Donna M. Ryu United States Magistrate Judge

ORDER ON DEFENDANT'S MOTION FOR SANCTIONS

Re: Dkt. No. 310

Defendant Electronic Arts Inc. ("EA") moved to compel Plaintiffs Michael E. Davis, Vince Ferragamo, and Billy Joe Dupree to provide further responses to discovery. Following a hearing, the court ordered Plaintiffs to provide amended responses, responsive documents, and a privilege log by dates certain. [Docket No. 293 (Sept. 15, 2017 Order).] The court subsequently granted EA leave to file a motion for sanctions based on Plaintiffs' alleged failure to comply with the September 15, 2017 order. [Docket No. 307.] Now before the court is EA's motion for sanctions. [Docket No. 310.] Following a January 11, 2018 hearing, the court ordered the parties to file supplemental briefing, which the parties timely filed. [Docket Nos. 327, 329, 334.] For the following reasons, EA's motion is granted in part.

I. BACKGROUND

A. Background

Plaintiffs are retired NFL football players. EA develops and publishes video games. In July 2010, Plaintiffs filed a complaint on behalf of themselves and a proposed class of approximately 6,000 retired NFL players alleging that EA violated Plaintiffs' statutory and common law rights of publicity through unauthorized use of their likenesses in EA's Madden NFL video game franchise. Specifically, Plaintiffs allege that EA releases new Madden NFL video games every year, producing different editions for different video game platforms, and that many editions of the games include "historic teams." According to Plaintiffs, EA misappropriated the likenesses of retired NFL players on these historic teams by describing in each player's profile details such as the player's position, years in the NFL, height, weight, skin tone, and skill level in different aspects of the game. Plaintiffs assert that these characteristics are "consistently identical or so close to the actual player's characteristics that the consumers of the game can readily discern which player is being represented." The only player characteristic that EA changes from the real-life retired NFL players is the jersey number. [Docket No. 11 (Am. Compl.) ¶¶ 33, 34, 53.] Plaintiffs allege that EA did not obtain required licenses or authorizations for the use of the putative class members' likenesses.

In August 2017, the Honorable Richard Seeborg granted summary judgment on Plaintiffs' claims for misappropriation of likenesses pursuant to California Civil Code section 3344. [Docket No. 263.] He also granted Plaintiffs' motion for leave to file a second amended complaint ("SAC"). [Docket No. 264.] Plaintiffs' five remaining claims are: 1) violation of Plaintiffs' rights of publicity under California common law; 2) conversion; 3) trespass to chattels; 4) unjust enrichment; and violation of the UCL. [Docket No. 231-1.] Fact discovery closed on July 14, 2017.

B. EA's Sanctions Motion

In July 2017, EA filed unilateral discovery letter briefs in which it moved to compel Plaintiffs to provide further responses to discovery. [Docket Nos. 249, 257.] The court ordered the parties to meet and confer regarding the disputes set forth in the letters and to file joint letters regarding any remaining disputes. [Docket Nos. 254, 260.] The court held a hearing on September 14, 2017 regarding the issues raised in the parties' subsequent joint letters (Docket Nos. 261, 262) and granted in part EA's motions to compel further responses to requests for the production of documents ("RFPs"), interrogatories, and requests for admission ("RFA"). The court ordered Plaintiffs to serve amended responses by dates certain. It also ordered Plaintiffs to lodge and serve a privilege log listing documents responsive to RFPs 56-58, and to lodge for in camera review documents responsive to RFP 58 by September 28, 2017. Sept. 15, 2017 Order.

On September 29, 2017, one day after the court-ordered deadline, Plaintiffs lodged a document entitled, "Plaintiffs' Privilege Log and Statement of No Responsive Documents to EA's RFP No. 58." In the document, Plaintiffs state that they "engaged in a reasonable and diligent search for documents responsive to Request No. 58" and "did not locate any responsive documents." In a footnote, Plaintiffs note the delay in submitting the privilege log, describing a computer problem that "rendered it unusable." EA asserts that Plaintiffs did not send EA a copy of the privilege log until September 30, 2017. Mot. 3. Moreover, EA contends that Plaintiffs' representation that they have no documents responsive to RFP 58 is inconsistent with Plaintiffs' own deposition testimony about communications between the named plaintiffs.

