HM Electronics, Inc. v. R.F. Technologies, Inc.

Filing 420

ORDER granting in part and denying in part 295 Redacted Joint MOTION for Issue Sanctions and Evidentiary Sanctions Against Dfts Pursuant to FRCP 37(b), Adverse Inference Instructions Re: Dfts' Withholding of Documents and Spoliation of Evidenc e, Finding of Contempt against Dfts, Award of Expenses by HM Electronics, Inc., and granting 414 the Court's sua sponte Motion for Sanctions under Rule 26(g). As provided in the attached Order, Defendant R.F. Technologies, Inc. ("RFT&qu ot;), Defendant Babak Noorian, and attorney Thomas O'Leary of the LeClairRyan, LLP law firm, are subject to sanctions under Fed. R. Civ. P. 26(g). Defendant RFT, the law firm of LeClairRyan, LLP and attorney Thomas O'Leary are subject to s anctions under Rule 37. All reasonable attorney's fees and costs incurred by Plaintiff in collecting discovery from Defendants beginning on October 18, 2013, the date of the first false discovery certifications and responses, are recoverable as sanctions. A final Order with the actual amount and the apportionment of the sanctions will be issued following submission by Plaintiff of a statement of fees and costs together with supporting documentation and declarations as required by law. Pl aintiff is to submit this information, in the form of a motion for fees and costs, no later than August 24, 2015. Defendants may respond no later than September 8, 2015. The Court will set the matter for hearing, if appropriate, after reviewing the papers. The Court DENIES Plaintiff's Motion insofar as it requests that this Court certify a finding of civil contempt. The Court also GRANTS Plaintiff's Motion insofar as it requests that this Court RECOMMEND to the district court, in t he event this case proceeds to trial, that the district court instruct the jury that certain facts shall be deemed admitted and provide an adverse inference instruction to the jury. Objections to this Recommendation must be filed within 14 days of notification to the Court that the noticed settlement of this action will not be consummated. Signed by Magistrate Judge Mitchell D. Dembin on 8/7/15. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 12cv2884-BAS-MDD

HM ELECTRONICS, INC., a
California corporation,
Plaintiff,

ORDER RE MOTIONS RE
SANCTIONS AND CONTEMPT
AGAINST DEFENDANTS AND
THEIR ATTORNEYS FOR
DISCOVERY MISCONDUCT;

v.

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R.F. TECHNOLOGIES, INC., an
Illinois corporation, BABAK
NOORIAN, and individual,
Defendants.

AND,
REPORT AND
RECOMMENDATION ON
PLAINTIFF’S REQUEST FOR
ISSUE SANCTIONS AND AN
ADVERSE INFERENCE
INSTRUCTION

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[ECF No. 295]

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On January 6, 2015, shortly after the close of discovery, Plaintiff

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filed this joint motion alleging that Defendants intentionally withheld

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and destroyed highly relevant electronically stored documents (“ESI”).

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(ECF Nos. 268, 288 (later refiled with redactions at ECF No. 295)). On

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April 17, 2015, the parties filed a joint supplemental statement
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pursuant to this Court’s Order. (ECF Nos. 303, 304). On May 8, 2015,

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Defendants filed an unsolicited supplemental declaration. (ECF No.

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309).

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On July 24, 2015, this Court issued an Order setting a hearing on

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the joint motion and on the Court’s own motion for sanctions under

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Rule 26(g) against Defendants and their attorneys for improper

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certifications of discovery responses. (ECF No. 414). On August 5,

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2015, this Court held a hearing on the motions. (ECF No. 419).

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Defendants and certain of their attorneys engaged in sanctionable
discovery practices in five ways:
1. Defendant Noorian, as CEO of Defendant R.F. Technologies,

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Inc. (“RFT”), signed certifications of discovery responses specifically

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stating that certain documents did not exist—even though it did; and

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that Defendant had no knowledge whether certain events occurred—

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even though it knew that those events, meetings and emails had

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occurred. In that same vein, Defendants’ attorney Thomas O’Leary

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certified discovery responses as true, to his knowledge or belief, without

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conducting a reasonable inquiry. This conduct justifies sanctions

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against Defendants RFT and Noorian and attorney Thomas O’Leary

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under Rule 26(g)(3).

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2. Defendants’ attorneys did not craft and implement a

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litigation hold, or otherwise communicate to Defendants the importance

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of preserving relevant documents. Sanctions under Rule 37 are

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warranted against Defendant RFT, attorney Thomas O’Leary, and the

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law firm LeClairRyan LLP for this failure.
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3. Soon after learning of this lawsuit, Defendant Noorian sent

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an email to Defendant RFT’s sales force instructing them to “destroy”

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documents because they were relevant to this lawsuit. Although

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Defendants dispute whether any documents were actually deleted, the

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evidence strongly supports a finding that an unknown number of

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relevant documents were deleted as a result of Defendant Noorian’s

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instruction and by the failure to implement a litigation hold. Sanctions

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against Defendant RFT under Rule 37 are warranted for the deletion of

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ESI pursuant to the email commanding destruction.

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4. Defendants’ attorneys allowed the attorneys and vendors

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handling the ESI production to use limiting search terms, such as the

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word “confidential,” which was part of every email sent from Defendant

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RFT, to justify withholding as privileged and without further review,

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more than 150,000 pages of ESI that were not privileged nor identified

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in a privilege log. Rule 37 sanctions against Defendant RFT, attorney

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O’Leary, and the law firm LeClairRyan LLP are warranted for this

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failure.

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5. Defendants’ attorneys failed to produce over 375,000 pages

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of ESI until well after the close of discovery because they failed to

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perform quality control checks or to supervise their ESI vendor.

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Sanctions under Rule 37 are warranted against Defendant RFT,

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attorney O’Leary, and the law firm LeClairRyan LLP for this failure.

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These events were revealed only as a result of Plaintiff’s diligence,
and despite Defendants’ stonewalling. But for Plaintiff’s persistence,

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Defendants would have gained a significant and unfair advantage at

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trial.

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Even though Plaintiff’s diligence forced Defendants eventually to

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produce the improperly withheld documents, relevant documents

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remain missing. Plaintiff has been forced to litigate this case with

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incomplete facts and to expend significant resources hunting down ESI

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that should have been delivered to Plaintiff years ago.

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Defendants and their attorneys do not dispute these events; they

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dispute whether their behavior is sanctionable. Other than admitting

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at the hearing on these motions that “mistakes were made,” they are

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unrepentant and deny responsibility. As discussed below, the Court

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finds that sanctions are warranted by Defendants’ and their attorneys’

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behavior. The question is the form and severity of the sanction to be

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imposed, and against whom.

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Facts
A. Nature of the Case
Plaintiff makes drive-thru headset systems, including the ION IQ.

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Defendant RFT repairs drive-thru headset products manufactured by

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Plaintiff and by others (most notably, 3M and Panasonic). Defendant

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Noorian is the CEO and founder of Defendant RFT. Plaintiff’s First

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Amended Complaint (“FAC”) asserts claims for trademark

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infringement, false designation of origin, trade dress infringement,

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trade libel, unfair competition and interference with prospective

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economic advantage. (ECF No. 156).

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A key piece of Plaintiff’s evidence is a document entitled “HM

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Electronics IQ Failures” (the “Structural Failures Report” or “Report”)

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and other documents showing the distribution of this Report to

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Plaintiff’s competitors, customers and prospects. Plaintiff alleges

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Defendants created the Structural Failures Report and designed it to

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look like an HME internal quality control document. The Report,

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purportedly authored by Plaintiff, acknowledged durability problems of

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its ION IQ product. In fact, Defendants created the document, inserted

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pictures of an ION IQ headset they had disassembled, and fabricated

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the durability and lifetime repair cost information they distributed

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along with the Report. Defendants distributed the fabricated

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Structural Failures Report and average repair rate information to

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clients, potential clients, and Plaintiff’s competitors, including

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Panasonic, who in turn distributed it to over 9,600 recipients.

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B. Summary of Discovery Disputes

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By the time this Court inherited this case, the docket—now

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spanning over 400 entries—was riddled with discovery disputes. Many

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of those disputes relate directly to this motion.

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The previously assigned magistrate judges have held nine

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discovery conferences, two settlement conferences, and two case

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management conferences. (ECF Nos. 29, 32, 38, 50, 62, 64, 65, 71, 76,

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77, 83, 84, 98). Attorneys Thomas O’Leary and Mark Goldenberg

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appeared on behalf of Defendant RFT at most of these conferences.

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(Id.). Many of the conferences focused primarily on “the status of

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defendant’s production of documents.” (See e.g., ECF Nos. 60, 62, 64,
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65). Magistrate Judge McCurine, originally assigned to the case,

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focused the parties’ attention on “any remaining e-discovery issues” as

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early as August 22, 2013. (ECF Nos. 38, 36). Following one of the

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discovery conferences, Magistrate Judge McCurine issued an Order that

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required Defendant RFT1 to complete its document production by

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February 10, 2014, and required its attorneys to complete the privilege

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log by February 17, 2014. (ECF No. 71). The magistrate judges

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assigned to this case have also entertained nine motions seeking

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contempt or sanctions, several motions seeking miscellaneous

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discovery-related relief, and have continued discovery and pre-trial

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deadlines four times because of document production issues. (ECF Nos.

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70, 72, 88, 90, 101, 105, 106, 138, 185-187, 203, 204, 209, 219, 224, 251,

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268, 295).
In a July 3, 2014, discovery Order, Magistrate Judge Burkhardt

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found Defendant RFT had violated the non-ESI portions of Magistrate

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Judge McCurine’s January 27, 2014, Order requiring it to complete its

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document production by February 10, 2014. (ECF No. 185). Magistrate

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Judge Burkhardt declined to find that Defendant RFT had violated the

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January 27, 2014, Order as to its ESI production because the Order was

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not specific enough about the search term agreement for the ESI

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production. (Id.). Magistrate Judge Burkhardt ordered Defendant RFT

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to complete its production—including ESI—by August 4, 2014, and

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At the time, Defendant RFT was the only named defendant. Roughly
one and a half years later, on May 27, 2014, Mr. Noorian was added as
a defendant. (ECF No. 156).

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ordered Defendant to submit a sworn declaration to Plaintiff certifying

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that requested documents had been produced, identifying the

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documents responsive to each request by Bates number, and “mak[ing]

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a detailed showing as to whether adequate searches were conducted in

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response to the January 27, 2014, Order, including an explanation of

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the search terms, custodians, computer drives, or other locations

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searched.” (ECF No. 185 at 10). Magistrate Judge Burkhardt also

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awarded Plaintiff $15,224.62 (half of its requested costs and fees in

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bringing the motion) as Rule 37 sanctions against Defendant RFT.

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(Id.).
C. Detailed Facts re Discovery Misconduct
1. The “Destroy” Email

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i.

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Service of Complaint on Defendants

On December 5, 2012, Plaintiff served Defendant RFT with the

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summons and complaint in this matter. (ECF No. 5). Defendant

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Noorian was Defendant RFT’s top executive and its agent for service of

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process. (Id.). Defendant Noorian knew of the lawsuit that day, and

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understood then that Plaintiff was complaining about RFT’s use of the

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bogus Structural Failures Report. (ECF No. 288-22 (Exh. 42) at 19:10-

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17).

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ii.

December 6, 2012 email to Noorian

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That very evening, at 4:50 p.m., Defendant Noorian sent an email

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to Mark Sullivan, then Director of Sales at RFT, with a courtesy copy to

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Tony DeLise, President and COO. (ECF No. 268-21 (Exh. 14) at 2).

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Defendant Noorian wrote: “Mark, HME is claiming that we are,
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specifically you [sic] certain material that is false and hurtful to their

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business. Please provide me with ALL the examples of your sales

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material that relates to HME before end of day tomorrow.” (Id.).

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The next day, Mr. Sullivan responded and attached “a complete

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zip of materials that pertain to this,” and listed the contents of that zip

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drive as follows:

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Benefits of Attune
Attune durability and ION mechanical failures

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Dunkin Brands attune web flyer
Numerous emails pushing Attune with attachments of above
Example of typical customer dialog about HME breaking down

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Typical email of RFT superior repairs and cost savings
Some Clip lines of copy that are used in various proposals to
customers

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(Id. at 2-3). The bogus Structural Failures Report was included, as

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were internal emails about RFT’s creation of the Report, pictures RFT

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had taken of Plaintiff’s product that were used in the Report,

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statements about the durability and cost of Plaintiff’s product, and

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emails distributing the Report. The zip drive included five screenshots

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showing 100+ electronic documents that Mr. Sullivan found on his

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computer using the search term “attune.” (ECF No. 307-7 (Exh. 54)).

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Mr. Sullivan used both his [e-mail] and his

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[e-mail] addresses in emails included in
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the zip drive that Defendant Noorian received. (ECF No. 268-21 (Exh.

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14) at 4 and 11; see also, ECF No. 307-7 (Exh. 54) at 11 (screenshot in

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zip file showing “Emails Pushing Attune Since July 2011” showing

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“From: business management” regarding the highlighted email).

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Defendant Noorian looked at the contents of the zip file when he

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received it from Mr. Sullivan. (ECF No. 288-2 (Exh. 42) at 21:13-17).

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On December 6, 2012, Defendant Noorian instructed Helen

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Fansler, his executive assistant, to create a file with Mr. Sullivan’s

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email and zip file “so we can access it when the time comes.” (ECF No.

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288-17 (Exh. 35)). Ms. Fansler created both a hard copy and an

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electronic version of the folder. (ECF No. 288-2 (Exh. 42) at 22:3-16).

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iii.

Email to employees to “destroy” documents

On December 19, 2012, Defendant Noorian sent Mark Sullivan

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(former RFT Director of Sales), Philip Tondelli (RFT VP of Sales), and

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Tony DeLise (RFT President) an email instructing them to destroy all

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“electronic and printed copies any of you may have” of the “HME failure

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pictures” in the Structural Failures Report. (ECF No. 288-13 (Exh. 31)).

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Defendant Noorian sent another email approving Mark Sullivan’s offer

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to forward the “destroy” instruction to other employees, which he did.

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(ECF No. 288-14 (Exh. 32); ECF No. 288-15 (Exh. 33)). Defendant

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Noorian never retracted nor clarified his instructions. (ECF No. 288-22

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(Exhibit 42) at 13-14, 41-42).

