*1 At docket 132, plaintiffs Alliance Labs, LLC (“Alliance”) and Enemeez, Inc. (collectively “plaintiffs”) filed a motion for sanctions against defendant Stratus Pharmaceuticals, Inc. (“Stratus” or “defendant”). In the motion, plaintiffs request that the court find defendant in contempt of the order entered on March 8, 2013, at docket 119, and issue case-terminating sanctions or, alternatively, order defendant to more fully comply with the order and to make its computer systems available for independent analysis. Defendant filed a response in opposition at docket 135. Plaintiffs' reply is at docket 137. Oral argument was not requested and would not assist the court.

Alliance is an Arizona company that markets and distributes enema products, including the Enemeez Mini Enema, the Enemeez Plus Mini Enema, and the Docusol Mini Enema (“Enemeez products”). Enemeez, Inc. is an Arizona company that manufactures Alliance's enema products. Stratus is a Florida corporation that markets and distributes competing enema products such as the Vacuant Mini-Enema and the Vacuant Plus Mini-Enema (“Vacuant products”).

Alliance alleges that Stratus's Vacuant products are “knock-offs” of its Enemeez products. Alliance maintains that Stratus has targeted its customers and represented Vacuant products to be less expensive than the Enemeez products, but equally effective. Alliance alleges that Stratus uses packaging that is virtually indistinguishable from the Enemeez packaging and that Stratus copied substantial portions of the Enemeez brochure to promote Vacuant products. Alliance also alleges that Stratus has misrepresented the number and quantities of active ingredients in the Vacuant products.

Alliance has asserted federal claims for false advertising under § 43(a)(1)(B) of the Lanham Act (Count I), unfair competition under § 43(a)(1)(A) of the Lanham Act (Count II), trademark infringement of the registered ENEMEEZ and DOCUSOL trademarks under § 32 of the Lanham Act (Count IV), and copyright infringement (Count VI). Alliance has asserted state law claims for unfair competition (Count III), trademark infringement (Count V), and unjust enrichment (Count VII).

On January 30, 2013, Alliance filed a second amended complaint to join Enemeez, Inc. as a party plaintiff pursuant to the court's order at docket 95. Subsequently, on March 6, 2013, Stratus, with new counsel, filed an answer to plaintiffs' second amended complaint and asserted various counterclaims against plaintiffs based on the allegation that plaintiffs' Enemeez products are not formulated as labeled.[1] Specifically, Stratus raises federal claims for false advertising under § 43(a)(1)(B) of the Lanham Act (Count I), unfair competition under § 43(a)(1)(A) of the Lanham Act (Count II), state law claims for unfair competition (Count III), and unjust enrichment (Count IV).

*2 At docket 106, around the time defendant obtained new counsel, plaintiffs filed a motion to compel pursuant to Rule 37 of the Federal Rules of Civil Procedure. The motion sought to compel defendant to answer interrogatories and produce documents after defendant failed to meet the deadline for such responses and then failed to meet the extended deadline agreed to by the parties during the meet and confer process. Specifically, it asked the court to “compel [defendant] to respond fully and without objection to each of [plaintiffs'] discovery requests within seven (7) days.”[2] Defendant did not file an opposition to the motion to compel, and, consequently, the court granted plaintiffs' motion to compel and ordered defendant to provide its “complete responses” to plaintiffs' interrogatories and requests for production of documents.[3] The court also granted plaintiffs' request for attorneys' fees incurred in connection with the motion to compel and directed plaintiffs to submit an application for fees to the court. The court awarded plaintiffs $7,220 in attorneys' fees.[4]

Defendant served its answers to interrogatories and responded to plaintiffs' requests for production. It represented to the court that it complied with the March 8 order.[5] Plaintiffs then filed the motion for sanctions, arguing that defendant did not comply with the court's order because its responses were “incomplete, and reflect spoliation, reckless or intentional withholding of material, or both.”[6] Specifically, plaintiffs argue that defendant's responses to their requests for document production were incomplete because they obtained documents from third parties that prove defendant did not turn over all relevant emails and documents, and because defendant failed to provide documents and materials that a pharmaceutical company would be expected to have. They argue that defendant engaged in spoliation, destroying batches of the Vacuant products that defendant purportedly made with 80% glycerin. They also argue that defendant provided incomplete responses to plaintiffs' interrogatories by asserting general objections after the time for objections had expired and after the court had ordered defendant to provide “complete responses.”

