Deerpoint Group, Inc. v. Agrigenix, LLC et al

Filing 218

ORDER GRANTING Plaintiff's 168 Motion for Sanctions, signed by Magistrate Judge Barbara A. McAuliffe on 10/31/2022. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 DEERPOINT GROUP, INC., an Illinois corporation, Plaintiff, 13 14 15 16 17 18 v. Case No. 1:18-cv-00536-AWI-BAM ORDER GRANTING PLAINTIFF’S MOTION FOR SANCTIONS (Doc. 168) AGRIGENIX, LLC, a Delaware limited liability company; SEAN MAHONEY, an individual; and CUSTOM AG FORMULATORS, INC., a California Corporation, Defendants. 19 20 On April 21, 2022, Plaintiff Deerpoint Group, Inc. (“Deerpoint”) filed a motion for 21 sanctions against Defendants Agrigenix, LLC and Sean Mahoney (“Defendants”) for failure to 22 preserve ESI (“Electronically Stored Information”) in violation of Federal Rule of Civil 23 Procedure Rule 37(e). (Doc. 168.) On May 13, 2022, the Court stayed briefing on the motion for 24 sanctions pending resolution of Defendant Agrigenix’s bankruptcy and the motion to withdraw 25 filed by Defendants’ counsel. (Doc. 177.) On July 25, 2022, following the lifting of the stay and 26 the resolution of the motion to withdraw, the Court ordered Defendants to respond to the motion 27 for sanctions. (Doc. 197.) On August 12, 2022, new counsel for Defendants Agrigenix and Sean 28 Mahoney filed the opposition and objections to evidence in the motion for sanctions. (Docs. 200, 1 1 201.) On August 22, 2022, Plaintiff filed its reply and response to Defendants’ objections. (Docs. 2 210, 211.) On August 30, 2022, Defendants filed objections to evidence provided in the reply. 3 (Doc. 214.) Having considered the moving papers, opposition papers, and the record in this action,1 4 5 the motion for sanctions for failure to preserve ESI in violation of FRCP 37(e) is GRANTED. FACTUAL AND PROCEDURAL OVERVIEW2 6 7 This case is a trade secret misappropriation and patent infringement case filed on April 18, 8 2018, related to chemical water treatment solutions for agriculture irrigation. In its Second 9 Amended Complaint, Deerpoint seeks compensatory and punitive damages, and injunctive relief, 10 arising out of the theft of Deerpoint’s proprietary and trade secret information by Defendants 11 Agrigenix and Mahoney for the benefit of a competing company, Agrigenix. Plaintiff alleges that 12 Agrigenix, through Mahoney, quickly launched copycat products and unfairly interfered with 13 Deerpoint’s customer relationships during and after Mahoney’s employment with Deerpoint. 14 Deerpoint also seeks similar damages for an alleged patent infringement of one its patents by 15 Agrigenix and Mahoney, and also alleges patent infringement by Defendant Custom Ag 16 Formulators, Inc. 17 Over the years that this case has been pending, the parties have engaged in extensive 18 discovery. The Court has been requested to resolve various discovery disputes, and the 19 Scheduling Order was amended several times to accommodate the delay associated with 20 obtaining discovery. 21 Then, on April 21, 2022, Deerpoint filed a Motion for Sanctions for Failure to Preserve 22 Electronically Stored Information (“ESI”) in Violation of FRCP 37(e) (“Motion for Sanctions”). 23 (Doc. 168.) Plaintiff’s motion alleges that Defendants have intentionally spoliated ESI including: 24 (1) emails from personal accounts, (2) content from missing computers, (3) content that has been 25 1 26 In light of the extensive briefing on the motion for sanctions, the Court finds that oral argument would not be beneficial. To conserve the resources of the parties and the judiciary, the motion is submitted on the record. 27 2 28 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to be construed that the Court did not consider the argument or brief. 2 1 wiped or encrypted on laptops from employees, (4) files that were stored on a cloud service, and 2 (5) substantial but unknown volumes of Agrigenix emails. Summary of Plaintiff’s Motion for Sanctions 3 A. 4 Mahoney became CEO of Plaintiff Deerpoint in 2013. When the relationship between 5 Plaintiff and Mahoney deteriorated, Defendant Mahoney initiated a separate employment lawsuit 6 against Plaintiff in October 2017. (Doc. 168 at 9.)3 In January 2018, and as is relevant to this 7 litigation, the parties reached a settlement where Defendant Mahoney represented that apart from 8 a single email with attachments, he did not retain and would not use any of Plaintiff’s 9 confidential, proprietary, or trade secret information in the future. (Id.) Defendant Mahoney also 10 agreed to return and then delete any such information he had in his possession. (Id.) 11 Thereafter, Plaintiff filed this trade secret misappropriation and patent infringement case 12 on April 18, 2018. (Id.) On February 24, 2020, Plaintiff filed a Second Amended Complaint (now 13 the operative complaint) alleging eight causes of action including: (1) trade secret 14 misappropriation under 18 U.S.C. §§ 1836; (2) trade secret misappropriation under Cal. Civ. 15 Code §§ 3426.1; (3) false advertising under 15 U.S.C. §1125; (4) breach of secrecy agreement; 16 (5) breach of settlement agreement; (6) intentional interference with prospective economic 17 advantage; (7) unfair competition under Cal. Bus. Prof. Code §§17200 et seq.; and (8) patent 18 infringement. (Doc. 82.) 19 The parties began discovery in October 2019 when Plaintiff served its initial discovery 20 requests on Defendants. (Doc. 168 at 10.) Defendants served responses, including commitments 21 to produce documents, in November 2019. (Id.) Defendants began providing documents, mostly 22 ESI, in December 2019. (Id.) After Defendants claimed the production was complete, Plaintiff 23 determined that there were documents and information missing. (Id.) Plaintiff claims counsel 24 requested additional information and production from Defendants, such as equipment design 25 information, financial information, and sales efforts. (Id.) While Defendants provided some 26 additional information, Defendants “repeatedly asserted they had provided everything within their 27 28 3 Page numbers refer to the Court’s CM/ECF pagination. 3 1 2 possession, custody, or control.” (Id.) Plaintiff points to previously undisclosed information which Plaintiff independently 3 identified as evidence of Defendants’ failure to comply with their discovery obligations. The 4 investigation of this information is background to the discovery of concealed or spoliated ESI. 5 Plaintiff’s arguments are summarized below. 6 7 1. Agriglobe In June 2021, Plaintiff independently identified the location of a previously unknown site 8 where an upgraded version of Defendants’ fertigation equipment was being used. (Doc. 168 at 9 10.) The property was owned by Agriglobe, a third party. (Id. at 10-11.) After finding the new 10 equipment, Plaintiff subpoenaed Agriglobe in August 2021, requesting inspection of the 11 equipment and testimony along with business records. (Id. at 11.) In September 2021, Plaintiff 12 inspected the equipment and in early October 2021, received 900 pages of documents from 13 Agriglobe. (Id.) Plaintiff states that many of the documents produced by Agriglobe were not 14 produced by Defendants but were responsive to multiple discovery requests. The documents 15 produced contained information about a new version of Defendant Agrigenix’s fertigation 16 equipment (“Green Machine”), information about sales efforts and resulting revenues, and 17 dealings with a previously undisclosed supplier, Hydrite Chemical (“Hydrite”). (Id.; see Doc. 18 168-1, “Michaelson Decl.” ¶9 and Exh. 6.) Mahoney and Agrigenix had not identified Hydrite as 19 a significant vendor in their prior disclosures or production. 20 21 2. Hydrite Chemical After following up with Hydrite, Plaintiff received nearly 400 pages of ESI in October 22 2021 from Hydrite. (Doc. 168 at 11; see Michaelson Decl. ¶10.) Plaintiff claims the material 23 produced by Hydrite was within the scope of multiple discovery requests, but not produced by 24 Defendants, and revealed that Hydrite was a major supplier to Agrigenix. (Doc. 168 at 11; see 25 Michaelson Decl. ¶10 (“the financial material produced previously by Agrigenix and Mahoney 26 failed to reflect nearly all transactions involving Agrigenix and Hydrite.”) Further, other 27 documents produced by Hydrite, but not by Defendants, contained information relevant to 28 Plaintiff’s claims of trade secret misappropriation, and breach of contract, by using Deerpoint’s 4 1 fertilizer formulas. (Doc. 168 at 11; see Michaelson Decl. ¶10 (“email to Hydrite admitting that a 2 composition covered by claims 14 and 16 of the patent Deerpoint has asserted in this case could 3 be made by blending potassium formate or by blending formic acid.”).) 4 3. Depositions 5 Deerpoint then undertook efforts to substantiate the information that it had learned 6 independently about the Green Machine. In October 2021, Plaintiff deposed Jason Chow. (Doc. 7 168 at 12.) Mr. Chow was a former Deerpoint employee who went to work for Agrigenix after 8 leaving Deerpoint.4 (Id. at 7-8.) Plaintiff alleges that Chow had access to “substantial amounts of 9 confidential, propriety, and trade secret Deerpoint information” while employed at Deerpoint. (Id. 10 at 7.) Plaintiff alleges that Mr. Chow falsely asserted that he had little to no knowledge of 11 Defendant’s fertigation equipment, and he also minimized his role at Deerpoint and knowledge of 12 their trade secrets. (Id. at 12, n.2.) But Mr. Chow admitted that he had seen a schematic for an 13 Agrigenix fertigation device, which prompted another request for full disclosure of previously 14 requested information about the Green Machine. (Id. at 12.) It was not produced. Plaintiff pursued information about Defendants’ use of Plaintiff’s pricing information, 15 16 which is pricing Plaintiff holds in confidence. In December 2021, Plaintiff deposed Nolan 17 Sorensen. (Id.) Mr. Sorensen worked in a sales position with Deerpoint before moving to 18 Agrigenix. (Id.) In his sales position, Mr. Sorensen had access to confidential and proprietary 19 information regarding Plaintiff’s customers. (Id.) During his deposition, Mr. Sorensen testified 20 that he had helped prepare a document that compared Agrigenix’s pricings with that of 21 Deerpoint’s, and that he likely used his Agrigenix laptop when using or preparing the document. 22 (Id. at 12; Doc. 200-1, “Bruckner Decl.” Exh. 2 (“Sorenson Depo.” pp. 47, 101–02).) Plaintiff had 23 independently discovered that such a document existed, though it had not seen a physical copy. 24 (Doc. 168 at 12.) Plaintiff alleges that Defendants did not respond to requests to produce the 25 document. (Id.) 26 4 27 28 As best the Court can determine, the major employees of Agrigenix consisted of Eva Kwong, Gail Walker, Nolan Sorensen, Jason Chow, Steven Wilson, Graham Towerton (a chemist), and Mahoney. (Michaelson Decl. ¶¶3–4.) These employees become important to this motion as they relate to the ESI in the employees’ laptops, discussed infra. There may have been other employees, but they are not discussed in this motion. 5 1 By this point, Plaintiff was concerned with purposeful withholding and/or destruction of 2 ESI. In December 2021, Plaintiff deposed Defendant Mahoney under Rule 30(b)(6) regarding 3 document management systems and practices, document collection efforts, and document 4 preservation efforts. (Id. at 13.) Defendant Mahoney testified that, “(1) all documents covered by 5 Deerpoint document requests had been provided to defense counsel for production; (2) all 6 Agrigenix documents continued to exist ‘in the cloud’ and could be obtained through the IT 7 provider for Agrigenix, called Unity IT; (3) Agrigenix employees had used Agrigenix-owned 8 laptop computers, but that all of those laptops had been sold or donated to charity in the first 9 quarter of 2021 and were no longer available; and (4) Agrigenix had only experimented with a 10 third-party industry-specific document management system called ‘Montage for Ag’ or more 11 simply ‘Montage.’” (Id.) Plaintiff asserts that all of the above testimony was false. (Id.) 12 13 4. Unity IT In an attempt to locate ESI following the deposition of Defendant Mahoney, on December 14 23, 2021, Plaintiff served a document subpoena on cloud storage provider Unity IT. (Id.) Based 15 on the production of records, Plaintiff learned that Defendants had engaged Unity IT in August 16 2018 to service 12 employee email accounts and two service email accounts and to maintain 17 cloud storage for financial data through Intuit and other data through Microsoft OneDrive. (Id.) 18 Plaintiff claims that Agrigenix and Unity transferred all material from the previous infrastructure 19 to OneDrive (all other business records, including e-mails, calendars, marketing materials, 20 spreadsheets, research and design documents, etc.), some 2400 files. (Id.; Michaelson Decl. ¶14; 21 Sorenson Depo. p. 41 (the Agrigenix company had an email system).) Plaintiff acknowledges that 22 Defendants notified Unity from the onset of their dealings of the need to preserve all ESI. (Doc. 23 168 at 13.) 