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Plaintiff has identified, through third party subpoenaed

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documents, Report-related documents that Defendants failed to produce

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on their own. (ECF No. 305-1 (Herrera Decl.) ¶ 14). Specifically,
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Plaintiff points to the Mark Sullivan December 6, 2012, email and zip

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file containing relevant documents. At his deposition on April 1, 2014,

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Mark Sullivan produced the email and attached zip file. (ECF Nos.

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268-21-24 (Exh. 14), 268-25 (Exh. 15)). Attorneys Thomas O’Leary and

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Mark Goldenberg appeared on behalf of Defendant RFT at Mr.

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Sullivan’s deposition. (ECF No. 268-25 (Exh. 15) at 4). Defendant did

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not produce any version of the email until one year later, in April of

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2015. (Id. ¶¶ 14-15; ECF No. 305-2 (Exh. 55)). The version Defendant

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produced is missing some of the documents in the zip file that were

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produced by Mr. Sullivan. (Id.). Defendants also have not been able to

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confirm production of all of the 100+ documents shown in the five

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screen shots. (Id.; ECF No. 309 (Vanderhoof Supp. Decl.)).

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2. False Verifications and Declarations

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Plaintiff first requested the documents at the center of this

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dispute from Defendant RFT on August 26, 2013, soon after discovery

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opened. (ECF No. 125-11 at 2). Defendant agreed to begin its rolling

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document production by October 18, 2013, but did not begin producing

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documents until November 25, 2013. (ECF Nos. 101-4 at 2; 101-6 at 2;

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185 at 1-2 (Magistrate Judge Burkhardt’s July 3, 2014, Order); 268-2 ¶

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4).

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i.

Written responses to document demands

Defendant RFT served its written responses to the request for

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production of documents on October 18, 2013. (ECF Nos. 268-17 (Exh.

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11) at 11). Defendant RFT’s lead counsel Thomas O’Leary signed these

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written responses on October 16, 2013. (Id. at 10).
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In response to Request No. 23, seeking documents concerning “the

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creation, receipt, use, publication and/or distribution of the

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DOCUMENT entitled ‘HM Electronics IQ Structural Failures,’”

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Defendant asserted objections and then falsely stated that it “may have

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responsive documents, but is uncertain at this time.” (ECF No. 268-15

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(Exh. 11) at 15). Defendant provided the same false response to

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Request No. 25, seeking documents reflecting communications about

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the Structural Failures Report. (Id. at 16). Defendant also falsely

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responded that it “may have responsive documents, but is uncertain at

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this time,” in response to Request No. 41 seeking pictures taken of

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Plaintiff’s product for any purpose. (ECF No. 268-16 (Exh. 11) at 8).

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RFT refused to provide documents in response to Request No. 26,

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which sought documents between RFT and Panasonic about the

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Structural Failures Report, on the grounds that such documents are

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irrelevant. (ECF No. 268-15 (Exh. 11) at 16-17).

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In response to Request No. 28, RFT refused to produce documents

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concerning its “opinions, statements, AND/OR declarations regarding

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the repair frequency of any HME Drive-Thru Headset Product,” because

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“it could be thousands of documents every year.” (ECF No. 268-16 (Exh.

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11) at 1). Defendant refused to produce documents responsive to

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Request No. 33, calling for communications with third parties about

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Plaintiff’s products, also on the basis that “it could be thousands of

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documents every year.” (Id. at 3-4). Defendant offered the same

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response to Request No. 34, which called for communications with third

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parties about Defendant’s advertisements concerning Plaintiff or its

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products. (Id. at 4).

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After Plaintiff challenged the sufficiency of these responses,

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Defendant RFT provided supplemental responses. (ECF No. 268-18,

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268-19 (Exh. 12)). Defendant RFT’s lead counsel Thomas O’Leary

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signed the supplemental responses on December 12, 2013, and

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Defendant Noorian, in his capacity as President of RFT, verified the

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supplemental responses under penalty of perjury on December 5, 2013.

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(ECF No. 268-19 (Exh. 12) at 6-7).

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In response to Request No. 26, concerning documents between

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RFT and Panasonic about the Structural Failures Report, Defendant

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falsely supplemented: “Responding Party has produced documents

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responsive to this Request.” (Id. at 3).

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In response to Request No. 28 seeking documents concerning

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RFT’s “opinions, statements, and/or declarations regarding the repair

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frequency of any HME drive-thru product, for the period January 1,

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2005 to the present,” Defendant’s supplemental response stated

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“Responding Party has no documents responsive to this request.” (ECF

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No. 268-19 (Exh. 12) at 4-5).

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ii.

Responses to first set of interrogatories

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Defendant RFT served interrogatory responses on October 18,

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2013. (ECF No. 268-11 (Exh. 8) at 11). RFT’s lead counsel Thomas

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O’Leary signed the interrogatory responses on October 16, 2013. (Id. at

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9). Defendant Noorian signed the interrogatory responses under

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penalty of perjury on October 18, 2013. (Id. at 10).
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In response to Interrogatory No. 13, “identify all persons to whom

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you provided the ‘HM Electronics IQ Structural Failures’ document or

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any of the contents set forth therein,” Defendant RFT objected and

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stated that Mark Sullivan, who was no longer employed with RFT,

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could identify such persons. (Id. at 6).

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Defendant provided only objections in response to Interrogatory

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No. 20, “identify all person(s) with Panasonic who may have knowledge

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regarding the content and distribution of the ‘HM Electronics IQ

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Structural Failures’ document.” (Id. at 8-9).

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When Plaintiff challenged the sufficiency of these responses,

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Defendant supplemented them. (ECF No. 268-12 (Exh. 9)). The

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responses were signed by James C. Hildebrand for Thomas O’Leary,

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and were verified under penalty of perjury by Defendant Noorian. (Id.

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at 9).

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Defendant revised Interrogatory No. 13 to falsely state that “Mark

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Sullivan is the only person with knowledge to whom, if anyone, the ‘HM

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Electronics IQ Structural Failures’ document was distributed.” (Id. at

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6). Defendant also revised its response to Interrogatory No. 20,

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responding that RFT “is unaware of any person at Panasonic who may

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have knowledge regarding the content and distribution of the ‘HM

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Electronics IQ Structural Failures’ document.” (Id. at 8).

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iii.

Defendant RFT’s initial document collection

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Defendant RFT made its first document production in hard copy

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format on November 25, 2013. (ECF Nos. 101-6 at 2; 185 at 2; 268-2 ¶

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4). Internal emails show that RFT was gathering ESI for review on
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November 1, 4, and 5, 2013. (ECF No. 288-18 (Exh. 38); ECF No. 307-3

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(Exh. 50); ECF No. 307-4 (Exh. 51); ECF No. 307-5 (Exh. 52); ECF No.

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307-6 (Exh. 53)). Defendant Noorian testified he was not involved in

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collecting documents for production and that Helen Fansler, Executive

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Administrator, and Steve Combs, IT Director, “were the key people in

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gathering the documents.” (ECF No. 288-22 (Exh. 42) at 23:8-12).

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One email from Helen Fansler to Defendant Noorian entitled

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“Number 17 of Production,” asks whether Defendant Noorian wants

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“any more changes made to it,” and that Scott “already took out part

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numbers and one of the pictures.” (ECF No. 307-3 (Exh. 50) at 2). She

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finished, “[g]oes with No. 17…Your inspection, testing, repair and

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maintenance guidelines, procedures and/or instructions (including

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drafts), for HME’s Drive-Thru Headset Products…” (Id.; see also, ECF

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No. 307-5 (Exh. 52)).

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In two other emails dated November 4, 2013, with subject lines

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referring to “IQ Failures” from Helen Fansler to Defendant Noorian,

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she asks Defendant Noorian for his approval to forward attached emails

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to attorney Mark Goldenberg. (ECF No. 288-18 (Exh. 38) at 11; ECF

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No. 307-1 (Exh. 47B)). The emails she sought permission to forward to

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the attorney were Mark Sullivan sales emails to customers attaching

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the Structural Failures Report and related information. (Id.).

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Another email from Scott Crause, VP of Operations, to Scott

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Richardson asks for repair procedures for the HME 6000 AIO and the

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HME 2000 “for the thing I’m working on.” (ECF No. 307-4 (Exh. 51)).

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Scott Richardson found one, which he attached as “Hs6000
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procedure.doc,” but could not find the other, acknowledging “I know we

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had one but it is not in the folder anymore,” so he offered to “type one

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up quickly.” (Id.). A few days later, Ms. Fansler sent Scott Crause an

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email with an attachment titled “HS6000 laywer (2).doc,” explaining

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formatting changes she had made. (ECF No. 307-5 (Exh. 52)). A little

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while later, Scott Crause sent Ms. Fansler an email asking her to

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“rework this like you did the other one and send back to me.” (ECF No.

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307-6 (Exh. 53)).

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Although Defendant RFT gathered all these emails and their

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attachments in November 2013, it did not produce any of them for over

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a year. Defendant produced one of them on November 17, 2014, and did

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not produce the rest of them until January 8, 2015.

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iv.

Responses to second set of interrogatories

On July 9, 2014, Defendants served responses to Plaintiff’s second

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set of interrogatories. (ECF No. 288-8 (Exh. 22)). The objections were

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signed by Thomas O’Leary. (Id.). Defendant Noorian verified the

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responses under penalty of perjury. (Id.). Interrogatory No. 23 called

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for Defendants to identify the participants, date, and location of any

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meetings from January 1, 2012, to the present between RFT and

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Panasonic where HME was discussed. (Id. at 9). Defendants provided

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no substantive response, but included a page of objections, including

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objections to terms like “present,” “meetings,” “discussed,” “mentioned,”

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“Panasonic Systems Communications Company of North America,” and

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“referred to” on the grounds that they were “undefined, vague,

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ambiguous and lack foundation.” (Id.).
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Defendant supplemented this response in August of 2014 with
this false statement:

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RFT does not possess any information within its
possession, custody, or control that is responsive to
Plaintiff’s request identifying the persons present, as
well as the date and location of all meetings between
Defendant Panasonic, wherein Plaintiff was discussed,
mentioned, or referred to from January 1, 2012 to the
present date. However, the Defendant can identify that
Mark Sullivan and Lillia Taschuk—who are no longer
employed by the Defendant—may possess information,
if such may exist, responsive to this request because
they would have been the individuals involved in any
such meetings, had they taken place.

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(ECF No. 269-2 (Exh. 23) at 10-11). This supplemental response was

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signed by Thomas O’Leary on August 21, 2014, and verified by

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Defendant Noorian on August 22, 2014. (Id. at 11-12).

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v.

Document production assurances

In advance of a December 12, 2013, conference with Magistrate

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Judge McCurine, the parties submitted a joint letter to the court, signed

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by Brian Vanderhoof of LeClairRyan LLP, in which Defendant RFT

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stated that it had produced 1004 pages of documents, and insisted that

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“[a]ll other responsive documents have been made available for review

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and inspection as they are maintained in the usual course of business”

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in the form of 200 boxes of hard copy documents in warehouses in

23

Illinois.2 (ECF No. 125-11).

24
25

The boxes in Illinois warehouses did not contain the ESI documents at
issue in this motion.

2

16
12cv2884-BAS-MDD

1

As of January 9, 2014, Defendant had produced a “grand total” of

2

1,183 documents. (ECF No. 125:13:19-20). Mr. O’Leary wrote

3

Plaintiff’s counsel that “[a]ll documents responsive have been

4

produced….. R.F. Technologies diligently searched for responsive

5

documents….” (ECF No. 268-20 (Exh. 13) at 2). Mr. O’Leary further

6

stated “[n]o responsive documents were withheld on account of

7

privilege.” (Id. at 3).

8

On January 22, 2014, Defendant represented in a joint letter to

9

Magistrate Judge McCurine that it would search further for specified

10

categories of documents, including emails regarding the Report or the

11

average repair rate and cost information, as well as communications

12

between RFT and any third party about Plaintiff or its products. (See

13

ECF No. 185 (Magistrate Judge Burkhardt’s Order describing contents

14

of January 22, 2014 letter)).

15

During a February 28, 2014, court-ordered meet and confer

16

discussion, the following exchanges took place between counsel:

17

MS. HERRERA:
The next topic concerns RFT
product durability claims and particularly it’s
representations made in their structural failures report
and communications regarding the same. And the point
we made previously was that your client produced very
little documents on this point and you agree to
undertake an ESI search for further responsive
documents. And we’ve seen nothing further.

18
19
20
21
22
23
24

MR. O’LEARY: All right. All e-mails responsive to that
have been produced.

25
17
12cv2884-BAS-MDD

1
2
3
4
5
6
7
8

MS. HERRERA: Are you representing that your client
did undertake—
MR. O’LEARY: I’m not representing anything. I’m
saying that all e-mails have been produced.
MS. HERRERA: Well, I’m looking at our joint letter to
Judge [McCurine] on January 22nd, that you agreed that
your client will undertake a further ESI search for
responsive documents on RFT server, including, but not
limited to, e-mails received by former employee, Mark
Sullivan. So my question is did your client do that?

9
10
11
12
13
14
15
16

MR. O’LEARY: Yes. And the e-mails regarding [the] IQ
structural failures report have been produced. And I
think we have said in previously meet and confers,
Mark Sullivan’s work computer had very little on it.
MS. HERRERA: Is that the only place you searched is
his work computer?
MR. O’LEARY: That’s not what I said. The e-mails
with regard to the IQ structural failure report have been
produced.

17
18
19
20
21
22
23
24

MS. HERRERA: Just so I’m clear, you produced some
early on in the Bates label 172 to 262 range.
MR. O’LEARY: Yes.
MS. HERRERA: Have you produced anything beyond
that?
MR. O’LEARY: No. All the e-mails with regard to RFT
structural report were produced in the responsive
documents.

25
18
12cv2884-BAS-MDD

1
2
3
4

MS. HERRERA: And a search was undertaken beyond
Mark Sullivan’s information?
MR. O’LEARY: Yes.
(ECF No. 268-27 (Exh. 17) at 14-15).

5
6
7
8

MS. HERRERA: We’re just really surprised that
virtually–hardly any third-party communications have
been produced.
MR. O’LEARY: Everything’s been produced.

9
10

MS. HERRERA: Did your client conduct an ESI search
for communication[s]?