In addition to Plaintiffs' late submission of a privilege log, EA asserts that Plaintiffs failed to comply with other aspects of the court's order. Specifically, on the September 28, 2017 deadline for Plaintiffs to serve responsive documents and amended responses to RFPs, RFAs, and interrogatories, Plaintiffs produced 363 files and emailed to EA their purported responses to EA's interrogatories. [Docket No. 311 (Slaughter Decl., Nov. 9, 2017) ¶ 5(i), Ex. A.] However, the document purporting to be Plaintiffs' interrogatory responses was incomplete and unsigned, and appeared to be a two-page excerpt from a longer response. Slaughter Decl. Ex. A. Plaintiffs did not send EA full responses to the interrogatories until October 2, 2017. Slaughter Decl. ¶ 5(ii), Ex. B. Plaintiffs also did not serve amended responses to the RFAs by the September 28, 2017 deadline, instead emailing EA with the RFA responses on October 2, 2017. Slaughter Decl. ¶ 5(iii), Ex. C. Notably, Plaintiffs provided their court-ordered discovery responses to EA by email alone, even though EA has not consented to service by email. See Fed. R. Civ. P. 5(b)(2)(E) (authorizing service "by electronic means if the person consented in writing"). Slaughter Decl. ¶ 5. EA also contends that Plaintiffs have never produced documents responsive to RFP 46 or confirmed in writing that they have no such documents.

Most importantly, EA further asserts that Plaintiffs' late responses to the interrogatories and RFAs remain deficient and do not comply with the court's guidance at the September 14, 2017 hearing.

EA now moves for sanctions pursuant to Rule 37, the court's inherent powers, and the Civil Local Rules. They ask for evidentiary sanctions specifically tied to the discovery responses that it contends remain deficient, an order directing Plaintiffs to appear in San Francisco for one-hour depositions at Plaintiffs' expense, and monetary sanctions. Plaintiffs oppose the motion.

II. LEGAL STANDARD

Rule 37 authorizes the imposition of various sanctions for discovery violations, including a party's failure to obey a court order to provide or permit discovery and failure to timely supplement initial disclosures and/or discovery responses pursuant to Rule 26(e). Fed. R. Civ. P. 37(b)(2)(A), (c)(1). Such sanctions may include ordering a party to pay the reasonable expenses, including attorneys' fees, caused by its failure to comply with the order or rule. Fed. R. Civ. P. 37(b)(2)(C), (c)(1)(A). Where a party has violated a discovery order or Rule 26's disclosure requirements, a court may direct that certain facts be taken as established for purposes of the action and/or prohibit the party "from introducing designated matters in evidence." Fed. R. Civ. P. 37(b)(2)(A)(i), (ii), (c)(1)(C). In addition, a party in violation of Rule 26 may also be prohibited from using "information or [a] witness to supply evidence on a motion, at a hearing, or at trial," unless the failure to disclose the information or witness "was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

Additionally, courts are vested with inherent powers arising out of "'the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). A court's inherent powers include "the 'broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.'" Unigard, 982 F.2d at 368 (quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)).

Finally, Civil Local Rule 1-4 provides that "[f]ailure by counsel or a party to comply with any duly promulgated local rule or any Federal Rule may be a ground for imposition of any authorized sanction."

III. DISCUSSION

A. EA's Entitlement to Sanctions

The court's September 15, 2017 order directed Plaintiffs to serve further responses to certain interrogatories, RFAs, and RFPs, and to lodge and serve a privilege log by September 28, 2017.

