Keller v. Electronic Arts Inc. et al

Filing 500

ORDER GRANTING MOTIONS FOR SANCTIONS RE #21 Case No. 12-mc-80020 and #66 , #67 Case No. 11-mc-80300. Signed by Judge Nathanael M. Cousins on 08/07/2012. (nclc2, COURT STAFF) (Filed on 8/7/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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IN RE NCAA STUDENT-ATHLETE
NAME & LIKENESS LICENSING
LITIGATION

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Case No. 09-cv-01967 CW (NC)
RELATED CASES:
11-mc-80300 CW (NC)
11-mc-80020 CW (NC)
ORDER IMPOSING SANCTIONS
AGAINST ANTITRUST
PLAINTIFFS AND THEIR
COUNSEL UNDER RULE 45(c)(1)

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The issue presented is the sanction that this court must impose after the antitrust

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plaintiffs failed to take reasonable steps to avoid imposing undue discovery burdens on

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three entities that are not parties to this lawsuit. The court previously denied the antitrust

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plaintiffs’ motion to compel nonparties The Big Ten Conference, Big Ten Network, and

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Fox Broadcasting Company to produce documents responsive to three overly broad and

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burdensome subpoenas. Dkt. No. 430. In that order, the court found that sanctions

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against the antitrust plaintiffs were warranted under Federal Rule of Civil Procedure

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45(c)(1), because the plaintiffs did not make reasonable efforts to limit the scope of their

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voluminous document requests to the nonparties.

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Antitrust plaintiffs moved for relief from this court’s order denying the motions to
compel. District Court Judge Claudia Wilken denied the motion, finding that plaintiffs
Case No. 09-cv-01967 CW (NC)
ORDER IMPOSING SANCTIONS

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did not establish that this court’s order was clearly erroneous or contrary to law. Dkt.

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No. 444. The District Court also ordered that plaintiffs may renew their motion for relief

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after this court issues this order on sanctions. Id. at 2.
This court has now considered the motions for sanctions and supporting

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declarations, as well as the plaintiffs’ opposition briefs. The Conference seeks a sanction

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of $73,758.54; the Network, $23,856.16; and Fox, $27,054.44. In total, the three moving

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entities seek a sanction of $124,669.14 from antitrust plaintiffs.
The court finds that a significant sanction is merited under Rule 45(c)(1), but that

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an appropriate sanction here is less than the full amount of attorneys’ fees and costs

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incurred by the nonparties in opposing the motion to compel. As the plaintiffs note, as to

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some aspects of the motion to compel dealing with copyright preemption and the First

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Amendment, the court did not uphold the nonparties’ objections. Furthermore, the court

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found that some of the document requests called for relevant documents. Yet, on the

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whole, the court found that the requests were “substantially overly broad” and that

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responding to them as drafted would subject the nonparties to significant expense and

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undue burden. Dkt. No. 430 at 1. And plaintiffs’ counsel did not take reasonable steps

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at compromise and ended the meet-and-confer process prematurely before filing the

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motions to compel. Id. at 1-2.
The court therefore finds that the appropriate sanctions against antitrust plaintiffs

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and their counsel under Rule 45(c)(1) are as follows:

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Big Ten Conference: $30,000 in attorneys’ fees for opposing the motion to

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compel; $904.54 in travel costs; and $6,100 in attorneys’ fees for drafting the

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motion for sanctions.

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Total = $37,004.54

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Fox Broadcasting Company: $15,000 in attorneys’ fees for opposing the motion

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to compel; and $265.94 in travel costs.

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Total = $15,265.94

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Case No. 09-cv-01967 CW (NC)
ORDER IMPOSING SANCTIONS

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Big Ten Network: $15,000 in attorneys’ fees for opposing the motion to compel;

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and $114.16 in travel costs.

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Total = $15,114.16

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***

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Grand Total: $67,384.64

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***

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A.

