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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BREAKING CODE SILENCE,
Plaintiff,
v.
MCNAMARA, et al.,

Defendants.
Case No. 2:22-cv-02052-MAA
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS
McNAMARA’S AND
JEREMY WHITELEY’S MOTION
TO COMPEL SLACK
COMMUNICATIONS AND FOR
SANCTIONS (ECF NO. 94)
I. INTRODUCTION
Filed on July 12, 2023 and presently before the Court—in this now-dismissed
matter1
—is Defendants McNamara’s and Jeremy Whiteley’s Motion to
Compel Slack Communications and for Sanctions (“Motion”). (Mot., ECF No. 94.)
The Motion was filed jointly by Defendants McNamara (“McNamara”)
and Jeremy Whiteley (“Whiteley”) (together “Defendants”) on the one hand, and
1
On April 8, 2024, elven months after the filing of the instant motion, Plaintiff
BCS filed a request for voluntary dismissal of the case with prejudice pursuant to
Federal Rule of Civil Procedure (“Rule”) 41(a)(2). (ECF No. 198.) The Court
granted BCS’s request on May 8, 2024. (ECF No. 210.)
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Plaintiff Breaking Code Silence (“BCS”) on the other, in the form of a Joint
Stipulation as required by Central District of California Local Civil Rule (“Local
Rule”) 37-2. (Id. at 2–3.2
) As more fully explained below, because BCS produced
Slack communications to the satisfaction of Defendants before the case was
voluntarily dismissed by BCS, the only question pending before the Court is that of
monetary sanctions. (ECF No. 138.)
In support of the Motion, Defendants filed the Declaration of M. Adam Tate
(“Tate Declaration”) (Tate Decl., ECF No. 94-1) with Defendant Exhibits 1 through
24 (Def. Exs., ECF Nos. 94-2–94-25), the Declaration of Catherine A. Close (ECF
No. 94-26) with Defendant Exhibits 25 through 29 (Def. Exs., ECF Nos. 94-27–94-
31), and the Declaration of McNamara (ECF No. 94-32).
BCS opposes the Motion. (See generally Mot.) In support of its opposition,
BCS filed the Declaration of Michael P. Brown (ECF No. 94-34) and the
Declaration of Dennis Kiker (“Kiker Declaration”) (Kiker Decl., ECF No. 94-35).
Having read and considered the papers by the parties and other records in this
case, the undersigned finds the Motion suitable for disposition without a hearing.
See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons set forth below, the
Court GRANTS in part and DENIES in part the Motion.
II. FACTUAL BACKGROUND
A. BCS’s Allegations
BCS brought this action under the Computer Fraud and Abuse Act (18
U.S.C. § 1030) (“CFAA”), and the California Computer Data Access and Fraud Act
(Cal. Penal Code § 502) (“CDAFA”) (“Complaint”). (Compl., ECF No. 2.) Based
on the Joint Stipulation to Strike Allegations and Limit Claims, the parties agreed to
narrow the claims asserted in the Complaint to the allegation that Defendants
2
Pinpoint cites citations of page numbers in the Order refer to the page numbers appearing in the ECF-generated headers of cited documents.
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accessed a BCS computer or account without authorization, or in excess of
authorized access, and caused BCS’s website (breakingcodesilence.org and/or
breakingcodesilence.com) to be de-indexed. (ECF Nos. 146–47.)
According to the Complaint,3
on or about March 10, 2022, Defendants
accessed BCS’s account with Google without permission or authorization from
BCS and caused the website to be deindexed on Google. (Compl. 10.) The effect
of the deindexing was that no one could find BCS’s website on Google. (Id. at 11.)
The timing of the deindexing was problematic for BCS because, earlier that day,
BCS had been featured on a television show and expected a rise in website traffic
and, in turn, donations. (Id.) In addition, a made-for-TV film about the stories of
two troubled-teen industry survivors that highlighted BCS’s work was being
promoted around this same time and was scheduled to debut on March 12, 2022,
which also was expected to result in a rise in website traffic and donations. (Id.)
Instead, from the date of the deindexing, Google Analytics reported a significant
and dramatic drop in traffic to the BCS website. (Id.)
B. The Discovery Dispute
On June 14, 2022, McNamara propounded Requests for Production of
Documents (Set 1) on BCS. (Mot. 10; Tate Decl. ¶ 2; Def. Ex. 1, at 8.) Request
No. 15 asked BCS to produce: “all Slack chat messages and logs for BCS from
March 14, 2021 to the present, including audit logs reflecting any alterations and
deletions.” (Id.) According to Defendants, the relevance of the Slack
communications to this litigation is that BCS’s leadership discussed BCS’s
investigation into the deindexing through Slack chat messages and those
3
In summarizing the alleged claims, the Court neither opines on the veracity or
merit of the allegations and claims, nor makes any findings of fact. Indeed, any
such opinions or findings would be unnecessary as the case was dismissed on May
8, 2024, before the Court had an opportunity to rule on the Motion.
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communications could reveal what actually caused the deindexing. (Mot. 5.) In
addition, Defendants contend that those Slack communications could reveal “the
true reasons for the instant lawsuit,” which Defendants believed to be retaliation
against them by BCS’s leadership for complaining about harassment, and to obtain
a windfall by suing Defendants through pro bono attorneys. (Id.) On July 29,
2022, BCS responded to Request No. 15 with objections and a statement that
“[s]ubject to and without waiving the foregoing objections, [BCS] will produce
responsive, non-privileged documents that relate to the claims or defenses in this
action, to the extent any exist.” (Id. at 10; Tate Decl. ¶ 3; Def. Ex. 2, at 12.)
On September 13, 2022, pursuant to a stipulation by the parties, the Court
issued a Stipulated Order re: Amended Joint E-Discovery Plan and Protocol for
Discovery of Electronically Stored Information (“ESI”) (“EDO”). (EDO, ECF No.
41.) In relevant part, the EDO provides the protocol that the parties were to follow
in responding to discovery. Specifically, it provides that the parties would collect
documents from each of the data sources identified in Section 4.4 (“EDO Data
Sources”), including, relevant here, Slack text messages and audit logs, for each of
the custodians listed in Section 4.3 (“EDO Custodians”). (EDO 6.) Section 7.1 of
the EDO provides that the parties would “produce, on a rolling basis, ESI from the
data sources and Custodians identified in paragraph 4.3 and 4.4.” (Id. at 9.)
On March 23, 2023, Defendants filed a Motion to Compel Compliance with
Court Orders and for Sanctions under 28 U.S.C. § 1927 and the Court’s Inherent
Authority (“March 2023 Motion”). (March 2023 Mot., ECF No. 44.) Through the
March 2023 Motion, Defendants sought sanctions against BCS for, among other
things, failing to comply with provisions of the EDO, including failing to collect
and produce Slack documents from the EDO Custodians. (See generally March
2023 Mot.) Although the title of the March 2023 Motion identified only two
sources of sanctions sought by Defendants—28 U.S.C. § 1927 and the Court’s
inherent authority—Defendants also sought sanctions under Rule 37(b)(2)(C). (See
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id. at 2, 9, 24, 27–28, 31.) On March 28, 2023, the Court found that the March
2023 Motion “appear[ed] to be a disguised discovery motion seeking not only
sanctions for discovery misconduct, but also an order compelling discovery”
(“March 28, 2023 Order”). (March 28, 2023 Order, at 1, ECF No. 45.) On this
basis, the Court struck the March 2023 Motion and invited Defendants to follow its
requirement to engage in a pre-motion informal discovery conference. (Id. at 2.)
On April 18, 2023, the Court conducted the parties’ third informal discovery
conference in this matter4
(“IDC 3”) to address, in relevant part, Defendants’
request for an order compelling BCS to collect and produce documents, including
the Slack documents, as detailed in the EDO, by a date certain. (IDC 3 Order 1,
ECF No. 52.) At the conference, the Court ordered BCS to provide a chart listing
the EDO Custodians on one axis, the EDO Data Sources on the other axis, and for
each cell a statement whether the particular data sources had been searched for as to
each custodian. (Id. at 3.) The Court also set a further informal discovery
conference for April 24, 2023 to monitor BCS’s progress in its discovery
production. (Id. at 2.)
On April 24, 2023, the Court conducted the parties’ fourth informal
discovery conference (“IDC 4”). (ECF No. 53.) BCS’s chart showed, among other
things, that BCS had collected 1,148 Slack documents from its own data sources
(none of which had been produced) but had not collected Slack documents from the
private channels of any of the EDO Custodians. (Mot. 11–12; Tate Decl. ¶ 7; Def.
Ex. 3.) At IDC 4, the Court ordered BCS to provide additional information
regarding, among other things, whether the EDO Custodians actually had any of the
EDO Data Sources and a proposal for the searches to be conducted by the EDO
Custodians of the EDO Data Sources for documents responsive to Defendants’
4
The first two informal discovery conferences in this matter were not related to this
Motion.