Plaintiffs do not dispute that they served their responses to the interrogatories and RFAs and their privilege log after the court-ordered deadline. However, they assert that they timely produced approximately 13,000 pages of "reference materials" and 30 gigabytes of data in response to the RFPs, in accordance with the court's order that they produce certain documents by September 28, 2017. Counsel states that "due to technical difficulties caused by a computer failure . . . there were issues in the transmission of Plaintiffs' amended responses to the written discovery requests." [Docket No. 314 (Henri Decl., Nov. 24, 2017) ¶ 6.] Plaintiffs' counsel states that he "made numerous attempts to repairs [sic] the issues while [he] was out of town on September 28 and 29, but was unable to do so." Id. According to Plaintiffs, EA has suffered no prejudice as a result of their failure to timely serve discovery responses, as Plaintiffs provided responses within two business days of the due date. Counsel also states that Plaintiffs believe that their substantive responses are "full and complete and in compliance" with the September 15, 2017 order, and that he has offered to meet and confer with EA regarding the responses if it contends otherwise. Id. at ¶ 7.

It is undisputed that Plaintiffs violated the September 15, 2017 order by sending untimely amended responses. Generally, in the absence of demonstrable prejudice, a two business-day delay in serving discovery responses without more would not be sanctionable. However, EA's sanctions motion is not based solely on the issue of untimeliness. EA also disputes the sufficiency of the late responses. EA argues that the discovery at issue goes to the heart of many of Plaintiffs' claims, and that Plaintiffs' failure to timely serve full and complete responses have precluded its ability to move for summary judgment.

After reviewing the amended responses, the court agrees that they are deficient and do not comply with its orders at the September 14, 2017 hearing, as detailed below.

1. Interrogatories

a. Interrogatory No. 12

The court ordered Plaintiffs to serve amended responses to Interrogatory No. 12, which asks Plaintiffs to list each Madden NFL game that they had purchased, including the date of any such purchase. Plaintiffs failed to respond to this interrogatory altogether in their amended interrogatory responses. See Slaughter Decl. Ex. B. Plaintiffs stated in their opposition that they "inadvertently neglected" to respond and would "immediately provide responses to this interrogatory in advance of the hearing" on this motion. As of the date of EA's reply, Plaintiffs had not done so. At the January 11, 2018 hearing, the parties confirmed that Plaintiffs had served amended responses two days before the hearing, and EA confirmed that the responses were sufficient. [Docket No. 330 (Jan. 11, 2018 Hr'g Tr.) 3, 4.] As Plaintiffs have satisfied their obligations with respect to this interrogatory, albeit not in a timely fashion, the court declines to impose a sanction as to Interrogatory No. 12.

b. Interrogatory Nos. 13 and 14

Interrogatory Nos. 13 and 14 ask Plaintiffs to identify the "property" they claim EA has taken or damaged, and the value of any such property or damage. Plaintiffs originally limited their responses by stating that they were based on the assumption that the interrogatories "seek[] to inquire as to the 'economic rights' of Plaintiff taken by EA and not 'property' . . ." [Docket No. 249-1 at ECF pp. 76-78.] At the September 14, 2017 hearing, EA explained that it propounded the interrogatories in order to understand exactly which property interests are at issue in Plaintiffs' claims for trespass to chattels and conversion. To the extent that the only property interest at issue in this case is Plaintiffs' economic interest in their likenesses, EA offered to enter into a stipulation to that effect. Plaintiffs refused. The court instructed Plaintiffs that "the defense has a right to know what exactly you're claiming with respect to the possession of property, . . . what property you think is at issue here." The court ordered Plaintiffs to fully respond to the interrogatories as written. [Docket No. 295 (Sept. 14, 2017 Hr'g Tr.) 42, 46-49.]

In their amended responses, Plaintiffs inexplicably used the same limitation that the court previously had rejected. Specifically, Plaintiffs noted that their responses were based on the assumption that the interrogatories "seek[] to inquire as to the 'economic rights' of Plaintiff taken by EA and not 'property.'" See Slaughter Decl. Ex. B at ECF pp. 17-19. This directly contravenes the court's ruling. Plaintiffs' amended responses are evasive and improper because they do not answer the interrogatories as written, which are not limited to economic rights. Evidentiary sanctions are therefore appropriate. Accordingly, as a sanction for Plaintiffs' failure to comply with the court's order regarding Interrogatory Nos. 13 and 14, the only theory of property rights that Plaintiffs may assert in this action is the economic value in Plaintiffs' names, images, identities, and/or likenesses.