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

MR. O’LEARY: Everything has been produced.
MS. HERRERA: Well, that’s not really my question.
MR. O’LEARY: That’s my response, though. We
produced everything when we did that by checking
computers.
MS. HERRERA: I’d like to understand the methodology
you did conduct.
MR. O’LEARY: I didn’t conduct the ESI search, so I
don’t know the methodology. They were told to look for
documents on their computer. They did so and we
produced them. *** [T]hey obviously conducted the
search and produced what they had.
(Id. at 23:1-21).
Defendant had not reviewed or produced its ESI as of the date Mr.
O’Leary made these statements. It was not until March of 2014 that
19
12cv2884-BAS-MDD

1

Setec, one of Defendant’s ESI vendors, “was tasked by Thomas O’Leary

2

from LeClairRyan… to perform keyword searches against [data totaling

3

over 300 GB] to isolate and extract potentially relevant

4

communications.” (ECF No. 269-28 (Decl. of Todd Stefan, ESI vendor

5

Setec’s Vice President) ¶ 4). Defendant’s vendor Setec provided the

6

processed data to vendor iDiscover in two batches on April 25 and 28,

7

2014, and iDiscover later provided the processed data to Defendants’

8

attorneys. (Id. at ¶ 5).

9
10

3. Lack of Litigation Hold
During a December 2014 deposition limited to the purpose of

11

exploring and curing the alleged spoliation, Defendant Noorian could

12

not remember whether any attorney ever told him to preserve

13

information in connection with the lawsuit or told him not to destroy or

14

delete anything. (ECF No. 288-22 (Exhibit 42) at 13:7-20, 41-42). He

15

had never heard the term “Litigation Hold Notice” before. (Id. at 13:17-

16

20). When asked if “RFT ever had cause to send out something similar

17

to [] a Litigation Hold Notice telling employees to make sure not to

18

destroy and to preserve certain documents,” Defendant Noorian said

19

“no.” (Id. at 14:4-10).

20

Before this Court, at the hearing on these motions, the

21

LeClairRyan attorneys conceded that they had not done anything

22

specific to preserve ESI, because they were satisfied with Defendant

23

Noorian’s assertion that RFT does not delete documents in the normal

24

course of business.

25
20
12cv2884-BAS-MDD

1

RFT does not have a written policy requiring employees to

2

preserve and not delete data. (Id. at 41:10-18, 42:7-11). And, “nothing

3

was sent out” to employees in this case to tell them to preserve

4

documents. (Id. at 42:12-20). Defendant Noorian testified that “[a]s far

5

as I know, nobody destroys anything within our company,” but conceded

6

that deletion was possible, because not all employee work is performed

7

on computers backed up by the server, and “I’ve got 60 employees. I

8

can’t possibly check everybody’s behavior.” (Id. at 7:1-16, 9:11-20, 12-

9

13, 36:24-37:4, see also, 29:1-11; ECF No. 288-25 (Exh. A) at 11:5-12:4).

10

Defendant Noorian also testified that, to his knowledge, no efforts

11

had been made to see if anyone had deleted documents, or to recover

12

any documents that had been deleted. (Id. at 30:12-31:1). Defendants

13

have not provided declarations from any RFT employees stating that

14

they did not destroy, delete or alter any documents. At the hearing,

15

Defendants’ attorneys argued that they recently hired a computer

16

forensic expert to analyze Mark Sullivan’s laptop, but they conceded

17

that the computer forensic expert has not analyzed other RFT

18

employees’ computers to determine if documents were deleted.

19
20

4. ESI Withheld As Privileged Without Review Based
Solely On Limiting Search Terms

21

Defendant RFT’s attorneys withheld more than 150,000 non-

22

privileged documents as privileged even though no privilege review was

23

conducted, simply because they contained search terms like

24

“confidential.” (ECF No. 268-2 ¶ 8 (declaration of Brian Vanderhoof of

25

LeClairRyan LLP describing search term error)). Defendants’ lead
21
12cv2884-BAS-MDD

1

counsel temporarily delegated ESI discovery to another firm, which—

2

unbeknownst to anyone except RFT’s IT Director—used 59 exclusionary

3

search terms to withhold documents as privileged. (ECF No. 268-2).

4

Defendant RFT’s email program automatically affixes a confidentiality

5

footer to emails, so emails were withheld merely because they contained

6

the term “confidential.” The other exclusionary search terms similarly

7

resulted in other non-privileged documents being withheld. No one

8

reviewed the withheld documents, or even a sample of them, to

9

determine if they actually were privileged, and they were not listed on a

10
11

privilege log. (ECF No. 269-4 (Exh. 25) at 3).
Even so, Defendants’ lead counsel repeatedly confirmed that all

12

responsive non-privileged documents had been produced. On July 25,

13

2014, in response to Magistrate Judge Burkhardt’s July 3, 2014 Order

14

requiring completion of the document production, Thomas O’Leary sent

15

Plaintiff’s counsel a letter emphasizing that “during the pendency of the

16

Court’s decision on Plaintiff’s motion for discovery sanctions, RFT did

17

indeed produce all of the documents sought by Plaintiff.” (ECF No. 268-

18

30 (Exh. 19) at 4).

19

On August 8, 2014, Thomas O’Leary filed a declaration signed

20

under penalty of perjury in response to Magistrate Judge Burkhardt’s

21

July 3, 2014, discovery Order. (ECF No. 192). He declared, “during the

22

three-month pendency of the Court’s decision on Plaintiff’s motion, RFT

23

did indeed produce all of the documents sought by Plaintiff.” (Id. ¶ 3;

24

see also ¶¶ 4 and 5 (essentially restating same)). Mr. O’Leary attached

25

and described his July 25, 2014, letter to Plaintiff’s counsel. (Id. ¶ 6).
22
12cv2884-BAS-MDD

1

Mr. O’Leary then went through the discovery requests at issue one-by-

2

one and serially declared that RFT had produced all responsive

3

documents. For instance, he declared,

4
5
6
7
8
9

RFT was ordered to produce all emails and other
communications regarding the “HM Electronics IQ
Structural Failures” document it published. (Dkt. No.
185, p.12:21-22). However, RFT has already produced to
Plaintiff’s counsel its emails and other communications
regarding the “HM Electronics IQ Structural Failures”
document….

10

(Id. ¶ 22; see also id. ¶¶ 24, 26, 28, 30). Finally, Mr. O’Leary declared

11

that “RFT has already produced the documents resulting from the

12

[court-ordered] ESI searches to Plaintiff’s counsel.” (Id. ¶ 31). Mr.

13

O’Leary concluded by accusing Plaintiff of conducting a “tiresome and

14

incessant ‘discovery war’.” (Id. ¶ 33).

15

Also in response to Magistrate Judge Burkhardt’s Order, Stephen

16

Combs, RFT’s Director of IT, signed a declaration on September 3, 2014.

17

(ECF No. 268-5). Mr. Combs declared, in part, that he “provided a

18

wealth of electronic data to RFT’s electronic discovery vendor,”

19

including 4 Exchange Information Stores (including 146 individual

20

email accounts) and 17 PST files that totaled over 300 GB. (Id. at ¶ 14).

21

Mr. Combs further declared “[i]t is my understanding that these

22

email accounts were searched using key terms provided by Plaintiff. I

23

am informed and believe that the search terms utilized by the vendor

24

included the following: [listing 21 search terms]. I am further informed

25

and believe that these search terms were later revised to include certain
23
12cv2884-BAS-MDD

1

Boolean search limiters.” (Id.). Mr. Combs did not explain what

2

limiters were implemented for whom and for what purpose, and the

3

statement did not catch the litigants’ attention at the time. Mr. Combs

4

further declared that he understood that under Magistrate Judge

5

Burkhardt’s Order,

6
7
8
9
10
11
12
13

RFT must conduct a broad-based ESI search using
twenty-two agreed upon search terms, and it must
produce documents resulting from such ESI searches.
(Dkt. No. 185, p. 13:13-17). As set forth at paragraph 14
above, RFT has already produced the documents
resulting from the foregoing ESI searches to Plaintiff’s
counsel.
(Id. at ¶ 26).
The search term/privilege review error was finally discovered

14

when Plaintiff used Mr. Combs’ Declaration to show an inconsistency

15

between the amount of data Defendant RFT provided its vendor and the

16

amount of data produced, along with a comparison of documents

17

produced by third parties that had not been produced by Defendant. As

18

a result, Defendant produced these documents on a rolling basis from

19

September to November 2014.

20

5. Post-Discovery Document Dump

21

Defendant RFT also did not produce over 375,000 pages of

22

responsive documents until after the filing of this motion and the close

23

of discovery. Defendant explains this occurred because the ESI vendor

24

inadvertently failed to export all of the data to be produced. (ECF No.

25

269-28 (Stefan Decl.) ¶ 5). One of the ESI vendor’s employees, believing
24
12cv2884-BAS-MDD

1

the data export complete, disconnected the drive before all the data had

2

been exported. Defendants and their vendor discovered the error in

3

December 2014 while preparing their opposition to this motion. They

4

produced the newly-discovered data on a rolling basis between January

5

and April 2015. In May 2015, the Defendants’ attorneys produced still

6

more documents that had been improperly withheld. (ECF No. 309).

7
8
9

Discussion
A. Legal Standard
The Court's authority to sanction a party for spoliation of evidence

10

arises from both its inherent power to impose sanctions in response to

11

litigation misconduct and from Rule 37. See FED. R. CIV. P. 37(b)(2)(C);

12

Lewis v. Ryan, 261 F.R.D. 513, 518 (S.D. Cal. 2009). Rule 37(b)(2)(A)

13

states:

14
15
16
17

If a party or a party’s officer, director, or managing
agent—or a witness designated under Rule 30(b)(6) or
31(a)(4)—fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or
37(a), the court where the action is pending may issue
further just orders. They may include the following:

18
19

(i)

directing that the matters embraced in the
order or other designated facts be taken as
established for purposes of the action, as the
prevailing party claims;

(ii)

prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated
matters in evidence;

20
21
22
23
24
25

(iii) striking pleadings in whole or in part;
25
12cv2884-BAS-MDD

1
2

(iv)

staying further proceedings until the order is
obeyed;

(v)

dismissing the action or proceeding in whole or
in part;

(vi)

rendering a default judgment against the
disobedient party; or

3
4
5
6
7
8
9
10
11
12
13
14
15

(vii) treating as contempt of court the failure to obey
any order except an order to submit to a
physical or mental examination.
Subsection (b)(2)(C) adds:
Instead of or in addition to the orders above, the court
must order the disobedient party, the attorney advising
that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless
the failure was substantially justified or other
circumstances make an award of expenses unjust.

16

The Court also has authority to sanction parties and counsel

17

under Rule 26(g). Rule 26(g) requires a signature by a party or its

18

counsel on discovery responses and objections, and states:

19
20
21
22
23
24
25

By signing, an attorney or party certifies that to
the best of the person’s knowledge, information, and
belief formed after a reasonable inquiry:
(A) with respect to a disclosure, it is complete and
correct as to the time it is made; and
(B) with respect to a discovery request, response,
or objection, it is:
26
12cv2884-BAS-MDD

1
2

i. consistent with these rules and warranted
by existing law….;

3
4
5
6
7

ii. not interposed for an improper purpose, such
as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation; and
iii. neither unreasonable nor unduly
burdensome or expensive….

8

FED. R. CIV. P. 26(g)(1). The Court, “on motion or on its own, must

9

impose an appropriate sanction on the signer, the party on whose behalf

10

the signer was acting, or both,” when a certification violates Rule

11

26(g)(1) without substantial justification. FED. R. CIV. P. 26(g)(3). Rule

12

26(g) is “cast in mandatory terms.” Chambers v. NASCO, Inc., 501 U.S.

13

32, 51 (1991); Advisory Committee Notes to 1980 Amendment to FED. R.

14

CIV. P. 26(g) (“Because of the asserted reluctance to impose sanctions on

15

attorneys who abuse the discovery rules,… , Rule 26(g) makes explicit

16

the authority judges now have to impose appropriate sanctions and

17

requires them to use it.”). The mandate extends to whether a court

18

must impose sanctions, though not to which sanction to impose. Id.

19

Federal courts do not require perfection in ESI discovery. The

20

Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am.

21

Securities, LLC, 685 F.Supp.2d 456, 461 (S.D.N.Y.); see also Advisory

22

Committee Notes to proposed new Rule 37(e) (noting that “perfection in

23

preserving all relevant electronically stored information is often

24

impossible,” and “‘[t]his rule recognizes that reasonable steps’ to

25
27
12cv2884-BAS-MDD

1

preserve suffice; it does not call for perfection.”). The touchstone of

2

discovery of ESI is reasonableness. (Id.). However, as one court noted,

3

If litigants are to have any faith in the discovery
process, they must know that parties cannot fail to
produce highly relevant documents within their
possession with impunity. Parties cannot be permitted
to jeopardize the integrity of the discovery process by
engaging in halfhearted and ineffective efforts to
identify and produce relevant documents.

4
5
6
7
8
9

Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448, 463 (S.D. Ohio

10

1995). “Litigation is not a game. It is the time-honored method of

11

seeking the truth, finding the truth, and doing justice.” Haeger v.

12

Goodyear Tire & Rubber Co., --F.3d--, 6 n.1 (9th Cir. July 20, 2015)

13

(quoting Haeger v. Goodyear Tire and Rubber Co., 906 F.Supp.2d 938,

14

941 (D. Ariz. 2012)).

15
16

B. Analysis
The Court notes that, on August 3, 2015, the parties filed a joint

17

notice that they are in the process of finalizing a settlement. (ECF No.

18

416). The Court’s decision to impose sanctions under Rule 26(g)(3)

19

outlives the anticipated settlement and voluntary dismissal of the case.

20

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); Haeger v.

21

Goodyear Tire & Rubber Co., --F.3d--, *18-19, No. 12-17718 (9th Cir.

22

July 20, 2015); In re Exxon Valdez, 102 F.3d 429, 431 (9th Cir. 1996);

23

Greenberg v. Sala, 822 F.2d 882, 885 (9th Cir. 1987); Heinrichs v.

24

Marshall and Stevens, Inc., 921 F.2d 418, 420-421 (2d Cir. 1990);

25

Fosselman v. Gibbs, No. C 06-0375-PJH-PR, 2010 WL 1008264, *4 (N.
28
12cv2884-BAS-MDD

1

D. Cal. March 18, 2010), aff’d, 473 Fed. Appx. 639 (9th Cir. 2012). Even

2

if Plaintiff were to withdraw its motion for sanctions under Rule 37,

3

which it did not do in the notice of settlement or at the hearing, (ECF

4

Nos. 416, 419), the Court is required to impose sanctions for Rule 26(g)

5

violations made without substantial justification. FED. R. CIV. P.

6

26(g)(3); Chambers, supra, 501 U.S. at 51.