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document requests, which necessarily included, without specific mention, the Slack
documents. (IDC 4 Order, ECF No. 54, at 1–2.) The Court set a further informal
discovery conference for May 1, 2023 to continue monitoring BCS’s discovery
progress. (Id. at 2.)
On May 1, 2023, the Court conducted the parties’ fifth informal discovery
conference (“IDC 5”). At IDC 5, the Court learned that, although BCS previously
had advised it had reviewed and was ready to produce in excess of 1,100 Slack
documents, it had not made that production. (IDC 5 Tr., 17:25 –18:1, ECF No. 84.)
On this basis, the Court ordered BCS to complete its production of the Slack
documents by no later than May 5, 2024 (“IDC 5 Order”). (IDC 5 Order 1, ECF
No. 56.) The Court also ordered that, “[s]hould Defendants, upon review of the
production, contend, on the basis of reasonable, non-speculative belief, that [BCS] [was] withholding relevant, non-privileged documents, they [could] file a discovery
motion pursuant to [Rule] 37,” holding for this purpose that “the parties ha[d] satisfied their pre-motion meet-and-confer obligations . . . .” (Id. at 1–2.)
On June 14, 2023, Defendants filed a Motion to Compel Production of Slack
Communications and for Sanctions (“June 2023 Motion,” ECF No. 69), which the
Court struck for failure to comply with the Local Rule 37-2 requirement that a
discovery motion be submitted in the form of a joint stipulation (ECF No. 72).
As part of Defendants process to convert the June 2023 Motion into a joint
stipulation, the parties met and conferred via email on June 19, 2023. (See
generally Def. Ex. 9.) Through this email exchange, BCS advised Defendants that
it was working with its vendor to produce screenshots of the private channel Slack
communications. (Id. at 1.)
On July 12, 2023, Defendants filed the instant Motion. (Mot.) Through the
Motion, Defendants asks the Court to (1) order—for a second time—that BCS
produce the Slack documents, and (2) award evidentiary and monetary sanctions
against BCS and its counsel for their withholding of same. (Id. at 6.) In response,
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BCS explains that its original Slack license permitted only the collection of Slack
messages from the public channels, which it had produced on May 1 and 4, 2023,
and that it subsequently identified a method permitting the collection from private
channels and direct messages, which it had collected on June 27–30, 2023, and
intended to produce by July 14, 2023, two days after the filing of the Motion. (Id.
at 6–7; Kiker Decl. ¶¶ 5–6, 9–10, 26.)
Because BCS’s intended July 14, 2023 production had the potential to moot
the Motion in whole or in part, the Court convened a Status Conference related to
the Motion on July 25, 2023. (ECF No. 104.) Although Defendants confirmed that
BCS had made a production of the Slack private channel documents, they noted
they had not had sufficient opportunity to review the production and could not
advise the Court whether the production mooted the Motion. (Id. at 1–2.) The
Court set a second Status Conference for July 27, 2023. (Id.) There, Defendants
advised the Court that BCS’s production still was not complete and identified a new
issue related to the production, for which the Court ordered the parties to meet and
confer and set a third Status Conference for August 8, 2023. (ECF No. 106.)
There, the parties advised that, although BCS had not yet produced the Slack
private channel documents, it was willing to do so. (Suppl. Mot. 6.) On this basis,
the Court ordered BCS to complete its Slack private channel document production
by August 18, 2023, and set a fourth Status Conference for August 29, 2023
(“August 8, 2023 Order”). (Aug. 8, 2023 Ord., ECF No. 116.) Despite their efforts
in advance of the August 29, 2023 Status Conference to resolve the pending
disputes regarding BCS’s Slack private channel document production, the parties
had not resolved all issues and jointly requested additional time to confer, upon
which the court set a fifth Status Conference for September 12, 2023. (ECF No.
135.) It was at the September 12, 2023 Status Conference that Defendants finally
were able to confirm that BCS’s Slack document production was complete, which
rendered moot the production component of the Motion (“September 12 Slack
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Conference”). (Sept. 12 Slack Conf. at 1, ECF No. 138.) On this basis, the Court
took the monetary sanctions component of the Motion under submission. (Id.)
On April 10, 2024, the Court ordered the parties to supplement the Motion in
two respects (“April 10 Order”). (April 10 Order, at 3–4, ECF No. 200.) First,
because Defendants’ request for attorneys’ fees was presented in the Motion as a
lump sum for each attorney, Defendants were ordered to provide an itemization of
the time each attorney spent on each category of task. (Id. at 4.) The Court
prohibited Defendants from adding attorneys’ fees beyond those originally
requested in the Motion. (Id.) Second, because Defendants contended—without
legal authority other than a statutory reference to Rules 37(a)(5) and 37(b)(2)(C)—
that they are entitled to recover fees incurred in, among other things, (i) meeting
and conferring before the Motion, and (ii) preparing for and appearing at IDCs
related to the Motion, Defendants were ordered to brief the question whether such
fees are recoverable under these rules. (Id.) BCS was ordered to respond on both
issues. (Id.)
On April 25, 2024, Defendants filed a Supplemental Joint Stipulation re:
Attorney’s Fees on Defendants McNamara and Jeremy Whiteley’s
Motion to Compel Slack Communications and for Sanctions (“Supplemental
Motion”). (Suppl. Mot., ECF No. 204.) In support of the Supplemental Motion,
Defendants filed the Declaration of M. Adam Tate (“Supplemental Tate
Declaration”) (Suppl. Tate Decl., ECF No. 204-1) with Exhibits 1 and 2 (ECF Nos.
204-2–204-3). BCS opposes the Supplemental Motion. (See generally Suppl.
Mot.) In support of its opposition, BCS filed the Declaration of Dennis Kiker (ECF
No. 204-4) with Exhibits 1 through 11 (ECF Nos. 204-5–204-15). Accordingly, the
monetary sanctions component of the Motion is ripe for adjudication.
///
///
///
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III. DISCUSSION
Through the Motion, Defendants seek $21,412.005
in monetary sanctions
against BCS and its counsel pursuant to Rule 37(a)(5)(A)6
and 37(b)(2)(C) “to
cover the costs of the IDCs that Defendants’ counsel was forced to attend on this
issue and the costs associated with the instant motion to compel.” (Mot. 26; Tate
Decl. ¶ 34.) In the Supplemental Motion, Defendants provide the requested
itemization of fees and legal argument supporting the categories of fees they seek.
(See generally Suppl. Mot.) In addition, respecting the Court’s order that they not
include fees beyond those originally requested in the Motion, Defendants request an
opportunity to seek the attorneys’ fees and costs associated with meeting and
conferring regarding, and attending, the five Status Conferences that followed the
filing of the Motion. (Suppl. Mot. 8.)
A. Defendants Are Not Entitled to Their Reasonable Expenses in
Bringing the Motion Under Rule 37(a)(5)(A).
Pursuant to Rule 37(a)(5)(A), if a discovery motion is granted or if the
requested discovery is provided after the motion is filed, the Court must “after
giving an opportunity to be heard, require the party . . . whose conduct necessitated
the motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s
fees.” Fed. R. Civ. P. 37(a)(5)(A). Rule 37(a)(5)(A) also provides that, before
5
Originally, Defendants sought $18,710.00 in monetary sanctions. (Mot. 26.)
However, in preparing the Supplemental Motion, Defendants discovered a
calculation error and clarify that the corrected amount of attorneys’ fees sought is
$21,412.00. (See Suppl. Tate Decl. ¶¶ 12.a.iii, 12.b.iii, 12.c.iii, 12.d.iii, 12.e.iii.)
6
Although Defendants do not specify the subsection of Rule 37(a)(5) pursuant to
which they seek monetary sanctions, they cite the substance of Rule 37(a)(5)(A).
(See generally Mot. 26; Suppl. Mot.) This Order proceeds on this basis.
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granting an award of reasonable expenses, a court must determine whether any of
the three exceptions to the rule apply. Id. Pursuant to these exceptions, the Court
may not order this payment if: “(i) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery without court action; (ii) the
opposing party’s nondisclosure, response, or objection was substantially justified;
or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A)(i)–(iii). The party contesting the discovery sanction bears the burden
of establishing substantial justification or that other circumstances make an award
of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.
1994). The Ninth Circuit has made clear that “the opportunity to submit briefs”
satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Mont.
Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the
Rule 37 sanctions issues to be resolved were such that an evidentiary hearing
would not have aided the decision-making process, district court did not abuse its
discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival
Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard
does not require an oral or evidentiary hearing on the issue.” (citations omitted));
Lynch v. Cassavetes, No. 13-4317 DSF (JC), 2014 U.S. Dist. LEXIS 195015, at
*10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by
an opportunity to respond in writing).
