*1 Before the Court is Plaintiff Nomadix, Inc.’s (“Plaintiff”) motion for review of an order by Magistrate Judge Mumm denying Plaintiff’s motion for sanctions. (Dkt. Nos. 412, 417). Defendant Guest-Tek Interactive Entertainment LTD. (“Defendant”) has filed an opposition to Plaintiff’s motion. (Dkt. No. 419). The Court heard oral argument regarding Plaintiff’s motion on October 11, 2019. Having considered the parties submissions, the relevant law, and Judge Mumm’s order, the Court DENIES Plaintiff’s motion.

I. BACKGROUND

On August 6, 2019, Plaintiff filed a motion for sanctions against Defendant based on Defendant’s alleged failure to comply with a Court order compelling discovery. (Dkt. No. 386). Plaintiff’s motion was based on certain gaps in information provided by Defendant, and Defendant’s failure to produce source code for the iBAHN Head-End Processor (“HEP Source Code”). On August 26, 2019, Judge Mumm issued a minute order denying Plaintiff’s motion, concluding that “Defendant has demonstrated the reason for the gaps in information and its inability to obtain the HEP Source Code. Defendant also has shown that it never had possession of the HEP Source Code.” (Dkt. No. 408). Plaintiff timely filed this motion to review Judge Mumm’s order.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure (“Rule”) 72(a), a district court may “modify or set aside” a magistrate judge’s non-dispositive pre-trial ruling only if the order is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). “The clearly erroneous standard, which applies to a magistrate judge’s findings of fact, is ‘significantly deferential, requiring a definite and firm conviction that a mistake has been committed.’ ” Green v. Baca, 219 F.R.D. 485, 488-89 (C.D. Cal. 2003) (quoting Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993)). The contrary to law standard “permits independent [de novo] review of purely legal determinations by the magistrate judge.” Green, 219 F.R.D. at 489 (quoting F.D.I.C. v. Fidelity & Deposit Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000)).

III. DISCUSSION

1. Judge Mumm’s finding that Defendant has demonstrated the reason for its inability to obtain the HEP Source Code is not clearly erroneous

Plaintiff contends that Judge Mumm’s order denying its motion for sanctions contains clearly erroneous factual findings, because undisputed facts show that Defendant had possession of the HEP Source Code when it acquired the assets of iBAHN General Holdings Corporation and its affiliates in March 2014, and undisputed facts show that Defendant had possession of the HEP Source Code at least through April 2017, i.e., through the first six months of this case. (Dkt. No. 417 at 1-2).

However, Defendant submitted or identified evidence supporting Judge Mumm’s finding that Defendant has demonstrated the reason for its inability to obtain the HEP Source Code. In particular, Defendant submitted or identified evidence showing that (1) Defendant never sold HEPs, and instead transitioned HEP customers to its own software after acquiring iBAHN in March 2014, (Dkt. No. 394-4 at ¶ 4), (2) HEP source code was not stored in Defendant’s servers, located in Canada, (Dkt. No. 388), and (3) iBAHN’s prior general counsel, Jack Brannelly, who managed the transition of iBAHN’s assets to Defendant, was not aware of Defendant ever taking possession of HEP source code, or the destruction of such code. (Dkt. No. 419-3). Defendant has also identified numerous inconsistencies in the Declarations of David Hulse and Stuart Clark, upon which Plaintiff relies to show that Defendant had possession, custody, or control over the HEP Source Code at least six months into this litigation.[1] (Dkt. No. 419 at 7–11). This evidence precludes the Court from concluding that Judge Mumm’s finding that Defendant has demonstrated the reason for its inability to obtain the HEP Source Code is clearly erroneous. See Green, 219 F.R.D. at 489 (“The clearly erroneous standard, which applies to a magistrate judge’s findings of fact, is ‘significantly deferential, requiring a definite and firm conviction that a mistake has been committed.’ ”).

2. Judge Mumm’s order also cannot be reversed based on Plaintiff’s assertion of spoliation of evidence

*2 Plaintiff contends that Judge Mumm failed to make an express ruling on whether Defendant violated their duty to preserve the HEP Source Code. (Dkt. No. 417 at 18–21). However, evidence submitted by Defendant supports Judge Mumm’s factual finding that Defendant never had possession of the HEP Source Code, see (Dkt. No. 419 at 9–10), (Dkt. No. 419-2 at ¶ 3), (Dkt. No. 419-3), precluding the Court from concluding that Judge Mumm’s order is based on clearly erroneous findings of fact or is contrary to law.

3. Plaintiff has failed to demonstrate intent sufficient to support their requested Rule 37 sanctions

Plaintiff seeks sanctions “establish[ing] that, subject to [Defendant’s] affirmative defenses, all HEP properties are fully royalty-bearing.” (Dkt. No. 417 at 23). In the alternative, Plaintiff requests an adverse jury instruction. Id. at 24.

Under Rule 37(e)(2),

Fed. R. Civ. P. 37(e)(2).

“This subdivision authorizes courts to use specified and very severe measures to address or deter failures to preserve electronically stored information, but only on finding that the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2) 2015 Advisory Committee’s Note. “It [thus] rejects cases ... that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” Id. Assuming for the sake of argument that Plaintiff’s assertion that Defendant possessed the HEP Source Code prior to and throughout this litigation was not genuinely contested, the Court finds that Plaintiff has not shown that loss of the HEP Source Code was intentional, rather than merely negligent. See Gaina v. Northridge Hosp. Med. Ctr., No. 18-00177, 2018 WL 6258895, at *5 (C.D. Cal. Nov. 21, 2018) (concluding that “voluminous production of some [responsive documents] demonstrates a good faith attempt to eventually recover and produce the requested documents.”); see also Spencer v. Lunada Bay Boys, No. 16-02129, 2017 WL 10518023, at *10-*11 (C.D. Cal. Dec. 13, 2017) (declining to impose Rule 37(e)(2) sanctions against an individual defendant where “[t]here [was] no evidence that [Defendant] affirmatively deleted [responsive documents] at issue after [the] duty to preserve arose, or that [Defendant] failed to preserve the [responsive documents] at issue with the intent to deprive Plaintiffs of the use of these [responsive documents].”). Here, Defendant produced voluminous amounts of source code in response to Plaintiff’s document requests, see (Dkt. No. 419-1), and specifically sought to inquire further into Mr. Hulse and Mr. Clark’s claims that they had access to the HEP Source Code during relevant time periods. (Dkt. No. 390). Because any loss of the HEP Source Code does not appear to be the result of intentional conduct by Defendant, the Court concludes that Plaintiff’s requested sanctions are unwarranted.

IV. CONCLUSION

*3 For the reasons stated above, Plaintiff’s motion is DENIED.