24 Plaintiff alleges that Defendants failed to consistently pay Unity. (Id. at 14.) Defendants 25 were notified multiple times over a ten-month period that the material archived in the cloud 26 storage could be lost. (Id.) On November 11, 2019, Unity deactivated Defendants’ licenses. (Id.) 27 In February 2020, Defendants began to reactivate some of their licenses with Unity. (Id.) Emails 28 for seven users were restored on March 19, 2020. (Id.) However, by February 9, 2021, 6 1 Defendants were in arrears with Unity again. (Id.) In May 2021, Unity sent correspondence to 2 Defendants concerning unpaid invoices, warning that failures to pay after May 2021 could result 3 in another purge of ESI. (Id.) Mahoney and Agrigenix could have mitigated the effects of a purge 4 by downloading from the cloud whatever existed there, but did not do so. (Doc. 168-39, “Beeson 5 Decl.” ¶3.) 6 7 5. Fresno First Bank On December 23, 2021, Plaintiff subpoenaed one of Agrigenix’s banks, Fresno First 8 Bank, because Agrigenix financial disclosures remained incomplete. (Doc. 168 at 15.) In mid- 9 January, Fresno First Bank produced documents which included information not previously 10 disclosed about transactions between Agrigenix and several third parties. (Id.) The third parties 11 included GAR Bennet and Custom Ag, among other customers and suppliers not previously 12 identified. (Id.) The documents revealed that Defendants had sufficient funds to cover the few 13 hundred dollars or less per month of Unity IT’s cloud services from November 2019 to May 14 2021. (Id.) 15 6. Laptops 16 Around January 25, 2022, Mr. Hampton, who formerly represented Agrigenix with 17 respect to the patent claim, disclosed that Towerton, a former employee, was still in possession of 18 his company laptop and that another laptop might also be available. (Id.) As a result, Plaintiff’s 19 counsel asked Mr. Manock, former counsel for Defendants Mahoney and Agrigenix, to locate 20 other laptops. (Id.) Plaintiff indicates that recently-recovered ESI revealed that Agrigenix had 21 purchased six laptops and one desktop on November 30, 2017, and two more laptops in early 22 2018. (Id.; Michaelson Decl. at ¶19, Exh. 24.) By mid-February 2022, Defendants’ former 23 counsel located seven laptops used by employees of Agrigenix; other laptops were never located. 24 (Doc. 168 at 15; Michaelson Decl. ¶19 (“There were probably others, because in August 2018 25 Agrigenix contracted with Unity to set up accounts for 10 Agrigenix computers.”).) Plaintiff does 26 not know what ESI was contained on these laptops, but documents produced by Unity indicate 27 that Mahoney used a desktop while at Agrigenix (or had a second desktop) and maintained files 28 on it that were not stored in the cloud. (Doc. 168 at 15.) Plaintiff does not know where other 7 1 laptops and the “desktop” referred to in documents are located. (Id.) 2 7. Retention of Forensic Expert 3 On February 11, 2022, Plaintiff engaged Digital Mountain, a company which provides 4 computer forensic services, to examine the newly located laptops. (Doc. 168-39, Beeson Decl. 5 ¶¶1, 5.) Mr. Beeson opines that based on his review of the Unity licenses, Agrigenix could have 6 downloaded the data stored in the cloud and archived it locally, on computers, external hard 7 drives, or other storage devices that are in physical possession of Agrigenix. (Beeson Decl. ¶3.) 8 9 On February 16, 2022, Mr. Beeson physically inspected five laptops belonging to Walker, Chow, Kwong, Wilson, and Mahoney’s mother. (Beeson Decl. ¶5.) On February 25, 2022, 10 Digital Mountain received a hard disk drive containing forensic images of two more laptops, 11 belonging to Towerton and Dorn. (Id.) Mr. Beeson was able to access and examine six of the 12 seven laptops. (Id.) Mr. Beeson was unable to access the Wilson hard drive because it was 13 encrypted, and despite repeatedly asking for a password, no password was provided. (Id. ¶7.) 14 Forensic analysis revealed the following about each laptop: 15 • Wilson’s laptop: The laptop was found to be encrypted. (Doc. 168 at 16; Beeson Decl. 16 ¶7.) Plaintiff has been unable to access information on the disk drive. (Doc. 168 at 16.) 17 Despite several requests for the password, no password has been provided. (Beeson 18 Decl. ¶7.) 19 • Laptop given to Mahoney’s mother: Though the laptop was purchased in 2017 or 20 2018, the laptop had an operating system that was installed in December 2019. (Doc. 21 168 at 16; Beeson Decl. ¶8.) The computer contained only one user account, for 22 Defendant Mahoney’s mother. (Beeson Decl. ¶8.) There were physical signs that the 23 laptop case had been opened, which would allow for the hard drive to have been 24 replaced. (Id.) The computer contains twelve empty files in a folder labelled 25 Agrigenix, but does not contain any Agrigenix ESI. (Id.) 26 • Kwong’s laptop: Forensics revealed that the laptop had a new hard drive installed in 27 June 2021, coinciding with the time Kwong ceased working at Agrigenix. (Doc. 168 at 28 17; Beeson Decl. ¶9.) Kwong told Mr. Manock the original hard drive had crashed and 8 1 needed to be replaced. (Doc. 168 at 17.) Plaintiff requested the original hard drive be 2 produced, but it has not been produced. (Id.) The laptop showed no signs of physical 3 damage or misuse that might result in such a crash. (Beeson Decl. ¶9.) 4 • Chow’s laptop: Evidence shows a first use of the laptop in 2018. Forensics revealed 5 that there was some ESI on the laptop however, in February 2022, a program 6 (CCleaner) was used repeatedly in the days before the laptop was turned over to wipe 7 and delete files so that they cannot be recovered. (Doc. 168 at 17; Beeson Decl. ¶10.) 8 This is about the time Chow was contacted about returning his laptop. (Doc. 168 at 9 17.) Plaintiff was able to find an incomplete volume of relevant files such as a number 10 of image files (digital photographs) but only a handful of files with names or in 11 folders. (Beeson Decl. ¶10.) 12 • Towerton laptop: Forensics found limited copies of some email files for other 13 Agrigenix employees, including Mahoney, Dorn, Kwong, Walker, Chow, Sorensen, 14 and Wilson. (Doc. 168 at 13; Beeson Decl. ¶12.) No correspondence after June 7, 15 2018 was found on Towerton’s laptop. (Beeson Decl. ¶12.) 16 • Dorn, Chow, Towerton, and Walker’s laptops: Forensics found some recoverable 17 email archives and local copies of some of the ESI stored in the cloud. (Doc. 168 at 18 17; Beeson Decl. ¶11.) But much is missing: emails about the formation of Deerpoint 19 and many emails from its early days are missing from the laptops, as are any business 20 emails from between November 11, 2019 and March 19, 2020 and again after 21 approximately May 2021 (when company employees could only use personal email). 22 (Doc 168 at 17.) 23 From the forensic analysis, Plaintiff contends that for several laptops recently recovered 24 and made available, there was a lack of preservation and even affirmative destruction of contents. 25 Plaintiff identified some limitations in the ESI found on the laptops, including: emails not sent or 26 received by the owner, emails sent when Unity IT’s services were suspended, and full files stored 27 in the cloud. At any point before licenses were suspended, Defendants could have downloaded 28 the data stored in the cloud and stored it locally. (Beeson Decl. ¶3.) Further, several computers 9 1 were not retrieved. 2 3 8. GAR Bennett In March 2022, Plaintiff obtained documents from GAR Bennett pursuant to a subpoena. 4 (Doc. 168 at 18.) The documents contained invoices that showed Defendants had sold 5 components of their fertigation equipment to GAR Bennett in the midst of this litigation. (Id.) The 6 documents also included other invoices, one of which was not reflected in the documents received 7 from Fresno First Bank or any QuickBooks files recovered. (Id.) No documents memorializing 8 the sale transaction to GAR Bennett were ever produced by Mahoney or Agrigenix. (Id.) 9 10 9. Additional ESI Plaintiff identifies as missing Plaintiff alleges that emails from personal accounts, presumably used when Unity IT 11 services were suspended, were not preserved. (Id.) Plaintiff also alleges that documents that were 12 contained in the “Montage” document management system were not preserved. (Id.) Documents 13 that were recently recovered indicate that Montage was used by Agrigenix from January 2018 14 through at least August 2018. (Id.) Finally, Plaintiff found reference to an “F Drive” which 15 documents reveal was used prior to the use of OneDrive, though no documents from an “F Drive” 16 were produced. (Id.; Michaelson Decl. ¶23d.) 17 In summary, Plaintiff argues that ESI as to customer solicitations, Green Box design, 18 product formulas, financial and other ESI disappeared upon “wiping” of the Chow laptop, the 19 supposed “crash” of the Kwong device, encryption of the Wilson computer, disappearance of the 20 Mahoney computer and other computers, and failure to maintain a backup of cloud ESI. 21 22 23 B. Defendants’ Opposition 1. Background Defendant Mahoney joined Plaintiff as its CEO in Spring 2013. (Doc. 200 at 8.) Mahoney 24 grew the fledgling fertigation business to $35 million in annual sales based upon his business 25 relationships, employees, and expanding his customer base. After the business relationship with 26 Plaintiff broke down, Defendant Mahoney left Deerpoint in fall of 2017 and claims he did not 27 intentionally take proprietary, confidential, or trade secret materials when he left. (Id.) 28 Mahoney formed Agrigenix in October 2017 and many of Plaintiff’s employees joined 10 1 Agrigenix. (Id. at 8-9.) Mahoney was not in need of any of Plaintiff’s confidential or trade secrets 2 because Agrigenix hired Custom AG Formulators to blend fertilizer formulas. (Id. at 9.) 3 Agrigenix’s boxes were less expensive and complex than Plaintiff’s and Agrigenix’s boxes were 4 built with off-the-shelf pumps and tubes. (Id.) Based upon Mahoney’s connections with local 5 growers, who were friends and colleagues, and who were willing to share pricing information, 6 Mahoney grew Agrigenix. (Id. at 9-10.) 7 When this litigation arose, Defendants retained Doerksen Taylor Stokes LLP to represent 8 them. (Id. at 10.) However, due to the cost of the defense, Defendants were not able to afford their 9 bills and counsel withdrew in March 2019. (Id.) Counsel from Doerksen sent Defendants a 10 litigation hold letter on June 1, 2018, which informed Defendants of the need to preserve 11 evidence relevant to this case. (Id.) The letter required some follow up with Defendants but there 12 was no response from counsel from Doerksen regarding whether follow up took place. (Id.; 13 Menshikova Decl. ¶2.) Prior counsel did not recall their firms sending out litigation hold letters. 14 (Menshikova Decl. ¶¶ 3, 4.) 15 Defendants then retained Manock Law and Sierra Law, the latter to represent them with 16 regards to the patent claims. (Doc. 200 at 10.) At some point Defendants were paying their legal 17 fees directly until early 2021 when insurance began covering legal fees. (Id.) Insurance would not 18 cover Sierra Law, so Defendants retained Hall Griffin LLP. (Id.) Due to financial woes, 19 Agrigenix ceased operations in March 2021 and filed for bankruptcy on April 25, 2022. (Id. at 20 11.) 21 2. 