7
8

1. Rule 26(g)
The point of Rule 26(g) is to hold someone personally responsible

9

for the completeness and accuracy of discovery responses. Rule 26(g)

10

requires a signature by a party or its counsel on discovery responses

11

and objections, certifying “that to the best of the person’s knowledge,

12

information, and belief formed after a reasonable inquiry” the response

13

or objection is “consistent with these rules and warranted by existing

14

law” and “not interposed for an improper purpose, such as to harass,

15

cause unnecessary delay, or needlessly increase the cost of litigation.

16

FED. R. CIV. P. 26(g)(1) (emphasis added). Here, both Defendant

17

Noorian and attorney Thomas O’Leary certified discovery responses on

18

behalf of Defendant RFT that were false, misleading, and made without

19

first conducting a reasonable inquiry.

20

Defendant Noorian knew, from his own personal involvement and

21

from his review of the documents he requested from Mark Sullivan in

22

December 2012, that responsive documents existed, but nevertheless

23

signed discovery responses denying the existence of those documents.

24

Defendant RFT, through its representative Noorian, also falsely signed

25

discovery responses, thereby denying documents that it knew or should
29
12cv2884-BAS-MDD

1

have known existed. Attorney Thomas O’Leary signed discovery

2

responses without conducting a reasonable inquiry as required by Rule

3

26. There can be no doubt that Defendants and their attorneys failed to

4

make reasonable inquiries, because Defendants’ lead attorneys were

5

able to identify masses of responsive ESI in September and December

6

when they finally inquired of their vendors about the ESI. These

7

improper certifications contributed to the concealment of documents

8

that were relevant and favorable to Plaintiff, caused unnecessary delay

9

and needlessly increased the cost of litigation.

10

a.

Document Request No. 23
i.

11

Request

Request No. 23 sought documents concerning “the creation,

12
13

receipt, use, publication and/or distribution of the DOCUMENT entitled

14

‘HM Electronics IQ Structural Failures.’” (ECF No. 268-15 (Exh. 11) at

15

16).

16
17

ii.

Response

Defendant asserted objections and then falsely stated that it “may

18

have responsive documents, but is uncertain at this time.” (ECF No.

19

268-15 (Exh. 11) at 16). Attorney O’Leary signed this response on

20

October 16, 2013. (ECF No. 268-27 (Exh. 11) at 10).

21
22

iii.

Why Response Was False When Signed

As of the date Mr. O’Leary signed this response, Defendants knew

23

that they had documents concerning the creation, receipt, use, and

24

distribution of the Structural Failures Report. Defendant RFT’s CEO,

25

Noorian, had reviewed Mr. Sullivan’s email and zip file containing these
30
12cv2884-BAS-MDD

1

very documents on December 6, 2012, as he admitted two years later

2

during a deposition on December 18, 2014. In his June 11, 2014,

3

deposition, Defendant Noorian testified that he was aware of the

4

Structural Failures Report as of June 5, 2012. Mr. Noorian and many

5

other RFT executives and marketing personnel participated in emails

6

guiding the creation of the Structural Failures Report. (See e.g., ECF

7

No. 268-21 (Exh. 14) at 5 (May 5, 2012 email from Mark Sullivan to

8

Philip Tondelli, Scott Crause, Scott Richardson, Jim Voiner, Michael

9

Murdock, with courtesy copy to Michelle Greenwood, Bob Noorian, Tony

10

DeLise, Emilio Roman, Lauren Lenartowski, Fiona Noorian, Jennifer

11

Morales, Barb Heimkamp, and Kay Prosser discussing creation and

12

planned distribution of Structural Failures Report) and ECF No. 288-6

13

(Exh. 16) (Noorian Deposition acknowledging receipt of several similar

14

emails)). Defendant also should have reviewed its ESI for production in

15

the 10 months since the action had been filed on December 5, 2012.

16
17

iv.

Inquiry Attorneys Should Have Made

Attorney O’Leary would have known responsive documents

18

existed had he made a reasonable inquiry. At the hearing, attorneys

19

O’Leary and Vanderhoof of LeClairRyan LLP argued primarily that it

20

was reasonable to rely on Mr. Noorian’s assertions. They also asserted

21

that it would not have been reasonable to have reviewed all of the ESI

22

at that time.

23

On October 16, 2013, when Mr. O’Leary signed this response to

24

request for document production, the attorneys had not even collected,

25

much less reviewed Defendant RFT’s documents. The evidence in the
31
12cv2884-BAS-MDD

1

record shows that Defendant RFT collected ESI in November 2013,

2

after attorney O’Leary had already signed the responses in October

3

2013, that Mr. O’Leary did not give the data for processing to the ESI

4

vendors until March 2014, and that the processed data was not

5

returned by the vendors for the attorneys to review until after April

6

2014.

7

The Advisory Committee Notes on Rule 26(g) explain “the

8

signature certifies that the lawyer has made a reasonable effort to

9

assure that the client has provided all the information and documents

10

available to him that are responsive to the discovery demand.” FED. R.

11

CIV. P. 26, subdivision (g) Advisory Committee Notes (1980

12

Amendment) (emphasis added). At the time Mr. O’Leary signed this

13

response, he had made no effort to assure that Defendant RFT had

14

provided all the documents to the attorneys. The attorneys did not

15

describe what documents they reviewed at the meeting before the initial

16

responses were signed, how those documents were selected, by whom, or

17

why (or whether) they believed those documents to be representative of

18

the ESI. In the court-ordered meet and confer on February 27, 2014, in

19

response to Plaintiff’s question about the methodology used to collect

20

documents in light of the small amount of responsive documents

21

produced, Mr. O’Leary explained simply “I didn’t conduct the ESI

22

search, so I don’t know the methodology. They were told to look for

23

documents on their computer.” (ECF No. 268-27 (Exh. 17) at 23).

24
25

Although Mr. O’Leary was not required to review every single
page of the ESI before signing the written discovery responses, it was
32
12cv2884-BAS-MDD

1

not reasonable for him to sign the document production responses

2

before the ESI was even collected. The Court recognizes that Mr.

3

O’Leary and his firm did not substitute into the case as lead counsel

4

until one month before signing these responses. Nevertheless, Mr.

5

O’Leary and his firm should have been more transparent with

6

Plaintiff’s attorneys about the data collection process and the amount of

7

data involved. Defendant’s attorneys should have sought an extension

8

of the time to respond to discovery responses so that the document

9

collection and some sampling could occur prior to certifying responses.

10

Defendant could have filed a motion for protective order or an ex parte

11

discovery motion seeking to extend the time to respond detailing the

12

large amount of ESI, the time and technology constraints, and the

13

Defendant’s proposed collection and processing methodology. Instead of

14

familiarizing himself with his client’s ESI and embracing transparency

15

and collaboration in the discovery process, lead counsel chose to sign

16

false discovery responses without making any efforts to assure that the

17

responses accurately reflected the Defendant’s documents.

18

It was also not reasonable to sign discovery responses denying the

19

existence of documents based solely on Defendant Noorian’s word.

20

While the Advisory Committee Notes on Rule 26(g) do provide that “the

21

attorney may rely on assertions by the client” in making a reasonable

22

inquiry, that is true only “as long as that reliance is appropriate under

23

the circumstances.” FED. R. CIV. P. 26, subdivision (g) Advisory

24

Committee Notes (1980 Amendment). Asking Mr. Noorian and

25

accepting his response without asking other employees or collecting or
33
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1

sampling documents was not reasonable. The attorneys did not explain

2

what questions they asked Mr. Noorian and the other managers at the

3

pre-response meeting, identify which managers were present, or explain

4

why those particular managers were selected rather than other

5

employees to discuss the existence of responsive documents. The

6

attorneys did not say whether they asked any of the other managers at

7

their meetings about these documents and how they responded—a

8

critical point, because there were many other executive level RFT

9

employees besides Noorian who knew responsive documents existed.

10

The attorneys should have asked Philip Tondelli, Steve Crause, Steve

11

Combs, Helen Fansler (Executive Assistant), and Fiona Noorian (all of

12

whom were high level employees privy to responsive emails) whether

13

they knew of the existence of documents. The attorneys could have

14

identified these custodians by virtue of their positions, even without the

15

benefit of reviewing any of the responsive documents. Even if

16

Defendant Noorian lied to his attorneys or forgot about the existence of

17

documents, a reasonable inquiry made to any of these other custodians

18

would have revealed the existence of responsive documents.

19

b.

Document Request No. 26
i.

20

Request

Request No. 26 sought documents between RFT and Panasonic

21
22

about the Structural Failures Report. (ECF No. 268-15 (Exh. 11) at 16-

23

17).

24
25
34
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1
2

ii.

Response

Defendant RFT rested on a relevancy objection in refusing to

3

provide documents in response to Request No. 26 for documents

4

between RFT and Panasonic about the Structural Failures Report. (Id.

5

at 16-17). Attorney O’Leary signed this response on October 16, 2013.

6

(ECF No. 268-27 (Exh. 11) at 10).

7

iii.

Why Response Was False When Signed

8

The relevancy objection, signed by Thomas O’Leary on October 16,

9

2013, was meritless, because the distribution of the Structural Failures

10

Report to Panasonic by RFT is central to Plaintiff’s trade libel claim as

11

alleged in the Complaint filed on December 5, 2012. The relevance of

12

the distribution of the Report is so obvious that Defendant Noorian sent

13

an email to Mark Sullivan instructing him to stop distributing and

14

destroy the Report in December 2012, soon after Defendant Noorian

15

reviewed the Complaint on December 5, 2012.

16
17

iv.

Supplemental Response

In December 2013 Defendant supplemented: “Responding Party

18

has produced documents responsive to this Request.” (Id. at 3).

19

Defendant Noorian signed this response on December 5, 2013 and

20

attorney O’Leary signed this response on December 12, 2013.

21
22
23

v.

Why Supplemental Response Was False
When Signed

Although Defendant had produced some documents by mid-

24

December 2013, it did not produce the most pertinent documents, as

25

made apparent by the documents Defendant produced from September
35
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1

2014, through April 2015, following discovery of the search

2

term/privilege review and data export errors. In fact, as of December

3

12, 2013, Defendant had only produced 1004 pages of hard copy

4

documents and Mr. O’Leary had not even provided Defendant’s ESI to

5

the ESI vendors for processing, much less reviewed it to determine

6

whether any responsive documents remained to be produced.

7

vi.

Inquiry Attorneys Should Have Made

8

Lead counsel should not have certified that all responsive

9

documents had been produced before looking at the client’s ESI data.

10

Although lead counsel was not required to examine each page of ESI

11

prior to signing this response, he or his delegates should have sampled

12

the ESI and let Plaintiff’s counsel and the Court know that the

13

representation that all responsive documents had been produced was

14

based on a sampling, and informed them of the sampling methodology

15

used. Alternatively, lead counsel could have sought an extension based

16

on a detailed explanation of the proposed methodology and the

17

technological and time constraints necessitating extension.

18
19
20

c.

Document Request No. 28
i.

Request

Request No. 28 sought documents concerning RFT’s “opinions,

21

statements, and/or declarations regarding the repair frequency of any

22

HME drive-thru product, for the period January 1, 2005 to the present.”

23

(ECF No. 268-16 (Exh. 11) at 1).

24
25
36
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1

ii.

Response

2

Defendant RFT asserted objections and refused to produce

3

responsive documents on the basis that “it could be thousands of

4

documents every year.” Attorney O’Leary signed this response on

5

October 16, 2013. (ECF No. 268-16 (Exh. 11) at 1).

6

iii.

Why This Response Was Improper

7

This was an improper certification because neither Defendant nor

8

its attorneys had made any inquiry into whether responsive documents

9

existed or how many responsive documents existed at the time Mr.

10

O’Leary signed the response. The failure to make a reasonable inquiry

11

is patent from the speculative phrase (“could be thousands…”) used. On

12

the date Mr. O’Leary signed this response, Defendant’s ESI had not

13

been collected or reviewed. Defendant was collecting ESI as late as

14

November 2013—one month after this was signed, and Mr. O’Leary did

15

not task the ESI vendor with processing Defendant’s ESI until March

16

2014—several months later. Rather than sign this discovery response

17

refusing to produce documents based on speculation about what their

18

volume might be, Mr. O’Leary should have familiarized himself with his

19

client’s data structures and engaged with Plaintiff’s counsel and the

20

court in meaningful, collaborative discussions about the volume of ESI,

21

the ESI production methodology, and the timetable required.

22
23

iv.

Supplemental Response

Defendant’s December 2013 supplemental response stated

24

“Responding Party has no documents responsive to this request.” (ECF

25

No. 268-19 (Exh. 12) at 4-5). Defendant Noorian certified this response
37
12cv2884-BAS-MDD

1

on December 5, 2013, and attorney O’Leary signed the response on

2

December 12, 2013.

3

v.

When Signed

4
5

Why Supplemental Response Was False

Defendant’s response that it had no documents concerning RFT’s

6

“opinions, statements, and/or declarations regarding the repair

7

frequency of any HME drive-thru product” was false. Mark Sullivan

8

produced emails showing Defendant Noorian knew of such documents

9

no later than December 6, 2012, at his April 1, 2014, deposition. During

10

Defendant Noorian’s June 11, 2014, deposition, he admitted that he was

11

aware of the Structural Failures Report and internal emails containing

12

opinions and statements about HME’s repair frequency as of June 5,

13

2012. (ECF No. 288-6 (Exh. 16) at 5-6). From September 2014, through

14

April 2015, after discovery of the search term/privilege review and data

15

export errors, Defendant produced hundreds of responsive documents.

16

The late-produced documents and Defendant Noorian’s limited purpose

17

deposition show Defendant Noorian knew this response was false when

18

he signed it on December 5, 2013, because he had personally reviewed

19

Mark Sullivan’s December 6, 2012, email and zip file containing

20

responsive documents one year earlier.

21
22

vi.

Inquiry Attorneys Should Have Made

As explained in the preceding sections, Mr. O’Leary’s reliance on

23

Defendant Noorian’s assertions was not reasonable under the

24

circumstances. Mr. O’Leary should have identified other key employees

25

and asked them whether responsive documents existed. As Defendant
38
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1

Noorian himself admitted during the limited purpose deposition, he

2

cannot control 60 employee’s behavior. While Mr. O’Leary did not have

3

to ask every employee whether they had made such statements in

4

writing, it was unreasonable to only ask one person. A reasonable

5

inquiry would have involved asking a few key employees, including at

6

least one marketing employee. Mr. O’Leary also should have made sure

7

at least some sampling of ESI was reviewed before certifying that no

8

responsive documents existed. So certifying before the ESI had even

9

been processed, much less sampled or reviewed, was not reasonable.