Rule 45 Sanctions are Mandatory for Failure to Take Reasonable Steps

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Rule 45 imposes a mandatory responsibility on this court to protect nonparties

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from unduly burdensome discovery. “A party or attorney responsible for issuing and

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serving a subpoena must take reasonable steps to avoid imposing undue burden or

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expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). The court “must

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enforce this duty and impose an appropriate sanction . . . on a party or attorney who fails

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to comply.” Id. The sanction “may include lost earnings and reasonable attorney’s

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fees.” Id.
The Ninth Circuit has long held that nonparties subject to discovery requests

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deserve extra protection from the courts. “Nonparty witnesses are powerless to control

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the scope of litigation and discovery, and should not be forced to subsidize an

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unreasonable share of the costs of litigation to which they are not a party . . . [A]

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witness’s nonparty status is an important factor to be considered in determining whether

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to allocate discovery costs on the demanding or producing party.” United States v.

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C.B.S., Inc., 666 F.2d 364, 371-72 (9th Cir. 1982) (footnotes omitted); see also High

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Tech Medical Instrumentation, Inc. v. New Image Indus., Inc., 161 F.R.D. 86, 88 (N.D.

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Cal. 1995) (Hamilton, Mag. Judge) (awarding sanctions for attorneys’ fees, including

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fees incurred in pursuit of the sanctions motion, where party failed to take reasonable

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steps to avoid imposing undue burden on a third party); see also Chevron Corp. v.

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Salazar, No. 11-cv-0691 LAK, 2011 WL 7112979, at *3-4 (D. Or. Nov. 30, 2011)

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(Coffin, Mag. Judge) (same).

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Case No. 09-cv-01967 CW (NC)
ORDER IMPOSING SANCTIONS

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In consideration of the express language of Rule 45(c)(1), in combination with

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this circuit’s stance on unnecessarily burdening nonparties with discovery requests, this

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court disagrees with the plaintiffs that the nonparties must establish bad faith or improper

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purpose before sanctions can be awarded under Rule 45. Both the language of Rule

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45(c)(1) and that of the Ninth Circuit in C.B.S. make it clear that sanctions are

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appropriate if the subpoenaing party fails to take reasonable steps to avoid imposing an

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undue burden on a third party.

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B.

The Big Ten Conference is Awarded $37,004.54 Sanction

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The Big Ten Conference, represented by Mayer Brown LLP, seeks a sanction for

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fees and costs totaling $73,758.54. Dkt. No. 67, Case No. 11-mc-80300 CW (NC). This

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amount is comprised of $66,754 for time spent in connection with the motion to compel,

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$6,100 for time spent preparing the motion for sanctions, and $904.54 in travel costs.

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The Conference has paid for all fees billed by counsel in connection with the motions to

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compel and for sanctions.

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The lodestar breakdown of the $66,754 in fees incurred by the Big Ten

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Conference in connection with the motion to compel is the following: (1) 85 hours billed

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by lead counsel Andrew Rosenman at $610 per hour ($51,850 total); and (2) 36 hours

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billed by associate Emily Emerson at $414 per hour ($14,904 total). The lodestar

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breakdown of the $6,100 in fees incurred by the Conference in connection with the

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motion for sanctions is: 10 hours billed by Rosenman at $610 per hour.

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Conference counsel argues that the requested fees and costs are reasonable

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because: (1) the billing rates are lower than the rates normally charged by Rosenman and

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Emerson; (2) counsel do not seek reimbursement of any of the fees incurred by other

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Mayer Brown lawyers who worked on the motion to compel; and (3) Rosenman seeks

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reimbursement with respect to only 85 out of the 196.6 total hours he billed in

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connection with the motion to compel.

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Antitrust plaintiffs argue that the fees requested by the Conference should be
reduced by $44,524.92, because (1) “many time entries should not be compensable
Case No. 09-cv-01967 CW (NC)
ORDER IMPOSING SANCTIONS

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because they relate to issues that the Big Ten [Conference] lost;” (2) the time entries lack

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specificity; (3) and some of the fees ($1,573.20) were incurred after the hearing on the

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motion to compel. Dkt. No. 71, Case No. 11-mc-80300 CW (NC).
The court awards the Conference a total sanction of $37,004.54 ($30,000 in fees

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incurred in connection with the motion to compel, $904.54 in travel costs, and $6,100 in

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fees incurred to date in connection with the motion for sanctions). The court finds that

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the fee rates, time spent, and costs were reasonable in light of the skill and experience

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levels of counsel and the complexity of the legal issues involved. Fees and costs

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incurred in pursuing a motion for sanctions also are recoverable. High Tech, 161 F.R.D.

