, and that those losses are egregious.

         Lost Devices: The NSCA produced several asset inventories to CrossFit, which list 538 devices. See Final Rep. at 11. “Stroz confirmed that [it] has forensically imaged or otherwise collected data from devices named in 225 of those records.” Id. In January 2019, nineteen months after the Court ordered a forensic evaluation and only three months before Stroz was to submit its Final Report, the NSCA indicated to the Court-appointed, neutral forensic evaluator that it was “[u]nable to determine” whether 240 devices had been provided to Stroz. See Final Rep. at 12. The NSCA also indicated that seventeen devices had “possibly” been provided to Stroz; “however, Stroz [wa]s unable to validate this based on the available identifying information for these devices.” Id. at 12 & n.7.

         In its Opposition, filed nearly four months after Stroz submitted its Final Report, the NSCA contends that “many devices that CrossFit claims were lost or destroyed were produced to, and imaged by, Stroz.” Opp'n at 35 (citing Decl. of Michael Massik in Support of Opp'n, ECF No. 353-94, ¶¶ 3-8; Decl. of David Newcomb in Support of Opp'n (“Newcomb Decl., ” ECF No. 353-97) ¶¶ 6, 8, 12-13, 17-18, 20-22; Decl. of Derrick Guerrero in Support of Opp'n (“Guerrero Decl., ” ECF No. 353-89) ¶ 5; Decl. of Virginia Meier in Support of Opp'n, ECF No. 353-95 ¶¶ 6-7; Decl. of Keith Cinea in Support of Opp'n (“Cinea Decl., ” ECF No. 353-85) ¶ 7; Decl. of Robert Eggleton in Support of Opp'n, ECF No. 353-88, ¶ 6; Decl. of Shelby Williamson in Support of Opp'n, ECF No. 353-105, ¶ 5; Decl. of Wendy Silva in Support of Opp'n, ECF No. 353-103, ¶¶ 6-8; Decl. of Teresa Schauer in Support of Opp'n, ECF No. 353-102, ¶ 8; Decl. of Lee Madden (“Madden Decl., ” ECF No. 353-93) ¶ 5; Decl. of Michael Hobson in Support of Opp'n, ECF No. 353-92, ¶¶ 5, 7; Decl. of Tom Hessek in Support of Opp'n, ECF No. 353-91, ¶ 5; Decl. of Carissa Gump in Support of Opp'n, ECF No. 353-90, ¶ 5; Decl. of Mary-Clare Brennan in Support of Opp'n, ECF No. 353-81, ¶ 5); see also Ruch Decl. Ex. 1. CrossFit faults “[t]he NSCA's alleged recent discovery of over 150 previously-missing devices identified on its ‘updated' asset inventory, ” noting that “[t]his simple task should have been completed years ago-before the 2017 Sanctions Order, before the completion of the forensic evaluation, and certainly before CrossFit's Renewed Motion.” Reply at 16 (emphasis in original). CrossFit further notes that the NSCA's identification of these devices has been inconsistent. Id. at 8. For example, CrossFit notes, see id., two separate declarants each claimed to have been assigned computer BK4CPW1, with one claiming it had been collected by Stroz and the other claiming that it had not been used for normal work and therefore had not been provided to Stroz. Compare Guerrero Decl. ¶ 5 (declaring that BK4CPW1 was collected by Stroz in April 2018 as Nos. ES0120a and ES0120b), [8] with Newcomb Decl. ¶ 7 (declaring that BK4CPW1 “was not used for normal work” and “was not collected by Stroz”). Further, CrossFit argues, “[e]ven if this new information were not wholly based upon contradictory declarations by witnesses who have already perjured themselves, the NSCA has given the Court, CrossFit, and the public no reason to trust this belated and self-serving ‘evidence.'” Reply at 9.

         The Court must agree. The Court ordered the forensic evaluation in May 2017. See generally ECF No. 176. Because the “NSCA was unable to determine actual relevant custodians and . . . NSCA asset inventory records were inaccurate or incomplete, ” Stroz shifted to a device-based collection strategy in April 2018. Final Rep. at 8. Pursuant to the new collection protocol, the NSCA agreed that Stroz would “collect every NSCA-owned computer, mobile device, server, and external storage device, regardless of its primary user.” Id. This resulted in the collection of over two hundred devices listed in Appendix B to the Final Report. See id.; see also Final Rep. App. B.

         Based on this device-based collection strategy, Stroz believed it had collected all potentially relevant devices. See Tr. at 48:10-19. At the eleventh hour, however, CrossFit and Stroz learned through asset inventories produced in the State Court Action that there were literally hundreds of additional devices that may not have been imaged despite Stroz's prior collection efforts. See Final Rep. at 11; see also Tr. at 45:6-19, 48:7-24. Although Stroz provided the NSCA the opportunity to comment, the NSCA was unable to account for at least 240 additional devices before Stroz submitted its Final Report in April 2019.[9]See Final Rep. at 12; see also ECF No. 319-3; Tr. at 45:20-46:3. The end result is that Stroz was unable to verify that all relevant devices and ESI had been collected. See Final Rep. at 12 & n.7; Tr. at 45:6-3, 48:7-24.