Here, the Court concludes that the circumstances do not warrant an award of
attorneys’ fees under Rule 37(a)(5)(A) for the simple reason that Defendants’
request that the Court compel production of the Slack communication documents
was unnecessary. Indeed, the Court had issued an order compelling BCS to
produce the Slack communication documents more than two months before
Defendants filed their Motion. At IDC 5 on May 1, 2023, the Court ordered BCS
to produce these documents by no later than May 5, 2023. (IDC 5 Order 1.)
Defendants acknowledge this critical fact in the Motion: “Defendants respectfully
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request that the Court order [BCS] to produce the Slack communications (for a
second time) . . . .” (Mot. 6 (emphasis added).) When BCS did not comply with
the Court’s May 1, 2023 order, Defendants’ remedy was not to file a motion under
Rule 37(a) to once again compel BCS’s production of the Slack documents, but
rather to file a motion for sanctions under Rule 37(b)(2) for BCS’s failure to
comply with the May 1, 2023 order. Because Defendants’ request to compel
discovery under Rule 37(a) is redundant, it could not have been granted. In the
absence of such an order, Defendants are not entitled to their attorneys’ fees under
Rule 37(a)(5)(A). For this reason, Defendants’ request for the reasonable expenses
it incurred in bringing the Motion under Rule 37(a)(5)(A) is DENIED.
B. Defendants Are Entitled, Under Rule 37(b)(2)(C), to Recover the
Reasonable Expenses that BCS’s Discovery Failure Caused Them
to Incur.
Although Defendants may not be entitled to an award of attorneys’ fees
under Rule 37(a)(5)(A), the Court concludes that they are entitled to recover, under
Rule 37(b)(2)(C), the reasonable expenses they incurred as a result of BCS’s failure
to comply with the Court’s May 1, 2023 and August 8, 2023 orders to produce the
Slack communication documents.
1. Legal Standard
Pursuant to Rule 37(b), a party may seek monetary and nonmonetary
sanctions for another party’s failure to comply with a discovery order. Fed. R. Civ.
P. 37(b)(2). Rule 37(b)(2)(C) requires that a district court, instead of or in addition
to nonmonetary sanctions allowed in Rule 37(b)(2)(A), “order the disobedient
party, the attorney advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the [discovery] failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(C). Thus, for fees to be awarded pursuant to Rule
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37(b)(2)(C), there must be a “causal connection” between a litigant’s discovery
misconduct and the legal fees incurred by the opposing party. Goodyear Tire &
Rubber Co. v. Haeger, 581 U.S. 101, 108 n.5 (2017). “That kind of causal
connection . . . is appropriately framed as a but-for test: the complaining party . . .
may recover ‘only the portion of his fees that he would not have paid but for’ the
misconduct.” Id. at 109 (quoting Fox v. Vice, 563 U.S. 826, 836 (2011)). As
explained by the Supreme Court in Haeger:
This but-for causation standard generally demands that a
district court assess and allocate specific litigation
expenses—yet still allows it to exercise discretion and
judgment. The court’s fundamental job is to determine
whether a given legal fee . . . would or would not have
been incurred in the absence of the sanctioned conduct.
The award is then the sum total of the fees that, except for
the misbehavior, would not have accrued.”
Id. at 109–10.
Trial courts, however, “need not, and indeed should not, become greeneyeshade accountants.” Id. at 110. “‘The essential goal’ in shifting fees is ‘to do
rough justice, not to achieve auditing perfection.’ Accordingly, a district court
‘may take into account [its] overall sense of a suit, and may use estimates in
calculating and allocating an attorney’s time.’” Id. (alteration in original) (internal
citations omitted) (quoting Fox, 563 U.S. at 838). The disobedient party shoulders
the burden of avoiding such sanctions by establishing substantial justification for
the discovery misconduct or that special circumstances make the award of expenses
unjust. See 1970 Advisory Comm. Notes to Rule 37(b).
2. Analysis
Defendants contend that BCS’s failure to produce the Slack documents until
September 8, 2023 constitutes a violation of at least two Court orders: (1) the
EDO, which requires BCS to collect and produce documents from the EDO Data
Sources, including Slack communications, for each of the EDO Custodians, and
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(2) the Court’s August 8, 2023 order which required BCS to complete its Slack
production by August 18, 2023. (Suppl. Mot. 12; EDO ¶¶ 2.13, 3.1, 4.4, 8.1; Aug.
8, 2023 Order 1.) In addition, the Court sua sponte notes that BCS’s September 8,
2023 production also violated the Court’s May 1, 2023 order requiring BCS’s Slack
document production to be completed by May 5, 2023. (IDC 5 Order 1.)
a. Sanctions Are Not Warranted for Violation of the EDO.
As a starting point, the Court is not persuaded that BCS violated the EDO, as
Defendants contend. (Suppl. Mot. 12.) Defendants concede that BCS produced the
Slack documents and, in fact, made that representation to the Court on September
12, 2023. (Id.; Sept. 12 Slack Conf. 1.) And they make no argument that BCS’s
ultimate Slack document production violated any particular term of the EDO. (See
generally Suppl. Mot.)7
While Defendants argue that BCS’s production was
completed only after many months of meeting and conferring over BCS’s
numerous and evolving explanations as to why a complete production was not
7
Based on the Court’s review of Defendants’ exhibits, it appears that some portion
of the Slack documents may have been produced in the form of screen shots (see
Def. Exs. 8–10) rather than in their original form with metadata, obtained directly
from the EDO Custodians, as required by the EDO (EDO ¶¶ 2.13, 3.1, 4.4, 8.1).
This could constitute a violation of the EDO. Apparently anticipating this
argument, BCS contends that two provisions of the EDO expressly allow it to
collect and produce Slack communications in whatever way it deems most efficient,
presumably as screen shots: (1) Section 4.5, which provides that the collection of
ESI is subject to “industry standards and approved methods”; and (2) Section 6.1,
which provides that production under the EDO is subject to the proportionality
considerations of the Federal Rules of Civil Procedure. (Mot. 27.) However, this
argument falls short because BCS fails to identify the industry standards and
approved methods it contends apply to the collection of Slack communications as
screen shots rather than original files, and provides no evidence suggesting that the
collection and production of the Slack communications at issue here would be
disproportional to the needs of the case, as contemplated by Rule 26(b)(1). Either
way, because neither the Motion nor the Supplemental Motion provide clarity as to
the format of BCS’s Slack document production, the Court cannot conclusively find
that BCS’s production violated the relevant provisions of the EDO.
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possible (Suppl. Mot. 11), the interim deficient productions were cured, for
purposes of the EDO, by BCS’s September 8, 2023 complete production. Thus, the
only concern that remains after the filing of the Motion and the subsequent Status
Conferences is that BCS’s Slack document production was untimely. (Suppl. Mot.
12.) But Defendants point to no provision in the EDO that in any manner addresses
the timing of a production, and the Court, through its own search, can find none.
(See generally EDO.) As such, the Court cannot conclude that BCS violated the
EDO in connection with its Slack document production, significantly delayed as it
was.
b. Sanctions Are Warranted for Violation of the Court’s May
1, 2023 and August 8, 2023 Orders.
It cannot be disputed that BCS’s failure to complete its Slack document
production until September 8, 2023 constitutes a violation of the Court’s May 1,
2023 order (requiring production by May 5, 2023) and the Court’s August 8, 2023
order (requiring production by August 18, 2023). Notwithstanding this unassailable
fact, BCS contends that sanctions are not warranted because the Motion was
unnecessary in that Defendants knew, at least by June 19, 2023, that BCS intended
to take and produce screen shots of the Slack private channel communications at
issue. (Mot. 27; Def. Ex. 9.) But even this after-the-fact June 19, 2023 statement
by BCS—that it intended to produce some unidentified Slack private channel
communications on some unidentified date—does not cure the violation of the
Court’s prior May 1, 2023 order to produce the Slack documents by May 5, 2023.
Moreover, BCS did not complete its Slack document production until September 8,
2023, also well after the August 18, 2023 deadline set by the Court’s August 8,
2023 order.
BCS’s single authority in its defense—Bryant v. Mattel, Inc., No. 04-09049
SGL(RNBx), 2007 U.S. Dist. LEXIS 102034 (C.D. Cal. Jun. 20, 2007)—is
inapposite here. As a starting point, the citation does not point to a discovery order;
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instead, the order concerns an act of the court vacating a hearing date. See Bryant,
2007 U.S. Dist. LEXIS 102034, at *1. The Court is unable to locate the order to
which BCS refers and believes this is so because it appears to be an order issued by
a Discovery Master that is not contained in the Court’s docket.