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at 89. The reasons that the court reduces (by $36,754) the sanction related to the motion

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to compel are that: (i) as to some aspects of the motion to compel dealing with copyright

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preemption and the First Amendment, the court did not uphold the Conference’s

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objections; (ii) the court found that some of the document requests called for relevant

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documents; and (iii) a reduced award is proportionate to the sanction requested and

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awarded to the Network and Fox, which made similar arguments and obtained a similar

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result at a much lower cost.

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C.

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Fox is Awarded $15,265.94 Sanction; and Big Ten Network $15,114.16
Fox and the Big Ten Network are represented by the same counsel, Jenner &

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Block LLP. They request an award of fees and costs of $27,054.44 for Fox (comprised

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of $26,788.50 in fees and $265.94 in travel costs) and of $23,856.16 for the Network

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(comprised of $23,742 in fees and $114.16 in travel costs). Dkt. No. 21, Case No.

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11-mc-80300 CW (NC).

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The lodestar breakdown of the $26,788.50 in fees incurred by Fox in connection

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with the motion to compel is the following: (1) 41 hours billed by lead counsel David

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Singer at $576 per hour; (2) 6.4 hours billed by associate Jean Doherty at $391.50 per

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hour; and (3) 2.6 hours billed by paralegal Elizabeth Gaida at $256.50 per hour.

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The lodestar breakdown of the $23,742 in fees incurred by the Network in
connection with the motion to compel is the following: (1) 37.6 hours billed by lead
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counsel Singer at $576 per hour; and (2) 8.8 hours billed by paralegal Gaida at $256.50.

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Fox and the Network did not specify fees incurred in connection with their motion for

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sanctions.

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Fox and the Network argue that the requested fees and costs are reasonable

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because they are limited to time spent on the motions to compel and do not include time

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counsel spent responding to the subpoenas more generally.
Antitrust plaintiffs argue that the fees requested by Fox and the Network should

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be reduced by $30,318 because “at least 60%” of the time billed by counsel was spent on

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issues that Fox and the Network lost. Dkt. No. 24, Case No. 12-mc-80200 CW (NC).

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Here, the court awards Fox a total sanction of $15,265.94 (comprised of $15,000

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in fees and $265.94 in travel costs) and the Network, $15,114.16 (comprised of $15,000

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in fees and $114.16 in travel costs). The court finds that the fee rates (a slightly lower

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rate than counsel for the Conference), time spent, and costs were reasonable in light of

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the skill and experience levels of counsel and the complexity of the legal issues involved.

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The reasons that the court reduces (by $20,530.50 among both Fox and the Network) the

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sanction related to the motion to compel are that: (i) as to some aspects of the motion to

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compel dealing with copyright preemption and the First Amendment, the court did not

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uphold the objections; and (ii) the court found that some of the document requests called

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for relevant documents.
At bottom, the court finds that all participants in this discovery dispute might have

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preserved their time and money by making reasonable compromises and negotiating

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further with the opposing sides. Rule 45, however, imposes an affirmative duty on a

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litigant requesting discovery from a nonparty to take “reasonable steps” to avoid “undue

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burden or expense.” Here, the antitrust plaintiffs and their counsel did not satisfy this

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duty.

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Accordingly, the court orders that antitrust plaintiffs and their counsel, jointly and

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severally, must pay to the Big Ten Conference, $37,004.54; to Fox Broadcasting

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Company, $15,265.94; and to the Big Ten Network, $15,114.16. The sanction must be

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paid within 30 days of this order. Any party may move for relief from this non-

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dispositive pretrial order within 14 days. Fed. R. Civ. P. 72(a).

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IT IS SO ORDERED.

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DATED: August 7, 2012
____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 09-cv-01967 CW (NC)
ORDER IMPOSING SANCTIONS

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