10
11

d.

Interrogatory No. 13
i.

Request

12

Interrogatory No. 13 demands: “identify all persons to whom you

13

provided the ‘HM Electronics IQ Structural Failures’ document or any

14

of the contents set forth therein.” (ECF No. 268-11 (Exh. 8) at 6).

15
16

ii.

Response

Defendant RFT objected and stated that Mark Sullivan, who was

17

no longer employed with RFT, could identify such persons. (Id. at 6).

18

Defendant Noorian signed the interrogatory responses under penalty of

19

perjury on October 18, 2013, and attorney O’Leary signed the discovery

20

responses on October 16, 2013. (Id. at 9, 10).

21
22

iii.

Why This Response Was False

This response was false because Defendant could have identified

23

the recipients and knew that Mark Sullivan was not the only person

24

who could do so. The ESI productions by RFT from September 2014,

25

through April 2015, included emails that RFT had at the time and could
39
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1

have used to compile a list of recipients or produced in lieu of compiling

2

a list. ESI also showed that Defendants knew Mark Sullivan was not

3

the only RFT employee who distributed the Report. (ECF No. 288-16

4

(Exh. 34)). The documents show Defendant Noorian attended a July

5

2012 meeting, and that Defendant Noorian personally reviewed Mark

6

Sullivan’s documents showing distribution in December 2012. Despite

7

acquiring knowledge of responsive documents in July and December

8

2012, Defendant Noorian signed the interrogatory responses under

9

penalty of perjury.

10
11

iv.

Supplemental Response

Defendant also supplemented this responses after Plaintiff

12

challenged their sufficiency. (ECF No. 268-12 (Exh. 9)). Defendant

13

Noorian signed the supplemental responses on December 5, 2013, and

14

James C. Hildebrand signed them for Thomas O’Leary on December 12,

15

2013. (Id.). Defendant revised Interrogatory No. 13 to insist that

16

“Mark Sullivan is the only person with knowledge to whom, if anyone,

17

the ‘HM Electronics IQ Structural Failures’ document was distributed.”

18

(Id. at 6).

19
20

v.

Why The Supplemental Response Was False

Mark Sullivan was not the only person with knowledge of to whom

21

the Report had been distributed, and Defendants Noorian and RFT

22

knew it at the time this supplemental response was signed. Many RFT

23

executives and employees, including Noorian, had knowledge to whom

24

the Report was distributed as a result of participation in the July 3,

25

2012, Panasonic meeting. Defendant Noorian and Helen Fansler also
40
12cv2884-BAS-MDD

1

knew of its distribution from Defendant Noorian’s review of Mark

2

Sullivan’s December 2012, email and zip file. Michael Murdock, RFT’s

3

Regional Sales Manager, also had knowledge of the Report recipients,

4

because he personally emailed the Report to at least one prospect.

5

(ECF No. 288-16 (Exh. 34)).

6
7

vi.

Inquiry Attorneys Should Have Made

Before certifying these responses stating that only Mark Sullivan

8

could identify the recipients of the Report, lead counsel should have

9

asked other RFT employees besides Defendant Noorian, including at

10

least one marketing employee. The attorneys also should have

11

conducted an initial review or sampling of documents. The attorneys

12

also should have worked with opposing counsel and the court in a

13

transparent and collaborative manner to obtain an extension of time to

14

adequately review documents.

15
16
17

e.

Interrogatory No. 20
i.

Request

Interrogatory No. 20 requested: “identify all person(s) with

18

Panasonic who may have knowledge regarding the content and

19

distribution of the ‘HM Electronics IQ Structural Failures’ document.”

20

(ECF No. 268-11 (Exh. 8) at 8-9).

21
22

ii.

Response

On October 16, 2013, RFT’s lead counsel Thomas O’Leary signed

23

interrogatory responses that included only objections in response to this

24

request. (Id. at 9). Defendant objected that the request was vague,

25

ambiguous and burdensome, that it sought irrelevant information, and
41
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1

that it sought information in the control of third parties and not

2

available to Defendant.

3

iii.

Why This Response Was Improper

4

These objections were frivolous and false when made. The

5

identity of Panasonic employees who had knowledge of the Report was

6

relevant to the action, and this interrogatory was an appropriate way

7

for Plaintiff to identify who at Panasonic—a large company and one of

8

Plaintiff’s competitor’s—might have discoverable information.

9

Defendant’s objection that the information was not available to it was

10

false, and it knew that response to be false when made. Noorian and

11

other RFT employees had such knowledge from their direct

12

participation in the July 3, 2012, meeting with Panasonic and post-

13

meeting emails, as shown by a July 16, 2012, email produced on

14

September 26, 2014. (ECF No. 288-7 (Exh. 21)).

15
16

iv.

Supplemental Response

Defendant doubled-down on its response to Interrogatory No. 20,

17

supplementing that RFT “is unaware of any person at Panasonic who

18

may have knowledge regarding the content and distribution of the ‘HM

19

Electronics IQ Structural Failures’ document.” (ECF No. 268-12 (Exh.

20

9) at 7). The supplemental response was signed by Defendant Noorian

21

on December 5, 2013, and by James Hildebrand for Thomas O’Leary on

22

December 12, 2013. (Id. at 7-8).

23
24
25
42
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1

v.

Why The Supplemental Response Was False
and Made Without Reasonable Inquiry

2

That statement was also false. Noorian and other RFT employees

3
4

had knowledge from their direct participation in the July 3, 2012,

5

meeting with Panasonic and post-meeting emails, as shown by a July

6

16, 2012, email produced on September 26, 2014. (ECF No. 288-7 (Exh.

7

21)).
vi.

8

Inquiry Attorneys Should Have Made

9

Mr. O’Leary’s certification was made without reasonable inquiry.

10

Before certifying these responses stating that only Mark Sullivan could

11

identify the recipients of the Report, lead counsel should have asked

12

other RFT employees besides Defendant Noorian, and should have

13

asked at least one marketing employee. The attorneys also should have

14

conducted an initial review or sampling of documents. The attorneys

15

also should have worked with opposing counsel and the court in a

16

transparent and collaborative manner to obtain an extension of time to

17

adequately review documents.

18
19
20

f.

Interrogatory No. 23
i.

Request

Interrogatory No. 23 called for Defendants to identify the

21

participants, date, and location of any meetings from January 1, 2012,

22

to the present between RFT and Panasonic where HME was discussed.

23

(ECF No. 288-8 (Exh. 22) at 9).

24
25
43
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1
2

ii.

Response and Supplemental Response

At first, Defendants provided only frivolous objections, and then

3

supplemented this response in August 2014, by insisting that only

4

Mark Sullivan and Lillia Tuschuk had knowledge of any meetings, if

5

any occurred. (ECF No. 269-2 (Exh. 23) at 10-11). The responses were

6

signed July 9, 2014, by Defendant Noorian and attorney Thomas

7

O’Leary. (ECF No. 288-8 (Exh. 24)). The supplemental responses were

8

signed by Defendant Noorian on August 22, 2014, and by attorney

9

O’Leary on August 21, 2014. (ECF No. 269-2 (Exh. 23) at 10-11).

10

iii.

Why Responses Were False

11

In fact, Defendant Noorian himself attended at least one such

12

meeting with Panasonic on July 3, 2012, along with Philip Tondelli,

13

Mark Sullivan, Michelle Greenwood, and Allen Hege of RFT. (ECF No.

14

288-7 (Exh. 21)). This meeting only came to light when Defendant

15

finally produced an email chain exposing the meeting on September 26,

16

2014. (Id.). The email was distributed amongst Michelle Greenwood,

17

Philip Tondelli, Michael Murdock, Mark Sullivan, and Panasonic

18

personnel on July 16, 2012. (Id.). The attachments summarize the

19

meeting, list the participants, note Defendant Noorian’s direct

20

participation in the meeting, describe discussions about Plaintiff’s

21

headset repair rates, durability, and quality, and note that Mr. Sullivan

22

provided and discussed a document, the description of which matches

23

the Structural Failures Report. (Id.).

24
25

Before this Court, at the hearing on the instant motions,
Defendants’ attorneys asserted that Defendant Noorian did not
44
12cv2884-BAS-MDD

1

remember this meeting at the time, and that he only attended the first

2

few minutes of the meeting. Defendants did not offer a declaration from

3

Noorian attesting to these statements. Even if Defendant Noorian only

4

attended a few minutes of this meeting, that does not excuse Defendant

5

or its attorneys from consulting other high level executives, marketing

6

employees, or document custodians to determine if RFT had attended

7

such meetings through employees besides Mr. Noorian. The response

8

was false when made, and a reasonable inquiry of other key RFT

9

employees would have revealed the truth.

10
11

g.

Offensive Use of False Discovery Responses

Defendants and their attorneys also used the false discovery

12

certifications as a weapon to ward off further inquiry into the

13

sufficiency of the document production. For instance, in its April 14,

14

2014, opposition to Plaintiff’s motion to compel further production of

15

documents, Defendant argued:

16
17
18
19
20
21

For several of HME’s document requests, RFT’s
counsel has also unequivocally indicated that it does not
possess responsive documents. In other words, RFT
cannot produce documents it does not have. …RFT has
conducted multiple diligent electronic searches, has
scavenged for numerous documents, and has run several
reports in order to provide HME with responsive
documents.

22

(ECF No. 125 at 5, 6:20-26). There can be no question now that the

23

false responses and improper objections were interposed for the

24

improper purpose of concealing these critical documents, causing

25
45
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1

unnecessary delay, or increasing the cost of litigation, and were made

2

without anything remotely approaching “reasonable inquiry.”3
h.

3

Sanctions Are Warranted

Had Defendant correctly answered these discovery requests,

4
5

Plaintiff would have been able to root out the non-production of the

6

email confirming the meeting earlier during discovery. Defendants and

7

their attorneys, by certifying these improper responses, concealed the

8

existence of documents that they knew or should have known existed,

9

causing unnecessary delay and needlessly increasing the cost of

10

litigation.

11

The Court finds that it must impose appropriate sanctions against

12

Defendants Noorian and RFT for improper certifications of the following

13

responses: Request for Production of Documents Responses Nos. 25, 26

14

and 28; Interrogatory Responses 13, 20 and 23. Further, the Court

15

must impose appropriate sanctions against attorney Thomas O’Leary

16

and Defendant RFT for improper certifications of the following

17

responses: Requests for Production Responses Nos. 23, 25, 26 and 28;

18

Interrogatories Nos. 13, 20 and 23.

19
20
21
22
23
24
25

Defendant’s use of the improperly certified discovery responses to
conceal documents and evade sanctions was an abuse of discovery and
fraud upon the court. Though Rule 11 sanctions may be warranted for
this and similarly false filings noted herein, the Court declines to
consider Rule 11 sanctions in this instance.
3

46
12cv2884-BAS-MDD

1
2
3

2. Rule 37
a.

Current Rule 37

When considering sanctions under Rule 37, courts generally

4

consider three factors: “(1) the degree of fault of the party who altered

5

or destroyed the evidence; (2) the degree of prejudice suffered by the

6

opposing party; and (3) whether there is a lesser sanction that will

7

avoid substantial unfairness to the opposing party.” Apple v. Samsung,

8

888 F.Supp.2d 976, 992 (N.D. Cal. 2012) (“Apple II”).

9

As Rule 37 is currently applied in the Ninth Circuit, “a party's

10

destruction of evidence need not be in ‘bad faith’ to warrant a court's

11

imposition of sanctions.” In re Napster, Inc. Copyright Litigation, 462

12

F.Supp.2d 1060, 1066 (9th Cir. 2006) (citing Glover v. BIC Corp., 6 F.3d

13

1318, 1329 (9th Cir. 1993)). District courts may impose sanctions

14

against a spoliating party that merely had “simple notice of ‘potential

15

relevance to the litigation.’” Glover, 6 F.3d at 1329 (quoting Akiona v.

16

United States, 938 F.2d 158, 161 (9th Cir. 1991)).

17
18

i.

Fault
a. Failure to Implement Litigation Hold

19

Attorneys have a duty to effectively communicate a “litigation

20

hold” that is tailored to the client and the particular lawsuit, so the

21

client will understand exactly what actions to take or forebear, and so

22

that the client will actually take the steps necessary to preserve

23

evidence. The Pension Comm., supra, 685 F.Supp.2d at 462; Philips

24

Electronics North America Corp. v. BC Technical, 773 F.Supp.2d 1149,

25

1195, 1204-1206 (D. Utah 2011) (litigation hold must be directed to
47
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1

appropriate employees, must be conveyed in a manner that ensures

2

recipients read and follow it, must tell them what the case is about, and

3

must identify categories of documents to be preserved).

4

Indeed, the Advisory Committee Notes on the proposed new Rule

5

37(e) advises “[i]t is important that counsel become familiar with their

6

clients’ information systems and digital data—including social media—

7

to address [preservation issues].” The attorney must learn their client’s

8

organizational structure and computer data structure in order to

9

adequately advise the client of the duty and method for preserving

10

evidence. See, e.g., Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-

11

B-BLM, 2010 WL 1336937, at *2-*3 (S.D. Cal. Apr. 2, 2010). After a

12

litigation hold has been implemented, counsel has a continuing duty to

13

monitor a client’s compliance with a litigation hold. Zubulake v.

14

Warburg, LLC, 229 F.R.D. 422, 423 and 431-432 (S.D.N.Y. 2004)

15

(Zubulake V).

16

The State Bar of California recently issued a Formal Opinion that

17

advises: “Prompt issuance of a litigation hold may prevent spoliation of

18

evidence, and the duty to do so falls on both the party and the outside

19

counsel working on the matter.” California State Bar Formal Opn. No.

20

2015-193 at 3 n.6. Though the opinion is new, the principles and

21

guidance in the opinion are not new. The Opinion summarizes,

22

Attorneys handling e-discovery should be able to
perform (either by themselves or in association with
competent counsel or expert consultants) the following:

23
24
25



Initially assess e-discovery needs and issues, if any;
48
12cv2884-BAS-MDD

1
2
3
4
5
6
7







8
9
10
11
12
13
14





Implement/cause to implement appropriate ESI
preservation procedures;
Analyze and understand a client’s ESI systems and
storage;
Advise the client on available options for collection
and preservation of ESI;
Identify custodians of potentially relevant ESI;
Engage in competent and meaningful meet and
confer with opposing counsel concerning an ediscovery plan;
Perform data searches;
Collect responsive ESI in a manner that preserves
the integrity of the ESI; and
Produce responsive non-privileged ESI in a
recognized and appropriate manner.