Even if the Bryant order stands as the example for which it is cited—one
court declining to award sanctions where the offending party offered to produce the
outstanding discovery one day before the opposition to a motion to compel was due
(Mot. 28)—it nevertheless is well-established in this Circuit that “[b]elated
compliance with discovery orders does not preclude the imposition of sanctions.”
N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.
1986). As the Ninth Circuit has explained, the “[l]ast-minute tender of documents
does not cure the prejudice to opponents nor does it restore to other litigants on a
crowded docket the opportunity to use the courts.” Id.; see also Fair Housing of
Marin v. Combs, 285 F.3d 899, 905–06 (9th Cir. 2002) (rejecting defendant’s
argument that sanctions should not have been entered against him because he
eventually produced the documents at issue); Anheuser-Busch, Inc. v. Nat.
Beverage Distributors, 69 F.3d 337, 354 (9th Cir. 1995) (“This court has squarely
rejected the notion that a failure to comply with discovery rules is purged by
belated compliance.”); G-K Properties v. Redevelopment Agency of San Jose, 577
F.2d 645, 647–48 (9th Cir. 1978) (discussing the harm to both the opposing party
and litigants in other cases caused by disregard of discovery obligations and
orders).
Moreover, BCS offers no evidence that would preclude the Court from
awarding sanctions pursuant to either of the two exceptions to Rule 37(b)(2)(C).
Fed. R. Civ. P. 37(b)(2)(C). The first exception—that the failure to comply with a
court order is substantially justified—does not apply. Both the Ninth Circuit and
the Supreme Court have offered guidance regarding the standard for establishing
“substantial justification” sufficient to avoid a discovery sanction. In Hyde, the
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Ninth Circuit stated that “a good faith dispute concerning a discovery question
might, in the proper case, constitute ‘substantial justification . . . .’” Hyde, 24 F.3d
at 1171 (citation omitted). The Supreme Court has explained that the standard is
“satisfied if there is a ‘genuine dispute’. . . or ‘if reasonable people could differ as
to the appropriateness of the contested action.’” Pierce v. Underwood, 487 U.S.
552, 565 (1998) (citations and alterations omitted).
Here, it was not until September 8, 2023—almost fifteen months after the
request was served, and almost two months after the Motion was filed—that BCS
completed its production of the Slack documents. But BCS offers no persuasive
evidence of substantial justification for this untimeliness. At best, BCS argues that
it “ha[d] been making efforts since November 2022 to produce Slack
communications” (Mot. 27) and that it “ha[d] from the beginning acted in good
faith with regard to its Slack productions” (Suppl. Mot. 13). BCS explains that it
relied on the advice of its forensic analyst that BCS had produced all Slack data that
was available for collection, and that it was only when the Court “forced
Defendants to engage in a meaningful meet-and-confer process” that BCS was able
to make the production. (Id. (emphasis added).)
Setting aside that the recollection of the Court differs pointedly from BCS’s
contention that Defendants are to blame for BCS’s discovery failures, the evidence
plainly shows that it was BCS, not Defendants, who failed to engage in meaningful
meet-and-confer efforts. Indeed, it was Defendants who undertook the research and
demonstrated to BCS and the Court that, despite BCS’s assertions to the contrary,
(1) BCS’s forensic analyst not only could, but indeed advertised its ability to,
collect data “from private channels and [direct messages] with the license that BCS
ha[d]”; and (2) the website for Slack’s help center stated that “regardless of the
level [of license], workplace owners may contact Slack and apply to export data
from private channels and direct messages.” (Def. Ex. 10, at 2, 6; Def. Ex. 12, at
2.) And when Defendants asked the obvious follow-up questions—whether BCS
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could provide evidence in support of its contention that its forensic analyst could
not ingest from private channels and whether BCS had contacted Slack to apply to
export data from private channels and direct messages—BCS dodged the questions
and responded only that it was its “understanding that [its forensic analyst’s] capabilities are necessarily limited by the Slack license permissions.” (Def. Ex. 13,
at 2.)
BCS’s argument that it acted in good faith fares no better. Indeed, the
presence or absence of a disobeying party’s good or bad faith “is relevant to the
choice of sanctions rather than to the question whether a sanction should [be] imposed.” Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978); see also
Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v.
Rogers, 357 U.S. 197, 208 (1958) (finding that, because Rule 37 requires only a
failure to obey an order and not a refusal, the question of willfulness is “relevant
only to the path which the district Court might follow in dealing with” the failure to
comply). “[E]ven negligent failures to allow reasonable discovery may be
punished.” Marquis, 577 F.2d at 642.
The second exception—that other circumstances make an award of expenses
unjust—also does not apply. This is because BCS does not make this argument and
the Court finds no evidence of such circumstances. (See generally Mot.; see
generally Suppl. Mot.) Even liberally construing BCS’s contention that “[s]ince
the documents were produced well before the close of discovery, Plaintiff’s efforts
did not prejudice Defendants” (Mot. 27) as an argument under the second
exception, it is unpersuasive. As a starting point, BCS cites no authority to support
its contention that lack of prejudice somehow renders an award of expenses under
Rule 37(b)(2)(C) unjust. (See generally Mot.; see generally Suppl. Mot.)
Moreover, while delay alone does not constitute prejudice, “[f]ailure to produce
documents as ordered . . . is considered . . . prejudice.” Adriana Int’l Corp. v.
Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (internal citation omitted) (emphasis
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added). Finally, BCS appears to have forgotten that the Court extended the original
fact discovery cut-off not once, but twice—from June 1, 2023 (ECF No. 31) to
August 30, 2023 (ECF No. 58 at 2–3), and again to September 30, 2023 for
Defendants only (ECF No. 135 at 1)—on both occasions to allow BCS additional
time to complete its Slack document production. Completing the Slack document
production on September 8, 2023—a full ninety-nine days after the original
discovery cut-off and only twenty-two days before the second-extended discovery
cut-off—hardly constitutes completion “well before the close of discovery.”
Accordingly, the Court finds that Defendants are entitled, under Rule
37(b)(2)(C), to the reasonable expenses that BCS’s discovery failure caused them to
incur.

C. Defendants Are Entitled to an Award of $15,342.
1. Legal Standard
When an award of attorneys’ fees is authorized, the court must calculate the
proper amount of the award to ensure that it is reasonable. Hensley v. Eckerhart,
461 U.S. 424, 433–34 (1983). In the Ninth Circuit, the court must perform a twostep process to determine the reasonableness of any fee award. Fischer v. SJBP.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court determines the
“lodestar figure.” See Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).
“The ‘lodestar’ is calculated by multiplying the number of hours the prevailing
party reasonably expended on the litigation by a reasonable hourly rate.” Camacho
v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted).
Second, where appropriate, the Court may adjust the lodestar amount based on
several factors adopted by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc.,
526 F.2d 67, 70 (9th Cir. 1975), known as the Kerr factors:
(1) the time and labor required, (2) the novelty and
difficulty of the questions involved, (3) the skill requisite
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to perform the legal service properly, (4) the preclusion
of other employment by the attorney due to acceptance of
the case, (5) the customary fee, (6) whether the fee is
fixed or contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount involved and
the results obtained, (9) the experience, reputation, and
ability of the attorneys, (10) the ‘undesirability’ of the
case, (11) the nature and length of the professional
relationship with the client, and (12) awards in similar
cases.
Kerr, 526 F.2d at 70.
A strong presumption exists “that the lodestar figure represents a reasonable
fee.” Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996). The
Ninth Circuit has made clear that “[o]nly in rare instances should the lodestar figure
be adjusted on the basis of other considerations.” Id. (citations omitted). “Under
the lodestar approach, many of the Kerr factors have been subsumed as a matter of
law.” Id. (citation omitted). The Kerr factors that are subsumed within the initial
lodestar calculation are the novelty and complexity of the issues, the special skill
and experience of counsel, the quality of representation, the results obtained in the
action, and the contingent nature of the fee agreement. Id. at 364 n.9 (citations
omitted). “Adjusting the lodestar on the basis of subsumed reasonableness factors
after the lodestar has been calculated, instead of adjusting the reasonable hours or
reasonable hourly rate at the first step . . . is a disfavored procedure.” Id. (citation
omitted).
The party seeking the award of fees must submit evidence to support the
request. Van Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
Specifically, the party must support the request with evidence regarding the
“number of hours worked and the rates claimed.” Id. The party opposing the fee
request bears the “burden of rebuttal that requires submission of evidence to the
district court challenging the accuracy and reasonableness of the hours charged or
the facts asserted by the prevailing party in submitted affidavits.” Common Cause
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v. Jones, 235 F.Supp.2d 1076, 1079 (C.D. Cal. 2002) (quoting Gates, 987 F.2d at
1397).
2. Analysis
a. The Attorney/Other Hourly Rates Claimed by Defendants
Are Reasonable and Commensurate with the Prevailing
Rate.