22 Discovery Defendants claim they have complied with all discovery requests and produced substantial 23 ESI. (Id.) Defendants began their production on December 17, 2019. (Id.) Defendants claim they 24 “went to great lengths” to respond to all of Plaintiff’s requests.5 (Id.) Defendants claim Plaintiff 25 5 26 27 28 On October 9, 2019, Plaintiff propounded: 57 Requests for Production to Defendant Mahoney, 107 Requests for Production to Defendant Agrigenix, 7 Interrogatories to Defendant Mahoney, and 13 Interrogatories to Defendant Agrigenix. On April 17, 2020, Plaintiff propounded: 33 Requests for Production to Defendant Agrigenix, 10 Interrogatories to Defendant Agrigenix, and 4 Interrogatories to Defendant Mahoney. (Doc. 200 at 11.) Defendants produced about 2,402 pages between January 29, 2019 and March 20, 2020. (Id. at 6–7.) An additional 11,173 pages were produced on February 10, 2022. (Id. at 12.) 11 1 informed the Court on November 4, 2021, that document production was complete, well before 2 the issues in this motion were raised. (Id. at 13.) 3 3. 4 Laptops When Agrigenix ceased operations in March 2021, Defendants believed there was no 5 longer a need to maintain the laptops. (Id.; Doc. 200-3, “Mahoney Decl.” ¶27.) Agrigenix allowed 6 employees to take their laptops with them. (Mahoney Decl. ¶20.) Defendants took no steps to 7 wipe the laptops before giving them away. (Id.) Defendants sincerely believed that the materials 8 on the laptops were stored in the cloud and that document production was essentially over. (Id. 9 ¶¶25, 27.) Defendants claim the following about specific laptops (those provided to Wilson, 10 Kwong, Chow, and Mr. Mahoney’s mother):6 • 11 Wilson Laptop: The laptop was not encrypted by Defendants. (Doc. 200 at 14.) 12 Defense counsel has attempted to obtain the password to no avail. (Id.; Brucker Decl. 13 ¶8.) • 14 Kwong Laptop: The original hard drive appears to have crashed and was replaced 15 while in Kwong’s possession. (Doc. 200 at 14.) Defendants did not cause the crash or 16 cause the loss of the crashed drive. (Id.; Mahoney Decl. ¶22.) • 17 Chow Laptop: To the extent that the laptop was cleaned in February 2022, Defendants 18 could not control the actions of a third party and did not request that Chow take such 19 actions. (Doc. 200 at 14.) Further, Chow only deleted personal materials unrelated to 20 the litigation. (Id.; Chow Decl. ¶8.) Moreso, the laptop was not “wiped” as suggested 21 by Plaintiff, but rather, Chow used a “performance optimizer” that routinely cleans 22 and speeds up computers. (Doc. 200 at 14.) • 23 Laptop given to Mahoney’s mother: Plaintiff admits after examining the laptop that 24 there was no ESI contained on the laptop. (Id.) Even if ESI existed, Defendants took 25 no steps to delete any content on the laptop before giving it away. (Id.) Plaintiff’s 26 assumptions that the laptop was at some point Mahoney’s and was cleaned or had data 27 removed is unsupported speculation. (Id. at 10.) 28 6 Defendants assert that Plaintiff admits that the laptops provided to Walker, Dorn, and Towerton were recovered. 12 1 4. Cloud Data 2 Defendants again state that they believed that the material on the laptops was stored in the 3 cloud. (Id.) In fact, not only did Defendants request Unity IT place a litigation hold on its records, 4 but Defendants also agreed to pay extra to Unity IT to place the litigation holds. (Id.) However, 5 due to business necessity and the failure to afford services, Defendants were forced to stop paying 6 Unity IT. (Id.) Defendants claim that Agrigenix employee Towerton even paid Unity IT 7 personally to maintain the services for some time. (Id.) Despite being told that services would be 8 suspended, Defendant Mahoney believed that he would lose access to the information on the 9 cloud, not that the information would be unrecoverable. (Id.; Mahoney Decl. ¶27 (“I understood 10 and sincerely believed that Agrigenix’s ability to pay Unity IT for its services would only cause 11 termination of access to the information in the cloud . . . [and] that all of the information 12 maintained on the Unity IT servers would not be lost and would remain recoverable at a later 13 date.”).) There is zero evidence that Defendants were warned that material archived in the cloud 14 could be lost. (Doc. 200 at 15-16.) Rather, Plaintiff omits the language of the warnings. (Id.) 15 Exhibits 7–22 of the declaration of Jon Michaelson clearly show: “(1) that Agrigenix 16 repeatedly requested that its data on the cloud be preserved over the course of several years, 17 including as recently as March 11, 2021; (2) Agrigenix paid for services when it could afford to 18 do so; and (3) Unity IT did not explain to Agrigenix before terminating its access to the cloud that 19 data would be permanently lost if payment was not made.” (Id. at 16 (internal citations omitted).) 20 Specifically, Plaintiff misrepresents Exhibit 17 to Michaelson’s declaration. Exhibit 17 involves 21 an email between Defendant Mahoney and Unity IT where Unity IT states, “I doubt your old mail 22 will be there.” (Id.) This was in response to Defendant Mahoney’s question as to whether data 23 that was stored in the cloud prior to the first suspension would still be in the cloud when services 24 were reactivated. (Id.) Plaintiff treats the statement as saying that the data was purged when 25 services were terminated. (Id.) Plaintiff also misrepresents an email from Unity IT (Michaelson 26 Decl., Exh. 20) which states that data prior to February 2020 may have been purged. (Id.) 27 Defendants claim that Plaintiff misleads the court by arguing that the Defendants were told that 28 the data had probably already been purged. (Doc. 200 at 16-17.) 13 1 Defendants claim that to this day they are unaware if the data is recoverable or not. (Id. at 2 17.) However, Defendants admit “Unity IT has reported that it does not currently believe that the 3 data is still available online given the time that has passed.” (Id.) 4 Defendants concede their duty to preserve ESI. (Doc. 200 at 18.) Defendants argue that 5 Plaintiff has not shown the requisite culpable state of mind. Agrigenix was a small start-up 6 company, and this litigation has dragged on with four sets of lawyers coming and going. There 7 was no scheme to spoliate ESI. Any loss of ESI on the laptops was not caused or requested by 8 Defendants. The data in the cloud was not intentionally spoliated, and Plaintiff merely speculates 9 as to the data that has been lost. Agrigenix repeatedly requested that its data on the cloud be 10 preserved and paid when it could to do so. Unity did not explain that the data would be lost. The 11 issue of personal email is a red herring. Mahoney produced his personal email, and Plaintiff did 12 not subpoena former employees’ personal email. (Id. at 18-21.) 13 Defendants ask the Court to fashion a reasonable remedy under 37(e)(1) if the Court finds 14 prejudice. Defendants argue that the Court could reopen discovery and continuing all dates 15 would be an appropriate remedy. Defendants argue that Plaintiff’s request for monetary damages 16 is excessive and unsupported. Defendants ask the Court to deny the requested adverse factual 17 findings as impermissible under Rule 37(e)(1). (Doc. 200 at 26.) Plaintiff’s Reply 18 C. 19 Plaintiff argues that while Defendants admit that they did not take adequate steps to 20 preserve ESI, they ignore the full nature and scope of the failure. (Doc. 210 at 4.) Defendants try 21 to minimize their misdeeds. 22 Defendants discuss only four laptops. But ESI was spoliated from no fewer than five 23 laptops, out of at least eight known laptops used by Agrigenix and at least one desktop. (Id.) 24 Plaintiff believes that all computers used by Defendants were spoliated in one fashion or another. 25 (Id.) Similarly, the timing of the “cleaning” of Chow’s laptop and whatever program he used left 26 the device with no ESI from the period where he was an Agrigenix employee. All of that data was 27 spoliated. (Id. at 3-4.) Furthermore, Defendants have not addressed in any material respect three 28 or more computers that were unaccounted for, including two computers Mahoney himself used. 14 1 (Id. at 12.) Defendants have not disclosed whether or not either of Mahoney’s work computers 2 remain in his possession or were disposed of. (Id.) Defendants also emphasize that they 3 themselves did not wipe any laptops of ESI, however, allowing those devices out of their control 4 is enough to find that they failed to preserve the laptops and their data. (Id. at 13.) 5 As to the data stored in the cloud, ESI in multiple remote locations was spoliated. (Id. at 6 5.) This includes all files maintained on OneDrive by Unity IT and all business-related content on 7 personal email accounts including dates prior to the formation of Agrigenix and at later times 8 when the Unity IT system was deactivated. (Id.) ESI from a few laptops does not rectify the loss 9 of unknowable amounts of ESI. (Id.) ESI that still remains missing includes: 10 • 11 12 from the Mahoney desktop and possibly others as well. • 13 14 ESI from Agrigenix computers that were never backed up to OneDrive, such as ESI ESI that was backed up to OneDrive, but that disappeared when the cloud data was lost because it was not downloaded to a non-spoliated computer. • Material from personal email accounts not copied to Agrigenix email addresses during 15 times when those were active, such as Mahoney communications with the multiple 16 customers he claimed would elect to do business with Agrigenix. 17 • Contents of Montage program files, including customer communications. 18 • Contents of the Agrigenix “F Drive.” 19 20 (Id. (internal citations omitted).) The spoliation spans the entire Agrigenix organization and all of its activities prior to its 21 formation through the close of discovery. (Id. at 6.) Defendants attempt to minimize the extent of 22 the spoliation by claiming Plaintiff failed to demonstrate that the lost material was not duplicative 23 of items that were produced. However, to prove that the documents would be duplicative would 24 require Plaintiff to examine the spoliated ESI. (Id.) 25 Additionally, it is reasonable to reach conclusions as to what was spoliated based on the 26 surrounding circumstances as follows. (Id.) Deerpoint devoted years to building its business and 27 spent millions on the technology that made that business a success, yet only months after 28 Agrigenix was formed and with very little spent on R&D, Defendants offered the same unique 15 1 products as Deerpoint. (Id. at 7.) Deerpoint timely requested discovery that should have been 2 produced before Defendants’ spoliation and was requested at the same time as the spoliation of 3 the cloud storage. (Id. at 8.) No laptop contents from any Agrigenix employee responsible for 4 sales was recovered, despite Mahoney bragging about 30 grower meetings, and thus any 5 communications with actual or potential customers have been spoliated. (Id.) The development of 6 the Green Machine and product formulas have been lost. The spoliation of ESI that contained 7 relevant evidence of theft and use of confidential information and trade secrets has made it 8 impossible for Deerpoint to prove its case. (Id. at 8-9.) 9 Defendants’ spoliation was intentional. (Id. at 9.) Defendants knew their obligations to 10 preserve ESI. Indeed, original counsel advised Defendants, in a comprehensive litigation hold 11 letter, of the duty to preserve. (Mahoney Decl., Exh. 1 (litigation hold letter).) In late March 2021, 12 Mahoney made a statement to Unity IT that ESI had to be preserved, indicating Mahoney knew 13 his preservation obligations. (See Mahoney Decl. ¶¶ 16–18, 25–27.) Mahoney is a sophisticated 14 litigant who has been involved in prior lawsuits. Defendants were represented and advised by 15 counsel at all times. 16 Spoliation began shortly after Defendants were served with discovery. Whether Mahoney 17 believed that Unity IT ESI would not be spoliated does not relieve Defendants of their 18 obligations. Defendants stopped paying for ESI licenses and were warned the services would be 19 terminated. Discontinuing services would result in termination of preservation and the loss of the 20 data. Defendants’ lawyers advised them that discontinuing services would result in termination 21 of preservation and the loss of the data. (Mahoney Decl., Exh. 1.) 22 There are three or more computers, including two used by Mahoney (a laptop and a 23 desktop), that are entirely unaccounted for by Defendants. Mahoney has not disclosed whether or 24 not either of his own work computers remained in his possession for any particular length of time 25 and what happened to the ESI contained on the computers. 