Id. at 3-4 (emphasis added).
Defendants’ attorneys ignored these basic principles. Defendants’

15

attorneys apparently never sent Defendants a “litigation hold” letter—

16

much less one tailored to the data and organizational structures of this

17

client. Defendants’ lead counsel never learned the infrastructure of the

18

Defendant’s ESI nor advised Defendants on the proper methodology for

19

searching ESI, and did not monitor compliance. Defendant Noorian and

20

Mr. O’Leary should both have been key players in data collection, yet

21

both claim to have had no involvement in gathering ESI. To the extent

22

lead counsel chose to delegate its data preservation and litigation hold

23

duties, it was incumbent on lead counsel to supervise the employees and

24

attorneys to whom those duties were delegated. See, e.g., id. at 5

25

(describing duty to supervise delegates).
49
12cv2884-BAS-MDD

1

Yet, even after the client was ordered to conduct an ESI search,

2

and while assuring the court and opposing counsel that an ESI search

3

had occurred, Thomas O’Leary could not answer simple questions about

4

the ESI search methodology used. (ECF No. 268-27 (Exh. 17) at 23).

5

Worse, he disavowed any involvement or knowledge of the search

6

methodology. (Id.). It is no surprise Mr. O’Leary could not answer

7

questions about the ESI search methodology used; it had not even

8

begun. It was not until the next month that Mr. O’Leary himself tasked

9

the vendor who later performed the ESI searches. The record shows

10

that lead counsel remained hands-off while and after the ESI searches

11

occurred. And there is nothing in the record to suggest Defendants’

12

attorneys ever instructed Defendants to not destroy documents that

13

could be relevant to this action. The attorneys’ total abdication of their

14

obligation to communicate the duty to preserve evidence to their clients

15

in an effective manner warrants severe sanctions.

16
17

b. Intentional Destruction of ESI
It is well established that litigants must preserve all potentially

18

relevant records as soon as they become aware that a case may be filed.

19

See e.g., Zubulake v. UBS Warburg LLC, 2003 WL 22410619, *2

20

(S.D.N.Y. October 22, 2003) (Zubulake IV); Zubulake V, supra, 229

21

F.R.D. 422; Philips Electronics North America Corp., supra, 773

22

F.Supp.2d at 1195; Thompson v. U.S. Dept. of Housing and Urban

23

Development, 219 F.R.D. 93, 99-100 (D. Md. 2003). Defendants do not

24

dispute—and the evidence shows—that after learning about this

25
50
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1

lawsuit, Defendants specifically instructed employees to destroy highly

2

relevant documents because of their relevance to Plaintiff’s claims.

3

Defendants argue that the spoliation was not intentional. They

4

contend that “RFT produced over 1 million pages of information,” and

5

the “small fraction of that information that was produced recently does

6

not support inferences of misconduct.” (ECF No. 288 at 56:3-5).

7

Defendants’ exaltation of form over substance is misguided. “Producing

8

1.2 million pages of marginally relevant documents while hiding 46,000

9

critically important ones does not constitute good faith and does not

10

satisfy either the client’s or attorney’s discovery obligations.”

11

Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B-BLM, 2008 WL

12

66932, at *1 (S.D. Cal. Jan. 7, 2008), vacated in part, No. 05cv1958-

13

RMB-BLM, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008). The volume of

14

Defendants’ production does not relieve them of fault.

15

Defendants also claim that they are not at fault because

16

Defendant Noorian did not really mean “destroy,” but instead meant

17

that his sales force should stop distributing the document outside of the

18

company. Defendants’ contention contradicts the unequivocal command

19

in Defendant Noorian’s email. Though Defendant Noorian also stated

20

that he did not “want anyone at RFT using the HME failure pictures

21

effective immediately,” that does not negate the mandate to “destroy

22

any electronic or printed copies any of you may have” that followed.

23

The only support for Defendants’ position is Defendant Noorian’s

24

self-serving interpretation delivered during the limited purpose

25

deposition held after this motion was filed. Defendant Noorian could
51
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1

not explain during deposition why he issued the “destroy” command

2

when it would have been just as easy and effective to issue an

3

instruction to stop distributing the documents. Defendants’ testimony

4

that Defendant Noorian’s motive was “to make sure the ‘damn thing’

5

wasn’t sent out again,” is also inconsistent with a Panasonic marketing

6

employee’s testimony, delivered by a disinterested party before the

7

issue of sanctions arose, that Defendants never requested that

8

Panasonic stop distributing the materials. (ECF No. 288 at 63; ECF

9

No. 288-4 (Exh. 7) 14:18-22). If Defendants’ intention was to curtail the

10

distribution of the Report, as opposed to intentionally destroying

11

relevant evidence, then it follows that they would have asked Panasonic

12

to stop distributing the Report.

13

Moreover, Defendant Noorian approved Mr. Sullivan’s act of

14

letting “the other guys know” to destroy the documents. And Defendant

15

Noorian never clarified his intention to the employees who received the

16

instruction. As a result, Mark Sullivan instructed Philip Tondelli and

17

Michael Murdock both to “destroy our copies of this and do not send it

18

out for any further reasons.” (ECF No. 288-15 (Exh. 33) (emphasis

19

added)). All of this occurred on December 19, 2012, after the duty to

20

preserve evidence arose.

21

Even setting aside whether Defendant Noorian actually intended

22

that documents be destroyed, the sales force would not have understood

23

his unambiguous command as anything less than a directive to destroy

24

the Structural Failures Report and related documents. There is

25

nothing to suggest the sales staff failed to carry out the “destroy”
52
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1

command in this instance. Defendants do not offer a declaration from

2

employees stating that they did not delete emails, or they only deleted

3

certain types of documents. There is also nothing in the record to

4

suggest Defendant Noorian made any attempt to modify or retract the

5

“destroy” instruction. There is no evidence that the employees had been

6

advised of a litigation hold. Defendants have produced no evidence to

7

support their speculation that only duplicate copies of the Structural

8

Failures Report were deleted. The Court concludes that Defendant

9

Noorian intended for RFT’s sales force to destroy relevant documents.

10

Finally, the evidence shows that Defendants have not ever

11

produced a complete version of the attachments to the December 6,

12

2012, Mark Sullivan email, and Defendants have not been able to

13

identify all of the documents referenced in the five screen shots. The

14

absence of these documents, combined with the surrounding

15

circumstances, raises the reasonable inference that Defendants deleted

16

other documents including or referencing the HME failure pictures that

17

are relevant to this action and favorable to Plaintiff. This Court

18

concludes that Defendants deleted relevant evidence intentionally and

19

in bad faith.

20

c. Withholding Non-privileged

21

Documents As Privileged

22

It is fundamental that litigants must produce responsive non-

23

privileged documents in a timely manner. Attorneys have a

24

corresponding duty to supervise associates, staff, and contractors who

25

are involved in the document collection, review, and production process.
53
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1

When attorneys employ “keywords or any other technological solution to

2

ediscovery, counsel must design an appropriate process, including use of

3

available technology, with appropriate quality control testing, to review

4

and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C)

5

proportionality.” Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 126

6

(quoting Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D.

7

182, 193 (S.D.N.Y.2012)) (emphasis added). The State Bar of

8

California’s Formal Opinion No. 2015-193 confirms that attorneys have

9

long had a “duty to supervise the work of subordinate attorneys and

10

non-attorney employees or agents,” and that this “duty to supervise can

11

extend to outside vendors or contractors, and even to the client itself.”

12

California State Bar Formal Opn. No. 2015-193 at 5. The attorneys’

13

duty to supervise the work of consultants, vendors and subordinate

14

attorneys is non-delegable. Id. “An attorney must maintain overall

15

responsibility for the work…,” and,

16
17
18
19
20
21
22
23
24

must do so by remaining regularly engaged in the
expert’s work, by educating everyone involved in the ediscovery workup about the legal issues in the case, the
factual matters impacting discovery, including witnesses
and key evidentiary issues, the obligations around
discovery imposed by the law or by the court, and of any
relevant risks associated with the discovery tasks at
hand. The attorney should issue appropriate
instructions and guidance and, ultimately, conduct
appropriate tests until satisfied that the attorney is
meeting his ethical obligations prior to releasing ESI.
Id. (emphasis added).

25
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1

Counsel must also prepare and provide to opposing counsel a

2

privilege log if documents are withheld as privileged. FED. R. CIV. P.

3

26(b)(5)(A); see also Brown v. Tellermate Holdings Ltd., No. 2:11-CV-

4

1122, 2014 WL 2987051, at *11 (S.D. Ohio July 1, 2014) (noting that

5

party that failed to produce privilege log had waived all claims of

6

privilege).
The Court finds that sanctions against Defendant RFT and its

7
8

attorneys, LeClairRyan LLP and Thomas O’Leary, are appropriate for

9

this misconduct under Rule 37. Although the Court will not sanction

10

attorneys Brian Vanderhoof of LeClairRyan LLP and Mark Goldenberg

11

of Goldenberg Heller Antognoli & Rowland, P.C., their conduct deserves

12

a dishonorable mention.
Though this tardy document production resulted from Defendants’

13
14

attorneys’ failure to oversee assisting attorneys, Defendants4 share

15

fault. First, “[a]ny attempt by [the sanctionee] to argue that the district

16

court abused its discretion in preventing [the sanctionee] from passing

17

the blame to its attorneys is unavailing. [A sanctionee] ‘is deemed

18

bound by the acts of its lawyers and is considered to have ‘notice of all

19
20
21
22
23
24
25

Defendant Noorian objects on the basis that Rule 37 sanctions cannot
be imposed against him personally, because Magistrate Judge
Burkhardt’s order was only issued against Defendant RFT. (ECF No.
185 at 1 (Order); ECF No. 308 at 21 (argument)). Perhaps because
Defendant never raised this argument until the supplemental brief,
Plaintiff offers no counterpoint. Because the Court finds that
Defendant Noorian can be sanctioned under Rule 26(g)(3), the Court
does not reach the issue of whether Defendant Noorian can be
sanctioned under Rule 37.

4

55
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1

facts, notice of which can be charged upon the attorney.’’” Haeger,

2

supra, --F.3d-- at 25 (quoting Link v. Wabash R. Co., 370 U.S. 626, 634

3

(1962), and citing Lockary v. Kayfetz, 974 F.2d 1166, 1169-1170 (9th Cir.

4

1992)). Second, Defendants ignored red flags and signed discovery

5

responses and declarations that contained what turned out to be false

6

and misleading statements about the existence of these documents.

7

Defendant Noorian, on behalf of Defendant RFT, concealed the

8

existence of the missing documents when he verified incorrect written

9

discovery responses denying the existence of some documents, denying

10

that meetings with Panasonic occurred, and identifying Mark Sullivan

11

as the only employee involved in the alleged misconduct. Had

12

Defendant Noorian acknowledged his involvement in the underlying

13

events, Defendants’ attorneys and the court may have been more

14

vigilant when documentation of his involvement did not surface. Also,

15

the evidence shows Defendant Noorian was involved in the collection of

16

documents for production and that he reviewed the very documents

17

Defendants have not been able to find in their production immediately

18

after learning of this lawsuit. Yet he made no effort to ensure that

19

these highly probative documents were produced.

20

When Plaintiff complained that the December 6, 2012, email and

21

zip file from Mark Sullivan to Defendant Noorian had not been

22

produced, Defendants dug in their heels rather than review their

23

production for errors. Steve Combs signed a declaration stating under

24

penalty of perjury that all documents had been produced, even though a

25

cursory investigation would have revealed otherwise.
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The Court further finds Thomas O’Leary and LeClairRyan LLP

2

responsible for the delayed productions. Defendants’ lead counsel

3

delegated critical discovery tasks, without appropriate monitoring or

4

quality control, to temporarily-involved attorneys who made the

5

unreasonable decision to withhold responsive documents as privileged

6

on the sole basis that they contained words like “confidential,” then

7

compounded the problem by not reviewing the documents withheld as

8

privileged and not creating a privilege log of the excluded documents.

9

Had Defendants’ counsel reviewed even a sample of the documents set

10

aside as privileged the error would have been obvious. It is alarming

11

that lead counsel aggressively defended this fundamentally-flawed ESI

12

production despite Plaintiff’s persistent calls for more documents, a

13

review of methodology, and a privilege log. In addition, the Court is

14

alarmed by Defendants’ counsel’s refusal to take any responsibility for

15

the errors.

16

At the hearing, attorney Vanderhoof argued that LeClairRyan and

17

Mr. O’Leary should not be held responsible for this error, because the

18

paralegals at the temporarily-involved firm did not tell the LeClairRyan

19

attorneys that there were documents that needed review, and there was

20

some chaos caused by the transitioning between firms.

21

This excuse shows LeClairRyan attorneys did not, and still do not,

22

comprehend that it is their duty to become actively engaged in the

23

discovery process, to be knowledgeable about the source and extent of

24

ESI, and to ensure that all gathered data is accounted for, and that

25

these duties are heightened—not diminished—when there is a
57
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1

transition between firms or other personnel critical to discovery. As

2

lead counsel, Thomas O’Leary and LeClairRyan LLP should have asked

3

the paralegals at the temporarily-involved firm about the privilege

4

review, including whether one was conducted, what privilege review

5

methodology was used, the amount and type of documents withheld as

6

privileged, and the updating of the privilege log. Lead counsel should

7

have asked the paralegals about whether there were any additions to

8

the privilege log, which Thomas O’Leary had signed on February 14,

9

2014. (ECF No. 125-3 at 4). When attorney O’Leary signed the

10

privilege log, it had 21 entries, after approximately 18,500 pages had

11

been produced. (ECF No. 125 at 17, 125-13). Lead counsel should have

12

been suspicious that no additional documents were being withheld for

13

privilege after approximately 330,000 pages of ESI were produced,

14

given that the earlier smaller production had resulted in 21 privileged

15

documents.

16

Further, lead counsel was present at Mark Sullivan’s and

17

Defendant Noorian’s depositions, and should have been surprised and

18

concerned when Plaintiff’s counsel used as exhibits documents that

19

Defendants should have had in their ESI but had not produced.

20

Lead counsel also should have noticed that the amount of data Mr.

21

O’Leary provided to the ESI vendors did not approximate the data

22

returned to the attorneys. Lead counsel had access to numbers that

23

they should have noticed did not add up.