Defendants claim the following hourly rates for their counsel: $470.00 for
Mr. M. Adam Tate;8
$450.00 for Ms. Catherine Close; 9 $300.00 for Mr. Adam J.
Schwartz; and $150.00 for Ms. Rebekah Chamberlain. (Tate Decl. ¶¶ 12.a.iii;
12.b.iii; 12.c.iii; 12.d.iii.) Defendants also claim an hourly rate of $200.00 for Ms.
Helene Saller, a paralegal. (Id. ¶ 12.e.iii.) Although BCS does not dispute these
rates (see generally Mot.; Suppl. Mot.), the Court nevertheless conducts an
independent review to ensure that the lodestar requested is appropriate for this
Motion. For the reasons stated below, the Court approves the requested hourly
rates.
In determining whether the hourly rate billed is reasonable for purposes of an
attorneys’ fees award, the Court must ensure that the requested rates “are in line
with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465
U.S. 886, 895 n.11 (1984); accord Carson v. Billings Police Dep’t, 470 F.3d 889,
891 (9th Cir. 2006) (noting that the party seeking fees must prove that the rate
8
In the Motion, Defendants claim two rates for Mr. Tate ($425.00 for Mr. Tate
until February 2023 when his rate increased to $470.00 upon becoming a partner),
but the billings detailed in the Supplemental Motion are at an hourly rate of
$470.00. (Tate Decl. ¶ 34.a.ii ; Suppl. Tate Decl. ¶ 12.a.iii.)
9
In the Motion, Defendants claim two rates for Ms. Close ($430.00 for Ms.
Catherine Close in 2022 and $450.00 commencing in January 2023), but the
billings detailed in the Supplemental Motion are at an hourly rate of $450.00. (Tate
Decl. ¶ 34.b.ii; Suppl. Tate Decl. ¶ 12.b.iii.)
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charged is in line with the “prevailing market rate of the relevant community.”
(citation omitted)). The burden is on the fee applicant “to produce satisfactory
evidence—in addition to the attorney’s own affidavits—that the requested rates are
in line with those prevailing in the community. . . .” Camacho, 523 F.3d at 980
(citation omitted). For this purpose, “the relevant community is the forum in which
the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).
“[R]ates outside the forum may be used if local counsel was unavailable, either
because they are unwilling or unable to perform because they lack the degree of
experience, expertise, or specialization required to handle properly the case.” Id.
(citation and quotation marks omitted). Accordingly, the relevant community here
is the Central District of California. In addition, the court may rely on its own
experience to determine a reasonable hourly rate. See Ingram v. Oroudjian, 647
F.3d 925, 928 (9th Cir. 2011). Finally, in exercising its discretion in setting a fee,
the court must assess the “reasonableness of the fee in light of the totality of the
circumstances.” Jordan v. Multonah Cty., 815 F.2d 1258, 1262 n.7 (9th Cir. 1987).
Here, Defendants do not offer a declaration of an attorneys’ fees expert. (See
generally Mot; Tate Decl.) Instead, Mr. Tate attests that the hourly rate of attorneys
and paralegals in Los Angeles and Orange Counties with similar levels of
experience as Mr. Tate, Ms. Close, Mr. Schwartz, Ms. Chamberlin, and Ms. Saller
typically meet or exceed their hourly rates. (Tate Decl. ¶¶ 34.a.ii, 34.b.ii, 34.c.ii,
34.d.ii, 34.e.ii.) In addition, Mr. Tate provides the following information about his
experience:
I started as an associate for JBB in September 2016 and
am now a partner. I received my J.D., with honors, from
the J. Rueben Clark Law School (BYU) in 2011. I have
practiced commercial litigation in Orange County since
passing the bar in 2011. I am an experienced trial and
appellate attorney.
(Tate Decl. ¶ 34.a.i.; Suppl. Tate Decl. ¶ 12.a.i.)
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Mr. Tate provides the following information about Ms. Close’s experience:
Ms. Close has been an associate with JBB since May
2002. She received her J.D., with honors, from the
Whittier College School of Law in 1998. She has
practiced commercial litigation in Orange County since
passing the bar in 1998. She is an experienced trial
lawyer, participating in numerous trials of complex
business matters in both state and federal courts. She has
also drafted many appellate briefs.
(Tate Decl. ¶ 34.b.i.; Suppl. Tate Decl. ¶ 12.b.i.)
Mr. Tate provides the following information about Mr. Schwartz’s
experience:
Adam J Schwartz has been a solo practitioner since 2012.
Prior to that time, he was a litigation associate at Paul
Hastings for nearly five years. Mr. Schwartz received his
J.D., with honors, from The George Washington
University Law School in Washington, D.C. in 2007,
where he was a member of the International Law Review
and was a Thurgood Marshall Scholar his 1L year. Mr.
Schwartz has practiced white collar criminal and
commercial litigation in Washington, D.C. and Los
Angeles County since passing the bar in 2007. He is
admitted to practice law in both California and the District
of Columbia. He is an experienced litigator, with
experience in business disputes, as well as white collar
criminal, employment, defamation, copyright, and
trademark matters.
(Tate Decl. ¶ 34.c.i.; Suppl. Tate Decl., ¶ 12.c.i.)
Mr. Tate provides the following information about Ms. Chamberlin’s
experience:
Rebekah Chamberlin has worked for JBB as a law clerk
since August 2021. She passed the California Bar this last
month and was recently promoted to be an associate
attorney. Ms. Chamberlin received her J.D. from the J.
Rueben Clark Law School (BYU) in 2021.
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(Tate Decl. ¶ 34.d.i.; Suppl. Tate Decl., ¶ 12.d.i.)
Mr. Tate provides the following information about Ms. Saller’s experience:
Helene Saller has worked for JBB as a litigation paralegal
since 2019, specializing in legal research and filings, trial
preparation, discovery and document control. She studied
political science at Arizona State University and received
her paralegal certificate from Pasadena City College in
1992. She has worked in the legal industry since 1992 for
both large and small firms, with extensive experience in
the areas of civil practice, employment law, medical
malpractice, and complex litigation.
(Tate Decl. ¶ 34.e.i.; Suppl. Tate Decl., ¶ 12.e.i.)
The Court notes that, according to the Wolters Kluwer 2023 Real Rate
Report (Mid-Year Update) (“Real Rate Report”),10 $800.00 is the median hourly
rate for commercial litigation partners in Los Angeles and $645.00 is the median
hourly rate for commercial litigation associates in Los Angeles. (Real Rate Report
88.) Here, the hourly rates for Mr. Tate, Ms. Close, and Mr. Schwartz fall below
the respective median rate for their positions. (Compare Tate Decl. ¶¶ 34.a.ii,
34.b.ii, 34.c.ii, 34.d.ii with Real Rate Report 88.) In addition, the Real Rate Report
provides that $270.00 is the median hourly rate for commercial litigation paralegals
10 The Court gives due weight to information contained in the Real Rate Report, a
publication that provides data-driven benchmarking for attorney hourly rates. See,
e.g., Smith v. Cty. of Riverside, No. EDCV 16-227 JGB (KKx), 2019 U.S. Dist.
LEXIS 170421, at *5 (C.D. Cal. June 17, 2019) (“[A] number of district courts in
California have relied on the Real Rate Report.”). The information provided by the
Real Rate Report is persuasive because, rather than using self-reported rates
aggregated across all practice areas throughout the country, as appear in other
surveys, it reflects actual legal billing through paid and processed invoices
disaggregated for location, experience, firm size, areas of expertise, industry, and
practice areas. (See Real Rate Report 5.)
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in the United States11. (Real Rate Report 44.) Ms. Saller’s rate falls below this
median rate. (Tate Decl. ¶ 34.e.ii.) The Real Rate Report does not include rates for
law clerks, such as Ms. Chamberlin prior to her promotion to associate attorney.
(See generally Real Rate Report; Tate Decl. ¶ 34.d.) However, the Court finds Ms.
Chamberlin’s hourly rate of $150.00 to be reasonable. See, e.g., Kries v. City of
San Diego, Nos. 17-cv-1464-GPC-BGS, 17-cv-2014-GPC-BGS, 18-cv-0229-GPCBGS, 2021 U.S. Dist. LEXIS 6826, at *26 (S.D. Cal. Jan. 13, 2021) (finding
$150.00 hourly rate for law clerk reasonable); Carr v. Tadin, Inc., 51 F. Supp. 3d
970, 980–81 (S.D. Cal. 2014) (finding $200.00 hourly rate for law clerks
reasonable). With this, the Court is persuaded that the hourly rates of $470.00 for
Mr. Tate, $450.00 for Ms. Close, $300.00 for Mr. Schwartz, $150.00 for Ms.
Chamberlin, and $200.00 for Ms. Saller are appropriate here.
b. The Hours Billed Are Excessive and/or Unrecoverable
Under Rule 37.