26 Moreover, loss of ESI from computers given to Agrigenix employees is the responsibility 27 of Defendants. Plaintiff’s position is that when Defendants gave away the computers, allowing 28 those computers to leave their control by giving them to departing employees over whom they no 16 1 longer had authority, Defendants affirmatively failed to preserve. (Doc. 210 at 13.) 2 EVIDENTIARY OBJECTIONS 3 Both parties object to the other’s evidence. For instance, Defendants submit objections to 4 both the evidence in support of the motion for sanctions and the supplemental evidence filed with 5 Plaintiff’s reply. (Docs. 201, 214.) Specifically, Defendants object to statements in the 6 declarations of Jon Michaelson, Christopher Beeson, and John Miller. Many of Defendants’ 7 objections to Plaintiff’s evidence are based on lack of foundation, lack of personal knowledge, or 8 hearsay. Defendants object to Mr. Beeson’s declaration on the grounds that his declaration lacks 9 foundation, is speculative, is based on hearsay, and is inadmissible under Federal Rule of 10 Evidence 702. The Court disagrees. Mr. Beeson’s testimony is based on his analysis of the 11 surrendered devices, and Mr. Beeson is qualified, for the purposes of this motion, to offer 12 opinions based on his analysis of the devices. (Doc. 168-39, ¶¶1–2.) 13 To the extent the Court has relied on evidence to which objections have been made, those 14 objections are OVERRULED; the Court OVERRULES AS MOOT the parties’ remaining 15 evidentiary objections. “While the Federal Rules of Evidence do not necessarily apply in the 16 context of a motion for sanctions, evidence relied upon must, at a minimum, bear indicia of 17 reliability.” AtPac, Inc. v. Aptitude Sols., Inc., No. CV 2:10-294 WBS JFM, 2011 WL 13242817, 18 at *1 (E.D. Cal. Apr. 13, 2011) quoting (Sentis Grp., Inc., Coral Grp., Inc. v. Shell Oil Co., 559 19 F.3d 888, 901 (8th Cir. 2009)); Juul Labs, Inc. v. Chou, No. 2:21-CV-03056 DSF PDX, 2022 WL 20 2161063, at *6 (C.D. Cal. May 6, 2022) (accepting evidence that bears sufficient indicia of 21 reliability in a sanctions motion). Additionally, other pretrial, non-dispositive motions do not 22 require that evidence be submitted in a form that would be admissible at trial. AtPac, Inc., 2011 23 WL 13242817, at *1. The Court is satisfied that the evidence relied upon bears indicia of 24 reliability, and therefore, the Defendants’ objections are overruled for the purposes of this motion. 25 DISCUSSION 26 A. Federal Rule of Civil Procedure 37(e) and ESI 27 “Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to 28 impose a wide range of sanctions when a party fails to comply with the rules of discovery or with 17 1 court orders enforcing those rules.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 2 1983). Federal Rule of Civil Procedure 37(e) states, “if electronically stored information that 3 should have been preserved in the anticipation or conduct of litigation is lost because a party 4 failed to take reasonable steps to preserve it, and it cannot be restored or replaced through 5 additional discovery” the court may impose sanctions. 6 In evaluating whether spoliation of ESI has occurred, courts should consider three 7 threshold criteria, whether: “(1) the ESI ‘should have been preserved in the anticipation or 8 conduct of litigation’; (2) the ESI ‘is lost because a party failed to take reasonable steps to 9 preserve it’; and (3) ‘[the ESI] cannot be restored or replaced through additional discovery.’ ” 10 Facebook, Inc. v. OnlineNIC Inc., No. 19-CV-07071-SI (SVK), 2022 WL 2289067, at *6 (N.D. 11 Cal. Mar. 28, 2022); Porter v. City of San Francisco, No. 16-3771, 2018 WL 4215602, at *3 12 (N.D. Cal. Sept. 5, 2018) (quoting Rule 37(e)). Where these three threshold criteria are met and 13 the Court finds that the “party acted with the intent to deprive another party of the information’s 14 use in the litigation,” a court may issue terminating sanctions. Fed. R. Civ. Proc. 37(e)(2)(C). 15 Although Rule 37(e) does not define “intent,” courts have found that “intent” in this context 16 means “the evidence shows, or it is reasonable to infer, that a party purposefully destroyed 17 evidence to avoid its litigation obligations.” Facebook, Inc. v. OnlineNIC Inc., No. 19-CV-07071- 18 SI (SVK), 2022 WL 2289067, at *6 (N.D. Cal. Mar. 28, 2022). 19 The moving party bears the burden of establishing that spoliation occurred by 20 demonstrating that the non-moving party destroyed the documents and had some notice of the 21 document’s relevance to the litigation before they were destroyed. Ramirez v. Zimmerman, 2020 22 WL 905603 at *5 (S.D. Cal. Feb. 25, 2020) (quoting Harfouche v. Wehbe, 705 F. App’x 589, 590 23 (9th Cir. 2017)). Courts in this circuit have indicated that a preponderance of the evidence 24 standard of proof is applicable to spoliation motions. CrossFit, Inc. v. Nat’l Strength & 25 Conditioning Ass’n, 2019 WL 6527951 at *28 (S.D. Cal. Dec. 4, 2019) ((following Ninth Circuit 26 precedent permitting intent under Rule 37(e)(2) by preponderance of the evidence, not clear and 27 convincing evidence) (citing OmniGen Research v. Yongqiang Wang, 321 F.R.D. 367, 372 (D. 28 Or.) (“[t]he applicable standard of proof for spoliation motions in the Ninth Circuit is the 18 1 preponderance of evidence.”); Weride Corp. v. Kun Huang, 2020 WL 1967209 at *9 (N.D. Cal. 2 Apr. 16, 2020); Compass Bank v. Morris Cerullo World Evangelism, 104 F.Supp.3d 1040, 1052– 3 53 (S.D. Cal. May 8, 2015); Colonies Partners L.P. v. Cty. Of San Bernardino, 2020 WL 4 1496444 at *6 (C.D. Cal. Feb. 27, 2020). Further, a court “may make factual findings and assess 5 the credibility of witnesses. Weride Corp., 2020 WL 1967209 at *33. The Duty to Preserve and Defendants’ Spoliation 6 B. 7 A duty to preserve arises the “moment that litigation is reasonably anticipated.” Apple 8 Inc., v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1136 (N.D. Cal. July 24, 2012); Brewer v. 9 Leprino Foods Co., 2019 WL 356657 at *25 (E.D. Cal. January 29, 2019). A party must preserve 10 evidence that the party knows or should know is relevant to another party’s claim or defense, or 11 could lead to the discovery of such evidence. Perkins v. City of Modesto, 2020 WL 1333109 at 12 *46 (E.D. Cal. Mar. 20, 2020). Once the duty attaches, a party must ensure all policies related to 13 deleting or destroying files are suspended. Perkins, 2020 WL 1333109 at *46. Further, simply 14 making “some effort” is not sufficient. Id. (citing Apple Inc., v. Samsung Elecs. Co., 888 F. Supp. 15 2d 976, 991–92 (N.D. Cal. Aug. 21, 2012)). 16 Agrigenix and Mahoney were on notice that ESI should have been preserved. At a 17 minimum, Defendants were informed from a comprehensive litigation hold letter by their former 18 counsel, instructing Defendants that: “the company’s employees and key custodians” had an 19 obligation to preserve “documents and data from all sources relating in any way to the 20 allegations,” to create “a ‘mirror’ [backup] image of each hard drive and storage device” and “to 21 take steps to prevent deletion and ensure preservation of ESI.” (Mahoney Decl., Exh. 1.) 22 Mahoney confirmed Defendants’ duty to preserve by alerting Unity IT that cloud data must be 23 preserved. There is not any dispute that Defendants knew they must preserve ESI, and therefore 24 the Court will not further evaluate this criterion. 25 Here, the second spoliation criterion—that the party failed to take reasonable steps to 26 preserve the ESI—is also met. Fed. R. Civ. P. 37(e); WeRide Corp., 2020 WL 1967209, at *12. 27 Indeed, there is not any real dispute that Defendants failed to take reasonable steps to preserve 28 ESI. Defendants acknowledge that they “did not take adequate steps to preserve ESI.” (Doc. 200 19 1 at 1 (“Despite [Defendants’] efforts, and reviewed with the benefit of hindsight, Defendants did 2 not take adequate steps to preserve ESI.”) Again, the Court will not further evaluate this criterion. 3 The third criterion is that the ESI cannot be restored or replaced through additional 4 discovery. Fed. R. Civ. P. 37(e). There appears to be no real dispute that the ESI cannot be 5 recovered. For instance, current counsel for Defendants has contacted Unity IT, attempting to 6 locate this ESI, and the ESI is not available online given the amount of time that has passed. 7 (Doc. 200 at 17 (“In all candor to the Court, Unity IT has reported that it does not currently 8 believe that the data is still available online given the time that has passed.”).) Significantly, the 9 laptops for various former employees no longer have the full ESI which was, more than likely, 10 created on those laptops as part of the employees’ scope of employment. For instance, Mr. 11 Chow’s laptop was “wiped” prior to being turned over to Plaintiff’s counsel. The Towerton laptop 12 contained some email from other Agrigenix employees, but the emails are not from a period after 13 June 7, 2018. (Doc. 168-39, Beeson Decl. ¶12.) Apparently, Mahoney had both a laptop and a 14 desktop, and neither have been turned over for evaluation of the ESI contents. Retained expert 15 Mr. Beeson states that the laptop of Steve Wilson is encrypted, and information is irretrievable. 16 No password has been provided despite repeated requests. (Id. ¶7.) Mr. Beeson states that the 17 laptop given to Mahoney’s mother has physical signs that the laptop case had been opened, which 18 would allow for the hard drive to have been replaced. (Id. ¶8 and Exh. 1.) Mr. Beeson opines that 19 if the hard drive had been removed deliberately, it resulted in forensically wiping all prior content 20 because the “computer does contain twelve empty files in a folder labelled Agrigenix,” but not 21 ESI. (Id. ¶8.) Ms. Kwong’s laptop “crashed,” and the most recent files in Towerton’s local copy 22 are from July 18, 2019. (Id. ¶¶10, 13.) Plaintiff was able to recover some of the withheld and 23 deleted ESI through their forensic evaluation. Other responsive ESI will be unavailable because 24 the data was destroyed and no longer exists. It is impossible to know now what ESI was available, 25 but which is now no longer available. Thus, even if the Unity IT ESI can be resurrected, much 26 more ESI is not recoverable. 27 Defendants argue that the Court could reopen discovery as a reasonable remedy. The 28 Court does not find that reopening discovery is a viable remedy. This case has been pending 20 1 since April of 2018. The litigation has involved extensive law and motion practice and 2 voluminous discovery, including numerous discovery disputes, multiple changes of counsel, a 3 bankruptcy filing, and other complicating matters, all of which has resulted in large consumption 4 of party and judicial resources. The Court declines to reopen discovery where there has been 5 adequate time for full disclosure. Moreover, the Court does not find there is any point to 6 reopening discovery into data which no longer exists. 7 The Court finds that the three Rule 37(e) threshold criteria—ESI should have been 8 preserved, but is lost because a party failed to take reasonable steps to preserve it, and the ESI 9 cannot be restored—are easily satisfied here and that spoliation has occurred. Spoliation is the 10 “destruction or significant alteration of evidence, or the failure to preserve property for another’s 11 use as evidence in pending or future litigations. Kearney, Foley & Lardner, LLP, 590 F.3d 638, 12 649 (9th Cir. 2009); Brewer, 2019 WL 356657 at *24-25. ESI which would have and should 13 have been on the various laptops of Agrigenix’s and Mahoney’s computers and on Unity IT is no 14 longer available. The only remaining issue before the Court is whether Defendants acted 15 intentionally and what sanction, if any, should be imposed. 16 C. 17 When the Court finds spoliation, Rule 37 then provides for two distinct sets of sanctions. 18 First, pursuant to subdivision 37(e)(1), the court may order “measures no greater than necessary 19 to cure the prejudice” when the Court finds a party was prejudiced from the loss of the 20 information. Winecup Gamble, Inc. v. Gordon Ranch LP, 850 F. App’x 573, 574 (9th Cir. 2021) 21 (If the district court concludes that these threshold findings are met, it must then determine the 22 appropriate sanction. If the district court finds that the loss of ESI has prejudiced the moving 23 party, it “may order measures no greater than necessary to cure the prejudice.”) 