         Even if the Court could trust the NSCA's belated identification of over 150 of those devices-which, for the reasons discussed above, is difficult-it is too little, too late. The multi-year forensic investigation has closed and, in any event, dozens of devices are still missing. There can simply be no question that the NSCA lost ESI stored on these dozens of unaccounted-for devices. Because entire devices are missing-including devices from the Kraemers, see Final Rep. at 9-11; Tr. at 48:25-49:9-it is reasonable to conclude that at least some of this highly relevant ESI cannot be replaced from additional discovery. See, e.g., HP Tuners, LLC v. Sykes-Bonnett, No. 3:17-CV-05760-BHS, 2019 WL 5069088, at *4 (W.D. Wash. Sept. 16) (concluding that ESI had been “lost” where the defendant destroyed a flash drive and “there is no way of knowing the extent of the evidence contained on the flash drive and there is nothing in the record to indicate that the information is recoverable”), report & recommendation adopted as modified, 2019 WL 5064762 (Oct. 9, 2019); see also Pl.'s Mem. at 20 (“[T]hese key custodians stored unique data locally on their devices-data that is not located through another device or source.”); Reply at 16-17 (regarding the importance of discovery from the Kraemers).

         Lost Documents: Stroz also identified 196 documents that were permanently deleted but whose file names hit upon one or more of the search terms upon which the Parties had agreed. See Final Rep. at 12-13; see also Final Rep. App. E; Nahama Decl. Ex. 4. The NSCA first contests that any of these documents were “irrecoverably destroyed.” Opp'n at 20. Stroz opined, however, that “[w]hile deletion evidence may be related to moving documents to another device or volume, the fact that recoverable and processed data was excluded from [its] analysis negates this possibility.” Final Rep. at 13; see also Tr. at 40:25-41:3. The NSCA's quibbling over CrossFit's counsel's use of the phrase “irrecoverably destroyed” is therefore a non-starter: Stroz has indicated definitively that the files listed in Appendix E were deleted and not otherwise recoverable. See Tr. at 46:7- 21 (noting that “the items in the chart on page 13 of [Stroz's] report” are “presumptively . . . relevant” and cannot “be replaced or reconstructed through some means”); see also Final Rep. at 12 (“Excluded from this analysis are files, whether deleted or not, whose content was recovered during the harvesting process and made available for review.”).

         The NSCA further contends that “[t]he fact that a document had a search term ‘hit' does not mean that such document is relevant to the litigation, ” Opp'n at 19, and “[t]here is no basis to conclude that the 196 documents are relevant and important to the remaining issues in the case.” Id. at 35. For example, the NSCA explains, “[t]here are 20 documents containing the name ‘Russell' . . . in the file name on a device belonging to Kathryn Russell, ” but “[t]hose documents are not related to Russell Berger or Russell Greene, the individuals that the ‘russ*' search term was designed to capture.” Id. at 19. The NSCA contends that many of the other “hits” are “publicly available, ” may have been produced to CrossFit, or may fall outside “the relevant scope of time (beginning January 1, 2008).” Id. at 20.

         It is true that some of the 196 presumptively relevant documents listed in Appendix E ultimately may not have proven relevant, but it is also true that some of those documents may have. See Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (“[B]ecause ‘the relevance of . . . [destroyed] documents cannot be clearly ascertained because the documents no longer exist,' a party ‘can hardly assert any presumption of irrelevance as to the destroyed documents.'”) (quoting Alexander v. Nat'l Farmers Org., 687 F.2d 1173, 1205 (8th Cir. 1982)) (alterations in original). For example, Stroz identified 853, 699 direct search term hits (plus 391, 371 family members) from the 11 million documents harvested from the NSCA during the collection process. See Final Rep. at 14; see also Final Rep. App. F. Following review for relevance and privilege, 279, 554 of those documents were produced to CrossFit. See Final Rep. at 15. Nearly a quarter of the hits or their family members were therefore produced; it is fair to assume that a similar proportion of the Appendix E hits also may have proven relevant to this litigation. Consequently, there also can be no question that the NSCA lost ESI that could not be replaced with additional discovery in the form of the 196 documents hitting upon the agreed-upon search terms listed in Appendix E. See Final Rep. at 12-13 (indicating that 196 presumptively relevant documents had been deleted and were not otherwise recoverable); Tr. at 46:7-21 (same).

         The Court therefore concludes that CrossFit has demonstrated that the NSCA lost relevant ESI that cannot be recovered or replaced with additional discovery.

         2. The NSCA Did Not Take Reasonable Steps to Preserve ESI

         Next, the Court must determine whether the NSCA took reasonable steps to preserve the lost ESI. See Fed. R. Civ. P. 37(e)(2)(C). CrossFit urges that the NSCA failed to take reasonable steps to preserve this lost ESI because “[t]he NSCA did not institute any written litigation hold until March 2018-four years after inception of this lawsuit, and not until years after many additional preservation triggers, including . . . the Court's 2017 Sanctions Order.” Pl.'s Mem. at 22-23 (emphasis in original) (footnotes omitted). The NSCA protests that it did institute reasonable steps to preserve relevant ESI, citing to deposition testimony from Mr. Cinea that the NSCA verbally informed employees not to delete emails or documents related to this lawsuit on May 15, 2014, days after this lawsuit was filed. Opp'n at 32-33 (citing Ruch Decl. Ex. 14 at 274:11-19; Ruch Decl. Ex. 15 at 724:20- 725:1, ...


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