c. Interrogatory Nos. 15 and 19

Interrogatory Nos. 15 and 19 ask Plaintiffs to identify the specific value of their names, images, identities, and/or likenesses, and to explain how EA's conduct has affected that value. Plaintiffs originally refused to provide an estimate of the monetary value of their names and likenesses, objecting that the interrogatories were "premature" because they sought information that would be the subject of expert testimony. [Docket No. 249-1 at ECF pp. 63-64, 78-79.] The court ordered Plaintiffs to respond to the interrogatories with any information other than expert testimony, stating, "if there's going to be any lay witness testimony on damages then your clients need to respond." Sept. 14, 2017 Hr'g Tr. 43.

Plaintiffs' amended responses are insufficient, because they still do not provide an estimate of the monetary value of their names and likenesses. They state, "Plaintiffs have not yet completed their computation of the damages in this case and reserve the right to supplement their response to this interrogatory and/or to provide expert testimony and evidence regarding the amount of economic damages." Slaughter Decl. Ex. B at ECF pp. 21, 28. As Plaintiffs' responses do not comply with the court's prior instructions and continue to be evasive, the court sanctions Plaintiffs by precluding them from offering any lay testimony regarding the value of their names, images, identities, and/or likenesses, other than the information already provided in their responses.

2. RFAs

a. RFA No. 27

RFA No. 27 asks Plaintiffs to admit that they have never entered into "agreements or business deals" with EA. According to EA, Plaintiffs initially refused to answer the RFA, objecting that it was vague. During the parties' meet and confer, Plaintiffs' counsel reiterated his vagueness objection, stating that the parties had a stipulation regarding moving a hearing date in this litigation, and that the stipulation could in theory be an "agreement" with EA. [Docket No. 315-1 (Lauridsen Decl., Dec. 1, 2017) Ex. 1 at 10.] EA then clarified that the request was restricted to agreements "[o]ther than any agreement entered into in this litigation." Id. Plaintiffs ignored EA's clarification. Their amended responses state: "Denied. Plaintiff has entered into agreements with EA. For example, Plaintiff and EA entered into a confidentiality agreement at the parties' mediation." Slaughter Decl. Ex. C at ECF p. 7. Plaintiffs' responses are evasive and improper. Accordingly, RFA No. 27 is deemed admitted.

b. RFA Nos. 29 and 30

RFA Nos. 29 and 30 ask Plaintiffs to admit that they do not allege that EA has ever had possession of their "personal" or "tangible" property. As with their responses to Interrogatory Nos. 13 and 14, Plaintiffs re-wrote the RFAs, limiting their responses to their "economic rights" only, and not "property." This expressly violated the court's order. Slaughter Decl. Ex. C at ECF pp. 7-8; see also Sept. 14, 2017 Hr'g Tr. at 42-43. As a sanction for Plaintiffs' improper and evasive responses to RFA Nos. 29 and 30, the only theory of property rights that Plaintiffs may assert in this action is the economic value in Plaintiffs' names, images, identities, and/or likenesses.

c. RFA No. 33

RFA No. 33 asks Plaintiffs to "[a]dmit that, in 2008, at least one other person or entity (e.g., an Agent, an attorney, the NFLPA) was authorized to license" Plaintiffs' names, images, identities, and/or likenesses on Plaintiffs' behalf. Plaintiffs originally refused to provide substantive responses to this RFA. [Docket No. 249-1 at ECF pp. 45-46.] The court ordered Plaintiffs to respond. Sept. 14, 2017 Hr'g Tr. at 42. In their amended responses, Plaintiffs did not answer the RFA as written; instead, they re-wrote the RFA to disregard the word "authorized," and responded as follows: "assuming that this request seeks to have Plaintiff admit that others could license" his name, image, identity and/or likeness "without Plaintiffs' permission," "[d]enied." Plaintiffs' responses were nonsensical and improper. At the hearing, the court ordered Plaintiffs to serve amended, complete responses to RFA No. 33 by January 16, 2018, and gave EA leave to seek additional court intervention if the response remained insufficient. [Docket No. 327.] EA has not done so. Therefore, the court declines to impose sanctions with respect to RFA No. 33.