Under Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure, a party's failure to obey a court's discovery order can result in sanctions. Such sanctions may include the following:

“Rule 37(b)(2) contains two standards—one general and one specific—that limit a district court's discretion. First, any sanction must be ‘just’; second, the sanction must be specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.”[8] Case-dispositive sanctions should only be imposed in “extreme circumstances.”[9]Extreme circumstances are those where the violations were “due to willfulness, bad faith, or fault of the party.”[10]“Disobedient conduct not shown to be outside the litigant's control meets this standard.”[11] Before imposing case-dispositive sanctions, the court should specifically consider the risk of prejudice to the injured party and the availability of less drastic sanctions.[12]

*3 The plaintiffs assert that defendant is in violation of the court's March 8, 2013 discovery order because its responses to their interrogatories relied on objections despite the fact that defendant waived any objections and the fact that the court ordered defendant to provide complete responses. The plaintiffs correctly note that defendant waived objections to discovery requests when it failed to provide any response within the allotted time frame. Pursuant to Rule 33(b) of the Federal Rules of Civil Procedure, a responding party must serve answers and objections to interrogatories within thirty days after being served with interrogatories. Here, defendant failed to respond to plaintiffs' request for interrogatories within the allotted time or by the stipulated extended due date; it did not respond until after the court ordered it to do so on March 8, 2013. By refusing to respond, defendant waived any objections it might have had to the discovery requests.[13] Furthermore, the court's discovery order was in response to plaintiffs' motion to compel, which specifically asked the court to “compel [defendant] to respond fully and without objection to each of [plaintiffs'] discovery requests within seven (7) days.”[14] Defendant did not object to the motion, and the court granted it by requiring complete responses. There is no doubt that defendant was directed to respond fully and completely to plaintiffs' discovery requests, meaning without objections.

Upon review of the documents submitted in conjunction with this motion for sanctions, the court finds that defendant failed to completely respond to plaintiffs' interrogatories. It made seven general objections and several specific objections based, among other things, on overbreadth and burden despite the fact that defendant was directed to respond completely. Plaintiffs' responses do not demonstrate a good faith effort to provide complete responses as directed by the court.

Plaintiffs assert that defendant's responses to their requests for document production were also incomplete. Plaintiffs put forth a compelling case in both their motion and their reply brief to support their argument that defendant failed to provide complete responses. Plaintiffs asked for forty-nine types of documents and received only 109 documents in response, around half of which duplicated documents defendant had already produced as part of its initial disclosures.[15] Plaintiffs argue there should have been more documents, especially given evidence that shows defendant's President, Mr. Hoyo, decided to keep in-house copies of all product analyses and testing and lab reports going back a year.[16] In response, defendant asserts that it produced thousands of documents, but defendant's response is misleading because it confuses documents with page numbers.[17] More significantly, defendant produced only 40 emails in response to plaintiffs' document production requests and all of those emails were from Mr. Hoyo. There were no emails produced from the other fourteen employees that defendant identified as people with discoverable information.[18] Defendant argues that the other employees did not have responsive documents. Plaintiffs' reply shows this must be false, for buried in defendant's voluminous “weekly sales call reports” are references to over 90 emails with third-parties which were not produced.[19] Also, while Mr. Hoyo's declaration states that he instructed employees to find responsive documents, he fails to specify who was asked or otherwise provide details about the efforts made to search for documents and data.[20]

Plaintiffs describe four emails between defendant and third parties that were produced by those third parties, but not by defendant even though they appear to be emails within the relevant time frame which involve Vacuant products.[21]Defendant argues that it did not produce such documents because it wanted to avoid redundancy, but that argument is hardly credible given that many of the documents it did produce were copies of documents already disclosed. Defendant's failure to produce these emails suggests that they may not have disclosed other relevant correspondence with unsubpeoned third-parties and calls into question defendant's efforts in searching for responsive documents. This suggestion is strengthened by the fact that defendant did not produce emails that are referenced in the weekly sale call reports, as noted above. As plaintiffs persuasively argue, “even if these emails are the iceberg and not – as is likely–the tip of unproduced documents from the sales force, they present substantial additional evidence of [defendant's] contempt.”[22]