24 Prejudice and Level of Intent The second sanction is in subdivision 37(e)(2). Before a court may issue sanctions under 25 Rule 37(e)(2), it must find that “the party acted with the intent to deprive another party of the 26 information’s use in the litigation.” If the Court finds that the party who spoliated the ESI acted 27 with the “intent to deprive another party of the information’s use in the litigation,” the Court may: 28 /// 21 1 3 (A) presume that the lost information as unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter default judgment. 4 Fed. R. Civ. P. 37(e)(2). Spoliation of evidence raises a presumption that the destroyed ESI was 5 both adverse to the party that destroyed it and relevant to the merits of the case. Apple, Inc., 888 6 F. Supp. 2d at 998 (quoting Dong ah Tire & Rubber Co., 2009 WL 1949124 at *10 (N.D. Cal. 7 July 2, 2009)). 2 8 Courts have the discretion to determine if the spoliation of evidence is prejudicial, and 9 neither party has the burden of establishing or disproving prejudice. Hernandez v. Tulare Cty. 10 Corr. Ctr., 2018 WL 784287 at *10 (E.D. Cal. Feb. 7, 2018) (citing Fed. R. Civ. P. 37(e), 11 Committee Notes on Rules – 2015 Amendment)). However, a moving party must show the non- 12 moving party had an intent to deprive another party of the spoliated information for subsection 13 (e)(2) to apply. See Ramirez, 2020 WL 905603 at *5. If the moving party cannot show an intent to 14 deprive but can show that information was lost because the non-moving party failed to take 15 reasonable steps to preserve the information, a court may find prejudice. See Id. at *6. Prejudice may be found where the spoiling party’s actions impaired another party’s ability 16 17 to go to trial or threatens to interfere with a rightful decision of the case. Leon v. IDX Sys. Corp., 18 464 F.3d 951, 958 (9th Cir. 2006) (quoting United States ex rel. Wiltec Guam, Inc., v. Kahaluu 19 Contr. Co., 857 F.2d 600, 604 (9th Cir. 1988)). Determining the prejudice from the loss of the 20 information unavoidably includes an evaluation of the information’s importance in the litigation. 21 Id. 1. 22 Prejudice Plaintiff argues that it is prejudiced. Plaintiff argues that the loss of ESI has impaired its 23 24 ability to prove its case. (Doc. 168 at 21-24.) ESI regarding Agrigenix’s communications with 25 actual and potential customers was spoliated. No laptop contents from any Agrigenix employee 26 responsible for sales was recovered. (Doc. 210 at 8.) There is little to no ESI regarding 27 development of the Green Machine or product formulas. (Id.) 28 /// 22 1 Defendants argue that there was no prejudice, or if there is any prejudice, Plaintiff’s lack 2 of diligence was partially at fault. (Doc. 200 at 7.) First, Defendants argue that there is no 3 evidence that any important or relevant data was permanently lost. (Id.) Defendants argue that 4 Plaintiff’s allegation that the evidence that was spoliated would have benefitted their case is based 5 on misrepresentations of deposition testimony. (Id. at 22-24.) Defendants further claim that there 6 is no prejudice because there is no evidence, just misrepresentations of documents and deposition 7 testimony, that the destroyed evidence was relevant. (Id.) 8 Here, Defendants have acknowledged that there is ESI that was not preserved both on the 9 laptops and in the cloud. However, Defendants then claim that Plaintiff’s “misrepresentation” of 10 documents and testimony shows there is no prejudice because Plaintiff is speculating as to what 11 documents may be missing. Defendants cite to Best Label Co. v. Custom Label & Decal, LLC, to 12 argue that speculation is not enough to support a finding of prejudice. 2022 WL 1525301 at *5 13 (N.D. Cal. May 13, 2022). However, the Court in Best Label Co., found the claim of prejudice 14 was highly speculative because the plaintiff failed to discuss the nature of the information that 15 was missing and its bearing on the case, relied solely on a forensic examiner’s report and did not 16 ask any defendants or their representatives about the alleged missing files, or provide a 17 declaration attesting to the likely subject matter of the missing material. 2022 WL 1525301 at *5. 18 That is not the case here. 19 Here, Plaintiff has provided the Court with substantial documentation that Plaintiff 20 attempted to determine what documents were missing. For example, Defendant Agrigenix 21 produced a pamphlet that it presented to potential customers which claimed Defendants had 22 “sophisticated fertigation equipment.” (See Michaelson Decl. ¶5b). However, Defendants only 23 produced a one-page sketch of the equipment. (See id. and Exh. 5.) The equipment is specialized 24 and sophisticated, and as Plaintiff argues, discovery should have produced items such as design 25 documents, equipment lists, schematics, wiring diagrams, software related to programming its 26 control mechanisms, and testing data. (Doc. 168-41, “Miller Decl.” ¶14.) Plaintiff had requested 27 additional documents on the topic, but none was produced. (Id.) During the Chow deposition, Mr. 28 Chow made statements that he had seen schematics for an Agrigenix fertigation device, which 23 1 also prompted Plaintiff to again request all documents be produced. (Michaelson Decl. ¶11; Doc. 2 200-1, Chow Depo. at 19.) Again, nothing was produced. (Michaelson Decl. ¶11.) Thus, it is not 3 speculative that such documents existed, as testified to by a former employee and as can be 4 reasonably inferred should exist. 5 Defendants also claim that Plaintiff is not prejudiced because Plaintiff has recovered ESI 6 from the recovered laptops. However, there is additional evidence to suggest that there is still 7 missing ESI from the cloud and other laptops. In one such instance, a screenshot of the cloud file 8 system used by Defendants showed 18 folders, while the Towerton laptop, which contained the 9 most ESI, only had 3,500 documents in 10 folders. (Michaelson Decl. ¶22, Exhs. 25, 26.) The 10 laptop given to Mahoney’s mother showed file folders labeled “Agrigenix,” yet the folder(s) were 11 empty of any ESI. (Beeson Decl. ¶8.) Little to no sales information and communications were 12 produced, and little to no financial data was produced. 13 Therefore, it is reasonable that Plaintiff would need to engage in some level of speculation 14 to argue certain documents may exist. There is more than one source suggesting that certain 15 documents existed. 16 Further, Defendants argue that Plaintiff could have sought to examine the laptops, take 17 depositions, and “seriously pursue[] discovery before Agrigenix shut its doors, gave away its 18 laptops, and stopped being able to pay for cloud services.” (Doc. 200 at 7.) And, that Plaintiff did 19 not inquire about the computers and documents claimed to be missing during depositions. 20 (Brucker Decl. ¶2.) 21 It does not appear to the Court that Plaintiff delayed in seeking discovery. Discovery 22 requests were propounded as early as the end of 2019, and Defendants repeatedly assured 23 Plaintiff that production of ESI was complete. (Michaelson Decl. ¶6.) Plaintiff then independently 24 discovered that there were previously undisclosed clients of Defendants that had additional 25 information, which Plaintiff then pursued. (Michaelson Decl. ¶9 (“Agriglobe documents included 26 general information about the existence and pricing of the new iteration of Agrigenix equipment 27 (called the “Grow Green Machine”) that Deerpoint had located independently, about Mahoney 28 and Agrigenix sales efforts and resulting sales revenues, and about substantial dealings with a 24 1 supplier (Hydrite Chemical) that Mahoney and Agrigenix had not identified in prior disclosures 2 or production.”).) Additionally, discovery had not yet closed in this case when Plaintiff was 3 completing depositions, issuing subpoenas of third parties, and corralling and examining laptops, 4 (of which Plaintiff was unaware until January 2022). (Doc. 165.)7 5 Finally, Defendants claim that there is no evidence that the data stored in the cloud is 6 irretrievable. (Doc. 200 at 16-17.) Defendants claim that language used by Unity IT in 7 communications regarding data in the cloud prior to its suspension only suggests that the data 8 may have been purged. (Id.) However, Defendants also acknowledge that “Unity IT has reported 9 that it does not currently believe that the data is still available online given the time that has 10 passed.” (Id. at 16.) Even if the language of the Unity communication is not definitive that the 11 data is irretrievable, Defendants have not yet produced any support that it may still exist. This 12 motion has been pending before the Court since April 21, 2022, with Defendants’ opposition filed 13 August 12, 2022. There has been ample time for Defendants to discover if, at the very least, there 14 is data that could be retrieved. Moreover, the communication between Defendant Mahoney and 15 Unity IT shows that Defendants could have ascertained whether older ESI remained on the cloud 16 when the accounts were reactivated in March 2020. (Michaelson Decl., Exh. 17.) Defendants 17 have not provided the Court with such information. 18 The Court, therefore, finds that Plaintiff is prejudiced by the spoliation of ESI in the cloud 19 and on the laptops. While it is unclear how much ESI was lost, the Court finds that such 20 information, such as design, formula, sales information, financial information, email 21 communications, etc. could have benefited Plaintiff’s claims. “In the Ninth Circuit, spoliation of 22 evidence raises a presumption that the destroyed evidence goes to the merits of the case, and 23 further, that such evidence was adverse to the party that destroyed it. Apple Inc. v. Samsung 24 Elecs. Co., 888 F. Supp. 2d 976, 993 (N.D. Cal. 2012) (“[T]hough neither Apple nor the Court 25 7 26 27 28 At that point, the parties requested a continuance of the Scheduling Order dates. Part of the reason for the continuance as stated by the parties, “Mahoney and Agrigenix assert that they believed for a period of time that they had produced all responsive documents that were available to them and that it was not until the middle or end of January 2022 that they determined that certain sources of documents (in particular, employee laptops) were under their control or in the possession of past Agrigenix employees. Defendant Mahoney had thought (and had testified) that between January and April 2021, some of the laptops had been sold or donated to charities and could not be accessed.” (Doc. 164.) 25 1 may ever know the contents of any destroyed Samsung emails, the fact that the emails of key 2 Samsung witnesses were among those destroyed permits the reasonable inference that Apple was 3 prejudiced by Samsung’s spoliation.”). Here, Plaintiff has shown that the documents they believe 4 were spoliated may have aided their case. Thus, the Court finds the spoliation resulted in 5 prejudice to the Plaintiff. 6 2. Level of Intent 7 Once the Court finds prejudice, the Court may issue sanctions that are no greater than 8 necessary to cure the prejudice. Fed. R. Civ. P. 37(e)(1). When employing subdivision (e)(2), 9 courts must find that there was intentional conduct in the failure to preserve ESI. Destruction of 10 evidence is willful spoliation if the party had “some notice that the documents were potentially 11 relevant to the litigation before they were destroyed.” Leon, 464 F.3d at 958 (quoting United 12 States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)). However, a court need not 13 find that the party acted in bad faith, a finding of conscious disregard is enough for a court to 14 issue an adverse inference instruction based on spoliation. Apple, Inc., 888 F. Supp. 2d at 998 15 (The Court need only find that Apple acted with “conscious disregard” of its obligations.); accord 16 Al Otro Lado, Inc. v. Wolf, No. 3:17-CV-02366 BAS KSC, 2021 WL 631789, at *5 (S.D. Cal. 17 Feb. 18, 2021), report and recommendation adopted sub nom. Al Otro Lado, Inc. v. Mayorkas, 18 No. 19-CV-01344-BAS-MSB, 2021 WL 1170212 (S.D. Cal. Mar. 29, 2021) (‘The requisite 19 culpable state of mind for purposes of spoliation and adverse inference instructions does not 20 require a finding of bad faith, but only a party's ‘conscious disregard’ of its preservation 21 obligations.”) 