3. RFPs

a. Plaintiffs' September 28, 2017 Document Production

EA contends that Plaintiffs' September 28, 2017 document production skirts the court's September 15, 2017 order in two ways. First, RFP No. 46 requested all documents related to the Parrish litigation, which involved the licensing of retired football players' images. The court ordered Plaintiffs to produce documents responsive to RFP No. 46, or confirm in writing that Plaintiffs had no such documents. According to EA, Plaintiffs have never produced the requested documents or provided confirmation that no documents are in their possession, custody, or control. Plaintiffs do not contest this assertion.

Second, EA contends that Plaintiffs' discovery responses attempt to circumvent the September 28, 2017 deadline to produce documents. In their amended responses to Interrogatory Nos. 9 and 9.2, Plaintiffs state, "Plaintiffs do not possess a complete set of such documents and reserve the right to supplement their responses to [the interrogatories] with additional information and facts." Slaughter Decl. Ex. B at ECF pp. 12, 16. EA argues that Plaintiffs' "efforts to keep the production door open" after the close of discovery is improper. Mot. 8. The court agrees. Plaintiffs' amended responses do not comply with the court's September 15, 2017 order that they produce "all responsive documents which support their claims by [September 28, 2017]." Accordingly, Plaintiffs are prohibited from introducing or relying upon, in a motion, at a hearing, or at trial, any documents that they have not previously produced in discovery, absent substantial justification. See Fed. R. Civ. P. 37(c)(1).

b. RFP No. 58

Finally, EA challenges Plaintiffs' privilege log and representation that they did not locate any documents responsive to RFP No. 58. RFP No. 58 asks for "[a]ll documents related to this litigation or Madden NFL that you have received from or sent to other retired football players, including but not limited to those retired football players who objected at any point to this litigation, to you as a class representative, or to your counsel as class counsel." [See Docket No. 262.] Plaintiffs' counsel previously represented that there are no responsive communications between Plaintiffs and the putative class members. See id. However, at the September 2017 hearing, Plaintiffs' counsel stated, "I believe there's regular communications between [the named Plaintiffs] . . . regarding the case." Sept. 14, 2017 Hr'g Tr. 65. Similarly, Plaintiff Davis testified at deposition that he typically communicates by email and phone with the other retired players about the lawsuit. Mot. 9. Therefore, EA argues, Plaintiffs' statement that there are no responsive documents appears inconsistent with counsel and Davis's previous representations.

At the January 2018 hearing, given the inconsistencies between counsel and Plaintiffs' statements about communications between Plaintiffs about this litigation or Madden NFL, the court expressed its concern about the adequacy of Plaintiffs' search for responsive documents. The court ordered Plaintiffs' counsel to immediately contact his clients in writing and by telephone to communicate the court's order that they each "search thoroughly all . . . email, going all the way back, for communications between [Plaintiffs] and other people who are not lawyers about this case," and ordered counsel to confirm the completeness of the search. Jan. 11, 2018 Hr'g Tr. 22-23. The court also ordered a further one-hour deposition of Davis on the subject of his search for responsive documents and communications he had with other retired football players about the case, with the costs of the deposition to be borne by Plaintiffs (not including attorneys' fees). Id. at 26.

4. Monetary Sanctions

EA also requests $45,000 in monetary sanctions. The court finds that monetary sanctions are appropriate in this case, in addition to the evidentiary sanctions described above. After the court gave detailed instructions and ordered Plaintiffs to provide amended responses to the discovery at issue, Plaintiffs served untimely, deficient responses, and continued to take indefensible positions that were not substantially justified. This conduct forced EA and the court to continue to expend significant resources to address Plaintiffs' failure to meet its discovery obligations and provide basic discovery. Monetary sanctions are therefore warranted.