Defendants’ request for $21,412 in attorneys’ fees is based upon the
following lodestar calculation of stated hours multiplied by the hourly rates detailed
(and approved) above.
Work Performed Biller Hours
Billed Sub-Total
PREPARATION OF THE MOTION
Time spent drafting the Original Slack
Motion and the supporting documents
including the motion to seal. Tate 13.5 $6,345
Time spent drafting the slack Motion and
the supporting documents including the
motion to seal. Close 4.7 $2,115
Time spent drafting the Slack Motion and
the supporting documents. Primarily
legal research and conferences discussing
the Motion with Defendants’ other
counsel
Schwartz 4.5 $1,350
11 Paralegal information is not available for commercial litigation in Los Angeles.
(See Real Rate Report 44.)
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Work Performed Biller Hours
Billed Sub-Total
Time spent drafting the slack Motion and
the supporting documents including the
motion to seal. Chamberlin 19.2 $2,880
Time spent drafting templates for the
motion and supporting documents. Saller 1.2 $240
Time spent revising the motion and
supporting documents. Saller 13.7 $2,740
Subtotal: Preparation of the Motion 56.8 $15,670

INFORMAL DISCOVERY CONFERENCES
Time spent preparing for and attending
informal discovery conferences prior to
the Original Slack Motion being filed. Tate 4.6 $2,162
Time spent preparing for and attending
informal discovery conferences prior to
the Original Slack Motion being filed.
Close 2.1 $945
Draft IDC request Schwartz 2.5 $750
Subtotal: Informal Discovery Conferences 9.2 $3,857

DOCUMENT REVIEW
Time spent reviewing the Slack
documents to ensure that the production
was complete
Tate 0.5 $235
Time spent reviewing the Slack
documents to ensure that the production
was complete
Chamberlin 0.4 $60
Subtotal: Document Review 0.9 $295

MEET AND CONFER
Time spent meeting and conferring with
opposing counsel Tate 1.0 $470
Subtotal: Meet and Confer 1.0 $470

CLIENT / TEAM COMMUNICATIONS
Time spent communicating with the
clients and Defendants’ other attorneys about the resolution of the Slack issue Tate 2.0 $940
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Work Performed Biller Hours
Billed Sub-Total
Time spent communicating with the
clients and Defendants’ other attorneys about the Slack issue
Close 0.4 $180
Subtotal: Client/Attorney Communications 2.4 $1,120

TOTAL 70.3 $21,412
(Tate Suppl. Decl. ¶¶ 12.a.iii, 12.b.iii, 12.c.iii, 12.d.iii, 12.e.iii.)
Defendants note that, consistent with the Court’s April 10, 2024 order
requiring supplementation, this itemization is limited to the fees incurred in
connection with the Motion. (Suppl. Mot. 8.) Nevertheless, they request an
opportunity to seek the attorneys’ fees and costs associated with meeting and
conferring regarding, and attending, the five Status Conferences that followed the
filing of the Motion. (Id.)
BCS challenges the number of hours requested by Defendants, arguing that
the fees attributed to the following tasks are not recoverable because they are part
and parcel of the normal course of discovery: (1) meeting and conferring with
opposing counsel, (2) communicating with clients, (3) preparing for and attending
informal discovery conferences prior to the filing of the Motion, and (4) reviewing
the Slack documents. (Suppl. Mot. 13–14.) In addition, BCS challenges the
number of hours spent on preparing the Motion and asks the Court to reduce the
number of hours to a reasonable minimum. (Id. at 14.) Finally, BCS does not
respond to Defendants’ request to seek the attorneys’ fees and costs expended in
connection with the five Status Conferences. (See generally Suppl. Mot.)
The Court addresses each challenge in turn and, for the reasons stated below,
concludes that the some of the hours requested by Defendants are excessive and/or
unrecoverable under Rule 37 and reduces the requested attorneys’ fees from
$21,412 to $15,342.
///
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(i) The 56.8 hours requested for the preparation of the
Motion are not fully warranted.
Defendants request a combined 56.8 hours for preparing the Motion. They
clarify that the hours sought are those expended by Defendants in relation to what
Defendants call, without expressly defining, the “Original Slack Motion.” (Suppl.
Mot. 8.) BCS argues that these hours should be reduced to a reasonable, but
unspecified, amount because it is unclear to which of Defendants’ three Slackrelated motions the hours pertain. (Suppl. Mot. 14.)
BCS is correct that Defendants have filed three Slack-related motions:
(1) the motion for discovery and other sanctions filed on March 23, 2023, which the
Court struck as a disguised discovery motion filed without first participating in the
required IDC procedure (March 2023 Mot.; March 28, 2023 Order); (2) the motion
for discovery sanctions filed on June 14, 2023, which the Court struck because it
was not filed in the form of a joint stipulation as required by Local Rule 37-2 (June
2023 Mot.; ECF No. 72); and (3) the instant Motion (ECF No. 94). However, the
Court is not confused. In light of Defendants’ request for an opportunity to seek
attorneys’ fees for the five Status Conferences “which were held after the Original
Slack Motion was filed” (Suppl. Mot. 8), the Court reverse-engineers the reference
and concludes that the “Original Slack Motion” can only mean the instant Motion.
With that issue resolved, the Court now turns to a consideration of whether
an award of 56.8 hours is warranted. As a starting point, the documented 56.8
hours exceed those awarded in this district for the preparation of a discovery motion
by at least forty-seven percent (47%). See, e.g., Nguyen v. Regents of the Univ. of
Cal., No. 8:17-cv-00423-JVS-KESx, 2018 U.S. Dist. LEXIS 226622, at *9–12
(C.D. Cal. May 18, 2018) (approving 38.9 hours for the preparation of a joint
stipulation); Dish Network L.L.C. v. Jadoo TV, Inc., No. 2:18-cv-9768-FMO (KSx),
2019 U.S. Dist. LEXIS 221869, at *18 (C.D. Cal. Nov. 8, 2019) (approving 32
hours for the preparation of a discovery motion). However, the Motion did not
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stand alone; rather, it was supported by two declarations totaling 19 pages (ECF
Nos. 94-1,94-26) and approximately 500 pages of exhibits (ECF Nos. 94-2–25, 94-
27–31), all of which take time to compile and assemble. In addition, because
certain documents had been designated by BCS as “Confidential” under the
Stipulated Protective Order issued in this case (ECF No. 29), Defendants were
forced to file an application to file four exhibits under seal, which involved
approximately 185 pages of documents (ECF Nos. 95, 96). For these reasons, the
Court finds that 56.8 hours represents a reasonable amount of time for the
preparation of the Motion as written, yielding an award of $15,670.00.
In addition, the Court recognizes that Defendants spent time preparing the
Supplemental Motion requested by the Court to include supporting evidence that
was not provided in the original Motion. (See generally April 10 Order.) However,
in requesting the Supplemental Motion, the Court prohibited the addition of any
hours beyond those sought in the Motion. (Id.) Thus, the Court has no information
regarding the amount of time spent on the preparation of the Supplemental Motion.
Nevertheless, in the interest of fairness, and considering the complexity of the legal
arguments raised therein, the Court adds five (5) hours to Defendants’ total hours
for motion preparation. Assuming the same $275.89 blended hourly rate as for the
Motion,12 this yields an award of $1,379.45 for the Supplemental Motion.
That said, the Court notes that Defendants were only partially successful in
the Motion. The Motion sought two orders—a second order to compel the
production of the Slack documents and an initial order awarding sanctions for
BCS’s failure to comply with the Court’s discovery orders—the former herein
found to be unnecessary. (See Section III.A., supra.) Thus, the Court must
discount the hours Defendants’ counsel spent working on the unnecessary, and
denied, portion of the Motion. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)
12 Calculated by dividing the $15,670.00 fees by to the 56.8 hours.
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(“[W]here the plaintiff achieved only limited success, the district court should
award only that amount of fees that is reasonable in relation to the results
obtained”.) While not based on “exact science,” the Court finds it appropriate to
strike thirty percent (30%) of the 61.8 hours for the preparation of the Motion and
Supplemental Motion by each biller.
For these reasons, the Court GRANTS in part and DENIES in part
Defendants’ request for attorneys’ fees expended in the preparation of the Motion
and the Supplemental Motion. The Court will award a total of 43.3 hours, and
based on the applicable hourly rates, $11,935, for this category of work.
(ii) The 9.2 hours requested for time spent in informal
discovery conferences are not fully warranted.
Defendants request a combined 9.2 hours for preparing for and attending
informal discovery conferences held before the filing of the Motion, including the
preparation of the Request for Informal Discovery Conference. (See supra.) BCS
objects to any award of fees for hours related to informal discovery conferences
because the Court’s local rules contemplate the need for, and provide a mechanism
for, discovery dispute resolution which includes informal discovery conferences.