22 Courts may find intentional spoliation where it is shown, or reasonably inferred, that the 23 spoliating party acted purposefully to avoid its litigation obligations. Brewer, 2019 WL 356657 at 24 *10 (pattern of conduct suggests intentional spoliation). Since the relevance of destroyed 25 evidence cannot be clearly ascertained, a party cannot assume a presumption that the destroyed 26 evidence was irrelevant. Id.; Laub v. Horbaczewski, 2020 WL 9066078, at *6 (C.D. Cal. July 22, 27 2020) (“Because courts are unable to ascertain precisely what was in a person’s head at the time 28 spoliation occurred, they must look to circumstantial evidence to determine intent.”). While 26 1 “there need not be a ‘smoking gun’ to prove intent . . . there must be evidence of ‘a serious and 2 specific sort of culpability’ regarding the loss of the relevant ESI.” Muhammad v. Jenkins, No. 3 CV 19-7970 JAK (PVC), 2022 WL 4292341, at *6 (C.D. Cal. Aug. 26, 2022), report and 4 recommendation adopted, No. CV 19-7970 JAK (PVC), 2022 WL 4292308 (C.D. Cal. Sept. 15, 5 2022); Mkrtchyan v. Sacramento Cty., No. 2:17-cv-2366 TLN KJN, 2021 WL5284322, at *10 6 (E.D. Cal. Nov. 12, 2021) (It is proper to “consider the timing of the document loss when 7 evaluating intent.” (internal citations omitted).) 8 9 Plaintiff argues that Defendants acted with the intent to deprive Plaintiff of the electronic information. Fed. R. Civ. P. 37(e)(2). (Doc. 168 at 24–25; Doc. 210 at 9-14.) Plaintiff argues: 10 “Defendants knew their obligations to preserve ESI,” “spoliation began shortly after Defendants 11 were served with discovery,” “Mahoney’s ‘understanding’ and ‘sincere’ belief that cloud data 12 would survive termination of licenses is unfounded and not credible,” there are three or more 13 computers that are entirely unaccounted for, including the two that Mahoney himself used, and 14 “blaming others does not negate Defendants’ intent.” (Doc. 210 at 9-14.) 15 Defendants counter that there was no intent to deprive, and that Defendants did not act in 16 bad faith. (Doc. 200 at 18–21.) First, as to the cloud data, Defendants argue that they believed that 17 the request that Unity IT place a litigation hold on its records was sufficient to preserve the data 18 in the cloud. (Id. at 15.) Defendants agree that they were warned that services would be 19 terminated. (Id.) However, Defendants claim they did not understand that the information in the 20 cloud would be lost and unrecoverable. Defendants also claim that Plaintiff misrepresents 21 communications from Unity IT that it was clear that Defendants would lose access to the data. 22 (Id. at 16-17.) 23 The Court finds that it is reasonable to infer that Defendants intended to deprive Plaintiff 24 of the ESI in the cloud. Defendants had access to the data in the cloud from August 2018 to 25 November 2019. (Michaelson Decl. ¶14a–c.) The parties began discovery in October 2019. (Doc. 26 168 at 10.) Based on the arguments and evidence raised in this motion, it does not appear that all 27 the data stored in the cloud was disclosed to Plaintiff. Unity IT notified Defendants that cloud 28 services would be terminated in about November or December 2019, Defendants’ responses to 27 1 Plaintiff’s discovery were provided in November 2019—at essentially the same time Defendants 2 were failing to maintain the cloud storage license through Unity IT. Defendants took no action to 3 download the cloud ESI. Mr. Beeson states that Agrigenix could have downloaded the ESI. 4 (Beeson Decl. ¶3 (“[A]t any point before the licenses were disconnected, Agrigenix could have 5 downloaded the data stored in the cloud and archived it locally.”).) 6 Defendants had their Unity IT licenses suspended twice for failure to pay, both times with 7 ample warning. (Michaelson Decl., Exhs. 9–16.) Defendants do not dispute that they had notice 8 the licenses would be suspended. The first time, it is possible that Defendants were unaware of 9 the consequences of the lapse, i.e., whether the data stored in the cloud would or would not be 10 purged. Defendants claim that prior to reactivating Unity IT’s services and licenses in February 11 2020, it was not clear if the data had been purged. (Id., Exh. 17.) The language stated in the email 12 was that the data may have been purged. The email referenced also states “the accounts are active 13 now and you can check” if the old emails remained in the cloud. (Id.) Defendants do not explain 14 if the request to place a litigation hold on certain email accounts held up to the first suspension of 15 the licenses, or if the emails remained in the cloud. Defendants do not present any evidence of 16 steps Defendants took to ensure the data remained viable after the reactivation of the Unity 17 account. Mahoney states that he sincerely believed the data still existed in the cloud, but he does 18 not state any steps he took to ensure the continued viability of that data, which he knew must be 19 preserved during the litigation. After the second instance of deactivation, Defendants would have 20 been aware of the consequences and whether the data would be recoverable based on their 21 experience with the first deactivation. Again, the Court is not informed of any steps taken to 22 ensure the viability of the Unity cloud data. Thus, the Court cannot accept that Defendants were 23 unaware that data would likely be purged when their licenses were again suspended. This 24 disregard leaves the Court to believe that deprivation of the information was intentional. 25 Moreso, Defendants could have at any time before either deactivation, downloaded and 26 saved the data on a local computer or hard drive. (See Beeson Decl. ¶ 3.) Defendants did not have 27 a local back up and did not attempt to preserve the data by downloading it after several warnings 28 that services would be suspended. Again, this might be excusable in the first instance, but when 28 1 licenses were suspended a second time, Defendants could have and should have preserved the 2 data by downloading it, but did not. At best, Defendants acted with conscious disregard for the 3 consequences of the second deactivation by failing to locally save the data. At worst, Defendants 4 allowed the services to lapse knowing the results would be a purge of the data. 5 Second, as to the laptops, Defendants claim that they were under no duty to maintain ESI 6 on the laptops when it was also stored on the cloud. Regardless of the cloud, Defendants allowed 7 departing employees to take their laptops with them when they left from mid-2019 to late-2020. 8 (Mahoney Decl. ¶20.) This was during the midst of discovery, and Defendants appear to have 9 taken no steps to ensure the ESI relevant to this litigation was preserved. Defendants claim they 10 did not take any steps to wipe the laptops before employees took them and are not responsible for 11 employees’ conduct thereafter. (Id.) The Court agrees with Defendants that Defendants are not 12 required under the spoliation doctrine to maintain identical copies. See Masterobjects, Inc. v. 13 Amazon, 2022 U.S. Dist. LEXIS 44052 at *13 (N.D. Cal. Mar. 13, 2022). However, Defendants 14 should have taken steps, but did not, to ensure that the laptop ESI was preserved, either on the 15 cloud or otherwise, before allowing the computers to be taken or given away.8 The Court agrees 16 with Plaintiff’s argument that by allowing the computers to leave Defendants’ control, and not 17 preserving the data or ensuring that it existed in the cloud, and by giving the computers to 18 departing employees over whom they no longer had authority, Defendants affirmatively failed to 19 preserve. (Doc. 210 at 13.) Again, the Court need not find the party acted in bad faith, but only 20 that it acted with conscious disregard in preserving ESI. See Apple, Inc., 888 F. Supp. 2d at 998. 21 Defendants also argue that they are not responsible for former employees’ actions 22 regarding the laptops. Defendants argue they are not responsible for any “wiping” of data on the 23 hard drives that occurred after the laptops were taken by employees. Defendants claim that (1) the 24 Wilson laptop was not encrypted by Defendants, but by Wilson after he left Agrigenix, and 25 (2) that the hard drive on the Chow laptop was not wiped but “cleaned” and even so was not 26 8 27 28 During the time of both lapses of the Unity licenses, Defendants were represented by competent counsel in this case. There is no evidence presented by Defendants that they consulted with counsel regarding either of the Unity lapses, Defendants’ duty to preserve data, or any other information communicated to counsel about ESI. While such communication is subject to attorney-client privilege, Defendants here are faced with a sanctions motion and the Court would anticipate if any consultation had occurred, some mention of that evidence would have been presented. 29 1 wiped by Defendants. (Doc. 200 at 14; Mahoney Decl. ¶¶21–23; Chow Decl. ¶8.) Defendants 2 support this claim by again saying they were under no obligation to maintain identical files, and 3 they sincerely believed all files would be backed up on the cloud. 4 This argument again fails because it was Defendants’ duty to preserve the data before it 5 left Defendants’ custody and control. The Court finds that it was Defendants’ conscious 6 disregard in letting the laptops leave their custody and control, knowing that Defendants had 7 potentially lapsed cloud data. Defendants did not take steps to ensure such cloud data in fact 8 remained viable before they let the laptops leave their custody and control. 9 The Court’s view of Defendants’ ESI conduct is also colored by their lack of production 10 and by the bits and pieces of ESI Plaintiff has been able to sleuth forensically. Plaintiff has 11 presented evidence that there were many documents that were not disclosed or produced by 12 Defendants. Plaintiff independently uncovered documents from third parties which should have 13 been produced by Defendants as responsive to document requests. For instance, Plaintiff 14 independently discovered Agriglobe had done business with Agrigenix and the documents 15 produced by Agriglobe were not produced by Defendants, but were responsive to multiple 16 discovery requests. The documents produced contained information about a new version of 17 Defendant Agrigenix’s Green Machine, sales efforts and resulting revenues, and dealings with a 18 previously undisclosed supplier, Hydrite. Documents produced from Hydrite, but not by 19 Defendants, contained information relevant to Plaintiff’s claims of trade secret misappropriation, 20 and breach of contract, such as using Deerpoint’s fertilizer formulas. Plaintiff subpoenaed Fresno 21 First Bank which produced documents that included information not previously disclosed about 22 transactions between Agrigenix and several third parties, such as GAR Bennet and Custom Ag, 23 among other customers and suppliers. The lack of full production of relevant discovery of 24 evidence and documents which Plaintiff independently located forces the Court to infer intent to 25 spoliate ESI by Defendants. 26 The Court wishes to emphasize that it is not solely the lapse of the Unity ESI that forces 27 the conclusion Defendants acted intentionally to spoliate ESI. The Court infers intent to spoliate 28 ESI from the totality of Defendants’ conduct, including the lack of production, the laptops, and 30 1 the third-party information not disclosed. Plaintiff has presented bits and pieces of ESI it has 2 uncovered in its forensic analysis, as mentioned infra. It is not a large stretch for the Court to 3 make, on this record, that failure to produce documents and Defendants’ actions in not disclosing 4 or producing those documents was intentional. The Court finds that Defendants intentionally 5 sought to avoid producing responsive documents and other ESI to Plaintiff. In sum, the Court 6 finds that Defendants acted intentionally and with a conscious disregard of its obligations in 7 failing to preserve and produce ESI from the cloud and the laptops. 