The court determines reasonable attorneys' fees according to the lodestar analysis, which multiplies the number of hours reasonably expended on the matter by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987). The reasonable hourly rate depends on "the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 896 (1984). Although the court presumes that the lodestar represents a reasonable fee, Jordan, 815 F.2d at 1262, the court may adjust the award if other factors make it unreasonable. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The court "should . . . exclude from the lodestar fee calculation any hours that were not 'reasonably expended,' such as hours that are excessive, redundant, or otherwise unnecessary." Rodriguez v. Barrita, Inc., 53 F. Supp. 3d 1268, 1281 (N.D. Cal. 2014) (quoting Hensley, 461 U.S. at 433-34).

EA submitted supporting evidence in the form of a spreadsheet with itemized billing records covering the period July 5, 2017 through January 11, 2018, the date of the hearing on the motion for sanctions. [Docket Nos. 329, 329-1 (Slaughter Decl., Jan. 19, 2018, "Slaughter Decl. II").] EA's billing records reflect attorneys' fees totaling $114,866.10, and include work performed by four timekeepers: attorneys R. James Slaughter, R. Adam Lauridsen, Nic Marais, and Chessie Thatcher. Slaughter Decl. II ¶ 5, Ex. A. Slaughter explains that EA does not seek the full amount of fees, and instead is limiting its request for monetary sanctions to the sum requested in the motion, which is $45,000. Slaughter Decl. II ¶¶ 7, 8. EA has excluded time spent by Slaughter as well as time spent after the September 14, 2017 hearing, including time spent on the motion for sanctions. Id. at ¶ 8. Slaughter explains that the fees requested are also limited to those incurred for work performed by Lauridsen, Marais, and Thatcher "on relevant issues from July 5, 2017 through September 14, 2017," and that EA has further reduced the fees incurred by one quarter, resulting in the total request of $45,000. Id. at ¶¶ 8, 9. EA seeks hourly rates of $652.50, $495, and $495 for Lauridsen, Marais, and Thatcher, respectively, for work necessitated by Plaintiffs' discovery misconduct. Lauridsen is a 2005 law school graduate and partner. Marais and Thatcher, who are associates, are each 2011 law school graduates. Id. at ¶ 11.

The court has carefully reviewed EA's billing records, which are organized chronologically and reflect fees incurred in connection with: 1) preparing the July 2017 unilateral discovery briefs (Docket Nos. 249 and 257), including meeting and conferring; 2) preparing the joint discovery letter briefs heard on September 14, 2017, including preparing for the hearing; and 3) preparing the motion for sanctions, including preparing for the hearing. The billing records do not segregate the fees by task or category, which makes it difficult to evaluate the reasonableness of the time expended, or to calculate precise sums that should be allowed or disallowed. For example, if the time were broken out by category, the court would disallow time spent meeting and conferring prior to the filing of EA's July 2017 unilateral discovery briefs in which they moved to compel, because EA was required to meet and confer with Plaintiffs prior to moving to compel pursuant to Federal Rule of Civil Procedure 37(a)(1) and Local Rule 37-1(a). The court would also disallow time spent drafting the unilateral discovery briefs, because the court declined to rule on those motions before the parties had submitted joint letters on the same disputes.

Notwithstanding the problems with EA's billing records, it is clear that EA incurred substantial attorneys' fees in attempting to obtain Plaintiffs' compliance and seeking court intervention. For example, by the court's calculation, attorneys Lauridsen and Marais together billed nearly $20,000 for work on the sanctions motion alone. The court finds that a sanction of $25,000 is justified in these circumstances, and acknowledges that this amount represents a significant discount from the actual attorneys' fees incurred by EA as a result of Plaintiffs' counsel's actions. The court finds that $25,000, coupled with the evidentiary consequences set forth above, are an appropriate sanction here. The entire $25,000 shall be paid by Plaintiffs' counsel to EA within 30 days of the date of this order.

IV. CONCLUSION

For the foregoing reasons, EA's motion for sanctions is granted in part. The court awards attorneys' fees in the amount of $25,000, which must be paid by Plaintiffs' counsel within 30 days of the date of this order.

IT IS SO ORDERED. Dated: April 3, 2018

/s/_________

Donna M. Ryu

United States Magistrate Judge