(Suppl. Mot. 13.) It notes that Defendant’s “request for fees for engaging in a
mandatory process intended to avoid motion practice makes no sense and would
undermine the Court’s established process for resolving discovery disputes.” (Id.)
Courts in this Circuit have awarded attorneys’ fees under Rule 37 for time
spent preparing for and attending informal discovery conferences. See, e.g., MP
Nexlevel of Cal, Inc. v. CVIN, LLC, No. 1:14-cv-00288-LJO-EPG, 2016 U.S. Dist.
LEXIS 139407, at *10 (E.D. Cal. Oct. 5, 2016) (awarding attorneys’ fees under
Rule 37(b)(2)(C) for time spent preparing for and participating in informal
discovery conference); Alutiiq Int’l Sols., LLC v. Lyon, No. 2:11-cv-01104-GMNPAL, 2012 U.S. Dist. LEXIS 133070, at *10–11 (D. Nev. Sept. 17, 2012)
(awarding attorneys’ fees under Rule 37(a)(3) for preparing for and attending
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multiple discovery conferences); Project Sentinel v. Komar, No. 19-CV-00708
DAD-EPG, 2020 U.S. Dist. LEXIS 119048, at *26 (E.D. Cal. July 6, 2020)
(including fees for participating in informal discovery conference in Rule
37(a)(5)(A) award); Maclay v. Sahara, No. C12-512-RSM, 2012 U.S. Dist. LEXIS
177516, at *10 n.5 (W.D. Wash. Dec. 14, 2012) (awarding attorneys’ fees under
Rule 37(a)(5)(A) for time spent preparing for and attending discovery conference).
Here, Defendants prepared for and attended three informal discovery
conferences that involved BCS’s production of the Slack communication
documents—IDC 3 on April 18, 2023, IDC 4 on April 24, 2023, and IDC 5 on May
1, 2023. IDC 3 lasted two hours (see IDC 3 Order); IDC 4 lasted two hours and ten
minutes (see IDC 4 Order); and IDC 5, where the first order compelling BCS’s
production of the Slack communication documents was issued, lasted two hours
and ten minutes (see IDC 5 Order), for a total of six hours and ten minutes.
Defendants seek a combined total of 6.7 hours for the work of two attorneys
preparing for and attending the three conferences; thus, there does not appear to be
any duplication and it appears that Defendants already have reduced their
preparation and attendance time substantially. Defendants also seek 2.5 hours in
preparing the informal discovery conference request. The Court finds this amount
of time to be excessive given that (1) informal discovery conference requests are
one page, of which each side prepares one half, and (2) the request was prepared by
an attorney of Mr. Schwartz’s extensive litigation experience (see Tate Decl.
¶ 34.c.i.; Suppl. Tate Decl., ¶ 12.c.i.). As such, the Court finds it appropriate to
reduce the hours for preparing the informal discovery conference request from 2.5
hours to 1 hour, at Mr. Schwartz’s $300.00 hourly rate, for a total reduction of
$450.00. Thus, the Court will award 7.7 hours for the preparation for and
attendance of IDCs 3, 4, and 5 and the preparation of the informal discovery
conference request, for a total of $3,407.00.
///
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(iii) The 0.9 hours requested for document review are
not recoverable.
Defendants request a combined 0.9 hours for review of BCS’s supplemental
Slack document production to determine if it was complete. (See supra.) BCS
objects to any award of fees for hours related to this document review because
“Defendants would have had to review the Slack documents regardless of when and
how they were produced,” and any such time necessitated by the filing of any
discovery motion should be encompassed in the time spent drafting those motions.
(Suppl. Mot. 14.)
Time spent reviewing documents produced in discovery generally is not
recoverable under Rule 37. See, e.g., Notorious B.I.G. LLC v. Yes Snowboards, No.
CV 19-1946-JAK (KSx), 2021 U.S. Dist. LEXIS 252735, at *17–19 (C.D. Cal.
Dec. 22, 2021) (finding that time spent reviewing documents are not recoverable
under Rule 37 because they “do not reflect additional work caused by . . . failure to
comply with the Court’s Order” and “reflect general discovery tasks that would
have to be done whether or not Defendant complied with the Court’s Order”); True
Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-02219-HSG (DMR), 2015
U.S. Dist. LEXIS 70620, at *8–9 (N.D. Cal. Feb. 27, 2017) (declining to award
Plaintiffs’ fees for time spent reviewing Defendants’ documents “because that is a
task Plaintiff would have had to perform ‘in any event’ in order to properly evaluate
their claims”); Logtale, Ltd. v. IKOR, Inc., No. C-11-5452 EDL (DMR), 2015 U.S.
Dist. LEXIS 16853, at *18 (N.D. Cal. Feb. 11, 2015) (“Reviewing documents
produced in discovery is part of the normal course of litigation, and Plaintiff has not
shown that it would not have reviewed those documents but for Defendants’
discovery misconduct”). But see DCD Partners, LLC v. Transam. Life Ins. Co.,
No. 2:15-cv-03238-CAS (GJSx), 2018 U.S. Dist. LEXIS 226010, at *6–8 (C.D.
Cal. June 13, 2018) (acknowledging that several district courts have excluded fees
for document review from Rule 37(b)(2)(C) sanction awards, but awarding fees
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where the document review “was performed solely to assess the adequacy of
defendant’s production and defendant’s compliance with the court’s orders, rather
than for substantive purposes”).
The Court is persuaded by the reasoning of the courts finding that document
review is not recoverable under Rule 37. Although Defendants did review the
supplemental Slack document productions in temporal relation to the Motion,
Defendants would have had to review these documents whether or not a motion was
pending. There was nothing unique or particular about the Court’s May 1, 2023
and August 8, 2023 orders regarding the Slack production that would have required
an extraordinary or uncommon review to ensure compliance therewith; they merely
ordered BCS to produce the Slack documents, the completeness of which
production Defendants would have had to review regardless of whether it followed
a court order or not. (See IDC 5 Order 1 (“Plaintiff shall produce to Defendants . . .
the relevant, non-privileged documents of the subset of 919 documents that remain
from the original 1,148 document collection of Slack documents, by no later than
May 5, 2023.”); see also Aug. 8, 2023 Order 1 (“Pursuant to the agreement of the
parties, Plaintiff is ORDERED to complete its production of Slack documents to
Defendants by no later than August 18, 2023.”).) For this reason, the Court
DENIES Defendants’ request for 0.9 hours of document review.
(iv) The 1.0 hour requested for meeting and conferring
is not factually supported.
Defendants request one hour for its counsel to meet and confer with BCS.
(See supra.) BCS objects to any award of fees for meeting and conferring to
resolve the discovery dispute because such conferences are embedded into the
process that is intended to resolve the dispute. (Suppl. Mot. 13.)
“Courts are divided on the compensability of [time spent meeting and
conferring], but the prevailing view is that they are not.” Infanzon v. Allstate Ins.
Co., 335 F.R.D. 305, 314 (C.D. Cal. 2020) (finding that attorneys’ fees for meeting
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and conferring are not compensable under Rule 37(a) and Rule 37(b)). Compare,
e.g., Notorious B.I.G. LLC v. Yes Snowboards, No. CV 19-1946-JAK (KSx), 2021
U.S. Dist. LEXIS 252735, at *19–20 (C.D. Cal. Dec. 22, 2021) (explaining that
“[c]ourts in this Circuit generally hold that time spent to meet and confer is not
recoverable” and denying attorneys’ fees for meeting and conferring under Rule
37(b)(2)(C)), and Halo Unlimited, Inc. v. Anthem Blue Cross Life & Health Ins.
Co., No. 8:20-cv-00399-JAK-KES, 2023 U.S. Dist. LEXIS 13864, at *14 (C.D.
Cal. Jan. 25, 2023) (concluding that attorneys’ fees for meet-and-confer efforts are
not compensable under Rule 37(b)(2)(C)), with DCD Partners, LLC v. Transam.
Life Ins. Co., No. 2:15-cv-03238-CAS (GJSx), 2018 U.S. Dist. LEXIS 226010, at
*8–10 (C.D. Cal. June 13, 2018) (discussing split in authority but awarding fees
and costs for meet-and-confer efforts under Rule 37(b)(2)(C)), and Andreoli v.
Youngevity Int’l, Inc., No. 16-cv-02922-BTM-JLB, 2019 U.S. Dist. LEXIS 100298,
at *26–27 (S.D. Cal. June 14, 2019) (awarding attorneys’ fees, pursuant to Rule
37(b)(2)(C), incurred from meet-and-confer efforts), and Premiere Innovations,
Inc. v. Iwas Indus., LLC, No. 07cv1083-BTM(BLM), 2009 U.S. Dist. LEXIS
142894, at *8 (S.D. Cal. May 8, 2009) (awarding attorneys’ fees for meeting and
conferring pursuant to Rule 37(b)).