8 D. Sanctions 9 Where the requisite intent is found, the Court may impose sanctions. In determining 10 which sanctions to impose courts consider the following factors: “the degree of fault of the party 11 who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; 12 and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing 13 party.” Apple, Inc., 888 F. Supp. 2d at 992 (quoting Nursing Home Pension Fund v. Oracle 14 Corp., 254 F.R.D. 559, 563 (N.D. Cal. Sept. 2, 2008)). It is not necessary to find bad faith for a 15 court to impose an adverse inference sanction, however, a party’s motive or degree of fault in the 16 spoliation is relevant to determining what sanctions should be imposed. Apple, Inc., 888 F. Supp. 17 2d at 992. Courts should impose the least arduous sanction that corresponds to the willfulness of 18 the destruction and prejudice to the victim party. Id. Ultimately, the determination of what 19 sanctions, if any, should be imposed must be made on a case-by-case basis. Id. 20 Here, Plaintiff seeks sanctions of: 21 • Costs and fees attributable to Defendants’ spoliation. (Doc. 168 at 25.) 22 • Findings of fact to cure prejudice Plaintiff has suffered from loss of evidence that once 23 24 existed. (Id. at 27.) • 25 26 27 28 Instruction to the jury that destroyed ESI would have been favorable to Deerpoint and unfavorable to Mahoney and Agrigenix. (Id. at 27-28.) • Entry of default judgment as to several Deerpoint causes. (Id.) 1. Monetary Sanctions Upon a finding of prejudice to the party deprived of the information, a court “may order 31 1 measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). “The range of 2 such measures is quite broad if they are necessary for this purpose, and “[m]uch is entrusted to 3 the court’s discretion.” Fed. R. Civ. P. 37(e)(1), Advisory Committee’s Note to 2015 amendment; 4 see, e.g., Sec. Alarm Fin. Enters., L.P. v. Alarm Prot. Tech., LLC, No. 3:13-cv-00102-SLG, 2016 5 WL 7115911 (D. Alaska Dec. 6, 2016) (awarding reasonable attorney’s fees incurred in bringing 6 a discovery motion after determining the moving party was prejudiced by spoliation). In addition, 7 monetary sanctions also are available under Rule 37(e)(2). Although Rule 37(e)(2) specifies three 8 types of sanctions that may be imposed upon a finding that a party acted with the intent to deprive 9 another of the use of information in litigation, these options are not exclusive. Instead, the Court 10 may order any remedy that “fit[s] the wrong.” Fed. R. Civ. P. 37(e), Advisory Committee’s Note 11 to 2015 amendment. On this basis, the Court concludes that monetary sanctions are available 12 under Rule 37(e)(2). See RG Abrams Ins. v. L. Offs. of C.R. Abrams, No. 2:21-CV-00194 13 FLAMAAX, 2022 WL 3133293, at *45 (C.D. Cal. July 1, 2022). 14 15 a. Reasonable Fees and Costs As detailed above, the Court has found that Plaintiff has been prejudiced by the spoliation 16 of ESI from various laptops and from Unity IT. The Court thus finds an award of attorneys’ fees 17 and costs is appropriate. Accordingly, Plaintiff is entitled to monetary sanctions under Rule 18 37(e)(1). Plaintiff requests they be awarded costs and fees of incurred (1) in performing forensic 19 analysis on the spoliated laptops, (2) in depositions related to the spoliated evidence, (3) in 20 issuing subpoenas to third parties, and (4) in preparation of this motion. (Doc. 168 at 25-27.) 21 Plaintiff seeks a total of $133,002.26 in costs and fees. (Doc. 168-38.) 22 When an award of attorneys’ fees is authorized, the court must calculate the proper 23 amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433–34 24 (1983). To determine a reasonable attorneys’ fee, a “Lodestar” is used. The starting point is the 25 number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S. 26 at 433. The Court, in considering what constitutes a reasonable hourly rate, looks to the prevailing 27 market rate in the relevant community. Blum v. Stenson, 465 U.S. 886, 895 (1984). The “relevant 28 community” for the purposes of the lodestar calculation is generally the forum in which the 32 1 district court sits. Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013). The 2 relevant community here is the Fresno Division of the Eastern District of California. 3 In the Fresno Division of the Eastern District of California, attorneys with twenty or more 4 years of experience are awarded $350.00 to $400.00 per hour. See, e.g., Leprino Foods Co. v. 5 JND Thomas Co., Inc., No. 1:16-cv-01181-LJO-SAB, 2017 WL 128502, at *13 (E.D. Cal. Jan. 6 12, 2017), report and recommendation adopted in part, No. 1:16-cv-01181-LJO-SAB, 2017 WL 7 432480 (E.D. Cal. Feb. 1, 2017) (finding $400.00 per hour a reasonable hourly rate for attorney 8 with more than thirty years of experience); Sanchez v. Frito-Lay, Inc., No. 1:14-CV-00797 AWI- 9 MJS, 2015 WL 4662636, at *18 (E.D. Cal. Aug. 5, 2015), report and recommendation adopted, 10 No. 1:14-CV-797-AWI-MJS, 2015 WL 5138101 (E.D. Cal. Aug. 26, 2015) (finding reasonable 11 rate for attorney with twenty years of experience was $350 per hour in a wage and hour class 12 action). Generally, “$300 is the upper range for competent attorneys with approximately a decade 13 of experience.” Barkett v. Sentosa Props. LLC, No. 1:14–CV–01698–LJO, 2015 WL 5797828, at 14 *5 (E.D. Cal. Sept. 30, 2015) (O’Neill, J.) (citing Silvester v. Harris, No. 1:11–CV–2137 AWI 15 SAB, 2014 WL 7239371, at *4 (E.D. Cal. Dec. 17, 2014). For attorneys with “less than ten years 16 of experience . . . the accepted range is between $175 and $300 per hour.” Silvester, 2014 WL 17 7239371 at *4 (citing Willis v. City of Fresno, 1:09-cv-01766-BAM, 2014 WL 3563310 (E.D. 18 Cal. July 17, 2014). 19 Recent cases have maintained the same hourly rates. Accord Langer v. Cooke City 20 Raceway, Inc., No. 1:21-CV-01488 JLT BAK, 2022 WL 2966172, at *16 (E.D. Cal. July 27, 21 2022), report and recommendation adopted, No. 1:21-CV-01488 JLT BAK, 2022 WL 3348015 22 (E.D. Cal. Aug. 12, 2022); Webb v. Cty. of Stanislaus, No. 1:19-CV-01716 DAD EPG, 2022 WL 23 446050, at *6 (E.D. Cal. Feb. 14, 2022) (In the Fresno Division of the Eastern District of 24 California, generally, attorneys with twenty or more years of experience are awarded $325.00 to 25 $400.00 per hour, attorneys with ten to twenty years of experience are awarded $250.00 to 26 $325.00, attorneys with five to ten years of experience are awarded $225.00 to $250.00, and less 27 than $200.00 for attorneys with less than five years of experience.) Finally, “[t]he current 28 reasonable hourly rate for paralegal work in the Fresno Division ranges from $75 to $150, 33 1 depending on experience.” Silvester, 2014 WL 7239371, at *4 (citations omitted); accord Langer, 2 2022 WL 2966172, at *16; cf. Franco v. Ruiz Food Prods., Inc., No. 1:10–cv–02354–SKO, 2012 3 WL 5941801, at *20 (E.D. Cal. Nov. 27, 2012) (approving a rate of “$100 per hour” for “legal 4 assistants”). 5 6 Here, Plaintiff provides the Court with the following breakdown of rates and hours expended:9 • 7 8 Partner Jon Michaelson: rate of $1,200.00 per hour; expended 31 hours for a total of $37,200 in fees. • 9 10 Senior associate Benjamin Kleinman: rate of $825.00 per hour; expended 63 hours for a total of $51,975 in fees. • 11 12 Junior associate Sarah Glendon: rate of $500.00 per hour; expended 3.5 hours for a total of $1,750 in fees. • 13 Legal assistants:10 rate between $300 and $395 per hour; expended 9 hours. 14 (Doc. 168-38.) This results in a total of $90,925 in attorney fees, excluding fees attributed to legal 15 assistants. 16 While Plaintiff does not provide the experience of the attorneys, the Court takes judicial 17 notice of the State Bar of California website. Jon Michaelson was admitted to practice in 18 California in 1978 and therefore, has more than 40 years of experience. Given this information, 19 the Court finds a rate of $400 per hour to be reasonable for the services of Mr. Michaelson. 20 The Court takes judicial notice of the State Bar of California website, which shows that 21 Benjamin Kleinman was admitted to practice in California in 2008 and has more than 10 years of 22 experience. Given this information, the Court finds a rate of $350 per hour to be reasonable for 23 the services of Mr. Kleinman. The Court takes judicial notice of the State Bar of California 24 website, which shows that Sarah Glendon was admitted to practice in California in 2019 and has 25 just under 3 years of experience. Given this information, the Court finds a rate of $200 per hour to 26 9 All hours and rates are from Exhibit 37 of the Declaration of Jon Michaelson. (Doc. 168-38.) Plaintiff did not provide an exact hourly rate for legal assistants and included fees and some expenses attributed to legal assistants’ work. Therefore, the Court cannot ascertain an average hourly rate or how much of the fees are specific to the legal assistants. However, the Court is able to determine those legal assistants expended 9 hours of work based on the information in Exhibit 37. (See Doc. 168-38.) 10 27 28 34 1 be reasonable for the services of Ms. Glendon. As for the legal assistants, courts in this district 2 have approved rates of $100 per hour. 3 The Court must also consider the reasonable number of hours spent. Defendants 4 challenge the amount of fees that Plaintiff seeks for two depositions which Plaintiff claims were 5 rendered “worthless,” and Defendants argue that counsel’s assertion of what took place “does not 6 make it so.” (Doc. 200 at 25.) Defendants also argue that 88 hours allegedly spent in preparing 7 this motion is excessive. 8 “The party seeking an award of fees should submit evidence supporting the hours 9 worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . hours that were not 10 ‘reasonably expended’ ” and “hours that are excessive, redundant, or otherwise unnecessary.” Id. 11 Ultimately, “the [opposing party] bears the burden of providing specific evidence to challenge the 12 accuracy and reasonableness of the hours charged.” McGrath v. Cnty. of Nevada, 67 F.3d 248, 13 255 (9th Cir. 1995); Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984), Gates v. Gomez, 60 F.3d 525, 14 534–35 (9th Cir. 1995)). 15 Defendants challenge Plaintiff’s claims for fees and costs, $21,558.10, for the “worthless” 16 depositions of deponent Chow and Agrigenix Rule 30(b)(b) designee. (See Doc. 168-38 at 2.) 17 The Court agrees with Defendants. The depositions are not worthless, even if Plaintiff did not 18 obtain the information that it desired. Accordingly, the fees and costs requested by Plaintiff for 19 these depositions will be disallowed. 20 Defendants also challenge the number of hours claimed by Plaintiff for preparation for the 21 motion for sanctions. Plaintiff claims a total of 88 hours to prepare the motion with fees of 22 $78,270.00 (which fees will be reduced by the appropriate market rate). At first blush, 88 hours 23 for a single motion may appear excessive. (Doc. 168-38 at 3.) Mr. Michaelson claims 22 hours, 24 the senior associate claims 60 hours, and the legal assistant claims 6 hours. But both the motion 25 and the declaration of Michaelson (and Exhibits) provided the Court with considered and careful 26 recounting of Plaintiff’s investigation and struggles with uncovering the ESI information that 27 should and could have been produced. The Court does not find the hours claimed, in this 28 particular motion, excessive. 35 1 2 Defendants do not challenge the time spent for subpoenaing third parties. Therefore, that time will be allowed, subject to a reasonable rate. 3 Defendants assert it is unfair to assess Mahoney with fees and costs, as the only viable 4 payor, since Agrigenix is now defunct. (Doc. 200 at 26-27.) The Court does not find assessment 5 of fees and costs inappropriate, or inappropriate against a responsible Defendant. Mahoney was 6 the sole owner and sole manager of Agrigenix. (Doc. 168-1 ¶2; Doc. 200-1, Brucker Decl., Exh. 4 7 “Mahoney Depo.” at 21. (Mahoney was the owner of the company).) Mahoney testified that he 8 “sold or donated” the laptops in the first quarter of 2021, during the course of this litigation. 9 (Mahoney Depo. at 11.) Later, in his declaration in opposition to this motion, Mahoney states: 10 “Agrigenix provided the laptops to its departing employees as they left on a staggered basis,” in 11 mid-2019 and late-2020, again while this litigation was ongoing. (Mahoney Decl. ¶20.) Assuming 12 these two statements are not in conflict, it remained Mahoney’s obligation to ensure compliance 13 with his and Agrigenix’s duty to preserve ESI. It is clear to the Court that he did not do so, and it 14 appears to the Court he may have been actively shielding data, as explained infra. 