United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF
CROSSFIT, INC.'S RENEWED MOTION FOR TERMINATING SANCTIONS
(ECF Nos. 326, 359)
Janis L. Sammartino United States District Judge.
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.
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
Discovery from the Kraemers
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.
same day that TCDI harvested data from the Kraemers'
mobile devices, Stroz conducted informational interviews of
Dr. and Ms. Kraemer “regarding their device
andaccount 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.
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.
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.
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.
Review of NSCA Asset Inventory
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. 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.
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.
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.
Review and Production of Documents
Documents from the NSCA
running the Parties' search terms on the 12 Terabytes of
data harvested from the NSCA,  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. 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.
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.
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.
Documents from the Editorial Manager System
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.
Stroz's Final and Supplemental Reports
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.
“Stroz performed forensic analysis to identify devices
that may reflect evidence of spoliation through unreasonable
wiping or deletion across all collected devices and
repositories.” 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, ”id. at 12-13,
“Potentially Relevant Documents and mass deletions were
identified across some devices.” Id. at
13; see also Final Rep. App. E.
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.
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.
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.
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.”
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.
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
(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
Id. (footnotes removed).
“[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.
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.
seeks terminating sanctions on four independent grounds: (1)
pursuant to Rule 37(e) for the NSCA's loss of
electronically stored information
(“ESI”); (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.
Termination Pursuant to Rule 37(e)
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.”
The NSCA Lost ESI
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  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.
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.
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.
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),  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.
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.
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.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,
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).
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.”).
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.
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).
Court therefore concludes that CrossFit has demonstrated that
the NSCA lost relevant ESI that cannot be recovered or
replaced with additional discovery.
The NSCA Did Not Take Reasonable Steps to Preserve ESI
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-