*4 Plaintiffs also point to an email disclosed by a third party in which Mr. Hoyo states that the attorney should be copied on all sensitive emails. That email states as follows:

This email suggests that Mr. Hoyo wanted employees to copy counsel as an attempt to make all emails privileged regardless of their content. However, a document is not necessarily privileged simply because an attorney is copied on it.[24] Defendant asserts that this email was produced by Sonar, a third party who was originally part of this lawsuit but subsequently dismissed, and that at the time this email was produced, Sonar had the same attorney as defendant who decided to turn over this email. Defendant explains “that at one time [defendant] may have arguably considered taking a broad view of privilege,” but that it opted not to take such a broad view as evidenced by the email's disclosure. If that were true, presumably the disclosed documents would have included at least some emails copied to counsel pursuant to Mr. Hoyo's directive, but plaintiffs assert that no such emails were disclosed. In fact, this email was produced by Sonar, not defendant. It is impossible to tell whether defendant is withholding other emails as privileged, because the only privilege log produced is a list of about fifty documents from Sonar, not defendant, and the log does not contain any descriptive information about the privileged documents.[25] Furthermore, plaintiffs assert that the email from Dr. DeMenna referenced in Mr. Hoyo's email was not disclosed and is not listed in a privilege log.

Finally, plaintiffs base their argument of incompleteness on the fact that defendant failed to produce certain types of documents a pharmaceutical company would be expected to have. According to plaintiffs, defendant's document production failed to include:

Given the evidence discussed above and the additional evidence put forth by plaintiffs in their motion and reply, plaintiffs have clearly and convincingly demonstrated that defendant's responses to plaintiffs' requests for production of documents were incomplete and that defendant either purposefully withheld documents or failed to make a good faith effort to locate documents. Defendant's failure to provide complete responses is a violation of the court's March 8, 2013 order. Furthermore, under Rule 37, an evasive or incomplete response is treated as a failure to respond, and thus can support sanctions.[27]

As discussed above, defendants failed to provide complete responses to plaintiffs' interrogatories and requests for production as directed by the March 8, 2013 order. Defendant fails to put forth a justification for its incomplete responses, especially in light of the fact that it only participated in the discovery process after unexcused delays and only after being compelled to do so. Mr. Hoyo's affidavit does not establish that appropriate efforts were made to discover and disclose relevant documents. It is clear that even if efforts were made, they were minimal given the evidence plaintiffs presented.

Imposing attorney's fees alone is not sufficient to assure that defendant will fully cooperate in the discovery process. The court awarded attorney's fees in its March 8, 2013 order, but defendant nevertheless provided incomplete discovery responses. However, the court concludes that case-dispositive sanctions are not yet warranted because defendant has not yet had adequate warning that its failure to cooperate more fully with discovery could lead to case-dispositive sanctions. Some intermediate sanction is warranted.

The plaintiffs' alternative suggestion of ordering a neutral, third-party forensic search of defendant's accessible electronic storage devices is a just and appropriate sanction for defendant's violations, especially given the evidence suggesting defendants have not produced documents that are, or at least should be, in its possession. While such a sanction is not specifically contemplated under Rule 37, the sanctions specified under Rule 37 are non-exclusive[28]and requiring a forensic analyst to search defendant's computer systems is less drastic than the other possible sanctions available to the court. A sanction that requires a third-party search of defendant's accessible electronic storage devices, the details of which will be set out below in the court's conclusion, will adequately remedy the defendant's conduct and deter future evasiveness. The court recognizes that there are some privacy issues involved with requiring a third-party to search defendant's computer systems, but defendant's actions have created serious doubt that plaintiffs will have access to relevant information with a less invasive sanction. Moreover, the court's order implementing this sanction (set out below) addresses the privacy concerns.