24

Plaintiff noticed these red flags and waved them. This shows that

25

the inconsistencies were obvious to anyone paying attention. Plaintiff’s
58
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1

protests are yet another flag that Defendants’ attorneys should not have

2

ignored. Instead of inquiring further of its vendors, lead counsel

3

chastised Plaintiff for its diligence. The ease with which lead counsel

4

could have discovered this problem is revealed by how quickly and

5

easily the problem was discovered when Mr. Vanderhoof finally did

6

make inquiries to the vendors.

7

Thomas O’Leary of LeClairRyan was the attorney who initially

8

provided the raw ESI to the vendor Setec, and, as lead counsel, it was

9

incumbent on him and his firm to remain involved in the data

10

processing as necessary to ensure that the data the given to the vendors

11

roughly equated to the data returned by the reviewing attorneys and

12

vendors, and to notice when no privileged documents were added to the

13

privilege log he had signed after a large ESI production. Though

14

attorneys Goldenberg and Vanderhoof also abdicated their duties and

15

were also involved in the discovery conferences, depositions, and the

16

ESI process, as lead counsel, the responsibility falls on Mr. O’Leary and

17

his firm.

18
19

d. Post-Discovery Document Dump
Rule 37 sanctions are also appropriate against Defendant RFT

20

and its attorneys for the post-discovery document dump of more than

21

half of the documents they ultimately produced in this action, which

22

they admit should have been produced much earlier. Defendant RFT—

23

despite sworn assurances that it had already complied with Magistrate

24

Judge Burkhardt’s Order requiring completion of its document

25

production by August 4, 2014—failed to produce well over 375,000
59
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1

pages of responsive documents until after the filing of this motion and

2

the close of discovery.

3

Defendants explain the bulk of the documents were inadvertently

4

withheld because the ESI vendor accidentally failed to export all of the

5

data to be produced. (ECF No. 269-28 (Stefan Decl.) ¶ 5).

6

The data export error is strikingly similar—but even more

7

egregious—than the uploading error that occurred in In re

8

Delta/AirTran Baggage Fee Antitrust Litigation, 846 F.Supp.2d 1335,

9

1342 (N.D. Ga. 2012). In that case, Delta’s attorney instructed Delta’s

10

IT department to upload the custodian’s hard drives to Clearwell, the

11

document management and search tool they were using for document

12

production. Two weeks later, Delta’s attorney followed up with the IT

13

department to make sure all of the data that had been collected had

14

indeed been uploaded to Clearwell. Despite confirmation from the IT

15

department, not all of the data had been uploaded. The uploading

16

error, combined with a failure to review two hard drives and backup

17

tapes, resulted in the late production of 60,000 pages of documents.

18

The In re Delta court found fault and prejudice, and exercised its

19

authority under Rule 37 to reopen discovery and impose monetary

20

sanctions, including the moving party’s reasonable costs and attorneys’

21

fees, against Delta. Likewise, this Court finds Defendants and their

22

attorneys at fault for failing to monitor the document production and

23

the ESI vendor. The error was concealed and compounded by their

24

blind assurances that all documents had been produced.

25
60
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1

Moreover, Defendants and their attorneys are at fault for the

2

delay in producing the May 2015 data set. Defendants’ attorneys

3

attribute the delay in producing the May 2015 document subset to four

4

problems: 1) the ESI vendor mistakenly did not provide a subfolder of

5

data it had prepared when investigating its prior error in December

6

2014, 2) data searches did not include Mark Sullivan’s

7

“business.management” email address, 3) data searches did not include

8

the term “attune,” and 4) non-privileged attachments to privileged

9

emails were withheld in error. (Id.).

10

Counsel claims they did not search (or instruct vendors to search)

11

Mark Sullivan’s “business.management” email account, because counsel

12

was unaware that Mark Sullivan used both the “MarkS” and the

13

“business.management” email addresses. Counsel should have known

14

to search the “business.management” address because Mark Sullivan

15

produced emails with that address during his deposition in April 2014.

16

(ECF No. 268-21 (Exh. 14)). Defendants knew Mr. Sullivan used the

17

address, because Defendant RFT issued it to him and Defendant

18

Noorian reviewed emails Mr. Sullivan sent using that address in the zip

19

file on December 6, 2012. (Id.). Defendant and counsel should also

20

have known to include “attune” as a search term in their ESI

21

production, because that is the term Mark Sullivan used in his email

22

and zip file search. Defendant Noorian knew this from his December 6,

23

2012 review of Mark Sullivan’s files, and Defendants attorneys, and Mr.

24

O’Leary and Mr. Goldenberg specifically, should have known this after

25
61
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1

Mark Sullivan produced the documents relying on attune as a search

2

term.

3

The Court concludes that Defendants and their attorneys are at

4

fault for the post-discovery document dump. Mr. O’Leary and his firm’s

5

abdication of their roles in crafting and implementing an effective

6

discovery process warrants sanctions. Mr. Goldenberg’s efforts fell

7

woefully short of his responsibilities to ensure an ESI methodology was

8

crafted that adequately captured responsive data, particularly because

9

Mr. Goldenberg was the only attorney involved from the start and had a

10

long-time relationship with Defendants that granted him familiarity

11

with Defendants and their data. Mr. Vanderhoof also failed in his duty

12

to craft, implement, and test a reasonable ESI protocol. Nevertheless,

13

the Court finds sanctions are not warranted against Mr. Goldenberg

14

and Mr. Vanderhoof personally.

15
16

ii.

Prejudice

The Court finds that sanctions are necessary because Plaintiff was

17

precluded by Defendants’ conduct from fully discovering the extent and

18

impact of distribution of the Structural Failures Report and average

19

repair rate information. Prejudice is determined by evaluating whether

20

the spoliating party's actions impaired the non-spoliating party's ability

21

to go to trial, threatened to interfere with the rightful decision of the

22

case, or forced the non-spoliating party to rely on incomplete and spotty

23

evidence. In re Hitachi Television Optical Block Cases, No. 08cv1746-

24

DMS-NLS, 2011 WL 3563781, *6 (S.D. Cal. August 12, 2011) (citing

25

Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006)).
62
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1

Spoliation of evidence raises the presumption that the destroyed

2

evidence goes to the merits of the case, and that such evidence was

3

adverse to the party that destroyed it. Apple II, supra, 888 F.Supp.2d

4

at 998 (citing Hynix Semiconductor v. Rambus, 591 F.Supp.2d 1038,

5

1060 (N.D. Cal. 2006), vacated on other grounds in 645 F.3d 1336 (D.C.

6

Cir. 2011)).

7

Defendants contend that sanctions are not appropriate, because

8

the documents have now all been produced and trial has yet to occur, or

9

will not occur because of the anticipated settlement.

10

Plaintiff counters that not all documents have been produced and

11

it has been “exceedingly difficult for HME to identify sales it may have

12

lost as a result of” Defendants’ distribution of the Structural Failures

13

Report and related information, because the spoliation prevented

14

Plaintiff from identifying all of the recipients.

15

Defendants respond that Plaintiff was able to identify hundreds of

16

customers or potential customers in Plaintiff’s opposition to Defendants’

17

summary judgment motion. Indeed, in opposition to the summary

18

judgment motion, Plaintiff’s expert declared that he was provided lists

19

of “overlapping customers,” which included HME customers or

20

prospects who made purchases from RFT or Panasonic for the first time

21

while the trade libel is alleged to have occurred. (ECF No. 275-1 ¶6-9).

22

Plaintiff could have used these lists to identify sales lost to

23

Defendant RFT and Panasonic, but the overlapping customer lists are

24

useless for determining sales lost to other competitors. And the Report

25

may be in the hands of potential customers who had not yet made a
63
12cv2884-BAS-MDD

1

purchase from RFT and Panasonic when the overlapping customer lists

2

were prepared. Although the difficulty in identifying lost sales

3

attributable to the missing documents has been alleviated by the

4

overlapping customer lists, the prejudice has not been cured. It

5

remains unknown how widely the Structural Failures Report was

6

distributed, to whom, and how it influenced their purchasing behavior.

7

Plaintiff also emphasizes that Defendant did not produce the

8

Sullivan email and attached zip file until April 14, 2015, and that it is

9

incomplete. Defendants’ inability to find documents known to be

10

missing raises the unrebutted presumption that other unidentified

11

relevant documents that are favorable to Plaintiff are also missing.

12

Even if Defendants have now completed production of all non-destroyed

13

documents, Defendants did not do so until months after the close of

14

discovery. As a result, Plaintiff did not have the benefit of those

15

documents while selecting deponents, taking depositions, conducting

16

third party discovery, and preparing its trial strategy and pre-trial

17

documents. Plaintiff has had to divert resources to pursuing the

18

missing documents and reviewing—on an expedited basis—the

19

documents Defendant dumped on Plaintiff at the last minute. The

20

diversion of resources necessitated by the spoliation distraction creates

21

a further “risk of erroneous judgment on this claim.”

22

In addition, Plaintiff has expended significant resources in

23

compelling Defendants to comply with their discovery obligations.

24

Plaintiff conservatively estimates its costs and fees at approximately

25

$52,000. Defendants and their attorneys have made no offer to
64
12cv2884-BAS-MDD

1

voluntarily cover any of the Plaintiff’s costs and fees that were

2

necessitated by the discovery problems.

3

On the other hand, the fact that Plaintiff did not ask the Court to

4

re-open discovery suggests that Plaintiff’s ability to go to trial is no

5

longer impaired. It may also be that evidence that Plaintiff would have

6

obtained absent Defendants’ misconduct would merely be cumulative of

7

the evidence Plaintiff now has.

8
9

The Court concludes Defendants’ spoliation has not impaired
Plaintiff’s ability to go to trial, but has threatened to interfere with the

10

rightful decision of the case, and may force Plaintiff to rely on

11

incomplete and spotty evidence. See Leon, supra, 464 F.3d at 959.

12

Consequently, the Court finds Defendant RFT and its attorneys

13

responsible under Rule 37 for the spoliation of relevant documents

14

favorable to Plaintiff and for violating Magistrate Judge Burkhardt’s

15

July 3, 2014 Order. The Court finds Plaintiff was prejudiced by the

16

destruction and late production of documents, and further finds that the

17

tardy production of documents has not fully cured the prejudice to

18

Plaintiff. The Court also finds that Defendants’ destruction of

19

documents and failure to timely provide ESI did not result from “the

20

routine, good-faith operation of an electronic information system.” See

21

FED. R. CIV. P. 37(e).

22
23

b.

Proposed Amended Rule 37

In anticipation of the amendment of Rule 37, the Court further

24

finds that it would reach the same result under the proposed amended

25

Rule 37. The proposed changes to Rule 37 are expected to take effect on
65
12cv2884-BAS-MDD

1

December 1, 2015, absent unforeseen circumstances. Subsection (b) of

2

Rule 37, under which this Court has analyzed this motion, is expected

3

to remain unchanged. But the new Rule 37(e) states:

4
5
6
7
8
9
10
11

(e) Failure to Preserve Electronically Stored
Information. If electronically stored information that
should have been preserved in the anticipation or
conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored
or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from
loss of the information, may order measures
no greater than necessary to cure the
prejudice; or

12
13
14
15
16
17
18
19
20
21

(2) only upon finding that the party acted with the
intent to deprive another party of the
information’s use in the litigation may:
(A) presume that the lost information was
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 a default
judgment.

22

Proposed amended Rule 37(e) as submitted to Congress on April 29,

23

2015, after adoption by the U.S. Supreme Court, available at

24

http://www.uscourts.gov/file/document/congress-materials (last accessed

25

on June 16, 2015).
66
12cv2884-BAS-MDD

1

The new Rule 37 and its Advisory Committee Notes do not

2

address the interplay of subsection (b) with subsection (e). In this

3

instance, subsection (b) would apply because Defendant and its

4

attorneys violated Magistrate Judge Burkhardt’s Order to produce the

5

ESI at issue.

6

Even if subsection (e) applied instead of subsection (b), the Court

7

would reach the same result on this record. The Court has already

8

found that Plaintiff was prejudiced by the destruction and delayed

9

production of documents. The Court further finds that Defendants

10

intended to deprive Plaintiff of the use of the information the sales force

11

deleted in response to Defendant Noorian’s command. Defendant

12

Noorian asked for and commanded the deletion of these documents

13

specifically because they were relevant to this lawsuit. Accordingly, the

14

Court finds Plaintiff has made a sufficient showing under the proposed

15

amended Rule 37 to warrant the same sanctions that the Court finds, in

16

the following section, are appropriate under the current Rule 37.

17

3. Sanctions

18

Sanctions imposed by the court “should be designed to: (1) deter

19

parties from engaging in spoliation; (2) place the risk of an erroneous

20

judgment on the party who wrongfully created the risk; and (3) restore

21

the prejudiced party to the same position he would have been in absent

22

the wrongful destruction of evidence by the opposing party.” West v.

23

Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

24
25

Plaintiff requests various forms of sanctions. Plaintiff does not
seek the most extreme type of relief: an outright entry of judgment
67
12cv2884-BAS-MDD

1

against Defendants. Plaintiff also does not seek the least extreme type

2

of relief: the re-opening of discovery. The Court has considered the

3

various types of sanctions Plaintiff seeks, and finds that monetary

4

sanctions, issue sanctions, and an adverse inference instruction are

5

appropriate, as set forth below.

6

a. Monetary Sanctions
As provided by current Rule 37(b)(2)(C), the Court is required to

7
8

impose reasonable expenses, including attorney’ fees, upon “the

9

disobedient party, the attorney advising that party, or both.” The Court

10

must impose costs unless the failure to comply with the court order was

11

“substantially justified or other circumstances make an award of

12

expenses unjust.” Id. Similarly, Rule 26(g)(3) requires an award of

13

reasonable fees and costs.
The Court finds that sanctions must be imposed against

14
15

Defendant RFT (the disobedient party) and the LeClairRyan LLP firm

16

and Thomas O’Leary personally under Rule 37.5 The Court further

17

finds that sanctions must be imposed against Defendants Noorian, RFT,

18

and attorney Thomas O’Leary under Rule 26(g)(3).