15 Using the rates that are reasonable for the district and reasonable hours expended by 16 counsel for Plaintiff, the Court will award $32,50011 in attorney fees. The Court finds this amount 17 reasonable based on the hours expended on this case. 18 b. 19 Expert Fees Plaintiff argues that Plaintiff should be awarded all fees and costs incurred by the forensic 20 expert for the expense of forensic analysis and attorneys’ fees for identifying and engaging the 21 forensic service and for overseeing the work of the forensic examiner. (Doc. 168 at 25-26.) This 22 amount is at least $26,746.41. Defendants argue that Plaintiff’s counsel merely cites to a chart replete with hearsay and 23 24 information that violates the secondary evidence rule (e.g., stating expert fees per invoices, but 25 11 26 27 28 For Mr. Michaelson, partner, at $400 per hour for 3 hours for Rule 45 subpoenas and 22 hours for the motion for sanctions is a total of 25 hours at $400 per hour = $10,000. For Mr. Kleinman, senior associate, at $350 per hour for 60 hours for the motion for sanctions is 60 hours at $350 per hour = $21,000. For Ms. Glendon, junior associate, at $200 per hour for three hours for Rule 45 subpoenas is a total of 3 hours at $200 per hour = $600. For legal assistants, at $100 per hour for three hours for Rule 45 subpoenas and six hours for the motion for sanctions is a total of nine hours at $100 per hour = $900. Total fees awarded are $32,500. 36 1 2 not providing invoices). (Doc. 168-38; Doc. 200 at 24.) The Court agrees with Defendants. The Court requires Plaintiff to provide supplemental 3 documentation as to the expert costs associated with the motion in their attempts to recover 4 spoliated evidence. 5 2. Adverse Findings of Fact and Adverse Instructions 6 Courts employ a three-part test in Zubulake to determine whether an adverse inference 7 spoliation instruction is warranted. Apple, Inc., 881 F. Supp. 2d at 1138; see Zubulake v. UBS 8 Warburg LLC., 220 F.R.D. 212, 220 (S.D.N.Y. Oct. 22, 2003)). “A party seeking an adverse 9 inference instruction (or other sanctions) based on the spoliation of evidence must establish the 10 following elements: (1) that the party having control over the evidence had an obligation to 11 preserve it at the time it was destroyed; (2) that the records were destroyed with a ‘culpable state 12 of mind’ and (3) that the evidence was ‘relevant’ to the party’s claim or defense such that a 13 reasonable trier of fact could find that it would support that claim or defense.” Apple, Inc., 881 F. 14 Supp. 2d at 1138 (quoting Zubulake v. UBS Warburg LLC., 220 F.R.D. 212, 220 (S.D.N.Y. Oct. 15 22, 2003)) (Zubulake factors). 16 As illustrated above, Plaintiff established the first two elements of the Zubulake factors. 17 Defendants admit that there was a duty to preserve the data on either the laptops or the cloud. 18 Further, this Court has found that Defendants acted intentionally to deprive Plaintiff of the 19 spoliated ESI. As to the third factor, there is a presumption that spoliated evidence is relevant to 20 the non-spoiling party’s claims. 21 Here, neither Defendants nor Plaintiff have identified how much ESI is actually gone from 22 the cloud data or laptops. Plaintiff believes that there were documents such as the price 23 comparison sheet that was not only relevant but also critical to prove that Defendants were in 24 possession of confidential, proprietary, and trade secret information. Further, Defendant Mahoney 25 has already acknowledged that he was in possession of at least one email that contained such 26 information. (Doc. 168 at 9.) Document productions from third parties including Agriglobe, 27 Hydrite, and GAR Bennet also suggest there may be documents that support Plaintiff’s claims 28 that Defendants were in possession of such information and may have used it to conduct business. 37 1 (See Michaelson Decl. ¶10.) Productions from Agriglobe show a similar product to the White 2 Box created by Plaintiff. (See Michaelson Decl. ¶9, Exh. 6.) The creation of sophisticated 3 technology, in short order after Agrigenix’s initial start-up, would only be possible with 4 supporting technical documentation/ESI, which was not produced. Documents from Hydrite, 5 none of which were produced by Defendants, show chemical blending strategies used by Plaintiff. 6 (Michaelson Decl. ¶10.) Documents from GAR Bennett show the sale of components of that 7 technology even after litigation in this matter began. (Michaelson Decl. ¶17, Exh. 23.) 8 9 10 11 12 Plaintiff requests that the Court establish certain facts as conclusive, with the first being a rebuttable presumption: 1. That when he left the employ of Deerpoint in October 2017, Mr. Mahoney possessed and retained documents that contained confidential, proprietary, and trade secret information belonging to Deerpoint with respect to the formulation, manufacture, cost, and pricing of Deerpoint products and with respect to Deerpoint customers and their needs. 13 14 15 16 17 18 19 20 21 22 23 24 2. Mr. Mahoney disclosed the above documents containing Deerpoint information to Agrigenix (through others who became or were Agrigenix employees) both before and after Agrigenix was formed. 3. Mr. Mahoney used documents containing the above Deerpoint information to advance the business of Agrigenix both before and after January 8, 2018, to the detriment of Deerpoint. 4. Agrigenix (through Mr. Mahoney and through its other employees) used documents containing the above Deerpoint information to advance the business of Agrigenix both before and after January 8, 2018, to the detriment of Deerpoint. 5. From and after no later than March 2018, when Chow joined Agrigenix, Mahoney and Agrigenix had in their possession documents containing confidential, proprietary, and trade secret information related to Deerpoint’s White Box technology. 6. Agrigenix, at the direction of Mahoney, used documents containing confidential, proprietary, and trade secret information obtained with respect to Deerpoint White Box technology to create and offer for sale their “Green Machine” fertigation equipment, to the detriment of Deerpoint. 25 26 27 28 (Doc. 168 at 27–28.) Adverse inference instructions range in their level of severity. Apple, Inc., 881 F. Supp. 2d at 1150. The harshest type of adverse inference instruction directs the jury to deem certain facts 38 1 admitted and accepted as true. Id. When a spoliating party has acted willfully or recklessly a 2 lesser adverse inference instruction imposes a mandatory presumption. Id. The least harsh 3 instruction allows the jury to presume that lost evidence is both relevant and favorable to the 4 innocent party. Id. If the jury makes the presumption, “the spoliating party’s rebuttal evidence 5 must then be considered by the jury, which must then decide whether to draw an adverse 6 inference against the spoliating party.” Id. The Ninth Circuit has held that a trial court’s “adverse 7 inference sanction should be carefully fashioned to deny the wrongdoer the fruits of its 8 misconduct yet not interfere with the party’s right to produce other relevant evidence.” In re 9 Oracle Corp. Securities Litig., 627 F.3d 376, 386 (9th Cir. 2010). 10 To truly right the wrong Defendants have inflicted, Plaintiff is entitled to have some kind 11 of curative instructions given at trial. Simply, Plaintiff has been obstructed from proving its case. 12 Because the undersigned will not be the trial judge in this case, the precise contours of the 13 instructions will be left to the trial judge. A magistrate judge’s specific findings warranted 14 adverse inference jury instructions, but “[t]he precise contours of such instructions must be left to 15 the presiding judge who will determine the universe of jury instructions ultimately to be given in 16 this action.” Apple Inc., 888 F. Supp. 2d at 992; Doe v. Bridges to Recovery, LLC, No. 2:20-CV- 17 348-SVW, 2021 WL 4690830, at *16 (C.D. Cal. May 19, 2021) (The precise wording of the 18 instruction will be determined along with the remainder of the jury instructions). 19 However, based on the record before the undersigned, and regardless of the exact 20 wording, the Court recommends the contours of the instructions should be along the following 21 lines: First, that the instruction(s) acknowledge that Agrigenix and Mahoney had a duty to 22 preserve evidence relating to Plaintiff’s complaint. Second, the instruction(s) should inform the 23 jury that Agrigenix and Mahoney failed to preserve and produce electronically stored 24 information, and this is known as the “spoliation of evidence.” Third, the instruction(s) should 25 instruct the jury that as a result of this spoliation of evidence, the jury should presume that the 26 contents of the electronically stored information would have been favorable to Plaintiff and 27 unfavorable to Defendants. Fourth, the instruction(s) should specifically instruct the jury on what 28 the absent evidence would show: (1) that the spoliated evidence contained confidential, 39 1 proprietary, and trade secret information belonging to Deerpoint with respect to the formulation, 2 manufacture, cost, and pricing of Deerpoint products and with respect to Deerpoint customers; 3 and at the trial judge’s discretion, the following: (2) Mahoney and Agrigenix used documents 4 containing Deerpoint’s confidential, proprietary, and trade secret information to advance the 5 business of Agrigenix to the detriment of Deerpoint. The instruction(s) preserve the Defendants’ right to produce other relevant evidence. The 6 7 contours of the instruction(s) does not preclude Mahoney and Agrigenix, and others, from 8 testifying as to their own actions for development of equipment, formulas and the like for 9 Agrigenix, subject to cross-examination regarding the lack of ESI produced on these topics. 10 3. Terminating Sanctions 11 Courts may use dismissal as a sanction where a party has deliberately engaged in 12 deceptive practices that “undermine the integrity of judicial proceedings” because courts have an 13 inherent power to dismiss actions where parties engage in conduct that is wholly inconsistent with 14 the “orderly administration of justice.” Leon, 464 F.3d at 958 (citing Anheuser-Busch, Inc., v. 15 Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)). Prior to imposing such severe 16 sanctions, a court should consider the following factors: “(1) the public’s interest in expeditious 17 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 18 party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and 19 (5) the availability of less drastic sanctions.” Leon, 446 F.3d at 958 (quoting Anheuser-Busch, 69 20 F.3d at 348). A court need not make findings specific to each factor, however, there must be a 21 finding of “willfulness, fault, or bad faith” for dismissal to be proper. Id. 22 Plaintiff requests that the Court enter default judgment against Agrigenix as to the second 23 cause of action and against Defendant Mahoney as to the fourth and fifth causes of action. The 24 Court does not find that such a judgment should be entered. The Court has not found that 25 Defendants acted to such a degree that claim dispositive sanctions are warranted. While 26 Defendants did act intentionally and with conscious disregard for the preservation of documents, 27 there is no finding of bad faith that would warrant such an extreme sanction. 28 /// 40 1 2 3 4 CONCLUSION AND ORDER For the reasons stated, the Court HEREBY ORDERS as follows: 1. Plaintiff’s Motion for Sanctions for failure to preserve ESI in violation of Federal Rule of Civil Procedure 37(e), (Doc. 168), is GRANTED; 5 2. Plaintiff is awarded THIRTY-TWO THOUSAND FIVE HUNDRED DOLLARS 6 ($32,500.00) in attorney fees, joint and several, against Defendants Agrigenix and 7 Mahoney; 8 3. Plaintiff shall file supplemental briefing as to the expert costs associated with this motion 9 and the spoliated evidence within fourteen (14) days of this order. Defendants may file a 10 11 12 13 14 reply within fourteen (14) days thereafter; 4. Plaintiff’s request for adverse findings of fact and jury instructions is GRANTED IN PART, as identified above, and shall be given at a subsequent trial; and 5. Plaintiff’s request that default judgment be entered at to Plaintiff’s second, fourth, and fifth causes of action is DENIED. 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara October 31, 2022 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 41

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