*6 Plaintiffs also request sanctions against defendant for destruction of relevant evidence. Plaintiffs assert that defendant modified the original formulation of its Vacuant products to reduce the amount of glycerin solution. In discovery. plaintiffs requested samples of certain batches or “lots” of Vacuant, including any made with the old formulation, but plaintiffs state that defendant only provided samples of lots that post-dated its formulation change. Based on discovery from a third-party, Sonar, plaintiffs learned that defendant destroyed lots of Vacuant having the old formulation. These lots were destroyed after the case had begun.[29]

“A party's destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant to the litigation before they were destroyed.’ ”[30] Here, defendant does not dispute that it destroyed six lots of Vacuant, but argues that “[p]laintiffs fail to identify any disputed material and relevant fact that they seek to prove that could be discovered by additional testing of the destroyed product lots.”[31] Specifically, defendant argues that the prior formulation is not in dispute and that plaintiffs already tested the six lots in question. However, as plaintiffs point out, the prior formulation is in dispute. In response to plaintiffs' request for admission asking defendant to admit that it sold Vacuant with the additional glycerin, defendant denied the request, stating that it has not tested all tubes sold, but the ones it tested did not contain extra glycerin. Plaintiffs also state that they only tested two of the six lots and that defendant never conceded the validity of those results. The prior formulation is relevant to the lawsuit because it is evidence of the quality of the Vacuant products and the products' development. Thus, there are material disputes surrounding the prior formulation of Vacuant, and defendant clearly engaged in spoliation when it failed to preserve samples of the six lots during the pendency of this litigation.[32]

As a sanction for destroying the six lots of Vacuant after the lawsuit had commenced, plaintiffs' Request for Admission No. 18, which requests defendant to admit it “has distriubted and/or sold commericial 5 ml. tubes of Vacuant containing gluycerin in a 80% v/v solution,” shall be deemed admitted.[33]

Plaintiffs' motion for sanctions at docket 132 is GRANTED as follows:

IT IS ORDERED:

1) Plaintiffs' Request for Admission No. 18, asking defendant to admit it “has distributed and/or sold commercial 5 ml tubes of Vacuant containing glycerin in a 80% v/v solution,” is deemed ADMITTED.

2) Defendant shall fully respond to plaintiffs' interrogatories without objection no later than fourteen (14) days from the date of this order. If defendant responds to an interrogatory by referencing documents it has produced, the references must be precise rather than general, and defendant must explain what type of information is disclosed in the document referenced and why the document is sufficiently responsive to plaintiffs' interrogatory.

*7 3) Plaintiffs shall retain a neutral forensic computer system examiner (“Examiner”) to search defendant's sources of electronic information looking for Responsive Documents and make copies of all Responsive Documents which are found. Responsive Documents include all word-processing documents, incoming and outgoing email messages, PowerPoint or similar presentations, spreadsheets, and other files or documents that refer to any of the enema products involved in this litigation. The examination and creation of copies shall be done at defendant's expense. Plaintiffs shall file a notice within 14 days from the date of this order identifying the Examiner, attesting that the Examiner is someone without an interest in this case and without any ties to plaintiffs, reciting the rates to be charged by the Examiner, and including as an attachment the Examiner's written representation that he or she will not disclose the results of his or her work on this case to anyone except in compliance with a confidentiality agreement approved by the court pursuant to this order and any future order from the court which might authorize additional disclosure. Defendant shall pay for the Examiner's services within 30 days from receipt of the Examiner's invoice. If Defendant fails to pay the Examiner, plaintiffs shall do so, advise the court of the amount paid, and then the court will order defendant to reimburse plaintiffs, plus an additional 15 %. The additional 15% is intended to spur defendant to timely pay the Examiner.

4) The parties are directed to meet, confer, and agree upon a confidentiality agreement to govern the Examiner's inspection of defendant's sources of electronic information and the disclosure of what is found. The confidentiality agreement shall be filed within 21 days from the date of this order.

5) After the confidentiality agreement has been approved by the court, defendant shall promptly allow Examiner to search its sources of electronic information for Responsive Documents. The inspection shall be conducted at mutually agreeable times. The Examiner shall provide copies of the Responsive Documents to defendant's counsel and simultaneously mail copies of the Responsive Documents to the assigned district judge at this address: United States District Court, 222 West 7th Avenue, #32, Anchorage, Alaska 99513. At that time, the Examiner shall also mail a notice to plaintiffs' counsel stating the date on which the Responding Documents were provided to defendant's counsel. Unless the Examiner causes plaintiffs to file for an extension of time supported by good cause, the Examiner must complete the inspection, create the copies of Responsive Documents and mail them as contemplated above within 28 days from the date the court approves the confidentiality agreement. Within 7 days of receiving the copies of the Responsive Documents, defendant's counsel shall send plaintiffs' counsel copies of all non-privileged Responsive Documents, together with a privilege log that expressly identifies any privilege claimed and describes each item not disclosed in a manner sufficient to “enable other parties to assess the applicability of the privilege or protection.”[34]Defendant shall also mail to the court a copy of everything provided to plaintiffs' counsel.