19

Due to the duration, frequency and severity of the discovery

20

abuses, tracing the direct causal link between the pervasive misconduct

21

and the fees and costs incurred is not possible. See Chambers, supra,

22

501 U.S. at 56; Haeger, supra, --F.3d-- at 26-38. The Court will award

23

compensatory sanctions in the form of all attorneys’ fees and costs

24
25
5

Rule 37 sanctions will not be imposed on Noorian. See, n.4, above.
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incurred by Plaintiff in seeking discovery from Defendants from October

2

18, 2013, when Defendant served its first discovery responses

3

containing false certifications, to date. Because the Defendants’

4

discovery was intentionally flawed from the beginning, the Court is

5

imposing all monetary sanctions concurrently under both Rule 26(g)(3)

6

and Rule 37. Each disciplinary authority is independently sufficient to

7

warrant the full extent of monetary sanctions imposed. The Court will

8

determine the amount and apportionment of the award by separate

9

order following receipt of the necessary information from counsel for

10
11
12

Plaintiff.
b. Contempt
Plaintiff also seeks a finding of contempt against Defendants

13

based on their failure to comply with Magistrate Judge Burkhardt’s

14

July 3, 2014, Order. In this request, Plaintiff appears to be seeking civil

15

(i.e., coercive) rather than criminal (i.e., punitive) contempt. (See ECF

16

No. 288 at 39:23 (relying on the standard for finding civil contempt)).

17

The Court agrees with Plaintiff that Defendant RFT violated

18

Magistrate Judge Burkhardt’s specific and definite Order, that

19

Defendant RFT did not take every reasonable step to comply with that

20

order, and that compliance was possible. Nevertheless, the Court is not

21

persuaded that Defendant Noorian can be held in contempt for violating

22

the Order requiring Defendant RFT to complete its production. The

23

Court is also not persuaded that either Defendant has the ability to

24

satisfy a civil contempt order requiring them to produce additional

25

documents.
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To the extent that Plaintiff’s request is geared towards coercing

2

the production of the missing documents, the filing of the motion has

3

had the intended effect. In addition, Plaintiff has not shown that

4

Defendants have the ability to comply with a contempt order crafted to

5

coerce further production of documents. If, as it appears, Defendants

6

destroyed documents, then Defendants have no ability to produce the

7

destroyed documents. Thus, a coercive contempt order would be

8

inappropriate with respect to the destroyed documents.

9

The Defendants also argue that all missing documents have now

10

been produced. If true, Defendants lack the ability to produce more

11

documents. The Court is wary of Defendants’ claim that there are no

12

more documents to produce, given this record. But Plaintiff has not met

13

its burden to show that Defendant has relevant documents that

14

survived destruction and have not now been produced.

15

Accordingly, the Court finds a civil contempt finding

16

inappropriate. Plaintiff’s motion for a contempt certification from this

17

Court to the District Judge is DENIED.

18
19
20

c. Report and Recommendation for Issue Sanctions
and Adverse Inference Instruction
i. Introduction

21

This Report and Recommendation is submitted to United States

22

District Judge Cynthia Bashant pursuant to 28 U.S.C. §636 and Local

23

Civil Rule 72.1(c) of the United States District Court for the Southern

24

District of California. In this Report and Recommendation, this Court

25

RECOMMENDS that the district court GRANT Plaintiff’s request for
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issue sanctions and an adverse inference instruction against

2

Defendants if the settlement is not finalized and the matter proceeds to

3

trial.

4

The Court has considered whether lesser sanctions are sufficient,

5

and finds they are not. Specifically, Magistrate Judge Burkhardt

6

already imposed monetary sanctions on Defendant RFT for failure to

7

comply with a discovery order concerning these documents. The

8

imposition of monetary sanctions had, at best, a fleeting effect on

9

Defendants and their attorneys. Moreover, the imposition of monetary

10
11
12

sanctions alone will not cure the prejudice to Plaintiff.
ii. Issue Sanctions
The Court RECOMMENDS finding that Plaintiff’s requested

13

issue sanction in the form of a finding that the Report is false is

14

appropriate. Plaintiff has shown that the spoliated documents relate to

15

RFT’s creation of the Report and show that it was not an internal report

16

prepared by Plaintiff. Because Defendants destroyed the documents

17

that they knew related directly to Plaintiff’s claims after (and because)

18

this case was filed, the parties and the Court cannot review the contents

19

of the destroyed documents. Therefore, it is appropriate to transfer the

20

risk of uncertainty from Plaintiff to Defendant as to whether the

21

destroyed documents included a party admission by RFT that the

22

Structural Failures Report was false.

23
24

The Court further finds sufficient grounds for establishing as a
fact that Defendants fabricated the average rate of repair and lifetime

25
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cost of the ION IQ as presented in materials created by Defendants, and

2

did so with knowledge that the figures had no reliable basis.

3

Accordingly, this Court RECOMMENDS GRANTING Plaintiff’s

4

motion to establish as a fact that the Structural Failures Report is false,

5

and that Defendants fabricated the average rate of repair and lifetime

6

cost figures.

7

iii. Adverse Inference Instruction Standard

8

Adverse inference instructions are appropriate when a party

9

destroys evidence or refuses to timely produce documents. Residential

10

Funding Corp, v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002);

11

but see Committee Note to proposed new Rule 37(e)(2) (rejecting

12

Residential Funding on other grounds). Specifically, Plaintiff requests

13

“an adverse inference instruction that (1) relevant documents

14

Defendants failed to timely produce, or to produce at all, are harmful to

15

Defendants, and (2) Defendants were aware of the falsity of the

16

Structural Failures document and the average repair rate information,

17

and encouraged distribution of the same.” (ECF No. 288 at 39:16-20).

18

The Court finds that the first instruction requested is warranted.

19

The majority of courts, including many courts in the Ninth Circuit,

20

apply “the three-part test set forth in Zubulake v. UBS Warburg, LLC,

21

220 F.R.D. 212, 216 (S.D. N.Y. 2003), for determining whether to grant

22

an adverse inference spoliation instruction.” Apple v. Samsung, 881

23

F.Supp.2d 1132, 1138 (N.D. Cal. 2012) (“Apple I”); Lewis v. Ryan, 261

24

F.R.D. 513, 518 (S.D. Cal. 2009); Zest IP Holdings, LLC v. Implant

25

Direct Mfg., LLC, No. CIV. 10-0541-GPC WVG, 2013 WL 6159177, at *5
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1

(S.D. Cal. Nov. 25, 2013), report and recommendation adopted in part,

2

No. CIV. 10-541-GPC WVG, 2014 WL 6851607 (S.D. Cal. June 16,

3

2014).

4
5
6
7
8
9
10
11

In Zubulake IV, the court stated:
A party seeking an adverse inference instruction
(or other sanctions) based on the spoliation of evidence
must establish the following three elements: (1) that the
party having control over the evidence had an obligation
to preserve it at the time it was destroyed; (2) that the
records were destroyed with a ‘culpable state of mind’
and (3) that the evidence was ‘relevant’ to the party's
claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.

12

Zubulake IV, 220 F.R.D. at 220 (citing Residential Funding Corp. supra,

13

306 F.3d at 108); see also Apple II, 888 F.Supp.2d at 989–90; but see

14

Advisory Committee Notes to proposed new Rule 37(e)(2) (rejecting

15

cases such as Residential Funding “that authorize the giving of adverse-

16

inference instructions on a finding of negligence or gross negligence.”).

17

“When evidence is destroyed in bad faith, that fact alone is

18

sufficient to demonstrate relevance.” Zubulake IV, supra, 220 F.R.D. at

19

220. “By contrast, when the destruction is negligent, relevance must be

20

proven by the party seeking the sanctions.” Id.

21

Under current Rule 37, to find a “culpable state of mind,” a court

22

need only find that a spoliater acted in “conscious disregard” of its

23

obligations to not destroy documents. Apple II, 888 F.Supp.2d at 989–

24

990, (citing Hamilton v. Signature Flight Support Corp., 2005 WL

25

3481423, at *7 (N.D. Cal. 2004); Io Group v. GLBT, Ltd., 2011 WL
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1

4974337, at *7 (N.D. Cal. 2011)). Where, however, a non-spoliating

2

party fails to show a degree of fault and level of prejudice, negligent

3

destruction of documents does not warrant an adverse inference

4

instruction or evidence preclusion. Apple II, 888 F.Supp.2d at 993.

5

If spoliation is shown, the burden of proof shifts to the guilty party

6

to show that no prejudice resulted from the spoliation, because that

7

party “is in a much better position to show what was destroyed and

8

should not be able to benefit from its wrongdoing.” Apple II, 888

9

F.Supp.2d at 998 (citing Hynix Semiconductor v. Rambus, 591

10

F.Supp.2d 1038, 1060 (N.D. Cal.2006), vacated on other grounds in 645

11

F.3d 1336 (D.C. Cir. 2011)); In re Hitachi, 2011 WL 3563781, at *6.

12

iv. Analysis re Adverse Inference Instruction

13

As explained earlier in this Order, the Court finds that spoliation

14

of evidence that Defendants controlled occurred after the duty to

15

preserve it arose and that Defendants acted with a culpable state of

16

mind. Plaintiff is prejudiced by the destruction of the Structural

17

Failures Report related documents, because the contents of these

18

documents are directly relevant to showing lost sales with respect to the

19

trade libel and unfair competition claims at issue in this litigation. As a

20

result, Plaintiff is now forced to go to trial while relying on incomplete

21

evidence.

22

Defendants attempt to rebut the presumption of prejudice by

23

stating that they produced all of the documents that were missing as a

24

result of errors, that Plaintiff has not shown that any specific emails or

25

documents are still missing, and that any documents that were
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destroyed were merely “copies” of the Structural Failures Report that

2

Plaintiff already has. None of these contentions actually rebut the

3

presumption. Defendants’ assumption that the employees only deleted

4

identical copies of the Structural Failures Report is unsupported

5

conjecture. Defendants did not offer any forensic evidence to support

6

their position. Further, Plaintiff has pointed to the incomplete zip file

7

and missing documents captured in the five screen shots. It is not

8

possible for Plaintiff to point to additional specific documents that were

9

destroyed precisely because Defendants destroyed them before Plaintiff

10

could review them. Plaintiff has submitted sufficient evidence for this

11

Court to determine that documents relevant to the claims in this action

12

were destroyed because of Defendants' culpable conduct.

13

v. Recommended Adverse Inference Instruction

14

As a sanction for Defendants’ spoliation of relevant evidence, the

15

Court RECOMMENDS GRANTING Plaintiff’s motion that an adverse

16

inference instruction should be read to the jury. An adverse inference

17

instruction for spoliation of evidence can take many forms, ranging in

18

degrees of harshness. Pension Comm., supra, 685 F.Supp.2d at 470–71.

19

Based on Defendants' intentional deletion of documents it knew to be

20

relevant, the Court RECOMMENDS that the jury be instructed as

21

follows:

22

Defendants, after learning that Plaintiff had sued

23

Defendant RFT, destroyed relevant evidence for Plaintiff's

24

use in this litigation. The deleted evidence pertains to the

25

creation and distribution of the Structural Failures Report
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and the average repair rate of Plaintiff’s products, which

2

pertains to Plaintiff’s unfair competition and trade libel

3

claims.

4

You should presume from that destruction that the

5

evidence destroyed was relevant to Plaintiff’s case and that

6

the destroyed evidence was favorable to Plaintiff.

7

You may, if you deem appropriate, take the destruction

8

of documents into account in assessing the elements of

9

Defendants’ intent and knowledge, of whether the Structural

10

Failures Report or average repair rate information were a

11

substantial factor in causing Plaintiff damage, whether

12

Plaintiff was damaged, and the amount of damage Plaintiff

13

suffered.

14

See E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., 803

15

F.Supp.2d 469, 509 (E.D. Va. 2011); Food Service of America, Inc. v.

16

Carrington, No. CV-12-00175-PHX-GMS, 2013 WL 4507593, at *22 (D.

17

Ariz. Aug. 23, 2013); Chamberlain v. Les Schwab Tire Center of

18

California, No. 2:11-CV-03105-JAM, 2012 WL 6020103 at *6 (E.D. Cal.

19

Dec. 3, 2012); Zest IP Holdings, LLC, supra, 2013 WL 6159177, at *5.

20

Conclusion

21

In conclusion, the Court GRANTS in part and DENIES in part

22

Plaintiff’s request for sanctions, and DENIES Plaintiff’s request for a

23

certification of contempt findings.

24
25

Specifically, the Court GRANTS Plaintiff’s request for reasonable
attorneys’ fees and costs incurred as a result of Defendants’ discovery
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1

misconduct, pursuant to Rules 26(g)(3) and 37. The Court will award

2

compensatory sanctions that represent all reasonable fees and costs

3

Plaintiff incurred in collecting discovery from Defendants from October

4

18, 2013 to date. The Court will determine the amount and

5

apportionment of the award by separate order. Plaintiff must file a

6

motion for attorneys’ fees and costs within fourteen (14) days of the date

7

of this Order. The motion should contain the necessary documentation

8

and declarations regarding costs and fees. See ECF 185 at 16; Blum v.

9

Stenson, 465 U.S. 886, 895 n.11 (1984); Haeger v. Goodyear Tire and

10

Rubber Co., Case No. 2:05-cv-02046-ROS, ECF No. 1125 (D. Ariz.

11

August 26, 2013). Defendants and counsel may file an opposition to the

12

fees motion no later than fourteen (14) days following the filing of the

13

motion.

14

In the event that the parties do not finalize their noticed

15

settlement, the Court further RECOMMENDS that the district judge

16

issue an order: (1) ADOPTING the Report and Recommendation

17

contained in this Order, (2) GRANTING Plaintiff’s motion for an issue

18

sanction against Defendants that the Structural Failures Report is false

19

and an issue sanction that the Defendants fabricated the HME ION IQ

20

average rate of repair and lifetime cost figures in sales materials, and

21

did so with knowledge that the figures had no reliable basis, and (3)

22

GRANTING Plaintiff’s request for the adverse inference as

23

recommended herein. Any objections to the Report and

24

Recommendation contained in this Order must be filed with the district

25

court judge within 14 days of a notification from the parties that their
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1

noticed settlement did not come to pass. FED. R. CIV. P. 72(a); CIV. L.R.

2

72.1(b). The parties are advised that failure to file objections within the

3

specified time may waive the right to raise those objections on appeal of

4

the court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

5

In addition, any party objecting to this Order or the Report and

6

Recommendation in this Order is ORDERED to deliver to the district

7

judge’s chambers a complete set of the papers relating to this motion,

8

included docket entries cited in this Order, in fully-tabbed, well-

9

organized binders within one business day of the date the party files

10

their objections.

11
12

IT IS SO ORDERED.

13
14
15

Dated: August 7, 2015

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