Here, the Court need not decide whether meet-and-confer fees are
recoverable because, even if they were, the Court would be constrained from
approving such a request in that the relevant billing entry—“Time spent meeting
and conferring with opposing counsel”—is devoid of any information that would
inform the question of when this meet-and-confer occurred and its subject matter.
(See supra.) While Defendants note that the fees requested are those in connection
with the bringing of the Motion (Mot. 26), it remains unclear whether the
conference/s was/were for the purpose of compelling the production in the first
instance—fees the Court would not approve because they are not permitted under
Rule 37(a)(5)—or for seeking compliance with the Court’s orders—fees the Court
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would consider under Rule 37(b)(2)(C) if the evidence supported it. Courts
reviewing hours billed for purposes of a lodestar calculation have the discretion to
discount hours that are impermissibly vague and do not appear to pertain to the
preparation of the discovery motion. For example, in Dubose v. Cty. of Los
Angeles, No. CV 09-7832 CAS (AJWx), 2012 U.S. Dist. LEXIS 81362, at *14–18
(C.D. Cal. June 11, 2012), the court imposed a 20% across-the-board reduction on
fees because they were, among other things, not related to the motion. Id.
Similarly, in Sandoval v. Yeter, CV 18-0867-CBM (JPRx), 2019 U.S. Dist. LEXIS
227406, at *9–10 (C.D. Cal. Oct. 31, 2019), the court discounted time entries on the
ground that they were not for motion-related work. Id. For this reason, the Court
DENIES Defendants’ request for 1.0 hour of meeting and conferring.
(v) The 2.4 hours requested for communicating with
clients and among counsel are not recoverable.
Defendants request a combined 2.4 hours for the time its counsel spent
communicating with them and among the litigation team regarding the Motion.
(See supra.) Although BCS objects to an award of such fees, it does not set forth
the basis for its objection. (Suppl. Mot. 13–14.) Still, the Court is not aware of
any authority, and Defendants offer none, that contemplate awarding attorneys’ fees
for the very basic function of communicating with a client and with the litigation
team about the litigation. See, e.g., Notorious B.I.G. LLC v. Yes Snowboards, No.
CV 19-1946-JAK (KSx), 2021 U.S. Dist. LEXIS 252735, at *17–19 (C.D. Cal.
Dec. 22, 2021) (finding that hours spent conferring with clients and counsel are not
recoverable under Rule 37 because they “do not reflect additional work caused by .
. . failure to comply with the Court’s Order” and “reflect general discovery tasks
that would have to be done whether or not Defendant complied with the Court’s
Order”). For this reason, the Court DENIES Defendants’ request for 2.4 hours of
their attorneys communicating with them and among themselves.
///
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(vi) Fees for attending five post-Motion Status
Conferences are not justified.
Defendants request an opportunity to further supplement the Motion for the
purpose of seeking fees related to their preparation for, and attendance at, the five
Status Conferences that followed the filing of the Motion. (Suppl. Mot. 8; ECF
Nos. 104, 106, 116, 135, 138.) The Court finds that an award of such fees is not
warranted. Each of the five Status Conferences was necessitated by Defendants’
having jumped the proverbial gun and filed the Motion after being informed that
BCS intended to produce Slack documents two days after the Motion was to be
filed, which triggered the question whether the Motion would become moot in two
days. The first Status Conference—convened on July 25, 2023—was completely
unproductive because, despite having been served with a production of Slack
documents by BCS eleven days earlier, Defendants were not prepared to advise the
court if that document production was complete and thereby mooted the Motion.
(ECF No. 104.) At the three Status Conferences that followed—July 27, 2023,
August 8, 2023, August 29, 2023—the parties reported that new issues had arisen in
connection with BCS’s Slack document production necessitating more time to meet
and confer to resolve Defendants’ new concerns. (ECF Nos. 106, 116, 135.) It was
not until the final Status Conference—September 12, 2023—that Defendants were
able to report to the Court that the production had been completed on September 8,
2023 and all issues were resolved. (Sept. 12 Slack Conf. 1.) Thus, the Status
Conference process that followed the filing of the Motion was one in which the
parties would have had to engage even without the filing of the Motion as BCS
continued to supplement its document production. As such, the Court DENIES
Defendants’ request to further supplement the Motion to include a request for fees
associated with those Status Conferences.
///
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c. The re-calculated Lodestar results in an attorneys’ fees
award of $15,342 and no Kerr adjustment is necessary.
The Court re-calculates the lodestar for a total of $15,342 as follows:
Work Performed Approved
Hours Sub-Total
Subtotal: Preparation of the Motion 43.3 $11,935
Subtotal: Informal Discovery Conferences 7.7 $3,407
Subtotal: Document Review 0.0 $0
Subtotal: Meet and Confer 0.0 $0
Subtotal: Client/Team Communications 0.0 $0
Subtotal: Post-Motion Status Conferences 0.0 $0
TOTAL 51.0 $15,342
Neither party requests an adjustment to the lodestar based on the Kerr
factors. (See generally Mot.) Indeed, upon a review of the Kerr factors not already
subsumed within the lodestar, the Court sees no reason to make such an adjustment.
On this basis, the final attorneys’ fee award pursuant to Rule 37(b)(2)(C) is
$15,342.
D. BCS Is Responsible for Paying the Sanction.
Defendants request that the Court impose the requested monetary sanctions
against BCS and its counsel, but sets forth no argument as to why counsel, in
addition to BCS, should be sanctioned. (Mot. 6.) Beyond stating that there is no
basis for sanctions against either BCS or its counsel, BCS does not address who
should be responsible for paying any awarded monetary sanctions. (Id. at 8; 27–
28.) Based on its review of the record, the Court imposes the sanctions ordered
herein against BCS only. The Court finds no reason to order BCS’s counsel to pay
the mandated sanctions. See, e.g., Lee v. Dennison, No. 2:19-cv-1332-KJD-DJA,
2020 U.S. Dist. LEXIS 185985, at *13 (D. Nev. Oct. 7, 2020) (declining to impose
sanctions against counsel in addition to sanctioned party because the “parties
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expressed no opinion on this aspect” and the court found “no reason to include
Plaintiff’s counsel” in the monetary sanctions order).
IV. ORDER
For the reasons set forth above, the Court GRANTS in part and DENIES in
part Defendants’ Motion as follows:
1. The production component of Defendants’ Motion is DENIED as
moot.
2. The monetary sanctions component of Defendants’ Motion is
GRANTED in part and DENIED in part. BCS is ORDERED to
pay Defendants’ attorneys’ fees in the amount of $15,342 by no later
than thirty (30) days after the date of this Order or on a later date
or dates by agreement of the parties or further order of the Court upon
properly-noticed motion.
3. BCS is ORDERED to (a) serve, pursuant to Rule 4, a copy of this
Order on every person who, as of the date of this Order, held or holds a
position as Member of BCS’s Board of Directors (“Current Board
Member”) or Officer of BCS (“Current Officer”) by no later than
fourteen (14) days after the date of this Order, and (b) file either
(i) a proof of such service, or (ii) an under-oath declaration by the
highest ranking Current Board Member or Current Officer as to why
any such service has not been made, by no later than twenty-one (21)
days after the date of this Order.
4. BCS is ORDERED to (a) serve, pursuant to Rule 4, a copy of this
Order on every person who, subsequent to the date of this Order, takes
on a position as Member of BCS’s Board of Directors (“Future Board
Member”) or Officer of BCS (“Future Officer) by no later than seven
(7) days after such person takes on such position, and (b) file either
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(i) a proof of such service, or (ii) an under-oath declaration by the then
highest ranking Board Member or Officer as to why such service has
no been made, by no later than fourteen (14) days after such person
takes on such position. This is an ongoing obligation that expires
only at such time as BCS has fully complied with the Order to pay to
Defendants the sum of $15,342.
5. BCS is hereby cautioned that failure to obey this Order, including
making payment on a timely basis, may result in the imposition of
further sanctions pursuant to Rule 37(b), including treating its
failure to obey this Order as contempt of court. BCS also is
cautioned that instead of or in addition to the above sanctions, the
Court could order BCS, its attorney, or both, to pay the
reasonable expenses, including attorneys’ fees, caused by their
failure to comply with this Order.
4. BCS’s Current and Future Officers and Board Members are
hereby cautioned that, under certain circumstances, they too could
be held personally liable for sanctions, including sanctions for
contempt of court, for BCS’s failure to comply with this Order.
DATED: July 25, 2024

HONORABLE MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE
Case 2:22-cv-02052-MAA Document 212 Filed 07/25/24 Page 38 of 38 Page ID
#:9162