6) Plaintiffs are awarded reasonable attorney's fees and costs incurred in connection with the filing of the motion for sanctions which may include fees for the time needed to confer with defense counsel and participate in creating the confidentiality agreement noted above. Plaintiffs shall file a motion for a specified amount of attorney's fees and costs with a supporting memorandum within seven (7) days after the court files an order approving a confidentiality agreement. Defendant may respond in opposition to the amount requested (but not the right to a reasonable award) within 7 days from service of the memorandum, and plaintiffs may reply within 7 days from the service of the response. Plaintiffs are referred generally to this court's order at docket 148 for guidance in preparing their request.

Defendant is WARNED that failure to diligently comply with this order–including without limitation failure to timely give full and complete interrogatory answers, failure to promptly and in good-faith participate in the creation of a confidentiality agreement, and failure to timely provide Responsive Documents and any necessary privilege log to plaintiffs' counsel–may lead to case-dispositive sanctions.

Stratus also filed a related suit against Alliance in Florida state court in February of 2013 for unfair practices and tortious interference under Florida law. That case was removed to the United States District Court for the Southern District of Florida and then transferred to the District of Arizona (2:13-cv-1368) and consolidated with this action.

Doc. 106 at pp. 5-6.

Doc. 119.

Doc. 148.

Doc. 128 at p. 10, n.6.

Doc. 132 at p. 2.

Fed. R. Civ. P. 37.

Navellier v. Sletten, 262 F.3d 923, 947 (9th Cir. 2001) (quoting Ins. Corp. of Ireland, Ltd., v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)).

See Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995) (“Sanction orders taking the plaintiff's allegations as established and award judgment on that basis are ... authorized only in extreme circumstances.” (internal quotations omitted)); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (noting that dismissal sanctions should only be imposed in extreme circumstances).

Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (citation omitted).

Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990); Commodity Futures, 67 F.3d at 771.

Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (noting that failure to object to discovery within time allotted constitutes a waiver of objections).

Doc. 106 at pp. 5-6.

Doc. 137-1 at ¶ 6; Doc. 132-5.

Doc. 132-8.

Doc. 137-1 at ¶ 6.

Doc. 137-1 at ¶ 3.

There are over 2,500 pages of call logs; as an example, plaintiffs provide excerpts showing reference to four emails in these logs. Doc. 137 at p. 2; Doc. 137-3 (filed under seal).

Doc. 132 at pp. 6-7; Doc. 135-2.

Doc. 132-9.

Doc. 137 at p. 2.

Doc. 132-10. The reference to 2001 is presumably a reference to a lawsuit in which defendant was held liable for willful false advertising. See doc. 122-20.

See, e.g., United States v. Cohn, 303 F. Supp. 2d 672, 683-84 (D. Md. 2003) (“Communications are not privileged merely because one of the parties is an attorney or because an attorney was present when the communications were made.”).

Doc. 137-5.

Doc. 137-1 at pp. 2-3.

Fed. R. Civ. P. 37(a)(4).

See Maynard v. Nygren, 332 F.3d 462, 470 (7th Cir. 2003) (referring to Rule 37(b) sanctions as a “non-exclusive list”).

Doc. 132-13; doc. 122-24.

Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (quoting United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)).

Doc. 135 at p. 13.

See Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011)(noting that spoliation requires proof that the offending party had an obligation to preserve it when it was destroyed, that it was destroyed with a culpable state of mind, and that the evidence was relevant to the lawsuit).

Doc. 137-8 at 6. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (noting that a court can instruct the jury that it may draw an inference adverse to the party responsible for destroying the evidence as a sanction for spoliation of evidence).

Fed. R. Civ. P. 26(b)(5)(A).